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BURRAGE v. SMITH et al.
(Circuit Court of Appeals, Fifth Circuit.
April 1, 1927.)
No. 4754.
1. Corporations <s=>560( 12)— Charges of fraud In transactions between railroad and terminal companies, and their fiscal agent held not sustained.
Charges of fraud in transactions between closely allied corporations, made in a suit between receivers for the" service corporations, helé not sustained.
2. Corporations <S=s>478 — Lease for adequate / rental held not breach of covenant not to incumber property in note indenture.
A lease of right of way over its property by a corporation, which was expected to be profitable to it, and for which adequate rental was received, cannot be considered in breach of a covenant against incumbering the property in an indenture securing its notes.
3. Principal and agent <§=>69(6) — Agent, buying property for himself with his own money, cannot be compelled to convey to principal.
Agent, who with his own money buys property for himself, cannot be compelled to convey it to his principal.
Appeal from the District Court of the United States for the Southern District of Georgia; William H. Barrett, Judge.
Suit in equity by Paul J. Burrage, as receiver, of the Port Wentworth Terminal Corporation, against Theodore G. Smith and John B. Johnson,-individually and as receivers of Imbrie & Co., and others. Decree for defendants, and complainant appeals.
Affirmed.
George T. Cann, of Savannah, Ga., William M. Evarts, of New York City, and Barton Corneau, of Boston, Mass. (Anderson,
Cann & Cann, of Savannah, Ga., Murray, Aldrich & Roberts,- of New York City, and Channing, Corneau & Frothingham, of Boston, Mass., on the brief), for appellant.
Robert M. Hitch, R. L. Denmark, and A. B. Lovett, all of Savannah, Ga., Chas. P. Spooner, of New York City, and S. B. Adams and A. P. Adams, both of Savannah, Ga., A. B. Rowe, of Palmetto, Fla., Herman E. Rid-dell and Mark Hyman, both of New York City (Rabenold & Scribner, of New York City, on the brief), for appellees.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
This is an appeal from a final decree dismissing a bill of complaint filed by leave of court in a receivership suit. The bill was based on the alleged fraud of Imbrie & Co. in three separate and distinct transactions. Jurisdiction was entertained in a single suit, because the District Court, through its various receivers, including the receivers of Imbrie & Co., was in possession of the subject-matters in controversy. Prior to their failure in March of 1921, Imbrie & Co. were investment bankers. In 1913 they became the principal stockholders of the Brinson Railway, whose name in 1915 was changed to Savannah & Northwestern Railway, and later was merged in the Savannah & Atlanta Railway. The line of railroad was so extended that by 1917 it reached from Savannah to Camak, Ga., and connected at the latter place with the Georgia Railway. By that time, Imbrie & Co., owned all of the common stock and three-fifths of the preferred stock of the Savannah & Atlanta Railway. They acquired from a lumber company a 3,-000-acre tract of undeveloped land at Port Wentworth on the Savannah river about six miles above Savannah, and a spur track about three miles long, which connected with the track of the railway at Newtonville? This spur track is referred to in the record as the Newtonville lead. The objects of the purchase of the Port Wentworth property were to secure a tidewater terminal, develop industries, provide tonnage for the railway, and thus increase its business with its connecting and other railroad companies. To accomplish these objects, the Port Wentworth Terminal Corporation was organized, and several industrial enterprises were located on-the water front. Industrial tracks were built which connected the industries with the Newtonville lead, and by means of it with the railway. The railway owned all the stock of the terminal corporation, and Imbrie & Co. were fiscal agents for both. The directors of the terminal corporation were either members or employees of the firm of Imbrie & Co. or directors of the railway. In 1921 Imbrie & Co., the railway company, and the terminal corporation were all. placed in the hands of receivers.
The following are the questions raised on this appeal, and the essential facts in the light of which those questions must be decided:
(1) Did the District Court err in refusing to set aside a 99-year lease from the terminal corporation to the railway of the Newtonville lead.and the industrial tracks on the Port Wentworth property? That lease, though dated December 31,1917, was not actually executed until March of 1918. It was not authorized by the board of directors of the terminal corporation, but was recorded, and a subsequent mortgage, executed October 1, 1920, by that corporation, to the Equitable Trust Company, and approved by its board of directors and stockholders, was made subject to it by specific reference to its date and the book in which it was recorded; and the rent reserved by the lease was accepted by the terminal corporation up until the time it was placed in the hands of a receiver, and has since been accepted by its receiver. The railway operated the industrial tracks from the beginning, and it was always the intention of all the parties interested that the terminal property should be used for the benefit of the railway. To carry out that intention, the railway also, on December 31,1917, conveyed the Newtonville lead to the terminal corporation, and the latter included in its lease both the Newtonville lead and the industrial tracks. The consideration to the railway for its deed of the Newtonville lead was $101,500 of the terminal corporation’s notes, which Imbrie & Co. received and credited on that corporation’s indebtedness to them.
It i§ claimed that the Newtonville lead was covered as after-acquired property by a previous mortgage of the Brinson Railway, and that Imbrie & Co. could and should have secured a release under a clause of that mortgage. The railway never applied for the release, because it did not have the money with which to pay- for it, and for that reason the deed to the Newtonville lead was withheld from record. On October 1,1917, in order to raise funds to repay advances made by Imbrie & Co., the terminal corporation issued notes for $700,000, payable in three years, and also issued participation certificates of the par value of $100 each, which entitled the holders to its net earnings until they should equal in amount the par value of the certificates. Imbrie & Co. took the potes and some of the certificates and sold them to the general public. The indenture, under which the notes were issued, provided that no mortgage or other incumbrance should be placed on any of the real property of the terminal corporation until all the notes were paid, , and that, if any of that corporation’s real property should be sold, the proceeds should either be deposited with the trustee under the note indenture or invested in property to be kept free from incumbrance. At the maturity of these notes on October 1, 1920, the terminal corporation executed its above-mentioned mortgage to the Equitable Trust Company, to secure an issue of $2,000,000 of bonds on all its real estate. Of these bonds, $1,000,000 were issued, Imbrie & Co. took $800,000 face value, and agreed with the terminal corporation to exchange bonds for notes issued in 1917, and all the notes except $74,500 were either paid or exchanged for bonds. The lease provided that the railway should pay all taxes on the leased property, pay for the upkeep of the tracks, and' 7 per cent, upon the cost thereof. At the time of the receiverships about 40 per cent., or seven miles, of the industrial tracks were producing revenue to the railway, and it was paying at the rate of $19,000 annually to the terminal corporation, besides .$10,000 for taxes and upkeep, a gross annual rental of over $4,000 per mile of tonnage producing track. The testimony was undisputed that the rental was fair for the service received, although it was insufficient to enable the terminal corporation to meet its obligations.
(2) Did the District Court err in refusing to set aside a deed by which the terminal, corporation conveyed 75 acres of land at Port Wentworth to* the Cuban-Atlantic Transportation Company? In the winter of 1919-20 Imbrie & Co.’s manager at Savannah recommended to them the building of terminal facilities at Port Wentworth to be so equipped as to provide facilities for the shipment 'of coal to Cuba and as to receive sugar from Cuba. At that time there was a great demand for sugar in the United States. There was already in existence a corporation known as the Cuban Atlantic Transport Corporation, the stock in which was held by Garcia, Guidera, and James, who severally agreed to supply the sugar, the necessary coal barges, and the coal. In reliance upon their representations, it was agreed that the transport corporation would convey all its assets, subject to liabilities, to a new corporation. Pursuant to that agreement, a new corporation, the Cuban-Atlantic Transportation Company, was organized, with a capitalization of $500,000 first preferred stock, $150,000 second preferred stoek, and 20,000 shares of common stoek without par value. For the purpose of providing a site for the proposed terminal and warehouse, the terminal corporation conveyed to the Cuban-Atlantie Transportation Company the 75 acres of land in question, and was to receive as consideration for its deed all the second preferred stock and all the common stoek, out of which it expected to realize $170,000. Thereupon bonds to the amount of $210,000, secured by a first mortgage on all the company’s assets, including the 75 acres of land, were taken by Imbrie & Co. at $189,000. The proceeds were used to pay off various obligations, including a mortgage of $60,000 on one of the barges, and about $100,000 for boats purchased from the Emergency Fleet Corporation. It soon became apparent that the transport corporation had not been operated profitably as claimed, but at a considerable loss. By that time, Imbrie & Co. and their Savannah manager had advanced about $260,-000. They refused to make further advances, and the venture proved to be a failure. None of the preferred or common stock was ever issued.
(3) Did the District Court err in refusing to decree that the terminal corporation was the beneficial owner of a 500-aere tract of land acquired by Imbrie & Co. ? This land is referred to in the record as the Foundation tract. It is situated on the Savannah river, but does not adjoin the Port Wentworth property. It was used during the World War by the Foundation Company as a site for the construction of ships for the French government. In 1920 Imbrie & Co. were considering the purchase of this tract for use in connection with the export of coal, and were in negotiations with French capitalists. It had a greater depth of water than the Port Went-worth tract, and in August of 1920 Imbrie & Co. purchased it for $175,000. They entered into negotiations to sell part of it to a coal and dock company for $100,000, and after-wards offered to sell the rest of it to the terminal corporation for $175,000. There was some effort made to show that the terminal corporation delivered to Imbrie & Co. $200,-000 of its bonds in payment for this tract of land, but that effort failed. The president of that corporation, who, although he was a member of the firm of Imbrie & Co., was the chief witness for appellant, admitted that the bonds were furnished in payment of other indebtedness, and testified it was the intention to issue additional bonds of his corporation for $200,-000 face value, that the coal and dock company would issue its purchase-money mortgage for $100,000, and that Imbrie & Co. would take the bonds and mortgage, at a cash valuation of $275,000, as the consideration to them for the Foundation tract. The whole plan fell through. The contemplated sale to the coal and dock company was never made, and consequently it never executed a purchase-money mortgage. The legal title to the Foundation tract remained in Imbrie & Co.
The District Judge heard the testimony, which was voluminous, and, after it was concluded, stated in a written opinion:
“Not only does the testimony fail to establish the charges of fraud, but the court is convinced that Imbrie & Co., and those who were advising them, acted with honest purpose throughout. This conviction does not prevent the further conviction that in some cases proper care was lacking, as in failing to arrange for the release of the Newtonville •track from the lien of the mortgage of the Brinson Railway before any attempt at consummating its sale, in failing to make certain the provision for all of the three-year notes before issuing the mortgage bonds; and in at least one case there was undue haste, with resultant disaster — i. e., the Cuban-Atlantic Transportation Company transaction. But in none of these was there any dishonest purpose and in the latter at least Imbrie & Co. suffered a treinendous direct and immediate loss in addition to the indirect losses they suffered whenever the terminal corporation lost. It must not be forgotten, in the consideration of every aspect of this case, that all of the stock of the terminal corporation was owned by the Savannah & Atlanta Railway, and that in turn Imbrie & 'Co. owned the large majority of the stoek of said railway. Therefore loss to the terminal corporation meant loss to Imbrie & Co. Imbrie & Go. may have been too sanguine, but their ever-present faith was evidenced by their continuing financial support.”
We agree with the District Judge, for the reasons stated by him, that actual fraud was not shown. The transactions complained of are of a kind that are not unusual in the relations between closely allied business corporations. At last, the terminal corporation was only a subsidiary of the railway. But it is contended by appellant that the averments of the bill are broad enough, and the proof is sufficient, even in the absence of intentional wrongdoing, to show that Imbrie & Co., while acting in a fiduciary capacity, handled the affairs of the terminal corporation for their own benefit and profit, with resulting injury to it, its security holders and other creditors. Assuming that appellant’s construction of the bill is correct, we also agree with the District Judge that the evidence fails to show such breach oi fiduciary relationship as to authorize the relief prayed in regard to any of the transactions of which complaint is made.
1. As to the lease: It is clear that the railway never intended to lose control of the Port Wentworth property, which it had long' before acquired as a means of gaining access to a terminal on the Savannah river. The deed of the Newtonville lead, and the lease of it and the industrial tracks, bear the same date, and were intended to be parts of a single transaction. The lease, although not authorized by the board of directors, was ratified by them as well as by the stockholders of the terminal corporation, by long afterwards making a mortgage subject to it, and by accepting rent for a period of years. The terminal corporation’s title to the Newtonville lead has not yet failed, because of the existence of the Brinson mortgage. The same District Court is in possession through receivers of both the railway and the terminal corporation, and has the power to protect the title to the Newtonville lead against the lien of the mortgage, if necessary, by authorizing receiver’s certificates in order to secure continued operation of the properties under its control. Miltenberger v. Railway Co., 106 U. S. 286, 1 S. Ct. 140, 27 L. Ed. 117. The principle is the same, whether the court authorizes an issue of eceiver’s certificates, or, to the extent that is necessary, protects the lease against the lien of the mortgage. It is true that the reasonableness of the rentals reserved by the lease are to be carefully considered, because of the interlocking directorates and the interest and influence of Imbrie & Co.; but, notwithstanding that, it is undisputed that a fair rental is being paid. The situation is to be viewed as it existed at the time ,the lease was entered into, when it was believed that it would become profitable to the terminal corporation by reason of the expected development of its property. The lease cannot justly be considered as an incumbrance within the meaning of the note indenture of 1917, by reason of the fact that notes amounting to $74,-500 are still outstanding. The incumbrance provided against in the note indenture was one similar to a mortgage. It would be extreme to say that reference was made to a lease that might become desirable in developing the terminal property.
2. As to the Cuban-Atlantie Transportation Company transaction: The good faith of Imbrie & Co. in this matter is not seriously questioned. But it is said that they acted in haste, caused the terminal corporation’s deed to be delivered before any stock was issued, and were careful to take security for themselves. Prompt action was thought to be necessary, and there was nothing to indicate that Imbrie & Co. took any advantage of the terminal corporation. The venture that it was hoped by all would yield a large profit resulted in a serious loss. Imbrie & Co, took security, it is true, but they are the only ones connected with the transaction who advanced any money. The situation is not different than it would have been if the terminal corporation had itself borrowed the money and pledged its land as security.
3. Imbrie & Co. did not purchase the Foundation tract as agents of the terminal corporation, but for themselves, in. order to provide a terminal for the coal and dock company which they expected to organize. The terminal corporation did not supply the purchase price, and has never paid anything for the property. The only contract right it could possibly assert was to acquire title upon.the payment of a profit to Imbrie & Co. It cannot at one and the same time enforce a contract to convey and refuse to pay the purchase price agreed upon. Burland v. Earle, 1902 A. C. 83. Appellant does not rely on the contract as ¿nade, but invokes the universally recognized rule that an agent will not be permitted to make a secret profit at the expense of his principal. That rule is violated where a trustee is the agent, and takes title in his own name to property which he paid for with money of his cestui que trust, or where a director buys and with his own money pays for property for the use of the corporation he represents, and then makes or contracts for a secret profit in the sale of that property to the corporation. In the one case, the cestui que trust is entitled to the property bought with its money, and, in the other, has the option to recover the secret profit or to rescind the sale. Cases in each of these classes are cited by appellant. It is to be noted that they relate to consummated transactions, and in that particular are different from the ease at bar. In Seacoast R. Co. v. Wood, 65 N. J. Eq. 530, 56 A. 337, the suit was to compel conveyance and an accounting of profits upon a sale to the railroad company. In Parker v. Nickerson, 112 Mass. 195, the suit was to recover from directors the profits they had made in the purchase of a ferryboat and the resale of it to their corporation. In Tyrrell v. Bank of London, 10 H. L. Cas. 26, the suit was to compel an accounting of profits on a resale to the corporations. None of those eases goes to the extent of holding that an agent, who with his own money has bought property for himself, and not for hisf principal, can after-wards be compelled to convey that property to his principal.
The decree is affirmed. | 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. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
0
] | songer_appbus |
CORDS v. COIL MFG. CO. et al.
No. 8554.
Circuit Court of Appeals, Ninth Circuit.
May 27, 1938.
A. W. Boyken, Mark Mohler, and Carroll A. Gordon, all of San Francisco, Cal., for appellant.
Lyon & Lyon, Frederick S. Lyon, and Richard F. Lyon, all,of Los Angeles, Cal., for appellees.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
Rehearing denied Sept. 7, 1938.
MATHEWS, Circuit Judge.
This appeal is from a decree dismissing the bill of complaint in a suit by appellant against appellees for infringement of patent No. 1,919,584, issued to and owned by appellant.
The patent was applied for on February 4, 1931, and was issued on July 25, 1933. As stated in his application, appellant’s claimed invention “relates to methods and apparatus for conveniently making packing rings by hand from straight bands of metal.” The patent contains twelve claims. The bill does not state which claims were infringed, but the case was tried below and argued here upon the theory that claims 1, 3, 4, 5, 8, 10, 11 and 12 are the only ones involved. Claims 1, 3 and 4 read as follows :
“1. An apparatus for bending a thin relatively wide blank edgewise into an annular ring comprising a pair of feed rollers having toothed portions intermeshing and forming a groove designed to receive the blank, a roller bending die having a groove that may be disposed substantially in alinement with said roller groove, means to shift said die with respect to said rollers, and means to rotate said rollers to advance the blank and to cause it to be bent into annular form by said roller die during its advancement.”
“3. An apparatus for bending a substantially flat metal blank, having a width greatly in excess of its "thickness, edgewise into the form of an annular ring, said apparatus comprising a frame, a pair of rollers supported by said frame and having matched grooves cooperating to form a pass for receiving the blank with the lateral bounding planes of said pass normal to the roller axes and forming a space of a width greater than the thickness of the entering flat blank, bending means carried in predetermined position relative to said frame to impart a given final shape to the ring, and means for driving one of said rollers.
“4. An apparatus for bending a strip of relatively thin metal into the form of a light resilient piston ring, said apparatus comprising a set of cooperating feeding and shaping rollers, and means provided by said rollers for imparting a uniformly dished shape to the ring whereby the latter is given an overall thickness which is greater than the thickness of the metal which forms the said ring.”
Each of these claims describes an apparatus for bending a strip of metal into the form of a ring, meaning, we think, a single, individual ring. Appellees have not made, sold or used any such apparatus. Theirs is an apparatus for bending a strip of metal into a continuous spiral or coil of many convolutions. No such apparatus is described in any of the claims in suit.
Claim 5 reads: “In an apparatus for bending a strip of thin metal edgewise into the form of an annular ring, means forming a pass of greater width than the thickness of the metal for receiving the strip during its passage through the apparatus, and means for varying the width of said pass to cause more or less predetermined lateral distortion of the strip as said strip is being bent edgewise into annular form.” Here, also, the apparatus referred to is an apparatus for bending a strip of metal to form a single, individual ring. Appellees have not, in any such apparatus, made, sold or used the means described in claim 5, or any means whatever.
Claim 8 reads: “In subcombination, in an apparatus for reshaping an elongated piece of material, a rotatable member provided with an external set of teeth, and means disposed adjacent said teeth on said member for cooperation with one side of the set of teeth to form a pass for the piece of material, said means comprising a second set of teeth adjustable toward and from the first mentioned set to vary the size of said pass.” Appellees have not, in subcombination or otherwise, made, sold or used the means described in claim 8, or any equivalent means.
Claims 10, 11 and 12 read as follows:
“10. The method of making a dished piston ring from a band of metal of a width greatly in excess of its thickness which consists in bending the band of metal into annular form on lines transverse to the width of said band in a manner permitting the resultant compression of the metal adjacent the inside <of the ring and the resultant tension of the metal adjacent the outside of the ring to draw said band into a slightly dished form.
“11. The method of making a dished piston ring from a band of flat metal of a width greatly in excess of its thickness, .which consists in bending the band into annular form by application of pressure to the edge thereof to bend the band on lines normal to the width of the band while maintaining the other surfaces free of pressure so as to cause the band to assume a dished form as an incident to the bending operation.
“12. The method of making a dished piston ring from a band of metal of a width greatly in excess of its thickness, which consists in bending the band into annular form by application of pressure to the edge thereof to bend the ' band on lines normal to the width of the band while maintaining the other surfaces free of pressure so as to cause the band to assume a dished form as an incident to the bending operation, and in limiting the extent of lateral deflection of the strip so as to determine the extent of dishing of the ring.”
Appellees have not used any of the methods described in these claims. Their method of making piston rings is to cut into pieces of suitable length a spiral or coil formed from a metal strip, as mentioned above, and then to grind and reshape such pieces into piston rings. No such method is described in any of the claims in suit.
We hold, therefore, that, properly construed, the claims in suit have nót been infringed by appellees. Whether, when so construed, the claims are valid or invalid, we need not and do not decide. Compare Antonsen v. Hedrick, 9 Cir., 89 F.2d 149, 151.
If given the broader construction contended for by appellant, the claims would be invalid for the reasons stated in the trial court’s opinion (D.C., 15 F.Supp. 359), but we do not think such construction proper or permissible. Hence, we conclude, the bill should have been dismissed, not on the ground of invalidity, but on the ground of non-infringement only.
The decree is modified by striking therefrom the declaration that the claims in suit are invalid, and, as thus modified, is affirmed.
Packing rings, also called sealing rings, are used on pistons of internal combustion engines, and, when so used, are called piston rings,
Meaning, obviously, a metal blank. | 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. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genresp1 |
GURNETT & CO. v. POIRIER.
No. 2865.
Circuit Court of Appeals, First Circuit.
March 14, 1934.
Charles F. Dutch, of Boston, Mass. (Richard Bancroft .and Putnam, Bell, Dutch & Santry, all of Boston, Mass., on the brief), for appellant.
Joseph G. Sehumb, of Boston, Mass., for appellee.
Before WILSON and MORTON, Circuit Judges, and MORRIS, District Judge.
WILSON, Circuit Judge.
On January 10, 1928, Delina M. Poirier was appointed eonservatrix of her brother, W. E. Filteau, in the probate court of Mid-dlesex county in the commonwealth of Massachusetts, because of his mental weakness. On April 12, 1929, and while the decree of the probate court was still in effect, Filteau, without the knowledge of his. sister, opened a trading account with Gurnett & Co., stock brokers. He made six deposits on the account, viz., on April 12, 1929, May 14, 3929, June 20, 1929, July 15, 1929, May 5; 3930, and January 23, 1931.
The funds constituting five of the payments to Gurnett & Co. on this account were obtained by Filteau by withdrawals from Massachusetts savings banks in which he had deposits, and the sixth payment was obtained from an insurance company by a loan on an insurance policy in his name. The fair inference from the agreement of the parties as to the facts, as set forth in the referee’s certificate is that the deposits by Filteau in, the savings banks were made while he was mentally competent to manage his property. At least, it is clear that they were made before there was any finding by the probate court to the contrary, and there is a presumption in favor of sanity.
In ease of the deposits of funds withdrawn from the savings banks, with the exception of the payment to Gurnett & Co*, on May 14, 1929, the savings banks issued their respective checks which were indorsed by Fil-teau over to Gurnett & Co. In the case of the second payment Filteau deposited the savings bank cheek in a national bank and drew his own cheek payable to* Gurnett & Co.
All these transactions wore done without the knowledge of the eonservatrix, who had no knowledge of her brother’s savings deposits or his insurance policy until after January 5, 3932!, on which date Gurnett & Co. filed a petition in bankruptcy.
Neither were the banks, the insurance company, nor Gurnett & Co. aware of the appointment of a eonservatrix for Filteau until after the filing of the petition in bankruptcy by Gurnett & Co. There is no claim of lack of good faith on the part of any of the parties involved.
It is a well-established law in Massachusetts that the appointment of a conservator by a probate court is notice to* the world that the ward is not competent to transact business, and all persons deal with him at their peril. Any contracts entered into with him, however, are not void, but voidable at the election of his conservator, or of himself, if he again becomes competent to manage his own affairs. Brewster et al. v. Weston et al., 235 Mass. 14, 126 N. E. 271; Foss v. Twenty-Five Associates, 239 Mass. 295, 131 N. E. 798; Carrier v. Sears, 4 Allen (Mass.) 336, 81 Am. Dec. 707; Howe v. Howe et al., 99 Mass. 88; Godfrey v. Mutual Finance Corp., 242 Mass. 197, 136 N. E. 178; Arnold v. Richmond Iron Works, 1 Gray (Mass.) 434, 437; Brigham v. Fayerweather et al., 144 Mass. 48, 10 N. E. 735; Atwell v. Jenkins, 163 Mass. 362, 40 N. E. 178; 28 L. R. A. 694, 47 Am. St. Rep. 463; Benson v. Tucker et al., 212 Mass. 60, 98 N. E. 589, 41 L. R. A. (N. S.) 1219.
Filteau’s credits with Gumett & Co. were depleted hy losses during 1929, 1930, and 1931, so that at the time of the filing of the petition in bankruptcy there was a credit on Filteau’s account with Gurnett & Co. of only $966.29. During 1931 Gumett & C'o. had paid to Filteau $200; for which it is admitted the bankrupt is entitled to a credit.
The eonservatrix filed a claim against the bankrupt for the full amount of the moneys deposited to her ward’s credit with the bankrupt, less a certain credit, which the con-servatrix has affirmed to the extent of $200.
The referee states in his certificate that, after the bankruptcy, the eonservatrix repudiated “all of the foregoing transactions” except the credit of $200 allowed to Gumett & Co. From this it appears that the referee found that the eonservatrix- not only ' repudiated the transaction with Gumett & Co., but undertook to repudiate all voidable transactions with the banks and the insurance company. This construction finds some corroboration in the ruling of the referee that “the eonservatrix may proceed against either or both.” The District Court affirmed the ruling of the referee and allowed her claim. To the District Court’s order allowing the conservatrix’s claim, Gumett & Co. appealed.
Counsel for Gumett & Co. contends that the eonservatrix having elected to disaffirm the transactions with the banks and the insurance company, as well as with Gumett & Co., the effect was to annul the contracts on both sides ab initio, MacGreal v. Taylor, 167 U. S. 688; 17 S. Ct. 961, 42 L. Ed. 326; that Filteau therefore cannot be held to have deposited any money or cheeks belonging to him with Gumett & Co., but the money or the checks by reason of the disaffirmance of the contracts became the property of the banks and the insurance company, and the sole remedy of the eonservatrix is against the several banks and the insurance company, and the remedy of the banks and the insurance company is against Gumett & Go.
But Reed v. Mattapan Deposit & Trust Co., 198 Mass. 306, 314, 84 N. E. 469, Leighton v. Haverhill Savings Bank, 227 Mass. 67, 116 N. E. 414, hold that if the deposits in a savings bank were made while the depositor was sane, payments by the savings banks in case of-withdrawal cannot be avoided by a eonservatrix; also see Williston on Contracts, § 250; and while the deposit of the funds with the National Bank of Boston and their withdrawal in 1929 and the loan from the insurance company constituted new contracts, they were not void contracts, but only voidable at the election of the eonservatrix. Brewster et al. v. Weston et al., supra; Brigham v. Fayerweather, supra.
Whether there was any privity of contract between the National Bank or the insurance company and Gumett & C'o., or whether they have any claim against the bankrupt, it is not necessary to decide.-
Until repudiated Filteau could use the funds drawn from the National Bank and obtained of the insurance company in making valid, though voidable, contracts with Gumett & Co. Carpenter v. Grow, 247 Mass. 133, 136, 137, 141 N. E. 859. The contract to purchase stocks was between Filteau and Gurnett & Co., and we think rendered Gurnett & Co-, liable, upon disaffirmance, to restore to the eonservatrix any funds, from whatever source lawfully obtained, deposited by her ward with the bankrupt under a contract for the purchase of stocks on a trading or margin account.
No case has been called to our attention in which the facts present the precise issues involved in this case. Whatever may be the rale in ease of a purchase and sale of real estate, or other specific property, by an incompetent, it would seem like too much of a refinement of the law, and might in some eases result in depriving an infant, or an incompetent, of the protection the law throws around him, to hold, if the infant, or a conservator of a person mentally incompetent, disaffirms a contract under which the infant or the incompetent has deposited funds with a third person to purchase property, he cannot recover them, because lie has disaffirmed the contract by which he obtained the funds, whether by loan or otherwise. Especially we think this is true where the funds cannot be identified in the hands of the third person, as in ease of money which has been spent or otherwise dissipated, or in ease either of the parties with whom he dealt cannot make restitution in full. In so far as recovery is had of one, the infant or conservator cannot, of course, recover in full of the other, without a tender of what he has recovered. In such a case, we think it is optional with tho infant or a conservator against which party he will first proceed.
We are of the opinion that the bankrupt in this ease cannot object to the allowance of the claim of the conservatrix on the ground that the voidable contracts by which the war'd of the conservatrix obtained any of the funds deposited with the bankrupt have since been repudiated; the ward having a lawful right to use tho funds at the time they were deposited with the bankrupt as margin for a trading account, but which have since been, lost.
The order of the District Court is affirmed, with costs. | 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. | What type of court made the original decision? | [
"Federal district court (single judge)",
"3 judge district court",
"State court",
"Bankruptcy court, referee in bankruptcy, special master",
"Federal magistrate",
"Federal administrative agency",
"Special DC court",
"Other ",
"Not ascertained"
] | [
3
] | songer_origin |
Jacquelyn HAWKINS, Appellee, v. ANHEUSER-BUSCH, INC., Appellant. Jacquelyn HAWKINS, Appellant, v. ANHEUSER-BUSCH, INC., Appellee.
Nos. 81-1153, 81-1993.
United States Court of Appeals, Eighth Circuit.
Submitted Oct. 11, 1982.
Decided Jan. 10, 1983.
See also, D.C., 504 F.Supp. 882.
Mary Anne Sedey, Chackes & Hoare, St. Louis, Mo., for appellant/cross-appellee.
Donald L. McCullin, Wilson, Smith & McCullin, St. Louis, Mo., for appellee/crossappellant.
Before HEANEY and ROSS, Circuit Judges, and HENLEY, Senior Circuit Judge.
HEANEY, Circuit Judge.
Jacquelyn Hawkins, a former employee of Anheuser-Busch, Inc., commenced an action in the United States District Court for the Eastern District of Missouri, alleging that the company had refused to promote her on three separate occasions because of her sex and on one of those occasions for the additional reason that she had filed a charge of discrimination with the Equal Employment Opportunity Commission. The district court, 522 F.Supp. 159, found that the company had refused to promote her to one position—the position of material control analyst—because of her sex, but found that she had not been otherwise discriminated against. It awarded her back pay in the sum of $1,461, prejudgment interest in the sum of $98.55, and attorneys’ fees in the sum of $4,600. Hawkins appeals. She contends that the district court erred (1) in finding in favor of the company with respect to her other discrimination claims; (2) in computing the back pay to which she is entitled; (3) in awarding inadequate attorneys’ fees; and (4) in failing to award certain costs. Anheuser-Busch, Inc., filed a cross-appeal. It contends that the district court erred (1) in finding for Hawkins with respect to the material control analyst position; and (2) in awarding Hawkins attorneys’ fees. We affirm the district court’s judgment with respect to the discrimination claims, increase the back pay award, allow the disputed costs, and remand for the purpose of recomputing attorneys’ fees.
I.
BACKGROUND
Hawkins was initially employed by Anheuser-Busch on February 15, 1967, as a junior secretary (grade 4). Her duties were primarily clerical. In April of 1971, after a maternity leave, she was rehired as a junior secretary in the Operations Material Control Department.
In February, 1975, a Trade Returns Section was established in the Operations Material Control Department and the position of supervisor of trade returns was created. Hawkins was classified as an accounting clerk in the new section. John T. Mulrooney was named supervisor of the department.
In April, 1978, Mulrooney was transferred to another department in the company. Hawkins, who had continued to be classified as accounting clerk I (grade 9), asked to be appointed to the vacant supervisor position. Her request was denied on the grounds that she lacked a college education and computer programming experience. The position was filled by Thomas Forbes, a white male with a college education and some computer programming experience. Hawkins filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). The Commission gave Hawkins a notice of a right to sue. She commenced an action in district court on March 21, 1979, alleging that she had been denied the promotion because of her sex.
In early 1979, the Trade Returns Section was reorganized. Under the reorganization, the position of material control analyst (grade 14) was created. The position of accounting clerk I was retained, but the duties of the position were changed to delete many of the duties relating to forecasting, budgeting and movement orders, and to add substantial typing and filing tasks. Hawkins applied for the material control analyst position. She did not receive the job. It was given to Mark Rogan, a white male.
In June of 1979, trade returns supervisor Forbes was transferred to a new position within the company. Again, Hawkins applied for the supervisor position, and again she was denied the promotion. The job was given to Thomas Sanders, a white male with a B.S. degree in management science. On October 18,1979, Hawkins filed a second charge with the EEOC. She contended that she had been denied the material control analyst and supervisor of trade returns positions because of her sex and in retaliation for filing the initial discrimination charge. After receiving another notice of a right to sue, Hawkins filed an amended complaint on June 9, 1980, in which she repeated the allegations of the first complaint and additionally alleged that she had been denied the material control analyst and trade returns supervisor positions because of her sex. A four day trial on the merits was commenced on September 15, 1980. The trial court found in favor of Hawkins with respect to the material control analyst position and against her with respect to the trade returns supervisor position and on her retaliation claim. Hawkins and Anheuser-Busch both appeal.
H.
ISSUES
A. The Material Control Analyst Position.
Hawkins has pursued her claim that she was discriminatorily denied the material control analyst position under a disparate treatment theory. To establish a prima facie case of sex discrimination under this theory, the plaintiff must show that (1) she belongs to a protected class, (2) she applied for a job for which she was qualified, (3) despite her qualifications, she was rejected, and (4) thereafter, the position remained open and the employer continued to seek applicants with qualifications similar to those of the plaintiff. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The district court, applying this analysis, held that Hawkins established her prima facie case.
Anheuser-Busch contends that the district court erred in so holding because Hawkins was not qualified to assume the material control analyst position. Specifically, the company contends that it required applicants for the position to have two years of college with an emphasis in inventory and production control, and that Hawkins did not possess this qualification.
Hawkins does not have two years of college education. Nonetheless, the district court found that she was qualified for the material control analyst position on the basis of her previous work experience at Anheuser-Busch. It stated:
During the seven years plaintiff worked in the trade returns section, she gained experience in the inventory planning, allocation, and short-term forecasting functions assigned to the newly-created material control analyst position.
* * * * * *
Plaintiff * * * established a prima facie case concerning her application for the position of material control analyst. * * [She] applied and was qualified for the position of material control analyst based upon her seven years experience in trade returns. After * * * [she] was rejected for the position * * *, [Anheuser-Busch] continued to seek applications from persons with similar qualifications, e.g., trained to perform functions which had, in substantial part, previously been performed by plaintiff. (Citation omitted.)
The district court’s finding that Hawkins was qualified for the material control analyst position is fully supported by the record.
First, the two year college requirement was not an absolute one. When AnheuserBusch advertised the position in the local newspapers, it did not list any minimum education qualifications, it listed only experience requirements.
Second, the company interviewed Hawkins notwithstanding the alleged educational deficiency.
Third, the white male eventually hired to fill the position did not possess all the educational qualifications that the company professed to require. Although he had taken a few materials management and business courses in college, his two year associate degree was in liberal arts. The company explicitly required “two years of college with an emphasis in inventory and production control.” (Emphasis added.)
Apart from the question of whether Anheuser-Busch actually established the education requirement for the material control analyst position, Hawkins plainly proved that she was “qualified” for the job. In her years with Anheuser-Busch, Hawkins performed substantially all of the duties that the company assigned to the material control analyst position. Hawkins’ supervisors rated her job performance as satisfactory or better. Three supervisors testifying at trial said that she was a good employee who did her work well and who possessed good communications skills. Although some Anheuser-Busch witnesses raised a few “nitpicking” criticisms regarding Hawkins’ performance, the district court plainly did not err in rejecting them and concluding that her past experience with the company qualified her for the material control analyst job.
Anheuser-Busch alternatively contends that Hawkins failed to establish her prima facie case because she failed to prove that the position was offered to a less qualified male, and because in fact it hired a better qualified candidate, Mark Rogan. The defendant’s argument is misplaced. The plaintiff need not prove her relative qualifications to meet her prima facie burden. Aikens v. United States Postal Service Board of Governors, 665 F.2d 1057, 1059 (D.C.Cir.1981), cert. granted, 455 U.S. 1015, 102 S.Ct. 1707, 72 L.Ed.2d 132 (1982); Lynn v. Regents of the University of California, 656 F.2d 1337, 1342-1345 (9th Cir.1981), cert. denied, - U.S. --, 103 S.Ct. 53, 74 L.Ed.2d 59 (1982). Contra Holder v. Old Ben Coal Co., 618 F.2d 1198, 1201-1202 (7th Cir.1980).
To require such proof of relative qualifications at the prima facie stage of a case would undermine the McDonnell Douglas Corp. v. Green, supra, framework and “collapse [its] three step analysis into a single initial step at which all issues would be resolved.” Lynn v. Regents of University of California, supra, 656 F.2d at 1344; Note, Relative Qualifications and the Prima Facie Case in Title VII Litigation, 82 Colum.L.Rev. 533, 561 (1982). Such a steep prima facie threshold is contrary to the legislative intent of Title VII and could “block individual claims, undercut the deterrent effects of Title VII, and work against the attainment of equal opportunity in all areas and at all levels of employment.” Note, Relative Qualifications and the Prima Facie Case in Title VII Litigation, supra, 82 Colum.L.Rev. at 573. Accord Bartholet, Proof of Discriminatory Intent Under Title VII: United States Postal Service Board of Governors v. Aikens, 70 Calif.L.Rev. 1201, 1210-1220 (1982).
Accordingly, the defendant’s claim that it rejected Hawkins because Rogan was more qualified must be treated as a nondiscriminatory reason for its action that it articulated in response to the plaintiff’s prima facie case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-256, 101 S.Ct. 1089, 1093-1095, 67 L.Ed.2d 207 (1981). Under Burdine, of course, the company’s burden is only to articulate such a legitimate, nondiscriminatory reason for its employment decision. Id. at 254-255, 101 S.Ct. at 1094. The plaintiff retains the ultimate burden of persuading the trier of fact that the employer acted for a discriminatory reason. Id. at 255-256, 101 S.Ct. at 1094-1095.
Anheuser-Busch met its burden by introducing evidence, through the testimony of its officials, that it filled the material control analyst position with Rogan rather than Hawkins because he was more qualified. Nonetheless, we agree with the district court’s finding that Hawkins proved that this articulated rationale was a pretext and that she was in fact not given the position because of her sex.
Hawkins clearly proved that she was at least as qualified for the material control analyst position as the person who received the job—Rogan. The company emphasizes that Rogan had approximately five and one-half years of work experience in inventory control, and scheduling and forecasting at Emerson Electric and Hussmann Refrigeration before coming to Anheuser-Busch. Hawkins, however, established that she had worked for Anheuser-Busch for seven years, satisfactorily performing substantially the same duties that were included in the material analyst position.
Rogan did have two years of college, including a handful of materials management courses, in addition to his work experience. His degree, however, was in liberal arts. Rogan also had been a member of a materials management society for some two years. These qualifications, while not unimportant, are no more persuasive than those of Hawkins since she had successfully performed the duties of the material control analyst for several years at Anheuser-Busch itself.
In the final analysis, Anheuser-Busch’s arguments come down to the claim that it is free to reorganize its departments, to create new employment positions, to establish the education requirements for those jobs, and then to fill them with whomever it pleases. The short answer to this claim is that although the company has the right to reorganize its operating structure and employment classifications, it is not free to exercise that right in a manner that prevents a qualified member of a protected class from retaining a position that he or she was previously performing satisfactorily. Here, Anheuser-Busch acted lawfully in establishing the material control analyst position and in setting the requirements for the job. It acted unlawfully, however, in denying the plaintiff this position because she did not have two years of college when she had proved—by satisfactorily performing the material control analyst’s duties over a period of years—that she could do the job. To hold otherwise would deprive members of protected classes of jobs that they had obtained through years of satisfactory service.
We hold that Hawkins met her burden of proving that Anheuser-Busch’s claim that it denied her the material control analyst position because Rogan was more qualified was' a pretext for discrimination. Accordingly, we affirm the district court’s finding that the defendant violated Title YII by denying Hawkins that job.
B. Supervisor of Trade Returns.
Hawkins relies on a disparate impact theory to support her claim that she was discriminatorily denied the trade returns supervisor position. Specifically, Hawkins contends that the requirement that applicants for the trade returns supervisor position have a college degree in business, industrial engineering, materials management, or a related field had a disparate impact on women.
To establish a prima facie ease under the disparate impact theory, the plaintiff need not show that the employer had a discriminatory intent; she need only demonstrate that a facially neutral employment practice actually operates to exclude from a job a disproportionate number of members of a protected class. Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d 158 (1971); Kirby v. Colony Furniture Co., Inc., 613 F.2d 696, 703 (8th Cir.1980); Donnell v. General Motors Corp., 576 F.2d 1292, 1296 (8th Cir.1978). The district court in substance found that Hawkins established her prima facie case, stating that the “college degree requirements * * * operate to exclude women from eligibility for the [trade returns supervisor] position because women hold these degrees in substantially smaller percentages than their percentage in the population.”
Assuming, without deciding, that Hawkins established her prima facie case, the burden of persuasion shifted to the defendant to prove that the college degree requirement was justified by business necessity. Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977); Aibermarle Paper Co. v. Moody, 422 U.S. 405, 408, 95 S.Ct. 2362, 2367, 45 L.Ed.2d 280 (1975); Griggs v. Duke Power Co., supra, 401 U.S. at 424, 91 S.Ct. at 849; Green v. Missouri Pacific Railroad Co., 523 F.2d 1290, 1295-1296 (8th Cir.1975). To establish the business necessity defense, Anheuser-Busch carries a heavy burden. It must demonstrate that the college degree requirement had “a manifest relationship to the employment in question.” Dothard v. Rawlinson, supra, 433 U.S. at 329, 97 S.Ct. at 2727. A discriminatory employment practice cannot be “justified by routine business considerations;” the employer must demonstrate that there is a “compelling need * * * to maintain that practice.” Kirby v. Colony Furniture Co., Inc., supra, 613 F.2d at 706 n. 6. (Emphasis in original.)
The district court held that AnheuserBusch established that its college degree requirement was justified by business necessity. While this Court might have reached a contrary result had it been the fact-finder, we cannot say that the district court’s decision was a clearly erroneous one.
An employer cannot rely on purely conclusory testimony by company personnel to prove that a college degree is job-related and required by business necessity. See Payne v. Travenol Laboratories, Inc., 416 F.Supp. 248, 259-260 (N.D.Miss.1976), aff’d, 565 F.2d 895 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978). Although Anheuser-Busch presented such testimony here, it did not rely exclusively on it. Its witnesses testified at length concerning the reasons why the college degree requirement was job-related and justified by business necessity.
A validation study would have strengthened the company’s case. It is the preferred type of evidence in a disparate impact ease. See, e.g., Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. §§ 1607.1 et seq.; Bartholet, Application of Title VII to Jobs in High Places, 95 Harv.L.Rev. 945, 989-990 (1982). We cannot say, however, that validation studies are always required, and we are not willing to hold under the facts of this case that such evidence was required here.
Once the employer met its burden of demonstrating that the educational requirement was justified by business necessity, the plaintiff then had to show that another employment practice, which did not produce a similar discriminatory impact, would satisfy “the employer’s legitimate interest in ‘efficient and trustworthy workmanship.’ ” Albermarle Paper Co. v. Moody, supra, 422 U.S. at 425, 95 S.Ct. at 2375, quoting McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 801, 93 S.Ct. at 1823; Kirby v. Colony Furniture Co., Inc., supra, 613 F.2d at 703. When the employer is shown an alternative selection method that has substantial validity and less adverse impact, it must choose the less discriminatory method. See id.; Uniform Guidelines on Employee Selection Procedures, 29 C.F.R. § 1607.3(B).
Here, Hawkins contended that her experience performing all or substantially all of the duties of the trade returns supervisor was an adequate alternative to the college degree requirement. We agree that such on-the-job experience with the company, if proven, would be a less-discriminatory alternative to the degree requirement, and that Anheuser-Busch would have had to recognize this selection method if it was available. The district court, however, found, that unlike the material analyst position, Hawkins had not performed all, or even substantially all, of the duties of the trade returns supervisor during her tenure with Anheuser-Busch.
Although Hawkins testified that she in fact had performed all such duties, the company’s witnesses testified that the supervisory functions performed by the plaintiff were at the direction and under the supervision of her superiors. They further testified that Hawkins did not make supervisory decisions, but rather executed the decisions made by her superiors. In light of this contradictory testimony, we cannot say, after carefully reviewing the record as a whole, that the district court erred in concluding that Hawkins had not been performing the principal duties of the trade returns supervisor prior to the time she was rejected for that position. Since Hawkins advanced no other selection criteria than her own previous experience, she has not shown that Anheuser-Busch had available an alternative selection method that was valid and less discriminatory than its degree requirement. Accordingly, we hold that the district court did not err in finding against Hawkins on her trade returns supervisor claim.
C. The Back Pay Award.
The district court did not abuse its discretion in awarding Hawkins back pay. It did err, however, in computing the back pay to which she was entitled. There is no evidence in the record to support its use of the Federal Civil Service System for computing a new level of pay when a federal employee is promoted and the pay grades overlap.
The court had before it the company’s job classification scheme which provided for the salary ranges in grades 9 and 14 as follows:
Year Minimum Median Maximum
Grade 9 1979 $ 935/mo. $1180/mo. $1425/mo.
1980 $ 935/mo. $1230/mo. $1525/mo.
Grade 14 1979 $1285/mo. $1657/mo. $2030/mo.
1980 $1285/mo. $1727/mo. $2170/mo.
The back pay period runs from April, 1979, through February, 1980. Hawkins was paid $1,230 per month for the months of April and May, 1979, and $1,350 per month for the nine month period June through February, 1980. Absent other evidence, it is reasonable to infer that at a minimum Hawkins would have been placed on the lowest step in grade 14 which would have given her a pay increase. Thus, her salary should have been $1,285 for the months of April and May of 1979, and $1,727 per month for the nine months in 1980. On remand, the district court shall compute the back pay award to which Hawkins is entitled pursuant to the monthly salary set forth above and shall recompute prejudgment interest on the amount awarded.
D. Attorneys’ Fees.
The district court did not abuse its discretion in awarding attorneys’ fees to Hawkins’ counsel. It did err, however, in determining the amount of the fee. The plaintiff requested a fee based on 185 hours of work at the rate of $40 per hour, or $11,000, plus an allowance of $1,034 for the services of a law student working under her direction. Anheuser-Busch did not object in the court below or on appeal to counsel’s hourly rate or to the reasonableness of the hours incurred. Moreover, the record affirmatively shows that the hourly rate and hours worked were reasonable.
Anheuser-Busch raised only two objections below and again here. First, it contends that a fee for paralegal services should not be allowed. We find no merit to this contention. Paralegal fees should be allowed if reasonable and not duplicative of other legal fees. See Spray-rite Service Corp. v. Monsanto Co., 684 F.2d 1226, 1250 (7th Cir.1982); Pacific Coast Agricultural Export Assn. v. Sunkist Growers, Inc., 526 F.2d 1196, 1210 n. 19 (9th Cir.1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1741, 48 L.Ed.2d 204 (1976). Contra City of Detroit v. Grinnell Corp., 495 F.2d 448, 473 (2nd Cir.1974). Second, the company urges that the attorneys’ fee should be reduced because the plaintiff did not prevail on all issues. The district court, citing Brown v. Bathke, 588 F.2d 634 (8th Cir.1978), disclaimed any intent to reduce the fee because plaintiff did not prevail on all issues. It stated:
Defendant argues that attorney’s fees should be awarded only for successful efforts by counsel on plaintiff’s behalf. The Eighth Circuit has addressed this position in Brown v. Bathke, 588 F.2d 634 (8th Cir.1978), disapproving the award of attorney’s fees for only the successful portions of the causes of action, when the district court attempted to mechanically divide the hours between time spent on the successful portion and time spent on the unsuccessful portion of the suit. Such a division rarely can be made, and would be very difficult in the present case.
Notwithstanding the foregoing conclusion, the district court reduced plaintiff’s attorneys’ fee and gave no reason for doing so. The only inference that we can draw is that the district court, despite its disclaimer, reduced the fee because the plaintiff did not prevail on all issues.
Under the circumstances, we remand to the district court to promptly award plaintiff’s counsel $5,634, the sum awarded by the district court, plus the requested allowance for paralegals. We further direct the district court to hold the question of whether additional attorneys’ fees should be awarded until the Supreme Court has decided Hensley v. Eckhart, 455 U.S. 988, 102 S.Ct. 1610, 71 L.Ed.2d 847 (1982), in which the questions of whether and to what extent attorneys’ fees may be reduced because a plaintiff does not recover on all issues hopefully will be answered. See Paxton v. Union National Bank, No. 81-1650 (8th Cir. Dec. 6, 1982).
E. Costs.
The district court refused to award statutory costs of $136.84. This refusal was erroneous. See Alexander v. National Farmers Organization, 696 F.2d 1210 (8th Cir.1982); Jones v. Diamond, 636 F.2d 1364 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981). These costs will be awarded on remand.
F. Costs on Appeal.
Costs for this appeal will be taxed two-thirds to Anheuser-Busch and one-third to Hawkins. Hawkins may submit a request for attorneys’ fees on appeal within thirty days of the date that the Supreme Court releases its decision in Hensley v. Eckhart, supra.
III.
CONCLUSION
For the foregoing reasons, the district court’s judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
. Anheuser-Busch does not, and indeed could not, contend that the district court applied an improper legal theory in determining whether Hawkins established a prima facie case. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 & n. 6, 101 S.Ct. 1089, 1094 & n. 6, 67 L.Ed.2d 207 (1981) (concluding that McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) continues to state the elements of a prima facie disparate treatment case). Hawkins did not contend at trial and does not contend here that the requirements for the material control analyst position had a disparate impact on women applicants.
. Hawkins also contended in the court below that Anheuser-Busch violated Title VII by changing her duties when the material control analyst position was created in 1978 in retaliation for her lawsuit against the company. The district court found against Hawkins on this claim. This finding was not erroneous. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
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"Texas",
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"Vermont",
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"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
55
] | songer_state |
MAGNUS PETROLEUM COMPANY, INC. and Marpat Corporation, Plaintiffs-Appellees, Cross-Appellants, v. SKELLY OIL COMPANY, Defendant-Appellant, Cross-Appellee.
Nos. 78-1387, 78-1388.
United States Court of Appeals, Seventh Circuit.
Heard Feb. 14, 1979.
Decided May 23, 1979.
Rehearing and Rehearing En Banc Denied June 20,1979.
W. Stuart Parsons, Milwaukee, Wis., for defendant-appellant, cross-appellee.
Irving I. Saul, Dayton, Ohio, for plaintiffs-appellees, cross-appellants.
Before CUMMINGS and SPRECHER, Circuit Judges, and LEIGHTON, District Judge.
District Judge George N. Leighton of the Northern District of Illinois is sitting by designation.
CUMMINGS, Circuit Judge.
This private antitrust action was brought in July 1973 by a Sheboygan, Wisconsin, gasoline and fuel oil distributor (Magnus) and the Company (Marpat) owning the land and buildings involved in the distributorship. Defendant Skelly Oil Company (Skelly) formerly was Magnus’ supplier of gasoline, furnace oil and related products. In seeking damages in excess of $700,000 (before trebling under Section 4 of the Clayton Act, 15 U.S.C. § 15), plaintiffs asserted that the defendant violated Section 1 of the Sherman Act (15 U.S.C. § 1) and Section 3 of the Clayton Act (15 U.S.C. § 14).
According to the complaint, plaintiffs marketed Skelly’s petroleum products in Sheboygan County, Wisconsin, and adjacent areas from 1964 until February 28, 1973, when Skelly terminated its relationship with plaintiffs. The parties stipulated that plaintiffs were both wholesale and retail gasoline distributors. In the former capacity, they were “jobbers,” operating two bulk plants (storage facilities). One of these, in Haven, Wisconsin (seven miles from She-boygan), was owned by Magnus. Another facility, located in Sheboygan, was leased by Magnus from Skelly. In its capacity as a jobber, Magnus on February 29, 1964, entered into a “Franchise Sales Agreement” with Skelly. Under this agreement, Magnus was committed to buy and Skelly to sell and deliver certain specified quantities of gasoline each year. Magnus also agreed to sell and deliver petroleum products to four specified Skelly-owned stations in the Sheboygan area.
The complaint states that the mainstay of plaintiffs’ retail distributorship was the fee ownership of four retail gasoline service stations in the Sheboygan area. Three of those were financed through a plan offered by Skelly to its jobbers. Plaintiffs’ complaint describes this financing arrangement as
“a base lease for a term of fifteen (15) years running from plaintiff, MARPAT, to defendant, SKELLY, the rentals on which base leases are assigned to the financing source, coupled with a sublease from defendant, SKELLY, to plaintiff MAGNUS also for fifteen (15) years but each such sub-lease being subject to an earlier termination by SKELLY should MAGNUS purchase less than 100,-000 gallons annually of Skelly branded gasoline for resale at that respective service station” (Par. 16 of the complaint).
Skelly’s rent under the base lease thus secured Magnus’ obligation to the lender. According to plaintiffs, the sub-lease and obligation to purchase 100,000 gallons of gasoline annually from Skelly could not be terminated by Magnus even if Marpat paid off the entire amount due for the purchase of a station. Additionally, plaintiffs produced testimony that termination of the “Franchise Sales Agreement” would make the entire amount due on the service stations payable in 60 days, but would not terminate the sub-lease and purchase obligation. Plaintiffs also asserted at trial that it is an industry-wide practice for branded oil companies to refuse to franchise jobbers or to finance branded stations if the franchisee still has a contract in force with another company. The Skelly-designed leases, considered in the context of the franchise agreements and the industry-wide “single distributorship” practice, allegedly violated Section 1 of the Sherman Act and Section 3 of the Clayton Act.
Plaintiffs assert that in 1970 Skelly refused to permit them to cancel the base leases and that Skelly terminated plaintiffs’ distributorship on February 28, 1973, supposedly in furtherance of its then current desire to withdraw from marketing in Wisconsin. Plaintiffs charge that defendant’s violations ' of the antitrust laws prevented them from distributing branded petroleum products of any other oil company. In addition to damages, plaintiffs sought declaratory and injunctive relief.
In March 1976, the district court denied defendant’s pretrial motion for summary judgment based on the statute of limitations. In November 1976, after a ten-day trial, a jury awarded plaintiffs $185,000 in damages before trebling, and judgment was accordingly entered in plaintiffs’ favor in the amount of $555,000, plus costs and reasonable attorney fees as provided in Section 4 of the Clayton Act. Skelly’s post-trial motions were denied in January 1978. In the accompanying opinion Judge Gordon held that the evidence could reasonably be interpreted to show that the three franchise sales agreements between Magnus and Skelly were implemented “so as to include a condition with Magnus not dealing in the gasoline of other suppliers” in violation of the exclusive dealing prohibition contained in Section 3 of the Clayton Act. The district judge pointed out that the jury could have concluded that numerous other jobbers in the relevant market were parties to financing arrangements with Skelly and were precluded from becoming jobbers for other suppliers, thus showing at least a potential lessening of competition under Section 3.
The district court also concluded that there was ample evidence from which the jury could have found that (1) the object of the financing arrangements between Skelly and its jobbers in that area was to restrain trade and (2) those arrangements revealed Skelly’s anti-competitive intent in violation of Section 1 of the Sherman Act.
In addition, the court concluded that plaintiffs had shown that they were injured in their “business or property” within the meaning of Section 4 of the Clayton Act because Magnus had demonstrated an attempt to purchase the Jackson Oil Company in Oshkosh, Wisconsin, and to become a Sunray DX franchisee in Oshkosh and Fond du Lac, Wisconsin, but was precluded from doing so by operation of the financing agreements between Magnus and Skelly.
Judge Gordon next found that there was sufficient evidence to support the jury’s conclusion that Skelly’s actions caused Mag-nus to lose the Jackson Oil and Sun franchise opportunities.
The district court decided that Magnus’ evidence of damages because of its failure to acquire the Jackson Oil Company and to become a Sun franchisee was sufficient and that plaintiffs were not damaged until they were unable to obtain the Jackson Oil Company or a Sun franchise agreement in 1970, well within the four-year statute of limitations contained in Section 4B of the Clayton Act (15 U.S.C. § 15b).
Finally, the district court rejected Skelly’s arguments with respect to the instructions and held that a one-month continuance between the close of the evidence and the final arguments did not require a new trial. 446 F.Supp. 874 (E.D. Wis. 1978). Defendant here appeals each of the district court’s rulings except those relating to the statute of limitations, the instructions, and the continuance. We reverse.
I. No Violation of Section 3 of the Clayton Act
This part of -our opinion will assume ar-guendo that the franchise sales agreements between the parties tended substantially to foreclose competition in the relevant market. Section 3 of the Clayton Act (note 6 supra) proscribes sales “on the condition, agreement or understanding” that the purchaser shall not deal in the goods of a competitor of the seller if its effect may be substantially to lessen competition. Plaintiffs contend that the three franchise sales agreements between them and Skelly violated this statute.
The first two agreements required plaintiffs to purchase 810,000 gallons of gasoline annually. In the third agreement, dated March 1, 1966, this amount was reduced to 701,000 gallons. None of the agreements contained an exclusive dealing clause nor required plaintiffs to purchase their total requirements of gasoline from Skelly, nor indeed any gallonage approaching plaintiffs’ requirements. The last of these agreements was terminated by defendant effective on February 28, 1971, although Skelly continued to supply Magnus on a month-to-month basis until February 1973. During the years 1964-1971 plaintiffs never purchased anything approaching their requirements from defendant. Because the agreements contained no exclusive dealing clause and did not require plaintiffs to purchase any amounts of gasoline that even approached their requirements, they did not violate Section 3 of the Clayton Act. See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320, 81 S.Ct. 623, 5 L.Ed.2d 580; Standard Oil Co. v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371.
While their course of conduct might evince that the parties were violating Section 3 of the Clayton Act, the evidence here contravenes such a course of conduct because the quantity specified in the agreements amounted to less than 60-80 per cent of plaintiffs’ total requirements and plaintiffs regularly purchased 30-50 per cent of their requirements from competitors of the seller. Therefore, no illegal course of conduct has been shown under Section 3 of the Clayton Act. McElhenney Co. v. Western Auto Supply Co., 269 F.2d 332, 338 (4th Cir. 1959). Here Skelly cancelled its last franchise sales agreement on December 28, 1970, effective on February 28, 1971, without any proof that it was selling plaintiffs their total requirements.
Although plaintiffs persuaded defendant to reinstate the franchise contract on a month-to-month basis, defendant gave plaintiffs another notice of termination February 28, 1973, because of severe credit problems with plaintiffs even though for the first time plaintiffs had been purchasing virtually their total requirements in 1972 from Skelly. The fact that plaintiffs did buy gasoline only from defendant in 1972 does not further their cause, for their lawsuit is predicated on their 1970-1971 inability to become a Sun distributor and to purchase Jackson Oil Company.
In sum, during the critical years plaintiffs were handling competitors’ gasoline rather than purchasing exclusively from defendant and indeed the franchise sales agreements permitted this, so that Section 3 of the Clayton Act was not violated. McEl-henney Co. v. Western Auto Supply Co., supra, 269 F.2d at 338; Davis v. Marathon Oil Co., 528 F.2d 395 (6th Cir. 1975).
II. No Showing of Tendency to Substantially Foreclose Competition in Relevant Market Under Section 3 of Clayton Act
Even if the franchise sales agreements violated the forepart of Section 3 of the Clayton Act, they would not be illegal unless they tended to substantially foreclose competition between Skelly and its competitors in the relevant market. Tampa Electric Co. v. Nashville Coal Co., supra, 365 U.S. at 334, 81 S.Ct. 623; Lupia v. Stella D’Oro Biscuit Co., 586 F.2d 1163, 1172 (7th Cir. 1978). As seen on their face and in practice, they did not substantially foreclose competition because in the key years plaintiffs bought large quantities of gasoline from other suppliers. In addition, by plaintiffs’ own evidence the retail gasoline market in Sheboygan was highly competitive during the years in question, experiencing numerous “price wars.” This suggests that Skelly’s competitors were not foreclosed significantly from the retail market in She-boygan. Defendant put on evidence that the retail gasoline market in Wisconsin became more competitive between 1964-1974, with Skelly’s share decreasing slightly between 1964-1971. Finally, the plaintiffs failed to show and the district judge did not define what the relevant market consisted of. Thus the trial court, without selecting any, referred to three possible relevant markets: (1) the 13-county area in southeastern Wisconsin where plaintiffs bought their gasoline; (2) the northern region of defendant’s distribution system; and (3) defendant’s entire sales area (note 7 supra).
The district court did not require plaintiffs to define the relevant market because it took out of context a statement in Lessig v. Tidewater Oil Co., 327 F.2d 459, 468 (9th Cir. 1964), certiorari denied, 377 U.S. 993, 84 S.Ct. 1920, 12 L.Ed.2d 1046, that the requisite substantial lessening of competition “may appear from facts other than the proportion of total commerce in the relevant market which is subject to restraint.” But in Lessig plaintiff established that the relevant market consisted of eight Western states, that the defendant sold 6.5% of the gasoline in that market, and that through the challenged exclusive dealing contracts the defendant controlled 5% of the retail gasoline sales in the market. Tampa Electric, supra, and L. G. Balfour Co. v. Federal Trade Commission, 442 F.2d 1 (7th Cir. 1971), clearly hold that the relevant market must be established in a case based on Section 3 of the Clayton Act.
On appeal, plaintiffs have pursued their arguments with regard to three different markets, but we find the evidence insufficient to support an inference that competition among Skelly’s competitors could have been significantly impaired in any of them. First, plaintiffs assert that in the “northern region” of Skelly’s distribution system “Skelly jobbers numbered between 140 and 150, among whom there were 40 to 50 separate such lease/sub-lease arrangements” (Br. 19). This is insufficient to show potential market foreclosure for at least three reasons: (1) there is no description of what area comprises the northern region and why that is the relevant market, (2) since one jobber may have more than one financing agreement, plaintiffs’ statistics tell us nothing about what proportion of the jobbers or what proportion of the retail outlets were assertedly prevented from seeking other suppliers, and (3) there is no evidence of what Skelly’s share of the relevant market was, so that even if it were possible to ascertain the proportion of Skelly outlets that were foreclosed, it would still have been impossible to evaluate the impact of the foreclosure of those outlets on Skelly’s competitors.
Second, plaintiffs allege that the restrictive agreements complained of are company-wide and industry-wide, thus supporting an inference that collectively they must have foreclosed competition. The evidence of company-wide policy was that of 760-800 Skelly jobbers nation-wide, approximately 200 were estimated to have Skelly financing agreements. It was impossible to estimate the amount of Skelly gasoline sold through Skelly-financed stations. Since we have already concluded that plaintiffs failed to establish that the franchise agreements precluded jobbers from purchasing from Skelly’s competitors, the only remaining question would be whether, as plaintiffs allege, the inability of jobber-retailers to change distributors because of the financing agreements potentially foreclosed competition significantly. To determine that, however, we would need to know the proportion of retail gasoline sales foreclosed by the Skelly financing agreements. Plaintiffs failed to introduce such evidence, and the inferences that could be drawn from the statistics that are in evidence suggest that the impact on Skelly’s competitors would be negligible. With regard to industry-wide practice, plaintiffs introduced testimony that many branded gasoline distributors had financing programs and single-distributor policies similar to Skelly’s. However, none of the evidence offered, including that excluded by the district court, purported to establish the share of the gasoline sales foreclosed by such arrangements. There simply were no facts from which-a potential foreclosure of a significant amount of competition could be inferred from the evidence of company-wide or industry-wide practice.
The third market plaintiffs describe is the greater Sheboygan area. Plaintiffs were the third largest of twelve jobbers in the greater Sheboygan area and supplied 10 of the 88 service stations in that area. Even if, as plaintiffs insist, the relevant market for retail gasoline sales is the “community,” it does not follow that the “community” is the relevant market to ascertain foreclosure of Skelly’s competitors (many of whom were regional or national brands). In addition, the evidence does not establish that Skelly’s competitors were foreclosed even from the greater Sheboygan area since (1) as indicated, plaintiffs bought a significant portion of their requirements from Skelly’s competitors, (2) only three of the ten stations supplied by plaintiffs were subject to the financing agreements, and (3) there was evidence of vigorous inter-brand competition in Sheboygan. Thus none of plaintiffs’ theories of possible competitive foreclosure is supported in the record.
The defendant’s evidence did show that the 13-county area within a 62-mile radius from Sheboygan was the relevant market and that plaintiffs had less than 1% of that market in each of the years involved, so that the franchise sales and financing agreements would at most foreclose a de minimis volume of competition. That would not suffice to activate Section 3 of the Clayton Act. Tampa Electric Co., supra, 365 U.S. at 333-335, 81 S.Ct. 623.
III. No Violation of Section 1 of the Sherman Act
The complaint in this case does not make any charges that would amount to a per se violation of Section 1 of the Sherman Act, and the Supreme Court’s recent decision in Continental TV, Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568, evinces judicial reluctance to extend per se rules under that statute. Therefore, these plaintiffs had the burden of showing that any arrangements between plaintiffs and defendant unreasonably restrained trade. We conclude that plaintiffs have not satisfied the rule-of-reason standard that governs here.
The district court held that Section 1 of the Sherman Act was violated by defendant because the jury could have concluded that the object of the financing arrangements between the parties was to restrain trade. 446 F.Supp. at 880. We cannot agree because the financing arrangements covering the three stations only required them to purchase 100,000 gallons of gasoline annually from defendant. These amounts were de minimis in view of plaintiffs’ total requirements for gasoline. See note 13 supra. Even if the financing agreements were a means of preventing plaintiffs from cancelling the franchise agreements, they would still have to show that the foreclosure of the amounts specified in the franchise agreements constituted an unreasonable restraint of trade. Just as there was no showing of a potentially substantial adverse effect on competition under Section 3 of the Clayton Act, the requisite evidence to show that under Section 1 of the Sherman Act the effect upon competition in the market-place was substantially adverse is also fatally lacking. See Lee Klinger Volkswagen v. Chrysler Corp., 583 F.2d 910, 914-915 n. 6 (7th Cir. 1978).
As shown earlier, the district court did not determine the relevant market although defendant’s expert witness testified that it consisted of the 13 counties within 62 miles of Sheboygan. He testified that even if that market were halved and even if all plaintiffs’ requirements for gasoline were foreclosed by defendant to its competitors, the effect would still be less than 1% of the market. This means that defendant’s arrangements must be considered reasonable under Section 1 of the Sherman Act. United States v. Columbia Steel Co., 334 U.S. 495, 508, 511, 68 S.Ct. 1107, 92 L.Ed. 1533; Tampa Electric v. Nashville Coal Co., 365 U.S. 320, 334-335, 81 S.Ct. 623, 5 L.Ed.2d 580. As discussed at length supra, plaintiffs have presented no credible evidence of an adverse effect on competition. Because plaintiffs failed to show that defendant’s financing arrangements substantially foreclosed its competitors in a relevant market, no unreasonable restraints have been demonstrated.
Since plaintiffs have not proven that defendant violated Section 3 of the Clayton Act or Section 1 of the Sherman Act, we need not consider whether they have failed to show that they were injured because of a violation of the antitrust laws and whether their claimed damages were too speculative to support the judgment. The district court’s judgment is reversed with directions to enter judgment for defendant notwithstanding the verdict.
. Marpat also owns the petroleum dispensing equipment, including tanks, pumps and air compressors, used by Magnus. The only stockholders, officers and directors of both corporations were Arthur P. Magnus and members of his immediate family.
. The only product involved in this case is gasoline.
. This agreement was superceded by new agreements on March 1, 1965, and March 1, 1966. The original agreement specified that the annual minimum quantity of gasoline to be purchased was 810,000 gallons, but this was reduced to 701,000 gallons in the 1966 agreement. The agreements specified that they were terminable by either party on 60 days’ notice at the end of the five-year “primary term” or on any subsequent anniversary date of the agreements.
. The “financing source” referred to was Skelly for one of the service stations and a bank for the other two.
. On February 1, 1978, plaintiffs filed a motion for determination of a reasonable attorney’s fee for their counsel. The motion was supported by affidavits and a memorandum. Attorney’s fees of $45,000 were subsequently awarded, so that the total judgment (stayed during this appeal) for plaintiffs is $600,400 plus costs. The record does not reveal that plaintiffs obtained any additional relief.
. Section 3 of the Clayton Act provides in pertinent part:
“It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods * * * or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement or understanding that the lessee or purchaser thereof shall not use or deal in the goods * * of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce” (15 U.S.C. § 14).
. The judge noted that there were three different definitions offered of the relevant market. Defendant’s expert focused on the 13-county area in southeastern Wisconsin where Magnus purchased gasoline and estimated that Magnus’ requirements comprised only .07 to .18 of 1% of that market. A Skelly field representative called as a witness for plaintiffs testified that in the “northern region” of Skelly’s distribution system, which includes Wisconsin, there were approximately 40 to 50 financing programs with jobbers similar to the ones with Magnus. In discussing the relevant market, Judge Gordon also referred to testimony about Skelly’s finance arrangements in general See 446 F.Supp. at 879.
. Section 1 of the Sherman Act provides in relevant part that
“[ejvery contract * * * in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal” (15 U.S.C. § 1).
. Section 4 of the Clayton Act provides:
“Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney’s fee” (15 U.S.C. § 15; emphasis supplied).
. But see Part II infra.
. There was testimony that the 810,000 gallon minimum specified in the 1964 and 1965 agreements was intended to approximate Magnus’ requirements. However, as described in note 13 infra, the minimum was reduced in subsequent years while Magnus’ requirements had increased, and even in 1964 and 1965 less than two-thirds of Magnus’ requirements were purchased from Skelly. In light of these facts, the possibility that the originally specified minimum amounts may have been intended to cover Magnus’ requirements is insufficient to form the basis of a Clayton Act Section 3 claim, especially since the damage complained of did not occur until 1970-1971.
. Subsequent to the February 1973 termination of their relationship, Skelly continued to supply Magnus with gasoline under the federal voluntary and mandatory allocation programs.
. As noted, in 1964 and 1965, the franchise sales agreement required plaintiffs to buy 810,-000 gallons of gasoline from Skelly. Nevertheless, in the former year, Magnus bought 840,-000 gallons of gasoline but only 568,000 gallons from Skelly. In 1965, plaintiff bought 1,057,-000 gallons of gasoline but only 699,000 from Skelly. In 1966 through 1971, plaintiffs were obligated to buy 701,000 gallons per year from Skelly. In each of those years, plaintiffs’ total requirements were about 1,000,000 gallons, a large percentage of which was purchased from other suppliers, ranging from 304,000 gallons in 1966 to 566,000 in 1971 (App. 79). Plaintiffs do not claim that the minimum 100,000 gallons per year per financed station to be purchased from Skelly violated the Clayton Act.
. Some of the reasons for the cancellation were plaintiffs’ delinquent payments and their purchase of less than 40 per cent of their gasoline requirements from Skelly, causing an oversupply situation at Skelly’s Granville, Wisconsin, terminal.
. After the 1971 termination of the agreement, Skelly supplied Magnus on a month-to-month basis and only for cash in advance. Plaintiffs’ theory is that this action by Skelly, taken together with the fact that Magnus purchased 99.6% of its 1972 requirements from Skelly, reveals that the agreements were intended to be exclusive dealing contracts and that they were enforced by Skelly through the threat of cancelling the franchise, which would make the service station debts payable immediately. Plaintiffs assert that the fact that the agreements were not strictly enforced in prior years does not relieve them of their illegality, citing Advance Business Systems and Supply Company v. SCM Corporation, 415 F.2d 55 (4th Cir. 1969). However, we think the events of 1972 do not support an inference that the agreements in force during the relevant years were exclusive dealing contracts in the absence of any evidence that the parties so understood them at the time. It would seem especially anomalous that Skelly should terminéis the re-» lationship entirely in February 1973 immediately after it had accomplished its asserted goal of requiring Magnus to purchase virtually exclusively from Skelly. Its action in doing so supports the inference that both the 1973 and 1971 terminations were on account of plaintiffs’ credit difficulties.
. When discussing the local market, plaintiffs sometimes seem to suggest that the important measure is the extent to which Skelly’s competitors were foreclosed from distributing to Skelly jobbers, whereas at other times they focus on foreclosure of these competitors at the retail level. Since jobbers are independent wholesalers, and since there appears to have been no significant foreclosure of competition at the local retail level, it seems that either there was no significant foreclosure in the relevant geographic market at the jobber level or that there were alternative means of distribution available. At least, this is what we must conclude in the absence of evidence to the contrary.
. Plaintiffs’ counsel sometimes appeared to be suggesting that an exclusive dealing contract could be illegal under Section 3 of the Clayton Act simply because it foreclosed the purchaser’s ability to seek out competing sellers, without any showing of a possibility of a significant foreclosure of competition among the competitors of the seller. To the extent this theory is applied to the franchise sales agreements, it is not supported by the evidence. As already described, Magnus’ freedom to purchase from other suppliers was not drastically curtailed.
However, plaintiffs also contend that the combination of the franchise sales agreements, the financing agreements, and the industry practice of sole distributorships curtailed its freedom to change distributors for the duration of the 15-year term of the financing agreements. While such a deprivation of a purchaser’s freedom apparently will confer standing on him to sue under Section 3 of the Clayton Act, the case law is clear that to recover he must show a potential foreclosure of competition to the competitors of the seller Standard Oil Company v. United States; Tampa Electric Co. v. Nashville Coal Co., both supra. This plaintiffs have failed to do.
. The Lessig court noted that the only evidence' not available was what percentage of retail outlets in the market were subject to the exclusive dealing contracts. It concluded that the more relevant figure was the portion of retail gasoline sales (in gallonage terms) which was subject to the challenged agreements. Thus the relevant market information was before the Lessig court.
. Plaintiffs, of course, had three such agreements, and some jobbers apparently had as many as 8 or 10 financing agreements with Skelly.
. Plaintiffs appear to assume that it is sufficient to show that the amount of market foreclosure was substantial in absolute terms. However, Tampa Electric Company, 365 U.S. 320, 329, 81 S.Ct. 623, 5 L.Ed.2d 580, made it clear that substantiality must be assessed on a comparative basis.
. Defendant introduced evidence tending to show that any foreclosure of its competitors would be de minimis. Skelly had about 0.60% to 0.71% of the national market for gasoline in the relevant years. It distributed its gasoline in 17 states, and its portion of the market in each of these states in 1971 ranged from 1.24% (Illinois) to 6.47% (Kansas). It had approximately 2% of tliu Wisconsin market during the relevant, years.
. The gasoline purchased by Skelly jobbers who participate i in tin. financing pro; fawn was sold not just to the financed statmou, but, also "through commercial accounts, industrial accounts, through service stations that [they do] not own, for bulk plants, to farm accounts, et cetera. et cetera (Tr. 653).
. This would presumably be less than the amount of gasoline sold by Skelly-financed stations, since plaintiffs’ agreements, for example, committed them to selling 100,000 gallons of Skelly gasoline through each station, whereas the requirements of each were approximately 120,000 gallons per station. Assertedly plaintiffs’ agreement was typical, so that one could estimate that approximately 80% of retail sales of Skelly-financed stations were, according to plaintiffs’ theory, foreclosed to Skelly’s competitors.
. In this respect the evidence falls far short of that in Standard Oil Company v. United States, 337 U.S. 293, 69 S.Ct. 1051, 93 L.Ed. 1371, where it was established that the defendant controlled 6.7% of the relevant market through exclusive dealing contracts and that its six leading competitors controlled 42.5% of the market through similar contracts.
. Nor does it follow that foreclosure from part or all of plaintiffs’ business could substantially impair the competitive position of Skelly’s competitors. See note 16, supra.
. Plaintiffs’ witness, Dr. Allvine, testified in the abstract that defendant’s arrangements were unreasonable, but his testimony was without reference to any relevant market and therefore was insufficient to show a violation of Section 1 of the Sherman Act. American Motor Inns, Inc. v. Holiday Inns, Inc., 521 F.2d 1230 (3d Cir. 1975).
. Our holding is not based on the absence of evidence on the details of exclusive dealing arrangements of Skelly’s competitors. And even if the district court should have considered defendant’s competitive price allowance program (the giving of price rebates on gasoline sold to a jobber who had been forced by retail price wars to reduce his sale price), that pricing formula has not been shown to violate Section 3 of the Clayton Act. Therefore plaintiffs’ cross-appeal is dismissed. | 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 "sub-state governments, their 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. | What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number. | [] | [
0
] | songer_r_subst |
In re CENTURY TRANSIT CO. DE BONDO et al. v. TYLER.
No. 6446.
Circuit Court of Appeals, Third Circuit.
Aug. 13, 1937.
Norman Heine, of Camden, N. J., for appellants.
Samuel P. Orlando and Louis B. LeDuc, both of Camden, and E. Herman Fuiman, of Philadelphia, Pa., for appellee.
Before BUFFINGTON, THOMPSON, and BIGGS, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the bankruptcy case below the master to whom the matter was referred refused to allow the claims of Rose De Bondo and Vito Polito against the bankrupt estate. The master’s holding was approved by the court. Thereupon the claimants took this appeal.
In final analysis the case turns on the question of fact whether the claims made constituted, indebtedness of the bankrupt. No principle or precedent is involved. While the master and the judge sustained their conclusions on somewhat different views, it still remains that both agreed in finding that the claims were not indebtedness of the bankrupt. The claimants had full opportunity to be heard and in point of fact were personally called by the trustee as his witnesses, and from their own and other testimony he found against them.
After consideration of all points raised, we find no error in the court’s holding. So regarding, the decree below is affirmed and the appeal dismissed. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
3
] | songer_typeiss |
DISTRICT OF COLUMBIA v. LITTLE.
No. 10092.
United States Court of Appeals District of Columbia Circuit.
Argued June 10, 1949.
Decided Aug. 1, 1949.
Writ of Certiorari Granted Nov. 7, 1949.
See 70 S.Ct. 141.
Judgment Affirmed Feb. 20, 1950.
See 70 S.Ct. 468.
Mr. Chester H. Gray, Principal Assistant Corporation Counsel, D. C., Washington, D. C., with whom Mr. Vernon E. West, Corporation Counsel, D. C., and Mr. Edward A. Beard, Assistant Corporation Counsel, D. C., Washington, D. C., were on the brief, for appellant.
Mr. Jeff Busby, Washington, D. C., with whom Mr. Jeff Busby, Jr., Washington, D. C., was on the brief, for appellee.
Before PRETTYMAN and PROCTOR, Circuit Judges, and ALEXANDER HOLTZOFF, District Judge, sitting by designation.
PRETTYMAN, Circuit Judge.
Appellee Little was convicted in the Municipal Court for the District of Columbia upon an information which charged that on certain premises on a certain day she hindered, obstructed and interfered with an inspector of the Health Department in the performance of his duty. She appealed, and the Municipal Court of Appeals, in a unanimous opinion written by Associate Judge Clagett, reversed. Because of the importance of the question to the enforcement of the health laws, we granted an appeal.
Appellee refused to unlock the front door of her home at the command of a Health Department inspector who was without a warrant. The question is whether she was within her constitutional rights in doing so, or whether she thereby illegally hindered him in the performance of his duty.
The inspector testified that he was ordered by the Health Officer to make an inspection of the premises after a complaint had been made “that there was an accumulation of loose and uncovered garbage and trash in the halls of said premises and that certain of the persons residing therein had failed to avail themselves of the toilet facilities”. It is not disputed that the premises is a private residence, the home of the appellee; that the inspector had no. warrant either of arrest or search; that the appellee refused to unlock the front door,, and that she was thereupon arrested.
The District of Columbia says that the Health Officer is fully empowered by valid statutes to enforce the public health laws; that the Commissioners are likewise duly empowered to make all regulations necessary to protect the public health; that the regulations require owners and occupants of premises to maintain them in a clean and wholesome condition, and that the same regulations authorize inspections and denominate as a misdemeanor interference with an inspection.
In respect of the Fourth Amendment, the District says that the attempted inspection was premised upon a complaint, which, if true, constituted probable cause to believe that a violation of law existed in the dwelling, and that the attempt was at a reasonable time of day by a uniformed officer who stated the purpose of his visit. It says that the view “expressed by the Municipal Court of Appeals is not consonant with the scope of the police power as indicated by the decisions of Courts controlling in this jurisdiction” and, further, that “it has been the view of the Congress, as shown by its statutory enactments limiting the right of inspection without warrant in certain specified activities under the police power, that it may unqualifiedly extend the right of inspection without warrant in such circumstances as it may deem necessary, so long as the police power is reasonably exercised.” It also says that “Practical application of this holding [of the Municipal Court of Appeals] to the problems of enforcement of health laws in a large city would result in chaos. The whole purpose of the use of the police power by the health authorities is to prevent the creation of present and immediate dangers, to correct deficiencies before they become nuisances per se and 'before the public is endangered. While every authority recognizes the necessity for inspection, the effect of the Municipal Court of Appeals’ opinion is to prevent it; for, if the danger is immediate and the nuisance apparent, the sovereign may protect the public by civil proceedings to abate it and by criminal prosecution of the guilty party. — the necessity for inspection no longer exists.”
The position of the District is summarized by it as follows: “In the view of appellant a more salutary rationale insuring effective protection of the health and safety of the public, and at the same time cognizant of the personal rights of the individual under the Fourth Amendment, would be a holding that an inspection of a private dwelling in aid of the police power as it relates to matters of health is valid even though without warrant, provided there is probable cause to believe that there exists within the dwelling a violation of law or regulation designed to protect the health, safety or welfare of the public and provided the inspection is attempted under circumstances and conditions of fact which are not unreasonable.”
As a separate consideration, the District also presents an argument based upon some conflict in the testimony as to whether appellee was arrested for hindering the health officer by refusing to unlock the door on the premises or was arrested for interfering with a police officer in the arrest of another person at a police call box some distance down the street. That argument has no bearing upon the case, because the information upon which appellee was convicted charged her with interfering with the health inspector, not the policeman, upon the premises, not upon the public street, and with hindering the performance of duty by the health inspector, not with interfering with a police officer in the performance of an arrest.
We must delimit the question before us. Many of the problems discussed in the District’s brief are not in the case. The simple question is: Can a health officer of the District of Columbia, inspect a private home without a warrant if the owner or occupant objects?
The Fourth Amendment to the Constitution applies. The Supreme Court has several times in recent cases exhaustively and emphatically discussed the invasion of private dwellings by government officers. If there ever was any doubt upon the matter, it has surely now been laid to rest. The several opinions in those cases contain complete historical studies, relating to both federal and state governments, and many unequivocal declarations, quotable and unmistakable. We need not attempt to reproduce them here.
Democratic government has distinguishing features. One of them is freedom of speech for the individual; another is freedom of religion. Another is the right of privacy of a home from intrusion by government officials. These characteristics are not mere hallmarks. They are the beams and pillars about which the structure was built and upon which it depends. If private homes are opened to the intrusion of government enforcement officials, at the wish of those officials, without the intervening mind and hand of a magistrate, one prop of the structure of our system is gone and an outstanding characteristic of another form of government will have been substituted.
When the Constitution prohibits unreasonable searches, it, of course, by implication, permits reasonable searches. But reasonableness without a warrant is adjudged solely by the extremity of the circumstances of the moment and not by any general characteristic of the officer or his mission. If an officer is pursuing a felon who runs into a house and hides, the officer may follow and arrest him. But this is because under the exigencies of circumstance the law of pursuit supersedes the rule as to search. There is no doctrine that search for garbage is reasonable while search for arms, stolen goods or gambling equipment is not. Moreover, except for the most urgent of necessities, the question of reasonableness is for a magistrate and not for the enforcement officer.
It is said to us that the regulations sought to be enforced by this search only incidentally involved criminal charges, that their purpose is to protect the public health. It is argued that the Fourth Amendment provision regarding searches-is premised upon and limited by the Fifth Amendment provision regarding self-incrimination. It is said to us that therefore there is no prohibition against searches of private homes by government officers, unless they are searching for evidence of crime; that if they are searching for evidence of crime, they must get a search warrant, but that if they are searching for something else or are just searching, they need not get a search warrant; for searchers of the latter sort, we are told, home owners must open their front doors upon demand of an officer without a warrant. The argument is. wholly without merit, preposterous in fact. The basic premise of the prohibition against searches was not protection against self-incrimination; it was the common-law right of a man to privacy in his home, a right which is one of the indispensable ultimate essentials of our concept of civilization. It was firmly established in the common law as one of the bright features of the Anglo-Saxon contributions to human progress. It was not related to crime or to suspicion of crime. It belonged to all men, not merely to criminals, real or suspected. So much is clear from any examination of history, whether slight or exhaustive. The argument made to us has not the slightest basis i-n history. It has no greater justification in reason. To say that a man suspected of crime has a right to protection against search of his home without a warrant, but that a man not suspected of crime has no such protection, is a fantastic absurdity.
The argument involves a basic error in reasoning in respect to the Constitution’s Bill of Rights. The Fourth Amendment did not confer a right upon the people. It was a precautionary statement of a lack of federal governmental power, coupled with a rigidly restricted permission to invade the existing right. The right guaranteed was a right already belonging'to the people. The reason for the search warrant clause was that public interest required that personal privacy be invadable for the detection of crime, and the Amendment provided the sole and only permissible process by which the right of privacy could be invaded. To view the Amendment as a limitation upon an otherwise unlimited right of search is to invert completely the true posture of rights and the limitations thereon.
Much of the argument of the District is devoted to establishing the public importance of the health laws. Assertions are also made of the beneficence and forbearance of health officers. We may assume both propositions. But the constitutional guarantee is not restricted to unimportant statutes and regulations or to malevolent and arrogant agents. Even for the most important laws and even for the wisest and most benign officials, a search warrant must be had.
We emphasize that no matter who the officer is or what his mission, a government official cannot invade a private home, unless (1) a magistrate has authorized him to do so or (2) an immediate major crisis in the performance of duty affords neither time nor opportunity’ to apply to a magistrate. This right of privacy is not conditioned upon the objective, the prerogative or the stature of the intruding officer. His uniform, badge, rank, and the bureau from which he operates are immaterial. It is immaterial whether he is motivated by the highest public purpose or by the lowest personal spite.
To be certain that we have stated the rule no broader than existing law, one has only to read the cases cited supra in footnote 5; indeed, the opinions in McDonald v. United States alone are sufficient. Morton v. United States and Section 3053 of Title 18 (new) of the United States Code Annotated are cited to support the proposition that an officer may enter any building if he has reasonable ground to believe that a person therein has committed a felony. Neither citation supports the proposition stated. The Morton case concerned the use of evidence seized in a search which was incidental to a lawful arrest for first degree murder. This court, in a careful opinion by Judge Justin Miller, recited the facts which demonstrated that the arrest was made and was lawful and that the officers were admitted without objection to the accused’s quarters. Section 3053 of Title 18 of the United States Code makes neither mention of nor reference to searches. The historical fact is that the invasion of homes upon a suspicion on the part of a police officer alone, either that a felon was there or that a felony was being committed there, was one of the potent factors in the adoption of the prohibitory rule of the common law and in its recitation in the Fourth Amendment. That an officer merely suspects that a felon is in a house is a precise example of a situation in which a warrant is required, not of one in which a warrant need not he had.
The District lays great'stress upon the fact that there was a complaint, succinct and definite. But, so far as we know, the existence of a complaint has never been held to be a basis for dispensing with a search warrant. Quite the contrary, the fact of a complaint shows (1) that there is an identifiable informant who could be taken before a magistrate; (2) that the enforcement officers have no direct or personal knowledge of the alleged offense; and (3) that in all reasonable probability a search warrant would be procurable. These are reasons for getting a warrant, not for failing to get one.
There is nothing about an accumulation of garbage or other matter deleterious to health which makes it difficult to obtain a warrant to search for it. It is as noticeable and as apt to complaint as are gaming equipment or stolen goods. Health officers may chafe at the inconvenience, but so do police officers.
Distinction between “inspection” and “search” of a home has no basis in semantics, in constitutional history, or in reason. “Inspect” means to look at, and “search” means to look for. To say that the people, in requiring adoption of the Fourth Amendment, meant to restrict invasion of their homes if government officials were looking for something, but not to restrict it if the officials were merely looking, is to ascribe to the electorate of that day and to the several legislatures and the Congress a degree of irrationality not otherwise observable in their dealings with potential tyranny.
We need not go beyond the record in this case for an example of the extremity to which the doctrine of the appellant District would take us. One of the two complaints made by the unidentified informant was that some of the occupants of the house “failed to avail themselves of the toilet facilities”. Reducing appellant’s doctrine to practicalities, the result would be that if the owner of a house be reliably charged with concealing a cache of arms and munitions for purposes of revolution, police officers could not search without either permission or warrant, but if the information be that an occupant fails to avail himself of the toilet facilities, government officials could enter and examine the house over protest and without a warrant. It may be that the boundary of the curtilage is no longer the outpost of man’s domestic independence. It may be that a transom is debatable access. But even if the front door of the house is no longer protected by the Constitution, surely it had been thought until now that the bathroom door is.
The scope of appellant’s doctrine is vivified by reference to the pertinent regulations. The occupant of any “part” of any “premises” is required to keep that part “clean and wholesome”.' To satisfy municipal officers that this mandate is met, the privacy of a home would be subjected to intrusion without restriction or limitation. Obviously, any such rule of law would wholly destroy that privacy. Under it, a home must be “clean and wholesome” in the judgment of municipal officials. By what standard and at what time of day is this perfection to be tested? And under what combination of domestic circumstances? Is the unassisted, overworked, overwrought mother of small uninhibited children to have less privacy to work out her family difficulties than the unencumbered bachelor in his serviced apartment? Is the evening radio hour to be at the whim of a zealous officer making bacteria counts on dinner dishes in the kitchen sink? Is the informality of a lone housewife doing the morning chores to be embarrassed by the unpreventable company of a benign, but nevertheless strange, searcher for the unclean and the unwholesome? These are extreme examples, perhaps, but they are no sillier than the precise words of the complaint in the present case, and we are dealing with doctrines and not with the presumable taste and sense of individual officials. Maybe none of these examples would ever occur. But the question before us is not whether they would happen but whether they legally could.
In support of appellant’s position, it is said that the purpose of the Fourth Amendment was to provide a remedy against general warrants, that general warrants had been sought only in criminal cases, and that the remedy should be construed as no broader than the evil. The reasoning gets a superficial plausibility from its curious substitution of incident for basic principle. It is true that the incident which gave rise to the furor in England and to the fears in this country was the invention of general warrants designed to accomplish an invasion of homes. And the adopters of the Amendment certainly intended to forestall any such in this country. But even if the second clause of the Amendment had been a specific prohibition against general warrants (which it is not), to say that the specific prohibition of one threatened violation of a basic right thereby validates every other violation of that right is both illogical and unrealistic. The present Chief Justice of the United States, writing for this court in Nueslein v. District of Columbia when he was an Associate Justice here, disposed of the argument here made. No other discussion of that phase of the contention is necessary.
We are told by the District that enactments by the Congress show an intention to permit invasion of homes without warrants. The Supreme Court said in Agnello v. United States, “Congress has never passed an act purporting to authorize the search of a house without a warrant.” And we find in Section 2236 of Title 18 of the United States Code, reenacted just a year ago, a crisp and emphatic indication of the attitude of the Congress upon the matter. That section provides: “Whoever, being an officer, agent, or employee of the United States or any department or agency thereof, engaged in the enforcement of any law of the United States, searches any private dwelling used and occupied as such dwelling without a warrant directing such search, or maliciously and without reasonable cause •searches any other building or property without a search warrant, shall be fined for a first offense not more than $1,000; and, for a subsequent offense, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”
That statute does not apply to District of Columbia officials, but it clearly reflects the attitude of the Congress in respect to the matter. It seems unnecessary to add what is obvious to us, that any act of the Congress purporting to permit the invasion of homes by police officers without warrants, except under the established exception of unavoidable crisis, would not only be politically lethal to its proponents but would be wholly void.
It is said in support of appellant’s position that Congress has never enacted a statute providing for search warrants except for the enforcement of criminal laws. It is argued from ’that premise that Congress views the whole Fourth Amendment as limited to criminal cases. Precisely the opposite conclusion is obvious to our minds. The absence of statutory provisions for search warrants except' in criminal cases demonstrates conclusively that Congress means that the right of privacy shall not be invaded except in criminal cases. Search warrants are a means of invading a privacy which otherwise is not invadable at all.
Support for appellant’s position is offered in sentences taken from opinions in cases which concerned both a Fifth Amendment question of self-incrimination and a Fourth Amendment question of search. Evidence taken in an allegedly illegal search was used against the owner or possessor in a criminal case. Obviously, in such cases observations upon the interrelationship of the two Amendments is natural and proper. But in none of them is there the slightest intimation that the right to privacy protected by the Fourth Amendment is limited to persons or things involved in suspected crime. It is unnecessary to describe each case mentioned in this connection. They simply do not support the proposition advanced to us.
We have read all the other cases cited. None relates to the search of private dwellings. We need not discuss them at length. Some relate to seizures of goods in interstate commerce or pursuant to writs, some to production of goods or papers pursuant to governmental order, some to the validity of warrants or writs. Hubbell v. Higgins dealt with the inspection of a hotel. It well illustrates the fallacy of the argument for which it is cited. Hotels are subject to government license, but no one has ever suggested that in this country a man could be required to have a license to have a home.
We hold that health officials without a warrant cannot invade a private home to inspect it to see that it is clean and wholesome, or to search for garbage upon a complaint that garbage is there, or to see whether the occupants have failed to avail themselves of the toilet facilities therein.
We do not reach the question whether a municipal regulation requiring private homes to be clean and wholesome, and denominating as a misdemeanor a violation of the regulation, is valid. Of course, regulations, like laws, which protect the public health, prevent nuisances and the like, applicable by terms and practice to conditions impinging upon the public interest, are valid and enforceable. And so, too, are emergency measures necessary in the case of persons with communicable diseases who are at large and refuse to cooperate with restrictive measures; or in the case of other sudden emergencies involving the public. But when such regulations or laws purport to give officers authority to enter private homes, against the occupants’ protests, and without a warrant, when no compelling emergency involving public health is involved, a serious question of constitutional validity is raised. Health laws can be enforced in the same manner as are other laws. If an acute emergency occurs precluding reference to a court or magistrate, public officials must take such steps as are necessary to protect the public. But, absent such emergency, health laws are enforced by the police power and are subject to the same constitutional limitations as are other police powers. It is wholly fallacious to say that any particular police power is immune from constitutional restrictions.
We come now to a more difficult phase of the situation presented to us by the District government. It says that the statutes which prescribe the procedure for obtaining search warrants in the District of Columbia are so drawn that they are not available for the enforcement of health laws and regulations. Those statutes enumerate the articles or things for which search warrants may be issued and do not refer to articles or conditions offending the health laws. This procedural omission requires action by the Congress, if the Congress deems it advisable that private dwellings be inspected in the course of enforcement of the health laws. The omission cannot be used as a premise for the conclusion that such inspections can be made without warrant or that Congress intended that they should be. It is untenable to argue that be-. cause Congress has failed to provide procedure for obtaining a search warrant, searches otherwise unconstitutional can therefore be made. The situation may well require immediate representations by the District authorities to the Congress for procedural implementation of important public health measures. That is a legislative problem. The function of the courts in situations such as this is to prevent violation by executive officials of constitutional guarantees.
We concur in the opinion and judgment of the Municipal Court of Appeals, and its judgment is, therefore,
Affirmed.
. Little v. District of Columbia, 1948, D.C.Mun.App., 62 A.2d 874.
. Tbe quoted description of tbe complaint is from tbe findings of tbe trial court.
. This regulation, in pertinent part, as found by the trial court, is:
“(2) It shall be the duty of every person occupying any premises, or any part .of any premises in the District of Columbia, or, if such premises be not occupied, of the owner thereof, to keep such premises or part, * * *, clean and wholesome. If upon inspection by the Health Officer or an inspector of the Health Department, it be determined that any such part thereof, or any building, yard, * * * is not in such condition .as herein required, the occupant or occupants of such premises or part, or the owner thereof, as hereinbefore specified, shall be notified and required to place same in a clean and wholesome condition; and in case any person shall fail or neglect to place said premises or part in such condition within the time allowed by said notice, he shall be liable to the penalties hereinafter provided.
* * * * *
“(10) That the Health Officer shall examine or cause to be examined any building supposed or reported to be in an unsanitary condition, and make a record of such examination; * *
. Neild v. District of Columbia, 1940, 71 App.D.C. 306, 110 F.2d 246; National Mutual Ins. Co. of D. C. v. Tidewater Transfer Co., Inc., 1949, 337 U.S. 582, 69 S.Ct. 1173.
, Agnello v. United States, 1925, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145; Harris v. United States, 1947, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399; Davis v. United States, 1946, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453; Johnson v. United States, 1948, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436; McDonald v. United States, 1948, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. —; Wolf v. Colorado, 1949, 338 U.S. 25, 69 S.Ct. 1359.
. Johnson v. United States, 1948,, 333 U.S. 10, 13, 14, 68 S.Ct. 367, 92 L.Ed. 438.
. 1945, 79 U.S.App.D.C. 329, 147 F.2d 28.
. 1940, 73 App.D.C. 85, 115 F.2d 690.
. 1925, 269 U.S. 20, 32, 46 S.Ct. 4, 70 L.Ed. 145.
. 1919, 148 Iowa 36, 126 N.W. 914, Ann. Cas.1912B, 822.
. Sec. 2, Act of Aug. 8, 1946, 60 Stat. 919, D.C.Code §§ 6 — 119a to 6 — 119k (1940) (Supp. VI).
. 41 Stat. 726 (1920), as amended, 7 U.S.C.A. § 167, D.C.Code § 6 — 904 (1940) (relating to plant diseases); D.C.Code § 22 — 805 (1940) (relating to cruelty to animals); 31 Stat. 1337 (1901), as amended, D.C.Code § 23 — 301 (1940) (relating to stolen .goods, counterfeiting, gambling equipment,, etc.); 52 Stat. 792 (1938), D.C.Code § 33 — 414 (1940) (relating to narcotics). | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". | What is the specific issue in the case within the general category of "criminal - federal offense"? | [
"murder",
"rape",
"arson",
"aggravated assault",
"robbery",
"burglary",
"auto theft",
"larceny (over $50)",
"other violent crimes",
"narcotics",
"alcohol related crimes, prohibition",
"tax fraud",
"firearm violations",
"morals charges (e.g., gambling, prostitution, obscenity)",
"criminal violations of government regulations of business",
"other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)",
"other crimes",
"federal offense, but specific crime not ascertained"
] | [
14
] | songer_casetyp1_1-3-1 |
The PEOPLE of the UNITED STATES ex rel. Roy SCHUSTER, Petitioner-Appellant, v. Ross E. HEROLD, M.D., Director of Dannemora State Hospital, Dannemora, New York, Respondent-Appellee.
No. 715, Docket 33283.
United States Court of Appeals, Second Circuit.
Argued April 13, 1971.
Decided April 26, 1971.
Frederick C. Kneip, New York City, for petitioner-appellant.
Arlene R. Silverman, Asst. Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., for respondent-appellee.
Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.
WATERMAN, Circuit Judge:
This case is a sequel to United States ex rel. Schuster v. Herold, 410 F.2d 1071 (2 Cir.), cert. denied, 396 U.S. 847, 90 S.Ct. 81, 24 L.Ed.2d 96 (1969), in which we held that the State of New York should afford Schuster a full hearing on the question of his sanity. The disturbing chronicle of Schuster's conviction, imprisonment, and subsequent transfer to Dannemora State Hospital is fully narrated there, and we mention here only those events which have since transpired. At the time of oral argument in the present appeal Schuster’s sanity hearing had not yet been concluded, primarily because the State has contested the venue chosen by Schuster. Though we realize that the State may encounter difficulties if all the inmates of Dannemora are permitted to choose venue, and though we do not impute to the State any deliberate desire to delay Schuster’s hearing, we wonder why the State could not have waived this venue issue in view of the special circumstances here.
The present case concerns Schuster’s attempts to obtain legal research material to aid him in his efforts to be released from Dannemora. In September 1968, Schuster, who then had $75.00 in spendable assets, requested permission from Dr. Herold, the then director of Dannemora, to use $40.00 of his funds to establish a credit with West Publishing Company for the purchase of legal materials. This request was denied.
Schuster then petitioned the Clinton County Court for an order directing Dr. Herold to allow him to make the desired withdrawal of funds, this time naming $50 as the amount to be transferred. This petition was denied, apparently on the basis of a telephone conversation in which Dr. Herold stated that Dannemora had a substantial law library and that Schuster had ready access to it.
In November 1968, Schuster filed the present application in the United States District Court for the Northern District of New York pursuant to 28 U.S.C. § 1343(3), alleging that there was no substantial law library at Dannemora and that Dr. Herold’s refusal to allow him to purchase and retain law books was a deprivation of his constitutionally protected right of access to the courts guaranteed by the due process and equal protection clauses of the Fourteenth Amendment. The application requested the issuance of an order directing Dr. Her-old to permit petitioner to use cash from his personal account for the purchase of law books and other legal materials, to provide petitioner with a list of law books in Dannemora’s inmate library, and to permit petitioner to borrow and use such books under reasonable conditions and for reasonable periods of time. Dr. Herold, although duly served with a copy of petitioner’s application, chose not to respond thereto; instead he wrote a letter to Judge Port reiterating his previous statement to the state courts that Dannemora had an “extensive law library.” After this letter was received by Judge Port, he dismissed Schuster’s application without 'granting a hearing upon the petition. This appeal followed.
The deputy director of Dannemora, in a letter to Schuster’s appointed counsel on this appeal, revealed that the “extensive law library” of which Dr. Herold had boasted consisted of six works, two of which could not be removed from the Supervisor’s office. Some time after Schuster’s petition was dismissed Dr. Herold was replaced as Director of Dannemora by Dr. Paul C. Agnew, and Dr. Agnew, apparently realizing the absurdity of the position taken by his predecessor, wrote a letter to Schuster granting him permission to use any of his available funds to purchase legal materials and according him unlimited access to the six works in the Dannemora library.
Thus it appears that Schuster has received the relief which he sought below. Although he argues that there is no guarantee that Dr. Agnew will adhere to the position taken in his letter, Dr. Agnew has shown no indication of bad faith, and we cannot properly impute Dr. Her-old’s bad faith to Dr. Agnew.
Schuster also argues on appeal that the lack of adequate library facilities at Dannemora deprives him of access to the courts. This claim was not presented in his petition to the court below. We readily acknowledge that indigent prisoners are often at a disadvantage in preparing legal papers and that serious constitutional questions may be raised when state action interferes with the preparation of petitions to the courts. See Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969). However, the question which Schuster now for the first time poses upon appeal is of first impression in this circuit, and its resolution should await a full hearing in the district courts.
Therefore, as Schuster only claimed in his petition that there was active state interference with his access to legal materials, a claim now fully met by the changed attitude at Dannemora, we must dismiss the present appeal as moot.
. The letter reads:
“[Roy Schuster] has $73.62 in his account which is spendable. We have an extensive law library here and he is at liberty to review and study any book in this legal library.
“A short while ago, I received a request from him that a certain amount of money be placed with a law book firm so that he could purchase certain law books from this firm. It is a regulation that we do no [sic] allow a patient to keep these law books in his personal property. They can be withdrawn from our library, studied and returned.”
. The six works are: McKinney’s Domestic Law Book 14 (2 parts), 1967 Civil Practice Annual, Correction Law, Penal Law (2 parts), Criminal Code (3 parts), Gilbert’s Criminal Code and Penal Law —1965.
. Inasmuch as Schuster had no counsel below, we must construe his application broadly. However, we cannot read Schuster's application, which alleges only active interference with his access to legal materials, to include a claim that the State has an affirmative duty to provide a library of law books to indigent inmates.
. We note also that Schuster is represented by counsel in his proceedings in the state courts and that he alleges no present need for legal materials which cannot be obtained through such counsel. | 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 rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)?" 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". | Did the court rule that federal law should take precedence over state or local laws in a case involving the conflict of laws (i.e, which laws or rules apply)? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_fedvst |
Armand R. THERRIEN, Plaintiff, Appellant, v. George R. VOSE, Jr., Defendant, Appellee.
No. 85-1332.
United States Court of Appeals, First Circuit.
Heard Oct. 10, 1985.
Decided Jan. 22, 1986.
William C. Madden, Boston, Mass., was on brief, for plaintiff, appellant.
Martin E. Levin, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Boston, Mass., were on brief, for defendant, appellee.
Before BREYER and TORRUELLA, Circuit Judges, and HILL, Senior District Judge.
Of the Central District of California, sitting by designation.
TORRUELLA, Circuit Judge.
Armand Therrien appeals the district court’s denial of his petition for habeas corpus, 28 U.S.C. § 2254. In September, 1975, the appellant was tried before a jury in the Massachusetts Superior Court of Norfolk County for several counts of murder and assault arising from a single incident. He was convicted of murder in the first degree of United States Army Captain John Oi and police officer William Sheehan; of assault with intent to murder police officer Robert O’Donnell; of assault and battery with a dangerous weapon; and of unlawful possession of a weapon. Therrien was sentenced to two consecutive life terms on the murder charges and two five to ten year concurrent sentences on the assault charges. The Massachusetts Supreme Judicial Court affirmed the convictions in October 1976. Commonwealth v. Therrien, 371 Mass. 203, 355 N.E.2d 913 (1976). In September 1981, the Norfolk Superior Court denied Therrien’s motion for a new trial. Therrien’s application for a special appeal in cases involving first-degree murder convictions was denied, and the appeal was dismissed. A subsequent motion for post-conviction relief also proved unsuccessful. Commonwealth v. Therrien, SJC No. 82-253 Civil, Order Deying Application, August 11, 1982. At this point, Therrien had exhausted his state remedies.
Thereafter, Therrien filed a petition for a writ of habeas corpus in the United States District Court for the District of Massachusetts. The district court dismissed the petition but allowed a certificate of probable cause for this appeal on March 27, 1985. As grounds for his appeal, the petitioner alleges ineffective assistance of counsel; failure of the trial judge to ensure an impartial jury; prosecutorial misconduct; a faulty charge to the jury; and the unlawful imposition of consecutive life sentences.
During the nine-day jury trial, in which the defendant testified on his own behalf, two very different versions of the incidents leading to the defendant’s arrest emerged. The story told by police officer O’Donnell was as follows. O’Donnell testified that he and a fellow police officer, Sheehan, came across Captain John Oi’s car parked on the side of the road. Captain Oi was slumped over the steering wheel and Therrien was sitting beside him in the passenger’s seat. As the officers approached the car, Therrien emerged, saying something to the effect that his friend in the car was sick and that Therrien was going to drive him home. As O’Donnell neared the car, he saw that Oi’s face was bloodied. At that moment Therrien opened fire on the officers, killing Sheehan almost instantly and wounding O’Donnell. Despite his injury, O’Donnell managed to wrest Therrien’s gun from him, draw his own revolver, and shoot Therrien. A third police officer arrived and arrested Therrien.
Captain Oi was taken to a hospital where he died that evening from bullet wounds in the head inflicted by the defendant’s gun. It was also later discovered that O’Donnell had been hit by bullets from both Therrien’s and Sheehan’s weapons. A possible motive for the murder of Captain Oi was Therrien’s interest in an insurance policy on Oi’s life taken out in connection with a business venture entered into by Oi, Therrien, and two others.
Therrien’s version of the facts surrounding the episode stood in stark contrast to that of officer O’Donnell. He testified that, while Captain Oi was driving the car, Oi had lost his temper, beaten Therrien unconscious and taken his gun. When Therrien awoke he found himself lying next to the car. Therrien testified that the officers nearby were fighting and firing at each other, with O’Donnell presumably using Therrien’s gun which he had taken from Oi. O’Donnell and Therrien then wrestled, during which time Therrien’s gun went off while in O’Donnell’s hand. Then O’Donnell drew his own revolver and shot Therrien.
In this habeas action, Therrien sets forth several grounds for relief. First, he contends that he received ineffective assistance of counsel. The standard for ineffective assistance of counsel has been set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Court stated: “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Id. at 2064. For a successful claim, the defendant must meet a two-pronged test, showing first that counsel’s performance was deficient, and second that the deficiency prejudiced the defense. Id. On careful review of the record, we cannot see that the petitioner/appellant has met either one of‘these requirements.
Therrien relies primarily on the following colloquy between his trial counsel, Alch, and the court, to prove that Alch was incompetent because he was not aware of his need to object to save issues for review:
Alch: Am I correct that it’s not necessary for me to make an exception in preserving the record?
The Court: I forget that we changed the rules, this is a murder trial so don’t worry about it if I make any mistakes. I will try not to.
Alch: I didn’t mean it that way.
End of Bench Conference.
In telling counsel “not to worry” because this was a murder trial, the court was referring to the fact that the Massachusetts Supreme Judicial Court has the power to review the entire record in a capital case. M.G.L. c. 278, § 33E.
Therrien apparently wants this court to presume automatically that the trial process by which he was convicted was rife with reversible errors, objections to which should have been preserved for appellate review. He states that during trial his counsel “failed to point out specific violations that took place at trial.” The petitioner fails, however, to explain what “specific violations” did occur or how these supposed errors prejudiced his case. Similarly, Therrien claims ineffective assistance of counsel on appeal because: “In this case nothing was assigned as error or briefed that would reveal to the Supreme Judicial Court the errors of defense counsel at trial.” Again, the only specific problems that the petitioner cites are those that are already briefed separately and considered below.
We will not assume, simply as a matter of course, as Therrien would have us do, that serious errors were made during the trial process and that defense counsel failed to note them. On the contrary, we indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Perron v. Perrin, 742 F.2d 669, 673 (1st Cir. 1984) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2065-66, 80 L.Ed.2d 674 (1984)). With no showing by the petitioner of specific errors, nor any indication that errors, if existing at all, prejudiced the defense or affected the result, we reject the petitioner’s claim of ineffective assistance of counsel.
The petitioner next claims that the trial judge failed to ensure the selection of an impartial jury. This argument is based entirely on the trial court’s failure to pose the following three questions to prospective jurors:
#21 Will you give the testimony of a police officer more credence than that of other witnesses merely because he is a police officer?
# 60 Would you think a police officer has more credibility than a person who is not a police officer?
# 61 Would you give greater credence to the testimony of a law enforcement officer merely because he is such an officer?
In a case such as this, where the prosecution relies heavily upon the testimony of police officers, the trial judge must be cognizant of the risk that jurors might give more credence to witnesses called by the prosecution. In certain circumstances, the refusal of a judge to ask prospective jurors questions designed to weed out such bias may be reversible error. See United States v. Pappas, 639 F.2d 1, 4-5 (1st Cir. 1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1988, 68 L.Ed.2d 304 (1981).
When a problem of potential juror bias arises, the trial judge has a great deal of latitude in determining how best to handle the voir dire. See Ristaino v. Ross, 424 U.S. 589, 594-95, 96 S.Ct. 1017, 1020, 47 L.Ed.2d 258 (1976). The Supreme Court has held that a defendant’s right to an impartial jury can be satisfied without the court’s inquiring into every specific prejudice feared by the defendant. Ristaino v. Ross, supra at 594-95, 96 S.Ct. at 1020; Ham v. South Carolina, 409 U.S. 524, 527-28, 93 S.Ct. 848, 850-51, 35 L.Ed.2d 46 (1973).
The record here indicates that the court took adequate measures to guard against jury bias favoring the police officer’s testimony. The judge emphasized to the jurors their responsibility in remaining objective and examining whether particular witnesses had any personal interest in testifying one way or another. Here, where police officer O’Donnell was himself allegedly a victim of the crime, they had to consider carefully the credibility of his story in light of his interaction with the defendant. The court also screened out jurors who had any relationship with anyone engaged in law enforcement. We conclude that the jury was properly instructed as to its role in weighing the witnesses’ testimony and there was no constitutional error in the judge’s failure to ask the precise questions requested.
The appellant also claims that the prosecutor improperly commented on the evidence and expressed his personal views on the case, thereby warranting reversal of the conviction. Although he argues the transcript is rife with examples of egregious prosecutorial conduct, the appellant cites in his brief only the single following statement from the prosecutor’s closing argument:
We have given you some evidence and we are not hanging our hat on that. We are not telling you that this is the only thing it could have been. What we are saying is we know he shot them.
The appellant argues that the statement “we know he shot them” is essentially unsworn testimony, not subject to cross-examination, that violates his due process rights. We cannot agree.
While a prosecutor may not manipulate or misrepresent evidence, see Donnelly v. de Christoforo, 416 U.S. 637, 646-48, 94 S.Ct. 1868, 1872-74, 40 L.Ed.2d 431 (1974), it is his responsibility to marshal the evidence in his closing argument in a manner that will prove the government’s case. Having reviewed the transcript, we find the prosecutor did not exceed the permissible bounds of advocacy for the state. At the outset of his argument, he specifically told the jury that it was their recollection of the evidence — and not his — that “counts.” The judge, too, admonished the jury that their understanding of the evidence was not to be governed by the recitation of the evidence presented by the trial attorneys. We find that, in the total context of the prosecutor’s remarks, none of the prosecutor’s statements would warrant the granting of a retrial. Cf. Salemme v. Ristaino, 587 F.2d 81 (1st Cir.1978); United States v. Rusmisel, 716 F.2d 301 (5th Cir.1983).
The appellant next claims that the jury charge was flawed in two respects. He contends that the instructions had the effeet of imposing a mandatory presumption of malice and establishing a presumption in favor of the commonwealth. In support of this, the appellant makes no further argument but simply cites the two cases of Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) and Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). We can find no principles set forth in those cases that would run contrary to or cast doubt upon the constitutionality of the jury charge given here.
The court’s instruction regarding the inferences the jury might draw from the evidence are similar to the instruction on a permissive presumption that we approved in McInerney v. Berman, 621 F.2d 20 (1st Cir.), cert. denied, 449 U.S. 867, 101 S.Ct. 201, 66 L.Ed.2d 85 (1980). The charge on reasonable doubt also was proper, particularly in light of our holding in Grace v. Butterworth, 635 F.2d 1, 7 (1st Cir.1980), cert. denied, 452 U.S. 917, 101 S.Ct. 3053, 69 L.Ed.2d 421 (1981). We agree that the trial court’s instructions taken together with the curative remarks made at the request of defense counsel afforded Therrien all of the constitutional due process to which he was entitled. See Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973); Gagne v. Meachum, 460 F.Supp. 1213, 1218-20 (D.Mass. 1978), aff'd, 606 F.2d 471 (1st Cir.1979), cert. denied, 444 U.S. 992,100 S.Ct. 524, 62 L.Ed.2d 422 (1980).
Finally, the appellant contends that the imposition of two consecutive life sentences violates the Constitution’s double jeopardy clause. U.S. Const., 5th amend., cl. 2. Therrien argues that, under the court’s instructions, the jury conceivably could have found that Therrien was guilty of the murder of Officer Sheehan based solely on their finding that he had committed the underlying felony of murdering Captain Oi. Hence, the argument runs, Therrien would be punished for the same illegal act twice.
We agree with the district court that this argument is wholly without merit. The murders of Officer Sheehan and Captain Oi were two distinct offenses. Each was required to be separately proved and independently supported by the prosecution’s evidence. In addition, the two offenses each carried their own penalties and the imposition of multiple sentences under these circumstances in no way violated the double jeopardy clause. See Whalen v. United States, 445 U.S. 684, 692, 100 S.Ct. 1432, 1438, 63 L.Ed.2d 715 (1980); Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981).
The decision of the district court to dismiss Therrien’s petition for a writ of habeas corpus is affirmed in all respects.
Affirmed. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". | What is the general issue in the case? | [
"criminal",
"civil rights",
"First Amendment",
"due process",
"privacy",
"labor relations",
"economic activity and regulation",
"miscellaneous"
] | [
0
] | songer_geniss |
Hayden J. WATTS, Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, and Paul L. Loeffelholz, in his full capacity as M.D., and Superintendent of the Iowa Medical Facility at Oakdale, Iowa, Appellees.
No. 78-1275.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 15, 1978.
Decided Dec. 18, 1978.
Anne L. Spitzer, Iowa City, Iowa, for appellant.
Gary L. Hayward, Asst. Atty. Gen., Des Moines, Iowa, for appellees; Richard C. Turner, Atty. Gen., Stephen C. Robinson, Asst. Atty. Gen., Des Moines, Iowa, on brief.
Before STEPHENSON, HENLEY and McMILLIAN, Circuit Judges.
HENLEY, Circuit Judge.
This is a civil rights suit commenced in the United States District Court for the Southern District of Iowa by two inmates of the Iowa State Penitentiary (ISP) which is located at Fort Madison in the Southern District of Iowa. Plaintiffs below were Hayden J. Watts and David George Dee. The original defendants were Lou V. Brewer, Warden of ISP, and Dr. Paul L. Loeffelholz, Acting Superintendent of the Iowa Security Medical Facility (ISMF) located at Oakdale, Iowa. The case was assigned to the docket of District Judge William C. Stuart, who appointed members of the Legal Aid Clinic of the University of Iowa College of Law to represent the plaintiffs. In due course, the complaint, which had been tendered by plaintiffs pro se, was amended, and additional state officers and employees connected with the Adult Corrections Division of the Iowa Department of Social Services were brought into the case as defendants.
The genesis of the controversy is the fact that in the early 1970’s, probably in 1973, plaintiff Dee was convicted of rape in the District Court of Jefferson County, Iowa, and was sentenced to imprisonment in ISP for a period of fifty years. His conviction was affirmed on direct appeal. State of Iowa v. Dee, 218 N.W.2d 561 (Iowa 1974). Thereafter, Dee entered ISP to serve his sentence and became acquainted with the plaintiff, Watts.
At that time Watts was what is known as an “inmate writ writer.” That is to say he was a convict who possessed or claimed to possess some knowledge of law and procedure in fields of interest to convicts and held himself out as being ready, willing and able to “write writs” to the courts on behalf of other inmates of the institution, and, of course, he might “write writs” on his own behalf.
Dee engaged the services of Watts, and Watts prepared for Dee a petition for post conviction relief that was filed in the District Court of Jefferson County. While that petition was pending in the state court (and it may be pending there still), Dee was transferred temporarily from ISP to ISMF in 1976 for psychiatric evaluation. The evaluation having been completed, Dee was returned to ISP. Of course, Dee and Watts were physically separated while the former was in ISMF and the latter was in ISP.
During his stay in ISMF Dee appears to have desired to prosecute his petition in the sentencing court, but he discovered that there is no law library in ISMF. He thereupon applied to the sentencing court to appoint a regular attorney for him, and such an appointment was made. The litigation in the United States District Court was commenced after Dee was returned to ISP. In their complaint as amended plaintiffs claimed that while Dee was confined in ISMF he suffered a number of constitutional deprivations including the loss of the writ writing services and legal advice of Watts, and Watts claimed that during the same period of time and perhaps thereafter he was denied an alleged constitutional right to provide legal services to Dee and that ISP personnel by means of threats undertook to deter him from providing any legal assistance to Dee.
Plaintiffs sought declaratory, injunctive and monetary relief. Jurisdiction was based on 42 U.S.C. § 1983 as implemented by 28 U.S.C. § 1343.
The defendants denied that plaintiffs were entitled to any relief and moved for summary judgment against both plaintiffs pursuant to Fed.R.Civ.P. 56. The district court overruled the motion as it applied to Dee, and his claim is still pending in the district court. The motion was granted as to Watts and his complaint was dismissed. Thereafter, the district court made a finding and certification under Fed.R.Civ.P. 54(b) which has enabled Watts to appeal at this time from the summary judgment granted against him.
After the notice of appeal was filed by Watts, he was released from ISP, and is no longer confined in that institution or in any other institution operated by the State of Iowa. His release has mooted his claims for declaratory and injunctive relief but has not mooted his claim for monetary damages.
In passing upon the defendants’ motion for summary judgment the district court was required, and we are required, to view the case in the light most favorable to Watts and to give him the benefit of all inferences in his favor that reasonably may be drawn from the evidence. Moreover, even though the facts in a case may be undisputed, it does not necessarily follow that summary judgment under Rule 56 is appropriate; the court must still consider the legal questions raised by the undisputed facts. See Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, Inc., 578 F.2d 1256, 1263 (8th Cir. 1978), and cases cited.
We have carefully considered the record before us, and we affirm without difficulty the action of the district court in granting summary judgment against Watts and dismissing his complaint.
First, let us point out that there are three things that this case does not involve. It does not involve the right of an inmate of a prison or jail to have access to the federal courts to seek relief from his imprisonment or from the conditions thereof. That right has been established since the decision of the Supreme Court in Ex parte Hull, 312 U.S. 546, 61 S.Ct. 640, 85 L.Ed. 1034 (1941). Neither does the case involve the right of an inmate to have the assistance of another inmate in gaining access to the courts for the redress of grievances where those who have the former inmate in charge have not otherwise provided him with legal assistance or made more conventional legal assistance available to' him.. Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969); Finney v. Arkansas Bd. of Correction, 505 F.2d 194, 213 (8th Cir. 1974); Finney v. Hutto, 410 F.Supp. 251, 262-63 (E.D.Ark.1976), aff’d, 548 F.2d 740 (8th Cir. 1977), aff’d, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Finally, the case presents no question as to constitutional deprivations, if any, that the plaintiff, Dee, may have sustained while confined in ISMF or thereafter.
All that we are concerned with here is whether the individual plaintiff, Watts, suffered a personal deprivation of federally protected rights which entitles him to an award of monetary damages against any of the defendants.
In resisting the claim of Watts the defendants advance the basic contention that while an inmate of a prison who has no other access to legal assistance has a constitutional right to the services of an inmate writ writer, Johnson v. Avery, supra, the writ writer has no reciprocal constitutional right to provide the service.
That contention certainly has arguable validity, but the district court did not base its decision upon it, nor do we. In our opinion the claim of Watts for an award of damages against the several defendants ultimately named in the case is simply insubstantial.
What happened was that after Dee was transferred to ISMF, he and Watts undertook surreptitiously to correspond with each other with respect to the petition that Dee had pending in the sentencing court. In engaging in this surreptitious correspondence Dee and Watts used intermediaries including the wife of Watts. Apparently some of the communications passed unintercepted, but at least one or two letters from Watts to Dee were intercepted at ISMF and at least one communication from Dee to Watts was intercepted at ISP.
As a result of the interceptions, Dee sustained a loss of two days good time, and Watts was reprimanded and warned that if he persisted in trying to communicate with convicts in other Iowa institutions in violation of prison rules, he would lose all of his communications privileges. A claim for damages, whether actual or punitive, or both based on the fourteenth amendment cannot successfully be bottomed on so frail a foundation.
We recognize that today under ruling judicial decisions the inmates of prisons have a constitutionally protected right to reasonable correspondence with persons in the outside world. Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). And that right was discussed in some detail in the opinion of this court in Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-12. That right, however, is not untrammeled. It is subject to reasonable and necessary restrictions properly geared to legitimate institutional interests. Finney v. Arkansas Bd. of Correction, supra, 505 F.2d at 210-11.
We do not say that a state has an unqualified right to forbid an inmate of one of its penal institutions to correspond with an inmate of another penal institution in the same state or in a different state. We think it obvious, however, that where such correspondence is involved, the institutional authorities have a peculiar and compelling interest in the regulation of such communications and in prohibiting smuggled or surreptitious correspondence between inmates of different institutions.
As far as this case is concerned, it does not appear that while he was confined in ISP Watts was denied his right to communicate on his own behalf with the courts or with counsel, or that he was forbidden to give legal assistance to other inmates of ISP. And all that happened to Watts as a result of his efforts to communicate with Dee while the latter was confined in ISMF was that the former was reprimanded and warned. Watts simply has sustained no damage. Cf. Wycoff v. Brewer, 572 F.2d 1260, 1266-67 (8th Cir. 1978).
Affirmed.
. Both Fort Madison and Oakdale are located in the southeastern part of the state. However, Oakdale is a substantial distance from Fort Madison.
. To inmates and to lawyers and judges who are familiar with prisoner litigation terms like “writ,” “writ writer,” and “to throw a writ” have become terms of common speech. To the uninitiated it may be helpful to state that a “writ” as herein used is simply a petition to a court for judicial relief of one kind or another, to “throw a writ” is simply to file the petition or tender it to the court for filing, and the “writ writer” is the inmate who prepares the petition usually to be subscribed, sworn to, and mailed out of the prison by the inmate on whose behalf the petition has been prepared. While this use of the word “writ” is not generally acceptable, it is not without ancient historical basis, and in old English books, “ ‘writ’ is used as equivalent to ‘action;’ hence writs are sometimes divided into real, personal and mixed.” Black’s Law Dictionary, 4th ed., “Writ,” p. 1783. Moreover, in Scotland an individual holding a position equivalent to that of attorney at law in England and the United States is referred to as a “Writer to the Signet.” Ibid., “Writer To The Signet,” p. 1787.
. The same contention was urged upon us by the State of Missouri in In re Green; 586 F.2d 1247 (8th Cir. 1978). There the district court had enjoined Green, an inveterate writ writer, from filing any further petitions for other inmates of the Missouri prison system and had held Green in contempt. We affirmed. However, the decision of the district court and of this court was not based on a premise that an inmate does not have a constitutional right to give legal assistance to other inmates but on the proposition that Green as an individual had grossly abused the process of the district court, and that that court had as much right to protect itself against an inmate writ writer as it had to protect itself against the conduct of an unscrupulous, unethical or irresponsible lawyer in the civilian world.
. We refer, of course, to the claim of Watts. As stated, we are not here concerned with the claim of Dee that he was mistreated and suffered constitutional deprivations while confined in ISMF. That claim may or may not have substance.
. At least most, and perhaps all, of the penal institutions in the United States today recognize that inmates have a practically unrestricted right to correspond privately and without censorship or inspection with courts, court officials and attorneys. That type of correspondence is generally described in prison rules and regulations as “privileged correspondence.” There was a qualified recognition of this right at ISP in 1974 following the Procunier decision, supra. See Wycoff v. Brewer, 572 F.2d 1260, 1263 (8th Cir. 1978).
. For example, an inmate of one institution may engage in conduct that earns him the ill will and hatred of other inmates to, the extent that the inmate in question must be transferred for his own safety from one institution to another. The purpose of such a transfer would or might be frustrated if another inmate of the transferring institution is able to communicate secretly with one or more inmates of the transferee institution. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited. | What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number. | [] | [
56
] | songer_civproc1 |
Dan H. DAVIES, trading as Davies Reversible Window Products, Appellant, v. M. B. KAHN, Irwin Kahn, Saul Kahn, and Bernard Kahn, partners d/b/a M. B. Kahn Construction Company, Appellees.
No. 7523.
United States Court of Appeals Fourth Circuit.
Argued Nov. 26, 1957.
Decided Jan. 6, 1958.
Joseph L. Nettles, Columbia, S. C., for appellant.
J. Monroe Fulmer, Columbia, S. C. (Fulmer & Barnes, Columbia, S. C., on brief), for appellees.
Before PARKER, Chief Judge, and SOBELOFF and HAYNSWORTH, Circuit Judges.
SOBELOFF, Circuit Judge.
Suit was brought by a Chicago subcontractor against the general contractor, a South Carolina construction corporation, which was building the Teaching Hospital for the Medical College of South Carolina, in Charleston.
The defendant gave the plaintiff an order on June 13, 1952, for “reversible sash fixtures,” a type of window designed to allow the sash to be pivoted horizontally so that both sides of the window can be cleaned from the inside. On May 28, 1953, a letter was sent by Kahn, the defendant-general contractor, to Davies, the subcontractor, cancelling the order on the ground that the architect considered Davies’ product not equal to that specified; and later, on August 14, 1953, it notified Davies of the cancellation, this time on the asserted ground that the architect had not approved the plaintiff as a subcontractor.
The District Judge, before whom the case was tried without a jury, accepted the defendant’s contention that the reference in the order to the “plans and specifications” of the general contract incorporated into the order certain provisions as to approval by the architect. The Judge further concluded that these requirements had not been observed and gave judgment for the defendant. The appeal challenges this action.
It becomes necessary to examine the plans and specifications of the general contract, and to determine what bearing they may have on the order given the subcontractor. We have occasion also to review and consider the legal effect of the conduct of the parties in the interval between the placing of the order and its cancellation.
The defendant’s purchase order form calls upon the plaintiff to “furnish the following, according to plans and specifications . . . reversible sash fixtures as per plans and specifications . . . 114,600.00.” The threshold question is the meaning of this language. It is the plaintiff’s position that the reference to plans and specifications was merely to determine measurements and quantities, and that the order is an unconditional contract. The defendant, on the other hand, maintains that the plans and specifications, including all their procedural requirements, form a part of the order.
In the final cancellation notice, it was the defendant’s theory that the order was not a firm contract, but conditional, and that since the subcontractor was not approved by the architect, no obligation whatever rested upon the defendant.
I
Assuming that the specifications are by reference fully incorporated into and made a part of the order, nowhere do we find in them support for the defendant’s claim that the subcontractor needed the architect’s approval. Such provisions are not unknown in building contracts, but they cannot be implied as a matter of law. Building contracts and accompanying specifications, like other documents, are to be construed according to their terms. 9 Am.Jur., “Building and Construction Contracts,” Sec. 7, p. 8; Werbin, Legal Phases of Construction Contracts (1946), p. 222. The agreement of the parties is not to be extended beyond its terms, nor is omitted matter to be supplied, unless necessary to give effective meaning to the language used. We hold, in respect to the specific ground recited in the August letter of cancellation, that there was no requirement that the subcontractor be approved by the architect.
The defendant also makes the slightly variant contention that the plaintiff’s window sash itself required the architect’s approval, and that as no such approval was given, there has been no compliance with a condition of the contract, notwithstanding that the specifications have been strictly adhered to in regard to labor, material, size, quality, etc. We do not read the specifications so broadly. It is true that the specifications require the architect’s approval where equivalents are offered by the contractor in substitution for materials that have been specified by brand name. This window sash, however, was not specified by brand name. The specifications contain a description of what was to be supplied, and it is not disputed that the plaintiff’s sash met the description.
That the sash were intended to be ordered by description, and not by brand, appears from the fact that the article is minutely described. Seemingly only as an afterthought is it added that such materials “may be procured from the Williams Pivot Sash Company, of Cleveland, Ohio.” This impression is strengthened by the fact that elsewhere the specifications say, “The wood double-hung windows shall be a reversible type of sash similar to the product of the Williams Pivot Sash Company.” (Our emphasis.) This language is not the same as specifying the Williams product, nor does it mean that what the subcontractor tenders must be approved by the architect as the equivalent of the Williams sash. Such approval would be required only if the Williams product “or approved equal” had been specified. In that case, the substitute would have to be approved. See Murphy v. Salt Lake City, 1925, 65 Utah 295, 236 P. 680. Here the goods of the plaintiff are not offered as a substitute for a specified brand, but as compliance with the detailed description. Cf. Fletcher v. Interstate Chemical Company, 1921, 95 N.J.L. 543, 112 A. 887, 17 A.L.R. 92; Greenbaum v. DeJong, Sup.1917, 166 N.Y.S. 1042. If the article in fact accords with the description, this constitutes performance.
If a broader discretion was desired to be given the architect, apt language could have been used to accomplish the purpose. Merely indicating that merchandise of the kind ordered can be obtained from a certain source is not a restriction to that source, nor does it clothe the architect with authority to insist on the merchandise which has been mentioned merely by way of example. In fact, the very specifications before us contain a number of instances in which goods are ordered by brand name and, in respect to such goods, the architect is given the authority to determine whether a proposed substitute is satisfactory. The specifications’ different treatment of other items, including the sash, argues against the defendant’s interpretation. Note, Tobin Quarries v. Central Nebraska Public P. & I. Dist., D.C.Neb.1946, 64 F.Supp. 200.
II
Should we, however, make the further assumption that the applicable specifications subject the plaintiff’s goods to the architect’s approval, we find from the course of conduct of the parties in this case that such approval was in fact given.
The architect was the firm of Hopkins, Baker, and Gill, of Florence, South Carolina, with Mr. Baker in charge; but as he had had little experience in supervising the construction of hospitals, another firm, Samuel Hannaford and Sons, of Cincinnati, Ohio, was associated as consultant. Mr. Hannaford and his staff participated in the preparation of specifications for the hospital job. It was at the instance of the Hannaford firm that reversible window sash were incorporated in the plans and specifications. Mr. Baker testified that he had had no practical experience with this item and that he could not distinguish between the plaintiff’s product and that of the Williams Company. He declared on the witness stand that he was being advised by Mr. Hannaford. He further testified that when specifications mention a product by name, this is simply intended to be a standard, and that when an architect says he has no objection to using another product, he means that he regards it as equal to the named product. This statement is significant in the light of other evidence to be discussed later, that Mr. Hannaford, to whom the plaintiff had been referred by Baker, stated to Davies, and wrote to Baker, that he had no objection to the plaintiff’s product.
Before the general contract was awarded, the plaintiff contacted the defendant and furnished it with data that was used in preparing its bid. The plaintiff showed his equipment to Mr. Baker in an effort to demonstrate its compliance with the specifications. Mr. Baker, on the witness stand, said that he could see very little difference between the Davies and the Williams sash, and Mr. Davies quoted him as saying that they were “competitive.”
The order from the defendant to the plaintiff followed by a few weeks the award of the general contract. Difficulties did not begin until a month after the order was issued, when the defendant advised the plaintiff that the architect was “temporarily withholding approval” of the plaintiff. We need not pass upon the plaintiff’s contention that Baker’s attitude toward him was induced by the Williams Company, the plaintiff’s former employer and only competitor, which brought pressure on the architect in its own behalf after the defendant’s order was placed with the plaintiff. We merely look now at the events which followed over a period of months. Apart from any technical requirement of the architect’s approval of the plaintiff as a subcontractor, or of the plaintiff’s product, the plaintiff once again undertook, as a matter of business prudence, to convince Mr. Baker that he complied in every way with the specifications. Again and again he made strenuous effort to meet with Mr. Baker; he wrote him, offering to come to see him in person, but received no reply. Mr. Baker held the plaintiff off. When at last an appointment was arranged, he did not keep it, although the plaintiff had come a long distance to see him, and was kept waiting around for two days. Finally, when reached on the telephone, Baker asked the plaintiff to write him a letter, listing the hospital jobs in which his equipment had been installed. The plaintiff furnished a list of eighteen hospital contracts, each embracing the installation of from two hundred to two thousand windows. Still he did not receive a definite reply from the architect.
After a time, he was referred by the architect to his consultant, Mr. Hanna-ford, who stated to the plaintiff, and wrote to Mr, Baker, that while on the basis of his former experience with Williams, he preferred to deal with that company, he had no objection to using the plaintiff’s product. In fact, the plaintiff has furnished reversible windows for a number of hospitals in the construction of which Hannaford was the architect. These windows were accepted as complying with “Hannaford’s specifications,” which were substantially the- same as the specifications in' this case, embodying a similar reference to the Williams window.
The defendant was kept informed of these events as they occurred and was explicitly told by the plaintiff that he regarded himself as a subcontractor. In the meantime, moreover, the defendant dealt with the plaintiff as it did with its other subcontractors. In fact, the general contractor invited the plaintiff to submit a quotation for supplying windows for two additional floors, in the event it should be decided by the State to add to the original plans. Referring to this, the general contractor wrote that the additional cost was to be added to “your contract.”
From time to time for almost a year, the plaintiff received communications from the defendant, calling upon him to supply the necessary certificates of insurance to the State authority; instructing him in regard to payroll and affidavit forms, and compliance with Government wage rate regulations applicable to work being done, as this was, with Government assistance. The plaintiff was furnished shop drawings and advised of the work schedule..,-These communications the plaintiff consistently acknowledged to the defendant. The plaintiff also received letters from the State authority, declaring that “We have been advised by the general contractor that you are a subcontractor . . and accordingly informing. him of the regulations with which he would have to comply. The plaintiff made inquiry of the defendant as to who was doing the weatherstripping so that he could coordinate his work with that subcontractor. This inquiry the defendant acknowledged, replying that when the subcontractor had been chosen, the plaintiff would be advised.
Relying upon his subcontract and upon the appearances created by this course of conduct, the plaintiff, with the knowledge and encouragement of the defendant, proceeded, at considerable cost, with the preparation of the material. When the cancellation letter was sent, a year after the order was placed, the plaintiff had completed one hundred and forty sets of windows.
III
■ .We find that the order of June, 1952, was not conditioned upon the architect’s approval, but was a firm contract, and that the failure of the architect to approve the plaintiff as subcontractor constitutes no defense to the defendant.
As to approval of the product, we hold that unless authorized by the contract, an architect has no inherent power to insist on an article of particular manufacture, not specified in the contract, over one that in all respects responds to the contract. If' an architect nevertheless insists upon his “preference,” when the subcontractor’s article is in full compliance with his contract, the contractor is not legally bound by the architect’s preference. If the general contractor, in such a case, sees fit, as a matter of business policy, not to oppose the architect’s insistence, he is not thereby relieved of his contractual obligation to the subcontractor who supplies precisely what was ordered from him. He may not, to save himself unpleasantness, sacrifice the subcontractor.
We are, moreover, of the opinion that if the architect’s approval was required for the plaintiff’s product, it was given by him and his alter ego, Mr. Hannaford ; also, that the course of conduct of the defendant and of the architect to the knowledge of the defendant, is inconsistent with its present claim that there was no unconditional contract between the parties, and consequently the defendant is estopped now from asserting such a claim. See: Stagg v. Connecticut Mut. Life Insurance Company, 1870, 10 Wall. 589, 19 L.Ed. 1038; Great Eastern Oil Co. v. DeMert & Dougherty, 1942, 350 Mo. 535, 166 S.W.2d 490; Reck v. Daley, 1943, 72 Ohio App. 307, 48 N.E.2d 879.
Accordingly, the judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
. “Materials: When an article of particular brand or make is specified, it is intended to assume that as standard and no other brand or make is to be substituted without consent of the Architects. The term ‘approved' [sic] or ‘approved equal’ shall mean approved by the Architects and in the event any changes are made in the materials other than those specified the Contractor shall make written request to the Architects for their approval.” “Standards: * * * (c) Reference in these specifications to any article, device, product, material, fixture, form, or type of construction by name, make, or catalogue number shall be interpreted as establishing a standard or quality and shall not be construed-as limiting competition and the Contractor, in such cases, may at his option use any article, device, product, material, fixture, form, or type of construction which in the judgment of the Architect expressed in writing is equal to that specified.” (Our emphasis.)
. E. g.:
“Contractor shall furnish and install a model #550 Incinerator as manufactured by Joseph Goder, Inc., or approved equal.” (Our emphasis.)
“Mail chutes where indicated on drawings shall he Cutler Mail Chute Equipment, Model ‘G’ as manufactured and installed complete by the Cutler Mail Chute Co., Rochester, N. Y., or approved equal.” (Our emphasis.)
“The metal work in connection with bridge over Mills Street shall he Braseo Sash Sections. * * * ” (Our emphasis.)
. The term “Architects” as used in the plans and specifications is broad enough to include the consulting architect, to whom the plaintiff was referred.
“Wherever the word Architects is used it is understood to mean Hopkins, Baker, and Gill of Florence, South Carolina, or their duly authorized representor tive,” (Emphasis added.) | 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
3
] | songer_direct1 |
D. K. PORTER, Trustee in Bankruptcy, Appellant, v. STREVELL-PATERSON FINANCE CORPORATION, Appellee. In the Matter of Byron Lee WALDRAM, Norma Williams Waldram, Willie Adrew Inman, Leah Rolls Inman, Delphin Magnus Post and Anna Mae Post, d/b/a Qualifreeze Co., Voluntary Bankrupts.
No. 6636.
United States Court of Appeals Tenth Circuit.
July 13, 1961.
Veri C. Ritchie, Salt Lake City, Utah, for appellant.
Dean E. Conder, Salt Lake City, Utah (Nielsen, Conder & Hansen, Salt Lake City, Utah, on the brief), for appellee.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
Byron Lee Waldram, Norma Williams Waldram, Willie Adrew Inman, Leah Rolls Inman, Delphin Magnus Post and Anna Mae Post, doing business as Qualifreeze Company, filed a voluntary petition in bankruptcy on December 4, 1953, and on December 14, 1953, were duly adjudged bankrupts. Porter is the trustee of the estate of such bankrupts.
This is an appeal from an order of the District Court reversing an order of the referee in bankruptcy which required Strevell-Paterson Finance Corporation to pay the trustee $2,532.04, the amount which the Finance Corporation had charged to a reserve account held by it to protect it against losses occurring in the liquidation of certain conditional sale and installment payment contracts purchased by it from Qualifreeze Company.
Qualifreeze Company was engaged in the sale of freezers under conditional sales contracts which retained title in it and provided for the payment of the balance of the purchase price in installments.
From time to time, prior to bankruptcy, Qualifreeze Company transferred and assigned certain of such contracts to the Finance Corporation. Upon the acceptance of an assigned contract the Finance Corporation paid to Qualifreeze Company the balance due from the customer on such contract, less an amount which, under agreement of the parties, was credited to Qualifreeze Company and set up as a reserve account with the Finance Corporation. It was against credits to such reserve account that the amount in controversy here was charged.
On January 9, 1951, the individual members of the Qualifreeze Company executed and delivered to the Finance Corporation a statement of financial condition and guaranty of the performance by Qualifreeze Company of the terms and conditions of the assignments. The material portions of such document read:
“To: Strevell-Paterson Finance....
“For the purpose of inducing you: to purchase or accept notes, contracts, mortgages or leases to be executed, endorsed, or assigned by, undersigned: * * * we make the following statements, representations and agreements * * *.
* * * * *
“We agree that we will faithfully comply with all the terms and conditions of all agreements executed or to be executed by undersigned; that all agreements contained herein shall continue to bind us irrespective of the terms of any other agreements executed or to be executed by undersigned and that you shall at all times for all sums due you, have a lien upon any of our property or credits in your possession or otherwise, and the right to charge the sums due or to become due to you against the same.
******
“ * * * All of the undersigned waive notice of the acceptance of this guaranty and of notice of nonpayment, demand or protest of any note or draft signed, accepted or endorsed by said Dealer, and any other notices required by law, and you may renew or extend any notes or other obligations of purchasers and/or of the Dealer or accept partial payments thereon or settle, release, compound or compromise any of the same and/or collect upon or otherwise liquidate paper held by you in any manner you may deem advisable without impairing the obligations of any of the undersigned.”
The pertinent provisions of the assignment contracts read:
“For Value Received, the undersigned does hereby sell, assign, transfer and set over to StrevellPaterson Finance Corporation, a corporation, as Assignee, all of his, its or their right, title and interest in and to the property described in the within contract, together with all moneys due or to become due thereunder.
“The undersigned jointly and severally guarantee, unconditionally, the performance of said contract according to its terms and conditions, including the payment of all moneys now or hereafter owing in connection therewith. The undersigned further agrees, upon default of the purchaser in the performance of any of the terms of said contract, to pay to the assignee, upon demand, all moneys remaining unpaid hereon, and it shall not be necessary for said assignee to pursue or exhaust any remedy against the purchaser as a condition precedent to the liability of the undersigned on this guaranty.
******
“For the purpose of inducing the purchase of this contract, the undersigned submits the customer’s statement which is substantially true to the best knowledge of the undersigned.”
On December 4, 1953, the amount in ■such reserve account, as found by the referee, was $5,987. On that date the total amount due on contracts outstanding and for which Qualifreeze Company and the individual partners were contingently liable, was in excess of $50,000. Thereafter, the Finance Corporation liquidated such accounts and sustained a loss of $2,532.04, which it charged against the reserve account, leaving a balance in such account of $3,123.47.
Prior to bankruptcy it was the practice of the Finance Corporation to notify Qualifreeze Company before charging a loss on a contract against such reserve account. The Finance Corporation did not notify the trustee, after bankruptcy, of its intention to charge losses against such reserve account before making such charges.
Upon his appointment, the trustee requested the Finance Corporation to advise him with respect to the contracts held and the amount of the reserve account. The Finance Corporation advised the trustee that it had contracts aggregating between $50,000 and $60,000 and had approximately $5,000 in the reserve account. From time to time, the trustee checked with the Finance Corporation by telephone with respect to the status of the reserve account. From time to time the Finance Corporation released and paid over to the trustee a portion of the reserve account.
Pursuant to an order of the Bankruptcy Court, the Finance Corporation, on May 16,1958, submitted and filed with the Bankruptcy Court an accounting, showing the credits, charges and disbursements with respect to such reserve account, and a credit balance of $3,123.47, which had been paid to the trustee.
The trustee filed a petition with the referee, seeking an order requiring the Finance Corporation to pay to the trustee the amount of $2,532.04, charged to the reserve account after bankruptcy ensued. The referee held that such amount was wrongfully charged to the reserve account, because the charges were made without first giving notice to the trustee.
The financial statement and agreements which were made as an inducement to the purchase by the Finance Corporation of the conditional sales contracts gave the Finance Corporation an unqualified right to charge sums due it against the reserve account, and that without notice to or demand upon Qualifreeze Company or the individual partners. Such financial statement agreement further authorized the Finance Corporation to “liquidate paper held by” it “in any manner” it might “deem advisable.”
We are of the opinion that neither notice nor demand on the trustee was necessary to the right of the Finance Corporation to make the charges against the reserve account.
Moreover, the trustee could not have complied with the demand for payment, had it been made, and demand upon the trustee would have served no useful purpose.
The order is affirmed.
. Hereinafter called the Finance Corporation.
. The discrepancy between the total of $5,655.51 accounted for and the $5,987 found by the referee is not clarified by the record. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the first listed appellant is bankrupt. If there is no indication of whether or not the appellant is bankrupt, the appellant is presumed to be not bankrupt. | Is the first listed appellant bankrupt? | [
"Yes",
"No"
] | [
0
] | songer_bank_app1 |
Vittorio MINEO, on behalf of himself and all others similarly situated v. PORT AUTHORITY OF NEW YORK AND NEW JERSEY, Appellant.
No. 83-5588.
United States Court of Appeals, Third Circuit.
Argued May 16, 1985.
Decided Dec. 27, 1985.
Rehearing and Rehearing En Banc Denied Feb. 6, 1986.
Hugh H. Welsh (Argued), Arthur P. Berg, Anne M. Tannenbaum, Jersey City, N.J., for appellant.
Seymour Margulies, Jack Jay Wind, (Argued), Margulies, Margulies and Wind, Jersey City, N.J., for appellees.
Before ADAMS, BECKER and VAN DU-SEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Senior Circuit Judge.
This case, before the court on the district court’s certification pursuant to 28 U.S.C. § 1292(b) (1982), presents the question whether appellees (hereinafter “Detectives”), who are police detectives employed by appellant, The Port Authority of New York and New Jersey (hereinafter “Port Authority”), are covered by the wage and hour provisions of the Fair Labor Standards Act, 29 U.S.C. §§ 201-19 (1982) (hereinafter “FLSA”). In Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), which was decided after this court granted the Port Authority’s petition for leave to appeal, the Supreme Court overruled its earlier decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and held that all state and municipal employees are covered by FLSA. For the reasons set forth in this opinion, we hold that Garcia should not be accorded retroactive application on the facts presented by this case and therefore that the Detectives do not fall within the coverage of FLSA. We will reverse the district court’s denial of.the Port Authority’s motion to dismiss and will remand the case to the district court accordingly, with directions to dismiss this civil action.
I.
The Detectives are persons employed by the Port Authority as police detectives assigned to the Authority’s Investigating Unit. They are authorized by the laws of New York and New Jersey to act as police officers, N.Y.Crim.Proc.L. § 1.20, subdivision 34(k) (McKinney 1981); NJ.Stat.Ann. § 32.2-25 (West 1963), and have the same powers as police directly employed by the two states. See State v. Cohen, 73 N.J. 331, 337, 375 A.2d 259, 264 (1977). The Port Authority is a municipal instrumentality of New York and New Jersey created by a compact between these two states with the consent of Congress (hereinafter “Compact”). See 1921 N.Y.Laws Ch. 154; 1921 NJ.Laws Ch. 151, pp. 412-22; S.J. Res. 88, 42 Stat. 174 (1921).
This case had its origins in a collective bargaining dispute between the Detectives and the Port Authority over the latter’s alleged refusal to pay the Detectives one and one-half times their regular hourly rate for hours worked in excess of forty hours a week. On October 10,1980, in the midst of contract negotiations, the Detectives filed a complaint in the district court alleging that the refusal to pay this overtime rate violated Port Authority regulations. They later amended the complaint to allege that the Port Authority’s refusal to pay overtime constituted a violation of FLSA.
On December 2, 1980, the Detectives and the Port Authority signed a collective bargaining agreement that took retroactive effect as of July 9, 1978. This agreement provided that the Detectives would be paid time and one-half for hours worked on a regular day off or vacation day, but not if they simply worked more than a certain number of hours in a given week. Under the agreement, the Detectives were paid 25% more an hour than regular police officers employed by the Port Authority. During the course of the contract negotiations between the two parties, the Port Authority had contended that this 25% premium wage was being paid to the Detectives because they were often required to work overtime for which they received no increased hourly wage. The Detectives asserted, however, that they were entitled to the 25% premium because they performed duties in addition to those performed by regular Port Authority police officers and that the 25% premium therefore did not represent payment in lieu of time and one-half for overtime. The contract settlement thus did not end the overtime dispute, and the agreement contained no provision for the termination of the present lawsuit.
Following a period of limited discovery, the Port Authority moved to dismiss the complaint, contending that the Supreme Court’s decision in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), exempted state employees such as the Detectives from FLSA because they performed a “traditional governmental function.” The Detectives responded by moving for partial summary judgment. The district court held a hearing on both motions. On September 29, 1982, the district court filed an opinion and order denying the Port Authority’s motion to dismiss. The court based its ruling on this court’s earlier decision in Kramer v. New Castle Area Transit Authority, 677 F.2d 308 (3d Cir.1982), cert. denied, 459 U.S. 1146, 103 S.Ct. 786, 74 L.Ed.2d 993 (1983), which held that a mass transit authority was not an integral operation in an area of a state’s “traditional governmental functions” and, therefore, that its bus drivers were not exempted from coverage under FLSA. Id. at 310. Reasoning that the Port Authority is engaged in the business of mass transit, the district court concluded that its employees, including the Detectives, are not exempt from FLSA coverage under National League of Cities.
Because the case revolved around a potentially dispositive legal question, viz., whether the Detectives are covered by FLSA, the Port Authority requested that the district court amend its September 29 order to certify the question for interlocutory appeal under 28 U.S.C. § 1292(b) (1982). The court agreed, and on May 23, 1983, it amended its September 29 order accordingly. Shortly thereafter this court granted the Port Authority’s petition for leave to file an interlocutory appeal pursuant to Fed.R.App.P. 5(a).
Prior to the date on which the case was to be heard in this court, the Supreme Court heard argument in consolidated appeals of Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016, and Donovan v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016, which presented the question whether the minimum-wage and overtime provisions of FLSA may be constitutionally applied to employees of publicly owned and operated mass transit systems. Because of the similarity between the question presented to the Supreme Court and the one presented here, we decided to hold this case under advisement pending the Court’s decision. On February 20, 1985, the Supreme Court decided the Garcia and Donovan cases by overruling National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976), and holding that no state employees should be exempted from coverage under FLSA. See Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 1020, 83 L.Ed.2d 1016 (1985). We then requested the parties to submit supplemental briefs addressing the question whether Garcia controlled this case. The parties disagreed as to the propriety of applying Garcia retroactively to serve as the governing law in this suit. This is the principal question we must now decide.
II.
Before determining whether to apply Garcia retroactively so as to govern this case, we will review the state of the law prior to Garcia to explain how and why Garcia changed such law.
