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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
RIVES, Circuit Judge.
Restitution was sought by Natural from Harrington for the difference between the contract rate for the purchase of natural gas and the price paid in compliance with an order of the Oklahoma Corporation Commission which was later declared invalid by the United States Supreme Court. The district court found Natural entitled to restitution in the sum of $1,302,491.23. It deducted from the restitution claimed $321,279, being $237,000 paid by Panoma as increased royalties and $84,279 paid as increased gross production taxes, and allowed no interest prior to the date of the judgment. Both Harrington and Natural appeal.
Harrington insists that Natural is not entitled to any restitution; Natural contends that the court erred as to each of the several sums deducted, and in denying it full restitution plus interest. Since the district court rendered summary judgment, we must, in examining each of the questions, determine whether there was any genuine issue as to any material fact and whether the judgment was right as a matter of law.
Judge Estes’ excellent opinion, reported in 139 F.Supp. at 452, et seq., relieves us of the necessity for making more than a brief statement of the facts. Under the contract effective December 1, 1946, and to endure so long as gas is produced in paying quantities, Harrington had agreed to sell to Natural the gas produced from Harrington’s wells located in some 78,000 acres of gas reserves in the Guymon-Hugoton Field in Texas County, Oklahoma, at 7 cents per M. c. f. measured at 16.4 pounds per square inch, equivalent to 6.253 cents when measured at 14.65 pounds pressure and 60 degrees Fahrenheit. On December 9, 1946, a few days after the effective date of the contract, the Oklahoma Corporation Commission entered its first order fixing a minimum price of seven cents for all gas measured at 14.65 pounds and 60 degrees Fahrenheit removed from the Guymon-Hugoton Field. Natural refused to comply with this order, and, on May 17, 1951, the Oklahoma Commission directed Natural to pay the difference between the contract price and the seven cents minimum price. Natural posted bond and superseded the order. No payments were ever made under that first order.
On July 29, 1952, the Oklahoma Commission issued its second order increasing the minimum price to 9.8262 cents. The effective date of this order was delayed until September 10, 1952. On September 9, 1952, Natural notified Panoma, Harrington’s predecessor, that it would appeal from the order and would not supersede, but (repeated with each payment) that it would pay the 9.8262 cents under protest, and would, upon success in the appeal, seek restitution for the amounts paid in excess of the contract price with lawful interest thereon.
Without considering the Natural Gas Act enacted by Congress in 1938, 52 Stat. 833, 15 U.S.C. § 717v, the Supreme Court had in 1950 upheld the validity as against certain constitutional objections of the first Oklahoma minimum price order. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190. Following the landmark case of Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the second order was declared invalid on April 11, 1955, because “such a sale and transportation cannot be regulated by a State but are subject to the exclusive regulation of the Federal Power Commission.” Natural Gas Pipeline Co. v. Panoma Corporation, et al., 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866.
Meanwhile, on July 1, 1954, pursuant to a plan for liquidation, Panoma transferred all its assets to its stockholders, Harrington, et al., the defendants below. The consent of Natural to certain assignments of the contract incident to such transfer was required, and, in consideration of Natural’s consent, Harrington, et al., executed a letter containing the following obligation:
“That we hereby jointly and severally agree on behalf of ourselves, our executors, administrators and assigns to pay you or cause to be paid you any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952. We do also jointly and severally, for ourselves, our heirs, executors, administrators and assigns agree to ami do hereby acknowledge and assume: any obligations imposed upon Panoma Corporation by virtue of the letter you addressed to it under date of September 9, 1952.”
Harrington, et al., resold the major portion of the assets to third persons, and received therefor $40,000,000 in cash plus other valuable considerations. The restitution here sought is for claimed overpayments for gas delivered between September 10, 1952, the effective date of the second Oklahoma minimum price order, and July 1, 1954, the date of sale of Harrington’s assets.
Harrington’s principal defense is based upon the equitable nature of the remedy of restitution so clearly expressed by Mr. Justice Cardozo in Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301, 309, 310, 55 S.Ct. 713, 79 L.Ed. 1451. In that case, an order of the Interstate Commerce Commission requiring an increase of intrastate rates because discriminatory against intrastate commerce had been set aside “solely upon the ground that the facts supporting the conclusion were not embodied in the findings” (295 U.S. 311, 55 S.Ct 717). The Commission thereafter “looked into the past and ascertained the facts. In particular, it looked into the very years covered by the claims for restitution and found the inequality and injustice inherent in the Cummer rates during the years they were in suspense and during those they were in force.” 295 U.S. 312, 55 S.Ct. 718.
“By the time that the claim for restitution had been heard by the master and passed upon by the reviewing court, the Commission had cured the defects in the form of its earlier decision. During the years affected by the claim there existed in very truth the unjust discrimination against interstate commerce that the earlier decision had attempted to correct. If the processes
of the law had been instantaneous or adequate, the attempt at correction would not have missed the mark. It was foiled through imperfections of form, through slips of procedure * * * as the sequel of events has shown them to be.” 295 U.S. at pages 311, 312, 55 S.Ct. at page 717.
The Supreme Court directed that the claims for restitution be dismissed, holding that the federal court “discovers through the evidence submitted to the Commission and renewed in the present record that what was charged would have been lawful as well as fair if there had been no blunders of procedure, no administrative delays.” 295 U.S. at page 315, 55 S.Ct. at page 719. See also United States v. Morgan, 307 U.S. 183, 196, 59 S.Ct. 795, 83 L.Ed. 1211.
Harrington calls attention that in the instant case the order of the Oklahoma Commission was not invalidated on its merits, or because the rate of 9.8262 cents was unjust or unreasonable, but simply because exclusive jurisdiction was vested in the Federal Power Commission, and that that Commission, by its order of November 14, 1955, accepted as the present effective rate of Harrington’s successor in interest, the same 9.8262 cents.
It should further be noted, however, that the invalidity of the order of the Oklahoma Commission was not caused by any defect or imperfection of form or slip of procedure but resulted from a total lack of jurisdiction. Further, the Federal Power Commission by its order of November 14, 1955, spoke for the future only, and did not possess the power enjoyed by the Interstate Commerce Commission in the Atlantic Coast Line case, supra, of looking into the past and ascertaining the facts. Nor does any court possess such power for the purpose of fixing retroactively a just, reasonable, and lawful rate. Here the parties themselves had fixed the rate to be charged by their solemn and binding contract, and that contract rate could be changed only by the Federal Power Commission after a hearing conducted in accordance with Section 5(a) of the Natural Gas Act, 15 U.S.C.A. § 717d(a). United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. Moreover, in the Atlantic Coast lane case, supra, the railroad carrier -was entitled to the protection of the order of the Interstate Commerce Commission against being required to accept the unreasonably low intrastate rates, while here the primary aim of the Natural Gas Act was “protection of consumers against exploitation at the hands of natural-gas companies.” Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 685, 74 S.Ct. 794, 800 (concurring opinion of Mr. Justice Frankfurter). Even the Federal Power Commission, which had exclusive jurisdiction, could increase the contract rate only because of considerations of the public interest and not on account of any claimed right of Harrington to relief from an improvident bargain. Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 100 L.Ed. 388.
True, in United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract was filed with the Federal Power Commission, and here it was not so filed. Section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c(c), provides that:
“Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from the date this act takes effect) and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.”
Until the decision in Phillips Petroleum Co. v. State of Wisconsin, 1954, 347 U.S. 672, 74 S.Ct. 794, the parties, and indeed the Commission itself, had proceeded upon the assumption that the Commission had no regulatory jurisdiction over the rates of independent producers. After that decision, the Commission, by its Orders 174 and 174A, entered July 16,1954 and August 6,1954, respectively fixed the time within which such producers could file their rates. Since the Phillips decision, it has become clear to all of the parties that the contract should have been filed with the Commission. The failure to file it earlier, however, did not prevent the jurisdiction of the Commission from attaching. Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384. There is nothing in the Natural Gas Act or in the orders of the Federal Power Commission to indicate that, under such circumstances, until the rates were filed there was no effective or lawful rate. To the contrary, the Act expressly provided for delay in such filing, and under the rationale of United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract rate, even though unfiled, became and remained the only lawful rate until changed by order of the Federal Power Commission. Any price in excess of the contract rate was then contrary to the spirit, if not the letter, of the Natural Gas Act.
Harrington insists, however, that the excess payments were voluntarily made by Natural, or at least that there was a genuine issue of fact as to whether they were involuntarily made under coercion of “business duress.” Natural, of course, concedes that restitution will not lie if the excess payments were voluntarily made. Further, duress or coercion must exist, and the written protest does not, by itself, make the payments involuntary. Union Pacific R. Co. v. Dodge County Commissioners, 98 U.S. 541, 544, 25 L.Ed. 196; Bank of United States v. Bank of Washington, 1832, 6 Pet. 8, 12, 8 L.Ed. 299.
The order of the Oklahoma Commission directed,
“That no gas shall be produced from' any well located in the Guymon-Hugoton Field of Oklahoma except at a price of not less than 9.8262c per thousand cubic feet if sold at the wellhead or on the lease or drilling unit from which produced, or a price equivalent to not less than 9.8262c per thousand cubic feet at the wellhead if sold off the lease or drilling unit or otherwise utilized.”
Assuming validity of the order, its violation carried criminal sanctions under an Oklahoma Statute (O.S., Title 52, See. 278) providing for a fine of not to exceed $5,000 or imprisonment in the county jail for not more than thirty days, or both such fine and imprisonment on those who violate its conservation laws. Mr. T. Murray Robinson, counsel for Panoma, Harrington’s predecessor, filed an affidavit in which he conceded:
“That after said order was entered, Mr. Coleman Hayes, who represented Natural Gas Pipeline Company of America in said proceedings, visited with me by telephone concerning the effect of said order on the relationship of Panoma and Natural. In the course of that conversation I told Mr. Hayes that in my opinion as a lawyer the order of the Commission would become binding unless superseded and that Panoma, like all others, would be compelled to abide thereby, and that in my opinion the order directed producers who were not receiving the minimum price to ceas.e deliveries.”
Scant respect would be accorded to the laws of the State of Oklahoma, if it were held that Natural had to go further and speculate on whether Panoma actually would have ceased delivering gas if Natural had refused to pay the increased price.
Natural candidly admits that it was motivated not to supersede the order by its desire to seek from the Federal Power Commission increases reflecting the prices paid under the order, and thus to pass on the increase rather than itself bearing the entire risk. We do not agree with Harrington that such motive converted Natural’s payment of the increased rate into a “calculated business maneuver.” If anything, the choice between bearing the entire risk of loss and trying to pass it on increased the business duress on Natural to make payments in accordance with the order. See Union Pacific R. Co. v. Public Service Commission, 248 U.S. 67, 70, 39 S.Ct. 24, 63 L.Ed. 131.
Further, Harrington urges that the duress was not imposed by it but was exerted by the Oklahoma Commission. We need not stop to consider whether duress of a third person will suffice (see Restatement of Restitution, Sec. 70b) for, under the circumstances, the Oklahoma Commission was a representative of Harrington and other producers similarly situated. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134, 146, 39 S.Ct. 237, 63 L.Ed. 517; see, also, United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 347, 76 S.Ct. 373, 100 L.Ed. 373.
Harrington urges that an accord and satisfaction was effected by Panoma’s acceptance of Natural’s checks containing notations similar to that copied in the margin. It is elementary, however, that an accord and satisfaction can result only from an agreement, and, clearly, Natural made no offer of any agreement that would preclude it from seeking restitution when each of its checks was accompanied by a letter specifically renewing its protest as follows:
“Such payment is, as to any part thereof in excess of that payable under the price provisions of said contract, made involuntarily and under protest with full reservation of all rights to seek restitution thereof as is more particularly set forth in our letter to Panoma Corporation dated September 9, 1952, a copy of which is attached hereto for your information.”
We are in full agreement with the conclusion reached by the learned district judge that Natural is entitled to restitution.
The district court, however, denied Natural’s claim for restitution in the sum of $321,279 representing payments made by Panoma, Harrington’s predecessor, for increased royalties and increased production taxes. We have held that Panoma had no right to the increased price. It took the same with notice that the rights of all who were to share in such increase were disputed by Natural. It could not voluntarily pay its royalty owners and its taxes on the basis of the increased price at Natural’s expense, when the validity of the increase was in dispute Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419, 64 L.Ed. 751.
We think that the state law provided adequate means by which Panoma could have withheld the increased payments from its royalty owners until the termination of the litigation, or could have paid under protest with a right of recovery, or could reserve the right to itself or its successors to take credit for any overpayment against future royalties. Panoma received the increase in price for the use and benefit of Natural, but it made no effort to protect Natural’s interest.
Like considerations are applicable to the payments of taxes on the basis of the increased price. Additionally, it may be noted that Title 68, Section 1475 of the Oklahoma Statutes, 1951, provides for the payment of taxes under protest and their subsequent recovery. Indeed, the Fourteenth Amendment itself would prevent the state from collecting unlawful taxes by coercive means without incurring any obligation to pay them back. Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419. We hold, therefore, that the district court erred in denying Natural’s claim for restitution to the extent of $321,279.00.
We agree with the district court that the clear intent of the letter of the stockholders, Harrington, et al., incident to Panoma’s liquidation (see page 4, ante) was to assume the same liability that rested upon Panoma. We think, however, that its use of the expression “with lawful interest” referred to interest from and after the time when Natural might become entitled to restitution from such stockholders in lieu of Panoma. Ordinarily, a person liable to make restitution is under a duty to pay interest from the time he commits a breach of duty in failing to make restitution. Restatement of Restitution, Sec. 156(b). The duty to make restitution arose on April 11, 1955, when the Oklahoma order was declared invalid by the Supreme Court of the United States. Previous to that date, Panoma’s acceptance of the increased price had been due, not to its fault or volition, but simply to the requirement that it comply with the order of the Oklahoma Commission, and for such period previous to April 11, 1955, we think that interest should not be allowed. See The Claim of Jacobs v. Adams, 1781, 1 Dall. 52, 1 L.Ed. 53.
The district court denied the recovery of any interest without seeking to take advantage of its discretionary power to refuse interest (Okeechobee County, Florida v. Nuveen, 5 Cir., 145 F.2d 684, 687), but fully and fairly stating the reasons for such denial. Each of those reasons was known- to the parties on July 1, 1954, when Harrington, et al. agreed to pay Natural “any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952.” Further, with deference, we disagree with the reasons assigned by the learned district judge. In our opinion, no duty rested on Natural to supersede the order, Natural’s suggestion of an escrow arrangement should not prejudice its right to interest, and though, it had received increased rates from its customers, such increase was granted subject to the provision recited in the order of the Federal Power Commission, that if Natural be successful in thé litigation, “ * * * it will refund to its utility customers, on a basis to be approved by the Commission, the sum or sums so recovered.”