In 1974, Congress amended FLSA to subject almost all persons employed by the states and their political subdivisions to its wage and hour provisions. Fair Labor Standards Amendments of 1974, Pub.L. No. 93-259, 88 Stat. 55, 59. The National League of Cities and the National Governors’ Conference challenged the amendments, contending that they unconstitutionally infringed upon states’ sovereignty. The Supreme Court agreed that the determination of state employees’ wages is an attribute of state sovereignty, National League of Cities v. Usery, 426 U.S. at 845, 96 S.Ct. at 2471, and held that Congress may not use the Commerce power to impose upon the states its choices regarding essential decisions in areas of traditional governmental functions. Id. at 855, 96 S.Ct. at 2476. The Court thus declared FLSA unconstitutional to the extent that it purported to apply to state employees performing such functions. Id. at 852, 96 S.Ct. at 2474. The National League of Cities principle was clarified in a later decision, Hodel v. Virginia Surface Mining & Recl. Assoc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), which set out a three-part test for determining when congressional regulation of state conduct exceeded its Commerce Clause power:
“First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute^] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ ”
Id. at 287-88, 101 S.Ct. at 2366 (citations omitted).
The question presented to the Court in Garcia concerned an application of the third part of the Hodel test. The Court was asked to determine whether applying FLSA to employees of the San Antonio Metropolitan Transit Authority would constitute an impairment of San Antonio’s ability to operate in an area of traditional governmental functions. Garcia, 105 S.Ct. at 1007. Although the Court in National League of Cities had identified certain types of state operations, such as police protection and fire prevention, as “traditional governmental functions,” 426 U.S. at 851, 96 S.Ct. at 2474, the Court left to the lower courts the task of determining whether other state operations were traditional.
In Garcia, rather than deciding whether a state’s mass transit operations are traditional and thus exempt from FLSA, the Court overruled National League of Cities. Garcia, 105 S.Ct. at 1021. Writing for the majority, Justice Blackmun stated that, contrary to the Court’s determination in National League of Cities, nothing in FLSA is destructive of state sovereignty or violative of the Constitution. Id. at 1020. Because the states participate in the federal system, he wrote, they can sufficiently protect themselves from federal laws that unduly infringe upon their sovereignty. Id.
We now turn to an analysis whether the law of Garcia or that of National League of Cities should be applied to the Detectives’ claim.
III.
It is a time-honored principle that courts will apply the law in effect at the time they decide a case. See United States v. The Schooner Peggy, 5 U.S. (1 Cranch) 102 (1801). As a result, a recent decision is generally applied even to a dispute that arose prior to the court’s holding. This approach reinforces the rubric advanced by Blackstone “that judges do not make but mérely ‘discover’ law.” Marino v. Bowers, 657 F.2d 1363, 1365 (3d Cir.1981) (in banc) (citing Linkletter v. Walker, 381 U.S. 618, 622-29, 85 S.Ct. 1731, 1733-38, 14 L.Ed.2d 601 (1965)). However, at times application of this retroactivity precept produces inequitable results, penalizing parties who ordered their affairs in reasonable reliance on a rule of law that was later invalidated. Such inequity is undesirable, not only because of the harm to the party involved, but also because it discourages adherence to contemporary laws. Consequently, it has been held that courts in certain circumstances appropriately may determine not to apply a decision retroactively.
The Supreme Court, in its decision in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), adopted the following three-part analysis for determining the retroactive effect of new law in civil cases:
“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 have relied, see e.g., Hanover Shoe v. United Shoe Machinery Corp., [392 U.S. 481, 496, 88 S.Ct. 2224, 20 L.Ed.2d 1231 (1968)], or by deciding an issue of first impression whose resolution was not clearly foreshadowed, see, e.g., Allen v. State Board of Elections, [393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969) ]. Second, it has been stressed that ‘we must ... weigh the merits and demerits in each ease 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.’ Linkletter v. Walker, [381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965)]. 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.’ Cipriano v. City of Houma, [395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969) ].”
Chevron, 404 U.S. at 106-07, 92 S.Ct. at 355. We therefore analyze this case under each of Chevron’s three factors to determine whether Garcia should be given retroactive effect.
In this case, the defendant reasonably relied on the law in force at the time it conducted labor negotiations, and it is unfair to make it suffer because of an unforeseen change in that law. For this reason, we conclude that the decision in Garcia v. San Antonio Metropolitan Transit Authority, — U.S. -, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985), should not be applied retroactively to this case.
A.
The first part of the Chevron analysis counsels against retroactive application of a judicial decision if that decision establishes a new principle of law, either by overruling clear past precedent on which parties may have relied or by deciding an issue of first impression, the resolution of which had not been foreshadowed. Chevron, 404 U.S. at 106, 92 S.Ct. at 355. The Port Authority claims that the Garcia case clearly overturned the prior law governing this case, and that applying Garcia now would be inequitable because it relied on the prior law in taking the position during collective bargaining that the Detectives were not entitled to time and one-half for overtime.
As the Port Authority structured its contract with the Detectives, it was not in compliance with certain aspects of FLSA. The Port Authority’s conclusion that the terms of this contract were exempt from FLSA was based on the Port Authority’s assessment of two questions of law. First, the Port Authority, an entity created by bi-state compact, is a state for the purposes of the Tenth Amendment and the National League of Cities case. Second, the Detectives were performing a traditional state function because they were engaged in the activity of police protection. In order for the 1980 contract between the Port Authority and the Detectives to be exempt from FLSA under the National League of Cities doctrine, the Port Authority must be regarded as a state and the work of the Detectives must be a police protection activity. When Garcia overruled National League of Cities, these two issues became moot because all state activities became subject to FLSA.
We observe initially that the mere fact that the Supreme Court renders a decision overruling prior law is insufficient to satisfy the first part of the Chevron test. The party seeking nonretroactive application of the new decision must have relied on the prior law. Moreover, such reliance must have been reasonable. Bronze Shields, Inc. v. N.J. Dept. of Civil Serv., 667 F.2d 1074, 1085 (3d Cir.1981), cert. denied, 458 U.S. 1122, 102 S.Ct. 2510, 73 L.Ed.2d 1384 (1982); Singer v. Flying Tiger Line Inc., 652 F.2d 1349, 1353 (9th Cir.1981).
We have concluded that the Port Authority reasonably relied on the law pri- or to Garcia in determining that the instant contract would not be subject to FLSA. Neither party has cited case law holding that an authority created by a bi-state compact was not a state for the purposes of the Tenth Amendment. Moreover, as discussed in part IV(A) below, there are analogous cases under the Eleventh Amendment treating similar entities as states. It was reasonable for the Port Authority to rely on the statement in National League of Cities that police protection is a traditional state function and to conclude that the Detectives are involved in police protection activity. The dissent insists that because the Port Authority operates mass transit systems, and the status of such functions under National League of Cities has been unclear, the Authority was at risk in relying on the protection of that decision. However, the fact that the Authority includes mass transit among its many activities does not mean that the status of all its employees was in doubt. Even states and municipalities control entrepreneurial and other nontraditional public entities, but this does not affect the status of their traditional functions such as police protection. Indeed, the command of National League of Cities is to distinguish among those employees who perform traditional functions and those who do not.
We conclude that the Garcia decision, by overturning National League of Cities, overruled clear past precedent on which the Port Authority may have relied. Thus, the first prong of the Chevron test weighs against retroactive application of the Garcia decision.
B.
The second Chevron factor (404 U.S. at 106-07, 92 S.Ct. at 355-56) requires us to consider the prior history of the new rule in question, and its purpose and effect, to determine if retroactive application will further or retard its operation.
The Port Authority contends that retroactive application of the Garcia decision is not necessary to insure future adherence to the decision. Now that the Supreme Court has ruled explicitly that no state employees are exempt from FLSA coverage, the Port Authority maintains, there is no reason to believe that states and municipalities will not comply in the future. We agree. The Garcia decision makes the law clear that, in the future, states must comply with FLSA. Regardless of how we decide this case, there is no reason to suspect that states would refuse to be bound by FLSA. This situation leaves us free to decide the instant case on its facts and equitable principles without concern for furthering or retarding the operation of Garcia. This second Chevron factor neither favors nor opposes the retroactive application of the Garcia decision.
C.
The third prong of the Chevron test requires us to consider any inequities that would result from retroactively applying the new law (404 U.S. at 107, 92 S.Ct. at 355). If retroactive application of Garcia would be inequitable, then this prong of the Chevron test would counsel against its retroactive application. As discussed above, the Port Authority apparently structured the contract with the Detectives based on the assumptions that it was a state for the purposes of National League of Cities, and that the Detectives were engaged in traditional state functions. In Part IV of this opinion, we decide that these assumptions are consistent with our interpretation of the law. In this section of the opinion, we analyze the Port Authority’s actions when the employment agreement was entered into in 1980 to determine whether it would be inequitable to retroactively apply the Garcia opinion.
We decided in Part 111(A) above that the two assumptions made by the Port Authority were reasonable. The Port Authority was faced with a situation where it had to , predict what the law was on two different issues. It made a decision and based its contract thereon. As discussed below, we think that not only was the Port Authority’s assessment of the law reasonable, it was also correct. Over four years later, the Garcia decision overruled the entire relevant body of case law. Applying Garcia retroactively would punish the Port Authority for having made a decision which we agree is based on an accurate assessment of the law at the time such decision was made. In the normal business setting, a party must take action and cannot wait indefinitely for precise judicial resolutions; courts should recognize this fact and not punish unfairly those who engage in reasonable business decision-making.
Any public or private organization must manage its revenues to most efficiently provide services at the lowest cost. When involved in labor negotiations, the organization possesses estimates of how many hours it thinks the employees will work and how much money it has to compenfsate them. Within those parameters, the organization may opt for various pay structures. For example, some employees may be paid more than others; some compensation may be deferred; or employees may get a higher base pay in return for reduced overtime pay. It appears that the last situation was present in the instant case. Reasonably believing itself to be unshackled from the restrictions of FLSA, the Port Authority offered an attractive base pay that was balanced by lower overtime compensation. The Detectives agreed to this arrangement. The retroactive application of Garcia to this situation would give the Detectives increased overtime pay without any reduction in base pay. To allow the Detectives to get a pay raise premised on retroactive application of an unforeseen decision that was made almost two years after the end of the contract period would be inequitable to the Port Authority and would constitute a windfall to the Detectives. See Morrison, Inc. v. Donovan, 700 F.2d 1374, 1376 (11th Cir.1983).
Inasmuch as the Port Authority encountered an unresolved issue of law, on which it took a reasonable position, retroactive application of Garcia to foreclose its reliance on National League of Cities is not equitable. Employing the rule of Garcia in this case is thus contrary to both the first and third prongs of the Chevron test. See Smith v. City of Pittsburgh, 764 F.2d 188, 196 (3d Cir.1985); see also Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 88, 102 S.Ct. 2858, 2880, 73 L.Ed.2d 598 (1982) (plurality opinion); id. at 92, 102 S.Ct. at 2882 (Rehnquist, J., concurring).
IV.
We now turn to the National League of Cities case and its progeny to see if the Port Authority is exempt from FLSA with respect to overtime payments to the Detectives for the period from July 9,1978, until July 3, 1983. As discussed above, the National League of Cities principle was clarified in Hodel v. West Virginia Surface Mining & Recl. Assoc., 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), where the Court said:
“First, there must be a showing that the challenged statute regulates the ‘States as States.’ Second, the federal regulation must address matters that are indisputably ‘attribute[s] of state sovereignty.’ And third, it must be apparent that the States’ compliance with the federal law would directly impair their ability ‘to structure integral operations in areas of traditional governmental functions.’ ”
Id. at 287-88, 101 S.Ct. at 2366 (citations omitted). We examine each of these three requirements and conclude that the Detectives in the instant case are not covered by FLSA for the above period.
A.
The first requirement of the Hodel test is that the challenged regulation must regulate “States as States.” We must decide whether the Port Authority, an entity created by a bi-state compact, is a state for the purposes of the Tenth Amendment. This determination requires analysis because the Port Authority possesses certain federal incidents that a typical state agency lacks. However, after considering its federal traits and comparing them with its state traits, we conclude that the Port Authority is a “state” for the purposes of the first requirement of the Hodel test.
Article I, section 10, of the United States Constitution provides in relevant part: “No State shall, without the Consent of Congress, ... enter into any Agreement or Compact with another State_” U.S. Const, art. I, § 10. When the Port Authority was created in 1921, Congress consented to it. 42 Stat. 174 (1921). Similarly, when the Port Authority produced its Comprehensive Plan, it too was consented to by Congress. 42 Stat. 822 (1922). While Congress has not been involved in the structure or management of the Port Authority since 1922, there is language in both the Compact and the Comprehensive Plan that could be interpreted to provide for continuing control by Congress. Arguably, this language could justify congressional control of the Port Authority through FLSA.
A similar issue was before the District of Columbia Circuit in Tobin v. United States, 306 F.2d 270 (D.C.Cir.), cert. denied, 371 U.S. 902, 83 S.Ct. 206, 9 L.Ed.2d 165 (1962). In that case, the District of Columbia Circuit reversed the conviction of the Executive Director of the Port Authority for contempt of Congress for failure to fully comply with a subpoena. The appellant argued that Congress lacked the power under the Compact Clause of the Constitution to “alter, amend or repeal” its consent to the Compact which was the stated purpose of the investigating subcommittee. The court reversed the conviction, finding that the appellant had adequately complied with the subpoena. The court admitted its reluctance to resolve the issue of whether Congress could “alter, amend or repeal” the Compact. We recognize the District of Columbia Circuit’s reluctance and believe that this issue need not be resolved in this opinion. Our research has revealed no case holding that Congress possesses such a power. We note.today only that the power of Congress to “alter, amend or repeal” is not currently part of the federal tradition. Since we are basing our conclusion that the Port Authority is a state for the purpose of thé Hodel test on a balancing of its state and federal attributes, we feel it is not inappropriate to leave the resolution of Congress’ power to “alter, amend or repeal” in this situation to another day.
One minor federal attribute of an interstate compact is that the compact itself becomes federal law. Texas v. New Mexico, 462 U.S. 554, 564, 103 S.Ct. 2558, 2565, 77 L.Ed.2d 1 (1983). But see Petty v. Tennessee-Missouri Comm’n, 359 U.S. 275, 285, 79 S.Ct. 785, 791, 3 L.Ed.2d 804 (1959) (Frankfurter, J., dissenting). This characterization serves not to allow Congress to sidestep the Tenth Amendment but rather to give the federal courts federal question jurisdiction (see Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 706, 66 L.Ed.2d 641 (1981)) and makes available the doctrine of preemption to prevent states from avoiding their compact obligations by citing contrary state law (see West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28, 71 S.Ct. 557, 560, 95 L.Ed. 713 (1951).
These few federal attributes notwithstanding, we have concluded that the Port Authority possesses sufficient state attributes to qualify as a state entity for the purposes of the first prong of the Hodel test. From its inception sixty-five years ago, the Port Authority has been an entity of the two compacting states. New York and New Jersey each appointed commissioners to investigate the possibility of an agreement. 1917 N.Y.Laws Ch. 426, p. 1325; 1917 N.J.Laws Ch. 130, p. 288. A joint report of the commissioners was submitted to the respective governors in 1920. The following year the states appointed commissioners to negotiate a compact. 1921 N.Y.Laws Ch. 203, p. 841; 1921 N.J. Laws Ch. 151, p. 412. The Compact was ratified by the states before being sent to Congress for consent. 1921 N.Y. Laws Ch. 154, p. 492; 1921 NJ.Laws Ch. 151, p. 412. The Comprehensive Plan was also drafted and ratified by the states before consent was given by Congress. 1922. N.Y.Laws Ch. 43, p. 61; 1922 N.J.Laws Ch. 9, p. 25. The history of the Port Authority reveals little federal involvement beyond its mere consent to the Compact and the Comprehensive Plan.
Moreover, the Port Authority is administered as a state agency. Each state appoints six commissioners who are to be residents of the respective states. N.J. Rev.Stat. § 32:1-5 (1963); N.Y.Unconsol. Laws § 6405 (McKinney 1979). There is no provision for the federal government to appoint commissioners. Since 1922, Congress has not consented to any state legislation regarding the Port Authority’s structure and functions. We view the Port Authority as an entity run as an independent state agency with little or no supervision by the federal government.
Although the issue we face today has not been resolved in the context of the Tenth Amendment and the National League of Cities case, there are cases involving the Eleventh Amendment that we find instructive. Courts have held that entities created by compact qualify as a state for the purpose of enjoying the immunity of the Eleventh Amendment. For example, in Howell v. Port of New York Authority, 34 F.Supp. 797 (D.N.J.1940), the court was faced with the argument that the Port Authority was a municipal corporation and not a state agency. The court discussed the composition of the Port Authority and its role of serving primary governmental functions of the states before concluding:
“The Port Authority, a bi-state corporation, ... is a joint or common agency of the states of New York and New Jersey. It performs governmental functions which project beyond state lines, and it is immune from suit without its consent.
34 F.Supp. at 801.
More recently, the Second Circuit was faced with the same issue involving the Palisades Interstate Park Commission, an entity formed by compact between New York and New Jersey. The court noted that any judgment would have to be paid from the state treasuries and stated: “We fail to perceive any reason why a bi-state commission cannot, when sued in the federal court, enjoy the Eleventh Amendment immunity of its signatory states.” Trotman v. Palisades Interstate Park Com’n, 557 F.2d 35, 38 (2d Cir.1977).
The Supreme Court had opportunity to address the issue in Petty v. Tennessee- Missouri Comm’n, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959), but instead assumed, arguendo, that the suit be treated one as against a state. The Court then found that the commission had waived any immunity it might have had. In the Eighth Circuit, in the same case, the court had reached the issue and found “the defendant Commission was the agency or instrument of the two States and not an entity separate and apart from the States.” Petty v. Tennessee-Missouri Bridge Commission, 254 F.2d 857 (8th Cir.1958), rev’d on other grounds, 359 U.S. 275, 79 S.Ct. 785, 3 L.Ed.2d 804 (1959).
These Eleventh Amendment cases demonstrate that the courts are willing to treat entities created by interstate compacts as states. We agree that in the analogous situation presented in this case that the Port Authority, an entity created by an interstate compact, should be treated as a state for the purposes of the National League of Cities doctrine.
B.
The second requirement of the Hodel test is that the federal regulation must address matters that are indisputably attributes of state sovereignty. 452 U.S. at 287-88, 101 S.Ct. at 2365-66. The attribute in question in the instant case is overtime wages paid to employees. The National League of Cities case makes clear that overtime wages are an attribute of state sovereignty. The Court concluded: “Our examination of the effect of [applying FLSA] to the States and their political subdivisions, satisfies us that both the minimum wage and the maximum hour [] provisions will impermissibly interfere with the integral governmental functions of these bodies.” 426 U.S. at 851, 96 S.Ct. at 2474. We conclude that the second requirement of the Hodel test is met.
C.
The third requirement of the Hodel test is that it must be apparent that the states’ compliance with the federal law would directly impair their ability to structure integral operations in areas of traditional governmental functions. 452 U.S. at 288, 101 S.Ct. at 2366. We conclude that the Detectives are engaged in a traditional governmental function.
In National League of Cities, the Court stated:
“[The application of FLSA to the States will] significantly alter or displace the States’ abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services. Indeed, it is functions such as these which govern-mente are created to provide, services such as these which the States have traditionally afforded their citizens.”
426 U.S. at 851, 96 S.Ct. at 2474 (emphasis added) (footnote omitted). Thus, we are instructed that police protection is a traditional governmental function. If the Detectives are performing a police function, then the third requirement of the Hodel test (452 U.S. at 288, 101 S.Ct. at 2366) is satisfied.
Notwithstanding the fact that the Detectives are not uniformed patrolmen, we believe that they are clearly involved in the activity of police protection. The detective who appears at the scene of the crime, interviews witnesses, and pursues suspects is at the very heart of our system of police protection. Webster’s New Collegiate Dictionary (p. 882,1979 ed.) defines “police” to include “the department of government charged with prevention, detection and prosecution of public nuisance and crimes.” This language indicates a scope encompassing more than just a patrolman — it includes the people investigating reported crimes. Moreover, as members of the Port Authority police force, the Detectives “have all the powers conferred by law on police officers or constables in the enforcement of laws of this state and the apprehension of violators thereof.” N.J.Stat.Ann. § 32:2-25 (1963). Accord, N.Y.Crim.Proc.L. § 1.20, subdivision 34(k) (McKinney 1981); State v. Cohen, 73 N.J. 331, 337, 375 A.2d 259, 262 (West 1977). See also Grand Rapids & I. Ry. Co. v. King, 41 Ind.App. 701, 707, 83 N.E. 778, 780 (1908) (a detective is a “policeman whose business is to detect rogues by adroitly investigating their haunts and habits”) (citing Webster’s Dict.); Com., Hum. Rela. Com’n v. Beaver Falls City Council, 469 Pa. 522, 527, 366 A.2d 911, 914 (1976). For these reasons, we conclude that plaintiffs as detectives are engaged in police protection which is a traditional governmental function for the purposes of the third requirement of the Hodel test.
Y.
In light of our decision that all three requirements of the Hodel test are satisfied, we hold that the application of the overtime wage provisions of the Fair Labor Standards Act to the plaintiff-Detectives during the period from 1978 to 1983 would be a violation of the doctrine announced by the Supreme Court in National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1975). We will reverse the district court’s denial of the Port Authority’s motion to dismiss and will remand the case to the district court with directions to dismiss this civil action (No. 80-03307, D.N.J.).
. According to the Port Authority’s job specification 2601, it is the duty of the Detectives to perform confidential investigations "for the purpose of maintaining internal security at Port Authority facilities and preventing unlawful conduct." Job specification 2601 identifies the major duties of the Detectives to include: establishing factual evidence of conduct in violation of federal, state, and municipal laws, as well as Port Authority regulations; maintaining surveillance to prevent criminal activity at Port Authority facilities; investigating complaints against fellow members of the Port Authority police; conducting character investigations of Port Authority employees; and gathering evidence concerning vehicular accidents and aircraft emergencies involving Port Authority facilities (App. at 33a-34a).
. The Port Authority is authorized and directed to plan, develop, and operate facilities of commerce that promote the economy of the Port District, which comprises an area of approximately 1,500 square miles in both states, centering about New York harbor. Specifically, the Port Authority is authorized to purchase, construct, lease, and operate any terminal or transportation facility and, as an incident thereto, to own or lease real or personal property and to borrow money secured by such property. See N.Y.Unconsol.Laws § 6407 (McKinney 1979); NJ.Stat.Ann. § 32:1-7 (West 1963). Examples of some of the transportation facilities operated by the Port Authority or one of its subsidiaries include: the Goethals, Bayonne, and George Washington Bridges; the Holland and Lincoln Tunnels; the Newark, La Guardia, and JFK International Airports; the Hoboken, Elizabeth, and Red Hook Marine Terminals; the World Trade Center; the Bathgate Industrial Park; and the Port Authority Trans-Hudson (PATH) commuter railroad. See The Port Authority of New York and New Jersey 1981 Annual Report 1-4 (1982). See generally Frankfurter & Landis, Compact Clause of the Constitution — A Study in Interstate Adjustments, 34 Yale L.J. 685, 697-98, 746-47 (1925) (discussion of history of Port Authority).
.FLSA provides that no employer shall employ any of its employees for a workweek longer than forty hours unless such employees receive compensation of at least one and one-half times the regular hourly rate for those hours worked In excess of forty hours. 29 U.S.C. § 207(a)(1). FLSA defines "employer" to include a public agency, 29 U.S.C. § 203(d). A "public agency” is defined to include "any agency of ... a State, or a political subdivision of a State; or any interstate governmental agency.” 29 U.S.C. § 203(x).
. On April 3, 1984, the Port Authority and the Port Authority Detectives Endowment Association executed a new collective bargaining agreement which took effect retroactively as of July 3, 1983. Under the terms of this new agreement, the Detectives are paid time and one-half for overtime if they work more than a prescribed number of hours per week.
. The Detectives subsequently moved to proceed under the class action procedures of Fed.R. Civ.P. 23. The district court granted their motion with respect to the claim that the Port Authority violated its own regulations, but ordered them to pursue their FLSA claim under the permissive joinder provisions of that statute, 29 U.S.C. § 216(b). In accordance with these provisions, twenty-five police detectives became plaintiffs by opting to join in the FLSA action against the Port Authority.
. On November 15, 1982, the district court amended its September 29 order to deny Detectives’ motion for partial summary judgment. The court concluded that there existed a material issue of fact as to whether the Detectives had actually worked overtime as defined by FLSA.
. The May 23, 1983, district court order included the following language:
“In the opinion of the Court, this Order involves a controlling question of law, whether the provisions of the Fair Labor Standards Act relating to wage and hour are applicable to the class of employees consisting of police detectives represented by the plaintiffs, and that an immediate appeal from the order will materially advance the ultimate termination of the litigation since a determination would finally resolve the legal issue relating to the applicability of the statute prior to the need for a lengthy proceeding establishing the damages, if any, due each member of the class should the statute be found to have been violated.”
. This court has cited The Schooner Peggy recently in the following cases: Perez v. Dana Corp., Parish Frame Div., 718 F.2d 581, 584 (3d Cir.1983); DiSabatino v. National R.R. Passenger Corp., 724 F.2d 394, 396 (3d Cir.1984); Williams v. Tri-County Growers, Inc., 747 F.2d 121, 124 (3d Cir.1984); Black United Fund of N.J., Inc. v. Kean, 763 F.2d 156, 160 (3d Cir.1985).
. The Court in National League of Cities stated:
“For even if we accept appellee's assessments concerning the impact of the [FLSA] amendments, their application will nonetheless significantly alter or displace the States' abilities to structure employer-employee relationships in such areas as fire prevention, police protection, sanitation, public health, and parks and recreation. These activities are typical of those performed by state and local governments in discharging their dual functions of administering the public law and furnishing public services.”
426 U.S. at 851, 96 S.Ct. at 2474.
The Administrator of the Wage and Hour Division of the Department of Labor promulgated several regulations on December 21, 1979, which, in relevant part, restated and adopted the quoted language from National League of Cities. See 29 C.F.R. §§ 775.2(a), 775.4(a) (1985).
. See discussion below in Part IV(C).
. A full discussion of the merits of these two issues follows in Part IV of this opinion. The discussion is relevant both at this point and with respect to the first prong of the Chevron test. However, to avoid being repetitive, we do not address these issues until we reach the merits of the case. Our discussion here relates only to the possible inequities of applying the Garcia decision retroactively.
. The Compact as approved by Congress provides:
"ART. 18. The port authority is hereby authorized to make suitable rules and regulations not inconsistent with the Constitution of the United States or of either State, and subject to the exercise of the power of Congress, for the improvement of the conduct of navigation and commerce, which, when concurred in or authorized by the legislatures of both States, shall be binding and effective upon all persons and corporations affected thereby.”
42 Stat. 178 (1921). The Compact also states:
"... That the consent of Congress is hereby given to the said agreement, and to each and every part and article thereof: Provided, That nothing therein contained shall be construed as impairing or in any manner affecting any right or jurisdiction of the United States in and over the region which forms the subject of said agreement.
"SEC. 2. That the right to alter, amend, or repeal this resolution is hereby expressly reserved.”
42 Stat. 180 (1921).
The Comprehensive Plan approved by Congress states:
"... That, subject always to the approval of the officers and agents of the United States as required by Acts of Congress touching the jurisdiction and control of the United States over the matters, or any part thereof, covered by this resolution, the consent of Congress is hereby given_”
42 Stat. 822 (1922). The Comprehensive Plan further states:
“And the consent of Congress is hereby given ...: Provided, That nothing herein contained shall be construed as impairing or in any manner affecting any right or jurisdiction of the United States in and over the region which forms the subject of said agreement: Provided further, That no bridges, tunnels, or other structures shall be built across, under, or in any of the waters of the United States, and no change shall be made in the navigable capacity or condition of any such waters, until the plans therefor have been approved by the Chief of Engineers and the Secretary of War.
“SEC. 2. That the right to alter, amend, or repeal this resolution is hereby expressly reserved.”
42 Stat. 826 (1922).
. The phrase “alter, amend or repeal” comes from the 1921 Compact and the 1922 Comprehensive Plan. 42 Stat. 178 (1921); 42 Stat. 822 (1922). See note 12.
. The court, after stating that such power is not conferred by the Compact Clause, expressed reluctance to find such an implied power:
"We have no way of knowing what ramifications would result from a holding that Congress has the implied constitutional power ‘to alter, amend or repeal' its consent to an interstate compact. Certainly, in view of the number and variety of interstate compacts in effect today, such a holding would stir up an air of uncertainty in those areas of our national life presently affected by the existence of these compacts. No doubt the suspicion of even potential impermanency would be damaging to the very concept of interstate compacts."
Tobin v. United States, 306 F.2d at 273.
. In Riverside Irr. Dist. v. Andrews, 568 F.Supp. 583 (D.Colo.1983), aff'd, 758 F.2d 508 (10th Cir.1985), the court stated in dicta that "congress cannot unilaterally reserve the right to amend or repeal an interstate compact.” 568 F.Supp. at 589. The only authority put forward for this proposition was the Tobin case. The court held merely that a compact is not immune from subsequent federal legislation that affects it. The issue before the court was not whether compacts should be similarly treated as the states but rather whether compacts should be afforded a special status different than that to which the states were entitled. The court rejected the claim and found the legislation to be enforceable against the compact.
.We note that the Supreme Court held that certain Port Authority employees were not state employees in Helvering v. Gerhardt, 304 U.S. 405, 423, 58 S.Ct. 969, 976, 82 L.Ed. 1427 (1938), in a case involving whether the federal income taxation of salaries of state employees contravened the Tenth Amendment. This doctrine was abandoned in New York v. United States, 326 U.S. 572, 66 S.Ct. 310, 90 L.Ed. 326 (1946). The decision in Helvering was based on a conclusion not that the Port Authority failed to constitute a state entity but that the Port Authority was a state-owned corporation rather than the state itself or a political subdivision. 304 U.S. at 423, 58 S.Ct. at 976. Though the Solicitor General contended that the Port Authority was not a state because it was not created by the states alone, the Court did not address this contention. See 304 U.S. at 429, 58 S.Ct. at 979 (Butler, J., dissenting).
. Pursuant to the Comprehensive Plan, approval for bridges and tunnels has been granted by the War Department. 42 Stat. 822, 826 (1922). This review was apparently based on the federal concern for supervising navigation.
. The Eleventh Amendment provides:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
U.S. Const., amend. XI.
.The Port Authority was originally called the “Port of New York Authority." As of July 1, 1972, the name was changed to the "Port Authority of New York and New Jersey.” NJ.Rev. Stat. § 32:1-4 (West Supp.1985); N.Y.Unconsol. Laws § 6404 (McKinney 1979).
. The Court was split into three groups of three justices. The three dissenting justices could find no waiver of immunity. The three concurring justices joined with the opinion of the Court but clarified that the Court had not reached the issue of whether bi-state commissions can be immunized under the Eleventh Amendment.
. The Supreme Court rejected a per se rule in Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-01, 99 S.Ct. 1171, 1176-77, 59 L.Ed.2d 401 (1979), stating that each compact must be considered based on its own attributes to determine if it is entitled to Eleventh Amendment immunity. This reasoning is applicable to Tenth Amendment cases too. We do not today hold that all entities created by interstate compacts are states for the purpose of National League of Cities. Our holding is limited to finding that the Port Authority is a state for the purposes of resolving the instant case.
. See also Derian, Defining the 'State as State’: Is a Nonprofit Corporation Under Contract with a State to Perform an Integral Government Function Entitled to Immunity from the Fair Labor Standards Act under the National League of Cities?, 10 Hasting Const.L.Q. 877, 913 (1983) ("Simply stated, an entity which is government owned, managed by directors appointed by government officials, and statutorily designated as a public corporation should be presumed to be governmental”) (footnotes omitted).
. "Maximum hour” as used in FLSA and National League of Cities is essentially synonymous with overtime wages.
. We need not decide whether all Port Authority employees are performing traditional governmental functions. The issue before us is limited to the plaintiffs who are detectives. We heed the advice of Judge Adams:
"In resolving the issues raised, we must be mindful that our judicial power extends only to deciding the specific case presented to us. While attempting to maintain the essential role of federal courts both in preserving a healthy relationship between the nation and the states and in protecting constitutional rights, the federal judiciary must be alert to the dangers inherent in deciding cases more broadly than required by the precise issues presented. The goal must be reasoned, principled results based solely upon grounds necessary to the disposition of the controversy.”
Conover v. Montemuro, 477 F.2d 1073, 1083-84 (3d Cir.1973) (Adams, J., concurring). See also 477 F.2d at 1093.
. We decide only the issue presented to us today. We express no opinion as to whether other officials, such as prosecutors, are engaged in the police protection. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
30
] | songer_state |
LANOLIN PLUS COSMETICS, Inc. v. MARZALL, Commissioner of Patents, et al.
No. 11207.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 26, 1952.
Decided April 17, 1952.
James R. McKnight, Chicago, Ill., of the Bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Emory L. Groff, Washington, D. C., was on the brief, for appellant.
Horst von Maltitz, New York City, of the Bar of the Court of Appeals of New York, pro hac vice, by special leave of court, with whom Alfons B. Landa and Raymond C. Cushwa, Washington, D. G., were on the brief, for appellee Botany Mills, Inc.
E. L. Reynolds, Sol., United States Patent Office, Washington, D. C., entered an appearance for appellee John A. Marzall, Commissioner of Patents.
Before EDGERTON, WILBUR K. MILLER, and PRETTYMAN, Circuit Judges.
PER CURIAM.
Appellant sued under R.S. § 4915, 35 U.S.C.A. § 63, to register Lanolin Plus as a trade mark for soap and cosmetics. The Patent Office and the District Court held that as applied to such articles the mark is “descriptive” and therefore not entitled to registration under the Trade Mark Act of 1905, § 5, 33 Stat. 725-726, 15 U.S.C.A. § 85(b). Appellant appears to be right in its contention that a number of similar trade marks which the Patent Office has registered are equally descriptive. But the fact that the Office has erred in those instances does not mean it should err in this one.
Affirmed.
. The Patent Office proceeding was begun before July 5, 1947. Section 2e of the Trade Mark Act of 1946, 60 Stat. 429, 15 U.S.C.A. § 1052(e), is not applicable to “any suit, proceeding, or appeal then pending.” 60 Stat. 444. Both the old Act and the new use the word “descriptive”. | 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. | 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. | [] | [
1
] | songer_r_fed |
LOUDERMILK et al. v. FIDELITY & CASUALTY CO. OF NEW YORK.
No. 14633.
United States Court of Appeals Fifth Circuit.
Nov. 10, 1953.
Rehearing Denied Dec. 22, 1953.
G. Seals Aiken, Atlanta, Ga., for appellants.
. H. D. Russell, T. Reese Watkins, John B. Harris, Jr., Harris, Russell, Weaver & Watkins, Macon, Ga., of counsel, for appellee.
Before HUTCHESON, Chief Judge, and BORAH and RUSSELL, Circuit Judges.
HUTCHESON, Chief Judge.
When this cause was here before it was on the appeal of defendants Louder-milk and Brooks, from a summary judgment in plaintiff’s favor. Saying:
“This is not the kind of case that can be settled on summary judgment. It is peculiarly the kind of case where the triers of fact whose business it is not only to hear what men say but to search for and find the roots from which the sayings spring, should be afforded full opportunity to determine the truth and integrity of the case.”
We rejected the contention respectively of appellants and appellee that the case admitted of determination as matter of law. We then went on to say,
“The judgment is reversed and the cause is remanded for a full trial on the issues tendered, including a determination of the single claim of fact tendered in the plaintiff’s petition, whether or not in fact there was an acceptance of the policy, or whether, if there was no acceptance, this was brought about by collusion with the insurance company in an attempt to defraud the plaintiffs in the damage suit, or, if not in collusion with the plaintiff, as a result of the Tingles being overreached by the insurance company and its agents.”
That decision and the mandate putting it into effect was and is the law of the case.
This time the same defendants are appealing from a jury verdict in plaintiff’s favor rendered after a full trial, conducted painstakingly and precisely in accordance with the court’s decision and mandate and upon evidence not substantially different from that which we held on the former appeal forbade the entry of judgment as matter of- law and required a jury verdict.
It will not do then, as appellants endeavor to do, to urge upon us that the case should not have been submitted to the jury for their verdict but should have been withdrawn from their consideration by the direction of a verdict in defendants’ favor. We, therefore, reject, as presenting nothing of substance for our consideration, appellants’ points one, two, eleven, twelve, and nineteen, on which they rely for reversal and rendition, that the court erred in not directing a verdict in their favor.
We turn then to appellants’ claims of procedural error to determine whether, considered severally and as a whole, they make a showing of error requiring reversal of the judgment and remand of the cause for trial anew.
Testing each of these claims carefully for error by an examination of the record as a whole, we are of the clear opinion, for the reasons hereafter briefly stated, that, taken singly or as a whole, they make no showing of reversible error. On the contrary, we think the record makes crystal clear that the district judge with scrupulous fidelity to the teachings of our decision and the authority of our mandate, and with commendable patience, acumen and restraint, conducted the trial throughout with fairness and correctness and with an eye single to conducting it as near as might be in accordance with the law as our opinion has declared it and our mandate has made binding upon him.
In the light of the showing in this regard made by the record, including particularly the elaborate and detailed instructions given in the charge, most, if not all, of the complaints leveled at the conduct of the trial appear to tithe mint, anise and cumin, neglecting the weightier matters of the law. A specific word or two about these claims of error will, we think, make this clear.
Four of the claimed errors, appellants’ brief points five, six, seven, eight and nine, deal with charges, two requested by the plaintiff and given by the district judge, and three requested by defendants and refused. As to those requested by defendants and refused, it is sufficient to say that, assuming without deciding that they were correct charges, the court’s general charge fully, fairly and faithfully presented all the issues in the case, and the failure to give the requested charges could not have been prejudicial error. As to those requested by the plaintiff and given, it is quite clear that they were correct statements of law and that charges of the kind given were called for on the record in the case.
With respect to the procedural matters which appellants labor the most, appellants’ brief points fourteen, sixteen and seventeen, the action of the court in confining the trial of the case to the issues germane to it by excluding from it evidence as to matters which were properly triable only in the damage suits which appellant had brought against the Tingles, it is sufficient to say that there was no error in any of the complained of actions and rulings. Indeed, they were in exact accord with the opinion of this court in Royal Indemnity v. Rex-ford, 5 Cir., 197 F.2d 83, in which a judgment in a case similar to this one was reversed because the court had admitted evidence relevant only in the damage suit. Moreover the record shows plainly that defendants’ counsel expressly agreed with the substance of the ruling of the district judge that evidence of the kind he now makes the subject of his claim of error was not admissible or proper.
As to appellants’ complaints that plaintiff’s counsel, in his opening statement, was allowed to make improper and prejudicial statements, and the defendants’ counsel, in their opening statement, were unduly limited, an examination of the record wholly refutes this claim.
As to the statement of the counsel for the plaintiff, no objection whatever was made to it, and as to the action of the court when objection was made in the course of the statement of defendants’ counsel, nothing could be farther from the real truth of the matter than the claim that there was undue interference with defendants’ counsel and undue prejudice visited on him by the court’s action.
The same lack of merit marks the claims of error dealt with in points thirteen, fifteen, and eighteen; point thirteen, the action of the court in confining defendants’ examination of witnesses to issues which were within the scope of this trial as distinguished from the trial of the damage suit; point fifteen, the court’s refusal to exclude Miss Tingle’s statement that in her opinion the Tingles were not at fault for the accident; and point eighteen, directed at the remark of counsel for appellants made during examination of one of defendants’ witnesses upon the issue of the amount of the fee that should be allowed for defending the action.
None of these objections, in short, go to matters of serious moment. Under the rule controlling this court in hearing appeals, all of these claims if not frivolous, are too unsubstantial to form the basis of a reversal of a judgment in a cause carefully tried as this one was under the' directions of a mandate issued on the former appeal.
In Maryland Casualty Co. v. Reid, 5 Cir., 76 F.2d 30, 33, this court, thus stated the rule controlling here:
“This court, as to law cases, is a court of error. We do not retry the case. We review the record made in it for reversible error, error by the judge in conducting or failing to conduct the trial, which has, by permitting the case to get out of bounds, prejudiced the just result. In this review we are guided by [Sec. 391, Title 28 U.S.C.A.] We-do not reverse cases for insubstantial error. Abstract inerrancy is. hardly possible in the trial of a case' in the federal court; it is never an essential to a valid trial there. Jennings v. U. S., 5 Cir., 73 F.2d 470; Community Natural Gas Co. v. Henley, 5 Cir., 54 F.2d 59. Too much is-said and done about too little in the heat and hurry of a trial, for it all to. be important. Things of no moment, in their transpiring are not made momentous merely by making record of them. Therefore, though the District Judge is an administrator primarily charged with the just conduct of the trial, he may not ordinarily be put in error merely because an aberration from trial rules. has occurred. It is the duty of counsel by objection to call such threatened or actual departure to the judge’s attention, and invoke his corrective action, and, if overruled, to make it appear that prejudice has resulted.”
No reversible error having been made to appear, the judgment is
Affirmed.
. Loudermilk v. Fidelity & Casualty Co., 5 Cir., 199 F.2d 561, 565.
. This section provides:
“All United States courts shall have power to grant new trials, in cases where there has been a trial by jury, for reasons for which new trials have usually been granted in the courts of law. On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of' the entire record before the court, without regard to technical errors, defects,, or exceptions which do not affect the substantial rights of the parties.” [Now Rule 61, Federal Rules of Civil Procedure, 28 U.S.C.A.] Cf. Gillis v. Keystone Mutual Casualty Co., 6 Cir., 172: F.2d 826, at page 830, 11 A.L.R.2d 455. | 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. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genresp1 |
ROGAN v. STARR PIANO CO., PACIFIC DIVISION.
No. 10379.
Circuit Court of Appeals, Ninth Circuit.
Dec. 27, 1943.
Samuel O. Clark, Jr., Asst. Atty. Gen., Sewall Key, A. F. Prescott, Homer R. Miller, and Fred Youngman, Sp. Assts. to the Atty. Gen., and Charles PI. Carr, U. S. Atty., and E. H. Mitchell and Edward J. O’Connor, Asst. U. S. Attys., all of Los Angeles, Cal., for appellant.
Claude I. Parker and John B. Milliken, both of Los Angeles, Cal., for appellee.
Before WILBUR, MATHEWS, and STEPHENS, Circuit Judges.
Section 361 provides:
“Any two or more corporations may be (a) merged into one of such constituent corporations, which is herein designated as ‘the surviving corporation,’ or (b) consolidated into a new corporation, which is herein designated as ‘the consolidated corporation,’ as follows:
“(1) The board of directors of each corporation by resolution shall approve an agreement which shall set forth the terms and conditions of merger or consolidation, and the mode of carrying the same into effect, as well as the manner and basis of converting the shares of the constituent corporations into the shares of the consolidated or surviving corporation. The agreement also may provide for the distribution of cash, property, or securities, in whole or in part, in lieu of shares, to shareholders of the constituent corporations or any class of them; * * *
“(2) The agreement shall be signed by the president or a vice-president and the secretary or an assistant secretary of each corporation, and acknowledged by the officers executing the same on behalf of their respective corporations.
“(3) The agreement must be approved by the vote of the holders of not less than two-thirds of the issued and outstanding shares of each class, even though their right to vote be otherwise restricted or denied, of each of the constituent corporations, * * *. After such approval by the directors and shareholders has been given, the president or a vice-president and the secretary or an assistant secretary of each corporation shall execute a certificate, which shall be verified by their oath
“(5) * * * The agreement so approved, executed and acknowledged and the certificates of its approval shall be filed with the secretary of state, and shall thereupon become effective, and the several parties thereto shall be one corporation. * * *
“(7) * * * Upon the merger or consolidation, as provided herein, the separate existence of the constituent corporations shall cease, except that of the surviving corporation in case of merger, and the consolidated or surviving corporation shall succeed, without other transfer, to all the rights and property of each of the constituent corporations, and shall be subject to all the debts, and liabilities of each, in the same manner as if the surviving or consolidated corporation had itself incurred them.”
MATHEWS, Circuit Judge.
Two California corporations — appellee and Gennett Realty Company, hereafter called Gennett — were merged in 1934 under and pursuant to § 361 of the California Civil Code. Thereupon Gennett’s separate existence ceased, and appellee, the surviving corporation, succeeded to all of Gen-nett’s rights and property and became subject to all of Gennett’s debts and liabilities. In appellee’s income and excess-profits tax return for 1934, no gain or loss was shown to have resulted from the merger. The Commissioner of Internal Revenue determined that, upon receipt of Gennett’s property as a result of the merger, appellee realized gain, and that such gain was recognizable for income and excess-profits tax purposes. He accordingly determined and assessed a deficiency in respect of appellee’s income and excess-profits taxes for 1934. Appellee paid the assessed amount ($73,-557.08) on March 3, 1938, to Nat Rogan, the then Collector of Internal Revenue for the Sixth Collection District of California, and, its claim for refund having been denied, brought an action against Rogan to recover said amount as having been illegally assessed and collected. Rogan answered, jury trial was waived, the facts were stipulated, the case was submitted, and judgment was entered in appellee’s favor. From that judgment Rogan took this appeal.
The parties stipulated (1) that “the deficiency in Federal income and excess-profits taxes paid by plaintiff [appellee] on March 3, 1938, was occasioned by the Commissioner of Internal Revenue’s determination that gain or loss was recognizable for Federal income and excess-profits tax purposes upon receipt by plaintiff of [Gennett’s] property as a result of the merger (2) that if that determination was incorrect, “plaintiff is entitled to recover as prayed for;” and (3) that if that determination was correct, “the said deficiency was correctly computed * * * and plaintiff is not entitled to recovery in this action.” The facts are these:
On February 1, 1921, Clara Howes Mac-key leased to appellee for a term of 99 years certain real property in Los Angeles, California. On March 1, 1921, Arthur N. Pelton leased to appellee for a term of 99 years other real property in Los Angeles. In May, 1922, appellee caused Gennett to be organized for the purpose of holding legal title to the leases. On July 17, 1922, appellee transferred the leases to Gennett in exchange for all of Gennett’s capital stock. At all times during Gennett’s existence appellee owned all of Gennett’s outstanding stock. On August 1, 1922, Gennett subleased the Mackey and Pelton properties to appellee for a term of 15 years ending July 21, 1937. In 1922 Gennett issued bonds in the sum of $200,000 and, with the proceeds thereof, constructed a building on the Pelton property. On July 1, 1923, appellee and Gennett subleased the Pelton property to Bullock’s, a California corporation, for a term of 25 years ending June 30, 1948. On May 1, 1924, that term was extended to April 30, 1984. Also, on May 1, 1924, appellee and Gennett subleased the Mackey property to Bullock’s for a term of 60 years ending April 30, 1984.
Gennett’s officers and directors were employees of appellee. Gennett had no office separate and apart from appellee, had no assets except the leases, had no bank account and had no employees except its officers and directors. Its bookkeeping was done by an employee of appellee. Its debts were paid by appellee, and such payments were credited to appellee on Gennett’s books. All rentals accruing to Gennett under the subleases were collected by a bank as trustee for Gennett and were applied by the bank to the retirement of Gennett’s bonds and to the payment of interest thereon and taxes on the leased properties. For the years 1922, 192,3 and 1924, appellee and Gennett filed separate income tax returns. For the years 1925 to 1933, inclusive, they filed consolidated returns. In 1934, prior to the merger, appellee transferred certain accounts to Gennett, to be collected in the name of Gennett. Some of the accounts were so collected. The others were transferred back to appellee. Gennett carried on no activities except as hereinabove set forth.
The merger was effected by an agreement executed, approved and filed in conformity with § 361, supra. The agreement was executed and approved on July 31, 1934. It was filed and became effective on August 1, 1934. It provided, in substance, that appellee should pay all of Gennett’s debts and surrender for cancellation all of Gennett’s stock, and that all of Gennett’s property should be distributed to appellee. These provisions were carried out. As a result, Gennett was completely liquidated.
Thus the property distributed to appellee was an amount distributed in complete liquidation of a corporation. Section 115(c) of the Revenue Act of 1934, 26 U.S.C.A. Int.Rev.Acts, page 703, provides that amounts so distributed shall be treated as in full payment in exchange for the stock, and that the gain or loss to the distributee resulting from such exchange shall be determined under § 111, but shall be recognized only to the extent provided in § 112, 26 U.S.C.A. Int.Rev.Acts, pages 691, 692. Here the Commissioner determined that gain had resulted to the distributee (appellee) and determined (computed) the amount of such gain under § 111. By the stipulation referred to above, the correctness of that computation was conceded. The question here is, To what extent was the gain resulting to appellee recognizable under § 112? Section 112 provides that, with specified exceptions, the entire amount of such gain shall be recognized. The exceptions claimed to be applicable here are those specified in paragraphs (3) and (4) of § 112(b), reading as follows:
“(3) Stock for stock on reorganization, No gain or loss shall be recognized if stock or securities in a corporation a party to a reorganization are, in pursuance of the plan of reorganization, exchanged solely for stock or securities in such corporation or in another corporation a party to the reorganization.
“(4) Same — Gain of corporation. No gain or loss shall be recognized if a corporation a party to a reorganization exchanges property, in pursuance of the plan of reorganization, solely for stock or securities in another corporation a party to the reorganization.”
In this case there was a reorganization (a statutory merger) the parties to which were corporations (appellee and Gen-nett). In pursuance of the plan of reorganization, stock in Gennett was exchanged by appellee for property of Gennett. There was, however, no exchange of stock or securities for stock or securities. Therefore paragraph (3) is inapplicable. Neither corporation exchanged any property for stock or securities in another corporation. Therefore paragraph (4) is inapplicable. We conclude that the entire amount of the gain resulting to appellee was recognizable under § 112.
Appellee says that, if the merger agreement had. provided that appellee should issue to itself shares of stock in itself in exchange for Gennett’s property, such exchange would fall within paragraph (3) and no gain would be recognized. Whether that is true or not need not be considered, for the merger agreement did not so provide.
Appellee says that, having resulted from a statutory merger, its acquisition of Gen-nett’s property was an acquisition by operation of law. Whether that is true or not need not be considered, for, even if true, it does not alter the fact that recognizable gain resulted to appellee upon such acquisition.
Appellee contends that there was ■ not and could not be (1) a merger of Gennett into appellee and (2) a liquidation of Gen-nett. We reject this contention and hold that there could be and was both a merger and a liquidation.
Appellee asks us to disregard the fact that, prior to the merger, appellee and Gennett were separate entities. The trial court thought that this should be done. We do not think so. The following language, used in New Colonial Ice Co. v. Helvering, 292 U.S. 435, 442, 54 S.Ct. 788, 791, 78 L.Ed. 1348, is applicable here:
“As a general rule a corporation and its stockholders are deemed separate entities and this is true in respect of tax problems. Of course, the rule is subject to the qualification that the separate identity may be disregarded in exceptional situations where it otherwise would present an obstacle to the due protection or enforcement of public or private rights. But in this case we find no exceptional situation — nothing taking it out of the general rule. On the contrary, we think it a typical case for the application of that rule.”
Judgment reversed.
California Civil Code, § 361(7), supra.
Subsequently, Rogan having died, his executrix was substituted as appellant.
Cf. Burnet v. Riggs National Bank, 4 Cir., 57 F.2d 980; France Co. v. Commissioner, 6 Cir., 88 F.2d 917; Cerro De Pasco Copper Co. v. United States, 33 F.Supp. 633, 82 Ct.Cl. 442; Trenton Oil Co. v. United States, D.C.E.D. Mich., 41 F.Supp. 887, affirmed in 6 Cir., 122 F.2d 1023; Frelmort Realty Corp. v. Commissioner, 29 B.T.A. 181; Gutbro Holding Co. v. Commissioner, 47 B.T.A. 374.
Title 1 (§§ 1-322) of the Revenue Act of 1934, .20 U.S.C.A. Int.Rev.Acts, pagos 664-757, relates to income taxes. Section 702, 26 U.S.C.A. Int.Rev.Acts, page 789, relates to excess-profits taxes. It provides that all provisions of Title 1 except those of § 133 , 26 U.S.C.A. Int. Rev.Acts, page 713, shall be applicable in resj)ect of excess-profits taxes, insofar as not inconsistent with § 702.
Section 112(g) defines “reorganization” as including a statutory merger or consolidation.
See footnote 6.
Gutbro Holding Go. v. Commissioner, supra.
Burnet v. Riggs National Bank, supra; Frelmort- Realty Gorp. v. Commissioner, supra; Gutbro Holding Go. v. Commissioner, supra.
Thus, in effect, we are asked to say that appellee and Gennett were at all times — before as well as after the merger —a single corporation; that Gennett’s property was and always had been appellee’s property; that the merger was a useless and meaningless form; and that appellee acquired nothing thereby.
Citing Pullman’s Palace Car Co. v. Missouri Pacific R. Co., 115 U.S. 587, 6 S.Ct. 194, 29 L.Ed. 499; Donnell v. Herring-Hall-Marvin Safe Co., 208 U.S. 267, 28 S.Ct. 288, 52 L.Ed. 481; United States v. Delaware, L. & W. R. Co., 238 U.S. 516, 35 S.Ct. 873, 59 L.Ed. 1438; Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Klein v. Board of Supervisors, 282 U.S. 19, 51 S.Ct. 15, 75 L.Ed. 140, 73 A.L.R. 679.
Citing Klein v. Board of Supervisors, supra; Dalton v. Bowers, 287 U.S. 404, 53 S.Ct. 205, 77 L.Ed. 389; Burnet v. Clark, 287 U.S. 410, 53 S.Ct. 207, 77 L.Ed. 397; Burnet v. Commonwealth Improvement Co., 287 U.S. 415, 53 S.Ct. 198, 77 L.Ed. 399.
Citing United States v. Lehigh Valley R. Co., 220 U.S. 257, 31 S.Ct. 387, 55 L.Ed. 458; Southern Pacific Co. v. Lowe, 247 U.S. 330, 38 S.Ct. 540, 62 L.Ed. 1142; Chicago, M. & St. P. R. Co. v. Minneapolis Civic & Commerce Ass’n, 247 U.S. 490, 38 S.Ct. 553, 62 L.Ed. 1229; Gulf Oil Corp. v. Lewellyn, 248 U.S. 71, 39 S.Ct. 35, 63 L.Ed. 133.
See, also, United States v. Phellis, 257 U.S. 156, 172-175, 42 S.Ct. 63, 66 L.Ed. 180; Deputy v. DuPont, 308 U.S. 488, 494, 60 S.Ct. 363, 84 L.Ed. 416; Moline Properties v. Commissioner, 319 U.S. 436, 438-441, 63 S.Ct. 1132, 87 L.Ed. 1499. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
4
] | songer_counsel1 |
CROW v. DUMKE.
No. 2869.
Circuit Court of Appeals, Tenth Circuit.
May 13, 1944.
Benjamin C. Hilliard, Jr., of Denver, Colo. (George H. Blickhahn, of Walsenburg, Colo., on the brief), for appellant.
Byron G. Rogers, of Denver, Colo., for appellee.
Before PHILLIPS and HUXMAN, Circuit Judges and RICE, District Judge.
HUXMAN, Circuit Judge.
John H. Reniger instituted this action against Clyde Winslow, Florence P. Anderson and J. M. Crow, each individually, and also against them as a co-partnership doing business under the name of Anderson Exploration Company, and against the Anderson Exploration Company, a corporation, to recover on a lease of an oil drilling rig. Judgment was rendered against them individually and also as a co-partnership, and against the Anderson Exploration Company, a corporation. J. M. Crow alone has appealed. After judgment was entered, Frederick William Dumke, administrator of the estate of John H. Reniger, was substituted as party plaintiff.
The grounds relied upon for reversal are: (1) That the evidence is insufficient to sustain the finding that appellant was liable as a partner, and (2) that the court abused its discretion in refusing to grant a new trial on the ground of newly discovered evidence.
Appellant, Florence P. Anderson and Clyde Winslow entered into written articles of partnership under the name and style of the Anderson Exploration Company, about May 1, 1942. The object of the partnership was the procurement of oil and gas leases to a large acreage of land, with the ultimate object of drilling and exploring the acreage for oil and gas. A large acreage was assembled by the partnership.
The agreement on which this action was based was executed between Clyde Win-slow and Ruth C. Brazil October 1, 1942. The agreement was drawn on stationery which was headed:
“Anderson Exploration Company
(To Be Organized)
“Clyde Winslow,
“Syndicate Manager.”
It made no reference to the partnership. In the agreement Winslow leased a drilling rig and outfit from Mrs. Brazil for which he agreed to pay her $25 per day for the length of time he had possession of the rig. She assigned her interest in the contract to John H. Reniger, who instituted this action to recover the amount due under the contract.
Appellant’s defense to the action was that the sole object of the partnership was the procurement of the leases and that the partnership was terminated about July 15, 1942; that appellant did not represent himself to be a partner nor give his consent that anyone else should so represent him, and that Mrs. Brazil had no knowledge of the partnership and did not execute the agreement in the belief that she was dealing with the partnership.
Winslow and appellant both testified that the sole function of the partnership was assembling the block of leases and that the partnership agreement provided that when the acreage was assembled the partnership should be dissolved, a corporation would be organized for the purpose of developing the acreage, and that the leases would then be assigned to the corporation. They further testified that the partnership was dissolved about July IS, 1942, and that the copies' of the partnership agreement were all delivered to Crow. Mrs. Anderson, the third member of the partnership, was not called and did not testify.
Mrs. Brazil testified that Winslow told her that he was executing the agreement on behalf of the co-partnership consisting of himself, Crow and Mrs. Anderson. Winslow denied this and testified that he told her he was executing the agreement on behalf of the corporation to be formed. What Winslow told Mrs. Brazil is, of course, incompetent to establish the existence of the partnership. It would be competent only to show the understanding of the parties to the agreement.
While Crow and Winslow both testified that the partnership terminated about July IS, 1942, there is evidence from which a contrary conclusion could be inferred. There is evidence that leases were being taken as late as August, 1942. It is admitted that this was the purpose for which the partnership was formed. There is no testimony that these later leases were taken in a manner other than those which were taken during May, June, and the first part of July. H. M. Brazil testified that he met Crow and Winslow at the Victoria Hotel July 31, 1942; that they discussed the entire proposition, and that they told him that they had a co-partnership consisting of themselves and Mrs. Anderson, and that Winslow was the manager. Frank A. Webber testified that he showed the contract between Winslow and Mrs. Brazil to Crow in November 1942, together with a power of attorney he held from her for the purpose of collecting what was due on the contract. Crow told him then that he knew of the contract and that no payments had been made thereon, and that as soon as funds were available he would see that it was paid. The rig was moved to land owned by Crow. He helped in moving the rig by tearing down the fence, filling up the irrigation ditches, and made other arrangements for moving the rig on to the premises. All of this was at a time subsequent to the time when he and' Winslow claimed the partnership had been dissolved. At a pre-trial conference in the-court’s chambers, Crow agreed to produce a copy of the articles of partnership, but later excused compliance on the ground that his wife evidently had destroyed all' copies of the contract. There is evidence that as late as October 3, Crow instructed his attorney to keep possession of the leases; and refuse to deliver them to the corporation. It is admitted that Crow was active-in procuring the leases and that he made representations to his neighbors that a test would be made for oil and gas. The corporation was not formed until after the contract between Winslow and Mrs. Brazil had been executed. While the evidence as to-the terms of the partnership and the date of the termination thereof was conflicting, it is our conclusion that it warrants the finding of the trial court that the co-partnership was not dissolved prior to the execution of the contract with Mrs. Brazil, and that the contract was made by and for the co-partnership.
It is urged that the court abused its discretion in refusing to grant a new trial on the ground of newly discovered evidence.. This evidence consists of a letter written by Mrs. Brazil to Winslow under date of November 19, 1943. The letter was written in response to a telegram from Winslow. In it, she states that: “Not being a stockholder in your company I am not familiar with the business of your Board of Directors. * * * I entered into an agreement with you upon your representation that your company was organized and financed and had a permit to operate in the state of Colorado. * * *” It is urged, with considerable force, that this contradicts-her statements that all she knew was the partnership. We cannot say, however, as a matter of law, that this letter would compel a judgment for appellant. The trial was to the court. Had the trial court felt that the letter would result in his changing his findings of fact, he would no doubt have granted the motion for a new trial.
Furthermore, before a new trial may be granted on the ground of newly discovered evidence, the motion therefor must show that the evidence has been discovered since the trial, it must show facts from which the court may infer reasonable diligence on the part of the movant—in other words, it must show some reason why the evidence was not produced at the first trial—and it must show that the evidence is not merely cumulative, that it is material and is of such a nature that a new trial would probably produce a different result. Prisament v. United States, 5 Cir., 96 F.2d 865; Marshall’s U. S. Auto Supply v. Cashman, 10 Cir., 111 F.2d 140. The motion for a new trial is devoid of any showing of diligence. No attempt was made to explain why the letter was not produced at the first trial. It was written to and was in the possession of Winslow, one of the members of the partnership and a defendant in the action. Winslow was a witness at the trial. He was apparently friendly to appellant and cooperated with him throughout the trial. He denied Mrs. Brazil’s testimony that he told her that he was executing the contract for the partnership. During all this time he was in possession of this letter which tended to contradict her statements. Under all these circumstances we cannot say that the trial court abused its discretion in denying the motion for a new trial.
Affirmed. | 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. | What is the circuit of the court that decided the case? | [
"First Circuit",
"Second Circuit",
"Third Circuit",
"Fourth Circuit",
"Fifth Circuit",
"Sixth Circuit",
"Seventh Circuit",
"Eighth Circuit",
"Ninth Circuit",
"Tenth Circuit",
"Eleventh Circuit",
"District of Columbia Circuit"
] | [
9
] | songer_circuit |
Robert C. GUCCIONE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 662, Docket 87-6207.
United States Court of Appeals, Second Circuit.
Argued Jan. 15, 1988.
Decided May 26, 1988.
Alan M. Dershowitz, Cambridge, Mass. (Nathan Z. Dershowitz, Victoria B. Eiger, Mark D. Cahn, Dershowitz & Eiger, New York City, on the brief), for plaintiff-appellant.
David R. Lewis, Asst. U.S. Atty. (Rudolph W. Giuliani, U.S. Atty., Nancy Kil-son, Asst. U.S. Atty., New York City, on the brief), for defendant-appellee.
Before OAKES, NEWMAN and MINER, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
Robert C. Guccione appeals from a judgment of the District Court for the Southern District of New York (Constance Baker Motley, Judge) dismissing his claim for damages against the United States allegedly resulting from the negligence of the Federal Bureau of Investigation (FBI) in conducting its highly publicized Abscam operation in the late 1970’s. Guccione’s complaint charges that the FBI negligently failed to prevent a paid operative, Melvin Weinberg, from defaming Guccione to potential lenders and otherwise tortiously interfering with his attempt to secure financing for completion of a casino and hotel project in Atlantic City, New Jersey. The complaint seeks $400 million in damages. The District Court, in an opinion reported at 670 F.Supp. 527, entered judgment for the United States on the ground that the action is barred by sovereign immunity under the “intentional tort exception” to the Federal Tort Claims Act (“FTCA”), 28 U.S. C. § 2680(h) (1982), and alternatively that the action is time-barred under the applicable two-year statute of limitations. We affirm on the immunity ground.
Background
Plaintiff-appellant Guccione, a businessman and publisher of Penthouse Magazine, initiated plans in the late 1970’s to build a Penthouse Casino and Hotel in Atlantic City, New Jersey. The project’s success depended in part upon securing financing and a casino license. Guccione alleges that an entity operating as Abdul Enterprises, Ltd. (“Abdul”) was among the numerous potential lenders with which he was in contact during this time to secure financing for his project. Melvin Weinberg acted as the agent and representative of Abdul for these purposes. Abdul was not in fact a prospective lender, but an FBI undercover organization created by the FBI to carry out the Abscam sting operations. Through Abdul, FBI operatives sought to uncover criminal activities by holding themselves out as the representatives of two wealthy Arab sheiks in search of American “investment opportunities” in the nascent casino and gambling industry in Atlantic City. Weinberg worked undercover in the Abscam investigation as an FBI operative and informant. His background and general role in Abscam have been described as follows:
Abscam began after Melvin Weinberg in 1977 was convicted in the Western District of Pennsylvania on his plea of guilty to fraud. In return for a sentence of probation Weinberg agreed to cooperate with the FBI in setting up an undercover operation similar to the London Investors, Ltd. “business” that Weinberg had used with remarkable success before his arrest and conviction in Pittsburgh.
For most of his life Weinberg had been a “con man” operating in the gray area between legitimate enterprise and crude criminality. For a number of years in the 1960s and early 1970s, he had been listed as an informant by the FBI and had provided his contact agent from time to time with intelligence about various known and suspected criminals and criminal activities in the New York metropolitan area and elsewhere, for which he had received in return occasional small payments of money. When he was arrested on the charge that led to his guilty plea, his informant status was cancelled, later to be reinstated after his guilty plea and agreement to cooperate with the FBI.
United States v. Myers, 692 F.2d 823, 829 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Éd.2d 1322 (1983) (quoting United States v. Myers, 527 F.Supp. 1206, 1209 (E.D.N.Y.1981)).
It is undisputed that Weinberg, acting as Abdul’s representative, met or spoke with Guccione on at least three occasions during the course of the Abscam investigation to discuss the possibility of providing financing for Guccione’s casino and hotel project. In these conversations Weinberg unsuccessfully sought to induce Guccione’s participation in a scheme to secure a casino license through bribery or other illegal means. The tortious conduct alleged in the complaint arises out of Weinberg’s initial attempt to create conditions that would compel Guccione’s participation in the scheme, and his subsequent campaign to “punish” Guccione for refusing to cooperate. Weinberg allegedly told Guccione’s business associates false stories about Guc-cione’s ailing financial condition, his organized crime connections, and his unlikely prospects for receiving a casino license. When Weinberg recognized that Guccione would not join the illegal scheme, he told a Guccione business associate: “The best way to punish him [Guccione], he doesn’t get the [casino project] built — that punishes more than anything else.” Weinberg allegedly carried out this vindictive campaign by further maligning Guccione in statements to prospective lenders, influential politicians, and other business associates. The complaint claims that as a direct result of Weinberg’s defamation and interference with Guccione’s business interests, Guccione was unable to secure the necessary financing for the project between 1979 and 1983, when an exculpatory Senate Report was published and disseminated to lenders.
The District Court dismissed Guccione’s complaint for lack of subject matter jurisdiction because of sovereign immunity. The Court held that Guccione’s claims against the United States, though pleaded in negligence, were claims “arising out of” the alleged intentional torts of the FBI operative, Weinberg, and were therefore barred by the “intentional tort” exception to the general waiver of sovereign immunity contained in the FTCA, 28 U.S.C. §§ 1346(b) (general waiver), 2680(h) (intentional tort exception) (1982). Alternatively, the District Judge granted the Government’s motion for summary judgment on the ground that Guccione had failed to bring his action within the applicable two-year limitations period. Judge Motley found that plaintiff’s claim was not first presented until November 28, 1984, or at the earliest July 18, 1984, but had accrued no later than March 1982. Judge Motley rejected Guccione’s contention that he did not have notice of the defamatory conduct underlying his claim until the release of the Senate Report, supra n. 2.
Discussion
Under the FTCA, the Government has waived immunity from suit for claims of property damage or personal injury caused by the “negligent or wrongful act or omission” of its employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Section 2680(h) of the FTCA, the so-called intentional tort exception, excludes from this limited waiver of sovereign immunity “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” The task of maintaining the FTCA’s jurisdictional boundary has been more difficult in practice than is suggested by the statute’s facially neat distinction between claims sounding in negligence and those “arising out of” the enumerated intentional torts. Difficulty has arisen primarily in situations in which intentionally inflicted harm may have occurred in significant part because of the negligence of Government personnel. Appellant contends that this is such a case, and that his “negligent supervision” claim is actionable notwithstanding the apparent applicability of section 2680(h) to Weinberg’s conduct.
Appellant’s claim initially encounters a rather inhospitable line of cases broadly interpreting the scope of section 2680(h) in the context of “mixed” claims of negligence and intentional tort. United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), was an action brought by the survivor of a serviceman who, while off duty and away from his base, had been kidnapped and murdered by another serviceman. The suit alleged that the Army knew of the assailant’s dangerousness and negligently failed to warn others that he was at large. Chief Justice Burger, in a plurality opinion joined by three other Justices, found the claim barred by the express language of section 2680(h):
Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent’s that sound in negligence but stem from a battery committed by a Government employee.
Id. 473 U.S. at 55, 105 S.Ct. at 3042 (emphasis in original).
This Court expressly adopted the Shearer plurality’s view in Johnson v. United States, 788 F.2d 845 (2d Cir.), cert. denied, — U.S. —, 107 S.Ct. 315, 93 L.Ed.2d 288 (1986). We affirmed the dismissal of a suit brought against the United States alleging negligent supervision of a postman who had sexually molested the child plaintiff. Indicating our “agree[ment] with the Chief Justice that the plain language of § 2680(h) prohibits claimants from clothing assault and battery actions in the garb of negligence by claiming negligent failure to prevent the attack,” id. at 850, we concluded that the plaintiff could not avoid the FTCA’s jurisdictional restrictions simply by alleging that the United States Postal Service had negligently hired, assigned, and supervised the assaultive postman “with notice or knowledge of [his] criminal and perverted propensities and tendencies,” id. at 854.
We reaffirmed this interpretation of the “arising out of” phrase of section 2680(h) in Miele v. United States, 800 F.2d 50 (2d Cir.1986), a suit brought on behalf of a child who had been permanently blinded and disfigured when an AWOL soldier threw acid in his face. The complaint alleged that the Army was on notice that the soldier had previously displayed an obsessive hostility toward the child and presented an imminent threat to him, and claimed that the Army was negligent in failing to appreciate the danger posed by the soldier’s disturbed mental state, failing to adequately supervise the soldier, and failing to warn the plaintiff of the soldier’s delusion-ary preoccupation with the child. Relying on Shearer and Johnson, we affirmed dismissal of the claim on the ground that the allegation of negligence merely presented the assault claim in artfully redrawn form. We note that most other circuits considering the question have adopted similarly broad views of the scope of section 2680(h) in the context of mixed claims of negligent and intentional conduct. See Sheridan v. United States, 823 F.2d 820 (4th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 747, 98 L.Ed.2d 760 (1988); Thigpen v. United States, 800 F.2d 393 (4th Cir.1986); Hoot v. United States, 790 F.2d 836 (10th Cir.1986); Satterfield v. United States, 788 F.2d 395, 399 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Wine v. United States, 705 F.2d 366 (10th Cir.1983); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). But see Morrill v. United States, 821 F.2d 1426 (9th Cir.1987); Kearney v. United States, 815 F.2d 535 (9th Cir.1987); Bennett v. United States, 803 F.2d 1502 (9th Cir.1986).
Appellant advances two theories to distinguish the present case from Shearer, Johnson, and Miele. His primary contention is that under case law interpreting section 2680(h), particularly Panella v. United States, 216 F.2d 622 (2d Cir.1954), the statute’s jurisdictional bar does not apply to claims that arise out of the intentional torts of non-governmental employees. He argues that the intentional tort exception is inapplicable in the present case because Weinberg qualifies as a non-governmental employee under the Panella rule, or at least that the nature of Weinberg’s relationship to the Government raises a substantial question of fact unsuited for disposition at this stage of the proceedings. Alternatively, appellant contends that Weinberg’s intentional wrongdoing is separate and distinct from the gravamen of the complaint, which is that the FBI, by “failing to exercise requisite care in selecting, training, instructing, supervising and controlling Weinberg,” Brief of Appellant at 27 n. 11, breached an “independent affirmative duty” owed to appellant himself: “There can be little question that by knowingly allowing Weinberg to engage in a crusade against Guccione, the government failed to exercise its duty to protect a foreseeable victim,” id. at 25. Neither argument withstands scrutiny.
The Panella Exception. In Panella, supra, we held that a patient/inmate who had been assaulted by a fellow inmate at a federal prison hospital was not barred from bringing suit against the United States for failure adequately to supervise and protect those confined there. Appellant misreads Panella to establish a jurisdictional test turning upon the technical nuances of the intentional tortfeasor’s employment relationship to the Government. Though a rigid employee/non-employee jurisdictional rule could be extracted from the often abbreviated references to Panella in subsequent case law, shorthand references should not be permitted to obscure the decision’s precise holding.
In Panella, the fact that the assailant was not a federal employee warranted emphasis only because it served as a useful way to demonstrate that, despite the claim’s mixed allegations of both negligence and intentional conduct, the plaintiff’s “negligence action is not merely an alternative form of remedy to an action for assault but negligence is rather the essence of the plaintiff’s claim.” Panella v. United States, supra, 216 F.2d at 624. The absence of any employment or work-related relationship between the assailant and the federal government provided a simple, unequivocal assurance that the negligent supervision claim really was the “essence” of the claim and not a surreptitious way of seeking to hold the United States liable for the intentional torts of those in some way carrying out the Government’s business. Panella thus established a clear rule of easy application: where the intentional tortfeasor is in no sense carrying out the Government’s business, the claim against the United States for negligent supervision of the assailant does not “arise out of” an intentional tort within the meaning of section 2680(h).
Thus understood, Panella does not permit a negligent supervision claim to succeed whenever the intentional tortfeasor is not technically an “employee” of the United States but nonetheless advancing the Government’s interests in some more attenuated employment relationship or acting as an independent contractor. A jurisdictional rule based upon such technicalities, as urged by appellant, is not suggested by either the language of section 2680(h) or its underlying purposes. As we observed in Johnson and Miele, the “arising out of” language is broad and must not be circumvented by techniques of artful pleading. Likewise, the legislative history, though meager, see Johnson v. United States, supra, 788 F.2d at 852-53 & n. 5, carries no suggestion that Congress contemplated the technical rule advanced by appellant. See, e.g., Tort Claims: Hearings on H.R. 5373 and H.R. 6U63 Before the House Committee on the Judiciary, 77th Cong., 2d Sess. 33 (1942) (section 2680(h) directed at situations in which “some agent of the government gets in a fight with some fellow ... [a]nd socks him”) (emphasis added).
Appellant understandably reads Panella quite differently. He believes that the rationale of this decision is a sharp distinction between the intentional torts of Government employees and the intentional torts of all others. In his view, Panella made that distinction to guard against the risk that a claim alleging negligent supervision of an employee tortfeasor would succeed because the fact-finder is influenced by the doctrine of respondeat superior, even though the claim nominally alleges primary negligence on the part of the Government. His point is that intentional torts of non-employees should survive dismissal because such claims encounter no risk that an allegation of primary negligence on the part of the Government will be a pretext for imposing liability on the basis of re-spondeat superior, which is unavailable absent an employee or similar master-servant relationship, see Prosser and Keeton on the Law of Torts § 70 (5th ed. 1984).
This approach is flawed in two respects. First, it converts what is only a mechanical device for enabling the fact-finder to focus on the primary negligence of the Government into an absolute jurisdictional rule. If the critical jurisdictional question were whether negligence on the part of some Government personnel could be isolated as the primary or essential basis of the claim, the inquiry could be more sensibly carried out without pausing to ascertain the intentional tortfeasor’s employment status. See Sheridan v. United States, supra, 823 F.2d at 825 (Winter, J., dissenting); Note, The Talismanic Language of Section 2680(h) of the Federal Tort Claims Act, 69 Temple L.Q. 243 (1987); Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo.L.J. 803 (1981). Indeed, one circuit has interpreted section 2680(h) to permit negligent supervision claims against the Government as long as the employee’s intentional wrongdoing was a foreseeable consequence of the alleged negligence. See Morrill v. United States, supra, 821 F.2d at 1427 (citing Ninth Circuit cases).
Second, and more fundamentally, appellant’s view of Panella fails to take into account subsequent case law in this Circuit that illuminates the boundaries of section 2680(h). In our effort to explain Panella, we are obliged to recognize that this decision does not stand in isolation but is part of a sequence that now includes Johnson and Miele. These latter cases demonstrate that the United States is not liable for the intentional torts of those carrying out its business, even though the plaintiff alleges a claim of primary negligence on the part of the United States in failing to supervise or otherwise avoid foreseeable risks. In Miele, for example, the plaintiffs alleged that the Army “negligently failed to: (1) appreciate [the assailant’s] paranoid schizophrenic mental state; (2) adequately supervise [the assailant]; and (3) warn plaintiffs of [the assailant’s] delusionary preoccupation toward them.” Miele v. United States, supra, 800 F.2d at 51. These claims, held to be barred under section 2680(h), are functionally indistinguishable from appellant’s allegations in the present case. In both cases the gravamen of the complaint is that the Government failed to exercise adequate control over an individual committing intentionally tortious conduct while acting in some capacity on the Government’s behalf.
Weinberg, even if not technically a federal “employee,” was certainly acting on the Government’s behalf as an undercover operative carrying out the Abscam investigation. The language of appellant’s complaint itself furnishes a sufficient basis for barring his claim under Panella, Johnson, and Miele: “[T]he FBI employed or otherwise engaged Melvin Weinberg to assist in the [Abscam] investigation as an informant and operative, and Weinberg rendered his services, including all acts complained of herein, while under the control and supervision of the FBI and its special agents.” Complaint 115; see also id. at ¶¶ 7, 8,11,17, 18.
The “Independent Affirmative Duty” Exception. Appellant’s alternative argument is also without merit. Despite the broad reading given to section 2680(h)’s “arising out of” language, we have suggested that it may not bar mixed claims of negligence and intentional conduct in the relatively uncommon case in which the negligence alleged “was independent of the government’s supervision of its employees,” Johnson v. United States, supra, 788 F.2d at 853 n. 8 (discussing cases). The precise contours of this “independent affirmative duty” doctrine are slowly evolving in other circuits, see Doe v. United States, 838 F.2d 220, 222-24 (7th Cir.1988) (duty of Government child care center toward children in its care); Thigpen v. United States, supra, 800 F.2d at 398-402 (Mumaghan, J., concurring) (duty of Government hospital toward patients); Gibson v. United States, 457 F.2d 1391, 1394-96 (3d Cir.1972) (duty to prevent as-saultive conduct of juvenile delinquent Job Corps trainee under Government care), and the doctrine has yet to be considered directly by this Court.
The pending case, however, provides no occasion for elaboration of the doctrine. The mere fact that Guccione was the subject of an undercover investigation by the FBI gave rise to no special “affirmative duty” to protect Guccione independent of the Government’s duty to supervise its agents. All citizens, of course, have the right to expect that the Government’s agents will not cause deliberate harm to innocent persons. Breach of the high public trust necessarily placed in those carrying out covert law enforcement investigations justifiably causes concern, just as the magnitude of the indecencies alleged in Johnson was compounded due to the assailant’s identity as an on-duty United States mail carrier. Yet to find an “independent affirmative duty” owed to each citizen in every case in which the Government carries out its basic functions would create an exception that would swallow the rule of section 2680(h). The present case is not one in which a plaintiff has been placed in the care or custody of the Government and thereafter suffers harm as a result of the negligent performance of a duty of protective care that the plaintiff was entitled to rely upon. See Doe v. United States, supra (children in Government child care center); Doe v. Scott, 652 F.Supp. 549 (S.D.N.Y.1987) (same); Loritts v. United States, 489 F.Supp. 1030 (D.Mass.1980) (member of singing group invited to visit West Point). There is no suggestion that Guccione relied upon the Government’s affirmative provision of care or services of any kind. Cf. Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) (Government liable for damages caused by negligently maintained lighthouse). Indeed, as far as Guccione knew, he was entering into arms-length business negotiations with a representative of Abdul, and he conducted himself accordingly. Whatever the ultimate contours of the affirmative duty doctrine, it is unavailable to Guccione under the circumstances of this case.
In view of our disposition, it is not necessary to reach the statute of limitations issue.
The judgment of the District Court is affirmed.
. The background of the Abscam investigation is detailed in United States v. Myers, 692 F.2d 823, 829-34 (2d Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2437, 77 L.Ed.2d 1322 (1983). See also United States v. Silvestri, 719 F.2d 577, 579-80 (2d Cir.1983).
. Final Report of the Select Committee to Study Undercover Activities of Components of the Department of Justice to the United States Senate ("the Senate Report"), S.Rep. No. 682, 97th Cong., 2d Sess. (1982). Part F of the Senate Report, entitled “Allegations Regarding the Investigation of Bob Guccione,” provides much of the factual basis for the complaint.
. In 1974, Congress amended FTCA coverage to include assault, battery, false imprisonment, false arrest, abuse of process, and malicious prosecution by federal officials empowered to make searches, seizures, or arrests. Act of Mar. 16, 1974, Pub.L. No. 93-253, § 2, 88 Stat. 50 (amending 28 U.S.C. § 2680(h)). Appellant does not contend that this exception to the section 2680(h) exception applies in the present case.
. A majority of the Court agreed that the claim was barred under the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950).
. See United States v. Shearer, supra, 473 U.S. at 56, 105 S.Ct. at 3043 (“Today’s result is not inconsistent with the line of cases holding that the Government may be held liable for negligently failing to prevent the intentional torts of a non-employee under its supervision.”); Thigpen v. United States, supra, 800 F.2d at 394 n. 3; Johnson v. United States, supra, 788 F.2d at 851; Jablonski v. United States, 712 F.2d 391, 395 (9th Cir.1983); Naisbitt v. United States, supra, 611 F.2d at 1355; Underwood v. United States, 356 F.2d 92, 100 (5th Cir.1966); Muniz v. United States, 305 F.2d 285, 287 (2d Cir.1962), aff’d, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963); Hughes v. Sullivan, 514 F.Supp. 667, 669-70 (E.D.Va.1980), aff’d, 662 F.2d 219 (4th Cir.1981) (per curiam); Pennington v. United States, 406 F.Supp. 850, 851-52 (E.D.N.Y.1976).
. Obviously, the negligence claim in Panella had to be rooted in some relationship between the Government and either the assailant or the victim. See infra n. 9. The critical point here is that the relationship must be something other than the Government’s purported duty to supervise or control those carrying out its business.
. The FTCA defines “employee of the government” to include "officers or employees of any federal agency ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.” 28 U.S.C. § 2671 (1982). See Witt v. United States, 462 F.2d 1261, 1263-64 (2d Cir.1972) (language to be broadly construed).
. Appellant’s reliance on Slagle v. United States, 612 F.2d 1157 (9th Cir.1980), as a model for analysis is unavailing. Though the Ninth Circuit undertook to determine the precise nature of an informant's employment status in Slagle, the inquiry was made in the context of a claim against the Government for harm allegedly caused by the informant’s negligence, not his intentional conduct. That close factual determinations concerning employment status are necessary under 28 U.S.C. § 2671, see supra n. 7, does not provide persuasive grounds for extending the practice to decide mixed-claim cases under section 2680(h).
. Panella v. United States, supra, might be read as an affirmative duty case if attention is shifted from the Government's relationship to the assailant to its relationship to the victim, a patient at a federal prison hospital. See also Brown v. United States, 486 F.2d 284, 288 (8th Cir.1973) (FTCA claim permitted where federal prisoner attacked by fellow inmates); Rogers v. United States, 397 F.2d 12, 15 (4th Cir.1968) (FTCA claim permitted where prisoner alleged federal negligence led to attack by guardian); cf. United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) (prisoner attacked by other inmates permitted to claim Government negligent in providing protection). Under this approach, the Government undertakes a duty of reasonable care to protect those in its penal custody from foreseeable harm, whatever its source. See Prosser and Keeton on Torts, supra, at 383 n. 9; Restatement (Second) of Torts § 314A, illustration 6 (1965); see also P. Schuck, Suing Government 33 (1983) (noting historical roots of liability of sheriffs and jailers). | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who voted in favor of the disposition favored by the majority. Judges who concurred in the outcome but wrote a separate concurring opinion are counted as part of the majority. For most cases this variable takes the value "2" or "3." However, for cases decided en banc the value may be as high as 15. Note: in the typical case, a list of the judges who heard the case is printed immediately before the opinion. If there is no indication that any of the judges dissented and no indication that one or more of the judges did not participate in the final decision, then all of the judges listed as participating in the decision are assumed to have cast votes with the majority. The number of majority votes recorded includes district judges or other judges sitting by designation who participated on the appeals court panel. If there is an indication that a judge heard argument in the case but did not participate in the final opinion (e.g., the judge died before the decision was reached), that judge is not counted in the number of majority votes. | What is the number of judges who voted in favor of the disposition favored by the majority? | [] | [
3
] | songer_majvotes |
William C. BARNES, Plaintiff, Appellant, v. REDERI A/B FREDRIKA, Defendant and Third-Party Plaintiff, and ATLANTIC & GULF STEVEDORES, INC., Third-Party Defendant, Appellees.
No. 9939.
United States Court of Appeals Fourth Circuit.
Argued July 1, 1965.
Decided Sept 9, 1965.
C. Arthur Rutter, Jr., Norfolk, Va. (Gerald Rubinger and Amato, Babalas, Breit, Cohen, Rutter & Friedman, Norfolk, Va., on brief), for appellant.
Charles R. Dalton, Jr., Norfolk, Va. (Peter W. Rowe and Seawell, McCoy, Winston & Dalton, Norfolk, Va., on brief), for appellee Rederi A/B Fredrika.
Before HAYNSWORTH, Chief Judge, and BRYAN and BELL, Circuit Judges.
ALBERT V. BRYAN, Circuit Judge.
Unseaworthiness, the basis of his unsuccessful action for injuries suffered aboard the MS Dorotea, longshoreman Barnes contends, was erroneously submitted to the jury by the District Judge when he charged that:
“Under the Maritime Law there is absolute and continuing duty on the part of the defendant, as owners of the vessel, to provide, maintain, and warrant that ship’s equipment and gear aboard the vessel are reasonably safe in the area where the plaintiff may reasonably be expected to go.
*«•#***
“If you believe from the evidence that the absence of hatch boards on the number five hatch, or the lighting conditions in and around the immediate area of the number five hold, ’tween deck level, or lack of stanchions around number five hatch, or the clearance between the stacked cargo and hatch square number four hold, ’tween deck level, were in any way in whole or in part unsafe, then the ship was unseaworthy. And if you believe that as a proximate result thereof the plaintiff became injured, at a place where the plaintiff could reasonably be expected to go, then the defendant is liable to the plaintiff.
******
“We will now turn to the defense, as asserted by the shipowner. The shipowner owes the longshoreman-the duty to provide him with a reasonably safe place in which to discharge his work. But such duty is confined to those parts of the ship to which longshoremen may reasonably be expected to go.
“To determine whether the shipowner should have reasonably anticipated Barnes would go into number five ’tween deck, you may consider proximity or lack of proximity to the work area, and Barnes’ reasons for being there. And if the shipowner could not reasonably have anticipated Barnes would go to the point where he was injured, then warranty of seaworthiness did not extend to Barnes in that area, and you must find for the defendant.” (Accent added.)
Barnes’ exceptions run to the portions we have emphasized. His claim of negligence was voluntarily relinquished.
Barnes’ argument is that the warranty of seaworthiness was not limited in area but extended to and protected him throughout the entire vessel; that the absence of the hatch boards constituted unseaworthiness as a matter of law; and therefore he was entitled to a peremptory charge of the ship’s unseaworthiness, the submission of the question to the jury being error. We think not, and affirm the judgment of the District Court upholding the verdict in favor of the shipowner, defendant-appellee Rederi A/B Fredrika.
Employed by a stevedore in the discharge of general cargo from the Dorotea, while docked in Hampton Roads, Virginia, William C. Barnes was working with others at No. 4 hold. Near the end of the day certain bales of wool were discovered to have been unloaded through mistake. Barnes’ gang was ordered to reload them upon the ’tween deck, just forward of No. 4 hold.
The hatch of No. 5 hold, immediately aft of No. 4, had been closed at the weather deck. There was no bulkhead or other fixed separation of the two holds at the ’tween level. In lieu, cargo had been piled athwartships between them to a height of 4 or 5 feet, for about 6 feet in thickness. This wall of cargo extended, at each end, to within 2 or 3 feet of the ship’s hull. Between the cargo-wall and the coaming around the squares of the holds, there was approximately 3 feet for passage.
Barnes had not worked in the No. 5 area that day, and the re-stowing required neither access to nor any use of it whatsoever. A few minutes before Barnes’ ill-fortune, pier superintendent Riley had gone part way down the ’tween deck ladder, on the fore side of No. 5, while looking for a reportedly missing stowage of canned beef. He found it stacked in the No. 5 ’tween deck side of the cargo-wall near the ladder. None of it had been disturbed. The hold was dark and unlighted. It was covered at the ’tween deck with hatch boards, several of which had been set aside at the ladder and an opening into the lower hold thus created. Barnes was then engaged forward of No. 4 on the ’tween deck.
After the search Riley left the area. Very shortly, upon hearing the report of a fall in No. 5, he went to the weather deck where rescuers had opened No. 5 hatch. He could see Barnes lying at the foot of the ladder in the lower part of the hold. Cartons of the canned meat on the ’tween deck had been broken open, with several cans spread about on the deck. The ladder and the point of the missing boards in No. 5 were approximately 40 feet from where Barnes and his companions had been working.
No mistake is perceived in the Court’s submission of the issue of unseaworthiness. Confining the duty of maintaining a seaworthy vessel to the reasonable scope of the longshoreman’s activity is logical and correct in principle. Fully acknowledged as an obligee of the ship’s duty, nevertheless the longshoreman’s due should not exceed the need for his protection as measured by his function on the vessel. He is not subject to momentary orders, as is a crewman, to any part of the vessel whatsoever, and his presence at a location unconnected with his task is not to be anticipated.
The legal soundness of this proposition was explicitly recognized in Calderola v. Cunard S.S. Co., 279 F.2d 475, 477 (2 Cir. 1960), cert. den. 364 U.S. 884, 81 S.Ct. 172, 5 L.Ed.2d 104 where this was said:
“ * * * [A] shipowner’s duty to provide stevedores with a reasonably safe place to work is ‘confined to those parts of the ship to which the [stevedore] * * * may reasonably be expected to go. * * * ’ ”
This language was borrowed from Lauricella v. United States, 185 F.2d 327 (2 Cir. 1950), which admittedly was a negligence case, but the Second Circuit’s adoption of this statement in an unseaworthiness ease gives it pertinency here.
Therefore, the pivotal questions presently were, first, whether the absence of the hatch boards created an unseaworthy condition, next whether it caused his fall and, thirdly, within what space longshoreman Barnes was warranted seaworthiness. In the disputed circumstances, obviously these were factual issues. Mahnich v. Southern S.S. Co., 321 U.S. 96, 98, 64 S.Ct. 455, 88 L.Ed. 561 (1944); cf. Scott v. Isbrandtsen Co., 327 F.2d 113, 127 (4 Cir. 1964). The jury was left entirely free to decide them, circumscribed only by the evidence it accredited. The verdict went against Barnes on all questions, and certainly the findings were not without support.
The District Judge, overcautiously we think, told the jury it could not consider whether Barnes had been stealing beef. Evidence on this point was admissible and relevant to establish, if only by inference, that Barnes had not gone around the cargo-bulkhead in his work but, instead, piratically. As the evidence was excluded and the error favored Barnes, the ruling does not enter into our decision.
The judgment of the District Court will be
Affirmed. | 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). | What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? | [
"Trial (either jury or bench trial)",
"Injunction or denial of injunction or stay of injunction",
"Summary judgment or denial of summary judgment",
"Guilty plea or denial of motion to withdraw plea",
"Dismissal (include dismissal of petition for habeas corpus)",
"Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)",
"Appeal of post settlement orders",
"Not a final judgment: interlocutory appeal",
"Not a final judgment: mandamus",
"Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment",
"Does not fit any of the above categories, but opinion mentions a \"trial judge\"",
"Not applicable (e.g., decision below was by a federal administrative agency, tax court)"
] | [
0
] | songer_applfrom |
OCEAN CARRIERS CO., Inc., v. A CARGO OF CORK et al.
Circuit Court of Appeals, Second Circuit.
January 7, 1929.
No. 115.
Burlingham, Yeeder, Masten & Fearey, of New York City (William J. Dean, of New York City, of counsel), for appellants.
Duncan & Mount, of New York City (John A. McManus, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
The record in this case is confused, but there is no- question that the respondent failed on March 5th to take the cargo as delivered. If it had wished to assort the parcels by the chop marks, it should have provided sufficient space upon the pier for that purpose. The libelant was responsible only for delivery according to the “main marks,” and there was room enough for such assortment, had the respondent been there to accept delivery. As it was not, the eargo had to be piled up in the space provided, .and the initial congestion remained, required stowage in the storage lighters, and prevented the discharge from going on as pre-arranged. The added expenses of the discharge seem to us to be on the respondent’s account, as the court held.
The demurrage stands upon a different basis. We do not think that the discharge ox the other cargo was proved to have interfered with the discharge of the cork. However, in the estimates made for the proper time of discharge, good weather was probably presupposed. This requires a reduction in the amount of demurrage. The discharge began on Monday, March 5th, at 8 a. m., and finished on March 14th at midnight, 10 days. The caigo could have been discharged in 5 days, according to the only evidence; that is, by 5 p. m. Friday. There was bad weather, for half a day on March 6th and March 7th, which extended the lay days to Saturday, the 10th, at 5 p. m. As Saturday was a half holiday and Sunday a whole holiday, the lay days were extended to Monday, March 12th, at 1 p. m. But there was rain again on Monday morning, so that the whole of Monday was on the vessel’s account. It follows that demurrage should bo allowed for only 2 days, which, at $235 a day, is $470.
The decree is affirmed, with a reduction in demurrage of $705. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
32
] | songer_state |
BAY STATE SMELTING CO., Inc., Defendant, Appellant, v. FERRIC INDUSTRIES, INC., Plaintiff, Appellee.
No. 5803.
United States Court of Appeals First Circuit.
June 30, 1961.
Arthur M. Gilman, Boston, Mass., with whom Walter H. McLaughlin, Boston, Mass., was on the brief, for appellant.
Stuart Macmillan, Boston, Mass., with whom Warren G. Reed, Philip H. Suter and Haussermann, Davison & Shattuek, Boston, Mass., were on the brief, for appellee.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment of the United States District Court for the District of Massachusetts entered January 6, 1961.
The action was commenced by a complaint filed by Klockner & Company (hereinafter referred to as Klockner), against the defendant-appellant, Bay State Smelting Co., Inc. (hereinafter referred to as Bay State), alleging that Klockner through its authorized agent, Ferric Industries, Inc. (hereinafter referred to as Ferric), entered into five written contracts with Bay State whereby Bay State agreed to provide Klockner with certain quantities of copper, suitably packed in drums, for agreed prices, shipment date to be Jan./Feb. 1955 on one lot (hereinafter referred to as lot #1) and Feb./first half March ’55 on the other lots. Klockner further alleged that Bay State attempted to cancel the foregoing contracts without cause by a notice on February 28, 1955 as to lot #1 and notices on March 11, 1955 as to the other lots, and that since that time Bay State has refused to make delivery of the copper in accordance with the contracts.
Klockner alleged that the price of copper has risen since the contracts were entered into and that it has been damaged by Bay State’s breach of the contracts. Klockner sought judgment of $10,725 together with interest and costs.
Bay State in its substitute answer denied various material allegations and made further answer that it orally agreed to sell certain quantities of copper for export to Klockner on the condition that Klockner would secure the necessary federal government export licenses during the period prescribed for delivery, and that the copper was to be shipped as it was completed by Bay State at various intervals during the period prescribed in the agreement. Bay State further answered that it completed the material and notified Klockner and requested shipping instructions and evidence of the necessary export licenses, that Klockner did not provide shipping instructions or evidence of necessary export licenses, and was not able to provide the export licenses during the period prescribed for delivery because of a federal government embargo on the material, that Bay State held the material at its plant and when the period prescribed for delivery had elapsed it notified Klockner that it would not sell the material because of Klockner’s failure to comply with the terms and conditions of the agreement and further by reason of the contingency provision in the agreement excusing delivery by the seller.
As a second defense Bay State said that the embargo on the copper material remained in effect during the entire period prescribed for delivery, thereby rendering the sale by Bay State to Klockner illegal and excusing Bay State from performance of the agreement.
Ferric made a motion for substitution as party plaintiff or as joint plaintiff on the basis of a written assignment by Klockner of its claim and Ferric’s allegation that the contracts referred to in the complaint were executed between Ferric and Bay State, that Ferric is not the agent of Klockner and that Ferric is the real party in interest in this action. The motion was allowed.
A trial was held before a jury. At the completion of the trial Klockner was discontinued as a party plaintiff and a motion for a directed verdict against Klockner was granted. The district court reserved its ruling on Bay State’s motion for directed verdict against Ferric. The case was submitted to the jury for a special verdict on five specific issues:
“1. Did the plaintiff, Ferric Industries, Inc., as principal make contracts with the defendant, Bay State Smelting Co., Inc. to buy the property described in plaintiff’s exhibits one to five, inclusive?
Answer. Yes.
“2. If your answer to the foregoing interrogatory number one is ‘no’, did Kloeckner & Co. as principal contract with Bay State Smelting Co., Inc. to buy the property described in plaintiff’s exhibits one to five, inclusive?
Answer. No answer required. Answer left blank by Jury.
“3. Did the buyer involved in said contacts fail without reasonable cause to take delivery of the said property within a reasonable time after seller was able, ready, and willing to deliver said material pursuant to the contract and buyer was notified thereof?
Answer. No.
“4. Was the notice of cancellation of said contracts by the seller on or about March 11, 1955, made before there was any breach of the contract by the buyer ?
Answer. Yes.
“5. What was the difference between the total contract price of the material described in exhibits one to five inclusive and the market value of said material on or about March 15, 1955 ?
Answer. $7,500.”
Bay State urged its motion for directed verdict against Ferric by a memorandum of law filed within ten days of the verdict. The district court denied the motion and ordered entry of judgment in favor of the plaintiff, Ferric, and against the defendant, Bay State, in accordance with the verdict of the jury. Judgment was entered January 6, 1961 and Bay State filed its notice of appeal on January 12, 1961 from the order denying its motion for directed verdict against Ferric and from the judgment.
On appeal, Bay State contends (1) that the district court erred prejudicially in admitting parol evidence to vary terms of the five written contracts and in submitting to the jury special questions concerning such parol evidence; (2) that the contracts provided for a sale for export and when Klockner failed to secure the necessary export licenses, the performance of the contracts by Bay State would have been unlawful; (3) that the contracts were subject to the condition that the buyer was to secure the necessary export licenses and the failure of the buyer to procure such licenses terminated the contracts; (4) that the cancellation by Bay State on March 11, 1955 of the four contracts calling for March delivery did not deprive Bay State of its right to consider the contracts terminated; (5) that for the reasons in (2), (3) and (4) the district court was required to grant Bay State’s motion for a directed verdict as to Ferric.
We believe that under the standard rules for interpreting contracts, Bay State was excused from performing under the contracts until the buyer, whether it be Ferric or Klockner, secured export licenses and that since no export licenses were obtained within the specific period prescribed for delivery of the materials, nor even within a reasonable time thereafter, Bay State could regard the contracts as terminated and the buyer could not recover for breach of such contracts. We find it unnecessary, therefore, to consider Bay State’s other contentions.
One of the “conditions incorporated in and made part of all quotations, contracts and sales” which is printed on the reverse side of the order confirmation sent by Ferric to Bay State is: “The execution of any order is subject to the buyer’s ability to secure the necessary Export License.” Even if the order confirmation for each lot is not an integration or partial integration of the agreement between the buyer and seller, there is no doubt that the above condition is part of each agreement. This conclusion is supported by the pleadings and the evidence.
Ferric contends that the export license provision is for the benefit of the buyer only and could be and was waived unilaterally by Ferric.
We believe, however, that the plain meaning of the provision is that the seller is not required to undertake the execution of any order until all necessary export licenses are available. Under this interpretation of the provision, the condition cannot be said to be included only for the buyer’s benefit and thus able to be waived unilaterally by him. We believe that words of the provision are given their natural scope by this interpretation, Hamlen v. Rednalloh Co., 1935, 291 Mass. 119, 197 N.E. 149, 153, 99 A.L.R. 1230; Williston, Contracts § 620 (Rev.Ed.1938); and that even if Ferric’s interpretation were as likely, the phrase should be construed against Ferric, the party drawing the order confirmation containing the phrase. See Morse v. City of Boston, 1927, 260 Mass. 255, 262, 157 N.E. 523, 526; Williston, op. cit. § 621.
Although this provision of the agreement would excuse Bay State from making delivery of the scrap until export licenses had been obtained, the right to regard the agreements as terminated would arise only if the buyer failed to obtain export licenses during the time set by the agreements for delivery of the materials. In other words, termination of the agreements would be justified when the failure to obtain the export licenses had materially delayed delivery of the scrap.
Bay State contends that March 15, 1955 was the last date contemplated by the agreements for delivery of four lots of scrap and the failure of the buyer to obtain the export licenses by that date permitted Bay State to regard the contracts as terminated. This contention is based on the premise that in the contracts time was of the essence. We do not believe that the practical construction given by the parties to the contracts by their conduct entirely supports this assumption. For example, Bay State wrote letters of availability as to three lots stating the scrap material would be available for shipment “on the week of March 14.”
Nevertheless, even if the contracts be construed as not making time of delivery “of the essence,” still the buyer must prove that within the reasonable time implied by the contracts, it fulfilled all the conditions precedent to the seller’s duty to deliver. The record contains testimony that an export license for forty tons of copper materials was granted to Ferric “around March 23,” 1955. We do not believe that this was within a reasonable time of the period specified in the agreements, giving consideration to the fluctuating market involved. Therefore, Ferric cannot recover since it has not satisfied its burden of proving compliance with the terms of the contracts.
Finally, we agree with defendant that although it may have prematurely cancelled certain of the contracts by its notices on March 11, 1955, such cancellations made no difference since the buyer did not change its position in reliance on them and they did not affect plaintiff’s efforts to obtain export licenses. Premature repudiation merely excuses subsequent acts which otherwise could have, and presumably would have been performed. See Restatement of Contracts § 306, Comment a; Williston, op. cit. § 698A.
Judgment will be entered vacating the judgment of the district court and remanding the ease to that court for entry of judgment for the defendant.
WOODBURY, Chief Judge, concurs in the result.
. In various exhibits and portions of the briefs and record before us the name is spelled “Kloockner.” We use the spelling given in the complaint. | 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. | What is the circuit of the court that decided the case? | [
"First Circuit",
"Second Circuit",
"Third Circuit",
"Fourth Circuit",
"Fifth Circuit",
"Sixth Circuit",
"Seventh Circuit",
"Eighth Circuit",
"Ninth Circuit",
"Tenth Circuit",
"Eleventh Circuit",
"District of Columbia Circuit"
] | [
0
] | songer_circuit |
NATIONAL LABOR RELATIONS BOARD, Appellant v. Gary FRAZIER, an Individual.
No. 91-5475.
United States Court of Appeals, Third Circuit.
Argued Dec. 12, 1991.
Decided June 15, 1992.
Eric G. Moskowitz, Deputy Asst. Gen. Counsel for Special Litigation, Adam Nem-zer, (Argued), N.L.R.B., Washington, D.C., for appellant.
John K. Bennett (Argued), Paul J. DiMaio, Carpenter, Bennett & Morrissey, Newark, N.J., for appellee.
Before: SLOVITER, Chief Judge, SCIRICA and ROTH, Circuit Judges.
OPINION OF THE COURT
ROTH, Circuit Judge.
This appeal concerns an enforcement proceeding brought by the National Labor Relations Board (“Board”) to compel Gary Frazier to testify in an unfair labor practice proceeding. The United States District Court for the District of New Jersey referred the matter to a United States Magistrate Judge who denied the Board’s application for enforcement of its subpoena ad testificandum. The district judge, applying the “clearly erroneous” standard, affirmed the magistrate judge’s decision. On appeal, the Board argues that the district court should have reviewed the magistrate judge’s decision de novo and enforced the Board’s subpoena, as the evidence before the court demonstrated that Frazier’s testimony was relevant to the pending unfair labor practice proceeding. Because we agree that Frazier’s testimony is relevant to the Board’s proceedings and that the district court employed the wrong standard of review, we will reverse the district court’s judgment and will remand with instructions for the subpoena to issue.
I.
The material facts in this case are few and basically undisputed. Gary Frazier’s employer, Prudential Property Company (“Prudential”), owns in partnership certain properties located at Gateway Center in Newark, New Jersey, where Prudential has its offices. Prudential contracted with Property Management Systems (“Systems”), an independent property management firm with headquarters in Houston, Texas, to manage the Gateway Center properties. Under the contract, Systems must secure cleaning and maintenance contracts for Gateway Center. Prudential retains the right to approve contracts proposed by Systems.
Early in 1989, Prudential approved the re-bidding of the contract for cleaning Gateway Center. At that time, Ogden-Allied Services Corporation (“Ogden”) held the contract, and its cleaning employees were represented by Local 32B-32J of the Service Employees International Union, AFL-CIO (“the Union”). Ogden submitted the second lowest bid for the new contract. The lowest bidder was Control Services, Inc. (“Control”).
In March 1989, Systems forwarded Prudential a proposal to award the cleaning contract to Control. The proposal stated, under the heading “Sources of Savings,” that “[t]he unions currently in place will remain in place.” App. 71. On May 5, 1989, both Barbara Green, Prudential’s manager responsible for Gateway Center, and Gary Frazier, Green’s superior and Prudential’s new general manager, approved Systems’ proposal. Frazier was responsible for the final approval of the contract award. In June 1989, Systems contracted with Control to clean Gateway Center. Control began its work under the contract that same month.
On June 23, 1989, the Union filed an unfair labor practice charge against Prudential, Systems, and Control. The Union alleged that earlier in June 1989, when Ogden employees applied to Control for jobs, Control hired less than a majority of the Ogden applicants, so that Control could avoid having to recognize the Union as the bargaining representative for its employees.
On November 14, 1989, the Union filed a second charge, alleging that Systems, acting as Prudential’s agent, and Control had unlawfully recognized and entered into a collective-bargaining agreement with Local 97 of the Teamsters Industrial and Allied Workers Union (“the Teamsters”) to represent the cleaning employees at Gateway Center. The Union claimed the agreement was illegal because the Teamsters did not represent an uncoerced majority of Control employees. Moreover, the Union alleged that Control was obligated to bargain with it rather than with the Teamsters.
Prudential objected to the unfair labor practice charge, arguing that the complaint alleged no unlawful conduct on its part. After considering this objection, the Board’s Regional Office dismissed the charge against Prudential. The Union appealed the Board’s determination to the Board’s General Counsel. The appeal was denied.
On May 4, 1990, after investigating all of the charges filed, the Board, through the Regional Director for Region 22, issued an administrative unfair labor practice complaint against Control and Systems that restated the charges made by the Union. On January 2, 1991, Gary Frazier of Prudential was served with a subpoena to testify at the proceedings. The Board issued Frazier’s subpoena at the request of the Union. On January 3,1991, Barbara Green of Prudential was served with a subpoena to testify. The Board issued Green’s subpoena on its own behalf. On January 4, 1991, counsel for Prudential filed a petition with the Board to revoke the subpoena of Frazier. Counsel for Prudential contended that Frazier’s testimony was not relevant to the proceedings as the Board’s complaint did not relate to Prudential but concerned whether Control or Systems had engaged in unfair labor practices.
The Board’s proceedings formally commenced on January 7, 1991. Green testified voluntarily after the Board informed counsel for Prudential that Green’s examination would relate only to the circumstances surrounding her signing the May 5, 1989, proposal which awarded the cleaning contract to Control. At the conclusion of Green’s testimony, the Administrative Law Judge (“AU”) heard argument on Prudential’s petition to revoke Frazier’s subpoena. The AU denied the petition but said that any questioning of Frazier would be limited in scope.
Frazier, however, still refused to testify, and the Board applied to the United States District Court for the District of New Jersey, pursuant to Section 11(2) of the National Labor Relations Act, 29 U.S.C. § 161(2), for an order requiring Frazier to obey the subpoena. The district court referred the Board’s application for subpoena enforcement to a United States Magistrate Judge. After considering the submissions of the parties, the magistrate judge found that to enforce the subpoena, the Board must demonstrate that the information sought from Frazier relates to a matter under investigation and is crucial to the Board’s proceedings. The magistrate judge concluded that as Frazier’s testimony could relate only to his employment with Prudential — which was not a party to the Board’s complaint — his testimony was not crucial to the unfair labor practice proceeding against Control and Systems. As the Board had not met its burden of showing how Frazier’s testimony was related or crucial to the proceedings, the magistrate judge denied enforcement of the subpoena.
The district court affirmed the magistrate judge’s ruling after reviewing the Board’s Objections to the Magistrate’s Letter-Order and Opinion and Frazier’s Response thereto. The court concluded that under 28 U.S.C. § 636(b)(1) and Local Rule 40 A for the District of New Jersey, the Board’s application was a nondispositive motion that warranted review under a clearly erroneous or contrary to law standard. The district court refused the Board’s request to review de novo its application for subpoena enforcement.
II.
The district court had jurisdiction over the subpoena enforcement proceeding pursuant to Section 11 of the National Labor Relations Act, 29 U.S.C. § 161. The Board writes that we have jurisdiction over its appeal pursuant to 28 U.S.C. §§ 1291 and 1294. Though Frazier concurs, he raises an indirect challenge to our jurisdiction when he contends that the district court’s decision was collateral to the Board’s pending unfair labor practice proceedings. We find that the pending agency proceeding has no bearing on our jurisdiction. The proceeding brought by the Board in the district court was in itself an independent proceeding which could have had only two possible outcomes. The district court could either have quashed the subpoena or have ordered Frazier to comply with its terms. The court’s order, as it affirmed the magistrate judge’s decision to quash the subpoena, satisfies the finality requirement of section 1291.
A district court should enforce an agency subpoena if the subpoena is for a proper purpose, the information sought is relevant to that purpose, and statutory procedures are observed. United States v. Powell, 379 U.S. 48, 57-58, 85 S.Ct. 248, 254-255, 13 L.Ed.2d 112 (1964). “Courts must insist that the agency ‘not act arbitrarily or in excess of [its] statutory authority....’” N.L.R.B. v. Interstate Dress Carriers, 610 F.2d 99, 111 (3d Cir. 1979) (quoting Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 216, 66 S.Ct. 494, 509, 90 L.Ed. 614 (1946)).
We must affirm a district court's decision to enforce or quash a Board’s subpoena unless we find that the district court abused its discretion. N.L.R.B. v. G.H.R. Energy Corp., 707 F.2d 110, 113 (5th Cir. 1982) (citing, e.g., N.L.R.B. v. Friedman, 352 F.2d 545, 574 (3d Cir.1965)). An abuse of discretion arises when “the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law or an improper application of law to fact.” International Union v. Mack Trucks, Inc., 820 F.2d 91, 95 (3d Cir.1987).
III.
Initially, we must determine the proper legal standard for review by the district court of a magistrate judge’s decision to deny enforcement of an agency subpoena. As that standard depends on how an enforcement proceeding fits within the schema set forth in the jurisdictional provisions of the Federal Magistrate’s Act, 28 U.S.C. § 636, we must look to the Act for guidance.
The Act distinguishes between two categories of matters that a district judge can refer to a magistrate judge. Under 28 U.S.C. § 636(b)(1)(A) and its corollary in the Local Rules for the District of New Jersey, Local Rule 40 A(l), a district judge may designate a magistrate judge to hear and determine any pretrial matter pending before the court, except for eight specified motions. The “excepted” motions include motions to dismiss for failure to state a claim upon which relief can be granted and motions for summary judgment. Under section 636(b)(1)(B) and its corollary, Local Rule 40 A(2), a district judge may designate a magistrate judge to conduct hearings, including evidentiary hearings, and to submit to the court proposed findings of fact and recommendations for the disposition of the “excepted” motions. The statute thus distinguishes between regular pretrial matters, which a magistrate judge may decide, and those dispositive matters which have a preclusive effect on the parties, about which the magistrate judge may only make a recommendation to the court. Congress crafted this distinction to assure that Article III judges retain the ultimate adjudicatory power over dispositive motions. See, H.R.Rep. No. 1609, 94th Cong., 2d Sess. 11, reprinted in 1976 U.S.C.C.A.N. 6162, 6171.
To preserve these principles, the statute effects a similar distinction in the review which a district court accords a magistrate judge’s work. Under section 636(b)(1)(A) and Local Rule 40 A(l), a district judge may reconsider a magistrate judge’s decision where it has been shown to be clearly erroneous or contrary to law. However, a district judge must review de novo those portions of the magistrate judge’s report or recommendation to which objection is made. 28 U.S.C. § 636(b)(1)(C) and Local Rule 40 A(2). In essence, the statute and local rule allow a magistrate judge to hear and determine nondispositive motions and to recommend decisions to the court on dispositive motions. These recommendations are subject to a heightened standard of review.
A district judge may assign additional duties to a magistrate judge under section 636(b)(3). The Board’s enforcement proceeding may have been properly designated to a magistrate judge under this section, as the proceeding was neither a pretrial matter for a magistrate judge’s disposition under section 636(b)(1)(A) nor one of the eight categories of excepted motions covered by section 636(b)(1)(B). To preserve the adjudicatory role of Article III judges, matters referred under section 636(b)(3) would still be subject to review under the two standards of review set forth above. If the matter referred were more akin to a pretrial motion, the district court should review using the clearly erroneous or contrary to law standard. However, if the matter referred more closely resembles one of the eight excepted motions, the district court should employ de novo review. In most matters referred under this section the magistrate judge’s duties will be clear; the district court’s order of reference sets forth the type of action the court wishes from the magistrate judge.
Neither party disputes that under 28 U.S.C. § 636(b) and Local Rule 40 A the district judge had the authority to refer the Board’s action to compel testimony to a magistrate judge. However, the District of New Jersey Clerk’s pro forma Notice of Allocation and Assignment does not indicate the provision on which the court relied in referring the enforcement proceeding to the magistrate judge. From the. face of the notice, we cannot determine whether the district court considered the enforcement proceeding to be a nondispositive or a dispositive motion. No reference to section 636(b) is made. The notice simply informs the parties that all discovery matters arising from their case will be assigned to a magistrate judge.
While a motion to enforce a subpoena arising in a civil action would be a routine matter which a magistrate judge could dispose of as a nondispositive motion, the Board’s enforcement proceeding was not part of a larger case before the court. Rather, the enforcement proceeding arose from a pending dispute that was not before the court. Yet, our reading of the pro forma Notice suggests that the Clerk assigned the Board’s enforcement proceeding to the magistrate judge as if it were just such a pretrial discovery dispute. Moreover, the magistrate judge treated the matter as a basic discovery dispute and rendered a decision denying the Board’s motion to enforce the subpoena against Frazier rather than recommending such a solution to the court.
Though the Board filed Objections to the Magistrate’s Letter-Order and Opinion, as if the magistrate judge’s decision were a recommendation to the court on a disposi-tive motion pursuant to section 636(b)(1)(B), the district court determined that under Local Rule 40 A for the District of New Jersey and section 636(b)(1), the Board’s enforcement action was a nondispositive motion. The district court treated the magistrate judge’s order as a nondispositive motion because the Board’s application to enforce a subpoena did not fall within the eight categories of motions enumerated in 40 A(2) as dispositive motions. Based on that determination, the court decided that the Board’s objections were in fact an appeal, and the court applied a clearly erroneous or contrary to law standard of review.
We cannot accept the district court’s literal reading of the statute and Local Rules. The failure of 28 U.S.C. § 636(b)(1)(B) and Rule 40 A(2) to list the Board’s subpoena enforcement proceeding as a dispositive matter subject to de novo review does not mean the Board’s action should be deemed nondispositive. A review of the “excepted” matters in section 636(b)(1)(B) and Local Rule 40 A(2) suggests by analogy that a court should employ the heightened de novo standard to review a magistrate judge’s order which quashes an agency’s subpoena. As noted above, under section 636(b)(1)(A) and Local Rule 40 A(2), a magistrate judge may not issue final orders for these eight “dispositive” pretrial matters. The “excepted” matters include motions for summary judgment and motions to dismiss for failure to state a claim. As decisions to grant summary judgment or to dismiss a case dispose of the matter before the district court, both the statute and local rule require that the magistrate judge submit proposed recommendations to the district court for its review.
The proceeding to enforce an agency subpoena is like a motion to dismiss; once the court grants a motion to dismiss or compels compliance with a subpoena, the court disposes of the entire case before it. If the court denies the motion to dismiss, the case may proceed toward trial. The proceeding has a final effect on the rights of the parties; either they must continue to contest the case or the case is over. Yet in a proceeding to enforce a subpoena, the case before the district court is over regardless of which way the court rules. Once the court grants or quashes the agency subpoena, it determines with finality the duties of the parties. The district court proceeding is admittedly collateral to the Board’s pending administrative proceeding, but the question of whether or not to enforce the subpoena is the only matter before the court. The court’s decision seals with finality the district court proceeding and is subject to appellate review.
Unlike the pretrial motions which district judges refer to magistrate judges, in this ease the question of subpoena enforcement was not ancillary to the Board's main action in the district court. Rather, the Board applied to the district court in a special proceeding, under 29 U.S.C. § 161(2), the sole purpose of which was to aid the Board in compelling production of evidence and attendance of witnesses. Therefore, it was not appropriate for the district court to apply the clearly erroneous or contrary to law standard of review set forth in section 636(b)(1)(A) when it reviewed the magistrate judge’s decision. The magistrate judge’s decision was not a pretrial determination of a motion collateral to the main proceeding before the district court, but a final decision which disposed entirely of the Board’s business before the court. The district court should have reviewed the magistrate judge’s decision accordingly.
We hold that, because the Board’s motion was dispositive, the district court erred when it reviewed the magistrate judge’s decision using the clearly erroneous standard. The district court should have applied the de novo standard which both section 636(b)(1)(C) and Local Rule 40 A(2) state is appropriate for dispositive motions.
IV.
Our inquiry does not end with the determination that the district court should have reviewed the Board’s request for subpoena enforcement de novo. We must determine whether the district court erred in finding that the subpoena issued to Frazier did not relate to matters pending in the Board’s unfair labor practice proceedings. Our conclusion will determine whether we will affirm the district court’s decision or remand the case for further proceedings.
The Board’s complaint against Systems and Control alleged two instances of unlawful conduct — that Systems and Control refused to rehire the cleaning employees formerly represented by the Union in order to avoid a collective-bargaining obligation to the Union, and that Systems and Control unlawfully entered into a collective bargaining agreement with the Teamsters. The complaint alleged that both instances of unlawful conduct occurred after Prudential approved the award of the cleaning contract to Control in May 1989.
On appeal the Board contends that the district court erred by failing to inquire whether the testimony sought from Frazier would relate to Systems and Control’s allegedly unlawful labor practices. The Board argues that the court looked only to what light, if any, Frazier could shed on whether Systems acted with an illegal purpose in recommending Control for the cleaning contract activity prior to May 1989.
Notwithstanding Frazier’s arguments to the contrary, we find that the district court did err in concluding that Frazier’s testimony would be unrelated to the Board’s proceedings. The Board supplied the district court with a copy of its complaint against Systems and Control together with its Objections to the Magistrate’s Letter-Opinion and Order. In these objections, the Board specified June 1989 as a relevant time period about which it sought to question Frazier. The Board argued that Frazier was subpoenaed “based upon [the Union’s] belief that he had knowledge about Control’s decision to recognize the Teamsters, rather than [the Union], This belief was based upon Green’s testimony that sometime after Prudential approved the award, [Green] reported to Frazier [Systems’] warning of potential union activity_” App. 62. The district court, in its discussion, did not mention that Green’s testimony suggested that she had informed Frazier of the labor dispute after the contract was awarded to Control. The court’s Letter-Opinion focused entirely on what Green and Frazier knew at the time they approved the contract.
Had the court made a de novo determination as required under section 636(b)(1)(C), when the Board objected to the magistrate judge’s recommendation, the court would have “consider[ed] the record which has been developed before the magistrate and ma[d]e [its] own determination on the basis of that record, without being bound to adopt the findings and conclusions of the magistrate.” H.R.Rep. No. 1609, 94th Cong., 2d Sess., 3 (1976), reprinted in 1976 U.S.S.C.A.N. 6163 (quoted in United States v. Raddatz, 447 U.S. 667, 675, 100 S.Ct. 2406, 2412, 65 L.Ed.2d 424 (1980)).
The district court record contained the relevant portion of Green’s testimony in the unfair labor practice proceeding. Before the AD, Green testified that Prudential required the cleaning service contractor be unionized, but that Prudential had no preference as to which union would represent the employees. Green stated that her discussions with Frazier prior to his approval of the contract award pertained to the cost and level of services to be provided under the contract. Green testified that after approval of the contract, Systems’ general manager, Kip Marshall, warned her that Prudential may experience union problems at Gateway Center. Though Green could not remember the exact date of her conversation with Marshall, she noted that there would have been some internal communication about their conversation. App. 130. Finally, in response to the question, “Who did you talk to about your conversation with Mr. Marshall?” Green answered, “It would have been Gary Frazier.” App. 132.
The parties dispute the meaning of Green’s testimony. Frazier argues that Green’s last answer implies that if she had known about potential union problems she would have reported the information to Frazier. The Board argues that Green meant that she did know of the potential for problems and that Frazier would have been the person with whom she had discussed the matter. Given that Green testified to knowledge of the potential for labor problems at Gateway Center in the period after the new contract had been approved and her habit of reporting conversations about Gateway Center with others, we find the Board’s interpretation convincing. Further, the Board’s reading bolsters its assertion that the purpose of its subpoena request was to learn what Frazier knew in the period after the contract was awarded.
In sum, we find that Frazier’s testimony may be related to or relevant to the Board’s allegations in its unfair labor practice complaint against Systems and Control. The Board did not seek Frazier’s testimony regarding the decision to approve Systems’ recommendation to awarded the cleaning contract to Control. Rather, the Board sought Frazier’s testimony regarding his knowledge of the June 1989 labor dispute.
As a final consideration, Frazier seeks to evade compliance with the Board’s subpoena by alleging that the Board sought the subpoena for an improper purpose. This court has stated that the burden on a party seeking to dodge compliance with a subpoena “is not a meager one.” N.L.R.B. v. Interstate Dress Carriers, Inc., 610 F.2d 99, 112 (3d Cir.1979). Such a party must come forward with facts suggesting that the subpoena is intended solely to serve purposes outside the purview of the jurisdiction of the issuing agency. “If the party seeking to quash the subpoena does not satisfy these threshold requirements, a district court should, in a § 11(2) enforcement case, act summarily.” Id.
Frazier contends that the Board does have an improper purpose, namely, to reliti-gate allegations against Prudential that were dismissed by the Board’s General Counsel. While this court has stated that the enforcement of a subpoena for an improper purpose constitutes an abuse of the court’s process, see United States v. Westinghouse Elec. Corp., 788 F.2d 164, 166-67 (3d Cir.1986), and can be raised as a defense against summary enforcement, we do not believe the Board seeks Frazier’s testimony for the improper reasons Frazier suggests.
At oral argument, counsel for Frazier asserted that Frazier refused to testify in part to prevent the questioning of other Prudential employees in the Union’s effort to link Prudential with the unfair labor practices charged in the Board’s complaint. If Frazier testified and provided little relevant testimony, so argued his counsel, then the Union would encourage the Board to subpoena another Prudential employee. Frazier believes that Green’s testimony alone is sufficient for the purposes of the Board’s proceedings against Systems and Control.
We disagree. While the court has no opinion as to the value of Frazier’s testimony, we merely require that Frazier testify because his testimony appears to be relevant to the unfair labor practice proceeding. If the Board issues further subpoenas to Prudential employees, counsel for Prudential or those employees will be able to argue about the relevancy of the requested testimony at the appropriate time.
V.
We will reverse the district court’s judgment that the Board is not entitled to enforce its subpoena of Gary Frazier, and we will remand for proceedings consistent with this opinion.
. That section provides:
A magistrate may be assigned such additional duties as are not inconsistent with the Constitution and Laws of the United States.
28 U.S.C. § 636(b)(3).
. The enforcement proceeding additionally could have been referred to the magistrate under section 636(c)(1). However, jurisdiction under that section requires the consent of the parties, and the record contains no indication that the parties consented here to the magistrate's jurisdiction.
. While section 636(b)(1) allows a district court judge to designate a magistrate to determine nondispositive motions and to make recommendations on dispositive motions, Local Rule 40 reinterprets the statute, consistent with judicial economy, to allow each magistrate to perform all duties assigned by the court which are consistent with the Constitution and the laws of the United States. Those duties include deciding nondispositive motions and making recommendations to the district court on dispositive motions, as well as the broader possibilities provided in section 636(b)(3). While the local rule still envisions that judges will assign certain matters to a magistrate directly, its broad language and its use of "court” rather than "judge" nonetheless departs from the statutory notion that district court judges will have the primary role in designating matters for the magistrates' attention.
. Our decision would be no different if the district court had referred the proceeding to the magistrate under section 636(b)(3).
. Frazier argues that because the district court reviewed the same documents as the magistrate judge, the court did in fact apply a de novo standard. For reasons we discuss in Part IV, infra, we find that, even if the district court did apply a de novo standard, reversal is still necessary because its review was based on an erroneous finding of fact regarding the purpose of Frazier's testimony. | 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. | What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_r_natpr |
TRIPLETT et al. v. LINE MATERIAL CO.
No. 8105.
Circuit Court of Appeals, Seventh Circuit.
Feb. 8, 1943.
Rehearing Denied March 22, 1943.
John A. Dienner, Robert R. Lockwood, and Edward C. Grelle, all of Chicago, 111., for appellants.
Charles W. Hills, Jr. and Charles F. Meroni, both of Chicago, 111., for appellee.
Before MAJOR, MINTON, Circuit Judges, and LINDLEY, District Judge.
LINDLEY, District Judge.
Plaintiff corporation, owner of application of Triplett 758,372, filed December 30, 1934 and of that of Lindell 70,280, filed March 23, 1936, each for improvements in electrical fuses, and the applicants therein, appeal from a judgment entered in a proceeding under Section 4915, R.S., 35 U.S.C.A. § 63, adjudging each application void for want of patentability and dismissing the complaint for want of equity. They contend that the court unjustifiably exceeded its authority in redetermining the question of patentability and found the applications void; that the evidence supplied a rational basis for a finding only that the claims are patentable and that the court improperly found Lindell’s claims void on the premise that products made in accord with its teachings were on sale more than two years prior to his filing date.
The Commissioner, as the result of an interference proceeding, refused patents upon both applications, awarding priority of invention to one Steinmayer, whose application was owned by defendant, and to whom the patent issued. The Commissioner held the claims patentable over the prior art but found that Steinmayer was the first inventor. Thereupon plaintiffs filed this suit, seeking judgment that they were entitled to receive patents for the inventions, as provided in the statute. That Act provides that where application for patent is denied, the applicant may have a remedy in equity wherein the court may adjudge that he is entitled to receive a patent. In its amended answer defendant not only pleaded priority of invention by Steinmayer but also asserted that the claims do not cover patentable subject matter.
Plaintiffs contend that it was the duty of the court, under the language of Radtke Patents Corporation v. Coe, 74 App.D.C. 251, 122 F.2d 937, to determine only whether a “rational basis” existed for the Commissioner’s decision. Defendant contends, and the District Court held, that it was the province of the court, under Hill v. Wooster, 132 U.S. 693, 10 S.Ct. 228, 230, 33 L.Ed. 502, to determine first of all whether the applications disclose patentable inventions. This, we think, is correct. In Hill v. Wooster, supra, the court announced that, under the pertinent section of the Act of Congress, “no adjudication can be made in favor of the applicant, unless the alleged invention for which a patent is sought is a patentable invention. * * * A determination of that issue alone, in favor of the applicant, carrying with it, as it does, authority to the commissioner to issue a patent to him for the claims in interference, would necessarily give the sanction of the court to the patentability of the invention involved. * * * Neither the circuit court nor this court can overlook the question of patentability.” In other words, applicants, seeking relief under the statute, must present to the court evidence showing that they are entitled to receive a patent before they can have a judgment awarding such relief. If their claim and the evidence submitted disclose no patentable invention, obviously they are entitled to no relief. It is the proper function of the District Court and its duty to inquire into and determine whether the complaint is endowed with equity in this respect.
Inasmuch as the District Court, properly following this rule, found that the applications disclosed no patentable invention, our duty is to look to the evidence to determine whether the conclusion is justified.
The parties having agreed that the claim of Triplett known as Count I and that of Lindell known as Count 4 are typical of the several claims, they are reproduced in the footnote. Each applicant petitioned' for a patent for a replaceable fuse link, comprised of (1) a fuse tube (a container); (2) a relatively infusible terminal at one end of the tube for connection to one line terminal; (3) another line terminal at the other end; (4) fusible means connecting the two terminals; (5) a coil spring inside the tube, anchored at the lower end and arranged to “bias the terminals apart”; (6) a flexible conductor. Lindell added a washer near the bottom of the tube to be utilized as an anchor for the spring.
Such fuse links are utilized in effectuating cut-out or arresting means to protect distribution transformers supplying residential lighting loads from overloads and short circuits. These transformers usually reduce the voltage of incoming current from 2300 volts to 110 volts for domestic purposes. The fuse link is interposed in the circuit to melt or blow out and thus break the circuit, in case of overload or short circuit. By the fusing of the “fusible means” connecting the two terminals of the link, the circuit is broken and further damage from the short circuit or overload avoided. The fuse should be built so as not to blow out except when necessary; otherwise it will interrupt the steady flow of current. And equally obviously, to prevent spreading damage, it should be so constructed as to blow out immediately in case of overload or short circuiting.
Fuse links are old. They have been essential in efficient distribution and reduction of electric current ever since the latter became a household convenience. Those utilized have long embraced substantially every element included in the devices of the applications. Thus in all fuses there are terminals connected by a fusible substance. This elemental construction is of the essence of the utility of the fuse. When one considers the purpose of the device, the reasons for its efficiency, namely, the presence of a fusible element connecting the two terminals, it is obvious that utility and efficiency require that the terminals shall be of substantially relatively more nearly infusible material than the connecting fusible means, which the user contemplates will be destroyed by a blow-out. Equally within his contemplation, terminals and other parts will not, must not, be fused or destroyed. Hence they must be relatively less fusible.
Plaintiffs claim that Triplett achieved invention in contribution of “a universal fuse link which was self-contained and had precision of operation built into it irrespective of the tube in which it was placed and without regard to the kind of mounting.” But in his claims no new elements are found. The terminals, the fusible means connecting them, bringing in and passing out the normal current, were all old in the art. And we think, too, the District Court properly concluded that the use of a spring inside the fuse tube was old. Triplett provided such a spring, anchoring it so as to place the terminal under tension, the purpose being to have it function so as to separate quickly the terminals of the link in case of fusing and thus prevent extension of damages from the overload or short circuit beyond the fused material. But the prior Kearney link included such a spring, serving the same purpose, in substantially the same manner. His spring was anchored, not by a washer, as Lindell prescribed, but by being hooked to the wall of the tube. Triplett himself described no special means of anchoring but Lindell suggested a washer to serve as an anchor, located near the bottom of the tube, supporting the entire base of the spring. Kearney employed no such base but fixed the end of the spring near the bottom of the tube by hooking it into a hole in the wall of the tube. Thus the spring was anchored at one point of its circumference instead of on its entire periphery. But this did not constitute invention. The change from hook to washer was the obvious expedient of a skilled mechanic and.effectuated no new function or utility.
That applicants were familiar with Kearney’s teachings is apparent from a letter written by Lindell on October 6, 1938, in which, speaking of the interference then pending, he said that on September 19, 1933, he and Triplett knew about the Kearney device, “having a tension spring anchored at the other end of the tube” and he and Triplett, in their testimony, admitted knowledge of the construction prior to filing their applications. Apparently all that Triplett and Lindell did in this respect was to redesign the link disclosed in Ramsey 2,144,707, anchoring Kearney’s spring inside the tube as he did. No invention lay in what they specified.
Plaintiffs contend that the applicants were the first to prescribe relatively infusible terminals but we think that if, in order to negative patentability it was necessary to have such prior disclosure, Ramsey supplied it. We are rather of the opinion that it is perfectly obvious to an electrical worker that, to prevent damage spreading when the fusible means fuses, it is essential that the terminals which the fusible means connects be of relative infusible character so that the force destroying the fusible means will not also destroy the terminals and that it was not invention to specify relatively less fusible material for the terminals. But if the suggestion was essentially inventive it had been taught by the prior art.
Lindell in his application added nothing except the washer' or anchoring means of which we have spoken. He abandoned the anchoring hook and adopted an anchoring washer; this, we think, was not invention. We think both applicants did nothing more than utilize the construction of Ramsey, putting inside the tube the spring as taught by Kearney and substituting for Kearney’s hook Lindell’s washer. This improvement may have proved practical, desirable and popular, but, it seems to us, is clearly the» expedient of a skilled mechanic in the art.
Plaintiffs contend that Lindell’s washer contributes a so-termed “non-cumulative feature”; but we find no such teaching in his claims. If it is any where connoted, or necessarily results from Lindell’s construction, we think the feature is disclosed in Steinmayer 1,952,635.
In view of the facts mentioned and further evidence in the record which we do not deem it essential to refer to, the District Court properly held the claims embraced in the two applications not patentable. In view of our conclusions, it is unnecessary to discuss the issue of priority or that of invalidating sales.
The judgment is affirmed.
Triplett Count I. A replaceable fuse link for interconnecting a pair of line terminals comprising, a fuse tube, a first relatively infusible terminal at one end of said fuse tube for connection to one line terminal, a conductor including a second relatively infusible terminal and a flexible lead extending out of the other end of said fuse tube for connection to the other line terminal, fusible means interconnecting said terminals, said conductor being freely movable out of said fuse tube on blowing of said fusible means, and a coil spring inside said fuse tube and anchored at the other end thereof and arranged to bias said terminals apart.
Lindell Count 4. A replaceable fuse link comprising a fuse tube, a terminal at one end of said tube, a conductor extending out of said fuse tube including a terminal and a flexible lead connected thereto, a fusible section interconnecting said terminals, a coil spring inside said fuse tube tensioning said fusible section and compressing said fuse tube, and means substantially uniformly distributing the stress of said spring as applied in compressing said fuse tube. | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting. | What is the number of judges who dissented from the majority? | [] | [
0
] | songer_dissent |
R. A. WEAVER AND ASSOCIATES, INC., et al. v. HAAS AND HAYNIE CORPORATION and Blake Construction Company, Inc., Appellants. R. A. WEAVER AND ASSOCIATES, INC., et al., Appellants, v. HAAS AND HAYNIE CORPORATION and Blake Construction Company, Inc., et al.
Nos. 78-1205, 78-1283.
United States Court of Appeals, District of Columbia Circuit.
Argued April 25, 1979.
Decided Dec. 4, 1980.
Robert F. Condon, Washington, D. C., for appellants in No. 78-1205 and cross-appellees in No. 78-1283.
Morris Rosenberg, Baltimore, Md., also entered an appearance for International Stone and Erectors, Incorporated, appellee in No. 78-1205 and cross-appellant in No. 78-1283.
Jerry S. Cohen, Washington, D. C., with whom Michael D. Hausfeld, Washington, D. C., was on the brief, for appellees in No. 78-1205 and cross-appellants in No. 78-1283.
Before WRIGHT, Chief Judge, ROBINSON, Circuit Judge, and LARSON , United States Senior District Judge for the District of Minnesota.
Sitting by designation pursuant to 28 U.S.C. § 294(d) (1976).
Opinion PER CURIAM.
PER CURIAM:
At issue are judgments in favor of two plaintiffs, R. A. Weaver & Associates, Inc. (Weaver) and International Stone & Erectors, Inc. (ISE), against two defendants, Blake Construction Company, Inc. (Blake) and Haas & Haynie Corporation, for damages for breach of contract and tortious conversion of property. The District Court predicated the judgments on jury verdicts which, save in one respect, the court refused to set aside. We sustain the award for the conversion found. We reverse, however, the judgments for breach of contract and remand that aspect of the litigation for further proceeding.
I. BACKGROUND
In 1971, the General Services Administration (GSA) invited bids for the construction of a federal office building in the District of Columbia designated as the “South Portal” site project. The architectural plans for the project specified black slate from Maine or Virginia as the material to be used in paving the plaza and driveways. Blake submitted a lump-sum bid incorporating the price quoted to it for a Virginia black slate meeting the specifications.
GSA awarded the construction contract to Blake in 1972, whereupon Blake commenced negotiations with suppliers for the purchase of the slate required for the plaza and driveways. Weaver and ISE were among those interested in supplying slate for the project. Weaver quoted to ISE a price for Nor Cashire slate — a blue-black slate to be quarried in England and fabricated in the United States — and ISE in turn proposed its use to Blake. As a result, on March 19, 1972, Blake and ISE entered into a purchase-order contract, the terms of which are vital in this litigation. The contract evidenced ISE’s agreement to furnish, for a stated price, Nor Cashire slate and domestic granite “in full and complete accord with the Specifications and Drawings prepared by the Architect and forming a part of the Contract, for subject project, between the Contractor and the Owner.” More finely, the parties stipulated that “[t]his contract ... is subject to the approval by the Owner of imported but domestically fabricated ‘Nor Cashire’ Blue Black Slate meeting the requirements of the ‘Buy America [American] Act;’ ” still later, they reiterated that “[t]he items to be provided herein are subject to approval by the Owner.” The contract was silent, however, on the time within which approval was to be secured. To boot, a nearly contemporaneous letter from ISE to Blake amending the purchase order stated:
The contract is based upon the approval of Nor Cashire Slate by the Owner. [We are] to prepare the necessary documents showing how [we] proposef] to meet the requirements of the “BUY AMERICA [American] ACT.” This also [may be] subject to the Owner’s approval if requested. Should we not secure approval of the above, it is understood that the contract will be void without recourse to either party. We stand ready to assist to secure approval.
A bit later, ISE contracted with Weaver for the purchase of Nor Cashire on terms similar to those in the Blake-ISE agreement.
In June, 1973, in accordance with the specifications governing construction, test data, certifications and samples of Nor Ca-shire slate were furnished to supervising architects for approval. On July 17, 1973, however, the architects disapproved the proposed slate for three reasons. The modulus of elasticity, they stated, was substantially lower than the value required; the appearance of the slate, they added, was unsatisfactory; furthermore, they pointed out, the slate was a foreign rather than a domestic product.
Promptly, on July 20, Blake objected, and on August 19, transmitted a Weaver-prepared letter with attachments protesting the architects’ decision. About November 1, Blake augmented these submissions with a formal petition for approval of the slate under the Buy American Act. Meanwhile, the architects modified their July 17 position. In a letter to GSA’s contracting officer dated September 11, 1973, they expressed the opinion that the Nor Cashire slate “substantially meets the requirements of” the specifications; “[pjrovided that the test data submitted applies to the Grade ‘A’ and to the Select Stock, both samples would have the physical properties required for paving stones.” •
Walter E. Huber, however, the GSA contracting officer who alone had authority to substitute Nor Cashire slate for the slate originally designated, did not act immediately to approve the slate. Though perhaps prepared to authorize the change if need be, he desired instead to investigate with Blake the possibility of substituting granite for slate with an equitable adjustment making the substitution economically feasible for GSA. For this reason, three months went by without any decision by the contracting officer as to whether Nor Cashire slate would be accepted. On December 14, 1973, after unfruitful discussion of the matter with ISE, Blake gave formal notice that it was cancelling its contract with ISE for nonsatisfaction of the contractual requirement of GSA approval of the Nor Cashire slate. Some months later, after negotiations with Blake, GSA substituted charcoal black granite for slate as the paving material for the plaza and driveways.
One more episode completes the factual background. Weaver had prepared a 13-page set of shop drawings showing the size and placement of slate and granite to be used in the South Portal site project. Weaver had submitted these drawings to ISE, and ISE had delivered them to Blake. After cancellation of the Blake-ISE contract, Blake turned the drawings over to Cold Spring Granite Company (Cold Spring), the supplier of the granite ultimately employed in the project, a step by which Blake benefited to the tune of a $13,000 credit on Cold Spring’s contract price to Blake. Later, Blake offered ISE and Weaver $10,000 for the drawings, but only on condition that they execute a full release of all claims against Blake arising out of the contract cancellation. Not surprisingly, ISE and Blake declined this proposition.
In 1975, ISE, Weaver and another instituted an action in the District Court against Blake and others, and the case reached trial before a jury. Claims of breach of contract and tortious conversion of the shop drawings survived a defense motion for a directed verdict, the court reserving decision on the motion. The jury returned verdicts favoring the plaintiffs on each of these claims, finding, in the court’s words, “that plaintiffs had proved by a preponderance of the evidence that: (1) [Blake] had breached [the] contract with [ISE]; (2) [Weaver] was a third-party beneficiary of the contract between [Blake] and ... ISE; and (3) [Blake] tortiously converted the shop drawings of . . . ISE and Weaver.” For the contract breach, the jury awarded ISE $30,000 and Weaver $86,000 as compensatory damages; for conversion of the shop drawings, the award to them was $17,000 as compensatory and $100,000 as punitive damages.
Blake thereafter moved for judgment notwithstanding the verdict. The District Court granted the motion with respect to profits assertedly lost by the claimants, thus limiting them to out-of-pocket expenses of $2,000 and $12,000, respectively, but denied the motion in all other respects. These appeals followed.-
II. TORTIOUS CONVERSION
We first consider Blake’s multifaceted assault on the verdict finding a conversion of the shop drawings furnished Blake, and assessing compensatory and punitive damages therefor. Careful examination of Blake’s objections in light of the trial record satisfies us that the District Court was eminently correct in its refusal to upset the jury’s decision on this segment of the litigation.
Blake argues initially that the evidence did not support findings establishing the elements of a tortious conversion, as distinguished from a breach of contract. More specifically, Blake asserts that ISE and Weaver were legally entitled, not to return of the drawings, but only to be paid for them. On that premise, and since punitive damages are not ordinarily recoverable for breach of contract, Blake insists that an allowance of punitive damages was in error. The fallacy in Blake’s position is that it overlooks the claimants’ proprietary interest in the drawings — an interest quite apart from their contractual right to payment, and one that they retained throughout. Fairly appraised, the evidence shows that Weaver prepared and submitted the drawings as part of the joint endeavor with ISE to sell their slate and granite products for use in the South Portal site project. We perceive nothing in the evidence that would demonstrate that ISE and Weaver ever surrendered their ownership of the drawings to Blake. Moreover, as the District Court stated,
ample evidence was adduced at trial to prove that defendants unlawfully exercised ownership, dominion, and control over plaintiffs’ shop drawings in denial and repudiation of plaintiffs’ rights thereto. Mr. Morton Bender, President of defendant Blake Construction Co., admitted in his testimony that the shop drawings were plaintiffs’ property and that he knew he had an obligation to pay plaintiffs therefor. Mr. Bender also admitted (1) that defendant Blake transferred plaintiffs’ shop drawings to Cold Spring in exchange for a $13,000 decrease in the contract price for the provision of granite, and (2) that the Government added $13,000 as an equitable adjustment to the contract price to be paid to Cold Spring on the ground that Cold Spring had paid $13,000 to Blake, who in turn was to pay that sum to plaintiffs ISE and Weaver. Mr. Bender further admitted on the stand that he never tendered the money nor even made an unconditional offer to tender the $13,000 to the plaintiffs until the actual trial. Mr. Bender only offered before trial, according to his story, to pay plaintiffs for the drawings only if they settled all other outstanding claims against Blake and even then he only offered to pay plaintiff the sum of $10,000. The jury’s determination that defendants were liable in conversion for the reasonable value of the shop drawings was thus supported by substantial evidence and was entirely reasonable.
We are also satisfied that the jury did not go astray in its assessment of damages for the conversion. As evidence buttressing the award of $17,000 compensatory damages, the District Court pointed out that “[i]n view of the fact that defendants were able to sell these shop drawings for $13,000 to Cold Spring, it was perfectly reasonable for the jury to infer that plaintiffs could have obtained $4,000 more for the drawings had they been afforded their rightful opportunity to negotiate the sale themselves.” Furthermore, as the District Court added, “the jury was entitled to give appropriate weight to plaintiff Weaver’s testimony that the drawings were worth $30,000.” Since the measure of compensatory damages was the value of the drawings, we deem the verdict adequately justified in amount.
We think, too, that in the circumstances portrayed by the evidence, the jury was properly permitted to consider an imposition of punitive damages. As the District Court observed,
Mr. Bender at all times knew that the shop drawings were plaintiffs’ property. Nevertheless, he intentionally and deliberately withheld the $13,000 payment he had received therefor, and offered to pay only part of this sum to plaintiffs and only then if they agreed to compromise all their other outstanding claims, including their breach of contract claims. Only at trial did Mr. Bender acknowledge plaintiffs’ lawful right to the shop drawings. There can be no doubt that the jury’s inference of the requisite malicious, wanton and/or willful disregard of plaintiffs’ rights from this course of behavior was entirely appropriate.
And we agree with the District Court that
the jury’s award of $100,000 as punitive damages is not, in the circumstances of the present case, “so great as to shock the conscience” nor is it “so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate.” Williams v. Steuart Motor Company, 494 F.2d 1074, 1085 (D.C.Cir.1974), quoting Frank v. Atlantic Greyhound Corp., 172 F.Supp. 190, 191 (D.D.C.1959), and Graling v. Reilly, 214 F.Supp. 234, 235 (D.D.C.1963). See Wingfield v. Peoples Drug Store, Inc., 105 Wash.Daily L.Rep. 2081, 2086 (D.C.App.1977) (November 17, 1977). Nor can it be said that the award of $100,000 is “excessive, or larger than should be condoned in simple justice,” Afro-American Publishing Co. v. Jaffe, 366 F.2d 649, 663 (D.C.Cir.1966), in view of the magnitude of defendants’ business enterprise.
III. BREACH OF CONTRACT
We move on to the contentions, two in number, that Blake advances in its attempt to overturn the verdict finding a breach of the Blake-ISE purchase-order contract. One — that Weaver could not
properly have been regarded as a third-party beneficiary of that agreement — gives us little pause. Before the contract came into being, Blake knew that early on Weaver had sought architectural approval of Nor Cashire slate for the South Portal site project; that in 1972 Weaver had himself submitted a bid to supply that slate; that Weaver was the exclusive distributor for Nor Cashire slate in the United States; that ISE represented Weaver in quoting the bid to Blake on Nor Cashire slate; and that Weaver was to supply the slate for ISE in fulfillment of the contract. Additionally, events subsequent to execution of the contract reflected a preexistent common understanding of Weaver’s vital interest therein. Weaver provided the samples of Nor Cashire slate, submitted all test data on that slate, and assembled the documentation for the effort to obtain its acceptance under the Buy American Act. Indeed, Blake’s petition to GSA for that approval expressly acknowledged that it was presented on behalf of Weaver as well as ISE. The status of one unnamed in a contract as a third-party beneficiary is essentially a matter of intention, and the verdict fared well enough under that standard.
Blake’s remaining argument, however, does identify a vulnerable spot in the verdict on breach of contract. The claim is that the evidence could not possibly have sustained the jury’s conclusion that the contract was breached because, Blake says, the contractual stipulation requiring GSA approval of Nor Cashire slate was not satisfied. We agree that Nor Cashire slate was never accepted as material suitable for use in the South Portal site project and that consequently the condition precedent to performance of Blake’s express obligations under the contract was never met. As the District Court delineated:
The uncontradicted and unimpeached testimony of Walter E. Huber, who as the GSA Contracting Officer for the South Portal site was the final authority on contract matters concerned therewith, was that he had made a decision during the fall of 1973 to change the paving material at the South Portal site from slate to granite. Mr. Huber testified that the reasons for making this decision were: (1) after seeing an installed sample of Nor Cashire slate, he had concluded that the slate was an “undesirable finish” because its rough testure [s/c] (elsewhere described as “lippage”) gave rise to potential safety problems, such as tripping and (2) the architects had expressed a definite preference for granite over slate because of aesthetic considerations. Mr. Huber testified further that the Government was in no way obligated to accept plaintiffs’ Nor Cashire slate if it determined, as it did on March 4, 1974, that granite or some other paving material were preferable.
The inquiry cannot end at this point, however, for two further questions persist. One is whether Blake acted prematurely in cancelling the contract on the ground of non-satisfaction of the condition, for if it did it violated an implied term of the contract. The other question is whether Blake failed in performance of any duty of good-faith cooperation with ISE and Weaver which, though not articulated in the contract, may nevertheless have been still another implied stipulation thereof. To these two matters we now turn.
While the Blake-ISE contract explicitly conditioned Blake’s performance on GSA’s acceptance of Nor Cashire slate in lieu of the slate originally specified, the contract was silent on the period within which acceptance might permissibly be obtained. A reasonable time for securing GSA approval thus became an implied term of the agreement. We are mindful that almost nine months elapsed between formation of the contract and its cancellation by Blake without a definitive decision by GSA on substitution of Nor Cashire slate. But we cannot say that timewise the cancellation was so clearly reasonable that fair-minded people could not disagree. The question, then, was one for the jury, and the distressing fact is that the District Court’s instructions to the jurors did not leave them room to ponder a verdict on the question whether Blake breached the contract by terminating it prematurely.
The verdict on breach of contract thus is unacceptable either as a presumed finding that the event conditioning Blake’s performance had occurred or as a finding that Blake unreasonably shortened the period for its possible occurrence. One other theory deserves exploration, however.
It is well settled that nonoccurrence of a condition precedent to a promissor’s performance is normally excused when fairly attributable to the promissor’s own conduct. An express promise to perform on the happening of an event warrants implication of a promise to refrain from activity impeding its happening, and breach of the implied promise is legally as serious as breach of the express. This rule is properly invoked not only when the promissor completely forecloses occurrence of the condition but also when he substantially hinders its occurrence. Some courts extend the injunction to the point of holding that parties to a contract impliedly covenant, not only to refrain from active interference, but affirmatively to cooperate in good faith efforts to achieve whatever is necessary to clear the way for performance. There are exceptions as valid as the principles themselves, but they come to no more than adequate justification for whatever the promissor did.
Even assuming that the District Court was free to resort to this body of doctrine, it gave instructions authorizing consideration of Blake’s precancellation conduct only in terms of an obligation to refrain from prevention or hindrance of GSA approval of Nor Cashire slate. The evidence certainly did not support any theory that Blake actively interfered with approval, but by our appraisal, it was not so one-sided that it foreclosed the possibility of a finding that Blake fell legally short on a duty to cooperate. So, when the time arrived for the court to instruct the jury, it became important to ascertain whether under the applicable law cooperation was an implied term of the contract; and the first step ordinarily would have been a determination on the local-law principle to be applied. The record, however, reflects no consideration of the choice-of-law problem, and offers no clear-cut indication of the court’s view on whether a duty to cooperate was to be recognized as part of the body of substantive jurisprudence to be administered. All we really know is that the charge to the jury limited Blake’s implied obligation to a duty not to prevent or hinder performance. It follows that the verdict cannot be salvaged on the theory that it could have rested on a finding that Blake shortchanged ISE and Weaver on cooperation.
The judgment of the District Court is affirmed insofar as it established and awards damages for conversion of the shop drawings. In its relation to the breach-of-contract claims, the judgment is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
So ordered.
. Haas & Haynie Corporation (H&H) was a joint venturer with Blake as general contractor for the construction work from which this litigation stemmed. H&H had nothing to do with the actual decisionmaking or day-to-day management of the project; instead, Blake was the managing venturer for the project. Joint Appendix (J.App.) 115. We refer herein to Blake and H&H merely as Blake.