Finally, we find that there was no genuine issue as to any material fact and that Natural was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. While the judgment might be affirmed in the part complained of in Harrington’s appeal and reversed in the part complained of in Natural’s appeal, it is simpler, we think, to vacate the entire judgment and remand the cause with directions to enter judgment in accordance with this opinion in favor of the plaintiff against the defendants for the sum of $1,623,770.23, together with interest at 6 per cent per annum from April 11, 1955 on such sum or any portions thereof remaining unpaid down to the date of payment, and with costs, and it is so ordered. The costs of this appeal are taxed against D. D. Harrington, et al.
Vacated and remanded.
. To avoid confusion, particularly from the cross-appeals, D. D. Harrington, ot al, and their predecessors in interest, I’anoma Corporation, will be collectively referred to as “Harrington”, and Natural Pipeline Company of America as “Natural”.
. F,or the basic reason of that rule, see 40 Am.Jur., Payment, Sec. 158.
. “Acceptance of this check constitutes full payment of and settlement for the account described on the statement attached * * *
“Payment of gas purchased on original and supplemental contracts from June 23, 1954 to 10:00 A.M. July 1, 1954.”
. “As to the matter of interest, I have concluded that it is just and equitable, under the circumstances of this case, to deny plaintiff’s claim for interest. In so concluding, I have taken into account all the facts and circumstances before me, including the fact that Natural could have superseded the operation of the order as to this gas, and kept the use of the money, by filing a mere undertaking without surety or penal amount (as did Northern Natural Gas Company); that it was willing to waive interest if Panoma would agree to the escrowing of the excess payments; and that for most of the period in question it has been able to recoup the excess payments by increased rates to its customers, so that it has not in fact been deprived of the use of the money.” [139 F.Supp. 463.]
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HATCHETT, Circuit Judge:
In this excessive use-of-force case against law enforcement officers, we affirm the district court, but hold that a jury should seldom, if ever, be instructed on qualified immunity; the availability of a qualified immunity defense is a question of law for the court to determine.
FACTS
Kevin Ansley, a security guard, lived and worked approximately twenty feet from a Circle K convenience store in Tampa, Florida. The Circle K store, which was known as a “high profile” store had been robbed several times in 1987. On June 7, 1987, following a rash of convenience store robberies in Tampa, the Hillsborough County Sheriff’s Department conducted a large scale convenience store stake-out including the Circle K store near Ansley’s home.
The sheriff’s department assigned Officers Winsett and Onheiser, two homicide detectives, to stake-out this Circle K store. Before beginning the stake-out, the officers received a short oral briefing regarding the store’s location and its history of robberies. Neither officer had received formal training in robbery stake-out procedures nor were they aware of the Sheriff’s Department’s written policies and procedures regarding stake outs. Officers Win-sett and Onheiser arrived at the Circle K store on June 7 at 9 p.m. just after dark. They parked their unmarked vehicle across the street from the store, from which point they could see the store’s front doors. The officers did not notify store personnel or neighbors of their presence.
At approximately 9:15 p.m., Ansley heard and saw suspicious activities in the Circle K parking lot. Ansley assumed the store was once again being robbed, so he left his apartment with his .357 magnum pistol and proceeded toward the store. Upon arriving at the store, Ansley surveyed the parking lot and saw a car with two occupants. As Ansley moved toward the store’s front doors, he tucked the pistol under his arm. He then entered the store, summoned the clerk, and assured himself of her safety.
From their position across the street, Officers Winsett and Onheiser watched Ans-ley through binoculars as he moved toward the store’s entrance with the large frame pistol pointed toward the ground. The officers also observed Ansley tuck the pistol away as he approached the store. While Ansley was inside the store, the officers drove past the store and parked their vehicle adjacent to the building. From this new location they could no longer see what was occurring inside the store.
Ansley spent approximately thirty seconds in the store before proceeding along the alley adjacent to the Circle K store with his pistol in his right hand, hanging halfway between his thigh and knee. As Ans-ley neared his apartment, Officer Onheiser shouted, “Police officer, freeze” and Win-sett yelled, “Sheriffs Office.” Ansley turned towards the officers. The record contains conflicting evidence as to whether Ansley raised his right hand containing the pistol when the officers spoke. The officers fired two rounds. The first round hit Ansley in his left side, and the second passed through his right leg. Both officers commanded Ansley to drop his pistol, but Ansley continued staring at the officers for about ten seconds before collapsing.
PROCEDURAL HISTORY
In June, 1988, Ansley filed a civil action for damages in the United States District Court for the Middle District of Florida. He named Officers Winsett and Onheiser, personally, and Walter Heinrich, the Hills-borough County Sheriff, as defendants. Ansley alleged that: (1) Officers Winsett and Onheiser violated his fourth, fifth, and fourteenth amendment rights; (2) Sheriff Heinrich violated his civil rights by failing to establish, follow, or enforce proper robbery stake-out systems and procedures for his officers; (3) Officers Winsett and On-heiser negligently shot him committing a civil assault and battery; and (4) Officers Winsett and Onheiser’s negligence was vicariously attributable to Sheriff Heinrich.
Officers Winsett and Onheiser filed separate answers from Sheriff Heinrich. All the answers, however, asserted several affirmative defenses including probable cause for the shooting, comparative negligence, and qualified immunity. The district court denied the officers’s motions for summary judgment after finding disputed issues of fact surrounding the shooting.
At trial, the district court gave the jury separate instructions on each claim. The jury found Officers Winsett and Onheiser each 20 percent liable for the negligence claim and found Sheriff Heinrich 10 percent liable on the negligence claim. The jury further found Ansley 50 percent negligent and reduced his initial $100,000 damage award to $50,000. Additionally, the jury found in the officers’ and the sheriff’s favor on the constitutional claims and the assault and battery allegations. The district court denied the officers’ motions for directed verdicts and judgments notwithstanding the verdict. The officers appeal and Ansley cross-appeals.
CONTENTIONS
The officers contend that the district court erred in denying their motions for directed verdicts and judgments notwithstanding the verdict on Ansley’s negligence claim. Specifically, the officers contend that Ansley did not establish a prima facie case of negligence because he failed to prove that the officers owed him a duty to refrain from using deadly force during the attempted arrest.
In response, Ansley contends that the facts presented amply supported the jury’s verdict on the negligence claim. On cross appeal, Ansley contends that the district court erred in instructing the jury that negligent conduct alone could not be the basis of a section 1983 action and that the district court erred in instructing the jury on qualified immunity.
ISSUES
We address the following issue on appeal: (1) whether the district court erred in denying the officers’ motions for directed verdict and judgment notwithstanding the verdict; and (2) whether the district court erred in instructing the jury on negligent conduct and qualified immunity.
DISCUSSION
1. Directed Verdicts and Judgments Notwithstanding the Verdict
The officers contend that Ansley did not prove the duty prong of his negligence claim. They argue that under Florida law an officer does not owe a suspect a duty to refrain from discharging a weapon during an attempted arrest. The officers rely on Fla.Stat. § 776.05 which states in pertinent part:
A law enforcement officer or any person whom he has summoned or directed to assist him need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest or when necessarily committed in retaking felons who have escaped or when necessarily committed in arresting felons fleeing from justice.
According to the officers, if an officer is entitled to use force and does so during an arrest, then the officer has breached no duty. Consequently, the officers assert that the district court erred in allowing the jury to consider Ansley’s negligence claim because the duty owed to Ansley was a question of law to be determined by the court.
We review the district court’s denial of motions for directed verdict or judgment notwithstanding the verdict
in the light and with all reasonable inferences most favorable to the party opposed to the motion.... [I]f there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.... [I]t is the function of the jury as the traditional finder of facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.
Gregg v. U.S. Industries, Inc., 887 F.2d 1462, 1468-69 (11th Cir.1989) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969) (en banc)).
The district court denied the officers’ motions for directed verdict and judgment notwithstanding the verdict after noting that the evidence presented in the case amply supported the jury’s verdict. The principal issue regarding Ansley’s negligence claim was whether Officers Winsett and Onheiser had a duty not to discharge their weapon upon confronting him. At trial, both officers testified that Ansley initially approached the store with his pistol pointed toward the ground, and later tucked the pistol away before entering the store. The officers also testified that they did not see Ansley take anything from the store; they could not see Ansley while he was in the store; they heard no sounds from the store indicating that it was being robbed; and Ansley did not leave the store in a hurried manner. Furthermore, the officers testified that Ansley exhibited no show of force. According to the officers, their main reason for shooting Ansley was the fact that he raised his right hand as he turned to face them after they yelled “police, freeze.”
Ansley’s testimony regarding the shooting varied from the officers’. According to Ansley, he did not hear the officers yell, “police, freeze.” Ansley testified that he heard a sound and as he turned to determine what caused the sound, he heard a loud double snap from weapons and felt a sharp pain in his right side and then his right leg. Ansley testified that he did not raise his right hand as he turned nor did he act in a threatening manner toward the officers.
Florida Statutes § 776.05 allows an officer to use any force reasonably necessary to defend himself or others from bodily harm while making an arrest. Whether the officers’ use of force was reasonably necessary is an issue of fact for the jury to determine. City of Winter Haven v. Allen, 541 So.2d 128, 136 (Fla. 2d D.C.A. 1989). From our review of the record, we agree with the district court that the jury had ample evidence to support its verdict. Therefore, the district court correctly denied the officers’ motions for directed verdicts and for judgments notwithstanding the verdict.
2. Jury Instructions — Negligent Conduct
We turn next to Ansley’s contention challenging the district court’s instruction regarding negligent conduct. According to Ansley, the district court erred when it instructed the jury on his constitutional claims as follows:
You are instructed that negligence, standing alone, is not a constitutional violation. And accordingly, you may not find for the plaintiff on the constitutional complaint, based on that theory, although you will see in these instructions, negligence otherwise may impose liability on the defendants.
Ansley asserts that the district court’s instruction was clearly erroneous and prejudicial in that the jury was mandated to withhold a viable basis for showing a constitutional violation. Ansley’s contention must fail, however, in light of the recent United States Supreme Court decision in Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). In Brower, the Court concluded that unintended consequences of government action could not form the basis for a fourth amendment violation. Brower, 109 S.Ct. at 1381. Consequently, the district court correctly instructed the jury that negligent conduct alone absent any intentional government conduct could not form the basis of a section 1983 claim premised on the fourth amendment.
3. Jury Instruction — Qualified Immunity
Finally, we address Ansley’s cross-appeal which challenges the district court’s jury instruction on qualified immunity. Ansley argues that the district court incorrectly submitted to the jury the affirmative defense of qualified immunity. The instruction submitted to the jury reads as follows:
Now in this case the officers have asserted a defense that they objectively believed that they were acting in good faith and in accordance with the law at the time ... that plaintiff was shot_
Now if you find from the evidence that reasonable police officers could have acted the same as officers Winsett and On-heiser under the same or similar circumstances and that they believed their acts to be lawful, then these officers have prevailed on their affirmative defense of qualified immunity and you should return a verdict in their favor on this claim.
Ansley argues that at the time of the shooting, the law concerning deprivation of fourth amendment rights resulting from excessive use force was clearly established. Therefore, the issue of qualified immunity should not have been presented to the jury. Furthermore, Ansley argues that the affirmative defense of qualified immunity is to be determined on an objective reasonableness standard; thus, the officers’ subjective beliefs are irrelevant.
Since the Supreme Court’s ruling in Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), this court has not specifically addressed whether a qualified immunity defense should be presented to the jury. Consequently, we will review the Supreme Court precedent on qualified immunity and discuss other circuits’ rulings on whether qualified immunity should be included in a jury instruction.
The affirmative defense of qualified immunity protects public officials, acting within the scope of their discretionary authority and under clearly established law, from insubstantial lawsuits. Butz v. Economou, 438 U.S. 478, 507-08, 98 S.Ct. 2894, 2911, 57 L.Ed.2d 895 (1978). In Harlow v. Fitzgerald, the Supreme Court enunciated an objective reasonableness standard for determining qualified immunity. The Court stated: “Reliance on the objective reasonableness of an official’s conduct, as measured by clearly established law, should avoid excessive disruption of government and permit resolution of many insubstantial claims on summary judgment.” Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. The Court further stated:
If the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal development nor could he fairly be said to ‘know’ that the law forbade conduct not previously identified as lawful.... If the law was clearly established, the immunity defense ordinarily should fail since a reasonably competent public official should know the law governing his conduct.
Harlow, at 819, 102 S.Ct. at 2738.
Determining qualified immunity on a motion for summary judgment became troublesome among the circuits, particularly when disputed issues of material facts surrounded the officials’ conduct. See BCR Transport Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984) (qualified immunity is a question of reasonableness and the reasonableness determination was properly left for the jury to resolve); Bauer v. Norris, 713 F.2d 408, 411 & n. 6 (8th Cir.1983) (good faith defense depends on the defendant’s motivation which is ordinarily a question for the jury). Consequently, two years after Harlow, the Supreme court reiterated the objective reasonableness standard in excessive use of force eases and further stated that “no other circumstances are relevant in the issue of qualified immunity.” Davis v. Scherer, 468 U.S. 183, 191, 104 S.Ct. 3012, 3017, 82 L.Ed.2d 139 (1984). Nonetheless, the circuits continue to wrestle with the public official’s subjective belief in determining the reasonableness of the conduct. Additionally, questions arose whether the district court’s ruling on summary judgment was a final appealable order in light of Harlow’s pronouncement that qualified immunity protects public officials from insubstantial claims at the summary judgment phase. See Flinn v. Gordon, 775 F.2d 1551 (11th Cir.1985).
Thus, the Supreme Court in Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) permitted immediate appeal from the district court’s denial of summary judgment to the extent that the ruling turned on an issue of law. The court stated that qualified immunity was in essence “immunity from suits and like absolute immunity it is effectively lost if the case is erroneously permitted to go to trial.” Mitchell, at 526, 105 S.Ct. at 2815. The Supreme Court’s qualified immunity precedent aims at one goal: to keep the public official out of the courtroom, free to exercise discretionary duties under clearly established law without the constant threat of lawsuits.
The Court further stated that a denial of an official’s motion for summary judgment based on qualified immunity satisfied the criteria of an appealable interlocutory decision in either of two respects: (1) the district court concluded that taking the official’s facts as true, the official’s actions violated clearly established law and are therefore not within the scope of qualified immunity; or (2) the district court concluded that given the plaintiff’s facts, the official is not immune. Under the first scenario, the Court noted that nothing in the subsequent course of the district court proceeding could alter the court’s conclusion that the official’s conduct was not within the scope of qualified immunity. Regarding the second scenario, the Court noted that at trial, the plaintiff may not succeed in proving his version of the facts. Thus, the official would escape liability. Mitchell, at 528, 105 S.Ct. at 2816.
The Court adopted Harlow’s objective test and Mitchell’s summary judgment analysis in Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). Like Harlow and Mitchell, Anderson holds that the qualified immunity defense is a question of law to be decided by the court. Anderson, at 635, 107 S.Ct. at 3034. Yet, neither Harlow, Mitchell, nor Anderson discussed whether the jury, in deciding the reasonableness of the officer’s conduct, should receive an instruction regarding qualified immunity.