. There were other parties to the litigation. See notes 33, 34 infra.
. J.App. 217.
. J.App. 246.
. J.App. 260. It is standard practice in the construction industry for a general contractor bidding on a job to seek quotations from subcontractors for work and materials, and then to utilize the quotations in formulating a bid figure. These initial price quotations do not necessarily eventuate as the general contractor’s actual costs. After the contract is awarded, the bidder becoming the general contractor may bargain with subcontractors other than those who furnished quotations and thereby secured the necessary work and materials. Brief for Appellees and Cross-Appellants at 6-7 (unnumbered footnote).
. J.App. 288.
. As early as 1971, Weaver had explored the possibility of supplying Nor Cashire slate for the South Portal site project. Efforts in that direction led to a letter from a group of supervising architects to GSA advising that Nor Ca-shire slate “apparently is capable of meeting all of the structural requirements for the proposed exterior uses,” and that “[i]n any case, we find this slate is completely acceptable to us, as architects, from the appearance point of view, and its use may be permitted at both the interi- or and exterior parts of the building.” J.App. 308.
. The proposal was first made on March 11, 1972, prior,to GSA’s selection of Blake as general contractor. ISE then told Blake that Weaver was the American distributor for Nor Cashire slate and that GSA had approved its use in the South Portal site project. J.App. 304. The proposal was renewed on February 12, 1973, at which time ISE informed Blake additionally that it represented Weaver and that Nor Cashire slate would pass muster under the Buy American Act, 41 U.S.C. §§ 10a-lOd (1976) — legislation concerning the use of imported materials on domestic governmental construction projects. J.App. 306.
. J.App. 315.
. The granite was to be devoted to uses other than plaza and driveway paving, and plays no part in these appeals.
. J.App. 315. “Owner” obviously referred to the United States Government.
. J.App. 315. The general nature of the legislation referred to is indicated in note 8 supra.
. J.App. 316.
. J.App. 127.
. J.App. 126.
. J.App. 268.
. J.App. 268.
. J.App. 268.
. J.App. 268.
. J.App. 280.
. J.App. 334.
. J.App. 321.
. J.App. 322.
. This the parties fully concede. Brief for Appellants and Cross-Appellees at 10; Brief of Appellees and Cross-Appellants at 16.
. At trial, Huber stated that in his judgment Nor Cashire slate was acceptable as the material required for plaza and driveway paving at the South Portal site project with regard to both physical and aesthetic properties. Trial Transcript (Tr.) 292. He further stated that he was bound to accept Nor Cashire slate as an approved material so long as it satisfied the Buy American Act. Tr. 289-291. At the time, however, the architects were interested in ascertaining the availability of granite instead of slate, and this they told Huber, who testified that he wished to inquire of Blake as to the possibility of substituting granite for slate if an equitable adjustment could be secured to make the substitution economically feasible for GSA. Tr. 327.
. Tr. 327. Further details appear in text infra at note 54.
. J.App. 388.
. J.App. 376.
. J.App. 394.
. J.App. 393.
. Tr. 560-561.
. For the District Court’s description of these events, see text infra at note 44.
. The third plaintiff, Barretto Granite Company (Barretto), was expected to become the supplier of granite to Blake if it chose to honor a request by ISE, after the Nor Cashire slate proposed had long been under submission to GSA, that Blake submit a bid for ISE to supply granite in lieu of slate to GSA. Barretto, like Weaver, sued on the theory that it was a third-party beneficiary of the Blake-ISE contract. The District Court granted Blake’s motion for a directed verdict against Barretto, and that ruling has not been appealed.
. The other defendants were H&H, see note 1 supra, and Cold Spring.
. The District Court had previously dismissed counts alleging fraudulent representation and tortious interference with the Blake-ISE contract when the claimants made known their desire to abandon them, and had entered a summary judgment against them on a count charging an antitrust conspiracy. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., Civ. No. 75-2142 (D.D.C. Dec. 23, 1977) at 1 n.1; J.App. 203.
. See Fed.R.Civ.P. 50(b).
. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., supra note 35, at 2, J.App. 204.
. Id.
. See Fed.R.Civ.P. 50(b).
. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., supra note 35, at 3, J.App. 205.
. Blake appeals from each of the three judgments entered by the District Court. ISE and Weaver appeal from the court’s action in setting aside the breach-of-contract verdict to the extent that it had awarded them loss of profits. See text supra at note 40. Since the parties articulate no disagreement with that court’s apparent assumption that District of Columbia law governs, we proceed on the same assumption. See Tuxedo Contractors, Inc. v. Swindell-Dressler Co., 198 U.S.App.D.C. 426, 428-429, 613 F.2d 1159, 1161-1162 (1979), and cases there cited at notes 14, 16.
. Camalier & Buckley-Madison, Inc. v. Madison Hotel Inc., 168 U.S.App.D.C. 149, 162 n.93, 513 F.2d 407, 420 n.93 (1975); Brown v. Coates, 102 U.S.App.D.C. 300, 303, 253 F.2d 36, 39 (1958); Chesapeake & Potomac Tel. Co. v. Clay, 90 U.S.App.D.C. 206, 209, 194 F.2d 888, 891 (1952); cf. Minick v. Associates Inv. Co., 71 U.S.App.D.C. 367, 368, 110 F.2d 267, 268 (1940) (punitive damages never available, regardless of motive for breach); International Distrib. Co. v. American Dist. Tel. Co., 385 F.Supp. 871, 874 (D.D.C.1974) (same), aff'd in part and rev’d in part, 186 U.S.App.D.C. 305, 569 F.2d 136 (1977); Den v. Den, 222 A.2d 647, 648 (D.C.App.1966).
. A plaintiff need only aver title or ownership in himself to support a cause of action for conversion. See, e. g., A & C Adjusters, Inc. v. Eastern Aquatics, Inc., 236 A.2d 440, 441 (D.C.App.1967); Hampton v. Stewart, 240 Ala. 2, 194 So. 509, 510 (1940); Scutt v. Bassett, 86 Cal.App.2d 373, 194 P.2d 781, 782 (1948); Mac-Neil v. Hazelton, 306 Mass. 366, 28 N.E.2d 477, 478 (1940). If the question of ownership is disputed, it becomes a jury question; see, e, g., Lauth v. Pickup, 64 F.2d 115, 116 (2d Cir. 1933); Giguere v. Morrisette, 142 Me. 95, 48 A.2d 257, 260 (1946) (court erred in directing verdict where ownership disputed), but here the claimants’ ownership was undisputed. See text accompanying note 44 infra.
. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., supra note 35, at 5-6, J.App. 207-208 (emphasis in original).
. Id. at 6, J.App. 208.
. Id.
. We have characterized this yardstick as “[t]he most distinctive feature of conversion.” Pearson v. Dodd, 133 U.S.App.D.C. 279, 284, 410 F.2d 701, 706, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (1969).
. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., supra note 35, at 6, J.App. 208.
. Id. at 7, J.App. 209.
. J.App. 335.
. See Safer v. Perper, 186 U.S.App.D.C. 256, 261, 569 F.2d 87, 92 (1977) (applying Maryland law); Seaver v. Ransom, 224 N.Y. 233, 120 N.E. 639, 641 (1918); Mowrer v. Poirier & McLane Corp., 382 Pa. 2, 114 A.2d 88, 89 (1955).
. True it is that supervising architects at times favored use of this slate. But only Walter E. Huber, the contracting officer, could approve its substitution for the slate originally specified, and that he never did.
. See text supra at notes 11-14. Approval of Nor Cashire slate for use in the project was clearly such a condition. See Brier v. Orenberg, 90 A.2d 832, 833 (D.C.Mun.App.1952) (condition precedent is a fact which must exist or occur before a duty of performance arises); Creighton v. Brown, 77 A.2d 559, 560 (D.C.Mun.App.1950).
. R. A. Weaver & Assocs., Inc. v. Haas & Haynie Corp., supra note 35, at 9, J.App. 211. These observations were part of the court’s elucidation of its ruling setting aside the jury’s award of lost profits.
. See text infra at notes 57-59.
. See text infra at notes 60-66.
. Clayman v. Goodman Properties, Inc., 171 U.S.App.D.C. 88, 95 n.44, 518 F.2d 1026, 1033 n.44 (1973) (legal effect of contract omitting specification of time for performance is that it is to be performed within a reasonable time); Fox v. Johnson & Wimsatt, Inc., 75 U.S.App.D.C. 211, 217, 127 F.2d 729, 735 (1942) (rule of reasonableness generally controls when time not specified); Hartman v. Ruby, 16 App.D.C. 45, 58 (1900) (same).
. See, e. g., American Concrete Steel Co. v. Hart, 285 F. 322, 327-328 (2d Cir. 1922); Bradford Novelty Co. v. Technomatic, Inc., 142 Conn. 166, 112 A.2d 214, 217 (1955); Hardin v. Eska Co., 256 Iowa 371, 127 N.W.2d 595, 597 (1964). The question whether the elapsed time was reasonable did not here depend on construction of the contract, see McGary v. Campbell, 245 S.W. 106, 115 (Tex.Civ.App.1922), nor was its duration such that divergent inferences could not fairly be drawn therefrom, see Morton v. Roanoke City Mills, Inc., 15 F.2d 545, 546 (4th Cir. 1926).
. In its entirety, the court’s charge on breach of contract was as follows:
A breach of contract is a nonperformance without legal excuse of any contractual duty of immediate performance. A breach may be total, or it may be partial, and it may take place by the failure to perform acts promised, or by prevention or hindrance, or by repudiation.
That, in general, is it.
A contract may be breached in a number of different ways.
It is a necessary implication of every contract containing promises binding each party that neither side, or neither party, will interfere or prevent performance by the other.
If such prevention is caused by a party to the contract, the prevention is a breach, and the preventing party is then liable in damages to the other party, as I have defined the concept of damages.
Tr. 601-602.
. E. g., Lovell v. St. Louis Mut. Life Ins. Co., 111 U.S. 264, 274, 4 S.Ct. 390, 395, 28 L.Ed. 423, 426 (1884); United States v. Peck, 102 U.S. 64, 65-66, 26 L.Ed. 46, 47 (1880); Tradewell Foods, Inc. v. New York Credit Men’s Adjustment Bureau, 179 F.2d 567, 568 (2d Cir. 1950); Stevens v. Howard D. Johnson Co., 181 F.2d 390, 393 (4th Cir. 1950); Gulf Oil Corp. v. American La. Pipe Line Co., 282 F.2d 401, 404 (6th Cir. 1960); Omaha Pub. Power Dist. v. Employers’ Fire Ins. Co., 327 F.2d 912, 916 (8th Cir. 1964); Christensen v. Felton, 322 F.2d 323, 327 (9th Cir. 1963).
. E. g., Entin v. City of Bristol, 368 F.2d 695, 701 (2d Cir. 1966); Vanadium Corp. of America v. Fidelity & Deposit Co., 159 F.2d 105, 108 (2d Cir. 1947); Miller v. Baum, 400 F.2d 176, 178 (5th Cir. 1968); Jordan v. Busch, 285 Ill.App. 217, 1 N.E.2d 745, 747 (1936); Odem Realty Co. v. Dyer, 242 Ky. 58, 45 S.W.2d 838, 840 (1932); Mehling v. Evening News Ass’n, 374 Mich. 349, 132 N.W.2d 25, 26 (1965); Parrish v. Wightman, 184 Va. 86, 34 S.E.2d 229, 232 (1945).
. See cases cited supra notes 60-61.
. E. g., Bewick v. Mecham, 26 Cal.2d 92, 156 P.2d 757, 761 (1945); Foreman State Trust & Sav. Bank v. Tauber, 348 Ill. 280, 180 N.E. 827, 829-830 (1932); Barron v. Cain, 216 N.C. 282, 4 S.E.2d 618, 620 (1939).
. E. g., Amies v. Wesnofske, 255 N.Y. 156, 174 N.E. 436, 438 (1931); Patterson v. Meyerhofer, 204 N.Y. 96, 97 N.E. 472, 473 (1912).
. See, e. g., Hudson Canal Co. v. Pennsylvania Coal Co., 75 U.S. (8 Wall.) 276, 278, 19 L.Ed. 349, 351 (1869); Vanadium Corp. of America v. Fidelity & Deposit Co., supra note 61, 159 F.2d at 108; Alois v. Waldman, 219 Md. 369, 149 A.2d 406, 409 (1959); Beech Creek Coal Co. v. Jones, 262 S.W.2d 174, 176 (Ky.1953); Miller v. Othello Packers, Inc., 67 Wash.2d 842, 410 P.2d 33, 34 (1966). See generally Patterson, Constructive Conditions in Contracts, 42 Colum.L. Rev. 903, 928-942 (1942).
. See, e. g., Restatement of Contracts § 295(a)-(b) (1932).
. Much is already embedded in local jurisprudence. The prohibition against active interference is an implied contractual term. See Karrick v. Rosslyn Steel & Cement Co., 58 App.D.C. 89, 90-91, 25 F.2d 216, 217-218 (1928); Minmar Builders Inc. v. Beltway Excavators, Inc., 246 A.2d 784, 787 (D.C.App.1968); Matthew A. Welch & Sons, Inc. v. Bird, 193 A.2d 736, 738 (D.C.Mun.App.1963); Horlick v. Wright, 104 A.2d 825, 827 (D.C.Mun.App.1954). Thus, when the contract is bilateral, a promissor’s hindrance or prevention of performance of the promisee’s return promise ordinarily excuses the latter but leaves the promissor’s contractual duties intact. Boomhower, Inc. v. Lavine, 151 F.Supp. 563, 578 (D.D.C.1957). This court has applied the interference doctrine in litigation presenting strictly nonfederal issues. Ammerman v. Miller, 159 U.S.App.D.C. 385, 394, 488 F.2d 1285, 1295 (1973). The question remaining open is whether interference and noncooperation stand on equal footing.
. See note 59 supra.
. Blake refused to submit the petition originally prepared by ISE and Weaver for GSA approval of Nor Cashire slate under the Buy American Act, and insisted that the petition be redrafted to emphasize domestic fabrication of the slate instead of the large cost saving from its use, a saving Blake may have had to refund to GSA. Tr. 120-125. Blake also, shortly before cancelling the contract, refused to press GSA for a final decision on use of Nor Cashire slate, Tr. 249, 265, perhaps again because of the specter of refund. We site these episodes merely as examples furnished by the evidence, and intimate no view on their value as such.
. E. g., Tuxedo Contractors, Inc. v. Swindell-Dressler Co., supra note 41, 198 U.S.App.D.C. at 428, 613 F.2d at 1161; Lee v. Flintkote Co., 193 U.S.App.D.C. 121, 124 & n.14, 593 F.2d 1275, 1278 & n. 14 (1979).
. See note 59 supra.
. The District Court will be at liberty to consider on remand the implied-promise theories discussed herein. | 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". | 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? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
3
] | songer_appel1_1_2 |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MONTGOMERY WARD & CO., INCORPORATED, Respondent.
No. 76-1020.
United States Court of Appeals, Tenth Circuit.
Submitted Jan. 24, 1977.
Decided April 12, 1977.
Corinna Lothar Metcalf, Washington, D. C. (John D. Burgoyne, John S. Irving, Jr., John E. Higgins, Jr., and Elliott Moore, N. L. R. B., Washington, D. C., on the brief), attys. and counsel, for petitioner.
Christopher J. Michas, Chicago, 111. (Mark C. Curran, Chicago, 111., on the brief), and Sidley & Austin, Chicago, 111., of counsel, for respondent.
Before SETH, BARRETT and DOYLE, Circuit Judges.
BARRETT, Circuit Judge.
The National Labor Relations Board (Board) seeks enforcement of its order against Montgomery Ward and Co., Incorporated (Wards), requiring Wards to cease and desist from unfair labor practices and directing Wards to bargain with the International Union of Electrical, Radio and Machine Workers, AFL-CIO-CLC (Union).
Wards operates a repair service facility in Oklahoma City, Oklahoma. On November 14, 1973, the Regional Personnel Manager for Wards sent a memorandum to the Repair Service Manager, Don McNutt (McNutt), directing: a wage survey to determine what Ward’s competition was offering; whether adjustments in the wages Wards was paying were in order; that if wage adjustments were to be made they should be based upon time and service and performance; and that wage adjustments should be accomplished by March 1,1974, to be granted in two one-month installments. McNutt announced thereafter at a November meeting of technicians that they would receive a wage increase by the end of 1973.
On January 18, 1974, McNutt submitted his recommended wage increases. On February 7, 1974, sixteen technicians from Wards repair facility attended a Union meeting, where a Union representative told the technicians that organizing a union would be difficult; that earlier attempts had proven fruitless; and that even if the employees won an election, it would probably be necessary for them to strike in order to get a contract. Twelve employees signed a set of cards (an authorization card, a membership card and a checkoff card) that evening. The following day McNutt denied Union’s request for recognition, and Wards posted a no solicitation policy. Four days later, McNutt announced the wage increases which he stated had been effective since January 31. On February 15, the Assistant Service Manager informed an employee that talking about the Union would cost him his job and he cautioned him against it. On February 20, McNutt convened a meeting of technicians, a number of whom were displaying Union stickers on their uniforms, equipment, trucks and toolboxes. McNutt warned the technicians against further display of such stickers on company uniforms or property.
On April 26, an election was held. The Union was defeated by a vote of 17 to 12. On that election day, 16 out of the 31 employees in the unit held a set of Union cards. On May 3, the Union filed objections to the election. On May 8, Walter Cockrell (Cockrell), an employee actively engaged in Union activities, was fired.
The Board found: (1) that Wards had violated § 8(a)(1) of the National Labor Relations Act (NLRA), 29 U.S.C.A. § 158, by its no-solicitation rule, the ban on Union stickers, and by its wage increases; (2) that Wards violated § 8(a)(3) and (1) of the NLRA by firing Cockrell and; (3) that a bargaining order was the appropriate remedy because a majority of the employees were members of the Union and the unfair labor practices precluded a fair election. Wards challenges the validity of those findings.
In N.L.R.B. v. Central Machine and Tool Company, 429 F.2d 1127 (10th Cir. 1970), cert. denied, 401 U.S. 909, 91 S.Ct. 870, 27 L.Ed.2d 807 (1971), we stated the standard of our review:
. Our review is limited to searching the record to see if there is substantial evidence to support the fact findings. 29 U.S.C. § 160(e). We do not sit as a super trial examiner, and do not weigh the credibility of one witness against another nor do we search for contradictory inferences . . .
429 F.2d at 1129.
See also: N.L.R.B. v. Dover Corporation, Norris Division, 535 F.2d 1205 (10th Cir. 1976), U.S. Appeal Pending; N.L.R.B. v. Okla-Inn, 488 F.2d 498 (10th Cir. 1973); N.L.R.B. v. Gold Spot Dairy, Inc., 417 F.2d 761 (10th Cir. 1969).
I.
Wards contends that it did not violate the NLRA by its non-solicitation rule or its ban on Union stickers, and that the wage increases were permissible.
(a)
The same day that the Union first requested recognition, Wards posted a rule against solicitation or distribution. One week later, the assistant service manager told an employee that under the non-solicitation rule talking about the Union on company time would cost him his job.
The substantive validity of Ward’s rule is not questioned, inasmuch as a non-solicitation rule which regulates employee activity during working hours is presumptively valid. Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793, 803-805, 65 S.Ct. 982, 89 L.Ed. 1372 (1945); N.L.R.B. v. American Coach Company, 379 F.2d 699, 701 (10th Cir. 1967).
We hold, however, that the record establishes interference with the rights granted by § 7 of the NLRA, and sustains the Board’s finding that Wards violated § 8(a)(1). The rule was promulgated within hours after Wards became aware of Union activity. The rule was not posted nor enforced before the Union requested representation; however, after the Union’s demand was made, the rule was strictly enforced. This is indicative of Wards’ attempt to interfere with Union organizational activities by the promulgation of the inhibiting non-solicitation rule.
(b)
On February 20, McNutt put into effect a ban on the wearing of Union insignia.
The rule in determining the validity of such a ban is set forth in Serv-Air, Inc. v. N.L.R.B., 395 F.2d 557 (10th Cir. 1968), cert. denied, 393 U.S. 840, 89 S.Ct. 121, 21 L.Ed.2d 112 (1968):
The right to wear union insignia on the employer’s premises during working hours is guaranteed by § 7 in the absence of special consideration. 395 F.2d at 563.
Wards alleges that the special consideration, i.e., that some of its employees come into contact with the public, justifies the ban. We hold that this is not a sufficient justification inasmuch as the ban applied to employees who did not come into contact with the public, thus rendering the ban invalid.
Wards also contends that there is no showing that the ban was employed to interfere with organizational activities and was, accordingly, valid. The Board need only show interference with organizational activities when solicitation is involved. The wearing of Union insignia is a form of expression protected by § 7, and not a form of solicitation. Serv-Air, Inc. v. N.L.R.B., supra. Since solicitation is not involved, the ban is invalid.
(c)
The Board found that Wards’ wage increases interfered with, restrained and coerced the employees in violation of § 8(a)(1) of the NLRA, supra. Wards contends that the wage increases were decided upon before the advent of Union and were not in response to Union’s efforts.
As previously noted, McNutt was directed to undertake a wage survey in November, 1973. He announced to the employees that they would receive a wage increase. On January 18, 1974, McNutt submitted his proposed pay increases, which were approved on February 5. Four days after the Union requested recognition, the wage increases were announced as planned.
The Board found that the wage increases violated § 8(a)(1), in that the totality of circumstances, including the nature and timing, indicate that the wage increases were not validly implemented.
The Board found that the wage increases did not conform to the amounts suggested by the memorandum directing the survey nor did they conform to McNutt’s criteria. Employees who had achieved the highest grade and who had achieved working seniority, received the same amount or lower wages than those employees in lower grades and with less seniority. In addition, the wage increases became effective via a onetime increase, even though the memorandum dictated that they should be accomplished by two one-month increases. This nonconformity suggests that Union interference was intended in lieu of valid wage increases.
The announcement of the grant of the wage increases four days after the Union’s request for recognition suggests interference with organizational efforts. The increases could have been announced as early as January 18 or as late as March 1. Further, the Board did not find an innocent explanation for the retroactive grant of the increases to date of January 31. This action likewise suggests Union interference.
In consideration of the above facts and findings, we hold that Crown Tar and Chemical Works, Inc. r. N.L.R.B., 365 F.2d 588 (10th Cir., 1966), controls:
If Crown had put its wage increase into effect in May of 1964, when the decision to raise wáges was made, the picture here would be altogether different. It waited until the organizational effort was underway and then, while in a position to refrain from granting the increase, and with knowledge of union’s activity and perhaps with knowledge of the union’s claim to represent a majority, the increase was made effective. The granting of economic benefits by the unilateral action of an employer while union organizational efforts are underway, or while a representation election is pending, is a violation of Sections 8(a)(1) and 8(a)(5) of the Act, 29 U.S.C.A. §§ 158(a)(1), (a)(5). It follows that the employer must bargain with the Union.
365 F.2d at 590.
Accord: N.L.R.B. v. Tonkawa Refining Company, 434 F.2d 1041 (10th Cir. 1970); American Sanitary Products Co. v. N.L.R.B., 382 F.2d 53 (10th Cir. 1967); N.L.R.B. v. Albuquerque Phoenix Express, 368 F.2d 451 (10th Cir. 1966).
Wards should have postponed its announcement when it became aware of the Union’s activities. Wards did not grant the wage increases in conformity with its plans. We hold that the Board’s finding that the wage increases were granted in violation of § 8(a)(1) is not clearly erroneous.
II.
The Board found that Wards discharged Walter Cockrell because of his union sympathies and union activities. Wards contends that Cockrell was discharged- for legitimate considerations unrelated to his union activities.
Cockrell had worked for Wards for nine years. At one time, he had held the position of assistant service manager. No customer complaints had been lodged against Cockrell, until the complaint given as a reason by Wards for the instant discharge. Cockrell was a union activist in 1968. He was then one of the main organizers for the International Brotherhood of Electrical Workers drive. He sat on the negotiating board in bargaining sessions for that Union. Cockrell assisted in securing signatures of employees for the International Union of Electrical, Radio and Machine Workers. He wore a Union button at the February 20 meeting with McNutt, and he was the only Union witness at the March 21 representation hearing with Wards.
The events leading to Cockrell’s termination were as follows: at a meeting in March, the Oklahoma Repair Service Coordinator stated that Wards was going to get “some of the troublemakers out”; the N.L. R.B. interpreted this to mean that Wards was going to fire Cockrell; in April, McNutt told an employee that “ . . . I'm going to have a lot more trouble off my shoulders just pretty soon, and you know who I mean . . . ” which the Board interpreted to mean that Cockrell was to be fired; after the election a customer complaint was filed against Cockrell, the first ever lodged against Cockrell and that, contrary to his usual practice, McNutt had the customer sign a statement verifying the complaint incident. On May 8, five days after the Union had filed objections to the election, McNutt sent the assistant service manager and Cockrell to obtain Cockrell’s tools from his truck. Before discussing the customer complaint with Cockrell, McNutt called in a security guard, contrary to normal procedure. While McNutt was reading the customer complaint, Cockrell insisted on interrupting him until McNutt said that if Cockrell continued to interrupt “ . . .1 have no choice but to terminate you.” Cockrell answered that he thought “ . that is what has been on our mind,” and McNutt discharged him. Later that day, McNutt told an employee that the decision to fire Cockrell came from Kansas City.
The discharge of employees who are actively engaged in union affairs gives rise to an inference of violative discrimination. N.L.R.B. v. Automotive Controls Corporation, 406 F.2d 221 (10th Cir. 1969); Cain's Coffee Company v. N.L.R.B., 404 F.2d 1172 (10th Cir. 1968); American Sanitary Products Co. v. N.L.R.B., supra. Discrimination is generally proven by circumstantial evidence. S. A. Healy Company v. N.L.R.B., 435 F.2d 314 (10th Cir. 1970); Betts Baking Co. v. N.L.R.B., 380 F.2d 199 (10th Cir. 1967). If there is substantial evidence, i.e., evidence furnishing a substantial basis from which the disputed facts can be inferred as derived from the record as a whole, the Board’s findings should be upheld. N.L.R.B. v. Okla-Inn, supra. Discrimination need be but a partial motive for a discharge in order to be violative. S. A. Healy Company v. N.L.R.B., supra; N.L.R.B. v. Automotive Controls Corporation, supra; Betts Baking Co. v. N.L.R.B., supra. Discrimination can be a motive only if it is shown that the employer knew that the discharged employee was active in the union. Cannady v. N.L.R.B., 466 F.2d 583 (10th Cir. 1972).
Wards knew that Cockrell was active on behalf of the union in view of his past union activities and his testimony at the representation meeting. The degree of significance to be credited to Wards’ explanation for dismissal will, finally, on balance, determine the issue. N.L.R.B. v. Automotive Controls Corporation, supra. Wards claims that Cockrell’s insubordination was the reason for his discharge. The Board found that because the decision to fire Cockrell came from “Kansas City,” and because Cockrell was asked to remove his tools from his truck before the confrontation which resulted in the insubordination charge that Wards intended to fire Cockrell for his union participation and not his insubordination. We agree that Wards’ explanation was weak. Cockrell’s work record was excellent. The discharge procedures applied in Cockrell’s case were not consistent with the usual practices. And, significantly, the discharge occurred only five days after the Union filed objections. Timing is an important factor in determining the validity of an inference of discrimination. N.L.R.B. v. Sequoyah Mills, Inc., 409 F.2d 606 (10th Cir. 1969); N.L.R.B. v. Automotive Controls Corporation, supra. We hold that this inference of discrimination has substantial support in the record and therefore approve the order of his reinstatement.
HL
To remedy the unfair labor practices, the Board imposed a bargaining order whereby Wards must bargain in good faith with the Union. Wards argues that the-bargaining order should not be enforced because the Union lacked a majority of cardholders and the Board failed to explain why a fair rerun election is not practicable.
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969), rehearing denied, 396 U.S. 869, 90 S.Ct. 35, 24 L.Ed.2d 123 (1969) holds that the Board can issue a bargaining order if, in its discretion, it finds the unfair labor practices were so “pervasive” and “outrageous” that a bargaining order is the only remedy because “their coercive effects cannot be eliminated by the application of traditional remedies with the result that a fair election cannot be held.” Even should the unfair labor practices be not serious enough to demand a bargaining order, still such an order may be proper if the Union had a majority of cardholders at one point, and if the Board finds that the possibility of insuring a fair election is slight and that employee sentiment would be better protected by a bargaining order. Gissel, supra. The Board is vested with authority to reach this determination because of its expertise. Any such determination should not be reversed unless the Board fails to show any evidence in support thereof. Gissel, supra; N.L.R.B. v. Wylie Manufacturing Company, 417 F.2d 192 (10th Cir. 1969), cert. denied, 397 U.S. 913, 90 S.Ct. 915, 25 L.Ed.2d 94 (1970).
(a)
Wards challenges the bargaining order because it contends that the Union lacked a majority. The Board found that 16 of the 31 employees in the unit held authorization cards. Wards alleges that the card of employee Huckaby was invalid because Huckaby thought the card was for the sole purpose of holding an election and because his eyesight was so poor he could read only part of the card. If Huckaby’s card is held to be invalid, the Union then lacks a majority and the bargaining order could not stand.
The test for determining the validity of the card is set forth in Gissel, supra:
. , we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature.
395 U.S. at 606, 89 S.Ct. at 1936.
When the record is examined to judge whether the Board’s decision finds substantial support, the following facts sustain the Board’s conclusion: Huckaby signed three cards — an authorization card, a membership card, and a dues card — in the presence of a Union representative. The cards state on their face that the holder authorizes the I.U.E. to collectively bargain for him. Huckaby’s vision is impaired. His eyesight was so poor that he could read only “part of the cards.” However, the cards state on their face that they are authorization cards for the Union. And the Union representative who solicited Huckaby’s signature testified that he told Huckaby that the cards were authorization cards for the Union, thus reaffirming, rather than negating, the language on the cards. Huckaby testified that he thought the cards were only for election purposes. The Board determines a conflict in testimony and weighs credibility. We cannot disturb that determination, absent clear error. N.L.R.B. v. Central Machine and Tool Company, supra; N.L.R.B. v. Dover Corp., Norris Division, supra; N.L.R.B. v. Gold Spot Dairy, Inc., supra. We must hold that Huckaby’s card was valid and that a majority of the employees held authorization cards.
(b)
Wards would have the Board state a more detailed analysis for the bargaining order. From a review of the Board’s order, we hold that its analysis is sufficient.
Wards granted violative wage increases; it promulgated a violative non-solicitation rule and threat; it enforced an illegal ban on wearing Union insignia; and it discriminatorily discharged a Union leader. Accordingly, each of the 31 employees were affected by the unfair labor practices. Furthermore, because the unfair labor practices were so numerous and because they continued even after Wards lost the election, the Board properly found (a) that the atmosphere was such that the possibility of insuring a fair election is slight, and (b) because the majority of the employees held authorization cards, the bargaining order is proper. N.L.R.B. v. Okla-Inn, supra.
A bargaining order does present the danger of disenfranchising a majority of employees, especially where the majority of employees carrying cards is slight, as it is here. We accordingly hold that the Board’s order should be modified to include a provision giving notice to the employees advising them of their right to petition for a new election as provided by 29 U.S.C.A. § 159(c)(1)(A). Cf. N.L.R.B. v. Drives, Incorporated, 440 F.2d 354 (7th Cir. 1971), cert. denied, 404 U.S. 912, 92 S.Ct. 229, 30 L.Ed.2d 185 (1971); N.L.R.B. v. Priced-Less Discount Foods, Inc., 405 F.2d 67 (6th Cir. 1968).
We direct enforcement of the Board’s cease and desist order against Wards and the directive that Wards bargain with Union, subject to the notice modification as above set forth.
. Issued September 16, 1975, in 220 N.L.R.B. No. 69. | 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. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_appnatpr |
Charles V. CLEMENT, Jr., et al., Plaintiffs, Appellants, v. UNITED STATES of America, Defendant, Appellee.
No. 7181.
United States Court of Appeals First Circuit.
Heard Dec. 4, 1968.
Decided Jan. 15, 1969.
George A. Stella, Lawrence, Mass., with whom Robert B. Milgroom, Boston, Mass., was on brief, for plaintiffs-appellants.
Jeanine Jacobs, Atty., Dept, of Justice, with whom Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Crombie J. D. Garrett, Attys., Dept, of Justice, Paul F. Markham, U. S. Atty., and Joseph A. Lena, Asst. U. S. Atty., were on brief; for defendant-appellee.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
McENTEE, Circuit Judge.
This is an appeal from an order of the district court dismissing plaintiffs’ suit for refund of federal income taxes alleged to have been erroneously and illegally assessed and collected. Plaintiffs are trustees of a Massachusetts business trust known as Clement Realty Trust. As such they filed fiduciary income tax returns and paid the taxes assessed for each of the fiscal years ending June 30, 1959-1963. Subsequently, during the course of Internal Revenue’s examination of these returns a preliminary determination was made that the trust was; revocable and that the income from it was taxable to the grantors. By letter dated January 20, 1965, Internal Revenue notified the trustees of this determination and enclosed a copy of its report. Also enclosed were Forms L-34 relating to the taxable years 1961-63 indicating an overassessment and stating in pertinent part:
“The Internal Revenue Service may not be able to complete the review of your return for the year mentioned prior to the date of expiration of the period of limitation prescribed in section 6511 of the Internal Revenue Code. It is therefore suggested that you protect your rights in the matter by preparing and filing a claim upon the enclosed Form 843. The claim should set forth in detail the grounds or basis of the apparent overpayment as indicated below, be properly executed and filed immediately with this office at the address shown in the letterhead.”
The January 20 letter also contained the following notation:
“Inasmuch as a statutory notice of deficiency will be issued to the grantors, Charles V. Jr., and Barbara G. Clement, for the years 1959, 1960, 1961 & 1962, no overassessments will be scheduled pending disposition of the related case.”
On March 19, 1965, the trustees filed refund claims with Internal Revenue for each of the taxable years involved stating as their reason that the refund should be allowed “To protect the taxpayer’s Constitutional rights.” No action having been taken on these claims, the trustees filed a refund suit in the district court in January 1967. In that proceeding the government argued successfully that taxpayer’s reason why the claim should be allowed did not meet the regulatory requirement of specificity and on March 20, 1967, the court dismissed the complaint for failure to state a claim upon which relief can be granted. No appeal was taken.
On April 14, 1967, the trustees again filed refund claims with Internal Revenue for the years in question. These were disallowed in full on April 27, 1967, and on January 31, 1968, the instant complaint was brought. Shortly thereafter on motion of the government the district court dismissed the complaint for want of jurisdiction over the subject matter and this appeal followed.
The merits of the tax action taken by the government here is not before us. The sole question is whether plaintiffs’ claims for refund are barred by the statute of limitations. Int.Rev.Code of 1954 § 6511(a) specifically requires that claims for refund shall be filed with Internal Revenue within three years from the time the return was filed or two years from the time the tax was paid, whichever of such periods expires later. Int.Rev.Code of 1954 § 7422(a) provides that no suit for refund shall be maintained “until a claim for refund or credit has been duly filed * * * according to the provisions of law in that regard, and the regulations * * * established in pursuance thereof.”
There is no dispute that the fiduciary income tax returns for the five years in question were timely filed and paid and that the controlling claims for refund were not filed until April 14, 1967. Obviously these claims were not filed within the three year period prescribed by § 6511(a) supra, and therefore are time barred.
Plaintiffs argue that this case is subject to an exception to § 6511(a) as to the time for filing their claims for refund because of an alleged agreement with Internal Revenue for an extension of time. Therefore, their theory goes, the statute of limitations never ran on the original March 1965 claims and the time period was still open on April 14, 1967. This issue was not raised in the district court and therefore is not properly before us. In any event, the usual means of bringing the extraordinary provisions of § 6511(c) into operation is to file Form 872 (Consent Fixing Period of Limitations Upon Assessment of Income and Profits Tax) prior to the expiration of the statutory period. The record does not support plaintiffs’ contention that such forms were ever filed.
Nor are we persuaded by plaintiffs’ argument that the April 14, 1967, claims were supplemental to and in amendment of the original claims timely filed on March 19, 1965. Under proper circumstances an original claim may be supplemented or amended after the expiration of the period of limitations applicable to filing claims. United States v. Garbutt Oil Co., 302 U.S. 528, 58 S.Ct. 320, 82 L.Ed. 405 (1938), but here the original claim had already been dismissed by the district court and was no longer pending on April 14, 1967. In short, there was nothing left to amend. See United States v. Memphis Cotton Oil Co., 288 U.S. 62, 72, 53 S.Ct. 278, 77 L.Ed. 619 (1933); Edwards v. Malley, 109 F.2d 640 (1st Cir. 1940).
Finally, plaintiffs rely upon Int. Rev.Code of 1954 § 6532(a) (1) which establishes periods of limitations on suits by taxpayers for refunds. The two year statutory period begins to run with the mailing of a notice of disallowance and plaintiffs argue that their suit, commenced on January 31, 1968, was within that period, notice of disallowance having been sent on August 22, 1967. But § 6532(a) (1) is expressly governed by the terms of Int.Rev.Code of 1954 § 7422(a) which prohibits suit “until a claim for refund or credit has been duly filed with the Secretary or his delegate, * * Thus, § 6532(a) does not cure the procedural defect in plaintiffs’ case.
Although we appreciate that plaintiffs are being held to account twice for the income in question, the fact is that they failed to comply with the explicit procedures requisite to a refund suit against the United States. We sympathize with their predicament but the law is clear and we can reach but one result.
Affirmed.
. 26 C.F.R. § 301.6402-2 (b) (1) (1968) provides in pertinent part:
“(b) Grounds set forth in claim. (1) * * * The claim must set forth in detail each ground upon which a credit or refund is claimed and facts sufficient to apprise the Commissioner of the exact basis thereof. The statement of the grounds and facts must be verified by a written declaration that it is made under the penalties of perjury. A claim which does not comply with this paragraph will not be considered for any purpose as a claim for refund' or credit.”
. A companion refund suit brought by Charles and Barbara Clement, Jr. as individuals was also dismissed on the same date for the same reasons and no appeal was taken.
. Since taxpayer’s fiscal year ended on June 30, its income tax returns had to be filed by October 15 of each year.
. Int.Rev.Code of 1954 § 6511(c) provides that where there has been such an agreement under the provisions of Int.Rev.Code of 1954 § 6501(c) (4), the period for filing claim for refund extends to six months after the expiration of the period within which an assessment may be made pursuant to the agreement. Under § 6501(c) (4) the agreement to extend must be executed before the statute of limitations for assessment has run.
. A “transmittal letter” reproduced in the government’s brief indicates that an agreement was reached extending the statute of limitations for the year 1961 until June 30, 1965. Even so, the April 14 claim for fiscal 1961 was not filed within six months of Juno 30, 1965, as required by Int.Rev.Code of 1954 § 6511(c) (1).
. “SEC. 6532. PERIODS OF LIMITATION ON SUITS
(a) SUITS BY TAXPAYERS FOR REFUND.—
(1) GENERAL RULE. — 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 or his delegate 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 or his delegate to the taxpayer of a notice of the dis-allowance of the part of the claim to which the suit or proceeding relates.”
. We regard plaintiffs’ further arguments (1) that jurisdiction lies in any event because they were not required to file tax returns, the trust having no adjusted gross income or taxable income, and (2) that if the statute of limitations had run, Internal Revenue in January 1965 would not have instructed them to file claims for refund, to be so lacking in merit as not to warrant discussion. | 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. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
26
] | songer_usc1 |
HAGEMEYER CHEMICAL CO., Inc., William C. Hagemeyer, James C. Noyes and Meredith J. Beirne v. INSECT-O-LITE CO., Inc.
No. 14211.
United States Court of Appeals Sixth Circuit.
June 20, 1961.
See also, 151 F.Supp. 829.
William E. Wehrman, Covington, Ky.„ for James C. Noyes.
William O. Ware, Ware & Ware, Covington, Ky., for William C. Hagemeyer, Meredith J. Beirne and Hagemeyer Chemical Co., Inc.
Roy F. Schaeperklaus, James W. Pearce, Pearce & Schaeperklaus, Cincinnati, Ohio, for William C. Hagemeyer, James C. Noyes, Meredith J. Beirne and Hagemeyer Chemical Co., Inc.
J. Warren Kinney, Jr., Cincinnati,. Ohio, for appellee.
Before CECIL and O’SULLIVAN, Circuit Judges, and KALBFLEISCH, District Judge.
PER CURIAM.
Plaintiff-appellee, the Insect-O-Lite Co., Inc. (referred to herein as plaintiff), sued defendants-appellants, William C. Hagemeyer, James C. Noyes, Meredith J. Beirne and Hagemeyer Chemical Co., Inc., a corporation (hereinafter referred to as defendants) to obtain an injunction and damages for alleged infringement. of plsiintiff’s registered trade-mark, “Insect-O-Lite” and for unfair competition. The product involved was a vapor lamp •containing insecticide crystals.
“The function and purpose of this article is to attract and destroy in.sects in homes and places of business. It is a relatively small item made of a plastic and composition material to be hung on the wall and .attached by cord to an electric * * plug.” (District Judge’s opinion.) [151 F.Supp. 831.]
On trial without a jury, the district .■judge found all defendants guilty of unfair competition, but held that plaintiff had failed to establish a case of trademark infringement. He awarded plaintiff $10,000 as compensatory damages, .$5,000 exemplary damages, and attorney fees of $4,500. Judgment ran against the individual defendants, Hagemeyer, Noyes and Beirne, as well as the corporate defendant Hagemeyer Chemical Co., Inc.
For some years prior to the events complained of, plaintiff had marketed the insecticide device under the trade name •of Insect-O-Lite. At one period during that time, defendants Noyes and Beirne, as partners operating under the name ■of Midwest Brokerage Company, were sales representatives for plaintiff’s Insect-O-Lite. Later such connection was terminated and defendant Beirne went to work for plaintiff as its salesman. Beirne continued as such an employee until some time in 1954. In September, 1954, defendants Hagemeyer, Noyes and Beirne organized the defendant corporation, Hagemeyer Chemical Co., Inc., for the purpose of manufacturing and marketing a product, found by the district .judge to be “a competitive vaporizer substantially identical in all physical and functional aspects with plaintiff’s Insect-O-Lite vaporizer.” The individual defendants were shareholders and officers of defendant Hagemeyer Chemical Co- ; Inc., which marketed its product under,' the trade name of Insect Light. After; Hagemeyer Chemical Co., Inc., had pur-', sued its competition with plaintiff for a few months, the complaint in this case was filed in the District Court for the Eastern District of Kentucky on April 15, 1955. A preliminary injunction to enjoin further prosecution of such business by defendants was denied by the district judge, which denial was affirmed in this court on November 10, 1955. (Insect-O-Lite Company, Inc. v. Hagemeyer et al., 6 Cir., 226 F.2d 580).
On May 17, 1957, the district judge, after taking of testimony on the question of liability, filed an Opinion and Findings of Fact and Conclusions of Law. In such decision, he exonerated the defendants of the charged infringement of plaintiff’s trade-mark Insect-O-Lite, but found all defendants guilty of unfair competition and ordered that plaintiff should receive its damages therefor. In an order of May 20, 1957, the district judge recited that by agreement of the parties, “the matter of damages was deferred until the rights of the parties on the matter of trade-mark infringement and unfair competition was determined as to both fact and law” and concluded such order by saying, “This case is set down for consideration of and entry of further orders at Covington, Kentucky, on May 27, 1957.” Thereafter, both parties employed various procedural steps, followed by the taking of evidence on damages. On February 23, 1960, the district judge filed a final Memorandum, with Findings of Fact and Conclusions of Law, upon which Judgment was entered. We recite the foregoing to dispose of appellee’s contention here that the district judge’s Opinion, Findings of Fact and Conclusions of Law, entered May 17, 1957, amounted to a final appealable order on all questions of liability, and that on the instant appeal, appellants are limited to an attack upon the amount of damages and costs awarded. We are satisfied that the foregoing review of the procedural stages of this litigation demonstrates .that the judgment of February 23, 1960, .was the only appealable order entered in this case subsequent to the district judge’s denial of a preliminary injunction to plaintiff. All questions raised by appellants on this appeal are properly before us.
Appellants’ statement of questions involved presents their claim of six grounds for reversal. The first five of these deal with the amount of damages awarded, a challenge to the court’s jurisdiction, the weight of evidence, denial of their motion to introduce newly discovered evidence, and the denial of their motion to file certain additional counterclaims. After a review of the record on appeal, we find no merit in any of these contentions and a discussion of them would serve no purpose here. Except on the subject hereinafter discussed, the district judge’s Findings of Fact are not clearly erroneous. We find no abuse in discretionary matters. The amount of the awards of damages and attorney fees were within limits permitted by the evidence and, except as hereinafter stated, we do not disagree with the district judge’s decisions of law. We come, then, to our point of disagreement with the district court.
For the sixth claim of error, defendants Noyes and Hagemeyer charge that personal judgments should not have been entered against either of them. We agree. There is no question but that these defendants joined defendant Beirne in a plan to organize a corporation to manufacture and market, in competition with plaintiff, a product which in appearance, function and trade name was substantially a copy of plaintiff’s product. However, as to any illegality in such conduct, the district judge said, in part [151 F.Supp. 832] :
“I am of the opinion that plaintiff’s trade-mark was not infringed. The adoption by one manufacturer of the features of another’s product, common to articles of that class, does not of itself amount to unfair competition. Rathbone, Sard & Co. v. Champion Steel Range Co., 6 Cir., 189 F. 26, 37 L.R.A.,N.S., 258; West Point Manufacturing Co. v. Detroit Stamping Co., supra, [6 Cir., 222 F.2d 581, certiorari denied 350 U.S. 840, 76 S.Ct. 80, 100 L.Ed. 749].
******
“The size, shape, color, and descriptive words Insect Light on the defendants’ vapor lamp were all functional and with the exception of the color, which might have been different, about the only design that could have been followed to accomplish the purposes intended. There was nothing novel or distinctive, aside from the functional uses, to which either the plaintiff’s or the defendants’ lamp could lay claim. Numerous other vapor lamps had been in existence. While the term Insecfc-O-Lite has been subjected to trade-mark, there is nothing so unusual or singular in the phrase that a court of equity should permit it to pre-empt the field to which it seeks to adapt itself. It had been in use for only a few months and could not be said to have become identified in the mind of the purchasing public to such an extent that the name had acquired a secondary meaning.
******
“7 must hold that the defendants had a right to produce and sell the item identified as Insect Light as represented by plaintiff’s Exhibit 12.” (Defendants’ product.)
Although he determined that there was no illegality in the defendants’ plan to compete with plaintiff in such manner, the district judge did find unfairness in the methods thereafter employed to further such competition. The evidence supportive of such finding consisted of proof that defendant Beirne who, alone of the individual defendants, was the sales representative of Hagemeyer Chemical Co., visited customers of plaintiff and by direct statement, innuendo and conduct, created in the minds of such customers the belief that plaintiff had gone, or was about to go, out of business; that Beirne’s company was taking over the business of plaintiff and that Beirne’s product, Insect Light, was the successor to Insect-O-Lite. There was sufficient evidence from which to find unfair competition on the part of defendant Beirne, justifying a judgment against his corporate principal and himself, individually, for such tortious conduct. We, however, have been unable to find any evidence in the record whereby to charge the defendants Noyes or Hagemeyer with personal liability for Beirne’s misconduct. The district judge emphasized that Beirne’s conduct led to his finding of unfair competition. His Opinion of May 17, 1957, says in part,
“The decision of this case rests primarily upon the acts and conduct of one individual, the defendant Meredith J. Beirne.”
Wherein the Opinion and Findings of Fact make reference to specific acts, they refer to acts of Beirne, alone. To the extent that the time of these acts was fixed, they occurred sometime after the first of January of 1955, and prior to the commencement of suit on April 15, 1955. It was undisputed on the record that defendant Noyes had, prior to the occurrence of any of Beirne’s acts, described above, severed all connection with defendant Hagemeyer Chemical Co., Inc. During the period of Beirne’s said activities, defendant William G. Hagemeyer was an officer and shareholder of the corporate defendant. He testified that his only activity with the company, aside from investing money in it, was the placing of shipping labels on cartons of the Insect Lights (defendants’ product) and shipping them out from the place where Hagemeyer carried on his own separate lumber business. Some of the Insect Lights of defendants were warehoused there. There was no evidence of any connection of Hagemeyer with the sale activities of Beirne. We find no evidence in the record from which a finding could be made that either Noyes or Hagemeyer participated in, knew of, planned or approved the activities of Beirne which the district judge found to constitute unfair competition. Plaintiff’s President expressed a conclusional opinion that the individual defendants conspired to carry on such activities of Beirne, but his opinion was wholly without factual support.
To the extent that the district judge’s Findings of Fact found that defendants Noyes and Hagemeyer participated in, had knowledge of, or were responsible for, the tortious conduct of defendant Beirne, we conclude that such findings were erroneous (Rule 52[a], Federal Rules of Civil Procedure, 28 U.S.C.A.). Officers, directors or shareholders of a corporation are not personally liable for wrongful or tortious conduct of the corporation or its other agents, unless there can be found some active or passive participation in such wrongful conduct by such persons. Phelps Dodge Refining Corp. v. Federal Trade Commission, 2 Cir., 1943, 139 F.2d 393, 397; Leonard v. St. Joseph Lead Co. 8 Cir., 1935, 75 F.2d 390, 395; Lobato v. Pay Less Drug Stores, Inc., 10 Cir., 1958, 261 F.2d 406, 409; 3 Fletcher Cyc., Corporations, § 1137; 13 Am.Jur. “Corporations” §§ 1086, 1087; Washington Gaslight Company v. Lansden, 172 U.S. 534, 549, 19 S.Ct. 296, 43 L.Ed. 543, 549 (1899). A like rule has been applied in patent infringement cases, D’Arcy Spring Co. et al. v. Marshall Ventilated Mattress Co., 6 Cir., 1919, 259 F. 236, 242; Western Electric Co. v. North Electric Co., 6 Cir., 1905, 135 F. 79, 89; Proudfit Loose Leaf Co. v. Kalamazoo Loose Leaf Binder Co., 6 Cir., 1916, 230 F. 120, 140; National Cash Register Co. v. Leland, 1 Cir., 1899, 94 F. 502, 508.
We conclude that no cause of action against the defendants Noyes and Hagemeyer as individuals was made out. The judgment of the district court to the extent it awards compensatory and exemplary damages and attorney fees against the defendants William C. Hagemeyer and James C. Noyes, is reversed. Such judgment is otherwise affirmed. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that the death penalty was improperly imposed? Consider only the validity of the sentence, rather than whether or not the conviction was proper." 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". | Did the court conclude that the death penalty was improperly imposed? Consider only the validity of the sentence, rather than whether or not the conviction was proper. | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
4
] | songer_deathpen |
DALLAS GENERAL DRIVERS, WAREHOUSEMEN AND HELPERS, LOCAL UNION NO. 745, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Empire Terminal Warehouse Co., Intervenor.
No. 19265.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 11, 1965.
Decided Jan. 6, 1966.
~ Mr. David R. Richards, Dallas, Tex., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom Messrs. L. N. D. Wells, Jr., Dallas, Tex., and Herbert S. Thatcher, Washington, D. C., were on the brief, for petitioner. Mr. David S. Barr, Washington, D. C., also entered an appearance for petitioner.
Mr. Hans J. Lehmann, Atty., N. L. R. B., with whom Messrs. Arnold Ord-man, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Allison W. Brown, Jr., Atty., N. L. R. B., were on the brief, for respondent.
Mr. Allen P. Schoolfield, Jr., Dallas, Tex., of the bar of the Supreme Court of Texas, pro hac vice, by special leave of court, with whom Mr. J. Parker Connor, Washington, D. C., was on the brief, for intervenor.
Before Wilbur K. Miller, Senior Circuit Judge, and Burger and Tamm, Circuit Judges.
BURGER, Circuit Judge:
The issue under review is whether the National Labor Relations Board could properly find that an employer and a union had bargained to an impasse, thus warranting the employer in reducing wages unilaterally after termination of their existing contract.
Petitioner, a local, union affiliated with the International Brotherhood of Teamsters, seeks review of an order of the Board dismissing a complaint arising from charges filed by Petitioner against Empire Terminal Warehouse Company, intervenor in this action. The issue under review grows out of an alleged violation by the Company of Section 8(a) (5) of the National Labor Relations Act, 61 Stat. 141 (1947), 29 U.S.C. § 158 (1964), making it an unfair labor practice for an employer to refuse to bargain collectively with the representatives of his employees.
The Union charged that the employer had breached his bargaining duty by instituting a wage reduction while negotiations were pending and when no impasse had developed. The Trial Examiner dismissed the complaint on the grounds that impasse in negotiations was not necessary for such a unilateral action, also finding that there was no impasse at the time the action was taken. The Board upheld the dismissal, but concluded that the record showed an impasse had been reached. It did not, therefore, reach the question of whether a wage cut by the employer is permissible absent an impasse.
The only question before us is whether there was sufficient basis in the record for the Board’s finding that an impasse had been reached. There is little dispute as to the actual history of the negotiations; the parties differ only on the Board’s conclusion as to whether the status of bargaining constituted an impasse.
Prior to the negotiations under review the Union and the employer had had amicable collective bargaining relations beginning in 1956. With their contract due to expire on August 16, 1962, they began negotiations on July 13. The Union presented a complete proposed contract including significant changes in contract terms and a 25 cents hourly wage increase. At the second meeting, July 24, the Company presented a detailed counterproposal on all issues except wages, and pointed out that it was already paying 35 to 50 cents more per hour than its competitors, and could hire men in the area for less than the existing Union rate. The Union asserted it would not sign any contract without a wage increase. At a later meeting the Company asked the Union for a new wage proposal and the Union replied that it thought the next move was up to the Company. On August 6 the Union indicated it would ask its membership if they would forego the 25(¿ increase. At this point a representative of the Federal Mediation and Conciliation Service was called in and participated in meetings held after August 6, 1962. Before the Union could meet, the Company wrote the Union that .its “wage proposal in the negotiations for a new contract” was a reduction of 40$ for new workers and 55$ for existing ones and that it would put this reduction into effect on August 17, after the expiration of the contract. On August 13 the union membership voted to strike if a wage cut was made. On the day of contract expiration, August 16, the Union proposed an extension of the current contract. The Company rejected this, and the Union then proposed a new contract with a cut in the wage rate for new workers and the same rate as in the current contract for existing workers; the Company rejected this. At this point, the testimony indicates, no future meeting was scheduled but it was agreed that if either party wanted to meet again they could schedule another session “when the spirit moved them.” The next day the Company put its reduction into effect.
The Board found that an impasse had been reached before the Company reduced wages. While the Board inaccurately recited that the Union was still demanding a wage increase at the time negotiations terminated, the record indicates no Union intention to recede from its position that there should be no wage cut for existing employees, who were the immediate concern, nor is there any suggestion that the Company had any intention of receding from its position on a wage reduction. At no time did the Company refuse to meet; a week or more after the wage reduction became effective and after the contract expired, it wrote the Union stating its continued willingness to meet. But the Union then called for a second strike vote and a strike began on September 10 with most of the employees participating. All striking employees were replaced by September 12; the record does not reveal at what rates the replacements were employed. Thereafter meetings were held on September 24 and 27, October 3 and 12.
Our evaluation of the Board’s finding that the Company did not refuse to bargain in good faith depends, as we suggested, on whether there is a record basis for the finding that at the time of the wage reduction the parties had reached an impasse in wage negotiations. It is elementary that firmness of a bargaining position does not constitute bad faith. Our scope of review confines us to determining whether there is an absence of substantial evidence to support the Board’s finding; impasse is a question of fact involving the Board’s presumed expert experience and- knowledge of bargaining problems. The problem of deciding when further bargaining on an issue is futile is often difficult for the bargainers and is necessarily so for the Board. But in the whole complex of industrial relations few issues are less suited to appellate judicial appraisal than evaluation of bargaining processes or better suited to the expert experience of a board which deals constantly with such problems.
Where good faith bargaining has not resolved a key issue and where there are no definite plans for further efforts to break the deadlock, the Board is warranted, see American Ship Building Co. v. N. L. R. B., 380 U.S. 300, 85 S.Ct. 955, 13 L.Ed.2d 855 (1965), and perhaps sometimes even required, cf. N. L. R. B. v. Intracoastal Terminal, Inc., 286 F.2d 954 (5th Cir. 1961), to make a determination that an impasse existed.
There is no fixed definition of an impasse or deadlock which can be applied mechanically to all factual situations which arise in the field of industrial bargaining. Nor is there a rigid formula for assessing so subtle an issue as the precise time when an impasse occurs; but the fact that the parties resume discussions on issues other than wages after the date of the wage cut is not incompatible with a finding that an impasse on the wage issue had been reached by that date.
The claim that the Board erred in refusing to order the Company to reveal its financial position is not well founded. The Company’s position on wages was not based on a claim of financial inability to pay but on the ground that it was paying rates in excess of prevailing rates of its competition in the same labor market.
Affirmed.
. The only subsequent reference to the wage issue was the Union’s renewal and the Company’s rejection on October 12 of a proposal for a renewal contract at the existing rates with a raise six months later. We do not reach the question of whether evidence of renewed discussion of wages would preclude a Board finding of impasse. | 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". | From which district in the state was this case appealed? | [
"Not applicable",
"Eastern",
"Western",
"Central",
"Middle",
"Southern",
"Northern",
"Whole state is one judicial district",
"Not ascertained"
] | [
0
] | songer_district |
UNITED STATES of America v. Perry Imperatore CHICARELLI et al. Appeal of Eugene NAPOLITANO, in No. 19,190. Appeal of James Thomas GREEN-HALGH, in No. 71-1195. Appeal of Lawrence Robert GREEN-HALGH, in No. 71-1196.
Nos. 19190, 71-1195, 71-1196.
United States Court of Appeals, Third Circuit.
Argued April 8, 1971.
Decided July 1, 1971.
John W. Yengo, Jersey City, N. J., argued for appellant Eugene Napolitano.
Jeanne P. Gallagher, Jersey City, N. J., for appellants James Thomas Green-halgh and Lawrence Robert Greenhalgh.
W. Hunt Dumont, Asst. U. S. Atty., Newark, N. J., for appellee.
Before GANEY, VAN DUSEN and GIBBONS, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from July 2, 1970, judgments and commitments of appellants in the United States District Court for the District of New Jersey following the entry of June 1970 orders of that court denying post-trial motions for judgments of acquittal or, in the alternative, a new trial.
Eugene Napolitano, Lawrence R. Greenhalgh, James T. Greenhalgh, James F. Wood and Perry I. Chicarelli were prosecuted under a two-count indictment charging them with conspiracy to possess goods stolen from interstate shipment, knowing the said goods to have been stolen, and the possession of said goods, knowing them to have been stolen, in violation of 18 U.S.C. §§ 371 and 659, respectively. Perry I. Chicarelli subsequently pleaded guilty to Count I of the indictment and Count II was dismissed against him. He was severed from the case prior to trial and appeared as a witness for the Government at the trial of appellants. The other four defendants were tried before a jury, which returned a verdict of not guilty as to James Wood on both counts and not guilty on Count I and guilty on Count II as to the other three defendants.
The appeals of Eugene Napolitano, Lawrence R. Greenhalgh and James T. Greenhalgh have been consolidated. These defendants raised a number of contentions allegedly requiring the grant of a new trial.
After consideration of all these contentions in light of the record as a whole, we have concluded that no reversible error was committed and that the appellants had a fair trial. See United States v. Laurelli, 293 F.2d 830 (3rd Cir. 1961); United States v. Hohensee, 243 F.2d 367 (3rd Cir. 1957). As reaffirmed by the Supreme Court of the United States in Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), quoting from Lutwak v. United States, 344 U.S. 604 at 619, 73 S.Ct. 481, at 490, 97 L.Ed. 593, “ ‘A defendant is entitled to a fair trial but not a perfect one.’ ”
The following two contentions of appellants require discussion:
I. Objection to witness for the Government acting as a bailiff for the jury on certain occasions.
Appellants claim that a mistrial should have been granted because a deputy United States Marshal, William C. Ramoth, acted as bailiff on several occasions even though he was a witness for the Government. We disagree and do not think that the situation presented by this record is controlled by Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965), which is relied on by appellants. In Turner, the Supreme Court reversed a conviction because the jury was placed under the care of two deputy sheriffs who were the key witnesses for the prosecution. The Court stated that the credibility of these witnesses “must inevitably have determined whether [the defendant] was to be sent to his death” and noted that they were in “continuous and intimate association throughout a three-day trial — an association which gave these witnesses an opportunity * * * to renew old friendships and make new acquaintances among the members of the jury.” 379 U.S. at 473, 85 S.Ct. at 550.
Recognizing the factual limitations in Turner, several Circuit Courts of Appeals, most notably the Fifth Circuit Court of Appeals, have refused to reverse convictions where witnesses acted as bailiffs unless the witnesses’ testimony was central to the development of the Government’s case and their contact with the jury was continual and intimate. See e. g., Jackson v. Beto, 388 F. 2d 409 (5th Cir. 1968); Crawford v. Beto, 385 F.2d 156 (5th Cir. 1967); Shepherd v. Wingo, 414 F.2d 274 (6th Cir. 1969).
In the present case, Ramoth fingerprinted each of the defendants at the time of their appearance before the United States Commissioner on March 17, 1969. He sent their respective fingerprint cards to the FBI Laboratory in Washington, D. C., for comparison purposes. He was called as a Government witness only for the formal, perfunctory purpose of identifying these cards. His testimony was not central to the Government’s case and was not controverted by defendants. Unlike the situation. in Turner, defendants’ fate was not dependent on the witness’ credibility. In addition, his two encounters with the jury did' not amount to “continuous and intimate association.” He testified in the presence of defendants’ counsel at the hearing held by the court on defendants’ motion to declare a mistrial that he had led the jury into the courtroom on two occasions, stayed with them for a total of several hours in the courtroom, and on one of the two occasions had also led the jury out of the courtroom. He testified that he neither had any conversations with the jurors nor heard any of their discussions.
Under these circumstances, we find that this contention must be rejected as there was no prejudice to defendants requiring a new trial.
II. Objections to procedure and statements of trial judge at the time jury requested certain testimony to be read back to them.
After the jury had been deliberating more than an hour the jury came back to the court room with the request that three parts of the testimony be read to them and that “a renting slip that was supposed to be in evidence” be delivered to them. The trial judge stated (N.T. 71 of 4/21/70):
“Members of the jury, you have made a request of the Court to have certain testimony read to you. Ordinarily we don’t do this, and you have to depend upon your own recollection of the testimony, but in view of the fact that this took place ten or eleven days ago, perhaps I should make an exception to it.”
The judge then read from his own notes “so that the stenographer can search through his notes and come to it a little quicker rather than starting from the first day and spending a couple of hours reading through them. I am trying to help him locate where this particular inquiry is” (N.T. 72). The judge informed the jury that “no rent receipt [had ever been received] * * * in evidence” (N.T. 73) and that it would take the court reporter “fifteen or twenty minutes” to locate the portions of the testimony requested. The jury returned to its deliberations. Before the jury returned to the courtroom, counsel for the Greenhalghs asked “* * * would it be proper for the Court to ask the jury why they want this?” and “Assuming that this testimony was all read, could counsel ask that other portions be read too. * * The trial judge stated, “You can object to it. I won’t permit it to be read” (N.T. 74). All three counsel for the four defendants still on trial then objected to the reading of the testimony on “all three questions.” The transcript then contains this language at N.T. 74-75:
“[Assistant U.S. Attorney]: In view of that, I wouldn’t want it read back for the protection of the record.
“THE COURT: It won’t be read back.
“(The jury returns to the courtroom.)
“THE COURT: Members of the jury, in view of defense counsel’s objection to the reading of the testimony, as to that portion of the testimony that you requested, the Court will now have to direct you that you will have to use your own recollection of what the testimony was.
“(The jury retires to continue deliberations.)”
First, defendants contend that “the procedure was totally irregular.”2 A trial judge has wide discretion in deciding whether or not to read back testimony to the jury at their request. United States v. DePalma, 414 F.2d 394, 396-397 (9th Cir. 1969); see also United States v. Jackson, 257 F.2d 41, 43 (3d Cir. 1958); cf. United States v. Schor, 418 F.2d 26, 30-31 (2d Cir. 1969). This contention is rejected.
For the guidance of the district courts and the bar on standards and considerations governing requests by the jury to review testimonial evidence, we call attention to Standards Relating To Trial By Jury (ABA Project on Minimum Standards of Criminal Justice), § 5.2 and Commentary at 134-38 (Approved Draft 1968).
Second, at the oral argument before this court, counsel for appellants contended for the first time that defendants had been prejudiced because the trial judge told the jury they would have to use their own recollection of the testimony “in view of defense counsel’s objection.”
After careful consideration, we have concluded that this contention must be rejected because of the well recognized principle that objections to language in the trial judge’s statements to the jury, which could have been remedied by curative instructions prior to the retirement of the jury for their deliberations resulting in the verdict, may not constitute the basis for a new trial where such objections are first made after the verdict has been returned, unless plain error is involved under F.R. Crim.P. 52(b). United States v. Mancuso, 423 F.2d 23, 29-30 (5th Cir. 1970); Spriggs v. United States, 133 U.S.App.D.C. 76, 408 F.2d 1279 (1969); White v. United States, 394 F.2d 49, 55-56 (9th Cir. 1968); United States v. Barrow, 363 F.2d 62, 67 (3d Cir. 1966); United States v. Laverick, 348 F.2d 708, 714 (3d Cir. 1965); United States v. Provenzano, 334 F.2d 678, 690 (3d Cir. 1964), cert. denied, 379 U.S. 947, 85 S.Ct. 440, 13 L.Ed.2d 544 (1964); Wegman v. United States, 272 F.2d 31, 34-35 (8th Cir. 1959). See F.R.Crim.P. 30 & 52(b); cf. United States v. Salas, 387 F.2d 121 (2d Cir. 1967), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1968). In the Provenzano case, Judge Biggs used this language at 690 of 334 F.2d:
« * * * [A] s a general rule the failure to object to an instruction during a criminal prosecution on the ground urged on appeal, forecloses the party from raising the question before the reviewing court. * * * The manifest purpose of the rule is to avoid whenever possible the necessity of a time-consuming new trial by providing the trial judge with an opportunity to correct any mistakes in the charge.”
In United States v. Grosso, 358 F.2d 154, 158 (3d Cir. 1966), this court said:
“* * * [I] f appellant’s counsel was of the opinion that the errors were prejudicial it was his obligation to interpose a timely objection and seek corrective action by the Court. [Citing cases]. He should have taken this course when he learned of the errors, but failed to do so. A defendant may not sit idly by in the face of obvious error and later take advantage of a situation which by his inaction he has helped to create.”
The language used by the trial judge did not affect “the substantial rights” of the appellants and this language of Grosso at page 158 is applicable here:
“Although not required to do so, we are empowered to consider the alleged errors on the merits if they affected the ‘substantial rights’ of the appellant. Fed.Rules Cr.Proc., rule 52(b), 18 U.S.C.A.; [citing cases]. The power is discretionary and should be exercised only in those situations in which the failure to do so would result in a manifest miscarriage of justice. Ibid. We do not have such a situation in the instant case.”
In federal appellate court cases ruling on challenges to the actions of trial judges on requests of jurors for the reading of portions of trial testimony to them or for submission of transcript or exhibits to them, the decisions have held there was no reversible error where counsel did not challenge such actions prior to the retirement of the jury for its ultimate deliberation resulting in the verdict. See United States v. Simon, 425 F.2d 796, 812-813 (2d Cir.), cert. denied, 397 U.S. 1006, 90 S.Ct. 1235, 25 L.Ed. 420 (1970); Turpin v. United States, 108 U.S.App.D.C. 274, 281 F.2d 637, 639 (1960).
In Turpin v. United States, supra at 639, the Chief Justice of the United States (then a Circuit Judge) stated that even if the jury had known that defense counsel’s objection to their request to see a map which had not been offered in evidence had prevented them from receiving the map, “it is difficult to see how * * * this information, if known to the jury, prejudiced appellant. No objection was made by appellant at the time * * Certainly, there was no plain error requiring a new trial in the language used by the trial judge. The fact that the jury returned different verdicts as to different defendants and not guilty verdicts on Count I as to all the appellants indicates the lack of any prejudice arising from this incident.
If defense counsel had objected to the language of the trial judge of which he now complains, a curative instruction could have been made, pointing out that (1) all counsel had ultimately joined in the objection, (2) it was the duty of defense counsel to assert the rights of their clients under applicable rules of law, and (3) the trial judge, in the exercise of his discretion, accepted the responsibility for not reading the requested testimony to the jury. Cf. Bland v. United States, 299 F.2d 105, 110 (5th Cir. 1962).
Where hearsay incriminating testimony was given in a criminal trial and the trial judge directed that it be stricken on appellant’s objection, this court used this language in denying the contention that a new trial was required in United States v. Bogish, 204 F.2d 507, 508 (3d Cir. 1953):
“No motion for a mistrial was made upon the basis of this testimony nor was the trial judge requested to give further instructions with respect to it. Under these circumstances it cannot be made the basis on appeal for convicting the trial judge of error.”
For the foregoing reasons, the July 2, 1970, judgments and commitments of appellants will be affirmed.
. These contentions include (a) improper instruction that Chicarelli’s building was rented by Wood, (b) misleading and inadequate instruction on circumstantial evidence, (c) incorrect and inadequate instructions on weight of evidence and inferences, (d) insufficient fingerprint evidence, (e) inadequate instructions on credibility, (f) improper charge on weight to be given to accomplice testimony, (g) incorrect statement in the charge of defense contentions, (h) prejudicial statement by the trial judge, in answer to defendant’s summation that “the case is not yet closed,” that the jury should not consider the fact that other individuals may be brought to trial but should confine its attention to the defendants presently on trial, and (i) inconsistent verdicts in light of the record.
. The direct examination of Chicarelli regarding the visit of defendant Wood on the night of the 25th, “the direct examination of Napolitano regarding his examination of Greenhalgh’s roof, then from there on the trip to Rahway,” and the cross-examination of Napolitano regarding the date he went to Chicarelli’s (N.T. 71-74).
. Counsel for defendants have pointed to no portion of the record supporting the language in its brief that there was a violation “of federal procedure which required that counsel be informed at all times of the requests made by the jury.” The record shows that counsel were informed by the trial judge of the requests in open court in the presence of the jury and that counsel never requested any proof of the jury requests.
. We re-emphasize the consistent position of this court that discretion in the conduct of the trial must be given to the trial judge. See United States v. Angelo, 153 F.2d 247, 251-52 (3d Cir. 1946), where the court said:
“ * * * the proper administration of justice requires the vesting of discretion in the trial judge. It would be both impossible and undesirable to delimit strictly the powers of the trial judge and to set detailed regulations for the conduct of every case. * * * On the judge rests the chief responsibility for the result; he is the cornerstone of any effective administration of trial by jury, and we are disposed to give him great leeway.”
. The same principle has been applied to objections made after the verdict to remarks of opposing counsel, Hohensee v. United States, 243 F.2d 367, 372-373 (3d Cir.), cert. denied, 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136, rehearing denied, 354 U.S. 927, 77 S.Ct. 1376, 1 L.Ed. 2d 1441 (1957), and to improperly admitted evidence, United States v. Bogish, 204 F.2d 507 (3d Cir. 1953) ; Blodgett v. United States, 161 F.2d 47, 51-52 (8th Cir. 1947). Furthermore, this rule has been applied consistently where counsel have failed to object to portions of a supplemental charge until after verdict. See United States v. Manos, 340 F.2d 534, 540 (3d Cir. 1965) ; Maddox v. United States, 330 F.2d 1022, 1023 (5th Cir. 1964) ; Carroll v. United States, 326 F.2d 72, 84 (9th Cir. 1964) ; Wegman v. United States, supra; Daniel v. United States, 268 F.2d 849, 853 (5th Cir. 1959).
. It is noted that an appellate court’s view that “it would be better to [discuss matters] outside the hearing of the jury” does not mean that discussion of such matters in their presence is reversible error, See United States v. Ross, 321 F.2d 61, 66 at n. 3 (2d Cir.), cert. denied, 375 U.S. 894, 84 S.Ct. 170, 11 L.Ed.2d 123 (1963). | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
0
] | songer_typeiss |
Paul W. BOYLE and Mark S. Smaller, Plaintiffs, Appellants, v. Thomas TURNAGE, Administrator of Veterans Affairs, et al., Defendants, Appellees.
No. 86-1087.
United States Court of Appeals, First Circuit.
Argued June 5, 1986.
Decided Aug. 19, 1986.
Seth M. Kalberg, Jr. with whom Douglas M. Brooks was on brief, for plaintiffs, appellants.
Karen F. Green, Asst. U.S. Atty., with whom William F. Weld, U.S. Atty., was on brief, for defendants, appellees.
Before BREYER, Circuit Judge, BROWN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.
Of the Fifth Circuit, sitting by designation.
JOHN R. BROWN, Senior Circuit Judge:
In this appeal we must determine whether the District Court erred in upholding— against a constitutional attack — the Veteran’s Administration (VA) policy on the use of mace in the training and employment of VA police officers. Two VA police trainees brought this action following their discharge for refusing to complete a portion of the training program which required them to be exposed to a streamer burst of mace in the face. We hold that the training requirement in question is rationally related to a legitimate government objective, and we therefore affirm.
In Your Face
Plaintiffs-Appellants Paul Boyle and Mark Smaller were engaged in a training program for hospital police officers at the Boston Veteran’s Administration (VA) Medical Center. They were both employed on a probationary status and, upon successful completion of the training program, would become VA police officers at the hospital. Since all VA policemen are armed with mace instead of conventional weapons, the training program naturally requires significant instruction in the use of mace. One aspect of this instruction is the requirement that the trainees be exposed to a one-second streamer burst of mace aimed at the lower portion of the face so that the trainees might better understand the nature of this weapon.
Boyle and Smaller submitted to their supervisors letters from doctors recommending that the two trainees be excused from the training requirement for medical reasons. Apparently, Boyle and Smaller decided to seek medical excuses after watching a cotrainee collapse, shake, and tremble from the effects of the mace exposure. After submitting the doctor’s excuses, Boyle and Smaller were both discharged from their employment for failure to complete the training requirement.
Summary Judgment Sought
Following the termination of their VA employment, Boyle and Smaller filed suit in federal district court, claiming that the VA training requirement violated their substantive due process rights. The defendants moved for summary judgment, submitting affidavits regarding the government’s purposes in requiring the exposure of VA police trainees to a one-second streamer burst of mace. These affidavits included that of James G. Fasone, the Director of Social Security Service in the Department of Medicine and Surgery, United States Veterans Administration. Fasone is the policymaker who determined that the police trainees should be exposed to the mace. The Fasone affidavit lists the following purposes of the training requirement:
(1) VA policemen should understand first-hand the effects of the spray because they are required to provide assistance to persons subjected to the spray;
(2) VA policemen should mentally and physically work through the effects of mace in a non-emergency situation because it is conceivable that, in the course of performing their duties, VA policemen might have the weapon taken away and used against them by an assailant; and
(3) The training requirement allows the VA to determine whether the trainees can overcome the effects of mace and continue to perform their duties while suffering those effects.
The plaintiffs submitted opposing affidavits which primarily show the possible serious consequences of mace rather than challenge the rationality or reasonableness of the government’s asserted reasons for adopting and continuing to administer the training requirement. Although the affidavit of Dr. Richard Brown, submitted by the plaintiffs, might bring into question the reasonableness of the second and third of the government’s asserted purposes, nowhere have the plaintiffs challenged the rationality of the government’s first asserted objective — to allow the VA police officers to experience and understand firsthand the effects of mace so the officers may be better able to provide assistance to persons subjected to the spray.
The District Court granted the VA’s motion for summary judgment, and we affirm.
“A-macing,” Yet Rational
The District Court correctly determined that Boyle and Smaller had no property interest in continued employment because of the probationary status of their jobs. That, however, does not end the inquiry. The Supreme Court has held that the right to personal safety is an historic liberty interest protected substantively by the Due Process Clause. Youngberg v. Romero, 457 U.S. 307, 315, 102 S.Ct. 2452, 2458, 73 L.Ed.2d 28, 37 (1982).
The Veterans’ Administration argues, and the District Court found, that Boyle and Smaller’s liberty interest in personal safety was not jeopardized or infringed here because they had the option of refusing the test and seeking employment elsewhere. This analysis is incorrect. The theory that public employment, which may be denied altogether, may be subjected to any condition however unreasonable has been uniformly rejected. Keyishian v. Board of Regents, 385 U.S. 589, 605-06, 87 S.Ct. 675, 685, 17 L.Ed.2d 629, 642 (1967). In Keyishian, in the context of freedom of religion and expression, the Court stated, “It is too late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon [government employment].” 385 U.S. at 606, 87 S.Ct. at 675, 17 L.Ed.2d at 642. Here, as in Keyishian, a liberty interest (personal safety) of Boyle and Smaller was possibly infringed by a condition of public employment (the mace-in-the-face test). Therefore, in our limited role as expositors of constitutional limitations and not as experts in the training of VA security officers or the use of chemical deterrents (mace), we must determine whether the training requirement is rationally related to the government’s reasons for imposing, it. See Kelley v. Johnson, 425 U.S. 238, 247, 96 S.Ct. 1440, 1446, 47 L.Ed.2d 708, 716 (1976).
Boyle and Smaller must show that there is no rational connection between the training requirement and a legitimate government end. Kelley, 425 U.S. at 247, 97 S.Ct. at 1446, 47 L.Ed.2d at 716. Based upon the summary judgment affidavits, they utterly failed to do so. We having no difficulty concluding that the most legitimate reason proffered by the VA in support of its training requirement is that the burst of mace will help the officers appreciate and understand its effects so that they may better assist persons subjected to the spray. In fact, the training manual indicates that mace was the VA’s preferred choice of weaponry precisely because it can incapacitate without causing lasting injury. A first hand understanding and appreciation of the effects of mace, together with the corresponding detailed instructions regarding proper use, certainly promotes the prevention of serious, or lasting, injury. Plaintiffs’ affidavits, however, nowhere brought into dispute the rationality of the connection between the training requirement and this very legitimate government end. Therefore, the District Court correctly granted the VA’s motion for summary judgment.
AFFIRMED.
. They named as defendants, in their official capacities, Harry Walters, the VA’s Administrator of Veterans Affairs; Donald L. Custis, the Medical Director of the VA Department of Medicine and Surgery; and Barbara A. Small, the Director of the Boston VA Medical Center.
On May 5, 1986, this Court granted defendants’ motion to substitute Thomas Turnage for Harry N. Walters, Dr. John Ditzler for Dr. Donald Custis and Jerry Boyd for Barbara A. Small as defendants-appellees, in this action.
. Mace, or alpha-chloroacetophenone (CN), is a chemical irritant which will immediately incapacitate if sprayed in someone’s face. It produces tearing of the eyes, reflex closure of the eyelids, and a burning sensation on the skin and in the upper respiratory tract.
. Boyle and Smaller both stated in their affidavits that the co-trainee was exposed to a streamer burst of mace lasting much longer than the required one second. They also claimed that the co-trainee was sprayed from a distance of less than three feet — much closer than the VA policy, reflected in the Chemical (CN) Irritant Projector Training Guide, of firing the weapon at a distance of no less than six feet. Finally, the plaintiffs stated in their affidavits that there was no first aid water present during their co-trainee’s exposure to the mace. Although this is relevant to the constitutionality of the VA policy as applied to the co-trainee, Boyle and Smaller never submitted to the training requirement and probably have no standing to argue the co-trainee’s potential claims.
. Boyle and Smaller challenge the admissibility of Fasone’s affidavit, arguing that it is not in compliance with F.R.CiV.P. 56(e), primarily on the grounds that the affidavit was not made on the personal knowledge of Fasone. We find no merit to this argument. The most vital statements in the affidavit are those dealing with the reasons for administering the training requirement. Since Fasone is the person who devised the requirement, he was certainly in the best position to state its objectives.
. The Chemical (CN) Irritant Projector training manual reveals that the selection of mace projectors as VA police weapons was motivated in large part by a desire to incapacitate without causing lasting injury. The training manual indicates that the mace projector was selected over guns and nightsticks for this very reason. In fact, the training manual provides specific instructions relating to the treatment and handling of those suffering the effects of mace in order to prevent lasting injury. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "S" thru "Z"". Your task is to determine which specific federal government agency best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "S" thru "Z"". Which specific federal government agency best describes this litigant? | [
"Securities & Exchange Commission",
"Small Business Administration",
"Veterans Administration"
] | [
2
] | songer_respond2_3_3 |
UNITED STATES of America, Appellee, v. Walter Reed MARTINDALE, III, Appellant.
No. 84-5329.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 11, 1985.
Decided May 21, 1986.
Rehearing Denied July 3,1986.
Blair Howard (John Frank Leino, Howard & Howard, P.C., Alexandria, Va., on brief), for appellant.
Justin Williams, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., David B. Smith, U.S. Dept, of Justice, Washington, D.C., on brief), for appellee.
Before RUSSELL, PHILLIPS and MURNAGHAN, Circuit Judges.
DONALD RUSSELL, Circuit Judge:
This is a bizarre case of mystery and high Mideastern intrigue reminiscent of a James Bond novel. We sketch the facts of the story only to the extent that they are necessary to an understanding of the issues on appeal.
The central figure in the case and the defendant on appeal is a former officer in the State Department. He served apparently in an intelligence capacity of some importance in both the Middle East and Vietnam. During this time, he enjoyed diplomatic status and traveled under a diplomatic passport. A few yfears before the incidents which led to his prosecution, he either resigned or was terminated from government service. According to his testimony, he then engaged in private trading, being associated with a Middle Eastern group in some nebulous or indefinite ventures never entirely disclosed. In connection with his employment with this group, he undertook a careful and extensive surveillance of a member of a prominent Saudi Arabian family, the Al-Fassi’s, who resided on the outskirts of London. The defendant gave a number of reasons, none free of doubt, for the surveillance. He suggested at his English interrogation that his group was interested in inducing Mr. Al-Fassi to become a co-investor. He had early on, however, confided to a retired Government intelligence agent, Goodman, with whom he had worked while employed by the Government, that he had been asked by Sheik Ibrahim Al-Rawaf to arrange an assassination in London. He indicated that a “Prince Naif” was the financial backer of the enterprise. He requested Goodman to review the planning for what was described felicitously as “this operation.” Goodman actually visited London with the defendant for this purpose. While there, Goodman contacted a Vietnamese Phuc, whom both Goodman and the defendant had known in Vietnam. The three met and the defendant indicated to Phuc that he (the defendant) might have some work for him and other Vietnamese in the area.
Sometime later, on returning to Alexandria, Virginia, the defendant told Goodman to ask Brookshire, a retired Army officer who had served with the two of them in Vietnam, to secure for him (the defendant) an Uzi semi-automatic or automatic gun of Israeli manufacture. The defendant explained he sought this gun for a foreign national who would be taking it permanently out of the United States. Brookshire secured the Uzi gun as requested and, with the assistance of another mutual friend, delivered it to the defendant at a meeting in Petersburg, Virginia. At this time, the defendant’s story to Goodman was that the gun was intended for a bodyguard of AlRawaf. The defendant later telephoned Goodman from London, told him he had “the items,” which Goodman understood to refer to the gun, and secured from him (Goodman) the name of the Vietnamese individual whom they previously had seen in London. The defendant proceeded to communicate with Phuc and sought to engage him in his surveillance of Al-Fassi. The defendant allegedly used the word “kidnap” in connection with the intended surveillance, though the defendant denies Phuc’s testimony on the use of the word “kidnap.” Phuc did not initially understand the word “kidnap” according to his testimony but, having become suspicious of the defendant and his project, he consulted a Vietnamese friend who told him the meaning of “kidnap.” Concerned, Phuc determined to consult Scotland Yard. He was instructed by Scotland Yard to maintain contact with the defendant.
On his next visit to Phue’s residence, the defendant brought with him an attache box, which he explained to Phuc contained a radio to be given to a friend in the Mid-East and which he wished to leave with Phuc for a couple of weeks. Phuc accepted the box but, as soon as the defendant left, he called Scotland Yard which took possession of the attache box, opened it and discovered both the Uzi gun, a .38 calibre revolver, and ammunition for both weapons. At this point, Scotland Yard determined to break the case.
Officers of Scotland Yard took the defendant into custody and, with defendant’s consent and after giving him the appropriate warnings under British law, interrogated him at some length. The defendant made many statements during this interrogation. He was later formally charged and plead guilty to firearms possession. After being held for another thirty days, he was released and allowed to board a plane to the United States without any passports (they having been seized) but with authority to travel granted by the United States Embassy in London.
On arrival in the United States, the defendant was interviewed by the Customs authorities and about a week later he was interviewed by Special Agent Pederson of the Bureau of Alcohol, Tobacco and Firearms. This was followed by the indictment of defendant on nine counts. One count charged a conspiracy to violate the Gun Control Act of 1968; two counts charged the defendant with shipping a firearm in interstate commerce and in foreign commerce with intent to commit a felony; one count charged knowing receipt of an Uzi rifle in Virginia after having caused the rifle to be purchased outside Virginia; one count charged knowing delivery of a firearm to a common carrier for shipment in foreign commerce without written notice to the carrier; two counts charged unlawful use of a diplomatic passport; and, finally, two counts charged impersonating a State Department employee. After a trial he was convicted of seven of the counts and acquitted of two. Subsequent to sentence, he appealed the judgment of conviction.
The defendant’s principal objections on appeal are directed at the admission in evidence of (1) the personally signed transcript of his interviews by British officers at Scotland Yard in London, (2) of his interview with the Customs officers when he returned to the United States after his British prosecution, and (3) of his interview at his own office by Officer Pederson. We shall consider in their order these several objections first.
In their interrogation of the defendant, the British officers were engaged in the lawful pursuit of a separate and valid investigation into activities involving a violation of British law and conducted in compliance with British law. Of this there seems to be no dispute. Before the interrogations began, the British officers gave the customary British caution, advising the defendant that “he needn’t say anything unless he wished to do so, but what he did say would be taken down in writing and may be given in evidence.” There was no requirement on the part of the British officers of compliance with the rule either in Miranda v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and any admissions made by the defendant in the interviews by the British officers were admissible absent proof of duress or of a wilful attempt of American authorities to evade the strictures of Miranda or Massiah by employing the foreign authorities. United States v. Bagaric, 706 F.2d 42, 69 (2d Cir.), cert. denied, 464 U.S. 840, 104 S.Ct. 134, 78 L.Ed.2d 128 (1983). The reason for such rule was stated in United States v. Chavarria, 443 F.2d 904, 905 (9th Cir.1971):
Miranda was intended as a deterrent to unlawful police interrogations. When the interrogation is by the authorities of a foreign jurisdiction, the exclusionary rule has little or no effect upon the conduct of foreign police. Therefore, so long as the trustworthiness of the confession satisfies legal standards, the fact that the defendant was not given Miranda warnings before questioning by foreign police will not, by itself, render his confession inadmissible.
The district judge held an evidentiary hearing on the issue of duress in connection with the British interviews and, after such hearing, found no duress. That finding of the district judge is reversible only for clear error. United States v. Dodier, 630 F.2d 232, 236 (4th Cir.1980). The ruling of the district judge against duress was not clearly erroneous. It must be noted that the defendant is a well-educated, sophisticated individual with wide experience in the intelligence field. There is no reason to assume he was unaware either of his rights or of his surroundings. He had undoubtedly participated in investigations himself and suffered under no handicaps of inexperience, immaturity, or impaired competency. When asked if he would talk to the British officers, he had readily agreed. The interrogation was cordial throughout. Further, it must be remembered that the entire interrogation was typed and the defendant was given the opportunity to read it and verify the accuracy of the transcript. He did that and he signified his agreement with all the statements in the transcript by signing the transcript without any reservations.
The only fact that the defendant adduces in support of his argument of duress is that during the interrogation he was denied the right to use a telephone. One of the British officers explained the reason for this denial and his explanation was accepted by the district judge as reasonable and credible. The denial of the use of a telephone was clearly not intended by the British officers to coerce the defendant. The facts being developed in the investigation indicated an extensive plot either to murder or kidnap an individual. Manifestly there were other parties necessarily involved in the operation in addition to the defendant. The officer feared that, if the defendant were allowed to use the telephone, the defendant might communicate with his confederates and alert them that the officers had discovered the plot and had placed him in custody. The result of such premature discovery could well thwart the officers’ ability either to prevent the crime or to apprehend and arrest others involved. Such reason appears reasonable. Plainly the denial was not intended to coerce the defendant nor, in the opinion of the district judge, did it coerce him. We, therefore, affirm the district court’s rejection of the motion of the defendant to suppress the transcript of the defendant’s British interrogation either under the Miranda rule or for duress.
The defendant further objected to the introduction of his British interrogation because the statements given by him during the interrogation were not confessions but were in fact simply denials of wrongdoing and therefore exculpatory. As such, he urges they were inadmissible. We, however, have often held that exculpatory statements of the defendant, if shown to be false and fabricated, “are clearly admissible to prove [the defendant’s] guilty state of mind,” and as “evidence of guilt,” of “illicit intent” and of “consciousness of guilt.” United. States v. Hughes, 716 F.2d 234, 240-41 (4th Cir.1983); United States v. Williams, 559 F.2d 1243, 1249 (4th Cir.1977); United States v. Abney, 508 F.2d 1285, 1286 (4th Cir.), cert. denied, 420 U.S. 1007, 95 S.Ct. 1451, 43 L.Ed.2d 765 (1975); United States v. Wilkins, 385 F.2d 465, 472 (4th Cir.1967), cert. denied, 390 U.S. 951, 88 S.Ct. 1043, 19 L.Ed.2d 1144 (1968). To the same effect are the decisions of other circuits. United States v. Meyer, 733 F.2d 362, 363 (5th Cir.1984), and cases therein cited.
The defendant offered as a further objection to the admission of the transcripts the references to statements made by Phuc in the questions addressed to the defendant by the British agents. These transcripts were offered after Phuc had testified and, so far as they related to Phuc’s testimony, were similar to his earlier testimony at trial. It is the defendant’s objection that this repetition of Phuc’s testimony in the phraseology of the agents’ questions represented an impermissible attempt to bolster the credibility of Phuc’s testimony and, as such, was inadmissible under the rule stated in Dowdy v. United States, 46 F.2d 417, 424 (4th Cir.1931):
[Tjhere can be no doubt that in modern times the general rule is that a witness cannot be corroborated by proof that on previous occasions he has made the same statements as those made in his testimony.
The defendant, however, overlooks that this evidence was not offered to bolster or corroborate Phuc’s testimony, but was offered and admitted merely “to put the question [then being answered] by the defendant in context,” in short, indicating what he was responding to. That was the sole purpose of including any reference to Phuc in the questioning. The district judge carefully cautioned the jury that it was “not to accept the truth of [such statement] as what Phuc did actually say.” That instruction was given at the instance and on the request of the defendant. We find no error here.
The admissibility of defendant’s statements to the Customs agent, Fanning, and to the DEA agent, pederson, is also questioned by the defendant on this appeal because those statements were secured without giving the defendant the Miranda warnings. The flaw in this argument is that on neither occasion was the defendant in custody. Miranda is applicable only in cases where the defendant is in custody. Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297 (1980). In both interviews the defendant freely consented to answer the agent’s questions. He was thus under no restraint; he was subjected to no coercive action, either in word or deed. He was at liberty to terminate the discussion and to go his way anytime he chose to leave. He was neither under arrest nor in any type of custodial situation in either case. In fact, the Pederson interview was in the defendant’s own office. The district judge found that the defendant’s voluntary statements made under those circumstances were admissible.
It is defendant’s position, though, that the Pederson interview was actually sufficiently custodial to require Miranda warnings since at the time, the defendant was the target of a grand jury investigation. Pederson denied that the defendant was known to him to be a target of a grand jury investigation. At the time of the interview, he knew no more of the defendant’s involvement than was set forth in a recent article in the Washington Post and that he had been given a subpoena to serve on the defendant. He inquired of the defendant about the article. The defendant proceeded unhesitatingly to give the same story he had already given the British officers and Mr. Fanning. It was, also, the same story the defendant gave in a later interview when his attorney was present. We find no error in the finding of the district judge that the defendant’s statements, statements already proved by other witnesses, as given to Officers Fanning and Pederson, were entirely voluntary. See United States v. Olmstead, 698 F.2d 224, 226-27 (4th Cir.1983); United States v. Wertz, 625 F.2d 1128, 1133-35 (4th Cir.), cert. denied, 449 U.S. 904, 101 S.Ct. 278, 66 L.Ed.2d 136 (1980).
The defendant has advanced the argument that his conviction under the conspiracy count (Count One) is inconsistent with his acquittal under the substantive counts (Counts Two and Four) and, therefore, must be voided. Implicit in this contention is the assumption that the conspiracy offense is the same as the substantive offenses in Counts Two and Four. The initial fallacy in this argument is its failure to recognize that the offense of conspiracy is a separate and distinct offense from the substantive offense or offenses and that one can be validly convicted under a conspiracy count even though acquitted of the substantive offense or offenses. Iannelli v. United States, 420 U.S. 770, 777-82, 95 S.Ct. 1284, 1289-92, 43 L.Ed.2d 616 (1975). As the Court said in United States v. Goldberg, 756 F.2d 949, 958 (2d Cir.1985): “A substantive offense and a conspiracy to commit that offense are separate and distinct crimes (citing cases). A defendant thus may be convicted of the crime of conspiracy even if the substantive offense was not actually committed.” It has long been the rule that inconsistency is not a ground for voiding a verdict of conviction. There may be a number of reasons why a jury may reach what may appear to be inconsistent verdicts but, so long as the evidence clearly supports the guilty verdict, inconsistency is no ground for invalidating the conviction. This was authoritatively settled by the Supreme Court in Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), quoted and followed by us in United States v. Harris, 701 F.2d 1095, 1103 (4th Cir.), cert. denied, 463 U.S. 1214, 103 S.Ct. 3554, 77 L.Ed.2d 1400 (1983):
Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment____
The most that can be said in such cases is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant’s guilt. We interpret the acquittal as no more than their assumption of a power which they had no right to exercise, but to which they were disposed through lenity.
Finally, the defendant premises his contention in this regard on the assumption that the only substantive offenses related to the conspiracy are those charged in Counts Two and Four. This is in error. The conspiracy count charged had as its purpose the violation of various sections of the federal firearms statute. These violations were broadly divided into two groups: one dealt with foreign commerce, that is, with the transportation by air of the firearm from Alexandria, Virginia, to London, England; the second involved the transaction in interstate commerce as charged in Counts Three and Nine. The defendant was acquitted of the foreign commerce counts but — and this is what the defendant would disregard in his argument — he was convicted under all the substantive counts relating to interstate commerce. It is well settled that, where there is a conspiracy to violate two or more alleged criminal statutes, the jurors may properly convict if they find that the defendant conspired to violate any one of the statutes. This principle has been clearly stated in United States v. Wilkinson, 601 F.2d 791, 796 (5th Cir.1979):
A single conspiracy may have several objectives (citing cases). When a conspiracy to violate two statutes is alleged, the jury may find the defendant guilty if they believe beyond a reasonable doubt that he or she conspired to violate either one of the statutes.
It follows that, even if conviction on at least one of the substantive counts was essential to a conviction of conspiracy in this' case (a conclusion which, incidentally, we have already found incorrect), there was such a conviction and the conspiracy conviction would not be vulnerable to attack.
There is some suggestion by the defendant, too, that the conspiracy conviction must be voided because there was a lack of proof of the commission of a murder. As Goldberg, supra, makes plain, proof of the commission of a murder is not required for conviction under the conspiracy count. The defendant was not charged with murder; he was indicted and convicted of conspiracy, as the district judge correctly declared in overruling this point raised by the defendant at trial.
Finally, the defendant assails his conviction of impersonating a federal officer or employee in violation of 18 U.S.C. § 912. The defendant used his diplomatic passport not only in passing through Customs in London, England, but also in identifying himself on at least three occasions when registering at London hotels as being with the “State Department,” in presenting his diplomatic passport and asking for a discount as a U.S. State Department employee at Hertz Rent-A-Car at Gatwick Airport in England, and in receiving as such an employee a twenty-five per cent discount. This conduct on his part met the two-pronged test for conviction under section 912 as phrased in United States v. Parker, 699 F.2d 177, 178 (4th Cir.), cert. denied, 464 U.S. 836, 104 S.Ct. 122, 78 L.Ed.2d 120 (1983). See also United States v. Cohen, 631 F.2d 1223 (5th Cir.1980), rehearing denied, 636 F.2d 315 (1981); United States v. Robbins, 613 F.2d 688 (8th Cir.1979); and United States v. Hamilton, 276 F.2d 96 (7th Cir.1960).
For the reasons stated herein, we affirm the rulings of the district court and the defendant’s conviction under the indictment.
AFFIRMED.
. There is a statement in the record that the entire operation unraveled as a result of the investigation of the defendant, leading to the indictment in England of the defendant’s associate, Ibrahim Al-Rawaf.
. The court in United States v. Di Stefano, 555 F.2d 1094, 1104 (2d Cir.1977) said:
False exculpatory statements are not admissible as evidence of guilt, but rather as evidence of consciousness of guilt.
This is contrary to the rule as stated by us in United States v. Williams, supra, and in United States v. Abney, supra. However, Di Stefano did not find the evidence of false exculpatory statements inadmissible; its ruling related only to jury instruction on the effect to be given such evidence. The instruction of the district judge on the weight to be accorded such evidence is not in issue in this case and Di Stefano is therefore not apposite.
. See in this connection, our opinion in United States v. Parodi, 703 F.2d 768, 785-87 (4th Cir.1983). | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited federal rule of criminal procedure in the headnotes to this case. Answer "0" if less than two federal rules of criminal procedure are cited. For ties, code the first rule cited. | What is the second most frequently cited federal rule of criminal procedure in the headnotes to this case? Answer with a number. | [] | [
0
] | songer_crmproc2 |
Ruth Etta WITT, Appellant, v. UNITED STATES of America, Appellee.
No. 17051.
United States Court of Appeals Ninth Circuit.
Feb. 16, 1961.
Rehearing Denied April 3, 1961.
Russell E. Parsons, Harry E. Weiss, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Thomas R. Sheridan, Robert E. Hinerfeld, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES, HAMLIN and MERRILL, Circuit Judges.
BARNES, Circuit Judge.
Appellant, a first offender, was sentenced to five years imprisonment for importing two and one-quarter ounces of heroin from Mexico, in violation of 21 U.S.C.A. § 174. She asserts (1) that the narcotics were obtained by an unlawful search and seizure; and should have been suppressed on appellant’s motion; (2) without the narcotics in evidence, there was insufficient evidence to convict her; (3) 26 U.S.C.A. § 7237(d) prohibiting suspension of sentence in order to grant probation in certain narcotics offenses, in its unequal operation (by giving the United States Attorney a choice of the crime for which he asks an indictment), results in lack of due process.
Appellant admittedly had narcotics on her person when she crossed the border from Mexico to the United States. She asserts they were there innocently, that she was asked by a friend in Mexico to deliver a package in Los Angeles to a certain street corner to a person named “Bo.” She had asked her “friend” in Mexico if delivering the package “was all right”, and had been assured it was. She claimed to have had no knowledge the package contained narcotics. Appellant insisted the narcotics package was in her coat pocket; the witness who searched her (Mrs. Lohman) testified it was concealed in appellant’s brassiere. Another witness (Customs Agent Gates) testified appellant had told him, when she was first questioned, she had no knowledge that the package contained a drug, but that later in the presence of other Customs agents, she stated that:
“she had been given the money for the narcotics by a man in Los Ange-les by the name of Bo; that she had met this Mexica3i in Tijuana, had given him some money and had taken the narcotics; she was supposed to deliver the narcotics to Bo at the corner of Central and Vermont, in Los Angeles, and receive $100.”
In his report, made shortly after the incident of the arrest, Customs Agent Gates had written (Defendant’s Ex. A):
“The only statement of any consequence made by Mrs. Witt during the interview was that she was to receive $100 for making this trip; that she had been given money to pay for the narcotics, which she was then to deliver to a person known to her as ‘Bo’ at Vernon and Central Streets, in Los Angeles, California. * *- *»
Thus there was created a sharp dispute of fact for the determination of trier thereof — did Mrs. Witt lie as to where and how the package was carried, and whether she knew it contained narcotics; or did Customs Agents Lohman and Gates lie on these subjects?
The jury found for the government on this disputed issue of fact. We are required to view the evidence in a light most favorable to the government. Northcraft v. United States, 8 Cir., 1959, 271 F.2d 184, 187; Humes v. United States, 1898, 170 U.S. 210, 212-213, 18 S.Ct. 602, 42 L.Ed. 1011. We cannot disturb that judgment.
Much is said on this appeal about an unlawful search. This was a border search; and while it, as well as any other, must be lawfully conducted, different rules of law are applicable, and for over a hundred years have been applicable with respect to the plenary power to search at the border and the more circumscribed search power existing anywhere else within the country’s boundaries. This distinction was recognized by the very Congress which proposed for adoption the amendments to the Constitution, including the Fourth which prohibited unreasonable search and seizures. Plainly, “the members of that body did not regard searches and seizures of this kind as ‘unreasonable’ and they are not embraced within the prohibition of the amendment.” Boyd v. United States, 1885, 116 U.S. 616, at page 623, 6 S.Ct. 524, at page 528, 29 L.Ed. 746; Carroll v. United States, 1924, 267 U.S. 132,159-160, 45 S.Ct. 280, 69 L.Ed. 543. No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. That the customs authorities do not search every person crossing the border does not mean they have waived their right to do so, when they see fit. Here a precise description of the automobile in which appellant rode across the border (though not of its passengers) had been passed to the border guards as one being a possible bearer of heroin. This it was ultimately found to be. Mere suspicion has been held enough cause for a search at the border. Cervantes v. United States, 9 Cir., 1959, 263 F.2d 800, 803, note 5.
Appellant likewise urges that she was required to strip herself of all her clothing at the time she was searched. Such a search is frequently necessary. We take it that is the reason Congress, in its wisdom, has seen fit to authorize the employment of female customs inspectors who have the specialized duty of searching females crossing our borders. No force was used against appellant, and none is charged. No indignities to the appellant are charged against the customs inspectors. The search was reasonable and the resulting seizure was lawful.
Having made that determination, we cannot suppress the evidence uncovered by such lawful search. The appellant having the heroin on her person, it was for the jury to determine how and why it was being so carried. On this determination rested the guilt or innocence of the appellant.
Appellant next objects that she did not receive probation — pointing to her previous good record. Section 7237, Title 26 U.S.C.A., relates generally to the violation of laws relating to narcotic drugs and to marijuana. As amended, effective July 19, 1956 (70 Stat. 568), it provides, in pertinent part, as follows in subdivision (d):
“(d) No suspension of sentence; no probation; etc.—
“Upon conviction—
“(1) of any offense the penalty for which is provided in * * * subsection (c) * * * of section 2 of the Narcotic Drugs Import and Export Act, as amended * * * the imposition or execution of sentence shall not be suspended, probes tion shall not be granted, section 4202 of Title 18 of the United States Code shall not apply, and the Act of July 15, 1932 (47 Stat. 696; D.C. Code 24-201 and following), as amended, shall not apply.” (Emphasis added.)
21 U.S.C.A. § 174 is based on former subsections (c) and (f) of the Act of February 9, 1909, as amended by the Act of May 26, 1922, known as the Narcotic Drugs Import and Export Act (cf. 21 U.S.C.A. Ch. 6, 42 Stat. 596.) That Act provided, before amendment, a penalty of “not more than ten years.” In 1951, the minimum penalty was raised to two years for the first offense. By the 1956 amendment, the penalty was changed for first offenders to imprisonment of “not less than five or more than twenty years.” 70 Stat. 570. Cf. 1956 U.S.Code Cong. & Adm.News, Vol. 2, pp. 3274-3322.
Appellant urges that while Title 26 U.S.C.A. § 7237(d), prohibiting suspension of sentence for the granting of probation upon conviction of certain narcotic offenses appears to be fair on its face, “administratively it is applied with an evil eye and an unequal hand in a manner forbidden by the due process clause of the Fifth amendment to the Constitution of the United States.” We need not tarry long on this point. As we understand appellant, she urges lack of due process because of the value judgment which must be exercised by the United States Attorney in determining under which of the several existing statutes, which may be applicable to the illegal importation of narcotics, a defendant should be prosecuted. Some discretion has always existed in the hands of prosecuting attorneys, and always will. We have discussed and disposed of this point in Marcella v. United States, 9 Cir., 1960, 285 F.2d 322. Cf. Lathem v. United States, 5 Cir., 1958, 259 F.2d 393, and particularly the language of the court at page 397. The sentence being within the limits allowed by the statute, this court has no authority to lessen or in any way change the sentence. Brown v. United States, 9 Cir., 1955, 222 F.2d 293; Freeman v. United States, 9 Cir., 1917, 243 F. 353, 357.
The judgment is affirmed.
. 19 U.S.C.A. §§ 482, 1581. 19 Code of Eed.Reg., part 23, § 23.1(d), reads:
“(d) A customs officer may stop any vehicle arriving in the United States from a foreign country for the purpose of examining the manifest or inspecting and searching the vehicle and may stop, search, and examine any vehicle or person within the limits of the United States on which or on whom he may have reasonable cause to believe there is merchandise subject to duty or which has been introduced into the United States contrary to law. * * * ”
. The “lookout list” or “Information Bulletin” included a description of an automobile by make, year, color, and California vehicle registration number. The list further indicated that one or two Negro women would be in the vehicle (Gov.Ex. 1).
. Murgia v. United States, 9 Cir., 1960, 285 F.2d 14; King v. United States, 5 Cir., 1958, 258 F.2d 754, note 5; Blackford v. United States, 9 Cir., 1957, 247 F.2d 745. “The court is bound to take notice of public facts.” The Apollon, 9 Wheat. 362, 6 L.Ed. 111.
. 19 U.S.C.A. § 1582.
. This reads:
“Appellant seems to think that a first offender is entitled to special consideration. He is right, but it is not the consideration he has in mind. The legislative history of the statute shows that the first offender is given special consideration — when it comes to trafficking in narcotics. He is denied probation and parole and sentenced to a minimum of five years imprisonment. The House and Conference Report on the bill that became the Narcotic Control Bill of 1956, points out that eighty per cent .of vio-laters of the narcotic laws are first offenders. ‘Therefore it is the view of your committee that the first-offender-peddler problem will become progressively worse and eventually lead to the large scale recruiting of our youth by the upper echelon of traffickers unless immediate action is taken to prohibit parole, probation, or suspension of sentence in case of all persons convicted in narcotic and marihuana drugs.’ * * * 2 U.S. Code Congressional and Administrative News, 84th Cong., 2nd Sess., 1956, p. 3274. * * * Congressional intent is clear.” 259 F.2d at page 397. | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that some penalty, excluding the death penalty, was improperly imposed?" 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". | Did the court conclude that some penalty, excluding the death penalty, was improperly imposed? | [
"No",
"Yes",
"Yes, but error was harmless",
"Mixed answer",
"Issue not discussed"
] | [
0
] | songer_sentence |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. TELEVISION AND RADIO BROADCASTING STUDIO EMPLOYEES, LOCAL 804, Respondent.
No. 14015.
United States Court of Appeals Third Circuit.
Argued Dec. 6, 1962.
Decided April 4, 1963.
Melvin J. Welles, NLRB, Washington, D. C. (Stuart Rothman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Seymour Strongin, Attorneys, National Labor Relations Board, on the brief), for petitioner.
Richard H. Markowitz, Philadelphia, Pa. (Wilderman, Markowitz & Kirsch-ner, Philadelphia, Pa., on the brief), for respondent.
Marcus Manoff, Dilworth, Paxson, Kalish, Kohn & Dilks, Philadelphia, Pa., amicus curiae, for petitioner.
Before BIGGS, Chief Judge, STALEY, Circuit Judge, and LEAHY, District Judge.
STALEY, Circuit Judge.
The National Labor Relations Board has found that respondent violated § 8(b) (5) of the National Labor Relations Act, 29 U.S.C.A. § 158(b) (5), by charging certain of its members excessive and discriminatory initiation fees. The case is here on the Board’s petition for enforcement of its order entered pursuant to that determination.
Respondent is the collective bargaining representative of the employees who work for the Radio and Television Division of Triangle Publications, Inc. (“company”) in the operation of a radio and television station in Philadelphia. These employees include, among others, technicians, equipment operators, and studio and stage managers in a non-supervisory capacity. The collective bargaining agreement between the parties for a number of years prior to the alleged unfair labor practice contained a union security provision. During this period it was the company’s practice to hire both part-time and temporary employees in the unit covered by the contract. In accordance with the union-shop clause they were advised that they would have to join the union.
The respondent objected to the use of part-time employees because it considered this practice a threat to the job security of regular, full-time employees. In 1957 it increased its initiation fee from $50 to $500 for all new members except those employed in newly organized units. When the company protested, the union relented to the extent of permitting a $50 down payment with $25 monthly payments for each month worked until the entire fee was paid. However, in November 1960, respondent changed the method of payment, requiring a $300 initial payment to be followed by two consecutive monthly payments of $100. The company then filed the unfair labor practice charge which resulted in the order now before us.
This is the first case in which a court has been called upon to construe this particular subsection of the statute, and respondent argues that its legislative history shows that it was never intended to apply to the facts before us. Reduced to its essence, the argument is that § 8 (b) (5) was intended to proscribe the maintenance of a closed shop by means of excessive or discriminatory initiation fees, and that this was not the purpose of respondent, which desired the hiring of more full-time employees by the company. Conceding that one of the purposes of the statute was to inhibit closed shop conditions, we think the argument is devoid of merit. The union’s desire for more full-time employees is beside the point for, as found by the Board, the increase in the fee “was designed for the purpose of restraining the Employer in the hiring of part-time employees who were not union members, or to end the practice, thereby restricting employment to full-time union members.” 135 N.L.R.B. 632 (1962). This conduct falls squarely within that prohibited by the statute.
There is substantial evidence to support the Board’s conclusion that the fee was excessive and discriminatory under all the circumstances. In accordance with the express mandate of the statute, the Board considered, among other relevant factors, the initiation fees of other unions in the industry, and the wages currently paid to the employees affected. The evidence fully supports its finding that no other union in the Philadelphia area representing technicians and crew men charged comparable fees. One union which charged a fee of $1,000 had units in New York as well as Philadelphia and covered newsreel cameramen as well as independent newsreel production. According to General Counsel’s Exhibit No. 5, the fees charged by other comparable Philadelphia unions ranged from $10 to $200. In considering the wages currently paid to the employees affected, the Board noted that skilled technicians may eventually earn $200 per week, but deemed the starting salary of from $90 to $95 per week of greater significance. Since we are dealing with initiation fees which by definition are amounts paid by new union members, this analysis is obviously appropriate. These are the employees “affected” by the fee. Respondent’s contention that the average weekly earnings of the company’s employees exceed $200 per week is not significant, for these are the earnings of regular full-time personnel.
Among the other circumstances considered by the Board were the amount of the increase and the context in which it was effected. The fact that the fee was raised ten fold is obviously important. When this is coupled with the union’s vigorous objection to the practice of hiring part-time employees, the Board’s inference that the purpose of the fee was to end this practice, thereby restricting employment to full-time union members, was certainly permissible, if, indeed, not ineluctable.
The trial examiner concluded that the charge was improperly filed because made by the company under a section designed for the exclusive benefit of employees. The union does not seriously press that argument in this court. In any event it is without merit. As pointed out by the Board, its rules permit a charge to be made by “any person.” Additionally, a similar argument was rejected in National Labor Relations Board v. Indiana & Michigan Electric Co., 318 U.S. 9, 17-18, 63 S.Ct. 394, 87 L.Ed. 579 (1943), because of the very nature of a charge filed with the Board, i. e., it is not proof but merely sets in motion the machinery of an inquiry.
Respondent urges that the union security clause of the collective bargaining agreement is invalid under § 8(a) (3) of the statute, 29 U.S.C.A. § 158, because it fails to provide a full thirty-day period after the execution of the agreement for old non-member employees to become union members, and also requires new employees to become members within thirty days after employment. From this it is argued that there could be no violation of § 8(b) (5) which by its terms is restricted to “employees covered by an agreement authorized under subsection (a) (3) * * *»
The union security clause of the most recent contract provides:
“The party of the first part agrees to maintain a Union Shop, requiring that all present employees (with the exceptions noted in Paragraph 1, Article 1) shall become members of the Union and all future employees must become members of the Union within a period of thirty (30) days after employment, and that all employees will continue their membership in the Union during the term of this agreement. If any employee (with the exceptions noted in this Article) does not remain a member in good standing with the Union, as provided in the Labor-Management Relations Act, the party of the first part agrees that it will require the employee to come into good standing with the Union or to be forthwith dismissed from employment.”
The Board found the clause valid and hence did not pass on the issue whether an unlawful security clause would preclude a violation of § 8(b) (5). We agree.
With respect to non-member employees at the time the contract was executed, the pertinent phrase is “shall become members of the Union.” It is not suggested that any of these were required to join within a shorter period than that prescribed in the statute. Moreover, the contractual relationship had existed since 1948 until the termination of the last contract in 1961. Thus any technical deficiency, if such there is, so far as old employees are concerned, would have existed only during the thirty-day period following the execution of the 1948 contract.
Respondent places great reliance on Chun King Sales, Inc., 126 N.L.R.B. 851 (1960), to support its contention that requiring new employees to become union members within thirty days of employment violates § 8(a) (3). Suffice it to say that ten days before its decision in the instant case, the Board overruled its decision in Chun King Sales, holding that the phrase “within thirty days” is equivalent to the statutory language “on or after the thirtieth day.” New York State Electric and Gas Corp., 135 N.L.R.B. 357 (1962). This analysis appears sound, particularly where, as here, there is no'indication that new employees were not given thirty days.
The mere fact that the contract expired before the complaint issued does not render the case moot. It is well established that the discontinuance of an unfair labor practice does not render a charge relating to that practice moot. National Labor Relations Board v. Mexia Textile Mills, Inc., 339 U.S. 563, 70 S.Ct. 833, 94 L.Ed. 1067 (1950), and cases cited therein. The record reveals that the parties were operating under the terms of their former contract, except for the union security provision, at the time of the hearing, and it is quite likely that any new agreement will contain a union shop clause.
The Board’s order, in pertinent part, requires respondent to “pay to all employees of the Employer working in classifications covered by any collective bargaining agreement requiring membership in Respondent as a condition of employment all sums in excess of $50 paid Respondent toward the $500 initiation fee on or since June 19, 1960.” Respondent, citing Local 60, United Brotherhood of Carpenters v. N. L. R. B., 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961) ; National Labor Relations Board v. United States Steel Corp., 278 F.2d 896 (C.A.3, 1960), cert. denied, 366 U.S. 908, 81 S.Ct. 1082, 6 L.Ed.2d 234 (1961); and National Labor Relations Board v. American Dredging Co., 276 F.2d 286 (C.A.3,1960), cert. denied, 366 U.S. 908, 81 S.Ct. 1082, 6 L.Ed.2d 234 (1961), contends that the order is beyond the power of the Board in the absence of proof that each of the employees was coerced into making the payments. The cited cases are inappo-site. Each of them involved an attempt by the Board to apply its Brown-Olds reimbursement remedy on behalf of members of a union which was a party to a preferential hiring arrangement. However, the gist of the unfair labor practice was the restraint or coercion of employees in the exercise of statutory rights. Thus, in the absence of proof of such coercion the Supreme Court, as well as this court, held that reimbursement to union members who benefited by the very preferential arrangement found to be unlawful was not a remedial measure which would effectuate the purposes of the statute. In the instant case, the unfair labor practice was not the restraint or coercion of employees, but the specific statutory violation of exacting an excessive and discriminatory initiation fee. Hence, it is manifest that there is a rational nexus between this unfair labor practice and the Board’s order of reimbursement.
Respondent objects that the order is based on a fee of $50. It is said that the presumption inherent in this is that any fee in excess of that amount would be excessive. We disagree. The Board made no attempt to find what fee would not be excessive or discriminatory. The evidence shows that other unions charged fees in excess of $50. However, it was the respondent which abruptly increased its fee from this amount to that found to be excessive and discriminatory. In these circumstances we cannot say that the Board either exceeded its jurisdiction or abused its discretion in using $50 as the basis for its order.
The order of the Board will be enforced, and a form of decree may be submitted.
. “§ 158. Unfair labor prácticos
*****
“(b) It shall be an unfair labor practice for a labor organization or its agents—
* * * * *
“(5) to require of employees covered by an agreement authorized under subsection (a) (3) of this section the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the Board finds excessive or discriminatory under all the circumstances. In making such a finding, the Board shall consider, among other relevant factors, the practices and customs of labor organizations in the particular industry, and the wages currently paid to the employees affected * *
. Stewart Hooker, personnel and labor relations director for the company, distinguished between the two:
“Q. (By Mr. Kaye) Since the question of part time help has just been raised, could you distinguish clearly for the purposes of the record the difference between part time help and temporary help.
*****
“A. The part time help is what the term denotes; people who work less than a full week and at times less than a full day, perhaps as needed and perhaps irregularly from week to week or even day to day would be part time help.
“Temporary help on the other hand, as we mentioned yesterday, might work regularly day in and day out and maybe week and week out [sic] when used as vacation replacements or that sort of thing, ' or during a football season or baseball season.”
. Respondent also urges that its initiation fee compares quite favorably with typical employment agency fees. To this it need only be said that it ill behooves a labor union with the fiduciary responsibilities of a collective bargaining representative to equate its initiation fees with the fees an employment agency charges for its job placement services.
. The relevant portion of the section provides :
“§ 158. Unfair labor practices “(a) It shall be an unfair labor practice for an employer—
* * * * *
“(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization: Provided, That nothing in this subchapter, or in any other statute of the United States, shall preclude an employer from making an agreement with a labor organization * * * to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later * * | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
8
] | songer_genresp2 |
UNITED STATES of America, and Frank Camp, Special Agent of the Internal Revenue Service, Appellees, v. John L. COTTON, Appellant.
No. 77-2042.
United States Court of Appeals, Tenth Circuit.
Dec. 23, 1977.
Lawrence A. Bobbitt, III, Asst. U. S. Atty. (Charles E. Graves, U. S. Atty. and Toshiro Suyematsu, Asst. U. S. Atty., Cheyenne, Wyo., with him on the brief), for appellees.
John L. Cotton, pro se.
Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.
PER CURIAM.
Appellant-respondent Cotton is a tax protestor who refused to comply with a court order enforcing an Internal Revenue Service Summons. Jurisdiction lies under 26 U.S.C. §§ 7402(b) and 7604(a). Appellant was found in civil contempt and sentenced to a 40-day jail term with provision that he could purge himself of the contempt by obedience to the summons. We have expedited the appeal, reviewed the complete record, and considered the brief and oral argument of respondent who appeared pro se.
The facts are substantially the same as those considered in United States v. Carroll, 10 Cir., 567 F.2d 958, opinion filed this day. Our discussion in Carroll of the claims of rights and privileges under the federal Constitution applies here and need not be repeated. It suffices to say that respondent has been denied no constitutional right or privilege. Our Carroll opinion is also dis-positive of all other issues raised by respondent except two.
Respondent claims that production of the required records would violate the marital privilege which precludes one spouse from becoming an adverse witness against the other. Hawkins v. United States, 358 U.S. 74, 75, 79 S.Ct. 136, 3 L.Ed.2d 125. The wife did not raise the issue of privilege. There is no showing that any of the records were a communication between husband and wife or were confidential as between them within the protection of the marital privilege. United States v. Ashby, 5 Cir., 245 F.2d 684, 686. We have held that the production of the records, in the circumstances presented, violated no constitutional rights of the husband. By the same reasoning the wife could not claim self-incrimination. See In re Grand Jury Proceedings Susan Rovner, Witness, E.D.Pa., 377 F.Supp. 954, 955; affirmed, 3 Cir., 500 F.2d 1400, cert. denied 419 U.S. 1106, 95 S.Ct. 776, 42 L.Ed.2d 802. The claim of marital privilege has no validity.
Respondent sought to disqualify Judge Brimmer and complains of Judge Brimmer’s actions at the trial. Respondent made no effort to comply with the provisions of 28 U.S.C. §,§ 144 and 455 pertaining to the disqualification of a judge. The record shows that Judge Brimmer conducted all hearings of the matter with fairness, impartiality, patience, and restraint.
Affirmed. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
0
] | songer_counsel1 |
Thomas T. SWISHER, Appellant, v. UNITED STATES of America, Appellee.
No. 17372.
United States Court of Appeals Eighth Circuit.
Jan. 13, 1964.
Wyman Wickersham, Kansas City, Mo., for appellant.
F. Russell Millin, U. S. Atty., Clifford M. Spottsville, Asst. U. S. Atty., Kansas City, Mo., Abraham Newrow, Lieutenant Colonel, JAGC, Office of Judge Advocate General, Dept, of Army, Washington, D. C., and Joseph J. DeFrancesco, Captain, JAGC, Office of Judge Advocate General, Dept, of the Army, Washington, D. C., for appellee.
Before VOGEL, BLACKMUN and RIDGE, Circuit Judges.
PER CURIAM.
The conviction of appellant at court-martial having been affirmed by higher authority, he filed petition for writ of habeas corpus in the District Court, rais? ing the question of his mental competency to stand trial on the charges preferred against him. The District Court dismissed appellant’s petition for a writ, without requiring response to be made thereto by the Warden of the Medical Center for Federal Prisoners, at Springfield, Missouri, where appellant is presently confined. We granted leave to appeal in forma pauperis “ * * * for the purpose of settling the question of Swisher’s right to a hearing on his mental capacity, and of attempting to put an end to his continuous applications for a writ in the District Court and his repetitive applications for a writ of mandamus” and previous request for leave to appeal in forma pauperis.
We have carefully reviewed the record in this appeal in the light of the ex parte records before us. Our conclusion is that appellant has set forth therein some factors which give facial indication of a possible issue existing, that his mental competency to stand trial may not have been constitutionally adjudicated at his court-martial. We cannot presently dispose of that possible issue with finality on the basis of the record before us. That the issue of “mental competency at the time of the offense and at the time of trial are entirely different questions of fact” is cogently recognized by the District Court in its opinion, supra, 211 F. Supp. at 1. c. 918.
In Hayes v. United States, 8 Cir., 305 F.2d 540, at 543, we had occasion to say:
“In Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835, the Supreme Court summarily vacated a District Court’s denial of a § 2255 motion and the Court of Appeals’ affirmance thereof, * * * where the question of trial competency had been disposed of on the basis of the motion to vacate, the record of the trial proceedings, and, some affidavits appearing in the court files. The case was remanded to the District Court for a hearing on the competency question.”
A like remand was made by us in the Hayes case, supra. That a 2255 motion has affinity to an application for writ of habeas corpus by non-federal court prisoners is recognized in Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407.
In Burns v. Wilson, 346 U.S. 137, at 1. c. 139, 73 S.Ct. 1045, at 1. c. 1047, 97 L.Ed. 1508, it is said:
“The statute which vests federal courts with jurisdiction over applications for habeas corpus from persons confined by the military courts is the same statute which vests them with jurisdiction over the applications of persons confined by the civil courts. But in military habeas corpus the inquiry, the scope of matters open for review, has always been more narrow than in civil cases.”
“(T)he scope of matters open for review” in the instant habeas corpus proceeding is limited by appellant to the issue of his competency to stand trial before his court-martial. His previous and instant application for a writ of habeas corpus have been self-prepared. He is now represented by retained counsel. Seemingly, as far as we can presently ascertain, appellant has exhausted all provisions of the Uniform Code of Military Justice (10 U.S.C.A. Chap. 47) for making collateral attack against his conviction and sentence on the ground that he was mentally incompetent to stand trial. Cf. Hiatt v. Brown, 339 U.S. 103, 70 S.Ct. 495, 94 L.Ed. 691; Gusik v. Schilder, 340 U.S. 128, 71 S.Ct. 149, 95 L.Ed. 146 (1950). Whether a “fair determination by the military tribunal” has been made as to that issue is a question that cannot, and should not, be resolved by us on the present record. Cf. Whelchel v. McDonald, 340 U.S. 122, 71 S.Ct. 146, 95 L. Ed. 141 (1950).
The order dismissing appellant’s latest application for writ of habeas corpus is hereby vacated. This case is remanded to the District Court for further proceedings in accordance with due process of law.
. Swisher v. United States, 211 F.Supp. 917 (W.D.Mo.1962).
. In the case at bar we appointed Wyman Wiekersham, Esq, of Kansas City, Missouri, Bar, to represent appellant as an indigent defendant. Compatible with his obligation as a member of the Bar of this Court to so act, Mr. Wiekersham willingly accepted such appointment. Subsequent thereto, appellant’s parents made arrange-meats to retain Mr. Wiekersham and paid him a fee. Before accepting the same, he informed the Clerk of this Court of bis retainer. As a consequence, we revoked his in forma pauperis appointment. He now appears in this appeal as retained counsel. | 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. | Is the opinion writer identified in the opinion, or was the opinion per curiam? | [
"Signed, with reasons",
"Per curiam, with reasons",
"Not ascertained"
] | [
1
] | songer_opinstat |
DENSON v. MAPES et al.
No. 11692.
Circuit Court of Appeals, Ninth Circuit.
Feb. 19, 1948.
Rehearing Denied March 25,1948.
Samuel Platt, of Reno, Nev., for appellant.
H. R. Cooke and John D. Furrh, Jr., both of Reno, Nev., for appellees.
Before GARRECHT, MATHEWS and HEALY, Circuit Judges.
PER CURIAM.
On the grounds and for the reasons stated in its opinion, 71 F.Supp. 503, the judgment of the District Court here appealed from is affirmed, and appellant’s motion for reimbursement by appellees for causing unnecessary costs on appeal is denied without prejudice to the right of appellant to make and file with the clerk of this court a motion for the allowance of costs to appellant, such motion, if made, to conform with our Rule 17(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 task is to identify the state of the first listed state or local government agency that is a respondent. | What is the state of the first listed state or local government agency that is a respondent? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
0
] | songer_r_stid |
UNITED STATES of America, Plaintiff-Appellee, v. Leola Studdert GISSEL, Executrix of the Estate of Julius Schutze Gissel, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. C. J. THIBODEAUX AND COMPANY and the Travelers Indemnity Company, Defendants-Appellants.
No. 73-2829.
United States Court of Appeals, Fifth Circuit.
April 26, 1974.
Robert M. Julian, Houston, Tex., for C. J. Thibodeaux & Co., et al.
Alan S. Dale, Houston, Tex., for Leola S. Gissel.
Jack Shepherd, Asst. U. S. Atty., Anthony J. P. Farris, U. S. Atty., Houston, Tex., Morton Hollander, Chief, Appellate Sec., Civ. Div., Lawrence F. Ledebur, Chief, Admiralty & Shipping Section, Robert E. Kopp, Dept, of Justice, Washington, D. C., Charles B. Wolfe, Asst. U. S. Atty., Houston, Tex., for plaintiff-ap-pellee.
Before ALDRICH, Senior Circuit Judge, and BELL and GEE, Circuit Judges.
Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.
ALDRICH, Senior Circuit Judge:
These are two consolidated actions arising out of the bankruptcy and the consequent failure of the owners of an American vessel, the S. S. SEA PIONEER, to pay customs duties imposed by virtue of 19 U.S.C. § 257 on entry following repairs made in a foreign country. Defendants Gissel and Thibodeaux, are so-called berthing agents whose business it is to make arrangements for entry, docking, attend-anee of customs agents, etc. and clearance, on behalf of vessels entering United States ports where they offer their services. In connection therewith each defendant annually files a blanket bond specified to apply to all vessels entered and cleared by them in the course of the year. The government is the obligee. In May 1964, the S. S. SEA PIONEER docked at Port Arthur, Texas, using Gissel’s services. Having been repaired while abroad, she incurred a duty obligation finally liquidated in 1967 at $14,217. In October 1965, the vessel docked at Galveston, Texas, using Thibo-deaux’s services, and having again been repaired abroad, incurred a duty obligation finally liquidated in 1968 at $57,674. The owners having become bankrupt without hawing paid, and the wessel having been sold abroad without satisfying these claims, the government sued defendants on their bonds. The district court found for the government for the penal sum ($10,000) of each bond, and defendants appeal. In a nutshell, it is defendants’ position that their bond covers only obligations for routine services rendered while the vessel was in port, and which they specifically requisitioned by executing Customs Form 3171, while the government claims that it covers the whole spectrum of the vessel’s liability.
At least at first blush the government appears correct. The bonds, executed on Customs' Form 7569, provided,
“(1) If the above-bounden principal shall pay to the collector of customs of said port(s) promptly on demand such penalties as may be incurred by the vessels, vehicles, or aircraft, together with the sums chargeable under law and regulations for such services as may be performed for said vessels, vehicles, or aircraft by customs officers or employees, and shall promptly pay any duties, charges, exactions, penalties, or other sums found legally due the United States from any master or other proper officer or owner of said vessels, vehicles, or aircraft on account of said vessels, vehicles, or aircraft.” (Emphasis suppl.)
Defendants contend, (a) that the bond does not in terms cover the duty imposed on account of foreign repairs; (b) that even if the form of the bond does in terms purport to cover such duties, in the context of its execution they were not covered when a berthing agent, rather than the vessel, was the party executing it; and (c) that in any event, although executing the bonds as principals, as between themselves and the vessel the agents were only sureties, and affording an extension to the vessel effected their discharge. Consideration of these defenses requires examination of the total circumstances.
Pursuant to statutory authority, 19 U.S.C. §§ 1623, 1624, the Treasury Department adopted regulations under which an entering vessel itself, or by its agent, must apply for customhouse and attendant services and give bond for payment. It is further provided that if a vessel wishes to clear without payment of duty resulting from foreign repairs it must make a deposit or give bond for such. 19 C.F.R. § 4.14. Defendants’ contention that the bonds which they signed did not in terms cover such duties, based on a construction they seek to give the prefatory “whereas” clauses, is not only unpersuasive in itself in view of the breadth of language, including the fact that there are four paragraphs in the bond referring to duties, but is firmly rebutted by the fact that the bond form which defendants signed, No. 7569, is particularly specified in 19 C.F. R. § 4.14 as suitable for covering the duty due on account of repairs. Defendants’ point, accordingly, must be that for some reason, although they signed such a broad bond, the intent was for their liability to be limited to only some, and not this portion, of the bond’s apparent undertakings.
Nothing in the language of the bond suggests a limitation. Nor did defendants’ later applications for permits to unlade the S. S. SEA PIONEER requesting only certain services, modify the bonds, which on their face applied in toto to any vessel “entered and cleared” by defendants. It is true, as defendants assert, that there is no statutory liability imposed upon a berthing agent for customs duties. Correspondingly, the statute provides that for such services as, concededly, are normally ordered by an agent, a bond shall be given by the “master, owner, or agent of such vessel,” 19 U.S.C. § 1451, whereas a duty bond is merely required to be “given,” with no mention made of agents. 19 C.F.R. § 4.-14. It does not follow, however, that if an agent voluntarily gives a bond which in terms covers obligations of his principal, it should be unenforcible. We see no reason why an agent may not furnish credit as a service to his principal if he wishes to. Cf. Caldwell Shipping Co. v. United States, 53 Cust.Ct. 311 (1964) (payment of duty by agent).
It must equally follow that since the very purpose of furnishing a duty bond is to permit the vessel to clear without paying the duty, the agent cannot claim that permitting the vessel to depart was an unconsented-to release of the security, or extension of credit to the principal, which discharged the surety. Nor are we persuaded by the argument that the government should have proceeded with more dispatch against the vessel. It may be, as defendants suggest, that berthing agents were never charged for uncollectible duty before, but, as the district court held, this does not mean that the liability was not clearly undertaken. We find no ambiguity in the instrument itself, or in the surrounding circumstances.
Affirmed.
. Now 19 U.S.C. § 1466.
. Strictly, Gissel, formerly d/b/a Collin & Gissel, is now deceased and is represented by bis executrix, and Thibodeaux is O. J. Thibodeaux & Co. Also named defendants, but not embraced in that term as used herein, are two indemnity companies that signed Gis-sel’s and Thibodeaux’s bonds as sureties.
. For doubtless good and sufficient reason, Gissel and Thibodeaux do not claim that, as they were agents of a disclosed principal (the vessel or its owners), under agency princi-pies the principal was the party chargeable and they were not. We do not, accordingly, pursue this question. | 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 - bankruptcy, antitrust, securities". | What is the specific issue in the case within the general category of "economic activity and regulation - bankruptcy, antitrust, securities"? | [
"bankruptcy - private individual (e.g., chapter 7)",
"bankruptcy - business reorganization (e.g., chapter 11)",
"other bankruptcy",
"antitrust - brought by individual or private business (includes Clayton Act; Sherman Act; and Wright-Patman)",
"antitrust - brought by government",
"regulation of, or opposition to mergers on other than anti-trust grounds",
"securities - conflicts between private parties (including corporations)",
"government regulation of securities"
] | [
1
] | songer_casetyp1_7-3-4 |
Herbert S. WITTE, Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
No. 74-1426.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 21, 1975.
Decided May 22, 1975.
Rehearing Denied June 19, 1975.
Gary R. Allen, Atty., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks and William A. Whitledge, Washington, D. C., were on the brief, for appellant.
Robert H. Wyshak, Los Angeles, Cal., with whom L. W. Wyshak, Los Angeles, Cal., was on the brief, for appellee.
Before TAMM, LEVENTHAL and ROBINSON, Circuit Judges.
Opinion for the Court filed by Circuit Judge LEVENTHAL.
LEVENTHAL, Circuit Judge:
Appellant, Commissioner . of Internal Revenue, challenges a ruling of the Tax Court permitting appellee, Herbert S. Witte, to alter his method of reporting gain derived from sale of certain real estate properties. The Tax Court held that since the taxpayer had been improperly reporting his gain he could correct his error without seeking permission from the Commissioner. The Commissioner contends that valid regulations and applicable case law require a taxpayer to secure approval of changes in accounting methods even when the taxpayer proposes to adopt the only correct method. For the reasons set forth below, we reverse the decision of the Tax Court and remand the case for further proceeding.
I. BACKGROUND
The facts underlying the Commissioner’s determination of deficiencies in ap-pellee’s federal income taxes for calendar years 1962-64 are fully developed in the decision of the Tax Court. Herbert S. Witte, P-H Tax Ct.Mem. 1 72,232, at 1187-90 (1972). A brief overview of the basic dispute should provide sufficient background for the limited issue presented in this appeal.
In 1956 and 1957, appellee Witte and Robert C. Monroe acquired approximately 960 acres of unimproved real estate. After the land was subdivided, thirty parcels of approximately 20 acres each were sold under sales contracts providing for a 10% down payment and monthly principal and interest payments equal to 1% of the sales price. Witte, a cash receipts and disbursements method taxpayer, reported gain derived from these sales under the “cost recovery” or “deferred payment” method. Under that method, he initially treated income received from a sales contract as recovery of his basis in the property. Witte reported all income in excess of his basis as long-term capital gain in the year of receipt.
The Commissioner’s deficiency determination rested on his finding that the amounts reported in 1962-64 as long-term capital gain should be taxed as ordinary income since such amounts were in part interest income and in part income from the sale of property held primarily for sale. See Herbert S. Witte, supra, at 1191. In the Tax Court, appel-lee argued that the land sales were completed transactions when made and that the entire gain from the sales was properly reportable in 1956 — 57 rather than upon receipt of monthly payments under the sales contracts. See id. at 1190-91. The Commissioner agreed that the cost recovery method was improperly invoked since the contracts had an ascertainable fair market value when entered into in 1956-57. However, he argued that the income was reportable in 1962-64 since appellee could not alter his long-standing method of reporting gain without obtaining consent under section 446(e) of the Internal Revenue Code. The Tax Court concluded that the taxpayer could shift to the proper completed transaction method without the Commissioner’s consent and therefore did not reach the other issues posed by the deficiency determination. Id. at 1193-94.
II. MERITS
The Commissioner contends that the Tax Court erred in finding section 446(e) inapplicable. That section provides that “[e]xcept as otherwise expressly provided in this chapter, a taxpayer who changes the method of accounting on the basis of which he regularly computes his income in keeping his books shall, before computing his taxable income under the new method, secure the consent of the Secretary or his delegate.” The applicability of the consent requirement turns on two issues — (1) whether the change from “cost recovery” to completed transaction treatment of the land sales constitutes a change in appellee’s “method of accounting” and (2) whether the consent requirement applies when the taxpayer substitutes a proper accounting method for an improper one.
The taxpayer’s proposed shift from the cost recovery approach to completed transaction treatment constituted a “change in the method of accounting” within the meaning of the Treasury Regulations. That term is specifically described as including “a change in the overall plan of accounting” or “a change in the treatment of any material item.” Treas.Reg. § 1.446-l(e)(2)(ii)(a) (1957). This case involves a “change in the treatment of [a] material item.” The Tax Court opinion reveals that gain from payments for the 1962 — 64 period totalled more than $88,000. Taxpayer’s proposed shift to completed transaction treatment “involves the proper time for the inclusion of the item in income” and thereby satisfies the definition of “material item” set forth in the regulation. Treas.Reg. § 1.446-1(e)(2)(ii)(a), T.D. 7073, 1970 — 2 Cum.Bull. 99. Accordingly, the threshold requirement for the applicability of the consent provision has been met.
The principal question presented by this appeal concerns the validity of the Tax Court’s conclusion that the taxpayer’s. change in accounting method “was not precluded by section 446(e).” Herbert S. Witte, supra, at 1193. That section states that consent is required “[e]xcept as otherwise expressly provided in this chapter.” The Tax Court made no reference to any section of the Code which “expressly” sets forth an exception to the consent requirement. Counsel for appellee does not direct us to any such provision.
The Tax Court relied on Underhill, 45 T.C. 489 (1966), for the proposition that no consent is required when the taxpayer seeks to change from an improper to a proper accounting method. See Herbert S. Witte, supra, at 1193. Although the Underhill decision is distinguishable from the present controversy, it contains dicta suggesting that section 446(e) does not govern changes from an improper to a proper accounting method. 45 T.C. at 497. We reject that approach as contrary to the applicable Treasury regulations and subversive of the underlying purpose of section 446(e)’s consent requirement.
Regulation 1.446-l(e)(2)(i) states that “[c]onsent must be secured” to change an accounting method “whether or not such method is proper or is permitted under the Internal Revenue Code or the regulations thereunder.” T.D. 7073, 1970-2 Cum.Bull. 98. Two of the examples set forth in the regulations indicate that the Commissioner’s consent to switch accounting methods is necessary “[although [the present] method is not a proper method.” Treas.Reg. 1.446-l(e)(2)(iii) (examples 7 & 8), T.D. 7073, 1970-2 Cum.Bull. 100. Supreme Court decisions mandate that “Treasury regulations must be sustained unless unreasonable and plainly inconsistent with the revenue statutes.” Commissioner v. South Texas Lumber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 92 L.Ed. 831 (1948); see United States v. Catto, 384 U.S. 102, 113, 86 S.Ct. 1311, 16 L.Ed.2d 398 (1966). The Tax Court made no finding that it would be unreasonable or inconsistent with the statute to require taxpayers to obtain consent before shifting from an invalid to a valid accounting method.
The purpose of the consent requirement is to enable the Commissioner to prevent distortions of income that often accompany changes in accounting methods by conditioning consent on the taxpayer’s agreement to make correcting adjustments in his income tax payments. The danger of distortion of income detrimental to governmental revenues exists regardless of whether the change in method is from one proper method to another or from an improper method to a proper one. The consent requirement has as much vitality in the latter case as in the former. A prescribed method of accounting is not an
ing that “clearly reflects income.” And so it is that the Tax Court decisions subsequent to Underhill, which seem not to have caught the attention of the Tax Court in this case, have recognized that the purpose of the section 446(e) requirement demands its application “even where the taxpayer’s prior accounting method was improper.” And this is the view of the circuit courts of appeals. end in itself but rather a means toward fulfilling the statutory goal of account-
The present case illustrates the salutary function of the consent requirement. Under the approach of the Tax Court opinion under review, the taxpayer might well avoid taxes on the gain from .the land sales by claiming that he was no longer required to report the payments received on the contracts as gain because that income was reportable in 1956-57, years now barred by the statute of limitations. The consent provision serves to prevent such distortion of income by requiring that the taxpayer either make a correcting adjustment prior to abandoning the cost recovery reporting of his gain on the sales or continue to employ that method thereby assuring that the gain does not escape taxation.
There is language in decisions relied on by the Tax Court, and the taxpayer, saying that a taxpayer is entitled to correct an error. Of course he is, but he is not entitled to do so in a way that may distort income. If the Commission-
er had insisted on an adjustment that put an excessive condition on the correction of an error, it might well be held that he had abused his discretion to withhold approval of a change in accounting method. But that is not the case before us.
Our analysis of the statutory provisions, relevant regulations, and available precedents indicates that the Tax Court erred in finding section 446(e) inapplicable to this controversy. We remand the case for further proceedings with respect to the Commissioner’s deficiency determinations.
So ordered.
. The sales contracts contained an unconditional promise to pay the full purchase price and provided for 6% annual interest on the unpaid balance. Herbert S. Witte, supra, at 1188.
. See Treas.Reg. § 1.453-6(a)(2) (1958). The regulation provides that this method of accounting is available only when “the obligations received by the vendor have no fair market value” and cautions that “[o]nly in rare and extraordinary cases does property have no fair market value.”
. See Herbert S. Witte, supra, at 1191. The Tax Court found that the contracts had a fair market value of 75% of their face value when received by the taxpayer in 1956-57. It concluded that they were not speculative investments for which the cost recovery method was appropriate. See id. at 1192; cf. Burnet v. Logan, 283 U.S. 404, 51 S.Ct. 550, 75 L.Ed. 1143 (1931).
. This figure includes both monthly payments and payments of the balance of the purchase price for seventeen parcels. See Herbert S. Witte, supra, at 1190.
Although “no definite standards exist as to what constitutes a ‘material item,’ ” George C. Carlson, P-H Tax Ct.Mem. fi 67,116, at 583, 585 (1967), Dorr-Oliver, Inc., 40 T.C. 50, 54 (1963), the real estate sales at issue here come within the tests adopted in prior decisions. Several courts have relied on comparable dollar amounts to find materiality. See Commissioner v. O. Liquidating Corp., 292 F.2d 225, 230 (3rd Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961) ($114,000 insurance dividend deemed a material item); DorrOliver, supra, at 53, 55 (rejecting a percentage test of materiality in a case involving a corporation with approximately $1,000,000 net income and finding a $25,000 change in the treatment of a $87,000 vacation and holiday pay item to be material). Other courts have combined dollar amount with percentage of taxable income in determining materiality. See Broida, Stone & Thomas, Inc. v. United States, 204 F.Supp. 841, 843 (N.D.W.Va.), aff’d, 309 F.2d 486 (4th Cir. 1962) ($6,660 personal property tax item which would add 10% to taxable income found material); George C. Carlson, supra, at 585 ($6,920 in license fees constituting 8.5% of taxable income deemed material).
. Underhill involved an assessment of a deficiency based on payments received by the taxpayer on debt' obligations which he had purchased at a discount. Prior to the year in question, the taxpayer had reported a pro rata portion of the payments as income. In 1961, he changed to a cost recovery method of reporting without seeking or obtaining the consent of the Commissioner. The Tax Court stated that the “issue before us is the extent to which payments received by the petitioner are taxable or nontaxable — i. e., the character of the payment — not the proper method or time of reporting an item the character of which is not in question.” 45 T.C. at 496. The Third Circuit in Poorbaugh v. United States, 423 F.2d 157, 163 (3d Cir. 1970), cited this passage in support of its conclusion that Underhill provided “no authority for the proposition that because an erroneous accounting method was adopted by the taxpayer he should not be subject to the tax consequences resulting from that method absent a consent to change it.” Moreover, the court in Underhill ventured that in any event section 446(e)’s consent requirement would not apply because there was no danger of “a distortion of income ‘to the detriment of the Government.’ ” 45 T.C. at 496, quoting Commissioner v. O. Liquidating Corp., 292 F.2d 225, 230 (3d Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961). The danger of distortion presented in this case provides a principled distinction of Underhill which the Tax Court overlooked. See discussion at text accompanying notes 7-12 infra.
The other cases cited by the courts below are also distinguishable, In Perelman, 41 T.C. 234, 241-42 & n.10 (1963), the Tax Court found that the Commissioner could “find no support in section 446(e) for his determinations since he was the one who caused the change to be made” and noted that the deficiency would be incorrect “[e]ven assuming, arguendo, that petitioners did change their method of accounting without first seeking the permission of the Commissioner.” Thompson-King-Tate, Inc. v. United States, 296 F.2d 290, 294-95 (6th Cir. 1961), found that a taxpayer which had previously elected the completed contract method of reporting income from long-term construction contracts could not deviate from that method without permission from the Commissioner. The Sixth Circuit concluded that, since no consent to change methods had been obtained by the taxpayer and the Commissioner had not exercised his authority to order a change in accounting method, the taxpayer erred in departing from his elected method and could correct his error. By contrast, the instant case involves the taxpayer’s retroactive attempt to deviate from his long-standing albeit erroneous accounting method without obtaining permission from the Commissioner.
. See Commissioner v. O. Liquidating Corp., 292 F.2d 225, 231 (3d Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961) (finding that the interpretation stated in the original regulations “is certainly not inconsistent with the statute.”).
. See, e. g., Woodward Iron Co. v. United States, 396 F.2d 552, 554 (5th Cir. 1968); Hackensack Water Co. v. United States, 352 F.2d 807, 810-11, 173 Ct.Cl. 606 (1965); American Can Co. v. Commissioner, 317 F.2d 604, 606 (2d Cir. 1963), cert. denied, 375 U.S. 993, 84 S.Ct. 632, 11 L.Ed.2d 479 (1964); Commissioner v. O. Liquidating Corp., 292 F.2d 225, 230 (3d Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961).
. See Brief for Appellant at 24.
Under the Tax Court’s approach, appellee presumably would have been required to obtain the Commissioner’s consent to change from the installment method to the completed contract method since both are proper methods of accounting for income derived from the sale of real property in which the vendor receives obligations with an ascertainable fair market value. One assumes that the Commissioner could properly have denied a request to make such a change since the elected installment method clearly reflects income. Alternatively, the Commissioner could have conditioned the change on a correcting adjustment that would prevent appellee from avoiding tax on his gain from the land sales. We are hard pressed to understand why appellee’s improper choice of the more advantageous cost recovery method should negate the consent provision and require the Commissioner to invoke the Code sections mitigating the statute of limitations in an attempt to correct the distortion of appellee’s income.
. Int.Rev.Code of 1954, § 446(b); Treas.Reg. 1.446-l(a)(2) (1957) (“no method of accounting is acceptable unless, in the opinion of the Commissioner, it clearly reflects income”).
. Bongiovanni, P-H Tax Ct.Mem. fl 71,262, at 1182, 1185 (1971), rev’d on other grounds, 470 F.2d 921 (2d Cir. 1972) (emphasis in the original); H. F. Campbell Co., 53 T.C. 439, 448 (1969), aff’d, 443 F.2d 965 (6th Cir. 1971).
. See, e. g., American Can Co. v. Commissioner, 317 F.2d 604, 606 (2d Cir. 1963); cert. denied, 375 U.S. 993, 84 S.Ct. 632, 11 L.Ed.2d 479 (1964); Wright Contracting Co. v. Commissioner, 316 F.2d 249, 254 (5th Cir.), cert. denied, 375 U.S. 879, 84 S.Ct. 147, 11 L.Ed.2d 110 (1963) (dictum); Commissioner v. O. Liquidating Corp., 292 F.2d 225, 230-31 (3d Cir.), cert. denied, 368 U.S. 898, 82 S.Ct. 177, 7 L.Ed.2d 94 (1961).
. The extent to which the gain on the land sales would escape taxation depends on thé availability of sections 1311-14 of the Code to remove the bar of the statute of limitations for the taxpayer’s 1956 and 1957 returns. See Herbert S. Witte, supra, at 1193 n.7; Brief for Appellant at 14 n.5.
. See, e. g., Thompson-King-Tate, Inc. v. United States, 296 F.2d 290, 294 (6th Cir. 1961); North Carolina Granite Corp., 43 T.C. 149, 168 (1964). | 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. | What is the state of the first listed state or local government agency that is a respondent? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
0
] | songer_r_stid |
UNITED STATES of America v. WHYTE, Easton A. a/k/a Whyte, Larry, Appellant.
No. 89-1154.
United States Court of Appeals, Third Circuit.
Argued July 12, 1989.
Decided Dec. 29, 1989.
See also, D.C., 694 F.Supp. 1194.
Michael M. Baylson, U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, John C. Dodds (argued), Asst. U.S. Atty., Philadelphia, Pa., for appellee.
Steven A. Morley (argued), Philadelphia, Pa., for appellant.
Before HIGGINBOTHAM, BECKER and NYGAARD, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
Appellant Easton Whyte was sentenced to a term of 30 years’ imprisonment for a narcotics violation under the career offender provision of the U.S. Sentencing Guidelines, which applies to three-time drug offenders. A mandatory five-year enhancement for carrying a weapon during a drug trafficking crime increased Whyte’s total sentence to 35 years. Because Whyte was rendered a career offender on account of two prior misdemeanor convictions in state court for sales of small amounts of marijuana, he argues that the application of this guideline seriously overrepresents the nature of his past criminal behavior. Therefore, Whyte contends, the district court committed reversible error in refusing to depart from the applicable guideline range.
This court has recently held that a district court’s discretionary refusal to depart is not appealable. See United States v. Denardi, 892 F.2d 269 (3d Cir.1989). We conclude that this case is controlled by Denardi. Accordingly, to the extent that Whyte claims error in the district court’s refusal to depart, we will dismiss his appeal. Whyte contends further that the Sentencing Commission lacked authority to write the career offender guideline as broadly as it did, that the sentence imposed on him violates the eighth amendment, and that the district court erroneously instructed the jury. Because we find these contentions to be without merit, we will affirm.
I.
On December 28, 1987, two Philadelphia police officers observed appellant Easton Whyte in a car holding a bag of white powder they thought to be cocaine. Whyte attempted to speed away, and a chase ensued. Whyte eventually slammed his car into several parked cars, and the police cruiser in turn crashed into Whyte’s car. One officer then pursued Whyte on foot. As he pulled Whyte down from a fence Whyte was attempting to scale, Whyte turned and pointed a loaded .45 caliber semi-automatic handgun at the officer. The officer knocked it away with his police radio, a wrestling match ensued, and Whyte was eventually restrained by the officer and his partner. Whyte was found to be carrying about 41 grams of crack and 10 grams of regular cocaine, with a street value of about $3710 and $680 respectively.
Whyte was convicted of possession of cocaine with intent to distribute, possession of a firearm during a drug trafficking crime, and possession of a firearm by a former felon. Because Whyte had been convicted for drug offenses twice previously, the district court applied the career offender guideline, section 4B1.1, in calculating the sentence for Whyte’s drug offense. But for the application of that provision, the guidelines would have provided for a sentence between 121 and 151 months for the drug conviction; as a career offender, however, Whyte faced a sentencing range of 30 years to life. He also received a mandatory five-year sentence enhancement for carrying a gun during a drug trafficking crime, bringing his total sentence up to 35 years.
Application of the career offender provision was founded upon the following two predicate offenses:
(1) On August 20, 1984, Whyte was convicted in the Philadelphia Court of Common Pleas of selling $10.00 of marijuana to a police officer. He was fined $200 and ordered to pay $275 court costs.
(2) On April 27, 1987, he was convicted in the same court of possessing “1500 doses” and “200 plastic packets” of marijuana with intent to distribute them. He was fined $1000 and ordered to pay $75 court costs.
Neither side disputes that the career offender guideline, on its own terms, applies to this case. It provides, in relevant part, that an adult who commits a controlled substance offense is a career offender if he “has at least two prior felony convictions of ... a controlled substance offense.” The guidelines define these terms more precisely. A “ ‘[pjrior felony conviction’ means a prior adult federal or state conviction for an offense punishable by ... a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed.” Id. § 4B1.2 application note 3 (emphasis added). A “controlled substance offense” is any offense “identified in 21 U.S.C. §§ 841, 845b, 856, 952(a), 955, 959; and similar offenses.” Id. § 4B1.2(2) (Oct.1988 ed.) (emphasis added). 21 U.S.C. § 841(a)(1) criminalizes possession with intent to distribute a controlled substance, and the analogous Pennsylvania statute provides for imprisonment of up to five years, see Pa.Stat.Ann. tit. 35, § 780-113(a)(30), -113(f)(2) (Purdon 1977 & Supp.1989). Thus Whyte’s predicate offenses, although designated “misdemeanors” under Pennsylvania law, clearly constitute “prior felony convietion[s]” of “controlled substance offense[s]” for purposes of the career offender guideline.
Whyte’s record in the Philadelphia Court of Common Pleas also includes the following:
(3) On March 1, 1983, he pled nolo con-tendere to manufacturing and possessing a controlled substance with intent to distribute. He received six months of reporting probation and six months of non-reporting probation, and was ordered to pay $60 court costs.
(4) On April 1, 1985, he was convicted of carrying a firearm without a license and on a public street. He received one year of probation.
(5) On February 19, 1987, he pled guilty to possessing a controlled substance. He received a $25 fine and was ordered to pay $50 court costs.
(6) On September 19, 1986, he was arrested and charged with conspiracy and possession of a controlled substance with intent to deliver. The charge involves “21 packets” of cocaine and “36 packets” of marijuana. The case is pending.
Whyte argued strenuously at his sentencing hearing that a downward departure from the guidelines was appropriate under the circumstances. The district court, however, refused to depart downward:
On the issue of downward adjustment, I cannot conscientiously find a likelihood that the defendant will not commit further crimes. I believe that based on his past history that he’s a professional drug dealer and if he were given a sentence of a short period of incarceration, he would resume drug dealing on the streets. From his past record also I think he would carry a weapon as part of whatever needs arise from dealing drugs on the street....
I cannot conscientiously say that the defendant’s criminal history was significantly less than that of most defendants in the same criminal history category. The record is therefore insufficient to justify a downward departure from the guidelines.
App. at 271-72.
Whyte raises four issues in appealing his thirty-five year sentence. First, he argues that the career offender guideline is invalid as applied because in writing it to cover this case, the Sentencing Commission exceeded the scope of its delegated authority. Second, he argues that the court erred in refusing to depart downward from the sentencing range applicable to Whyte once he had been classified as a career offender. Third, he argues that his sentence violates the eighth amendment, which prohibits sentences grossly disproportionate to the crime committed. Finally, he argues that the district court erred in instructing the jury that possession with intent to distribute is a “drug trafficking crime” for purposes of the weapons punishment enhancement statute, 18 U.S.C.A. § 924(c). We consider each of these contentions in turn.
II.
Whyte seeks to preclude application of section 4B1.1, the career offender guideline, by arguing that the Sentencing Commission had no authority to write that guideline as broadly as it did. Section 4B1.1 implements 28 U.S.C. § 994(h), which provides in pertinent part that “[t]he Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized [by statute] for categories of defendants in which the defendant ... (2) has previously been convicted of two or more prior felonies, each of which is ... (B) an offense described in [21 U.S.C. §§ 841, 952(a), 955, or 959].” Whyte claims that section 994(h)(2)(B) allows only convictions obtained under those precise federal statutes—not convictions obtained under similar or analogous state statutes—to serve as predicate offenses for career offender status.
We believe that the entire guideline is authorized, if not required, by section 994(h). The text of that statute, although not completely unambiguous, cuts against Whyte’s position. If Congress had wanted only convictions under particular federal statutes to serve as predicate offenses, it could have said so quite simply. Instead, Congress referred to “offenses described in”—not “convictions obtained under”— those statutes. As the government notes, this language suggests that the predicate drug convictions need not be federal themselves, but only “be for conduct [that] could have been charged federally.” Ap-pellee’s Br. at 13.
Moreover, the government’s reading, more so than Whyte’s, effectuates the purpose of section 994(h)—to impose “substantial prison terms” on “repeat drug traffickers.” S.Rep. No. 225, 98th Cong., 2d Sess. 175, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3358. Whyte is a repeat drug trafficker, at least in the sense that each of his predicate drug offenses, despite their relatively modest degree of seriousness, could have been prosecuted under 21 U.S.C. § 841. Had they been, Whyte would now unquestionably be characterized as a career offender, and we can discern no sensible reason why Congress would view Whyte’s conduct with any less opprobrium because of the fortuity (at least from Whyte’s point of view) that he was prosecuted under analogous state statutes instead.
III.
Whyte argues next that the district court erred in refusing to depart downward from the applicable guideline range. The statute governing the appeala-bility of federal sentences by convicted defendants provides that
[a] defendant may file notice of appeal in the district court for review of an otherwise final sentence if the sentence—
(1) was imposed in violation of law; or
(2) was imposed as a result of an incorrect application of the sentencing guidelines; or
(3) is greater than the sentence specified in the applicable guideline range ...; or
(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.
18 U.S.C. § 3742(a) (Supp.1987). In order to fit his sentence within one of the four prongs under which section 3742(a) permits appellate review, Whyte attempts to characterize the district court’s refusal to depart as either a violation of 18 U.S.C. § 3553(a), a violation of 18 U.S.C. § 3553(b), or an incorrect application of the guidelines’ departure provisions. The argument that a refusal to depart might amount to any of these, however, was foreclosed by United States v. Denardi, 892 F.2d 269 (3d Cir.1989), which held that discretionary refusals to depart are not ap-pealable. Accordingly, we conclude that we lack appellate jurisdiction to review Whyte’s claim that the district court erred in refusing to depart from the applicable guideline range.
IY.
Whyte argues that his sentence violates the eighth amendment, interpreted in Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), to prohibit sentences grossly disproportionate to the crime committed.
Solem set out the analytical framework for evaluating proportionality challenges, under which a court looks to three considerations: (1) “the gravity of the offense and the harshness of the penalty”; (2) “the sentences imposed on other criminals in the same jurisdiction”; and (3) “the sentences imposed for commission of the same crime in other jurisdictions.” Id. at 290-92, 103 S.Ct. at 3009-11. Solem thus rejected the notion set out in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980), that eighth amendment inquiries into proportionality are too complicated and subjective for courts to undertake outside the context of capital punishment. However, Solem expressly reaffirmed Rum-mel ’s command that legislative determinations of the relative severity of various crimes be given substantial deference. See Solem, 463 U.S. at 289-90 & n. 16, 103 S.Ct. at 3009-10 & n. 16. Moreover, Solem expressly reaffirmed Rummel on its facts. See id. at 288 n. 13, 103 S.Ct. at 3008 n. 13.
Rummel had upheld a Texas recidivist statute mandating a life sentence after a third felony conviction as applied to someone whose criminal activity consisted of stealing items worth $80 through the fraudulent use of a credit card, passing a forged check for $28.36, and obtaining $120.75 by false pretenses. See 445 U.S. at 265-66, 100 S.Ct. at 1134-35. Solem itself struck down the application of a recidivist statute mandating a life sentence without parole for someone with a series of relatively minor prior felony convictions, distinguishing Rummel on the ground that the life sentence in Rummel carried with it a realistic possibility of parole (though only after twelve years). See 463 U.S. at 297, 103 S.Ct. at 3013.
Although Solem thus structures the proportionality analysis, Rummel, we believe, provides the most useful point of reference in determining the result of that analysis on the facts before us. Rummel himself received a life sentence after having been convicted of three thefts involving a grand total of $229.11. Whyte, by contrast, stands to get 35 years where h'is third offense alone involved almost $4000 worth of crack and pulling a loaded semi-automatic on a uniformed police officer. If the former sentence is constitutional, then without question, so too is the latter.
V.
came. In addition to the drug conviction, Whyte was also convicted of carrying a firearm during a drug trafficking crime pursuant to 18 U.S.C.A. § 924(c)(1) (Supp. 1989). The version of that statute in force at the time of Whyte’s offenses defined “drug trafficking crime” as “any felony violation of Federal law involving the distribution ... of any controlled substance.” 18 U.S.C. § 924(c)(2) (Supp.1987) (emphasis added). Whyte contends that the district court erroneously instructed the jury that possession with intent to distribute is a “drug trafficking crime” for purposes of section 924(c). His position, therefore, entails the dubious proposition that possessing cocaine with intent to distribute it does not “invoMel the distribution” of that co-
Two other circuits have squarely considered — and summarily rejected — Whyte’s argument. See United States v. Matra, 841 F.2d 837, 843 (8th Cir.1988); United States v. James, 834 F.2d 92, 92-93 (4th Cir.1987). Moreover, this court in other contexts has construed the “involving] distribution” language of section 924(c)(2) expansively. See, e.g., United States v. Torres, 862 F.2d 1025, 1030-31 (3d Cir.1988) (holding that conspiring to distribute a controlled substance “involv[es] the distribution” of that.substance). It may be, as Whyte points out, that we must construe ambiguous criminal statutes against the government, but we find no ambiguity in whether possession of cocaine with intent to distribute it “involvfes] the distribution” of that cocaine. We therefore conclude that possession with intent to distribute a controlled substance is a “drug trafficking crime” as defined in the old version of section 924(c)(2), and we reject Whyte’s argument to the contrary.
VI.
We have concluded that we are without jurisdiction to review Whyte’s claim that the district court erred in refusing to depart from the guidelines. We have reviewed Whyte’s .other claims and found each of them to be without merit. Insofar as Whyte appeals from the district court’s refusal to make a downward departure, the appeal will be dismissed. In all other respects the judgment of the district court will be affirmed.
. See 21 U.S.C. § 841 (1982).
. See 18 U.S.C.A. § 924(c) (Supp.1989).
.See id. § 922(g)(1).
. Before application of the career offender provision, Whyte’s offense level for possessing between 35 and 49 grams of cocaine base stood at 30. See Guidelines § 2D1.1(a)(3). His criminal history was Category III, yielding a sentencing range of between 121 and 151 months. See id. Ch. 5, part A. Application of the career offender provision, however, raised Whyte’s offense level to 37 and his criminal history to Category VI, yielding a sentencing range of 360 months to life. See id. § 4B1.1, Ch. 5, part A.
. See 18 U.S.C.A. § 924(c) (Supp.1989); Guidelines § 2K2.4. Whyte’s other weapons conviction was grouped with his drug conviction and therefore ran concurrently with it. See id. §§ 2K2.1, 3D1.2(c), 3D1.3(a).
. Nothing in the record indicates either the amount or the weight of the marijuana that Whyte sold on this occasion. For purposes of this appeal, we may assume this offense to be minor, at least as drug offenses go. We shall describe Whyte’s various offenses with as much specificity as possible. Although the record contains less detail in this regard than is ideal, we find it more than sufficient to support the sentence imposed.
. The career offender guideline provides:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender’s criminal history category in every case shall be Category VI.
Offense Statutory Maximum Offense Level
(A) Life 37
(B) 25 years or more 34
(C) 20 years or more, but less than 25 years 32
(D) 15 years or more, but less than 20 years 29
(E) 10 years or more, but less than 15 years 24
(F) 5 years or more, but less than 10 years 17
(G) More than 1 year, but less than 5 years 12
Guidelines § 4B1.1.
.Effective November 1, 1989, the Sentencing Commission changed the definition of a "controlled substance offense” slightly. For defendants sentenced after that date, a "controlled substance offense” is
an offense under a federal or state law prohibiting the manufacture, import, export, or distribution of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, or distribute.
Guidelines § 4B1.2(2) (Nov.1989 ed.).
. The government urged the court to consider that Whyte drew his gun and attempted to shoot the officer pursuing him. A ballistics expert testified that Whyte’s pulling the trigger (and the gun's misfiring) would explain both the indentation found in the firing pin and the click that the officer heard before he knocked the gun away. However, the expert identified other scenarios as well that could account for both the click and the indentation. Because of his inconclusive testimony, we will not assume that Whyte attempted to pull the trigger; at the very least, however, the record makes clear that Whyte drew the weapon and pointed it at the officer as the officer was pulling him down from the fence. See App. at 72, 85. Without expressly finding whether Whyte tried to pull the trigger, the district court noted that the guideline range was "severe [enough] that it takes into account any appropriate considerations that flow from” the aggravating factors emphasized by the government. Id. at 271. On appeal, Whyte challenges neither the adequacy of the district court’s findings regarding disputed facts, see Fed.R.Crim.P. 32(c)(3)(D), nor the court’s statement of reasons for sentence, see 18 U.S.C. § 3553(c) (Supp.1987).
. We clearly have appellate jurisdiction over this claim by virtue of 18 U.S.C. § 3742(a)(1).
. Even if the career offender guideline were not authorized by section 994(h), Whyte’s argument could succeed only if no other statutory provision authorized the Sentencing Commission to write that guideline as it did. In view of the discussion above, we need not reach this issue.
. Section 3553(a) provides, in pertinent part, that "[t]he court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection [namely punishment, deterrence, incapacitation, and rehabilitation].”
. Section 3553(b) provides:
The court shall impose a sentence of the kind, and within the range, referred to in [the guidelines] unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
. Discretionary refusals to depart — cases in which a district court concludes that departure is inappropriate even if not prohibited by section 3553(b) — must be distinguished from cases involving a claim that the district court refused to depart because it concluded that section 3553(b) prohibited departure. Only the former kind of cases are controlled by Denardi. The latter kind are appealable. See United States v. Cheape, 889 F.2d 477 (3d Cir.1989) (reviewing such a claim under subsection 3742(a)(1)); United States v. Medeiros, 884 F.2d 75 (3d Cir.1989) (reviewing such a claim under subsection 3742(a)(2)).
.Solem also left undisturbed the holding of Hutto v. Davis, 454 U.S. 370, 102 S.Ct. 703, 70 L.Ed.2d 556 (1982) (per curiam), the only proportionality case the Court decided between Rummel and Solem. Hutto had upheld a sentence of 40 years in jail and a $20,000 fine imposed on someone convicted in state court of possessing with intent to distribute nine ounces of marijuana. See id. at 370-72, 102 S.Ct. at 703-04.
. Our analysis has focused primarily on the first Solem factor. We see no need, however, to undertake an extended survey of various states’ recidivist statutes or drug enforcement penalties, for "[w]e agree with the Fourth and Fifth Circuits that apart from Solem's particular factual context — a life sentence without the possibility of parole — an abbreviated proportionality review following the Solem guidelines satisfies eighth amendment demands.” United States v. Rosenberg, 806 F.2d 1169, 1175 (3d Cir.1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2465, 95 L.Ed.2d 873 (1987).
. Congress has since amended section 924(c) so as to remove the putative ambiguity that Whyte seeks to exploit. See Pub.L. No. 100-690, § 6212, 102 Stat. 4181, 4360 (1988). The present version of the statute defines "drug trafficking crime” in part as “any felony punishable under the Controlled Substances Act.” See 18 U.S.C.A. § 924(c)(2) (Supp.1989). The Controlled Substances Act, 21 U.S.C. § 801 et seq., criminalizes possession with intent to distribute a controlled substance, see id. § 841(a)(1), so Whyte unquestionably would have committed a “drug trafficking crime” under the present version of the statute. We rest our conclusion solely on our interpretation of the definition of "drug trafficking crime” in the old version of the statute, however. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". | What is the specific issue in the case within the general category of "criminal - federal offense"? | [
"murder",
"rape",
"arson",
"aggravated assault",
"robbery",
"burglary",
"auto theft",
"larceny (over $50)",
"other violent crimes",
"narcotics",
"alcohol related crimes, prohibition",
"tax fraud",
"firearm violations",
"morals charges (e.g., gambling, prostitution, obscenity)",
"criminal violations of government regulations of business",
"other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)",
"other crimes",
"federal offense, but specific crime not ascertained"
] | [
9
] | songer_casetyp1_1-3-1 |
Ahssem RIFAI, Petitioner-Appellant, v. UNITED STATES PAROLE COMMISSION and Warden, United States Penitentiary, McNeil Island, Washington, Respondents-Appellees.
No. 78-1859.
United States Court of Appeals, Ninth Circuit.
Nov. 20, 1978.
Stephen K. Strong (argued), of Bendich, Stobaugh & Strong, Seattle, Wash., for petitioner-appellant.
William H. Rubidge, Asst. U. S. Atty. (argued), Seattle, Wash., for respondentsappellees.
Before VAN DUSEN, WRIGHT and GOODWIN, Circuit Judges.
Senior Circuit Judge for the Third Circuit.
EUGENE A. WRIGHT, Circuit Judge:
Rifai petitioned for a writ of habeas corpus challenging the denial of his release on parole by the United States Parole Commission (Commission). He asserted that the Commission’s use of new parole release guidelines and statutory standards in making his parole decision violated the prohibition of ex post facto laws. The district court denied his petition and he raises the same issues on appeal. We affirm.
I.
FACTS
Rifai was convicted in 1972 for importing and possessing heroin and sentenced to ten years. He attempted to influence a witness in a motion for a new trial, and was convicted in 1974 for conspiracy to suborn perjury and obstruction of justice. For this second conviction, he was sentenced to two concurrent five-year terms to run consecutively to the ten-year sentence.
At the time Rifai was sentenced on both convictions, the Commission determined whether to release a prisoner on parole under the following statutory standards:
If it appears to the [Commission] . that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the [Commission] such release is not incompatible with the welfare of society, the [Commission] may in its discretion authorize the release of such prisoner on parole.
18 U.S.C. § 4203(a) (1970) (repealed 1976). Prior to 1973, although the Commission considered several other factors within this broad grant of discretion, it emphasized institutional performance as the primary criterion in determining parole release. The Commission does not dispute here that, with one exception, Rifai’s institutional behavior was exemplary.
Pursuant to § 4203(a), however, the Commission adopted guidelines in 1973 which changed the emphasis on the criteria considered in determining parole release. Under the new guidelines which rank offenses according to their severity and recommend corresponding periods of incarceration, the Commission emphasizes offense severity.
In June 1976, Congress enacted the Parole Commission and Reorganization Act of 1976, Pub.L. No. 94-233, 90 Stat. 219 (codified at 18 U.S.C.A. § 4201, et seq. (Supp. 1978)) (Parole Commission Act), which, inter alia, repealed § 4203(a) and rephrased the statutory standards for parole release determinations. Pursuant to 18 U.S.C.A. § 4206 (West Supp.1978), the new standards are:
If an eligible prisoner has substantially observed the rules of the institution . to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law; and
(2) that release would not jeopardize the public welfare; subject to the provisions of subsections (b) and (c) of this section, and pursuant to guidelines promulgated by the Commission . . . such prisoner shall be released.
The Act, in essence, adopted the approach of the Commission’s 1973 guidelines in emphasizing offense severity, instead of institutional behavior, for parole release determinations.
The parole hearing in question here was held in December 1976. Rifai claims that the use of, first, the 1973 guidelines and, second, the 1976 statutory standards in his parole release determination violated the ex post facto prohibition. He contends that, despite his exemplary institutional behavior that might have qualified him for parole prior to 1973, the Commission denied parole because it evaluated his opportunity for parole release under the new guidelines and statutory standards emphasizing offense severity.
II.
DISCUSSION
The Supreme Court early concluded that “every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed” constitutes an ex post facto violation. Calder v. Bull, 3 U.S. (3 Dali.) 386, 390, 1 L.Ed. 648 (1798). With this in mind, we analyze Rifai’s ex post facto claims.
A. THE 1973 COMMISSION GUIDELINES.
Rifai uses two arguments in contending that the guidelines are “laws” for purposes of the ex post facto prohibition. First, he asserts that because the guidelines are followed with regularity, they have the force and effect of law. We reject this argument. Under this theory, any policy or practice followed with some frequency would constitute a “law” from which an agency could not vary.
Second, he argues that this court’s holding in Love v. Fitzharris, 460 F.2d 382 (9th Cir. 1972), vacated as moot, 409 U.S. 1100, 93 S.Ct. 896, 34 L.Ed.2d 682 (1973), mandates that the guidelines be treated as law. In Love, a California agency interpreted the state’s parole eligibility statutes and decided that, when consecutive sentences were imposed, California Penal Code § 3049 applied and a prisoner could be paroled after the expiration of one-third of his minimum sentence. The agency later reinterpreted the statutes and concluded that narcotics offenders would be eligible for parole only after serving two and one-half years on each consecutive sentence. We held that this change in the agency interpretation of parole eligibility statutes had the force and effect of law and violated the prohibition of ex post facto laws.
In Love we distinguished the case of In re Costello, 262 F.2d 214 (9th Cir. 1958). In Costello, the Adult Authority, after initially fixing defendant’s term of imprisonment under the California indeterminate sentence law, later increased the term upon cause shown. We held that the agency action was “within the authority well established by court decisions" which permitted the increase in term. In contrast, Love involved a situation where the agency “changed its interpretation of the authority itself.” Love, 460 F.2d at 385.
This case is more closely analogous to Costello than Love. The Commission here was well within established statutory authority when it promulgated the guidelines. See, e. g., Wiley v. Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974); Battle v. Norton, 365 F.Supp. 925 (D.Conn.1973) (upholding the guidelines against ultra vires challenges under the pre-1976 statutory standards). The broad standards enunciated by Congress gave the Commission great discretion, and changes in the emphasis or de-emphasis of parole release considerations within the statutory scheme were clearly authorized. The guidelines, therefore, are merely procedural guideposts, without the characteristics of laws. See Ruip v. United States, 555 F.2d 1331 (6th Cir. 1977) (the 1973 guidelines are not laws).
B. THE 1976 STATUTORY CHANGES.
Rifai argues that the 1976 statutory standards changed the law governing parole release determinations to his detriment, causing him to serve a longer sentence than he would have under the pre-1976 standards.
We conclude, however, that the 1976 standards did not change the law governing parole release decisions. In enacting the Parole Commission Act, Congress recognized that “[t]he standards for release on parole . . . are not significantly changed from existing law.” Sen.Rep. No. 94-369, 94th Cong., 2d Sess. (1976), reprinted in 2 [1976] U.S.Code Cong. & Admin. News, pp. 335, 339.
At most, the 1976 standards may have announced an emphasis on certain parole release considerations, but they did not abridge the Commission’s authority to emphasize others within its discretion. The Commission’s scope of authority remains broad and its discretion, with respect to the issues raised here, is not limited by the statutory changes or the guidelines promulgated thereunder.
Rifai’s exemplary institutional performance is not contested. Even under the pre1976 standards, however, he had no guarantee that he would be paroled after a given number of years of good performance. Under the pre-1976 standards the Commission could have denied parole for the same reasons it was denied in December 1976. He has not convinced us that he suffered greater punishment under the 1976 standards than he would have received under the pre1976 scheme.
Rifai’s reliance on De Paralta v. Garrison, 575 F.2d 749 (9th Cir. 1978), is misplaced. That case involved the application of the offense severity factor to prisoners sentenced under the Youth Corrections Act, 18 U.S.C. § 5001, et seq. (1970). Offense severity was a factor excluded under the Youth Corrections Act until its amendment in 1976 by the Parole Commission Act. Shepard v. Taylor, 556 F.2d 648, 652-53 (2d Cir. 1977). The retroactive application of this new criterion was prohibited in De Paralta. Conversely, offense severity has never been excluded as a consideration for parole release determinations for adult offenders.
Because Rifai fails to show that the guidelines are laws within the ex post facto prohibition or that the statutory standards “inflict greater punishment than the law annexed to the crime, when committed,” we reject his ex post facto claim. The district court correctly denied his petition.
AFFIRMED.
. For uniformity, the Parole Commission will be referred to throughout as the Commission, although prior to the Parole Commission and Reorganization Act of 1976, Pub.L. No. 94-233, § 4201, 90 Stat. 219 (codified at 18 U.S.C.A. § 4201 (Supp.1978)), it was known as the Parole Board.
. The guidelines promulgated pursuant to § 4206(a) of the Parole Commission Act are substantially the same as those promulgated in 1973. See 28 C.F.R. § 2.20 (1977) for current guidelines.
. The ex post facto concept has been more broadly expressed as follows:
[A]ny law passed after the commission of an offense, which, . [i]n relation to that offense, or its consequences, alters the situation of a party to his disadvantage, is an ex post facto law . .
Kring v. Missouri, 107 U.S. 221, 235, 2 S.Ct. 443, 455, 27 L.Ed. 506 (1883) (citation omitted).
The test for ex post facto laws also has been described as
not whether the punishment actually received is within the outer limits of the law at the time the crime was committed, but whether “the later standard of punishment is more onerous than the earlier.” Lindsey v. Washington, 301 U.S. 397, 400, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).
Geraghty v. United States Parole Commission, 579 F.2d 238, 264 (3rd Cir. 1978).
. The Commission reported in March 1974 that 89% to 94% of its decisions were within the guidelines. There is some indication that this compliance level is dropping. In 1975, the Commission’s data indicated that 81% to 89% of its decisions were within the guidelines. If all cases outside the guidelines by virtue of sentencing decisions are excluded from the figures, 77% to 85% of the decisions were in the guidelines range. J. Newman, “Parole Release Decisionmaking and the Sentencing Process,” 84 Yale L.J. 810, 869 n.293 (1975).
. That the guidelines were more than procedural guideposts for purposes of determining the applicability of the Administrative Procedure Act, see Pickus v. U. S. Board of Parole, 165 U.S.App.D.C. 284, 507 F.2d 1107 (1974), does not elevate them to the status of “law” within the meaning of the ex post facto clause. Because the guidelines are not binding on the agency, they cannot be treated as laws although they may be required to be promulgated or modified with procedural regularity.
. But see Geraghty v. United States Parole Commission, 579 F.2d 238, 267 (3d Cir. 1978) (whether the guidelines are followed in the great majority of cases or are procedural guideposts whose application may be negatived by particular circumstances in a case is an issue of fact, the resolution of which is inappropriate on motion for summary judgment.).
. The Commission is not restricted to making parole determinations within the guidelines. If there is “good cause” for doing so, it may go outside the guidelines. 18 U.S.C.A. § 4206(c) (Supp.1978).
Such was the case here. Although the guidelines recommended a range of 26-36 months imprisonment for his offense and Rifai had served 44 months, the Commission elected to go outside the guidelines and keep him in custody. | 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". | In what state or territory was the case first heard? | [
"not",
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"California",
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"Connecticut",
"Delaware",
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"Iowa",
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"Maine",
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"Mississippi",
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47
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In re PHILLIPS PETROLEUM SECURITIES LITIGATION. C.A. 85-14 HUDSON, et al. v. PHILLIPS PETROLEUM COMPANY, et al. C.A. 85-45 HUDSON, et al. v. PHILLIPS PETROLEUM COMPANY, et al. C.A. 85-281 IRWIN, et al. v. DOUCE, et al. C.A. 85-401 KELLY, et al. v. PICKENS, et al. C.A. 85-447 LAWRENCE, et al. v. PICKENS, et al. C.A. 85-537 COHEN v. MESA PETROLEUM CO., et al. Appeal of Florence HUDSON (Civil Action No. 85-14 MMS), Harry W. Voege; S. Paul Posner & Co., a partnership; Ominsky, Joseph & Welsh, P.C., Defined Benefit Plan U/A dated DDT July 1, 1976, Albert Ominsky, Trustee; Barnett Stepak; Initio, Inc.; Alfred D. Whitman; Connecticut Medical Laboratory, Inc.; Murray Bell; Pierre Haber and Leonard Brawer (Civil Action No. 85-45 MMS), Christopher P. Kelly and Brynn Kelly, Trustees for the Kelly Family Trust Under Trust Agreement dated as of October 1, 1977, on behalf of themselves and all others similarly situated (Civil Action No. 85-401 LON), John S. Lawrence, on behalf of himself and all others similarly situated (Civil Action No. 85-447), Jerry C. Cohen (Civil Action No. 85-537 MMS). Appeal of John S. LAWRENCE.
Nos. 88-3719, 88-3755.
United States Court of Appeals, Third Circuit.
Argued March 13, 1989.
Decided Aug. 9, 1989.
Rehearing and Rehearing In Banc Denied Sept. 6, 1989.
Dianne M. Nast, Stuart H. Savett, Kohn, Savett, Klein & Graf, P.C., Philadelphia, for appellant Ominsky, Joseph & Welsh, P.C. Defined Benefit Plan U/A dated DDT 7/1/76, Albert Ominsky, trustee.
William Prickett (argued), Prickett, Jones, Elliott, Kristol and Schnee, Wilmington, Del., for appellants.
Stephen D. Oestreich, Wolf, Popper, Ross, Wolf & Jones, New York City, for all appellants as lead counsel; individual counsel for appellant Harry Voege.
David J. Bershad, Milberg, Weiss, Ber-shad, Spechthrie & Lerach, New York City, for appellant Initio, Inc.
Irving Bizar, Bizar, D’Alessandro, Shus-tak and Martin, New York City, for appellant Florence Hudson.
David F. Dobbins (argued), Patterson, Belknap, Webb and Tyler, New York City, for appellant John S. Lawrence.
Charles F. Richards, Jr. (argued), Thomas A. Beck, William J. Wade, Richards, Layton & Finger, Wilmington, Del., for ap-pellees Mesa Partners, Mesa Petroleum Co., Mesa Asset Co., T. Boone Pickens, Cyril Wagner, Jr., Jack E. Brown, I.T. Cor-ley, Jack K. Larsen, J.R. Walsh, Jr., Robert L. Stilwell, Harley N. Hotchkiss, Wales H. Madden, Jr., David H. Batchelder, Jesse P. Johnson, Cy-7, Inc. and Jack-7, Inc.
Before MANSMANN, GREENBERG and SCIRICA, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
This is an appeal from a grant of summary judgment against a consolidated plaintiffs class, comprised of individuals who purchased stock in the Phillips Petroleum Company (“Phillips”) from December 5, 1984 through December 21, 1984. The named defendants in the class action include Phillips and the Phillips Board of Directors (the “Phillips defendants”), the Mesa Partnership (“the Partnership”) which attempted to acquire control of Phillips by a hostile takeover in December 1984, and individual members of the Partnership, including Mesa Petroleum Company (“Mesa”) and Mesa’s Chief Executive Officer, T. Boone Pickens, Jr. After a complex procedural history, the plaintiffs had outstanding claims alleging violations of Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and Rule 10b-5,17 C.F.R. § 240.10b-5 (1988); a claim under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1982 & Supp. Ill 1985); and claims arising under Delaware state law. After a settlement that removed the Phillips defendants from the litigation, plaintiffs moved for summary judgment on liability and the Mesa defendants cross-moved for summary judgment. The district court granted the Mesa defendants’ motion, dismissing with prejudice all outstanding claims against them. In re Phillips Petroleum Securities Litigation, 697 F.Supp. 1344 (D.Del.1988). .
While this appeal presents several issues, the principal matter confronting us is whether a genuine issue of material fact exists with regard to the securities fraud claims. If so, we must determine whether the record contains any evidence from which a jury could reasonably find scienter on the part of the Partnership, a necessary element of the plaintiffs’ claims under the federal securities laws and RICO — and, thus, whether the district court erred as a matter of law in granting summary judgment on those claims. Because we believe there is sufficient evidence for a jury to so conclude, we will vacate the district court’s judgment dismissing the claims under § 10(b) and Rule 10b-5, and remand for further proceedings on those claims. Additionally, as violations of the federal securities laws can constitute predicate acts under the RICO statute, we will vacate the district court’s judgment and remand for further proceedings on the RICO claim. We will, however, affirm the district court’s dismissal of all claims brought under Delaware state law.
I.
While this lawsuit concerns the Partnership’s efforts to acquire control of Phillips, the germane facts begin with an earlier attempt by Mesa Petroleum to acquire Great American Oil Company of Texas (“GAO”). In December 1982, Mesa launched a hostile tender offer for GAO. In order to thwart Mesa’s takeover, GAO negotiated a friendly “white knight” merger with Phillips. A key to consummation of the deal, however, was a settlement with Mesa in early January 1983. That settlement included Mesa selling its block of stock back to GAO, being compensated for its expenses and, most importantly, signing a Standstill Agreement whereby Mesa and its affiliates agreed in essence not to attempt to acquire any of the voting securities of GAO for a period of five years. The Standstill Agreement made no reference to any attempt by Mesa or its affiliates to acquire voting shares in Phillips.
The Partnership began to purchase Phillips common stock on October 22, 1984. On December 4, 1984, the Partnership issued a press release stating it had acquired approximately 5.7% of Phillips’s outstanding shares and that it was commencing a tender offer for 15 million shares of Phillips common stock at $60 per share. The press release stated explicitly that the Partnership would “not sell any Phillips shares owned by it back to Phillips except on an equal basis with all other shareholders.”
The Partnership filed its Schedule 13-D on December 5, 1984, as required under Section 13(d) of the Williams Act, 15 U.S.C. § 78m(d)(l). The Schedule 13-D stated that the proposed tender offer was designed ultimately to obtain control of Phillips. Furthermore, the Schedule 13-D reiterated the statement from the previous day’s press release that the Partnership did not intend to sell its shares to Phillips except on an equal basis with all shareholders.
The next day, December 6, 1984, T. Boone Pickens appeared on the nationally televised MacNeil/Lehrer News Hour representing the Partnership. In response to questioning by Mr. MacNeil, Pickens stated unequivocally that “[t]he only way we would consider selling back [to Phillips] is if they make the same offer to all shareholders.”
Phillips responded to the Partnership’s actions by attempting to block the takeover attempt in court. From the initial announcement of the takeover, both the Partnership and Phillips filed a succession of suits in an attempt to block or pre-empt the other’s actions. In order of filing, these included the following: (1) an action by the Partnership in the United States District Court for the District of Delaware on December 4, 1984, to enjoin enforcement of the Delaware Tender Offer Act (8 Del.C. § 203) and to determine, under pendent jurisdiction, the applicability of the GAO Standstill Agreement to the Partnership’s takeover of Phillips; (2) a declaratory action in Delaware Chancery Court to declare the GAO Standstill Agreement inapplicable to the Phillips takeover attempt; (3) the ex parte procurement of a temporary restraining order by Phillips in Oklahoma state court preventing the Partnership from moving against Phillips based upon the GAO Standstill Agreement; (4) further action by the Partnership in Delaware Chancery Court to restrain Phillips from pursuing its Oklahoma action; (5) further action by the Partnership in the Delaware Federal District Court to prevent Phillips from initiating action in any other federal court; and (6) an action by Phillips in Louisiana state court to prevent the Partnership from acquiring interest in certain Phillips assets in Louisiana, through control of Phillips itself, without the prior approval of that state’s regulatory agencies. The Louisiana action does not appear to have had any impact on the takeover contest and, indeed, no party to this lawsuit mentions it as having been a factor. The other actions all turned on the applicability of the GAO Standstill Agreement to the Partnership’s attempt to take over Phillips. Both the United States District Court and the Oklahoma state court ultimately deferred to the Delaware Chancery Court for determination of the applicability issue.
At the same time the parties were jousting in court, however, Phillips was pursuing private negotiations with the Partnership. Settlement efforts were conducted by a neutral intermediary, Joseph Flom, Esq. On December 7, 1984, Phillips made its first offer, through Flom, to buy out the Partnership’s interest in Phillips. Pickens, representing the Partnership, declined the offer — allegedly because it did not treat all shareholders equally. Phillips made repeated offers over the course of the next two weeks, all of which were refused, according to the defendants, because they did not treat all shareholders equally.
The turning point in the takeover fight came on December 20, 1984. On that day, the Delaware Chancery Court ruled that the GAO Standstill Agreement did not apply and, thus, did not bar a takeover of Phillips by the Partnership. Mesa Partners v. Phillips Petroleum Co., 488 A.2d 107 (Del.Ch.1984).
With the issuance of the December 20 opinion, Phillips found itself without a viable litigation defense. Thus, after a meeting with advisers, officials at Phillips decided they had to negotiate with the Partnership. Sometime in the early to midafter-noon of December 21, Flom contacted Pick-ens to arrange a meeting for 5:30 p.m. EDT. The significance of the meeting time lay not just in the time of day, occurring after the stock market would have closed, but also in that December 21,1984 fell on a Friday. Thus, the parties had an entire weekend to forge an agreement without having to make disclosures for the benefit of the market. From the inception of the tender offer through December 21, the Partnership had made no less than eight amendments to its Schedule 13-D; indeed, the Partnership made the eighth amendment on the afternoon of December 21. In none of those amendments had the Partnership changed its original statement that it would not sell any of its shares back to Phillips except on an equal basis with all other shareholders.
On the face of the record, it would appear that the Partnership should have had every reason to believe that the December 21 meeting would be to negotiate the terms for Phillips’s concession to its offer. Instead, claim the defendants, Phillips presented the Partnership with its plans for a defensive recapitalization which all the defendants allege would have effectively blocked the takeover. Reduced to the barest terms, under the recapitalization plan Phillips proposed to exchange 29% of its common stock for debt securities valued at $60 per share (pro rata among all shareholders), and to sell 27.5 million newly issued shares to a new employee stock ownership plan at a market price assumed to be $50 per share while purchasing 27.5 million shares of its stock back in open market transactions. Additionally, the recapitalization included reductions in expenses and capital expenditures, as well as the sale of approximately $2 billion of Phillips’s lower-earning assets.
The parties negotiated vigorously through the weekend, proposing and counter-proposing various plans. The specifics of these proposals are not germane to our decision, but two facts are worth noting. First, Phillips insisted that under no circumstances could the Partnership continue as a shareholder of Phillips. Thus, with the exception of the Partnership on Friday night proposing a leveraged buy-out of Phillips, all negotiations for the remainder of the weekend dealt with the Partnership selling its stock back to Phillips as part of the recapitalization. Second, the Partnership maintains it turned down several proposals in the course of the weekend because they did not treat all shareholders on an equal basis.
Nonetheless, on December 23, 1984, Phillips and the Partnership reached an agreement in which all shareholders were not treated on an equal basis. The final agreement provided, first, that Phillips would reclassify 38% of its common stock (pro rata for all shareholders) into preferred stock, which was then to be exchanged for debt in the principal amount of $60 per share. Second, Phillips would create an employee incentive stock ownership plan (an “EISOP”), to which it would sell no more than 32 million newly issued shares at market value. Finally, Phillips was required to purchase at least $1 billion of its common stock on the open market following the exchange. Investment bankers for Phillips placed the value of the blended package — debt securities plus Phillips stock — at $53 for shareholders.
The Partnership, however, received a different arrangement. If the recapitalization were approved by the shareholders, it would sell its shares back to Phillips for $53 per share in cash. In the event the shareholders did not approve the recapitalization, the Partnership was given several options: it was given a put whereby it could still sell its shares to Phillips for the same $53 cash per share; it could retain its Phillips shares, subject to a standstill agreement; or it could sell its Phillips shares to a third party. Additionally, Phillips agreed to pay the Partnership’s certified expenses in waging the takeover battle, an amount of $25 million. Other shareholders were not compensated for their expenses.
The agreement was announced in a press release, issued on Sunday night, December 23. The following day, Monday, December 24, the Partnership amended its Schedule 13-D yet again, this time to say that the Partnership had agreed not to pursue its attempt to gain control of Phillips and that the Partnership would eventually dispose of its shares; the amendment, however, made no revision in the equal basis statement. The market reacted adversely to announcement of the agreement and, on that same Monday, the price of Phillips stock fell by more than nine points, closing at approximately $45 per share. The value of the blended package available to Phillips shareholders, other than the Partnership, declined accordingly.
On March 3, 1985, the Phillips shareholders rejected the recapitalization plan. On March 6, the Partnership exercised its put under the December 23 agreement and sold its shares back to Phillips for $53 cash per share.
Subsequently, Phillips made another Exchange Offer to its shareholders, offering another blended package Phillips valued at slightly in excess of $52 per share. At no time were all Phillips shareholders offered the same $53 cash per share received by the Partnership.
II.
The present case began with the filing of two stockholder derivative and class action suits, which were consolidated under the caption, Hudson v. Phillips Petroleum Co., C.A. No. 85-14/85-45. Dkt. 12, C.A. No. 85-014. The order provided that any subsequently transferred actions which related to the subject matter of the consolidated action would also be consolidated without further order of the court.
Three more stockholder class actions, naming all of the Phillips and Mesa defendants, plus a fourth naming just the Phillips defendants, were consequently transferred to the District of Delaware. All were consolidated for pretrial purposes on August 8, 1985 under the caption In re Phillips Securities Litigation, Master File No. Misc. 85-75. Order No. 1 (Case Management Order), Dkt. 1.
In March 1986, the district court preliminarily approved a settlement between the Phillips defendants and a class of all record or beneficial holders of Phillips stock as of December 4, 1984, and their successors in interest and transferees, through the close of business on March 29, 1985. Following notice and a hearing, the district court entered an Order and Final Judgment on June 3, 1986, dismissing with prejudice Counts IV, V, VI, VIII, IX, X and X of the Class Action and Verified Derivative Supplemental Amended Complaint (the “Complaint”) and such parts of Count VII of the Complaint which would have required proof of wrongful conduct or participation by the Phillips defendants.
On May 18, 1987, the district court entered a consent order which (i) consolidated for all purposes, including trial, the five actions that named all the Phillips and Mesa defendants; (ii) dismissed with prejudice all claims other than those asserted as Counts I, II, II and VII of the Complaint; (iii) certified a class consisting of purchasers of Phillips stock during the period from December 5, 1984 through December 21, 1984; (iv) dismissed with prejudice all plaintiffs who were not members of the certified class; (v) appointed class representatives; (vi) provided a schedule and method for notification to class members. On October 13, 1988, the district court granted the Mesa defendants’ motion for summary judgment and denied the plaintiffs’ motion for partial summary judgment.
Count I of the Complaint alleged violations of Section 10(b) and Rule 10b-5. The district court ruled that the plaintiffs had not introduced any evidence of scienter, a necessary element of a cause of action under Section 10(b) or Rule 10b-5. Count II alleged a cause of action under the doctrine of promissory estoppel; Count III alleged that an implied contract was formed by the equal basis statements. The district court ruled that the plaintiffs failed to adduce sufficient evidence to support either of these theories. The plaintiffs, on appeal, also claim that Count III fairly includes a claim under a theory of quasi contract. The district court dismissed this claim on summary judgment as well, ruling that a quasi contract claim was not preserved under the May 18, 1987 consent order and that, in any event, no evidence of quasi contract had been adduced. Finally, the district court dismissed Count VII, which alleged violations of the Racketeer Influenced and Corrupt Organizations Act, because in failing to produce evidence of scienter — and, thus, evidence of violations under Section 10(b) and Rule 10b-5 — the plaintiffs could not point to securities fraud as constituting the predicate acts necessary to invoke the RICO statute. Similarly, ruled the district court, the plaintiffs failed to adduce any evidence of intent to defraud and, consequently, could not prove mail fraud, under 18 U.S.C. § 1341 (1982 & Supp. Ill 1985), or wire fraud, under 18 U.S.C. § 1343 (1982 & Supp. Ill 1985), as predicate acts either. The plaintiffs appeal all of these rulings by the district court.
III.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted “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.” An issue of material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Consequently, a plaintiff may not simply rest upon his bare allegations to require submitting the issue to a jury; rather, he must present “significant probative evidence tending to support the complaint.” Id. at 249, 106 S.Ct. at 2510 (quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 290, 88 S.Ct. 1575, 1593, 20 L.Ed.2d 569 (1968)).
The party moving for summary judgment must demonstrate that, under the undisputed facts, the non-movant has failed to introduce evidence supporting a necessary element of his case. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S.Ct. 537, 88 L.Ed.2d 467 (1985). If the movant can, to the trial court’s satisfaction, demonstrate such a failure, the burden then shifts to the non-movant to identify which portions of the record support the allegedly unsupported element. Celotex, 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Jersey Central Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir.1985), cert. denied, 475 U.S. 1013, 106 S.Ct. 1190, 89 L.Ed.2d 305 (1986).
Summary judgment should only be granted, however, where there are no genuine issues of material fact that can only be properly resolved by a trier of fact because they may reasonably be resolved in favor of either party. As the Supreme Court has stated:
[T]his standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. ... If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 250-51, 106 S.Ct. at 2511 (citations omitted).
On review of a grant of summary judgment, we apply the same test the district court should have utilized initially. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977). We turn to the principal issues in this case, therefore, to decide whether there exists a genuine issue of material fact and, if so, whether a jury could reasonably find scien-ter from the facts contained in the record.
IV.
Section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), forbids “manipulative” or “deceptive” conduct “in connection with the purchase or sale of any security.” Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 473-74, 97 S.Ct. 1292, 1300-01, 51 L.Ed.2d 480 (1977). Rule lob-5, promulgated under § 10(b), prohibits the making of “any untrue statement of material fact” in connection with the purchase or sale of securities. 17 C.F.R. § 240.10b-5.
In order to establish a claim under § 10(b) and Rule 10b-5, a plaintiff must prove that the defendant i) made misstatements or omissions; ii) of material fact; iii) with scienter; iv) in connection with the purchase or sale of securities; v) upon which the plaintiff relied; and vi) that reliance proximately caused the plaintiffs injury. Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 942-43 (3d Cir.), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985); accord Huddleston v. Herman & Maclean, 640 F.2d 534, 543 (5th Cir.1981), aff'd in part, rev’d in part on other grounds, 459 U.S. 375, 103 S.Ct. 683, 74 L.Ed.2d 548 (1983). The misrepresentations must touch upon the reasons for the investment’s decline in value. Huddleston, 640 F.2d at 549.
Scienter is defined as “ ‘a mental state embracing intent to deceive, manipulate, or defraud.’ ” Dirks v. SEC, 463 U.S. 646, 663 n. 23, 103 S.Ct. 3255, 3266 n. 23, 77 L.Ed.2d 911 (1983) (quoting Ernst & Ernst v. Hochfelder, 425 U.S. 185, 193-94 n. 12, 96 S.Ct. 1375, 1381 n. 12, 47 L.Ed.2d 668 (1976)). A violation of Rule 10b-5 “may be found only where there is ‘intentional or willful conduct designed to deceive or defraud investors by controlling or artificially affecting the price of securities.’ ” Id. (quoting Hochfelder, 425 U.S. at 199, 96 S.Ct. at 1384).
Scienter must be proven by showing the defendant lacked “a genuine belief that the information disclosed was accurate and complete in all material respects.” McLean v. Alexander, 599 F.2d 1190, 1198 (3d Cir.1979). Moreover, as we stated in McLean, “[circumstantial evidence may often be the principal, if not the only, means of proving bad faith.” Id. We have also recognized that recklessness on the part of a defendant meets the scienter requirement of Section 10(b) and Rule 10b-5. Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 649 (3d Cir.1980). Recklessness, in turn, is defined as
‘an extreme departure from the standards of ordinary care ... which presents a danger of misleading ... that is either known to the defendant or is so obvious that the actor must be aware of it.’
Id. (quoting Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033, 1045 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977)). See also SEC v. Texas Gulf Sulphur Co., 401 F.2d 833, 862 (2d Cir.1968) (en banc) (“Rule 10b-5 is violated whenever assertions are made, as here, in a manner reasonably calculated to influence the investing public ... if such assertions are false or misleading or are so incomplete as to mislead_”), cert. denied sub nom., Coates v. SEC, 394 U.S. 976, 89 S.Ct. 1454, 22 L.Ed.2d 756 (1969).
The district court ruled that nothing in the summary judgment record indicated the equal basis statements were considered untrue when made by the Partnership. Rather, the Partnership changed its intent to sell its shares back to Phillips only when faced with the defensive recapitalization. Consequently, said the district court, because statements in a Schedule 13-D need only be true when made, the plaintiffs failed to produce any evidence of scienter by the Partnership.
We believe the district court was correct that a statement of intent need only be true when made; a subsequent change of intention will not, by itself, give rise to a cause of action under Section 10(b) or Rule 10b-5. Similarly, we think it self-evident that a change from a party’s initial statement of intent does not by itself prove that the initial statement was a misrepresentation. See, e.g., Bourdages v. Metals Refining Ltd., [1984-85 Transfer Binder] CCH Fed.Sec.L.Rep. II 91,828 at 90,168 (S.D.N.Y. 1984) (“Subsequent misleading statements or other conduct may be admissible as grounds for a reasonable inference of fraudulent intent at the time the transactions were entered into; but they are not and cannot be actionable in themselves.”). Changed circumstances naturally can require a change in plans. See, e.g., Brascan, Ltd. v. Edper Equities, Ltd., 477 F.Supp. 773, 787-88 (S.D.N.Y.1979) (no scienter existed under Rule 10b-5 where investor made a good faith representation of its intent to no longer purchase stock on one day, and then changed its intent and commenced those same purchases the next day). Thus, we believe that in these circumstances all one can fairly require is that notice of a change of intent be disseminated in a timely fashion. At least one commentator has reached the same conclusion:
An express statement of intent must be correct when made and an implied intent must be true when it is implied. The Rule [10b-5] would not generally be violated merely because the representer subsequently changed his mind; accordingly, a mere breach of contract is not actionable. But he should be liable for failing to convey his change of heart to a plaintiff who thereafter made an investment decision and whom the defendant knew, or was reckless in not knowing, was relying on his intent. A defendant also violates the Rule if he defers or delays a planned course of action in order to cover up his misrepresented or concealed intent.
5A A. Jacobs, Litigation and Practice Under Rule 10b-5, § 61.01[c][iii] at 3-68 to 3-70 (2d ed.1988) (footnotes omitted).
Plaintiffs contend that, if the Partnership did change its intention only to sell its stock back to Phillips on a basis equal to all other stockholders—as opposed to the Partnership having always intended to sell back on an unequal basis—then they are liable under the federal securities laws nonetheless for failing to communicate that change of intention promptly. There can be no doubt that a duty exists to correct prior statements, if the prior statements were true when made but misleading if left unrevised. See, e.g., Thomas v. Duralite Co., Inc., 524 F.2d 577, 583-84 (3rd Cir.1975) (statements about corporation’s dire financial condition, while true when made, formed basis for liability when corporation’s condition improved but speaker did not correct impression of near-insolvency before purchasing stock); see also Exchange Act Rule 13d-2, 17 C.F.R. § 240.13d-l (requiring where “any material change occurs in the facts set forth” in a Schedule 13D, that the person required to file the Schedule 13D “promptly” file “an amendment disclosing such change” with the Securities and Exchange Commission, the issuer of the security, and with any exchange on which the security is traded).
The law has been less clear on what constitutes sufficiently prompt revision and dissemination of a statement of intent. With regard to amendment of a Schedule 13D, at least, the Securities and Exchange Commission itself has noted as much:
No bright line test has been adopted in order to determine when an amendment to a Schedule 13D is “prompt.”... Strong policy considerations indicate that the “prompt” amendment requirement should be construed flexibly in order to comport with the circumstances of the particular case.
In the Matter of Cooper Laboratories, Inc., Fed.Sec.L.Rep. (CCH) 11 83,788 at 87,-526 (June 26, 1985). We believe, as other courts have recognized, that the question of whether an amendment is sufficiently prompt must be determined in each case based upon the particular facts and circumstances surrounding both prior disclosures by the acquirer and the material changes which trigger the obligation to amend. See, e.g., Kamerman v. Steinberg, 123 F.R.D. 66, 74 (S.D.N.Y.1988) (“The determination that an amendment is ‘prompt’ under Rule 13d-2 is a question of fact to be determined from the attendant circumstances of each individual case.”); Scott v. Multi-Amp Corporation, 386 F.Supp. 44, 61 (D.N.J.1974) (treating as question of fact whether required filing was sufficiently “prompt” under Rule 13d-2); SEC v. GSC Enterprises, 469 F.Supp. 907, 914 (N.D.Ill.1979) (whether filing of amendment to Schedule 13D under Rule 13d-2 was “prompt” a question of fact). Moreover, the same type of individual fact determination must be made with regard to amending other statements made outside a Schedule 13D, but still “in connection with” the purchase or sale of a security. An example of such a statement, in the case before us, would be Pickens’s comments during the MacNeil/Lehrer News Hour.
On the record before us, however, the Partnership’s delay in disseminating its change of intent could not have proximately caused the plaintiffs’ injury. The plaintiff class is defined as purchasers of Phillips stock during the period from December 5, 1984 through December 21, 1984. Assuming that the equal basis statements were a true representation of the Partnership’s intent when they were made, plaintiffs provide no evidence of a change of intent until after the stock market closed on Friday, December 21. But inasmuch as plaintiffs could not have sold their stock on the open market until it opened on Monday morning, December 24, the difference between announcing a change of intent Sunday night rather than Friday night would not have detrimentally altered plaintiffs’ opportunities. Consequently, on this record a jury could not reasonably conclude that the Partnership was dilatory in announcing its change of intent. Because the plaintiff class does not include purchasers after December 21,1984, assuming that the Partnership did change its intent over the weekend, it is difficult to understand how a delay in the announcement could have injured plaintiffs as they had already purchased the Phillips shares.
We arrive at a different conclusion with respect to a jury finding of recklessness by the Partnership. As we have noted, recklessness meets the scienter requirement of Section 10(b) and Rule 10b-5. Few markets shift as quickly and dramatically as the securities markets, especially where a publicly traded company has been “put in play” by a hostile suitor. The equal basis statements were broad and unequivocal, providing no contingency for changing circumstances. Even though they needed only be true when made, such unequivocal statements presented an obvious danger of misleading the public—because they can fairly be read as a statement by the Partnership that, no matter what happened, it would not change its intentions. Indeed, the repetition of the equal basis statements as the takeover fight progressed would only serve to reinforce such a perception. A jury could, therefore, reasonably find making the statements to be an extreme departure from the standards of ordinary care. See Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d at 649.
Plaintiffs go even further, contending in the alternative that the Partnership did not change its intent in response to the defensive tactics of Phillips when it negotiated the buy-back agreement, but rather had no intention from the outset to honor the equal treatment statement. The record contains evidence to support this allegation as well. As we have noted, the decision by the Delaware Chancery Court on December 20, 1984, that the GAO Standstill Agreement was inapplicable left Phillips with no viable litigation defenses. The Partnership was free to pursue its tender offer and to buy Phillips stock in open market transactions. Both the district court’s decision and the defendant’s arguments, consequently, turn on the assumption that the defensive recapitalization proposed by Phillips on the night of December 21 was sufficiently impregnable on its face to cause the Partnership, after all of its efforts, to suddenly abandon its takeover fight.
While the record contains insufficient information about the recapitalization plan for a full understanding of all of the plan’s subtleties, it contains more than enough details for a jury reasonably to conclude that it had only a chance for success or that the Partnership would not have been deterred by it. First, the plan required huge amounts of capital, at least $2 billion from the sale of Phillips assets and, perhaps, additional financing from lending institutions. A significant question of fact exists as to whether either of these sources could produce the necessary capital in time to stave off a hostile takeover by the Partnership. The Partnership, in contrast, having already launched its tender offer, presumptively had financing in place. Second, because the recapitalization involved the exchange of debt securities for equity in the company pro rata among shareholders, the recapitalization as proposed to the Partnership on the night of December 21 “contemplate[d]” approval by the shareholders. Yet when an opportunity finally did occur more than two months later to present to the shareholders a recapitalization involving the same debt for equity exchange, the shareholders rejected the plan. Again, a significant issue of fact exists as to whether the Partnership actually believed the recapitalization could be implemented in time. Finally, and most notably, the success of the Phillips defensive recapitalization plan depended upon its ability to buy up 27.5 million shares of its own stock in the face of a competing tender offer by the Partnership. In sum, given all of these contingencies, the record contains sufficient circumstantial evidence from which a jury could reasonably conclude that the proposed recapitalization was an insufficient basis to cause the Partnership to change its intent — but, rather, that the recapitalization was merely a reason given by the Partnership for following a course different from its stated intention.
Even if the defensive recapitalization did have a high probability of success, however, sufficient evidence exists in the record from which a jury could reasonably conclude the Partnership always intended to sell its shares back to Phillips on a different basis from that offered to other shareholders. When the tender offer was launched, it was foreseeable to the Partnership that it might at some point want to give up its takeover attempt and abandon its stake in Phillips. Indeed, it is exactly that contingency which the equal basis statements contemplate. It seems an unlikely possibility that the Partnership envisioned the board of Phillips Petroleum taking the corporation private, which would be the natural effect of a cash offer for all outstanding shares. The facts that some cash was not made available to other Phillips shareholders as part of the blended package, and that Phillips had to sell $2 billion of its assets to raise cash for the recapitalization, could provide the basis for a fair inference by a jury that a cash offer for all outstanding shares was not possible — and that, moreover, given the sophisticated valuation of Phillips that the Partnership would have had at its disposal, the Partnership would know such a global cash offer could not be made. Consequently, one could read the equal basis statements to imply that something other than cash would be given as at least part of the consideration in any buy-back arrangement.
Moreover, a reasonable jury could find the defendants’ explanations as to why the Partnership did not take the same mixed package that was offered to the remainder of the shareholders to be insufficient to rebut the fair inferences that can be drawn from this record. Equal treatment for all shareholders was available, either by the Partnership accepting the same package of stock and debt securities ultimately offered to the other shareholders, or by the cash that was paid to the Partnership instead being offered pro rata to all shareholders instead of the debt securities. That the Phillips board would not allow the Partnership to maintain an interest in the company hardly strikes us as compelling. Nothing kept the Partnership simply from holding its stock in Phillips. Moreover, that the Partnership refused to take the same mixed package offered to the other shareholders — thereby both reducing the Partnership’s position in the corporation to assuage the fears of the Phillips board, while simultaneously sharing the available cash pro rata with all of the Phillips shareholders — belies the defendants’ contention that they believed all of the shareholders were getting equal value.
While a great deal of what the record contains amounts to no more than circumstantial evidence, we have previously observed that “[circumstantial evidence may often be the principal, if not the only, means of proving bad faith.” McLean v. Alexander, 599 F.2d at 1198. Given the contradiction between the Partnership’s vigorous equal basis statements, plus the circumstances we have outlined, a jury could reasonably conclude that the Partnership either was reckless in making the equal basis statements given the foreseeability of what actually occurred, or that the Partnership intended from the outset of its tender offer to sell back to Phillips on an unequal basis. Consequently, the district court’s entry of summary judgment on the security fraud claim for failure to adduce evidence of scienter was incorrect and we will vacate it.
V. THE RICO CLAIM
The plaintiffs alleged in Count VII of their Complaint that the Partnership violated the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-68 (1982 & Supp. Ill 1985). Specifically, they allege “multiple acts of securities, mail and wire fraud by filing, mailing, transmitting and publishing the December 4,1984 press release and the Schedule 13D and amendments thereto” constitute a pattern of racketeering activity under the statute. Additionally, they claim predicate acts of fraud by the Partnership in its failure to disclose that it “intended to enter and had entered into negotiations with Phillips with a view to selling its Phillips shares to Phillips at a premium price not available to other stockholders.”
The district court granted summary judgment to the defendants on Count VII based on its finding that plaintiffs had failed to adduce any evidence of scienter. Thus, reasoned the district court, plaintiffs could not establish predicate acts of securities fraud and, similarly, could not establish the intent necessary to support a finding of either mail fraud, under 18 U.S.C. § 1341 (1982 & Supp. Ill 1985), or wire fraud, under 18 U.S.C. § 1343 (1982 & Supp. Ill 1985).
We have already concluded that plaintiffs have adduced sufficient evidence from which a jury may reasonably find scienter for purposes of federal securities fraud. Consequently, they may be able to establish a prima facie case for the predicate acts necessary to sustain a claim under RICO. See, e.g., Kronfeld v. First Jersey National Bank, 638 F.Supp. 1454, 1471 (D.N.J.1986) (securities fraud constitutes predicate acts under RICO); In re Catanella and E.F. Hutton & Co., Inc. Securities Litigation, 583 F.Supp. 1388, 1425 (E.D.Pa.1984) (same); cf. Moss v. Morgan Stanley, Inc., 719 F.2d 5, 18-19 (2d Cir.1983) (while securities fraud may ordinarily serve as predicate act under RICO, plaintiff unlikely to prove predicate acts at trial).
Similarly, because mail fraud can be premised upon a reckless disregard for the truth of the facts, as well as a specific intent to defraud, the plaintiffs have adduced sufficient evidence to proceed to trial on proof of mail fraud. United States v. Boyer, 694 F.2d 58, 59-60 (3d Cir.1982) (specific intent to deceive, as element of mail fraud and securities fraud, could be found from material misstatement of fact made with reckless disregard of the facts); United States v. Schaflander, 719 F.2d 1024, 1027 (9th Cir.1983) (reckless disregard for truth or falsity is sufficient to sustain a mail fraud conviction), cert. denied, 467 U.S. 1216, 104 S.Ct. 2660, 81 L.Ed.2d 366 (1984); United States v. Frick, 588 F.2d 531, 536-37 (5th Cir.) (reckless indifference for truth can be fraudulent under mail fraud statute), cert. denied, 441 U.S. 913, 99 S.Ct. 2013, 60 L.Ed.2d 385 (1979).
Finally, as the same elements provide the basis for both mail fraud and wire fraud, plaintiffs have adduced sufficient evidence of intent for their claim of wire fraud to survive summary judgment. United States v. Lemire, 720 F.2d 1327, 1334 n. 6 (D.C.Cir.1983) (as requisite elements of “scheme to defraud” under wire fraud statute and mail fraud statute are identical, cases construing mail fraud apply to wire fraud statute as well), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984); see also United States v. Sawyer, 799 F.2d 1494, 1501-02 (11th Cir.1986) (fraudulent conduct that will establish “scheme to defraud” within purview of wire and mail fraud statutes includes knowingly making false representations, or concealing material facts that include statements made with reckless indifference as to their truth or falsity), cert. denied sub. nom., Leavitt v. United States, 479 U.S. 1069, 107 S.Ct. 961, 93 L.Ed.2d 1009 (1987).
VI.
The district court correctly analyzed the plaintiffs’ state law claims and we will affirm its judgment on all of these.
In light of our finding that plaintiffs have adduced sufficient evidence of scienter to survive summary judgment, however, we make one observation in addition to the district court’s thorough analysis. In order to satisfy the causation element of an action under § 10(b) or Rule 10b-5, plaintiffs who purchase in an open and developed market need not prove direct reliance on a defendant’s misrepresentation; rather, they can satisfy their burden of proof simply by showing that the defendant made a material misrepresentation. Basic, Inc. v. Levinson, 485 U.S. 224, 108 S.Ct. 978, 991-92, 99 L.Ed.2d 194 (1988) (plurality opinion); Peil v. Speiser, 806 F.2d 1154, 1161 (3d Cir.1986). Thus, as the plaintiff class is defined as those who purchased Phillips stock after the equal basis statements were first made, and as no determination has as yet been made on the “material misrepresentation” element, the plaintiffs’ claim under § 10(b) and Rule 10b-5 survives the summary judgment motion.
The “fraud on the market theory,” though, has no analogue in the doctrine of promissory estoppel. To recover under an estoppel theory, the plaintiffs must come forward with evidence not only that the Partnership intended to induce reliance, but also that they reasonably relied upon the equal basis statements in purchasing their stock. Rabkin v. Philip A. Hunt Chem. Corp., 480 A.2d 655, 661 (Del.Ch.1984), rev’d on other grounds, 498 A.2d 1099 (Del.1985); see also Restatement (Second) of Contracts § 90 comment b (1981) (requiring that promisee’s reliance be reasonable). The plaintiffs have produced no probative evidence of reliance on the equal basis statements. Moreover, even if they had, reliance upon a mere expression of future intention cannot be “reasonable,” because such expressions do not constitute a sufficiently definite promise. Santoni v. Federal Deposit Ins. Corp., 677 F.2d 174, 179 (1st Cir.1982); accord Derry Finance N. V. v. Christiana Companies, Inc., 616 F.Supp. 544, 550 (D.Del.1985) (“ ‘[A] truthful statement as to the present intention of a party with regard to his future acts is not the foundation upon which an estoppel may be built. The intention is subject to change.’ ”) (quoting Metropolitan Life Ins. Co. v. Childs Co., 230 N.Y. 285, 130 N.E. 295, 298 (1921)), aff'd, 797 F.2d 1210 (3d Cir.1986). See also Reeder v. Sanford School, 397 A.2d 139, 141 (Del.Super.1979) (“expressions of opinion, expectation, or assumption are insufficient” to produce an estoppel). Consequently, even though the plaintiffs have adduced sufficient evidence of intent to survive summary judgment on their federal claims, their promissory estop-pel claim must fail on the reasonable reliance element.
CONCLUSION
For the reasons discussed above, the portion of the district court’s judgment dismissing the claim under Section 10(b) and Rule 10b-5, and the claim under RICO, will be vacated for further proceedings consistent with this opinion. The remainder of the district court’s judgment will be affirmed. Each side to bear its own costs.
. Mesa Partners, from the takeover’s launch until settlement with Phillips, was a General Partnership consisting of three general partners: Mesa Asset Company, which is an indirect wholly-owned subsidiary of Mesa Petroleum Company, CY-7, Inc. and Jack-7, Inc. The total group of defendants named in this action who were not officers of Phillips (the "Mesa defendants") is comprised of the following: Mesa Partners; Mesa Petroleum Company; Mesa Asset Company; Jack-7, Inc.; CY-7, Inc.; T. Boone Pickens, Jr., Chairman and CEO of Mesa Petroleum, and a director of Mesa Asset; Cyril Wagner, Jr., sole owner of CY-7, Inc. and a Mesa Petroleum director; Jack E. Brown, sole owner of Jack-7, Inc.; and the remaining members of the Mesa Petroleum Board of Directors, including I.T. Corley, Jack E. Larsen, J.R. Walsh, Jr., Robert L. Stillwell, Harley N. Hotchkiss, Wales H. Madden, Jr., David H. Batchelder, and Jesse P. Johnson.
. Section 13(d)(1) of the Act provides that any person who acquires five percent of any class of any registered equity security must file with the Securities and Exchange Commission, within 10 days of such acquisition, a statement containing certain statutorily prescribed information, and any additional information required by the Commission. The Commission promulgated Exchange Act Rule 13d-l, 17 C.F.R. § 240.13d-l, to implement that section by requiring the filing of a Schedule 13D. 17 C.F.R. § 240.13d-101.
. On March 5, defendants CY-7, Inc. and Jack-7, Inc. had assigned their interests in the Partnership to Mesa Southern Company, a wholly-owned subsidiary of Mesa Petroleum Company.
. The two actions consolidated were Florence Hudson, et al. v. Phillips Petroleum Co., et al., C.A. No. 85-14 MMS and Harry Voege, et al. v. Phillips Petroleum Co., et al., C.A. No. 85-45 MMS.
. Kelly v. Pickens, et al., C.A. No. 85-401, was transferred from the Central District of California, Lawrence v. Pickens, et al., C.A. No. 85-447, was transferred from the Southern District of New York; Cohen v. Mesa Petroleum Co., et al., C.A. No. 85-537, was transferred from the Northern District of Texas.
. Irwin v. Phillips Petroleum Co., et al., C.A. No. 85-281.
. Except for attorneys’ fees and expenses, the Phillips defendants under the settlement will pay a sum to the class only in the event the plaintiffs ultimately recover against the Mesa defendants.
. Nos. 85-014, 85-045, 85-401, 85-447, and 85-537.
. Plaintiff class member Lawrence filed a separate notice of appeal on oovember 10, 1988, from the judgment of the district court. In re Phillips Petroleum Securities Litigation, No. 88-3755.
. Rule 10b-5 provides:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c)To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.
. The district court ruled that the plaintiffs had adduced sufficient evidence to satisfy the “in connection with” requirement and that finding is not questioned on this appeal.
. The district court also ruled that the package offered the other Phillips shareholders — a combination of debt securities and Phillips stock— did not confer the same economic benefit as the $53 cash received by the Partnership. The defendants briefly contest this finding in their brief. We think it apparent that the packages were not of equal value. As the district court correctly found, the shareholders bore the market risk inherent in the debt securities and the risk in the decrease in value of Phillips stock. The sharp decline in the price of Phillips stock could be expected in the wake of any settlement of a takeover fight. Additionally, two of the principals of the Partnership, T. Boone Pickens, Jr. and Cyril Wagner, Jr. both admitted in depositions that they were aware that a real possibility existed the price of oil would decline soon thereafter and, consequently, would adversely affect the price of Phillips stock. Given these facts, it is difficult to credit the defendants’ statements that they believed all shareholders were being offered equal value — no matter what the investment bankers were saying on the night of December 23.
. See Zaro v. Mason, 658 F.Supp. 222, 227 (S.D.N.Y.1987) ("A promise, or a statement of intentions, is actionable under § 10(b) only if, at the time the statement was made, the declar-ant secretly intended not to perform, and if the promise was part of the consideration for a sale of securities”); cf. Luce v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986) (“[m]aking a specific promise to perform a particular act in the future while secretly intending not to perform may violate Section 10(b) .. Stratton Group Ltd. v. Spray-regen, [1978 Transfer Binder] CCH Fed.Sec.L. Rep. ¶ 96,302 at 93,016-17 (S.D.N.Y.1978) (false statement of future intention actionable) (citing A.T. Brod & Co. v. Perlow, 375 F.2d 393 (2d Cir.1967)). While these cases all deal with situations where the promise was part of the consideration for the sale of the securities, we believe the same reasoning applies to any promise of future intent made “in connection with” the purchase or sale of securities.
. Plaintiffs contend that, because Pickens arranged the May 21 meeting with Flom before the market closed on Friday afternoon, the Partnership should have amended its Schedule 13-D that same afternoon to reflect the change of intent. Plaintiffs provide no evidence, though, that a change of intent was contemplated by Pickens or the Partnership in agreeing to the meeting. Indeed, given the ongoing negotiations between the parties and given the decision by the Delaware Chancery Court the preceding afternoon, agreeing to a meeting was just as consistent with the statement of intent in the Partnership’s original Schedule 13-D as with the ultimate result.
. The Partnership argues that the Oklahoma state court continued to restrain it from pursuing its tender offer. The appellants provide neither explanation nor documentation in support of this contention. The December 20 Delaware Chancery Court opinion, however, indicates that the Oklahoma state court had deferred to the Delaware court’s jurisdiction over the matter. Mesa Partners v. Phillips Petroleum Company, 488 A.2d 107, 109 (Del.Ch.1984). Even if the Oklahoma court did continue to restrain the tender offer, armed with the Delaware court's decision-construing a contract between two Delaware corporations — and given the resources the Partnership had already brought to bear in its attempt to take over Phillips, a jury could reasonably conclude that the Partnership did not consider the Oklahoma court’s actions to be a major hurdle in any event.
. Based on its finding that the plaintiffs had failed to adduce any evidence of scienter, however, the district court declined to address whether the plaintiffs adduced sufficient evidence of the remaining elements of their claim under Section 10(b) and Rule 10b-5: misrepresentation of, or failure to disclose, material facts; duty to disclose; and causation. Consequently, the parties have not provided extensive briefing on these points and we will not consider them. On remand, the parties are free to renew their motions with regard to these points.
. As we noted in Peil, this "fraud on the market” theory rests upon the assumption that there is a nearly perfect market in information, and that the market price of stock reacts to and reflects the available information. 806 F.2d at 1161 n. 10. Thus, while the theory is plausible in developed markets, we questioned its applicability to newly issued securities. Id. Here, as in Peil, though, we deal with a stock well-established in the market and widely traded and, consequently, we need not determine in this case the precise boundaries of the theory’s application.
. The only evidence of reliance in the record to which plaintiffs can point is that, subsequent to the Partnership filing its first Schedule 13-D, trading in Phillips stock increased from 1,637,-900 shares on December 4, to 7,606,700 on December 5. This is as easily attributable to the simple fact that a takeover fight for Phillips was beginning — along with a consequent bidding war for Phillips stock — as to specific reliance by individual shareholders on the equal basis statements. Thus, by itself, it does not satisfy the requirement of specific reliance necessary to support a claim under promissory estoppel. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
6
] | songer_respond2_1_3 |
AMERICAN PETROFINA, INCORPORATED, American Petrofina Company of Texas and American Petrofina Exploration Company, Plaintiffs-Appellees, v. PETROFINA OF CALIFORNIA, INC., and Leigh A. Ross, Defendants-Appellants.
No. 76-1429.
United States Court of Appeals, Ninth Circuit.
May 11, 1979.
Charles E. Wills (argued), Los Angeles, Cal., for defendants-appellants.
Rynn Berry (argued), New York City, for plaintiffs-appellees.
Before CHAMBERS, ELY, and WALLACE, Circuit Judges.
ELY, Circuit Judge:
The appellees, plaintiffs below, moved that a summary judgment be granted in their favor. The District Court granted the motion, enjoining the appellants from continuing to use any derivation of the names “PETROFINA” or “FINA” as part of the trade name or trademark of Petrofina of California. We affirm.
The complaint filed in the District Court consisted of four counts. Detailed discussion of the four separate counts is needless. This is because if the appellees prevailed on any one of the counts, they would be entitled to the injunctive relief granted by the District Court.
We have carefully reviewed the records. That review convinces us that the District Court was correct in concluding that no genuine issue of triable fact existed as to whether appellants infringed upon the respective rights of the three plaintiffs in their PETROFINA trade name under California law. That such an illegal misappropriation occurred is apparent to us, as it was obviously apparent to the District Court.
Under both California common law and statutes, whosoever first adopts and uses a trade name, either within or without the state, is its original owner. Weatherford v. Eythison, 90 Cal.App.2d 379, 202 P.2d 1040 (1949). It is undisputed that the appellees adopted and used the PETROFINA trade name long before the appellants’ first use of the name.
Under California statutes, the first person (or corporation) either to file a fictitious name certificate or to qualify as a foreign corporation to conduct business in California, and actually use the fictitious name or corporate name, is entitled to a presumption that he (or it) has an exclusive right to use that name as well as any confusingly similar name as a trade name. Cal.Bus. & Prof.Code §§ 14411, 14415, and 14416. By virtue of their prior filings and their actual and continuous use of the PETROFI-NA name, the appellees were entitled to the benefit of the statutory presumption. Moreover, as our court once wrote, “[t]he property right in a trade name will be recognized perhaps even more readily when, as here, it embodies the distinctive part of the owner’s corporate name.” Stork Restaurant v. Sahati, 166 F.2d 348, 353 (9th Cir. 1948).
As owner and user of the corporate and trade name PETROFINA, the appellees were entitled to the injunctive relief granted by the District Court against appellants’ continued use of the PETROFINA name or any of its variations, even though appellants’ adoption of the name may have been innocent. See Golden Door, Inc. v. Odisho, 437 F.Supp. 956, 966-67 (N.D.Cal.1977) (having established ownership, plaintiff held entitled to injunctive relief under Cal. Bus. & Prof.Code § 14402, even though use of name “Golden Door” by defendant was in geographically distinct area; California trade name statute does not require that plaintiff prove secondary meaning or actual confusion); see also Schwartz v. Slenderella Systems of California, 43 Cal.2d 107, 271 P.2d 857, 860 (1954) (“Since the decision in Academy of Motion Pictures, etc. v. Benson, 15 Cal.2d 685, 104 P.2d 650 [1940], it is established . . . that injunctive relief against the unfair use of a trade name may be obtained in situations other than where the parties are in direct competition, [citations omitted]”).
Accordingly, the injunctive relief was appropriately granted by the District Court.
AFFIRMED.
. The amended and supplemental complaint charged as follows:
Count One: Infringement of United States registered trademarks and service marks, in violation of 15 U.S.C. §§ 1114 et seq.;
Count Two: Infringement of trademark, service mark and trade name under California common law and statutes (Cal.Bus. & Prof.Code §§ 14330, 14400 and 14402; Cal.Corp.Code § 310);
Count Three: Dilution of the distinctive quality of trademark, service mark and trade name under the California anti-dilution statute (Cal.Bus. & Prof.Code § 14330);
Count Four: Unfair Competition, in violation of 15 U.S.C. § 1125(a), Cal.Civ.Code § 3369, and common law.
. The appellees originally sought both damages and injunctive relief for the misappropriation of the FINA trade name. Pursuant to leave of the District Court, appellees amended their complaint to eliminate any claims for the recovery of monetary damages. For decision, therefore, the only remaining issue was the propriety of injunctive relief.
. Cal.Bus. & Prof.Code § 14400 reads as follows:
§ 14400. Original Owner. Any person who has first adopted and used a trade name, whether within or beyond the limits of this State, is its original owner.
. American Petrofina, Inc., was organized and commenced business as a marketer of petroleum products and services on October 1, 1956. American Petrofina Company of Texas was formed in June of 1958 and adopted the trade name and tradmarks of its parent company, American Petrofina, Inc. It has operated continuously since its organization as a general oil and gas producing and distribution business. American Petrofina Exploration Company was formed in June or 1964 and has operated continually since that time under the PETROFINA trade name as a petroleum products exploration and production business.
Appellants’ adoption of the PETROFINA OF CALIFORNIA name did not occur until January 17, 1967, after the appellee Ross had filed a fictitious name certificate in Los Angeles County under that name. In contrast, American Petrofina, Inc., has been qualified as a foreign corporation to conduct business in California continuously since obtaining a certificate of qualification on January 2, 1957. American Petrofina Company of Texas likewise has been qualified to conduct business in California since obtaining its certification on November 2, 1964, and American Petrofina Exploration Company has been so qualified since April 23, 1965. All of the companies have maintained local authorized agents to accept service of process since the dates of their respective qualifications to do business in California.
American Petrofina Company of Texas drilled and operated oil and gas wells from December 1964 until 1968 in Ventury County, California, on oil and gas leases owned by it. Since 1973, it has operated a gas station in Yreka, California. American Petrofina Exploration Company’s petroleum exploration activities in California have been even more extensive. From 1965 to date it has invested in and commenced drilling operations pursuant to various oil and gas leases in several California counties, including Los Angeles County.
All the appellees have maintained a corporate presence in Los Angeles County by appointing an agent there for service of process; thus, each has established a principal business office for California in Los Angeles County.
. Cal.Bus. & Prof.Code § 14411 reads as follows:
§ 14411. Fictitious business name or confusingly similar trade name; rebuttable presumption of exclusive right to use by registrant
The filing of any fictitious business name statement by a person required to file such statement pursuant to Section 17910 shall establish a rebuttable presumption that the registrant has the exclusive right to use as a trade name the fictitious business name, as well as any confusingly similar trade name, in the county in which the statement is filed, if the registrant is the first to file such a statement containing the fictitious business name in that county, and is actually engaged in a trade or business utilizing such fictitious business name or a confusingly similar name in that county.
. Cal.Bus. & Prof.Code § 14415 reads as follows:
§ 14415. Corporations; filing of articles of incorporation or obtaining certificate of qualification; rebuttable presumption to exclusive use of corporate name
The filing of articles of incorporation pursuant to Section * * * 200 of the Corporations Code, in the case of a domestic corporation, or the obtaining of a certificate of qualification pursuant to Corporations Code Sections * * * 2105 and * * * 2106, in the case of a foreign corporation, shall establish a rebuttable presumption that the corporation has the exclusive right to use as a trade name, in the state the corporate name set forth in such articles or certificate, as well as any confusingly similar trade name, if the corporation is the first to have filed such articles or obtained such certificate containing the corporate name, and is actually engaged in a trade or business utilizing such corporate name or a confusingly similar name.
If a foreign corporation continued to have authority to transact intrastate business pursuant to Section * * * 2102 of the Corporation Code, the foreign corporation shall be considered to have obtained its certificate of qualification pursuant to law for the purposes of this section on the date it first qualified to transact intrastate business in this state.
. Cal.Bus. & Prof.Code § 14416 reads as follows:
§ 14416. Priorities between corporations and registrants
If, as to the same or a confusingly similar trade name, in a county, there are both a corporation entitled to the rebuttable presumption created by Section 14415 and a registrant entitled to the benefit of the presumption created by Section 14411, whichever has filed the fictitious business name statement, filed the articles of incorporation, or obtained the certificate of qualification first in time, and is actually engaged in a trade or business utilizing such fictitious business name, such corporate name, or a confusingly similar name, shall be entitled to the presumption as against the other, that he has the exclusive right to use such fictitious business name, or such corporate name, or a confusingly similar name, as a trade name in the county where the registrant has filed his fictitious business name statement. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case. | This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
1
] | songer_respond2_1_3 |
In the Matter of FINANCIAL COMPUTER SYSTEMS, INC., a California corporation, Debtor. EQUITABLE LEASING CO., Respondent-Appellant, v. Richard CLEMENTS, Trustee-Appellee.
No. 25628.
United States Court of Appeals, Ninth Circuit.
Feb. 5, 1973.
Rehearing Denied March 15, 1973.
James B. Bertero (argued), Bruce E. Clark, of Musick, Peeler & Garrett, Stephen R. Wolfson, of Tiernan & Moneymaker, Los Angeles, Cal., for respondent-appellant.
Donald Rothman (argued), of Sulmeyer, Kupetz & Alberts, A. J. Bumb, Los Angeles, Cal., for trustee-appellee.
Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges.
ELY, Circuit Judge:
Equitable Leasing Company sought reclamation, in bankruptcy proceedings, of two air conditioning units in the possession of the bankrupt’s trustee under an alleged lease agreement. The trustee refused to turn over the two units, claiming contrary to the express provisions of the written contract, that the alleged lease was a security agreement, and, as such, void because of the failure of Equitable to file a financing statement with the Secretary of State. Cal. Comm.Code § 9302.
At the referee’s hearing the trustee was allowed, over strenuous objection by Equitable, to introduce oral evidence that clearly contradicted the written terms of the otherwise complete and unambiguous lease agreement. The contested evidence suggested that an oral option had been granted by Equitable to Financial (the bankrupt) enabling the now bankrupt lessee to purchase the air conditioning units upon termination of the lease for $1,094.00.
Equitable objects that this oral evidence was inadmissible under the provisions of the California Commercial Code § 2201 and the parol evidence rule. Equitable also contends, secondly, that it was error to conclude that the written agreement was a conditional sales contract and not a straight lease; thirdly, that it was error to give effect to the alleged oral option to purchase because such an agreement violates the statute of frauds, Cal.Comm.Code § 2201 and Cal.Civ.Code § 1624(1); and finally, that the referee erred in not applying the doctrine of offset after it had been stipulated by the parties that there were rentals due Equitable under the terms of the lease.
Since we conclude that the admission of the contested oral evidence violated the Commercial Code we do not reach Equitable’s additional assignments of error.
Cal.Comm.Code § 2201(1) (West 1964) provides:
“Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.”
The comment following this code section recites that:
“Only three definite and invariable requirements as to the memorandum are made by this subsection. First, it must evidence a contract for the sale of goods; second, it must be ‘signed’, a word which includes any authentication which identifies the party to be charged; and third, it must specify a quantity.”
The lease contract, which was the only memorandum or writing offered into evidence, contains no mention of an option to purchase the two air conditioning units. To the contrary, the written agreement clearly and expressly provides for a straight lease with ownership remaining with Equitable at all times:
“a. ‘The personal property hereby leased (hereinafter called the Property) shall at all times remain and be the sole and exclusive property of Lessor, and Lessee shall have no right or title therein, . . . . ’
“b. Paragraph 5 — ‘At the expiration of the lease period or termination of the lease pursuant to the provisions hereof, Lessee will return the property to lessor in as good condition as received less normal wear, tear and depreciation.’
“c. Paragraph 11. ‘This lease constitutes the entire understanding of the parties and shall not be altered or amended except by an agreement in writing signed by the parties hereto.’ ”
Financial argues, however, that § 2201(1) of the Commercial Code is inapplicable because evidence of the oral option to purchase was introduced only to prove that the agreement was a security device and not a lease. The trustee thus argues that there was no attempt to “enforce” the option. We disagree. By its terms § 2201 of the Commercial Code applies to agreements to sell regardless of whether enforcement is sought “by way of action or defense.” As a result of the introduction of Financial’s oral evidence the trustee was able to exercise the very power it claims under the alleged purchase option agreement: the power to defeat Equitable’s reclamation action and to relegate Equitable’s claim in the air conditioning units to the position of an unperfected security interest. In our view this was “enforcement” of Financial's rights under the alleged oral agreement, and as such it was improper in the absence of “some writing sufficient to indicate that a contract for sale has been made between the parties. .” Cal.Comm.Code § 2201.
Reversed. | 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 an appellant. | What is the state of the first listed state or local government agency that is an appellant? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
0
] | songer_app_stid |
Nancy E. ELDER and Joseph C. Elder, Appellees, v. CRAWLEY BOOK MACHINERY COMPANY, a corporation, Appellant.
No. 19001.
United States Court of Appeals, Third Circuit.
Argued Jan. 5, 1971.
Decided March 1, 1971.
As Amended April 19, 1971.
Rehearing Denied May 24, 1971.
William C. Walker, Dickie, McCamey & Chilcote, Pittsburgh, Pa., for appellant.
Paul E. Moses, Evans, Ivory & Evans, Pittsburgh, Pa., for appellees.
Before GANEY and ADAMS, Circuit Judges, and WEIS, District Judge.
OPINION OF THE COURT
WEIS, District Judge.
While a layman might be inclined to minimize the question involved in this appeal as an exercise in semantics, the case demonstrates how a shading in meaning of a single word may have a significant effect in a trial.
This is a suit for personal injuries brought under the theory of strict liability as defined by § 402A of the Restatement of Torts 2d. The defendant vigorously pressed the defense of assumption of risk and it is in this context that the meaning of the word “voluntary” became an issue. The Restatement provides that conduct on the part of the plaintiff “in voluntarily and unreasonably proceeding to encounter a known danger” is a bar to recovery.
The trial judge charged the jury that “voluntarily” means “done by design or intention, intentional, proposed, intended or not accidental. The plaintiffs contend that the injury was accidental. Accidental means happening by chance or unexpectedly, taking place not according to the usual course of things.” The defendant excepted to this portion of the charge, contending that “voluntary” is not synonymous with “intentional.”
A review of the facts is necessary for an appreciation of the defendant’s contention and the trial court's instructions to the jury.
The defendant had manufactured and sold a so-called “Building-In Machine” to the plaintiff’s employer some years before the accident which occurred on June 20, 1966. The machine was employed in the final fabrication of a large hard back catalogue of many pages by utilizing hydraulic pressure to perform flattening and creasing (“nipping”) functions.
The book would be placed upon the machine on the “bottom platen” (a flat plate), after which the “top platen” would descend and exert pressure on the catalogue, compressing it and smoothing the pages. Thereafter a blade-like device called “an upper nipper” would descend and put a crease in the binding while at the same time a bottom “nipper blade,” which was fixed in place like the lower platen, would perform a similar function on the underside of the book. The crease was necessary to allow the cover of the catalogue to be opened easily.
On the return cycle, the nipper blade ascended first and then the top platen would rise slowly in preparation for the next cycle. The upper platen and the upper nipper blade were side by side and operated in parallel planes.
Whenever the machine was idle overnight, the absence of hydraulic pressure caused the top platen to descend onto the lower one. In order to prevent the two surfaces from adhering to each other, the operators of the machine had developed a practice of inserting a small magazine between the two platens. The upper nipper blade, however, remained in place and while the machine was in the shutdown condition, a gap of about a half inch existed between the top of the upper platen and the bottom of the nipper blade. This aperture appeared only when the machine was idle because when a large catalogue was being processed, its thickness prevented the upper platen from descending to a position where the half inch opening would appear.
The plaintiff’s injury occurred as she was preparing the machine for the day’s work. After turning on the power, she began to remove the small magazine with her hands, and in some manner the ring and little fingers of her left hand went into the half inch slit between the upper nipped blade and the top of the upper platen. The platen proceeded upwards, severing her fingers in the scissoring action.
The plaintiff’s contention that this was an unreasonably dangerous design was accepted by the jury which rendered a verdict in her favor in the amount of $10,000 which the trial court refused to disturb. The defendant does not now contest the jury’s resolution of the factual issue of design but confines its appeal to alleged error in the court’s interpretation of assumption of risk.
This is a diversity case and the law of Pennsylvania is applicable. In Ferraro v. Ford Motor Company, 423 Pa. 324, 327, 223 A.2d 746, 748, the Supreme Court of that state said:
“After studied consideration, it appears to us that if the buyer knows of the defect and voluntarily and unreasonably proceeds to use the product or encounter a known danger, this should preclude recovery and constitute a complete defense to the action even in cases of strict liability.”
The court’s language was tracking Comment n of § 402A which states :
“Contributory negligence of the plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in a product, or to guard against the possibility of its existence. On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding to encounter a known danger, and commonly passes under the name of assumption of risk is a defense under this section * * * ”
Defendant argues that in the case sub judice the fact that the injury occurred is proof beyond doubt that the plaintiff’s finger had been inserted into the dangerous opening, albeit the plaintiff on several occasions denied that she knew how it came to be there. On cross-examination of the plaintiff, the following exchange took place:
“Q. Mrs. Edler, will you concede that what happened was that in a moment of carelessness and thoughtlessness, that you put your fingers into a place where they were not supposed to be, didn’t you ?
A. No, I wouldn’t do that deliberately, stick my hand in there.
Q. Well, of course you didn’t do it deliberately, but you did it in a moment, a split-second of thoughtlessness and carelessness, didn’t you ?
A. No.
Q. Well, how did you do it? Why did you do it?
A. I don’t know, It happened instantly.
Q. You did do it, didn’t you?
A. It happened.”
Defendant argues that since the plaintiff’s fingers were in the aperture and no outside force placed them there, it follows that there had to have been a “voluntary” act on her part. Defendant’s interpretation of the word appears to be similar to that in use in physiology where activities regulated by the autonomic nervous system are compared with those considered voluntary, e. g., the automatic beating of the heart as contrasted with the movement of an arm or leg. We must reject such an interpretation of the word as having application to the theory of assumption of risk.
In defining the doctrine, the Restatement makes it clear that the law envisions a conscious appreciation of danger and willingness to risk it. Thus Comment d, § 496A says:
“In theory the distinction between the two [contributory negligence and assumption of risk] is that assumption of risk rests upon the voluntary consent of the plaintiff 'to encounter the risk and take his chances * * * A subjective standard is applied to assumption of the risk, in determining whether the plaintiff knows, understands, and appreciates the risk.”
Comment e, § 496C:
“ * * * assumption of risk is a matter of what the plaintiff knows, understands, and is willing to accept.”
Comment c, § 496D:
“The standard to be applied is a subjective one, of what the particular plaintiff in fact sees, knows, understands and appreciates * * * If by reason of age, or lack of information, experience, intelligence, or judgment, the plaintiff does not understand the risk involved in a known situation, he will not be taken to assume the risk, although it may still be found that his conduct is contributory negligence * * *X* t>
See also Green v. Sanitary Scale, 431 F.2d 371 (3rd Cir. 1970), Cf. Bartkewich v. Billinger, 432 Pa. 351, 247 A.2d 603, Tort Defenses to Strict Products Liability, 20 Syracuse L.Rev. 924 (1968-69).
We conclude, therefore, that if the plaintiff’s fingers became placed in a dangerous position in the machine by reason of inadvertence, momentary inattention or diversion of attention, that this would not amount to assumption of the risk.
This construction of the defense is consistent with the philosophy of the Restatement which permits the injured consumer to recover from the manufacturer who is held responsible for a defect in the product even without negligence on his part. This theory of concern for the user, however, is not unfairly frustrated by sanctioning a defense against the claim of a person who knows of the defect but chooses to use the product nevertheless. It is fair to state in such a situation that the manufacturer’s obligation to furnish a safe product has been waived by the consumer’s considered choice to chance the danger involved in the defect.
The judgment of the District Court will be affirmed.
. Pennsylvania adopted § 402A of the Restatement in Webb v. Zern, 422 Pa. 424, 220 A.2d 853.
. While Bartkewich v. Billinger has been cited as being concerned with assumption of risk, careful reading will show that the opinion holds, not that the plaintiff was guilty of assumption of risk by placing his hand in a machine, but that there was a failure to prove that the machine itself was in a defective condition because of lack of a guard which would have prevented the plaintiff from voluntarily placing his person in danger of injury. The case therefore stands for the proposition that the plaintiff failed to prove that the machine was dangerously defective, not that the defendant proved assumption of risk on the part of the plaintiff. | 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. | Did the interpretation of federal statute by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_fedlaw |
UNITED STATES ex rel. SCHACHTER v. CURRAN, Commissioner of Immigration, et al.
(Circuit Court of Appeals, Third Circuit.
February 21, 1925.)
No. 3211.
1. Habeas corpus <@=>-l 13(12) — Appellate courts will not review weight of evidence on appeal in habeas corpus proceedings.
The appellate courts will not review weight of evidence or reconcile conflicting testimony on appeal in habeas corpus proceedings.
2. Aliens <@=>39 — Congress has plenary power to prescribe terms for admission of aliens.
Congress has plenary power to prescribe terms and conditions for admission of aliens into United States.
3. Aliens <@=>54 — Determination, after fair hearing, by proper administrative authority, that alien has not complied with statutory requirements, held conclusive.
Whether alien has complied with statutory requirements for admission is administrative question to be determined by proper authority after fair hearing, and such determination is conclusive on courts.
4. Aliens <@=>54 — Alien has rights of which he cannot be deprived without due process of law; courts may inquire whether he has had fair hearing.
Alien seeking admission to United States has rights of which he cannot be deprived without due process of law, and court may inquire whether-he has had fair bearing.
5. Aliens <@=>54 — Alien' held not given fair hearing where Board of Special Inquiry did not consider documentary evidence of residence in South America.
Where Board of Special Inquiry did not consider documentary evidence that alien had resided in South America for five years preceding his application for admission, which was sole ground on which he claimed right to enter under Act May 19, 1921, § 2, as amended by Joint Res. May 11, 1922, § 2 (Comp. St. Ann. Supp. 1923, § 4289%a), he did not have fair hearing.
Appeal from the District Court of the United States for the District of New Jersey; John Rellstab, Judge.
Habeas corpus by the United States, on the relation of David Schacliter, by bis next friend and brother, Nathan Schaehter, against Henry II. Curran, Commissioner of Immigration, Port of New York, and another. From an order dismissing the writ and remanding relator to custody of the Commissioner, relator appeals.
Reversed.
Adrian Bonnelly, of Philadelphia, Pa., for appellant.
Waller G. Winnc, U. S. Atty., of Hackensack, N. J., for appellee Curran.
Phillip Forman, of Trenton, N. J., for other appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge,
This is an appeal from an order of the District Court dismissing a writ of habeas corpus and remanding the alien relator for deportation to the custody of the Commissioner of Immigration at the Port of New York.
The evidence shows that the relator is a native of Santanov, Russia. He sought admission into the United States from Argentina, South America. He claims to have landed in Argentina from Russia in October, 1918, and to have resided continuously in that country until March, 1924, when he embarked on the steamship Voltaire, from Buenos Ayres, Argentina, for the United Slates.
Section 2 of the Act of May 19, 1921 (42 Stat. 5, c. 8), as amended (42 Stat. 540, § 2 [Comp. St. Ann. Supp. 1923, § 4289½a]), provides that: “The number of aliens of any nationality who may be admitted under the immigration laws to the United States in any fiscal year shall be limited to 3 per centum of the number of foreign bom persons of such nationality resident in the United States as determined by the United States census of 1910. This provision shall not apply to the following, and they shall not be counted in reckoning any of the percentage limits provided in this act * * * aliens who have resided continuously for at least five years immediately preceding the time of their application for admission to the United States in the Dominion of Canada, Newfoundland, the Republic of Cuba, the Republic of Mexico, countries of Central and South America, or adjacent islands.”
The sole question at issue upon which the admission or rejection of the alien depended was whether or not he had resided in South America for at least five years immediately preceding the time of his application for admission to the United States. On his arrival at Ellis Island, N. Y., he presented a passport from the Russian Legation at Buenos Ayres, dated March 11, 1924, which was viséed March 20, 1924, by the American consul located in that city. Hearings were held by a Board of Special Inquiry at EUig Island on April 19 and 21, 1924. At the conclusion of the hearing on the last date, the Board by a unanimous vote excluded the alien on the ground that he had come to the United States “in excess of the Russian quota.”
No consideration whatever seems to have been given by the Board to the question of his residence in South America. In other words, the sole ground on which, the alien claims the right to enter the United Slates was ignored. On appeal, the Commissioner General of Immigration ordered the alien deported. Ho was placed on board the steamship Vandyek, at Hoboken, N. J. A petition for writ of habeas corpus was allowed by Judge Rellstab, who after the argument returned the case on June 9, 1924, to the Board of Inquiry with the following order: “That the determination of the said Board of Special Inquiry be fully and completely set forth upon the question of the residence of the relalor in South America for five years next previous to his application for admission into the United States and as to whether he is entitled to consideration as an exception under section 2, subdivision 7, of the Act of May 19, 1921, as amended.”
On June 12, 1924, the case was “reopened for the correction of the record” by the Board which, without further testimony, entered the following: “Opinion. The Board is not satisfied from the evidence submitted that this alien has resided in Argentina for five years prior to his application for admission to the United States, and he is, therefore, not entitled to consideration as an exemption under section 2A, subd. 7, Act of May 19, 1921, as amended. He-is therefor» excluded as coming in excess of the quota allotted to the country of his birth, namely, Russia.. Excluded.”
On a further hearing, the District Court entered an order dismissing the writ of habeas corpus. The case is here on appeal from that order.
On appeal from orders sustaining or dismissing writs of habeas corpus, it is not the province of appellate courts to review the weight of the evidence or to reconcile conflicting testimony. United States v. Tod (C. C. A.) 296 F. 345, 347. The Congress is clothed with plenary power to prescribe whatever terms and conditions it desires for the admission. Of aliens into the United States. An alien may be admitted to the United States when he complies with these terms and conditions. Whether or not he had done so is an administrative question to be determined by the proper authority after a fair hearing. Such determination is Conclusive upon the courts. An alien has rights, however, of which he cannot be deprived without due process of law and for the enforcement of which he may invoke judicial interference. Rodgers v. United States, 157 P. 381, 384, 85 C. C. A. 79. The deeision in the instant case, that the alien had not resided five years in Argentina immediately preceding his application for admission to the United States, is final if it is based upon competent and adequate evidence. Chin Yow v. United States, 208 U. S. 8, 12, 28 S. Ct. 201, 52 L. Ed. 369; Zakonaite v. Wolf, 226 U. S. 272, 274, 33 S. Ct. 31, 57 L. Ed. 218; Kwock Jan Fat. v. White, 253 U. S. 454, 457, 40 S. Ct. 566, 64 L. Ed. 1010. The Congress has conferred upon the Secretary of Labor great power in admitting or excluding aliens. But this power must be exercised fairly and in good faith with'an earnest effort to discover the truth in accordance with the traditions and principles of free government, applicable where the fundamental rights of men. are involved, and in accordance “with the fundamental principles of justice embraced within the conception of due process of law.” Tang Tun v. Edsell, 223 U. S. 673, 681, 682, 32 S. Ct. 359, 363 (56 L. Ed. 606); Kwock Jan Fat v. White, supra. While federal courts may not inquire whether or not on the evidence a decision of a Board of Special Inquiry is right or wrong, they may, nevertheless, inquire whether or not the alien had a fair hearing ahd whether or not the evidence was disregarded or adequately supports the decision. Hughes v. United States (C. C. A.) 295 F. 800, 803.
In addition to the passport from the Russian Legation in Buenos Ayres, the alien testified that he had worked as a salesman in a furniture store in La Plata, Argentina, for one person from October, 1918, until March, 1924, and that he presented a certificate, showing that fact, from his employer to the American Consul in Buenos Ayres Moreover, the record contains the following: “The alien shows affidavit made by himself before the American Consul March 18, 1924, stating he arrived in Argentina October, 1918, and resided there permanently since. In substantiation of this, he has produced La Plata court certificate indicating that he lived in Argentina for more than five years.” The certificate from the employer and court certificate were retained by the American Consul. In allowing the writ of habeas corpus the learned District Judge recognized that the Board of Special Inquiry had either inadvertently overlooked oí intentionally disregarded the portion of the statute under which the alien might be admitted to the United States and the evidenee which might bring him within its provisions. He therefore returned the ease to the Board of Special Inquiry, with directions that the question of the residence of the alien in South America be fully and eompletely set forth; but the Board did not take any additional testimony and apparently did nothing except to add to its former eonelusion the words that, “The Board is not satisfied from the evidence submitted that this alien has resided in Argentina for five years prior to his application for admission to the United States.” The documentary evidence upon which the alien relied was in the possession of the United States and accessible to the Board of Inquiry, and perhaps to it alone. There was nothing in the evidence to impeach the testimony of the alien to the effeet that he had lived in La Plata continuously five years before leaving for the United States. The documentary evidence upon which he had secured the visé of his passport was apparently not considered at all. As Judge Hand said in the ease of United States ex rel. Basile v. Curran (D. C.) 298 F. 951: “It is not enough for the Board of Special Inquiry to say that they do not believe that the certificate was retained by the consul, in the ‘face of his jurat, or that it was false, when they had not seen it. They have no power to. dispense with the usual means of ascertaining the truth. * * * Hence I held that these aliens were denied a fair hearing, because it lay within the power of the authorities, and probably of them alone, to produce the missing eertifieates on which the aliens’ cases hung.”
In the ease at bar, we are forced to the conclusion that the alien did not have a fair hearing and that the evidence upon which he claims the right of admission to the Unite.d States was mistakenly ignored,
Therefore the judgment dismissing the writ of habeas corpus is reversed. | 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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
1
] | songer_direct1 |
Clone S. CLAY, Appellant, v. UNITED STATES of America, Appellee.
No. 7467.
United States Court of Appeals Tenth Circuit.
Dec. 24, 1963.
Charles C. Green, Oklahoma City, Okl., for appellant.
Jack R. Parr, Asst. U. S. Atty. (B. Andrew Potter, U. S. Atty., on the brief), for appellee.
Before MURRAH, Chief Judge, and HILL and SETH, Circuit Judges.
. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92; Cefalu v. United States, 10 Cir., 234 L.2d 522; Madsen v. United States, 10 Cir., 165 F.2d 507.
HILL, Circuit Judge.
Clay appeals from an order of the lower court denying, without a hearing, a motion by him under 28 U.S.C.A. § 2255, to vacate and set aside his conviction and sentence imposed for violations of the narcotics laws. The motion was summarily denied upon the ground that the “motion and the files and records of the case conclusively show that the petitioner is entitled to no relief.”
The record discloses that appellant was charged in a three-count indictment and in a one-count information with four separate illegal sales of narcotics in violation of 26 U.S.C.A. § 4705(a). The four counts were consolidated for trial without objection but, shortly before the time set for trial, appellant withdrew his pleas of not guilty and entered pleas of guilty to all four counts. Clay was sentenced to imprisonment for a term of ten years on each of the four counts with the sentences to run consecutively. This was Clay’s third unsuccessful attempt in the court below to invalidate the sentences imposed and is the second appeal to this court.
The only points raised on this appeal relate to the sufficiency of the indictment and information, which appellant contends are legally insufficient because: (1) In each of the four counts of the indictment and information the statutory language “Secretary or his delegate” is omitted; and (2) in each of such counts the name of the person to whom the narcotics were alleged to have been sold is not shown.
Rule 7(c), F.R.Crim.P., 18 U.S. C.A., provides that an indictment or information “ * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * ” The sufficiency of an indictment or information is to be determined by practical rather than technical considerations. The test is not whether the indictment could have been made more definite and certain. Rather, before a conviction, the indictment standing alone must contain the elements of the offense intended to be charged and must be sufficient to apprise the accused of the nature of the offense so that he may adequately prepare a defense. And, after a conviction, the entire record of the case must be sufficient so as to enable the accused to subsequently avail himself of the plea of former jeopardy if the need to do so should ever arise. The same rule or test is applicable on a collateral attack by motion under section 2255 to vacate and set aside a conviction and sentence. *However, after a verdict or plea of guilty, every intendment must be indulged in support of the indictment or information and such a verdict or plea cures mere technical defects unless it is apparent that they have resulted in prejudice to the defendant. Prejudice to the defendant is, of course, a controlling consideration in determining whether an indictment or information is sufficient.
We have no difficulty in concluding that the indictment and information, when measured by the standards of the foregoing rules, are sufficient as against the collateral attack on the ground of omitting the statutory language, “Secretary or his delegate”. This is a purely technical argument or matter which is based upon the substitution in the indictment and information for that language, of the phrase “District Director of Internal Revenue”. The function of the issuing of blank order forms for the sale of narcotics has in fact been delegated to the district directors of internal revenue. 26 C.F.R. § 151.143.
The second point raised by appellant cannot be disposed of so easily, primarily because of the very recent case of Lauer v. United States, 7 Cir., 320 F.2d 187. In that case, the Seventh Circuit held that an indictment charging the unlawful sales of narcotics in violation of section 4705(a), which did not set forth the name of the person to whom the unlawful sales were alleged to have been made, was so defective that a motion under section 2255 to vacate and set aside the sentence should be granted, even though the defendant was informed of the identity of that person on the day of trial. The court, while holding that the identity of the purchaser was not an element of the offense, based its decision upon the view that “ * * * the identity of the ‘person to whom’ such a sale is alleged is a factor ‘central to every prosecution under the statute’ and of which the accused is entitled to be apprised by the indictment. * * *” (320 F.2d at 191). The case of Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, was cited in support of this view. After giving careful consideration to the Lauer and Russell decisions and for the reasons hereinafter discussed, we reach a different conclusion on the question and therefore respectfully decline to follow the Lauer case.
The elements of the statutory offenses with which appellant was charged under section 4705(a) are as follows: (1) The selling, bartering, exchanging or giving away narcotic drugs; (2) except in pursuance to a written order on a form issued in blank by the Secretary of the Treasury or his delegate. The statute makes no provision or requirement with respect to the identity of the person to whom an illegal sale is made and we must therefore conclude, as the court did in the Lauer case, that the identity of such person is not an element of the offense. Hence, the indictment and information in this case cannot be considered to be defective because of a failure to allege the elements of the offense. Nor do we think the indictment and information are defective on the ground that they failed to apprise the appellant of what he must be prepared to meet at the trial. Appellant did not request a trial, but rather entered pleas of guilty. And, in any event, the record clearly discloses that appellant was fully aware of the nature of the charges against him.
Appellant’s strongest argument here is that he would be unable to plead this conviction as a bar to a subsequent prosecution for the same offense inasmuch as the identity of the person to whom he made the illegal sales is not shown in the indictment and information. It is true that the identity of such person is not shown. But appellant would not be confined to the allegations of the indictment and information, standing alone, if it ever became necessary for him to enter a plea of former jeopardy. Clearly, appellant could rely upon other parts of the record in the event that future proceedings should be taken against him. And, the record discloses that in response to a question by the trial court prior to sentencing, appellant admitted that he sold narcotics to a federal man. The federal man referred to is identified in the record as “Ernest Hill”. There is therefore no question but what a plea of former jeopardy can be made on the present record. We need not decide here then whether an indictment would be fatally defective in which neither the indictment nor the record disclosed the identity of the person to whom the sale was made.
We conclude that the indictment and information in this case are sufficient under the general principles of law by which they must be tested. Certainly, there is nothing in the record before us to indicate that appellant was prejudiced in any way by virtue of the defects asserted in the motion.
Affirmed.
. Olay v. United States, 10 Cir., 303 F.2d 301, cert, denied 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132.
. Braswell v. United States, 10 Cir., 224 F.2d 706, cert, denied, 350 U.S. 845, 76 S.Ct. 86, 100 L.Ed. 752; Jackson v. United States, 114 U.S.App.D.C. 181, 313 F.2d 572.
. Yates v. United States, 10 Cir., 316 F. 2d 718; United States v. Roberts, 4 Cir., 296 F.2d 198, cert, denied, 369 U.S. 867, 82 S.Ct. 1033, 8 L.Ed.2d 85.
. Crapo v. United States, 10 Cir., 100 F. 2d 996; Fippin v. United States, 9 Cir., 162 F.2d 128; United States v. Beck, 7 Cir., 118 F.2d 178, cert, denied, 313 U.S. 587, 61 S.Ct. 1121, 85 L.Ed. 1542; Finn v. United States, 4 Cir., 256 F.2d 304.
. Stapleton v. United States, 17 Alaska 713, 260 F.2d 415.
. Russell v. United States, supra, 369 U.S. at 764, 82 S.Ct. at 1047, 8 L.Ed.2d 240.
. “The Court: Well, you sold 800 dolophine tablets, didn’t you, to a Federal man for $125.00?”
“The Defendant: Yes, sir, I admit that.” | 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer_direct1 |
MITCHELL v. WHITMAN et al.
No. 10799.
'Circuit Court of Appeals, Eighth Circuit.
Feb. 15, 1938.
Henry S. Mitchell, of Minneapolis, Minn. (James L. Hetland, of Minneapolis, Minn., on the brief), for appellant.
James E. Dorsey, of Minneapolis, Minn., for appellee E. A. Whitman, receiver, etc.
Warren S. Ege, of St. Paul, Minn. (M’Cready Sykes, of New York City, George W. Morgan, of St. Paul, Minn., Stewart & Shearer, of New York City, and Kellogg, Morgan, Chase, Carter & Headley, of St. Paul, Minn., on the brief), for trustees of First General Mortgage and Trustees of Superior and Duluth Division and Terminal First Mortgage.
John L. Erdall, of Minneapolis, Minn., for intervener Minneapolis, St. P. & S. St. M. Ry. Co.
Before STONE and WOODROUGH, Circuit Judges, and DAVIS, District Judge.
STONE, Circuit Judge.
This is an appeal from an order denying an allowance of attorney fees for services claimed to have been rendered by appellant to the receivership estate.
Appellant is an attorney of ability and standing who has, for some years, been the general counsel of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company (popularly called the “Soo”) upon an annual salary. The Soo has long been the owner of a railway system extending from the cities of Minneapolis and St. Paul eastward to Sault Ste. Marie, Mich., westward to the Missouri river, and northwest and west across North Dakota and Minnesota to the Canadian boundary, with connections at various points with the Canadian Pacific Railway and also with branch lines in Minnesota, North Dakota, Wisconsin, and Michigan. The Wisconsin Central Railway Company is a railway line connecting the cities of Ashland and Superior (both in Wisconsin), Duluth, Minneapolis, and St. Paul with Chicago and Milwaukee.
For the highly important purpose of securing connection with and entry into the great freight and passenger point of Chicago, the Soo leased all of the line and all of the property of the Wisconsin in 1909 for a term of ninety-nine years. This lease passed the sole control and exclusive operation of “said railways and every part thereof” to the Soo. The lease also passed “sole control of all the funds and other assets of the Lessor, whether current or accumulated, and also of all earnings of said leased railways and other properties during the term hereof (including any proceeds from the sale, rent or royalties of any and all lands now held and owned by the Lessor or held in trust for its benefit, or which it shall acquire during the term of this lease over which the Lessor has or may have control) to be used, however, wisely and prudently according to its best judgment for the sole purpose of operating, maintaining and improving the railways and other properties hereby leased, and for meeting and discharging the taxes, charges, liabilities and obligations of the Lessor pertaining thereto and any interest payable on account of the same, and, so far as may be legally possible, for the payment of such dividends on the outstanding capital stock of the Lessor as the Board of Directors of the Lessor may from time to time declare, provided, however, that the Lessee shall not in any event, commingle said earnings, funds or assets with its own, and that it shall keep and maintain with respect thereto, a separate and complete system of accounting and auditing during the full term of this lease. Blit said earnings, funds and assets shall stand charged in favor of the Lessors with the payments tó be made for the said purposes or for other purposes in accordance with the provisions contained in this lease.”
Further the lease provided for payment, “out of the earnings of the properties hereby demised,” of all management, maintenance, and operating expenses and all interest on indebtedness of lessor and all taxes, license fees, duties, and assessments against the leased property or on the gross earnings thereof. The lease provided that the obligations of the lessee as to payment of operation, taxes, fixed charges, etc., “shall not be construed as requiring the Lessee to become financially responsible in any such respect, but that all such expenses may be paid by the Lessee out of the earnings of the railways and other properties of the Lessor.” There was a provision for termination of the lease upon failure of performance by the lessee. The above provisions of the lease are stated to outline the character of the control given the lessee, the source and method and scope of the compensation to be paid therefor, and the term and condition of earlier termination of the lease. Such outline is sufficient for the purposes here.
Prior to November 30,1932, the revenues of the Wisconsin became insufficient and the Soo made advances from its own funds. On that date, the Wisconsin was served with notice that the Soo “will as soon as may be cease to operate and maintain the Wisconsin Central properties unless satisfactory arrangements be forthwith made to furnish this company with funds with which to meet the deficits to be incurred in such operations and maintenance; that, if such arrangements be forthwith made, this company will be pleased to continue such operations and maintenance in all other respects on the present basis and with the same diligence and efficiency as are used in the operations of this company’s own properties ; and that this company stands ready to deliver possession of the said properties to said Wisconsin Central Railway Company upon demand.”
On the same day the Wisconsin board of directors served its reply to this notice on the Soo. This reply was as set forth in the footnote.
On December 2, 1932, occurred the following: A bondholding creditor filed a complaint praying receivership; the Wisconsin answered, joining in the prayer for a receiver; the Soo sought an order allowing intervention; the order was entered; the intervening petition was filed; an order was entered making the Soo a party plaintiff; the Soo, as intervener, filed a bill of complaint against the defendant; the Wisconsin answered; - a receiver was appointed and qualified; the receiver filed a petition for authority to take possession and to execute a designated operating agreement with the Soo; and an order was entered authorizing the receiver to execute the operating agreement effective as of 12:01 a. m., December 3, 1932.
This operating agreement was in force during the time appellant performed the services in respect to Wisconsin tax controversies which are a part of the services for which recovery is sought. In so far as here material, an outline of that agreement is as follows: “The Railway Company is hereby appointed the agent and representative of the receiver to operate and maintain said properties in behalf of the receiver on the operating and maintenance basis provided in such lease and the schedule hereto attached, said Railway Company to collect the revenues of such properties and apply the same in discharge of the costs of the operation and maintenance thereof, including taxes and. assessments, allocating to the costs of such operation and maintenance all directly assignable costs and apportioning costs not so directly assignable on the basis of said schedule hereto attached.”
Monthly reports of the results of operation and maintenance were to be made by the Soo to the receiver with settlements resulting in payment to the receiver of net credit balances and by him to the Soo of deficits. The “schedule hereto attached” consisted of an extended and detailed statement of “Bases for Dividing Operating Revenues and Expenses between Soo and Wisconsin Central Railway Companies.” The parties here seem in agreement that the salary of appellant ,as general counsel of the Soo is provided for in schedule items “451 — Sal. & Exp. Gen’l. Off.” and “452-Sal. & Exp. Clks. & Att.” under the general heading of “Operating Expenses — Miscellaneous- — -General”; and, also, that allocation thereof was on the basis of all charges for maintenance of way and maintenance of equipment and transportation, which resulted in 60 per cent, to the Soo and 40 per cent, to the receiver.
Appellant divides the services for which he seeks recovery into nine items. Of these, six items had to do with different steps in a rather extended controversy with the State of Wisconsin over taxation of the Wisconsin Central. The three other items had to do with initial and early proceedings in the receivership of the Wisconsin Central.
In the order denying the allowance, the court stated the reasons therefor as follows : (1) As to the services in connection with the initiation of the receivership, such services were within appellant’s duties as general counsel for the Soo; (2) as to the services in connection with the Wisconsin taxes, (a) the regular client (the Soo) of appellant had a special interest in this tax litigation and, although appellant’s services were beneficial to the receivership estate, he had not applied for nor been appointed special counsel for the receiver and that official had his own counsel, appointed by the court, who represented the receiver in the tax controversy; (b) these services were covered by the provisions of the operating agreement and under a prior lease (in many respects continued by the operating agreement as a basis of mutual action) and had been paid by the receiver.
I. Receivership Services.
The services in connection with initiation of and in the early stages of the receivership for which appellant makes claim for compensation are stated in his brief as follows:
“(1) Making the preliminary investigations of law and facts and drafts of legal papers required for placing the Wisconsin Central properties in receivership in the Federal Court.
“(2) Collaborating with counsel for the plaintiff Northwestern Fire & Marine Insurance Company, in submitting to him the results of the foregoing preparations, and in appearing with him in Court to explain the situation and obtain the orders for the Receiver’s appointment and taking custody of the assets.
“(3) Rendering certain lesser incidental services facilitating the ' administration of the receivership and keeping down the expenses.”
Appellant expressly concedes the important special interest of the Soo in the procurement of this receivership, but argues that such services by him were also in the interest of and for the benefit of the property of the Wisconsin Central. This concession is abundantly justified by the evidence. The Soo was vitally interested in the maintenance of the Wisconsin Central as a going concern under its operation because that road was the only connection of the Soo with two important terminals— Chicago and Milwaukee. Before the receivership, the Soo had a long-time lease upon this property giving it complete and exclusive rights to and responsibilities for maintenance and operation of the Wisconsin Central. It had acted thereunder for more than twenty-five years. Also, the Soo was “guarantor of, or jointly obligated to,” the payment of interest on $15,816,000 of Wisconsin Central Mortgage Bonds. Also, the Soo had “a large block” of Wisconsin Central bonds. Also, the Soo owned a majority of the common capital stock of the Wisconsin Central “and has purchased or is obligated to pay for virtually the entire remainder of such common stock.” Also, it claimed an unsecured indebtedness “in excess of $50,000.00,” against the Wisconsin Central.
The sole causes of this receivership were that the Soo declined further to meet operating deficiencies in its use of the Wisconsin and yet wished to continue the operation of the road in conjunction with its own properties and to protect its other interests therein. Until the Soo, and it alone, brought about the situation necessitating the receivership, all other parties interested in the property were entirely taken care of and their rights protected. Also, it appears that counsel for the plaintiff in the receivership suit (Northwestern Fire & Marine Insurance Company) and counsel for the intervening underlying mortgage bondholders have been compensated from the estate.
Services of this character were plainly for the vital interests of the Soo to meet a situation brought about by it, and they were within the employment of appellant as general counsel for the Soo. There is no basis for the contention that there is a legal right to payment for such services from the estate. At most, there was a power in the court to make such allowance, but this power involved the exercise of the sound discretion of the court. We see no reason for disturbing the result of the exercise of that discretion here.
II. The Tax Controversy.
Most of the trackage and property of the Wisconsin was in the state of Wisconsin. The Soo had trackage and property within that state. For many years prior to the receivership, the Wisconsin’s and the Soo’s taxes in Wisconsin had been assessed together in one single combined assessment made in the name of the Soo. The receivership began December 3, 1932. Early in 1933, both the receiver and the Soo made demands upon the Wisconsin Tax Commission for a separation of the assessments for the tax year 1933. However, the commission made a combined valuation at. what both railways deemed a greatly excessive amount. The assessment was in the name of the Soo, but the properties of both were subjected thereby to the lien of the entire tax. As a foundation for obtaining proper valuation reductions for each property, it was thought necessary to ' obtain a decree setting aside the combined assessment and compelling the commission to make separate assessments. Because the Wisconsin did not then have funds sufficient to tender the proper tax on its property and because the separation could be adequately accomplished by a suit by the Soo, the Soo (after discussion with counsel for the receiver) brought the action. This action finally resulted in the desired decree for separation of assessments. Minneapolis, St. P. & S. S. M. Ry. Co. v. Henry, State Treasurer, 215 Wis. 668, 255 N.W. 896. Other litigatipn by the State Attorney General to sell the properties of both roads to pay the 1933 tax so assessed and by the Soo to test a similar combined assessment for 1934 were held in abeyance and were governed by the above decision.
After the separation of assessments was thus secured, the commission made the separate assessment merely by a percentage division between the two roads of the combined amounts theretofore assessed against the Soo for the respective years 1933 and 1934. Then, appellant proposed, to apply for reductions of the separate assessments of the Soo and the counsel for the receiver requested him to make similar showings for reductions of the Wisconsin properties. Appellant prepared a brief supported by thirty tables — some applying to the Wisconsin property and some to the Soo property. Appellant presented an oral argument supporting the claimed reductions for both roads. There was some participation by counsel for the receiver, but the major service was by appellant in this reduction proceeding. The results were substantial reductions as to both properties in the same percentages. The Soo agreed to pay upon this reassessment.
The receiver contested for further reductions. Negotiations between the taxing authorities and the receiver and his counsel • — -participated in by appellant- — led to further reductions in the form of a compromise agreement. This agreement was repudiated by the state authorities and thereafter ensued a lively contest including an attempt to enforce payment of the taxes as reduced by the commission, a proceeding to forfeit the Wisconsin corporate charter, and an attempt to pass a congressional act allowing States to enforce state tax collection remedies against property in federal receivership. The ultimate result was payment of the commission assessments in principal amounts with interest and penalties waived as to the 1933 and 1934 taxes and some reduction in principal of the 1932 taxes.
The above is intended only as a bare outline of this tax situation, but is sufficient for the purposes of this opinion.
Throughout this controversy, the Soo had a direct interest. Up to the point where there was a segregation of the taxes, it had the interest of ascertaining what taxes were to be assessed against it. After segregation (as well as before), it was directly interested in the amount of taxes assessed against the Wisconsin Central because of its large interests as a stockholder, bondholder, unsecured creditor, and guarantor of interest on some of the bonds — to reduce the taxes would directly affect the net income from this property and, therethrough, all of the above interests.
It is true that there may have been some other stockholder interests and there were other substantial secured creditor interests which would benefit, along with the Soo’s similar interests, from .the separation of the assessments, and, particularly, from the reduction of the assessments and the taxes. However, there was another interest of the Soo which was peculiar to it and more important to it than its stockholder and creditor interests. That interest was the vital necessity of controlling the exclusive operation of the Wisconsin property in connection with its own property. Without such control, the Soo would have no entrance into the essentially important rail terminal of Chicago. For the Soo to control operation of the Wisconsin under an arrangement whereby the Wisconsin should pay its own way was an ideal arrangement for the Soo. In lessening taxes of the Wisconsin, that line was more nearly assured self-support. In preventing forfeiture of the corporate charter of the Wisconsin and in preventing sale of its property to pay taxes, the Soo was secured in its control of operation which either of these eventualities might have entirely defeated. It was vital to the Soo to operate the Wisconsin under the long-term lease. When operation under the lease became burdensome, it was equally vital to the Soo to continue such operation under the operating agreement with the receiver. This vital interest, peculiar to the Soo, was the main spring which moved the counsel of the Soo in these tax matters. It was enough, standing alone, to justify and compel his able action to protect the Wisconsin. To protect the Wisconsin was to protect the Soo.
In all that appellant did in this tax controversy, he was directly and primarily serving important interests of the Soo.
It is true that, in so far as his services were directed to reducing the assessment of the Wisconsin Central, he was also benefiting the estate. However, the receiver had his own counsel who were active in this controversy. If appellant expected compensation from the estate, he should have applied to the court for recognition of such services and had his status established before or during the services. Such action would have fixed his right to such compensation. On the contrary, the first notice of his belief that the estate owed him any compensation came with the filing of this petition for allowance of fees, on December 16, 1935, after rendition of such services. Without such action before service rendered, his claim for compensation cannot be a right, but must, at most, rest in the discretion of the court. The court has exercised that discretion against him, and we see no reason to hold such exercise an abuse of discretion.
The second reason stated by the court was that the service in connection with taxes was within the services covered by the operating agreement. This agreement was designed to continue the uninterrupted operation of the property by the Soo. It was approved and put in force immediately after appointment of the receiver. It provided that the Soo was appointed as the agent and representative of the receiver and that it was “to operate and maintain said properties in behalf of the receiver on the operating and maintenance basis provided in such lease and the schedule hereto attached, said Railway Company to collect the revenues of such properties and apply the same in discharge of the costs of the operation and maintenance thereof, including taxes and assessments, allocating to the costs of such operation and maintenance all directly assignable costs and apportioning costs not so directly assignable on the basis of said schedule hereto attached.” Monthly, the Soo was to pay over to the receiver any net credit balance and was to be reimbursed by the receiver for any deficit. In the “schedule” (attached to'and a part of this operating agreement), which set forth the method of allocating many kinds of specified expense, were items which admittedly covered the salary of appellant as general counsel of the Soo. The allocation required by these items corresponded, in general, to the respective ratios of volume of business — the Wisconsin Central share being about 40 per centum. This percentage the receiver regularly paid.
Appellant contends that these tax services were not within the above employment because they were “extraordinary.” The agreement expressly charged the Soo with the duty to pay “taxes and assessments” so long as it could do so from the earnings of the Wisconsin Central. It would seem to be its related duty to keep the taxes as low as possible. The operation and maintenance of the property by the Soo was as the agent of the receiver. The receiver was entitled to net earnings. It would seem to be the duty of the agent to avoid all unnecessary expense and, to that end, resist any unfair or unjust charge — whether for taxation or otherwise. Such action would, naturally, be taken by an owner to protect his own property, and it should be equally taken by an agent acting under the broad powers and in the situation here. The Soo, as well as the Wisconsin Central, had a very real interest in the reduction of these taxes. Nor is the overassessment of railroad property —at least in the judgment of those interested therein — at all unusual. It is one of those things often to be expected. Ordinarily, opposition to such involves legal services. The tax services here came within the duties of appellant as general counsel of the Soo and were compensated by his regular salary as such, 40 per centum of which was paid by the receiver. ****8
Conclusion.
The order should bé and is affirmed.
“Whereas this company is without funds, credit, or other resources with which to meet the deficits to be incurred in the operation and maintenance of its said railway properties and thus cannot provide for their continued operation and maintenance by Minneapolis, St. Paul & Sault Ste. Marie Railway Company.
“Resolved, that the Board of Directors of Minneapolis, St. Paul and Sault Ste. Marie Railway Company be forthwith notified to the above effect; and
“Whereas this Board has been considering the advisability of demanding that the Minneapolis, St. Paul & Sault Ste. Marie Railway Company deliver possession to this company of this company’s said railway properties in view of the threatened non-.operation of said properties by Minneapolis, St. Paul & Sault Ste. Marie Railway Company and the fact that this company will be unable during the immediate future and for many months to operate and maintain its said properties itself, both because of its above stated inability to meet the deficits to be so incurred and because it is not now provided with the facilities for conducting such operations and maintenance and cannot acquire them without prolonged delay, including particularly the necessary operating, engineering, accounting, freight and passenger traffic, departments, personnel and officers, without which it is impossible for this company to operate and maintain its said railway properties; and
“Whereas this Board has arrived at no decision respecting that question.
“Resolved, that this Board give further consideration to' said question.”
The testimony by appellant particularizes these services as follows:
“Initial Preparations for This Receivership.
“This preliminary work had been performed by petitioner because he was advised on or about October 1, 1932, by the executive officers of the Soo that it was about to discontinue its operations of the Wisconsin Central properties at its own expense; and because he was instructed by said individuals, who were also the executive officers of the Wisconsin Central, to outline the necessary procedure for obtaining a receivership of its properties in order to preserve their value by keeping them in operation. The following questions were thereupon thoroughly investigated, authorities briefed, and proper conclusions reached.
“Whether the usual procedure of initiating the receivership on a bill of complaint signed by a general unsecured creditor having the necessary diversity of citizenship should be followed, the con- * elusion being adverse because the Wisconsin Central, being operated on the credit of the Soo, had no unsecured general creditor except the Soo, whose unsecured claims and diversity of citizenship might be disputed.
“Whether there were sufficient precedents for the Wisconsin Central to petition for the receivership to protect its own properties, the conclusion being adverse.
“Whether the Trustees under the Wisconsin Central First General Mortgage had authority thereunder to petition for the receivership before the default on , their bond interest which would not occur until January X, 1933, the conclusion being adverse.
“Whether an owner of such bonds could petition for the receivership before the default in interest, the conclusion being in the affirmative, provided the necessary diversity of citizenship existed.
“Whether a sufficient controversy would exist between such a bondholder and the Wisconsin Central, in advance of a default on his bonds, to give the Federal Court jurisdiction to appoint a Receiver,' the conclusion being in the affirmative.
“Whether the Soo could properly intervene as a party plaintiff in support of such a bondholder’s application, the conclusion being in the affirmative.
“Whether the primary jurisdiction should be in Wisconsin where the bulk of the properties were situated, or in Minnesota where the principal operating officers were situated, or in Illinois, and the com-, parative advantages or disadvantages to the Wisconsin Central of conducting the receivership in one or another of those jurisdictions.
“The nature and location of the ancillary proceedings which would be necessary.
“The effect of Sec. 56 of the Judicial ■ Code [28 U.S.C.A. § 117] extending the jurisdiction of a District Court in receivership throughout the Circuit in which . it is situated.
“In connection with the foregoing, numerous petitions, pleadings and orders previously used in other railroad receiverships were collected "and analyzed ; and petitioner and his associates compiled in tentative drafts the necessary matter to be alleged in the original plaintiff’s bill of complaint and adopted in the Soo’s petition as an intervening plaintiff.
“The above preparations extended from early in October, 1932, to November 29, 1932, and consumed not less than 425 hours of our time.
“Collaboration With Plaintiff’s Counsel In Establishing This Receivership.
“On November 29th petitioner conferred with counsel for the plaintiff Northwest-era Eire & Marine Insurance Company, submitting the results of the foregoing preparation.
“On November 30th during the day and in the evening we conferred with plaintiff’s counsel on the various questions involved and revisions of the papers to be used.
“On December 1st we spent the entire day until late at' night on these matters in further conferences and revisions of papers.
“On December 2nd, petitioner’s associates continued working on the papers and procuring their execution throughout the day.
“In the afternoon of December 2nd, when plaintiff’s counsel appeared in this Court and submitted the bill of complaint praying for a receivership, petitioner appeared for the Soo as an intervening plaintiff and collaborated in explaining the entire plan and the questions involved. Thereupon the Court appointed the Receiver and authorized him to take possession of the Wisconsin Central properties and agree with the Soo to operate them temporarily as his agent with reimbursement for the deficits.
“That evening we collaborated with the plaintiff’s counsel in preparing the necessary papers for ancillary proceedings in Illinois.
“On December 3rd petitioner and his associate appeared in the Federal Court in Chicago with the plaintiff’s counsel and collaborated in explaining the matter to the Court and obtaining the necessary ancillary orders in Illinois.
“Petitioner’s associate spent December 6th, 7th and 8th in going to and returning from Grand Rapids, Michigan, and collaborating with the plaintiff’s counsel in presenting the situation to the Federal Court in Michigan and obtaining the necessary ancillary orders in that jurisdiction.
“The foregoing services from November 29, 1932, to December 8, 1932, consumed not less than 85 hours of our time.
“Cooperation With The Wisconsin Central Bondholders Respecting Their Intervention As Parties Plaintiff.
“In order to facilitate their intervention in this receivership, petitioner attended numerous conferences in New York with important Wisconsin Central bondholders and mortgage trustees and their counsel, wherein he explained that the receivership was necessary to avoid immediate non-operation of the Wisconsin Central properties; that the arrangement for the Soo to operate as the Receiver’s agent was subject to termination whenever a better arrangement could be made; and that the Soo would cooperate in obtaining an authoritative interpretation of the lease of April 1, 1909, as to the Soo’s right to discontinue meeting the Wisconsin Central deficits, to be followed by whatever retroactive adjustment of obligations might be appropriate.
“Petitioner thus cooperated respecting their intervention at a conference in New York in the morning of December 5, 1932, with the representatives of the mortgage trustees and their counsel and numerous important bondholders; a conference that afternoon with the counsel for the trustees under the First General Mortgage; a similar conference with said counsel in the morning of December 6th; conferences in the afternoon of December 6th with the representatives of Chicago University, Mutual Life Insurance Company and New York Life Insurance Company, as holders of Wisconsin Central bonds; and conferences on December 18th and 19th in New York with counsel for the first mortgage trustees.
“The above services fi’om December 4, 1932, to December 20, 1932, consumed not less than 60 hours of petitioner’s time.
“Services In Preparing A Stipulation Of Facts For The Intervening First Mortgage Trustees.
“In the petitions on which they intervened in this receivership, the First Mortgage Trustees raised the contention that the lease of April 1, 1909, gave the Soo no right to discontinue using its own funds to meet the Wisconsin Central deficits ; wherefore they claimed that the Receiver should not have agreed, as he did in the Operating Agreement, to reimburse the Soo for the deficits it incurred in operating the Wisconsin Central as his agent.
“In order to facilitate the Court’s inter- ■ pretation of the lease, petitioner offered to the counsel for the intervening trustees, and they accepted, his services in preparing for them a stipulation of the facts which they wished to submit to the Court to sustain their interpretation. This stipulation included the ultimate details of transactions between the Soo and the' Wisconsin Central for 23 years from 1909 to 1932; the manner in which the Wisconsin Central had been operated by the Soo during that period; and its available facilities as to equipment, terminals, etc., for independent operations. Preparation of this stipulation necessitated much research into the corporate records ; many conferences with executives; operating and accounting officers; numerous discussions and considerable correspondence with counsel for the intervening trustees. This stipulation was introduced in evidence by counsel for the intervening trustees; facilitated the Court’s decision as to how the lease-should he construed; and saved the estate the expense of taking testimony for many days.
“Our services in preparing that stipulation from April 6, 1933, to May 15, 1933, consumed not less than 175 hours of our time.”
The law governing allowances from an estate for legal services of counsel for some party or parties has been repeatedly announced under a variety of situations. We have examined the following and other cases (including the state case citations in the briefs) without finding any right in appellant to compensation here or any abuse of discretion in denying such compensation here. Some of the cases cited below are under amendments to the Bankruptcy Act but such amendments, obviously, were following the existing equity practice in receiverships. ,
Supreme Court'. — Shulman v. Wilson-Sheridan Hotel Co., 301 U.S. 172, 174, 57 S.Ct. 680, 681, 81 L.Ed. 986, rehearing denied 301 U.S. 714, 57 S.Ct. 921, 81 L.Ed. 1365; Watkins v. Sedberry, 261 U.S. 571, 575, 43 S.Ct. 411, 412, 67 L.Ed. 802; Randolph v. Scruggs, 190 U.S. 533, 538, 23 S.Ct. 710, 47 L.Ed. 1165; Louisville, Evansville & St. L. R. Co. v. Wilson, 138 U.S. 501, 506, 11 S.Ct. 405, 34 L.Ed. 1023; Hobbs v. McLean, 117 U.S. 567, 582, 6 S.Ct. 870, 29 L.Ed. 940; Central Railroad & Banking Co. of Ga. v. Pettus, 113 U.S. 116, 124, 125, 126, 5 S.Ct. 387, 28 L.Ed. 915; Trustees v. Greenough, 105 U.S. 527, 531, 538, 26 L.Ed. 1157; Cowdrey v. Galveston, etc., R. Co., 93 U.S. 352, 354, 23 L.Ed. 950.
This Court:- — West v. Fradenburg, etc., 86 F.2d 318; Teasdale v. Sefton Nat. Fibre Can Co., 85 F.2d 379, 107 A.L.R. 531; Wallace v. Fiske, 80 F.2d 897, 107 A.L.R. 726, certiorari denied Kleinschmidt v. Wallace, 298 U.S. 675, 56 S.Ct. 940, 80 L.Ed. 1397; Morse & Tyson v. Irving-Pitt Mfg. Co., 18 F.2d 692; Culhane v. Anderson, 17 F.2d 559; Hutchinson Box Board & Paper Co. v. Van Horn, 299 F. 424; Priest v. Wells, 282 F. 57; Mecartney v. Guardian Trust Co., 280 F. 64; Mechanics-American Nat. Bank v. Coleman, 204 F. 24; Gillespie v. J. C. Piles & Co., 178 F. 886, 44 L.R.A.N.S., 1; McCourt v. Singers-Bigger, 145 F. 103, 7 Ann.Cas. 287; Frank v. Dickey, 139 F. 744.
First Oircuit: — National City Bank v. Saldana Crosas Realty Corp., 86 F.2d 923, 924; Turner v. Woodard, 259 F. 737, 746.
Second Circuit: — In re Nine North Church St., 89 F.2d 13, certiorari denied Glass & Lynch v. Nine North Church St., 58 S.Ct. 29, 82 L.Ed. —; In re Paramount Publix Corp., 85 F.2d 588, 590, 591, 592, certiorari denied Palmer v. Paramount Pictures, Inc., 300 U.S. 655, 57 S.Ct. 432, 81 L.Ed. 865; In re Paramount Publix Corp., 85 F.2d 592, certiorari denied Palmer v. Paramount Pictures, Inc., 300 U.S. 655, 57 S.Ct. 432, 81 L.Ed. 865; In re Paramount Publix Corp., 85 F.2d 593, 594, certiorari denied Zirn v. Paramount Pictures, Inc., 300 U.S. 656, 57 S.Ct. 432, 81 L.Ed. 865; In re Paramount Publix Corp., 85 F.2d 595; In re Paramount Publix Corp., 85 F.2d 596; In re Paramount Publix Corp., 85 F.2d 597; In re Consolidated Motor Parts, 85 F.2d 579, 581; In re Paramount Publix Corp., 83 F.2d 408; In re New York Investors, Inc., 79 F.2d 182, 186; In re Realty Associates Securities Corp., 69 F.2d 41, certiorari denied Bondholders’ Committee v. Realty Associates Securities Corp., 292 U.S. 628, 54 S.Ct. 631, 78 L.Ed. 1482; In re Consolidated Factors Corp., 59 F.2d 193, 194; In re Eureka Upholstering Co., 48 F.2d 95; Nolte v. Hudson Nav. Co., 47 F.2d 166, 167, 168; In re Diamond Fuel Co., 6 F.2d 773; In re Consolidated Distributors, Inc., 298 F. 859, 862; American Engineering Co. v. Metropolitan By Products Co., 275 F. 40, 42; Central Trust Co. v. U. S. Light & Heating Co., 233 F. 420, 421; In re Medina Quarry Co., 191 F. 815, 816.
Third Circuit: — In re Starrett Corp., 92 F.2d 375; Brown v. Pennsylvania R. Co., 250 F. 513, 524, certiorari denied 248 U.S. 558, 39 S.Ct. 6, 63 L.Ed. 420; Haehnlen v. Drayton, 192 F. 300, 306.
Fourth Oircuit: — Buford v. Tobacco Growers’ Co-op. Ass’n, 42 F.2d 791, 792; Carbon Steel Co. v. Slayback, 31 F.2d 702, 705; Burroughs v. Toxaway Co., 185 F. 435, 440.
Fifth Oircuit: — Straus v. Baker Co., 87 F.2d 401, 407, 408, 409, 410, rehearing, 89 F.2d 322, 324; First Nat. Bank v. Southern Cotton Oil Co., 86 F.2d 33; Snell v. Frank Snell Sawmill Co., 284 F. 847; Id., 261 U.S. 619, 43 S.Ct. 364, 67 L.Ed. 830; Huff v. Bidwell, 195 F. 430, certiorari denied Hall v. Huff, 227 U.S. 677, 33 S.Ct. 328, 57 L.Ed. 700; Lamar v. Hall & Wimberly, 129 F. 79, 82, 83; Weed v. Central of Georgia Ry. Co., 100 F. 162, 164, 166, 167; Burden Central Sugar-Refining Co. v. Ferris Sugar-Mfg. Co., 87 F. 810, 811; Farmers’ Loan & Trust Co. v. Green, 79 F. 222, 224, 226, certiorari denied 166 U.S. 720, 17 S.Ct. 994, 41 L.Ed. 1187; Petersburg Sav. & Ins. Co. v. Dellatorre, 70 F. 643, 645; Jacksonville, T. & K. W. Ry. Co. v. American Const Co., 57 F. 66, 69.
.Sixth Circuit: — Williams v. Great Lakes Terminal Warehouse Co., 87 F.2d 115, certiorari denied 301 U.S. 710, 57 S.Ct 942, 81 L.Ed. 1364; In re Memphis St. Ry. Co., 86 F.2d 891, 894; Calhoun v. Stratton, 61 F.2d 302; In re Kinnane Co.’s Estate, 242 F. 769, 775; In re Stearns Salt & Lumber Co., 225 F. 1, 4; In re Roadarmour, 177 F. 379; Central Trust Co. v. Condon, 67 F. 84, 110.
Seventh Oircuit: — In re Central Shorewood Bldg. Corp., 90 F.2d 725, 727; In re T. L. Smith Co., 83 F.2d 665; In re Grocery Center, 83 F.2d 617; In re National Lock Co., 82 F.2d 600, 605, certiorari denied National Lock Co. v. Rosengard, 299 U.S. 562, 57 S.Ct. 25, 81 L.Ed. 414; In re A. Herz, Inc., 81 F.2d 511, 512, 513; In re Marcuse & Co., 11 F.2d 513; Linen Thread Co. v. A. Booth & Co., 192 F. 515, 517; Guaranty Trust Co. v. Chicago Rys. Co., 185 F. 411, 415; Id., 220 U.S. 616, 31 S.Ct. 720, 55 L.Ed. 611; In re Curtis, 100 F. 784, 785, certiorari denied Wilson v. Dunseth, 179 U.S. 683, 21 S.Ct. 916, 45 L.Ed. 385; In re Sheridan-Melrose Bldg. Corp., 86 F.2d 2.
Ninth Circuit: — Crump v. Ramish, 86 F.2d 362, 363; Oakland Hotel Co. v. Crocker First National Bank, 85 F.2d 959.
Tenth Oircuit: — Clarke v. Hot Springs Electric Light & Power Co., 76 F.2d 918, certiorari denied 296 U.S. 624, 56 S.Ct. 147, 80 L.Ed. 443; In re Otto-Johnson Merc. Co., 48 F.2d 741. | 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 "transportation". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant? | [
"railroad",
"boat, shipping",
"shipping freight, UPS, flying tigers",
"airline",
"truck, armored cars",
"other",
"unclear"
] | [
0
] | songer_respond1_1_4 |
GENERAL DYNAMICS CORPORATION, QUINCY SHIPBUILDING DIVISION, Petitioner, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, United States Department of Labor and Edith S. Murphy, Respondents.
No. 78-1128.
United States Court of Appeals, First Circuit.
Submitted Sept. 7, 1978.
Decided Nov. 7, 1978.
Norman P. Beane, Jr., and Murphy & Beane, Boston, Mass., on brief, for petitioner.
Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Gilbert T. Re-naut, Atty. and Mark C. Walters, Atty., U. S. Dept. of Labor, Washington, D. C., on brief, for respondent, Director, Office of Workers’ Compensation Programs.
David G. Hanrahan and Gilman, McLaughlin & Hanrahan, Boston, Mass., on brief, for respondent, Edith S. Murphy.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
This is an appeal from an order of the Benefits Review Board (Board) of the United States Department of Labor affirming an Administrative Law Judge’s (ALJ) award of death benefits on a claim under the Longshoremen’s and Harbor Workers’ Compensation Act (Act), as amended, 33 U.S.C. §§ 901 et seq. Jurisdiction for this appeal is conferred by 33 U.S.C. § 921(c).
The issue is whether claimant-respondent, Edith S. Murphy, is entitled to the benefits provided by the Act under section 909(b) as the “widow” of James V. Murphy, as that term is defined under section 902(16):
The term “widow or widower” includes only the decedent’s wife or husband living with or dependent for support upon him or her at the time of his or her death; or living apart for justifiable cause or by reason of his or her desertion at such time.
Edith and James Murphy were married on March 4, 1947, and, thereafter, took up residence in Quincy, Massachusetts, where they lived together for seven years. This relationship was abruptly terminated when Murphy decamped after being found in bed at their home with another woman by the respondent. During the period 195A-1957, a pattern emerged in which Murphy would periodically return to live at the Quincy home and then leave again. In 1956, a son, Kevin, was conceived and born to the couple. Six weeks after the boy’s birth, Murphy left home again and never returned to live with his wife. During the following seventeen years, respondent did not see her husband often, although she usually heard from him around Christmas each year. During the last ten years of that period, respondent received no support from her husband, relying instead on employment and public assistance. Murphy was killed on December 27, 1974, in a work-related accident at petitioner’s shipbuilding yard.
Respondent’s status as the legal wife of the decedent is not contested. Petitioner contends, however, that the spouses were not living apart “by reason of his desertion.” The term “desertion” is not defined in the Act and petitioner suggests that this court look to state domestic relations law to determine whether there was, in fact, a desertion at the time of decedent’s death. Petitioner relies on Gibson v. Hughes, 192 F.Supp. 564 (S.D.N.Y.1961), and Powell v. Rogers, 496 F.2d 1248 (9th Cir. 1974), for its position that state law governs the situation. We note that both of those cases presented the question of whether claimant and decedent were legally married, a threshold issue not present in this case. There is no need to refer to state domestic relations law, since the issue here is respondent’s eligibility for benefits under the Act and not the existence of grounds for divorce under state law. Thompson v. Lawson, 347 U.S. 334, 336, 74 S.Ct. 555, 98 L.Ed. 733 (1954).
The application of state domestic relations law, developed in other contexts, to the solution of problems under workmen’s compensation statutes, produces results which at best have only a fortuitous relation to the remedial purposes of the compensation acts, and often are in direct conflict with them. When the state law does provide a definition of marital status deliberately shaped to compensation act purposes alone, there is no reason why that definition should not be applied under the federal statute in preference to one drawn from the state’s general domestic relations law.
Albina Engine and Machine Works v. O’Leary, 328 F.2d 877, 879 (9th Cir. 1964). If we look to the state’s workmen’s compensation statute and case law for guidance, we find that the complete cessation of the husband’s visits to his home without the wife’s consent could be found to be a desertion many years later. Allen’s Case, 318 Mass. 640, 63 N.E.2d 356, 357 (1945).
In Thompson v. Lawson, supra, 347 U.S. 334, 74 S.Ct. 555, 557, the Supreme Court stated, in reference to the precise question of whether one was a “widow” for purposes of the Longshoremen’s and Harbor Workers’ Compensation Act:
Considering the purpose of this federal legislation and the manner in which Congress has expressed that purpose, the essential requirement is a conjugal nexus between the claimant and the decedent subsisting at the time of the latter’s death, which, for present purposes, means that she must continue to live as the deserted wife of the latter.
Id. at 336-337, 74 S.Ct. at 557. The question is whether the requisite “conjugal nexus” could be found to exist seventeen years after the decedent ceased to live with respondent.
Our review of the Board’s decision is limited to “errors of law, including the question of whether the Board adhered to the substantial evidence standard in its review of factual findings” by the ALJ. Bath Iron Works Corp. v. White, 584 F.2d 569 at 574 (1st Cir. 1978). See also Presley v. Tinsley Maintenance Service, 529 F.2d 433, 436 (5th Cir. 1976). Moreover, the Board’s decision supporting the ALJ’s application of a broad statutory term or phrase to a specific set of facts will be upheld if a reasonable factual and legal basis for it exists. Cardillo v. Liberty Mutual Co., 330 U.S. 469, 478-479, 67 S.Ct. 801, 91 L.Ed. 1028 (1947); Bath Iron Works Corp., supra, 584 F.2d at 574.
In his decision, the AU relied on the fact that respondent, after the original separation, had continued to live at the same residence and received telephone and gas bills and filed income tax returns under her married name. The ALJ also relied on respondent’s uncontradicted testimony that she never considered obtaining a divorce, had no marital or meretricious relations with other men, and had not sought support from her husband for fear that he would be arrested. The record, furthermore, supports a conclusion that respondent was willing to resume the marital relationship. Not only did she allow him to stay whenever he returned home during the early years of the separation, but also received his calls each year around Christmas, went out to dinner with him, and accepted visits from him on two occasions as recently as two years before his death.
Our review of the record leaves no doubt that the Board properly adhered to the substantial evidence standard in making its determination that respondent lived as the deserted wife of Murphy up to his death.
Petitioner maintains that the facts lend themselves to the inference that respondent consented to the separation and adopted a separate and independent life-style. Such an inference is far-fetched. Unlike the situation in Thompson v. Lawson, supra, there was no evidence here at all of any attempt or desire by the respondent to terminate the conjugal relationship. But even if such an inference were tenable, “that the facts permit diverse inferences is immaterial; if supported by the evidence, the inferences drawn by the administrative law judge are conclusive.” Bath Iron Works, supra, at 573.
The order is affirmed.
. Mass.Gen.Laws Ann. ch. 152 § 32 provides: The following persons shall be conclusively presumed to be wholly dependent for support upon a deceased employee:
la) A wife upon a husband with whom she lives at the time of his death, or from whom, at the time of his death, the department shall find the wife was living apart for justifiable cause or because he had deserted her. | 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. | What type of court made the original decision? | [
"Federal district court (single judge)",
"3 judge district court",
"State court",
"Bankruptcy court, referee in bankruptcy, special master",
"Federal magistrate",
"Federal administrative agency",
"Special DC court",
"Other ",
"Not ascertained"
] | [
5
] | songer_origin |
Stanley KAHN and Courtney Kahn, co-partners trading as Kahn Brothers, Appellants, v. The MAICO COMPANY, Incorporated, a body corporate of the State of Minnesota, Appellee.
No. 6786.
United States Court of Appeals Fourth Circuit.
Argued June 4, 1954.
Decided Oct. 13, 1954.
Isidore Ginsberg, Baltimore, Md. (Hyman Ginsberg and Ginsberg & Ginsberg, Baltimore, Md., on brief), for appellants.
Stuart S. Janney, Jr., Baltimore, Md. (Robert M. Thomas and Venable, Baetjer & Howard, Baltimore, Md., on brief), for appellee.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PARKER, Chief Judge.
This is an appeal from an order dismissing an action for lack of jurisdiction. The plaintiffs, residents of Maryland, constituted a partnership which held a franchise contract to act as exclusive distributor in certain Maryland counties of hearing aids manufactured by defendant. The action was to recover damages of defendant for alleged breach or wrongful termination of this contract. It was dismissed on the ground that defendant, a foreign corporation, was not doing business in the State of Maryland within the meaning of the applicable Maryland statute, Code Art. 23, sec. 88(a), which provides:
“Every foreign corporation doing intrastate or interstate or foreign business in this State shall be subject to suit in this State by a resident of this State or a person who has a usual place of business in this State, (1) on any cause of action arising out of such business, and (2) on any cause of action arising outside of this State.”
The evidence shows clearly that plaintiffs were more than mere dealers in or distributors of defendant’s products. Defendant was engaged in the manufacture and sale of hearing aids which it advertised and guaranteed to purchasers. It entered into a contract, designated a franchise contract, with plaintiffs under which plaintiffs were given the exclusive right to deal in these aids within certain counties in Maryland. While the contract speaks of the right of plaintiffs to purchase and resell the aids within the territory granted, other provisions of the contract and the evidence adduced at the hearing before the District Judge show clearly that much more than sale and resale were involved and that the business of plaintiffs was in fact controlled and directed by defendant. The prices at which plaintiffs made sales were fixed by defendant. Every sale was made on an order form provided by defendant, was reported to defendant and defendant wrote the purchaser with regard thereto. Advertisements were furnished and paid for by defendant under an arrangement which virtually precluded the use of other advertising by plaintiffs. Inquiries with respect to hearing aids were referred by defendant to plaintiffs, who were required to report to defendant action taken thereon. Plaintiffs were called upon by defendant to make deliveries of hearing aids to government agencies on sales negotiated within the state by another representative of defendant.