Accordingly, the circuits disagree as to whether qualified immunity should become a part of the jury instruction once the affirmative defense has been denied on a motion for summary judgment. Three circuits have specifically addressed this issue. The Second Circuit in Warren v. Dwyer, 906 F.2d 70 (2d Cir.1990) reviewed the following jury instruction:
If you find by a preponderance of the evidence that the defendant Officer Dwyer did not have probable cause to believe that the plaintiff Lamont Warren was committing the criminal offense of ‘breach of the peace’ that does not end your inquiry.... The defendant may be entitled to ... qualified immunity.
Warren, at 74. The Second Circuit did not directly decide whether the district court erred in sending the issue of qualified immunity to the jury because based on the record, the court was unclear whether the jury considered the immunity defense in reaching its verdict. The court, however, addressed the jury instruction on qualified immunity stating:
Instructing the jury on both issues may seem redundant. The better rule we believe is for the court to decide the issue of qualified immunity as a matter of law preferably on pretrial motion for summary judgment when possible, or on a motion for directed verdict. If there are unresolved factual issues which prevent an early disposition of the defense the jury should decide these issues on special interrogatories. The ultimate legal determination whether, on the facts found, a reasonable police officer should have known he acted unlawfully, is a question of law better left for the court to decide.
Warren, at 76. The Second Circuit nonetheless affirmed the district court’s instruction after finding that the instructions were not inherently contradictory and did not confuse the jury.
Similarly, the Seventh Circuit in Llaguno v. Mingey, 763 F.2d 1560 (7th Cir.1985) reviewed the following jury instruction on qualified immunity. “The law allows a defendant to defend a charge of unconstitutional entry by claiming a good faith belief that, under the circumstances, it was reasonable to enter the Llagunos’ home without a warrant. The defendant also must prove that such good faith belief was reasonable.” Llaguno, at 1569. The Seventh Circuit stated that qualified immunity is an issue of law for the court to decide. The court noted that the defendant’s subjective belief is irrelevant. Thus, the Seventh Circuit concluded that the district court committed reversible error in instructing the jury that the defendants were entitled to a good faith defense based upon their subjective beliefs.
In contrast, the Ninth Circuit in Thorsted v. Kelly, 858 F.2d 571 (9th Cir.1988) found that the district court’s jury instruction on qualified immunity was not erroneous. The instruction in Thorsted read:
The defendant is entitled to a qualified immunity only if he did not know what he did was in violation of law and if a confident public official could not have been expected at the time to know that the conduct was in violation of law. If you find that a reasonable official in defendant’s situation could believe his conduct to be lawful, then this element will be satisfied.
Thorsted, at 573. The Ninth Circuit noted that at least five other circuits shared its view that qualified immunity from damages may be asserted during trial. Thorsted, at 575; B.C.R. Transp. Co. v. Fontaine, 727 F.2d 7, 10 (1st Cir.1984); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 456 F.2d 1339, 1347-48 (2d Cir.1972); McElveen v. County of Prince Williams, 725 F.2d 954, 956-58 (4th Cir.), cert. denied, 469 U.S. 819, 105 S.Ct. 88, 83 L.Ed.2d 35 (1984); Bauer v. Norris, 713 F.2d 408, 411 & n. 6 (8th Cir.1983); Bledsoe v. Garcia, 742 F.2d 1237, 1240 (10th Cir.1984). Therefore, without approving the wording of the jury instruction, the Ninth Circuit found that the district court did not err in giving the jury an instruction on qualified immunity because the law regarding qualified immunity was fairly and adequately represented in the instruction. Thorsted, at 576.
We turn now to Eleventh Circuit law on qualified immunity. Following Harlow, this court in Zeigler v. Jackson, 716 F.2d 847 (11th Cir.1983) announced a two-part test for analyzing a public official’s motion for summary judgment based on qualified immunity. In part one, the public official must prove that he was acting within the scope of his discretionary authority when the wrongful acts alleged occurred. In part two, the burden of proof shifts to the plaintiff to show the official’s lack of good faith. The district court determines whether the plaintiff satisfies the burden of proof in the second step by ascertaining whether the law was clearly established at the time the public official acted and whether genuine issues of material fact exist. Zeigler, at 849. Accord Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988). The Zeigler/Rich two-part analysis permits the district court to determine as a matter of law, based on the clearly established law at the time the official acted and genuine issues of fact surrounding the official’s action, whether the official is subject to a subsequent trial.
Additionally, this circuit has stated that qualified immunity is a question of law that may be asserted in three ways: (1) on a pretrial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the request for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c); or (3) on a summary judgment motion pursuant to Federal Rule of Civil Procedure 56(e). Bennett v. Parker, 898 F.2d 1530, 1535 n. 2 (11th Cir.1990). All three motions precede the trial and require the district court to rule as a matter of law, whether the official is entitled to the defense of qualified immunity. See Bennett, at 1535 n. 2. Such a holding is in accord with Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, which held that the defense of qualified immunity is in essence immunity from suits.
In light of these standards regarding qualified immunity, we turn now to the district court’s jury instruction on Ansley’s section 1983 claim. We review the district court’s instruction to determine whether “the charge, considered as a whole, sufficiently instructs the jury so that the jurors understood the issues involved and are not misled.” Gregg v. United States Industries, Inc., 887 F.2d 1462, 1468 (11th Cir.1989). A review of the district court’s instruction reveals that the court incorrectly instructed the jury on the officers’ good faith belief and on the affirmative defense of qualified immunity. Nonetheless, the instructions, taken as a whole, did not mislead the jury. The district court correctly instructed the jury on the clearly established law of excessive use of force. Additionally, the district court’s instruction required the jury to determine the reasonableness of the officers’ conduct considering all of the facts and circumstances surrounding the case. Furthermore, in its answer to interrogatories, the jury found that the officers did not violate Ansley’s constitutional rights given the circumstances of the case. Nothing indicates that the jury found that the officers were entitled to qualified immunity from the lawsuit. In fact, no place in the interrogatories submitted to the jury is qualified immunity mentioned. Obviously, the lawyers did not focus on qualified immunity or seek to focus the jury on qualified immunity issues. Although mentioned during the instructions, we are persuaded that qualified immunity dropped out of the case. The jury knew exactly what the fact issue was. Therefore, we find that the jury instruction, taken as a whole, did not mislead the jury and result in the defeat of Ansley’s section 1983 claim.
We reiterate that qualified immunity is a question of law for the court to decide preferably on pretrial motions for (1) failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6); (2) judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c); and (3) a motion for summary judgment under Federal Rule of Civil Procedure 56(e). Bennett v. Parker, 898 F.2d at 1535 n. 2. Qualified immunity is an affirmative defense from trial and not a defense to liability issues raised during trial. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. Accordingly, once the defense of qualified immunity has been denied pretrial due to disputed issues of material facts, the jury should determine the factual issues without any mention of qualified immunity.
Furthermore, we follow the teachings of Harlow and Mitchell to instruct the district court on qualified immunity. In Harlow, the Supreme Court stated that the immunity defense should fail if the law governing the official’s actions has been clearly established. In this case, the officers asserted qualified immunity as a defense to Ansley’s constitutional claim based on the officers use of deadly force. At the time of Ansley’s trial, the law regarding an officer’s use of deadly force during an attempted arrest was clearly established in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Thus, the district court correctly denied appellant’s motion for summary judgment based on qualified immunity.
Following the district court's denial of a public official’s motions for summary judgment, Mitchell v. Forsyth allows the public official an immediate appeal of the summary judgment ruling. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815. If the district court’s denial of the motion for summary judgment is affirmed on appeal, the case goes to trial without mention of the affirmative defense of qualified immunity.
On the other hand, if this court reverses the district court’s denial of the motion for summary judgment, the public official is entitled to qualified immunity and the case is at an end. Mitchell, at 528, 105 S.Ct. at 2816. Harlow further states that if the law is not clearly established, the official is entitled to summary judgment regardless of factual disputes. Harlow, 457 U.S. at 818, 102 S.Ct. at 2738.
As stated in Mitchell, the district court’s denial of an official’s motion for summary judgment determines one of two things: either the official’s actions, in light of the facts asserted by the official, violated clearly established law and are therefore not within the scope of qualified immunity, or, assuming the plaintiff’s facts are true, the official is not immune. Mitchell, 472 U.S. at 528, 105 S.Ct. at 2816. In this case, the district court denied the officers’ motions for summary judgment after finding disputed issues of fact surrounding the officers’ and Ansley’s conduct at the time of the shooting. The main factual dispute was whether Ansley raised his right arm containing the pistol as he turned towards the officers. The district court’s denial of summary judgment rested on the fact that the officers were not immune if Ansley proved his statement of the facts at trial.
CONCLUSION
Although the district court incorrectly mentioned qualified immunity to the jury, the court’s instruction, taken as a whole, did not mislead the jury on Ansley’s section 1983 claim. In other rulings, the district court did not err.
The district court is affirmed.
AFFIRMED.
. The district court instructed the jury, as follows:
Now, rather, the acts of the officer making an arrest are to be measured by the test of what a reasonable police officer would have believed under the same circumstances.
As to the plaintiff’s claim that he was subjected to excessive force by the officers, you are instructed as a matter of law, that the use of deadly force by the officers in shooting Mr. Ansley violated his civil rights, unless the shooting was reasonable under all the facts and circumstances.
Now, in order to be considered reasonable, the following elements must exist: First, the officers must have had probable cause to believe that Mr. Ansley posed a threat of serious physical harm to themselves or to others. In other words, if the officers acted in self-defense under circumstances where a reasonable person would believe that his life was in danger or that he was in danger of serious physical harm.
******
Now, probable cause, as that term is used here, demands an analysis of the totality of the circumstances by the officers, and each of them, to decide on a practical, common sense basis, whether given all the circumstances known to them at the time of the firing of their weapons, that they could reasonably believe that Mr. Ans-ley posed a threat of serious physical harm to them and had committed a crime involving the infliction or threatened infliction of serious physical harm.
Now, probable cause does not demand a showing that the danger which gave rise to the officers’ belief actually existed. It is sufficient that the officers reasonably believe in the existence of such a danger and that such reasonable believe is sufficient, even where it is mistaken. Now, if you find that the Plaintiff has failed to prove by preponderance of the evidence that the officers acted unreasonably, then your verdict must be for them, that is the Defendants on this particular claim.
. Q. 1. Did either/or both of the following defendants perform any acts which operated to deprive plaintiff of any of his federal constitutional rights? Which acts were legal cause of loss, injury, or damage to the plaintiff?
A. [Harold E. Winsett?] No. [Gerald Onheiser?] No.
Q. 2. Did defendant Walter C. Heinrich as Sheriff of Hillsborough County have any custom, policy, ordinance, regulation, or decision which operated to deprive the plaintiff of any of his federal constitutional rights which were a legal cause of loss, injury, or damage to the plaintiff.
A. No.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
WIDENER, Circuit Judge:
This is an appeal by the United States pursuant to 18 U.S.C. § 3731 from an order of the district court suppressing certain evidence discovered during a warrantless search of an automobile. We reverse.
At approximately 3:00 a. m., on the morning of August 26, 1974, two United States Park Policemen responded to a report that a 1959 Chevrolet with Louisiana license tags was being driven in a reckless manner on the George Washington Memorial Parkway, a federal reservation near Alexandria, Virginia. The vehicle was subsequently stopped and the driver, one Evans, placed under arrest for “driving under the influence” [of alcohol]. Since Evans could produce no evidence of ownership of the vehicle, it was decided the car would be impounded and investigated further as a possible stolen auto. This defendant, Chulengarian, who was a passenger in the car, got out in order to be driven to Alexandria, where he could make other arrangements to get home.
As Chulengarian stepped from the car, a park police detective who had arrived on the scene, and who opened the door for Chulengarian, observed a pipe commonly used to smoke marijuana, as well as a marijuana cigarette, on the floor beside the seat. The police officer then observed the interior of the vehicle more closely and noticed an open brown bag in the back seat which contained two plastic bags of what appeared to be marijuana.
The bags were seized and a more thorough search of the vehicle was conducted. Upon opening the glove compartment, a loaded snub nose .38 caliber revolver was discovered. As a result of this evidence, Chulengarian was placed under arrest for possession of drugs as well as possession of the pistol.
Both Chulengarian and Evans were transported to the Alexandria city jail. Their car was towed to the Park Police impoundment lot, where it was again searched for contraband, as well as for evidence of ownership, some three to four hours after the initial search. During this second search of the vehicle, two plastic bags of white powdery substance, later identified as cocaine, were discovered. In addition, the officers found two scales and a notebook containing narcotics records.
A third warrantless search of the car was conducted in the impoundment lot the next night. Still another bag of cocaine was discovered, this time in what was called the headliner above the passenger side of the front seat. This evidence, along with the cocaine and other evidence discovered during the earlier search at the impoundment lot, was suppressed by the district court on the grounds that these warrantless searches were searches for evidence as opposed to what it described as inventory or caretaker searches sanctioned in Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973). As such, the court reasoned that there were no exigent circumstances which justified a search without a warrant.
The Supreme Court has recently held, however, that where the police have probable causé to search an automobile at the scene of an arrest, they may do so later at the station house since the probable cause factor still obtains. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975), cited and construed Chambers v. United States, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), as follows:
“In Chambers v. Maroney, we held that police officers with probable cause to search an automobile on the scene when it was stopped could constitutionally do so later at the station house without first obtaining a warrant.” 423 U.S. 67, 68, 96 S.Ct. 304, 305, 46 L.Ed.2d 209.
Here, the police had probable cause to search the vehicle at the time of the arrest upon observing what appeared to be two bags of marijuana in plain view in the back seat of the car as well as the pipe and cigarette. Also, no evidence of ownership of the vehicle could be produced by the driver who was driving “under the influence.” The removal of the automobile to the police impoundment lot did not obviate the probable cause already existing so as to render the subsequent searches constitutionally impermissible. As in Texas v. White, “ . . ‘[t]he probable cause factor’ that developed on the scene ‘still obtained at the station house’.” 423 U.S. 68, 96 S.Ct. at 305, 46 L.Ed.2d 209. The taking of the car to the police impoundment lot, where a thorough search could be conducted, was neither more of a seizure nor more of an intrusion than was involved in the on-the-scene search and seizure, both of which were permissible.
We are of opinion the district court erroneously suppressed the evidence seized in the searches conducted at the impoundment lot. The suppression order is accordingly set aside and the case remanded for further proceedings.
VACATED and REMANDED.
. The government also seeks review of the district court’s denial of a continuance as to Counts II and III of the original indictment following suppression of evidence pertaining to Count I. Assuming without deciding the government may so appeal, the granting or denying of a continuance is a matter within the sound discretion of the district court. We are of opinion the court did not abuse its discretion in denying the continuance, particularly in light of the fact that the evidence suppressed did not go to the guilt or innocence of the defendant under Counts II and III.
. The substance later turned out to be phencyclidine impregnated on parsley. Phencyclidine is a schedule III controlled substance. See 21 U.S.C. § 812(c), Schedule 111(b)(7). It is the subject of count II of the indictment and was not suppressed. See 21 U.S.C. § 841(a)(1).
. The suppression hearing was held April 11, 1975.