Defendant gave a written guaranty on every aid sold by plaintiffs and authorized plaintiffs to make the contract of guaranty in its behalf. It authorized plaintiffs to adjust complaints made under the guaranty, and consigned to plaintiffs repair parts with which to make the adjustments. It required plaintiffs to take out insurance against damages arising out of malpractice in the fitting of hearing aids, for protection of both plaintiffs and defendant, in a company which defendant designated. It had plaintiffs to insure the instruments sold against loss or damage and make report to it with regard thereto. It arranged for purchasers from plaintiffs to finance their purchases through a company with which it contracted. It had its representatives to visit plaintiffs and advise and direct plaintiffs as to the management of their business.
Plaintiffs were authorized to use the defendant’s trade name “Maico” in connection with their business and did so use it, and defendant referred to them in correspondence as “Maico Hearing Service of Baltimore”. They were listed in the telephone directory as “Maico Hearing Service.”
Defendant relies upon the fact that it was not incorporated in Maryland and has never registered or qualified to do business in that state, that its office and factory are in Minnesota and that it has no warehouses and owns no property in Maryland, except small amounts of new parts for hearing aids consigned to the plaintiffs until paid for, that none of its officers or directors live in Maryland and that the goods shipped to plaintiffs by defendant with the exception of the small amount of consigned parts represent outright sales of products, shipped f. o. b. defendant’s factory in Minneapolis. Upon the evidence taken as a whole, however, it is impossible to escape the conclusion that, through the plaintiffs, defendant was advertising and selling its hearing aids in the State of Maryland, that the business was in effect done in defendant’s name and that it was as completely controlled by defendant as it would have been if plaintiffs had been mere selling agents. Furthermore, there can be no doubt but that defendant actually participated in the sales made by plaintiffs, since the guaranty given in connection with the sale of a hearing aid was a part of the sale, and in making the guaranty the plaintiffs were unquestionably acting as agents of defendant. They were also acting as agents of defendant in adjusting complaints made under the guarantees.
On these facts, we think that defendant was clearly doing business in the state within the meaning of the statute. In La Porte Heinekamp Motor Co. v. Ford Motor Co., D.C., 24 F.2d 861, and the very recent case of Thomas v. Hudson Sales Corp., Md., 105 A.2d 225, 228, in both of which jurisdiction was sustained, it was pointed out that, while it did not constitute doing business within the state for a foreign corporation to make sales outside the state to distributors who carried on business therein, even though a district superintendent, might visit them and advise with respect to selling policies, nevertheless such foreign corporation would be held to be doing business within the state if it went beyond this pattern and exercised substantial control over the business of the local distributor. Here the defendant not only controlled the business policies of the distributor, but also regulated the details of the business almost as completely as if the distributor had been an agent in all respects. No one would contend that what was done did not constitute doing business by defendant if plaintiffs had been compensated on a commission basis instead of by discounts allowed from the sale price which defendant fixed; but the method of compensating the one who carries on the business cannot defeat jurisdiction when it appears that it was in reality defendant’s business that was being carried on.
The case is not one where sporadic or occasional transactions are relied on to establish the doing of business within the state; but one in which it is shown that business of defendant was regularly carried on. See Dobie on Federal Procedure pp. 488-489 and opinion of Mr. Justice Peckham in Pennsylvania Lumberman’s Mutual Fire Ins. Co. v. Meyer, 197 U.S. 407, 415, 25 S.Ct. 483, 49 L.Ed. 810. The only question is whether defendant’s connection with the business was established; and we think that it unquestionably was.
In Thomas v. Hudson Motor Corp., supra, which is controlling here, the Court of Appeals of Maryland said that prior decisions of that court were not helpful in the decision of the question there presented which is essentially the question before us, and the court proceeded to base its decision that the foreign corporation was “doing business” in the state within the meaning of that language as used in the Maryland statute largely upon the reasoning in Judge Soper’s decision in La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, and the. later decisions of the Supreme Court of the United States in International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485. The court quoted the following passages from the opinion in the International Shoe Company case in the discussion of what constituted doing business:
“ ‘ * * * due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair ;play and substantial justice’. * * Finally, although the commission of .some single or occasional acts of the corporate agent in a state sufficient to impose an obligation or liability on the corporation has not been thought to confer upon the state authority to enforce it, Rosenberg Bros. & Co. v. Curtis Brown Co., 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372, other such acts, because of their nature and quality and the circumstances of their commission, may be deemed sufficient to render the corporation liable to suit. * * * It is evident that the criteria by which we mark the boundary line between those activities which justify the subjection of a corporation to suit, and those which do not, cannot be simply mechanical or quantitative. The test is not merely, as has sometimes been suggested, whether the activity, which the corporation has seen fit to procure through its agents in another state, is a little more or a little less. * * * to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.’ ”
After quoting the foregoing passages, the court said of the International Shoe Company case:
“This case has been looked upon as announcing a new principle in determining whether a corporation was ‘doing business’ for the purpose of jurisdiction and that suit in the foreign state would not violate the due process clause.”
The Court of Appeals also quoted the following passage from the opinion of Judge Soper in the case of La Porte Heinekamp Motor Co. v. Ford Motor Co., supra:
“ ‘Summarizing this recital of the relations between the Ford Motor Company and the residents of Maryland, who handle its products, it appears that, while the company does not maintain within the state an agent with power to bind it by contract, nevertheless the actual supervision and control exercised by it through its traveling representative is almost as complete as if the dealers were its agents in all respects. The privilege of handling Ford cars and other products is evidently valuable, and, since the company may withdraw it at any time, it is not difficult to prevail upon the dealer to comply with the company’s demands. The work of the local representative in this connection is of substantial benefit to the defendant. He not only stimulates the dealers to do their utmost in distributing the company’s products, but incidentally secures information which enables the company to regulate its output in conformity to the demands of the public. Much of this he accomplishes through an almost daily contact with the various sellers of Ford products within the state; and, when the importance of the problem of distribution in this great business is considered, it becomes clear that the activities of the company within the state, as distinguished from those of the dealers, are not negligible.’ ”
In relying upon the decision in the cases of International Shoe Company v. State of Washington, supra, Perkins v. Benguet Consolidated Mining Co., supra, and La Porte Heinekamp Motor Co. v. Ford Motor Co., supra, when dealing with the question of doing business in the state within the meaning of the Maryland statute, the Court of Appeals of Maryland clearly held that the “doing of business” sufficient to satisfy the due process clause of the federal Constitution was sufficient to satisfy the jurisdictional requirements of Art. 23, sec. 88(a) of the Maryland Code; for it will be noted that the court held on the basis of those decisions, not only that suit in Maryland did not offend the due process clause, but also that the activities relied on constituted doing business within the meaning of the state statute. The court said:
“The exercise by Hudson Sales of the privilege of conducting activities within this State and the benefits and protection of the laws of this State which it enjoys, appear to give rise to the obligations of one who does business here and that it is reasonable and just according to ‘traditional notions of fair play and substantial justice’ to hold that Hudson Sales is ‘doing business’ in Maryland and that suit here does not offend the due process clause. International Shoe Company v. State of Washington, supra; Perkins v. Benguet Consolidated Mining Co., supra; Kilpatrick v. Texas & P. R. Co., supra [2 Cir., 166 F.2d 788]; State v. Ford Motor Co., 1946, 208 S.C. 379, 38 S.E.2d 242; Atlantic National Bank v. Hupp Motor Car Corp., 1937, 298 Mass. 200, 10 N.E.2d 131; Wilson v. Hudson Motor Car Co., D.C.Neb.1928, 28 F.2d 347.” (Italics supplied.)
This is in accord with the spirit of the statute, which is to extend the jurisdiction of the Maryland courts over suits by citizens of the state or contracts made within the state as far as constitutionally possible. Cf. Compania de Astral S. A. v. Boston Metals Co., Md., 107 A.2d 357. It is in accord, also, with the sound public policy that foreign corporations engaging in business in a state either directly or through others should be subject to the jurisdiction of its courts, so that citizens of the state having claims arising out of such business may not be required to resort to the courts of an alien and distant jurisdiction to obtain justice. As said by Mr. Justice Black in his dissenting opinion in Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 669-670, 73 S.Ct. 900, 904, 97 L.Ed. 1331: “A large part of the business in each and every state is done today by corporations created under the laws of other states. To adjust the practical administration of law to this situation the Court in recent years has refused to be bound by old rigid concepts about ‘doing business.’ Whether cases are to be tried in one locality or another is now to be tested by basic principles of fairness, * In this case it is in accord with the basic principles of fairness that this defendant, which has carried on the business of selling its hearing aids in Maryland through the plaintiffs whose business it has controlled and dominated, should be held to answer to plaintiffs in the courts for alleged breach of contract in connection with that business.
For the reasons stated, the order of dismissal for lack of jurisdiction will be reversed and the case will be remanded for further proceedings not inconsistent herewith.
Reversed.
. In the last cited case the court said [105 A.2d 228] : “It appears that manufacturers of automobiles and other manufacturers who have followed more or less the following pattern in foreign states had been held not to be ‘doing business’ in those foreign states. A foreign corporation which has its principal business in another state, sells its products to distributors outside of that state, and the products are shipped f.o.b. with drafts attached. A district superintendent is employed whose territory includes foreign states. He visits distributors and dealers and advises them how to sell the products, how to keep up theii stock of goods, and selects new dealers subject to the approval of the company. All contracts are executed by an officer of the corporation outside of the foreign state, the district superintendent having no authority to finally ratify any contracts. Among cases so holding are Holzer v. Dodge Bros., 1022, 233 N.Y. 216, 135 N.E. 268; Zimmers v. Dodge Bros., D.C.N.D.Ill.1927, 21 F.2d 152; Hinchcliffe Motors, Inc., v. Willys-Overland Motors, Inc., D.C.Mass.1939, 30 F.Supp. 580; Johns v. Bay State Abrasive Products Co., D.C.1950, 89 E. Supp. 654; Harrison v. Robb Mfg. Co., D.0.1953, 110 F.Supp. 848.”
. In the case cited it was held that jurisdiction under Art. 23, sec. 88(d) might he based upon the making of a single contract within the state. Sec. 88(a) was not involved in the decision, but nothing was said therein, which would in any wise limit the breadth of the decision under sec. 88(a) in Thomas v. Hudson Sales Corp., supra. | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's rulings on pre-trial procedure favor the appellant?" This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". | Did the court's rulings on pre-trial procedure favor the appellant? This includes whether or not there is a right to jury trial, whether the case should be certified as a class action, or whether a prospective party has a right to intervene in the case, but does not include rulings on motions for summary judgment. | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
3
] | songer_pretrial |
UNITED STATES of America, Plaintiff-Appellee, v. Albert NEZ, Defendant-Appellant.
No. 79-2247.
United States Court of Appeals, Tenth Circuit.
Sept. 22, 1981.
William W. Deaton, Jr., Federal Public Defender, and R. Raymond Twohig, Jr., Asst. Federal Public Defender, Albuquerque, N. M., for defendant-appellant.
R. E. Thompson, U.S. Atty., and Margo J. McCormick, Asst. U.S. Atty., Albuquerque, N. M., for plaintiff-appellee.
Before SETH, Chief Judge, and PICKETT and SEYMOUR, Circuit Judges.
PER CURIAM.
After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R. App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Albert Nez appeals from a judgment entered on a jury verdict finding him guilty of assault with intent to commit rape in violation of 18 U.S.C. § 1153 and § 2031. In urging reversal, appellant contends that the trial court committed error by limiting cross-examination regarding the complainant’s prior sexual conduct.
We shall set forth the facts only as they are relevant to the issue presented. Late in the evening on May 21, 1979, the complainant was standing on the porch of her sister’s house, waiting for her sister to return. She was approached by two men, appellant and a juvenile named Lorenzo Henry. The two men grabbed complainant by the wrists, took her down to a nearby ditch and raped her.
Complainant returned to her sister’s home and, when confronted by her sister, stated that appellant and Lorenzo had “almost raped me.” In light of complainant’s demeanor and disheveled condition, the sister questioned her more extensively and learned that the rape had actually occurred.
Prior to cross-examination of complainant, appellant was provided with Jencks’ Act material which included a memorandum of an interview given by complainant to a Bureau of Indian Affairs investigating officer. In the memorandum, the investigator reported that the complainant “has had sexual intercourse two times prior since the age of 15. She described both as rapes and did not report the incidents to Police.” Cross-examination of complainant about the prior incidents was interrupted by an objection from the government. Defense counsel stated that:
The question derives from the statement that I just got, and there is a reference there were two prior rapes that this girl was involved with. I am not attempting to impugn her reputation by prior acts of sexual intercourse. I am attempting to show prior rapes that she alleges happened according to this statement.
I am attempting to ascertain the circumstances surrounding those, and how they compare with these.
In a subsequent conference out of the jury’s presence, defense counsel further asserted that the questioning:
was directed to the conversation between the witness and her sister. It was for the purpose of determining whether this witness has confided in her sister about the previous incidents, the two previous incidents.
The district court sustained the government’s objection and thereby precluded appellant from inquiring about the prior incidents on cross-examination. >
The issue presented by this case involves an analysis of Fed.R.Evid. 412, an issue of first impression in this court. Indeed, we have found little federal ease law which interprets this relatively new rule of evidence. We do note, however, that similar state provisions have come under attack recently.
Rule 412 governs the admission of a rape victim’s prior sexual behavior in criminal cases. Under the new rule, reputation or opinion evidence is never admissible. Fed.R.Evid. 412(a). Specific instances of the victim’s prior sexual behavior may be admissible under only three circumstances. First, such evidence may be admitted where the Constitution requires that the evidence be admitted. Fed.R.Evid. 412(b)(1). This provision was apparently intended to obviate attacks on the facial constitutionality of Rule 412(b). Second, evidence of sexual behavior with persons other than the defendant may be admitted where the defendant claims that he was not the source of the semen or injury. Fed.R.Evid. 412(b)(2)(A). Finally, evidence of the victim’s prior behavior with the defendant is admissible where relevant to the defendant’s claim of consent. Fed.R.Evid. 412(b)(2)(B). Procedurally, Rule 412 requires that the defendant tender the proposed evidence in an in camera setting to establish the necessary foundation and to allow the court to weigh the probative value of the evidence against its prejudicial impact. Fed.R.Evid. 412(c).
[I] In this case, appellant did not dispute the act of intercourse nor his involvement therein. In addition, the tendered testimony regarding the victim’s past sexual behavior did not encompass behavior with this appellant. The district court, therefore, properly concluded that the evidence was neither admissible under Rule 412(b)(2)(A) as relevant to the issue of who actually was the source of the semen or injury, nor under Rule 412(b)(2)(B) as past sexual behavior with the accused relevant to the issue of consent.
At no point during the in camera proceeding did appellant specifically offer the evidence pursuant to Rule 412(b)(1), as evidence constitutionally required to be admitted. Appellant’s purpose in seeking to cross-examine the complaining witness about her prior sexual behavior was not clear from the argument or testimony tendered to the trial judge. Appellant’s failure to clearly establish a proper purpose justified the district court’s limitation on the cross-examination.
It is only on appeal that the purpose is clarified to include the “motivation for bringing the charge,” as appellant would now characterize the evidence. He alleges that an inference of the victim’s motive to fabricate the charge is available from evidence showing that the victim would only allege rape when confronted with her actions, by persons in authority. Although the motive or bias of a witness is always a proper subject for examination, see Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), this theory of admissibility was not proffered to the trial court. The attempt on appeal to bolster the necessary foundation is improper. See Fed. R.Evid. 103. Moreover, the tendered argument and testimony did not clearly relate to such a theory of admissibility.
Accordingly, we conclude that the trial court correctly refused to admit the evidence.
AFFIRMED.
. The parties stipulated that the appellant is an Indian and that the acts occurred in Indian territory, thereby bringing the appellant within federal criminal jurisdiction. 18 U.S.C. § 1153.
. See, e.g., People v. McKenna, 585 P.2d 275 (Colo.1978); State v. Blue, 225 Kan. 576, 592 P.2d 897 (1979); Commonwealth v. Joyce, - Mass. -, 415 N.E.2d 181 (1981); State v. Howard, 426 A.2d 457 (N.H.1981); State v. Jalo, 27 Or.App. 845, 557 P.2d 1359 (1976); Commonwealth v. Duncan, 421 A.2d 257 (Pa. 1980); Virginia v. Green, 260 S.E.2d 257 (W.Va.1979). See also Annot., Constitutionality of “Rape Shield” Statutes Restricting Use of Evidence of Victim’s Sexual Experiences, 1 A.L.R. 4th 283 (1980).
. Fed.R.Evid. 412 provides in part:
(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, reputation or opinion evidence of the past sexual behavior of an alleged victim of such rape or assault is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of rape or of assault with intent to commit rape, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is—
(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally required to be admitted; or
(2) admitted in accordance with subdivision (c) and is evidence of—
(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or
(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or assault is alleged. | 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 | What is the nature of the counsel for the appellant? | [
"none (pro se)",
"court appointed",
"legal aid or public defender",
"private",
"government - US",
"government - state or local",
"interest group, union, professional group",
"other or not ascertained"
] | [
2
] | songer_counsel1 |
STANDARD ACC. INS. CO. v. DOIRON.
No. 4356.
United States Court of Appeals First Circuit.
Oct. 29, 1948.
Berge C. Tashjian, of Worcester, Mass., (Frank P. Ryan, of Worcester, Mass., on the brief), for appellant.
Philip J. Murphy, of Worcester, Mass., (John M. Plart, of Worcester, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, and GOODRICH (by special assignment), and WOODBURY, Circuit Judges.
MAGRUDER, Chief Judge.
The only point on this appeal deserving of any comment is a question of collateral estoppel by judgment, which must be determined by the Massachusetts law, since this cause was removed from the Superior Court for Worcester County, Massachusetts, on grounds of diversity of citizenship.
On July 8, 1939, appellee Ralph H. Doiron, while driving his car in the town of Shrewsbury, Worcester County, Massachusetts, accompanied by his wife, suffered a collision with a car driven by one Miriam P. Coulson. As a result Mr. and Mrs. Doiron each received personal injuries, and their car was damaged. Mrs. Coulson at the time of the accident was a household employee of Claire A. Hosmer. The car which Mrs. Coulson was driving was owned by Mrs. Hosmer and registered in her name. Mrs. Hosmer held a liability insurance policy on this car, issued by appellant Standard Accident Insurance Company, pursuant to the provisions of § 34A of C. 90, Mass. Gen.L.(Ter.Ed.). Under the policy, the insurance company contracted to indemnify against liability not only the insured but also any person responsible for the operation of the insured’s motor vehicle with her express or implied consent.
Mr. Doiron brought tort actions in the Superior Court for Worcester County against both Mrs. Coulson and her employer, Mrs. Hosmer, to recover damages for his own personal injuries, for loss of his wife’s services, and for damage to his car. He recovered a judgment in the sum of $4,234.23 against Mrs. Coulson; but his action against Mrs. Hosmer failed, the auditor having found that Mrs. Coulson was not at the time of the accident acting as the servant of Mrs. Hosmer within the scope of her employment. Similarly, Mrs. Doiron sued for the personal injuries suffered by her. She recovered judgment against Mrs. Coulson in the sum of $362.36, but judgment went against her in her action against Mrs. Hosmer.
On February 14, 1946, the judgment in her favor against Mrs. Coulson not having been satisfied, Mrs. Doiron filed in the Superior Court for Worcester County a bill in equity against Standard Accident Insurance Company, to reach and apply the proceeds of the aforesaid insurance policy to the satisfaction of the judgment, as provided in C. 214, §3(10), Mass. Gen.L. (Ter. Ed.). The bill was predicated upon the allegation of fact that Mrs. Coulson was driving the car at the time of the accident with the express or implied consent of the insured, and that therefore the contract of indemnity extended to Mrs. Coulson. This issue of fact was resolved against Mrs. Doiron, and her bill was dismissed by final decree of the Superior Court on July 8, 1947.
When Mrs. Doiron filed her bill in equity, Mr. Doiron at the same time filed in the Superior Court for Worcester County a similar bill against the insurance company to reach and apply the proceeds of the same policy to the satisfaction of his judgment against Mrs. Coulson. Upon petition of the insurance company, this suit was removed to the District Court of the United States for the District of Massachusetts. The insurance company filed its answer and amended answer, denying that Mrs. Coulson was operating the car with the consent of the insured, and further pleading res judicata on the strength of the aforesaid decree of the Superior Court for Worcester County dismissing Mrs. Doiron’s bill to reach and apply. The case came on for trial in the court below on March 5, 1948. The district court, upon sufficient evidence, found as a fact that Mrs. Coulson was driving the car at the time of the accident with the permission of the insured. The court ruled against the insurance company on its special defense, and entered its decree ordering that ' appellee’s judgment against Mrs. Coulson in the sum of $4,234.23 be satisfied out of the proceeds of the insurance policy. From that decree the present appeal has been taken.
We are of opinion that the decree must be affirmed. In Massachusetts, the general rule is recognized “that a judgment, except in proceedings in rem, is without force save as between the parties to it and their privies, even though such judgments involved precisely the same issues.” Jones v. Celia, 1933, 284 Mass. 154,159, 187 N.E. 294,295. That was a suit against an insurance company by one who had been injured in an automobile accident, to reach and apply the proceeds of an insurance policy to the satisfaction of a judgment which the plaintiff had recovered against the operator of a motor vehicle; and the-court held that a judgment in favor of another person injured in the same accident was not res judicata against the insurance company. See also McCarthy v. William H. Wood Lumber Co., 1914, 219 Mass. 566, 107 N.E. 439; McGreevey v. Boston Elevated Ry Co., 1919, 232 Mass. 347, 122 N.E. 278.
The principle applied in Jones v. Celia, supra, is applicable to the case at bar. The respective causes of action of appellee and his wife were entirely distinct and independent, though they arose out of the same accident. Mr. Doiron was not, and did not have to be, joined as a party-plaintiff in the proceeding brought by his wife. Under C. 209, § 6, Mass. Gen.L. (Ter.Ed.), “A married woman may sue and be sued in the same manner as if she were sole”. Any sum recovered by her becomes her exclusive property. Nolin v. Pearson, 1906, 191 Mass. 283, 288, 77 N.E. 890, 4 L.R.A., N.S., 643, 114 Am.St.Rep. 605, 6 Ann.Cas. 658. That there is no privity between husband and wife by virtue of their respective distinct rights of action arising out of a single tortious act is made clear in Erickson v. Buckley, 1918, 230 Mass. 467, 470, 471, 120 N.E. 126, 127, where the court said: “The common-law right of the plaintiff to recover for the expense to which he had been put by reason of the injury to the wife resulting from the negligence of the defendant is indisputable. Kelley v. New York, New Haven & Hartford Railroad, 168 Mass. 308, 46 N.E. 1063, 38 L.R.A. 631, 60 Am.St.Rep. 397; Nolin v. Pearson, 191 Mass. 283, 77 N.E. 890, 4 L.R.A., N.S., 643, 114 Am.St.Rep. 605, 6 Ann.Cas. 658. His right is not consequential upon the right of the wife because it once belonged to her and has been transferred to him. Her rights to damage for injury to person and property under the statutes are independent of his rights to compensation for like injuries, although their individual rights may have a common origin. In the prosecution of their several and independent rights there is no privity in the assertion of their demands; and a judgment in favor of a defendant in' an action brought by either of them is not a bar to an action by the other. Kelley v. New York, New Haven & Hartford Railroad, supra; Duffee v. Boston Elevated Railway, 191 Mass. 563, 77 N.E. 1036; Mulvey v. Boston, 197 Mass. 178, 83 N.E. 402, 14 Ann.Cas. 349; McCarthy v. [William H.] Wood Lumber Co., 219 Mass. 566, 570, 107 N.E. 439. ‘The actions are as independent of each other as are two actions founded on a collision of two teams, caused by the negligence of the defendant, one brought by the driver, a servant of the owner of the team, to recover for his personal injuries, and the other by the owner, to recover for damages to his horses and wagon. The defendant’s liability for the damages in the two cases depends upon the same facts, but there is no privity between the plaintiffs. Each is enforcing an independent right.’ Knowlton, C.J., in Duffee v. Boston Elevated Railway, supra.”
The foregoing is specifically reaffirmed in Thibeault v. Poole, 1933, 283 Mass. 480, 484, 485, 186 N.E. 632.
It is to be noted that the quotation above from Erickson v. Buckley was made with reference to a wife’s right of action for personal injuries and her husband’s right of action for consequential damages sustained by him as a result of such injuries to his wife. If there is no privity between husband and wife in this situation, for purposes of res judicata, a fortiori there is no such privity in the case at bar where the husband also has a right of action for his own personal injuries, and for property damage sustained by him, arising out of the same accident.
Appellant relies particularly on Wright v. Schick, 1938, 134 Ohio St. 193, 16 N.E.2d 321, 121 A.L.R. 882. In that case A and B (not husband and wife, apparently), were injured in the same accident due to the negligence of C, who had a liability insurance policy. A and B severally recovered judgments against C. A brought suit against the insurance company to reach and apply the proceeds of the policy to the satisfaction of his judgment; and in that proceeding C, the insured, was joined as a party-defendant, as required by the Ohio statute. The insurance company’s defense was that the policy was no longer in effect at the time of the accident. On this issue, the insurance company and the insured, though nominally aligned together as parties-defendant, had adverse interests; and, in fact, the insured’s testimony was strongly against the company on that issue. Judgment went against the company in favor of A in this proceeding, upon a determination that the policy was still in effect. In a parallel suit against the insurance company to reach and apply, brought by B, the other judgment creditor, C, the insured, again being joined as codefendant, the Supreme Court of Ohio held that the insurance company was precluded by the judgment in the suit brought by A from again raising the defense that the policy was not in effect at the time of the accident. The court explained that B thus incidentally obtained the benefit of a prior adjudication in a suit to which he was not a party, in order that C, the insured, could have the benefit of res judicata as between himself and the insurance company. As previously stated, C and the insurance company were in effect adverse parties in the prior proceeding on the issue whether the insurance policy had been forfeited prior to the accident. That issue having been determined in the affirmative, the insured was entitled to indemnity from the insurance company as against both judgment creditors. Parenthetically, the 'court seems to have implied that, if it had been determined in A’s suit against the insurance company that the policy was not in effect, this adjudication would not have operated by way of collateral estoppel against the other judgment creditor in his separate suit. We think the case of Wright v. Shick on its facts is readily distinguishable from the case at bar, for here the insured herself was held not liable in the tort actions and was not a party to the suits in equity against the insurance company brought by the respective judgment creditors of the operator of the car. But whether the case is distinguishable or not, and whether or not it was correctly decided, Wright v. Schick is not now controlling because in the present case we must apply the Massachusetts law. We are satisfied, from the Massachusetts cases above cited, that collateral estoppel would not be recognized-in the courts of Massachusetts as an available defense to the insurance company under the circumstances appearing in this record.
One consideration has given us some pause. In American Law Institute Restatement of Judgments, § 84, the following rule is stated: “A person who is not a party but who controls an action, individually or in cooperation with others, is bound by the adjudications of litigated matters as if he were a party if he has a proprietary or financial interest in the judgment or in the determination of a question of fact or of a question of law with reference to the same subject matter or transaction; if the other party has notice of his participation, the other party is equally bound.”
It is explained in the comment that a person is entitled only to one adjudication of a cause of action or of an issue where he has control of the proceedings under the circumstances stated in the rule; and that it is not unfair to such a person that the judgment or the adjudication should determine the existence and the extent of his interests which are dependent upon the determination of issues in the action leading to the judgment. We take it that this general rule in substance is recognized and applied in Massachusetts. Weld v. Clarke, 1911, 209 Mass. 9, 95 N.E. 651.
Now it is of course true that Mr. Doiron had a “financial interest” in the determination of the question of fact which was at issue in his wife’s bill in equity to reach and apply, namely, whether Mrs. Coulson was operating the car at the time of the accident with the consent of the insured. That was the very question which Mr. Doiron would have to establish in the affirmative in order to have recourse to -the proceeds of the insurance policy for the satisfaction of his own judgment against Mrs. Coulson. Therefore, if Mr. Doiron had controlled or participated in the control of the suit by his wife against the insurance company, it may well be that under. the Massachusetts law he would now be barred by the adverse decree in that case from relitigating the same issue of fact. But, making this assumption, the burden would be on the insurance company to establish Mr. Doiron’s participation in and control of the other suit. This the company has failed to do. That such participation and control is not to be presumed from the mere relation.of husband and wife is the necessary implication from the holding in Duffee v. Boston Elevated Ry. Co., 1906, 191 Mass. 563, 77 N.E. 1036. See Thibeault v. Poole, supra. And it is not of controlling significance that husband and wife were represented by the same counsel in their respective proceedings.
We do not know what considerations of strategy led the insurance company to remove the present case to the federal court, while leaving the companion case of the wife to be litigated in the Superior Court. The two cases would otherwise presumably have been tried together in the Superior Court, and decided there the same way. No doubt appellant now regrets that this was not the course followed. But appellant has made its bed and now will have to lie in it.
The judgment is affirmed. | 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. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
0
] | songer_usc1 |
Oma Belle DAY, Plaintiff-Appellant, v. Walter J. HICKEL, Secretary of the Interior of the United States, et al., Defendants-Appellees.
No. 71-1866.
United States Court of Appeals, Ninth Circuit.
April 10, 1973.
W. C. Arnold (argued), Anchorage, Alaska, for plaintiff-appellant.
Bradford F. Whitman, Washington, D. C. (argued), G. Kent Edwards, U. S. Atty., Anchorage, Alaska, Shiro Kashiwa, Asst. Atty. Gen., Edmund B. Clark, Dept, of Justice, Washington, D. C., for defendants-appellees.
Before MERRILL, DUNIWAY and TRASK, Circuit Judges.
TRASK, Circuit Judge:
The district court by summary judgment upheld a decision of the Secretary of the Interior which rejected appellant’s application for certain lands near Valdez, Alaska, made under the Color-of-Title Act, 43 U.S.C. § 1068. Review by the district court was properly made pursuant to 5 U.S.C. § 704 and this court eyes it under 28 U.S.C. § 1291. We affirm.
On the south side of Port Valdez and to the west of the town of Valdez, Alaska, a spit of land which looks to be less than twenty acres in area extends north-westerly into the waters of the port. A narrow neck of earth connects it with the mainland. The tip of this arm of land which is Jackson Spit, is called Jackson Point.
The mainland near the spit was formerly an army post, Fort Liscum, and since its abandonment has been public domain subject to the patent applications herein described.
In 1929, Andrew S. Day, deceased husband of Oma Belle Day, appellant herein, filed a homestead claim in the District Recording Office at Valdez, Alaska, pursuant to the Act of March 3, 1903, ch. 1002, 32 Stat. 1028, as amended 48 U.S.C. § 371 (1970). This claim included a 50-acre corridor of land to the west of appellant’s present homestead, but the claim was never perfected.
The Day family carried on canning operations at Jackson Point for a number of years and constructed a road across the neck, from their mainland holding to the point. Walter Day, son of Andrew, began patent proceedings on the land constituting the western half of Jackson Spit, but abandoned them when he learned the parcel had been patented to one Green or Greenbaum. He later purchased that patent covering the western half of the spit.
Mrs. Day cultivated a garden on the eastern half of the spit and the Days operated a small sawmill there. This eastern half of approximately nine acres is a part of the land claimed in this proceeding and is referred to as Tract One.
In 1950, Andrew Day refiled his homestead claim (160 acres) in the Anchorage Land Office. Appellant contends that this refiling was intended to extend west to a point where appellant’s refiled claim would have coincided with the western boundary of the unperfected 1929 patent application and would have given access along the road to Jackson Spit. In fact, it left a corridor of land consisting of 50 acres between the westerly boundary of the new homestead claim and the westerly boundary of the claim as originally filed. This is the other parcel of the land to which appellant has laid claim under the Color-of-Title Act and is referred to as Tract Two. The total claim involved is some 59 acres. Appellant contends that she was unaware of the discrepancy in the western boundary of the later homestead claim although its boundaries were clearly marked, until the state filed an application for a selection of it. She then filed a color-of-title application under 43 U.S.C. § 1068, and in a separate case, a protest to the state selection.
This application for patent was perfected and a patent issued to Mrs. Day for 160 acres.
The Color-of-Title Act, as amended, 43 U.S.C. § 1068, provides in part:
“The Secretary of the Interior (a) shall, whenever it shall be shown to his satisfaction that a tract of public land has been held in good faith and in peaceful, adverse, possession by a claimant, his ancestors or grantors, under claim or color of title for more than twenty years, and that valuable improvements have been placed on such land or some part thereof has been reduced to cultivation issue a patent for not to exceed one hundred and sixty acres of such land .” (Emphasis added.)
The Code of Federal Regulations provides in part:
“A claim is not held in good faith where held with knowledge that the land is owned by the United States. . . .” 43 C.F.R. § 2540.0-5(b)
In the administrative proceeding which was lodged with the trial court, the Director of the Bureau of Land Management noted that the claims of adverse possession asserted by appellant in support of her color-of-title application were (1) a homestead location made by her deceased husband but never perfected; (2) a trade and manufacturing site location notice filed by Walter Day for land west of Tract One; and (3) a revised homestead application upon which a patent was issued for 160 acres to appellant for United States Survey No. 3328, and lying east of Tract Two. Physical acts of possession asserted consisted of cultivation of a small garden on Tract One, and use of a sawmill there which was later removed to the patented portion of Jackson Spit. Color-of-title possession was also asserted by the construction of a road across Tract One to appellant’s cannery on Jackson Point.
The Director of the Bureau of Land Management determined that the unperfected patent of Mr. Day could not, establish rights and that the subsequent patent to Mrs. Day for 160 acres which did not include Tract Two would constitute a bar to any claim based upon a prior unperfected patent entry. The trade and manufacturing site location was entirely within the land already patented on Jackson Spit, and thus no rights could be based upon it. No proceedings were taken to include the lands used for a sawmill or garden outside the patented land at Jackson Spit and the trade and manufacturing location was closed for failure to take action. The patent for the 160 acres under United States Survey No. 3328 was clearly monumented on the ground and there was, therefore, no basis or merit to the claim of appellant that she believed her patent to include the adjacent Tract Two. Finally, the use of a public domain right-of-way to construct an access road to one’s patented land does not constitute a use adverse to the United States because it was in recognition of the government ownership. The Secretary approved the Director’s findings and denied the col- or-of-title application.
In the trial court the appellee filed a motion for summary j'udgment recognizing the factual claims of Mrs. Day but asserting that they did not create a genuine issue of fact and that appellee was entitled to judgment as a matter of law. The only opposing affidavit was that of the appellant and was not sufficient in form or content to raise an issue of fact. The court found the facts as the plaintiff asserted them to be, but concluded, as a matter of law, that the appellee should have judgment. The appellant’s mistaken beliefs as to boundary could not. fulfill the requirement of good faith possession where the boundaries of her patent were clearly marked and there was no evidence of actual occupancy of Tract Two.
The history of the Act discloses that as originally enacted in 1928 (Act of December 22, 1928, ch. 47, § 1, 45 Stat. ,1069), the Color-of-Title Act provided that when the proper conditions existed “the Secretary may, in his discretion . ” issue a patent.
As indicated by S.Rep. No. 732, 70th Cong., 1st Sess. (1928), accompanying the bill, the purpose of the Act was to authorize the Secretary to deal with “eases . . . where lands have been held and occupied in good faith for a long period of time under a chain of title found defective . . . .” (Emphasis added). No mention was made of eases of possession of land where there was no such chain of title. Thus, the history would indicate that there should be excluded from the intent of the Act, land adversely possessed by one who knew that the title was in the United States, but who had no chain of title to it.
The 1928 Act was amended in 1953 to read as it now does. The legislative history of the amendment indicates that its purpose was to make mandatory what had been discretionary with the Secretary.
“Existing law permits the Secretary of the Interior to issue a patent at his discretion for not more than 160 acres of public land, upon payment of not less than $1.25 per acre, if he is satisfied that the land has been held in good faith and in peaceful, adverse possession by the claimant, his ancestors, or grantors, under claim or color of title for more than 20 years, and that valuable improvements have been placed on the lands or some part thereof has been reduced to cultivation. This bill would make mandatory the issuance of patents in such cases and create a vested right in the land on the part of the setter with a genuine eolor-of-title claim which meets the requirements.” S.Rep. No. 588, 83rd Cong., (1953), 1953 U.S.Code Cong. & Adm.News at pp. 2014, 2015.
There having been no change in the claim or color of title requirements, it is not an unreasonable interpretation by the Secretary that possession of lands by one who knows the title is in the United States does not constitute a claim of title which is sufficient under the Act. The Secretary’s decisions have followed that interpretation. Lester J. Hamel, 74 I.D. 125, 129 (1967); Nora Beatrice Kelley Howerton, 71 I.D. 429, 434 (1964). In Howerton, the Secretary stated:
“Further, even though land may have been occupied, improved, and held by someone else in good faith for more than 20 years under color of title, if a person acquiring the land is aware that title is in the United States, it has been held that he is lacking in good faith and has no right to a patent under the Color of Title Act. Anthony S. Enos, 60 I.D. 106 (1948) and 60 I.D. 329 (1949); Clement Vincent Tillion, Jr., A-29277 (April 12, 1963).” 71 I.D. at 434.
The Supreme Court has held that great deference should be given to the construction of a statute by an administrative agency, Udall v. Tallman, 380 U. S. 1, 16, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). That seems particularly apposite in this case.
Appellant relies heavily on Coleman v. United States, 363 F.2d 190 (9th Cir. 1966), reversed on other grounds, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170, rehearing denied, 391 U.S. 961, 88 S.Ct. 1834, 20 L.Ed.2d 875 (1968).
“It has long been established that a qualified entryman upon public lands of the United States, whether as a locator of a mining claim, as a homesteader, or as one asserting rights under others of the multifarious laws governing entries on public lands, who perfects his entry by compliance with the applicable Act of Congress, thereby acquires a right to the land as against the sovereign itself, as well as third persons.” 363 F.2d at 196.
The Court says nothing in particular about the Color-of-Title Act. It does say that one “who perfects his entry by compliance with the applicable Act of Congress” acquires a right to the land. Appellant’s difficulty is that she has not established her compliance with any applicable Act of Congress.
Under her color of title application Mrs. Day stated she was also making application pursuant to 43 U.S.C. § 1431 (Sale of Lands Subject to Unintentional Trespass); 43 U.S.C. § 1171 (Sales of Isolated Tracts); 43 U.S.C. § 682a (Sale of Small Tracts for Residence, Recreation, Business or Community Site Purposes) ; and 48 U.S.C. § 461 (Purchases for Trade or Manufacture). The Director in his decision of December 3, 1969, which was approved by the Secretary, referred to a trade and manufacturing site location notice which described a parcel of land entirely within United States Survey No. 348 which was already patented and subsequently acquired by the Days from the patentee. That claim would lend no support to the contentions made here.
However, the color of title application also was based upon umbrella claims encompassing several of the other statutory provisions for sales of public lands including a trade and manufacturing claim. The trial court in its Amended Memorandum of Decision and Order disposed of these claims by stating in its Conclusion of Law No. 8:
“8. Applications to purchase public land pursuant to 43 U.S.C.A. §§ 682a, 1171 and 1431 (1964) are not raisable in a Color of Title application and the validity of the Director’s decision is in no way affected by his failure to discuss the merits of those claims.” C.T. at 123.
No authority is cited to either statute or regulation for this conclusion. Certainly as a matter of the orderly filing and processing of claims, an application under a color of title claim is not the place to tuck in an omnibus claim based on four other unrelated sections.
The Secretary’s regulations in many cases require separate applications for each type of entry (43 C.F.R. § 2562.-1(b) for trade and manufacture), specifying in the form the particular information required to support that individual application. Here the information to support the catch-all claims was designated by the reference “see attachment.” The attachment was a lengthy statement directed to the color of title application. A review of appellant’s statement in the light of the statutory requirements for each of the four claimed entries raises substantial doubt as to its sufficiency. The trial court did not consider these claims bn their merits, and found that the Director and Secretary did not either. We therefore decline to pass upon them until they have been properly presented and considered below.
The record indicates there is a competing state selection for a part or all of the lands in controversy. Whether another application or applications under the four collateral sections would be timely, is a matter we also do not reach.
Appellant claims an interest in a right-of-way for road purposes. It is undisputed that she or her husband constructed a road between their mainland patent over the neck, across public domain to Jackson Point. No reference was made to this claim in the color of title application which has ripened into this litigation. No charge has been made that the United States has closed or threatened to close the portion of the road over public land. Should it do so, appellant might then complain. United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D.Nev.1963). We express no opinion on that question here.
A sketch not drawn to scale is attached for purposes of illustration.
The judgment is affirmed.
. The validity of this protest is not before us in this proceeding. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant. | This question concerns the second listed respondent. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant? | [
"cabinet level department",
"courts or legislative",
"agency whose first word is \"federal\"",
"other agency, beginning with \"A\" thru \"E\"",
"other agency, beginning with \"F\" thru \"N\"",
"other agency, beginning with \"O\" thru \"R\"",
"other agency, beginning with \"S\" thru \"Z\"",
"Distric of Columbia",
"other, not listed, not able to classify"
] | [
0
] | songer_respond2_3_2 |
GOULD v. GREEN.
No. 8614.
United States Court of Appeals, District of Columbia.
Decided Feb. 28, 1944.
Mr. William H. Collins, of Washington, D. C., for appellant.
Mr. Charles B. Murray, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. C., was on the brief, for appellee.
Before GRONER, Chief Justice, and MILLER and EDGERTON, Associate Justices.
MILLER, Associate Justice.
Appellant was sentenced on May 13, 1938, in the District Court of the United States for the District of Columbia, to a term of from two to five years, following conviction of a felony, namely, the interstate transportation of stolen property. He served this sentence in penal institutions of the District of Columbia, and was released on January 17, 1942, after having served his maximum sentence, less a good conduct allowance, as provided by law, which amounted to 480' days. The Board of Indeterminate Sentence and Parole for the District of Columbia imposed conditions of release, which were violated by appellant, as a result of which he was recommitted. Appellant sought a writ of habeas corpus, which was denied by the District Court. This appeal is from the order of the District Court discharging the writ of habeas corpus, dismissing the petition and remanding appellant.
The sole question of the case is whether the District of Columbia Board has power under the law to impose conditions upon the release of a prisoner who has served the full time of his sentence less deduction for good conduct, and in the event of violation of those conditions, to recommit him to serve out the balance of his term. Decision of this question involves interpretation of the several statutes, which provide for deduction of time for good conduct, and which define the powers of the District of Columbia Board, and the federal Board of Parole.
The Act of March 3, 1875, as amended in 1902, provides that each prisoner convicted of any offense against the laws of the United States for a definite term other than for life, whose record of conduct shows that he has faithfully observed all the rules and has not been subjected to punishment “shall be entitled to a deduction from the term of his sentence * * * ” for a certain number of days each month depending upon the length of the sentence imposed. This law has been interpreted to mean that such a prisoner earns such deductions and is entitled to them as a matter of right.
Thereafter, in 1910, Congress created a Board of Parole and empowered it to release prisoners upon a showing “that there is a reasonable probability that such applicant will live and remain at liberty without violating the laws * * * if in the opinion of the board such release is not incompatible with the welfare of society * * In this Act it was provided that the Board of Parole could prescribe terms and conditions governing the conduct of paroled persons until the expiration of the term or terms specified in their sentences less such good conduct allowance as provided by law.
In 1932, this law was changed in two important respects: (1) It was provided, that any prisoner paroled under authority of the parole laws, should continue on parole until the expiration of the maximum term without deductions of time for good conduct; and (2) it was provided, that any prisoner who shall have served the term for which he is sentenced less deductions allowed therefrom for good conduct shall upon release “be treated as if released on parole and shall be subject to all provisions of law relating to the parole of United States prisoners * *
In the same year, 1932, Congress provided for a separate board in the District of Columbia, and that the federal Board of Parole should no longer have jurisdiction over prisoners “confined in the penal institutions of the District of Columbia * * *.”
It is clear from the foregoing legislation that the federal Board of Parole-has power to impose conditions upon the-release of a prisoner, not only when he is. released upon parole, but when he is released upon the expiration of his maximum term less deductions for good conduct. This being true, if the appellant in the present case had been confined in a federal institution there would have been no question; of the power of the federal Board of Parole to impose conditions upon his release- and to order his recommitment for violation thereof. The only question of the caséis whether the District of Columbia Board-has similar power. The controversy upon, this point arises from the following facts The law which expanded the power of the - federal Board of Parole in such manner as-, to give that Board power to impose conditions upon the release of a prisoner follow-. ing the expiration of his maximum term,. less deductions for good conduct, and to order his recommitment for violation of those conditions, was passed on June 29, 1932, and; became effective on July 29, 1932. On the other hand, the Act creating the District of Columbia Board became effective on July 15, 1932, approximately two weeks before the effective date of the Act expanding the power of the federal Board of Parole. It is this hiatus of approximately two weeks between the effective dates of the two acts which presents the problem of the present case.
The District of Columbia.Board looks for its power to Section 9 of the Act which created it, and which section reads as follows : “Seo. 9. Upon the appointment of the members of said board, the powers of the existing parole board [the federal board] over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powers of said existing parole board [the federal board] under the authority of the Act .of Congress approved June 25, 1910, entitled ‘An Act to parole United States prisoners, and for other purposes,’ as amended, over said prisoners confined in the penal ■institutions of the District of Columbia .shall be transferred to and vested in said '¡Board of Indeterminate Sentence and Parole : Provided, however, That in the case .of a prisoner convicted of felony com¡mitted prior to the effective date of this Act, and in the case of any prisoner convicted of misdemeanor when the aggregate .sentence imposed is in excess of one year, said Board of Indeterminate Sentence and Parole may parole said prisoner, under the provisions of this Act, after said prisoner has served one-fifth of the sentence imposed.” (Italics supplied in part; words within brackets supplied.)
Appellant’s contention in this case ■requires, for its support, an interpretation of the several statutes above referred to, that the newly created' District of Columbia Board received only those powers of the ■federal Board of Parole which existed in ■that Board over prisoners confined in the -penal institutions of the District of Columbia at the time the District Act became ef■jf^ctive. Appellee, on the other hand, con-teijds that the newly created District of Columbia Board received such powers over .prispners confined in the penal institutions [of tl},e District as existed in the federal ¡Board of Parole upon the date of the ap- . pointnjent of the members of the District , of Columbia Board.
We have concluded that appellee’s contention is correct. It seems obvious that Congress used words deliberately intended to prevent any hiatus in the exercise of powers by the two boards over District prisoners. If Section 9 of the District Act had said, “upon the effective date of this Act, the powers of the federal board shall cease, and all its powers shall be transferred to and vested in the District of Columbia Board,” then there would have been room for appellant’s argument. However, by providing for a transfer of powers “Upon the appointment of the members * * * ” of the District of Columbia Board, the difficulty was avoided; the new Board took up exactly where the old Board left off and, from the moment of their appointment, the members of the new Board were immediately vested with all the powers possessed by the federal Board over District prisoners in District institutions. The fact is that the new District of Columbia Board was not appointed until August 30, 1932. At that time, there can be no doubt, the federal Board was possessed of the expanded powers provided by the federal Act. Consequently, there can be no doubt that the District of Columbia Board, upon its creation, by appointment of its members, was authorized to exercise the same powers over prisoners confined in District of Columbia penal institutions; even though the District Act did not in terms refer to conditional release of non-paroled prisoners.
Appellant contends further, in support of his position, that upon the date of its appointment in August, 1932, the District of Columbia Board had no prisoners upon whom to operate, and could have none, until prisoners had been convicted thereafter and had served at least a minimum of four months in the penal institutions of the District. However, this argument is effectively rebutted by the concluding sentence of Section 9 of the District Act, which provides expressly that the Board may exercise its powers “in the case of a prisoner convicted of felony committed prior to the effective date of this Act, and in the case of any prisoner convicted of misdemeanor when the aggregate sentence imposed is in excess of one year * *
But, entirely apart from any such technical considerations, we think the intent of Congress is clearly revealed, in these several acts, to provide a uniform administration of the federal and District laws with respect to the control of released prisoners. There is no reason to impute to Congress an intention to retain for the administration of justice in the District of Columbia a method of treatment for released prisoners which was devised more than a half century ago, while providing for the rest of the country a method of treatment more consistent with the results of scientific study by penal authorities during the years which have intervened. To disregard the obvious import of the language of Section 9 of the District Act, which provides expressly for a transfer of powers from one Board to the other, in favor of an interpretation which depends upon the chance happening that one of twocopending bills received legislative approval before the other, does not impress us as-being either persuasive or plausible. This-is especially true in view of the fact that no legislative history has been produced to reflect such a legislative intent.
Affirmed.
Act of June 21, 1902, 32 Stat. 397, 18 U.S.C.A. §710.
Story v. Rives, 68 App.D.C. 325, 330, 97 F.2d 182, 187; King v. United States, 69 App.D.C. 10, 12, 98 F.2d 291, 293; Douglas v. King, 8 Cir., 110 F.2d 911, 913, 127 A.L.R. 1200; Clark v. Surprenant, 9 Cir., 94 F.2d 969, 973.
Act of June 25, 1910, 36 Stat. 819, 18 U.S.O.A. §§ 715, 716.
Act of June 29, 1932, 47 Stat. 381, 18 U.S.O.A. § 716a.
Act of June 29, 1932, 47 Stat. 381, 18 U.S.C.A. § 716b.
Act of July 15, 1932, 47 Stat. 696, D. C.Code, 1940, § 24-201.
Act of July 15, 1932, 47 Stat. 696, 698, D.C.Code, 1940, § 24—208.
Story v. Rives, 68 App.D.C. 325, 97 F.2d 182.
Act of July 15, 1932, 47 Stat. 696, 698, D..C.Code, 1940, § 24—208.
47 Stat. 381, 18 U.S.C.A. §§ 716a, 716b. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense". | What is the specific issue in the case within the general category of "criminal - state offense"? | [
"murder",
"rape",
"arson",
"aggravated assault",
"robbery",
"burglary",
"auto theft",
"larceny (over $50)",
"other violent crimes",
"narcotics",
"alcohol related crimes, prohibition",
"tax fraud",
"firearm violations",
"morals charges (e.g., gambling, prostitution, obscenity)",
"criminal violations of government regulations of business",
"other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)",
"other state crimes",
"state offense, but specific crime not ascertained"
] | [
16
] | songer_casetyp1_1-3-2 |
Floyd FRANK, Petitioner-Appellant, v. Sally B. JOHNSON, Respondent-Appellee.
No. 1331, Docket 91-2332.
United States Court of Appeals, Second Circuit.
Argued April 28, 1992.
Decided July 10, 1992.
Jonathan C. Scott, Northport, N.Y., for petitioner-appellant.
Jonathan Frank, Asst. Dist. Atty., Brooklyn, N.Y. (Charles J. Hynes, Dist. Atty., Jay M. Cohen, Asst. Dist. Atty., on the brief), for respondent-appellee.
Before; MESKILL, Chief Judge, TIMBERS and NEWMAN, Circuit Judges.
JON 0. NEWMAN, Circuit Judge:
Litigants wishing to object to the recommendations of a magistrate judge, submitted in a report to a district judge, have ten days after being served with the report. 28 U.S.C. § 636(b)(1) (1988). Failure to object within the allotted ten days results in a waiver of further judicial review. Thomas v. Arn, 474 U.S. 140, 155, 106 S.Ct. 466, 474, 88 L.Ed.2d 435 (1985); McCarthy v. Manson, 714 F.2d 234, 237 & n. 2 (2d Cir.1983). In Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989) (per curiam), this Court held that the waiver rule would be invoked against pro se litigants only if a magistrate judge’s report (a) informs the pro se litigant that the failure to object to the report within ten days will result in the waiver of further judicial review and (b) cites pertinent statutory and civil rules authority. This appeal raises the narrow issue whether a non-material omission from the notice requirements of Small may be disregarded by a district court in declining to consider a late objection to a magistrate judge’s report.
The issue arises on the appeal of Floyd Frank from the June 19, 1991, judgment of the District Court for the Eastern District of New York (Reena Raggi, Judge), denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 (1988). Because we hold that a non-material omission from the notice required in the magistrate judge’s report does not relieve the pro se litigant of the obligation to file timely objections to the report in order to preserve further judicial review, we affirm.
Facts
Following a jury trial in absentia, Frank was convicted of Criminal Possession of a Controlled Substance in the Second Degree, in violation of N.Y.Penal Law § 220.18[1] (McKinney 1989). After exhausting his available state remedies, see People v. Frank, 161 A.D.2d 794, 556 N.Y.S.2d 368 (2d Dep’t), appeal denied mem., People v. Frank, 76 N.Y.2d 939, 563 N.Y.S.2d 69, 564 N.E.2d 679 (1990), Frank filed a pro se habeas petition. Judge Raggi referred the matter to Magistrate Judge Allyne Ross.
The Magistrate Judge issued a report and recommendation dated May 9, 1991, recommending that the petition be denied in its entirety. The report also contained the following explicit warning concerning the need for a timely objection:
Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 10 days of the receipt of this report. Failure to file objections within the specified time waives the right to appeal the district court’s order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.Pro. 6(a), 6(e); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir.1989).
The petitioner, still acting pro se, failed to file an objection within the ten day period, and the record does not reveal any subsequently filed objections. Because no objection was filed in a timely manner, the District Judge denied the petition substantially for the reasons stated by the Magistrate Judge. A certificate of probable cause was denied by the District Court also for failure to object to the magistrate judge’s report, but this Court subsequently granted the certificate.
Discussion
A party must serve and file any objections to a magistrate judge’s proposed findings and recommendations within ten days after being served with the report. 28 U.S.C. § 636(b)(1) (1988). We have adopted the rule that failure to object timely to a report waives any further judicial review of the report. See Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir.1988); McCarthy v. Manson, 714 F.2d at 237 & n. 2. The objection is considered waived, however, only if the party had received “clear notice” of the consequences of the failure to object. See Thomas v. Arn, 474 U.S. at 155, 106 S.Ct. at 475. To alleviate the unreasonable burden placed on a pro se litigant by a waiver rule found only in case law, this Court requires the magistrate’s report to warn the pro se litigant of the consequences of the failure to object. Specifically, the report must state that the “failure to object to the report within ten (10) days will preclude appellate review” and must “specifically cite[] 28 U.S.C. § 636(b)(1) and rules 72, 6(a) and 6(e) of the Federal Rules of Civil Procedure.” Small v. Secretary of Health and Human Services, 892 F.2d at 16 (2d Cir.1989); see also Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) (collecting cases adopting special notice requirement for pro se litigants).
Though Magistrate Judge Ross's report failed to cite Fed.R.Civ.P. 72 as required by Small, we find that the report complied with its requirements in all material respects. The failure to cite Rule 72 was not a material omission due to the clear notice otherwise provided in the report. Rule 72(b) reiterates the statutory requirement of 28 U.S.C. § 636(b)(1), and provides that a party must file and serve any objection to a magistrate judge’s recommended disposition of a prisoner petition within ten days of being served with a copy of the report. Although Magistrate Judge Ross’s report omitted reference to the rule, it explicitly warned that any objections must be filed within ten days and that “[fjailure to file objections within the specified time waives the right to appeal the district court’s order.” The report then cited section 636(b)(1) and this Court’s decision in Small, thereby providing both statutory authority for the ten day filing period as well as case law authority for the waiver rule. Under these circumstances, a citation to Rule 72 would not provide the pro se litigant with any information not already set forth in the express language of the Magistrate Judge’s report.
The petitioner failed to object to the Magistrate Judge’s report after receiving adequate notice of the consequences of a failure to object in a timely manner. We have examined the merits sufficiently to satisfy ourselves that petitioner’s challenge to the state court trial in absentia, under the circumstances presented, does not warrant “excusing] the default in the interests of justice.” See Thomas v. Arn, 474 U.S. at 155, 106 S.Ct. at 475 (footnote omitted).
The judgment of the District Court is affirmed. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
32
] | songer_state |
SWIFT & CO. v. FEDERAL TRADE COMMISSION.
(Circuit Court of Appeals, Seventh Circuit.
February 16, 1925.
Rehearing- Denied October 13, 1925.)
No. 3215.
1. Evidence <S=I I—Courts will take judicial notice of agitation and discussion preceding enactment of Sherman Law and Clayton Act.
Agitation and discussion preceding enactment of Sherman Law (Comj). St. §§ 8820-8823, 8827-8830) and supplementary Clayton Act are matters of history, of which courts will take judicial notice in construing such acts.
2. Constitutional law <S=370(3)— Courts, In construing legislation, are not called upon to pass judgment on its wisdom.
Courts, in construing legislation, are not called upon to pass judgment upon its wisdom.
3. Statutes <Ste3lSI(l) — Canons of statutory construction call for expression of legislative intention, and effectuate thought conveyed by plain and unambiguous language.
Canons of statutory construction call for an expression of legislative intention, and at same time effectuate thought conveyed by plain and unambiguous language.
4. Constitutional law 10—Monopolies <§=» 20—Distinction between corporations and individuals made by Clayton Act not arbitrary classification.
Distinction between corporations and individuals made by Clayton Act, § 7 (Comp. St. § 8835g), prohibiting corporation engaged in commerce from acquiring stock of another corporation, also engaged in commerce, where effect of acquisition is to lessen competition, is not arbitrary classification.
5. Constitutional law <§=»296( I)— Monopolies <@^>20—Provision of Clayton Act against acquisition of stock of competing corporation construed; act held not violative of due process clause.
Clayton Act, § 7 (Comp. St. § 8885g), pro- ' hibiting corporation from acquiring stock in another corporation, where effect of such acquisition may be to substantially lessen competition, is applicable, irrespective of whether competition prior to consolidation was substantial, and whether effect of acquisition was injurious to public, nor is it, when so construed, violative of due process clause.
Petition by Swift & Co., to sat aside an order of the Federal Trade Commission.
Petition denied.
James M. Sheean, of Chicago, 111., for petitioner.
Adrien F. Busiek and Everett F. Hay-craft, both of Washington, D. C., for respondent.
Before ALS CHULEE, EVANS, and PAGE, Circuit Judges.
Certiorari granted 46 S. Ct. 107, 70 L. Ed. —.
EVAN A. EVANS, Circuit Judge.
Petitioner seeks to set aside an order of the Federal Trade Commission directing it to:
“(1) Cease and desist from further violating section 7 of the Clayton Act by continuing to own or hold, either directly or indirectly, by itself or by any one for its use and benefit, any of tbe capital stock of tbe Moultrie Packing Company and of the Andalusia Packing Company, or either of them, and cease and desist from holding, controlling and/or operating, or causing to be held, controlled and/or operated by others for its. use and benefit, the former property and business either of the said Moultrie Packing Company or of the said Andalusia Packing Company, which have been hold, controlled, and operated by respondent and its employees and agents, following and as a result of respondent’s unlawful acquisition of the capital stocks of said named corporations; and. to that end, respondent shall:
“(2) So divest itself of all the capital stock heretofore acquired by respondent, including' all the fruits of such acquisitions, in whatever form they now are, whether held by respondent or by any one for its use and benefit, of the Moultrie Packing Company, a corporation, and of the Andalusia Packing Company, a corporation, or either of them, in sueh manner that there shall not remain to respondent, either directly or indirectly, any of the fruits of said acquisitions, including the control and/or operations of said corporations, or either of them, resulting from sueh acquisitions and/or holdings of sueh capital stocks.
“(3) In so divesting itself of sueh capital stocks, respondent shall not sell or transfer, either directly or indirectly, any of sueh capital stocks to any officer, director, stockholder, employee, or agent of respondent, or to any person under the control of respondent, or to any partnership or corporation either directly or indirectly owned or controlled by respondent. * * * ”
A record of inexcusable length discloses facts almost freefrom controversy.
Petitioner, in June, 1917, acquired all of the stock of the Moultrie Packing Company,of Moultrie, Ga., and in July, 1917, all of the capital stock of the Andalusia Packing Company, of Andalusia, Ala. It immediately went into possession of both plants and managed and operated them.
The Moultrie Packing Company was organized in 1913 by local business men of Moultrie, Ga., and its growth was rapid, its business prosperous, and’ its profits large and increasing.
The Andalusia Company of Andalusia, Ala., was similarly organized in October, 1915, with a somewhat larger capitalization, and its brief historjr was one of growth and profit. Both packing companies slaughtered cattle and hogs. Their history is briefly written by the following table:
1914. 1915. 1918. .1917.
Moultrie Packing ' (Five
Company. Months.)
Pork ....... lbs. 200,598 2,199,441 7,305,506 3,907,909
Bee£ ....... lbs. 24,739 442,221 196,333 252,280
Lard ....... lbs. 20,320 326,580 1,171,875 827,576
. In the five months of 1917, its profits exceeded 60 per cent, of its paid-up capital.
1916. 1917.
Andalusia Packing (Five
Company. (Part of Year.) Months.)
Pork .... 3,065,341 2,914,692
Beof .... 6,426 189,523
Lard .... 383,774 664,293
For the year ending May 1, 1917, its profits were $62,616.80, or about 50 per cent, of its paid-up capital.
Petitioner was in direct competition with these two packing companies, although the hogs slaughtered by the Moultrie and Andalusia companies were not corn fattened, and the pork was known as “soft.” The two packing companies, however, furnished all of the competition which petitioner and the four other large «Chicago packing houses met in southeastern United States. Though the total number of hogs and cattle slaughtered at these two packing houses was but a small fraction of 1 per cent, of that killed in the United States, the competition in fresh pork sales which they furnished in this territory was substantial and direct.
'Section 7 of the so-called Clayton Act (Comp. St. § 8835g) provides:
“See. 7. That no corporation engaged in commerce shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of another corporation engaged also in commerce, where the effect of such acquisition may be to substantially lessen competition between the corporation whose stock is so acquired and the corporation making the acquisition, or to restrain sueh commerce in any section or community, or tend to create a monopoly of any line of commerce.
“No corporation shall acquire, directly or indirectly, the whole or any part of the stock or other share capital of two or more corporations engaged in commerce where the effect of sueh acquisition, or the use of such stock by the voting or granting of proxies or otherwise, may be to substantially lessen competition between such corporations, or any of them, whose stock or other share capital is so acquired, or to restrain such commerce in any section or community, or tend to create a monopoly of any line of commerce.
“This section shall not apply to corporations purchasing sueh stock solely for investment and not using the same by voting or otherwise to bring about, or in attempting to bring about, the substantial lessening of competition. Nor shall anything contained in this section prevent a corporation engaged in commerce from causing the formation of subsidiary corporations for the actual carrying on of their immediate lawful business, or the natural and legitimate branches or extensions thereof, or from owning and holding all or a part of the stock of sueh subsidiary corporations, when the effect of sueh formation is not to substantially lessen competition.”
The Commission found, and no other finding could have been made, that the purchaser was engaged in interstate commerce; that, while so engaged, it purchased all the stock of the Moultrie Packing Company and the stock of the Andalusia Packing Company, both of which companies were also engaged in interstate commerce; and that the effect of such acquisition was to substantially lessen competition between the corporation whose stock was acquired, and the corporation making the acquisition.
These findings would necessarily dispose of the application were it not for petitioner’s insistent urge that the statute dons not mean what it says, and that the court should read into it “the rule of reason” and insert additional requirements, viz.: That the competition between the two companies prior to consolidation was substantial, and the effect of the acquisition was injurious to the public.
It further contends that said section 7 is unconstitutional unless these essential facts are read into it.
The general object and purpose of this statute is so evident that it is hardly necessary to state it. It and the parent legislation, the Sherman law (Comp. St. §§ 8820-8823, 8827-8830), sought to maintain a wholesome competition between those engaged in competitive interstate commerce. The agitation and discussion preceding their enactment are matters of history of which we must take judicial notice. In its title to this legislation, the Congress stated its purpose, thus: “An act to supplement existing laws against unlawful restraints and monopolies, and for other purposes.”
It particularly referred to a previous act “to protect trade and commerce against unlawful restraints and monopolies.”
The report of the Senate Judiciary Committee confirms this conclusion.
“Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the Act of July 2, 1890, or other existing anti-trust acts, and thus by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipieney and before consummation.”
The Clayton Act “was intended to supplement the Sherman Act, and within its limited sphere established its own rule.” United Shoe Mach. Co. v. United States, 258 U. S. 451, 42 S. Ct. 363, 66 L. Ed. 708.
As was stated in Standard Co. v. Magrane-Houston Co., 258 U. S. 346, 42 S. Ct. 360, 66 L. Ed. 653:
“The Clayton Act sought to reach the agreements embraced within its sphere in their incipieney, and in the section under consideration to determine their legality by specific tests of its own. ”
The statute does not prohibit all acquisitive contracts. It is only when such acquisition produces “the effect” described that the statute condemns. It is worthy of note that such effect may be cither to (a) substantially lessen competition between the corporation whoso stock is so acquired and the car* poration making the acquisition; (b) restrain such commerce in any section or community; or (c) tend to create a monopoly of any line of commerce, (a) cannot be construed without considering (b) and (c). If the court wore to read into (a) the elements which petitioner has asked us to insert, what would become of the requirements of (b) and (e)¥
Nor are we, in construing this legislation, called upon to pass judgment respecting its wisdom. Conceding that the Congress was authorized under the commerce clause and other sections of, or amendments to, the Constitution, to deal with the subject-matter, it alone could determine the wisdom of such legislation and make such exceptions or reservations as it deemed the needs of commerce and the welfare of the public required.
We are therefore confronted with a simple legal question, one of statutory construction. We must divorce it from the associated economic questions.
The canons of statutory construction call for an expression of legislative intention, and at the same time effectuate the thought conveyed by plain and unambiguous language.
In the present ease there is fortunately not the slightest conflict between the obvio ns intention of Congress and the language chosen to convey the thought. Under such circumstances, to search for avenues of escape, to conjure up hardships that might possibly result from the enforcement of such legislation, or even to anticipate and avoid constitutional objections, is not a proper judicial function.
It is also urged by petitioner that, had it first purchased the assets of those two packing companies rather than the stock, the transaction would have avoided the condemnation of the statute. With this assumption as the major premise of its syllogism, it eon-tends that the transaction was, in fact, the acquisition of the assets of the Moultrie and Andalusia companies.
We are not prepared to, nor called upon to express an opinion respecting the legality' of a purchaser’s acquisition of the assets of competitors engaged in commerce. The facts in this case do not make it necessary for us to even discuss -the question. Petitioner bought the stock. After it- acquired the stock, it made its servants and employees officers and directors of these companies. It took over the active management, and conducted the business so that existing eompetition was eliminated.
If petitioner’s major premise be accepted, then the distinction between acquiring the stock and purchasing the assets cannot be ignored, when the evidence is examined to ascertain whether petitioner purchased stock or assets.
Constitutionality. It is first urged that the distinction made between corporations and individuals is arbitrary.
But was there not a basis for the elassifieation? Congress was dealing with business consolidations of large size. It was endeavoring to prevent the creation of trusts and monopolies. Corporations are the instrumentalities, commonly used by those engaged in large enterprises. They lend themselves handily to activities of large proportions. Their control can be readily acquired; hence the classification has some basis for its existence.
Does the legislation violate any of petitioner’s right of “life, liberty, or property without due process of law” ? This is, in view of our construction of the statute, the real question in the ease.
Recognizing, as we do, that the prohibition relates only to those contracts, the effects of which is to lessen competition between competing corporations engaged in commerce, we are confronted with the narrow question of petitioner’s right (as against the public) to make contracts for the acquisition of a competitor’s capital stock, the necessary effect of which is to lessen, or to eliminate entirely, competition from this source.
Courts are constantly called upon to eonsider deprivation of “liberty” or “property,” in the light of changing economic conditions, due to the increase and congestion of population, as well as to changes in methods of business. “Due process,” “liberty of contract,” and “property rights” are somewhat relative terms, incapable of accurate, precise, and lasting definition. In fact, changes in our living, in methods of business, and in the-ever-increasing functions of government, must be recognized in construing decisions rendered at widely varying periods of our national history. Legislation which, under certain conditions, may be found to l)e an arbitrary and capricious interference with the .individual’s right to “right, liberty, or property,” at a later period in the light of experience and changed conditions may be upheld.
If, as petitioner’s counsel concedes, the section is free from “constitutional objection,” if “the powers and activities of its-ministerial agency” (the Federal Trade Commission) are properly “circumscribed,” the-query arises, To what circle should such powers be confined?
We are still dealing with -words of general meaning, and make no progress, Must Congress act only when the child has-grown to the stature of a giant? If authority exists to curb, or to dissolve, a corporation when it has reached the trust stage, may Congress not take steps to arrest the eorporation’s growth before the final stage hasbgen reached? Is our national defense policy based upon an impending conflict, or a desire to prevent one ? In order to build the Panama Canal, the mosquito was eliminated before the yellow fever appeared. The government may, under the commerce clause of the Constitution, forbid every contract “which is reasonably calculated to injuriously affect the public interest.” Atlantic Coast Line v. Riverside Mills, 219 U. S. 202, 31 S. Ct. 164, 55 L. Ed. 167, 31 L. R. A. (N. S.) 7. It may act to anticipate or prevent an unfortúnate situation, as well as deal with one that existed.
As before stated, the Clayton Act (38 Stat. 730), supplemented the Sherman law, the practical enforcement of which was found difficult, and often resulted in hardships to innocent parties. The section under consideration sought by means which the Congress deemed expedient and effeetiye, to prevent a condition which the Sherman law was designed to overcome when once it existed. Certainly -courts should hesitate to say that the means selected are not “appropriate” or “primarily adapted” to accomplish the desired end, when it is conceded that the prevention of such “ends” through dissolution is within the recognized powers of Congress.
In other words, the issue is not one off authority of Congress to deal with an undesirable condition, but rather an asserted want oí power to prevent that result through the means resorted to for that purpose. And the answer seems to be that Congress, having the authority to regulate interstate commerce, may do so by such moans as to it seems appropriate, to prevent a condition which is contrary to the settled public policy of the government and inimical to the welfare of its people.
If competing corporations may not consolidate, Lt naturally follows that it will be difficult for one corporation ever to monopolize an industry. So it may be said that the “means” are “appropriate,” and “primarily adapted” to accomplish the end. Whether such “means” may not, when strictly enforced, lead to “evils” greater than the “cure,” is another question, one which the Congress only may determine.
It was also urged that paragraph 3 modified the first paragraph of section 7, and, thus amended, aids the petitioner. It may well be that the third paragraph of section 7 modifies the first and limits it, but we find in the evidence nothing to support a finding that petitioner acquired the stock of its competitors “solely for investment and not using the same by voting or otherwise to bring about, or attempting to bring about the substantial lessening of competition.”
It would be difficult to conceive of any ease where one corporation purchased all of the stock of its competitor solely for investment. Such a case would be a rare one. Certainly petitioner herein did not purchase this stock solely for investment.
In conclusion, it might he suggested to respondent that delay in instituting proceedings of the character here under review, frequently works an unnecessary hardship to the aggrieved party. Certainly a limitation of time should be fixed, by statutory enactment or otherwise, during which these proceedings must be instituted. The purchasing company would not then (as appears was done in the case before us) invest vast sums of money enlarging and improving the acquired property before respondent took steps to restore the status of the companies.
The petition is denied.
ALSCHULEft, Circuit Judge.
The apparent considerable benefit to the localities from the increased manufacturing activities there, which followed the transactions complained of, illustrates the possible hardship and resultant embarrassment in strictly applying the statute in accordance with its plain and comprehensive terms. But the very defense here made would tend to show the same local benefit would have accrued had the stock purchases in question not occurred. In large measure the acquirement of the stock is sought to be justified by contention and proof that petitioner would in any event have established plants of its own there or thereabout. Had this been done, the localities would have had, not only new plants of this large and well-established concern, but the existing plants as well. But it is strongly urged that the ones already there-would not likely have withstood , the added competition, and that in any event they would not long have survived. Be this as it may, this cannot suspend or avoid the very broad and sweeping statute which denounces acquisition by one corporation of the stock of another, or of the stock of two or more other corporations, where this may substantially lessen competition between them, or restrain commerce in any section or community, or tend to create monopoly in any lino of commerce. If an exception to. the operation of the statute ought and is to he raised in eases whore the concern whose stock is acquired is comparatively small or weak, or for any reason unlikely long to endure, it must come through statutory enactment, and not by judicial construction. | 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". | 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? | [
"local",
"neither local nor national",
"national or multi-national",
"not ascertained"
] | [
3
] | songer_appel1_1_2 |
Ruth BLACKBURN, Plaintiff, Appellee, v. Linwood SNOW, et al., Defendants, Appellants,
No. 84-1736.
United States Court of Appeals, First Circuit.
Argued Feb. 5, 1985.
Decided Aug. 22, 1985.
Rehearing and Rehearing En Banc Denied Sept. 20, 1985.
Paul J. Sullivan and Francis J. O’Rourke, Boston, Mass., for defendants, appellants.
Jeffrey W. Kobrick, Boston, Mass., with whom Charles R. Capace, Boston, Mass., was on brief, for plaintiff, appellee.
Before BREYER and ALDRICH, Circuit Judges, and PETTINE, Senior District Judge.
Of the District of Rhode Island, sitting by designation.
PETTINE, Senior District Judge.
At issue in this case is whether the federal Constitution permits a correctional institution to require that all men, women and children wishing to visit inmates at the institution submit to a strip search before doing so. Ruth Blackburn, the plaintiff-appellee in this case, was required to submit to such a search on three occasions in 1977 when she sought to visit her brother at the Plymouth County Jail. The searches were conducted pursuant to an order issued by then-County Sheriff Linwood Snow, one of the defendant-appellants here, which mandated that all visitors be strip searched, whether or not there was any cause to believe they were carrying contraband. Blackburn subsequently challenged the constitutionality of the blanket strip search policy. After the district court entered a temporary restraining order, Sheriff Snow agreed to discontinue the policy permanently. A bench trial on Blackburn’s damages claim followed. Ruling that the strip search policy violated the First and Fourth Amendments, the district court entered judgment against Snow and defendant-appellant Plymouth County, and awarded Blackburn $177,040 in compensatory damages, as well as prejudgment interest on that sum. The Sheriff and the County now appeal from that judgment, assigning a host of factual and legal errors. Because we find that the strip searches violated Blackburn’s Fourth Amendment rights, we affirm as to liability and compensatory damages, but vacate and remand for specific findings as to whether an award of prejudgment interest was necessary.
BACKGROUND
Ruth Blackburn’s brother, Richard McCarthy, was transferred to the Plymouth County Jail in January, 1977. Prior to April, 1977, when Sheriff Snow issued the order requiring all visitors to be strip searched, Blackburn had, without incident, visited her brother on a weekly basis. She had been virtually his only visitor. During the period from January through March, Blackburn had been fully subject to the security measures in effect before the advent of the strip search rule. These measures included “pat frisks” and metal detector searches, both of which were performed while the visitor was fully clothed. In addition, visitors were required to leave all personal possessions and money with officials before entering the visiting area. Once inside the visiting room, separate seating for inmates and visitors was provided. A television camera monitored ninety percent of the visiting area and two roving corrections officials were present in the room. Finally, inmates were strip searched following each visit.
In April, when Blackburn arrived at the Jail, she noticed a new sign announcing that all visitors would be “skin searched.” She took the term “skin search” to mean the “pat frisk” to which she had been routinely subject. When she reached the front of the line, however, it became clear that she would have to undress and be strip searched in order to visit her brother. She was taken to a small room, where she removed her clothing. During the search that ensued, a female matron inspected Blackburn by, among other things, examining her armpits, lifting her breasts and crouching to view her anus. Blackburn testified that she was sweating and shaking, and felt nervous and humiliated during the procedure.
When Blackburn next returned to the Jail, she was again required to submit to a strip search — this time performed by a different matron. Responding to Blackburn’s inquiry whether this search was “really necessary,” the matron stated that it was, if Blackburn wished to see her brother. This second strip search took a longer period of time and Blackburn, in her testimony, indicated that she thought this matron “seemed to be enjoying what she was doing.” The matron lifted Blackburn’s breasts twice and crouched to spread Blackburn’s buttocks with her hands, in order to examine her anus and crotch area with a flashlight. Blackburn testified that she was sweating and shaking more severely this time, had trouble standing, and left sweatprints on the wall she was made to lean against while “spread eagled.”
Following this visit, Blackburn, and a younger brother who accompanied her that day, were leaving the Jail by cutting across a lawn that connected to the road. They were stopped by Sheriff Snow, who admonished them that this lawn was off limits to visitors because of the danger that visitors might use it to make a contraband “drop” for inmates. Following a conversation in which Blackburn protested that she was carrying no contraband, the Sheriff told her that he didn’t “want to see her face around here anymore.”
The last time Blackburn went to the Jail, she was required once more to submit to a strip search. After the completion of the search, however, she was informed that she had been barred from visiting the Jail. She was not told why. The Sheriff later testified that he had given this order as a result of the incident on the lawn — although he had not so notified Blackburn— because he believed that the plaintiff had made an obscene gesture towards him at the close of their conversation. Shortly thereafter, Blackburn brought suit challenging the legality of the visitor strip search policy.
It was undisputed at trial both that the above-recounted searches had taken place, and that Blackburn, herself, had never been suspected of attempting to secretly bring contraband into the institution. Rather, the Sheriff emphatically stated that Blackburn was strip searched as a matter of routine procedure which, under the terms of his order, applied equally to all visitors — including infants and children. Indeed, the Sheriff believed that it was in the very uniformity of the strip search policy in which its fairness inhered; by strip searching all visitors, without regard to any individualized suspicion, the Sheriff felt he could avoid the perception of unfairness, yet effectively check the flow of contraband into the Jail. The Sheriff testified that he had originally issued the visitor strip search order in 1974, but that he learned in April, 1977 that it was not being followed. He discovered this after investigating an incident in which an inmate who obtained the drug Valium had attempted to assault an officer. Although the Sheriff testified that the Valium involved in that incident had never been conclusively linked to any visitor, and that between 1974-1977 there had been only five incidents involving visitors and contraband, he nonetheless felt that the incident underscored the grave danger posed by drugs in the institution. Accordingly, pursuant to his statutory authority as Master of the Jail to fashion policies regarding visitation, he reissued his 1974 strip search order in April, 1977. While, by his own testimony, the Sheriff indicated that he had never heard of another penal institution that strip searched every visitor — a view shared by plaintiffs prison expert, Joseph Cannon — the Sheriff nonetheless believed that he was within his rights to issue the order.
The district court granted a temporary restraining order against the rule in May, 1977, and in January, 1978, the Sheriff agreed permanently to abandon the practice of strip searching all visitors. Nine days of bench trial on Blackburn’s claim for damages followed. In an opinion dated May 9, 1984, 586 F.Supp. 655 (D.Mass.1984), and a supplemental opinion dated August 7, 1984, 588 F.Supp. 1386 (D.Mass.1984), the district court ruled that the strip search policy violated the First and Fourth Amendments. The court believed that Blackburn had a First Amendment right to a visit (though not necessarily a contact visit) with her brother and that the search rule was an “unnecessarily broad,” 586 F.Supp. at 660, restriction on the exercise of that right. The court also concluded that, because of the highly intrusive nature of the strip searches at issue — body cavity searches which involved not only visual inspection, but manipulation of breasts and buttocks, as well — a blanket search rule could not satisfy the Fourth Amendment’s reasonableness requirement.
After rejecting the Sheriff’s qualified immunity defense and the County’s argument that it was insufficiently involved in the administration of the Jail to have been found liable for the strip search policy, the court awarded Blackburn $177,040 in compensatory damages. The damages were based on the court’s factual findings that the searches had directly caused Blackburn extensive physical and psychological harm. Because the court also found that an award of prejudgment interest was necessary to compensate Blackburn fully for this harm, it made such an award, which amounted to $151,080. 588 F.Supp. 1386, 1389.
On appeal, Snow and the County press four claims. First, appellants argue that neither the First nor Fourth Amendment prohibits adoption of the strip search policy at issue here. Second, the Sheriff argues that he was entitled to qualified immunity from liability. Third, the County argues that it may not properly be held liable for the Sheriff’s actions. Fourth, both appellants challenge the award of compensatory damages as excessive and the award of prejudgment interest as inappropriate under the circumstances.
DISCUSSION
The Constitutionality of the Strip Search Policy
Any inquiry into the constitutionality of security measures employed in a penal institution must begin with the premise that “prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” Bell v. Wolfish, 441 U.S. 520, 547-48, 99 S.Ct. 1861, 1878, 60 L.Ed.2d 447 (1979) (citations omitted). Because the prison is so peculiarly a “volatile ‘community,’ ” Hudson v. Palmer, — U.S. ---, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984), the preservation of internal security “is ‘central to all other corrections goals,’ ” id., 104 S.Ct. at 3201 (quoting Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974)). At the same time, “prisons are not beyond the reach of the Constitution. No ‘iron curtain’ separates one from the other,” Block v. Rutherford, — U.S. ---, 104 S.Ct. 3194, 3198, 82 L.Ed.2d 393 (1984) and “[t]he fact that particular measures advance prison security ... does not make them ipso facto constitutional,” id., 104 S.Ct. at 3236 (Blackmun, J., concurring). Our task in prison cases is, thus, a delicate one: neither may wé substitute our own judgment about the wisdom of security measures for those of experienced prison personnel, nor may we abdicate our responsibility to ensure that the limits imposed by the Constitution are not ignored in the name of “necessity.” But, in our view, this case poses a challenge less difficult than many in this area, for we conclude that a rule requiring all prison visitors to submit to a body cavity strip search, without any predicate requirement of individualized suspicion or showing of special and highly unusual institutional need, cannot satisfy the Fourth Amendment. Because we view the search and seizure issue as determinative, we do not reach the First Amendment question.
The fundamental purpose of the Fourth Amendment prohibition on unreasonable searches and seizures “ ‘is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.’ ” New Jersey v. T.L. O., — U.S. ---, 105 S.Ct. 733, 736, 740, 83 L.Ed.2d 720 (1985) (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 87 S.Ct. 1727, 1730, 18 L.Ed.2d 930 (1967)). As such, although most commonly invoked in the law enforcement setting, the protections of the Amendment apply fully to all forms of “governmental action,” id., 105 S.Ct. at 740, so long as “ ‘the person invoking [Fourth Amendment] protection can claim a “justifiable,” a “reasonable,” or a “legitimate expectation of privacy” that has been invaded by government action,’ ” Hudson v. Palmer, supra, 104 S.Ct. at 3199 (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979)).
While appellants concede, as they must, that the Fourth Amendment applies to the challenged actions here, they argue first that Blackburn retained no legitimate expectation of privacy when she entered the Jail. Like appellants’ claim that Blackburn consented to the searches — which we discuss fully later — this argument presupposes that one who decides to enter a controlled environment must do so on the terms prescribed for entry by those in charge of that environment. But the two arguments are distinct, in that the expectation of privacy inquiry goes to whether Blackburn was entitled to the protections of the Fourth Amendment in the first instance, while the consent question goes to whether Blackburn has waived constitutional protection to which she is otherwise entitled.
Appellants base their claim that Blackburn had no legitimate privacy expectation on the fact that, at least after the first strip search, if not before, she knew that she would be subject to such a search if she went to the prison. In so framing their claim, however, appellants misapprehend the relevant doctrine. As the Supreme Court has recently noted, the “controlling” inquiry where an expectation of privacy is challenged is whether the expectation is one “ ‘society is prepared to recognize as “reasonable.” ’ ” Hudson v. Palmer, supra, 104 S.Ct. at 3199 & n. 7 (quoting in part Katz v. United States, 389 U.S. 347, 360, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). That appellants may have put Blackburn on “notice” that she would be subject to an examination of her body cavities before entering the Jail cannot determine the “controlling” question: namely, whether her expectation that she would be free of such searches was one society would call reasonable. And we think it is clear that society is “prepared to recognize” that free citizens entering a prison, as visitors, retain a legitimate expectation of privacy, albeit one diminished by the exigencies of prison security. To be sure, those visiting a prison cannot credibly claim to carry with them the full panoply of rights they normally enjoy. But neither may they constitutionally be made to suffer a wholesale loss of rights — nor even one commensurate with that suffered by inmates. For as the Supreme Court has recently observed, the “harsh facts of criminal conviction and incarceration,” New Jersey v. T.L.O., supra, 105 S.Ct. at 741, separate free citizens from those confined to penal institutions. In the T.L. O. case, the Court relied on this distinction to hold that school .children retain a legitimate (though reduced) expectation of privacy at school, even while prisoners, under the Court’s recent decision in Hudson v. Palmer, supra, retain no such expectation in their prison cells. In Hudson itself, the Court explained that “imprisonment carries with it the circumscription or loss of many significant rights ... [and] in some cases the complete withdrawal of certain rights are ‘justified by the considerations underlying our penal system.’ ” Id., 104 S.Ct. at 3199 (citations omitted) (quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948)). Thus, Hudson did not suggest, and we do not find, that the security needs of a prison can, standing alone, properly justify the “complete withdrawal” of Fourth Amendment rights from all who enter the institution (except perhaps in a highly unusual circumstance such as a prison riot). Because of the “harsh facts” that separate the visited from the visitor here, we conclude that Blackburn was entitled to expect at least some measure of personal privacy while at the Jail. In so holding, we are in accord with all the published federal court opinions of which we are aware that involve Fourth Amendment challenges by prison visitors. See Hunter v. Auger, 672 F.2d 668 (8th Cir.1982); Thorne v. Maggio, 585 F.Supp. 910 (M.D.La.1984); Black v. Amico, 387 F.Supp. 88 (W.D.N.Y.1974); cf. Security & Law Enforcement Employees v. Carey, 737 F.2d 187 (2d Cir.1984) (prison employees retain limited expectation of privacy).
The degree of privacy Blackburn retained upon entering the Jail is relevant to the next question: whether the strip searches were “reasonable” within the meaning of the Fourth Amendment. Whether a particular government search is reasonable “depends on the context within which a search takes place.” New Jersey v. T.L.O., supra, 105 S.Ct. at 741. While the Fourth Amendment, by its terms, suggests that reasonableness is to be measured by the existence of a warrant issued upon probable cause, courts have recognized that, in limited circumstances, the absence of one or both of these elements does not make a search per se unreasonable. See generally id. at 743 (discussing exceptions). “The standard of reasonableness governing any specific class of searches requires ‘balancing the need to search against the invasion which the search entails.’ ” Id. at 741 (quoting Camara v. Municipal Court, 387 U.S. 523, 536-537, 87 S.Ct. 1727, 1735, 18 L.Ed.2d 930). Here, in deciding to what standard of reasonableness prison officials strip searching visitors should be held, we must balance the official interest in maintaining security against the intrusion entailed by a strip search. That intrusion must, of course, be viewed in light of Blackburn’s diminished expectation of privacy.
We have previously recognized, “as have all courts that have considered the issue, the severe if not gross interference with a person’s privacy that occurs when guards conduct a visual inspection of body cavities.” Arruda v. Fair, 710 F.2d 886, 887 (1st Cir), cert. den., — U.S. ---, 104 S.Ct. 502, 78 L.Ed.2d 693 (1983). As the Seventh Circuit has recently noted, body cavity searches are “ ‘demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant, embarrassing, repulsive, signifying degradation and submission.’ ” Marybeth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983) (quoting Tinetti v. Wittke, 479 F.Supp. 486, 491 (E.D.Wis.1979), affd without opin. 620 F.2d 160 (7th Cir.1980)). The searches to which Ruth Blackburn was subject — which involved not only the visual inspection of body cavities present in the above cases, but the manual spreading of buttocks and lifting of breasts — produced exactly these feelings of humiliation in her. Her uncontroverted testimony was that she felt “very degraded”, was shaking, sweating and sick to her stomach, and could hardly stand.
Against this intrusion, perhaps “the greatest personal indignity” searching officials can visit upon an individual, Bell v. Wolfish, 441 U.S. 520, 594, 99 S.Ct. 1861, 1903, 60 L.Ed.2d 447 (1979) (Stevens, J., dissenting), we must balance the appellants’ “paramount interest in institutional security.” Hudson v. Palmer, supra, 104 S.Ct. at 3201. The Supreme Court has admonished that the interest of prison officials in intercepting contraband and maintaining internal order must be accorded great weight, e.g., id.; Block v. Rutherford, supra, 104 S.Ct. at 3232-3234; Bell v. Wolfish, supra, 441 U.S. at 547, 99 S.Ct. at 1878; and this Court has echoed that sentiment, e.g. Arruda v. Fair, supra, 710 F.2d at 887; cf. Gomes v. Fair, 738 F.2d 517 (1st Cir.1984). And, as we have noted, this interest must not only be weighted heavily in striking the Fourth Amendment balance, but courts must, in addition, accord appropriate deference to the “professional expertise of corrections officials,” Wolfish, supra, 441 U.S. at 548, 99 S.Ct. at 1879 (quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974)) in selecting measures calculated to preserve the security of the facility. See Arruda, supra, 710 F.2d at 887. Appellants need not convince us that the Sheriff required considerable latitude in accomplishing this goal.
We reject the argument that the security needs of the Jail justified the blanket rule, however, because we believe that the record in this case shows that no unusual need for special security measures such as a strip search of all prison visitors existed, and that absent such unusual need, the Constitution normally requires a more particularized level of suspicion before individuals wishing to visit a jail may permissibly be subject to a grossly invasive body search. So basic is this constitutional norm, in fact, that appellants cannot cite, nor are we aware of, any published federal case — other than those involving incarcerated individuals — in which a court has approved body cavity searches of individual visitors about whom no particular suspicion is harbored. Certainly, this position finds no support in the federal precedents concerning strip searches of prison visitors, in which the debate has always been over what level of suspicion is appropriate, not whether any such suspicion is required. Hunter v. Auger, supra, 672 F.2d at 674 (strip searches conducted unconstitutional because visitors were not target of “reasonable suspicion”); Thorne v. Jones, supra, 585 F.Supp. at 918 (same); Black v. Amico, supra, 387 F.Supp. at 91 (strip searches conducted unconstitutional because visitor was not target of “real suspicion”). Cases concerning strip searches of other classes of unincarcerated individuals who have a diminished expectation of privacy have generally taken a similar approach. See, e.g., Security Employees v. Carey, supra, 737 F.2d at 205, 208 (requiring “reasonable suspicion” to strip search prison guards and probable cause and warrant to conduct body cavity search of prison guards); Marybeth G. v. City of Chicago, supra, at 1273 (requiring “reasonable suspicion” to strip search misdemeanor arrestees confined while awaiting bail money); United States v. Kallevig, 534 F.2d 411, 413 (1 Cir.1976) (requiring either “real suspicion” or “mere suspicion” to strip search at border); Doe v. Renfrow, 631 F.2d 91, 93 (7th Cir.1980) (per curiam), cert. den., 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981) (requiring “reasonable cause” to believe contraband is hidden on person to strip search minor student).
Appellants themselves concede that exceptions to the general Fourth Amendment requirement that normally some level of individual suspicion be present before a search is conducted are appropriate only when, among other things, “the privacy interests implicated by a search are minimal.” Reply Brief, at 11,12 (quoting New Jersey v. T.L. O., supra, 105 S.Ct. at 745, n. 8). Even in light of her diminished expectation of privacy, Blackburn’s interest in preserving the privacy of her body cavities can scarcely be thought “minimal.” It is not surprising that appellants find no authority for their view, especially in light of the Fourth Amendment principle that “ ‘the greater the intrusion, the greater must be the reason for conducting a search,’ ” United States v. Afanador, 567 F.2d 1325, 1328 (5th Cir.1978) (quoting United States v. Love, 413 F.Supp. 1122, 1127 (S.D.Tex.), aff'd, 538 F.2d 898 (5th Cir.), cert. den., 429 U.S. 1025, 97 S.Ct. 646, 50 L.Ed.2d 628 (1976)); see United States v. Sanders, 663 F.2d 1, 3 (2d Cir.1981); cf. Terry v. Ohio, 392 U.S. 1, 18, 88 S.Ct. 1868, 1878, 20 L.Ed.2d 889 (“a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.”)
Appellants nonetheless insist that prison administrators must be allowed to implement measures they deem necessary to the security of the institution. Despite the fact that prior visitor strip search cases have always accomodated the special security needs of prisons by holding that something less than probable cause and a search warrant may properly justify strip searching a visitor, appellants argue that because the Sheriff deemed a blanket policy “necessary” to check the flow of drugs and contraband into the institution, we are thereby constrained to uphold that policy. Appellants attempt to find such a principle in Block v. Rutherford, supra, in which the Supreme Court recently held that the Fourteenth Amendment due process rights of pretrial detainees are not violated by a jail rule barring contact visits. In Block, the Court said that:
On this record, we must conclude that the District Court simply misperceived limited scope of judicial inquiry under Wolfish. When the District Court found that many factors counseled against contact visits, its inquiry should have ended. The court’s further ‘balancing’ resulted in an impermissible substitution of its view on the proper administration of Central Jail for that of the experienced administrators of that facility.
104 S.Ct. at 3234.
Because the district court in this case found the Sheriff’s strip search policy to be “clearly directed toward the goal of preserving internal security,” 586 F.Supp. at 660, the appellants reason that the policy must, therefore, be found “reasonable” under the Fourth Amendment. We disagree for two reasons.
First, the district court in this case did not find “many factors” supporting the blanket strip search rule. Rather, while the court properly found the rule motivated by Snow’s concern for security, it also found the rule wholly unjustified by the Jail’s actual security needs, and we see no error in its finding. The evidence showed that there had been only a few — perhaps five — incidents involving visitors and contraband during the Sheriff’s tenure at the Jail. Indeed, even the 1977 incident involving an inmate who obtained valium, identified by Snow as triggering the strip search rule, had never been conclusively linked to a visitor. Joseph Cannon, a prison expert with considerable experience in the field, compared the instances of visitor abuses, prior to the strip search rule, with those at other institutions and concluded that there were surprisingly few incidents, and that those that had occurred had not been serious. He therefore believed the Jail’s existing security measures, which he observed in operation, to be more than adequate to address the minimal visitor contraband danger present. He also testified that in his twenty-seven years in the corrections field he had never heard of any other institution that strip searched all visitors, without any corroborating evidence that a visitor was carrying contraband. Nor had Snow himself heard of any comparable policy. Moreover, the evidence was clear not only as to the existence of other adequate security measures, see page 559, supra, but as to the fact that the Jail was equipped to offer screened, non-contact visits — an option which was never offered to Blackburn or any other visitor, in lieu of a strip search. Accordingly, the district court properly found the drastic strip search rule unnecessary and lacking any proportion at all to the “problem” it purported to solve.
Second, like Wolfish before it, Block concerned the rights of pretrial detainees. We have already discussed, as did the Court in both Wolfish and Block, the fact that “(l )awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Wolfish, 441 U.S. at 546-547, 99 S.Ct. at 1877 (quoting Price v. Johnston, supra, 334 U.S. at 285, 68 S.Ct. at 1060); see Block, 104 S.Ct. at 3231-3232 & n. 8. Neither case purported to deal with the rights invoked here: those of a free citizen. We reject appellants’ attempt to impute or casually transfer to free citizens visiting a prison the same circumscription of rights suffered by inmates. Perhaps more than our dissenting brother, we find this distinction central to this case. Moreover, to the extent that Block may have, by implication, curtailed the derivative “rights” of visitors to enjoy contact visits, it nonetheless did so only within the framework of the detainees’ due process rights, where the relevant inquiry was whether the jail policy amounted to impermissible “punishment” of an individual, though lawfully incarcerated, not yet convicted of a crime. Here, we are concerned not only with a direct challenge by a visitor, but with one brought under the Fourth Amendment — a distinct constitutional provision implicating values entirely independent of those protected by the due process clause. We accordingly reject the claim that a policy requiring all visitors to be strip searched can satisfy the strictures of reasonableness solely because the Sheriff has incanted the words “institutional security.” To read Block and other prison security cases to compel such a result would convert the interest balancing required by the Fourth Amendment into a per se rule upholding any search, of any person, thought “necessary” by prison officials. We believe the Constitution requires a more particularized level of suspicion to justify the humiliating and intrusive searches conducted here. While we need not define here precisely what level of individualized suspicion is required, we hold that, absent highly unusual circumstances, a rule unabashedly requiring none cannot be reconciled with the Fourth Amendment.
Appellants finally argue that, even if deemed otherwise unreasonable, the strip searches did not violate the Fourth Amendment because Blackburn consented to them. They point to several supporting facts in the record: that Blackburn signed 16 visitor slips between January — April, 1977, consenting to a search of her person and property; that officials posted a sign announcing that all visitors would be “skin searched”; that Blackburn was free to leave the Jail if she wished to forego visiting, but instead chose to submit to the searches; and that Blackburn voluntarily returned to the Jail on two occasions after the first search. Blackburn takes the position that, as a factual matter, no consent could properly be found here because, as her testimony and that of Dr. Grassian showed, circumstances in her family background caused her to feel so uniquely responsible for her siblings that she had no real “choice” but to do whatever was necessary, even if self-destructive, to see her brother — especially because he was in 23 hour a day lock up at the time. In addition to this factual argument, appellee has adopted the reasoning of the district court, which rejected the consent claim because it believed that “(a)n individual whose right to visit a prison inmate is conditioned on her submission to a strip search is subjected to a ‘search’ within the meaning of the fourth amendment” and cannot be said to have voluntarily consented under such “ ‘inherently coercive’ circumstances.” 586 F.Supp. at 661 (quoting Palmigicmo v. Travisono, 317 F.Supp. 776, 792 (D.R.I.1970)). We need not decide whether, as a factual matter, the particular circumstances of Blackburn’s background rendered any consent she gave ineffective, for we agree with the district court that, as a matter of law, Blackburn’s submission to the searches under these circumstances cannot properly constitute consent because her access to the Jail was impermissibly conditioned on that submission. We do not agree, however, that Blackburn must have had a constitutional right to visit the institution in order to reach this result.
Rather, it has long been settled that government may not condition access to even a gratuitous benefit or privilege it bestows upon the sacrifice of a constitutional right. As the Supreme Court explained sixty years ago:
It is not necessary to challenge the proposition that, as a general rule, the state, having power to deny a privilege altogether, may grant it upon such conditions as it sees fit to impose. But the power of the state in that respect is not unlimited, and one of the limitations is that it may not impose conditions which require the relinquishment of constitutional rights. If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner, compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence.
Frost v. Railroad Commission, 271 U.S. 583, 593-94, 46 S.Ct. 605, 607, 70 L.Ed. 1101 (1925).
Since Frost, which struck down a state statute conditioning the use of public highways on compliance with regulatory requirements otherwise violative of the due process clause, the doctrine of unconstitutional conditions has been applied in the context of numerous constitutional protections, e.g., Perry v. Sindermann, 408 U.S. 593, 598, 92 S.Ct. 2694, 2698, 33 L.Ed.2d 570 (1972) (state may not condition continued public employment on relinquishment of protected speech rights); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1967) (state may not condition receipt of unemployment benefits on relinquishment of right to free exercise of religion); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967) (state may not condition continued public employment on relinquishment of right to invoke Fifth Amendment privilege against self-incrimination); id. at 500, 87 S.Ct. at 620 (collecting cases discussing other “rights of constitutional stature whose exercise a state may not condition by the exaction of a price”), and several courts have applied it in Fourth Amendment situations analogous to the one before us, e.g., Armstrong v. New York State Commissioner of Correction, 545 F.Supp. 728, 731 (N.D.N.Y.1982) (state may not condition continued employment of prison guards on submission to unreasonable strip searches); Gaioni v. Folmar, 460 F.Supp. 10, 13 (M.D.Ala.1978) (state may not condition public access to civic center on submission to unreasonable searches).
We find this constitutional rule dispositive of the consent issue here because Sheriff Snow expressly conditioned Blackburn’s access to the Jail upon sacrifice of her right to be free of an otherwise unreasonable strip search. The Sheriff freely admits to having structured the choice to bar any visit, absent submission to a strip search; he does not claim to have offered those not wishing to be strip searched a non-contact visit in the facility’s screened area. Irrespective of whether Blackburn had a constitutional right to visit the Jail, as the district court thought, or a mere privilege, as the appellants argue, the principle established in the cases we have cited is that the Sheriff was not free to condition the visitation opportunity on the sacrifice of Blackburn’s protected Fourth Amendment rights. Nor is it any answer to say that Blackburn could have left at any time, or declined to return after the first strip search, for it is the very choice to which she was put that is constitutionally intolerable — and it was as intolerable the second and third times as the first.
We therefore find that, in the absence of legally cognizable consent, the strip search violated Blackburn’s Fourth Amendment rights.
Qualified Immunity
The Sheriff next argues that he should be accorded qualified immunity from liability for damages. While we agree that, as a prison administrator, the Sheriff is entitled to invoke the immunity defense, Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978), we cannot agree that under the standards set forth in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), that defense has been established here. In Harlow, the Court stated that:
government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.... If the law at [the time the action occurred] was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to “know” that the law forbade conduct not previously identified as unlawful.
457 U.S. at 818, 102 S.Ct. at 2738.
Under Harlow, the immunity inquiry focuses not on the official’s subjective belief about his conduct, but on whether the belief he held was objectively unreasonable. Thus, while the district court here found that “the evidence did not establish that Snow knew that his actions violated clearly established constitutional rights,” 586 F.Supp. at 663, the court correctly concluded that it was the objective standard that must govern. Like the district court, we find that it was unreasonable for the Sheriff to believe that strip searching Blackburn, pursuant to his blanket search rule, did not violate her constitutional rights.
The Sheriff contends that the law of prison visitor strip searches was not clearly established in 1977 and that he could not have been expected to predict future legal developments. We are unpersuaded by this argument. It can hardly be debated that Blackburn had, in 1977, a “clearly established” Fourth Amendment right to be free of unreasonable searches. No court had intimated then, as no court has intimated today, that citizens who visit a penal institution forfeit the protections presumptively accorded them by the Bill of Rights. Indeed, the Supreme Court had made clear that no “iron curtain” separates prisons from the reach of the Constitution, Wolf v. McDonnell, 418 U.S. 539, 555-556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974); accord Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974); Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974). And the Court maintained in 1977 that inmates retained some Fourth Amendment protection while incarcerated. Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218, 8 L.Ed.2d 384 (1962).
The Supreme Court had also made it clear by 1977 that to justify even the intrusion on personal privacy involved in a pat frisk of outer clothing, more than an “inarticulate hunch” of wrongdoing was required, Terry v. Ohio, 392 U.S. 1, 22, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1967). Nor were strip searches, and the severe invasion of privacy they entailed, new to courts in 1977. For analogous cases in other contexts, see, e.g., United States v. Kallevig, 534 F.2d 411, 413, n. 5 (1st Cir.1976); United States v. Flores, 477 F.2d 608 (1st Cir.1973), cert. den., 414 U.S. 841, 94 S.Ct. 96, 38 L.Ed.2d 77 (1974); Picha v. Weiglos, 410 F.Supp. 1214 (N.D.Ill.1976). Indeed, it was not until 1979 that the Supreme Court resolved the conflict among lower courts and held that inmates could constitutionally be strip searched after contact visits without any particularized suspicion of wrongdoing. Bell v. Wolfish, supra.
We cannot, therefore, accept the argument that the Fourth Amendment rights we have relied on in our holding today were not “clearly established” in 1977. It is true that in 1977, the exact parameters of official authority to strip search prison visitors were not yet clear — although one case had drawn the line at “real suspicion,” Black v. Amico, supra. But the fact is that only two more visitor strip search eases have been decided since then, Hunter v. Auger, supra; Thorne v. Maggio, supra, and both of these cases, like Black, concern searches where some suspicion was present and the issue was whether that suspicion was constitutionally sufficient. Any new ground broken by these cases was only to refine the issue of how much suspicion is required. Although the dissent apparently believes otherwise, we do not think it required “specific judicial articulation,” King v. Higgins, 702 F.2d 18, 20 (1st Cir.1983), to put the Sheriff on notice that a strip search policy requiring no cause to-believe that a visitor was carrying contraband violated the most fundamental principles of personal privacy and dignity for which the Fourth Amendment stands. See id. at 20 (although “precise bounds” of inmate’s due process rights not yet clear, no immunity available where official’s conduct violated even basic standards of due process.) The Sheriff consulted no legal or professional authority before imposing the search requirement and there was testimony from Blackburn’s prison expert that the expert knew of no other penal institution with a blanket visitor strip search policy. These facts plainly undermine any claim that the Sheriff behaved like a “reasonable person,” B.C.R. Transport Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984) (rejecting qualified immunity claim under Harlow); see M.M. v. Anker, 477 F.Supp. 837, 840 (E.D.N.Y.), aff'd 607 F.2d 588, 589 (2d Cir.1979) (in immunity context, evidence that there was no precedent for a strip search policy is relevant to its reasonableness). In rejecting an immunity defense in an analogous situation, the Seventh Circuit has aptly stated:
It does not require a constitutional scholar to conclude that a nude search [of a fourteen-year-old] is an invasion of constitutional rights of some magnitude. More than that, it is a violation of any known principle of human decency. Apart from any constitutional readings and rulings, simple common sense would indicate that the conduct of the school officials in permitting such a nude search was not only unlawful but outrageous under “settled indisputable principles of law.”
Doe v. Renfrow, 631 F.2d 91, 92-93 (7th Cir.1980) (per curiam) (quoting Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975)).
We therefore reject Snow’s immunity claim.
County Liability
The county argues that it should not have been found liable for any damages caused by the Sheriff’s strip search rule. The district court rejected this argument and we agree that the Sheriff’s acts are chargeable to the County under the circumstances presented here.
“It is when execution of a [local] government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government of an entity is responsible.” Monell v. Department of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978); see Cloutier v. Town of Epping, 714 F.2d 1184, 1191 (1st Cir.1983) (“[i]n order for cities to be liable, the constitutional wrong must be committed pursuant to official policy.”) Here, state law expressly designates the Sheriff as the individual responsible for promulgating security policy with respect to corrections facilities. Under Mass.Gen.Laws Ann. Ch. 126, § 16 (1979), “[t]he Sheriff shall have custody and control of the jails in his county ... of the houses of correction therein, and of all prisoners committed thereto, and shall keep the same himself or by his deputy as jailer, superintendent or keeper, and shall be responsible for them.” Because he appointed himself superintendent of the County’s jails during his tenure as Sheriff, Snow was also given statutory authority to control all visitation, M.G.L.A. ch. 127, § 30, and to maintain order, id., at ch. 127, § 33, at the Jail. Thus, there could hardly be a clearer case of county liability, for when an official “is the final authority or ultimate repository of county power, his official conduct and decisions must necessarily be considered those of one ‘whose edicts or acts may fairly be said to represent official policy’ for which the county may be held responsible.” Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980); accord Overbay v. Lilliman, 572 F.Supp. 174 (W.D.Mo.1983) (Sheriff’s policies are County’s policies); Shadid v. Jackson, 521 F.Supp. 87 (E.D.Tex.1981) (same); Schnapper, Civil Rights Litigation After Monell, 79 Col.L.Rev. 213, 217-18 (1979).
■ What the County misunderstands is that it is not because county officials other than the Sheriff were “involved” in the promulgation of the strip search rule, that it is liable under Monell, nor is it because county .officials failed properly to “oversee” the Sheriff. Rather, it is liable because the Sheriff was the county official who was elected by the County’s voters to act for them and to exercise the powers created by state law. Accordingly, the Sheriff’s strip search policy was Plymouth County’s policy, and the County must respond in damages for any injuries inflicted pursuant to that policy.
Damages
Appellants’ final challenge is to the damages awarded below. They urge first that compensatory damages of $177,040 are “out of proportion” to the injuries Blackburn suffered. We agree that the damages are sizeable but, having carefully examined the evidence bearing on damages, we find that the record supports a substantial award.
The threshold question is whether the evidence was sufficient to establish that Blackburn suffered injuries as a result of the strip searches. The district court found that circumstances in Blackburn’s family background made her “extremely vulnerable to the potentially adverse consequences of an unwanted and intrusive strip search,” 586 F.Supp. at 666, and that “physical and psychological problems that plaintiff experienced following the strip searches were directly caused by the strip searches,” id. at 666. We see no clear error in these factual findings.
The evidence amply demonstrated that Blackburn’s background predisposed her to react severely both to the strip searches themselves and to being put to the “choice” of submitting to them or foregoing visits with her brother. Blackburn was the only member of her family who was not beaten by her alcoholic father. Psychiatrists on both sides of the case testified that, as a result of the “special treatment” she was afforded, she developed a heightened, and often self-destructive, sense of responsibility for others in the family. This sense of guilt and obligation was exacerbated by the fact that she was sexually molested by her father, even while being spared physical beatings. This abuse, according to the testimony of Blackburn’s psychiatrist Dr. Grassian, caused her to develop great guilt and anxiety about sexuality and accounted for extreme self-consciousness about her own physical development. The evidence showed, for example, that despite an otherwise good academic record in high school, she failed physical education because she refused to shower in the presence of others. Likewise, she avoided any physical contact with males during her adolescence and, in fact, had, at age 18, begun her first sexual relationship shortly before she was first strip searched.
The evidence was far more sharply divided on the question whether the strip searches did, in fact, inflict substantial harm on appellee. Dr. Grassian considered the searches directly responsible for a number of serious problems which beset Blackburn after April, 1977. He testified, and her own testimony corroborated, that she developed a phobia about sex after the searches which not only caused her to break off her first sexual relationship, but later manifested itself as a severe sexual dysfunction. That dysfunction, which rendered her unable to have sexual relations without experiencing muscle spasms, rigidity and pain, apparently persisted through Blackburn’s subsequent marriage and had not abated at the time of trial. Grassian further indicated that he traced symptoms of post traumatic stress syndrome to the searches. These symptoms included feelings of guilt and depression, recurring nightmares in which Blackburn imagined a jury laughing at her naked body, and difficulty sleeping. Dr. Grassian linked these symptoms to Blackburn’s ultimately attempting suicide and dropping out of college. Appellants’ psychiatric expert, Dr. Norman Zinberg, disagreed. He, too, believed that the strip searches were extremely uncomfortable for her, and painfully forced her to choose between her own best interests and those of her brother. But Dr. Zinberg did not think the searches were “devastating” to her, nor did he causally link the searches to the problems she later encountered. Indeed, he believed that Blackburn’s sexual abilities “improved” after the searches.
The court, as fact finder, was thus confronted with two radically different assessments of Blackburn’s reaction to the searches. In resolving just such a conflict, “[w]e rely heavily on the judgment of the trial court, who has had the benefit of hearing all of the evidence and observing the demeanor of the witnesses.” Clark v. Taylor, 710 F.2d 4, 13 (1st Cir.1983). Having had that benefit, and having heard Blackburn tell her own story, the court credited Dr. Grassian’s testimony, and found that the searches directly caused Blackburn the injuries enumerated above. Although appellants argue to us that those causal links were not proven, and the evidence is divided on several points, we cannot say that the court’s findings were clearly erroneous.
“[OJnce the fact of damage is established, the trial judge has much latitude in fixing the amount of damages.” Rivera Monrales v. Benitez de Rexach, 541 F.2d 882, 886 (1st Cir.1976) (citation omitted). Absent an abuse of discretion, T & S Service Associates v. Crenson, 666 F.2d 722, 728 (1st Cir.1981); Brule v. Southworth, 611 F.2d 406, 411 (1st Cir.1979), we will not ordinarily disturb the amount awarded.
Damage awards in actions under § 1983 should “provide fair compensation for injuries caused by the deprivation of rights.” Carey v. Pipkus, 435 U.S. 247, 258, 98 S.Ct. 1042, 1049, 55 L.Ed.2d 252 (1978) . Our cases hold that civil rights plaintiffs may recover for mental distress, see Clark v. Taylor, supra, 710 F.2d at 14; Brule v. Southworth, supra, 611 F.2d at 411. While the mental, as well as physical suffering Blackburn experienced may be difficult to quantify, see Clark v. Taylor, supra, at 13-14, we are satisfied by the court’s detailed factual findings that the damages awarded, including $27,040 for future medical costs, corresponded to actual and serious injuries — some of which persisted through trial. We note, as well, that the size of award need not have depended wholly on the idiosyncrasies of Blackburn’s personal history and her predisposition to be damaged by strip searches conducted under the circumstances present here — although the Sheriff surely took his proverbial victim as he found her. Other courts have approved large awards for even a single strip search, see, e.g., Marybeth G. v. City of Chicago, supra, 723 F.2d at 1275-76 (upholding award of $60,000 to pretrial detainee for one strip search), doubtless in recognition of the grossly intrusive nature of the practice. Moreover, where, as here, a prison official makes strip searches a matter of routine practice, and therefore compels all who wish to enter the institution to submit repeatedly to this grievous invasion, correspondingly higher damage awards are appropriate. See Hunter v. Auger, supra, 672 F.2d at 677.
Appellants also claim that the court’s award of prejudgment interest was improper. We have held that, in cases brought under § 1983, an award of prejudgment interest, though not mandatory, may be made if “necessary to compensate [the plaintiff] fully.” Furtado v. Bishop, 604 F.2d 80, 97 (1st Cir.), cert. denied, 444 U.S. 1035, 100 S.Ct. 710, 62 L.Ed.2d 672 (1979) . The decision is committed to the fact finder’s discretion. Heritage Homes of Attleboro v. Seekonk Water District, 648 F.2d 761, 764 (1st Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d 213 (1981). Here, the trial court made a finding that such an award was necessary. 588 F.Supp. 1386, 1389. But the court did not detail the bases of its findings.
We see a risk in this case that at least a portion of the award of prejudgment interest may have been improper. One would normally expect any of an amount awarded that is aimed at compensating for future pain, suffering, or emotional loss to be included in the lump sum award itself without additional interest. Certainly any of the award that was designed to compensate for future medical payments should have been included in the fixed (pre-interest) sum in an amount that, if invested, would grow to equal the fees likely charged at future times. Cf. Lakin v. Marr, 732 F.2d 233, 238 (1st Cir.1984). Moreover, the award itself was large and it was based upon an intangible loss — the type of loss more usually reflected in the (pre-interest) lump sum than, say, a past “liquidated” loss of fixed amount, to which interest (representing loss of use of the sum) is then appropriately added to make the plaintiff whole.
Under these circumstances, we believe that more specific findings on the need for prejudgment interest, including a finding as to the date upon which any award of interest should properly commence, are necessary and the case must be remanded to obtain them. Therefore, the case is affirmed in part, and vacated and remanded in part, for proceedings consistent with this opinion.
. Blackburn also testified that she signed a visitor slip each time she visited the Jail, in which she gave authorization to a search of her person and property. She testified that, as with the "skin search” sign, she assumed this search of her person referred to the routine pat frisks.
. The Sheriff testified that he barred Blackburn from visiting because of this gesture, not because he thought she had, in fact, meant to drop contraband on the lawn. The trial judge made no finding that Blackburn made an obscene gesture. Instead, the court believed that the Sheriff made his decision based on his conversation with Blackburn on the lawn. The court ruled, however, that any claim for damages resulting from this incident was not properly before it. Cole v. Snow, 586 F.Supp. 655, 659 & n. 9 (D.Mass.1984).
. A “strip search,” though an umbrella term, generally refers to an inspection of a naked individual, without any scrutiny of the subject's body cavities. A "visual body cavity search" extends to visual inspection of the anal and genital areas. A "manual body cavity search” includes some degree of touching or probing of body cavities. See Security & Law Enforcement Employees v. Carey, 737 F.2d 187, 192 (2d Cir.1984).
Three separate searches were conducted of Blackburn. The district court heard evidence on only the first two. According to the Court’s findings, the first search was a "visual body cavity search," which involved manual examination of her breasts, armpits, throat and ears, but not her body cavities. The second search, however, extended to a manual spread of Blackburn’s buttocks.
. As professor Amsterdam points out:
[A subjective expectation of privacy] can neither add to, nor its absence detract from, an individual's claim to Fourth Amendment protection. If it could, the government could diminish each person’s subjective expectation of privacy merely by announcing half-hourly that 1984 was being advanced by a decade and that we. were all forthwith being placed under comprehensive electronic surveillance.
Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 384 (1974). See Hudson v. Palmer, supra, 104 S.Ct. at 3199-3200, n. 7 ("The Court’s refusal to adopt a test of ‘subjective expectation’ is understandable; constitutional rights are generally not defined by the subjective intent of those asserting the rights. The problems in such a standard are self-evident.") (citations omitted). Without finding that Blackburn lacked any subjective expectation of privacy after the first search, we reject the argument that its absence could deprive her of an otherwise reasonable expectation.
. The severe intrusion entailed by strip searching Blackburn was exacerbated by the manner in which the searches were carried out. The district court found, and the record shows, that the searches were conducted "in an atmosphere of marginal privacy,” 586 F.Supp. at 662, and undertaken by personnel who received no training, medical or otherwise, as to how or where to conduct strip searches, id. Furthermore, as we have noted, the searches included manipulation of Blackburn’s breasts and spreading of her buttocks. Even courts that have upheld body cavity searches of inmates, e.g. Bell v. Wolfish, supra, 441 U.S. at 558, n. 39, 99 S.Ct. at 1884, n. 39, or of other individuals where a sufficient level of suspicion was present, e.g. United States v. Klein, 522 F.2d 296, 298 (1st Cir. 1975), have emphasized that those searches included no touching at all. Cf. United States v. Kallevig, 534 F.2d 411 (1st Cir.1976).
. We do not read the district court to have held, nor do we suggest, that the Sheriff was obliged to employ the least restrictive means available to safeguard institutional security. See Block v. Rutherford, supra, 104 S.Ct. at 3234, n. 10. But given his naked reliance on the inherent dangers of contact visits to justify a regime of routine visitor strip searches, the Sheriff was required, under basic Fourth Amendment balancing principles, to demonstrate some need for so intrusive a policy. While the fit between security requirements and privacy invasion need not be perfect, we believe that the Constitution requires that the fit be closer than it was here.
. In Wolfish, the Supreme Court, while acknowledging that body cavity searches instinctively gave it the "most pause,” 441 U.S. at 558, 99 S.Ct. at 1884, upheld as reasonable a jail policy requiring all inmates to expose their body cavities for visual inspection after all contact visits. In Arruda v. Fair, 710 F.2d 886 (1st Cir.1983), we applied Wolfish to uphold a prison policy requiring visual body cavity searches of maximum security inmates following visits, as well as trips to the law library and infirmary. Both concerned the Fourth Amendment rights of inmates.
. In Feeley v. Sampson, 570 F.2d 364 (1st Cir.1978), we held that the rights of pretrial detainees were not violated by a ban on contact visits. We recognized, however, that the availability of some form of visit, even if it involves no physical contact, implicates "communicative, as well as associational values protected by the first amendment.” Id. at 373.
. The evidence showed that Blackburn's brother was confined in this way not for disciplinary reasons, but because he had received a sentence at another institution and was, on that basis, administratively classified as an escape risk.
. This does not, of course, mean that the government may never condition access to a privilege it controls upon submission to a search. It is perfectly clear that the government may do so, when the search it requires, unlike here, independently satisfies the Fourth Amendment requirement of reasonableness. See, e.g., Wyman v. James, 400 U.S. 309, 91 S.Ct. 381, 27 L.Ed.2d 408 (1971) (upholding requirement that welfare recipients permit caseworkers to visit their homes because, if properly considered “searches” at all, the visits are reasonable under the Fourth Amendment); United States v. Bell, 464 F.2d 667, 674-675 (2d Cir.1972) (Friendly, J., concurring) (upholding requirement that airline passengers submit to metal detector searches because such searches are reasonable under the Fourth Amendment). As Justice White explained in See v. City of Seattle, a case which struck down as violative of the Fourth Amendment a requirement that warehouse owners permit warrantless administrative searches of their property:
We do not in any way imply that business premises may not reasonably be inspected in many more situations than private homes, nor do we question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product. Any constitutional challenge to such programs can only be resolved, as many have been in the past, on a case-by-case basis under the general Fourth Amendment standard of reasonableness.
387 U.S. 541, 546, 87 S.Ct. 1737, 1741, 18 L.Ed.2d 943 (1967).
See also W. LaFave, Searches and Seizures, § 8.2(K), at 677 (1978).
. While this consent question is one of law, not fact, our approach here is consistent with governing factual standards for consent to search. See Schneckcloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (requiring proof that consent was given freely, voluntarily and without duress, threat or coercion).
. Appellants’ reliance on Security & Law Enforcement Employees v. Carey, Til F.2d 187 (2d Cir.1984), where the court found the defendant officials immune, is likewise misplaced. There, the strip searches of prison employees held unconstitutional by the court were conducted only when some employee was suspected of wrongdoing.
. Unlike individual defendants, local governmental entities may not interpose the defense of immunity. Owen v. City of Independence, Mo., 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). | 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. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
0
] | songer_appnatpr |
TAX ANALYSTS AND ADVOCATES and Thomas F. Field et al. v. INTERNAL REVENUE SERVICE et al., Appellants.
No. 73-1978.
United States Court of Appeals, District of Columbia Circuit.
Argued April 5, 1974.
Decided Aug. 19, 1974.
Rehearing Denied Sept. 12, 1974.
Ernest J. Brown, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen. and Bennett N. Hollander, Atty., Tax Div., were on the brief, for appellants.
William A. Dobrovir, Washington, D. C., with whom Thomas F. Field, Washington, D. C., was on the brief, for ap-pellees.
Before WRIGHT and MacKINNON, Circuit Judges and DAVIES, Senior District Judge for the District of North Dakota.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
RONALD N. DAVIES, Senior District Judge:
In an action commenced pursuant to the Freedom of Information Act, 5 U.S.C. § 552, Tax Analysts and Advocates and its Executive Director sought to compel the Internal Revenue Service, its Commissioner and its Assistant Commissioner (Technical) to disclose letter rulings and technical advice memoranda, together with communications and in-dices relating thereto, issued to producers of minerals other than oil and gas between July 26, 1968, and October 1, 1971, in which determinations were made of the processes to be treated as “mining” under Section 613(c) of the Internal Revenue Code, 26 U.S.C. § 613(c), when computing gross income from property for percentage depletion purposes.
The District Court rejected the defendants’ (appellants’) contentions that the Freedom of Information Act (Act) did not apply to letter rulings or technical advice memoranda or that, if it did, specific exemptions precluded disclosure of the material sought. The District Court also refused appellants’ request that it exercise the discretion inherent in its equitable powers and refuse to order disclosure. The Court ordered all materials sought, consisting of two unpublished letter rulings, eight technical advice memoranda, communications to and from the taxpayer or his representative relating thereto, and six index-digest cards, be made available:
“ * * * intact and without deletion, except for those items which, within said thirty (30) days period, Defendants submit to the Court, sealed and intact, without deletion but with any proposed deletions indicated, for in camera review as to whether proposed deletion of information is justified under the Freedom of Information Act, together with a detailed written explanation of the justification for each deletion, * * * ”
and also:
-x * within thirty (30) days of date all items in the Internal Revenue Service’s index-digest reference card file sought by Plaintiffs herein, and all memoranda of conferences and telephone calls relating to the letter rulings and technical advice memoranda involved herein, unless within said thirty (30) day period those items are submitted to the Court for in camera review as to whether they may be properly withheld as internal memoranda within the meaning of exemption 5, 5 U.S.C. § 552(b)(5), of the Freedom of Information Act.” Tax Analysts and Advocates v. Internal Revenue Serv., 362 F.Supp. 1298 (D.D.C.1973).
A stay was granted pending appeal in which appellants present only two issues: (1) whether the materials sought were, under § 552(b)(3) of the Act, “specifically exempted from disclosure by statute” ; and (2) whether the District Court erred in holding that it did not have, under the Act, equitable powers to refuse to order disclosure.
As described by the District Court:
“A letter ruling is a written statement issued to a taxpayer by the Office of Assistant Commissioner (Technical) in which interpretations of the tax laws are made and applied to a specific set of facts. The function of a letter ruling, usually sought by the taxpayer in advance of contemplated transaction, is to advise the taxpayer regarding the tax treatment that he can expect from IRS in the circumstances specified in the ruling. The letter rulings are not publicly disclosed by the IRS and it is clearly specified that no taxpayer is entitled to rely upon an unpublished private ruling not issued specifically to him. The taxpayer who does receive such a ruling is advised to file it along with his tax return.
“A technical device (sic) memoranda (T.A. memo) is comparable to a letter ruling, except that it is not issued directly to a taxpayer, but to a District Director of the IRS in response to the director’s request for instructions as to the treatment of a specific set of facts relating to a named taxpayer. The director’s question may relate to audit examination of a taxpayer’s return or consideration of a taxpayer’s claim for refund or credit. The substantive portion of the memorandum if (sic) given to the taxpayer.
“All letter rulings and technical advice memoranda are divided into two categories by the IRS for filing purposes. Many rulings and memos are considered of no significant ‘reference’ value. These are placed in a historical file, alphabetically by taxpayer’s name, and maintained for a period of four years. No separate index is prepared for materials in the historical file. The other letter rulings and t.a. memos are deemed to have a continuing ‘reference’ value for internal IRS purposes, and these are placed in the IRS’ permanent reference file, along with Court decisions, published Revenue Rulings, and other materials deemed to have a continuing reference value. The reference file is organized by code section and an ‘index-digest’ card file is maintained, giving citations to the main ‘reference’ file and usually summarizing the contents of the reference file.” (Footnotes omitted.) Tax Analysts and Advocates v. Internal Revenue Serv., supra, at 1301-1302.
First, it is to be noted that appellants do not contest the District Court’s holding that letter rulings and technical advice memoranda are “statements of policy and interpretations which have been adopted by the agency and not published in the Federal Register”, Section (a) (2) (B), and must be made available for public inspection and copying if not exempt under subsection (b) (3) of the Act.
“It is well established that information which either creates or provides a way of determining the extent of substantive rights and liabilities constitutes a form of law that cannot be withheld from the public. See Sterling Drug, Inc. v. FTC, 146 U.S.App.D.C. 237, 450 F.2d 698 (1971); American Mail Line, Ltd. v. Gulick, 133 U.S.App.D.C. 382, 411 F.2d 696 (1968). The FOIA by its explicit terms condemns ‘secret law’ and requires that it be made public:
(2) Each agency, in accordance with published rules, shall make available for public inspection and copying—
(A) final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register )>
Cuneo v. Schlesinger, 157 U.S.App.D.C. 368, 484 F.2d 1086, footnote 13 at p. 1091 (1973).
Relying on 26 U.S.C. § 6103(a)(1), which provides
“Returns made with respect to taxes . upon which the tax has been determined by the Secretary or his delegate shall constitute public records; but, except as hereinafter provided . . . they shall be open to inspection only upon order of the President and under rules and regulations prescribed by the Secretary or his delegate and approved by the President”
and on 26 U.S.C. § 7213(a)(1) which makes it unlawful
“. . .to divulge or to make known . to any person the amount or source of income, profits, losses, expenditures, or any particular thereof, set forth or disclosed in any income return, or to permit any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; and it shall be unlawful for any person to print or publish in any manner whatever not provided by law any income return, or any part thereof or source of income, profits, losses, or expenditures appearing in any income return; >>
appellants contend that letter rulings and technical advice memoranda are “specifically exempted from disclosure by statute.”
It was appellants’ burden to sustain their claim that the materials sought came within the meaning of the statutes. Mere labeling of the letter rulings and tax advice memoranda as returns is not sufficient. It is the District Court’s function to determine whether appellants’ classification was proper.
“This court has continued to adhere to the position that exemptions of the Information Act are to be narrowly-construed. Vaughn v. Rosen [157 U.S.App.D.C. 340], 484 F.2d 820 (1973), cert. denied, 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974); Cuneo v. Schlesinger [157 U.S.App.D.C. 368] 484 F.2d 1086 (1973), cert. denied 415 U.S. 977 [94 S.Ct. 1564, 39 L.Ed.2d 873] (1974). The ordinary meaning of the language of Exemption (3) is that the statute therein referred to must itself specify the documents or categories of documents it authorizes to be withheld from public scrutiny. * * *
“In EPA v. Mink, 410 U.S. 73, [93 S.Ct. 827, 35 L.Ed.2d 119] (1973), the Supreme Court considered a specific exemption by statute, Exemption (1) of the Information Act itself, which exempts matters ‘specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy.’ 5 U.S.C. § 552(b) (1). The documents sought to be disclosed had been classified as secret pursuant to Executive Order 10501. Exemption (1) was construed to be a specific reference by Congress itself to a definite class of documents which were not to be disclosed. 410 U.S. at 83, [93 S.Ct. 827]. Their disclosure accordingly was not required.” (Footnote omitted.) Robertson v. Butterfield, 162 U.S.App.D.C. 298, 498 F.2d 1031 (1974).
The two statutes relied upon by appellants provide for protection of the privacy of taxpayers filing tax returns and are designed to prevent disclosure of information contained either in the returns or in documents filed in conjunction therewith which enable the Secretary or his delegate to determine tax due the United States. It is not difficult, therefore, to conclude that letter rulings are not encompassed in either statute. Letter rulings are issued at the request of taxpayers seeking advice as to the tax consequences of specific transactions. This information provides guidance in planning and conducting their business affairs and, if the transaction is consummated, aids in preparation of their tax returns. The fact that taxpayers may elect to follow the Internal Revenue Service’s recommendations that letter rulings be attached to returns containing information about the transactions referred to in the letter rulings does not deprive a letter ruling of its separate status as a “final opinion" and “interpretation" nor does it make the attachment part of a return. Attachment is to alert the District Director of the Internal Revenue Service that a letter ruling had been issued. The appropriate District Director is always sent a copy at the time a letter ruling is issued to any taxpayer required to file a return in his district.
Conversely, technical advice memoranda are prepared in response to an inquiry by a District Director as to the treatment of a specific set of facts relating to a tax return filed by a named taxpayer involving either an audit or in connection with the taxpayer’s claim for refund or credit of taxes. Technical advice memoranda deal directly with information contained in “returns made with respect to taxes” and are a part of the process by which tax determinations are made and, thus, “specifically exempted from disclosure by statute.”
We emphasize that there is still available to appellants, through in ca/mera production of all documents other than the technical advice memoranda and material relating thereto, exemption under § 552(b)(4) to prevent disclosure of “commercial or financial information obtained from a person and privileged or confidential.”
Lastly, appellants ask us to reconsider our previous holding that a District Court has no jurisdiction under the Act to deny disclosure, apart from the exemptions contained in the Act, on equitable grounds. Soucie v. David, 145 U.S.App.D.C. 144, 448 F.2d 1067 (1971); Getman v. NLRB, 146 U.S.App.D.C. 209, 450 F.2d 670 (1971); accord, Wellford v. Hardin, 444 F.2d 21 (4th Cir. 1971); Robles v. Environmental Protection Agency, 484 F.2d 843 (4th Cir. 1973); Tennessean Newspapers, Inc. v. Federal Housing Admin., 464 F.2d 657 (6th Cir. 1972); Hawkes v. Internal Revenue Service, 467 F.2d 787, n. 6 at p. 792 (6th Cir. 1972). See also Bannercraft Clothing Co. v. Renegotiation Board, 151 U.S.App.D.C. 174, 466 F.2d 345, 353 (1972) (discussing equitable principles) reversed on other grounds, 415 U.S. 1, 94 S.Ct. 1028, 39 L.Ed.2d 123.
However, there is nothing in the “factors present in this case which were absent in the other Freedom of Information Act cases considered by the Court” which would compel us to change our previous opinion.
Modified in part and remanded to the District Court for further proceedings not inconsistent with this opinion.
. The IRS also urges that Treas.Reg. § 301.6103(a)-l(a) (3) (Feb. 8, 1972), specifically exempts letter rulings from disclosure under the Act:
(3) Terms -used — (i) Return. For purposes of section 6103(a), the term “return” includes—
(a) Information returns, schedules, lists, and other written statements filed by or on behalf of the taxpayer with the Internal Revenue Service which are designed to be supplemental to or become a part of the return, and
(b) Other records, reports, information received orally or in writing, factual data, documents, papers, abstracts, memoranda, or evidence taken, or any portion thereof, relating to the items included under (a) of this subdivision.
Clearly, letter rulings are not encompassed by (a) since they are issued at the request of the taxpayer anti their attachment as a matter of convenience to the return does not make them “supplemental to or . .a part of the return.” Where the transaction proposed in the letter ruling is not executed, the letter ruling would not be comprehended by (b) since it would not “relate” to a filed return. However, letter rulings involving proposed transactions subsequently executed would fall within the literal terms of (b). Nonetheless, we think that letter rulings generated by the voluntary request of a taxpayer for tax advice from the IRS are beyond the scope of that which the Congress sought to protect under section 6103, that is, “returns” filed under compulsion of law which contain information necessary to determine federal tax liability. Accordingly, the regulation cannot immunize letter rulings from disclosure under the Freedom of Information Act.
. Our recent decision in National Parks and Conservation Assoc. v. Rogers C. B. Morton, Secretary, Department of the Interior et al., 162 U.S.App.D.C. 223, 498 F.2d 765 (1974), may be of aid to tlie District Court in this respect. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment. | [] | [
0
] | songer_const1 |
James Earl YOUNG, Sr., Appellant, v. STATE OF ARKANSAS et al., Appellees.
No. 75-1784.
United States Court of Appeals, Eighth Circuit.
Submitted April 15, 1976.
Decided April 22, 1976.
James Earl Young, pro se.
Jim Guy Tucker, Atty. Gen., and Gary Isbell, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for appellees.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
•- James Earl Young, Sr., an Arkansas state prisoner, appeals from the District Court’s dismissal of his petition for habeas corpus for failure to exhaust state remedies. We affirm.
The appellant was convicted in an Arkansas state court of possession of stolen property of a value greater than $35.00, in violation of Ark.Stat.Ann. § 41-3938. He was sentenced to thirty-one years imprisonment, under the Arkansas Habitual Offender Statute, Ark.Stat.Ann. § 43-2328.
íl'
From his conviction, the appellant filed a direct appeal to the Arkansas Supreme Court raising two issues: (1) that he had not been brought to trial within one hundred and eighty days of demand, as required by the Arkansas version of the Interstate Agreement on Detainers, Ark.Stat. Ann. § 43-3201, and (2) that certain evidence used at trial was the fruit of an illegal search. The Arkansas Supreme Court found both of these contentions to be without merit and affirmed the conviction.
In his petition for habeas corpus under 28 U.S.C. § 2254 below, the appellant asserted two grounds for relief: (1) that he was denied his Sixth Amendment right to a speedy trial; and (2) that there was insufficient evidence that the stolen property found in his possession exceeded the statutory amount required for a conviction under Ark.Stat.Ann. § 41-3938.
The District Court dismissed his speedy trial argument finding that the appellant had asserted in his direct appeal to the Arkansas Supreme Court only the alleged violation of Ark.Stat.Ann. § 43-3201 and not the Sixth Amendment argument now raised. As to the second ground, the District Court found that the appellant had not raised the issue at all in state court. The court, therefore, denied the petition for failure to exhaust available state remedies.
The record discloses that the appellant did not raise in state court either the Sixth Amendment argument or the insufficient evidence of the value of the stolen goods claim raised in federal court. Until the appellant raises these issues in state court, he has not exhausted his available state remedies. The District Court was correct in denying the appellant’s petition on that ground. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Blunt v. Wolff, 501 F.2d 1138 (8th Cir. 1974).
The appellant also contends on appeal that the evidence used at trial was the fruit of an unlawful search. While this argument was exhausted in state court, it was not presented to the District Court. It cannot be considered for the first time here. United States v. Sappington, 527 F.2d 508 (8th Cir. 1975).
We affirm.
. We note, as did the District Court, that the appellant has not yet availed himself of post-conviction relief available to him under Rule 37 of the Arkansas Rules of Criminal Procedure. | 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. | What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
0
] | songer_r_bus |
Billy J. McCOMBS, R. James Stillings, d/b/a Gastill Company, David A. Ons-gard, Basin Petroleum Corporation, and Bill Forney, Petitioners, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent. United Gas Pipe Line Company, Intervenor.
No. 75-1829.
United States Court of Appeals, Tenth Circuit.
March 31, 1983.
Before SETH, Chief Judge, HOLLOWAY, McWilliams, barrett, wil-liam E. DOYLE, McKAY, LOGAN and SEYMOUR, Circuit Judges.
ORDER
This matter comes on for consideration of the joint motion of petitioners and interve-nor in the captioned cause for an order vacating and withdrawing the court’s opinion of November 7, 1980, 705 F.2d 1177, and motion to dismiss.
Upon consideration whereof:
1. The opinion of the court filed November 7, 1980, and the dissenting opinion of Judge Holloway are withdrawn.
2. The judgment entered by this court in the captioned appeal on November 7, 1980, is hereby vacated.
3. The captioned cause is dismissed. Each party shall bear its own costs. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer_typeiss |
In re RIVINIUS, INC., Debtor. RIVINIUS, INC., Plaintiff-Counterdefendant-Appellant, v. CROSS MANUFACTURING, INC., Defendant-Counterplaintiff-Appellee.
No. 91-3474.
United States Court of Appeals, Seventh Circuit.
Argued June 3, 1992.
Decided Oct. 21, 1992.
Rehearing and Rehearing En Banc Denied Dec. 21, 1992.
Timothy L. Bertschy (argued), William I. Covey, Heyl, Royster, Voelker & Allen, Peoria, Ill., for defendant-counterplaintiff-appellee.
David B. Radley (argued), Andrew Covey, Baymiller, Christison, Radley & Covey, Peoria, Ill., for debtor.
Before CUDAHY, POSNER and KANNE, Circuit Judges.
KANNE, Circuit Judge.
Plaintiff Rivinius, Inc. brought this suit seeking a declaration that its obligation to defendant Cross Manufacturing, Inc. on a mortgage had been discharged by Rivinius’ prior bankruptcy. Cross counterclaimed for foreclosure of the mortgage. After trial, however, the bankruptcy court determined that Cross could only raise a counterclaim for contribution. Cross then sought to amend its answer pursuant to Rule 15(b) of the Federal Rules of Civil Procedure to state a contribution claim. The bankruptcy court and the district court found that the amendment was proper under Rule 15(b). Cross recovered on the counterclaim and Rivinius appealed on the ground that the amendment of Cross’ counterclaim was improper. Before we address the district court’s determination under Rule 15(b), we will review the complex procedural history of this case.
I.
In the 1970s, James H. Cross was the president and CEO of Rivinius as well as a majority shareholder of Cross. Rivinius manufactured road maintenance equipment, while Cross owned a variety of related manufacturing companies, some of which were involved in road maintenance.
Both Rivinius and Cross experienced financial difficulties during the late 1970s. To remedy the problems, James Cross arranged for a $10,000,000 loan to Rivinius and Cross from Associates Finance Company. Under the terms of the loan, each company was jointly responsible for repayment of the loan to Associates; Rivinius was a co-guarantor on Cross’ debt, and Cross was a co-guarantor on Rivinius’ debt.
After receiving the loan, Rivinius continued to experience financial problems and, in 1978, Rivinius filed for Chapter XI bankruptcy. In its reorganization plan, Rivinius proposed to pay Associates only a portion of the total debt, with payments spread over the five-year period of the plan. On July 7, 1978, the plan was confirmed by the bankruptcy court without objection by any creditors.
Three months after Rivinius declared bankruptcy, James Cross attempted to arrange for the satisfaction and assignment of Rivinius’ debt to Associates. To accomplish this, Cross borrowed money from the Farmers Home Administration and, on August 4, 1978, paid Associates in full. The parties agree that this released Rivinius from its loan obligation to Associates. In return for its payment of Rivinius’ debt, Cross received from Associates the Rivini-us note which was secured by a mortgage on Rivinius’ real property. As James Cross saw it, Associates’ assignment of the Rivinius note and mortgage did not release Rivinius from its obligation, but merely changed the party to whom Rivinius would be making payments.
In 1983, Rivinius completed its five-year bankruptcy reorganization plan, and its debts in the plan were discharged. However, because Cross was not listed in the plan as a creditor, Rivinius could not determine if its obligation to Cross on the Associates note had been discharged by the bankruptcy plan. In fact, the potential outstanding obligation to Cross made it impossible for Rivinius to secure other credit. Consequently, in 1983, Rivinius brought this suit against Cross in the bankruptcy court requesting a declaration that the debt to Cross had been discharged in the prior bankruptcy proceeding. In response, Cross denied that the debt had been discharged and filed a counterclaim against Rivinius, seeking foreclosure on the mortgage originally obtained by Associates.
In 1986, the bankruptcy court conducted a bench trial, after which the parties filed post-hearing briefs. Rivinius argued that Cross could not foreclose on the mortgage because it had been a co-maker of the note. Rivinius insisted that Cross could have brought an action for contribution, but pointed out that it had failed to plead a contribution claim. In its response, Cross sought to raise a claim for contribution even though the trial had concluded.
The bankruptcy court ruled that the promissory note to Cross Manufacturing had not been discharged, but the court also ruled that the amount of the debt would be substantially reduced from the face value of the note because of inequitable conduct on the part of James Cross. As for Cross’ contribution theory, the bankruptcy court ruled that any claim for contribution was barred by the Illinois statute of limitations.
Cross appealed to the district court, which reversed in part. The district court agreed that the promissory note to Associates was discharged as a matter of law when Cross paid that debt on behalf of Rivinius. The only remaining obligation was Rivinius’ obligation on the note to Cross. In contrast to the bankruptcy court, the district court ruled that James Cross’ inequitable conduct was not attributable to Cross Manufacturing and therefore could not be used to reduce Rivinius’ debt on the note. Turning to Cross’ counterclaim for foreclosure on the mortgage, the district court agreed with Rivinius that Cross and Rivinius had been co-makers of the note. Consequently, because the note to Associates had been discharged when Cross paid the debt to Associates in August of 1978, Cross could not foreclose against a co-maker. Instead, only a contribution action could be brought against Riv-inius. The court explained that because the note was discharged, Cross could not sue Rivinius on the note per se, but it could sue Rivinius for contribution of the payments Cross made on its behalf.
The district court remanded the case to the bankruptcy court with instructions to determine whether under Rule 15(b) Cross should be allowed to amend its counterclaim to include a claim for contribution. If the bankruptcy court allowed the amendment, it was also to determine whether the contribution claim was barred by the statute of limitations.
On remand, the bankruptcy court held that Cross could amend its counterclaim to include a claim for contribution, finding Rivinius had impliedly consented to the amendment because issues relevant to the contribution theory had been raised during the trial. The bankruptcy court stated:
In this case Cross did not plead, nor did the parties proceed to trial, on the theory of contribution. However, in the course of the trial, the facts did come out which established the right of contribution. The record is quite clear that Debtor, Cross, and its subsidiaries all signed the note. The record is equally clear that Cross paid Associates and took an assignment of the note.
(Emphasis added). The court further found that Rivinius would not be prejudiced by amendment and that there was no statute of limitations which would bar the claim.
The bankruptcy court allowed Cross to present further evidence on its contribution theory. One of Cross’ officers testified concerning the loan from Associates to the companies, and explained how the funds from the loan were distributed and how the loan was to be repaid. Rivinius’ objection to the admission of that evidence was overruled. After considering the evidence and reviewing the transcript of the bench trial, the bankruptcy judge found that the evidence established that Rivinius owed Cross approximately $500,000 on the contribution claim. Rivinius appealed that determination to the district court.
Before the district court, Rivinius argued that under Rule 15(b) Cross should not have been allowed to amend its complaint because it had not consented to the amendment. Rivinius also contended that Rule 15(b) did not permit amendment because the factual issues involved in the contribution action were not actually tried in the bench trial. Alternatively, Rivinius argued that it was denied its right to a jury trial on the issue of contribution.
The district court affirmed the judgment of the bankruptcy court. It agreed with Cross that the issues relevant to the contribution claim had been raised in the original bench trial in the bankruptcy court. It also found Rivinius’ argument that Cross’ counterclaim was barred by the statute of limitations to be without merit because Rivini-us had waived any statute of limitations defense when it filed its complaint. See Ill.Rev.Stat. ch. 110, ¶ 13-207. This appeal followed.
II.
The district and appellate courts review the factual findings of the bankruptcy court for clear error but review the bankruptcy court’s legal conclusions under a de novo standard. Matter of Newman, 903 F.2d 1150, 1152 (7th Cir.1990); Matter of Bonnett, 895 F.2d 1155, 1157 (7th Cir.1989); Bankruptcy Rule 8013. Moreover, our review of the factual findings is not limited to the district court’s decision but extends to the bankruptcy court’s findings of fact. Id.; In re First Wisconsin National Bank, 849 F.2d 284, 286 (7th Cir.1988); In re Kimzey, 761 F.2d 421, 423 (7th Cir.1985).
In this court Rivinius presses its argument that the bankruptcy court erred in applying Rule 15(b) to allow Cross to bring its counterclaim. Because that is a question of law, our review is de novo. Bonnett, 895 F.2d at 1157. Rule 15(b) provides that:
When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment....
FedR.Civ.P. 15(b) (emphasis added). As we noted in Burdett v. Miller, 957 F.2d 1375 (7th Cir.1992), consent is required before an amendment will be allowed. Id. at 1380. To determine whether there was express or implied consent, we must ascertain “ ‘whether the opposing party had a fair opportunity to defend and whether he could have presented additional evidence had he known sooner the substance of the amendment.’ ” Matter of Prescott, 805 F.2d 719, 725 (7th Cir.1986) (quoting Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 456 (10th Cir.1982)); see also Walton v. Jennings Community Hospital, Inc., 875 F.2d 1317, 1321 n. 3 (7th Cir.1989); Birdsell v. Litchfield Bd. of Fire & Police Comm’rs, 854 F.2d 204, 209 (7th Cir.1988).
In Burdett, a civil RICO case, the plaintiff alleged the existence of an enterprise consisting of the defendant and his accounting firm. 957 F.2d at 1379. After trial, the district court, in its findings of fact and conclusions of law, applied Rule 15(b) to hold that the plaintiff had proved a RICO enterprise involving different individuals. Id. at 1380. Specifically, the court found that the plaintiff had proved an enterprise consisting of the defendant and three of his associates, but it also found that the defendant’s accounting firm had not taken part in the enterprise. Id. at 1379. We held that the district court erred in using Rule 15(b) to change the enterprise after the trial was completed because the defendant “had no warning that evidence manifestly admissible because relevant to the [plaintiff’s] conspiracy charge would also be used to establish the existence of an enterprise to which no one in the course of th[e] litigation had alluded.” Id. In sum, we held that the district court improperly “changed the plaintiff's theory of the case after the time had passed for the defendant to present contrary evidence.” Id.; see also Birdsell, 854 F.2d at 209; Prescott, 805 F.2d at 725.
Cross argues that Rivinius did effectively consent to the amendment of its counterclaim because the elements necessary to foreclose on a mortgage are identical to the elements necessary to obtain contribution. To assess the merits of this argument, we shall briefly review the law governing contribution and mortgage foreclosure.
Under Illinois law, “the right to contribution arises due to the compulsory payment by a joint obligor of more than his share of a common obligation.” Ruggio v. Ditkow- sky, 147 Ill.App.3d 638, 101 Ill.Dec. 423, 498 N.E.2d 747, 750 (1986). To recover on an action for contribution, a plaintiff must prove that “he has paid more than his just proportion of the joint indebtedness and it must also disclose what the excess is.” Id.; see also Midwest Bank & Trust Co. v. Roderick, 132 Ill.App.3d 463, 87 Ill.Dec. 334, 337, 476 N.E.2d 1326, 1329 (1985).
A defendant to a contribution action has several available defenses. See Harris v. Buder, 326 Ill.App. 471, 62 N.E.2d 131, 133-34 (1945) (discussing several defenses to a contribution action). Possible defenses include the statute of limitations. See Ill.Rev.Stat. ch. 110, if 13-205 (five year statute of limitations). A defendant in a contribution action may also contest its share of the debt. See Roderick, 87 Ill.Dec. at 337, 476 N.E.2d at 1329. Any interest due on the debt is also at issue. Thus, under the Illinois authorities, Cross Manufacturing was required to prove that it paid more than its fair share of the joint indebtedness.
An Illinois statute governs foreclosure on a mortgage. See Ill.Rev.Stat. ch. 110, ¶ 15-110. Under ¶ 15-110, a plaintiff must introduce proof which meets several requirements to obtain foreclosure. See id. These requirements include proving that “the mortgagor or mortgagors named were justly indebted in the amount of the indicated original indebtedness to the original mortgagee ...” and that the mortgage was properly recorded. The requirements contained in II15-110 are technical and are not identical to the elements of a contribution claim. Moreover, a defendant in a mortgage foreclosure action may raise defenses different from a defendant in a contribution action. For example, the statute of limitations for mortgage foreclosure actions is 10 years, while the limitations period for contribution actions is five years. See Ill.Rev.Stat. ch. 110, ¶ 13-115 (10-year limitations period for mortgage foreclosure actions).
It is readily apparent that the law governing contribution and mortgage foreclosure is not identical. A trial on a mortgage foreclosure would not automatically mean that the parties had also consented to a contribution action. Indeed, a lawyer responding to a complaint seeking mortgage foreclosure would often respond differently from a lawyer who responded to a complaint seeking contribution.
Rivinius maintains that had it received notice of the contribution claim before trial it certainly could have presented evidence relating to its share of the indebtedness. Rivinius also points out that, after the bench trial, the bankruptcy court concluded that “there was no proof as to how much [Rivinius owed Cross]” on the note. Upon remand from the district court, the bankruptcy court heard evidence presented by Cross relating to Rivinius’ share of the debt. This fact, according to Rivinius, demonstrates that Cross did not prove a contribution claim at the bench trial. Cross responds that Rivinius’ share of the debt was clearly established at the bench trial because the evidence demonstrated that Cross paid Rivinius’ obligation on the note to Associates. We disagree with Cross because Rivinius could have presented evidence that it did not owe the full amount Cross claimed. In sum, we can find no reason to question the bankruptcy court’s original findings that Cross did not prove the amount due during the bench trial.
Rivinius certainly did not consent to Cross’ assertion of the contribution claim because it was not aware that Cross would raise a contribution theory until Cross filed its post-trial brief after the bankruptcy court bench trial. In a situation resembling that of Burdett, Cross sought to change its theory of the case when Rivinius could no longer present contrary evidence. See 957 F.2d at 1380. See also Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 421 (5th Cir.1981); International Harvester Credit v. East Coast Truck, 547 F.2d 888, 890 (5th Cir.1977). As we noted above, had Cross brought a contribution claim, Rivini-us could have contested the share of the debt due. Once the bench trial had concluded, however, it was too late for Cross’ contribution claim. The bankruptcy and district courts erred in finding that Rivinius consented to the amendment of Cross’ counterclaim.
We also agree with Rivinius that Rule 54(c) of the Federal Rules of Civil Procedure cannot save Cross’ contribution claim either. Rule 54(c) provides in part that: “[e]xcept as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party’s pleadings.” See Williamson v. Handy Button Machine Co., 817 F.2d 1290, 1298 (7th Cir.1987) (“[T]he court is to determine, and award, the right relief in each case even if the complaint is silent on the question.”). However, Rule 54(c) does not allow Cross to obtain relief based upon a contribution theory that was not properly raised at trial. Cioffe v. Morris, 676 F.2d 539, 541 (11th Cir.1982).
Because Cross did not prove during the bench trial the amount due from Rivinius to Cross, we cannot agree that the error was harmless. Consequently, judgment on Cross’ counterclaim must be entered in favor of Rivinius.
We Reverse the judgment of the district court and Remand this case for further proceedings consistent with our opinion.
. To avoid confusion, when discussing the owner of the companies we shall refer to "James Cross.” "Cross” shall refer to Cross Manufacturing.
. The bankruptcy judge determined that James Cross had acted inequitably during the period when he controlled Rivinius and Cross. At that time, James Cross had transferred a corporation which belonged to Rivinius, the Littleford Line, to another corporation he controlled allegedly without compensating Rivinius.
. Paragraph 15-110 has been repealed effective July 1, 1987. See Ill.Rev.Stat. ch. 110, ¶ 15-1106(f). The new version of ¶ 15-110 is contained in chapter 110, ¶ 15-1504(c). Under ¶ 15-1106, any complaint to foreclose the mortgage shall be adjudicated under the law in effect immediately prior to July 1, 1987. Thus, ¶ 15-110 governs the mortgage foreclosure action brought by Cross.
. Only after the remand when the bankruptcy court took additional evidence did it find that Cross had proved the amount due on its claim.
. We need not address the final argument presented by Rivinius. The bankruptcy court had found that Cross’ contribution recovery would be reduced because of James Cross’ inequitable conduct in transferring the Littleford Line to Cross without compensating Rivinius. The district court reversed that determination on the ground that James Cross’ conduct was not attributable to Cross. Because we have held that Cross could not raise a contribution theory after the bankruptcy court completed the bench trial, we need not reach this issue. | 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). | What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)? | [
"Trial (either jury or bench trial)",
"Injunction or denial of injunction or stay of injunction",
"Summary judgment or denial of summary judgment",
"Guilty plea or denial of motion to withdraw plea",
"Dismissal (include dismissal of petition for habeas corpus)",
"Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)",
"Appeal of post settlement orders",
"Not a final judgment: interlocutory appeal",
"Not a final judgment: mandamus",
"Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment",
"Does not fit any of the above categories, but opinion mentions a \"trial judge\"",
"Not applicable (e.g., decision below was by a federal administrative agency, tax court)"
] | [
9
] | songer_applfrom |
UNITED STATES v. SYMONETTE. SAME v. KIRKLAND.
Nos. 6479, 6480.
Circuit Court of Appeals, Fifth Circuit.
April 13, 1932.
W. P. Hughes, U. S. Atty., of Jacksonville, Fla., and B. B. Cisco, Asst. U. S. Atty., of Miami, Fla.
Bart A. Biley, of Miami, Fla., for ap-pellee Symonette.
Before BBYAN, FOSTEB, and SIB-LEY, Circuit Judges.
FOSTEB, Circuit Judge.
These two cases present an identical question, and may be disposed of in one opinion.
Arthur Symonette pleaded guilty in the Miami Division of the Southern District of Florida to violations of the National Prohibition Act and the Customs Laws, and on April 22, 1931, was sentenced to serve six months in the Palm Beach county jail. On July 24, 1931, ho was brought into court, and his sentence was modified to three months and two days, and he was placed on probation for a period of two years.
Foy Kirkland was convicted of violations of the National Prohibition Act in tho same court and division, and on April .16, 1931, was sentenced to serve six months in the Dade county jail. On July 15, 1931, he was brought into court, and his sentence was suspended for a period of one year, and he was paroled to the probation officer.
There is hut one term of court a year in the Southern District of Florida. The term at Miami begins on the fourth Monday in April and ends with the beginning of ihe succeeding term. Section 76, Judicial Code (28 USCA § 149). In 1931 the fourth Monday of April was the 27th. It is apparent that both the above sentences were imposed in the 1930 term and that after the defendants had been committed to jail and begun to serve them they were amended and the prisoners put on probation in the succeeding term. Tho court was without jurisdiction to thus amend the sentences. U. S. v. Murray, 275 U. S. 347, 48 S. Ct. 146, 72 L. Ed. 309; U. S. v. Cook (C. C. A.) 19 F.(2d) 826.
It follows that the judgments amending the sentences and placing the defendants upon probation must be annulled and set aside. Tn both oases the judgments appealed from are reversed and the cases remanded for further proceedings not inconsistent with this opinion. | 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". | In what state or territory was the case first heard? | [
"not",
"Alabama",
"Alaska",
"Arizona",
"Arkansas",
"California",
"Colorado",
"Connecticut",
"Delaware",
"Florida",
"Georgia",
"Hawaii",
"Idaho",
"Illinois",
"Indiana",
"Iowa",
"Kansas",
"Kentucky",
"Louisiana",
"Maine",
"Maryland",
"Massachussets",
"Michigan",
"Minnesota",
"Mississippi",
"Missouri",
"Montana",
"Nebraska",
"Nevada",
"New",
"New",
"New",
"New",
"North",
"North",
"Ohio",
"Oklahoma",
"Oregon",
"Pennsylvania",
"Rhode",
"South",
"South",
"Tennessee",
"Texas",
"Utah",
"Vermont",
"Virginia",
"Washington",
"West",
"Wisconsin",
"Wyoming",
"Virgin",
"Puerto",
"District",
"Guam",
"not",
"Panama"
] | [
9
] | songer_state |
MO-KAN TEAMSTERS PENSION FUND, a trust fund, and Mo-Kan Teamsters Health & Welfare Fund, a trust fund, Plaintiffs-Appellees, v. Robert J. CREASON, d/b/a Kansas Cartage Company, Defendant-Appellant.
No. 81-1671.
United States Court of Appeals, Tenth Circuit.
Sept. 6, 1983.
Certiorari Denied Jan. 9,1984.
See 104 S.Ct. 716.
Susan Ellmaker of Gates & Clyde, Overland Park, Kan., for defendant-appellant.
Michael C. Arnold of Yonke, Shackelford & Arnold, P.C., Kansas City, Mo. (Albert J. Yonke, Kansas City, Mo., with him on brief; George A. Groneman, Kansas City, Kan., also on brief), for plaintiffs-appellees.
Before BARRETT, McKAY and SEYMOUR, Circuit Judges.
SEYMOUR, Circuit Judge.
This is an action brought under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185 (1976), and section 502 of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132 (1976 & Supp. V 1981). Defendant Robert J. Creason appeals from the district court’s order awarding plaintiffs Mo-Kan Teamsters Pension Fund and Mo-Kan Teamsters Health and Welfare Fund (the Funds) delinquent fringe benefit contributions, with interest, audit costs, and attorney’s fees. He alleges that the trial court erred in (1) finding that he executed a contract stipulation; (2) failing to find the stipulation unenforceable as a prehire agreement; (3) finding that his obligation did not terminate; (4) rejecting certain parol evidence; and (5) basing the measure of damages on the results of an audit submitted by plaintiffs. We affirm.
I.
EXECUTION OF CONTRACT STIPULATION
A. Factual Background
Creason owns and operates Kansas Cartage Company, a trucking firm. The plaintiff trust funds were established in 1969 pursuant to a collective bargaining agreement between the Builders’ Association of Kansas City, Missouri (Builders’ Association) and Local Union No. 541 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers (Union). Although Creason has never been a member of the Builders’ Association, the Union placed a picket on Creason’s business on March 14, 1971, to protest his refusal to make payments into the Funds. The next day Creason met with Karl Rogers, who is the president and a business representative of the Union and a trustee of both Funds.
From this point the facts are hotly disputed. Plaintiffs’ witnesses testified that Creason executed the following contract stipulation:
“TEAMSTERS LOCAL UNION 541 CONTRACT STIPULATION
“The undersigned employer acknowledging receipt of a copy of the Collective Bargaining Agreement presently in effect between the Builders’ Association of Kansas City and Local Union 541, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, and after negotiation and a complete discussion of the facts and circumstances involved and desiring and intending to be bound by the prevailing wages and conditions in the area, hereby agrees with the Union to be bound by the terms of such collective bargaining agreement, subsequent collective bargaining agreements, all fringe benefit agreements, welfare and pension plan trusts, all rules and regulations adopted by the Trustees of the aforementioned Trusts, and all other legal agreements between the aforementioned parties and any renewals, modifications, or extensions thereof for the duration of all said agreements. This stipulation which expressly applies to each and every term of the above agreements, shall be valid and effective when approved by the union and the proper undersigned Board of Trustees and shall remain in effect until five years from this date and thereafter shall automatically renew itself for a three-year period and at regular three-year intervals thereafter, unless either the employer or the union gives written notice of desire to terminate to the other party and to the association, no more than 90 days and no less than 60 days prior to any such three-year anniversary date. Dated at 3-15-71. this_day of_19__”
Rec., vol. Ill, at 413. The stipulation was signed and dated by Karl Rogers. Creason allegedly also signed the document. He disputed this at trial, however, testifying, “[i]t appears to be my signature but I did not sign this document.” Rec., vol. XI, at 322. He said that he did sign two copies of the Builders’ Association collective bargaining agreement with the words “under protest,” and took an unsigned copy back to his office. However, he failed to produce either of the allegedly signed copies of this agreement.
The Funds introduced considerable evidence controverting Creason’s position. Rogers testified that there would have been no reason for Creason to sign the Builders’ Association contract. Additionally, the Funds produced several other documents purportedly signed by Creason. Creason conceded that all but one of the signatures appeared to be his, but he would neither deny nor affirm them as his. He did, however, acknowledge one signature as his own, a notarized signature on a document from other litigation. He conceded that this authenticated signature “appear[ed] to be the same” as the others, including the disputed one on the stipulation. Rec., vol. XI, at 343.
The parties agree that Creason submitted monthly remittance reports and made payments to the Funds from March 1971 to December 1976. Their explanations differ, however. Creason’s position is that the payments were only for work done on the Crown Center project, in accordance with a purported oral agreement with Rogers. The Funds insist that he was bound by the contract stipulation to make payments for all covered workers, and they seek the delinquent amount.
B. Discussion
Creason contends the district court erred in finding that he executed the stipulation. Initially, we note that a district court’s findings of fact may be overturned on appeal only if they are clearly erroneous. Fed.R.Civ.P. 52(a). “ ‘When a ease is tried to the district court, the resolution of conflicting evidence and the determination of credibility are matters particularly within the province of the trial judge who heard and observed the demeanor of the witnesses.’ ” Equal Employment Opportunity Commission v. Central Kansas Medical Center, 705 F.2d 1270, 1274 (10th Cir.1983) (quoting Dowell v. United States, 553 F.2d 1233, 1235 (10th Cir.1977)).
On appeal, Creason suggests that the trial court should not have considered the other signatures offered. He relies on a line of early Iowa cases discussed in Cousin v. Cousin, 192 F.2d 377 (8th Cir.1951). Cousin, however, is limited to Iowa law, and is neither controlling nor persuasive. Rule 901(b)(3) of the Federal Rules of Evidence allows triers of fact to authenticate writings by comparing them with authenticated specimens. The trial court’s use of plaintiffs’ exhibits was entirely proper. See generally 5 J. Weinstein & M. Berger, Weinstein’s Evidence ¶¶ 901(b)(3)[02]-[03] (1982). Despite Creason’s testimony to the contrary, there was sufficient evidence to conclude that he did in fact sign the stipulation. The court’s finding is not clearly erroneous.
II.
PREHIRE AGREEMENT
Creason argues that the contract stipulation is unenforceable as a prehire agreement entered into without majority support for the Union. Such prehire agreements have been authorized only in the building and construction industry. National Labor Relations Act § 8(f), 29 U.S.C. § 158(f) (1976).
“By authorizing so-called ‘prehire’ agreements ..., § 8(f) .. . exempts construction industry employers and unions from the general rule precluding a union and an employer from signing ‘a collective-bargaining agreement recognizing the union as the exclusive bargaining representative when in fact only a minority of the employees have authorized the union to represent their interests.’ ”
Jim McNeff, Inc. v. Todd,-U.S.-, 103 S.Ct. 1753, 1756, 75 L.Ed.2d 830 (1983) (quoting NLRB v. Local Union No. 103, International Association of Bridge, Structural & Ornamental Iron Workers (Higdon), 434 U.S. 335, 344, 98 S.Ct. 651, 657, 54 L.Ed.2d 586 (1978)).
The district court found that Creason was not an employer in the building and construction industry, but it also found that the stipulation was not a prehire agreement. Rather, it held the stipulation to be “a contract in which defendant voluntarily recognized the desire of a majority of his current employees to be represented by Teamsters Local No. 541.” Rec., vol. II, at 227. The district court’s finding that Creason voluntarily recognized the Union is not clearly erroneous. Consequently, “a presumption was created that a majority of the employees desired Union representation.” Arco Electric Co. v. NLRB, 618 F.2d 698, 700 (10th Cir.1980).
If Creason believed that the Union did not represent a majority of his employees, his proper recourse was before the NLRB. Lack of majority status can only be challenged in an unfair labor practice proceeding, over which the NLRB has exclusive jurisdiction. New Mexico District Council of Carpenters v. Mayhew Co., 664 F.2d 215, 217 (10th Cir.1981). It is not a valid defense to a section 301 action for enforcement of accrued contractual obligations. Jim McNeff, 103 S.Ct. at 1758-59; Mayhew, 664 F.2d at 219-20.
Creason argues that under certain circumstances an employer can assert the illegality of a promise as a defense to a section 301 action. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 102 S.Ct. 851, 70 L.Ed.2d 833 (1982). However, Kaiser Steel is not controlling in this case. Unlike the asserted lack of majority status raised here, the hot cargo clause involved in that case was clearly an illegal promise as well as an unfair labor practice. See National Labor Relations Act § 8(e), 29 U.S.C. § 158(e) (1976). The Court did not disturb “the general rule [that] federal courts do not have jurisdiction over activity which ‘is arguably subject to § 7 or § 8 of the [NLRA],’ and they ‘must defer to the exclusive competence of the National Labor Relations Board.’ ” Kaiser Steel, 455 U.S. at 83, 102 S.Ct. at 859 (quoting San Diego Building Trades Council v. Garmon, 359 U.S. 236, 245, 79 S.Ct. 773, 779-780, 3 L.Ed.2d 775 (1959)). The Court’s unanimous decision in Jim McNeff makes clear that lack of majority status may not be asserted as a defense in a section 301 enforcement action.
III.
TERMINATION OF OBLIGATION
Creason contends that his obligation under the stipulation terminated upon expiration of the Builders’ Association collective bargaining agreement in effect at the time of the stipulation. The stipulation by its terms binds Creason to “all other legal agreements between [the Union and the Builders’ Association] and any renewals, modifications, or extensions thereof for the duration of all said agreements.” Rec., vol. III, at 413. Creason argues that his obligation terminated March 31,1974, because the collective bargaining agreement expired at that time and a new one did not become effective until May 1, 1974.
Creason also asserts that the trial court erred in holding that a letter sent by his attorneys to the Union and the Funds on January 24,1977, did not terminate his obligation. The letter stated:
“[T]o the extent anyone believes that Robert J. Creason or Kansas Cartage Company is bound to the Joint Agreement between the Builders Association of Kansas City, Missouri, and Local Union No. 541, pursuant to Article XIV of the Joint Agreement presently in effect, please be advised that Mr. Creason and Kansas Cartage Company hereby give written notice of the Joint Agreement which is presently in effect until March 31, 1977.”
Rec., supp. vol. I, at 5. The district court noted that the attempted termination would have been timely had Creason been a party to the agreement between the Builders’ Association and the Union. It was not timely under the terms of the contract stipulation, however, which required notice of termination no more than ninety days and no less than sixty days prior to the anniversary dates in March 1976 and March 1979. Consequently, the district court held that Creason continued to be bound by the contract stipulation.
Creason argues that it is unfair to require him to decide over a year in advance of the expiration of the collective bargaining agreement whether to renew his participation, citing Seymour v. Coughlin Co., 609 F.2d 346, 350 (9th Cir.1979), cert. denied, 446 U.S. 957, 100 S.Ct. 2929, 64 L.Ed.2d 816 (1980). In Seymour, the employer had executed a “short form” contract which substantially incorporated the terms of an agreement between a multi-employer bargaining unit and a union. The short form stated that it was effective for the term of the master agreement “and for any renewals or extensions thereof,” but said nothing about modifications. See id. The trial court held that the employer was not bound by a subsequent, modified master agreement, even though the employer had continued to make payments. The Ninth Circuit declined to reverse the trial court’s interpretation and findings.
The Ninth Circuit later made clear that no per se rule was announced in Seymour. See Construction Teamsters Health & Welfare Trust v. Con Form Construction Corp., 657 F.2d 1101, 1103 (9th Cir.1981). Con Form involved a short form contract which, like the contract stipulation here, bound the employer to a master agreement and modifications thereof. The court stated “[i]t is clear that a signatory to a Short Form Agreement can agree to be bound by future modifications, extensions and renewals of [a Master Labor Agreement].” Id. at 1103. In upholding the trial court’s determination that the employer continued to be bound, the Ninth Circuit noted that “[additionally, we find Con Form’s conduct in continuing to pay the pension trust through December of 1977 and in sending a letter of termination in April of 1978, further evidences the parties intent to be bound by subsequent MLAs unless written notice of termination was given.” Id. at 1104.
We find Con Form persuasive in refuting both Creason’s claim that his obligation terminated when the collective bargaining agreement lapsed in March 1974 and his claim that holding him to the termination provision of the contract stipulation would be unfair. Because Creason continued to make payments until December 1976, thus ratifying the new agreement, we need not address whether the thirty-day lapse in 1974 prevented .the May 1 agreement from being a renewal, modification, or extension of the earlier agreement. We likewise decline to reverse the district court’s view of the contract stipulation’s termination clause.
IV.
PAROL EVIDENCE
According to Creason, Rogers had assured him at the March 15 meeting that “he would not bother the rest of our operation if we would agree to pay into the health and welfare fund on the Ceco . .. work at the Crown Center [construction site].” Rec., vol. XI, at 318. Rogers denied making such a promise.
Creason urges that the district court should not have rejected his evidence of oral representations by Rogers. He suggests the parol evidence should have been admitted to show that the contract was voidable due to mistake of fact. He argues that his testimony about Rogers assuring him he would only have to pay for employees involved with the Crown Center project is supported by the fact that “the only thing done pursuant to the master agreement was that money was paid into the funds on some of the employees.” Brief for Appellant at 30.
A recent Ninth Circuit case is directly on point, and is dispositive of this contention. In Waggoner v. Dallaire, 649 F.2d 1362 (9th Cir.1981), the employer testified that a union business agent “promised not to enforce the terms of the agreement if [the employer] signed the ‘short form’ and agreed to adhere to the contract until he had finished the ‘Thibado job,’ a large construction project [the employer] was then undertaking.” Id. at 1365. The district court held that the agreement was null and void because of fraud in the inducement. Discussing “the elaborate protection section 302 [of the LMRA, 29 U.S.C. § 186 (1976)] provides trust beneficiaries,” id. at 1366, the Ninth Circuit reversed, holding “that an employer and a union may not orally modify the terms of employee trust provisions in a collective bargaining agreement.” Id. (citing Lewis v. Seanor Coal Co., 382 F.2d 437, 441-44 (3d Cir.1967), cert. denied, 390 U.S. 947, 88 S.Ct. 1035, 19 L.Ed.2d 1137 (1968)); accord Maxwell v. Lucky Construction Co., 710 F.2d 1395 (9th Cir.1983). We agree with the reasoning in Waggoner. See also Manning v. Wiscombe, 498 F.2d 1311 (10th Cir.1974).
V.
MEASURE OF DAMAGES
The district court based damages on the results of an audit performed by an accountant from the Greater Kansas City Joint Construction Fringe Benefit Audit Program. Creason argues that the audit contained several significant errors and that the court’s awards of damages were thus not supported by sufficient evidence.
The collective bargaining agreement required employers to pay a certain amount to each Fund for each hour a covered employee worked. Because Creason’s business records had been stolen shortly before notice of the audit, records of hours worked were unavailable. The auditor therefore estimated hours worked by dividing gross wages (obtained from government records) by the hourly wage for pickup truck drivers. Creason argues that this method was inappropriate because his employees were paid on a percentage basis rather than an hourly wage. Additionally, he notes that the rate for pickup truck drivers was lower than other rates and that use of a lower rate would inflate hours. The trial court addressed these concerns reasonably, imposing awards in amounts five percent lower than those calculated by the auditor, rather than imposing the expense of a new audit on defendant.
Creason next argues that two employees should not have been included in the audit because they were supervisors. Yet Creason himself testified that these employees also performed covered work (deliveries, mechanic work) as well as some supervision. The record contains substantial evidence to support the conclusion that they were covered. Creason also contends that his employees performed work outside the geographical jurisdiction of the agreement, but he presented no evidence from which that fact could be determined. Finally, he suggests that the audit included the work of employees who performed millwright work (installing equipment), which, is not covered by the agreement. However, the auditor testified that she did not include millwrights, office workers, yard maintenance workers, and ground maintenance workers, based on Creason’s answers to interrogatories about his employees’ duties.
“When the cause and existence of damages have been established with the requisite certainty, recovery will not be denied because the amount of such damage is difficult of ascertainment. A reasonable basis for computation and the best evidence available under the circumstances is sufficient.’’ Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1388 (10th Cir.1981). The district court did not err in using the results of the audit to assess damages.
We have considered Creason’s other contentions and find them unpersuasive. Accordingly, the judgment is affirmed. | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "miscellaneous", specifically "fiduciary, executor, or trustee". Your task is to determine which of the following specific subcategories best describes the litigant. | This question concerns the second 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? | [
"trustee in bankruptcy - institution",
"trustee in bankruptcy - individual",
"executor or administrator of estate - institution",
"executor or administrator of estate - individual",
"trustees of private and charitable trusts - institution",
"trustee of private and charitable trust - individual",
"conservators, guardians and court appointed trustees for minors, mentally incompetent",
"other fiduciary or trustee",
"specific subcategory not ascertained"
] | [
4
] | songer_respond2_8_3 |
Millie VECCHIO, Individually and as Administratrix of the Goods, Chattels and Credits of Mario Vecchio, Deceased, Appellant, v. ANHEUSER-BUSCH, INC., Appellee.
No. 28429.
United States Court of Appeals Second Circuit.
Argued Nov. 18, 1963.
Decided Feb. 24, 1964.
Medina, Circuit Judge, dissented.
Augustin J. San Filippo, New York City, Borris M. Komar, New York City, of counsel, for appellant.
Hanlon & Dawe, New York City, Francis J. Healy, E. Richard Rimmels, Jr., Garden City, of counsel, for appellee.
Before MEDINA, WATERMAN and MARSHALL, Circuit Judges.
WATERMAN, Circuit Judge.
On April 26, 1960, Mario Vecchio, an electrician employed by the Art Kraft Strauss Sign Corporation, fell to his death while servicing an electric sign atop a Newark, New Jersey brewery owned by Anheuser-Busch, Inc. His widow thereafter brought this action against Anheuser-Busch, Inc. in the United States District Court for the Eastern District of New York. The action was grounded on the alleged negligence of the defendant, and jurisdiction was properly based on diversity of citizenship.
At the conclusion of plaintiff’s case the defendant moved for a directed verdict in its favor and renewed that motion at the close of its own case. The court refused to direct a verdict, and the case went to the jury. A verdict was returned in favor of defendant, judgment was entered accordingly, and plaintiff has appealed on the ground that the trial court erred in its charge to the jury. While it does appear that the charge given was improper inasmuch as it left to the jury the task of defining the legal duty owed plaintiff’s intestate by defendant, the record in the case demands that the judgment entered below be affirmed. We find that the facts developed by plaintiff during the trial were insufficient to permit recovery under governing New Jersey law, and we hold that defendant’s motion for a directed verdict should have been granted.
The sign which plaintiff’s decedent was servicing when he was killed was one of two such signs erected atop defendant’s Newark brewery in 1951 by Art Kraft Strauss Sign Corporation, decedent’s employer. Emblazoned with defendant’s advertising emblem, and equipped with electric lights and neon tubing, the sign stood 30 feet high and 25 feet wide. It was supported by a metal structure embedded in the roof of the two-story brewery.
Access to the sign for servicing was had by means of a scaffold built onto it by Art Kraft Strauss when the sign was erected in 1951. The scaffold extended the length of the sign, and was supported by two cables of wire rope which were attached to its metal top. Winches on the scaffold enabled workmen servicing the sign to move the scaffold up and down on the cables. The scaffold and cables were destroyed by a hurricane in 1954 and were replaced at that time by Art Kraft Strauss Sign Corporation, decedent’s employer. The replaced cables and scaffolding remained on the sign until the day of plaintiff’s decedent’s unfortunate accident in 1960.
On the day of the accident Art Kraft Strauss ordered plaintiff’s decedent and two of its other employees to service the signs on top of defendant’s brewery. They were furnished with special wire for testing each sign’s electrical equipment and with new electric lamps and neon tubing to be used in replacing any fixtures they might discover had deteriorated. Art Kraft Strauss issued no warnings to decedent and its other workmen relative to the condition of the scaffolding and cables on the signs.
Plaintiff’s decedent and his fellow workmen arrived at defendant’s brewery and proceeded to service one of the signs. Decedent and another workman, Picone, were on the sign’s scaffold when the accident occurred. They had been working with the scaffold hoisted to the top of the 30-foot sign, and, having completed their work there, were lowering the scaffold. The cable supporting the side of the scaffold occupied by plaintiff’s decedent suddenly snapped, and both men were thrown off. Picone managed to save himself by grabbing onto a guide cable, but plaintiff’s decedent fell 100 feet through the roof of a lower adjoining building and thereby met his death.
! Plaintiff claimed at the trial that at the time of the accident the advertising sign and its attached scaffold had been owned by defendant Anheuser-Busch, Inc., and that defendant had been negligent in failing to keep the scaffolding and cables in a safe condition. She introduced evidence tending to show that the cable which had snapped had done so because of deterioration caused by corrosion, that the cables had not been protected or covered in any way, and that smoke and vapors emitted from defendant’s brewery buildings may have accelerated the corrosion of the cables.
| When Art Kraft Strauss erected the sign in 1951, it entered into an agreement with defendant through the latter’s .advertising agent which provided, inter 'alia, that title to the sign was to remain ¡ in Art Kraft Strauss until certain payments had been made to it by defendant. Another agreement was entered into in 1956, providing primarily for maintenance of the sign by Art Kraft Strauss, but also containing reservation of title provisions similar to those which had been incorporated into the 1951 agreement. Plaintiff contends that, despite the reservation of title provisions and the failure of defendant to make one payment called for in the contract, title nevertheless had passed to defendant by the time of the accident. Defendant argues that title had not passed. We find no need to examine in detail the part of the agreement relating to passage of title or the effect of the payments made pursuant to it, for it is clear that the defendant must be treated as the owner of the sign for the purposes of this case. Indeed, we will assume while we examine plaintiff’s claimed grounds for liability that defendant did, in fact, own the sign at the time of the accident in 1960.
By far the more important part of the 1956 agreement was that part dealing with the maintenance and care of the sign. The agreement expressly stated that it was to cover its “complete maintenance” and that of the companion sign, and the responsibility for this maintenance was placed on decedent’s employer, Art Kraft Strauss. As the scaffolding and cables were part of the sign, and were used exclusively for maintenance operations by Art Kraft Strauss’s employees, Art Kraft Strauss was responsible for maintaining both the scaffolding and cables and the advertising portion of the sign. Plaintiff’s counsel admitted as much in the course of a colloquy with the court below, and plaintiff’s own witness, one of decedent’s fellow workmen, testified that he had himself inspected and greased the scaffold cables “forty or fifty times” while working on the sign on previous occasions. It was undisputed that Art Kraft Strauss had erected new cables, and scaffolding to replace those destroyed by a hurricane in 1954. No evidence was introduced by plaintiff tending to show that employees of defendant had ever worked on the sign, or the cables, or the scaffolding, or had ever directed work on them. Under New Jersey law, these facts being uncontroverted, defendant violated no duty owed by it to plaintiff’s decedent, and any blame for negligence in causing the accident in this case must rest solely on decedent’s employer, Art Kraft Strauss.
Continuing to treat the defendant as the owner of the sign and the scaffolding, we reach plaintiff’s argument that defendant, as such owner, is bound by certain provisions of the New Jersey Safety Code in effect in 1960, R.S. 34:5-1 et seq., N.J.S.A., relating to the maintenance of scaffolding and work at elevated places generally. This argument must fail, however, because of the interpretation the New Jersey courts have given that section of the Safety Gode which lists the persons upon whom its provisions are binding. The section in point is section 34:5-161 of N.J.S.A., and it imposes obligations under the Code upon “[a]ny manager, superintendent, owner, foreman or other person in charge of any building, construction or other place” where a Code violation occurs. In interpreting this section of the Code, the New Jersey courts have emphasized the words “or other person in charge,” and have therefore refused to apply the Code’s requirements to persons included within one of the categories set forth earlier in the section but who are nevertheless not in control of the work or premises connected with a Code violation. Gibilterra v. Rosemawr Homes, Inc., 19 N.J. 166, 115 A.2d 553 (1955) ; Trecartin v. Mahony-Troast Const. Co., 18 N.J.Super. 380, 87 A.2d 349 (App.Div.1952).
In Gibilterra v. Rosemawr Homes, Inc., supra, one of the defendants, Rosemawr Homes, had hired the United Construction Company to do excavation work on a tract of land owned by Rosemawr. It had also hired one Vellone to do the plumbing work on the project. One of Vellone’s employees was injured when a trench dug by United Construction Company’s steam shovel operator, Bayley, collapsed. The injured employee argued that Rosemawr, as owner of the land being excavated, was bound by certain provisions of the New Jersey Safety Code relating to excavations. New Jersey’s highest court rejected the argument, reasoning as follows:
“The obligations under the Safety Code, R.S. 34:5-1 et seq., N.J.S.A. •x- -x- -x- are imposed only upon ‘any manager, superintendent, owner, foreman or other person in charge of any building, construction or other place, in which this chapter is violated,’ R.S. 34:5-161, N.J.S.A. (Emphasis supplied.) Whatever may be the case as between Vellone, on the one hand, and United and Bayley, on the other, one or the other of them, and not Rosemawr, was ‘in charge’ of the ‘place,’ the trench, where the Code was violated, if it was, and the violations cannot therefore be the basis of liability of Rosemawr.” Id., 115 A.2d at 555.
In the case before us defendant had contracted with decedent’s employer Art Kraft Strauss for the latter to maintain and repair the sign and its scaffolding. One of plaintiff’s own witnesses testified that he, as an employee of Art Kraft Strauss, had many times inspected and greased the scaffold’s cables. No evidence was introduced showing that defendant in any way controlled or directed maintenance work on the scaffolding or the sign itself. Under these circumstances we think it clear that, whatever violations of the Safety Code of New Jersey may have occurred and may have operated to cause decedent’s accident, defendant was not chargeable with any liability for them.
The fact that Art Kraft Strauss, plaintiff’s decedent’s employer, had complete control over the maintenance of the sign and scaffolding also precludes recovery under the second theory of liability advanced by plaintiff. This contention is that defendant, as owner of the premises upon which plaintiff’s decedent was working, breached its duty to furnish decedent, an invitee workman, with a safe place to work.
It is settled law in New Jersey that where an owner of property engages an independent contractor to do work on his premises, he owes to the contractor’s employees who enter the premises to perform the work the duty of exercising reasonable care to furnish them with a safe place to work. E.g., Gudnestad v. Seaboard Coal Dock Co., 15 N.J. 210, 104 A.2d 313 (1954); Beck v. Monmouth Lumber Co., 137 N.J.L. 268, 59 A.2d 400 (1948); Murphy v. Core Joint Concrete Pipe Co., 110 N.J.L. 83, 164 A. 262 (1933); Zanca v. Conti, 73 N.J.Super. 23, 179 A.2d 129 (1962).
This duty is qualified, however, by the rule that one who engages an independent contractor to do work for him, and who does not himself undertake to interfere with or direct that work, is not obligated to protect the employees of the contractor from hazards which are incidental to or part of the very work which the independent contractor has been hired to perform. Gibilterra v. Rosemawr Homes, Inc., supra; Broecker v. Armstrong Cork Co., 128 N.J.L. 3, 24 A.2d 194 (1942); Wolczak v. National Elec. Prods. Corp., 66 N.J.Super. 64, 168 A.2d 412 (App.Div.1961); Jensen v. Somerset Hospital, 58 N.J.Super. 204, 156 A.2d 25 (App.Div.1959), certification denied, 31 N.J. 551, 158 A.2d 451 (1960); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J.Super. 372, 125 A.2d 292 (App.Div.1956); Trecartin v. Mahony-Troast Const. Co., supra.
Thus, in Broecker v. Armstrong Cork Co., supra, where an employee of a contractor hired to replace a deteriorated roof fell through the roof and was injured, the court found no liability on the part of the owner for failing to provide scaffolding or otherwise guard the employee against the danger arising from the weakened condition of the roof. And in Gibilterra v. Rosemawr Homes, supra, the owner of premises under excavation was found not to be liable to the employee of a plumbing contractor who, while laying pipe in a ditch dug by another contractor, was injured when the wall of the ditch collapsed.
On the other hand, the owner was not permitted to take advantage of the above rule and escape liability in Zanca v. Conti, supra, where the employee of a contractor hired by a village to install a sewer was injured when a water main alongside the sewer trench burst, the court emphasizing that the contractor had been hired “to install a sewer, not to make repairs to the water main.” 73 N.J.Super. 23, 179 A.2d 129, 137. The same result was reached in Reiter v. Max Marx Color & Chemical Co., 67 N.J. Super. 410, 170 A.2d 828 (App.Div.1960), where the owner of a water tank hired an independent contractor to install a new pipe at the bottom of the tank. One of the contractor’s employees who had climbed down into the tank to inspect the fittings on the old pipe was injured when a stationary wooden ladder attached to the inside of the tank wall collapsed. The court refused to deem the hazard posed by the weak ladder a hazard incidental to the work which the contractor had been hired to perform, for it noted that the contractor had not been called upon to do any work on the ladder which was merely the means of access to the pipe upon which the contractor and his employees were to work. 67 N.J. Super. 410, 170 A.2d at 829-830.
In the case at bar, plaintiff’s decedent’s employer had contracted with defendant to provide “complete maintenance” for the sign which decedent was servicing when he was killed. The contract, as explained above, covered maintenance of not only the part of the sign serving as an advertising device but also the attached scaffold and cables. Thus, though decedent was at the time of the accident engaged in servicing a part of the sign other than the scaffolding, he was part of a larger operation of his employer which involved keeping the scaffold in a safe condition.
No evidence was introduced to show that defendant attempted to participate in any way in the maintenance work which it had hired decedent’s employer to perform, and it appears that the scaffolding in question was used only by employees of Art Kraft Strauss who serviced the sign. Decedent’s co-worker who testified for plaintiff stated that he had himself inspected and greased the scaffold cable on forty or fifty occasions, and he even indicated that the inspection and greasing of the cables had been done by him and other Art Kraft employees on the same days that they had worked on the advertising portion of the sign.
On the basis of these uneontroverted facts, we are forced to conclude that the hazard which caused decedent’s death was part of and incidental to the very work which decedent’s employer, Art Kraft Strauss, had contracted with defendant to perform, and, therefore, that the governing New Jersey law permits of no recovery by plaintiff as against this defendant. Thus, despite the incorrect charge given the jury when they found for defendant, the judgment entered below for defendant must be affirmed because the lower court should not have submitted the case to the jury at all but should have granted defendant’s motion for a directed verdict.
Affirmed. | 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. | 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? | [
"auto",
"chemical",
"drug",
"food processing",
"oil refining",
"textile",
"electronic",
"alcohol or tobacco",
"other",
"unclear"
] | [
7
] | songer_respond1_1_4 |
UNITED STATES ex rel. BAYARSKY v. BROOKS et al.
No. 11046.
United States Court of Appeals Third Circuit.
Argued Sept. 17, 1953.
Decided Feb. 1, 1954.
Harry Nadell, Paterson, N. J., for appellant.
E. Leo Backus, Atty., Department of Justice, Washington, D. C. (Warren E. Burger, Asst. Atty. Gen., Grover C. Rich-man, Jr., U. S. Atty., Newark, N. J., Marvin C. Taylor, Chief, Frauds Section, William M. Lytle, Atty., Department of Justice, Washington, D. C., on the brief), for appellee.
Before BIGGS, Chief Judge, and GOODRICH and HASTIE, Circuit Judges.
BIGGS, Chief Judge.
Bayarsky instituted the instant qui tam action on January 5, 1942, under the False Claims Act, enacted March 2, 1863, R.S. § 3491. The Act was amended on December 23, 1943, 57 Stat. 608. See 31 U.S.C.A. § 232. The case has been before us once before on appeal and the facts set out in our earlier opinion need not be repeated here. We reversed an order of the court below abating the suit, concluding that despite the fact that the complaint filed by Bay-arsky, mutatis mutandis, was a Chinese copy of an indictment filed by the United States, and contained no information not in the possession of the United States on January 5, 1942, nonetheless the suit did not abate because the United States had filed a timely appearance in the action pursuant to 31 U.S.C.A. § 232(C) and (D). See D.C.N.J. 1945, 58 F.Supp. 714 and 3 Cir., 1946, 154 F.2d 344. Following our opinion the instant suit lay dormant, as did an independent suit on the identical claim filed by the United States in its own name on May 19, 1943, being United States v. Adam-etz, C.A. No. 2914 (D.C.N.J.). Thereafter the claim was settled by a payment of $225,000 made to the United States. The sole issue before the court below was Bayarsky’s right to an informer’s fee. The court decided that he was not entitled to anything, D.C., 110 F.Supp. 175, and the appeal at bar followed.
We agree with that decision. Bayarsky contends that if the 1943 amendments deprived him of his right to an informer’s fee the 1943 law is unconstitutional. The argument which he makes in this connection was fully discussed and rejected by the United States Court of Appeals for the Second Circuit in United States, ex rel. Rodriguez v. Weekly Publications Inc., 1944, 144 F.2d 186, and Sherr v. Anaconda Wire and Cable Co., 1945, 149 F.2d 680. We can add nothing to the lucid arguments therein presented. We adopt the reasoning of these decisions.
The second ground asserted by Bayarsky for recovery is somewhat difficult to follow. He seems to argue that because we held the suit, which was begun before the 1943 amendments were enacted, did not abate by reason of the intervention of the United States, other provisions of the 1863 Act continue to govern the suit.
The 1943 amendments apply to the instant suit, however. The amendments provide that in any suit commenced by an informer in which the United States has intervened, whether begun before or after the effective date of the amendments, the court may award to the informer “who brought such suit”, out of its proceeds, an amount which in the judgment of the court is fair and reasonable “for disclosure of the information or evidence not in the possession of the United States when such suit was brought.” (Emphasis added.) See 57 Stat. 608, 31 U.S.C.A. § 232(E) (1). Bayarsky concedes that he had disclosed no information to the United States on or before January 5, 1942, when he filed his complaint. He asserts, however, that in 1950 he procured from Brooks, one of the defendants, a statement which was of substantial use to the United States in procuring the settlement. Accepting Bayarsky’s position at its face value and treating the Brooks statement as new and useful information acquired in 1950 by the United States, through Bayarsky’s intervention, nonetheless, Bayarsky’s information does not fall within the terms of the amended statute,
The employment by Congress of the article “the”, emphasized and quoted in the foregoing paragraph, read in conjunction with the phrase, also quoted, “who brought such suit”, indicates that the information given to the United States upon which recovery by the informer must be based is the information or evidence upon which the informer based his own suit. Otherwise, the use by Congress of the word “the” is meaningless. Bayarsky reads 31 U.S.C.A. § 232(E) (1) as if the word “the” were omitted. Had it been omitted any substantial information given to the United States by the informer following the filing of the informer’s suit would furnish a basis for an award to the informer as Bayarsky in effect contends.
We think it is evident that Congress was directing its attention to the point in time when the suit was filed. Congress intended to reward the informer who by his energy and perseverance procured information upon which his suit was based. Our interpretation is in accord with the purpose of the 1943 amendments which was to stamp out the practice of would-be informers basing civil suits on information taken from pending federal criminal prosecutions. See Senate Report No. 291, 78th Cong., 1st Sess., 1943, as quoted in our earlier opinion, 154 F.2d at page 346.
Our view finds confirmation in subsection (C) of Section 1, the subsection which we interpreted in our earlier decision 154 F.2d at page 345, which provides that a United States district court loses jurisdiction to proceed, in the absence of intervention by the United States, with a Clause (B) suit whenever it appears that “* * * such suit was based upon evidence or information in the possession of the United States * * * at the time such suit was brought * * The time for information to be made available to the United States by an informer, if he is to recover an award is unmistakably designated as the time of the filing of the suit.
We also note that a Senate amendment to the original bill, H.R. 1203, 78th Cong., 1st Sess., which eventually constituted the 1943 amendments, added the following: “Nothing in this Act shall affect any such suit which was filed prior to June 15, 1942.” See Senate Report No. 291, 78th Cong., 1st Sess. (1943). Senator Ferguson, on the floor of the Senate, stated that this amendment was added for the purpose of permitting Bayarsky’s then pending action to go forward under R.S. § 3491. See 89 Cong.Rec. 7577 (1943). But the Senate amendment was eliminated in conference and is not in the statute. See 89 Cong.Rec. 10687-8 (1943). The foregoing is important for it is clear that members of Congress had before them facts relating to Bayarsky’s suit and seemed to consider that legislation of the kind provided by the Senate amendment was necessary if Bayarsky was to recover.
The other points raised by Bayarsky need not be discussed. It is clear that he cannot recover.
The judgment of the court below will be affirmed.
. It is only fair to point out that Bayarsky rendered one valuable service to the United States in this case. He prevented the bar of the statute of limitations from running. Bayarsky began his suit before the statute of limitations had barred action. See R.S. § 3494, 31 U.S.C.A. § 235. But the United States did not intervene until 1944, after the statute had run. It was only by intervention in Bay-arsky’s suit that the United States was able to recover. Bayarsky had requested the United States to take over the action soon after he had begun it but the United States refused to intervene in the suit at that time. | 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 "miscellaneous". | What is the specific issue in the case within the general category of "miscellaneous"? | [
"miscellaneous interstate conflict",
"other federalism issue (only code as issue if opinion explicitly discusses federalism as an important issue - or if opinion explicity discusses conflict of state power vs federal power)",
"attorneys (disbarment; etc)",
"selective service or draft issues (which do not include 1st amendment challenges)",
"challenge to authority of magistrates, special masters, etc.",
"challenge to authority of bankruptcy judge or referees in bankruptcy",
"Indian law - criminal verdict challenged due to interpretation of tribal statutes or other indian law",
"Indian law - commercial disputes based on interpretation of Indian treaties or law (includes disputes over mineral rights)",
"Indian law - Indian claims acts and disputes over real property (includes Alaska Native Claims Act)",
"Indian law - federal regulation of Indian land and affairs",
"Indian law - state/local authority over Indian land and affairs",
"Indian law - tribal regulation of economic activities (includes tribal taxation)",
"other Indian law",
"international law",
"immigration (except civil rights claims of immigrants and aliens)",
"other",
"not ascertained"
] | [
15
] | songer_casetyp1_9-3 |
MADE RITE INVESTMENT CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. MADE RITE TRANSPORTATION CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. MADE RITE MANUFACTURING CO., Petitioner, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
Nos. 20117-20119.
United States Court of Appeals Ninth Circuit.
Feb. 28, 1966.
Wayne Hea, of Hea & Anderson, San Francisco, Cal., for petitioners.
Richard M. Roberts, Acting Asst. Atty. Gen., Meyer Rothwacks, Richard J. Herman, 3. Edward Shillingburg, Attys., Dept, of Justice, Washington, D. C., for respondent.
Before CHAMBERS, MERRILL and DUNIWAY, Circuit Judges.
PER CURIAM:
Petitioners seek review of a decision of the Tax Court upholding the Commissioner in disallowance of corporate income tax exemptions and deductions for the years 1956 through 1959. Petitioners are three of four corporations organized for the purpose of taking over various phases of what theretofore had been a single business enterprise operating as a partnership. Multiple surtax exemptions were disallowed under section 269 of the Internal Revenue Code of 1954 because the Tax Court found that the principal purpose for the organization of the three petitioner corporations rather than a single corporation was the avoidance of income taxes. Salary deductions were disallowed because the Tax Court found that reasonable compensation for certain employees during 1956 and 1957 was less than the amounts which were deducted by the taxpayers. This appeal raises two issues.
1. Was the Tax Court correct in its determination that the principal purpose for the organization of the three corporations was the avoidance of tax?
2. Was the Tax Court correct in its determination of the amounts representing reasonable compensation paid to officers and employees of Investment and Transportation during 1956 and 1957?
Both issues are factual in nature, and hence the question on review is whether the Tax Court’s findings were clearly erroneous. The Tax Court in its opinion, reported sub nom., Dillier v. Comm’r, 41 T.C. 762 (1964), carefully considered and weighed the business purposes asserted by petitioners as reasons for setting up four corporations, and dealt with the proof (and lack of it) that the salaries allowed by the several corporate taxpayers were for personal services actually rendered to the taxpayer.
In both respects we are satisfied that the findings of the Tax Court are not clearly erroneous.
Affirmed. | 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. | Is the opinion writer identified in the opinion, or was the opinion per curiam? | [
"Signed, with reasons",
"Per curiam, with reasons",
"Not ascertained"
] | [
1
] | songer_opinstat |
PRICE IRON & STEEL CO. v. BURNET, Commissioner of Internal Revenue.
No. 5040.
Court of Appeals of District of Columbia.
Argued Nov. 5, 1930.
Decided Dec. 1, 1930.
George E. H. Gardner, of Washington, D. C., for appellant.
Sewall Key, C. M. Charest, J. Louis Monarch, S. Dee Hanson, and F. E. Mitchell, all of Washington, D. C., for appellee.
Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.
VAN ORSDEL, Associate Justice.
Appellant, an Illinois corporation, appealed from a decision of the United States Board of Tax Appeals denying a reduction in its taxes for the year 1920. It appears that during the years 1918, 1919, and 1920, appellant was engaged in the business of buying and selling serap metal, with its principal office in Chicago, 111. Its return for taxes for the year 1920 was on the accrual basis. It reported in that year all the items of income appearing on its books, and deducted all allowable costs and expenses.
During 1918, 1939, and 1920, appellant purchased large quantities of scrap metal from the Director General of Railroads and the New York Central Railroad Company. In 1924, the Director General and the railroad company, through their attorneys, demanded from appellant $80,000 on account of the wrongful classification and grading of scrap metals which appellant had purchased from them. The claim was disputed and a settlement was arrived at in March, 1925, under which appellant paid the amount of $35,-000; and a full discharge of all claims and demands by the railroad company and the Director General was given the appellant.
Appellant then filed with the Commissioner of Internal Revenue a claim for refund, in which he sought to deduct the $35,000 paid in 1925, as additional cost for goods sold in 1920. This claim was denied by the commissioner on the theory that appellant’s contracts and purchases in 1920 had been fully executed in that year, and that this claim could not attach back to the transactions of that year. Appellant then amended its petition and sought a review before the board of the commissioner’s final determination of the deficiency, requesting that $17,742.12 of the $35,000 be allowed as additional cost of goods sold for 1920, the balance applying to the years prior to that date.
It will be observed that the question here presented is whether or not this amount, first demanded in 1924, and finally settled and paid in 1925, is a proper deduction as a part of appellant’s costs of goods sold in 1920.
The return made by appellant in 1920 on the accrual basis was complete for that year. The amount paid in 1925 could not be considered as an additional purchase price hut as a liability of the petitioner for a wrongful classification of the goods purchased in 1920. The goods purchased in 1920 were fully paid for according to the classification recognized a,t that time. In other words, the 1920 return was a complete statement, from the books of the company, of the cost of the goods under the prevailing classification. This action, therefore, is not to correct any error in the 1920 return. What occurred in 1925 was an additional payment due to a mistake in classification and grading of the serap iron, a liability which occurred in 1925, and not in 1920. It constituted a separate transaction growing out of the dealings of 1920. At most, it constituted an item which, if deductible at all, would belong in the return for 1925, and not for 1920, and eould not, we think, relate back to the 1920 return in such manner as to be regarded as an additional part of the purchase price of the goods for that year.
The decision of the Board of Tax Appeals is affirmed. | 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 - taxes, patents, copyright". | What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"? | [
"state or local tax",
"federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)",
"federal tax - business income tax (includes corporate and parnership)",
"federal tax - excess profits",
"federal estate and gift tax",
"federal tax - other",
"patents",
"copyrights",
"trademarks",
"trade secrets, personal intellectual property"
] | [
2
] | songer_casetyp1_7-3-1 |
Auckland SEMPER and Eldra Semper, Appellants, v. Raymundo SANTOS and Everett Investments, Inc. d/b/a Caribbean Car Rentals.
No. 87-3203.
United States Court of Appeals, Third Circuit.
Argued April 19, 1988.
Decided May 12, 1988.
Ronald W. Belfon (argued), Law Office of Warren M. Williams, Charlotte Amalie, St. Thomas, U.S. Virgin Islands, for appellants.
Douglas A. Brady (argued), Jacobs & Brady, Christiansted, St. Croix, U.S. Virgin Islands, for appellee.
Before SEITZ, SLOVITER, BECKER, Circuit Judges.
OPINION OF THE COURT
SLOVITER, Circuit Judge.
This case presents two issues: whether the trial court was required to grant a new trial because the jury failed to award damages for pain and suffering to plaintiff, and whether the trial court may preclude testimony of a witness who was not timely identified.
I.
Facts
Auckland Semper (Semper) and his wife brought suit in the Territorial Court of the Virgin Islands for injuries suffered by Semper when the automobile he was driving was hit by one driven by defendant Raymundo Santos. Santos, who had never before been in the Virgin Islands, was driving a rented car and was unaware that he was required to drive on the left side of the road. Because both cars were travelling at less than fifteen (15) miles per hour, a head-on collision was avoided and the impact was slight. Semper sued Santos and the company from which he rented the car. The trial court’s grant of summary judgment to Semper against Santos on liability was uncontested. Thus, the only issue at trial as to Santos pertained to the amount of damages.
Following the accident, the police took Semper to the hospital, where he complained of chest pain and dizziness, Dr. Alfred Heath, a physician working in the emergency room, examined him, noted a contusion (bruise) to Semper’s chest, and released him after receiving negative x-rays. It is not clear whether Semper was prescribed medication upon his release. Although Dr. Heath, defendants’ witness, stated at trial that the normal procedure is to prescribe medication, he noted that the emergency room records did not indicate medicine being prescribed. App. at 204. Semper was charged $57.00 for emergency room services.
Approximately two weeks later, Semper, again complaining of chest pain, returned to Dr. Heath. Again, the diagnosis was a contusion to the chest, the symptoms of which normally subside within two or three weeks from the date of injury. App. at 215. At that time, Dr. Heath gave Semper a prescription for tylenol and codeine for pain. App. at 211. There is no evidence that this prescription was filled. No billing statement for this visit was offered into evidence, and Dr. Heath was unable to corroborate Semper’s testimony that he was charged for this visit.
Semper testified at trial that he saw an unlicensed “healer” about a month after seeing Dr. Heath. Again, however, no bills were produced and it remained uncorroborated that Semper had actually paid for the “healer’s” services.
Semper also testified that he visited several physicians on account of injuries received in the accident. Only one of these physicians, Dr. McDonald, testified. He stated that he had seen Semper on three occasions beginning approximately two and one-half years after the accident, and that although Semper complained of lower back pain, neck pain, a numb right leg, tremors, and pain around his waist, he complained primarily about his sexual dysfunction. None of these complaints was noted on the records of the hospital emergency room immediately after the accident or on Dr. Heath’s records of Semper’s visit two weeks later. Dr. McDonald suggested that there might be a psychogenic (“in the mind”) cause for Semper’s sexual dysfunction. App. at 91.
Dr. McDonald testified that he prescribed Semper medication for the spasms in his lower back. App. at 66. Semper introduced evidence of other prescriptions, but Dr. Heath testified that those medications prescribed were for the treatment of ulcers and for the treatment of earaches. App. at 222-23.
Following the trial on the issue of damages, the jury found for the defendant car rental company, against Semper’s wife, and for Semper in the amount of $57.00 against Santos, the amount of the total out-of-pocket expenses for which Semper submitted evidence. The trial court denied Semper’s motion for a j.n.o.v. or for a new trial. Semper appealed to the Appellate Division of the District Court of the Virgin Islands, complaining, inter alia, about the inadequacy of the verdict and the trial court’s refusal to permit a treating physician to testify. The Appellate Division of the District Court rejected both of these contentions, holding that the Territorial Court did not abuse its discretion.
Semper appeals to this court. We consider first the scope of our review over the decision of the Appellate Division of the District Court of the Virgin Islands. The usual deference that an appellate court gives the trial court’s discretionary rulings, see United States v. Criden, 648 F.2d 814, 817-19 (3d Cir.1981), is inapplicable when one appellate court reviews another. We have held in connection with another system of two-tiered appellate review that the second appellate tribunal should review the trial court’s determination using the same standard of review applied by the first appellate tribunal. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-102 (3d Cir.1981) (reviewing district court’s appellate review of bankruptcy court decision). In such a system, both appellate courts are equally able to review the factual findings and discretionary rulings of the trial court, and it is only through an independent review of the trial court’s findings that the second appellate court can determine whether the first appellate court erred in its review. See id. at 102. This reasoning is equally applicable to our review of the Appellate Division of the District Court of the Virgin Islands.
II.
Inadequacy of Damage Award
The scope of this court’s review of a damage award is “ ‘exceedingly narrow’ ”, Williams v. Martin Marietta Alumina, Inc., 817 F.2d 1030, 1038 (3d Cir.1987) (quoting Walters v. Mintec International, 758 F.2d 73, 80 (3d Cir.1985)), whether the appeal is from an allegedly excessive jury verdict or an allegedly inadequate damage award. See, e.g., Nussbaum v. Warehime, 333 F.2d 462, 464 (7th Cir.1964), cert. denied, 379 U.S. 979, 85 S.Ct. 682, 13 L.Ed.2d 570 (1965). We have ordered a new trial for excessive damages only when the verdict is so grossly excessive as to “shock the judicial conscience.” Williams, 817 F.2d at 1038 (citation omitted). Similarly, the remedy of a new trial for insufficient damages is only appropriate where the evidence indicates that the jury awarded damages in an amount “ ‘substantially less than was unquestionably proven by plaintiff’s uncontradicted and undisputed evidence.’ ” Taylor v. Bennett, 323 F.2d 607, 609 (7th Cir.1963) (quoting Schaeper v. Edwards, 306 F.2d 175, 177 (6th Cir.1962)); see also Tann v. Service Distributors, Inc., 56 F.R.D. 593, 598 (E.D.Pa.1972) (new trial will not be awarded unless damages assessed by jury are so unreasonable as to offend conscience of the court), aff'd, 481 F.2d 1399 (3d Cir.1973).
The question of adequacy of damages is primarily left to the sound discretion of the trial court in considering a motion for a new trial, and this court will not disturb that determination unless a “ ‘manifest abuse of discretion’ [is] shown.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d 215, 225-26 (3d Cir.1977), cert. denied, 434 U.S. 1034, 98 S.Ct. 767, 54 L.Ed.2d 781 (1978); see also Murray v. Fairbanks Morse, 610 F.2d 149, 153 (3d Cir.1979) (“trial judge is in the best position to evaluate the evidence and assess whether the jury’s verdict is rationally based”); Porterfield v. Burlington Northern Inc., 534 F.2d 142, 146 (9th Cir.1976) (appellant has “substantial burden to demonstrate that the trial judge’s discretion was abused”).
Semper places his principal reliance on Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir.1972), where the court ordered a new trial because the jury had awarded plaintiff only the exact dollar amount of his out-of-pocket expenses for hospital and medical costs. However, in that case the court explained that “[u]nder applicable Colorado law the jury’s authority does not include limiting the award to actual medical expenses where the undisputed evidence establishes both pain and suffering and permanent disability.” Id. at 20 (emphasis added). Even if we were inclined to follow the same rule, an issue we do not decide, Brown is not apposite here because there is no undisputed evidence of any permanent disability.
Semper’s testimony regarding his pain, backaches, sexual dysfunction, and emotional problems was all uncorroborated. The jury was free to draw its own conclusion from the totality of evidence presented, particularly in light of Semper’s failure to mention many of these alleged medical problems to the only physician who saw him shortly after the accident and his failure to seek any further medical attention other than that of a “healer” for two years after the accident.
Semper argues that his testimony that he suffered two weeks of chest pain was well-corroborated and undisputed, and that the trial court abused its discretion in refusing to grant a new trial because no reasonable jury could have failed to award him damages for pain and suffering. The testimony shows that he complained of chest pains immediately after the accident and on his visit to Dr. Heath approximately ten days later. However, although Semper was prescribed a pain medication when he saw Dr. Heath the second time, Semper did not testify that he filled that prescription or that he took the medication.
Santos testified that immediately after the impact Semper did not complain of any injury and that Semper stated he was “okay” and showed no signs of being in pain. App. at 41. The jury was in the best position to evaluate the credibility of Sem-per’s testimony of his pain and suffering. See Murray v. Fairbanks Morse, 610 F.2d at 154; Porterfield v. Burlington Northern Inc., 534 F.2d at 146 (allegedly inadequate damage award should not be overturned where it results from credibility judgments by the trier of fact); Szewczyk v. Doubet, 354 A.2d 426, 430 (Del.1976) (jury free to reject plaintiff’s testimony as to pain and suffering). The jury was under no obligation to believe the testimony of Semper as to his chest pain, even if that testimony were undisputed. Cf. Rhoades, Inc. v. United Air Lines, Inc., 340 F.2d 481, 486 (3d Cir.1965) (“the trier of fact, whether the issue be one of an excessive or inadequate verdict, is at liberty within the bounds of reason to reject entirely the un-contradicted testimony of a witness which does not convince the trier of its merit”). This court has stated that, “[ejvidence of pain and suffering is particularly ill-suited to review upon only a written record.” Edynak v. Atlantic Shipping Inc. CIE. Chambon, 562 F.2d at 227 n. 16.
Plaintiff stresses that in his argument to the jury, defense counsel suggested that an award of $3,000 would be appropriate. Defense counsel explains that this comment was in response to plaintiff counsel’s request that the jury award plaintiff $200,-000. Appellee’s Brief at 28. The arguments of counsel are not evidence, and the jury remained free to make its own assessment.
Because the jury could have decided to discredit Semper’s testimony of pain and suffering on this record, we cannot hold that the jury’s award of $57.00 covering Semper’s only verified expense, the cost of the emergency room treatment following the accident, “shock[s] the judicial conscience,” Williams, 817 F.2d at 1038. The trial judge who also heard the evidence and observed the witnesses found the verdict not to be against the weight of the evidence nor unconscionable. We conclude that he did not abuse his discretion in denying Semper’s motion for a new trial.
III.
Exclusion of Expert Witness on Rebuttal
Semper also argues that the trial judge abused his discretion in excluding testimony of a physician Semper denominates as “an important rebuttal witness.” Appellant’s Brief at 21. The court based its ruling excluding the witness on Semper’s failure to timely disclose that this proposed expert witness, Dr. Omitowoju, had been an examining physician or that he would be called as a witness for plaintiffs at trial. Dr. Omitowoju had originally seen Semper in November, 1984, well in advance of the discovery deadline. App. at 254. Nonetheless, Semper ignored defendants’ request for supplementation of responses to discovery and did not identify Dr. Omitowoju by the April 12,1985 deadline that the court set for naming witnesses.
It was only on April 30, 1985, one day after jury selection, that defendants received mail notice dated April 20, 1985 of Semper’s intention to call Dr. Omitowoju as an expert witness. Defendants then moved in limine to exclude the doctor as a trial witness, and the trial court granted the motion due to Semper’s failure to comply with the court-imposed discovery deadline. Because jury selection had already commenced and the case was about to proceed to trial, defendants had been effectively precluded from the opportunity to obtain discovery concerning Dr. Omitowoju’s treatment, findings, or prospective testimony-
Semper attempted to call Dr. Omitowoju in rebuttal following the close of defendants’ case. Semper concedes that he made no offer of proof as to the scope of the doctor’s testimony. Appellant’s Brief at 21-22 & n. 4. The trial judge cannot be faulted, therefore, for excluding the testimony as, in the appellate division’s words, “a back-door attempt to bolster the case-in-chief.” App. at 551.
Even more important, the trial court had the discretion to exclude testimony of a witness who had not been identified. The trial court’s exclusion of testimony because of the failure of counsel to adhere to a pretrial order will not be disturbed on appeal absent a clear abuse of discretion. Franklin Music Co. v. American Broadcasting Companies, 616 F.2d 528, 539 (3d Cir.1979). As the trial court stated, had Dr. Omitowoju been permitted to testify, Semper “would have profitted from its own failure to comply with the discovery deadlines,” App. at 545, since defendants would have been prejudiced.
In Murphy v. Magnolia Electric Power Ass’n, 639 F.2d 232 (5th Cir.1981), on which Semper relies, not only had plaintiffs offered to exchange experts’ reports ten days before trial, but also the evidence excluded “struck at the heart of appellants’ case.” Id. at 235; see also Meyers v. Pennypack Woods, 559 F.2d 894, 904 (3d Cir.1977) (“importance of the excluded testimony” one of the factors to be considered in deciding whether trial court abused its discretion in excluding witness), overruled on other grounds, Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir.1985), aff'd, — U.S.-, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987). Here, it is questionable whether the rebuttal testimony would have materially helped Semper. Semper argues “that Dr. Omitowoju would have testified in rebuttal that Dr. Heath was wrong to say that back problems normally become apparent within 72 hours of a trauma, as in fact they normally can take as long as six weeks.” Appellant’s Brief at 21-22. Although Semper contends this testimony would have bolstered his credibility, and discredited Dr. Heath, both the trial judge and the Appellate Division of the District Court discounted the significance of this proposed testimony. In light of the fact that Semper sought no further medical attention other than that of the “healer” for more than two years after the accident, testimony that he might have had back pain six weeks thereafter hardly “strikes at the heart” of Semper’s case.
IY.
Conclusion
For the reasons set forth above, we will affirm the judgment of the Appellate Division of the District Court.
. The appellate division did hold that the trial court erred in permitting defendant to amend his answer to allege contributory negligence after the summary judgment on liability; it held that Semper was entitled to the full $57.00 verdict, without reduction by the 25% for which the jury found Semper negligent. | 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. | What is the total number of respondents in the case? Answer with a number. | [] | [
2
] | songer_numresp |
Jerome S. MURRAY, Appellant, v. Irving S. LICHTMAN, Appellee.
No. 18409.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 1, 1964.
Decided Nov. 19, 1964.
Mr. Joseph A. McMenamin, Washington, D. C., for appellant.
Mr. David G. Bress, Washingtoix, D. C., with whom Messx-s. Lucien Hilmer and J. H. Krug, Washington, D. C., were on the brief, for appellee.
Before Bastían, Wright and McGowan, Cix’cuit Judges.
J. SKELLY WRIGHT, Circuit Judge.
In September, 1957, defendant-appel-lee Lichtman became intex-ested in purchasing the Kedrick Building, then owned by Parkwood, Inc. After sevex-al discussions, plaintiff-appellant Murray agreed to use his influence with the president of Parkwood to arrange for a sale on terms agreeable to Lichtman. Mux--X'ay alleges that, in return for his services in bringing about the sale, Lichtman orally promised to indemnify him should he be held liable in any way to Weinberg & Bush, Inc., a real estate firm which had been involved in earlier negotiations concerning the Kedrick Building.
The sale from Parkwood to Lichtman took place on September 27, 1957. On October 5, 1957, Lichtman sent Murray a letter in which he agreed to “save you [Mux-ray] haxmless from any claim for commission which may be maintained against you growing out of my recent purchase of the Kedrick Building.” The letter then set forth the situation, as understood by Lichtman, and provided “that my indemnity aforesaid is not operative in the event that facts should be proven in the event of a suit involving a claim for commission which materially changes, in legal effect, the situation as is presented.” One of the material facts, stated in the letter, which conditioned Lichtman’s obligation was that Murray-had never authorized the Weinberg & Bush firm to attempt to find a purchaser for the Kedrick Building. Upon receipt of the letter, Murray signified his approval of it by signing at the bottom.
In October, 1960, Weinberg & Bush recovered $20,000 in an action for breach of warranty of authority against Murray. In that action, it was established that Murray had authorized Weinberg & Bush to find a purchaser for the Kedrick Building without authority from Park-wood, and thus became personally liable to Weinberg & Bush for their commission on the sale.
Murray now demands indemnity for this liability to Weinberg & Bush. Lichtman, in answer to Murray’s demand, denies that any oral promise of indemnity was made and further contends that, even if such a promise were made, it was integrated in the later written agreement which by its terms became inoperative when it was subsequently established in a legal action that Murray had employed Weinberg & Bush to find a purchaser for the Kedrick Building. When the case came on for trial, Lichtman’s motion to dismiss, made at the end of Murray’s opening statement, was granted by the trial court.
The record, including the pleadings, affidavits filed by both parties, the Pre-trial Examiner’s Statement, and Murray’s opening remarks, clearly reflects a genuine issue over whether an oral promise of indemnity was made before the sale took place. Lichtman’s contention, which was apparently accepted by the trial court, is that this issue is immaterial since, even if the promise had been made, it was, by virtue of the parol evidence rule, integrated in the later written agreement. We do not agree.
The parol evidence rule requires that “[w]hen two parties have made a contract and have expressed it in a writing to which they have both assented as the complete and accurate integration of that contract, evidence, whether parol or otherwise, of antecedent understandings and negotiations will not be admitted for the purpose of varying or contradicting the writing.” But the rule does not exclude evidence to show that the writing was not intended to be a complete and accurate integration or to show that the written agreement is void for lack of consideration.
If we assume Murray’s allegations to be true, as we must, it appears that the parties entered into a valid contract before the date of the sale. At that time, Lichtman allegedly gave Murray his broad oral indemnity in return for Murray’s services. After the sale, when the parties approved Lichtman’s letter, Murray’s services had already been performed and Lichtman was bound by his earlier oral promise. The letter agreement, which substantially conditioned the indemnity, was therefore without consideration and cannot, of itself, create any contractual rights and duties.
Nor can the letter stand as a writing to which the parties have both assented as the complete integration of their contract. The assent to an integration is itself a contractual act and must, therefore, be supported by consideration. When one of the parties to a contract has completely performed his part of the bargain, his later assent to a writing incorporating the terms of the bargain is without consideration. If, in such a case, the terms of the writing vary from the terms of the prior agreement, the prior agreement must be considered to determine the rights and duties of the parties.
The evidence may show that in signing the letter the parties then agreed that it expressed the existing contractual situation. If so, the letter may amount to an admission on Murray’s part as to the terms of the oral indemnity contract. But the terms would not be conclusively established by such an admission. Opposing this possible admission are Murray’s sworn assertions to the contrary. Thus a genuine issue of fact exists which only a trial on the merits can resolve.
Reversed and remanded.
. In Lampka v. Wilson Line of Washington, 117 U.S.App.D.C. 55, 55-56, 325 F. 2d 628, 628-629 (196.3), this court expressed disapproval of the method of summary disposition employed in the present case. The opinion noted that:
“* * * Dismissal after the opening statement is not specifically authorized in the Rules but is a vestige of practice before the Rules were adopted.
“Since the opening statement may be waived entirely, grave doubt arises whether, if a complaint states a cause of action, an opening statement can so dilute the formal pleading as to afford a basis for summary disposition, * * *»
These remarks are made particularly apposite to the present case by the fact that, before the case came on for trial, a motion for summary judgment in favor of Lichtman had been denied.
. 3 Corbin, Contracts § 573 (1960). See also Welch v. Sherwin, 112 U.S.App. D.C. 124, 300 F.2d 716 (1962); 4 Wil-liston, Contracts § 631 (3d ed. 1961).
. Brewood v. Cook, 92 U.S.App.D.C. 386, 207 F.2d 439 (1953). See also Metals Development Company v. United States, 5 Cir., 322 F.2d 210 (1963); Richfield Oil Corporation v. United States, 9 Cir., 248 F.2d 217 (1957).
. See generally, 4 Williston, Contracts § 634 (3d ed. 1961).
. It is, of course, well settled that past consideration is no consideration. Glas-cock v. Commissioner of Internal Revenue, 4 Cir., 104 F.2d 475 (1939); 1 Williston, Contracts § 142 (3d ed. 1957).
Furthermore, assuming the terms of the prior oral contract were as Murray has alleged, Liehtman’s promise in the letter was a promise to perform a preexisting obligation. Such a promise is not sufficient consideration for Murray’s agreement to alter the obligation. See 1 Williston, Contracts § 130 (3d ed. 1957).
The record contains no allegations that the letter agreement was a compromise settlement of a bona fide dispute as to the terms of the oral agreement. If evidence to this effect is developed on trial, other principles would apply. Id. at p. 536.
. Texas Pacific Coal & Oil Co. v. Honolulu Oil Corp., 5 Cir., 241 F.2d 920 (1957), affirming N.D.Tex., 141 F.Supp. 322 (1956); Cotulla v. Barlow, Tex.Civ.App., 115 S.W. 294 (1908). Restatement, Contracts § 237 (1932):
“ * * * [T]he integration of an agreement makes inoperative to add to or vary the agreement all contemporaneous oral agreements relating to the same subject-matter; and also, unless the integration is void, or voidable and avoided, all prior oral or written agreements relating thereto. If either void or voidable and avoided, the integration leaves the operation of prior agreements unaffected.”
Comment b under § 237 states:
“ * * * Prior agreements, however, whether written or oral, which were operative before the integration do not have their effect destroyed by an integrated agreement which is either void or is voidable and avoided.”
And see Illustration 1 under the same section. | 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. | What type of court made the original decision? | [
"Federal district court (single judge)",
"3 judge district court",
"State court",
"Bankruptcy court, referee in bankruptcy, special master",
"Federal magistrate",
"Federal administrative agency",
"Special DC court",
"Other ",
"Not ascertained"
] | [
0
] | songer_origin |
Warren Frederick TYLER, Plaintiff-Appellant, v. Robert L. RUSSEL, District Attorney for the Fourth Judicial District of the State of Colorado; Hon. William M. Calvert, Presiding Judge of the Fourth Judicial District of the State of Colorado; Hon. G. Russell Miller, one of the Judges of said Court; and Hon. Robert Cole, Presiding Judge of the County Court within and for the County of El Paso, State of Colorado, Defendants-Appellees.
No. 61-68.
United States Court of Appeals Tenth Circuit.
May 2, 1969.
R. George Silvola, Colorado Springs, Colo., for plaintiff-appellant.
Aurel M. Kelly, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., was with her on the brief) for defendants-appel-lees.
Before BREITENSTEIN, SETH and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Plaintiff-appellant brought suit to enjoin a pending criminal prosecution on the ground that certain Colorado procedural statutes violate his federal constitutional rights. The trial court denied a request for a three-judge district court and dismissed the action because of absence of jurisdiction.
On May 9, 1968, plaintiff was charged in the county court of El Paso County, Colorado, with the offense of taking indecent liberties with a minor. A warrant was issued and he was arrested and placed on bond. On May 21 an information was filed in the district court and the county court proceedings were terminated. The district court proceedings are still pending.
The complaint in .the instant action says that C.R.S.1963, § 39-2-7 (warrants) and § 39-5-1 (direct informa-tions) and Colorado Rules of Criminal Procedure No. 3 (complaints), No. 4(a) (summons), and No. 7(b) (3) (direct informations) violate the Fourth Amendment because they permit the institution of criminal proceedings, and the arrest of the accused, without a judicial inquiry into, or determination of, probable cause.
Federal jurisdiction is invoked under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The latter is not a jurisdictional statute and is significant only to the extent that it creates a cause of action. See Hague v. Committee for Industrial Organization, 307 U.S. 496, 506-508, 59 S.Ct. 954, 83 L.Ed. 1423, which discusses the predecessors of the mentioned statutes. The district court, without convening a three-judge court, dismissed the action on the ground that it was barred by 28 U.S.C. § 2283 which forbids federal stay of state court proceedings with certain exceptions, one of which arises when a stay is expressly authorized by Congress. Appellant argues that § 2283 does not bar the action because of the irreparable injury to him. He also suggests that the case is within the exceptions stated in § 2283 because § 1983 is an express authorization by Congress for the grant of in-junctive relief. He insists that in any event the question of jurisdiction must be determined by a three-judge district court.
The rule is that a single judge may dismiss for lack of jurisdiction and his determination is made on the basis of the allegations of the complaint. Ex Parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152, and Board of Education of Independent School District 20 v. Oklahoma, 10 Cir., 409 F.2d 665. The inquiry of the single judge includes among other things whether the complaint alleges a basis for equitable relief. Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794.
Section 2283 is not a jurisdictional statute but rather a limitation upon the exercise by a district court of its equity jurisdiction. Baines v. City of Danville, Va., 4 Cir., 337 F.2d 579, 593, cert. denied 381 U.S. 939, 85 S.Ct. 1772, 14 L.Ed.2d 702. Our question is not whether § 2283 bars relief but whether the complaint alleges a basis for equitable relief. This must be determined by testing the complaint against the rules which have been established to determine the power of a federal court to grant the equitable relief which is requested.
The well established rule is that federal courts will not ordinarily restrain pending state criminal prosecutions. Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324; see also Cline v. Frink Dairy Co., 274 U.S. 445, 452-453, 47 S.Ct. 681, 71 L.Ed. 1146, and Ex Parte Young, 209 U.S. 123, 161-162, 28 S.Ct. 441, 52 L.Ed. 714. Appellant seeks to avoid this rule by reliance on Dombrowski v. Pfister, 380 U.S. 479, 484-486, 85 S.Ct. 1116, 14 L.Ed.2d 22, where the Court held that injunctive relief was appropriate even though criminal prosecutions were pending in state courts. ' Dombrowski was concerned with First Amendment rights. The Court pointed out that: “The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases.”
Dombrowski presented an extraordinary situation where there was no adequate remedy at law and the injury was irreparable. Absent such circumstances, the federal courts will not interfere with pending state criminal proceedings. Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117, 122, 72 S.Ct. 118, 96 L.Ed. 138; Wilson v. Schnettler, 365 U.S. 381, 385-386, 81 S.Ct. 632, 5 L.Ed.2d 620, and Cleary v. Bolger, 371 U.S. 392, 397, 83 S.Ct. 385, 9 L.Ed.2d 390.
Appellant claims only that certain Colorado procedural statutes violate the Fourth Amendment by permitting arrest and prosecution without a judicial determination of probable cause. He does not claim that Colorado is enforcing its laws unequally or that its courts are insensitive to federal constitutional rights. He has an adequate remedy at law in the state trial of his case, an appeal to the state supreme court, and the right to petition the Supreme Court of the United States for review of any federal question. Wilson v. Schnettler, 365 U.S. 381, 384-385, 81 S.Ct. 632, 5 L.Ed.2d 620. No great and irreparable injury results to him which would not result to any other person charged with the same crime. Dameron v. Harson, W.D.La., 255 F.Supp. 533, 539, aff’d 5 Cir., 364 F.2d 991. The grant of the relief sought would expose state criminal prosecutions “to insupportable disruption.” Stefanelli v. Minard, 342 U.S. 117, 123, 72 S.Ct. 118, 96 L.Ed. 138. The complaint fails to state a basis for equitable relief and was properly dismissed by the single judge.
Affirmed. | 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. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
1
] | songer_appnatpr |
GRAY MOTOR CO. et al. v. UNITED STATES.
(Circuit Court of Appeals, Fifth Circuit.
January 3, 1927.)
No. 4816.
I. Internal revenue <@=>25 — Collateral attack on income tax assessment in action on bond for payment held not permissible.
Collateral attack on assessment of income tax may not be bad in action on bond for payment of amount finally adjudicated by Commissioner " of Internal - Revende, on claim for abatement, to be due; but, desiring to dispute the assessment, the tax should be paid and steps taken to recover it back.
2. Internal revenue <§=>23 — Action on bond for payment of income tax heid maintainable within five years after filing of return (Revenue Act -1924, §§ 277, 1009 [Comp. St. §§ 6336i/6zz(4), 6371%k]).
Action on bond given on claim for abatement for payment of amount of income tax that may finally be adjudicated by Commissioner of Internal Revenue to be due can be maintained within the five years after return was filed, limited by Revenue Act 1924, §| 277, 1009 (Comp. St. §§ 6336%zz[4], 6371%k) for action where no bond is ■ given.
In Error to the District Court of the United States for the Northern District of Texas; William H. Atwell, Judge.
- Action-by the United States against the Gray Motor Company and others. Judgment for plaintiff, and defendants bring error.
Affirmed.
W. J. Rutledge, Jr., of Dallas, Tex., for plaintiffs in error.
Henry Zweifel, U. S. Atty., and N. A. Dodge, Asst. U. S. Atty., both of Port Worth, Tex. (Alexander W. Gregg, Gen. Counsel Bureau of Internal Revenue, and C. C. McCormick, Atty. Bureau of Internal Revenue, both of Washington, D. C., on the brief), for the United States.
Before WALKER, BRYAN, and POSTER, Circuit Judges.
POSTER, Circuit Judge.
This ease comes' up on an agreed' statement of facts. Those material to a decision are as follows:
The Gray Motor Company, a Texas corporation, hereafter referred to as the company, was in the automobile business in Dallas. Its.fiscal year ended February 29th. On May 29, 1920, it filed its income and property tax return, showing that it was indebted' to the United States in the sum of $2,256.57; At the same time a payment of $564.15 was made, leaving a balance due of $1,692.42. On November 20, 1920, a claim for abatement of the balance of the tak was filed, and in connection therewith the ' company executed a bond in the sum of $2,100, to Scott Reed, collector of internal revenue, to secure the payment of $1,692.42, shown to be due under the return. On this bond W. 0. Connor and P. P. Florence, the other-plaintiffs in error, were sureties.- Briefly stated, the condition of this bond was that the company should" promptly pay the amount finally adjudicated by the Commissioner of - Internal Revenue to - be due th'e United States by the company for the year 1919 as taxes, penalties, and interests. Thereafter the return was audited, and the Commissioner of Internal Revenue determined that an overassessment of $365.16 had been made. A certificate to that effect was issued and the amount credited upon the account of the company, reducing the outstanding taxes against it to $1,327.27, and the claim for abatement whs denied and rejected. This amount was not paid, and on May 29, 1925, suit was brought on the bond. The company and the sureties filed answers, in which in substance they denied there was anything due, pleaded the statute of limitations of five years, and set up that Tom Gray, the manager of the company, had been guilty of fraudulent acts by which the company had lost money, so that in fact no profit was earned during its fiscal year 1919.
The District Court sustained demurrers to that part of the answer setting up the statute of limitations and fraudulent acts of the manager of the company. The jury was waived, and judgment' v?as entered in favor of the United States against the company and the sureties in the sum of $1,327.27, with interest at the rate of 1 per cent, per month from November Í4, 1922, and costs. Error is assigned to the sustaining of the demurrers, to the exclusion of evidence to sustain the allegations of the answer demurred to, and to the entering of the final judgment.
Extended discussion and citation of authority are .unnecessary to sustain the ruling of the District Court. The suit was on a bond, the condition of which had been clearly breached. By giving bond the company postponed payment of the amount admitted to be due by the return and secured immunity from distraint of its assets. To contest the amount of tax found to be due by the Commissioner in this proceeding would be to permit a collateral attack upon the assessment, something not countenanced by the law. If the company desired to dispute the assessment, the way was open by paying the tax and taking the proper steps to recover it back.
In any aspect of the case the plea of limitation is without merit. Had no bond been given, and the suit had been merely to collect the tax, it would have been timely, as it was brought within five years after the return was filed. Sections 277, 1009, Revenue Act of 1924 (Comp. St. §■§ 6336Vgzz(4), 63715/Gk). No other statute of limitation is relied on.
No error appearing in the record, the judgment appealed from is affirmed. | 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. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
2
] | songer_genresp1 |
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The LITTLE ROCK DOWNTOWNER, INC., Respondent (two cases).
Nos. 17581, 17615.
United States Court of Appeals Eighth Circuit.
March 5, 1965.
Peter M. Giesey, Atty., N. L. R. B. made argument for petitioner and filed brief with Arnold Ordman, Gen. Counsel, N. L. R. B., Washington, D. C., Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel and Lee M. Modjeska, Atty., N. L. R. B., Washington, D. C.
William E. Fortas and Earl W. De-Hart, of Fowler, Fortas & DeHart, Newell N. Fowler, Memphis, Tenn., made ai'gument for respondent and filed brief.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and DAVIES, District Judge.
RONALD N. DAVIES, District Judge.
These two cases are before us upon petitions of the National Labor Relations Board agreeable to Section 10(e) of the National Labor Relations Act as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) to enforce consolidated orders directed to The Little Rock Down-towner, Inc., issued against that Respondent, July 29, 1963, and January 28, 1964, respectively.
We have jurisdiction of these causes under Section 10(e) of the Act.
For purposes of clarity and reference, No. 17,581 will be denominated “the first case,” and No. 17,615 “the second case.”
In the consideration of these petitions we turn for guidance at the outset to the much discussed and often quoted Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456.
There the Supreme Court said: “Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied.” 340 U.S., p. 491, 71 S.Ct. p. 466.
The Court said further in that same ease:
“The Taft-Hartley Act provides that ‘The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.’ 61 Stat. 148, 29 U.S. C. (Supp. Ill) § 160(e). Surely an examiner’s report is as much a part of the record as the complaint or the testimony.” 340 U.S., p. 493; 71 S.Ct., p. 467; 95 L.Ed. p. 456.
Mindful of the rationale of Universal Camera and of particular questions determined in Fibreboard Paper Products Corporation v. National Labor Relations Board et al., 85 S.Ct. 398 (December 14, 1964), we address ourselves to the petitions before us.
We are unaware of any problems here presented which would justify outlining at great length a run of the mine case such as this. In the first ease the Board found that Respondent had interfered with its employees in the exercise of their rights under Section 7 of the Act by interrogating and threatening them and that it discriminated against employees, Eddie Robinson, Irma Baruday and Jessie Moseley. In the second case the Board found that Respondent refused to bargain in good faith collectively with the employees’ union by granting wage increases and changing working conditions of certain employees, by refusing to meet requests of the union for bargaining sessions, and finally by Respondent’s refusing to meet at all with union representatives. In addition the Board found that Respondent violated the Act by declining to rehire an employee for union activities and by refusing to reinstate unfair labor practice strikers when requested to do so.
We have thoroughly examined the Joint Records of two volumes, Respondent’s Supplement to Joint Record, and the briefs of both parties.
A careful reading of the record reveals that there is no substantial evidentiary basis for the Board’s findings in the cases of Eddie Robinson and Irma Baruday. Robinson was insubordinate and his discharge was justified. Baruday was and had been an unsatisfactory employee whose work and habits, were demonstrably below Respondent’s standards and there was ample justification for termination of her employment. With respect to Jessie Moseley, we conclude that the record substantiates the Board’s findings.
In N. L. R. B. v. South Rambler Company, 324 F.2d 447, 449, (8 Cir., 1963), this Court said:
“[5-8] Certainly, an employer may hire and discharge at will, so long as his action is not based on opposition to union activities. Farmers Co-Operative Co. v. N. L. R. B., supra, [8 Cir.], 208 F.2d 296, at 303-304; N. L. R. B. v. United Parcel Service, Inc., 1 Cir., 317 F.2d 912, 914 (1963); N. L. R. B. v. Local 294, International Bros. of Teamsters, Etc., 2 Cir., 317 F.2d 746, 749 (1963). Furthermore, an employer’s general hostility to unions, without more, does not supply an unlawful motive as to a specific discharge. N. L. R. B. v. Atlanta Coca-Cola Bottling Company, 5 Cir., 293 F.2d 300, 304 (1961), rehearing denied 296 F. 2d 896 (1961); Ore-Ida Potato Products, Inc., v. N. L. R. B., 9 Cir., 284 F.2d 542, 545-546 (1960); N. L. R. B. v. Redwing Carriers, Inc., 5 Cir., 284 F.2d 397, 402 (1960). An inference that a discharge of an employee was motivated by his union activity must be based upon evidence, direct or circumstantial, not upon mere suspicion, Osceola Co. Co-Op. Cream. Ass’n v. N. L. R. B., supra, [8 Cir.], 251 F.2d [62] at 69; N. L. R. B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 491 (1946); Schwob Manufacturing Company v. N. L. R. B., 5 Cir., 297 F.2d 864, 867 (1962); N. L. R. B. v. Western Bank & Office Supply Company, supra, 283 F.2d [603] at 606, and the burden of proving an improper motive for discharge is upon the Board. N. L. R. B. v. Montgomery Ward & Co., supra, 157 F.2d at 491; N. L. R. B. v. Moore Dry Kiln Company, 5 Cir., 320 F.2d 30, 32-33 (1963); Lawson Milk Company v. N. L. R. B., supra, [6 Cir.], 317 F.2d [756] at 760; Portable Electric Tools, Inc., v. N. L. R. B., 7 Cir., 309 F.2d 423, 426-427 (1962); Ore-Ida Potato Products, Inc., v. N. L. R. B., supra, 284 F.2d at 545-546.”
We conclude that the orders of the National Labor Relations Board must be enforced except as to the employees, Eddie Robinson and Irma Baruday.
The order, as here modified, is en-foi'ced.
. Board’s opinion reported in 143 N.L.R.B. 897.
. Board’s opinion reported in 145 N.L.R.B. No. 132. | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous". | What is the general issue in the case? | [
"criminal",
"civil rights",
"First Amendment",
"due process",
"privacy",
"labor relations",
"economic activity and regulation",
"miscellaneous"
] | [
5
] | songer_geniss |
COUNTY LINE CHEESE COMPANY, et al., Plaintiffs-Appellants, v. Richard E. LYNG, Secretary of Agriculture, et al., Defendants-Appellees.
No. 86-2357.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 27, 1987.
Decided July 9,1987.
John H. Vetne, Blodgett & Makenchnie, Peterborough, N.H., for plaintiffs-appellants.
Aaron B. Kahn, U.S. Dept, of Agriculture, Office of Gen. Counsel, U.S. Dept, of Agriculture, Washington, D.C., Sydney Berde, Sydney Berde & Associates P.A., St. Paul, Minn., for defendants-appellees.
Before BAUER, Chief Judge, FLAUM, Circuit Judge, and ESCHBACH, Senior Circuit Judge.
ESCHBACH, Senior Circuit Judge.
This case concerns the validity of several administrative regulations governing the sale of milk. A farmer can get a higher price for milk that will be sold for consumption as milk (Class I milk) than for milk that will be used to make yogurt or cheese (Class II and III milk). Thus, some farmers get better prices than others. To end the adverse effects of “ruinous competition” for that premium, Congress decided to permit all farmers to share equally in the premium. The result was the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq. Acting pursuant to his authority under the Act, the Secretary of Agriculture has established regional milk pools, which are used to share among farmers in each pool the premium paid for Class I milk. Each farmer who chooses to participate in the pool receives a uniform price for his milk from the handler he sells it to, regardless of the use the handler makes of the milk. The handlers who then use milk for Class I uses must pay into the “producer settlement fund” the money they saved by not having to pay for the milk at Class I prices. The handlers who use milk for Class II and III uses receive money from the pool, because they had to pay the uniform price rather than just the Class II or III price. County Line was a handler who bought milk principally for Class III uses and thus regularly received payments from the regional fund.
In order to qualify for the pool under the applicable administrative regulations, County Line’s milk had to be “shipped to” Meadow Gold’s plant. Because Meadow Gold did not' need the milk, County Line would pump the milk into the plant, immediately pump it back out again and take it elsewhere. Finding this a waste of time, County Line employees, over a six-month period, simply parked its trucks at Meadow Gold’s plant for a few minutes. The Secretary determined that this did not constitute “shipping” the milk to Meadow Gold, although the pumping in and out routine did. County Line was retroactively disqualified from the pool for six months and had to give back payments it had received from the producer settlement fund in that period. Meadow Gold also incurred liabilities to the pool because of County Line’s disqualification. The district court granted summary judgment affirming the Secretary’s rulings.
County Line and Meadow Gold contend that the Secretary did not act “in accordance with law” as required by the Act in interpreting the regulations to require that the milk be physically unloaded to be considered “shipped to” the plant. They also contend that favorable treatment given pool milk under the regulations violates the Act by erecting a trade barrier to the use of nonpool milk and by failing to give uniform prices to handlers. We will affirm.
I
Various regional “milk orders” have been promulgated pursuant to the Act of the Secretary, including the Indiana Milk Marketing Order, which governed the parties in this case. This is the order’s basic scheme. Producers may choose to participate in the “pool”. The Secretary decides upon an appropriate price for each class of milk: Class I (“fluid milk”: milk sold as milk), Class II (milk used to make soft products like eggnog and yogurt), and Class III (milk used to make hard products like butter and cheese). The Secretary determines how much “pool” milk in each category was bought by handlers from participating producers and multiplies that by the class price. The results from the three classes are added together; this result is divided by the total number of gallons of pool milk. The final result is the “blend price”: that is the minimum price handlers must pay participating producers.
For each handler, it is determined how much he would have had to pay for his milk according to the uses he made of it (use value) and how much he would have had to pay if he bought it all at the blend price (uniform value). For example, a handler who used all the milk he bought as Class I milk would have a higher total use value than uniform value. If the handler’s use value is higher than the uniform value, he must pay the difference into the “producer settlement fund”; if the uniform value is higher, then he receives the difference from the fund. The theory is that each handler will pay producers the blend price for milk. If he then uses that milk as Class I milk, he saved money; the savings go into the fund. If he uses the milk as Class III milk, he paid more than he should have had to pay and the fund reimburses him.
County Line and Meadow Gold, two subsidiaries of Beatrice Foods Company, were both handlers. Meadow Gold owned a distributing plant. County Line owned a supply plant and a cheese factory. County Line bought milk from producers and assembled it at the supply plant. Some of that milk it sold to Meadow Gold; most it sent to the cheese factory. Because the greater part of County Line’s use was to make cheese, a Class III use, it was advantageous for County Line to qualify for the pool and thus receive payments. Under the applicable regulation, 7 C.F.R. § 1049.-7(b), County Line’s supply plant could qualify each month as a “pool plant” if not less than fifty percent of its milk was “shipped to” a qualified distributing plant. So County Line began to deliver at least fifty percent of its milk to Meadow Gold’s distributing plant.
Meadow Gold did not need that much milk. Meadow Gold got most of its milk from a cooperative and used County Line’s milk only to make up its residual needs. But to permit County Line to qualify for the pool, the parties arranged for County Line to truck at least fifty percent of its milk to Meadow Gold and pump it into its plant. What Meadow Gold did not need was pumped right back onto County Line’s trucks and sent to the cheese factory. The Secretary accepts this as constituting “shipping” the milk to Meadow Gold.
The Market Administrator administers the Indiana Order, which is the body of regulations, promulgated pursuant to the Act, that govern the Indiana milk pool. The Market Administrator audited Meadow Gold in February of 1981, Auditors observed that some County Line trucks, rather than unloading and reloading their milk, simply parked at the plant for a while and then drove off. The auditors examined records of County Line and Meadow Gold, including bills of lading and weight tickets. The auditors first decided how long it would take a truck to drive from County Line’s supply plant to Meadow Gold, pump the milk in and out of the plant, and drive to County Line’s cheese plant. Any truckload that had made it from the supply plant to the cheese plant in less than that minimum time was not counted toward the fifty percent figure necessary to qualify County Line for the pool each month. With these adjustments in mind, it was determined that County Line failed to meet the fifty percent total for any of the months of September, 1980, through February, 1981. In most of those months, County Line was determined to have “shipped” about thirty percent of its milk to Meadow Gold. The September figure was 49.50 percent; thus County Line missed qualifying for that month by only one half of a percentage point.
The supply plant was “depooled” for those months. The Market Administrator required County Line to repay $199,221.74 that it had received in payments from the producer settlement fund.
County Line’s disqualification from the pool also caused unpleasant sequelae for Meadow Gold. As discussed above, the amount of payments Meadow Gold received from or paid into the pool depends on the uses to which it put its pool milk. The milk Meadow Gold had received from County Line was now nonpool milk. When a handler receives both pool and nonpool milk, the question is how to allocate it between uses. For example, if the handler who receives one-half pool milk and one-half nonpool milk uses one-third of his total milk for each class of use, payments could be based on the assumption that he uses half pool and half nonpool in each class, that he uses all his pool milk for Class I use, or through some other formula.
Under the Indiana order, as under most regional milk orders, pool milk is disproportionately allocated to Class I use. Pool milk is given priority in Class I allocation, unless less than twenty percent of the handler’s milk has been allocated to Classes II and III, in which case allocation is made pro rata. This is less advantageous for a handler than a pure pro rata system would be, because it results in his average use of pool milk being closer to Class I than it would be if pro-rated, which in turn increases his net liability to the pool.
Furthermore, for each gallon of nonpool milk that remains allocated to Class I use, the handler must make a “compensatory payment” into the fund of the difference between the blend price and the Class I price. The rationale is that he purchased the nonpool milk at the blend price and thus will receive an unfair advantage in the calculation of payments if that is not corrected. Whether or not he actually paid the blend price for the nonpool milk is not considered.
After Meadow Gold’s accounts with the pool were refigured to include the reallocation and the compensatory payments, Meadow Gold had to pay $128,781.70 into the pool.
Meadow Gold and County Line were initially successful before an Administrative Law Judge. The Secretary’s Judicial Officer overruled the AU, holding that the Market Administrator’s interpretation of the term “shipped to” in the regulations was a permissible interpretation of Order language and in accordance with the Act. He concluded also that the repayments and assessments were not unauthorized penalties for noncompliance with a rule as appellants contended but rather simply audit adjustments. He held also that the treatment of nonpool milk neither violated the requirement of uniform prices to handlers nor constituted an impermissible trade barrier to the purchase of nonpool milk.
The district court affirmed the decision and order of the Judicial Officer. Associated Milk Producers, Inc., was permitted to intervene in the action and brief the issues because the members of AMPI, as producers regulated by the Indiana Milk Order, stood to lose directly if the Judicial Officer’s order was reversed; requalification of County Line for the months in question would result in the blend price being lowered and thus producers receiving less.
II
The Secretary contends that the district court lacked subject matter jurisdiction. The Act provides that handlers may seek judicial review of whether the Secretary’s ruling on a petition was “in accordance with law”:
The District Courts of the United States in any district in which such handler is an inhabitant, or has his principal place of business, are vested with jurisdiction in equity to review such rulings....
7 U.S.C. § 608c(15)(B). It appears from the facts in the complaint that County Line and Meadow Gold do not inhabit or have their principal places of business in the Northern District of Illinois, where this action was brought.
We interpret the relevant language to relate to venue, rather than jurisdiction. The statute is thus read to mean, “The district courts have jurisdiction and the following are the requirements for venue.” Because the Secretary did not raise the issue earlier, objections to venue are waived. To read the provision to vest jurisdiction only in the district court where the handler resides or has his principal place of business would lead to unwieldy litigation where handlers from more than one district jointly bring an action. Although no published opinion considers the question, courts have implicitly answered it in this way in considering actions for review brought by several handlers. E.g., American Dairy of Evansville, Inc. v. Bergland, 627 F.2d 1252 (D.C.Cir.1980) (fifty-seven handlers from various districts).
We follow the Supreme Court’s interpretation of similar language. For example, the Court interpreted the following language in the Jones Act to relate to venue:
Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
Panama R. Co. v. Johnson, 264 U.S. 375, 44 S.Ct. 391, 68 L.Ed. 748 (1924). Such a reading conforms with the normal practice of Congress to vest jurisdiction in the district courts and then to use venue provisions to govern where the suit should be brought. Id.; see also Hoiness v. United States, 335 U.S. 297, 69 S.Ct. 70, 93 L.Ed. 16 (1948).
Ill
In adopting the predecessor to the present milk order, the Secretary made explicit the rationale for requiring that, in order for a supply plant to qualify for the pool, fifty percent of its milk must be “shipped to” a qualified distributing plant:
Pool plant status should not be determined solely on an occasional shipment of milk to the market ... [Pjlants only casually, or incidentally, associated with the market should not be subject to complete regulation. Neither should they be permitted or required to equalize their sales with all plants in the market. If a milk plant were to be permitted to share on a pro rata basis the Class I utilization of the entire market without being genuinely associated with the market, then the differentials paid by users of Class I milk could be dissipated without accomplishing their intended purpose. If a plant were to be qualified and regulated merely by making a token shipment of milk or cream into the market for sale as Class I milk, then any milk plant which found itself in a position where it was selling a smaller share of its milk in Class I than the average for all regulated handlers might make such shipment and receive equalization payments from the pool.
26 Fed.Reg. 67, 69-70 (1961) (incorporated by reference in adopting the present order). The Market Administrator had, in a 1965 case, interpreted the word “shipped” in the Order Regulating the Handling of Milk in Northeastern Wisconsin to require physical unloading in order to count as part of a forty percent requirement figure for pool plant status. In re Owen Dairy Co., 24 Agric. Dec. 1171, 1174-75 (1965). Other milk orders, such as the Chicago Order, spell out that the milk must be “shipped or transshipped and physically unloaded.” Chicago Milk Marketing Order, 7 C.F.R. § 1037.7(b) (1980).
Appellants do not question the general requirement that a supply plant “ship” half its milk to a qualified distributing plant in order to qualify for the pool. They attack the specific requirement of physical unloading on two bases. The first is requiring the milk to be pumped into the plant assumes that milk should only be shipped to the plant if it is needed, whereas the purpose of the Act is to permit producers to share in the Class I premium whether or not their milk is used as Class I milk. The second is that the interpretation of “shipped to” as requiring physical unloading is unreasonable where other orders explicitly require physical unloading and the Secretary has previously held that cream was “received” by a plant where the cream was only brought in a truck to the street next to the plant.
The Secretary’s interpretation does not bar County Line from qualifying, it simply requires that County Line pump its milk into Meadow Gold’s plant to do so. The regulation might well be arbitrary if it provided that in order to qualify, County Line must pump its milk into and out of Meadow Gold’s plant. But only pumping in is required. The fact that the County Line does not then lose qualification by pumping the milk out again is a generous interpretation of the regulation in County Line's favor. Permitting that bootstrapping and holding that the “wasteful” routine must be excused would logically lead to holding that the milk need not be sent in the first place. The Market Administrator was entitled to draw the line at some point as to what would constitute shipping the milk and he drew it at a very reasonable point. The common meaning of the words “shipped to” would seem to require that the shipper intend the milk to reach its natural destination, the tanks of the distributing plant. To put it another way, the fact that the milk needn’t stay shipped does not mean that you don’t have to ship it in the first place.
This is not a case where the administrative agency has added by interpretation of its regulations a requirement that does not appear in the regulations, unlike Usery v. Kennecott Copper Corporation, 577 F.2d 1113 (10th Cir.1977). Rather, the Secretary has interpreted the words “shipped to” in a very logical and reasonable manner.
Appellants also contend that because the requirement of physical unloading is spelled out in other orders, the Indiana Order should be read not to require physical unloading. First, the Secretary had, in a published opinion, interpreted the same language as in the Indiana Order to require physical unloading, thus negating any inference from the more general rule of construction on which appellants rely. Second, the fact that other orders explicitly provide that shipping something requires delivering it as it is normally delivered hardly justifies the strained reading that appellants seek in the present case.
Nor does Queensboro Farms Products, Inc. v. Wickard, 137 F.2d 969 (2d Cir.1943), mandate a different result. There, the court upheld the Secretary’s determination that cream was “received” at and “moved from” a plant where the cream was not brought into the plant but was merely shifted from larger to smaller trucks. The words “shipped to”, which have been specifically interpreted as noted above, were not at issue in Queensboro. The order provisions at issue were entirely different from the ones in this case, with different underlying reasons. The facts are also different: the cream was unloaded in that case, even if it was then loaded on to another truck rather than brought into the building. The lesson from that case most pertinent here is a broader one: “The Supreme Court has admonished us that interpretations of a statute by officers who, under the statute, act in administering it as specialists advised by experts must be accorded considerable weight by the courts.” (footnotes omitted) 137 F.2d at 980. Similar weight is due the Secretary’s interpretation of the regulations he propagates. United States v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977).
IY
Appellants view the payments into the pool required of them as a penalty, one which the Market Administrator lacks specific authority to impose under the Act and regulations. This is a mischaracterization of the facts in this case. The Market Administrator had made payments to County Line from the producer settlement fund under 7 C.F.R. § 1049.72. To be eligible for those payments, County Line had to ship not less than fifty percent of its milk each month to Meadow Gold. When the Market Administrator, as a result of the audit, determined, on the basis of facts of which County Line had been aware, that County Line had been ineligible, he required the return of the money. Similarly, Meadow Gold’s accounts were reckoned again in light of County Line’s disqualification. The actions were the rectification of mistakenly made payments, a typical outcome of an audit. Appellants were given full opportunity to contest the findings.
Appellants suggest that the proper course would have been for the Secretary to use the enforcement provisions of the Act, which provide for fines to be levied against handlers who violate an order. But the handlers here are not accused of violating the Act or regulations. The errors were the payments by the Secretary and underpayments by Meadow Gold. Supply plants need not join the pool. They may if they wish. Failure to qualify is not wrongdoing. But payments made on the mistaken belief that a plant has qualified should clearly be recoverable by the Secretary, especially as here, where the payments had been made only a few months earlier. Such a power is implicit in a system like the present, where the Market Administrator must make payments sixteen days after the end of each month and is empowered to later audit the records that formed the basis of those payments.
V
Appellants also contend that ■ the Indiana Order’s treatment of nonpool milk violates 7 U.S.C. § 608c(5)(G), which provides:
No marketing agreement or order applicable to milk and its products in any marketing area shall prohibit or in any manner limit, in the case of the products of milk, the marketing in that area of any milk or product thereof produced in any production area in the United States.
The Supreme Court has interpreted this section to prohibit milk order provisions that erect “trade barriers” to the purchase of nonpool milk. LeHigh Valley Cooperative Farmers, Inc. v. United States, 370 U.S. 76, 82 S.Ct. 1168, 8 L.Ed.2d 345 (1962).
In LeHigh, the Secretary had faced two problems engendered by the fact that non-pool milk from outside the area was available for purchase. First, handlers who were required to pay for pool milk at minimum class prices could be undercut by handlers who purchased nonpool milk at lower prices; this problem was particularly acute in the case of handlers who bought milk at Class I prices, who could be undercut by handlers who bought nonpool milk at a price higher than the blend price but still below the Class I price. Second, the blend price that producers receive would be lowered if handlers relied principally on nonpool milk for their Class I needs.
The Secretary’s answer was a compensatory payment system. For each gallon of nonpool milk a handler bought, he was required to pay into the pool the difference between the Class I and Class III prices. The Secretary sought to thus eliminate the competitive advantage held by nonpool milk, an advantage that it had only because of the minimum prices required for pool milk.
The Supreme Court held that this went too far. The purpose of the Act was not to preserve for the producers in the area the premium on Class I milk, it was simply to put producers on even terms. But if a handler paid a nonpool producer any more than the Class III price, the milk would cost the handler more than the Class I price. This was an impermissible barrier to the purchase of nonpool milk, which would lose any competitive advantage it had in all but rare cases.
The Court nullified regulations that imposed a trade barrier to nonpool milk, but held “The Secretary of course remains free to protect, in any manner consistent with the provisions of the statute, the ‘blend price’ ... against economic consequences resulting from the introduction of outside milk.” 370 U.S. at 99, 82 S.Ct. at 1181. The Court suggested in dictum that a compensatory payment of the difference between the blend price and the Class I price, as in this case, would pass muster. 370 U.S. at 87-88, 82 S.Ct. at 1174-75 n. 13.
The compensatory payments required under the Indiana Order do not present a trade barrier. For each gallon of nonpool milk that a handler purchases and allocates to Class I use, he must make a compensatory payment of the difference between the Class I and the blend price. That difference is small, much smaller than the payment of the difference between the Class I and Class III prices in LeHigh. The Class I and blend prices in the relevant part of Indiana were $13.56 and $13.32 respectively per hundredweight in November of 1980, a relatively much smaller difference than the $2.70 payment added to a $6.40 price in LeHigh. The payment would put nonpool milk at a disadvantage only in the cases where the nonpool milk’s price fell between the blend price and the Class I price, because the handler’s total cost after adding the compensatory payment would then be more than the Class I price. Such milk is already costlier than the average gallon of pool milk, so the small disadvantage seems only to erase an artificial advantage gained by the way the price supports work. Where the nonpool milk’s price was greater than the Class I price, it would already cost more than pool milk.
As the Court in LeHigh explained, such a payment accords equivalent treatment to handlers who buy either pool or nonpool milk at more than the blend price. A handler is free to pay a pool producer more than the mandatory blend price, but he remains liable to the pool for the difference between the blend and Class I prices. The milk’s total cost to him is then greater than the Class I price; this mirrors the effect of the compensatory payment when the handler pays more than the blend price for nonpool milk.
The same rationale would apply to the priority given to pool milk in allocating the handler’s use of milk. The fact that pool milk is allocated to Class I uses first would not affect the market for Class I uses of milk. There, if the handler buys nonpool milk for his Class I needs at less than the Class I price, he saves. The allocation system does, however, make it more efficient for him to buy pool milk for his Class III needs unless the nonpool price is less than the Class III price. The pool producer receives the blend price for that milk. But this difference is attributable not to any payment required for using nonpool milk but to the equalization payment given for the handler’s purchase of pool milk, which is an essential component of the system. But for that system, pool milk bought for Class III purposes would presumably sell at the Class III price and thus undersell nonpool milk sold above that price. Again, the allocation system serves only to nullify an artificial advantage.
Appellants contend also that the charges to Meadow Gold violate the Act’s requirement that producers receive uniform prices. Under 7 U.S.C. § 608c(5)(A), minimum prices for each use classification “for milk purchased from producers ... shall be uniform as to all handlers.” But nonpool milk is not “milk purchased from producers.” Participation as a producer under an order is voluntary and the Act clearly differentiates between “producers” and “dairy farmers not delivering milk as producers.” Kg., 7 U.S.C. § 608c(5)(B)(ii)(f)(ii-i). Thus nonpool milk is not subject to the minimum price requirement and the requirement of uniformity. Nor do the regulations at issue here prescribe minimum prices that handlers pay for nonpool milk; if anything, they act to lower the maximum amount that handlers will be willing to pay for nonpool milk. That has already been analyzed under LeHigh.
VI
For the reasons stated, the judgment of the district court affirming the Secretary’s ruling is
Affirmed.
. "The milk problem is so vast that fully to comprehend it would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government." Queensboro Farms Products, Inc. v. Wickard, 137 F.2d 969, 975 (2d Cir.1943) (Frank, J.).
. We note that granting relief might be inappropriate in this case even if the regulations were facially invalid, where County Line has not offered evidence of the prices that it paid producers and thus has not shown that there was a trade barrier in effect. See Lewes Dairy, Inc. v. Freeman, 401 F.2d 308, 316-17 (3rd Cir.1968), cert. denied, 394 U.S. 929, 89 S.Ct. 1187, 22 L.Ed.2d 455 (1969). | 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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genapel1 |
WILLIS v. HUNTER.
No. 3600.
Circuit Court of Appeals, Tenth Circuit.
March 10, 1948.
Rehearing Denied April 5, 1948.
John' J.. Gibbons, of Denver Colo., for appellant.
Eugene Davis, of Topeka, Kan. (Randolph Carpenter, of Topeka, Kan., U. S. Atty., on the brief), for appellee.
Before BRATTON, HUXMAN and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
By this habeas corpus proceedings petitioner seeks release from a three year sentence imposed in the United States District Court of Colorado for attempted escape, in violation of 46 Stat. 327, as amended 49 Stat. 513, 18 U.S.C.A. § 753h. See also Willis v. Hunter, 10 Cir., 164 F. 2d 694. The sole question presented by the petition for the writ is whether petitioner was deprived of his constitutional right to the effective assistance of counsel at every stage of the proceedings, resulting in his sentence on a plea of guilty?
In denying the writ, the trial court found from the record evidence that on October 16, 1946, petitioner appeared in open court with Charles J. Moynihan, counsel of his “own choosing and employment”, and en-dered a plea of guilty to the charge against him; that upon request of counsel, im■position of sentence was deferred until October 23 to permit counsel to submit data in mitigation of punishment; that when asked by the court if he would be ■present on the sentencing date, counsel replied that he would not, but would “sub•mit written notes”; that he was advised -to send the “notes” to the Probation Offi•cer for submission to the court; that on the 23rd of October petitioner appeared before the court for sentence pursuant to -the previous order; that counsel, though -not present, had submitted to the Probation Officer for delivery to the court, a lengthy memorandum epitomizing the past life and background of the petitioner, -which had been briefed from his own "handwritten statement; that “the statement of counsel was submitted to the court for the purpose of aiding it while passing sentence upon the defendant,” and petitioner was therefore accorded the effective .assistance of counsel when sentence was imposed. The court was moreover of the opinion that petitioner being represented by employed counsel, and the cause being continued at his request to enable him to furnish written data and argument to -the court on the matter of sentence, and it being understood that counsel would not .be present when sentence was imposed, petitioner waived any right to have counsel physically present at that time.
On hearing, petitioner was permitted to .testify, in contravention of the record evidence, that he entered his plea of guilty before the sentencing court on September 12, 1946, at which time the court was informed by the Probation Officer that peti-tioner was represented by counsel who was -not present; that on October 16, he again .appeared before the court represented by •counsel, and stood silent while his attorney asked that sentence be deferred until lie could prepare a statement of the petitioner’s background for the court’s consideration; that when he appeared for -sentence on October 23 his attorney was not present; that he did not know of his -right to have counsel present and the court •did not so advise him.
The trial court’s findings on the record evidence is, of course, conclusively controlling here, and the narrow question then is, whether petitioner was entitled as of right to have counsel present when sentence was imposed on October 23, and if so, did he competently and intelligently waive that right?
In considering the question whether a petitioner has been accorded his constitutional right to the effective assistance of counsel at every stage in the proceedings against him, we have never found it necessary to decide precisely whether absence of counsel when sentence is imposed in and of itself amounted to a denial of that constitutional guaranty. We have stated, however, that “an accused should have an opportunity to be heard by counsel on the sentence to be imposed and that a court should not impose sentence in the absence of counsel without expressly ascertaining that a defendant does not desire his presence. * * * ” This for the reason that “many considerations influence the length of a sentence which is to be imposed, and a defendant should have the opportunity to have his attorney present any mitigating circumstances to the court for its consideration in deter-, mining the weight of the sentence.” Batson v. United States, 10 Cir., 137 F.2d 288, 289. See also Thomas v. Hunter, 10 Cir., 153 F.2d 834. Cf. Kent v. Sanford, 5 Cir., 121 F.2d 216.
The constitutional mandate is not satisfied by legalistic formality, von Moltke v. Gillies, 68 S.Ct. 316. An accused may be denied effective assistance of counsel, although counsel be present at every stage in the proceedings. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. Conversely, he may actually have the benefit of counsel, although he is absent at some stage of the proceedings. Canizio v. New York, 327 U.S. 82, 66 S.Ct. 452, 90 L.Ed. 545. See also Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216; Amrine v. Tines, 10 Cir., 131 F.2d 827. Since the right to counsel is a matter of substance not form, it is the solemn duty of the trial judge to make sure that representation is not an empty gesture, but is the fulfullment of the spirit and purpose of the constitutional mandate. See von Moltke v. Gillies, supra; Glasser v. United States, supra; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357.
We think that the right to the effective assistance of counsel contemplates the guiding hand of an able and responsible lawyer, devoted solely to the interest of his client; who has ample opportunity to acquaint himself with the law and facts of the case, and is afforded an opportunity to present them to a court or jury in their most favorable light If the accused does not have the assistance of counsel when entering a plea or when sentence is imposed, it must be manifestly clear to the court that he has competent and intelligently waived such right. Indeed, there are situations when justice cannot be administered unless one charged with a crime is represented by capable and responsible counsel. See Carter v. Illinois, supra.
Here the petitioner was represented by counsel of his own choice, who when the guilty plea was entered asked leave to reduce the argument in behalf of his client to writing and submit it to the court in order that he might have it when he came to consider punishment. When the court inquired whether he expected to be present when sentence was imposed, he stated in the presence of his client that he would not, but would submit his written notes for the court’s consideration. When the court came to pass judgment, he had before him the lawyer’s brief in his client’s behalf, and referred to it in the determination of punishment. Certainly, it cannot be said that the logic of a written argument to the court is not as effective as court room oratory. Furthermore, after imposition of sentence petitioner wrote to the sentencing court expressing the view that “In such a case as was my own, I am sure his honor was as merciful as could be expected and I am grateful for the undue kindness shown me under the then trying circumstances.”
While we should scrutinize very closely any sentence imposed upon an accused without the physical presence of counsel, we think the facts in this case deny any imputation that in' the constitutional sense petitioner was denied the effective assistance of counsel at every stage in the proceedings.
The judgment is affirmed. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
0
] | songer_typeiss |
LUIGI SERRA, INC. and Ansaldo S.p.A., Libelants-Appellees, v. SS FRANCESCO C, her engines, boilers, etc., Soc. Di Nav. “San Francesco” S.p.A. Angelo Scinicariello, Costa Line, Giacomo Costa Fu Andrea, Universal Terminal & Stevedoring Corp. and Frank J. Holleran, Inc., Respondents-Appellants.
No. 457, Docket 30040.
United States Court of Appeals Second Circuit.
Argued May 10, 1967.
Decided June 7, 1967.
Alan S. Loesberg, New York City (Joseph T. McGowan, Hill, Rivkins, War-burton, McGowan & Carey, New York City, on the brief), for appellees.
Robert H. Peterson, New York City (Eli Ellis, Hill, Betts, Yamaoka, Freehill & Longcope, New York City, on the brief), for appellants Universal Terminal & Stevedoring Corp. and Frank J. Holleran, Inc.
John H. Cleveland III and Joseph M. Costello, New York City (Tallman Bissell, Haight, Gardner, Poor & Havens and Costello, Ward, Tirabasso & Shea, New York City, on the brief), for appellants Soc. Di Nav. “San Francesco” S.p.A. and Costa Line, Giacomo Costa Fu Andrea, respectively.
Before SMITH, KAUFMAN and HAYS, Circuit Judges.
PER CURIAM:
This is an appeal from a judgment entered in the United States District Court for the Southern District of New York granting libelants recovery for damage done to two separately packaged turbine wheels, each weighing over 20,000 pounds, shipped on board the SS Francesco C in January 1961. The district court, in an opinion unofficially reported at 1965 AMC 2029, limited the liability of the vessel owner and time charterer to $500 per package in accordance with the requirements of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5), and held the stevedore, Universal Terminal & Stevedoring Corp., and the carpenter, Frank J. Holleran, Inc., liable for all damage to the cargo and for indemnification of all expenses incurred by the vessel owner and charterer. The stevedore and carpenter contend that the district court erred in holding that their negligence was the principal cause of the cargo damage.
The district court’s determination “on the issue of negligence does not fall within the ‘unless clearly erroneous’ ” test of Fed.R.Civ.P. 52(a). Mamiye Bros. v. Barber S. S. Lines, Inc., 360 F.2d 774, 776-778 (2d Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966). However, our review of the findings of evidentiary fact on which the ultimate question of negligence depends is subject to the limitation of rule 52(a).
Here the evidence amply supports the trial court’s finding that Universal failed properly to discharge both its obligation to supervise the stowing and securing of the cargo and its responsibility for formulating the plan of stowage, in particular by failing to provide properly for the security of the two Ansaldo cases by adequate positioning and support. The evidence also establishes that Holleran, Inc. used inadequate materials for shoring, bracing and chocking the two cases and that Holleran, Inc.’s supervisory personnel failed properly to inspect the work done. We find no error in the district court’s conclusion that the stevedore and the carpenter were negligent in discharging their duties and that their negligence was the principal cause of the damage to the cargo.
There is no merit in appellants’ contention that the district court abused its discretion in limiting the cross-examination of libelants’ expert witness.
The judgment is affirmed. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
0
] | songer_genresp2 |
Donnell FLIPPINS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 85-6091.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 17, 1986.
Decided Jan. 5, 1987.
Rehearing Denied March 18, 1987.
Martin S. Hume, court appointed, Youngstown, Ohio, for petitioner-appellant.
Haney Jones, III, Asst. U.S. Atty., Louisville, Ky., Terry Cushing, argued, for respondent-appellee.
Before MERRITT and WELLFORD, Circuit Judges, and EDWARDS, Senior Circuit Judge.
WELLFORD, Circuit Judge.
This case raises the single issue of ineffective assistance of counsel in the alleged failure to exercise minimal diligence in investigating the circumstances of an underlying conviction with respect to a charge of violating federal statutes that prohibit convicted criminals from possessing firearms. We previously considered an appeal from Flippins' conviction in 1984 and remanded the case to the district court for an evidentiary hearing on the merits of his claim. See Flippins v. United States, 747 F.2d 1089, 1092 (6th Cir.1984). At the hearing on remand, the district judge found that appellant’s trial counsel had rendered reasonably competent assistance and that appellant’s testimony to the contrary lacked credibility. He therefore denied appellant’s petition. For the following reasons, we AFFIRM the district court’s order.
Appellant Donnell Flippins is currently serving a ten year sentence on one count of criminal possession of a forged instrument, and one count as a first degree persistent felony offender. Both counts originated under Kentucky law. The persistent felony offender conviction was based on a 1971 federal felony conviction following charges of an attempt to board an aircraft with a weapon, unlawful possession of a firearm, and unlawful transportation of a firearm. The statutes on which the second and third counts were based prohibited a convicted felon from possessing a firearm and from transporting a firearm through interstate commerce, and evidence indicated that in 1969 Flippins had pleaded guilty to Kentucky criminal charges of attempted robbery and carrying a concealed weapon. Flippins pleaded guilty to all three counts in 1971. His petition for a writ of error coram nobis challenges the 1971 conviction on the basis of ineffective assistance of counsel.
At the evidentiary hearing mandated by this court’s 1984 decision, Flippins testified that his appointed counsel in the 1971 case, Paul Murphy, spent only a few minutes with him on the day that he entered the guilty plea, and that Murphy told him to enter the plea on the understanding that Murphy would talk to the district court judge to secure a suspended sentence. He also testified that at the time he entered the guilty plea, he responded affirmatively to the questions the judge asked him because his attorney told him to do so. Flip-pins further testified that he had not been convicted of a felony in 1969 in the Kentucky court, and that he so advised Murphy.
Murphy, on the other hand, testified that he interviewed Flippins for two hours on March 11, 1985, four days before the sentencing took place. He stated that Flippins told him that he thought possibly his Miranda rights had been violated, and that when he went to board the aircraft, he had the pistols in a dop kit and was told by the airlines to carry his dop kit on board. Murphy testified that he researched the statutes and determined that intent was not an essential element to the crime of boarding aircraft with a weapon. He also testified that he conferred with the United States Attorney and was then advised of incriminating statements Flippins made to the law enforcement authorities. He also learned about testimony the government would present regarding Flippins’ attempt to board the aircraft with firearms. In light of information about Flippins’ admission that he had the firearms with him, and because he had determined that intent was not an element of the crime, Murphy advised Flippins that in his view Flippins had no real defense to the aircraft charge. Murphy also said that he had consulted with Flippins about the Miranda violation defense, and advised him that he felt that such a defense would be futile but that he would pursue it if Flippins so desired. Flippins allegedly then responded that he did not desire to pursue it, and Murphy did not request a hearing to contest the circumstances of his giving an inculpatory statement.
Murphy also testified that Flippins acknowledged that he had been convicted in 1969 and never raised any issue of the validity of that conviction. Furthermore, reading the copy of Flippins’ 1969 conviction did not, on its face, raise any questions about its validity in Murphy’s mind. The district court acknowledged Murphy’s expertise in Kentucky criminal law. Murphy not only practices criminal law in Kentucky, but also helped draft the Kentucky penal code and taught criminal procedure at the University of Kentucky law school.
The district court then considered the testimony, found Murphy’s testimony to be credible, and found that Flippins’ contradictory testimony was not credible. The district court concluded that Murphy had rendered reasonably effective assistance and therefore denied Flippins’ writ of error. Flippins now appeals that order.
The primary issue before this court is whether Murphy’s failure to investigate the validity of the 1969 conviction constituted ineffective assistance of counsel. The United States Supreme Court recently set forth the standard for determining whether a defendant received effective assistance of counsel as required by the sixth amendment. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court enunciated a two-prong test. First, the defendant must show that “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. Second, the defendant must show prejudice by showing that the errors were so serious as to deprive him of a fair trial. Id. Elaborating on the reviewing court’s role in applying this test, the Court stated:
Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable____ [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance____
Id. at 689, 104 S.Ct. at 2065; see also Krist v. Foltz, 804 F.2d 944, 948 (6th Cir.1986) (quoting Strickland). Addressing counsel’s duty to investigate, the Court asserted:
The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information.
Id. 466 U.S. at 691, 104 S.Ct. at 2066.
The “information supplied by defendant” is a matter of dispute in this case. At the evidentiary hearing, Flippins testified that he told Murphy he was never convicted. Murphy, however, saw a copy of the conviction and testified that Flippins acknowledged the conviction and never raised an issue of its validity. The district court believed Murphy’s testimony to be credible. This court must defer to the district court’s findings of fact, particularly on issues of credibility. We, therefore, must accept as fact Murphy’s testimony that Flippins never alerted him to any infirmity in the conviction.
Flippins contends that the conviction raises doubts on its face because the court withheld “rendition of judgment” and that this language in the judgment of conviction should have prompted Murphy to investigate its validity. Murphy, however, an acknowledged expert on Kentucky law, testified that withholding rendition of judgment is merely an old form Kentucky state courts used to suspend sentence and impose probation. The Kentucky court thus imposed judgment against Flippins, but placed him on probation rather than rendering judgment by making him serve the full time in prison on the first count of the indictment. We find that the judgment of conviction reasonably raised no question in the attorney’s mind of the validity of the conviction.
The Supreme Court has determined that a guilty plea, followed by a sentence of probation, is enough to constitute a “conviction” for the purposes of federal gun control statutes. See Dickerson v. New Banner Institute, Inc., 460 U.S. 103, 114, 103 S.Ct. 986, 992, 74 L.Ed.2d 845 (1983). The Court has also asserted that “the mere fact of conviction, or even indictment” meets the “conviction” requirement of federal gun control statutes, regardless of questions concerning the validity of the conviction. See Lewis v. United States, 445 U.S. 55, 67, 100 S.Ct. 915, 921, 63 L.Ed.2d 198 (1980). Flippins cites cases focusing on Oklahoma law to determine whether a “conviction” occurred. See United States v. Parker, 604 F.2d 1327 (10th Cir.1979); United States v. Stober, 604 F.2d 1274 (10th Cir.1979). The Supreme Court has expressly stated, however, that whether a “conviction” exists within the meaning of federal gun control statutes is a question of federal, not state, law. See Dickerson, 460 U.S. at 111-12, 103 S.Ct. at 991. If Flippins entered a guilty plea in the 1969 conviction, therefore, he was “convicted” for the purposes of the 1971 firearms possession and transportation charges.
Flippins testified that he pleaded guilty in 1969, but that he “never entered a courtroom” and never entered the plea before a judge. He testified that he only pleaded guilty before his attorney and the prosecutor. The district court simply did not believe this testimony, and, again, we give deference to the district court on this question of credibility. The district court found that Flippins did not tell Murphy what he later related in his testimony and a reasonably competent attorney would have no reason to suspect the validity of a judgment appearing regular on its face. Given the “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, 104 S.Ct. at 2066, we find that Murphy rendered adequate and effective assistance with respect to the underlying conviction.
Addressing Flippins’ contention that Murphy coerced him into pleading guilty by telling Flippins he was a friend of the district judge and would secure a suspended sentence, the district court simply found that Flippins’ testimony was not believable. Concerning Flippins’ charge of inadequate preparation, the district court believed Murphy’s testimony about his interviews with Flippins and the United States Attorney prior to submission of the guilty plea and his other testimony about his research, his determination that Flippins had not valid defense, and his reviewing the guilty plea requirements with Flippins before he went before the judge to enter his plea. Substantial evidence supports these findings of fact. In sum, Flippins has failed to persuade us that his attorney failed to meet the Supreme Court’s standards regarding the sixth amendment’s guarantee of “counsel.” We therefore AFFIRM the district court’s order.
. The sentence imposed by the Kentucky state court included the following language:
The court ... finds the defendant guilty as per his plea and fixes his punishment at confinement in the penitentiary for a term of ten years as to Count 1 of the indictment____
The defendant Flippins moved to "withhold rendition of the judgment.” The court then stated:
The court ... sustains said motion on the condition that the defendant remain on his good behavior and refrain from any similar trouble for a period of five years after serving his sentence received in Count 2____
The court imposed costs on Flippins and further ordered "that he be confined in the County Jail for a period of six months ... [for Assault and Battery].” | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense". | What is the specific issue in the case within the general category of "criminal - federal offense"? | [
"murder",
"rape",
"arson",
"aggravated assault",
"robbery",
"burglary",
"auto theft",
"larceny (over $50)",
"other violent crimes",
"narcotics",
"alcohol related crimes, prohibition",
"tax fraud",
"firearm violations",
"morals charges (e.g., gambling, prostitution, obscenity)",
"criminal violations of government regulations of business",
"other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)",
"other crimes",
"federal offense, but specific crime not ascertained"
] | [
15
] | songer_casetyp1_1-3-1 |
Richard and Anita POLIQUIN, Plaintiffs-Appellants, v. GARDEN WAY, INC., Defendant-Appellee.
Nos. 92-1115, 92-1116.
United States Court of Appeals, First Circuit.
Heard July 29, 1992.
Decided March 24, 1993.
Rehearing Denied April 20, 1993.
Maurice A. Libner with whom Marcia 3. Cleveland and McTeague, Higbee, Libner, MacAdam, Case- and Watson, Topsham, ME, were on brief, for plaintiffs-appellants.
Cheryl Flax-Davidson, San Juan, PR, and Bob Gibbins, Austin, TX, were on brief, for amicus curiae The Ass’n of Trial Lawyers of America.
Mark L. Austrian with whom Collier, Shannon, Rill & Scott, Washington, DC, Roy E. Thompson, Jr., Glenn H. Robinson, arid Thompson & Bowie, Portland, ME, were on brief, for defendant-appellee.
James D. Poliquin, Russell B. Pierce, Jr. and Norman, Hanson & DeTroy, Portland, ME, were on brief, for amicus curiae The Defense Research Institute, Inc.
Before TORRUELLA and BOUDIN, Circuit Judges, and KEETON, District Judge.
Of the District of Massachusetts, sitting by desig- . nation..
BOUDIN, Circuit Judge.
Richard and Anita Poliquin, appellants in this court and plaintiffs below, challenge protective orders of the district court limiting access to certain discovery materials in this case. The plaintiffs’ underlying product liability claim has been settled. The discovery dispute lives on, consuming the time and energy of the courts, largely as a contest between plaintiffs’ counsel and the defendant-appellee, Garden Way, Inc. For reasons set forth below, we modify the orders under review in one important respect and otherwise affirm.
I. PROCEEDINGS IN THE DISTRICT COURT
In October 1990, Richard Poliquin was seriously injured while operating the Super Tomahawk, a chipper/shredder manufactured by Garden Way. He and his wife brought suit against Garden Way in the district court, charging that the injury was due to the defective design of the product. The Poliquins sought discovery from Garden Way including design specifications, sales data and information about other accidents involving the Super Tomahawk or similar equipment.
In response, Garden Way sought a protective order limiting disclosure of answers and documents produced in response to specified discovery requests. The Poli-quins resisted, Garden Way submitted an affidavit from its general counsel Lucia Miller in support of its request. On August 2, 1991, after a hearing on discovery issues, a protective order was entered by the magistrate judge to whom discovery matters had been assigned. The protective order said that Garden Way did have “valuable trade secrets and other confidential information” which were sought in discovery but should not be made public. The order afforded confidential treatment to information obtained through some, but not all, of the interrogatories specified by Garden Way, and to other information that had been the subject of the hearing.
The August 2 order also created a mechanism for resolving disputes about new discovery. It provided that if Garden Way produced other information or documents that it deemed confidential, it should mark them with a legend showing that they were “confidential” pursuant to court order in the case. If the Poliquins disagreed, they could contest the designation by motion within a fixed period, effectively 15 days from the production of the materials. The order provided that it “shall not terminate at the conclusion of this action” and within 90 days after the conclusion, all information and documents subject to the order “shall be destroyed” and a certificate of destruction provided by counsel.
The Poliquins appealed the August 2 order to the district judge who affirmed it as “not clearly erroneous.” An appeal to this court was taken but dismissed as interlocutory. The interrogatory answers and documents provided by Garden Way under the protective order listed the names of other persons who had been injured by Garden Way equipment and included a number of complaints such persons had filed in other suits. The Poliquins later took depositions (under Fed.R.Civ.P. 31) of 23 other individuals who had suffered such accidents, as well as the -videotaped deposition of Jay Sluiter, a former employee of Garden Way. The protective order provided that confidential information within a deposition transcript was to be designated by underlining the lines in question and stamping the pages “confidential.” It is not clear that Garden Way did so in each instance.
A pretrial hearing occurred on October 24, 1991. The district judge ruled that the Poliquins were free to offer information and documents at trial even if they had been designated as confidential during discovery. During this colloquy, plaintiffs’ counsel suggested that material offered in evidence would be freed from further restriction, so he could send such material to other plaintiffs who had similar cases. Defense counsel disagreed and concluded by saying that when trial is over “I will request that those exhibits be returned.” The court replied: “Correct.... When the trial is over, whatever rights you have ... to control the further dissemination of the material, you can invoke.”
Trial began on October 28, 1991. During trial, the court permitted the Poliquins' counsel to read to the jury a portion of Garden Way’s interrogatory answers — relating to certain of the other accidents involving Garden Way equipment — but it did not allow the written interrogatory answers themselves to be offered as exhibits and excluded information about many of the other accidents altogether. None of the Rule 31 depositions of other injured persons was admitted or read to the jury, the court excluding them as prejudicial and of little value. A videotape of the Sluiter deposition was shown to the jury in its entirety.
During trial, the parties agreed to settle the case, and the jury was discharged. Thereafter, on .November 13, 1991, defense counsel wrote to the Poliquins’ counsel listing 214 items claimed to be covered by the protective order, and requesting that the listed material be returned or destroyed. Some of the 214 items had not previously been designated as confidential. Included in the list were portions of the trial record. It appears that the Poliquins’ counsel did not immediately reply.
On November 18, 1991, plaintiffs executed a “release and indemnity agreement” and received a check. The agreement stated that “[rjeleasors and their attorney acknowledge that they are still bound by the terms of the [August 2] Protective Order” as to disclosure of protected materials. In a signed addendum, the Poliquins’ counsel approved the agreement and “acknowledge[d] continuing applicability of the Protective Order and agree[d] to comply with the portions of this agreement which apply to him.” The counsel “further agree[dj” that he would instruct any expert or consultant shown confidential material not to disseminate it and to return all documents or other written materials to defense counsel. On November 27, 1991, the district court formally dismissed the case.
Shortly before the dismissal, the Poli-quins on November 25, 1991, filed a motion “for determination of confidentiality” asking the court to rule that a number of items listed in the November 13, 1991, letter were not subject to any confidentiality restriction. The Poliquins argued that their counsel had independently learned the names of seven injury victims before the interrogatories were answered; that any information admitted into evidence at trial, {e.g., the Sluiter deposition) should not be protected; that it would be wasteful of resources to protect the unadmitted Rule 31 depositions of victims; and that court complaints filed in other cases, although furnished by Garden Way in discovery and not admitted at trial, were public documents.
Garden Way opposed the motion and asked the court to seal pendente lite confidential material to the extent contained in the court’s file. By endorsements, the district judge on December 10, 1991, granted Garden Way’s request and denied the Poli-quins’ motion. Then, on January 17, 1992, the district court on further review of Garden Way’s request directed that material subject to the August 2 protective order be removed from the court file by counsel for Garden Way and the court then sealed “all testimony and arguments made during the trial dealing with the matters which are subject to” the August 2 order, unless and until otherwise ordered'by the, court.
The Poliquins appealed to this court both the December 10, 1991, order denying its motion and the January 17, 1992, order sealing in part the trial record. An amicus brief supporting them has been filed by the Association of Trial Lawyers of America and another in opposition by the Defense Research Institute, Inc. There is no hint that the Poliquins themselves have any practical interest in the outcome of the appeal, but as they are formally subject to protective orders entered in their case, we see no lack of standing to seek appellate review.
II. THRESHOLD ISSUES
At the outset, we face arguments on both sides that important issues have been waived or relinquished. To raise an issue on appeal, a litigant must generally show the issue was raised in the trial court by a proper request or objection and that the right ground for the request or objection was given at the time. See generally Clauson v. Smith, 823 F.2d 660, 666 (1st Cir.1987) (collecting waiver cases). Even then, a mistake in the ruling will be disregarded unless prejudice resulted from the error. E.g., Fed.R.Evid. 103(a). Finally, nothing prevents a party from consenting by stipulation or contract not to pursue a specific issue on appellate review.
The reason for the rules is not that litigation is a game, like golf, with arbitrary rules to test the skill of the players. Rather, litigation is a “winnowing process,” Howell v. Federal Deposit Ins. Corp., 986 F.2d 569, 575 (1st Cir.1993), and the procedures for preserving or waiving issues are part of the machinery by which courts narrow what remains to be decided. If lawyers could pursue on appeal issues not properly raised below, there would be little incentive to get it right the first time and no end of retrials. Thus, while there are escape hatches—“plain error,” “miscarriage of justice,” and other rubrics—an argument not properly preserved in the trial court is normally unavailable on appeal.
Garden Way argues that in the release the Poliquins agreed to be “bound” by the August 2 protective order, and so have relinquished their right to challenge the protective order on appeal. The argument may have more force as to some of the information in dispute (e.g., the answers to specifically protected interrogatories) and less as to other items (anything arguably “added” by Garden Way’s post-trial letter to previously protected information). But we need not resolve the matter because Garden Way made no such relinquishment argument to the district court when it opposed the Poliquins’ motion to determine confidentiality.
Although appellate courts have discretion to resolve issues waived or abandoned at trial, Clauson, 823 F.2d at 666, this is and should be uncommon, especially where facts pertinent to the issue are not in the record. Here, the import of the release is less clear than Garden Way suggests. The release states that the Poli-quins are “still bound by the terms” of the August 2 protective order, but it is open to argument whether “the terms” apply to all of the disputed material. The parties’ intentions might be illuminated by facts incident to the negotiations, but those facts are absent. In all events, we conclude that Garden Way has itself waived the right to argue that the release bars this appeal.
Garden Way next argues that the Poliquins cannot attack the protective order because they failed to file an affidavit of their own in opposition to the original request for that order. We think it plain that the Poliquins, having made and pursued a timely qbjection to the August 2 order, are free to argue that the order was itself unlawful ab initio. The burden of showing cause for the order was upon Garden Way and the Poliquins can argue that the burden was not met (or that the order was overbroad) without offering affidavits of their own.
Finally, turning the tables, the Poli-quins themselves contend that Garden Way lost the protection of the August 2 order as to various depositions because they were not marked “confidential” ;and underlined as required by the order. Garden Way says in reply that some depositions were not received until the midst of trial, delaying the designation process. The facts are obscure but need not be determined. The Poliquins’ waiver argument was not made in their motion for a determination of confidentiality or the supporting memorandum. Accordingly, this fact-bound argument is itself unavailable on appeal.
III. THE MERITS
The August 2 Order. Protective orders of various kinds are employed in civil cases, ranging from true blanket orders (everything is tentatively protected until otherwise ordered) to very narrow ones limiting access only to specific information after a specific finding of need. See generally Francis H. Hare, Jr., James L. Gilbert & William H. ReMine, Confidentiality Orders, § 4.10 (1988). The magistrate judge’s order in this case fell between these poles: it was based on an affidavit cast in broad terms; it protected specific interrogatory answers; and it set up a mechanism allowing Garden Way to designate further confidential material subject to objection by the Poliquins.
District judges need wide latitude in designing protective orders, and the Federal Rules of Civil' Procedure reflect that approach. Rule 26(c) generously permits “for good cause shown” the making of “any order which justice requires” to protect against annoyance, embarrassment or undue burden occasioned by discovery. The district court has “broad discretion” to decide “when a protective order is appropriate and what degree of protection is required,” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36, 104 S.Ct. 2199, 2209, 81 L.Ed.2d 17 (1984), and great deference is shown to the district judge in framing and administering such orders. Public Citizen v. Liggett Group, Inc., 858 F.2d 775, 790 (1st Cir.1988), cert. denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed,2d 970 (1989); 8 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2036 (1970).
Here, we have no doubt that the magistrate judge was entitled to enter the August 2 order. Some trial judges take a stricter view of the showing needed to protect discovery. But, in coping with the torrent of material often discovered but never used at trial, other judges require some general showing by affidavit and then protect materials designated by one side, subject to challenge by the other. Apart from a few aspersions on the Garden Way affidavit, the Poliquins do not seriously renew their prior attack on the original August 2 order. To the extent they do so, we reject that claim, finding the Miller affidavit adequate to support the original protective order.
This conclusion, however, does not even begin to dispose of the case. The Poli-quins’ main attack is directed not to the August 2 order of the magistrate judge but to the protection afforded or reaffirmed under the district judge’s own ancillary orders of December 10,1990, and January 17, 1991. These orders rejected the Poliquins’ request to release (1) the Sluiter deposition and certain excerpts from interrogatory answers (read into evidence at trial) relating to other accidents, (2) court complaints filed by certain victims (which were not admitted at trial), and (3) and the Rule 31 depositions of victims (which likewise were not admitted at trial).
Admitted Evidence. Among the items protected by the district court’s orders are materials that were actually admitted into evidence at trial: the videotape of the Sluiter deposition and excerpts read into the record from interrogatory answers describing other accidents. There is no issue of waiver here, for (as earlier noted) Garden Way made clear its desire to enforce the protective order even for material admitted at trial, and the district court reserved decision on the matter. We conclude, however, that only the most compelling showing can justify post-trial restriction on disclosure of testimony or documents actually introduced at trial. That showing has not been made in this ease.
We have no doubt that, in rare circumstances, material introduced at trial can be safeguarded against disclosure afterwards. See Anderson v. Cryovac, Inc., 805 F.2d 1, 11-12 (1st Cir.1986). Material of many different kinds may enter the trial record in various ways and be considered by the judge or jury for various purposes. The subject could be national security, the formula for Coca Cola, or embarrassing details of private life. The evidence might be offered only at the bench and the transcript immediately sealed, or it might be provided in a closed hearing, or it might be offered in public but be hard to replicate without a transcript. It is neither wise nor needful for this court to fashion a rulebook to govern the range of possibilities.
One generalization, however, is safe: the ordinary showing of good cause which is adequate to protect discovery material from disclosure cannot alone justify protecting such material after it has been introduced at trial. This dividing line may in some measure be an arbitrary one, but it accords with long-settled practice in this country separating the presumptively private phase of litigation from the presumptively public. See Cowley v. Pulsifer, 137 Mass. 392 (1884) (Holmes, J.). Open trials protect not only the rights of individuals, but also the confidence of the public that justice is being done by its courts in all matters, civil as well as criminal. See Seattle Times Co., 467 U.S. at 33, 104 S.Ct. at 2207-08 (distinguishing discovery material, traditionally not available to the public, from trial evidence which normally is available).
There is thus an abiding presumption of access to trial records and ample reason to “distinguish materials submitted into evidence from the raw fruits of discovery.” Littlejohn v. BIC Corp., 851 F.2d 673, 678, 684 & n. 28 (3d Cir.1988). As we have said elsewhere, “ ‘[ojnly the most compelling reasons can justify the non-disclosure of judicial records.’ ” FTC v. Standard Financial Management Corp., 830 F.2d 404, 410 (1st Cir.1987) (quoting In re Knoxville News-Sentinal Co., 723 F.2d 470, 476 (6th Cir.1983)). Accord, Joy v. North, 692 F.2d 880, 893-94 (2d Cir.1982). In this case, there are no separate findings by the district court explaining the need for post-trial protection of trial evidence. While in some cases “compelling reasons” might be apparent from the record, that is not so here.
Considering first the description of other accidents in the interrogatory responses, we believe no basis exists for a finding of “compelling reasons.” Garden Way’s reason for protection of such incidents is set forth in the Miller affidavit. It amounts to a garden-variety claim that the company’s image among customers' will be damaged through the misuse or distortion of those accident claims. In our view, this threat may be adequate as a ground for protecting discovery material; but it is outweighed, after the material is introduced in evidence, by the public’s interest in access to trial records. See Littlejohn, 851 F.2d at 685.
Trials after all commonly generate bad publicity for defendants. Specific pieces of evidence are only details of a larger picture, often a very disparaging one, created by reports of the case in the press. This publicity may be unfair or distorted, but the injury is the price paid for open trials. At least in the absence of extraordinary circumstances, commercial embarrassment is not a “compelling reason” to seal a trial record. We have examined the interrogatory answer excerpts at issue in this case and find nothing to alter our judgment.
The videotape of the Sluiter deposition presents a different problem because Garden Way, in arguing about its confidentiality, made a proffer which goes somewhat beyond claims of embarrassment. Garden Way said that the deposition
deal[s] with the internal procedures by which Garden Way evaluates a product, market tests products and ultimately purchases the product for incorporation into its product line. [Sluiter’s] testimony and exhibits deal with Garden Way’s specific business plan for shredders, business plans for other types of power equipment, as well as customer profile information. All this information is highly confidential and proprietary....
Needless to say, these assertions, no matter how accurate, could not provide a basis for protecting the entire videotape of the deposition after its introduction into evidence, but at most, only trade secret or like material of unusual importance.
In any event, we see no need for a remand to consider any splicing of the tape. After reviewing the deposition transcript, this court finds that the videotape contains nothing remotely comparable to, say, the formula for Coca Cola or even an important trade secret. Garden Way’s business methods are discussed but there are no startling revelations. The disadvantages of disclosure relate to future litigation, not the conduct of Garden Way’s business. There is no “compelling reason” here to restrict access to a videotape already played in open court.
We note that a litigant like Garden Way has a straightforward trial remedy, one apparently not used in this case. At the time that confidential information is offered in evidence, the trial judge has ample power to exclude those portions that have limited relevance but contain trade secrets or other highly sensitive information. Fed.R.Evid. 403. This approach will not solve every problem but, to the extent it applies, it can mitigate harm without any impairment of public access to the trial record.
Public Records. The Poliquins next object to the protection after trial of copies of civil complaints filed in other courts against Garden Way by other accident victims in other cases. None of these complaints was accepted in evidence at trial. Nor do we understand the Poliquins to claim that their attorney obtained the complaints independently of discovery. The issue, then, is whether the character of the complaints as public records means that “good cause” cannot exist for protecting them under Rule 26 even though they were obtained by compulsory discovery from the party seeking protection.
At first blush, it might appear odd to safeguard with a protective order “public” documents that anyone in the country can secure by visiting a government office and using the copying machine. Yet, one can easily imagine “public” archival material where difficulties of discovery and assembly represent a significant investment by the original finder and a barrier to easy replication. Indeed, most “trade secrets” are duplicable with enough time and effort. The futility of protecting a “public” document might persuade a court to deny protection. But we see no basis for a blanket rule forbidding Rule 26 protection in all instances where the “public” document is obtained through discovery under an otherwise justified protective order.
The “public” character of the complaints is the only reason given by the Poliquins for ordering their disclosure. We therefore have no reason to consider whether the magistrate judge’s original inclusion of the complaints under the protective order was error for any other reasons. ■ A protective order may often specify categories of information for protection without document by document review, and the design of the order is in any event largely within the trial court’s discretion.
The Rule 31 Depositions. The remaining documents in dispute are the Rule 31 depositions of 23 accident victims not admitted into evidence at trial. The issue before us is narrow. The Poliquins, as we have said, have waived any claim that protection for the depositions was not timely sought. Nor do the Poliquins assert that the depositions must be disclosed in order to advise the public, and especially the authorities, of an unknown danger. Cf. Anderson v. Cryovac, Inc., 805 F.2d at 8 (permitting plaintiffs to disclose to government authorities discovery information regarding toxic chemicals in the city’s water supply). In this case, nothing prevents the Poliquins from advising the government of their claim that the Super Tomahawk is defective.
The Poliquins argue instead that disclosure of the depositions is warranted to avoid wasteful duplication of discovery in other cases. The argument has a surface appeal in a time of swollen litigation cost and crowded dockets, but it looks at only one element in the equation. Absent an immediate threat to public health or safety, the first concern of the court is with the resolution of the case at hand. Judges have found in many cases that effective discovery, with a minimum of disputes, is achieved by affording relatively generous protection to discovery material. Impairing this process has immediate costs, including the delay of discovery and the cost to the parties and the court of resolving objections that would not be made if a protective order were allowed.
For these reasons, the district court under current law retains broad discretion to protect discovery material, despite the burden of re-discovery imposed on future litigants in future cases. There have been proposals in Congress for “sunshine” legislation to provide public access to discovery, Court Secrecy: Hearings Before the Subcomm. on Courts and Administrative Procedure of the Senate Ju-dietary Committee, 100th Cong., 1st Sess. (1990), but there has also been strong opposition to these proposals and few states have adopted them. See, e.g., Judicial Conf. of the United States, Report of the Federal Courts Study Committee 102-03 (1990); Arthur Miller, Confidentiality, Protective Orders, and Public Access to the Courts, 105 Harv.L.Rev. 427, 477-502 (1991). In all events, Congress has not altered the law.
Where the district court does protect material during discovery, it is common to provide, as the magistrate judge did here, for post-trial protection including the return or destruction of protected material. In most cases, the lubricating effects of the protective order on pre-trial discovery would be lost if the order expired at the end of the case or were subject to ready alteration. See Miller, supra, at 499-500. Nevertheless, a protective order, like any ongoing injunction, is always subject to the inherent power of the district court to relax or terminate the order, even after judgment. Public Citizen, 858 F.2d at 781-82.
This retained power in the court to alter its own ongoing directives provides a safety valve for public interest concerns, changed circumstances or any other basis that may reasonably be offered for later adjustment. Where such a request is made to the district judge and an appeal thereafter follows, the standard of review broadly speaking is abuse of discretion. Id. at 790-92. Nothing in this case suggests that the district court abused its discretion in refusing to lift the protective order for discovery materials not introduced at trial.
The orders of the district court under review are modified to exclude from their scope the videotape of the Sluiter deposition and the interrogatory answer excerpts to the extent read into evidence, and the district court’s orders are otherwise affirmed. No costs.
. These latter orders were issued after the dismissal of the ease, and under Public Citizen, 858 F.2d at 781-82, the district court could not after dismissal expand the protective order to create new obligations. Examining this “jurisdictional” issue sua sponte, we find that the orders in question represent in part a declaration of the scope of the existing August 2 order as applied to disputed materials and in part a refusal to remove prior protection. Thus, the orders were within the district court's continuing authority over previously issued orders.
. Some courts have questioned whether corporate reputation warrants protection at all under Rule 26, e.g., Smith v. BIC Corp., 869 F.2d 194 (3d Cir.1989). In our view, so long as the protective order permits the opposing litigant to reach the material — and use it as needed at trial — it is hard to see why the district court should not be allowed to safeguard reputation.
. Their attorney asserts that he obtained the names of seven victims independently but then secured the complaints they had filed from Garden Way through compulsory discovery. In our view this makes the complaints themselves discovered material. Limiting use of independently obtained material would, of course, raise serious questions as to the scope of the court’s authority and under the First Amendment. See Seattle Times, 467 U.S. at 37, 104 S.Ct. at 2209-10; International Products Corp. v. Koons, 325 F.2d 403, 409 (2d Cir.1963) (Friendly, J.).
. The Poliquins’ counsel also argues that he has invested $5,000 in taking the depositions and should be free to recoup his costs by using the depositions in other suits against Garden Way. This version of events overlooks the fact that counsel was not doing private research but was using the court’s compulsory process to secure the information from deponents compelled to attend and answer. | 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 or not there was any amicus participation before the court of appeals. | Was there any amicus participation before the court of appeals? | [
"no amicus participation on either side",
"1 separate amicus brief was filed",
"2 separate amicus briefs were filed",
"3 separate amicus briefs were filed",
"4 separate amicus briefs were filed",
"5 separate amicus briefs were filed",
"6 separate amicus briefs were filed",
"7 separate amicus briefs were filed",
"8 or more separate amicus briefs were filed",
"not ascertained"
] | [
2
] | songer_amicus |
Charles W. and Susan D. DECKER, Darrell E. and Velma J. Lauderdale, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 87-2950.
United States Court of Appeals, Seventh Circuit.
Argued April 19, 1988.
Decided Dec. 1, 1988.
Patrick B. Mathis, Mathis Marifian & Richter, Ltd. Belleville, Ill., for petitioners-appellants.
Michael J. Roach, Appellate Section, Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee.
Before FLAUM, MANION, Circuit Judges, and WILL, Senior District Judge.
The Honorable Hubert L. Will, Senior Judge of the United States District Court for the Northern District of Illinois, Eastern Division, is sitting by designation.
WILL, Senior District Judge.
Charles W. Decker and Darrell E. Laud-erdale appeal from the decision of the United States Tax Court disallowing their deductions for depreciation of purchased insurance expirations. We affirm the decision of the Tax Court.
I. Factual background.
In 1975, appellants Charles W. Decker and Darrell E. Lauderdale formed a corporation known as the Lauderdale Insurance Agency, Ltd. (the “Lauderdale Agency”). The agency was located in Carbondale, Illinois and specialized in commercial lines of property and casualty insurance. In August of 1978, Lauderdale and Decker entered into a partnership agreement to operate an insurance brokerage business which they named Comprehensive Insurance Services (“Comprehensive”).
Wm. J. Cunningham, Inc. (“WJC”) was a corporation wholly owned by William Cunningham which operated an insurance agency in Pinckneyville, Illinois, thirty-five miles away from Carbondale. Comprehensive entered into negotiations with Cunningham to purchase the insurance expira-tions of WJC. Insurance expirations are policyholder files which contain the customers’ names and addresses and other information including the expiration date of each policy. The expirations are valuable, because they show the most advantageous time to seek a renewal. Although the Lauderdale Agency already did some business in the Pinckneyville area out of its Carbondale location, the purchase of the expirations permitted Comprehensive to expand its market there more quickly and economically.
On August 30, 1978, Comprehensive, WJC, and Cunningham entered into a purchase agreement for the acquisition by Comprehensive of all of WJC’s insurance accounts, lists, renewals, insurance records and papers. By agreement, Comprehensive was not entitled to any accounts receivable on or before the date of closing. In addition, Comprehensive was prohibited from using the name “Wm. J. Cunningham, Inc.” Comprehensive, however, was to receive all commission income due WJC after September 1,1978 except from policies having an effective date, anniversary date or renewal date on or before August 31, 1978. Additionally, WJC and Cunningham covenanted not to compete with Comprehensive in the insurance business within a twenty-five-mile radius of Pinckneyville for five years. WJC and Cunningham also agreed to assist Comprehensive in securing the renewal of transfer of WJC’s contracts with all insurance companies for which WJC had been the agent. Finally, WJC and Cunningham assigned to the Lauder-dale Agency WJC’s lease to its Pinckney-ville office.
As required by the purchase agreement, Cunningham entered into an employment agreement to work as an insurance agent and broker for Comprehensive during a three-year period. This agreement was terminated one year later, on August 10,1979, and was replaced by an agreement that Cunningham serve as an independent contractor for the Lauderdale Agency. During his period of employment by Comprehensive, Cunningham went with appellants to meet with the policyholders whose commercial accounts were due to expire in order to solicit their renewal. In addition to Cunningham, Comprehensive retained WJC’s two clerical employees and operated from WJC’s office.
Comprehensive began its business in Pinckneyville under the name “Lauderdale Insurance Agency, Ltd.” In 1980, the name was changed to “Lauderdale and Decker Insurance, Ltd.” The telephone directory listed “Cunningham Insurance” with a reference “See Lauderdale Insurance Agency, Ltd.” Lauderdale and Decker Insurance, Ltd. had an advertisement in the yellow pages for approximately one year which included a parenthetic reference “formerly the Cunningham Agency.”