. No question is made on appeal of the suppression by the district court of certain evidence seized under search warrant.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
WALLER, Circuit Judge.
This action was brought to rescind a contract and to recover a deposit of $4,000' paid as an advance on the purchase price of certain wedges and bolts under that contract. The lower Court on a former trial found for the plaintiff and entered a judgment for $4,000, less the value ($20.25) of 675 bolts and wedges delivered by the defendant and admittedly used by the plaintiff.
On appeal this Court sustained the findings of the trial Court that time was of the essence of the contract; that defendant had failed to ship within the time provided for in the contract; and that plaintiff had a right to, and did, rescind in July, 1943. Our opinion stated, however, that it not being shown that the bolts and wedges which had been shipped prior to the rescission were of no intrinsic value, plaintiff should have returned the goods or offered to return them, or, more properly, that the lower Court was in error in not requiring an accounting for all the bolts and wedges shipped prior to the date of rescission. We, therefore, reversed and remanded for proceedings not inconsistent with our opinion. Morris v. Prefabrication Engineering Co., 5 Cir., 160 F.2d 779.
The only question remaining was the amount of credit to be given to the defendant for the 42,180 bolts and wedges shipped prior to the rescission, the answer to which is dependent upon whether, because of the lateness of their delivery, these bolts and wedges had only a salvage value to plaintiff, or whether the unit prices of such bolts and wedges should govern.
The record on the prior trial reflected the total quantity of bolts and wedges shipped before rescission, as well as the unit price of the bolts, but the unit price of the wedges was not shown. On remand, plaintiff moved in the Court below for a summary judgment in the amount of $3,954.-50, predicated upon the allowance of the negligible salvage value of the bolts and wedges or, in the alternative, for a summary judgment for $2,734.60, predicated upon the allowance of the full unit price of the bolts and wedges delivered before rescission. Plaintiff attached to its motion an affidavit of a Mr. Johnson by which it sought to show the salvage value of the wedges to be $5 and — in the alternative— the unit value to be 30, in the event salvage value were not adopted.
The Court granted summary judgment for the lesser sum of $2,734.60, predicated upon the allowance of the full unit price for the wedges and bolts delivered before rescission. The defendant appealed from the entry of such judgment and the plaintiff cross-appealed, urging that the judgment should have been for the greater sum of $3,954.50.
The defendant contends that the alternative motion for summary judgment by the plaintiff in the sum of $2,734.60 constituted an admission, so to speak, by the plaintiff that the amount in controversy was not in excess of $3,000, by virtue whereof the lower Court had no jurisdiction.
We hold this assignment not to be well taken. At the time of the commencement of the action the requisite jurisdictional amount was involved, and the fact that the plaintiff alternatively reduced the amount of its demand in its motion for summary judgment in conformity to the law applied by this Court in the previous appeal would not, ipso facto, divest the Court of jurisdiction where, as here the plaintiff, in good faith, claimed an amount in excess of $3,000, with legal interest and costs, even though the amount awarded was less than the required jurisdictional amount. Service Finance Corporation v. Coppard, 5 Cir., 116 F.2d 488.
The defendant next insists that the motion for summary judgment should not have been granted because there was a genuine issue as to amount of damages and that he was deprived of the right to a trial and the introduction of competent evidence as to the true value of the articles in question. He also urges that the entry of the summary judgment was erroneous because there was nothing in the affidavit of Mr. Johnson to show that he was qualified to give an opinion as to the value of the articles involved.
We cannot agree with the defendant. We think a summary judgment was proper in this instance and served the very purpose for which Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A., was intended in putting an end to vexatious and interminable litigation when no- material fact was at issue. The judgment for the lesser amount, sought in the alternative, could not in any wise prove harmful or detrimental to the defendant inasmuch as the record shows that the wedges could not have cost more than the bolts, and that the bolts, according to defendant, had a unit price of 30. It was this maximum unit price of 30 for the wedges that was accepted by the Court as presented by the plaintiffs affidavit. We fail to discern any right in the defendant to receive in rescission of his contract a price greater than he would have been entitled to had he fulfilled his contract. Moreover, defendant is not advantageously situated to complain of the lower Court’s acceptance of the unit price of the wedges as set out by the plaintiff’s affidavit since he failed to file a counter affidavit or to avail himself of subsection (f) of Rule 56 intended to serve, and capable of serving, those in the position in which he deems himself. Board of Public Instruction v. Meredith, 5 Cir., 119 F.2d 712; U. S. v. Freeman, D.C. Mass., 37 F. Supp. 720; Fletcher v. Krise, 73 App.D.C. 266, 120 F.2d 809.
The plaintiff, cross-appellant, complains of the entry of the summary judgment for the alternative and lesser amount on the ground that only the negligible salvage value should have been allowed as a deduction to the defendant, but we think that in the absence of a seasonable return, or an effort to- so return, the bolts and wedges, the contention is without merit.
The judgment of the District Court is affirmed both as to the appeal and the cross-appeal.
Affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
OAKES, Circuit Judge:
This hotly contested — perhaps overly contested — litigation involves patents and devices in the field of microwave radiation detection. This field became of general importance to consumers only after the microwave oven became available in the late 1960s. Even before then, however, the detection of microwave radiation was important to the military and to the safety of its personnel; indeed one of the patents in issue arose out of an Air Force contract.
Three of the four patents in issue are held by The Narda Microwave Corporation (Narda), which commenced this action for their infringement against General Microwave Corporation (General) in the United States District Court for the Eastern District of New York, George C. Pratt, Judge. Narda’s Patent No. 3,641,439 (the ’439 patent) for a “Near-Field Radiation Monitor” (that is, a microwave-oven monitor) was held valid but not infringed by General’s devices. The court found that Narda’s second patent, No. 3,794,914 (the ’914 patent), for a radiation detector employing thermocouples with resistive elements, was invalid because anticipated by the invention embodied in General’s Patent No. 3,931,573 (the ’573 patent), even though the filing and issue dates of the ’573 patent were later than those of the ’914 patent. General’s ’573 patent was in turn held valid and infringed by Narda’s monitoring devices. Both the Narda ’914 and the General ’573, as used in the companies’ respective monitoring devices, measure microwave radiation over a broad spectrum of microwave activity. The court held the final patent involved in this appeal, Narda’s Design Patent No. 211,588 (the design patent), which pertained to the design of Narda’s probe, invalid under 35 U.S.C. § 102(b), though novel, because it had been on sale for more than one year prior to the patent’s filing date.
We affirm regarding the validity but noninfringement of Narda’s ’439 patent and the invalidity of Narda’s ’914 patent. With respect to the district court’s finding that General’s ’573 patent was infringed, we reverse on the basis of the doctrine of “file wrapper estoppel.” We affirm the district court’s finding of the invalidity of the Narda design patent, though on a different ground: lack of novelty.
BACKGROUND
The frequency of radio (i.e., electromagnetic) waves is measured in cycles per second, the preferred term for which is Hertz (Hz). The term “microwave radiation” is generally used to refer to radio waves of certain high frequencies. A megacycle or megahertz (MHz) is a unit of frequency equal to one million cycles per second. A gigacycle or gigahertz (GHz) is equal to one thousand megacycles.
Microwaves are given off not only by cooking ovens but also by industrial devices for drying materials, by radar and other communications devices used by the military, and by various other broadcasting devices. The radio frequency (rf) of microwaves varies enormously so that there is a broad band of microwave activity. The district court found as a fact that “[e]xposure to excessive amounts of microwave radiation can cause severe damage to a human, including burning of the eyes and body.”
Before 1968 some devices were available to monitor microwave radiation at points in the “far field” (that is, distant from the source of radiation). But those devices could not accurately measure microwave radiation in the “near field.” The National Bureau of Standards (NBS) had worked unsuccessfully in the area of near-field radiation detection for five years prior to 1968, at which time the advent of microwave ovens greatly increased the need for a near-field radiation monitoring device. Manufacturers required a microwave-oven monitor in order to protect their potential consumers against excessive radiation and to protect themselves against potential products-liability actions. In October 1968 Congress enacted a law to establish standards governing the emission of hazardous radiation from electronic equipment.
The growing need in the field also led the National Center for Radiological Health to convene a meeting of persons skilled in the art. At that meeting on July 31, 1968, Edward Aslan, an employee of Narda and the inventor of Narda’s patents, described a far-field probing device that Narda had acquired from the Sperry Corp. As indicated by the minutes of the meeting, which were in evidence below, a skilled employee of NBS also spoke. He advised his audience of the compelling need for a probe that would be “lightly” or loosely coupled to the field, would not perturb the near field, and could be “metered” or measured through conventional signal-generating means, such as thin-film thermocouples, which would convert radio frequency waves to heat.
I. Narda’s ’439 Patent
Following the July 31 meeting Aslan set to work to solve the problem posed by the NBS. In approximately one month he developed the prototype of the Narda Model 8100 portable microwave radiation detector, to which the ’439 patent is specifically directed. The radiation detector consisted of a probe to absorb rf waves, connected to a meter. The central feature of the Model 8100 probe was its sensor assembly, which is described in the district court’s finding set forth in the margin.
Claim One of the ’439 patent, the broader of its first two claims, was as follows:
A radiation detector comprising antenna means operative in response to an electric field to produce an electric current, including thermally and electrically conductive films forming a dipole; and a thin film thermocouple connected as a load to said antenna means, the hot junction of said thermocouple being formed by overlapping end portions of thin resistive strips of dissimilar metal films having a thickness that is small relative to the skin depth of the wave energy of said electric field, and the cold junctions of said thermocouple being formed by overlapping the other end portions of said thin resistive strips with said thermally and electrically conductive films; said thermocouple and said antenna means being substantially disposed within a plane.
The Model 8100 radiation detector made under the ’439 patent was new in the art. It had a high range of accuracy and a high sensitivity to weak electromagnetic fields. Its sensor was attuned to the 2,450 MHz frequency at which most microwave ovens operated, but could be converted to operation at the 915 MHz frequency of the General Electric microwave oven by the attachment of antenna extender strips to the base of the conical tip.
The Narda 8100 won an industrial research award as one of the one hundred outstanding new products introduced in 1969 and met with immediate commercial success. As the district court found, the device “was an important step forward in the measurement of microwave radiation, and was the first instrument that was satisfactory for accurately measuring rf. energy emitted from microwave ovens.” The court held that the ’439 patent, for which Narda applied on August 8, 1969, and which was issued on February 8, 1972, was valid as to both Claim One and the narrower Claim Two.
II. Narda’s ’914 Patent
On November 19, 1971, before the ’439 patent was issued, Narda filed a continuation-in-part of the original Aslan application. The continuation-in-part application, which issued as Patent ’914 on February 26, 1974, disclosed ’439 and further embodiments of it. In one of those embodiments, the sensor assembly was formed entirely of a single thermocouple made up of resistive films and without a separate antenna. That the films were resistive distinguished them from the conductive films to which the ’439 claim referred, although the resistive films in the ’914 claim were also partly conductive. In another embodiment, overlapping resistive films formed into thermocouples that simultaneously performed the receptor function and the transducer or signal-measuring function. The trial court found that the ’439 patent contemplated separate elements for the dipole antenna and the thermocouple while the ’914 patent consisted of a thermocouple or a series of thermocouples that performed not only the signal-measuring function of the ’439 thermocouple but also the receptor function of the ’439 dipole antenna. Thus the patents were distinct and the ’914 was not entitled to the earlier filing date of the ’439.
III. General’s RAHAM Models 1 and 3
In late 1974 General introduced its RA-HAM Model 1 detector, which used the Model 81 probe based on General’s ’573 patent, discussed infra. The RAHAM Model 1 was similar in appearance to the Narda 8100 in that it used a foam spacer tip and a cable extending from the base of the probe to a meter. However, its sensor assembly included upper and lower dielectric substrates sandwiched between thermally conductive ceramic discs, on which were formed thin-film resistive strips of connected thermocouples arranged in zigzag arrays having perpendicular orientation. The overlapping resistive strips of dissimilar materials formed each thermocouple, with alternating points of contact forming hot junctions and cold junctions. Projections on the thermally conductive ceramic discs conducted heat away from the cold junctions. The thermocouples of the RAHAM Model 1 directly absorbed radiation without perturbing the field, and converted it to heat which in turn generated the current to be conducted through the resistive leads to the meter or measuring device. As in the Narda ’914 patent, the RAHAM Model 1— and the similar Model 3 introduced in 1976 —had no separate dipole antenna connected to a thermocouple as a load but rather used serially connected thermocouples to perform both the receptor and the signal-generating functions. The district court found that the RAHAM radiation detectors did not infringe the Narda ’439 patent, which described a conventional lossless dipole antenna using a thermocouple as a load.
IV. General’s ’573 Patent
The General ’573 patent, like the RA-HAM detectors and Narda’s ’914 patent, operated on a broad band by using a thermocouple array that performed both antenna and signal-generating functions. General applied for the ’573 patent after Narda applied for the ’914, and referred to the ’914 as prior art. The ’573 was actually conceived in May 1970, however, when General drew tentative plans and spent approximately $10,000 in development costs to prepare a submission to the Air Force.
On May 21, 1971, the Rome Air Development Center (RADC) awarded General a contract to produce a monitor with a frequency range of 20 KHz to 12.4 GHz. Narda had previously become aware of the proposed contract and expressed to the Air Force its view that such a monitor could not be built. Air Force personnel did not disclose the configuration or construction of the monitor that General proposed to develop, but General’s technical proposal disclosed the concept of a broad-band radiation hazards monitor employing linked thermocouples to form resistive strips, essentially as described later in the ’573 patent. The contract granted patent rights to the government and required General to notify the Air Force of any inventions conceived or reduced to practice under the contract and of the filing of any patent applications thereon.
In mid-1972 radiation monitors constructed by General were sent to the RADC and then to the NBS for final acceptance tests, which revealed that the monitors failed to meet the contract requirements below 600 MHz. General’s efforts continued over the next eighteen months. During that time General did not disclose its application for the ’573 patent in any of the research and development reports it filed with the government. On the contrary, General represented in a letter that “there were no inventions resulting from work on the referenced contract which reasonably appear to be patentable.” When questioned by the government, however, General finally disclosed its patent application and the government issued a royalty-free confirmatory license.
The Patent Office examiner responsible for prosecution of the ’573 patent rejected Claims 1 to 4 and 14 to 42, citing the Aslan ’914 patent. General then filed an amendment on October 2, 1974, in which it argued that the claims in its application were distinguishable over the Aslan patent. On May 5, 1975, General canceled the rejected Claim 1 and provoked an interference with the Aslan ’914 patent by filing a continuation-patent application that asserted four claims copied from the ’914. Interference was declared on May 18, 1976. Moving to dissolve the interference, Narda argued that two articles by Aslan describing the Narda Model 8100, and the filing for Narda’s ’439 patent, made the counts in interference unpatentable to General’s inventor Hopfer under 35 U.S.C. §§ 102 and 103. The Board of Patent Interference granted Narda’s motions and dissolved the interference without determining which party had the prior invention.