During the period from September 1978 through December 1983, 503 of the 1,107 accounts Comprehensive acquired from WJC were terminated. During this same period, Comprehensive wrote 240 insurance policies on accounts it acquired from WJC and acquired 339 new accounts. The record does not indicate whether or not any of these new accounts were attributable to referrals from WJC’s original customers.
Comprehensive claimed on its 1978 partnership tax return a depreciable basis in the acquired insurance expirations of $287,-216. On its returns for 1979 and 1980, Comprehensive claimed a depreciable basis of $258,040. Comprehensive claimed depreciation deductions with respect to the insurance expirations using the straight-line method of depreciation over a seven-year useful life. The IRS issued notices of deficiency to Charles W. and Susan D. Decker and Darrell E. and Velma J. Laud-erdale, disallowing these partnership depreciation deductions because the taxpayers had not shown that the expirations were separable from WJC’s goodwill, a nonde-preciable asset, or that the expirations had a reasonably ascertainable limited useful life.
In the Tax Court, the taxpayers presented the testimony of Decker, a report prepared by a consulting firm, the Middleton Group, and the testimony of a principal of Middleton, William K. Lee, to establish that the insurance expirations in question had value separate from goodwill and an ascertainable limited useful life. Mr. Lee testified that the figures chosed by Comprehensive — a useful life of seven years for the insurance expirations and a value of approximately $250,000 — were reasonable estimates. On the basis of this analysis, Mr. Lee concluded that Comprehensive acquired little, if any, good will or going concern value when it purchased WJC’s insurance expirations.
The Tax Court disagreed. It found that the taxpayers’ purchase of the insurance expirations and the related agreements was in effect the purchase of a going concern and that the expirations were so inextricably linked to goodwill that a limited useful life for them could not be determined apart from goodwill. The Tax Court noted that Comprehensive had acquired WJC’s office facilities, clerical staff, principal salesman, and telephone number. The court found that Comprehensive’s hiring of Cunningham to solicit renewal business from WJC’s policyholders and obtaining from him a covenant not to compete were fatal to the taxpayers’ depreciation argument, since those acts showed the taxpayers’ intention to acquire a going concern along with its goodwill.
Alternatively, the Tax Court held that, even if the value of the expirations was not inextricably linked to goodwill, the taxpayers had failed to establish that the expira-tions had a useful life which could be determined with reasonable accuracy. The Tax Court rejected Mr. Lee’s testimony as to the useful life of the expirations for several reasons. The Tax Court found that Mr. Lee, in determining that the expirations had a useful life of only seven years, had ignored the subsequent referrals from the acquired accounts. The court pointed out, in addition, several other omissions of facts which it deemed relevant to the value of the expirations and also noted inconsistencies. For example, the court concluded that the fact five years had elapsed since the acquisition of the expirations and only 43% of them had been terminated, was inconsistent with the taxpayers’ claim that the expirations had a limited useful life of seven years.
II Analysis.
Pursuant to Section 167(a) of the Internal Revenue Code and the corresponding treasury regulation, intangible assets used in a trade or business or in the production of income can be depreciated, but only if the taxpayer proves that the intangible asset (1) has an ascertainable value separate and distinct from goodwill, and (2) has a limited useful life, the duration of which can be ascertained with reasonable accuracy. Houston Chronicle Publishing v. United States, 481 F.2d 1240, 1250 (5th Cir.1973), cert. denied, 414 U.S. 1129, 94 S.Ct. 867, 38 L.Ed.2d 754 (1974).
Whether a particular intangible asset has a reasonably ascertainable value distinct from goodwill and whether the asset has a limited useful life are questions of fact, which depend on the particular circumstances of the case at hand. Id. at 1243; Panichi v. United States, 834 F.2d 300, 301 (2d Cir.1987). As a result, the Tax Court’s determination that the insurance expirations were “inextricably linked to goodwill” and that Mr. Lee’s testimony had not proven an ascertainable limited useful life for the expirations can be overturned only if these findings are clearly erroneous. Selig v. United States, 740 F.2d 572, 577 (7th Cir.1984). Under this standard, we must affirm the Tax Court’s factual findings, if “the evidence is plausible in light of the record viewed in its entirety ...” Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
We find that the record supports the Tax Court’s determination that the taxpayers’ purchase of WJC’s insurance expirations was part of the purchase of a going concern and inseparable from the acquisition of goodwill. Although the taxpayers protest that they intended only to purchase the information in the expirations — the “competitive advantage of being the incumbent insurer,” Brief of Appellants at 32— the taxpayers did, in fact, acquire almost every element of the WJC business as a going concern including assets, employees and business location. Goodwill is “the expectancy that ‘the old customers will resort to the old place.’ ” Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677, 681 (5th Cir.1971) (citations omitted). “[G]oodwill is acquired by the purchaser of a going concern where the ‘transfer enables the purchaser to step into the shoes of the seller.’ ” Ibid, (citations omitted). In spite of the taxpayers’ arguments to the contrary, their purchase clearly allowed them to step into the shoes of WJC. The only significant distinction between an outright acquisition of the Cunningham Agency and the purchase executed by the taxpayers was the prohibition against the use of the Cunningham name. And in this regard, the yellow page listings for the taxpayers’ agency made it possible for the taxpayers even to exploit some of the value inherent in the Cunningham name. The taxpayers argue that the office procedures of the Cunningham agency were replaced by those of Comprehensive and that Comprehensive’s retention of the same location and the same clerical personnel had little impact on its success in the Pinckneyville market. The commercial business insurance field, they argue, relies very little on sales to walk-in customers. Notwithstanding these arguments, the entirety of the record supports the Tax Court’s conclusion that the taxpayers acquired a going concern.
Two factors about the purchase are particularly significant. First, the taxpayers’ acquisition of “a covenant (not to compete) has the function primarily of assuring the purchaser the beneficial enjoyment of the goodwill and the seller’s list of expirations.” Marsh & McLennan Inc. v. Comm’r, 420 F.2d 667, 669 n. 4 (3d Cir.1969), citing Thomas v. Comm’r, 50 T.C. 247, 255 (1968). Second, as part of the purchase agreement, the taxpayers obtained Cunningham’s agreement to assist them in retaining his former customers and then hired him for that purpose. Although the taxpayers argue that they believed during their negotiations for the purchase of the expirations that Cunningham was planning to go to Florida, Brief of Plaintiffs-Appellants at 36, Cunningham did not leave. In fact, the purchase agreement between Comprehensive, Cunningham and WJC required that Cunningham aid the taxpayers in retaining the accounts of WJC which he did. The Tax Court did not err when it relied in part on the continuing affiliation of Cunningham with Comprehensive in concluding that the taxpayers acquired a going concern. Cunningham’s assistance was contemplated at the time of purchase and, as the taxpayers admit, Brief of Plaintiffs-Appellants at 14, commercial insurance sales rely much on personal contact.
The taxpayers argue that this case should be governed by the reasoning of the court in Richard S. Miller & Sons, Inc. v. United States, 537 F.2d 446, 210 Ct.Cl. 431 (1976). The court in Miller found that the taxpayer insurance agency was entitled to depreciate the cost of insurance expirations which it purchased from a competing agency. The court concluded that the primary purpose of the purchase was not to buy an ongoing business, since (1) the taxpayer was already operating as a competitor in the same market; (2) the taxpayer-purchaser did not use the seller’s name, location, sales personnel or office procedures; and (3) the taxpayer did not receive cash, uncollected premiums or accounts receivable in the purchase. Because the taxpayer had not acquired a going concern, the court reasoned that “[t]he purchase of the expi-rations was a substitute for the time and effort [of the taxpayer agency’s employees] to develop and place on the books a comparable number of policies for the first time.” Id. 537 F.2d at 454. The information in the expirations had substantial value apart from any goodwill which was also obtained through the purchase. See also Panichi v. United States, 834 F.2d 300, 302 (2d Cir.1987).
Although we agree with the reasoning of the court in Miller, we do not believe that the present case is governed by it. Because the taxpayers, Decker and Lauder-dale, moved into the Pinckneyville insurance market by a purchase which retained many elements of the Cunningham Agency as a going concern (including, among others, the right to a portion of the commission income after September 1, 1978), we find that the Tax Court's decision is not clearly erroneous. Unlike the Miller case, the Tax Court here concluded that the taxpayers intended to buy a going concern. The evidence supports that conclusion.
The taxpayers also argue that the Tax Court erred in disregarding the evidence presented by their expert to support their estimates of the useful life of the expira-tions. Since the evidence clearly establishes that the taxpayers acquired a going concern, including its assets, personnel and business location, rather than just the expi-rations as a separate intangible asset, the useful life of the expirations is irrelevant. It is clear from the variations in the renewals of the expirations, however, that the information obtained in the acquisition did not have a reasonably determinable useful life, the expert’s testimony to the contrary notwithstanding.
For all of the foregoing reasons, the decision of the Tax Court is affirmed.
. Susan D. Decker and Velma J. Lauderdale are parties to this case solely because they filed joint returns with their husbands.
. Section 167(a) of the Code provides:
(a) General Rule. — There shall be allowed as a depreciation deduction a reasonable allowance for the exhaustion, wear, and tear
(1) of property used in the trade or business, or
(2) of property held for the production of income.
26 U.S.C. § 167(a) (1982).
. In the case of intangible property, the Treasury Regulations provide:
Intangibles. If an intangible asset is known from experience or other factors to be of use in the business or in the production of income for only a limited period, the length of which can be estimated with reasonable accuracy, such an intangible asset may be the subject of a depreciation allowance.... An intangible asset, the useful life of which is not limited, is not subject to the allowance for depreciation. No allowance will be permitted merely because, in the unsupported view of the taxpayer, the intangible asset has a limited useful life. No deduction is allowable with respect to good will.
26 C.F.R. § 1.167(a)-3 (emphasis added) (1988). | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the formally listed respondents in the case are the "real parties." That is, are they the parties whose real interests are most directly at stake? (e.g., in some appeals of adverse habeas corpus petition decisions, the respondent is listed as the judge who denied the petition, but the real parties are the prisoner and the warden of the prison) (another example would be "Jones v A 1990 Rolls Royce" where Jones is a drug agent trying to seize a car which was transporting drugs - the real party would be the owner of the car). For cases in which an independent regulatory agency is the listed respondent, the following rule was adopted: If the agency initiated the action to enforce a federal rule or the agency was sued by a litigant contesting an agency action, then the agency was coded as a real party. However, if the agency initially only acted as a forum to settle a dispute between two other litigants, and the agency is only listed as a party because its ruling in that dispute is at issue, then the agency is considered not to be a real party. For example, if a union files an unfair labor practices charge against a corporation, the NLRB hears the dispute and rules for the union, and then the NLRB petitions the court of appeals for enforcement of its ruling in an appeal entitled "NLRB v Widget Manufacturing, INC." the NLRB would be coded as not a real party. Note that under these definitions, trustees are usually "real parties" and parents suing on behalf of their children and a spouse suing on behalf of their injured or dead spouse are also "real parties." | Are the formally listed respondents in the case the "real parties", that is, are they the parties whose real interests are most directly at stake? | [
"both 1st and 2nd listed respondents are real parties (or only one respondent, and that respondent is a real party)",
"the 1st respondent is not a real party",
"the 2nd respondent is not a real party",
"neither the 1st nor the 2nd respondents are real parties",
"not ascertained"
] | [
0
] | songer_realresp |
McCLURE et al. v. O. HENRY TENT & AWNING CO., Inc.
No. 10446.
United States Court of Appeals, Seventh Circuit.
Nov. 28, 1951.
Morris A. Haft, Chicago, Ill., for appellant.
Jack I. Levy, Chicago, Ill. (Sonnenschein, Berkson, Lautmann, Levinson & Morse, Chicago, Ill., of counsel), for appellees.
Before KERNER, FINNEGAN, and SWAIM, Circuit Judges.
KERNER, Circuit Judge.
On a previous appeal in this cause we held that the contract in suit had been breached by defendant, as found by the court. However, because of an error in law in the measurement of damages for such breach, we remanded the cause for further proceedings only as to the question of damages. 184 F.2d 636.
Following remand of the cause, defendant filed its motion for hearing and for leave to introduce additional evidence without specifying the nature of the additional evidence, and plaintiffs filed their motion for additional findings of fact and judgment based on the evidence already of record in the cause. The court, without further hearing, adopted the findings proposed by plaintiffs and entered judgment based thereon for damages in the amount of $4,290.78, the game amount as had been decreed in the earlier judgment reversed by us. Defendant appeals. Since we briefly stated the essential evidence in our opinion on the earlier appeal, we shall not restate it.
The error in law to which we called attention in our earlier opinion had to do with the date adopted by the court for measuring the damages which it had fixed as the difference between the contract price of the goods and the market price on the date of the filing of the suit. It appeared from the evidence that although the contract had called for the delivery of material of a specified quality and quantity at specified times, the plaintiffs had accepted materials of a different quality furnished after the due dates, hence there was shown, and the court found, an indefinite extension of delivery time by mutual consent. We therefore held that the damages should have been' determined as of the time of the termination of that extension, and remanded to enable the trial court to determine whether the indefinite extension had been duly terminated, and, if so, when.
Defendant contends that it was error for the court, on remand, to render the finding of facts and enter judgment thereon without hearing additional evidence, and that the evidence already of record was insufficient to support this special finding which was as follows: “After, but not for some time after, May 21, 1946, the date on whioh defendant made the last shipment of material under the duck contract, plaintiffs again asked defendant to perform the duck contract. A reasonable time thereafter, i. e., August 14, 1946, defendant having failed to perform, plaintiffs’ attorneys demanded satisfaction from defendant upon threat of instituting this suit, thereby terminating the extensions for indefinite periods of the time for defendant to perform said contract. The market price of 30" 10.53 oz. army duck was 45.86 per yard on August 14, 1946, which price was 'in effect from August 5, 1946 until August 30, 1946.”
We cannot agree with defendant’s contention that the court was compelled to hear additional evidence upon the remand of the cause. As we stated, the evidence as to a fact vital to the decision of the cause was in dispute, and it was the duty of the trial court to resolve that dispute. That did not mean that a new trial was necessary. Of course, had the court desired to hear additional evidence on the issue it was free to do so under our mandate. But it appears from its disposition of the cause that it was satisfied that there was sufficient evidence of- record upon which to base -its finding, and that further hearing was unnecessary. We cannot say that its disposition of the cause was clearly erroneous. The record presented on the original appeal discloses that the proofs had been fully developed, and we think they are sufficient to support the additional finding of facts. Under these circumstances it was not error for the court to dispense with further hearings. Goldstein v. Franklin Square Bank, 2 Cir., 107 F.2d 393. Compare United States v. Yellow Cab Co., 338 U.S. 338, 70 S.Ct. 177,94 L.Ed. 150.
-Cases upon which defendant relies to the effect that “A lower Court has full power to consider and determine any question or matters which the decision and the mandate of the reviewing court have left open and undisputed, Sprague v. Ticonic National Bank, 307 U.S. 161 [59 S.Ct. 777, 83 L.Ed. 1184], and to take such further proceedings as may be necessary in the case to effectuate the decision of the Appellate Court, Illinois Bell Telephone Co. v. Slattery, [7 Cir.], 98 F.2d 930,” do not require a different conclusion under the facts here presented.
Judgment affirmed. | 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)", specifically "unclear". Your task is to determine what subcategory of business best describes this litigant. | This question concerns the first 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? | [
"auto industry",
"chemical industry",
"drug industry",
"food industry",
"oil & gas industry",
"clothing & textile industry",
"electronic industry",
"alcohol and tobacco industry",
"other",
"unclear"
] | [
9
] | songer_appel1_1_4 |
TUNSTALL v. BROTHERHOOD OF LOCOMOTIVE FIREMEN AND ENGINEMEN et al.
No. 5125.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1945.
Charles H. Houston, of Washington, D. C. (Joseph C. Waddy, of Washington, D. C., on the brief), for appellant.
William G. Maupin and James G. Martin, both of Norfolk, Va. (Harold C. Heiss and Russell B. Day, both of Cleveland, Ohio, on the brief), for appellees.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
PARKER, Circuit Judge.
This is a suit by a Negro fireman employed by the Norfolk-Southern Railway Company, who brings the suit in behalf of himself and other Negro firemen employed by that company. The defendants are the railway company, the Brotherhood of Locomotive Firemen and Enginemen, certain subordinate lodges of that brotherhood and one of-the officers of a local lodge. The gravamen of the complaint is that the brotherhood has been selected as bargaining agent of the firemen of the defendant railway company; that it excludes Negro firemen from membership; that it has negotiated a trade agreement with the company discriminating against Negro firemen; and that as a result of this agreement plaintiff has suffered discrimination with respect to seniority rights and has been damaged thereby. The relief asked is a declaratory judgment to the effect that the brotherhood as .bargaining representative is bound to represent fairly and without discrimination all members of the craft, an injunction restraining the defendants from giving effect to the trade agreement in so far as it discriminates against Negro firemen and restraining the brotherhood from acting as bargaining representative of Negro firejmen so long as it refuses to represent them fairly and impartially, an award against the brotherhood for damages sustained by plaintiff, and an order that plaintiff be restored to the position to which he would be entitled by seniority in absence of the contract.
In the court below motions were made to dismiss the case on the grounds that process had not been served on the brotherhood and one of its subordinate lodges and that the court was without jurisdiction of the causes of action alleged. The court overruled the motion based on lack of service of process but dismissed the case because of opinion that there was lack of jurisdiction of the causes of action. We affirmed the dismissal on the authority of decisions which we thought controlling rendered by the Supreme Court while the appeal was pending before us. See 140 F.2d 35. The Supreme Court reversed the dismissal and remanded the case to us for consideration of the jurisdictional questions arising out of service of process. 323 U.S. 210, 65 S.Ct. 235.
With respect to the service of process, it appears that summons wa.s issued against the brotherhood, two of its subordinate lodges, Ocean Lodge No. 76 and Port Norfolk Lodge No. 775, W. M. Munden, Chairman of Ocean Lodge, and the railway company. Defendants admit that it was duly and regularly served upon the railway company, Port Norfolk Lodge and W. M. Munden, but deny that the brotherhood and Ocean Lodge were served, since service was not made on an officer, manager or general or authorized agent of the brotherhood and the only service upon Ocean Lodge was service upon its chairman by leaving copies of the summons and complaint with his wife at his usual place of business. They ask that the suit be dismissed as to all parties because they contend that the brotherhood has not been made a party and that its presence is indispensable to jurisdiction against the others. Plaintiff contends that the suit is a class suit and that the service obtained upon members of the class is sufficient to give the court jurisdiction. Three questions are presented for our consideration: (1) May a class suit be brought against an unincorporated association in such a way as to bind the association? (2) May the suit here be treated as such a class suit? (3) If so, has there been sufficient service of process to bring the brotherhood into court? We think that all of these questions should be answered in the affirmative.
The right to bring a class suit to enforce the liability of an unincorporated association existed long prior to the adoption of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Smith v. Swormstedt, 16 How. 288, 302, 303, 14 L.Ed. 942. In Story’s Equity Pleading, from which quotation is made in the case cited, Mr. Justice Story arranges the cases in which a class suit is proper as follows : “1. Where the question is one of a common or general interest, and one or more sue or defend for the benefit of the whole. 2. Where the parties form "a voluntary association for public or private purposes, and those who sue or defend may fairly be presumed to represent the rights and interests of the whole; and 3. Where the parties are very numerous, and though they have or may have separate and distinct interests, yet it is impracticable to bring them all before the court.” See also 39 Am.Jur. pp. 920-921, 924. That an unincorporated labor association may sue and be sued in equity in a class suit, with the suit brought by or against representatives of the class is but an application of the well settled general rule. Evenson v. Spaulding, 9 Cir. 150 F. 517, 9 L.R.A.,N.S., 904; Philadelphia Local 192 of American Federation of Teachers v. American Federation of Teachers, D.C., 44 F.Supp. 345; International Allied, etc., Ass’n v. Master Printers Union, D.C., 34 F.Supp. 178; Pickett v. Walsh, 192 Mass. 572, 78 N.E. 753, 760, 761, 6 L.R.A.,N.S., 1067, 116 Am.St.Rep. 272, 7 Ann.Cas. 638; Reynolds v. Davis. 198 Mass. 294, 84 N.E. 457, 17 L.R.A.,N.S., 162; Oster v. Brotherhood of Locomotive Firemen & Enginemen, 271 Pa. 419, 114 A. 377. Even in a state like West Virginia which adheres to the common law rule that an unincorporated labor association may not be sued as an entity, see Milam v. Settle, W.Va., 32 S.E.2d 269, such an association may be sued in the state courts by naming as parties and serving individually some of the members composing the association. See West v. Baltimore & Ohio R. Co., 103 W.Va. 417, 137 S.E. 654; Simpson v. Grand International Brotherhood of Locomotive Engineers, 83 W.Va. 355, 98 S.E. 580.
The federal rules have in no wise limited or restricted the right to bring class suits in proper cases. Rule 23 provides for them; and, in a note to the rule, the Rules Committee states that it is a substantial restatement of the former equity rule as that rule has been construed by the courts. Subsection a(l) of the rule provides for class actions where the character of the right sought to be enforced for or against the class is joint or common and the persons constituting the class are so numerous as to make it impracticable to bring them all before the court, the typical case of suit by or against an unincorporated association. Professor Moore in Federal Practice vol. 2, p. 2235 et seq. cites sui-ts against unincorporated associations as typical of what he calls the “true class suit” under this rule, i.e. a suit wherein, hut for the class action device, the joinder of all interested persons would be essential.
And there is nothing in rule 17(b) which limits the right to bring a class suit under rule 23(a) in proper cases. Rule 17 (b) relates to capacity to sue or be sued; and it provides that, where a partnership or unincorporated association has no such capacity by the law of the state where the court is held, it may nevertheless sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States. There is nothing in this that limits the right to bring the unincorporated association into court by means of a class suit in accordance with the prior practice; and the right to bring such class suit continues to be of great value when the right to sue the association in its common name is, for any reason, unavailable. Instances where it is not available are cases where jurisdiction based on diversity would be defeated by a suit by or against the association but not by a suit by or against representatives or where, as here, it is not possible for the plaintiff to serve process on the association within a convenient jurisdiction. See Moore’s Federal Practice vol. 2 p. 2236; Philadelphia Local 192, etc., v. American Federation of Teachers, D.C., 44 F.Supp. 345. The manifest purpose of the provision of rule 17(b) relating to suits against partnerships and unincorporated associations is to add to, not to detract from, the existing facilities for obtaining jurisdiction over them. The language of rule 17(b) relating to suits against partnerships and unincorporated associations is permissive. So also is the language of rule 23(a). Together they provide alternative methods of bringing unincorporated associations into court.
If this were not a class suit, but merely a suit against the unincorporated association in its common name as an entity, there would be much force in the position that the entity was not adequately served. International Brotherhood of Boilermakers v. Wood, 162 Va. 517, 175 S.E. 45, 48. The second question, therefore, becomes important: may the suit as brought be treated as a class suit? We think that it may, since it was undoubtedly brought as a class suit as well as a suit against the brotherhood in its common name. It will be noted that no relief was asked against Munden or the two local lodges except the relief .asked against the brotherhood; and it is perfectly clear that they were joined merely as membex-s of the class constituting the brotherhood against which relief was asked in accordance with the practice prevailing in class suits. This is expressly stated in the complaint. Paragraph 4, which relates to the subordinate lodges, contains the following allegation:
“Upon information and belief plaintiff alleges that the defendant subordinate lodges constitute' all of the lodges of the -defendant Brotherhood within the territorial limits of the Norfolk Division of the United States District Court for the Eastern District of Virginia, and are truly and fairly representative of the remaining lodges of the Brotherhood and of the Brotherhood itself, and the interest of all the members, subordinate lodges and the Brotherhood will be adequately represented in the premises by the defendant of record. The defendant subordinate lodges arre sued as representatives of the membership, all the subordinate lodges and the Brotherhood itself." (Italics supplied).
Paragraph 5 of the .complaint relates to the defendant Munden and states:
“He is Local Chairman of defendant Ocean Lodge, No. 76, and acts for the Brotherhood in enforcing the schedule of rules and working conditions and in matters of grievance adjustments and job assignments on the Northern Seniority District of said Railroad. He is sued in his own right and as a representative of the members of the Brotherliood, particularly those employed on the Norfolk Southern Railroad and its successor in interest, the Norfolk Southern Railway Company." (Italics supplied).
Coming to the third question, the inquiry heré is not whether the service was sufficient in a suit against the brotherhood as an entity under its common name (where the provision of Rule 4(d) (3) would be applicable), but whether the joinder and service upon members of the brotherhood was sufficient to bring them as a class before the court in a class suit under Rule 23(a). The answer is that the two subordinate lodges within the court’s jurisdiction were joined, one was unquestionably served, and service was made upon the local chairman of the other. The member who was served was not only chairman of a subordinate lodge but was also representative of the brotherhood, as bargaining agent, in enforcing the rights of employees under their trade agreement with the railway company. This service, as a matter of fact, did bring the brotherhood in, fighting. It cannot be contended with any show of reason that Munden and the subordinate lodge, who were admittedly served, were not fairly representative of the membership of the brotherhood, or that service upon them would not give adequate notice to the class sued to come ,in and defend ; and this, we think, is the criterion as to the sufficiency of joinder and service in a class suit. See United States v. Old Settlers, 148 U.S. 427, 480, 13 S.Ct. 650, 37 L.Ed. 509; Smith v. Swormstedt, supra, 16 How. 288, 302, 303, 14 L.Ed. 942;. McClelland v. Rose, 5 Cir., 247 F. 721, 724; American Steel & Wire Co. v. Wire Drawers’, etc., Union, C.C., 90 F. 598, 607; 39 Am.Jur. 922; note Ann.Cas.1913C, p. 656. And see, also, Operative Plasterer’s and Cement Finishers International Ass’n etc. v. Case, 68 App.D.C. 43, 93 F.2d 56, 65, where service upon the secretary-treasurer of a local union was deemed sufficient to bring the international association into court. While the suit there was against the association in its common name, the same principle would be applicable as to the necessity of serving someone “whose character in relation to the association is such that it could be reasonably expected that he would give notice of the suit to his association.”
There is a question whether under the doctrine of the Operative Plasterer’s case, supra, service upon Munden and Norfolk Lodge was not service upon agents of the brotherhood sufficient to bring it before the court as an entity, if it had been sued only in its common name and no other element of a class suit had been present. The brotherhood was operating as bargaining agent for the railway company’s employees within the court’s jurisdiction. In performing its functions as bargaining agent it acted through its subordinate lodges and the officers of those lodges. The subordinate lodges and their officers were unquestionably agencies acting for the brotherhood; and it is not clear why service upon them as agents of the brotherhood would not be sufficient to bring the brotherhood into court. An association or corporation certainly ought not be heard to say that agents through which it transacts the very business for which it is organized and through which it collects funds in a given territory are not agents of such character that process may be served upon them. We need not decide this question, however, as we think that the suit here was unquestionably maintainable as a class suit and that there has been sufficient service upon representative members to give jurisdiction over the entire class constituting the brotherhood. On the same principle, we think that service on Munden was sufficient to bring into court those who were associated with him in Ocean Lodge, whether sufficient to bring in the lodge as an entity or not. , This, however, is unimportant, since the only purpose of joining the lodge was to bring in members of the class sued, and even without that lodge there was sufficient representation.
For the reasons stated, we think that there was sufficient service of process to bring the defendants before the court and that the court had jurisdiction of the causes of action alleged. The judgment of dismissal will accordingly be reversed and the cause will be remanded to the District Court for further proceedings not inconsistent with this opinion or the opinion of the Supreme Court.
Reversed and remanded. | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
1
] | songer_genresp2 |
Paul F. RIDGLEY, Respondent, v. CERES, INC., Great Lakes Storage and Contracting Company, and Liberty Mutual Insurance Company, Petitioners, v. DIRECTOR, OFFICE OF WORKERS’ COMPENSATION PROGRAMS, UNITED STATES DEPARTMENT OF LABOR, Respondents.
No. 78-1149.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 8, 1979.
Decided Feb. 26, 1979.
Arnold W. Larson of Donovan & Harper, Duluth, Minn., filed brief, for petitioners.
James J. Courtney, III of Courtney, Gruesen & Petersen, Duluth, Minn., filed brief, for respondent, Ridgley.
Mary A. Sheehan, Atty., U.S. Dept, of Labor, Washington, D.C., Carin Ann Clauss, Sol. of Labor, Laurie M. Streeter, Associate Sol., Washington, D.C., on brief, for respondent, Director, Office of Workers’ Comp.
Before LAY, BRIGHT and ROSS, Circuit Judges.
LAY, Circuit Judge.
This is a petition to review an order of the Benefits Review Board, United States Department of Labor, affirming a decision of an administrative law judge ordering Great Lakes Storage and Contracting Co. (Great Lakes) to pay Paul F. Ridgley compensation benefits for permanent disability pursuant to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901 — 950. The AU initially denied Ridgley’s claim against Great Lakes on the ground that Ridgley had failed to establish a connection between his July 1970 employment accident and the injury to his left knee. The Board reversed the denial of the claim, holding that the burden was on Great Lakes to overcome the presumption of a causal connection between Ridgley’s employment accident and his disability and that Great Lakes had failed to meet its burden of proof. Upon remand, the ALJ ordered Great Lakes to pay Ridgley compensation for permanent total disability for his knee injury. The Board affirmed the ALJ’s order and this petition followed.
In its petition for review Great Lakes makes three contentions. First it contends the ALJ’s initial decision denying Ridgley’s claim was supported by substantial evidence and the Board erred in reversing that decision. Second, Great Lakes contends that the evidence does not support the ALJ’s conclusion that Ridgley is permanently totally disabled. Finally, and alternatively, Great Lakes contends that if Ridgley’s injury is compensable, the liability limitation in 33 U.S.C. § 908(f)(1) applies, since Ridgley had a previous disability. We affirm the decision of the Board.
Great Lakes’ first two contentions merit little comment. Ridgley was injured on July 10, 1970, in the course of his employment as a longshoreman with Great Lakes in Duluth, Minnesota. He was loading equipment aboard a vessel when the boom swung out of control and threw him down, injuring his back, left hip, and left knee. Following his July 1970 injury Ridgley was treated by Dr. William Atmore, an orthopedic surgeon. Dr. Atmore periodically treated Ridgley for his knee from October 1970 through April 1973, during which time the possibility of surgery to replace the knee was contemplated. Ridgley continued working, however, until June 27, 1973, when he sustained an injury to his left hand. While Ridgley was hospitalized for this hand injury, surgery was also performed for the previously contemplated knee replacement. More than a year later, when the knee surgery had completely healed, Dr. Atmore concluded that Ridgley could not perform heavy manual labor involving climbing, squatting or heavy lifting. He has not returned to work since the June 1973 injury to his hand.
The Board reversed the ALJ’s initial decision denying Ridgley’s claim on the grounds that Great Lakes had not overcome the presumption of a causal connection between Ridgley’s employment accident and his disability. Section 20 of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 920, establishes a presumption that a claim for compensation comes within the provisions of the Act. The presumption controls unless sufficient proof is offered to rebut it. Del Vecchio v. Bowers, 296 U.S. 280, 286, 56 S.Ct. 190, 80 L.Ed. 229 (1935); In re District of Columbia Workmen’s Compensation Act, 180 U.S.App.D.C. 216, 222, 554 F.2d 1075, 1081, cert. denied sub nom. J. Frank Kelly, Inc. v. Swinton, 429 U.S. 820, 97 S.Ct. 67, 50 L.Ed.2d 81 (1976); St. Louis Shipbuilding Co. v. Director of the Office of Workers’ Compensation Programs, 551 F.2d 1119, 1124 (8th Cir. 1977).
Great. Lakes contends that it overcame the presumption with proof that in 1944 Ridgley had sustained a knee injury which caused an arthritic condition present at the time of the 1970 injury and it was this arthritic condition which ultimately led to the total knee replacement surgety, rather than the July 1970 injury. After carefully reviewing the record, we agree with the Board that Great Lakes did not offer sufficient proof to rebut the presumption that Ridgley’s claim came within the provisions of the Act. Dr. Atmore, Ridgley’s treating physician, opined that the July 1970 injury was the proximate cause of the surgery resulting in a knee replacement. Great Lakes offered no testimony to the contrary. Dr. Atmore did testify that had Ridgley not suffered the 1944 injury he would not have required the knee replacement. That does not detract, however, from the compensability of Ridgley’s present knee condition. A work related aggravation of a preexisting condition is compensable. Wheatley v. Adler, 132 U.S.App.D.C. 177, 182, 407 F.2d 307, 312 (1968).
Great Lakes next contends that Ridgley was not permanently totally disabled as a result of his 1970 injury. This contention also lacks merit. The ALJ found that Ridgley was unable to be gainfully employed as a result of the July 1970 injury, citing the employer’s failure to show that Ridgley had an actual opportunity to obtain light work. We find substantial evidence to support the ALJ’s finding. Ridgley testified that he was unable to work. Dr. Atmore testified that Ridgley could no longer perform the strenuous work required by his employment as a longshoreman. Furthermore, the record contains no evidence that Ridgley could perform other work. See American Stevedores, Inc. v. Salzano, 538 F.2d 933, 935-36 (2d Cir. 1976).
Finally, Great Lakes contends that its liability for compensation should be limited by § 8(f)(1) of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 908(f)(1). That section, often referred to as the “second injury” or “special fund” provision, limits an employer’s liability for an employee’s injury which of itself would cause only a permanent partial disability but which, because of a preexisting disability, causes a permanent total disability. In order to trigger application of the statute an employee must have a “previous disability.”
Initially we maintain serious doubt whether Ridgley’s arthritis is a “previous disability” within the meaning of the statute. The phrase “previous disability” is to be given a normal meaning, Lawson v. Suwannee Fruit & Steamship Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949), and ordinarily a pathological or traumatic condition which has not become manifest until a subsequent accident is not viewed as a prior disability. National Homeopathic Hospital Association v. Britton, 79 U.S.App.D.C. 309, 314, 147 F.2d 561, 566, cert. denied, 325 U.S. 857, 65 S.Ct. 1185, 89 L.Ed. 1977 (1945) (Groner, C. J., dissenting). This view is consistent with the statute’s obvious purpose, which is to encourage the hiring of handicapped workmen and protect employers who do so. Duluth, Missabe & Iron Range Railway Co. v. United States Department of Labor, 553 F.2d 1144, 1151 (8th Cir. 1977). We need not determine whether Ridgley’s arthritic condition is a “previous disability,” however, because the record contains no evidence indicating that Ridgley’s arthritic knee was manifest.
In Duluth, Missabe & Iron Range Railway Co., supra, we adopted the “latent-manifest” test for determining whether an employer will receive the benefit of the special fund provision. Since Great Lakes offered no evidence, and we find none in the record, indicating that Ridgley’s arthritic condition was manifest, Great Lakes does not qualify for the limited liability provision of 33 U.S.C. § 908(f)(1).
The Board’s order is affirmed.
. The ALJ concluded that Ridgley’s knee replacement resulted from degenerative arthritis which had developed subsequent to a leg fracture Ridgley suffered in 1944.
. At this time he was employed by Ceres, Inc.
. 33 U.S.C. § 920 provides in pertinent part:
■ In any proceeding for the enforcement of a claim for compensation under this chapter it shall be presumed, in the absence of substantial evidence to the contrary—
(a) That the claim comes within the provisions of this chapter.
. At the time of Ridgley’s injury Section 8(f)(1) read:
(f) Injury increasing disability: (1) If an employee receive an injury which of itself would only cause permanent partial disability but which combined with a previous disability, does in fact cause permanent total disability, the employer shall provide compensation only for the disability caused by the subsequent injury: Provided, however, That in addition to compensation for such permanent partial disability, and after the cessation of the payments for the prescribed period of weeks, the employee shall be paid the remainder of the compensation that would be due for permanent total disability. Such additional compensation shall be paid out of the special fund established in section 944 of this title.
33 U.S.C. § 908(f)(1) (amended 1972).
. Varying interpretations of the phrase “previous disability” have been adopted. Compare American Mutual Insurance Co. v. Jones, 138 U.S.App.D.C. 269, 272, 426 F.2d 1263, 1266 (1970) with Equitable Equipment Co. v. Hardy, 558 F.2d 1192, 1197-98 (5th Cir. 1977) and Atlantic & Gulf Stevedores, Inc. v. Director, Office of Workers’ Compensation Programs, 542 F.2d 602, 608-09 (3d Cir. 1976). | 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. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
33
] | songer_usc1 |
CF INDUSTRIES, INC., Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION and United States of America, Respondents, Farmland Industries, Inc., Gulf Central Pipeline Company, Gulf Central Storage and Terminal Company, Koch Industries, Inc., IMC Fertilizer, Inc., Intervenors.
No. 90-1180.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 4, 1991.
Decided Feb. 19, 1991.
Alfred Winchell Whittaker, with whom Katherine C. Zeitlin, Washington, D.C., was on the brief, for petitioner. Stephen A. Herman, Washington, D.C. also entered an appearance, for petitioner.
Dwight C. Alpern, Atty., F.E.R.C., with whom William S. Scherman, Gen. Counsel, and Jerome M. Feit, Sol., F.E.R.C., Washington, D.C., were on the brief, for respondents. James F. Rill, Asst. Atty. Gen., John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., also entered appearances, for respondents.
Steven H. Brose and Samuel M. Sipe, Jr., Washington, D.C. were on the brief, for intervenors Gulf Central Pipeline Co., Gulf Central Storage and Terminal Co., and Koch Industries, Inc.
John M. Cleary and Frederic L. Wood, Washington, D.C. entered appearances, for intervenor Farmland Industries, Inc.
Thomas F. McFarland, Jr. and Harold E. Spencer, Chicago, Ill. entered appearances, for intervenor IMC Fertilizer, Inc.
Before RUTH B. GINSBURG, SILBERMAN, and THOMAS, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
SILBERMAN, Circuit Judge:
This case concerns which agency — FERC or the ICC — has jurisdiction to regulate rates charged for the transport of anhydrous' ammonia by pipeline. Both FERC and the ICC agree that the authority is the ICC’s. CF Industries believes otherwise, and petitions for review of a FERC order dismissing for lack of jurisdiction a complaint seeking refund of allegedly excessive pipeline rates. We deny the petition.
I.
Anhydrous ammonia is an agricultural fertilizer derived from natural gas or petroleum refinery gas and transported by pipeline (among other means). Prior to 1977, the Interstate Commerce Commission was responsible for ensuring that rates charged for interstate pipeline transport of anhydrous ammonia were just and reasonable, as required by the Interstate Commerce Act, see 49 U.S.C. § 10701.
The Department of Energy Organization Act of 1977, 42 U.S.C. § 7101 et seq. (“DOE Act”), shifted regulatory jurisdiction over pipeline transportation of certain energy-related products from the ICC to the newly-created Department of Energy. See 42 U.S.C. § 7155. The rates charged for pipeline transportation of these products were still to be subject to the provisions of the Interstate Commerce Act, but would be overseen by FERC instead of the ICC. See 42 U.S.C. § 7172. Shortly thereafter, both FERC and the ICC moved, in a Seventh Circuit proceeding concerning rates charged for transport by pipeline of anhydrous ammonia, to substitute FERC for the ICC in the case caption on the ground that the DOE Act had transferred jurisdiction over these rates to FERC. The Seventh Circuit, in a brief, unpublished order not discussing the jurisdictional issue, granted the motion. See CF Industries v. FERC, No. 77-2150 (August 29, 1978).
For the next 12 years, FERC regulated anhydrous ammonia pipeline rates. In 1989, Farmland Industries, Inc., a shipper of anhydrous ammonia, filed a complaint with FERC alleging that Gulf Central Pipeline Company, the owner of an anhydrous ammonia pipeline, was charging unjust and unreasonable rates. CF, likewise a shipper of anhydrous ammonia, intervened in the proceeding. Gulf Central moved to dismiss on the ground that FERC lacks jurisdiction.
Six months later, FERC dismissed the complaint, holding that the DOE Act had not transferred jurisdiction over pipeline transport of anhydrous ammonia to it and that responsibility in this area remained with the ICC. See Gulf Central Pipeline Co., 50 FERC ¶ 61,381, at 62,162 (March 20, 1990). FERC discounted its previous regulation of the transport of anhydrous ammonia because it had not “examined the jurisdictional issue”; it explained that this regulation was based instead upon the ICC’s view that jurisdiction had in fact been transferred. Id. at 62,163. It then determined that the ICC was the responsible agency, reasoning that the DOE Act did not unambiguously give FERC the responsibility for regulating anhydrous ammonia pipeline rates and that it would be inappropriate to read the Act (in light of its emphasis on energy-related matters) as transferring that responsibility. Anhydrous ammonia has “few, if any, energy producing attributes” and “regulation of its transportation has no practical implication for energy matters.” Id. at 62,163, 62,167.
Farmland then refiled its complaint with the ICC; CF intervened in that proceeding and also petitioned for review of the FERC order by this court. The ICC then issued a declaratory order reversing its previous position and finding that its jurisdiction does extend to the pipeline transportation of anhydrous ammonia, substantially for the reasons given by FERC. See Gulf Central Pipeline Co., 7 I.C.C.2d 52 (October 4, 1990). After oral argument, we requested supplemental briefs from the parties discussing whether CF has standing to seek review now that the ICC decision has assured that anhydrous ammonia pipeline rates will receive federal regulation.
II.
At oral argument we gained the impression that petitioner CF Industries (unlike its competitor Farmland, which did not petition for review) wished FERC, rather than the ICC, to assert jurisdiction over Gulf Central Pipeline’s transportation of anhydrous ammonia merely because FERC was perceived in some undefined way as the more “hard-nosed” regulator. We put to counsel the question whether this claim was brought by a third party beneficiary of regulation and not the regulated company itself which, without more, might not make out an Article III injury. We had previously reserved this issue. See National Wildlife Fed’n v. Hodel, 839 F.2d 694, 708 n. 9 (D.C.Cir.1988). After supplemental briefing, we see that petitioner as a shipper has as much right to challenge FERC’s declination of jurisdiction as would the regulated company, see 49 U.S.C. § 11705(b)(2) and (c)(1) (granting shippers private rights of action against common carriers).
Before 1977, the ICC was authorized to regulate rates charged for “[t]he transportation of oil or other commodity, except water and except natural or artificial gas, by pipeline.” 49 U.S.C. § l(l)(b) (1959). The ICC regulated anhydrous ammonia pipeline rates pursuant to this authority. The DOE Act rather tersely provided for the transfer to the Secretary of Energy of “such functions set forth in the Interstate Commerce Act and vested by law in the Interstate Commerce Commission or the Chairman and members thereof as relate to transportation of oil by pipeline.” 42 U.S.C. § 7155 (emphasis added). The question then is whether by shifting to FERC jurisdiction over the “transportation of oil by pipeline,” the DOE Act transferred authority over pipeline-transported anhydrous ammonia.
The language employed in section 7155 might seem to end this matter — whatever anhydrous ammonia is, it is not “oil,” at least within that term’s ordinary usage, and jurisdiction over its transport would thus seem to remain with the ICC. It does appear, however, that Congress intended a broader meaning of “oil”. The purpose of the DOE Act, for example, was to consolidate within a single agency the previously “fragmented” implementation of the nation’s energy policy and regulation of the nation’s energy supply. See, e.g., 42 U.S.C. §§ 7111, 7112; see generally S. Rep. No. 164, 95th Cong., 1st Sess. (1977), at 1-6 (“S.Rep.”), U.S.Code Cong. & Admin.News 1977, p. 854. As all parties, including the agencies, agree, Congress did not intend to transfer to FERC jurisdiction over pipeline-transported oil and leave the ICC with jurisdiction over pipeline-transported gasoline, kerosene, and diesel fuel. See Gulf Central, 50 FERC ¶ 61,381, at 62,163-64; Gulf Central, 7 I.C.C.2d at 56-57. The legislative history, moreover, confirms that “oil” was not to be given a dictionary meaning, see S. Conf.Rep. No. 367, 95th Cong., 1st Sess. (1977), at 69; H.R. Conf.Rep. No. 539, 95th Cong., 1st Sess. (1977), at 69; S.Rep. at 39.
The case consequently turns on whether Congress meant the term “oil” to embrace the agricultural fertilizer anhydrous ammonia (a non-energy-produeing commodity). FERC asserts that its interpretation of “oil” as excluding anhydrous ammonia is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). But whether we give Chevron deference to an agency’s determination of its own jurisdiction is undecided in this circuit. See, e.g., Otis Elevator Co. v. Sec’y of Labor, 921 F.2d 1285, 1290 (D.C.Cir.1990). And, we have declined to afford Chevron deference to an agency’s interpretation of a statute which more than one agency is charged with interpreting. See Reporters Committee For Freedom of the Press v. United States Dep’t of Justice, 816 F.2d 730, 734 (D.C.Cir.1987), rev’d on other grounds, 489 U.S. 749, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989). Because of these considerations, we will analyze the case as if deference were inappropriate. We think that the two agencies have the better reading of the statute — which, of course, makes unnecessary the resolution of the deference issue.
Not only does section 7155 in particular provide no indication whatever that Congress meant to transfer to FERC regulatory jurisdiction over pipeline-transported anhydrous ammonia, but the DOE Act as a whole belies CF’s position. The Act was “designed to ‘assur[e] coordinated and effective administration of Federal energy policy and programs.’ ” United States v. Fulton, 475 U.S. 657, 662, 106 S.Ct. 1422, 1425, 89 L.Ed.2d 661 (1986) (quoting 42 U.S.C. § 7112) (emphasis added). It accordingly established a separate agency “to bring together ... all of the major energy programs in the Federal Government.” S.Rep. at 1, U.S.Code Cong. & Admin.News 1977, p. 855 (emphasis added). The agency was to be responsible for overseeing federal efforts in, for example, “energy research and development,” 42 U.S.C. § 7112(5), development of energy supplies, see, e.g., S.Rep. at 1, 6, regulation and reduction of demand for energy, see, e.g., 42 U.S.C. § 7112(4), and regulation of energy prices, see, e.g., 42 U.S.C. § 7112(9); S.Rep. at 4.
The transport of anhydrous ammonia by pipeline implicates none of these functions nor any other energy-related concerns. Anhydrous ammonia “is not a fuel source, but [is] primarily an agricultural product.” Gulf Central, 50 FERC 11 61,381, at 62,166. Moreover, as FERC reasoned, pipelines used to transport anhydrous ammonia cannot be used to transport oil (and vice ver-sa): “[ajnhydrous ammonia pipelines ... operate within substantially different pressure and heat ranges and use electric compressors because, unlike oil and gas pipelines, the commodity itself cannot be used for compressor fuel.” Id. at 62,164. As a result, there is no competition between the two types of pipelines; the “transportation cost of [anhydrous ammonia thus] has little implication for the price of energy resources” and “regulation of transportation [of anhydrous ammonia] has no practical implication for energy matters.” Id. at 62,166, 62,167. Indeed, whether there is any connection between anhydrous ammonia and FERC’s assigned energy domain is far from clear.
CF’s case rests on a single, identically-worded, passage in both the House and the Senate Conference Reports stating that “[i]t is the intent of the conferees that the term ‘transportation of oil by pipeline’ shall include pipeline transportation of crude and refined petroleum and petroleum by-products, derivatives or petrochemicals.” S.Conf.Rep. No. 367, 95th Cong., 1st Sess. (1977), at 69; H.R. Conf.Rep. No. 539, 95th Cong., 1st Sess. (1977), at 69, U.S.Code Cong. & Admin.News 1977, p. 940. CF maintains that anhydrous ammonia is a “petrochemical” because it is derived either from petroleum gas or from natural gas.
We think this sole reference in the legislative history inadequate to establish a statutory obligation that FERC regulate pipeline transportation of anhydrous ammonia when no hint of such a requirement appears in the statutory text. Although FERC conceded that anhydrous ammonia is considered a petrochemical as a matter of common usage within the petrochemical industry, it pointed to other sources limiting the definition of petro-chemicals to organic chemicals, which anhydrous ammonia is not. See 50 FERC 1161,381, at 62,164-65. In addition, as FERC explained, many other non-energy-related products are derived from oil and gas production {e.g., hydrogen, helium, nitrogen, and hydrogen sulfide); if the conference reports were both given the status of a congressional enactment and applied literally, FERC would also have to regulate the rates charged for each of these products if transported by pipeline. See id. at 62,164-65 n. 19. The reference in the conference reports hence is insufficient to offset the lack of any comparable indication in either the statutory language or other legislative history revealing the purpose of the Act. See, e.g., Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984).
CF alternatively maintains that FERC (and the ICC) are precluded from changing their positions on the issue of regulatory jurisdiction because of their earlier representations to the Seventh Circuit and because FERC for 12 years consistently regulated rates charged for transport of anhydrous ammonia by pipeline. Agencies, however, are permitted to reexamine their interpretation of their authorizing statute, see Chevron, 467 U.S. at 863, 104 S.Ct. at 2792, at least so long as they'provide a reasoned explanation for any change, cf. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Ins. Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983). FERC explained its shift in great detail, and CF’s contention to the contrary is simply a rehash of its argument that the legislative history unambiguously provides for the transfer of regulatory authority from the ICC to FERC. In addition, we note that CF likewise took a position before the Seventh Circuit inconsistent with its position here; therefore, all parties in the case, and not just the agencies, have “changed positions as nimbly as if dancing a quadrille.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 540, 98 S.Ct. 1197, 1210, 55 L.Ed.2d 460 (1978) (quotation omitted).
* * * * * *
Accordingly, FERC’s decision that it lacks jurisdiction to regulate the transportation of anhydrous ammonia by pipeline is
Affirmed.
. Nevertheless, this might well be a compelling case to afford deference if it were necessary for decision since both agencies agree as to which of them has exclusive jurisdiction. Cf. National Treasury Employees Union v. United States Merit Systems Protection Bd., 743 F.2d 895, 916-17 (D.C.Cir.1984). If they did not agree, it would clearly be impossible to defer.
. That does not necessarily mean that the agencies could not change their position in the future. At that point, should the case come to us, we would have to decide whether Chevron deference should be afforded.
. CF argues that anhydrous ammonia transportation and federal energy policy are interconnected because petroleum gas and natural gas are used to produce ammonia, and that therefore a change in the price for ammonia transportation will affect the amount of ammonia produced and derivatively the amount of gas used to produce it. The short answer to this claim is that gas and oil are involved in the production processes of a host of commodities, see Process Gas Consumers Group v. United States Dep’t of Agriculture, 694 F.2d 728, 748-49 n. 30 (D.C.Cir.1981), cert. denied sub nom. Louisiana v. FERC, 461 U.S. 905, 103 S.Ct. 1874, 76 L.Ed.2d 807 (1983), and if the transportation or production of these commodities for this reason alone made them part and parcel of federal energy policy, that policy (and FERC’s jurisdiction) would encompass much of our economy. | 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. | 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? | [
"agriculture",
"mining",
"construction",
"manufacturing",
"transportation",
"trade",
"financial institution",
"utilities",
"other",
"unclear"
] | [
4
] | songer_appel1_1_3 |
CITIZENS NAT. BANK OF KIRKSVILLE, MO., v. COMMISSIONER OF INTERNAL REVENUE.
No. 11901.
Circuit Court of Appeals, Eighth Circuit.
Oct. 16, 1941.
Rehearing Denied Nov. 4, 1941.
Henry J. Plagens, of Kansas City, Mo., for petitioner.
F. E. Youngman, Sp. Asst, to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and J. Louis Monarch, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before GARDNER, WOODROUGH, and THOMAS, Circuit Judges.
THOMAS, Circuit Judge.
This is a petition by a taxpayer to review a decision of the United States Board of Tax Appeals redetermining the petitioner’s income tax for the year 1936. 42 B.T.A. 539. The amount in controversy is $360. For its finding of facts the Board adopted a stipulation of facts entered into by the parties, a brief summary of the pertinent portion of which follows.
The petitioner is a corporation engaged in the general banking business at Kirks-ville, Missouri. From 1906 to 1912 it rented the premises occupied by it from William T. Baird who died testate in the latter year. Under his will his son Frank Baird was given the income from the property during his life-time with remainder to his daughter, Alta Baird Belshe. The will provided that in case of the destruction of the building by fire or tornado during the life of Frank, Alta Baird Belshe might rebuild using the insurance money for that purpose, and that thereafter she would be the owner by paying Frank an amount monthly equal to the amount he had been realizing net out of the rental of the property.
In 1920 the building was in need of repairs ; and on April 21st the bank entered into a contract with Frank Baird, by the terms of which Frank Baird conveyed his interest in the property to the bank in consideration of the payment to him of $200 a month during life, Frank agreeing to keep the roof in repair and giving the bank the right to make other repairs. The contract provided further: “It is further agreed that first party shall keep the said building insured in the amount for which it is insured at this time, and should the said building be destroyed or become untenantable, then the obligation to make said monthly payments of two hundred dollars shall cease and determine, and in event said building is destroyed by fire or storm, the rights and liabilities of said second party herein granted and created shall end, and the parties hereto shall stand in the same relation to each other as if this agreement had never been made.”
On August 17, 1920, the bank purchased the remainder interest in the property from Alta Baird Belshe for $10,000. On December 4, 1920, the bank set aside the sum of $5,000 for “improvements of building fund”, and equal amounts were set aside in 1921 and 1922, making a total of $15,000 for this purpose.
On January 10, 1923, the bank authorized repairs and alterations to be made to the building. It was then found to be more practical because of the damaged condition of the building to demolish it and to construct a new' building. This was done. A new building was constructed at a cost of $43,096.96, and the bank has since occupied the first floor of the new building.
Since the acquisition of the premises the bank has carried both the land and building as a capital asset.
The bank paid Frank Baird $200 a month from 1920 to 1936 inclusive, and Baird paid insurance under the terms e* the agreement averaging $33.84 a year, or $2.82 a month, leaving an average monthly net income of $197.18.
Frank Baird was 61 years of age April 21, 1920, and had a life expectancy based on mortality tables of 13.47 years. The value of an annuity of $197.18 a month similarly computed as of April 21, 1920, is $21,918.37. On the last date mentioned the fair market value of the land and building was $35,000, and of the land alone $6,250.
On its income tax return for 1936 filed on the cash receipts and disbursements basis, the bank deducted $2,400 paid to Frank Baird as rent. The Commissioner disallowed it, and on redetermination the Board affirmed.
Before the Board and in this court the bank claims the $2,400 paid Frank Baird is deductible, not as rent, but (1) as exhaustion or amortization of the terminable interest acquired from Frank Baird, or (2) as annuity payments made in the acquisition of Frank Baird’s interest; or (3), in the alternative, it is claimed that $1,971.44 representing that portion of the $2,400 payment made in 1936 applicable to the payment for Frank Baird’s interest in the building demolished in 1923 is deductible.
A deduction in calculating income taxes is not a matter of right but of “congressional grace”. If a deduction is allowable on any of petitioner’s theories, authority therefor must be found in some applicable statute. White v. United States, 305 U.S. 281, 292, 59 S.Ct. 179, 83 L.Ed. 172; Burnet v. Thompson Oil & Gas Co., 283 U.S. 301, 304, 51 S.Ct. 418, 75 L.Ed. 1049; New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 ; Helvering v. Insurance Co., 294 U.S. 686, 689, 55 S.Ct. 572, 79 L.Ed. 1227; 26 U.S.C. A. Int.Rev.Code, § 23, note 17.
The petitioner contends, first, that the $2,400 is deductible as exhaustion or amortization of a terminable interest in the property acquired by it from Frank Baird under § 23(a) of the Revenue Act of 1936, c. 690, 49 Stat. 1648, 26 U.S.C.A. Int.Rev.Code, § 23(a) (1). Section 23(a) of said Act provides :
“In computing net income there shall be allowed as deductions:
“(a) Expenses. * * * All the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including a reasonable allowance for salaries or other compensation for personal services actually rendered; traveling expenses (including the entire amount expended for meals and lodging) while away from home in the pursuit of a trade or business; and rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.”
The fact that it was necessary for the bank to make monthly payments of $200 each because it was bound by contract to do so does not imply that such payments are deductible under § 23(a). Many necessary payments are charges upon capital and cannot be deducted from income as an expense. Welch v. Helvering, 290 U.S. 111, 54 S.Ct. 8, 78 L.Ed. 212. The payments in controversy are a capital outlay and not an ordinary and necessary expense in the operation of business. The sum of the payments constitute the purchase price of the life estate, and the fact that the purchase price is payable in installments does not take the payments out of the class of capital expenditures which are not deductible. See Robert Hoe Estate Co., Inc., v. Commissioner, 2 Cir., 85 F.2d 4; Corbett Investment Co. v. Helvering, 64 App.D.C. 121, 75 F.2d 525; Herzberg v. Alexander, D.C. Old., 5 F.Supp. 334.
Section 23(a) allows deductions for “rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property”, but such deduction is limited to “property to which the taxpayer has not taken or is not taking title or in which he has no equity.” It is petitioner’s contention that in 1936 it had not “taken”, was not “taking title”, and that it had no “equity” in the property. The bank contends that it had only a leasehold interest and that, since the cost of acquiring a leasehold is an exhaustible capital investment returnable by annual deductions spread over the term of the lease (United States v. Boston & Providence R. R. Corporation, 1 Cir., 37 F.2d 670; J. Alland & Bro., Inc., v. United States, D.C., 28 F.2d 792), in order to deny the taxpayer the right to the deduction claimed it is necessary to hold that the life interest acquired from Frank Baird and the remainder acquired from Mrs. Belshe merged. We think this is a mistaken view of the interest the bank holds in the property. Whether there was a merger or not is immaterial. It is true that the bank’s contract with Frank Baird is terminable upon the contingency that the building upon the premises “is destroyed by fire or storm”. But the bank had prior to 1936 also acquired all the rights of Alta Baird Belshe under the will of William T. Baird. The rights thus acquired are not terminable, and they cover the leasehold and provide against the same contingencies referred to in the contract between Frank Baird and the bank. Under the will Alta Baird Belshe is given a fee simple title upon the death of Frank Baird and in case of destruction of the building by fire or tornado prior to his death, “Alta Baird B'el-she was given the right to rebuild, using the insurance money in such rebuilding, and would thereafter own the property by paying Frank Baird an amount monthly equal to the amount he had been realizing net out of the rental from the property.” In case of destruction of the building by fire or tornado the bank, therefore, has a right to rebuild and take title subject only to the obligation to pay Frank Baird monthly payments in the amounts prescribed by the will. In other words, by the performance of the conditions specified in the will the bank will become the owner of the fee simple title. The right or interest of the bank in the property is under the will therefore an equitable title. “An equitable title is a right possessed by a person to have the legal title to property transferred to him upon the performance of specified conditions.” Karalis v. Agnew, 111 Minn. 522, 127 N.W. 440, 441; 20 C.J. 1304. That this right existed under the will and the conveyance from Alta Baird Belshe cannot be questioned. It is not necessary, therefore, to find a merger of the life estate and the remainder. The taxpayer in 1936 had an equity in the property; and in such a case the statute by its express terms does not permit a deduction.
Further, it cannot be said that the bank is not “taking title”. Under its agreements with Alta Baird Belshe and Frank Baird the bank has done everything necessary to vest in it the fee simple title upon completion of the required payments. No contingency mentioned in the will or the contracts can prevent such a consummation. In this situation a deduction is expressly prohibited by the statute.
The taxpayer’s first theory under which it claims a right to the deduction fails. The capital asset being acquired is the entire interest in the property, and it cannot be separated under the facts stipulated and a part of the cost amortized. See Herzberg v. Alexander, supra.
Petitioner’s second contention is that the 1936 payments are deductible as a loss under § 23(f) of the Act, which provides for a deduction by corporations in case of “losses sustained during the taxable year and not compensated for by insurance.” The theory upon which this contention is based is in substance that the bank’s agreement to pay Frank Baird $197.18 a month ($200 less $2.82 monthly insurance charge) constitutes a contract to pay an annuity; that the value of such an annuity based upon Baird’s life expectancy is $21,918.37; that the payments made to Baird equalled this sum in 1933; and that all subsequent payments constituted an expense or a loss to the petitioner and gain to Baird.
The petitioner relies upon the case of Commissioner v. John C. Moore Corporation, 2 Cir., 42 F.2d 186, to support its annuity theory. The theory is further elucidated in Allen v. Brandeis, 8 Cir., 29 F.2d 363. The latter case is expressly disapproved by the Supreme Court in Helvering v. Butterworth, 290 U.S. 365, 369, 54 S.Ct. 221, 78 L.Ed. 365, in which case the court refused to follow the annuity theory. In the instant case the theory is purely fictitious and bears no actual relation to the transaction between the partiés. The relation in this instance is entirely contractual. The bank bargained to purchase and Frank Baird to sell the right to the possession of the premises during the life of Baird. Nothing in the contract relates to the market value nor to Baird’s life expectancy. The parties were at liberty to pay and receive any price agreed upon whether more or less than market value. The amount agreed upon, although payable in installments contingent as to number during life, was a capital investment and is not deductible either as a business expense under § 23 (a) nor as a loss under § 23(f) of the Act. This court in a well-reasoned opinion by Judge Booth so held in Mastin v. Commissioner, 8 Cir., 28 F.2d 748, 752, 753. In that case Thomas Mastin and his sister Theo Mastin Love joy agreed to pay their mother and aunt certain funds annually during life in exchange for certain corporate stocks. On his income tax return Thomas Mastin claimed a deduction for such payments. The court said: “Losses must come from closed and completed transactions. * * * The consideration from Julia Mastin and Elizabeth Mastin passed at once and as a whole. The consideration from Thomas Mastin and. Theo Mastin Lovejoy passed by installments. Whether there was a loss to Thomas Mastin and Theo Mastin Love-joy on the transaction could not be told until the transaction was closed. It was not closed until the deaths of Julia Mastin and Elizabeth Mastin.” It was heldl that the so-called annuities were “payments for a capital asset”, and not deductible. So in this case, the payments by the very terms of the contract were for a capital asset and not for an annuity. They are not deductible on the annuity theory. See Corbett Investment Co. v. Helvering, 64 App.D.C. 121, 75 F.2d 525; Helvering v. Louis, 64 App.D.C. 263, 77 F.2d 386, 99 A.L.R. 620; Commissioner v. Smiley, 2 Cir., 86 F.2d 658; Edwards v. Commissioner, 10 Cir., 102 F.2d 757; Steinbach Kresge Co. v. Sturgess, D.C., 33 F.Supp. 897.
Petitioner’s third contention, in the alternative, is that the bank is entitled to deduct that portion of the $2,400 payment made in 1936 applicable to Frank- Baird’s interest in the building which was demolished in 1923, which amount is estimated to be $1,971.44. The estimate is derived from the agreed fair market value of the building in 1920.
Petitioner relies upon the decisions of the Board in Louis Pizitz Dry Goods Co. v. Commissioner, 22 B.T.A. 161; Parma Co. v. Commissioner, 18 B.T.A. 429; and Ingle v. Gage, D.C.W.D.N.Y., 52 F.2d 738; Union Bed & Spring Co. v. Commissioner, 7 Cir., 39 F.2d 383; Eckert v. Burnet, 283 U.S. 140, 51 S.Ct. 373, 75 L.Ed. 911. The last cited case involves bad debts, and is not in point. The other cases are clearly distinguishable from the instant case. In each of them the loss was deducted the year the demolition took place. In the present case the loss is claimed thirteen years later. In the cited cases there was a definitely ascertained base upon which to calculate the loss. That is not true in the case under consideration. The fair market value of property furnishes no basis for determining loss sustained by destruction of property. In computing loss the provisions of the statute must be complied with. Section 111 of the Revenue Act of 1936, 26 U. S.C.A. Int.Rev.Code, § 111, prescribes the method. It provides that the basis for any loss shall be determined under § 113(a) and (b) of the Revenue Act of 1936, 26 U.S.C. A. Int.Rev.Code, § 113 (a, b). Section 113 (a) provides that the unadjusted basis of property for determining gain or loss “shall be the cost of such property”, subject to exceptions not applicable in this instance. In no event could the loss be ascertained in 1936. The loss did not occur in that year. The cost cannot be ascertained until after the death of Frank Baird. Petitioner has not demonstrated its right to the deduction claimed under the third theory.
The order under review is affirmed. | 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. | What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number. | [] | [
26
] | songer_usc1 |
TOBIN, Secretary of Labor, v. RAMEY.
No. 14370.
United States Court of Appeals Fifth Circuit.
Aug. 31, 1953.
William S. Tyson, Sol., Washington, D. C., Bessie Margolin, Asst. Sol., U. S. Dept, of Labor, Washington, D. C., Earl Street, Regional Atty., U. S. Dept, of Labor, Dallas, Tex., Harry N. Routzohn, Sol., William A. Lowe, Sylvia S. Ellison, Attys., U. S. Dept, of Labor, Washington, D. C., for appellant.
Robert E. Leake, Jr., New Orleans, La., Deutsch, Kerrigan & Stiles, New Orleans, La., for appellee.
Before HOLMES, BORAH and RIVES, Circuit Judges.
HOLMES, Circuit Judge.
The appellee seeks a rehearing because the opinion in this case was written by a judge who did not sit during the oral argument. The petition asserts that the right of appeal contemplates a determination “in the Court of Appeals by at least three judges who have participated in the appellate hearing of the casé.” It further contends as follows:
“True, 28 USC 46(c) provides that in the courts of appeals, cases shall ‘be heard and determined by a court or division of not more than three judges,’ implying at first blush, when read out of context, that the hearing may be by less than three; but section 46(b), immediately preceding, states that ‘in each circuit the court may authorize the hearing and determination of cases and controversies by separate divisions, each consisting of three judges,’ thus fixing the number at that minimum.” Citing Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 73 S.Ct. 656.
The absent judge was a member of the division of the court, consisting of three judges, which had been assigned to sit during the week that this case was argued and submitted, and the writing of the opinion was assigned to him by the two judges who heard the oral argument. His absence was due to the fact that on Monday morning of that week, while on his way to court, he met with a traffic accident, and was confined in a hospital when this case was argued orally. A majority of the number of judges thus authorized to constitute the court was present, heard the oral argument, and participated in the decision, as provided in 28 U.S.C. § 46(c) and (d).
Said section 46, Title 28, in substance, provides that circuit judges shall sit on the court and its divisions in such order and at such times'as the court directs; that each circuit court may authorize the hearing and determination of cases by separate divisions, each consisting of three judges, unless a hearing or rehearing is ordered be-for the court en banc-, and that a majority of the number of judges authorized to constitute the court or a division thereof shall constitute a quorum. Section 46(d) in full is as follows: “A majority of the number of judges authorized to constitute a court or division thereof, as provided in paragraph (c), shall constitute a quorum.”
In note 3 of its petition for rehearing, the appellee says: “This court’s own Rule 36-provides expressly ‘that whenever a full bench of three judges shall not be made up * * * so many of the district judges as may be necessary to make up a full court of three judges are hereby designated and assigned to sit in this court.’ ” This contention fails to notice the final clause of the single sentence that constitutes said rule 36. The entire rule is as follows:
“It is ordered that whenever a full bench of three judges shall not be made up by the attendance of the associate justice of the Supreme Court assigned to the circuit, and of the circuit judges, so many of the district judges, as may be necessary to make up a full court of three judges, are hereby designated and assigned to sit in this court; provided, however, that the court may, at any time, by particular assignment, designate any district judge to sit as aforesaid.”
The basic portion of this rule was formerly statutory, having been a part of the act of March 3, 1891, 26 Stat. 827, c. 517, § 3, as amended by the act of March 3, 1911, 36 Stat. 1132, c. 231, which is Section 120 of the Judicial Code that was approved March 3, 1911. The statute provided that the several district judges within each circuit should be competent to sit as judges of the circuit court of appeals within their respective circuits; and that, in case the full court at any time should not otherwise be made up, one or more district judges within the circuit should sit therein as members of the court. No designation by the senior circuit judge was required. The statutory basis as to the general competency of district judges to sit upon the court of appeals of their respective circuits, without any special designation by the chief circuit judge, was repealed by the Judicial Code, approved June 25, 1948, which became effective September 1, 1948. See Schedule of Laws Repealed, § 39, Revision of Title 28, United States Code, approved June 25, 1948. Prior to said Code of 1948, the circuit courts of appeals, by rule or particular assignments, designated the district judges to sit whenever a full bench of three judges was not in attendance upon that court; but Section 292(a) of the code of 1948 sets out an entirely new procedural legislative provision; it provides for the designation of district judges to sit upon the court of appeals whenever the business of that court so requires, the designation to be made by the chief judge of the circuit and to be in conformity with the rules or orders of the court of appeals.
Rule 36, above quoted, must be read in consonance with said section 292(a) ; and designations or assignments by the chief judge must be in conformity with said rule and section. See also Section 43(b) and Section 46 of the Judicial Code of 1948. In the instant case, there was no' designation or assignment of any district judge to sit on the court of appeals, and the court continued to he constituted of the three circuit judges who had been assigned to sit for that week although one of them was absent during the oral argument. Section 294(d) of said Title 28 provides that no retired justice or judge shall perform judicial duties except when designated and assigned. While no similar provision is in Section 292, it is implied that no district judge shall sit upon a court of appeals or a division thereof unless designated and assigned by the chief judge so to do.
It will be noted that rule 36 does not designate all district judges or any particular district judge to sit in this court, but only so many as this court may, at any time, by particular assignment, designate to sit as aforesaid; and the whole rule is limited by the final provision for a particular assignment and designation of any district judge. No statute authorizes a district judge to sit in the court of appeals of any circuit except Sections 43(b) and 292, Title 28, of the United States Code. Section 292, so far as applicable to this case, is as follows:
“(a) The chief judge of a circuit may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires. Such designations or assignments shall be in conformity with the rules or orders of the court of appeals of the circuit.”
No designation or assignment by the chief judge of any district judge to sit upon this Court was in effect at the time of the oral ax'gument or decision of this case. What then is the meaning of Section 46(d) of Title .28 of the United States Code, which provides that a majority of the nxxinber of judges authorized to constitute a division of the court, as provided in paragraph (c), shall constitute a quorum? The word quorum as therein used means such a number of the membei's of the court as may legally transact judicial business. The term arose from the Latin words which were used in the commission foimerly issued to justices of the peace in England, by which commission it was directed that no business of certain kinds should be done without the presence of one or more of certain justices specially designated. Webster’s International Dictionary.
Compare Ayrshire Collieries Corp. v. United States, 331 U.S. 132, 138, 67 S.Ct. 1168, 1171, 91 L.Ed. 1391, where the coui't contrasted the statute creating courts of appeals with the statxxtc creating three-judge district courts. The latter made no provision for a quorum of less than three judges. The court said: “Two judges of a three-judge circuit court of appeals, on the other hand, ordinarily constitute a statutory quorum for the hearing and determination of cases. 28 U.S.C. 212, 28 U.S.C.A. 212.” Also compare Alltmont v. United States, 3 Cir., 177 F.2d 971, at page 973, certiorari denied, 339 U.S. 967, 70 S.Ct. 999, 94 L.Ed. 1375, wherein the court said: “The number of judges authorized under paragraph (c) to constitute the United States Court of Appeals for the Third Circuit en banc being seven, four or more of them are clearly a quorum under paragraph (d).”
Accordingly, we think the petition for rehearing should be denied; and it is so ordered. | 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. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
0
] | songer_initiate |
UNITED STATES of America, Plaintiff-Appellee, v. Phanuel J. HAMILTON, Defendant-Appellant.
No. 83-2052.
United States Court of Appeals, Seventh Circuit.
Argued Nov. 28, 1983.
Decided Jan. 13, 1984.
Rehearing Denied Feb. 7, 1984.
Anna R. Lavin, Chicago, Ill., for defendant-appellant.
William J. Cook, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiffappellee.
Before CUMMINGS, Chief Judge, WOOD, Circuit Judge, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation.
HARLINGTON WOOD, Jr., Circuit Judge.
Defendant-appellant Phanuel J. Hamilton and Rita M. Degonia were charged in August 1982 with converting to their own use over $4000 of federal funds appropriated under the Comprehensive Employment and Training Act (CETA). Count I charged a conspiracy among Degonia, Hamilton, and others, and five subsequent counts charged Degonia with substantive violations of 18 U.S.C. § 665(a) for converting CETA funds to her own use and Hamilton with aiding and abetting Degonia to violate § 665(a). Hamilton was found guilty of conspiracy and all but one of the other five counts.
Hamilton raises four issues on appeal. He questions the sufficiency of the evidence against him. He also claims that his knowledge of a federal interest in the converted funds is a necessary element of the offense but was not proved. Hamilton further questions whether there was in fact any substantial federal interest in the particular funds. Lastly, he claims that the indictment improperly joined offenses and persons in violation of Rule 8, Fed.R.Crim.P. We affirm.
I.
The facts, largely undisputed, reveal a simple scheme to aid Degonia’s admitted embezzlement of CETA funds. Between June and September 1980, Degonia was director of an adult training program of the Chicago Metropolitan YMCA, known as the Cottage Industries Training Program (CITP). Under the program, about sixty-four persons received job training at four suburban YMCA locations. The trainees’ wages were covered by a reimbursement agreement with the United States Department of Labor; the federal government disbursed CETA funds to the Cook County Office of Manpower which in turn reimbursed its subgrantee, the YMCA, for the CITP payroll expenses. Degonia’s responsibilities at CITP included supervision of trainee time sheets and payroll authorizations, which required her to receive the payroll checks and distribute them to the trainees.
For each of several pay periods, Degonia took some of the names of fifteen trainees no longer active in CITP and added them to the payroll. This caused a total of thirty-six unearned wage checks to be prepared and sent to her along with the properly earned checks. She withdrew only the unearned checks from distribution to the trainees and kept them for her own purposes. Degonia enlisted her friend, Hamilton, to help her convert twenty-seven of the fraudulent checks to cash. Hamilton at the time was Director of Individual Services in the Chicago Mayor’s Office for Senior Citizens. Degonia delivered the checks to Hamilton at street locations between their two Chicago offices. Hamilton cashed the third-party wage checks drawn on the YMCA payroll account at several locations. On occasion, he claims he cashed the checks using personal cash he had with him. Some of the checks already evidenced fictitious payee endorsements when Hamilton received them. A government handwriting expert testified she was “virtually certain” that other payee endorsements had been added by Hamilton. Most of the check-cashing locations selected by Hamilton did not require his second endorsement. Hamilton returned most of the proceeds from the payroll checks to Degonia, but deposited some of the money in his overdrawn personal bank account.
One detail in the execution of the conspiracy was overlooked: the inactive trainees to whom the fraudulent wage checks were made out received W — 2 forms which reflected more wage income than they had received from CITP. The inquiries of these inactive trainees resulted in an internal YMCA investigation which ultimately led to this indictment. In that investigation, Hamilton initially admitted cashing fifteen of the fraudulent cheeks, but claimed that the payees already had endorsed the checks and that he returned all the proceeds to Degonia. He failed to mention the twelve other checks.
II.
The evidence and the inferences to be drawn therefrom are clearly sufficient to show Hamilton’s complicity in the scheme despite his innocent explanation. Hamilton does concede the criminality of Degonia’s conduct, but explains that he thought he was only helping the suburban trainees who otherwise might have encountered some inconvenience in cashing their own checks. Among other things, Hamilton’s explanation overlooks the handwriting analysis of some of the endorsements and the fact that a portion of the proceeds went into his overdrawn personal account.
In finding guilt beyond a reasonable doubt, the trial judge carefully analyzed all the evidence and noted the fact that Hamilton took possession of and negotiated the fraudulent checks shortly after their issuance. Hamilton seizes upon that one aspect of the finding of guilt to question whether possession of recently issued fraudulent checks properly raises a reasonable inference of guilt under the well-known doctrine of recent possession of stolen goods. The government relies on United States v. Strickland, 509 F.2d 273, 276 (5th Cir.1975), and our cases, United States v. Bailey, 526 F.2d 139,141 (7th Cir.1975), cert, denied, 424 U.S. 972, 96 S.Ct. 1472, 47 L.Ed.2d 740 (1976) (possession of stolen United States savings bonds), and Altom v. United States, 454 F.2d 289, 293-94 (7th Cir.1972), cert, denied, 406 U.S. 917, 92 S.Ct. 1765, 32 L.Ed.2d 116 (1973) (possession of stolen government generators), to support application of the doctrine.
We find no error in the trial judge taking into account, along with the other evidence of guilt, the fact that the fraudulent checks all were issued very recently and yet supposedly had already been distributed to the suburban trainees, endorsed by them, and returned to Degonia to give to Hamilton to be cashed. More weight was not given to that factor than it deserved in the context of all the evidence of guilt. The trial judge found that defendant’s explanation not only did not aid his defense, but actually was incriminating.
The evidence clearly is sufficient to support Hamilton’s conviction for conspiring with Degonia; the two needed each other to execute the scheme from which they both benefited. Further, the evidence is sufficient to satisfy the tests of association and participation to support Hamilton’s conviction as an aider and abettor under United States v. Beck, 615 F.2d 441, 448-49 (7th Cir.1980).
III.
Related to Hamilton’s claim of insufficient evidence is his assertion that his personal knowledge of the funds’ federal origin was an element of the crime which the government was required, but failed, to prove. Hamilton denies that he knew the cheeks involved federal funds.
The trial judge fully addressed this issue, holding that the government did not have to prove that Hamilton actually knew that federal funds were the object of the conspiracy. The trial judge determined that the origin of the funds was jurisdictional only; Hamilton’s knowledge and intention to aid and abet Degonia in her criminal acts was sufficient to satisfy the knowledge requirement of § 665. See United States v. Arambasich, 597 F.2d 609, 613 (7th Cir. 1979).
With little guidance from legislative history or case law concerning any requirement of knowledge of the federal origin of funds taken in violation of .§ 665, defendant urges us to pattern our analysis upon an analogy to § 656, which relates to embezzlement by an employee of a national or insured bank with intent to defraud the bank. But we need not wander that far afield, since a closer analogy is found in the general section concerning embezzlement of public money, 18 U.S.C. § 641. In United States v. Coleman, 590 F.2d 228 (7th Cir. 1978), cert, denied, 440 U.S. 980, 99 S.Ct. 1786, 60 L.Ed.2d 239 (1979), a § 665 prosecution, we turned to cases under § 641 as the closest analogy in defining “property” under § 665. Id. at 231. We have not required knowledge of federal involvement under § 641. See United States v. Smith, 489 F.2d 1330, 1334 (7th Cir.1973), cert, denied, 416 U.S. 994, 94 S.Ct. 2407, 40 L.Ed.2d 773 (1974) (taking federal funds from undercover narcotics agent). We also have found that no knowledge of federal involvement is necessary in a § 1001 prosecution for knowing falsification in any matter within the jurisdiction of a federal department or agency. See United States v. Stanford, 589 F.2d 285, 297-98 (7th Cir. 1978), cert, denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979) (making fraudulent application for federal public aid benefits). We believe that Congress, through § 665, desired to afford federal protection to the large sums of federal money entrusted to nonfederal agencies to accomplish the purposes of CETA, and did not intend to limit this protection to situations where the defendant was aware of a federal interest in the funds. Cf. id.
IV.
But even if his personal knowledge of federal funding is not an element of the offense. Hamilton argues that the § 665 prosecution must fail because no substantial federal interest was shown in the particular funds upon which the fraudulent checks were drawn. Hamilton claims that although the YMCA made reimbursement claims to the Cook County Office of Manpower for its CITP payroll, there was no showing that. Cook County actually reimbursed the YMCA; consequently the embezzled funds cannot be traced back to the federal government. If there were any CETA funds involved, Hamilton argues, they were commingled with and diluted by other funds and thus lost their federal character.
We view the government’s evidence as having sufficiently established the federal nexus between the fraudulent cheeks and federal funds. All CITP payroll checks written by the YMCA were completely reimbursed by Cook County with CETA funds received from the United States Treasury in accordance with contractual arrangements. The Cook County Office of Manpower deposited federal CETA funds upon receipt in a special account for timely reimbursement to the YMCA and other program participants. Reimbursement receipts and checks showing reimbursements by the United States Treasury for the period in question were introduced along with YMCA invoices for the checks.
Hamilton argues that the indictment describes the federal funding of CITP as “grants,” whereas in reality CITP was funded through a reimbursement arrangement providing federal funds only after expenses were incurred and paid by the YMCA. However, the two amount to the same thing. The CITP payroll was paid with CETA funds which had to pass through the bureaucratic pipeline from Washington to the local CITP payroll, but federal money went into the pipeline and remained federal money all the way into defendant’s personal bank account. In a prosecution under § 1001, we held that federal agency involvement is sufficient even when limited to the reimbursement of expenditures. See United States v. Stanford, 598 F.2d 285, 297 (7th Cir.1978), cert, denied, 440 U.S. 983, 99 S.Ct. 1794, 60 L.Ed.2d 244 (1979). The nexus is not lost even when the government fails to show that the federal funds were received by the time the false invoices were submitted. United States v. Petullo, 709 F.2d 1178, 1181 (7th Cir.1983). We continue in our view that the nexus between federal funds in the hands of a non-federal agency and the impact on a federal funding program is found in the federal program’s continuing responsibility to see that the federal funds are spent as Congress intended. See Stanford, 598 F.2d at 297-98. The present prosecution passes that test.
V.
As a last issue, Hamilton argues that the indictment improperly joined offenses and persons in violation of Fed.R.Crim.P. 8. His motion was denied before trial. The basis of his argument is the claim that Hamilton had no connection with the others who cashed checks for Degonia or with locations where other checks were cashed.
The evidence was sufficient under recognized conspiracy law to show that one conspiracy was formed by Degonia and others to fraudulently convert CETA training funds to her and others’ personal use. The evidence further showed that Hamilton negotiated at least one fraudulent check as charged in each of the counts. There was no need for duplicative trials when the charges against both defendants could be proved by the same evidence and the charges resulted from the same scheme or series of acts. United States v. McPartlin, 595 F.2d 1321, 1333 (7th Cir.), cert, denied, 444 U.S. 833, 100 S.Ct. 65, 62 L.Ed.2d 43 (1979).
VI.
We find no reversible error, and affirm the conviction.
. Degonia pled guilty to all but the conspiracy count. In a joint bench trial with Hamilton, she was found guilty of the conspiracy count. Degonia is not involved in this appeal.
. Hamilton was sentenced to three years’ probation and ordered to make restitution to two organizations in the total amount of $424.20 and perform 200 hours of community service.
. Section 665 provides in relevant part:
Whoever, being an ... employee of ... any . agency ... receiving financial assistance or any funds under the Comprehensive Employment and Training Act ... knowingly enrolls an ineligible participant, embezzles, willfully misapplies, steals, or obtains by fraud any of the moneys, funds, assets, or property which are the subject of a financial assistance agreement or contract pursuant to such Act shall be fined not more than $10,000 or imprisoned for not more than 2 years, or both
18 U.S.C. § 665(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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer_genapel1 |
Leonard V. KRAUS and Florence M. Kraus, Husband and Wife, Appellants, v. CRETE STATE BANK, Thomas J. Aron and Jerome H. Haase, Appellees.
No. 84-2100.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 8, 1985.
Decided Feb. 1, 1985.
Leonard V. Kraus and Florence M. Kraus, pro se.
Steven H. Nelsen, Cline, Williams, Wright, Johnson & Oldfather, Lincoln, Neb., for appellees.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
PER CURIAM.
Leonard V. Kraus and Florence M. Kraus appeal from a judgment of the United States District Court for the District of Nebraska dismissing their complaint for lack of jurisdiction. We affirm. The complaint shows on its face that no diversity exists between the appellants and the ap-pellees and no other basis of federal jurisdiction has been properly pleaded.
Affirmed pursuant to Eighth Circuit Rule 14. | 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. | What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
6
] | songer_genapel2 |
UNITED STATES of America, Appellee, v. Richard MASTRANGELO, Appellant.
No. 257, Docket 81-1270.
United States Court of Appeals, Second Circuit.
Argued Sept. 17, 1981.
Decided Oct. 28, 1981.
Gerald Shargel, New York City (Graham Hughes, New York City, of counsel), for appellant.
Susan E. Shepard, Asst. U. S. Atty., Brooklyn, N. Y. (Edward R. Korman, U. S. Atty. for the E. D. New York, Vivian Shev-itz, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for appellee.
Before OAKES and MESKILL, Circuit Judges, and BLUMENFELD, District Judge.
Of the District of Connecticut, sitting by designation.
OAKES, Circuit Judge:
This expedited appeal raises anew the question whether there was “manifest necessity,” United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L.Ed. 165 (1824), for the declaration of a mistrial. What makes this case unique is that the mistrial was declared following the killing of the Government’s only witness against appellant, Richard Mastrangelo. The killing occurred on the witness’s way to the courtroom to testify in a trial in which the Government’s case against the eodefendant, Joseph Dazzo, was essentially complete. The United States District Court for the Eastern District of New York, Jack B. Weinstein, Chief Judge, denied appellant’s motion to dismiss Counts 1, 4, and 5 of the indictment on the ground of double jeopardy. We hold first that appellant had for all practical purposes withdrawn his previous motion for a mistrial on other grounds, so that United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), does not apply and we must examine the declaration of the mistrial under the manifest-necessity standard. We hold second, however, that the court’s ordering a mistrial after the witness’s murder was proper under that standard, and we accordingly affirm.
FACTS
Appellant Mastrangelo and his codefend-ant Joseph Dazzo were charged in a superseding indictment, along with three others who were severed before trial, with conspiracy to import and to possess with intent to distribute substantial quantities of marijuana, 21 U.S.C. § 846(1) (Count 1), possession with intent to distribute of approximately 23.4 tons of marijuana (a Schedule I controlled substance) and 499,-000 Methaqualone tablets (a Schedule II controlled substance), 21 U.S.C. § 841(a)(1), 18 U.S.C. § 2 (Count 4), and intentional importation into the United States at Yan-carib Enterprises in Queens, New York, aboard the vessel Terry's Dream, of the same amounts of marijuana and Methaqua-lone, 21 U.S.C. §§ 952(a), 960, 18 U.S.C. § 2 (Count 5). Count 6, which was severed before the Mastrangelo-Dazzo trial, charged Mastrangelo with knowingly and corruptly endeavoring to influence the due administration of justice, 18 U.S.C. § 1503.
The Government’s evidence at the trial before Judge Weinstein that commenced on April 27,1981, established the existence of a conspiracy to import boatloads of marijuana into New York from Colombia, South America, between November 10, 1977, and November 11, 1978. On the latter date law enforcement officers in Queens interrupted the offloading of a 75-foot shrimp boat known as Terry’s Dream, which members of the conspiracy had purchased in Florida in November 1977, and used several times for marijuana importation. At the Yancarib Marina in Queens the officers seized the shrimp boat, a tugboat called the Bill Mather, four trucks, three vans, and a Buick sedan. The vessels and vehicles contained a total of 23.4 tons of marijuana and 499,000 Methaqualone tablets. The persons offloading the boat escaped.
At trial, four witnesses connected code-fendant Joseph Dazzo to the purchase and repair of the tugboat used to bring the Terry’s Dream into New York harbor. Frederick Ardolino identified Dazzo as one person who was with him in Virginia to purchase the Bill Mather in February 1978. Alfred Jensen, the agent for the seller of the Bill Mather, corroborated Ardolino’s testimony. James Muller and Kathleen Muller, employees at a family-owned boatyard in Brooklyn, testified about repair work on the Bill Mather in April 1978, identifying Dazzo as the person who used the alias “John Ward, Jr.,” and directed the repair work.
Important to the sequence of events and to the judge’s later ruling on the mistrial was the cross-examination of Ms. Muller on April 29. Dazzo’s attorney inquired about a statement she had made to one Haggerty, an investigator employed by Dazzo who had shown her some pictures of people. Asked if she had recognized any of the people, she replied that one of the pictures looked like the person who had identified himself as John Ward. The following colloquy then occurred:
Q. But you did — Did you also tell Mr. Haggerty that you were not sure—
A. I had reasons, what I said to Mr. Haggerty, when he was in my office.
On redirect, the Government asked Ms. Muller to explain the circumstances of her conversation with Haggerty. After she explained that Haggerty had said he was an investigator for Dazzo’s attorney, the Government asked her the following question:
Q. You recall on cross-examination you started to say you had reasons for telling Mr. Haggerty what you told him. What were those reasons?
To this, Mastrangelo’s counsel, Mr. Coiro, objected, seeking a sidebar conference. The court excused the jury, questioned the witness, and then announced that it would issue the following curative instruction:
You can say — we can stipulate that she would have answered in words or substance that she did not feel under the circumstances that she wanted to be fully candid with Mr. Haggerty.
Although the Government and Dazzo’s attorney agreed to the curative instruction, appellant’s counsel, alleging that the questioning implied that the witness had been threatened, moved for a mistrial. Judge Weinstein denied this motion and, after giving the instruction to the jury, again inquired whether it was satisfactory. Counsel for the Government and Dazzo stated that it was, but Mr. Coiro, for Mastrangelo, had no comment.
By the afternoon of April 29, the third day of trial, the case against Dazzo had been substantially completed, and the Government was ready to begin its case against Mastrangelo. The Government originally had hoped to introduce a tape recording made on February 1, 1979, of a conversation between James Bennett and Richard Mastrangelo. Bennett had consented to the taping; this conversation was the subject of the severed sixth count of the indictment for obstruction of justice. The court had, however, in a pretrial ruling, excluded the tape as prejudicial to Dazzo under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny. James Bennett, who was not implicated in the conspiracy, had worked with his brother at Smitty’s Auto & Truck Sales in Brooklyn and had evidently sold to Mastrangelo some of the trucks that were among the vehicles seized at the Yan-carib Marina. In its opening the Government had stated that Mastrangelo had purchased three large moving trucks from Smitty’s Auto & Truck Sales in February 1978, paying in cash, and that two of those trucks were seized at the Yancarib Manna, one loaded with marijuana. The Government stated that in September 1978 Mas-trangelo paid cash for two more trucks, which were put in the name of Allrite Trucking, a corporation formed by “the organization,” and that both of the later-purchased trucks were seized at the Yancarib Marina loaded with marijuana. In the excluded tape-recorded conversation, Mastran-gelo, after learning of Bennett’s subpoena by a grand jury, tells Bennett to say “[njothing” in front of the grand jury and “if they ask, in other words, uh, if they say anything with me, you can’t say me. Do you understand?” Bennett, apparently not getting the message, replies, “Well, I say, ah, I say I sold you the trucks, right?” And Mastrangelo says, “You can’t. . . . You can’t say that. Because you didn’t sell me the trucks.” When Bennett says, “Well, I actually sold you the trucks,” Mastrangelo tells him, “You didn’t. You know, Jim? You know what I mean you really didn’t?” He adds, in what could well be interpreted as a threat, “You know what I mean Jim it’s for your own good ‘cause ‘cause then ah, in other words they’re going fuck everything around. I’ll get back to you as far as anything. . . . ” Later in the conversation, Mastrangelo tells Bennett, “If they show you a picture of anybody, that’s not him, that’s not him. In other words, they can show you a picture of a million guys, that’s not him. That’s it. You know what I mean Jim? And that’s all you got to say.” When Bennett protests, “Well I have to say I sold the trucks” — the Government has seen his book showing the sale of the trucks — Mas-trangelo replies, “Don’t do that because you know why Jimmy? I could turn around and say no he didn’t. There’s nothing on paper.” Mastrangelo continues, in possibly threatening language, “You know. So let’s do it the right way. . . . This way. Cause they’re busting your balls. You got your fucking book. There’s my fucking book. What do you want?” Bennett says, “Yeah,” and Mastrangelo says, “You know what I mean Jim?” Bennett says, “Uh huh,” and Mastrangelo says, “And that’s it, case closed.”
The court having excluded this evidence because it was prejudicial to Dazzo — evidence that not only incriminated Mastran-gelo directly but would be powerful evidence of his consciousness of guilt — it became essential for the Government to call James Bennett himself for proof of the truck transaction. According to the Government’s uncontested representation to the trial court, Bennett flew into New York from Florida, where he was living semiretired, the day before he was to testify. He was at the United States Attorney’s office until 10:00 p. m. and was then driven to his daughter’s home in Brooklyn. Again according to the Government’s uncontested representation, Bennett, on his way to the courthouse on April 29, 1981, “left his daughter’s home chased by two men, and [was] shot dead on the street.”
Upon so informing the court, the Government first renewed its application to use the tape but the court said, “All I can do is sever Mr. Dazzo and Mr. Mastrangelo and start all over again.” The court, aware of the double jeopardy problem, asked counsel for Mastrangelo “whether you make a motion for a mistrial, and renew your motion for a severance?” Counsel asked for time to consider that. A second application by the Government was that Mastrangelo’s bail be increased to $500,000. The court said that as to Dazzo it saw no reason why “we could not go ahead,” but revoked Mas-trangelo’s bail and then called in the marshals to arrest Mastrangelo and take him into custody. The court made arrangements to sequester the jury and ordered jurors not to communicate with anyone. Additionally, the court asked the Government to arrange to have protective custody for the Mullers, who testified earlier that day.
At this point the court informed Mastran-gelo’s counsel that “[y]ou have already moved for a mistrial and I am considering the granting of that motion. That has not been withdrawn.... I denied the motion [earlier], but I am reconsidering it and I am reserving decision.” Judge Weinstein again noted his unwillingness to rejoin the obstruction count or play the tape, for fear of tainting the jury in connection with the “clean case against Dazzo.” Further discussion indicated that the case against Daz-zo would be closed with a few formalities. The court gave Mastrangelo’s counsel more time to make known his position, and after consultation counsel stated on the record that “the defendant Mastrangelo’s position is that we are not moving for a mistrial .... At the present time . .. there is no motion on behalf of the defendant Mas-trangelo before the Court at this time.” The court, however, then granted the defendant Mastrangelo’s previous motion for a mistrial and severance (based on Ms. Muller’s testimony), but added that “[i]f that motion had not been made by the defendant, I would have granted it on my own motion in view of these circumstances. If I had not granted it on my own motion, I would have granted it on the government’s motion.” Mastrangelo’s counsel stated for the record that “at this time I am not renewing that motion [for a mistrial].” The judge ordered that the portion of the transcript containing a reference to the Mullers’ address be sealed, and the trial against Dazzo proceeded, culminating in his conviction.
DISCUSSION
The Government argues that Mastrangelo did not withdraw his motion for a mistrial before it was granted and that accordingly under United States v. Dinitz, 424 U.S. 600, 611, 96 S.Ct. 1075, 1081, 47 L.Ed.2d 267 (1976), any claim of double jeopardy is unavailable. We agree with appellant, however, that for all practical purposes, though not in so many words, the motion for a mistrial based upon Ms. Muller’s testimony was withdrawn. Before the court granted the motion, defense counsel stated on the record, “After consultation, Judge, the defendant Mastrangelo’s position is that we are not moving for a mistrial . . . At the present time, in light of the unfortunate situation that has happened, there is no motion on behalf of the defendant Mastrangelo before the Court at this time.” This case is similar to United States v. Evers, 569 F.2d 876, 878 (5th Cir. 1978), in which defense counsel had moved for a mistrial but then “advised the court that because defendant was anxious not to retry the case, and because he did not think the evidence sufficient for the case to go to the jury, he would withdraw his motion for a mistrial.” This in effect was what defense counsel did here, and therefore the question must turn on “manifest necessity.”
In this connection the arguments below on Mastrangelo’s double-jeopardy motion shed further light on the trial court’s decision, though we realize that under Arizona v. Washington, 434 U.S. 497, 516-17, 98 S.Ct. 824, 836, 54 L.Ed.2d 717 (1978), the record speaks for itself in connection with manifest necessity and the trial court’s mistrial ruling is entitled to great deference irrespective of any statement of reasons by the trial court. See United States v. Grasso, 600 F.2d 342, 343 (2d Cir. 1979) (recognizing that the court’s previous holding in United States v. Grasso, 552 F.2d 46 (2d Cir. 1977), that findings by the trial court were necessary had been “plainly overruled by the Supreme Court” in Arizona v. Washington).
The arguments below on the motion now appealed from demonstrate that the district court’s underlying reason for declaring a mistrial was that the judge quite understandably believed that Mastrangelo was responsible for Bennett’s death. That the court, immediately after being informed of Bennett’s death, (a) sequestered the jury, (b) revoked Mastrangelo’s bail, (c) ordered protective custody for the Mullers, and (d) sealed the portion of the transcript containing the Mullers’ address, confirms this, though it was not made explicit at that time. As the court below stated at argument,
I was under the distinct impression, and I believe that by a preponderance of the evidence, based on what I then had before me, I was warranted in finding that this defendant, Mastrangelo, either directly arranged for the killing of the witness or was advised of the possible killing of the witness and acquiesced. He was the only person that could gain from it.
Dazzo couldn’t gain from it at all. He was, by that time, destroyed by the government’s case. . . .
There was evidence before the Court that this very defendant, Mastrangelo, had threatened other witnesses, in fact, he had been indicted and I severed that count.
The tape was clear that he had threatened another witness. Mastrangelo was out on bail. The Court observed him during this emergency. Everybody in this courtroom was shocked. Mr. Coiro was very upset. The defendant, Mas-trangelo, took it like a soldier. He didn’t smile, as I recall, but he certainly wasn’t upset by it. At best, he was neutral on the issue.
It just is inconceivable . . . that this radical step to aid Mastrangelo, who is the only person that could have been helped by killing this witness, would have been taken without his knowledge, acquiescence, or orders. And that, it seems to me, is the clearest situation of a finding of manifest necessity that you can get.
Appellant agrees, as he must, that if he had in fact killed or arranged for the killing of the witness Bennett, the court could make a finding of manifest necessity for the declaration of a mistrial. He argues, however, that because there was no hearing on this question, no evidence presented other than the Government’s representation about what had occurred, and the possibility that Bennett might have been killed by others for other reasons, the court could not assume that appellant was responsible. The purport of this argument is that without an actual showing of the defendant’s complicity in the death of the witness, the court could not make a finding of manifest necessity.
We disagree. It would ordinarily be impossible to make an investigation, have a hearing, and permit the introduction of evidence and cross-examination, with some resultant finding based upon whatever standard of proof might be appropriate, see, e. g., Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972) (upholding the use of the preponderance-of-evidence standard as the burden of proof in a suppression hearing re the voluntariness of a confession), meanwhile suspending the trial in question. It is simply impracticable in the situation of the killing of a key witness to reach any well-founded determination about the true course of events in an hour, a day, a week, or even a month.
The test, therefore, is not whether the defendant was in fact involved in the witness’s death, nor even whether under a preponderance of the evidence or some lesser evidentiary standard the court finds it probable that the defendant has participated in the murder. To make such a determination would require a delay in the trial of weeks or even months that would itself ultimately require a mistrial: the jurors’ minds would no longer be fresh and, even worse, the reasons for the delay might have become evident to one or more of them. Rather, the test must be simply whether at the time the trial judge is faced with the question he reasonably concludes that there is a distinct possibility that the defendant participated in making the witness unavailable, at least where, as here, the Government is totally without fault and the case cannot proceed and the ends of justice be served by the evidence already introduced or otherwise available to the Government. Although the defendant has an important interest in concluding his or her confrontation with society, United States v. Jorn, 400 U.S. 470, 486, 91 S.Ct. 547, 557, 27 L.Ed.2d 543 (1971), the courts are also charged with protecting “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. at 509, 98 S.Ct. at 832. See Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949) (the court should weigh the defendant’s “valued right to have his trial completed by a particular tribunal” against the public’s interest in “fair trials designed to end in just judgments”). We must not only give due deference to the trial judge’s determination, see Arizona v. Washington; United States v. Grasso, 600 F.2d at 347, but that determination in favor of the declaration of a mistrial in a case like this — “along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny” — “is entitled to special respect.” Arizona v. Washington, 434 U.S. at 510, 98 S.Ct. at 833.
We note also that the court here carefully explored and rejected alternatives to a mistrial. The most likely alternative was for the court to reverse its prior decision on the admissibility of the tape-recorded conversation and, using a curative instruction, to attempt to avoid unfairly prejudicing the codefendant, Dazzo. It is always difficult, and sometimes impossible, for a court of appeals, reviewing a cold record of printed words, to measure the likely prejudicial effect of a given piece of evidence in a given trial. The district court’s evaluation of events occurring before the jury is, as we said in Grasso, 600 F.2d at 343, “to be accorded the highest deference.” See also Arizona v. Washington, 434 U.S. at 513-14, 98 S.Ct. at 834. As Judge Weinstein observed at the hearing on the double-jeopardy motion below, the court of appeals did not feel “the atmosphere of this courtroom when the jury was dismissed and that the witnesses were obviously under great tension. [It] didn’t see the hesitation of these witnesses as they testified.” Nor could we observe the effect upon the jury of Ms. Muller’s testimony, in response to questioning by Dazzo’s attorney, that she “had reasons, what I said to Mr. Haggerty, when he was in my office.” We do know that when the Government on redirect asked what those reasons were, Mastrangelo’s counsel not only objected but requested a mistrial; the court was very careful to exclude those statements and seek to have the parties stipulate what her answer would have been, namely, that “she did not feel under the circumstances that she wanted to be fully candid with Mr. Haggerty.”
Had we been presented with this situation, we might, instead of declaring a mistrial, have reversed our decision not to admit into evidence the taped conversation bearing Mastrangelo’s incriminating statements, which after all did not mention Daz-zo. But the tape did contain what could be interpreted as a direct threat and, perhaps, a veiled threat against a witness who would not testify. Moreover, with the Government’s case against Dazzo essentially completed — a case the judge thought was a “clean” one — we think the judge could properly take into account the public’s interest in ensuring that there was neither a mistrial as to Dazzo nor grounds for a retrial at which witnesses who had testified might not be available or willing to testify against him. Acting in an emergency with the Government free from fault, with a distinct possibility that the defendant Mas-trangelo was responsible for the killing of the one witness against him, and duly concerned by the threat of prejudice to the codefendant Dazzo (and, indirectly, to the Government’s case against Dazzo) from the admission of the tape with a resultant possible mistrial or new trial as to him, we think the trial judge acted well within the wide discretion afforded him by the double jeopardy cases. We accordingly defer to his judgment about the events occurring before the jury and to his observation of the witnesses, the parties, and the jury itself. To hold otherwise would invade the province of the trial judge for the sake of abstract formality.
Judgment affirmed.
. Judge Weinstein has ordered the obstruction-of-justice count rejoined for the retrial of appellant. Counts 2 and 3 of the indictment name neither Dazzo nor Mastrangelo and are thus not at issue here.
. The defendant’s responsibility for reviving the Bruton problem would clearly distinguish the case from United States v. Glover, 506 F.2d 291 (2d Cir. 1974). In Glover the prosecution waited until the fifth day of a joint trial to notify the court that it intended to introduce statements by Glover that presented a Bruton problem with respect to the other defendants. The trial court granted the Government’s motion for a mistrial and severance as to Glover and we held that he could not be retried. Insofar as the mistrial was granted for the benefit of the codefendants and the Government, and “Glover had done nothing to bring about the contretemps that resulted in the declaration of a mistrial,” 506 F.2d at 297-98, there was not a manifest necessity for ordering the mistrial. If the defendant creates the need for the mistrial and severance, as by killing a witness and necessitating the use of substitute evidence that is inadmissible in a joint trial, Glover does not bar his retrial.
Apart from appellant’s possible involvement in the murder, this case differs from Glover in that the prosecution in Glover failed to seek a pretrial ruling on the Bruton evidence, whereas here the prosecution sought such a ruling and was willing to forego the use of the tape in the joint trial because it assumed Bennett would testify. We need express no opinion on whether the prosecution’s freedom from fault, absent reason to suspect the defendant was responsible for the witness’s unavailability, would alone suffice to make Glover inapplicable and sustain a finding of manifest necessity for a mistrial and severance. Dunkerley v. Hogan, 579 F.2d 141 (2d Cir. 1978), we find distinguishable because there a continuance was a viable alternative. Here the only “viable alternative” suggested was a reversal of the trial court’s ruling excluding the Bennett-Mastrangelo tape-recorded conversation, coupled with a redaction of the threats in that conversation. We do not believe that to be as “feasible and practical [a] solution to the problem,” id. at 147, as was the alternative of a continuance in Dunkerley. See text, infra. | 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. | What is the nature of the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
2
] | songer_genresp1 |
UNITED STATES of America, Plaintiff-Appellant, v. Jose De Jesus Flores MARTINEZ, Defendant-Appellee.
No. 91-30096.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 9, 1992.
Decided Aug. 17, 1992.
As Amended Sept. 17, 1992.
Nina Goodman, Asst. U.S. Atty., U.S., Dept, of Justice, Washington, D.C., for plaintiff-appellant.
Bryan E. Lessley, Asst. Federal Public Defender, Eugene, Or., for defendant-ap-pellee.
Before: BROWNING, D.W. NELSON and CANBY, Circuit Judges.
CANBY, Circuit Judge.
This is an interlocutory appeal by the United States of an order suppressing a statement that defendant Jose Flores Martinez made to federal investigators. The central issue is whether Martinez’s request for counsel in his state proceedings prohibited a subsequent interrogation by federal officials outside the presence of counsel after the state charges were dismissed. We conclude that the resolution of this question depends on the degree of cooperation between federal and state authorities, which is not clear from the record before us. We therefore remand.
FACTUAL BACKGROUND
Martinez was arrested in March 1990 and was subsequently charged in the Circuit Court for Wasco County, Oregon with possession of a firearm by a convicted felon, theft of a firearm, and possession of a controlled substance. At his arraignment, he requested an attorney and completed a form entitled “Affidavit of Indigence and Order for Appointment of Counsel.” The state charges were dismissed, however, so no attorney was appointed. Martinez nonetheless remained in state custody, because his pre-existing parole had been revoked as a result of his arrest.
On September 4, 1990, two days before Martinez’s custodial time on the parole violation was scheduled to elapse, a federal criminal complaint was filed alleging possession of a firearm by Martinez, a convicted felon. On September 6, state authorities released him into federal custody. The federal agents advised Martinez of his Miranda rights, which he waived, and then questioned him about the gun at issue. During that interrogation, Martinez admitted that he had knowingly purchased the handgun, and he executed an affidavit to that effect. On the same day, Martinez made his first appearance in federal court and counsel was appointed. After he was indicted, Martinez moved to suppress his statement to the federal agents, arguing that their initiation of interrogation after his request for counsel on the state charges violated his rights under the Fifth and Sixth Amendments. No evidence was introduced about the relationship between the state and federal investigations. The district court granted Martinez’s motion, and the United States now appeals.
DISCUSSION
The issue in this case is relatively straightforward: Did Martinez’s request for counsel at his arraignment on state charges preclude the federal officers from questioning him outside the presence of counsel on federal charges arising from the same incident, when the state charges had been dismissed? Martinez suggests two possible bases for an answer in the affirmative: the Miranda rights under the Fifth Amendment and the Sixth Amendment right to counsel.
I. The Fifth Amendment
Martinez argues that his request for an attorney at the state arraignment, which clearly triggered his Sixth Amendment right to counsel for the state charges, also invoked his Fifth Amendment right to an attorney under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), thereby preventing the federal agents (as well as the state officials) from questioning him about any offense outside the presence of counsel. Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988) (if suspect invokes Miranda right to counsel, police cannot reapproach regarding different offense unless counsel is made available). The district court ruled in favor of Martinez on the Miranda ground. In doing so, however, the district court did not have the benefit of the later decision of the Supreme Court in McNeil v. Wisconsin, — U.S.-, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). In that case, McNeil requested an attorney at a bail hearing on an armed robbery charge (arising out of an incident in West Allis, Wisconsin), thereby triggering his Sixth Amendment right to counsel. Police subsequently interrogated him (after properly advising him of his Miranda rights) about a murder in Caledonia, Wisconsin, and he made several incriminating statements about the Caledonia crime. McNeil contended that his request for counsel at the bail hearing invoked both his Sixth and Fifth Amendment rights to counsel, and that the court accordingly should have suppressed the evidence arising out of the interrogations on the Caledonia murder. The Supreme Court rejected that argument, holding that McNeil’s invocation of his Sixth Amendment right to counsel did not also invoke his Fifth Amendment right to counsel. In so ruling, the court stated that application of Miranda and Edwards “requires, at a minimum, some statement that can reasonably be construed to be expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police. Requesting the assistance of an attorney at a bail hearing does not bear that construction.” McNeil, 111 S.Ct. at 2209 (emphasis in original). Martinez gives us no reason to distinguish his invocation of his Sixth Amendment right at his arraignment from McNeil’s similar invocation at his bail hearing, and there appears to be none. In both cases, the suspect requested assistance of counsel in defending himself at trial, and in neither case did the suspect express his “desire for the assistance of an attorney in dealing with custodial interrogation by the police.” We conclude, therefore, that McNeil applies to Martinez’s Fifth Amendment argument and compels us to reject Martinez’s assertion that the federal authorities’ interrogation violated his right to counsel under the Fifth Amendment. It was accordingly error for the district court to suppress Martinez’s statement on Miranda grounds.
II. The Sixth Amendment
In Michigan v. Jackson, 475 U.S. 625, 636, 106 S.Ct. 1404, 1411, 89 L.Ed.2d 631 (1986), the Supreme Court held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” The Court in Jackson had no occasion to consider the question of an interrogation for another crime, but the Supreme Court discussed the issue in Maine v. Moulton, 474 U.S. 159, 179-80, 106 S.Ct. 477, 488-89, 88 L.Ed.2d 481 (1985), and ruled on it in McNeil. In the latter case, as we noted above, McNeil had requested (and received) assistance of counsel with respect to the West Allis charge but was later interrogated about the Caledonia murder outside the presence of counsel. The Supreme Court found that the statements McNeil gave in the interrogations did not fall under the Jackson rule, because they concerned separate offenses. The Court stated that both the Sixth Amendment right and “its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews [are] offense-specific.” 111 S.Ct. at 2207; see also Moulton, 474 U.S. at 179-80 & nn. 15, 16, 106 S.Ct. at 488-89 & nn. 15, 16 (noting admissibility of post-arraignment statements if involving other crimes).
The dispositive issue regarding the Sixth Amendment claim in the instant case, as both the United States and Martinez agree, is whether, in light of McNeil and Moul-ton, Jackson applies to the federal authorities’ interrogation of Martinez. Resolution of this question depends upon the significance of two factors: (1) that the state and federal charges arose from identical conduct, and (2) that the state charges had been dismissed at the time of the federal interrogation.
With regard to the first factor, the Supreme Court offers no definitive signals. All of the relevant Supreme Court cases either involved interrogations regarding the charged offense (e.g., Jackson and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)) or interrogations concerning separate offenses arising from separate acts (e.g., McNeil and Moulton). None involved separate prosecutions for the same set of acts, which is what we have here.
There is language in McNeil that can be read as supporting either the United States’s or Martinez’s position. It is true, as the United States notes, that McNeil states that Jackson’s effect is “offense-specific,” McNeil, 111 S.Ct. at 2207, and that this phrase could reasonably be interpreted as limiting Martinez’s Sixth Amendment protection to the state firearms offense. It is also true, however, that McNeil relied on Moulton, which in turn focused on the existence of “ ‘new or additional crimes.’ ” McNeil, 111 S.Ct. at 2207 (quoting Moulton, 474 U.S. at 179, 106 S.Ct. at 489). This language could reasonably be read as suggesting that Jackson does apply to Martinez, because the federal questioning concerned no new or additional crime of Martinez.
This court has recently opined that “[a]n exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense.” United States v. Hines, 963 F.2d 255, 257 (9th Cir.1992). Certainly the state charges against Martinez and the federal charge were “inextricably intertwined,” for they involved the same conduct. Hines, then, supports Martinez’s view that the state and federal charges are so similar that they should be treated as the “same” for Sixth Amendment purposes.
In Hines, however, we were dealing with interrogation concerning a second crime when charges for the first crime were still pending. Here, the state charge had been dismissed. Although Martinez was still in state custody because his parole had been revoked, there was no pending state charge for which he needed the assistance of counsel. That distinction brings us to a consideration of the second factor — the gap between the pendency of state charges and the interrogation on the federal charges.
In urging that dismissal of the state charges totally ended Martinez’s Sixth Amendment right of counsel, the United States focuses on the Supreme Court’s statement that the Sixth Amendment right to counsel “arises from the fact that the suspect has been formally charged with a particular crime and thus is facing a state apparatus that has been geared up to prosecute him.” Roberson, 486 U.S. at 685,108 S.Ct. at 2100. The government argues that neither the state nor the federal prosecution satisfied the Roberson requirements to trigger Martinez’s Sixth Amendment rights at the time of the federal agents’ interrogation. The government relies on the fact that the state had dismissed its charges against Martinez months before he was interrogated by federal agents. With respect to Martinez’s arrest on the federal charge, the government notes that the Sixth Amendment right “does not attach until a prosecution is commenced, that is, ‘at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.’ ” McNeil, 111 S.Ct. at 2207 (quoting United States v. Gouveia, 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984) (internal quotation omitted)); see also United States v. Pace, 833 F.2d 1307, 1312 (9th Cir.1987) (“We hold that Pace’s sixth amendment right to counsel did not attach upon the filing of the complaint by the FBI, the issuance of the warrant of arrest, or Pace’s arrest.”), cert. denied, 486 U.S. 1011, 108 S.Ct. 1742, 100 L.Ed.2d 205 (1988). Thus, the government asserts, neither the dismissed state charges nor the arrest by federal authorities was sufficient to trigger Sixth Amendment protections. Simply stated, the government argues that, because there were no pending charges against Martinez, he was not “facing a state apparatus that ha[d] been geared up to prosecute him,” Roberson, 486 U.S. at 685, 108 S.Ct. at 2100, and, therefore, he had no Sixth Amendment right to counsel.
Martinez presents two arguments for a considerably broader construction of the Sixth Amendment’s protections. First, he contends that, despite the dismissal of the state charges, we should still focus on the conduct that the officers were investigating, not the specific charges that were brought. His position amounts to an argument that the doctrine of “inextricable intertwine[ment],” Hines, at 257, should be extended indefinitely in time. He argues that, once a defendant has been charged, he may not thereafter be interrogated about the subject matter of those charges unless his counsel is present.
We are reluctant, however, to extend that doctrine indefinitely into the future after the initial charge is dismissed. To do so would extend the prohibition on interrogation outside the presence of counsel to any investigation of a given set of acts, even if the second investigating unit had no connection to the first. It would require suppression of a statement given to federal authorities regarding a federal crime if, unbeknownst to the federal agents, the suspect had been charged for the same substantive act at some earlier time. Such a broad prophylactic application of the Sixth Amendment runs counter to the reasoning of Moulton and McNeil, which stressed both the narrow application of the Sixth Amendment right to counsel and the importance of allowing police to initiate and pursue investigations.
Martinez’s second argument is that, even if there is no blanket prohibition on interrogations on the subject matter of previous charges, in this case the state and federal authorities cooperated so closely that Martinez was, in effect, subject to prosecution of a single offense by different sovereigns. Martinez suggests that the government’s position — that the state prosecution was dismissed and the federal not yet begun — ignores reality and does not comport with the policies underlying the Sixth Amendment right to counsel. Essentially, he argues that the federal authorities took over where the state left off, creating a seamless web of both incarceration and prosecution.
Hines offers stronger support for Martinez’s second argument insofar as it focuses on collusion. In Hines, the state had originally charged Hines with an offense committed in December 1988. While that charge was pending, federal authorities interrogated him, outside the presence of his counsel, concerning an offense committed in January 1989. The state then dismissed its charge. The federal government thereafter indicted Hines for both the December and January offenses. He moved to suppress the statements made to federal authorities regarding the January offense. We held that the two offenses were distinct and therefore not “inextricably intertwined.” Hines, at 258. We also pointed out, however, that even without the necessary intertwining, Hines would be entitled to suppress his statements if “the government breached its ‘affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel.’ ” Id. (quoting Moulton, 474 U.S. at 171, 106 S.Ct. at 484). We found no such breach by the government because “there [was] no evidence that the state’s dismissal of the January charges and the federal government’s subsequent joinder of the same charges were the result of collusion between the authorities.” Id.
Hines therefore suggests that collusion by the prosecutorial authorities to circumvent the right to counsel may cause Sixth Amendment protection to bridge the gap between separate and non-intertwined offenses. If Martinez is correct in asserting that the federal and state authorities worked together in shuffling his charge from the state to the federal system, then the situation is analogous to that in Jackson and Martinez’s statements should be suppressed. When there is improper collusion, there is no danger that the second sovereign will unwittingly violate the Sixth Amendment by interrogating a suspect in ignorance that he or she was charged by another sovereign at some time in the past.
There are, moreover, sound reasons for permitting suppression in cases of collusion, as Hines suggests. If the dismissal of state charges or the initiation of federal interrogation was a mutual endeavor in anticipation of a federal prosecution, then, as a practical matter, Martinez’s Sixth Amendment right not to be interviewed without his counsel was circumvented. He was prosecuted on a charge identical to that of the state, using a statement that the state could not have secured from him if it had proceeded with its prosecution. The key, of course, is the extent of coordination between the state and federal authorities.
We have no record on that point. Because the district court granted the suppression motion without receiving any evidence concerning the level of the relevant state-federal cooperation, we cannot decide whether Martinez was entitled to an order suppressing his statement. We therefore vacate the district court’s order and remand for further fact-finding. In the absence of such a record, we do not rule on the precise acts of cooperative conduct that might amount to collusion to circumvent Martinez’s Sixth Amendment rights. Areas appropriate for factual inquiry include the degree of federal participation, if any, in the state’s decision to dismiss its charges; the degree of state participation, if any, in the decision of federal officers to interrogate and charge Martinez; and the degree of joint decisionmaking over the forum in which Martinez should be prosecuted. This list is not exhaustive; other areas of inquiry may well suggest themselves to the experienced district judge.
The order of the district court granting the motion to suppress is vacated, and the cause is remanded to the district court for further appropriate proceedings.
VACATED AND REMANDED.
. Whether law enforcement officers may initiate interrogation of a suspect who previously requested counsel is a question of law that we review de novo. See United States v. DeSantis, 870 F.2d 536, 538 (9th Cir.1989).
. Thus, implementation of this rule would mean that a federal agent could not question a suspect without first determining that no state had charged the suspect with a crime arising out of the same act(s). | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal". | What is the specific issue in the case within the general category of "criminal"? | [
"federal offense",
"state offense",
"not determined whether state or federal offense"
] | [
0
] | songer_casetyp1_1-2 |
RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Appellant, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; Minncedar Land Limited Partnership; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp., CedarMinn Building Limited Partnership, a Minnesota limited partnership; Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Appellees. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Appellees, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A., Appellant. Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship. RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Plaintiff-Appellee, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; MinnCedar Land Limited; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp.; CedarMinn Building Limited Partnership, a Minnesota limited partnership, Defendants-Appellants. Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Defendants. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Defendants-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A.; Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship, Defendants-Appellees. RESOLUTION TRUST CORPORATION, as Receiver for Midwest Savings Association, F.A., Plaintiff-Appellee, v. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; Cedar Minn Realty Corp., its general partner; MinnCedar Land Limited; Midunited Building Company Limited Partnership, a Minnesota limited partnership; Midrock Land Corp., its general partner; RockMinn Leasing Corp., CedarMinn Building Limited Partnership, a Minnesota limited partnership, Defendants-Appellants. Chemical Bank; Norstar Bank; Federal Home Loan Bank of Des Moines, Defendants. (Two Cases) CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Plaintiffs-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A.; Midwest Federal Savings and Loan Association of Minneapolis, in Receivership; Midwest Savings Association, F.A., in Receivership and Conservatorship, Defendants-Appellees. CEDARMINN BUILDING LIMITED PARTNERSHIP, a Minnesota limited partnership; MinnCedar Land Limited, a Minnesota limited partnership; Midunited Building Limited Partnership, a Minnesota Limited partnership; RockMinn Leasing Corp., a Minnesota corporation, Plaintiffs-Appellants, v. RESOLUTION TRUST CORPORATION, a government corporation, and in its capacity as Receiver of Midwest Federal Savings and Loan Association of Minneapolis and as Conservator and Receiver for Midwest Savings Association, F.A., Defendant-Appellee.
Nos. 91-1902, 91-1972, 91-2287 and 91-2546.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 13, 1991.
Decided Feb. 18, 1992.
Rehearing and Rehearing En Banc Denied March 27, 1992.
Dorothy L. Nichols, Washington, D.C., argued (Richard T. Aboussie, Colleen B. Bombardier, Richard J. Osterman, Jr., Jose P. Ceppi, Lawrence H. Richmond and Ter-rill A. Rupp, on the brief), for Resolution Trust Corp.
Roger B. Kaplan, Woodbridge, N.J., argued (Laura V. Studwell, Woodbridge, N.J. and Robert R. Weinstine, Steven C. Tourek and David A. Kristal, St. Paul, Minn., on the brief), for CedarMinn Bldg. Ltd. Partnership, et al.
Before FAGG, Circuit Judge, TIMBERS, Senior Circuit Judge, and MAGILL, Circuit Judge.
THE HONORABLE WILLIAM H. TIMBERS, Senior United States Circuit Judge for the Sea-ond Circuit, sitting by designation.
MAGILL, Circuit Judge.
The Resolution Trust Corporation (RTC) appeals the district court’s determination that the repudiation of certain leases by RTC as the receiver for a failed savings and loan was untimely. We find this result in error and, therefore, reverse.
I.
Midwest Federal Savings & Loan Association was mired in financial straits. Conjuring up a short-term solution to keep federal regulators at bay, Midwest Federal contracted with a group of investment partnerships to sell and lease back nineteen branch offices of the thrift. Under the two sale-leaseback agreements reached in 1985 and 1986, Midwest Federal sold nineteen branch offices to the partnerships (hereinafter collectively referred to as CedarMinn) at inflated prices. CedarMinn, in turn, agreed to lease the branches back to Midwest Federal at inflated rents. This agreement enabled Midwest Federal to show significant income during the years the sales were recognized.
Midwest Federal wholly financed the purchase by CedarMinn through a non-recourse loan to the partnerships. Midwest Federal structured its lease payments to service the debt. Midwest Federal issued two letters of credit totalling $11.8 million to ensure payment. The agreements’ entire risk, therefore, devolved upon Midwest Federal. The district court found that the contractual rents under the agreements were more than five times the market rate. RTC v. CedarMinn Bldg. Ltd. Partnership, No. 4-90-828, slip op. at 24 (D.Minn. May 22, 1991).
The Federal Home Loan Bank Board on February 13, 1989, declared Midwest Federal insolvent and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) as conservator. On May 4, 1989, FSLIC transferred the assets and liabilities of Midwest Federal to a new entity, Midwest Savings Association. FSLIC was appointed receiver of Midwest Federal and conservator of Midwest Savings.
Congress passed the Financial Institutions Reform, Recovery and Enforcement Act (FIRREA) in August of 1989. Under FIRREA, RTC statutorily succeeded FSLIC as conservator of Midwest Savings. After negotiations aimed at selling Midwest Savings in its entirety failed, the conservator sold Midwest Savings’ deposits to other institutions in October of 1990. On October 5,1990, RTC was appointed receiver of Midwest Savings. Shortly thereafter, on October 29, 1990, RTC repudiated the CedarMinn leases.
RTC brought an action in district court seeking a declaratory judgment that its repudiation was timely. CedarMinn sued for damages and the right to draw on the letters of credit.
The district court held: (1) RTC’s repudiation of the leases was invalid because it was not made within a reasonable period after RTC’s appointment as conservator or receiver; and (2) CedarMinn was enjoined from drawing on the letters of credit so long as RTC continued to make timely rental payments because RTC’s attempted repudiation did not constitute a default. Both sides appeal.
II.
RTC repudiated the leases under 12 U.S.C.A. § 1821(e)(1) (West 1989), which provides that the conservator or receiver for any insured depository institution may disaffirm or repudiate any burdensome contract or lease. In so doing, the conservator or receiver must make the repudiation determination within a reasonable period after its appointment. 12 U.S.C.A. § 1821(e)(2). The liability for a conservator or receiver which timely repudiates a lease in which it was the lessee is limited to the contractual rent accrued through the date of disaffirmance. 12 U.S.C.A. § 1821(e)(4)(B)(i). The lessor loses any claim under an acceleration clause or penalty provision of the lease. 12 U.S.C.A. § 1821(e)(4)(B)(ii).
CedarMinn argues that the “reasonable period” for repudiation commences when RTC is first appointed as a conservator or receiver. CedarMinn contends the October 1990 repudiation, which came fourteen months after RTC’s initial appointment under FIRREA, therefore, was untimely. RTC asserts that the statute gives both the conservator and receiver an independent right to repudiation and a separate “reasonable period” in which to make the repudiation decision. The period during which it could repudiate the leases, therefore, renewed itself when RTC was appointed receiver of Midwest Savings in October 1990. The district court declared the repudiation ineffective, ruling that RTC was required to make the repudiation determination within a reasonable period of its first appointment as conservator or receiver. RTC v. CedarMinn Bldg. Ltd. Partnership, No. 4-90-828, slip op. at 19-20 (D.Minn. Mar. 4, 1991).
A. Independent Repudiation Rights
The plain language of FIRREA grants independent rights of repudiation to RTC in both its capacity as conservator and receiver of an institution. Therefore, even though RTC may succeed itself in the capacity of conservator or receiver of the same institution, it retains the right to repudiate leases, regardless of whether it accepted the leases in its prior capacity.
The statute at issue reads in its entirety:
(1) Authority to repudiate contracts
In addition to any other rights a conservator or receiver may have, the conservator or receiver for any insured depository institution may disaffirm or repudiate any contract or lease—
(A) to which such institution is a party;
(B) the performance of which the conservator or receiver, in the conservator’s or receiver’s discretion, determines to be burdensome; and
(C) the disaffirmance or repudiation of which the conservator or receiver determines, in the conservator’s or receiver’s discretion, will promote the orderly administration of the institution’s affairs.
(2) Timing of repudiation
The conservator or receiver appointed for any insured depository institution in accordance with subsection (c) of this section shall determine whether or not to exercise the rights of repudiation under this subsection within a reasonable period following such appointment.
12 U.S.C.A. § 1821(e).
In these two short subsections, Congress repeats the dual treatment of “conservator or receiver” seven times. Nowhere in the language of the statute is it stated or implied that the appointment of RTC as a conservator negates powers RTC would enjoy if it were later appointed a receiver of the same institution. Had Congress intended RTC’s status as a conservator or a receiver to be mere artifice, it would have granted all duties, rights, and powers to the Corporation.
B. Independent Repudiation Time Frame
Even though we find that the plain language of the statute confers an independent right of repudiation upon both the conservator and receiver of a failed, government-insured thrift, our inquiry is not over. We must next determine whether Congress’ insistence that the decision to repudiate be made within a reasonable period constitutes an implicit restriction on the receiver’s right to repudiate in situations where the receiver follows a conservator. In other words, does Congress’ mandate to make the repudiation determination within a reasonable period contemplate only a single time frame? Or is the decision by RTC not to repudiate the leases in its position as conservator irrelevant to RTC’s determination in its capacity as receiver?
The standard we employ to review an agency’s interpretation of a statute it administers is clear.
When a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984).
FIRREA requires the “conservator or receiver” to determine whether or not to repudiate a contract “within a reasonable period following such appointment.” 12 U.S.C.A. § 1821(e)(2). We find the statute subject to conflicting readings. RTC argues that Congress intended to provide independent repudiation rights to both the conservator and receiver. Since there is no indication that Congress intended to restrict the receiver’s power to repudiate in situations where it follows a conservator, RTC asserts that Congress meant to give RTC a fresh chance to repudiate contracts when it is reappointed as a receiver. Ce-darMinn makes a plausible argument that the “reasonable period” requirement begins to run upon the appointment of RTC as either “conservator or receiver” and, therefore, contemplates a single time frame.
Since we find the statute less clear on this point, we must accede to a permissible interpretation of the statute by RTC. Chevron U.S.A., 467 U.S. at 842-43, 104 S.Ct. at 2781-82. RTC has formally interpreted § 1821(e) as granting independent rights on it as both conservator and receiver to repudiate contracts. Moreover, RTC interprets FIRREA as granting it this repudiation power as a receiver even in situations in which it had earlier failed to repudiate as conservator. For the following reasons, we find reasonable RTC’s interpretation that Congress intended both the conservator and the receiver to have an independent “reasonable period” in which to repudiate.
First, while the specific language of the statute is less than crystalline, the design and language of the statute as a whole, see K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108 S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988), reveal the congressional intent to create independent powers of repudiation, regardless of any activity taken by RTC in a prior capacity. Throughout FIR-REA, Congress specifically articulated when the Corporation was to exercise a duty, right, or power in its capacity as a “conservator or receiver.” In each instance, it is clear that Congress intended the duty, right, or power to be enjoyed or exercised by both the conservator and the receiver. It stretches credibility to assume Congress intended any of these rights to be forfeited in instances when the Corporation preceded itself as conservator or receiver of an institution. More instructive, however, is the care Congress took to delineate those duties, rights, and powers the Corporation could pursue only in its capacity as receiver, or only in its capacity as conservator, but not both.
Second, the traditional tools of statutory construction likewise elicit a clear congressional directive to grant RTC an independent right of repudiation in both its capacity as conservator and receiver. The accepted canon of statutory construction is to treat the disjunctive “or” as giving independent meaning to the words it separates, unless the context of the statute requires otherwise. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 2331, 60 L.Ed.2d 931 (1979); United States v. Smeathers, 884 F.2d 363, 364 (8th Cir.1989) (per curiam); United States v. Lane, 464 F.2d 593, 595 (8th Cir.), cert. denied, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 129 (1972).
'The word “or” in the statute is not a fertile word which is subject to varied constructions.’ United States v. Newman, 405 F.2d 189, 197 (5th Cir.1968). When ‘or’ is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively.
U.S. Customs Serv. v. Federal Labor Relations Auth., 739 F.2d 829, 832 (2d Cir.1984). In Ballentine v. De Sylva, 226 F.2d 623, 625 (9th Cir.1955), aff'd, 351 U.S. 570, 76 S.Ct. 974, 100 L.Ed. 1415 (1956), a statute provided that the “widow ... or children” of a deceased author of a copyrighted work may apply for an extension of the copyright. The court held that the disjunctive application of the word “or” granted both the widow and the children the right to apply for the extension. Id. at 627. Moreover, the action by one of the enumerated persons did not cut off the rights of the other merely because one person acted first. Id.
Third, the statutory history of FIRREA reveals nothing that indicates Congress intended something other than giving the right of repudiation to both the conservator and the receiver. The House Report tracks the language of the statute, giving the repudiation power to the conservator or receiver. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 127. Moreover, the statute and its legislative history emphasize that the powers granted RTC under FIR-REA parallel the powers granted conservators or receivers under the former law. Id. at 126; 12 U.S.C.A. § 1441a(b)(4) (West Supp.1991); S.Rep. No. 101-19, 101st Cong., 1st Sess. 31 (1989).
It has been recognized for at least a century that receivers may repudiate contracts and leases. Sunflower Oil Co. v. Wilson, 142 U.S. 313, 322, 12 S.Ct. 235, 237, 35 L.Ed. 1025 (1892); First Nat’l Bank of Chicago v. First Nat’l Bank of Wheaton, 78 F.2d 502, 502-03 (7th Cir.), cert. denied, 296 U.S. 651, 56 S.Ct. 368, 80 L.Ed. 463 (1935); Kennedy v. Boston-Continental Nat’l Bank, 84 F.2d 592, 597 (1st Cir.1936), cert. dismissed, 300 U.S. 684, 57 S.Ct. 667, 81 L.Ed. 887 (1937); see R. Clark, 2 A Treatise on The Law and Practice of Receivers, § 442 at 733-34 (3d ed. 1959). This power continued to be exercised by the FDIC and FSLIC in the years preceding FIRREA. 12 C.F.R. § 549.3(a) (1988); Argonaut Sav. & Loan Ass’n v. FDIC, 392 F.2d 195, 197 (9th Cir.), cert. denied, 393 U.S. 839, 89 S.Ct. 116, 21 L.Ed.2d 110 (1968); FDIC v. Grella, 553 F.2d 258, 262 (2d Cir.1977). Conservators of government-insured savings institutions and banks also held this power of repudiation. 12 C.F.R. § 548.2(k) (1988) (“The conservator ... may ... (k) ... repudiate any lease or contract he considers burdensome”); Dinan v. First Nat’l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mich.1954). Since Congress intended RTC to exercise rights formerly held by the FDIC and FSLIC, there can be no doubt that Congress intended RTC to retain the independent rights granted to conservators and receivers to repudiate leases.
Fourth, the importance of retaining an independent right to repudiate contracts is exemplified by the distinct missions of the conservator and receiver. That Congress intended conservators and receivers to have different missions is clear. RTC as conservator of a failed institution was empowered to take action necessary to restore the failed thrift to a solvent position and “to carry on the business of the institution and preserve and conserve the assets and property of the institution.” 12 U.S.C.A. § 1821(d)(2)(D). As receiver, on the other hand, RTC was empowered to liquidate the institution. 12 U.S.C.A. § 1821(d)(2)(E).
CedarMinn, relying on RTC v. United Trust Fund, 775 F.Supp. 1465, 1468 (S.D.Fla.1991), argues that the distinction in duties between conservators and receivers is more theoretical than real. “[T]he RTC frequently appoints conservators, receivers, new conservators, and new receivers in case of thrift difficulties,” and the changing back and forth from one legal entity to another frequently amounts to no more than blanket signing of papers and mere legal formalities. Id.
It is difficult to argue that the concern that RTC could prolong indefinitely the repudiation decision is misplaced. Nevertheless, we refuse to adopt such a cavalier attitude about the distinction in roles between the conservator and receiver.
At least as early as the 1930s, it was recognized that the purpose of a conservator was to maintain the institution as an ongoing concern. Bryce v. National City Bank of New Rochelle, 17 F.Supp. 792, 799 (S.D.N.Y.), aff'd, 93 F.2d 300 (2d Cir.1937). The Home Owners’ Loan Act of 1933, 12 U.S.C. § 1464(d)(6)(D) (1988) (amended 1989), specifically provided that a conservator of a federal savings and loan was to “operate the association in its own name or to conserve its assets.” Receivers, on the other hand, have been empowered to liquidate the institution. FDIC v. Grella, 553 F.2d 258, 261 (2d Cir.1977).
This distinction was not only specifically recognized in FIRREA, it was emphasized in the Conference Report.
The title ... distinguishes between the powers of a conservator and receiver, making clear that a conservator operates or disposes of an institution as a going concern while a receiver has the power to liquidate and wind up the affairs of an institution.
H.R.Conf.Rep. No. 101-209, 101st Cong., 1st Sess. 398 (1989).
This distinction in the roles between conservator and receiver is not only recognized historically, but is practical as well, particularly as it pertains to the repudiation strategy of a conservator and receiver. The conservator’s mission is to conduct an institution as an ongoing business. In that light, the strategic decision whether or not to repudiate a lease — particularly when the institution is operating a consumer enterprise from the leased premises — stands apart from the strategy of a receiver, whose interest, by definition, is shutting the business down. A conservator needs an open door; a receiver does not. Therefore, the value of a specific lease could vary significantly depending on the mission of the occupying party at the particular time. The requirement that RTC make the repudiation decision once and for all shortly after its first appointment as conservator would put RTC in the untenable position of trying to operate the business as an ongoing concern with one hand, while at the same time calculating the lease repudiation issue as if it were shutting the business down.
This distinction is illustrated by Monument Square Assocs., Inc. v. RTC, No. 90-12060-T, 1991 WL 280020 (D.Mass. Dec. 13,1991). In Monument Square, RTC was appointed conservator of Home Owners Savings Bank. RTC was burdened with two leases, only one of which covered property actually being used by the Corporation. Therefore, RTC repudiated the lease on the non-occupied property within a month of its appointment as conservator. Id. at 2. The lease on the property being used by the institution, however, was not repudiated until nearly six months later, after the institution was placed in receivership. Id. This case articulates the need for RTC to retain independent rights of repudiation in its two capacities. Obviously, RTC as conservator would choose to repudiate a lease on property it is not using, but might hesitate to repudiate the lease on property from which it is conducting a business. On the other hand, once the institution is placed into receivership, RTC might elect to repudiate the lease on the property it formerly used to conduct its business. Relying on this dichotomy of purpose and the plain language of the statute, the Monument Square court determined that RTC retained a separate right to repudiate even though it followed itself as conservator and even though it elected as conservator not to repudiate the contract. Id. at 7.
Fifth, Congress’ grant of the repudiation right to the conservator or receiver must also be viewed in light of the fact that it has long been recognized that conservators of failed institutions are often replaced by receivers. Dinan v. First Nat l Bank of Detroit, 117 F.2d 459, 460 (6th Cir.1941), cert. dismissed, 315 U.S. 824, 62 S.Ct. 622, 86 L.Ed. 1220 (1942); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 138 (E.D.Mich.1954). Prior to the passage of FIRREA, Congress recognized that conservators appointed for failed institutions may be succeeded by receivers. 12 U.S.C. § 1464(d)(6)(D) (1988) (amended 1989); Lincoln Sav. & Loan Ass’n v. Wall, 743 F.Supp. 901, 902-03 (D.D.C.1990). FIR-REA specifically retained this power. 12 U.S.C.A. § 1464(d)(2)(F) (West Supp.1991).
Finally, it must be recognized that Congress granted broad power to the Corporation and directed that conservators and receivers should not shy away from wielding this power. Congress specifically directed RTC to look closely at sale-leaseback transactions such as those at issue here.
In detailing the repudiation power Title II provides for repudiation of real property leases. The disaffirmance of burdensome leases should take into account the total circumstances of the lease, including whether, in the case of a sale and lease back, the lease was executed as part of an arm’s length transaction.
H.R.Conf.Rep. No. 101-209, 101st Cong., 1st Sess. 399 (1989). CedarMinn stresses that the leases were negotiated at arm’s length. What CedarMinn fails to recognize is that Midwest’s arms were tied behind its back by its financial crisis. The luxuriant terms of these contracts should have made this evident to CedarMinn. In fact, counsel for CedarMinn admitted to the court that no sophisticated business person would accept these leases.
For all of these reasons, we find RTC’s interpretation of the statute permissible. Moreover, our analysis shows that the congressional intent is so apparent that RTC’s interpretation is the most reasonable interpretation.
C. “Reasonable Period”
Since we find that RTC retained a new power to repudiate leases when it was appointed receiver in October 1990, we need only briefly address the reasonable period limitation of 12 U.S.C.A. § 1821(e)(2). FIRREA does not define reasonableness. Congress specifically intended to give RTC flexibility in determining what constitutes a reasonable period for repudiation. The amount of time that is reasonable must be determined according to the circumstances of each case. Union Bank v. Federal Sav. & Loan Ins. Corp., 724 F.Supp. 468, 471 (E.D.Ky.1989). No one could quarrel seriously with the fact that RTC’s repudiation within twenty-four days of its appointment as receiver was reasonable. We need not decide whether the fourteen-month delay between RTC’s appointment as conservator and its subsequent repudiation as receiver was unreasonable. We need only point out that since CedarMinn could show no prejudice by RTC’s continued attempts to renegotiate the leases prior to the placement of Midwest Savings in receivership, RTC’s repudiation could have been reasonable regardless of whether it had been appointed receiver of the institution and given an independent opportunity to repudiate the leases.
III.
Congress passed FIRREA as emergency legislation to resolve expeditiously the “monumental problems involved with the unprecedented costs” of the savings and loan crisis. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 104. Among the powers granted by Congress to RTC is the extraordinary right to repudiate contracts and leases RTC deems burdensome. That Congress intended this powerful tool to be exercised independently by conservators and receivers is clearly a permissible construction of the statute. We therefore find that RTC retained an independent right to repudiate the leases with CedarMinn within a reasonable period of its appointment as receiver. Since the repudiation occurred within twenty-four days of its appointment, FIRREA has been fully complied with. Ce-darMinn’s damages are limited to those prescribed under 12 U.S.C.A. § 1821(e)(4). The judgment below is reversed.
. The sale-leaseback transactions were initiated by Midwest Federal. CedarMinn and its principals had no prior connection to Midwest Federal.
. Subsequent to the filing of this appeal, Cedar-Minn drew on the letters of credit, claiming a separate default by RTC. Upon motion by RTC, the district court modified its initial order, holding: (1) CedarMinn was enjoined from dispersing the proceeds of the letters of credit, RTC v. CedarMinn, No. 4-90-828, slip op. at 32 (D.Minn. May 22, 1991); (2) the RTC’s offsetting of its rental payments to compensate for the rental payments paid to CedarMinn from secondary leases was a “technical” default under the contract, id. at 19; but (3) despite the "technical” default, CedarMinn was not entitled to liquidated damages because the contract’s liquidated damages clause was unenforceable as a penalty provision, id. at 26.
. Unless noted otherwise, all statutory citations are to U.S.C.A. (1989).
. The October 29, 1990, repudiation was to be effective February 28, 1991. Therefore, the contractual rent would accrue through February 28, 1991. 12 U.S.C.A. § 1821 (d)(4) (B)(i)(II).
. Throughout this opinion, the term Corporation will refer to either the RTC or the FDIC. Congress gave the RTC all of the receivership and conservatorship powers it granted the FDIC. 12 U.S.C.A. § 1441a(b)(4) (West Supp. 1991). Therefore, the use of the term Corporation will refer to either agency exercising these parallel powers.
. The RTC was established as an instrumentality of the United States to carry on a program to manage all cases of failed thrifts. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 152-53. The RTC is an agency of the United States when acting as a corporation and an agency of the United States to the same extent as the Federal Deposit Insurance Corporation when acting as a conservator or receiver. 12 U.S.C.A. § 1441a(b)(l)(B) (West Supp.1991).
. Statement of Policy Regarding Treatment of Collateralized Letters of Credit After Appointment of the Resolution Trust Corporation as Conservator or Receiver, at 3 (Sept. 25, 1990); Statement of Policy Regarding the Payment of Interest on Direct Collateralized Obligations after Appointment of the Resolution Trust Corporation as Conservator or Receiver, at 3 (April 1990). The latter policy statement specifically provides that a receiver retains all powers of repudiation regardless of whether a prior conservator or receiver of the same institution honored those contracts.
.12 U.S.C.A. § 1821(c)(1) authorizes the Corporation to accept appointment as "conservator or receiver” for any insured depository institution; §§ 1821(c)(2)(C) and (c)(3)(C) stipulate that the Corporation shall not be subject to any other agency of the United States when it is acting as a "conservator or receiver;” § 1821(c)(3)(A) provides that the Corporation may accept appointment as a "conservator or receiver” of a state insured depository institution; § 1821(c)(3)(B) grants the Corporation the same powers as "conservator or receiver" when appointed by a state authority as when appointed by a federal authority; §§ 1821(c)(4) and (5) articulate the grounds under which the Corporation may appoint itself as sole "conservator or receiver” of an institution; § 1821(c)(7) establishes the judicial review available to an institution challenging the Corporation's appointment of itself as "conservator or receiver;’’ § 1821(d)(2)(A) stipulates that the Corporation in its capacity as "conservator or receiver" shall accede to the rights of the institution’s prior management; §§ 1821(d)(2)(B) and (C) authorize the Corporation as "conservator or receiver" to operate the institution; § 1821(d)(2)(G) , authorizes the Corporation as "conservator or receiver” to merge the institution with another insured institution or transfer assets of the institution; § 1821(d)(2)(H) authorizes the Corporation as “conservator or receiver” to pay valid obligations of the institution; § 1821(d)(2)® (West Supp.1991) grants subpoena powers to the Corporation as "conservator or receiver” of an institution; § 1821(d)(2)(J) (West Supp.1991) grants incidental powers to the Corporation as "conservator or receiver;’’ §§ 1821(d)(13)(A) and (B) delineate the Corporation’s duties and rights as “conservator or receiver” pertaining to final unappealable judgments; § 1821(d)(14) establishes the statute of limitations for claims brought by the Corporation as “conservator or receiver;” §§ 1821(d)(15)(A)-(C) delineate the accounting and record keeping requirements of the Corporation as "conservator or receiver;” § 1821(d)(17) (West Supp.1991) authorizes the Corporation as “conservator or receiver” to avoid fraudulent transfers; § 1821(d)(18) enables the Corporation as "conservator or receiver" to request a court to attach assets; § 1821(e)(1) authorizes the Corporation as "conservator or receiver” to repudiate contracts; § 1821(e)(2) restricts the time under which the Corporation as "conservator or receiver” may elect to repudiate contracts; §§ 1821(e)(3)-(7) set out the rights of the parties after the Corporation as "conservator or receiver" has repudiated a contract or lease; §§ 1821(e)(9)-(10) delineate procedures for the Corporation as "conservator or receiver" to transfer certain financial contracts; § 1821(e)(12) authorizes the Corporation as “conservator or receiver” to enforce contracts entered into by the institution; and § 1821(k) authorizes the Corporation as "conservator or receiver” to bring suit against former officials of the institution.
. Sections 1821(c)(2)(A) and 1821(c)(6) articulate the different criteria under which the Corporation "may" be appointed conservator and "shall” be appointed receiver; §§ 1821(c)(2)(D) and 1821(c)(3)(D) mandate that any institution to which the Corporation is appointed conservator shall remain under the supervision of the federal banking agency or the state banking supervisory authority; § 1821(c)(8) enables the Corporation, when it has appointed itself conservator of a state institution, to appoint itself receiver of that institution; § 1821(c)(9)(B) grants the Corporation as receiver of a state institution the additional power to liquidate the institution; §§ 1821(d)(2)(D) and (E) articulate the separate powers of the Corporation in its capacity as conservator and in its capacity as receiver; § 1821(d)(2)(F) grants the Corporation in its capacity as receiver the power to create a new institution to take over the assets and liabilities of the former institution, or to create a new national bank or bridge bank; §§ 1821(d)(3) — (11) establish the procedures to be used by the Corporation as receiver to handle claims against the institution; § 1821(d)(12) articulates different powers to stay legal proceedings enjoyed by the Corporation as receiver and as conservator; § 1821(d)(13)(D) limits the judicial review of actions taken by the Corporation in its capacity as receiver; § 1821(d)(15)(D) enables the Corporation in its capacity as receiver to destroy records of an institution under certain conditions; and § 1821(e)(8) (West Supp. 1991) establishes rights of parties upon the termination of certain qualified financial products by the Corporation in its capacity as receiver.
. We need not decide whether the Corporation retains the repudiation right as a receiver when it immediately preceded itself as receiver of the same institution. See 701 NPB Assocs. v. FDIC, 779 F.Supp. 1336-1339 (S.D.Fla.1991) (holding that the "reasonable period” for the Corporation to make a repudiation decision dated from its initial appointment as receiver of a failed thrift, even though the agency appointed itself receiver six months later).
. The grant of this extraordinary power to repudiate contracts is given "[i]n addition to any other rights a conservator or receiver may have." 12 U.S.C.A. § 1821(e)(1).
. Reminding the court that RTC had been unable to sell Midwest Federal as a whole, partially because no one wanted to assume the leases, CedarMinn’s counsel said, "Are we to believe today ... that these people represented by the likes of Briggs & Morgan, and Best & Flanagan, the Carl Pohlads of this community, essentially have agreed to honor a $4.2 million obligation per year of rentals? ... Of course they didn’t.” RTC v. CedarMinn, No. 4-90-828, slip op. at 25 (D.Minn. May 22, 1991).
. Both the President’s bill and the House bill initially set the repudiation period at 90 days. H.R.Rep. No. 101-54(1), 101st Cong., 1st Sess. (1989), reprinted in 1989 U.S.C.C.A.N. 86, 331; 1 G. Pulles, R. Whitlock and J. Hogg, FIRREA, A Legislative History and Section-By-Section Analysis, at 189-90 (1990). In conformity with the Senate bill, the final statute eliminated the express 90-day restriction, apparently concluding that RTC ought to be given some flexibility.
FIRREA’s grant of a "reasonable period” within which to repudiate contracts follows the common law approach. Sunflower Oil Co. v. Wilson, 142 U.S. 313, 322, 12 S.Ct. 235, 237, 35 L.Ed. 1025 (1892); FDIC v. Grella, 553 F.2d 258, 262 (2d Cir.1977); Buhl Land Co. v. Kavanagh, 131 F.Supp. 136, 143 (E.D.Mich.1954).
. Upon appointment as conservator, individuals responsible for the management of Midwest Savings determined at least as early as May 22, 1989, that the leases produced "significant detrimental effects" to the association’s finances. RTC v. CedarMinn, No. 4-90-828, slip op. at 4-5 (D.Minn. Mar. 4, 1991). The RTC dutifully informed CedarMinn in December 1989 that it was considering repudiation of the leases. Id. at 5-6. Evidence also showed that RTC pursued negotiations with CedarMinn to renegotiate the leases to enable Midwest Savings to continue to operate from the offices. Id. at 7. CedarMinn clearly was not prejudiced by the ongoing negotiations. There were no businesses eager to take on these leases. CedarMinn itself admitted the leases were utterly unassumable by anyone. Yet, despite the outrageous terms of these leases, CedarMinn continued to receive full rent.
. The Senate Report noted that 500 thrifts failed between 1980 and 1988 — three and one-half times the number of thrift failures in the prior 45 years combined. At the time of the report, the FSLIC had spent an estimated $78 billion in the 1980s alone, making the federal deposit insurer insolvent and illiquid. The General Accounting Office estimated that at least 338 thrifts, or more than 10% of all thrifts, were insolvent as of December 31, 1988, even though the FSLIC had liquidated or merged more than 200 insolvent thrifts during 1988. S.Rep. No. 101-19, 101st Cong., 1st Sess. 2 (1989). | 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 12. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA". | 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 12? Answer with a number. | [] | [
1821
] | songer_usc1sect |
Frank T. LABUGUEN, Plaintiff-Appellant, v. Paul N. CARLIN, Defendant-Appellee.
Nos. 85-1764, 85-2394.
United States Court of Appeals, Seventh Circuit.
Submitted April 4, 1986.
Decided June 10, 1986.
Gerald A. Goldman, Goldman & Marcus, Chicago, Ill., for plaintiff-appellant.
James T. Hynes, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill. (Lori Joan Dym, Washington, D.C., of counsel), for defendant-appellee.
Before WOOD, COFFEY, and FLAUM, Circuit Judges.
After, preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument.” See Rule 34(a), Fed.R.App.P.; Circuit Rule 14(f). No such statement having been filed, the appeal has been submitted on the briefs and record.
PER CURIAM.
On February 20, 1985, the district court dismissed the plaintiff’s employment discrimination claim by granting summary judgment to the Postmaster General. The plaintiff filed a “motion for reconsideration” on March 21, 1985. The motion was denied without comment on April 3, 1985. On May 3, 1985, the plaintiff, Frank Labuguen, filed his notice of appeal from the orders entered on February 20 and April 3. (Appeal No. 85-1764.) On May 28, 1985, Labuguen filed with the district court a Motion for Extension of Time to File a Notice of Appeal. Judge Marshall denied this motion on June 14, 1985, holding that because the motion for extension of time was filed more than thirty days after the time for appeal had elapsed, he was without jurisdiction to consider it. Plaintiff appeals from this order. (Appeal No. 85-2394.) On June 17, 1985, this Court held that insofar as appeal No. 85-1764 attempts to challenge the district court’s order of February 20, 1985, granting summary judgment, this Court is without jurisdiction to hear it. In order for the appeal to have been timely, the notice of appeal had to have been filed not more than sixty days after the district court granted summary judgment. See Fed.R.App.P. 4(a)(1) (if officer of the United States is a party, notice of appeal may be filed up to sixty days after judgment entered). Therefore, the only issues we need to address are whether the district court properly denied plaintiff’s motion for reconsideration and plaintiff’s motion for extension of time to file its notice of appeal.