The district court found that Narda’s ’914 patent was invalid as anticipated by Hop-fer’s prior invention that became the basis for the valid ’573 patent. The court also found that Narda’s Models 8300 and 8600, which were substantially as described in the ’914 patent, infringed General’s ’573.
V. Narda’s Design Patent
The design of Narda’s probe, which the district court found to be “novel, distinctive and ornamental,” included a conical tip and a cylindrical handle having three sections of different diameters and different lengths. One section served as a handle. The central section had the longest length and the smallest diameter. A copy of the design is printed below:
General’s defense to infringement of the design patent was that Narda’s Model 8100 probe, which incorporated the design, was on sale prior to March 23, 1969, one year before the patent’s filing date.
Narda began efforts to sell the Model 8100 probe before the end of 1968. When the initial orders were taken the design, and more particularly the conical tip, had not yet been completed. Narda and its inventor Aslan later decided to incorporate a conical spacer tip on the 8100 probes which were to be delivered, and on or about December 30 Aslan signed a manufacturing drawing including the conical tip. On or about January 2, 1969, the conical tip was released for production and on March 22, 1969, the first two production probes were transferred into Narda’s inventory. Deliveries to customers were made after April 1, 1969. The court concluded that the probe detectors incorporating the design covered by the design patent were on sale before March 23, 1969, and therefore held the design patent invalid under 35 U.S.C. § 102(b).
DISCUSSION
I. Narda’s ’439 Patent
Narda’s principal argument on appeal is that the district court erred as a matter of law in failing to accord its ’439 patent a sufficiently broad range of equivalents. Narda maintains that the ’439 patent discloses a broad and technologically important invention and is therefore entitled to a liberal construction, and that General’s RAHAM Models 1 and 3 are fully equivalent to the invention claimed by the ’439 patent. The argument must fail, however, in light of the district court’s findings, which are not “clearly erroneous.”
The district court found that the ’439 patent utilized a dipole antenna formed of conductive films to which was connected a thermocouple formed of resistive films. The thermocouple array used in the RA-HAM detectors and under the ’573 patent, however, has no dipole antenna. The validity of the ’439 patent did not depend on its use of an integrated antenna-thermocouple. In fact, Narda took a contrary position before the Patent Office. Its Claims 1 and 2 recited a dipole antenna means and a separate thin-film thermocouple as a load. Its Claims 11 and 13 likewise referred to antenna means. In arguing that his patent claims were not anticipated by Moles Patent No. 2,365,207, Aslan emphasized in an amendment that his invention combined a “distinct” antenna and a separate thin-film thermocouple. Another amendment similarly emphasized that the thermocouple and the antenna were separate elements. Narda now argues that the doctrine of equivalents should be applied to expand the scope of its ’439 claims, but as Learned Hand, then a district judge, observed in Quinn v. J. H. Faw, Inc., 235 F. 166, 169 (S.D.N.Y.1916),
[tjhis case is the common one in which the applicant assents to conditions imposed in the Patent Office, and then, having got his patent, tries to expand it to cover exactly what he agreed it should not. Such a game of hide and seek the courts have always refused to allow. He had his remedy by appeal, and only by appeal, if the examiner was wrong.
See also Keith v. Charles E. Hires Co., Inc., 116 F.2d 46, 48 (2d Cir. 1940). This holds equally true with respect to Narda’s Claim 13, which it argues was canceled “without prejudice.” See Musher Foundation, Inc. v. Alba Trading Co., 150 F.2d 885, 888 (2d Cir. 1945). See also Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d 846, 852 (2d Cir. 1976).
II. Narda’s '914 Patent
Narda also asserts that its ’914 patent is entitled as a matter of law to the benefit of the August 8, 1969, filing date of the ’439 patent. It argues that the first element of the combination claimed by the ’914 patent, namely “thin film orthogonal [right angled] thermocouple means forming dipoles,” is supported by the specification of the ’439 patent. We disagree. The ’914 patent described a broad-band radiation monitor, while the ’439 patent related only to narrow-band radiation detection. Like the General ’573 patent, the ’914 patent utilized resistive or “ohmic” interaction with the incoming radiation. The resistive strips had a sufficiently high resistance to provide the broad-band absorbing property with a low degree of reflectivity. The detector described in the ’439 patent, however, incorporated highly conductive antennas with negligible resistance, which created frequency sensitivity, narrow-band operation, and reflection in the field. The use of high resistance in the ’914 patent distinguished it significantly from Narda’s ’439. The Narda expert at trial and Narda’s counsel on appeal consider the word “resistive” to mean essentially the same as “conductive,” but this imprecision might well make Claim 1 of Narda’s ’439 so indefinite as to be invalid. We find that the distinction between conductive films and resistive films is significant, even though resistive films have some conductive qualities, and we conclude that the invention sought to be patented in the ’914 was not disclosed in the ’439. The new matter claimed in the continuation-in-part application therefore was not entitled to the patent filing date, 35 U.S.C. § 120, and the effective date of the ’914 patent was its filing date, November 19, 1971.
III. General’s 573 Patent
The district court properly held the ’914 patent invalid. The ’914 was anticipated by the Hopfer invention, of which Narda became aware before it applied for the ’914 patent. Indeed, Newsday had already carried a photograph of the thermocouple array that General had built and an electronics newsletter had announced General’s “array of thin-film . . . thermocouples.” A General employee had discussed the General thermocouple array with Narda’s chief engineer, who told Narda’s new-products committee what he had learned as early as mid-September 1971. Through these means Narda learned of General’s concept of a thermocouple array that did not use a conducting surface. Narda thereafter directed its own research away from the use of conductive antennae. Inasmuch as the ’914 is not entitled to the filing date of the ’439 patent, but must stand on its own; no device had been built under the ’914 patent before it was filed; and the ’914 was anticipated by the Hopfer invention as disclosed by Newsday, the electronics newsletter, and the General employee, the ’914 patent must fall.
IV. File-Wrapper Estoppel
This does not mean, however, that Narda’s Model 8300 and 8600 radiation detectors, which were produced under the invalid ’914 patent, infringed General’s ’573 patent. General’s patent is subject to the doctrine of file-wrapper estoppel.
It is a well-settled principle of patent interpretation that the extent of an invention is determined by the patent claims, together with the “file wrapper” history in the Patent Office. Under the doctrine of file-wrapper estoppel, a claim that has been narrowed for the purpose of obtaining the patent cannot be expanded to include that which was eliminated. See Graham v. John Deere Co., 383 U.S. 1, 33, 86 S.Ct. 684, 701, 15 L.Ed.2d 545 (1966). See generally 4 Deller, Walker on Patents § 234 (2d ed. 1965). A patentee who has limited a claim to circumvent a prior-art rejection by the examiner is foreclosed from later claiming an .interpretation or using the doctrine of equivalents effectively to reinstate the elements that were previously eliminated. See Exhibit Supply Co. v. Ace Patents Corp., 315 U.S. 126, 136, 62 S.Ct. 513, 518, 86 L.Ed. 736 (1942); Schriber-Schroth Co. v. Cleveland Trust Co., 311 U.S. 211, 220-21, 61 S.Ct. 235, 239, 85 L.Ed. 132 (1940); Capri Jewelry Inc. v. Hattie Carnegie Jewelry Enterprises, Ltd., 539 F.2d at 851-52. The doctrine thus prevents a patentee from taking a position in the courts that contradicts the position he took in the Patent Office.
A review of the file-wrapper history of General’s ’573 patent reveals the following: General first applied for the patent in April 1972. On March 19, 1973, all sixteen of its claims were rejected. General amended its application and added five new claims on July 13, 1973. On October 15, 1973, the Patent Office allowed General’s Claims 12 and 13, rejected Claims 1-4, 14-17, 19, and 21, and stated that Claims 5-11, 18, and 20 would be allowed if rewritten in independent form. In February and March of 1974 General again amended its application, sought reconsideration of the rejected claims, and added claims to its application. On April 18,1974, the Patent Office allowed General’s Claims 5-13 but rejected Claims 1-4 and 14-42, now citing “Aslan (914)” as prior art anticipating the claim under 35 U.S.C. § 102 or from which the claim was obvious under 35 U.S.C. § 103, over which ’573 was unpatentable. On September 30,1974, General canceled Claim 2, added two claims, and amended a number of other claims. In requesting reconsideration of the Patent Office’s rejection of its claims, General repeatedly sought to distinguish its claim from “Aslan (’914).” On December 13, 1974, the Patent Office allowed Claims 5-13 but rejected the other claims “as unpatentable over Aslan (914).” In May and June 1975 General canceled Claim 1 and sought reconsideration of its remaining claims with some amendment. On June 23, 1975, the Patent Office allowed General’s remaining claims.
It is clear from the foregoing that General, whether or not it acknowledged Narda’s Patent ’914 to be “prior art,” narrowed its claims in order to obtain the issuance of a patent by distinguishing its claims from the ’914. In a September 10, 1974 request for an extension of time to respond to the Patent Office’s action of April 18, 1974, General did indicate that it “is now engaged in preparing a response to the Patent Office Action, but finds that a complete response will require the preparation of an Affidavit Under Rule 131 [37 C.F.R. § 1.131] to swear back of the prior art.” Then on May 5, 1975, General advised the Patent Office that it was copying certain ’914 claims under 37 C.F.R. § 1.205 for the purpose of provoking an interference to determine priority between the ’573 and the ’914. While General thus preserved its claim that the ’914 was not prior art, General also represented to the Patent Office that the ’573 was different from the ’914.
Although there are only slight differences between Narda’s Model 8300 and General’s ’573 patent, under the doctrine of file-wrapper estoppel General may not claim that its ’573 patent was infringed by Narda’s Model 8300 and the derivative 8600. General narrowed and amended its claims in order to distinguish them from the ’914. Therefore, General is now estopped from claiming an interpretation of ’573 that extends to radiation detectors described in Narda’s ’914.
V. Narda’s Design Patent
Finally, with respect to the Narda design patent, we disagree with the district court that the design was novel or unique. We think it was obvious. 35 U.S.C. § 103. The handgrip looks like any handgrip. The tip over the sensor shaped like a cone, with a base diameter to accommodate the antenna strips and an altitude equal to the desired space, does not reflect any exceptional talent. Arrows, weathervanes, microphones and other items in common use have the same general shape. See generally Lancaster Colony Corp. v. Aldon Accessories, Ltd., 506 F.2d 1197 (2d Cir. 1974); G. B. Lewis Co. v. Gould Products, Inc., 436 F.2d 1176, 1178 (2d Cir. 1971).
VI. Conclusion
The other numerous arguments made by both parties need not be addressed. The many motions filed by the parties seeking to strike or dismiss issues, briefs, appeals, etc. are denied as moot. Motions for leave to file briefs, answering papers, memoranda, etc. are granted.
Judgment in accordance with opinion; costs to neither party.
. “The Radiation Control for Health and Safety Act of 1968,” 42 U.S.C. §§ 263b-263n.
. The central feature of the Model 8100 is the sensor assembly which was constructed through thin film technology involving the deposition on a dielectric substrate of various metals by an evaporation process so as to create extremely thin films of those metals. The films were formed essentially into two parts: a dipole antenna consisting of copper, connected by silver to a thermocouple made of overlapping strips of bismuth and antimony. The thermocouple was placed in the same plane as the dipole antenna and terminated the antenna ‘as a load’. The entire sensor element was approximately A of an inch in length. An identical sensor element was positioned immediately above the original one, but perpendicular to it, in essentially the same plane, an arrangement that eliminated any problem of polarized electrical fields. The remainder of the invention followed relatively conventional lines, adopting a probe format with the sensor assembly at one end of the probe, connected to a meter by semi-conductive lead wires designed to draw off direct current generated by the antenna-thermocouple device.
(Emphasis added.) The tip of the probe, permitting operation of the sensor within two inches of the device being measured, was composed of styrofoam, which has the same electrical properties as free space.
. An antenna is a conductive structure transmitting or receiving radio waves to or from space. Since AM radio waves have vertical polarization, automotive antennae are usually vertical; television radio waves are horizontal so that TV antennae have horizontal Wires. A dipole is a simple antenna.
. In the ’914 patent — and in Narda’s 8300 radiation monitor — the rows are spaced close to one another, whereas in the ’573 patent and General’s Model 81 probe the spacing between the rows is greater than the width of the individual rows. Furthermore, in Narda’s monitors the free ends of the thermocouples that overlap to form cold junctions have film areas that are larger and therefore dissipate greater heat than the areas of the ends that overlap to form hot junctions. In the '573 patent and the Model 81 probe, thermally conductive ceramic discs engage the cold junctions of the thermocouples and conduct heat away from the free ends to maintain them at a lower temperature than the hot junctions in response to induced currents.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
SPARKS, Circuit Judge.
By this action the United' States of America sought the forfeiture of the respondent, Oldsmobile Sedan, for violation of the Internal Revenue laws dealing with distilled spirits. The complaint was filed on April 2, 1946. On the same day, a monition issued under the seal of the court to the United States Marshal, by virtue of which he attached the Oldsmobile, and gave due-notice of such seizure by publication and by notice to its owner, Richard Coleman, all as prescribed by the statute.
On April 5, 1946, the Grand Jury returned a “No Bill” against the claimant, Coleman, and written notice of that fact under the foreman’s signature was filed with the Clerk of the District Court on the same date.
After April 5 and before May 16, 1946, Coleman requested return of his Oldsmobile from the Assistant United States Attorney having charge of the forfeiture proceedings. He suggested to Coleman that he should consult an attorney and procure his advice with respect to the return of the Oldsmobile, and that if-he did not choose to do so, the District Attorney would procure the entry of a default decree. On May 16, 1946, the District Court entered its order of default and directed forfeiture of the Sedan to the United States of America, under which the Marshal executed the order and delivered the Sedan to the Alcohol Tax Unit. On June 24, 1946, Coleman’s counsel discussed the default decree with the District Attorney who advised him that his proper procedure would be to file a motion to vacate the decree of default, setting forth whatever grounds he deemed appropriate. Neither Coleman nor his attorney did anything further until July 22, 1946, when Coleman filed his motion to vacate the default decree, more than 60 days after the decree was entered.
Coleman’s motion to vacate the decree was predicated upon his assertion that proper officials of the United States of America had determined in point of fact that the Internal Revenue taxes had been paid on the distilled spirits found in his possession, although he did not state when or how such taxes had been paid, and that because of this determination, the Grand Jury returned a “No Bill.” He further alleged in his motion that on May 25, 1946, he was advised by the District Attorney’s office that criminal proceedings against him had been dropped.
The Government filed a motion to dismiss Coleman’s motion on the grounds that he had failed to state any grounds upon which relief could be granted to him, and that he did not file his motion to vacate the decree within the time provided by law for the filing of such motion, hence the court lacked jurisdiction. Coleman’s motion to vacate the decree was heard on September 10, 1946, and his counsel there admitted that proper notice and publication required by law in forfeitures had been had. Coleman alleged that the default decree should be vacated because a constructive fraud had been perpetrated by the plaintiff on the court. This alleged fraud was said to be on the theory that the Criminal Division of the United States Attorney’s office had knowledge and information to the effect that Coleman committed no violation of the Internal Revenue laws, because the grand jury had returned a “No Bill” as to him, and that if in point of fact there was no criminal liability, the libel should not have been prosecuted. For this reason Coleman and his attorney urged that the sixty day rule relied upon by the Government did not apply.
The motion to vacate the decree came on for hearing on September 10, 1946. Several rather bitter colloquies were had between the court and counsel on succeeding days. The court issued and later dismissed a rule against the District Attorney to show cause, as for contempt, and on November 15, 1946, entered its findings of fact and conclusions of law. It found that the four and one-half gallon can of distilled spirits found in Coleman’s automobile did not have affixed to it the strip stamp required by Section 2803 of the Internal Revenue Code, 26 U.S.C.A.Int. Rev.Code, § 2803, and that such stamp only cost one cent. The court concluded as a matter of law that it did not believe that it was incumbent upon the court to impose a forfeiture for every violation, no matter how trivial and regardless of circumstances, and that in the instant case, to impose a forfeiture for failure to affix a one cent stamp to the can of illicit alcohol imposed a penalty that was excessive and disproportionate to the offense, and for that reason the Government’s action for forfeiture should be denied. The court then dismissed the Government’s libel. The plaintiff excepted to the court’s conclusions of law, and from that decree of dismissal this appeal is prosecuted.
We are here materially concerned only with the forfeiture statutes, 26 U.S.C.A. Int.Rev.Code, §§ 2803 and 3116, which relate to distilled spirits. This action is against the impersonal automobile alone, and its alleged owner, Coleman, is not a party to it. The auto was charged in this civil action with having been the means of illegally transporting a quantity of distilled spirits upon which no internal revenue taxes had been paid. True, the owner of the spirits or the automobile might have legally secured a one cent revenue stamp and placed it upon the receptacle, as provided by the statute, which would have indicated full payment of all internal revenue taxes due, but this was not done. Much is said about the insignificant value of one cent, as compared to the severity of the forfeiture. However, neither the owner of the spirits nor the automobile could have rightfully secured or used the one cent stamp without having paid all the internal revenue taxes due thereon. Hence, it is manifestly unfair to say that the amount here involved is trivial. In any event Congress did not think it was trivial, and we are bound by their enactment. We think the District Court was without discretion to decide otherwise.
It was not contended in the District Court, that. Rule 60 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, is here applicable, and the respondent is not appearing here, nor is anyone in its behalf. See C. J. Hendry Co. v. Moore, 318 U.S. 133, 63 S. Ct. 499, 87 L.Ed. 663; Reynal v. United States, 5 Cir., 153 F.2d 929. It is clear from this record that the decree of forfeiture was not entered through any mistake, inadvertence, surprise or excusable neglect of the defendant or anyone materially interested therein. Due and legal notice was given, and no motion by respondent or any one in its behalf was filed until more than six months had elapsed after the decree of forfeiture was entered.
The District Court said that the District Attorney imposed upon the court by failing to advise it of the entry of the “No Bill” by the Grand Jury and that such imposition constituted fraud upon the court. We do not agree with this conclusion. That report did not amount to a finding by the Grand Jury that Coleman had not committed an offense in relation to this transacton, nor did it say that he had. This would not bar the District Attorney from again presenting further evidence to the Grand Jury on this same transaction. The report of “No Bill” by the Grand Jury was made in writing and entered in the clerk’s office of the District Court. This would not prevent the District Attorney from subsequently presenting further evidence if he so desired, and such record in the clerk’s office was as available to the court as it was to the District Attorney.' The record does not show why such a report was made, and it is not necessary that we should know. It is barely possible that the jury might have thought that the loss of Coleman’s automobile might be sufficient punishment without inflicting upon him either a fine or imprisonment. We feel certain that the District Attorney was not guilty of contempt of court for failing to supply this information to the court.
There is quite a large discretion vested in the District Attorney to resubmit a presentment to the Grand Jury, or to subsequent grand juries, and this is not subject to the control of the District Court. .United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333; Deutsch v. Aderhold, 5 Cir., 80 F.2d 677; Application of Texas Co. et al., D.C., 27 F.Supp. 847.
We think the court erred in setting aside the forfeiture and in dismissing the libel and in ordering the automobile herein referred to turned over to the possession of Richard Coleman.
The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
On April 20, 1972, American General Finance Corporation [American General] executed an agreement whereby it undertook to_ guarantee loans made by Parkway Bank and Trust Company [Bank] to Sayre & Fisher Company [Sayre]. The agreement provided in part that American General guaranteed the prompt payment of
* * * any and all indebtedness or other obligations for the payment of money * * * now or hereafter existing, * * * together with any and all extentions [sic] or renewals thereof. (Emphasis supplied.)
On July 26, 1972, Sayre executed a promissory note in the amount of $100,-000 in favor of the Bank. Sayre defaulted on that note, and the Bank brought this action against American General to enforce the guaranty agreement.
Both parties moved for summary judgment. The sole ground asserted by American General in its motion for summary judgment was its contention that it was a “surety” within the meaning of Missouri law, and that the Bank’s failure to commence suit against Sayre within thirty days of receipt of American General’s “Notice to Commence Suit” barred any action against American General under V.A.M.S. § 433.030. The District Court held that American General was not a surety within the meaning of Missouri law, and that § 433.030 did not bar the action. The court then granted summary judgment for the Bank.
American General now contends that the grant of summary judgment was erroneous because the guaranty agreement did not cover prior indebtedness and, in fact, $57,000 and the $100,-000 loan predated execution of the agreement. We reject this contention for two reasons. First, it is axiomatic that issues not presented to the trial court will not be considered on appeal. See, e. g., Brennan v. Maxey’s Yamaha, Inc., 513 F.2d 179, 184 (8th Cir. 1975); United States v. John, 508 F.2d 1134, 1140 (8th Cir.), cert. denied, 421 U.S. 962, 95 S.Ct. 1948, 44 L.Ed.2d 448 (1975). See also Smith v. American Guild of Variety Artists, 368 F.2d 511, 514 (8th Cir. 1966), cert. denied, 387 U.S. 931, 87 S.Ct. 2052, 18 L.Ed.2d 991 (1967), and cases cited therein. American General’s claim that the guaranty agreement did not cover prior indebtedness has never been presented to the District Court.
Second, it is our view that the language of the guaranty agreement is clear and unambiguous, and that it was intended to cover prior indebtedness. Thus, this is not an occasion for abrogation of the issue-preclusion rule, “where the obvious result would be a plain miscarriage of justice.” Hormel v. Helvering, 312 U.S. 552, 558, 61 S.Ct. 719, 722, 85 L.Ed. 1037 (1941). We are satisfied that there has been no injustice in the District Court’s entry of judgment.
Affirmed.
. Counsel for American General conceded at oral argument that this issue was properly decided by the District Court, and no appeal has been taken from the determination.
. Counsel for American General urges that the defense of prior indebtedness was not raised before the District Court because he was not aware until the time of summary judgment that $57,000 had been loaned previous to the signing of the guaranty agreement. This contention is without merit. Counsel’s own affidavit in support of summary judgment alleged that
* * * at the time that defendant guaranteed Sayre & Fisher Company’s liability on April 20, 1972, * * * the Sayre & Fisher Company was already indebted to the plaintiff in an amount in excess of $50,000 * * *. (Emphasis supplied.)
This affidavit was filed four months prior to the court’s entry of summary judgment.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
STEPHEN H. ANDERSON, Circuit Judge.
Defendant-appellant The Continental Insurance Company (“Continental”) appeals from a judgment holding it liable under an insurance policy issued to plaintiff-appellee Adams-Arapahoe Joint School District No. 28-J (“Adams-Arapahoe” or “the District”) for expenses incurred after the partial collapse of the roof of Gateway High School in Aurora, Colorado. We affirm the trial court’s decision that the loss, if fortuitous, was covered. We reverse the judgment entered on the jury’s verdict that the loss was fortuitous, and remand for a new trial on that issue, because of a prejudicially erroneous instruction.
I. BACKGROUND
The construction of Gateway High School took place from 1972 to 1974, with the roof put up during the winter of 1972-73. R.Vol. II at 6. The original plan called for galvanized steel sheets to be placed over the roof beams, then overspread with lightweight concrete and covered with asphalt and gravel. R.Vol. II at 40. During the construction, however, the general contractor received permission to use gypsum-based concrete instead, because the material originally chosen would not cure properly in cold weather. R.Vol. VI at 8.
The roofing subcontractor discussed the proposed change with the concrete manufacturer, who said that some corrosion had been experienced when the gypsum-based concrete was applied to metal decking. R.Vol. IV at 225; Attachment to Opening Brief of Appellant at 16. The subcontractor notified the general contractor, who in turn informed the project’s architect. R.Vol. IV at 235-36. After a meeting with the contractors and a District representative, the architect decided to proceed with the change. R.Vol. VI at 11. It is not clear whether the corrosion danger was discussed at this meeting. At the trial, representatives of the District denied ever having been informed of any increased risk. R.Vol. IV at, e.g., 194-95, 201-02.
Continental issued an all-risk insurance policy for the school, effective September 1, 1982. The policy covered “all ... risks of direct physical loss,” but excluded any loss caused
“[b]y wear and tear, deterioration, rust or corrosion, mould, wet or dry rot; inherent or latent defect; ... unless such loss results from a peril not excluded in this policy. If loss by a peril not excluded in this policy ensues, then this Company shall be liable for only such ensuing loss.”
Attachment to Opening Brief of Appellant at 75 (emphasis added).
On April 23, 1984, a small portion (six to twelve square feet) of the roof collapsed. R.Vol. II at 9. An inspection revealed extensive corrosion throughout that portion of the roof which had been filled with gypsum-based concrete, making continued occupation of the building unsafe. R.Vol. II at 15, 39. Adams-Arapahoe spent about $8.8 million to remove and replace eighty thousand square feet of roofing (approximately forty percent of the total area).
After Continental denied the District’s claim, Adams-Arapahoe filed suit in state court. The action was removed to the United States District Court for the District of Colorado. The trial court granted plaintiffs motion for partial summary judgment, holding that (1) defective design and/or construction was a risk covered by the policy, and was the cause of the District’s loss, (2) the corrosion exclusion did not preclude coverage, and (3) the District’s loss included the entire corroded area of the roof.
A jury trial was held on the remaining issues. Continental argued at trial that the District expected the loss, rendering it non-fortuitous (and therefore not covered). The jury was instructed that the District bore the burden of showing fortuitousness, but that Continental bore the burden of proof on its affirmative defense of the District’s expectation, or knowledge of a substantial risk, of collapse. A verdict was returned in favor of the District for $8,674,-778.
II. DISCUSSION
The substantive law of Colorado governs our decision in this diversity case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1934); Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d 885, 888 (10th Cir.1980). With respect to issues which the Colorado Supreme Court has not addressed, we may consider all available resources, including Colorado appellate court decisions, other state and federal decisions, and the general trend of authority, to determine how the Colorado Supreme Court would construe the law in this case. Farmers Alliance Mut. Ins. Co. v. Bakke, 619 F.2d at 888; City of Aurora, Colo. v. Bechtel Corp., 599 F.2d 382, 386 (10th Cir.1979).
A. Partial Summary Judgment
The trial court interpreted the policy to cover the loss in question, if the loss was fortuitous. The construction of an insurance policy is a matter of law. Marez v. Dairyland Ins. Co., 638 P.2d 286, 288-89 (Colo.1982). The language of the policy is interpreted according to its common usage, with ambiguities construed against the insurer. Reed v. United States Fid. & Guar. Co., 176 Colo. 568, 491 P.2d 1377, 1379 (1971).
1. Whether defective design and/or construction was a covered risk.
An all-risk insurance policy covers any fortuitous loss not resulting from an excluded risk or from fraud by the insured. Kane v. Royal Ins. Co. of Am., 768 P.2d 678, 679 n. 1 (Colo.1989); Steamboat Dev. Corp. v. Bacjac Indus., Inc., 701 P.2d 127, 128 (Colo.Ct.App.1985); 13A G. Couch, Cyclopedia of Insurance Law § 48:141 (2d rev. ed. 1982). Continental contends, however, that defective design and/or construction is not a risk at all; it is merely a condition of the insured property.
In Wolfe v. LeVasseur-Hinson Construction Co., 147 So.2d 747 (La.Ct.App.1962), the floors of a house were negligently installed prior to the purchase of an all-risk policy. Later, the floors buckled. The court denied coverage because the acts which caused the loss occurred before the coverage began. Id. at 750; accord 80 Broad St. Co. v. United States Fire Ins. Co., 88 Misc.2d 706, 389 N.Y.S.2d 214, 215 (Sup.Ct.1975), aff'd per curiam, 54 A.D.2d 888, 390 N.Y.S.2d 768 (1976).
Yet, most of the decisions addressing this question hold that defective design and/or construction is a risk of physical peril, even if it predates the policy. See, e.g., Texas E. Transmission Corp. v. Marine Office—Appleton & Cox Corp., 579 F.2d 561, 564-66 (10th Cir.1978); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. 978, 992-93 (S.D.Ohio 1975); Garvey v. State Farm Fire & Cas. Co., 770 P.2d 704, 711 (Cal.1989). See generally Annotation, Property Damage Resulting from Inadequate or Improper Design or Construction of Dwelling as Within Coverage of “All Risks’’ Homeowner’s Insurance Policy, 41 A.L.R. 4th 1095 (1985). We agree with the trial court’s decision that the Colorado Supreme Court would hold that a loss so caused is covered by an all-risk policy.
Still, an all-risk policy does not cover losses which were not fortuitous. Texas E. Transmission Corp. v. Marine Office— Appleton & Cox Corp., 579 F.2d 561 at 564; Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 987. While this implied requirement of fortuitousness is universally recognized, Annotation, Coverage Under “All Risks” Insurance, 88 A.L.R.2d 1122, 1126 (1963), there is some disagreement regarding just what is or is not fortuitous.
One group of cases holds that a loss is not fortuitous if it was inevitable when the policy was issued. See, e.g., Greene v. Cheetham, 293 F.2d 933, 937 (2d Cir.1961); Glassner v. Detroit Fire & Marine Ins. Co., 23 Wis.2d 532, 127 N.W.2d 761, 764 (1964). Under this rule, a loss caused by defective design and/or construction which preceded the issuance of the policy is not fortuitous. Compagnie des Bauxites de Guinee v. Insurance Co. of N. Am., 566 F.Supp. 258 (W.D.Pa.1983), rev’d without opinion, 735 F.2d 1348 (3d Cir.1984). Obviously, the conclusion that a loss was inevitable at the time of contracting, and therefore non-fortuitous, often involves the use of hindsight.
A more recent line of decisions rejects the use of hindsight and holds that a loss caused by a pre-existing defect is fortuitous so long as neither party knew of the defect or expected the loss. See, e.g., Standard Structural Steel Co. v. Bethlehem Steel Corp., 597 F.Supp. 164, 192 (D.Conn.1984); Fidelity & Guar. Ins. Underwriters, Inc. v. Allied Realty Co., 238 Va. 458, 384 S.E.2d 613, 615 (1989).