I.
Labuguen, who has been represented by counsel throughout these proceedings, argues that his motion for reconsideration was a motion under Fed.R.Civ.P. 59 and concedes that it was untimely under that rule which requires that the motion must be filed within ten days of the entry of judgment. Labuguen argues, however, that Judge Marshall should have treated the untimely Rule 59 motion as a Rule 60(b) motion. The government contends that Judge Marshall did treat the motion for reconsideration as a 60(b) motion and asks us to affirm the purported denial on the merits. At a hearing on June 7, 1985, Judge Marshall stated that the “motion to reconsider ... was untimely under Rule 59 [because] the time for reconsideration is ten days under Rule 59, and it cannot be extended.” This statement, combined with the district court’s failure to give any substantive reasons for denying appellant’s Rule 59 motion, supports plaintiff’s argument that the district court did not consider appellant’s motion for reconsideration as possibly providing grounds for relief under 60(b).
Labuguen argues that because the district court did not decide his Rule 59 motion under 60(b), we should remand to the district court to consider whether his motion for reconsideration merits relief under 60(b). Labuguen cites a number of cases in which an appellate court affirmed a district court’s decision to treat a Rule 59 motion as a motion under 60(b). See, e.g., Rocky Mountain Tool & Machine Co. v. Tecon Corp., 371 F.2d 589, 597 (10th Cir. 1967); United States v. Wissahickon, 200 F.2d 936 (2d Cir.1952). However, he cites no cases in which an appellate court has reversed a district court for treating a Rule 59 motion as a Rule 59 motion, rather than treating a Rule 59 motion as both a Rule 59 motion and a Rule 60(b) motion. We decline Labuguen’s invitation to hold that the district court must treat what Labuguen concedes was a Rule 59 motion as a Rule 60(b) motion. If appellant wanted the district court to consider the merits of a 60(b) motion, his remedy was clear — he should have filed a Rule 60(b) motion. We hold that the district court properly denied plaintiff’s Rule 59 motion as untimely. See Bailey v. Sharp, 782 F.2d 1366, 1367 (7th Cir.1986) (citing Browder v. Director, Department of Corrections, 434 U.S. 257, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978)) (Rule 59 motions must be filed within 10 days of entry of judgment; extension of prescribed time period is prohibited).
II.
Plaintiff in appeal No. 85-2394 challenges the district court’s denial of his motion to extend the time for appeal as untimely. Appellant concedes that when he filed the motion on May 28, 1985, it was untimely because it was filed more than thirty days after the time for filing an appeal had expired. He contends, however, that the district court should have considered his motion because he did file a notice of appeal within thirty days of the expiration of the time in which he was required to file a notice of appeal. He relies on cases decided prior to the 1979 amendment to Fed.R.App.P. 4(a)(5). Those cases allowed district courts to grant extensions as long as the appellant filed a notice of appeal within thirty days of the time in which his right to appeal had expired. See United States v. Lucas, 597 F.2d 243 (10th Cir.1979); Moorer v. Griffin, 575 F.2d 87, 89-90 (6th Cir.1978); Craig v. Garrison, 549 F.2d 306 (4th Cir.1977); Sanchez v. Dallas Morning News, 543 F.2d 556, 557 n. 2 (5th Cir.1976), cert. denied, 441 U.S. 911, 99 S.Ct. 2010, 60 L.Ed.2d 383 (1979); Stirling v. Chemical Bank, 511 F.2d 1030, 1032 (2d Cir.1975); Alley v. Dodge Hotel, 501 F.2d 880 (D.C.Cir.1974), cert. denied, 431 U.S. 958, 97 S.Ct. 2684, 53 L.Ed.2d 277 (1977).
Whatever the rules may have required prior to 1979, Fed.R.App.P. 4(a)(5) now “specifically conditions extension of the time in which a notice must be filed upon the filing of a motion within thirty days after the expiration of the initial [filing period].” United States ex rel. Leonard v. O’Leary, 788 F.2d 1238, 1239 (7th Cir.1986) (relying on clarity of rule, Advisory Committee comments, and numerous cases from other circuits).
Labuguen asks us to apply our holding prospectively as the Fifth Circuit did in Sanchez v. Board of Regents of Texas Southern University, 625 F.2d 521 (5th Cir.1980). The Eighth Circuit has rejected a similar request, noting that Sanchez dealt with a notice of appeal filed only nine months after the 1979 amendment became effective. See Campbell v. White, 721 F.2d 644 (8th Cir.1983). We agree with the Campbell court’s reasoning that prospective application is completely inappropriate when the request comes years after the amendment and after development of a considerable body of cases from other circuits that underscore the clarity of the rule. Id. at 647.
In summary, we affirm the district court’s denial of the untimely Rule 59 motion and the untimely motion for extension of time.
Affirmed.
. We assume for purposes of this request that prospective application of the rule would assist appellant. We note that he has not cited any Seventh Circuit cases that interpreted the pre1979 Rule as allowing a notice of appeal to serve as a motion for extension of time.
. Appellant also argues in his brief in appeal No. 85-2394 that this Court should consider his notice of appeal filed on May 3, 1985, from the district court’s summary judgment of February 20, 1985, as timely under the unique circumstances exception of Thompson v. Immigration & Naturalization Service, 375 U.S. 384, 84 S.Ct. 397, 11 L.Ed.2d 404 (1964). In our order of June 17, 1985, we held that the appeal from the February 20, 1985, decision of the district court was untimely and therefore must be dismissed. We are unwilling to reconsider the holding in that order. | 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 "O" thru "R"". Your task is to determine which specific federal government agency best describes this litigant. | 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 "O" thru "R"". Which specific federal government agency best describes this litigant? | [
"Occupational Safety & Health Administration",
"Occupational Safety & Health Review Commission",
"Office of the Federal Inspector",
"Office of Management & Budget",
"Office of Personnel Management",
"Office of Workers Compensation Program",
"Parole board or parole commisssion, or prison official, or US Bureau of Prisons",
"Patent Office",
"Postal Rate Commission (U.S.)",
"Postal Service (U.S.)",
"RR Adjustment Board",
"RR Retirement Board"
] | [
9
] | songer_respond1_3_3 |
Dr. Pedro SILVA et al., Plaintiffs-Appellees, v. SECRETARY OF LABOR et al., Defendants-Appellants.
No. 74-1410.
United States Court of Appeals, First Circuit.
Argued March 6, 1975.
Decided June 10, 1975.
James P. Morris, Atty., Dept, of Justice, with whom John L. Murphy, Chief, Government Regulations Section, Crim. Div., Washington, D. C., James N. Gabriel, U. S. Atty., Boston, Mass., and Paul G. Gorman, Atty., Dept, of Justice, Washington, D. C., were on brief, for defendants-appellants.
S. Joseph Ciccia, Springfield, Mass., with whom Lawrence J. Kenney, Springfield, Mass., was on brief, for plaintiffsappellees.
Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
This is an appeal by the Government from an order of the district court setting aside the Secretary of Labor’s refusal to issue an alien labor certification in favor of Miss Laurinda Pires, a citizen of Portugal, who has agreed to work as a live-in maid at the home of Dr. Pedro Silva in Springfield, Massachusetts. The court directed the Secretary to issue the certification.
Alien labor certification is provided for in section 212(a)(14) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(14). Aliens “seeking to enter the United States for the purpose of performing skilled or unskilled labor” comprise one of a number of categories excluded from admission,
“unless the Secretary of Labor has determined and certified to the Secretary of State and to the Attorney General that (A) there are not sufficient workers in the United States who are able, willing, qualified, and available at the time of application for a visa and admission to the United States and at the place to which the alien is destined to perform such skilled or unskilled labor, and (B) the employment of such aliens will not adversely affect the wages and working conditions of the workers in the United States similarly employed.”
Dr. Silva, a gynecologist and obstetrician, sought to obtain certification for Miss Pires in the fall of 1972 by filing with the Massachusetts Division of Employment Security in Springfield the completed forms and back-up papers required under the Secretary’s regulations. 29 C.F.R. § 60.2. As we must decide in the course of this appeal whether or not the Secretary’s denial was arbitrary or unlawful, we set forth in rather elaborate detail the information furnished therein and the proceedings generally as they appear in the record.
A form entitled “Statement of Qualification of Alien”, executed by Miss Pires, was submitted. She indicated that she had had 30 years experience as a maid, cook and domestic servant, and was seeking work as a “domestic.” In a companion form, “Job Offer for Alien Employment,” Dr. and Mrs. Silva attested that they would hire a qualified U.S. worker if one were available; that efforts had been made to fill the job through the “Unemployment Office, bulletins at three hospitals”; that the job to be performed was “House cleaning, cooking, mending, washing, ironing and occasional child care”; that the total number of hours per week was “40 hours” (the space for overtime was left blank); that “basic” and also “overtime” pay would be $2.00 per hour; that room and board would be provided and the employee would have a private room; and “some knowledge of Portuguese language is helpful.”
In a third form entitled “Supplemental Statement for Live-at-work Job Offers,” Dr. Silva indicated that his household contained two adults and three children, ages six to eleven, and that the alien would be paid $80.00 weekly, with $5 to be deducted weekly for 57 weeks in order to repay anticipated advances for visa, medical fees and travel from Portugal to Springfield. Dr. Silva reported that there had been no respondents to job advertisements he had placed at the hospitals. Under the question, “if alien will be required to give special care or attention to any persons, please explain,” Dr. Silva replied “None.”
Submitted with the forms was a copy of the employment contract signed by the Silvas and Miss Pires. Miss Pires was described as a “live-in domestic.” Her workweek was to be 40 hours. The “exact hours of daily employment” were described as from 8 a. m. to 5 p. m. with one hour off for lunch Monday through Friday. The employee was to be “free to leave the premises of the employer at all other times except that she may work overtime paid at the hourly rate of $2.00 U.S. dollars.” Further it was “understood that the employee will reside on the employer’s premises,” and no money was to be advanced “except if the employee needs the same.”
Shortly after the above forms had been filed, the Manpower Administration in Boston asked the Silvas and state employment security officials for further information as to what had been done to locate legal resident workers for the job, especially day workers. The following were then submitted:
1. Form executed on behalf of the local Springfield office of the Massachusetts Division of Employment Security that the prevailing wage in that area for a Maid General (Dom. Ser.) was $2.00 per hour plus room and board, and that the regular and overtime wage Dr. Silva offered equalled the prevailing wage. The form included the statements, “We have been unable to refer any qualified applicants for live in domestic employment,” and that “Workers are not available in this occupation (live in domestics).” The number of “active applications on file” was “21” [presumably meaning day worker applicants].
2. Statements under oath by Reverends George Farland and Edward Kennedy of the Sacred Heart Parish that they had attempted unsuccessfully to locate someone who would work for the Silvas as a live-in maid.
3. Statement under oath of Phyllis O’Brien, director of Social Services at Mercy Hospital, of unavailing efforts for a considerable period of time to find a live-in maid for the Silvas, “as most of the people were only available for part-time work and were not able to provide the range of services the doctor needed.”
4. Affidavit of Dr. and Mrs. Silva attesting to unavailing efforts through employment agencies listed in the Yellow Pages of the phone book as well as through his parish and hospital to secure a live-in maid. Dr. Silva also replied to the few newspaper ads found in local newspapers, finding more often than not that they are “for part-time situations and by people more involved in cleaning rather than cooking, etc.1 went on to say, Dr. Silva
“The reason why a day worker would not be suitable for this position is that as a doctor of Obstetrics and Gynecology, I am working long hours and irregular hours, and I am out of my home a great deal. My demands of my wife are great in terms of helping me in communications with patients in being in attendance at social functions, meetings, conferences and seminars out of the city and in addition to having an unusually large home which needs a lot of attention. She has also been doing some volunteer teaching. It is important that someone be physically present in our home with whom our children will be comfortable at meals and other times without their mother and father present. A person living in our home would also be more available for our irregular schedule and also for overtime in unusual time demanding situations. A special relationship through her physical presence with the children would facilitate keeping the children on a regular schedule. We have employed day workers from time to time and this has not proved successful at all in terms of availability and capability. . . .”
On December 14, 1972, the Secretary’s certifying officer in Boston issued a form response to Dr. Silva, to the effect that the Secretary could not issue the certification required by section 212(a)(14) because
“Available job market information will not warrant a certification of unavailability of workers in the U.S.”
Dr. Silva promptly sought review of the decision, in accordance with the Seeretary’s procedures. Dr. Silva’s counsel, by letter dated February 14, 1973, listed as the grounds for review that all available information, from both private and public sources, continued to demonstrate the unavailability of persons who could be hired. Further, it was urged that Dr. Silva’s and his wife’s need was “compelling”. Accompanying was a psychiatrist’s letter to the effect that she had examined Mrs. Silva on February 14, and that Mrs. Silva had described complaints dating from June, 1972, involving “intermittent spells of severe anxiety, accompanied by nightmares, insomnia and severe irritability.” Reference was made to weight loss and impulses to run away. These symptoms occurred exclusively at night, when Dr. Silva was out on call. Dr. Silva had attempted to cope by installing an expensive alarm system. The psychiatrist wrote that Mrs. Silva had been “chronically depressed by her geographic separation from her extended family”, and recommended,
“a live-in companion ... to protect this woman’s mental health during her husband’s frequent absences. In my opinion she suffers from severe and disabling anxiety neurosis which is exacerbated by her being left alone in the house.”
Together with the psychiatrist’s letter was an affidavit of Dr. Silva, relating that he had made continued, unavailing efforts to secure a worker, and that the Massachusetts Division of Employment Security had not produced any prospective workers even for interview. In addition, Dr. Silva said that the hours of his work caused him to be absent from home many hours during the evening and early morning, and that notwithstanding installation of an alarm, his wife’s needs persisted.
The denial for certification was thereafter reviewed by the Assistant Regional Manpower Administrator, see 29 C.F.R. § 60.4, who on March 26, 1973, notified Dr. Silva’s attorney that, after review, he failed to find any grounds warranting reversal of the certifying officer’s decision. He went on to state,
“The concerns raised by Dr. E. Deborah Gilman, M.D. [the psychiatrist] strongly limit any reasonable access to possibly qualified and available applicants from the resident U.S. labor force, under the job classification cited by your client (Domestic Live-in).
To the contrary, the duty requirements cited by Dr. Gilman to ‘protect this woman’s mental health’ are above and beyond those normally expected for the occupational classification requested at the wage offered.”
Upon receipt of this letter, Dr. Silva’s attorney submitted a further letter from Dr. Gilman, to the effect that she never meant to say that Mrs. Silva was in need of any kind of professional or paraprofessional psychiatric nursing attention. Rather, given Dr. Silva’s frequent and irregular absences from his home during the night, she needed a live-in servant to provide her “the reassurance that only another adult in the home can give.” This, the psychiatrist stated, could be adequately fulfilled by a domestic servant.
On April 28, 1973, the reviewing officer wrote that he had again reviewed the case in light of the enclosure and found no grounds to reverse.
Thereafter appellees commenced suit in the district court, seeking a declaratory judgment and review under 28 U.S.C. § 2201 and section 10 of the Administrative Procedure Act, 5 U.S.C. §§ 70A-06. The thrust of the complaint was that given the abundant evidence that United States labor to fulfill the job requirements was unavailable, it was arbitrary for the Secretary to deny certification.
The Government moved to dismiss. It argued that the certification statute was not designed to protect potential employers but only the American labor market; therefore, it was claimed, Dr. Silva lacked standing. See Braude v. Wirtz, 350 F.2d 702, 706-08 (9th Cir. 1965). With this argument was coupled the argument that labor certification was non-reviewable as “agency action committed to agency discretion by law. . . . ” 5 U.S.C. § 701(a)(2). Finally the Government argued that it was not an abuse of discretion for the Labor Department to determine that day workers could adequately fulfill the job requirements and were available in the Springfield area. The Government pointed to the 8 a. m. to 5 p. m. hours of employment listed in Silvas’ contract with Miss Pires. It also urged that the purpose of the statute — to protect American workers — would be eroded by creating subclassifications within the domestic help category.
Plaintiffs, in turn, moved for summary judgment. The court then entered a Memorandum ruling that appellees had standing, and finding that the Secretary and Regional Manpower Administrator had been advised by the Massachusetts Division of Employment Security that its local Springfield office had not been able to refer qualified applicants for live-in domestic employment to plaintiffs, and that such live-in workers were not available. The court went on to say that while the Division of Employment Security advised that day workers were available for domestic work,
“Nothing in the administrative record . . . demonstrates that defendants had information from other sources of any worker to meet plaintiff Silva’s job requirements. Nor does the record show any finding or determination by defendants of any workers ‘able, willing, qualified, and available ... at the place to which the alien is destined to perform . ’, within the meaning of 8 U.S.C. § 1182(a)(14). There are no facts set out in the administrative record that support the conclusory statement of reasons assigned for the decision that ‘Available job market information will not warrant a certification of unavailability of workers at the place of intended employment, viz. Springfield.’ ”
The court thereupon remanded to defendants for the limited purpose of furnishing “a statement of the specific factual basis on which the decision rests.” The court indicated that it was persuaded to adopt this course by our decision in Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974). See also Bitang v. Regional Manpower Administration, 351 F.Supp. 1342 (N.D.Ill.1972).
Eventually, after delay, a statement was produced (executed and one might suppose prepared by the local Assistant United States Attorney handling the case rather than by Labor Department officials). It recited that defendants “hereby furnish to the court a statement of the specific and factual basis supporting their decisions of December 11, 1972, March 26, 1973, and April 25, 1973.” However, the contents of the statement added nothing to the existing record and were simply arguments for the result reached, to wit:
1. The live-in requirement was arbitrary and restrictive and intended to preclude legal residents from the offered employment. This was so because the contract was for daytime hours and the employee would be free to leave the premises (except for overtime). Thus day workers who were available could allegedly have performed the necessary services.
2. Referrals from the eligible pool of household day workers maintained by the Massachusetts Division of Employment Security were supposedly not sought.
3. The presence of another adult in the house to provide reassurance was not a reasonable basis for issuance of a labor certification because that consideration was not “related to the usual job duties performed by a Maid, General”.
In an ensuing Memorandum and Order, the court found the Government’s statement to be argumentative and unresponsive to its order requiring a statement of the specific factual basis “on which the decision rests.” It was found not to furnish any factual data not already before the court. The court said that it would not remand a second time for a statement of facts, and would decide on the existing record. The court held that plaintiff’s job specifications required more than merely 8:00 a. m. to 5:00 p. m. domestic work; they required also that the worker live in and perform some additional duties. According to the court,
“No such workers were available to perform such duties in Springfield, Massachusetts, according to the Massachusetts Division of Employment Security. Without any proof offered to the court, the defendants view the live-in requirement as ‘arbitrary and restrictive and intended to preclude legal residents from the offered employment'. This is clearly an attack upon the good faith of the plaintiff’s personnel requirements, an exercise in which the defendants have no right to engage absent proof . . .. Moreover, defendants have declared that the offered employment can fully be met by day domestic workers, and thus they seek to exercise the privilege of determining the - qualifications for the job to be filled, a privilege which they do not possess.”
The court concluded that the decisions of defendants were arbitrary, an abuse of discretion, and contrary to law. They were ordered set aside and plaintiffs’ request for alien labor certification was remanded to defendants with directions to grant the same.
I
The present case presents a question comparable to that in Digilab, supra, where the Secretary denied certification of an electrical engineer of very specialized skills sought by Digilab, on the ground that there were 200 unemployed engineers listed in a Registry maintained in California. Id., 495 F.2d at 326. Judge Moore, writing for the court, agreed with the district court that a showing that there were numerous unemployed engineers did not indicate that there were other workers in the United States “able, willing, qualified, and available” to do the specialized work required.
In the present case the Secretary believes that the active applicant file of the Massachusetts Division of Employment Security, showing 21 persons registered in Springfield for housework of some variety, established that United States workers were available to perform Dr. Silva’s work. Yet the Massachusetts Division asserted that none of these were available to live in. Moreover, it is not clear that any of the day-workers would be available for fulltime work, or possessed the cooking or other skills sought. Miss Pires attested in her qualifications form to 30 years experience as maid, cook, and domestic servant. Details of her previous employments were provided, and her last employer certified that she was “a most reliable person and an excellent cook.” There is no showing that comparable workers were available even by the day. Indeed, the only evidence in the record is to the contrary. Dr. Silva stated in his affidavit that when he followed up newspaper ads, he found that most people were interested in part-time work and in cleaning, not cooking. He said the Silvas had employed day workers from time to time and “this had not proved successful at all in terms of availability and capability.” He spoke, moreover, of a desire to find someone with whom the children will be “comfortable at meals and other times without their mother and father present.” Thus the record is less than persuasive even as to the availability of day workers suited to the Silvas’ needs.
The more basic question, however, is, assuming the availability of day household workers of some kind, whether the Secretary may for that reason refuse to certify an alien live-in domestic. It is undisputed that legal resident live-ins were unavailable. The Secretary argues that because Miss Pires’ contract hours were to be from 8:00 a. m. to 5:00 p. m., and because she would be free to leave the premises at will, she would be no different from a day worker. This reasoning borders on the absurd. The contract requires Miss Pires to live on the premises and provides for overtime. Obviously there would be marked advantages and convenience to the Silvas from such a live-in arrangement. Anyone of advanced years or a mother with infant children and an absent husband appreciates the difference between a domestic worker who is frequently on the premises and one present only during regular working hours. Even if the live-in worker performs no actual overtime work (and of course her constant availability for that purpose is itself a decided benefit), her off-duty presence in the house is a reassurance in the event of illness or emergency.
It is true, of course, that a live-in employee may be more readily induced to provide extra work — such as baby sitting or answering the phone — for no extra pay; and the ever-present risk of exploitation may entitle the Secretary, as the protector of United States resident labor, to examine the position suspiciously. But these issues, further discussed below, are not the same as whether a live-in housekeeper-maid is the functional equivalent of a day worker.
In the present case, plaintiffs represented that Mrs. Silva was nervous and apprehensive during the frequent absences of her husband, a busy obstetrician. The Secretary’s attempt, without supporting evidence, to belittle these understandable assertions does not commend itself to us anymore than it did to the district court. Nor does the Secretary’s studied effort to pretend that what the Silvas wanted was a psychiatric nurse. It is true that Mrs. Silva’s nervousness was not brought to the fore until after the original adverse decision. Yet the Secretary’s own instructions encourage the submission of additional evidence at the review stage. And the Silvas may well not have known how strong a showing of need was required. The Secretary’s policies are not spelled out, and the applicant is not in a position to know in advance what drift his case may take. We do not think that the Secretary can summarily reject the Silvas’ assertion, supported by a psychiatrist’s letter and by the facts of Dr. Silva’s job, that Mrs. Silva’s nervousness was a factor in designing the job requirements. If not, it is obvious that a day worker cannot fulfill the Silvas’ job requirements.
We thus agree with the district court that the certifying officer’s laconic finding that there were United States workers available was arbitrary and, in fact, simply wrong. Part (A) of section 1182(a)(14) attaches to the concept of availability that the workers be “able,” “willing” and “qualified.” The record does not support a finding that the kind of domestic coverage desired by the Silvas was available in Springfield from local labor sources.
II
The Secretary does not now seriously argue that the local labor market could fulfill the Silvas’ requirements, especially with respect to companionship for Mrs. Silva during Dr. Silva’s absences. Rather he argues that the latter function is an impermissible utilization of a domestic worker. Mrs. Silva must choose, it is said, between a day worker and being in such dire need as to hire a nurse attendant. By this logic, an 85-year old person in good health desirous of a live-in housekeeper as a reassurance in the event of sudden illness would have to choose between a day worker and an unwarranted, expensive, round-the-clock service. The logical intermediate choice of a live-in worker would be denied.
The District of Columbia Circuit recently supported the Secretary’s right not to honor the full gamut of an employer’s requirements. In Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974), a case also involving a physician’s request for live-in help (but without the added aspect of Mrs. Silva’s disability and Dr. Silva’s irregular hours), the court held that the Secretary could treat “Dr. Pesikoff’s live-in requirement for his maid as a personal preference irrelevant to determination of whether there was ... a pool of potential workers willing to perform the Pesikoff’s domestic tasks.” 501 F.2d at 762. The court reached this result (and its Orwellian designation of the employer’s needs as irrelevant “personal preferences”) in light of its reading of the entire statute. It pointed out that prior to enactment of the 1965 Amendments to the Immigration and Nationality Act, section 212(a)(14) was structured to permit entry of aliens seeking to perform work in the United States unless the Secretary certified that there were sufficient American workers to perform the labor of that the employment of aliens would adversely affect the wages and working conditions of American workers. The 1965 Amendments reversed the language so as to create a presumption against entry. It follows that the burden is on the alien or his prospective employer to prove that it is not possible for the employer to find a qualified American worker.
This burden of proof, however, seems to us a different point from the Secretary’s purported right to treat as irrelevant the employer’s job preferences. That right, if it exists, would seem to rest not on part (A) of the statute (dealing with whether resident workers are available to perform the desired task) but on part (B), requiring the Secretary to find, as a further prerequisite to certification, no adverse effect on the wages and working conditions of the workers in the United States similarly employed. Conceivably the sheer administrative difficulty of making refined distinctions and the need to guard against cheating by employers, Pesikoff, supra at 763, coupled with the fact that more competent and more highly skilled aliens will threaten the job opportunities of marginally qualified Americans in similar if not identical employment, might lead the Secretary to refuse to certify live-in domestics even though available American day workers are demonstrably less satisfactory from the employer’s viewpoint. See The Elton Orchards, Inc. v. Brennan, 508 F.2d 493 (1st Cir. 1974), rev’g 382 F.Supp. 1049 (D.N.H.1974). Were live-in domestic workers to be treated separately from day workers, the Secretary might fear such a steady influx as to curtail the day-work jobs available for residents. Under a broad reading of the words “similarly employed,” the Secretary might be empowered to guard against that danger. But if the Secretary intends to limit live-in domestic entries on this ground, it would seem necessary for him to express this policy openly, rather than by basing individual denials on the specious ground that there are available and qualified United States workers when, in fact, there are none.
On the present record, we do not decide to what extent the Secretary may subordinate the employer’s reasonable needs to the welfare of American labor. Undoubtedly the statute has a major, perhaps even dominant, purpose to protect American workers (although in Digilab, supra at 326, we said that it had both that purpose and the purpose of admitting and absorbing skilled workers from other lands).
But whatever can be said about the Secretary’s power under part (B) of the statute, we think our review limited to the ground stated by the Secretary— the purported availability of United States workers. That ground, as we have stated, is unsupported in the record, hence the Secretary’s finding is arbitrary and capricious, and must be set aside. 5 U.S.C. § 706.
Ill
We must also decide whether to affirm the district court’s order directing the Secretary to grant certification. The district court was understandably frustrated by the inexcusable failure of the Secretary to comply with its request for a factual explanation. Power to compel agency action is limited, however, to action “unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706. Congress has invested the Secretary with very substantial discretion in this area, and while the Secretary’s actions to date, based on the reasons he has provided, were arbitrary and capricious, we cannot quite say that they are unlawful or an effort to delay an inevitable result, in the sense that the Secretary could on no conceivable ground decline to certify. See, e. g., SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943). However, time is running out.
Accordingly we vacate the district court’s judgment insofar as it orders the matter remanded to the Secretary with instructions to grant a certificate. Instead, while ordering that the Secretary’s decision be set aside insofar as it holds that there are available United States workers for the task sought to be performed, we direct, modification of the Court’s judgment so as to remand to the Secretary for further consideration of Dr. Silva’s request in light' of this opinion. Given the unfairness with which the Silvas have been treated to date, we would anticipate prompt certification unless, on sufficient grounds other than the one we have ruled invalid, the Secretary feels compelled to rule that he cannot conscientiously make the requisite certification. Such grounds, if found to exist, should be stated, and their adequacy may be reviewed in the district court.
We would note by addendum that much, of the confusion in this area could be avoided were the Secretary to promulgate suitable regulations with respect to domestic workers, live-in and day, rather than to formulate general* policy case-by-case. We can appreciate that there are problems of delicacy in adjusting the needs of United States employers to those of resident workers.. But in an area where the Secretary has considerable power under general statutory standards and must decide numerous cases in a routine fashion, the clarification of policy through rules or published pronouncements would protect against arbitrary action. At present the regulations contain nothing material but a flat prohibition against alien domestic workers with less than a year’s experience. Until a rule or governing policy is clearly adopted and published with respect to live-ins, prospective employers like the Silvas will expend time and effort seeking to hire an alien, only to be turned down for reasons they could not have' anticipated. Thus if, for example, alien live-ins are to be certified to meet only particular needs — such as to work for shut-ins, the elderly, and the like— such policies should be announced. The present case in large measure reflects a lack of coherent announced policies.
Affirmed in part and remanded to the district court for remand to the Secretary for further proceedings in accordance herewith.
. The Secretary’s regulations list certain skilled occupations as to which he has found an insufficient supply of U. S. workers and no adverse affect on wages and conditions of those similarly employed. 29 C.F.R. § 60.7, Schedule A. In Schedule B are listed other occupations found by the Secretary not to qualify for certification. Household Domestic Service Workers having less than one year of experience are listed in Schedule B. Because she had extensive experience, Miss Pires’ eligibility was unaffected by Schedule B. No other public expressions of policy, in regulation form or otherwise, have been called to our attention, although at oral argument counsel for the Secretary seemed to indicate that the Secretary had a policy against admitting live-in domestics except, perhaps, in some exceptional circumstances.
. At about the same time in a letter to Senator Edward W. Brooke, the Acting Regional Manpower Administrator wrote, in the same vein,
“On the basis of labor market information that legal resident domestic household service workers were available in the Springfield, Massachusetts, area, the certification required by Section 212(a)(14) could not be issued.”
. A form attached to the certifying officer’s determination provided information as to how to seek review. It advised that “any new or additional matters not previously considered” should be presented with the request for a formal review.
. The Immigration and Nationality Act does not establish any special procedure for review of certification decisions, nor does it preclude judicial review. The Government has not questioned standing and reviewability on appeal. The district court correctly ruled in appellees’ favor on both scores. See Digilab, Inc. v. Secretary of Labor, 495 F.2d 323 (1st Cir.), cert. denied, 419 U.S. 840, 95 S.Ct. 70, 42 L.Ed.2d 67 (1974); Pesikoff v. Secretary of Labor, 163 U.S.App.D.C. 197, 501 F.2d 757, cert. denied, 419 U.S. 1038, 95 S.Ct. 525, 42 L.Ed.2d 315 (1974).
. Using denigrating language to transform an employer’s reasonable requirements into something less seems to us unfair. It may be that to protect United States resident workers the Secretary is empowered to deny certification even where the alien labor would clearly prove more satisfactory from the employer’s viewpoint. We would rather say so than belittle the employer’s job description.
. Nothing herein, of course, is to be construed as passing one way or the other on the validity of any such regulation or policy. Our point is not to suggest here what policies the Secretary should adopt but merely that they should be articulated so as to avoid the sort of injustice and confusion reflected in this case. | 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. | What is the nature of the first listed appellant? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
2
] | songer_genapel1 |
UNITED STATES of America, Appellee, v. Robert GARCIA, Jane Lee Garcia and Ralph Vallone, Jr., Defendants, Robert Garcia and Jane Lee Garcia, Defendants-Appellants.
Nos. 1358, 1359, Dockets 91-1004, 91-1005.
United States Court of Appeals, Second Circuit.
Argued April 16, 1991.
Decided June 28, 1991.
Barry A. Bohrer, New York City (Morvil-lo, Abramowitz & Grand, Joel M. Cohen, Fischetti & Russo, of counsel), for defen-dan ts-appellants .
Michele Hirshman, New York City, Asst. U.S. Atty. for the Southern District of New York (Roger S. Hayes, Acting U.S. Atty. for the Southern District of New York, Helen Gredd, Asst. U.S. Atty., of counsel), for appellee.
Before TIMBERS, MESKILL and PRATT, Circuit Judges.
PRATT, Circuit Judge:
Defendants Robert and Jane Garcia appeal from an order of the United States District Court for the Southern District Court of New York, Leonard B. Sand, Judge, denying their motion, made on double jeopardy grounds, to bar their retrial and to dismiss the remaining counts of their indictment. For the reasons that follow, we affirm.
BACKGROUND
In November of 1988 Robert and Jane Garcia were indicted on charges of bribery, receiving illegal gratuities, and both substantive and conspiracy counts of extortion in connection with Robert Garcia’s congressional activities on behalf of the infamous Wedtech Corporation. See United States v. Wallach, 935 F.2d 445 (2d Cir.1991), United States v. Biaggi, 909 F.2d 662 (2d Cir.1990), cert, denied, — U.S. -, 111 S.Ct. 1102, 113 L.Ed.2d 213 (1991), United States v. Stolfi, 889 F.2d 378 (2d Cir.1989). The alleged extortion was premised on two legal theories: (1) extortion by wrongful use of fear and (2) extortion under color of official right. At the close of the evidence at trial, the Garcias moved to dismiss the first theory for insufficient evidence. The district judge denied the motion and submitted both counts to the jury under a charge that permitted them to convict if they found either theory established by the proof.
The jury acquitted the Garcias of the bribery and gratuity charges, but convicted them of the substantive and conspiracy charges of extortion. Although given the opportunity by the court, neither the Garci-as nor the government requested that special interrogatories be given to the jury in order to learn upon which theory of extortion the jury had based its guilty verdicts. The Garcias appealed, arguing that the first theory of extortion — extortion by wrongful use of fear — should not have been submitted to the jury, because there was insufficient evidence to support it. We agreed, and reversed the convictions. United States v. Garcia, 907 F.2d 380 (2d Cir.1990). In doing so, we explicitly pointed out that the Garcias, by making a motion under Fed.R.Crim.P. 29, had preserved their right to argue that there was insufficient evidence to support the first of the two extortion theories, and that “if there was insufficient evidence for one of the theories, then the verdict is ambiguous and a new trial must be granted.” Id. at 381 (emphasis added).
We remanded to the district court “for further proceedings”. Id. at 385. The Garcias then moved in the district court for an order barring retrial and dismissing the remaining counts of the indictment, claiming that a second trial would violate the double jeopardy protection of the fifth amendment to the constitution. The district court denied the motion, and the Gar-cias appeal.
DISCUSSION
The double jeopardy clause of the fifth amendment states that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. Despite its sweeping language, the clause “does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction * * *.” United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1589, 12 L.Ed.2d 448 (1964). However, when an appellate reversal is based on insufficient evidence, a retrial is prohibited. See Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150-51, 57 L.Ed.2d 1 (1978) (the double jeopardy clause “precludes a second trial once the reviewing court has found the evidence legally insufficient * * * ”). The basis for this distinction is clear: “[A]n appellate reversal [based on insufficient evidence] means that the government’s case was so lacking that it should not have even been submitted to the jury * * * [since] as a matter of law * * * the jury could not properly have returned a verdict of guilty.” Id. at 16, 98 S.Ct. at 2150. To allow a second trial under such circumstances would be “to afford the government an opportunity for the proverbial ‘second bite at the apple.’ ” Id. at 17, 98 S.Ct. at 2150.
In reversing the Garcias’ convictions, we concluded that there was insufficient evidence to support a conviction of extortion based on wrongful use of fear; therefore any attempt to retry them on this theory would violate the double jeopardy clause. If the Garcias are to be subjected to a second trial, then it can only be for extortion based on the theory of color of official right.
The Garcias claim, however, that a retrial on this theory would also violate their double jeopardy protections. Because they were acquitted on the bribery and gratuity counts, the Garcias argue, it is logical to interpret the jury’s silence on the theory of extortion under color of official right as an acquittal: “[i]t is hardly speculation to conclude that it is highly probable that the jury’s rejection of [the bribery and gratituty] charges, which required little proof beyond that of the Congressman's accepting the money in his official capacity, also caused it to reject the theory of extortion premised on the exact same conduct.” For this reason, the Garcias conclude, a retrial on this theory would violate the double jeopardy clause.
The Garcias’ argument has several defects. First, it stands in sharp contrast to the one they made at the time of their first appeal. They then asserted that their convictions should be reversed because there was ambiguity in determining which theory of extortion served as the basis for their convictions. In their brief at that time, they stated, “It is not possible to determine under which theory [of extortion] the jury convicted the defendants.” And at oral argument, when asked about which extortion theory had been the basis of the convictions, the Garcias’ lawyer stated: “We don’t know what the jury did.”
Now the Garcias press on us a position that is opposite to the one that they took on the first appeal. They argue that not only is it possible to determine under which theory of extortion the jury convicted them, but they confidently state that “[i]t is hardly speculation” to conclude that it is “highly probable” that the jury acquitted the Garcias of extortion under color of official right. But given their position at the first appeal, as well as our basis for reversing their convictions, their current argument borders on the frivolous. The jury’s basis for the extortion conviction cannot be “ambiguous” for purposes of reversal, but an uncontroverted, “implicit acquittal” for double jeopardy purposes.
Second, in considering the Garcias’ first appeal, we explicitly stated that if we were to decide that the evidence was sufficient for one of the two extortion theories, but insufficient for the other, “the verdict is ambiguous and a new trial must be granted.” Garcia, 907 F.2d at 381. Concluding that the verdict was ambiguous, we reversed because there was “no way of knowing on which theory of extortion the Garcias were convicted.” Id. at 385.
Third, in support of their position, the Garcias rely on Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), but this reliance is misplaced. In Green, the Supreme Court concluded that because the jury at the defendant’s first trial “had refused to find him guilty on [the contested] charge”, Green, 355 U.S. at 190, 78 S.Ct. at 225, despite having been “given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so”, id. at 191, 78 S.Ct. at 225, there had been an implicit acquittal. On this basis, the Court held that a retrial had violated the double jeopardy clause. Id. at 198, 78 S.Ct. at 229.
But the present case differs from Green in a significant way. There, the jury did not render a verdict on the disputed charge, causing the Court to construe its silence as an implicit acquittal. In the present case, however, the Garcias were convicted on the contested charge, and the only unanswered question was under which of two extortion theories the jury had based its conviction. And since the jury was never asked to state the basis for its conviction on the extortion charge, its silence on the question, unlike the silence of the jury in Green, signifies nothing. The conclusion that the Garcias ask us to accept regarding the extortion theory involves unacceptable speculation — which was precisely the reason that we reversed the Garcias’ convictions in the first place.
Fourth, an implicit acquittal may not be inferred, because the elements of the crime of extortion differ from those for the crimes of bribery and illegal gratuity. “At least formally, bribery contains an element that extortion does not: that money was offered with the intention of influencing the recipient.” United States v. Holzer, 840 F.2d 1343, 1351 (7th Cir.), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988). The same is also true of the charge of accepting an unlawful gratuity.
Fifth, it is neither unusual nor unacceptable for a jury to render inconsistent verdicts. See United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), United States v. Dotterweich, 320 U.S. 277, 279, 64 S.Ct. 134,135, 88 L.Ed. 48 (1943), Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 190, 76 L.Ed. 356 (1932), United States v. Chang An-Lo, 851 F.2d 547, 559-60 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493, 102 L.Ed.2d 530 (1988). Therefore, we conclude, as we did on the Garcias’ first appeal, that the verdict was ambiguous, and, in the words of the Garcias’ lawyer, “there was just no way to know” what the jury was thinking when it rendered its verdict.
In rejecting the Garcias’ motion, the district court applied the balancing test for implicit acquittals set out by us in United States ex rel. Jackson v. Follette, 462 F.2d 1041, 1049 (2d Cir.), cert. denied, 409 U.S. 1045, 93 S.Ct. 544, 34 L.Ed.2d 496 (1972). Under that test, in evaluating an implicit acquittal claim, the court “must strike a balance between fairness to society in obtaining a verdict on a proper indictment and the avoidance of undue vexation to the defendant by a retrial on both original charges * * *." Id. at 1049. However, even to reach “the point where we must weigh on a fine scale the competing interests of the public and [the defendant]”, id., we would first have to conclude that there is some basis for determining that there was an implicit acquittal, and as we have previously discussed, we find no basis for such a conclusion in this case.
Implicitly acknowledging this difficulty, the Garcias contend that in cases “where it has been impossible to determine whether the jury actually acquitted”, courts have “resorted to weighing the competing interests of the parties to determine whether retrial should be barred.” In arguing that the balancing test set out in Jackson should be extended beyond implicit acquittals to ambiguous jury decisions, the Garcias point to United States v. Stanley, 597 F.2d 866 (4th Cir.1979), a case in which the fourth circuit reversed on double jeopardy grounds a conviction based on a duplicitous count. Id. at 871-72. It is far from certain that the fourth circuit has interpreted Stanley as broadly as the Garcias do, cf. United States v. Head, 697 F.2d 1200, 1206 (4th Cir.1982), cert. denied, 462 U.S. 1132, 103 S.Ct. 3113, 77 L.Ed.2d 1367 (1983), and we are, of course, not bound by a holding of a sister circuit; furthermore, there was nothing duplicitous about the counts in the present case. The Garcias never claimed at trial that the counts were duplicitous, nor did they make this argument at the time of their first appeal. They now raise this issue in a footnote, and this feeble argument does not warrant discussion. For all of these reasons, Stanley does not apply.
Even if we were to conclude that there was an implicit acquittal in this case, the double jeopardy clause would not automatically bar reprosecution. As already discussed, in an implicit acquittal case, double jeopardy concerns are only implicated where there exists both the implication of an acquittal, and a conclusion that a retrial would not serve “ ‘the ends of public justice.’ ” Jackson, 462 F.2d at 1047 (citation omitted). In determining this latter question, one factor that should be considered is “what opportunity the defendant had to avoid the predicament by appropriate action.” Jackson, 462 F.2d at 1049. Had the Garcias desired, they could have resolved the ambiguity involving the extortion theories. After the jury rendered its verdicts, the district court asked the defendants if they had any other questions for the jury: when none was suggested, the jury was dismissed with the Garcias’ consent. Accordingly, the Garcias are incorrect in arguing that the government is to blame for the ambiguity created by the extortion theories, and there is no basis for concluding, as the Court did in Green, that “the jury was dismissed without returning any express verdict * * * and without [the defendant’s] consent.” Green, 355 U.S. at 191, 78 S.Ct. at 225.
Thus, here, as in so many other cases, the uncertainty over theories could have been clarified through the use of special interrogatories, which would have obviated the need for a retrial. Had the jury based its verdict on the “wrongful use of fear” theory only, then there would have been an implicit acquittal on the alternative theory and a retrial would have violated the double jeopardy clause. Had the jury clearly based its verdict on the theory of extortion under color of official right, or both theories, not only would there not have been a double jeopardy problem, but there would not even have been a reversal on the first appeal. Instead, we would have affirmed the convictions, because there was sufficient evidence to support a conviction for extortion under the official-right theory.
The Garcias correctly argue that they were under no obligation to request special interrogatories — but neither was the government. Our holding is simply that the Garcias cannot now complain of an ambiguity that they had the opportunity to clarify. Both sides ran a risk by not requesting interrogatories and thereby leaving the verdict ambiguous. The government’s risk, which matured to reality, was that if the evidence was insufficient to support both theories of extortion, the conviction would be reversed. The Garcias’ risk was that if such a reversal were obtained, the result would be not dismissal but a new trial on the remaining theory.
In denying the Garcias’ motion, the district court stated that “[t]he issue is not one of fault but one of opportunities missed and the consequences that flow from the omission of all parties.” We agree with the district court; we note, moreover, that in addition to the possibility that this was a situation of “opportunities missed”, there is the possibility that the Garcias may have had a strategic reason for leaving unresolved the ambiguity in the jury’s verdict. After all, the reversal of their convictions was based on this ambiguity. Having rejected the opportunity to clarify this ambiguity, and having secured a reversal on its strength, the Garcias cannot now disregard or deny its existence.
The order of the district court is affirmed; the mandate shall issue forthwith. | 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. | What party initiated the appeal? | [
"Original plaintiff",
"Original defendant",
"Federal agency representing plaintiff",
"Federal agency representing defendant",
"Intervenor",
"Not applicable",
"Not ascertained"
] | [
1
] | songer_initiate |
Iberia HAMPTON, Administratrix, etc. Verlina Brewer, etc., and Deborah Johnson et al., Plaintiffs-Appellants, v. The CITY OF CHICAGO, COOK COUNTY, ILLINOIS and Edward V. Hanrahan et al., Defendants-Appellees. Fannie Mae CLARK, Administratrix of the Estate of Mark Clark, Deceased, Plaintiff-Appellant, v. The CITY OF CHICAGO, and Edward V. Hanrahan et al., Defendants-Appellees.
No. 72-1277, 72-1300.
United States Court of Appeals, Seventh Circuit.
Argued April 6, 1973.
Decided Aug. 24, 1973.
Michael Deutsch, Jeffrey H. Haas, Chicago, 111., Arthur Kinoy, William J. Bender, Newark, N. J., David Scribner, New York City, Jonathan M. Hyman, Chicago, 111., for plaintiffs-appellants.
Bernard Carey, State’s Atty., Michael J. Goldstein, Charles A. Powell, Asst. State’s Attys., Richard L. Curry, Corp. Counsel, Gayle F. Haglund, Asst. Corp. Counsel, Chicago, 111., for defendants-ap-pellees. '
Before FAIRCHILD, STEVENS and SPRECHER, Circuit Judges.
STEVENS, Circuit Judge.
Plaintiffs allege that 14 Chicago police officers raided an apartment at 2337 West Monroe Street at 4:15 A.M. on December 4, 1969, for the purpose of killing Mark Clark and Fred Hampton and punishing seven other residents of the apartment because they were black and had exercised their First Amendment rights as members of the Black Panther Party. They also allege that 15 other defendants conspired to imprison and prosecute seven surviving occupants without any legal basis whatsoever. In four separate complaints, containing a total of 49 counts, plaintiffs claim actual and punitive damages under the Federal Civil Rights Act and Illinois law. Accepting the allegations as true, as the law requires, the district court denied motions to dismiss filed by the fourteen participating officers, but entered a final judgment dismissing all claims against the remaining 15 defendants. Plaintiffs appeal from that judgment.
The appellees include: (1) The State’s Attorney (Hanrahan) and three Assistant State’s Attorneys (Jalovec, So-rosky and Meltreger); (2) seven police officers who participated in certain investigations after the raid; (3) the Mayor of Chicago (Daley) and the Superintendent of Police (Conlisk); and (4) the City of Chicago and the County of Cook, municipal corporations. The district court held that the prosecutors were protected by quasi-judicial immunity, that the allegations against the ap-pellee police officers, Mayor Daley and Superintendent Conlisk were insufficient, and that the City and County were not “persons” within the meaning of the federal civil rights statutes and are immune from liability on a respondeat superior theory. In three of the cases jurisdiction stems from the federal questions which are raised; in the fourth, plaintiff Brewer is a citizen of Michigan and therefore diversity jurisdiction is also asserted.
For the purposes of this appeal we must assume that all of plaintiffs’ allegations are true. The test of sufficiency is whether “. . .it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80. Since different issues are raised with respect to different appellees, we consider the relevant allegations separately.
In view of the large number of claims asserted, and the fact that the district court order requires all pleadings to be amended, we limit our review, with respect to each appellee, to the question whether any sufficient claim for relief has been alleged. Since reversal as to any appellee on any theory renders the district court’s other rulings respecting that appellee subject to revision at any time prior to the conclusion of the entire trial, see Rule 54(b) Fed.R.Civ.P., it would be inappropriate to discuss the sufficiency of claims which may be amended and which need not be passed upon in order to determine this appeal.
1. Hanrahan and Jalovec. The Hampton complaint alleges that “under color of state search warrant” 14 police officers illegally entered the residence of Fred Hampton and, without provocation, fired over 90 bullets from machine guns, pistols, shotguns and carbines into the general living quarters, critically wounding Fred Hampton, who was otherwise physically abused and ultimately died. In addition, the officers allegedly stole or damaged Hampton’s personal property and destroyed evidence of their illegal conduct. These alleged acts were “perpetrated upon Fred Hampton, Chairman of the Illinois Black Panther Party, because of his beliefs, thoughts, words and associations” (|f 21) in order “to create fear and terror in the Black Community” (ff 23).
Hampton’s administratrix alleges that Hanrahan and Jalovec, with the 14 officers, planned the raid and agreed to use excessive and deadly force against Hampton and others in his residence. Their alleged purpose was to deprive him of his constitutional rights because of his race and his political beliefs.
The Clark complaint tersely alleges that the officers shot and killed Mark Clark without any authority of law and thereby denied him due process of law by imposing summary punishment of death upon him. It alleges that defendant Hanrahan, or his Assistant State’s Attorney, did “with specific intent, plan and execute the acts as alleged herein” (|f 16); further, that these acts were the result of a tacit understanding “to treat the deceased as they did because he was Black.”
The Johnson and Brewer complaints describe the raid in greater detail. They allege that four of the plaintiffs were wounded by gun fire and that all of them were physically and verbally abused and illegally arrested. Again the complaints allege that Hanrahan and Ja-lovec, as well as the 14 officers, “wilfully, maliciously, and with specific intent planned and executed the acts” recited in the complaints. These complaints also include a number of counts alleging state law claims of false imprisonment and malicious prosecution; these charges also involve defendants Hanra-han and Jalovec but will be discussed in Part 2 of this opinion.
As the district court correctly held, the allegations are plainly sufficient to state claims against the participating officers under the Federal Civil Rights Act, 42 U.S.C. §§ 1983 and 1985(3). It is equally clear that the allegations respecting the planning and execution of the raid by Hanrahan and Jalovec are sufficient unless their prosecutorial offices gave them immunity.
The district court erroneously relied on the Illinois Tort Immunity Act. Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. See McLaughlin v. Tilendis, 398 F.2d 287, 290 (7th Cir. 1968). The immunity claim raises a question of federal law.
The claim of immunity must not be confused with the defense of good faith. That defense is available to a person who, either because of his position or because of his conduct, is not immune from suit. See Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L. Ed.2d 288. In those situations in which immunity is properly claimed, the action is defeated at the outset. An essential purpose of the doctrine is to give the officer freedom to exercise his discretion and to perform his official duties without fear that his conduct will be called into question at an evidentiary hearing or subject him to personal liability.
The source of the immunity is found in common law doctrine recognized in federal judicial decisions. The Supreme Court has squarely held that the broad language of the Civil Rights Act of 1871 did not abolish this protection for legislators “acting in a field where legislators traditionally have power to act,” Tenney v. Brandhove, 341 U. S. 367, 379, 71 S.Ct. 783, 789, 95 L.Ed. 1019, or for judges for acts “within their judicial jurisdiction even when the judge is accused of acting maliciously and corruptly. . . . ” Pierson v. Ray, 386 U.S. 547, 554, 87 S. Ct. 1213, 1217, 1218, 18 L.Ed.2d 288. With respect to legislators and judges, it is clear that the doctrine may not be circumvented by allegations of improper motive; rather, the availability of immunity depends on the character of the conduct under attack.
The scope of immunity enjoyed by a state prosecutor has not yet been defined by the Supreme Court. We are nevertheless confident that at least some of his traditional functions must be immune from suit under § 1983. See Littleton v. Berbling, 468 F.2d 389, and cases cited at page 409 (7th Cir. 1972). In view of the overriding importance of federal law, the area of his protection cannot be either limited or expanded by a state’s statutory definition of his authority or responsibility; we therefore do not pause to review the respective parties’ analyses of the relevant Illinois statute. Nor do we attach any weight in analyzing the immunity question to the numerous ways in which the pleadings characterize the motivation of the prosecutor as wrongful — ranging from “sadistic” or “racial” to the more familiar “malicious” or “discriminatory.” The immunity doctrine would be of little value if such characterization of his motive could force the prosecutor to stand trial.
Prosecutorial conduct which traditionally has been treated as immune is often described as “quasi-judicial” as opposed to investigatory activities normally performed by laymen, such as police officers.- Judge Ely’s exposition of the distinction in Robichaud v. Ronan, 351 F.2d 533 (9th Cir. 1965) properly focuses on the character of the defendant’s conduct, rather than his alleged motivation:
“We believe, however, that when a prosecuting attorney acts in some ea-pacity other than his quasi-judicial capacity, then the reason for his immunity — integral relationship between his acts and the judicial process— ceases to exist. If he acts in the role of a policeman, then why should he not be liable, as is the policeman, if, in so acting, he has deprived the plaintiff of rights, privileges, or immunities secured by the Federal Constitution and laws? See Monroe v. Pape, supra, 365 U.S. 167, at 187, 81 S.Ct. 473, 5 L.Ed.2d 492; see also Schneider v. Shepherd, 192 Mich. 82, 158 N.W. 182, L.R.A.1916F, 399 (1916), cited in Yaselli [Yaselli v. Goff] 12 F.2d 396 at 405, 2 Cir. To us, it seems neither appropriate nor justifiable that, for the same act, immunity should protect the one, and not the other.” Id. at 536-537.
The conduct of Hanrahan and Jalovec in planning the raid may be described in various ways. At one extreme the complaints may be read to charge that they deliberately planned to have the police officers kill Hampton and Clark. Even without the allegation of improper political or racial motivation, it is plain that no immunity would apply under that reading. Regardless of his motives, the prosecutor certainly may not order subordinates to kill or to punish a free citizen without trial. Notwithstanding the tone of these complaints, however, appellants have not urged this extreme reading on the court; we therefore do not so interpret the allegations.
At the other extreme, defendants Hanrahan and Jalovec argue that they are charged with nothing more than the drafting of a search warrant which the raiding officers executed, an act which should be accepted as a traditional duty of the Attorney for the County. But we are persuaded that the “planning” allegations cannot fairly be read so narrowly. At the very least they charge that Hanrahan and Jalovec planned a raid in order to obtain evidence of criminal activity. Defendants argue that evidence gathering is so closely related to the presentation of evidence at trial that it should also be clothed with immunity. We find this argument unpersuasive. Even though defensible if conducted in good faith with probable cause, the State’s Attorney’s alleged participation in the planning and execution of a raid of this character has no greater claim to complete immunity than activities of police officers allegedly acting under his direction.
The district court erred in holding that the immunity doctrine requires dismissal, without trial, of plaintiffs’ charges against defendants Hanrahan and Jalovec.
2. Mulchrone, Ervanian, Meade, Ku-kowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger. The Johnson and Brewer complaints also allege that nine appellees, including seven police officers and two additional Assistant State’s Attorneys, joined with Hanrahan and Jalovec and the 14 participating officers in an extensive conspiracy to cause the false arrest and imprisonment of the surviving plaintiffs, the institution of an unfounded prosecution, and the concealment of the truth from the public.
Several of the plaintiffs were arrested on December 4, 1969, charged with attempted murder and aggravated battery, and imprisoned until December 21, 1969; their prosecutions were continued until May 8, 1970. They allege that there was no legal basis for the arrests, the charges, or the imprisonment. Quite plainly, if the allegations are true, § 1983 authorizes relief against each person who, acting under color of state law, is responsible for these wrongs. Moreover, the conspiracy which they allege is also actionable under § 1985(3). We are satisfied that the post-raid charges against Hanrahan, Jalovec and the 14 police officers are sufficient under both § 1983 and § 1985(3). The sufficiency of the charges against the other defendants is less clear.
The complaints charge that these defendants took certain action designed to conceal the fact that there was no basis for arresting, holding or prosecuting the plaintiffs, and that the continuing concealment aggravated plaintiffs’ injuries. Thus, Mulchrone and Ervanian, Supervising Officers of the Internal Inspections Division of the Chicago Police Department, allegedly limited the scope of their investigations in order to prevent information contradiciting the participating officers’ version of the raid from coming to light. Defendant Meade prepared a set of questions and answers for the officers that would avoid a fair test of their veracity. Defendants Sorosky and Meltreger helped to edit these questions and answers. Defendants Sadunas and Koludrovic gave false testimony at the coroner’s inquest. Sadunas allegedly gave testimony before the grand jury which he knew to be false. Defendants Purtell and Sadunas allegedly filed an incomplete and erroneous firearms report — again to corroborate the official, but false, version of the raid.
The complaints allege that as a direct result of the conspiracy, the unfounded prosecution was continued until May 8, 1970, and plaintiffs incurred expenses in preparing their defense. The conspiracy charge is somewhat tenuous since it merely alleges that “some or all” of the defendants participated, and the causal connection between the conduct of several appellees and the alleged injury to plaintiffs is doubtful at best. Nevertheless, serious allegations of conspiracy have been made, and matters such as the extent of injury and causal connection raise questions for the trier of fact. Since we cannot say with certainty that there is no possibility that any set of facts which might be proved in support of the allegations would entitle one or more of the plaintiffs to some relief, it was error for the district court to enter judgment finally disposing of the claims against these defendants.
If the alleged conspiracy did exist, as we must assume at this stage of the case, and if it did prolong a completely unfounded prosecution, plaintiffs are entitled to relief against each conspirator. The vague allegation that “some or all” of the defendants were participants does not justify requiring them all to stand trial. But if some are in fact liable, it would be unjust to permit a final judgment to exonerate all before trial, or even discovery, has commenced. We therefore conclude that even if the charges against certain of the defendants may have been properly dismissed because the allegations were deficient, it was error to enter final judgment in favor of Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sadunas, Sorosky and Meltreger at this stage of the case.
3. Daley and Conlisk. In the Johnson and Brewer complaints, plaintiffs claim that Mayor Daley and Superintendent Conlisk are liable pursuant to 42 U.S.C. § 1986 for the consequences of the alleged conspiracy. The charge, in essence, is that they had the power and authority to prevent a violation of § 1985(3) by the other defendants and failed to do so. Liability under § 1986, however, is dependent on proof of actual knowledge by a defendant of the wrongful conduct of his subordinates. In their brief, plaintiffs summarize the critical charges against Daley and Conlisk by stating that the complaints allege “that due to their positions of authority and responsibility, [they] knew of the conspiracy against the plaintiffs.” Brief for Appellants at 43. We agree with the district court that those allegations are insufficient.
4. City of Chicago and County of Cook. The several claims against the City and the County under the Civil Rights Act were properly dismissed because these defendants are not “persons” within the meaning of the statute. See Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). That decision makes it clear, however, that the district court had jurisdiction over Brewer’s state law claims against the County and presumably the City as well, on the basis of diversity of citizenship. 411 U.S. at 714-722, 93 S.Ct. 1785.
Those claims, asserted in Counts 13, 14 and 15 of the Brewer complaint, allege common law torts of assault and battery, false imprisonment, and malicious prosecution. The district court held that these claims against the County are barred by the Illinois Local Governmental and Governmental Employees Tort Immunity Act, Ill.Rev.Stat. Ch. 85, § 1-101 et seq. The district court relied primarily on Mills v. County of Winnebago, 104 Ill.App.2d 366, 244 N.E.2d 65 (2d Dist.1969). Subsequent to the decision of the district court, that case was overruled sub silentio by Arnolt v. Highland Park, 52 Ill.2d 27, 282 N.E.2d 144 (1972). See Krieger v. Carpentersville, 8 Ill.App.3d 243, 289 N.E.2d 481, 484 (2d Dist.1972). As we read those eases, it now seems quite clear that the Illinois statute does not immunize municipal corporations from liability if their agents are guilty of wilful and wanton misconduct. The allegations in the Brewer complaint against the City of Chicago and Cook County are therefore sufficient.
The district court dismissed parallel state law claims in the Johnson complaint on the same grounds. However, there was no diversity of citizenship in that case, and this court ruled in Wojtas v. Village of Niles, 334 F.2d 797 (7th Cir. 1964), that the doctrine of pendent jurisdiction does not permit joinder of claims against a new party. Therefore, the dismissal of the state law claims in the Johnson complaint should be for want of jurisdiction, and the lower court’s order is appropriately modified.
Insofar as the district court’s order of February 3, 1972, dismissed the charges against the City of Chicago and the County of Cook, it is reversed with respect to the Brewer complaint and affirmed as modified with respect to the Johnson complaint; insofar as it dismissed the charges against Mayor Daley and Superintendent Conlisk, it is affirmed ; insofar as it dismissed the charges against defendants Hanrahan, Jalovec, Mulchrone, Ervanian, Meade, Kukowinski, Purtell, Koludrovic, Sa-dunas, Sorosky and Meltreger, it is reversed. The case is remanded to the district court for further proceedings consistent with this opinion.
Reversed and remanded.
. With respect to the motions to strike and dismiss of defendants James Davis, Daniel Groth, Edward Garmody, John Ciszewski, Ray Broderick, George Jones, John Marusich, Lynwood Harris, Fred Howard, William Corbett, William Kelly, Philip Joseph, Joseph Gorman and Robert Hughes, the district court stated: “These police officers of the City of Chicago were detailed and/or on detached service with the Office of the Cook County State’s Attorney as State’s Attorney’s police or detail. This group of policemen is charged in all four of the consolidated complaints with actual on-tliescene participation in the raid on the Monroe Street apartment occupied by Fred A. Hampton, Mark Clark, Verlina Brewer, Deborah Johnson, Ronald Satchel, Harold Bell, Blair Anderson, Brenda Harris and Louis Truelock. Plaintiffs charge illegal and forced entry of the apartment and the unjustifiable use of excessive and deadly force by these officers acting under color of law. In the various complaints these policemen are charged with killing Fred Hampton in the presence of his fiance, Deborah Johnson, with killing Mark Clark, with wounding plaintiffs Satchel, Anderson and Harris, and with physically and verbally abusing and illegally arresting plaintiffs Brewer, Johnson, Satchel, Bell, Anderson, Harris and Truelock. They are also charged with conspiracy and conspiracy in connection with alleged and malicious prosecutions [sic]. These allegations and others are set forth in detail in the various complaints. As to certain of the allegations made in the complaints against these defendants, the court is of the opinion that there are questions of fact and of law that cannot be resolved except upon trial.” 339 F.Supp. 695, 700-701 (N.D.Ill.1972).
. The district court consolidated the four cases. His order of dismissal directed the plaintiffs to file amended complaints against the 14 participating officers and expressly determined that there was no just reason for delay in entering final judgment in favor of the 15 appellees; the order is therefore appealable. The appeals have been consolidated in this court.
. John Mulchrone, Harry Ervanian, John Meade, Robert Kukowinski, David Purtell, Charles Koludrovic and John Sadunas.
. Despite the City’s suggestion to the contrary, we must ignore what it describes as “several contradictory facts made a matter of public record” in the state criminal prosecution of defendant Hanrahan; cited at page four of the City’s brief as People v. Hanrahan, Circ. Ct. of Cook County No. 71 Cr. 1791. A finding in favor of defendants in that case is clearly no bar to this action since none of these plaintiffs is a party to that judgment.
. Satchel, Anderson, Harris and Brewer.
. Ill.Rev.Stat.1969, Ch. 85, § 1 — 101 et seq.
. “Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction, as this Court recognized when it adopted the doctrine, in Bradley v. Fisher, 13 Wall. 335, 20 L.Fd. 646 (1872). This immunity applies even when the judge is accused, of acting maliciously and corruptly, and it ‘is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.’ (Scott v. Stansfield, L.R. 3 Ex. 220, 223 (1868), quoted in Bradley v. Fisher, supra, 349, note, at 350.) It is a judge’s duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. I-Iis errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation.” Id. at 553-554, 87 S.Ct. at 1217-1218.
. See Ill.Rev.Stat. Ch. 14, § 5.
. The purpose of their review was allegedly to make certain that the officers would not give testimony inconsistent with previous official statements about the incident. The alleged conduct of Assistant State’s Attorneys Sorosky and Meltreger clearly exceeded the scope of their quasi-judicial immunity. For, in substance, plaintiffs allege the deliberate preparation of perjured testimony.
. Section 1986 provides :
“Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.”
. It also cited Fustin v. Board of Education of Community Unit District No. 2, 101 Ill. App.2d 113, 242 N.E.2d 308 (5th Dist.1968), and Woodman v. Litchfield Community School District, No. 12, 102 Ill.App.2d 330, 242 N.E.2d 780 (5th Dist.1968). | 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. | What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent? | [
"private business (including criminal enterprises)",
"private organization or association",
"federal government (including DC)",
"sub-state government (e.g., county, local, special district)",
"state government (includes territories & commonwealths)",
"government - level not ascertained",
"natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)",
"miscellaneous",
"not ascertained"
] | [
3
] | songer_genresp2 |
In the Matter of TIDEWATER MARINE TOWING, INC., et al., Plaintiffs, v. CURRAN-HOUSTON, INC., et al., Defendants, and DOW CHEMICAL CO., Defendant-Appellee, v. Debra Ann VICKNAIR, Claimant-Appellant.
No. 84-3616
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
April 2, 1986.
Gerald E. Meunier, New Orleans, La., for ■ Vicknair.
S. Gene Fendler, New Orleans, La., for Dow Chemical Co., Placid Oil & Getty Oil Refinfing Wanda Petroleum & Petroleum Properties, Inc.
Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.
OPINION
POLITZ, Circuit Judge:
The district court dismissed the wrongful death action of Debra Ann Vicknair, concluding that “there is no cause of action for death for a common-law spouse under the general maritime law.” For the reasons assigned herein, we affirm that dismissal.
FACTUAL BACKGROUND
On September 4, 1979, the propeller of the M/V WHITEFACE struck-a high pressure gas pipeline belonging to Dow Chemical Company, causing an explosion which killed deckhand Daniel Dupre. Invoking Fed.R.Civ.P. 9(h) and Supplemental Admiralty Rule F, the owners of the WHITE-FACE filed a petition for exoneration or limitation of liability in the court a quo. Various claims of survivors and personal representatives were consolidated, including the wrongful death claim of Debra Ann Vicknair, the common-law wife of Daniel Dupre. The district judge granted summary judgment to the vessel owners on the ground that Ms. Vicknair was not legally entitled to damages for the wrongful death of her common-law husband under either the Jones Act or general maritime law. Judgment was entered under Fed.R.Civ.P. 54(b), and we were asked on appeal whether a common-law wife residing in Louisiana had a wrongful death claim under the general maritime law. We declined to answer that question because Vicknair had not shown that she was the decedent’s personal representative, an essential requirement for one asserting a claim under the general maritime law. Tidewater Marine Towing, Inc. v. Dow Chemical Company, 689 F.2d 1251 (5th Cir.1982). We remanded to permit an opportunity for the claim to be properly presented to the court.
On remand, Vicknair’s claims were advanced by Dupre’s parents, his personal representatives. In a bifurcated bench trial limited to the liability issue, the court found Dow negligent but exonerated Dupre’s employer from liability, thereby negating the Jones Act claim. The trial court then addressed Vicknair’s death claim under the general maritime law. Observing that there is no federal or admiralty law on domestic relations, “an area traditionally left to the states,” and noting that Louisiana does not recognize the validity of the common-law union, the trial court concluded that if it were to apply the law of another state, it would find Vicknair to be a common-law wife, but as such, she could not assert a wrongful death claim under the general maritime law. This appeal followed, presenting for resolution the question whether Debra Ann Vicknair is entitled to a wrongful death claim, under the general maritime law, because of the death of Daniel Dupre. We conclude that she is not.
ANALYSIS
Under the admittedly appealing banner of maritime law uniformity and liberality, Vicknair suggests that a ruling should issue herein, declaring that a common-law wife, as defined by federal common law without reference to state laws, has a cause of action under the general maritime law for the wrongful death of her spouse. We decline that invitation.
The goal of uniformity in admiralty is moderated by legitimate concerns of federalism. See generally D. Robertson, Admiralty and Federalism (1970). We are aware of few instances in which state interests are accorded more deference by federal courts than in defining familial status. We must look to applicable state law to determine the legal relationship existing between Debra Ann Vicknair and Daniel Dupre at the time of his untimely death. Because of our conclusion on this initial issue, we do not reach and do not consider the correctness of the district court’s conclusion that “there is no cause of action for death for a common-law spouse under the general maritime law.” We limit our examination to inquiring whether Debra Ann Vicknair is entitled to claim the common-law marital status.
That threshold inquiry is precipitated by the decision of the Supreme Court in Moragne v. States Marine Lines, 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), overruling The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358 (1886), and holding that an action for death caused by violation of duties was cognizable under the general maritime law. The schedule of beneficiaries in three federal acts were submitted as the appropriate listing of persons who might assert the newly-pronounced wrongful death claim: the Death on the High Seas Act, 46 U.S.C. § 761, the Jones Act, 45 U.S.C. § 51 (provision of FELA incorporated by the Jones Act), and the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 902(16), 909, with the schedule in DOHSA being suggested as the most appropriate. The Court declined to specify the persons who might bring such a wrongful death action, or to rule whether that determination should be made without reference to the law of the involved states, but declared: “We do not determine this issue now, for we think its final resolution should await further sifting through the lower courts in future litigation.” 398 U.S. at 408, 90 S.Ct. at 1792.
A review of decisions involving the status determination under the three federal Acts does not reflect either an abrogation or avoidance of state law. We find, rather, only one case on all fours, a district court case holding that a female “friend” of the decedent was not a Moragne beneficiary because she had never become decedent’s “legal wife” under the laws of Virginia, which did not recognize the common-law spouse doctrine. Ford v. American Original Corp., 475 F.Supp. 10 (E.D.Va.1979).
DOHSA, suggested in Moragne as having the preferred listing of beneficiaries, provides that “the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued.” 46 U.S.C. § 761. The cases interpreting the definition of “wife” have implicitly relied upon state law. See, e.g., Lawson v. United States, 192 F.2d 479 (2d Cir.), cert. denied, 343 U.S. 904, 72 S.Ct. 635, 96 L.Ed. 1323 (1951) (holding that a putative wife was not a “legal” wife and therefore could not recover for wrongful death of her putative husband under DOHSA); Tetterton v. Arctic Tankers, Inc., 116 F.Supp. 429 (E.D.Pa.1953) (declaring that even if a valid common-law marriage had been perfected under the law of Florida, which recognized common-law marriages, the claimant still did not become a “legal wife” but was at most a common-law wife, and under the doctrine of Lawson the congressional intent of DOHSA was only to permit the recovery of wrongful death damages by “legal” spouses); McPherson v. S.S. South African Pioneer, 321 F.Supp. 42 (E.D.Va.1971) (following the doctrine of Lawson). See generally Annot., 15 ALR Fed. 834.
Similarly, the meanings of the LHWCA’s terms “wife of husband” and “widow or widower” have been determined by reference to state law. See, e.g., Ryan-Walsh Stevedoring Co. v. Trainer, 601 F.2d 1306, 1313 (5th Cir.1979) (“To determine whether a claimant is decedent’s ‘wife’ state law is dispositive because the LHWCA does not define this operative term.”); Powell v. Rogers, 496 F.2d 1248 (9th Cir.) (since the LHWCA does not define “wife,” state law must be used to give meaning to that term), cert, denied, 419 U.S. 1032, 95 S.Ct. 514, 42 L.Ed.2d 307 (1974); Marcus v. Director, Office of Workers’ Compensation Programs, 548 F.2d 1044 (D.C.Cir.1976) (since undefined by the LHWCA, local law gives meaning to term surviving “wife”); Texas Employers’ Ins. Ass’n v. Shea, 410 F.2d 56 (5th Cir.1969) (declaring that in defining the word child as a beneficiary in the LHWCA, one must look to whether the claimant is a “legitimate child” under the laws of the state of the claimant’s domicile).
The cases construing the Jones Act also look to state law for guidance in defining the beneficiaries. See, e.g., Murphy v. Houma Well Serv., 409 F.2d 804 (5th Cir.1969); Beebe v. Moormack Gulf Lines, 59 F.2d 319 (5th Cir.), cert. denied, 287 U.S. 597, 53 S.Ct. 22, 77 L.Ed. 520 (1932).
We are persuaded that state law furnishes the rule for decision of the status issue underlying the question posed in the instant case, namely, whether Debra Ann Vicknair may advance a wrongful death claim because of the wrongful death of Daniel Dupre. To do so she must have been his wife at the time of his death.
The facts of record clearly reflect that Debra Ann Vicknair and Daniel Dupre were never legally married in the traditional sense. Theirs was the typical common-law marital relationship, the entirety of which occurred in the State of Louisiana while they were residents and domiciliaries of that State. The validity of their marital relationship must be determined by reference to the laws of Louisiana. In Ex Parte Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 852-53, 34 L.Ed. 500 (1890), the Court declared: “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.” See also Goins v. Goins, 777 F.2d 1059 (5th Cir.1985); Spearman v. Spearman, 482 F.2d 1203 (5th Cir.1973). These and similar cases demonstrate that any marital relationship that exists between parties is created by the laws of the involved states.
The law of Louisiana is not in dispute. Although it is commonly believed that the Louisiana Civil Code flows from and is patterned entirely on the Code Napoleon, in reality a large part of Louisiana’s Code, including the section on domestic relations, derives from Spanish law through las Siete Partidas. See generally R. Kilbourne, A History of the Louisiana Civil Code: The Formative Years, 1803-1839 (1986) (forthcoming); Pascal, Sources of the Digest of 1808: A Reply to Professor Batiza, 46 Tul.L.Rev. 603 (1972). Louisiana does not recognize the validity of a common-law marriage. Louisiana Civil Code arts. 88, 90-98. Civil Code article 88, captioned “Validity of marriage,” is specific: “Such marriages only are recognized by law as are contracted between a man and a woman and solemnized according to the rules which the law prescribes.” The Louisiana Supreme Court early recognized the validity of a common-law marriage perfected in a state permitting them, but observed that “a common-law marriage cannot be contracted by virtue of the law of Louisiana.” Succession of Marinoni, 177 La. 592, 148 So. 888, 894 (1933) {on reh’g). There has been no variation from that rule which is typically stated as an absolute. “Louisiana Law does not recognize ‘common law marriage’....” Liberty Mut. Ins. Co. v. Caesar, 345 So.2d 64, 65 (La.App.) (footnote omitted), cert. denied, 347 So.2d 1118 (La.1977).
Since Debra Ann Vicknair is neither the legal nor common-law wife of Daniel Dupre, she has no standing to assert a claim under the general maritime law for damages resulting from his wrongful death. Accordingly, the judgment of the district court dismissing her wrongful death claim must be and is AFFIRMED.
. On appeal we may affirm the district court for reasons other than those it assigns in support of its ruling. Moody v. United. States, 783 F.2d 1244 (5th Cir.1986); Bickford v. International Speedway Corp., 654 F.2d 1028 (5th Cir.1981). | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals. | What is the disposition by the court of appeals of the decision of the court or agency below? | [
"stay, petition, or motion granted",
"affirmed; or affirmed and petition denied",
"reversed (include reversed & vacated)",
"reversed and remanded (or just remanded)",
"vacated and remanded (also set aside & remanded; modified and remanded)",
"affirmed in part and reversed in part (or modified or affirmed and modified)",
"affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded",
"vacated",
"petition denied or appeal dismissed",
"certification to another court",
"not ascertained"
] | [
1
] | songer_treat |
Nathaniel A. DENMAN, Appellant, v. Lawrence SHUBOW, Appellee.
No. 7302.
United States Court of Appeals First Circuit.
Heard June 4, 1969.
Decided June 26, 1969.
Nathaniel A. Denman, pro se.
Appellee not appearing.
Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.
PER CURIAM.
Plaintiff, Nathaniel Denman, appeals from an order of the district court denying reconsideration of a judgment dismissing his complaint for lack of prosecution. The complaint, an alleged civil rights action, was brought in December 1966. Throughout the proceedings in the district court and in this court plaintiff has appeared pro se. Also, he purports to represent his six minor children.
On March 25, 1968, the case was called for assignment for trial in the district court. Plaintiff was not present at the call and as a result the complaint was dismissed without prejudice. He claims that on the morning of the 25th his alarm clock did not operate because he forgot to pull the pin; that at the time he was under medication to make him drowsy and slept until about 12:30 p.m.; that almost immediately after realizing that he had overslept he called the district court to apprise the clerk of his predicament only to find that his case had already been dismissed. 3 It also appears that Denman was living alone on Cape Cod at the time, a considerable distance from the Federal Building in Boston. Notwithstanding this, he claims that he went to Boston without delay, tried to see the district judge to explain his absence at the call, but without success. Later that same afternoon (March 25) the instant long hand motion for reconsideration was filed. The record shows that the district court took no action on this motion until January 7, 1969.
Ordinarily in the absence of some good reason we would not be prone to excuse a party’s failure to answer a call for assignment of his case for trial. Here, however, there appear to be some mitigating circumstances. Giving the plaintiff the benefit of the doubt, we can understand why he overslept, particularly when he was taking prescribed medication to make him sleep. But after he finally awoke about mid-day he acted promptly to remedy the situation. The record does not indicate that he had been otherwise dilatory. Moreover, this is not a case where the witnesses had been summoned or where the trial was scheduled to begin that day. It was only the assignment day. There is no indication in the record that the opposing party was or would be seriously prejudiced by plaintiff’s failure to appear on time.
When the circumstances surrounding plaintiff’s tardiness were brought to the district court’s attention by the motion for reconsideration, we think the ends of justice would have been better served if the district court had taken the necessary steps to assign the case for trial on the merits. This pro se plaintiff would thereby have been assured of his day in court. Also, we are at a loss to understand why the district court dismissed the complaint so soon after the call was commenced and why some nine months were allowed to pass before the court took action on the motion for reconsideration. It is not as if this were a ease in which the complaint failed to state a cause of action. We have already held that it did. Case No. 7043, order of December 14, 1967. Under all the circumstances here we think the order denying reconsideration should be reversed and the case restored to the next assignment list.
Judgment will be entered vacating the order of the District Court, and remanding the ease with directions to place the case on the next assignment list.
. We note that plaintiff’s motion for leave to proceed in forma pauperis was allowed by the district court “only as to Nathaniel Denman pro se.” No appeal having been perfected on behalf of the minor children, they are not now before this court.
. The record indicates that the order granting dismissal of the complaint was entered at 10:20 a. m. on March 25, 1968. | 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. | Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant? | [
"No",
"Yes",
"Mixed answer",
"Issue not discussed"
] | [
1
] | songer_procedur |
SHEEHAN v. NIMS et al.
No. 230.
Circuit Court of Appeals, Second Circuit.
Feb. 11, 1935.
Fenton, Wing & Morse, of Rutland, Vt., for appellants.
Novak & Bloomer, of Rutland, Vt., and James Brownlee, of Springfield, Vt., for appellee.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
SWAN, Circuit Judge.
The plaintiff’s intestate met his death in an automobile accident which occurred on the main highway in Westminster, Vt., on November 2, 1932. He was riding in a Ford car operated by one Farrow, which collided with the left rear end of a White truck owned by the defendant Nims and operated by the defendant Macomber. At the time of the collision, the truck was stationary, headed north, and Farrow, who approached from the south, was attempting to pass it on the left; he did not turn out sufficiently to clear it. The truck stood well over to the right-hand side of the concrete pavement, and left substantially twelve feet of the pavement for the passage of other vehicles. It did not carry a light known as a “clearance lamp” which the Vermont statutes require such a truck to display on its left side when operated or at rest on a highway during the period from thirty minutes after sunset to thirty minutes before sunrise. P. L. Vt. 5120. The accident occurred between 5:30 and 6 p. m., which was concededly more than thirty minutes after sunset. However, it was not yet dark; it was twilight. Some drivers had not turned on their lights. The tail-light of the truck was out of order, and defendant Macomber testified that he had just hung near the left rear corner a lighted kerosene lantern with a red globe. Farrow, however, denied seeing any such light as he approached, and claimed that, when he discovered that the truck was stationary, he was too near it to avoid the collision. The case was submitted to the jury under instructions which informed them that the defendants’ admitted failure to display the statutory clearance light constituted negligence, and that the jury were to determine whether such negligence was a proximate cause of the collision and whether Sheehan, the decedent, was guilty of contributory negligence. They returned a verdict for the plaintiff.
The appellants, as their principal contention, assert that it was error for the District Judge to rule as a matter of law that they were negligent, instead of submitting that issue to the jury as he was requested to do. While it is true that in many states the violation of a standard of care prescribed by statute is held to be negligence per se, the law of Vermont is otherwise. Landry v. Hubert, 101 Vt. 111, 141 A. 593, 63 A. L. R. 396; Jasmin v. Parker, 102 Vt. 405, 148 A. 874; Steele v. Fuller, 104 Vt. 303, 158 A. 666; Rule v. Johnson, 104 Vt. 486, 162 A. 383; Sulham v. Bernasconi, 106 Vt. 192, 170 A. 913; Palmer v. Margeille (Vt.) 175 A. 31. On such a point the federal, court will follow the state law. Brown v. Walter, 62 F.(2d) 798,800 (C. C. A. 2). From the foregoing authorities relating to similar safety regulations it appears that a violation of the statute in question gives rise to a rebuttable presumption of negligence which may be overcome by proof of the attendant circumstances if they are sufficient to persuade the jury that a reasonable and prudent driver would have acted as did the person whose conduct is in question.
Counsel for the appellee contends that this is so only when the delinquent party is in a position to substitute his own judgment of what is prudent for that of the Legislature. Since the truck was not equipped with clearance lights, it is argued that the appellants were never able to exercise their judgment .as to when the lights should be displayed. This argument is specious. Admittedly, while on the highway the appellants had no choice other than to operate without lights; but they had the choice of not being on the highway at all, and their act in operating the truck at the particular time in question might well have involved a decision that to do so was not imprudent. The appellee further urges that not enough was shown to overcome the prima facie case made by proof of absence of a clearance light, and hence the peremptory instruction that negligence existed was justifiable. This contention we are unable to accept. Although it was more than thirty minutes after sunset, it was not yet dark. The truck was standing on a straight stretch of road where it could be expected to be seen from a considerable distance by any motorist approaching from the rear. According to the defendants’ testimony, a lighted red lantern was hung near to the left rear corner. The driver intended to leave the truck standing only so long as it should take him to walk three hundred feet to a garage and back again with a borrowed tool with which he would change the gasoline feed pipe from one tank to another so that he could resume his journey. Whether under- th,e same circumstance a reasonable and prudent driver would have done as he did, despite the prohibition of the statute, seems to us a jury question under the Vermont cases. In Rule v. Johnson, supra, there was no dispute concerning the violation of a regulation which forbade three persons to occupy the driver’s seat, but there was some evidence that the seat was not crowded nor the driver hin-' dered in his operation of the truck. The court held that it was for the jury to say whether the presumption of negligence had been rebutted, as well as whether the violation of the regulation was a proximate cause of the accident. In view of the state decisions, we feel constrained to reverse the judgment because the issue of negligence was not left to the jury, however improbable it may seem that the result would have been different had they passed upon it.
The defendants also charge error in the exclusion of testimony offered for the purpose of showing that other trucks of the same type as the defendants’ and used by the state highway department did not carry clearance lights- as prescribed by the statute. As this question may again arise on the new trial, it seems desirable to express our opinion upon it. The admissibility of this evidence seems to be urged on two unrelated grounds; the first being as an aid to construction of the statute. It is claimed that the statute was not intended to apply to the type of truck having a flat platform body, but only to the “moving-van” type. There is nothing in the words of the statute to justify the claim. Even if the language were ambiguous, we are aware of no rule of law which would permit the evidence as an aid to its construction. The second ground on which the evidence is claimed to be admissible is that it bears on the question of ordinary prudence. Although the Vermont cases say that the statutory standard of care is but an additional factor to be taken into consideration in measuring the defendants’ conduct by the rule of the prudent man in like circumstances, no case has been called to our attention which excuses noncompliance with the statute because others have also disregarded it A general custom to violate it would not prevent the defendants violation from making a prima facie case of negligence. We think the District Judge rightly excluded the testimony.
None of the errors alleged in respect to the admission of evidence presents any question worthy of discussion. Nor need we determine whether the defendants’ motion for a mistrial and continuance should have been granted because of inquiries addressed to the júrymen on the voir dire respecting the Merchants’ Mutual Insurance Company. In Brown v. Walter, 62 F.(2d) 798 (C. C. A. 2), there was. presented an obvious effort to prejudice the jury by repeated references to insurance. In the present case the subject was brought up by the volunteered remark of a juryman. While it would seem that the interests of the plaintiff could have been protected without going so far as to refer to a particular corporation by name, we need not now decide whether the questions asked were of themselves enough as to require upsetting the verdict. The situation is not likely to be repeated on the next trial.
The alleged error in denying the defendants’ motion to set aside the verdict and grant a new trial is not a ground which can be taken in an appeal in the federal courts. Miller v. Maryland Casualty Co., 40 F.(2d) 463 (C. C. A. 2).
For the error in respect to the charge to the jury, the judgment is reversed, and the cause remanded for a new trial. | 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. | What is the total number of respondents in the case? Answer with a number. | [] | [
99
] | songer_numresp |
Dennis Wayne WILLIAMS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 86-1087.
United States Court of Appeals, Seventh Circuit.
Argued June 10, 1986.
Decided Nov. 24, 1986.
R. Jeffrey Wagner, Asst. U.S. Atty., Joseph P. Stadtmueller, U.S. Atty., Milwaukee, Wis., for respondent-appellee.
Richard L. Zaffiro, West Allis, Wis., for petitioner-appellant.
Before WOOD, CUDAHY, and FLAUM, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
Petitioner-appellant Dennis Wayne Williams appeals the district court’s denial of his motion for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2255 (1982). Williams alleges that he was denied effective assistance of counsel when his court-appointed trial attorney failed to advise him that he would be required to serve at least 100 months in jail if he pleaded guilty and when his attorney failed to assist him in filing a motion for a sentence reduction pursuant to Fed.R.Crim.P. 35(b). Williams also claims that he is entitled to habeas relief on grounds that his due process rights were violated by the presence of errors in his presentence report, that his sentence is violative of the eighth amendment, and that his conviction violates the prohibition against double jeopardy. We affirm.
I.
Pursuant to a plea agreement, Williams pled guilty to three counts of a four-count indictment. Williams was indicted as a result of an offer he and a codefendant made to sell a machine gun and silencer to federal undercover agents. Count I charged Williams with conspiracy to engage in the business of dealing in firearms without having registered to do so and without having paid the special occupational tax as required by law in violation of 18 U.S.C. § 371 (1982); Count II involved a charge of possession of an unregistered machine gun in contravention of 26 U.S.C. § 5861(d) (1982); and Count IV charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1) (1982 & Supp. II 1984). Count III of the indictment was dismissed in accordance with the plea agreement. On September 14,1983, Williams, who was represented by counsel prior to and at the time of sentencing, was sentenced to three years on Count I, ten years on Count II to run consecutively to the three years on Count I, and two years on Count IV to run concurrently with the sentence on Count II. Williams received, in effect, a sentence of thirteen years which was well within the maximum seventeen-year sentence the district court could have imposed.
On January 16, 1984, 124 days after sentencing, Williams, who claims that his trial counsel ended his representation after the imposition of sentence, filed a pro se motion pursuant to Fed.R.Crim.P. 35(b) seeking a reduction in his sentence alleging that it was “unduly harsh and severe” and that new circumstances “would greatly mitigate the punishment in this case.” On February 7, 1984, the district court denied Williams’s Rule 35(b) motion concluding that not only was the sentence initially imposed appropriate but also that the court lacked jurisdiction to consider the motion since it was not filed within the 120-day period specified by Rule 35(b). After new counsel was appointed for Williams, he appealed the trial court’s decision and we affirmed in an unpublished order. Apart from his Rule 35(b) motion, Williams presented no other direct challenge to his sentence.
Williams subsequently sought relief pursuant to 28 U.S.C. § 2255 alleging various constitutional infirmities. The district court denied the motion for habeas relief on the merits and Williams appeals.
II.
The government contends that our decision in Norris v. United States, 687 F.2d 899 (7th Cir.1982) (Cudahy, J., concurring, and Wood, Jr., J., with whom Bauer, J., joins dissenting from decision not to hear the case en banc), is dispositive of the issues Williams raises. Cf. United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc). In Norris, we ruled that a failure to raise constitutional challenges to a conviction on direct appeal would bar a petitioner from raising the same issues in a section 2255 proceeding, absent a showing of good cause for and prejudice from the failure to appeal. 687 F.2d at 903-04. In so doing, Judge Pos-ner, writing for the court, rejected the argument that the deliberate bypass test was still applicable in such cases. In Kaufman v. United States, 394 U.S. 217, 220 n. 3, 89 S.Ct. 1068, 1070 n. 3, 22 L.Ed.2d 227 (1969), the Supreme Court had noted that a failure to raise a constitutional issue on direct appeal was not fatal to a subsequent section 2255 action unless the petitioner had deliberately bypassed the appellate process.
Relying upon, among other cases, United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the Norris court concluded that the Supreme Court had subsequently departed from the deliberate bypass test and had adopted the less stringent cause and prejudice standard. 687 F.2d at 903-04. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). In Frady, the Supreme Court held that a defendant’s failure to object to an erroneous jury instruction either at trial or on direct appeal barred him from raising the issue in a section 2255 petition absent a showing of good cause and prejudice. 456 U.S. at 167, 102 S.Ct. at 1594. The Court noted that the defendant in that case had failed to object at trial even though under Fed.R.Crim.P. 30 he was required to raise a contemporaneous objection to any erroneous jury instruction. Id. at 162, 102 S.Ct. at 159. Moreover, the Court rejected the defendant’s argument that the “plain error” standard of Fed.R. Crim.P. 52(b) was applicable in his case as opposed to the cause and prejudice standard. Id. at 164, 102 S.Ct. at 1592. As the Court noted, “[bjecause it was intended for use on direct appeal ... the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” Id.
In the present case, with the decisions in Frady and Norris in mind, we must determine whether the government is correct in arguing that Williams has waived the issues he now raises. The context of this case requires that we look at two different opportunities Williams had to challenge his sentence. One opportunity was the Rule 35 proceeding. As noted above, Williams filed a Rule 35(b) motion pro se, and thereafter, with the assistance of his second court-appointed attorney, unsuccessfully appealed the district court’s denial of his motion. Williams also could have appealed his sentence directly from the district court. Under Fed.R.App.P. 4(b), a defendant has ten days after the imposition of sentence in which to file a notice of appeal in that court. It is undisputed, however, that Williams never challenged the district court’s sentencing decision on direct appeal. Under Norris, if either of these two options provided Williams with an opportunity to raise the issues he now poses and he failed to do so, absent a showing of cause and prejudice excusing this failure, the issues would seemingly be deemed waived for purposes of his section 2255 action.
Although Williams concedes the applicability of Norris, he contends that he can show the necessary cause and prejudice to overcome this barrier to his habeas action. Before reaching Williams’s claim that he is able to satisfy the cause and prejudice standard, however, we must first ascertain whether Williams is correct in conceding that Norris controls in this case. Our own research indicates that at least two other circuits have apparently ruled that application of the Norris standard to Williams’s case would be inappropriate. In United States v. Corsentino, 685 F.2d 48 (2d Cir.1982), for example, the Second Circuit held that a petitioner’s failure to raise his claim that the government violated its plea agreement either on direct appeal or in a Rule 35 proceeding did not bar the petitioner from raising the same issue in a habeas petition. Id. at 50-51. In Corsentino, the petitioner pled guilty and the government thereafter allegedly failed to comply with the plea bargain requiring that it “take no position” at the sentencing hearing. In that case, the district court denied the petitioner ha-beas relief noting that he had failed to object to the violation of the plea agreement either at the sentencing hearing or in his Rule 35(b) motion. The Second Circuit reversed and in so doing rejected the government’s waiver argument based on Frady, supra. The court found that unlike Frady where a prompt objection would have given the trial court an opportunity to give the jury a correct supplemental instruction, the opportunity to make such an objection in the post-trial period when the government allegedly violates a plea agreement is not clearly defined. Id. at 50-51. Secondly, even if the petitioner could have raised the issue on direct appeal, the court concluded that “this is not the traditional appellate review after trial contemplated by Frady.” Id. at 51. Finally, the court found that the petitioner’s Rule 35 motion, “properly seeking an exercise of the District Court’s discretion to reduce his sentence, is not a waiver of defects that are normally presented upon a collateral attack.” Id. The court accordingly went on to consider the petitioner’s claim that the government violated his plea agreement on its merits.
Similarly, in United States v. Baylin, 696 F.2d 1030 (3d Cir.1982), the Third Circuit held that a petitioner’s failure to object to the improper inclusion of certain material in his presentence report prior to sentencing did not bar him from raising that issue in a section 2255 proceeding. In rejecting the government’s argument premised on Fra-dy that the petitioner had waived his claim, the court noted:
The Court’s concern in Frady was to assure that criminal judgments would not be perpetually open to revision by collateral attack; the Court therefore mandated a more stringent standard for section 2255 motions than is necessary to raise a challenge on direct appeal. We think the Frady rationale is inapplicable to this case for two reasons. First, [the petitioner] here challenges the imposition of a sentence after a guilty plea — a challenge for which a section 2255 proceeding is analogous to a direct appeal. This was not [the petitioner’s] “second appeal,” but his first, and the finality considerations motivating Frady and its predecessors do not apply. Second, sentencing procedures, and especially sentencing hearings, need not conform to the procedural requirements that apply during a trial. During trial, the court and opposing parties are justified in expecting litigants to raise their objections at the procedurally correct moment, and in assuming that objections not so raised have been waived. The rules are certainly not so well marked at the sentencing stage of criminal proceedings. For both of the above reasons, we conclude that there was no jurisdictional bar to the district court’s having entertained [the petitioner’s] claim.
Id. at 1036 (citation omitted). See Diggs v. United States, 740 F.2d 239, 243-45 (3d Cir.1984) (reaffirming Baylin in light of result reached in Norris).
We recognize that applying Norris to Williams’s case would be contrary to the aforementioned decisions. Nonetheless, we also note that, to some extent, Norris is already in conflict with Corsentino, Bay-lin, and Diggs. In those cases, the Second and Third Circuits distinguished Frady in part on grounds that Fed.R.Crim.P. 30 required the defendant in Frady to raise a contemporaneous objection to the erroneous jury instruction. Conversely, the courts noted that no rule of criminal procedure required a contemporaneous objection to the alleged post-trial errors raised in Corsentino, Baylin, and Diggs and that therefore the rationale of Frady was inapplicable in such cases. But cf. Gammarano v. United States, 732 F.2d 273, 278 (2d Cir.1984) (holding that a defendant’s failure to object to the government’s failure to comply with a plea agreement, even in the absence of a rule requiring contemporaneous objection, can constitute a waiver of that issue in circumstances where “ ‘the impending violation of a plea agreement may be so clearly anticipated that a defendant’s failure to object ... can fairly be taken to be a waiver of compliance with the agreement.’ ”) (quoting Corsentino, 685 F.2d at 50). Contrary to these decisions, however, we have already noted that Norris is not “limited to situations in which the federal criminal defendant failed to honor an established rule requiring a contemporaneous objection.” United States v. Griffin, 765 F.2d 677, 680 (7th Cir.1985).
We also do not share with the Second and Third Circuits the concern that it is necessarily unclear when a defendant may raise an objection in the post-trial period. For example, with respect to errors or improper inclusions in a presentence report which the Baylin court faced, Fed.R. Crim.P. 32(c)(3)(D) provides an opportunity for suspected errors to be pointed out to the sentencing court. A finding must then be made with respect to these alleged errors or the court must conclude that a finding is not necessary because the disputed matter will not be considered in sentencing. See also Rule 32(c)(3)(A) (“The court shall afford the defendant and his counsel an opportunity to comment on the report and, in the discretion of the court, to introduce testimony or other information relating to any alleged factual inaccuracy contained in it.”). Far from being unclear, the time for objecting to errors or improper inclusions in presentence reports is unambiguously expressed in the rules of criminal procedure. See Diggs, 740 F.2d at 244 n. 6 (court noting that its comments in Baylin “concerning the relative vagueness of the rules at the sentencing stage of criminal proceedings might be argued to relate more to the existence of cause for a procedural default than to the applicability vel non of the cause and prejudice standard”).
Furthermore, we reject the notion that when a defendant pleads guilty his first appeal, for all practical purposes, is a section 2255 proceeding. See United States v. Angelos, 763 F.2d 859, 860-61 (7th Cir.1985). There is no doubt that a defendant who pleads guilty is free to pursue a direct appeal of his sentence. E.g., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Burruezo, 704 F.2d 33 (2d Cir.1983). We recognize that Fed.R. Crim.P. 32(a)(2) requires the trial court to advise a defendant who was tried and convicted after pleading not guilty of his right to appeal whereas there is “no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty....” Nonetheless, simply because the trial judge is not obligated to inform a defendant of his right to appeal does not mean that the defendant should be excused from failing to exercise that right. This conclusion would seem to be consistent with the Supreme Court’s admonition in Frady that a collateral challenge is not intended as a substitute for a direct appeal. 456 U.S. at 165, 102 S.Ct. at 1593. Moreover, apart from a direct appeal, the defendant is also free to bring a Rule 35 motion and appeal any adverse ruling on the motion by the district court. See Diggs, 740 F.2d at 244 n. 6 (“[D]eci-sions under rule 35 are generally subject to appeal; hence, arguably our statements [in Baylin ] that the section 2255 amounted to [the petitioner’s] first appeal may have too swiftly jumped over the question of whether [the petitioner] committed a procedural default subject to the cause and prejudice standard of Frady when he failed to take an appeal from the decision concerning inclusion of the allegedly improper material in the pre-sentence report.”). For the reasons noted above, and because defendants who plead guilty have an opportunity to challenge their sentences directly and in Rule 35 proceedings, we hold that the Norris cause and prejudice standard is applicable when these defendants attack their sentences by raising new issues for the first time in a section 2255 proceeding. With this in mind, we begin with an examination of Williams’s Rule 35(b) appeal to determine whether he has waived any or all of the issues posed in his habeas petition.
The government contends, among other things, that Williams’s failure to raise on his Rule 35(b) appeal his claim that he was entitled to counsel at the Rule 35 stage constitutes a waiver of that issue. Although Rule 35(b) is intended to deal with issues raised in the sentencing process, see Hill v. United States, 368 U.S. 424, 430, 82 S.Ct. 468, 472, 7 L.Ed.2d 417 (1962) (Rule 35 was not intended to be used as a means “to reexamine errors occurring at the trial or other proceedings prior to the imposition of sentence”) (footnote omitted); 8A J. Moore, Moore’s Federal Practice 1135.02[1] (2d ed. 1986) (a Rule 35(b) motion “is essentially a plea for leniency addressed to the sound discretion of the district court which asks the court to reconsider the sentence already imposed in light of further information received in the time elapsed since the original sentencing”), Williams contends that his failure to raise the counsel issue on appeal is excusable. He maintains that his Rule 35(b) appeal, at which he was represented by his second court-appointed attorney, was limited solely to the question of the timeliness of his motion and did not extend to the issue of whether a defendant is constitutionally entitled to counsel’s assistance in preparing such a motion. We find Williams’s argument unpersuasive.
First, there is nothing in the record which would indicate that Williams was dissatisfied with his court-appointed trial attorney who Williams claims abandoned him. Certainly, when he filed his pro se motion, Williams was aware that he was proceeding without counsel. Yet he never indicated to anyone, including the trial judge, his displeasure with his first lawyer. In fact, Williams failed to inform the trial judge that his counsel had ended his representation and at no time did he ask the court to appoint new counsel. Although criminal defendants are accorded the right to counsel at critical stages in the proceedings against them, see Love v. Young, 781 F.2d 1307, 1316 (7th Cir.1986), they must shoulder at least some responsibility in the attorney-client relationship and indicate to the court when, in their minds, appointed lawyers are either not doing their jobs or have ceased their representation entirely. Without such a minimal duty, defendants would be free to remain silent throughout the proceedings and only later challenge their attorneys’ actions with direct and collateral attacks upon their convictions and sentences. By putting some minimal responsibility on the defendant to at least let somebody know in a timely manner what his counsel representation problem may be, it is not intended in any way to minimize the heavy responsibility that is imposed on trial counsel. Once a criminal defendant has been convicted and sentenced, or judgment has been entered in a federal habeas case, counsel may withdraw only upon the approval of this court. United States v. Flowers, 789 F.2d 569 (7th Cir.1986). We will not permit defense counsel “to bail out on appeal while leaving their clients in the lurch.” Id. at 570. Had we known that Williams had been deserted by his counsel as alleged, this problem would not now be arising as an attack on his conviction. Williams, however, is no legal novice. His criminal record includes, among other things, a second-degree murder conviction in Wisconsin. Indeed, he was on parole from that conviction at the time he was arrested for the weapons charges that form the basis of the present case. After reviewing his record, it becomes evident that Williams, who not only attended college, but is experienced in the criminal justice system should have and could have spoken out earlier about his alleged counsel problem.
Moreover, even if he cannot be faulted for not seeking counsel’s assistance in preparing the motion, once he had court-appointed counsel on his Rule 35(b) appeal, we would have expected Williams to argue that his failure to meet the filing deadline was a direct result of his being deprived of counsel. Far from being unrelated to the timeliness issue, Williams’s right to counsel argument could and should have been raised on the appeal from the district court’s denial of his Rule 35(b) motion. The error in Williams’s argument to the contrary is illustrated by Norris which was an attempt by this court to limit piecemeal attacks on convictions. The question is not whether Williams raised the issue, but rather whether he could have and simply failed without cause to do so. If this were not the case, litigants would be free to keep issues in reserve while presenting challenges to their convictions and sentences one issue at a time. “Especially at a time when the federal courts are drowning in litigation, the presumption is against piecemeal litigation and it is the movant’s burden to overcome the presumption by showing that he has a good reason for proceeding in this manner.” Norris, 687 F.2d at 903-04. In our view, Williams has failed to make this necessary showing of cause. Accordingly, we conclude that he waived his claim alleging unconstitutional deprivation of counsel at the Rule 35 proceeding.
We also find that Williams waived his claims alleging that his sentence violates the eighth amendment and that his convictions under Counts II and IV violate the prohibition against double jeopardy. Even if Williams is not faulted for failing to raise these issues in his Rule 35 proceeding, see Hill v. United States, supra, the record indicates that, even before he filed a motion seeking a sentence reduction, Williams failed to present these issues on direct appeal from the sentence imposed by the district court. See United States v. McCoy, 770 F.2d 647, 649 (7th Cir.1985) (noting that courts of appeal have jurisdiction to review a federal sentence resulting from a guilty plea “if the sentencing judge ‘relied on improper or unreliable information in exercising his discretion or fails to exercise any discretion at all’ ” or if the sentence “allegedly violate[s] the defendant’s constitutional rights.”) (quoting United States v. Main, 598 F.2d 1086, 1094 (7th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 301, 62 L.Ed.2d 311 (1979)). As we noted earlier, under Norris this failure, absent a showing of good cause and prejudice, bars Williams from raising the same issues in a habeas action under section 2255.
For his part, Williams fails to put forth any reason as justification for not raising these issues on direct appeal. At oral argument, his appellate counsel indicated that after the court imposed sentence Williams’s trial attorney allegedly discontinued his representation. Nonetheless, Williams does not attempt to explain nor does the record indicate why a notice of appeal from the district court’s sentencing decision was not filed. Although it is claimed that his appointed trial counsel ended his representation before the 120-day period for filing a Rule 35(b) motion had expired, there is nothing in the record indicating that Williams was not represented during the ten days subsequent to his sentencing when a notice of appeal pursuant to Fed.R.App.P. 4(b) should have been filed. Even if he was not represented by counsel during this time, Williams has given us no reason to believe that the decision to forego an appeal was anything other than one that he reached in conjunction with his trial attorney prior to or immediately after sentencing. In short, Williams fails to give any reason whatsoever for his failure to appeal and we refuse to speculate on what that reason could be. See Qualls v. United States, 774 F.2d 850, 851 (7th Cir.1985) (“Although it could be argued that some of the petitioner’s claims could not have been raised on direct appeal, and thus that his failure to take such an appeal should not preclude our review here, petitioner does not raise this issue on appeal .... Accordingly, [the petitioner] has waived the issue for appeal.”). Without some showing of cause, we are forced to find that Williams’s failure to raise on direct appeal his claims that his sentence violated both the eighth amendment and the prohibition against double jeopardy constituted a waiver and bars him from raising those issues now.
Next, we consider Williams’s claim that he was denied due process because of errors in.his presentence report. Although Williams couches his argument in due process terms, the gist of his claim is that his trial attorney failed to1 object to the inclusion of the alleged errors in the presen-tence report at the sentencing hearing. In essence, his argument is that his trial counsel provided ineffective assistance. With his argument in the proper perspective, it could be contested that Williams has not waived the ineffective assistance claim since arguably he should not be held accountable for his trial counsel’s failure to raise an issue on direct appeal which challenges that counsel’s own performance. In Norris, for example, we noted that in certain cases incompetence of counsel in the first appeal could constitute sufficient cause so that a defendant would not be barred from raising an issue in a section 2255 action. 687 F.2d at 903. Reliance on this ground would not, of course, excuse Williams’s failure to bring the alleged errors to the district court’s attention either in his Rule 35(b) motion or at any other time. Ordinarily, we would have expected Williams to raise this issue at the very latest in his motion for a sentence reduction. Nonetheless, given the unique factual circumstances of this case and the fact that his Rule 35(b) appeal related primarily to the 120-day filing deadline, Williams could also arguably be excused for failing to raise the alleged errors in his sentence reduction motion. This is of little consequence, however. Even if we assume Williams can establish cause either by showing that his trial attorney’s failure to bring an appeal on his behalf alleging ineffective assistance constituted incompetence or that Williams’s failure to raise the alleged errors in his Rule 35(b) proceeding was excusable, he is unable to show prejudice. See Griffin, 765 F.2d at 682 (“When the cause and prejudice standard is applied, the defendant must satisfy both the cause and prejudice elements.”).
Williams argues that the presentence report indicated, and his trial attorney had stated, that Williams had a continuing drug problem. Williams maintains, to the contrary, that his drug problem was under control and that this false information resulted in his receiving a harsher sentence. It is undisputed that Williams failed to object to his trial attorney’s characterization of his drug problem. In fact, the attorney referred to Williams’s problem in an attempt to obtain a less severe sentence for his client. Moreover, during the course of the sentencing hearing, Williams correctly informed the trial judge that his drug problem was under control and had been for ten years. Additionally, the trial judge stated that in giving Williams a thirteen-year sentence he had relied primarily on the defendant’s “lengthy criminal record” as opposed to “his history of drug use.” Mem.Op. at 4. In these circumstances, even if we assume that Williams could establish good cause for not raising the issue of the presentence report errors either on direct appeal or in the Rule 35(b) proceeding, he is clearly unable to show that he was prejudiced by that action. Accordingly, we conclude that the issue is waived for purposes of the present habeas action.
Finally, Williams argues that he was denied effective assistance of counsel because his trial attorney failed to advise him that he would be required to serve at least 100 months in prison if he pled guilty. In essence, what Williams is challenging is the voluntariness of his guilty plea. As we noted above, because it involves counsel’s conduct, it is arguable that there is good cause for Williams’s failure to raise this issue on direct appeal. Similarly, also for the reasons noted above, Williams could arguably be excused for not raising this issue in his Rule 35(b) motion. However, like his claim based on errors in the presen-tence report, even if we assume the existence of good cause, Williams has failed to establish that he was prejudiced by his failure to raise the issue. Williams concedes that at his sentencing hearing he was fully advised of the maximum penalties he could receive by pleading guilty. Furthermore, Williams acknowledged at that hearing that there were no sentencing guarantees being made as a result of his guilty plea. The trial judge carefully explained to Williams that he was not obligated to accept the prosecution’s sentencing recommendations. Nonetheless, Williams stated that he had chosen to plead guilty and that the decision to do so had been voluntarily made. After reviewing the record, we believe that the ramifications of Williams’s plea were fully and sufficiently explained to him. Under these circumstances, we conclude that Williams was not prejudiced as a result of his challenge to his guilty plea not being raised on direct appeal or in the Rule 35(b) proceeding. We accordingly find that the claim was waived for purposes of the present section 2255 action.
III.
For the reasons stated above, the decision of the district court denying habeas relief is
Affirmed.
. In pertinent part 28 U.S.C. § 2255 (1982) provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
. Rule 35(b) provides:
Reduction of Sentence. A motion to reduce a sentence may be made, or the court may reduce a sentence without motion, within 120 days after the sentence is imposed or probation is revoked, or within 120 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 120 days after the entry of any order or judgment of the Supreme Court denying review of, or having the effect of upholding, a judgment of conviction or probation revocation. The court shall determine the motion within a reasonable time. Changing a sentence from a sentence of incarceration to a grant of probation shall constitute a permissible reduction of sentence under this subdivision.
Effective November 1, 1987, Rule 35 in its entirety will be amended to provide as follows:
(a) Correction of Sentence on Remand. The court shall correct a sentence that is determined on appeal under 18 U.S.C. 3742 to have been imposed in violation of law, to have been imposed as a result of an incorrect application of the sentencing guidelines, or to be unreasonable, upon remand of the case to the court—
(1) for imposition of a sentence in accord with the findings of the court of appeals; or
(2) for further sentencing proceedings if, after such proceedings, the court determines that the original sentence was incorrect.
(b) Correction of Sentence for Changed Circumstances. The court, on motion of the Government, may within one year after the imposition of a sentence, lower a sentence to reflect a defendant’s subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense, to the extent that such assistance is a factor in applicable guidelines or policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a).
. In Norris, among other issues, the petitioner raised three constitutional challenges to his conviction: (1) that the trial judge was biased; (2) that the jury was racially prejudiced; and (3) that a trial witness was induced to identify the petitioner “by an unduly suggestive photographic exhibit that had been prepared by the prosecution.” Id. at 901. After his trial, the petitioner in Norris did appeal his conviction directly to this court. However, on direct appeal, he failed to raise the three issues mentioned above.
.In pertinent part Rule 30 provides:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection.
. Rule 52(b) provides:
Plain Error. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.
. It is similarly uncontested that Williams never challenged his sentence either by objecting at the sentencing hearing or by filing a post-trial motion.
. Of course, our holding is not necessarily a bar to a petitioner seeking habeas relief where, for example, new facts surface after the time for bringing a direct appeal or for filing a Rule 35(b) motion has expired. In such cases, under the appropriate circumstances, a showing of cause and prejudice would allow the petitioner to overcome the threshold imposed by Norris. Cf. United States v. Johnson, 607 F.Supp. 258, 263 (N.D.Ill.1985) (“While a trial error is usually known at trial or shortly thereafter, an error in a presentence report which defendant alleges he never saw or had an opportunity to see might remain unknown to the defendant long after both sentencing and the time for appeal.... [T]he Court finds it difficult to find waiver where a [Fed.R.Crim.P. 32] violation has been alleged and where there is no evidence that defendant saw the presentence report (in order to discover the factual inaccuracies claimed to be waived).").
. Williams premises his eighth amendment claim on grounds that his sentence is unconstitutionally excessive and disproportionate to the acts he committed. Our review of the record indicates that Williams’s claim, even if we were to consider it on the merits, is unfounded. It is well-established that the district court is accorded wide discretion in making sentencing decisions. As a result, so long as the sentence imposed by the court is within statutory limits and is not in violation of the Constitution, "it is only subject to review on appeal for a manifest abuse of discretion." United States v. Mitchell, 788 F.2d 1232, 1237 (7th Cir.1986). In Williams's case, it is undisputed that the thirteen-year sentence he received did not exceed the seventeen-year sentence the trial court could have imposed. In light of this, and Williams’s extensive criminal record and involvement with drugs, it is clear that in imposing sentence the district court did not abuse its discretion.
Williams also alleges that his convictions under Counts II and IV violate the prohibition against double jeopardy. Count II involved a charge of possession of an unregistered machine gun in contravention of 26 U.S.C. § 5861(d) (1982) which makes it unlawful for any person "to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.” Count IV charged Williams with possession of a firearm by a convicted felon in violation of 18 U.S.C.App. § 1202(a)(1) (1982 & Supp. II 1984). Although never raising this objection when he was indicted, or at any other time for that matter, Williams now alleges that his convictions under these two statutes unconstitutionally expose him to jeopardy twice for the same conduct.
Even if we were to assume that Williams has not waived his double jeopardy claim, it is nonetheless meritless. In United States v. Ching, 682 F.2d 799 (9th Cir.1982), the Ninth Circuit faced almost the identical issue Williams now raises. In Ching, the defendant alleged that his convictions for possession of firearms not identified by serial numbers in violation of 26 U.S.C. § 5861(i) and his conviction for possession of a firearm by a felon in contravention of 18 U.S.C. App. § 1202(a)(1) violated double jeopardy. The court, citing Albernaz v. United States, 450 U.S. 333, 337, 101 S.Ct. 1137, 1141, 67 L.Ed.2d 275 (1981), and Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), disagreed noting that "the same act of possession can give rise to violation of two statutory provisions if each statute requires proof of a fact that the other does not require.” 682 F.2d at 802. The court concluded that this test was satisfied since the conviction under 18 U.S.C.App. § 1202(a)(1) was based upon a showing of a prior felony whereas the convictions under 26 U.S.C. § 5861(i) required a showing that the weapons lacked serial numbers. Similarly, in the present case, Williams’s conviction under Count II required a showing that he was in possession of an unregistered weapon while, on the other hand, his conviction under Count IV required a showing that he was a convicted felon. The sentences imposed for these two counts were not, therefore, in violation of the prohibition against double jeopardy.
. After November 1, 1987, 18 U.S.C. § 3742 (Supp. III 1985) will define the scope of appellate review of a sentence imposed by the district court.
. In so ruling, we do not imply that trial attorneys have an affirmative duty to disclose to their clients, who are contemplating guilty pleas, how much time they may be required to serve pursuant to a sentence imposed by the court. It is also important to note that Williams does not allege that his trial attorney, after being asked, incorrectly advised him of how long he would be required to serve. If this had in fact occurred, we would be facing an entirely different issue. | 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. | What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number. | [] | [
1
] | songer_appnatpr |
PHILLIPS v. UNITED STATES.
No. 8651.
Circuit Court of Appeals, Seventh Circuit.
Oct 17, 1945.
As Amended on Denial of Rehearing Nov. 26, 1945.
Norman M. Littell, J. Edward Williams, Vernon L. Wilkinson, Roger P. Marquis, and Ralph S. Boyd, Department of Justice, all of Washington, D. C., and J. Albert Woll and Clarence W. Beatty, Jr., both of Chicago, 111., for appellant.
Thomas C. Donovan and Charles E. Loy, both of Chicago, 111. (Samuel K. Markman and John P. Sullivan, both of Chicago, 111., of counsel), for appellee;
Before SPARKS, MAJOR, and KER-NER, Circuit Judges.
KERNER, Circuit Judge.
This appeal involves an action brought under the Tucker Act, 28 U.S.C.A. § 41 (20), to recover the value of plaintiffs alleged oral lease of certain farm lands. The court tried the case without a jury, found the issues against the defendant, assessed the damages at $1,000 and entered judgment thereon, from which defendant appealed.
It appears that Michael and Maria Riley owned a farm in Will County, Illinois, and that on May 28, 1941, for the purpose of condemning the farm for military purposes, the United States Government filed a petition in which the Rileys were named defendants. A jury found the just compensation for the land and judgment was entered on the verdict. The judgment was satisfied by the payment of $26,000 into the registry of the court. After the $26,000 was deposited the Rileys petitioned the court for distribution of the funds. In their petition they asserted that there were no liens against the property; that they were the sole owners of the land; and that they were entitled to receive all of the money deposited. The court ordered payment of the $26,000 to the Rileys.
On December 23, 1942, five months after the $26,000 had been paid to the Rileys, plaintiff filed his complaint in this case, alleging that by an oral agreement with the Rileys he had leased the land; that the lease commenced March 1, 1941, and ran for one year; that defendant commenced an eminent domain proceeding to condemn the land — to which Phillips was not made a party defendant — and filed the declaration of taking; and that he was dispossessed and prevented from farming the land. Defendant pleaded the condemnation proceedings and judgment in bar.
At the trial plaintiff testified that he had leased the land by an oral agreement from March 1, 1941, to February 28, 1942; that by the agreement Riley was to bear half of the costs of seed and other similar items in return for half of the crops produced; that he had not lived upon the land nor had he farmed the land in 1941, but that in the fall of 1940 he had plowed 50 acres for corn and had spread 25 or 30 loads of fertilizer.
It also appears that in the course of the condemnation proceedings defendant had had the title to the land examined and an inspection made of the land to ascertain the names of all persons in possession in order that such parties, if any, could be made defendants and that the inspection disclosed that the only persons in possession of the land were the Rileys, the record owners of the land. The record further discloses that in the condemnation proceeding plaintiff testified as a witness for the Rileys and that before the award had been disbursed he had been advised to intervene in the proceedings and assert any claim he might have in the land or in the fund deposited.
Section 2 of the Eminent Domain Act, Ill.Rev.St.1943, c. 47, provides that a petition filed under the Act shall set forth “a description of the property, the names of all persons interested therein as owners or otherwise, as appearing of record * *
Defendant complied with and proceeded according to the provisions of the Act, but plaintiff contends that he had a lien on the lands and was a necessary party to the condemnation proceedings, and that since he was not a party defendant, the condemnation proceedings, as to him, were a nullity.
Concededly, as a general rule, one who has an interest in property about to be condemned and who is not made a party defendant is not affected by the proceeding and loses no rights thereby, but that rule is not applicable here, since the plaintiff did not have such possession of the lands as would give notice of any rights he might have had in the property, nor did the title record in the recorder’s office reveal that plaintiff had any interest whatever in the lands in question.
The only interest of the United States in the condemnation proceedings was the payment into court of the value of the whole property, United States v. Dunnington, 146 U.S. 338, 13 S.Ct. 79, 36 L.Ed. 996; United States v. 150.29 Acres of Land in Milwaukee County, 7 Cir. 135 F.2d 878; Meadows v. United States, 4 Cir., 144 F.2d 751, and the award stands in place of the property taken and includes all interests in the property, Yellow Cab Co. v. Howard, 243 Ill.App. 263, 276, and in procedural matters it is enough if conformance is according to the law of the state in which the property condemned is located, 40 U.S.C.A. § 258.
In our case there is no claim, nor has the plaintiff proved that defendant had actual knowledge of plaintiff’s alleged lease, neither did the evidence disclose notice of such facts as would put a prudent man on inquiry; in fact, plaintiff did not have such possession of the property as would give notice of any rights he might have in the property, Roderick v. McMeekin, 204 Ill. 625, 68 N.E. 473, and Cessna v. Hulce, 322 Ill. 589, 153 N.E. 679. An inspection of the premises disclosed that the only persons occupying and in possession of the land were the Rileys. Under this state of the record the United States, in the condemnation proceedings, having conformed to Illinois law, was discharged of further liability when it paid into the registry of the court the value of the lands, United States v. Dunnington, supra, and Hooper v. Finlay, 331 Ill. 132, 162 N.E. 202.
The judgment of the District Court will be reversed and the case remanded with directions to dismiss the complaint. It is so ordered. | 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. | What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number. | [] | [
0
] | songer_appbus |
KAMINER et al. v. CLARK, Attorney General of the United States, et al.
No. 10267.
United States Court of Appeals District of Columbia Circuit.
Argued June 30, 1949.
Decided July 11, 1949.
Writ of Certiorari Denied Nov. 7, 1949.
See 70 S.Ct. 147.
Mr. Irving Jaffe, Washington, D. C., with whom Messrs. Jack Wasserman and Thomas Cooley, II, Washington, D. C, were on the brief, for appellants.
Mr. Charles B. Murray, Assistant United States Attorney, Washington, D. C., with whom Mr. George Morris Fay, United States Attorney, and Messrs. Ross O’Donoghue and Samuel K. Abrams, Assistant United States Attorneys, Washington, D. C., were on the brief, for appellees. Mr. Joseph M. Howard, Assistant United States Attorney, Washington, D.C., also entered an appearance for appellees.
Before EDGERTON, WILBUR K. MILLER and PRETTYMAN, Circuit Judges.
PER CURIAM.
The appellant, Leon Kaminer, is an alien who arrived at the Port of New York and sought to enter the United States. On the ground that to admit him would be prejudicial to the best interests of the nation, the Attorney General ordered that he be excluded and deported. This action was taken under regulations promulgated pursuant to a presidential proclamation, which in turn was based upon an act of June 21, 1941. That statute empowers the President, in time of war or other national emergency, to proclaim restrictions and prohibitions upon the departure of persons from, and their entry into, the United States.
Kaminer sued the Attorney General and the Commissioner of Immigration in the United States District Court for the District of Columbia, seeking a declaratory judgment that the act referred to, as implemented by the proclamation and regulations thereunder, be declared unconstitutional; that deportation or further detention without a hearing be declared illegal and void; that a hearing be granted; and that meanwhile the order of deportation be suspended and release on bond be permitted.
A statutory three-judge court held constitutional the act of Congress pursuant to which the executive action was taken, and remanded the cause to a single judge for such further proceedings as might be appropriate. Thereupon the District Court dismissed the complaint as amended, and this appeal followed.
While this suit is for a declaratory judgment, it is substantially similar to an application for a writ of habeas corpus, because, in addition to the claim of unconstitutionality, it com plains that the appellant’s detention without a hearing is unlawful. Habeas corpus would lie only in the Southern District of New York, where the appellant was detained on Ellis Island at the time this suit was instituted. An action for declaratory judgment cannot be substituted for habeas corpus so as to give jurisdiction to a district other than that in which the applicant is confined or restrained. If the appellant has a right to the sort of declaratory judgment which he seeks, he must assert it in the Southern District of New York, as he would be required to do if he had elected to apply for a writ of habeas corpus. The District Court properly dismissed the action, because it lacked jurisdiction.
We express no opinion, and mean to intimate none, as to whether the appellant is entitléd either to a writ of habeas corpus or to a declaratory judgment.
Affirmed.
There were originally three appellants, but- two of them have abandoned their appeals.
55 Stat. 252, 22 U.S.C.A. §§ 223 to 226b.
Ahrens v. Clark, 1948, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898.
Clark v. Memolo, 1949, 85 U.S.App.D.C.—, 174 F.2d 978. | 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 position of the prisoner; for those who claim their voting rights have been violated; for desegregation or for the most extensive desegregation if alternative plans are at issue; for the rights of the racial minority or women (i.e., opposing the claim of reverse discrimination); for upholding the position of the person asserting the denial of their rights. 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. | What is the ideological directionality of the court of appeals decision? | [
"conservative",
"liberal",
"mixed",
"not ascertained"
] | [
0
] | songer_direct1 |
SOUTHLAND INDUSTRIES, Inc., v. FEDERAL COMMUNICATIONS COMMISSION.
No. 7018.
United States Court of Appeals for the District of Columbia.
Decided June 15, 1938.
Donald C.-Beelar, Percy H. Russell, Jr., and Louis- G. Caldwell, all of Washington, D. C., for appellant.
Hampson Gary) George B. Porter, William H. Bauer, Fanney Neyman, and Frank U. Fletcher, all of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and STEPHENS and MILLER, Associate Justices.
MILLER, Associate Justice.
This is an appeal under Section 402(b) of the Communications Act from the-decision of the Federal Communications Commission granting the application ■ of Hunt Broadcasting Association, for a construction permit for a radio broadcast station at Greenville, Texas. Appellant is the licensee of Station WOAI operating at San Antonio, Texas.- It claims to be aggrieved and adversely affected by the decision because its service in the Greenville area will be subjected to objectionable interference. It petitioned for leave to intervene in the hearing before the Commission on the Hunt application; was permitted to do só under the Commission’s Rule 105.20; was represented at the hearing and participated therein.
The Commission’s decision was filed on May 18, 1937, effective July 13, 1937. • On July 20, 1937, and within the twenty-day period provided by Section 405 of the Communications Act (48 Stat. 1095, 47 U.S.C.A. § 405 (Supp.1937), appellant filed a petition for rehearing. On August 2, 1937, before the Commission had acted upon its petition, it appealed to this court as provided by Section 402(c) of the Act. On August 18, 1937, the Commission dismissed the petition.
The presence in the record of the facts set out in the preceding paragraph challenges the jurisdiction of this court. While no motion to dismiss the appeal has been made, the court must consider the question and if it has no jurisdiction must dismiss the appeal sua sponte.
It is a well recognized principle that an appeal cannot be taken from an interlocutory order (Metzger v. Kelly, 34 App. D.C. 548), or from a judgment or decree not final as to all the parties, the whole subject-matter and all the causes of action involved, “ * * * and that if the judgment or decree be not thus final and complete, the writ of error or appeal must be dismissed for want of jurisdiction.” Arnold v. United States for Use of Guimarin & Co., 263 U.S. 427, 434, 44 S.Ct. 144, 147, 68 L.Ed. 371. It is equally well settled that the courts cannot be resorted to for the adjudication of an administrative question the determination of which has not been completed . by a commission having jurisdiction of it for that purpose. Northern Pacific Ry. Co. v. Solum, 247 U.S. 477, 38 S.Ct. 550, 62 L.Ed. 1221.
In. United States ex rel. Dascomb v. Board of Tax Appeals, 56 App.D.C. 392, 394, 16 F.2d 337, 339, we said: “It is familiar law that a decision is not final, within the meaning of the statute providing for an appeal, until disposition of an application for rehearing or reconsideration seasonably made and entertained.” The same rule has been many times stated and applied by the Supreme Court and other Federal courts. Accordingly in Aspen Mining & Smelting Co. v. Billings, 150 U.S. 31, 36, 14 S.Ct. 4, 6, 37 L.Ed. 986, the Court said:
“The rule is that if a motion or a petition for rehearing is made or presented in season and entertained by the court, the time limited for a writ of error or appeal does not begin to run until the motion or petition is disposed of. Until then the judgment or decree does not take final effect for the purposes of the writ of error or appeal. Brockett v. Brockctt, 2 How. 238, 249 [11 L.Ed. 251] ; Texas & Pacific Railway v. Murphy, 111 U.S. 488, 4 S.Ct. 497 [28 L.Ed. 492]; Memphis v. Brown, 94 U.S. 715 [24 L.Ed. 244].” [Italics supplied.]
Appellant relies upon Luckenbach Steamship Co. v. United States, 272 U.S. 533, 47 S.Ct. 186, 71 L.Ed. 394, to support its contention that this court may obtain jurisdiction notwithstanding the pendency of the motion for rehearing before the Commission. That case involved an appeal from the Court of Claims. 59 Ct.Cl. 628. Appeals from that court were governed by rules peculiar to it, and the language of the Supreme Court in its decision is necessarily limited in its effect accordingly.' Section 243 of the Judicial Code, 36 Stab 1157, provided that all appeals from the Court of Claims should be taken “under such regulations as the Supreme Court may direct.” See Morse v. United States, 270 U.S. 151, 153, 46 S.Ct. 241, 242, 70 L.Ed. 518. The rule adopted pursuant thereto provided that: “In all cases an order of allowance of appeal * * * is essential, and the limitation of time for granting such appeal shall cease to run from the time an application is made for the allowance of appeal.” It appeared, in the Luckenbach Case, supra, at page 535, 47 S. Ct. at page 186, that while a motion for a new trial was pending the claimant filed with the clerk “an application for an appeal from the judgment. Thereafter the motion for a new trial * * * was denied, and the application for an appeal was then brought to the court’s attention and allowed.” The Court said of the application: “Evidently it was intended to be pressed only if and when the motion for a new trial and amended findings was denied. The court so regarded it, and therefore gave effect to it after disposing of the pending motion." [Italics supplied.] Under the practice of that court, therefore, the application for allowance of appeal was considered by the court after the motion for new trial was denied; its order of allowance of appeal was made thereafter; and when the matter first came to the attention of the Supreme Court, there was no pending motion for new trial in the lower court. The effect of the decision, therefore, is merely that where an application for allowance of appeal is prematurely filed, it may properly, be considered by the Court, under the rule, as having been filed after the motion for new trial has been disposed of. Properly understood, therefore, the decision is not in conflict with the general rule stated above. Similarly, in the case of Sauri v. Sauri, 1 Cir., 45 F.2d 90 — also relied on by appellant— the decision interpreted a rule of practice governing appeals from the Supreme Court of Puerto Rico, and held that allowance of a “petition for appeal” after the overruling of a “motion for reconsideration” cured premature filing of the petition. No such special rules are involved in the present case and there is nothing to take the case out of the general rule long ago established by the Supreme Court and followed in all the Federal courts thereafter.
Appellant urges for our consideration the fact that the Commission has at different times taken different positions regarding the effect of filing a petition for rehearing and that this court has not de-cided the question when presented to it on former appeals. However, in Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554, we stated the applicable rule of interpretation of Section 405 as follows (page 558):
“The Communications Act differs substantially from the Revenue Act involved in the cases hitherto cited only in the provision of Section 405 that ‘No such application [for rehearing] shall excuse any person from complying with or obeying any decision, order, or requirement of the' Commission, or operate in any manner to. stay or postpone the enforcement thereof, without the special order of the Commission.’ We think that the legislative history of this section of the Communications Act indicates that its inclusion ought not require a different result. The provisions of Section 405 as a whole are substantially those of Section 16a of the Interstate Commerce Act [34 Stat. 592, 49 U.S.C. § 16a (1934), 49 U.S.C.A. § 16a], and the provision above quoted was adopted almost verbatim. The Interstate Commerce Act makes no provision for direct appellate review of orders by the Interstate Commerce Commission. Hence the language of Section 16a could not, as used in that statute, have been intended tp defeat the general rule that a petition for rehearing will suspend the running of the appeal period. We do not think that Congress intended to enlarge the meaning of this language when it was used in the Communications Act.
“Accordingly, we hold that the filing of a petition for rehearing suspends the running of the appeal period, and that an applicant has 20 days from the date of final action on the petition for rehearing within which to file his notice and reasons for appeal. The motion to dismiss the appeal herein is therefore denied.”
And we also said in that case:
“It is doubtful, moreover, whether this court would have jurisdiction to entertain an appeal while such a petition was pending before the Commission. Cf. Voorhees v. Noye Manufacturing Co., 1894, 151 U. S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Vincent v. Vincent, 1884, 3 Mackey 320, 14 D.C. 320; Brown v. Evans, 18 F. 56, C.C.D.Nev., 1883.”
It follows that the same reason which prevents the running of the time for taking the appeal, prevents this court from acquiring jurisdiction; i. e., because jurisdiction continues in the Commission to modify, reverse, or affirm its decision. Upon the filing of its appeal in this court —its petition for rehearing being then undisposed of — appellant occupied the anomalous position of asking the Commission for administrative relief, and at the same time asking the court for judicial relief from the anticipated decision of the Commission. See Vincent v. Vincent, 3 Mackey 320, 322, 14 D.C. 320, 322; Chicago Great Western R. Co. v. Basham, 249 U. S. 164, 167, 39 S.Ct. 213, 63 L.Ed. 534; Doyle v. District of Columbia, 45 App.D. C. 90; Burnet v. Lexington Ice & Coal Co., 4 Cir., 62 F.2d 906. “Two courts cannot have jurisdiction in the same case at the same time.” Lasier v. Lasier, 47 App. D. C. 80, 83. See Andrews v. Virginian Ry. Co., 248 U.S. 272, 39 S.Ct. 101, 63 L. Ed, 236. As appellant elected to petition for a rehearing, the Commission retained jurisdiction; and as it failed to act on the petition its decision has never become a final one from which an appeal could be taken. See Voorhees v. Noye Mfg. Co., 151 U.S. 135, 14 S.Ct. 295, 38 L.Ed. 101; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675, 18 S.Ct. 786, 42 L.Ed. 1192; Northern Pacific R. Co. v. Holmes, 155 U. S. 137, 138, 15 S.Ct. 28, 39 L.Ed. 99; Harrison v. Magoon, 205 U.S. 501, 27 S.Ct. 577, 51 L.Ed. 900. Consequently, this court is without jurisdiction.
As the petition was dismissed in the present case — although not until sixteen days after the appeal was taken — it might be argued that it was not entertained by the, Commission, and, consequently,, did not constitute a bar to an appeal. A similar-contention was made in Payne v. Garth, 8 Cir., 285 F. 301, and it was there further-contended that it must appear that, the-court “affirmatively recognizes the motion during the trial term by some action indicating willingness to consider it.” (page 303.) The answer of the court in the-Payne Case is equally applicable in the present case. The court said: “The argument is plausible and would be readily convincing if it were not for the statute above quoted. This statute unquestionably gives a right, in jury cases, to the consideration and determination of a motion for new trial. Necessarily, this right includes the filing of the motion. When the motion is filed, the litigant can do nothing more except to present it when the court is pleased to hear it. The litigant has no; control over the action of the court toward the motion. He cannot compel the court to act affirmatively concerning it or to recognize it during the judgment term. Can he, then, be denied all benefit of the right given by Congress because the court fails or reftises to take such action? Can a court thus annul a valid statute affecting vitally the rights of litigants? Yet, if defendants in error be right in their argument and contention, this result may follow and would do so in this case.” 285 F. 301, at page 304. In the present case, also, the petition for rehearing is a matter of right, as distinguished from a matter of grace. Leave to file is not required under Section 405 of the Communications Act. Consequently — as was conceded by all parties on oral argument — the question wheth-er the Commission has entertained the petition does not arise, the Commission being without power to refuse to entertain it. See Larkin Packer Co. v. Hinderliter Tool Co., 10 Cir., 60 F.2d 491, 493; Kingman & Co. v. Western Mfg. Co., supra, at page 678, 18 S.Ct. 786.
Appellant seeks further to support its position by urging that at the time the record on appeal was filed in this court, the petition for rehearing was not then pending. However, it was the fact that the petition was pending when the appeal was taken which prevented this court from acquiring jurisdiction. Moreover, as we have already indicated, the action of the Commission in dismissing the petition was improper, as leave to file it was not necessary under the Act and the Commission was not divested of jurisdiction by the filing of the appeal in this court. Consequently, the Commission’s order was improvidently made (Ex parte Roberts, 15 Wall. 384, 21 L.Ed. 131); the petition must be regarded as pending at the time of filing the record; and, in fact, as pending at all times thereafter, until properly acted upon by the Commission. Larkin Packer Co. v. Hinderliter Tool Co., supra.
Finally, even if this court did have jurisdiction over the appeal, a situation would be presented calling for the exercise of judicial discretion to determine whether relief should be denied at this stage of the proceedings, until all possible administrative remedies had been exhausted; and in our opinion the appeal should be dismissed for that reason in any event. We have heretofore suggested that rehearings should be availed of by aggrieved persons both for their own protection, and in order to afford opportunity to the Commission to correct errors or to hear newly discovered evidence before appeal. This is not and should not be an arbitrary requirement. Whether a petition for rehearing should be filed in a particular case must be decided on the merits as each case arises. However, in our view, its use as an administrative remedy should not be discouraged, but instead should be encouraged - — “not to supplant, but to supplement” appellate review. For that reason, in our opinion, the purpose of the law is defeated if the Commission declines to act upon such petitions when they are filed, or dismisses them without consideration, as was done in the present case. Its action, therefore, wa{> arbitrary and capricious and constituted an improvident exercise of pow-> er. Until 'the Commission has considered and acted upon such a petition, the administrative remedy of the aggrieved person cannot properly be said to have been exhausted, and resort to this court in such cases is, therefore, premature.
The appeal, therefore, must be dismissed and the Commission directed to proceed in accordance with this decision.
Appeal dismissed.
Act of June 19, 1934, c. 652, 48 Stat. 1064, 1093, 47 U.S.C.A. § 402(b) (Supp. 1937).
“Such appeal shall be taken by filing with said court within twenty days after the decision complained of is effective, notice in .writing of said appeal and a statement of the reasons therefor, * 47 U.S.C.A. § 402(c).
Mansfield, Coldwater & Lake Michigan Ry. Co. v. Swan,111 U.S. 379, 382, 4 S.Ct. 510, 28 L.Ed. 462; Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L. Ed. 616; Palmer v. State of Ohio, 248 U.S. 32, 39 S.Ct. 16, 63 L.Ed. 108; Minnesota v. Northern Securities Co., 194 U.S. 48, 62-63, 24 S.Ct. 598, 48 L.Ed. 870; Chicago, Burlington & Quincy Ry. Co. v. Willard, 220 U.S. 413, 419-421, 31 S.Ct. 460, 55 L.Ed. 521; Fore River Shipbuilding Co. v. Hagg, 219 U.S. 175, 177, 31 S.Ct. 185, 55 L. Ed. 163; Trans-Atlantic Trust Co. v. Pagenstecher, 53 App.D.C. 42, 287 F. 1019; Metzger v. Kelly, 34 App.D.C. 548.
See Southern Pacific Co. v. United States, 270 U.S. 103, 46 S.Ct. 242, 70 L. Ed. 489; Chicago, Great Western R. Co. v. Basham, 249 U.S. 164, 39 S.Ct. 213, 63 L.Ed. 534; Citizens’ Bank of Michigan City v. Opperman, 249 U.S. 448, 39 S.Ct. 330, 63 L.Ed. 701; Northern Pacific R. Co. v. Holmes, 155 U.S. 137, 15 S.Ct. 28, 39 L.Ed. 99; Northern Pacific R. Co. v. O’Brien, 155 U.S. 141, 15 S.Ct. 30, 39 L.Ed. 100; Title Guaranty & Surety Co. v. United States to Use of General Electric Co., 222 U. S. 401, 32 S.Ct. 168, 50 L.Ed. 248; Kingman & Co. v. Western Mfg. Co., 170 U.S. 675, 679, 18 S.Ct. 786, 42 L.Ed. 1192; Memphis v. Brown, 94 U.S. 715, 24 L.Ed. 244; Brockett v. Brockett, 2 How. 238, 11 L.Ed. 251; Payne v. Garth, 8 Cir., 285 F. 301; Klein v. Southern Pacific Co., C.C.Or., 140 F. 213; Doyle v. District of Columbia, 45 App.D.C. 90; Clarke v. Eureka County Bank, C.C.Nev., 131 F. 145; Montgomery Ward & Co. v. Banque Beige Pour L’etranger, 9 Cir., 298 F. 446.
See cases cited in note 4, supra.
The use of the words “entertained by the court” resulted from the interpretation of rules which made the-filing of petitions for rehearing subject to permission or leave of the court. See Morse v. United States, 270 U.S. 151, 154, 46 S.Ct. 241, 70 L.Ed. 518. (Ct. of Cl. Rule 90); Equity Rule 69, 28 U.S.C.A. following section 723. In such cases applications for leave to file are not sufficient to suspend the running of the time for appeal, and by the same token should not prevent the judgment or decree from becoming final for purposes of appeal. Morse v. United States, supra; Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 81 L.Ed. 557.
“After a decision, order, or requirement has been made by the Commission in any proceeding, any party thereto may at any time make application for rehearing of the same, or any matter determined therein, * * * Provided, * * • under Title III * * * the time within which application for rehearing may be made shall be limited to twenty days after the effective date thereof, * 47 U.S.C.A. § 405.
United States v. Abilene & So. Ry. Co., 265 U.S. 274, 282, 44 S.Ct. 565, 68 L.Ed. 1016.
Eastland Co. v. Federal Communications Comm., 67 App.D.C. 316, 319, 92 F. 2d 467, 470.
Red River Broadcasting Co. v. Federal Communications Comm., 69 App.D. C. 3, 98 F.2d 282.
Saginaw Broadcasting Co. v. Federal Communications Comm., 68 App.D.C. 282, 96 F.2d 554.
Saginaw Broadcasting Co. v. Federal Communications Comm., supra, note 11;
“And if the statute here be construed so that a petition for rehearing does not suspend the running of the statutory period for appeal, the administrative benefit to the Commission of such petitions may well be destroyed.” | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
1
] | songer_typeiss |
MUTUAL LIFE INS CO. OF NEW YORK v. CITY NAT. BANK & TRUST CO. OF CHICAGO.
No. 5820.
Circuit Court of Appeals, Seventh Circuit.
Dec. 10, 1936.
Frederick L. Allen, of New York City, and Silas H. Strawn, Harold A. Smith, and Gerard E. Grashorn, all of Chicago, Ill., for appellant.
C. D. Jones, of Chicago, Ill., for appellee.
Before SPARKS, Circuit Judge, and LINDLEY and BRIGGLE, District Judges.
BRIGGLE, District Judge.
This is an appeal from a judgment rendered in the District Court in favor of appellee (hereinafter called plaintiff) and against the Mutual Life Insurance Company of New York appellant (hereinafter called defendant), for the sum of $23,458.-31. The action was upon two life insurance contracts upon the life of Charles W. Myers, each in the face amount of $10,-000, with double indemnity provisions for accidental death in the following language: “ * * * if there further be received at said Home Office due proof that such death resulted directly from bodily injury received after the date of issue of this Policy, independently and exclusively of all other causes, and that such bodily injury was effected solely through external, violent and accidental means, and that such death occurred within sixty days after the date of such bodily injury, promises to pay to said beneficiary instead of the face amount of this Policy, Twenty Thousand Dollars (Double the Face Amount of this Policy, herein called Double Indemnity) provided, however, that this Double Indemnity shall not be payable in the event of the Insured’s death as a result * * * directly or indirectly from bodily or mental infirmity or disease of any sort. * * * ”
The policies were originally payable to Sarah A. Myers, wife of the insured, as beneficiary, but later made payable to plaintiff as trustee under a certain trust agreement not now material. The face amount of each policy was paid by the insurer and the suit involved only that amount asserted to be due by virtue of the double indemnity provisions.
The principal issue of fact submitted to the jury was whether the insured had suffered an accidental death within the terms of the policy above set forth.
On the evening of September 3, 1930, about ten minutes after finishing his supper, Myers went to the bathroom of his home where he was seized with a fit of vomiting that lasted for five minutes. He was handed a glass of water by his wife, who then started to the kitchen for a brush. A few seconds later he fell to the bathroom floor, striking his dead on the radiator, causing an abrasion of the scalp and a consequent flow of blood, but no skull fracture. He lay unconscious upon the floor and there died some 20 or 30 minutes later. His wife testified that she saw him reach for a towel and in so doing that he stepped upon a convex glass scale which tilted and threw him to the floor. No other witnesses were present, but doubt was cast upon the credibility of Mrs. Myers’ testimony by the testimony of other witnesses that she had made conflicting statements to the effect that she was in the adjoining room or in the kitchen at the time he fell, and upon hearing the noise went to the bathroom.
There was introduced in evidence a-photograph of the bathroom, showing a small floor' scale with a platform and a protruding dial or indicator. In the photograph the scale is placed with the platform portion near the radiator and with the dial protruding into the room in the general direction of the washbasin. The dial portion appears to be covered with glass and undoubtedly is the portion referred to by Mrs. Myers when she says her husband, in reaching for a towel, stepped on the “convex glass scale.” Mrs. Myers testifies that this photograph correctly portrays the location of the scale at the time in question,
It is apparent to only a casual observer of the photograph that if the scale was so located at the time in question it was in a most unserviceable position. One seeking to use it would either be required to step on the platform backwards and over the dial, or, after mounting the small platform, turn completely around in order that the dial, indicating the weight, would be visible. This physical fact also speaks against the credibility of this witness.
The deceased had been under the care of Dr. Liborio Figueroa for more than a year preceding his death, the doctor last seeing him professionally about two weeks before death. Dr. Figueroa had treated Myers for “chronic interstitial nephritis hypertension,” and in the spring of 1929 had sent him to the hospital, where he had him under observation for some time and diagnosed his case as “chronic myocarditis, accompanied by decompensation.” The day following the death of Mr. Myers, Dr. Figueroa executed a death certificate ascribing as the cause of death “chronic interstitial nephritis and hypertension” and as a secondary cause “chronic myocarditis.” More than six months later, on March 10, 1931, he filed a supplemental re-' port giving as an additional cause of death “shock due to fall against radiator in bathroom of home.” A shadow was thus cast over the testimony of the attending physician.
There was much conflict in the testimony in other respects and much contrariety of opinion among the medical experts growing out of a post mortem examination some two months following death. Without a, further discussion of the facts, it may be observed that the most favorable position that plaintiff can assert is that, in any event, the case presented a very close question of fact for the jury. This situation was keenly sensed by the trial judge in passing upon a motion for a new trial, as evidenced by the following remarks: “Well now, I will tell you, it is possible that had I been the trier of the facts in this case my conclusion might have been different from that of the jury, but T am not prepared to say that the verdict of the jury is against the manifest weight of the evidence. I am not prepared to say that, though I do say that it is possible that had I been the trier of the facts my finding would have been different from that of the jury. But unless we are going to eliminate the jury trial altogether, I have no right to set aside that verdict merely because my verdict, had I made one, would have been different from that of the jury, unless I further believe that that verdict is against the manifest weight of the evidence, and I can’t say that it is.”
Under such circumstances it was necessary that the record not only be free of substantial error but that counsel refrain from conduct that might reasonably be said to have prejudiced or inflamed the jury in their consideration of such fact questions. Assignments of error Nos. 2, 16, 17, 20, and 21 direct our attention to the conduct of counsel for plaintiff that is said to be prejudicial.
Assignment No. 2. In the cross-examination of Mrs. Myers she had identified a “certificate of death” filed by her with the Federal Life Insurance Company in which she had stated that deceased was in the bathroom alone and that she was in an adjoining room. On redirect examination the following occurred:
“Q. Now, Mrs. Myers, counsel showed you a piece of paper in which he stated it was a paper which you had signed to obtain money from the Federal Life Insurance Company, I believe. A. Yes.
“Q. And that is the paper that you stated that you did sign? A. Yes.
“Q. Did you receive that money? A. I did.
“Q. Was that on a policy similar to this ?
“Mr. Smith: If your Honor please, I object as not redirect examination, as to whether the proceeds under that claim were ever paid. »
“Mr. Jones: He brings out the question, your Honor.
“Mr. Smith: I ask that be stricken.
“Mr. Jones: I think we have a right to go into it.
“The Court: What is the question now, whether she received the money on that other policy?
“Mr. Jones: Yes, she stated she did. I am asking if that policy was a similar policy to this.
' “Mr. Smith: I object and ask the answer be stricken.
“The Court: Sustained.”
Assignment No. 16. A witness, Cold, a representative of the Republic Life Insurance Company, had testified concerning an interview with Mrs. Myers in regard to a policy held by decedent with that company. On cross-examination Mr. Jones for the plaintiff asked if he had made a report to his company, and upon the witness giving an affirmative answer the following transpired:
“Q. And they accepted that report, did they? A. They did.
“Q. Did you know that they later paid on their policy'?
“Mr. Smith: I object, if your Honor please.
“The Court: Sustained.”
Assignment No. 17. Immediately following, in the cross-examination of the witness Nelson the following transpired:
“Q. And you had a life insurance policy with a double indemnity feature for death by accidental means, did you not?
“Mr. Smith: I object, if your Honor please.
“The Court: Sustained.
“Mr. Jones: Q. You later paid on your policy, did you not?
“Mr. Smith: Now, if your Honor please—
“The Court: Don’t pursue that question. * * *.
“The Court: The Jury are instructed to disregard the last interrogatory-of counsel. It was improper for him to even ask it. Counsel is instructed not to repeat the interrogatory.”
Assignments Nos. 20 and 21. In the closing argument of Mr. Smith, for defendant, he stated that he represented a Mutual Company and represented the other policyholders and was protecting the assets^ against unjust claims.
In the closing argument of Mr. Jones for plaintiff, the following transpired:
“Mr. Jones: Now, on behalf of these numerous policy holders of the Mutual Life Insurance Company of New York that he represents he asks you to bring in a verdict of not guilty.
“Well, did I ever hear of such a reason: to bring in a verdict of not guilty, because-there are other members of the Mutual Life Insurance Company of New York.. Let me ask you, if their cases go the same-way as this, what benefit have they got in-the Mutual Life Insurance Company of New York if their assets are continually-preserved as he would have you think that, is his interest here. If they are always going to be preserved, why these members,, these people that are members of that great company, the Mutual Life of New York,, are going to get no benefit out of it either,, when it comes time to pay their benefits, because the same principle will appear. If it appears now it will appear when anybody presents a claim.
“We can’t pay you. We must conserve-, the assets of the Company.
“Now any o.f you who have seen aL financial statement of that company, knows* they have been pretty well preserved.
“Now, the idea of a lone woman here — -
“Mr. Smith (Interrupting): Your Hon- or, I take exception to that remark of counsel. It is highly prejudicial and inflammatory and made for the purpose of prejudicing the jury in this case. * * *
“The Court: The objection is sustained.
“Mr. Jones: Well, there is nothing in-the record of this case about the assets of this company, and he refers to it three different times.
“The Court: Ther.e was no objection, to it.
“Gentlemen of the jury, the wealth or absence of wealth of the parties to thi% proceeding makes no difference at all. You have a simple question here of whether or not the facts of this man’s death brings that incident within the meaning of this policy. Whether the company is rich or poor, has much or little, makes no difference at all. Whether the plaintiff has much or little, whether she is a woman or man, or what she may be, has nothing to do with this case.
“Don’t allow your minds to be distracted by that sort of thing.
“Make no further reference of that kind.
“(Further argument by Mr. Jones.)
“Well, if he is a professional witness, how about Doctor Mitchell sitting in the Court? Is that unethical and unfair? How about Doctor Fleming sitting at the end of the table? Two doctors there to write up trick quéstions.
“Mr. Smith: There was no Doctor Fleming sitting in court at the end of the table.
“Mr. Jones: Well, you know there was.
“Mr. Smith: I take exception to the remark of counsel.
“Mr. Jones: All right, I think that is going a little too far.
“The Court: Objection is sustained.”
In each of the instances detailed, we think the conduct of counsel for plaintiff was unjustified, highly prejudicial, and calculated to inflame and bias the jury against the defendant insurance company. So far as the effect upon the jury was concerned, he may as well have adopted the much abused tactics of picturing “entrenched greed” arrayed against a “lone defenseless woman.” Counsel does not now attempt to justify his conduct except to assert that in so far as his argument to the jury was concerned, it was provoked by the remarks of counsel for defendant. We are not to be understood as approving the statement of counsel for defendant that “he was representing other policy holders and was protecting the assets against unjust claims,” but if defendant’s counsel overstepped the bounds of propriety that was a matter to be called to the attention of the court; instead, however, plaintiff’s counsel took the matter in his own hands and fairly outdistanced any impropriety of his adversary.
Courts are only interested that verdicts of juries shall speak the truth and any conduct on the part of counsel calculated to prejudice and inflame the human mind to the point of believing that some one is being abused or mistreated or unfairly dealt with is not conducive to such result.
The clear implication to be drawn from the questions propounded concerning accident policies in other companies was that other companies had accepted Mrs. Myers’ proof of accident as sufficient upon which to recognize liability and that the defendant company was, therefore, unjustified and arbitrary in its denial of liability. The jury, of course, were not concerned with what'other insurance companies had or had not done, and it was wrong to thus place the defendant in such light before the jury.
Whether misconduct of counsel in a given case is to be regarded as of sufficient importance to require a reversal depends wholly upon the circumstances of the case, and for that reason authorities are of little persuasion. Indeed, misconduct in one case might, under the circumstances of that case be regarded as affecting the verdict, whereas the same conduct under another set of circumstances, and in a case where the party’s right to a verdict was clear and unmistakable, be overlooked.
That the District Court made such a valiant effort in this case to remove the evil injected therein by counsel in an effort to avert a mistrial is to be considered. It is to be noted that in each instance recited the court acted promptly and correctly instructed the jury that they should not give effect to the matters complained of, which under some circumstances would be deemed to have corrected the evil. We are persuaded, however, that under the circumstances of this case, where, as we believe, at the best, a close fact question was involved, it cannot be said that the jury were not, in spite of the court’s admonitions, influenced by such unwarranted conduct of counsel. Nothing remained for the District Court to do that he did not do in an effort to mollify the evil, and the responsibility rests clearly upon the shoulders of plaintiff’s counsel.
The judgment is, therefore, reversed and the cause remanded for new trial.
Reversed and remanded. | 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. | What is the general category of issues discussed in the opinion of the court? | [
"criminal and prisoner petitions",
"civil - government",
"diversity of citizenship",
"civil - private",
"other, not applicable",
"not ascertained"
] | [
2
] | songer_typeiss |
Subsets and Splits