“A fortuitous event ... is an event which so far as the parties to the contract are aware, is dependent on chance. It may be beyond the power of any human being to bring the event to pass; it may be within the control of third persons; it may even be a past event, ... provided that the fact is unknown to the parties.”
Texas E. Transmission Corp. v. Marine Office—Appleton & Cox Corp., 579 F.2d at 564 (quoting Restatement of Contracts § 291 comment a (1932)) (emphasis added). Under this view, defective design and/or construction, even if it exists before the policy is issued, can cause a fortuitous loss. Compagnie des Bauxites de Guinee v. Insurance Co. of N. Am., 724 F.2d 369, 373 (3d Cir.1983); Kilroy Indus. v. United Pac. Ins. Co., 608 F.Supp. 847, 857-58 (C.D.Cal.1985); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 992-93. These decisions represent the clear trend of authority, and we believe that the Colorado Supreme Court would choose to follow them.
Continental contends that even if a loss due to defective design and/or construction is a covered risk, coverage of the District’s loss is barred by the exclusion for loss by “inherent or latent defect.” Prior to considering this argument, we must decide whether or not it is properly before us. Adams-Arapahoe contends that Continental abandoned this issue on appeal. In fact, though, the issue was not raised and ruled upon in the trial court, so it never existed to be abandoned.
Continental’s references to the latent defect exclusion before the district court were infrequent and nonspecific. In its answer, Continental raised as an affirmative defense
“one or more of the following provisions ...: loss by wear and tear, deterioration, rust or corrision [sic], wet rot, inherent or latent defect, settling, cracking, shrinkage, bulging or expansion of pavements, foundations, walls, floors, roofs or ceilings.”
Answer, R. Vol. I at Tab 8, p. 3. Its brief in opposition to Adams-Arapahoe’s motion for summary judgment repeats this list, and also states that, because “the eventual collapse of the roof was due to no casualty or risk other than the inherent deficiency within the design of the roof itself,” the loss was not fortuitous. Memorandum Brief in Opposition to Plaintiffs Motion for Partial Summary Judgment, R. Vol. I at Tab 6, pp. 6, 9. Continental made no other references to the latent defect exclusion. A matter not pursued before the trial court, such as this one, is “inappropriate for consideration on appeal.” Stephens Ind., Inc. v. Haskins & Sells, 438 F.2d 357, 361 (10th Cir.1971).
Even if the latent defect exclusion had been raised below, it was not preserved as an issue on appeal. The only exclusion which appears in the statements of issues in Continental’s docketing statement and opening brief before this court is the corrosion exclusion. An issue not included in either the docketing statement or the statement of issues in the party’s initial brief is waived on appeal. Bledsoe v. Garcia, 742 F.2d 1237, 1244 (10th Cir.1984). Proper appellate advocacy requires early identification of the issues. Braley v. Campbell, 832 F.2d 1504, 1508 & n. 2 (10th Cir.1987). Merely mentioning inherent defects in another context is not enough.
We will not consider the issue.
2. Whether the corrosion exclusion applies.
a. “corrosion”
Continental contends that the policy excludes from coverage any loss due to corrosion. The District argues that the word “corrosion” refers only to normal or natural corrosion.
Kane v. Royal Insurance Co., 768 P.2d 678 (Colo.1989), addressed the question of whether damage caused when a man-made dam failed was covered under a policy which excluded loss caused by “flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water, or spray from any of the foregoing.” Id. at 680. The court decided that the common meaning of the word “flood” included both natural and artificial over-flowings of water. Id. at 681; accord Bartlett v. Continental Divide Ins. Co., 697 P.2d 412, 413 (Colo.Ct.App.1984), aff'd by an evenly divided court, 730 P.2d 308 (Colo.1986); see also Haines v. United Sec. Ins. Co., 43 Colo.App. 276, 602 P.2d 901, 902 (1979). The court focused on the particular exclusion at issue (“flood”), rather than considering it in the context of the other exclusions.
Our inquiry, then, is whether the common meaning of “corrosion” includes all corrosion or only naturally occurring corrosion. One source of the plain meaning of a term is the dictionary. See Kane v. Royal Ins. Co., 768 P.2d at 680-81; United Bank of Pueblo v. Hartford Accident & Indem. Co., 529 F.2d 490, 493 (10th Cir.1976) (applying Colorado law). Definitions such as “eating away,” “wearing away,” and “alteration,” Webster’s Third New International Dictionary 512 (1981); Funk & Wagnalls Standard Desk Dictionary 144 (1977), make no distinction between corrosion occurring over the natural course of a building’s life and corrosion produced by defective design and/or construction.
Other decisions construing similar exclusions confirm this construction. Arkwright-Boston Manufacturers Mutual Insurance Co. v. Wausau Paper Mills Co., 818 F.2d 591 (7th Cir.1987), dealt with a similar corrosion exclusion. After equipment was damaged by acid produced during the recovery of paper by-products, the insured argued that the corrosion exclusion did not apply because the damage occurred suddenly rather than gradually. The court rejected this argument, holding that the exclusion applied to sudden corrosion as much as to any other corrosion. Id. at 594-95; accord Twin City Hide v. Transamerica Ins. Co., 358 N.W.2d 90, 92 (Minn.Ct.App.1984); see also Resorts Int’l, Inc. v. American Home Assurance Co., 311 So.2d 806, 807 (Fla.Dist.Ct.App.1975) (per curiam). But see Cyclops Corp. v. Home Ins. Co., 352 F.Supp. 931, 936 (W.D.Pa.1973).
We conclude that under Colorado law the word “corrosion” unambiguously refers to all corrosion, however brought about.
b. “unless such loss results from a peril not excluded in this policy”
Under the policy, coverage of a loss due to an excluded cause is excluded “unless such loss results from a peril not excluded in this policy” [hereinafter “the ‘unless’ clause”]. The trial court held that, because the corrosion in this case resulted from a covered risk (defective design and/or construction), the exclusion did not apply.
The only published decision construing such a clause is Adrian Associates v. National Surety Corp., 638 S.W.2d 138 (Tex.Civ.App.1982), aff'd per curiam, 650 S.W.2d 67 (Tex.1983). In that ease, water under the surface of the ground, produced by a ruptured water main, caused the subsidence of an insured building. The all-risk policy excluded loss or damage resulting from subsidence, but the exclusion had an “unless” clause identical to the one here at issue. The court held that because the subsidence resulted from subterranean water, a non-excluded cause, the “unless” clause negated the subsidence exclusion. Id. at 141.
Like the district court, we see no other reasonable construction of the clause. Contrary to Continental’s fears, this interpretation of the “unless” clause does not render the entire exclusion nugatory. Rather, the policy still excludes losses due to corrosion with no identifiable non-excluded cause. In effect, the corrosion exclusion applies only to naturally occurring corrosion.
Accordingly, we affirm the trial court’s decision that the District’s loss, if fortuitous, was covered.
3. Whether the District’s loss included the entire corroded area, or just that portion of the roof which actually collapsed.
Continental contends that the only loss Adams-Arapahoe suffered was the collapse of a small portion of the roof. The trial court, relying upon Western Fire Insurance Co. v. First Presbyterian Church, 165 Colo. 34, 437 P.2d 52 (1968), ruled that the District’s loss included the entire corroded area, because the corrosion made the school unsafe and unusable. In First Presbyterian Church, a church was rendered uninhabitable by the accumulation of gasoline around and under the building. Even though there was no physical damage, the Colorado Supreme Court held that the loss of use resulting from the infiltration was a physical loss. Western Fire Ins. Co. v. First Presbyterian Church, 437 P.2d at 55 (citing Hughes v. Potomac Ins. Co., 199 Cal.App.2d 239, 18 Cal.Rptr. 650 (1962) (landslide did not damage house, but left it perched precariously over a cliff; the unin-habitability of the house was held to be a loss)); see also Hampton Foods, Inc. v. Aetna Cas. & Sur. Co., 787 F.2d 349, 352 (8th Cir.1986); Gibson v. Secretary of HUD, 479 F.Supp. 3, 5 (M.D.Pa.1978); Essex House v. St. Paul Fire & Marine Ins. Co., 404 F.Supp. at 994. First Presbyterian Church controls the decision in this case. The trial court’s ruling was correct.
B. Jury Instructions
The trial court granted partial summary judgment on the issue of whether the loss, if fortuitous, was covered, but reserved the fortuitousness question for the jury. The jury received the following instructions:
“The District has the burden of proving by a preponderance of the evidence that ... a fortuitous loss took place_ Continental has the burden of proving by a preponderance of the evidence its affirmative defense that the District had knowledge, either actual or imputed, before it obtained its insurance policy, that a substantial risk already existed that the roof deck would collapse because of corrosion.”
R. Vol. V at 326-27 (emphasis added). The substance of the jury instructions in a diversity case is a matter of state law, but the question of whether an error is harmless is one of federal law. Brownlow v. Aman, 740 F.2d 1476, 1490 10th Cir.1984).
An insurer bears the burden of proving an affirmative defense which will enable it to avoid a policy. Commercial Ins. Co. v. Smith, 417 F.2d 1330, 1336 (10th Cir.1969) (citing Olinger Mut. Ben. Ass’n v. Christy, 139 Colo. 425, 342 P.2d 1000 (1959)). If, however, Continental's claim of the District's knowledge was not an affirmative defense, but was interposed only to prevent the District from meeting its burden of proving fortuitousness, then Continental did not bear the burden of proof on the knowledge issue. Lockwood v. Travelers Ins. Co., 179 Colo. 103, 498 P.2d 947, 950 (1972) (where plaintiff had the burden of proving that insured’s death was accidental, it was erroneous to place on the insurer the burden of proving its rebuttal argument that the death was a suicide).
In its answer, Continental stated that the District’s loss was “not the result of a fortuitous event,” Answer, R. Vol. I at Tab 3, p. 3, but did not make any reference to the District’s alleged knowledge. The pretrial order is similar. See Pretrial Order, April 11, 1986, R. Vol. I at Tab 5, p. 2. We feel that Continental did not plead Adams-Arapahoe’s alleged knowledge of the increased risk of corrosion as an affirmative defense. The argument was raised merely to rebut the District’s claim that the loss was fortuitous. The affirmative defense instruction should not have been given. Even if Continental were asserting the District’s knowledge both as an affirmative defense and as a rebuttal, the instruction, without further delineation, would have been erroneous. Britt v. Travelers Ins. Co., 556 F.2d 336 (5th Cir.1977), modified, 566 F.2d 1020, 1022-23 (5th Cir.1978).
We will not reverse the judgment unless the error prejudiced Continental. Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir.), cert. denied, 479 U.S. 884, 107 S.Ct. 275, 93 L.Ed.2d 251 (1986). We must decide, then, whether the fortuitousness instruction, which was correct, rendered harmless the improper affirmative defense instruction.
In Britt v. Travelers Insurance Co., the life insurance policy on plaintiffs husband paid double indemnity for an accidental death, and had an exclusion for death caused by a mental or physical infirmity. Decedent died under circumstances which may have been accidental, and may have been caused by a mental or physical infirmity. The insurer raised decedent’s infirmities both to contest plaintiffs claim that the death was accidental, and to show that the infirmity exclusion applied. The insurer bore the burden of proof on the second issue, but not on the first.
The jury instruction correctly allocated the burden of proof regarding whether the death was accidental, but then stated that the insurer bore the burden of proving a mental or physical infirmity, without distinguishing between the two ways the insurer was using that argument. This was held to be a prejudicial error. Britt v. Travelers Ins. Co., 566 F.2d at 1022-23 & n. 3.
The trial court in Britt, by failing to distinguish between a rebuttal and an affirmative defense, shifted part of the plaintiffs burden of proving that the death was accidental onto the defendant. The affirmative defense instruction in the instant case had the same effect. In both cases, the error was prejudicial.
We realize that jury instructions are to be reviewed as a whole, and that “ ‘only in those cases where the reviewing court has a substantial doubt whether the jury was fairly guided in its deliberations should the judgment be disturbed.’ ” Lutz v. Weld County School Dist. No. 6, 784 F.2d 340, 341 (10th Cir.1986) (quoting Mid-Texas Communications v. American Tel. & Tel. Co., 615 F.2d 1372, 1390 n. 16 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980) (citations omitted)). Still, the chance that the jury was misled is too great for us to assume that the fortuitousness instruction undid the harm done by the affirmative defense instruction. See Great W. Sugar Co. v. Mrs. Alison’s Cookie Co., 749 F.2d 516, 522 (8th Cir.1984); see also Campbell v. Otis Elevator Co., 808 F.2d 429, 433 (5th Cir.1987).
This case differs from Fox v. Ford Motor Co., 575 F.2d 774 (10th Cir.1978). In that case, the trial court correctly instructed the jury on the standard by which to determine if the defendant was negligent, but then gave an instruction on the implied warranty of merchantability which imposed absolute liability for defects. The applicable state law required negligence to violate the warranty.
On appeal from a verdict for the plaintiff, the warranty instruction was found to be erroneous, but not prejudicial. The error was harmless because the trial court had not treated negligence and warranty as separate issues: “It blended both of these in with the extensive charge on negligence and reasonableness.” Id. at 786 (emphasis added). Because of this blending, “the jury very probably gave effect to the negligence charge ... since there was no statement by the court that the warranty was a separate basis for recovery.” Id. Unlike in Fox, we have no reason in this case to believe that the jury did not give effect to the improper instruction.
Finally, the District argues that the error was harmless because the evidence would not have supported any other verdict. However, there was enough evidence of the District’s knowledge to support a verdict by a properly instructed jury that the loss was not fortuitous. Therefore, “ ‘the jury might have based its verdict’ ” on the erroneously given instruction. Farrell v. Klein Tools, Inc., 866 F.2d 1294, 1300 (10th Cir.1989) (quoting McMurray v. Deere & Co., 858 F.2d 1436, 1444 (10th Cir.1988) (emphasis added)). Even if that possibility is “very unlikely,” reversal is required. Farrell v. Klein Tools, Inc., 866 F.2d at 1301.
C. Other issues
Adams-Arapahoe filed a cross-appeal in this matter, challenging the trial court’s application of the federal post-judgment interest rate, pursuant to 28 U.S.C. § 1961, instead of the state post-judgment interest rate. Since then, this court decided in Everaard v. Hartford Accident & Indemnity Co., 842 F.2d 1186, 1193-94 (10th Cir.1988), that the federal rate applies, even in diversity actions. The trial court applied the correct rate.
The District also challenged our jurisdiction, because Continental filed this appeal more than thirty days after judgment was entered (but within thirty days of the resolution of plaintiffs motion for prejudgment interest). This argument subsequently was foreclosed by the Supreme Court’s holding in Osterneck v. Ernst & Whinney, — U.S. —, 109 S.Ct. 987, 991, 103 L.Ed.2d 146 (1989), that a motion for pre-judgment interest is a Rule 59(e) motion to alter or amend the judgment. Continental’s notice of appeal was timely.
III. CONCLUSION
The trial court correctly granted partial summary judgment in favor of the School District. If fortuitous, the loss (which included the entire corroded area) was insured against because defective design and/or construction was a covered risk, and the corrosion exclusion did not operate to exclude corrosion brought about by a covered risk. The judgment against Continental must be reversed and remanded, however, because the jury instructions erroneously and prejudicially shifted part of the District’s burden of proving fortuitousness.
The judgment is AFFIRMED in part, and REVERSED and REMANDED in part for a new trial limited to the question of whether or not the loss was fortuitous.
. During the pendency of this appeal, both parties made motions to file supplemental briefs. Both motions were granted, and both supplemental briefs were received and considered.
. Similarly, in Sabella v. Wisler, 59 Cal.2d 21, 27 Cal.Rptr. 689, 694-95, 377 P.2d 889, 894-95 (1963), the ground under an insured home subsided following the rupture of a sewer line. The court deemed irrelevant the fact that the subsidence was brought about unnaturally, and held that the exclusion of damage caused by "settling" would apply. Accord, e.g., General Ins. Co. of Am. v. Hallmark, 575 S.W.2d 134, 136 (Tex.Civ.App.1978) (following Lambros v. Standard Fire Ins. Co., 530 S.W.2d 138 (Tex.Civ.App.1975); Bentley v. National Standard Ins. Co., 507 S.W.2d 652 (Tex.Civ.App.1974)). But see New Hampshire Ins. Co. v. Robertson, 352 So.2d 1307, 1310 (Miss.1977).
. Continental cites a number of decisions, such as Aetna Casualty & Surety Co. v. Yates, 344 F.2d 939 (5th Cir.1965), which construe ensuing loss provisions. The "unless" clause is not the policy’s ensuing loss provision; the sentence following the "unless” clause is the ensuing loss provision. Continental’s authority is inapposite.
.Because we have decided that defective design and/or construction was a covered risk, and that the corrosion which occurred was not an excluded risk, we need not consider the question of which of these risks actually caused the loss. There is no cause to consider the parties’ discussion of the last section of Kane v. Royal Insurance Co. of America, 768 P.2d at 684-86, and other cases, such as Garvey v. State Farm Fire & Casualty Co., 48 Cal.3d 395, 257 Cal.Rptr. 292, 770 P.2d 704 (1989), because the causation analysis is unnecessary if both risks are covered.
. The District’s first motion in limine, to which Continental did not object, stated that "Continental has raised as a defense to coverage” that the District knew or suspected, when it obtained the insurance policy, that the roof deck would collapse because of corrosion. R. Vol. Ill at 9-10; Plaintiff s First Motion In Limine, R. Vol. I at Tab 11, p. 2 (emphasis added). The District contends that Continental’s failure to object to either the motion or the making of such introductory remarks to the jury precludes Continental from now appealing the issue. We disagree.
The statement is ambiguous. Stating that Continental has raised the issue as "a defense” is not the same as stating that it is an affirmative defense upon which Continental bears the burden of proof.
Besides, Continental made a specific objection to the affirmative defense instruction. See R.Vol. V at 304-306. Nothing more is necessary to preserve the right to appeal the instruction. Weir v. Federal Ins. Co., 811 F.2d 1387, 1390 (10th Cir.1987).
. The exhibits included a letter from the roofing subcontractor to the general contractor that the manufacturer of the gypsum-based concrete had withdrawn its recommendation of the material as roof fill because of problems with corrosion. R. Vol. IV at 225; Attachment to Opening Brief of Appellant at 16. There was evidence that this letter was forwarded to the project architect, R. Vol. IV at 235-36; Attachment to Opening Brief of Appellant at 19, and that such issues would be discussed among the architect, the general contractor, and a representative of the District. R. Vol. VI at 11. The jury could conclude that the District had either direct or imputed knowledge of an abnormal risk of corrosion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PARKER, Chief Judge.
These are cross appeals from the decision of the Tax Court of the United States reported in 25 T.C. 1304. The questions involved relate to the right of a corporate taxpayer to the $25,000 corporate surtax exemption and minimum excess profits credit, granted respectively by section 15(b) and section 431 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 15(b), 26 U.S.C.A. Excess Profits Taxes, § 431. The corporation was organized February 1, 1951. The surtax exemption and minimum excess profits credit were claimed for the months of February to June 1951. They were denied by the Tax Court for the months of April, May and June 1951 under the restrictions imposed by section 15(c) of the Tax Code but allowed for the months of February and March for the reason that the restrictions imposed by that section were not applicable in the latter months. The taxpayer appeals from the denial for the months of April, May and June, the Commissioner from the allowanee for February and March, the Commissioner contending that they should be denied for those months under the provisions of section 129(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 129 (a).
Taxpayer’s Appeal
Coastal Terminals, Inc. was organized in 1944 for the purpose of supplying and storing petroleum products. It constructed a terminal at North Charleston, S. C. and leased some of the storage facilities there to the office of the Quartermaster General under renegotiable contracts. On February 1, 1951 Coastal Terminals, Inc., caused the taxpayer, the Coastal Oil Storage Company, to be organized and transferred to it seven oil storage tanks, with a capacity of 150,000 barrels, for $100,000 of the capital stock of taxpayer, which was all of the capital stock that taxpayer issued, and a note for ?38>706<79> which taxpayer paid off at the rate of $5,062.50 per month until it was extinguished. The reason given in the testimony before the Tax Court for the creation of taxpayer was to separate storage operations under storage contracts with the government from operations under contracts with others; but it was admitted that tax aspects of the transaction were taken into consideration and no satisfactory reason was given why the same advantages could not have been obtained by separate bookkeeping that were obtained by separate incorporation, which necessarily resolved itself into little more than separate bookkeeping. As a result of the incorporation of taxpayer, the operations at North Charleston received two $25,000 surtax exemptions and minimum excess profits credits instead of one; and the Tax Court found that taxpayer had failed to establish by a clear preponderanee of the evidence that the securing of the extra exemption or credit, or both, was not a major purpose of the transfer of the property to the taxpayer. It, therefore, denied the exemption for the months of April, May and June 1951, under section 15(c) of the Tax Code, the pertinent portion of which is as follows:
“If any corporation transfers, on or after January 1, 1951, all or part of its property (other than money) to another corporation which was created for the purpose of acquiring such property or which was not actively engaged in business at the time of such acquisition, and if after such transfer the transferor corporation or its stockholders, or both, are in control of such transferee corporation during any part of the taxable year of such transferee corporation, then such transferee corporation shall not for such taxable year (except as may be otherwise determined under section 129(b)) be allowed either the $25,000 exemption from surtax provided in subsection (b) or the $25,000 minimum excess profits credit provided in the last sentence of section 431, unless such transferee corporation shall establish by the clear preponderance of the evidence that the securing of such exemption or credit was not a major purpose of such transfer.”
We agree with the Tax Court that the taxpayer failed to sustain the burden of proof imposed by the statute to “establish by the clear preponderance of the evidence that the securing of such exemption or credit was not a major purpose of such transfer”. Since the keeping of separate records as to government business would have accomplished the separation of government business from other business just as well as the incorporation of a subsidiary corporation, it is difficult to see how the incorporation and transfer could have had any real purpose other than tax avoidance. At all events, we would not be justified in setting aside the finding of the Tax Court as clearly erroneous.
The Commissioner’s Appeal
While admitting that the section of the Revenue Code above quoted has no application to income for the months of February and March 1951, the Commissioner contends that the taxpayer should be denied the surtax exemption and minimum excess profits credit for those months under the provisions of section 129(a) of the Internal Revenue Code of 1939, as amended by the Revenue Act'of 1943, c. 63, 58 Stat. 21, entitled “Acquisitions made to evade as void income or excess profits tax,” the pertinent portion of which is as follows:
“(a) Disallowance of Deduction, Credit, or Allowance. — If (1) any person or persons acquire, on or after October 8, 1940, directly or indirectly, control of a corporation, or (2) any corporation acquires, on or after October 8, 1940, directly or indirectly, property of another corporation, not controlled, directly or indirectly, immediately prior to such acquisition, by such acquiring corporation or its stockholders, the basis of which property, in the hands of the acquiring corporation, is determined by reference to the basis in the hands of the transferor corporation, and the principal purpose for which such acquisition was made is evasion or avoidance of Federal income or excess profits tax by securing the benefit of a deduction, credit, or other allowance which such person or corporation would not otherwise enjoy, then such deduction, credit, or other allowance shall not be allowed. For the purposes of clauses (1) and (2), control means the ownership of stock possessing at least 50 per centum of the total combined voting power of all classes of stock entitled to vote or at least 50 per centum of the total value of shares of all classes of stock of the corporation.”
The Tax Court considered this contention of the Commissioner but held the section inapplicable, without passing on the question as to whether or not tax evasion or avoidance was the principal purpose of the transfer in question. In this we think there was error. It is clear that the parent corporation acquired complete control of taxpayer through stock ownership and the parent corporation was certainly a person within the meaning of subsection (1) of the statute. As a result of the transfer of its property in exchange for the stock, it was able to obtain through this splitting up of its corporate business the benefit of an exemption and credit which it would not otherwise have enjoyed. While the exemption is claimed by taxpayer, the sole benefit thereof would accrue to the parent corporation, the sole owner of its stock. Cf. Higgins v. Smith, 308 U.S. 473, 476, 60 S.Ct. 355, 84 L.Ed. 406. We see no reason, therefore, why subsection (1) of the section is not applicable. Subsection (2) is applicable also, since taxpayer, as a result of the transfer from the parent corporation, received property having a basis for tax purposes which would be determined by reference to its basis in the hands of the parent corporation, and the transfer re-suited in the securing of a surtax exemption and minimum profits credit, to which neither the taxpayer nor the parent corporation would have been entitled otherwise; for the taxpayer could not have enjoyed the benefit of the surtax exemption and excess profits tax credit but for the acquisition of the property producing the income from or against which the exemption and credit are claimed. That the section was intended to reach just such schemes for tax evasion or avoidance by the splitting up of a business enterprise clearly appears from the H.Rep. No. 871, 78th Cong. 1st Sess., p. 49, where it is said:
“This section adds a new section 129 to Chapter 1 of the Code providing that in the case of acquisitions on or after October 8, 1940, of an interest in or control of corporations or property which the Commissioner finds to be principally motivated by or availed of for the avoidance of income or excess profits tax by securing the benefit of a deduction, credit, or other allowance, then the tax benefits are to be disallowed or allowed only in part in a manner consistent with the prevention of tax avoidance. This section is designed to put an end promptly to any market for, or dealings in, interests in corporations or property which have as their objective the reduction through artifice of the income or excess profits tax liability,
“The crux of the devices which have come to the attention of your committee has been some form of acquisition on or after the effective date of the Second Revenue Act of 1940, but the devices take many forms. Thus, the acquisition may be an acquisition of the shares of a corporation, or it may be an acquisition which follows by operation of law in the case of a corporation re-suiting from a statutory merger or consolidation. The person, or persons, making the acquisition likewise vary, as do the forms or methods 0f utilization under which tax avoidance is sought. Likewise, the tax benefits sought may be one or more of several deductions or credits> including the utilization of exceSs profits credits, carry-overs, and carry-backs of losses or unused excess profits credits, and anticipated expense of other deductions. In the light of these considerations, the section has not confined itself to a description of any particular methods for carrying out such tax avoidanee schemes but has included within its scope these devices in whatever form they may appear. For similar reasons, the scope of the terms used in the section is to be found in the objective of the section, namely, to prevent the tax liability from being reduced through the distortion or perversion effected through tax avoidance devices. * * */» (italics supplied.)
This accords with the interpretation placed upon the section by a later Con-gross, where in the Senate report on proposed amendments to the corporate .surtax exemption provisions, it was said (S.Rep. No. 2375, 81st Cong.2d Sess. p. 70, 2 Cum.Bull. 483, 533) :
“It is not intended, however, that the exemption of the first $25,000 of a corporation's surtax net income from the surtax shall be abused by the splitting up, directly or indirectly, of a business enterprise into two or more corporations or the forming of two or more corporations to carry on an integrated business enterprise. It is believed that sections 45 and 129 will prevent this form of tax avoidance.”
The Tax Court refers to its decision in Commodores Point Terminal Corp. v. Com’r, 11 T.C. 411; but that was an entirely different case from this and is no precedent for its decision here. There a corporation had acquired a controlling interest in another corporation and the question was whether it was entitled to a dividends received credit on the stock purchased in the transaction. The Tax Court in allowing the credit pointed out that the dividends, and consequent credit, were not dependent on the taxpayer’s having acquired control of the other corporation. In this case, as pointed out above, the taxpayer could not have enjoyed the exemption and credit claimed but for the acquisition of the property producing the income, which was transferred to it by the parent corporation. There, not only was there a holding that there was no purpose of tax avoidance, but the transaction was not one which involved tax avoidance. Here there can be no question but that tax avoidance necessarily resulted from the corporate splitting which was involved.
Taxpayer says that the Commissioner may not rely upon section 129(a) because this section was not relied on in his statutory notice to the taxpayer upon which the jurisdiction of the Tax Court was invoked. The Commissioner did, however, deny the surtax exemption and excess profits credit to taxpayer for the entire five months period; and in the Tax Court he relied upon section 129 (a) as well as upon 15(c) in support of his position, and the applicability of 129(a) was expressly passed upon and denied by the Tax Court. When the action of the Commissioner was legally correct on the facts, it should not be held erroneous merely because he referred to the wrong section of the statute as supporting it; and particularly is this true when it appears that before the Tax Court he relied upon the section which was applicable and supported his action.
The decision of the Tax Court will accordingly be affirmed as to the matters embraced in Taxpayer’s appeal and reversed as to the matters embraced in the Commissioner’s appeal; and the case will be remanded to the Tax Court for further proceedings not inconsistent herewith.
Affirmed on Taxpayer’s Appeal.
Reversed and Remanded for further proceedings on Commissioner’s Appeal.
. This section was added by section 121 (f) of the Revenue Act of 1951 and is applicable only after March 31, 1951, 65 Stat. 468 et seq.
. It is not disputed that the basis of the seven storage tanks in the hands of the taxpayer should be determined by reference to the basis in toe hands of the parent corporation under sections 112(g) (1) (D) and 113(a) (7) (B) of the Internal Revenue Code of 1939, 26 U.S.C.A. §§ 112(g) (1) (D), 113(a) (7) (B).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
JAMES C. HILL, Circuit Judge:
Appellants Richard Badolato, Richard Vaughn, and Dean Quarnstrom were found guilty of conspiring to import and possess marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), 963. Vaughn and Quarnstrom also were found guilty of violating 18 U.S.C. §§ 1952, 2, relating to Interstate Transportation in Aid of Racketeering, and Vaughn was found to have violated 21 U.S.C. § 843(b)’s prohibition against Use of Communication to Facilitate Possession. The three men were tried together in district court, and each has appealed. Upon review, we affirm each'conviction.
I.
As part of an ongoing investigation of federal drug law violations, four DEA agents posed as marijuana off-loaders with access to landing and storage facilities. On September 7, 1980, Richard Vaughn contacted one of the agents in Miami, Florida to hire them to off-load a boat containing marijuana and methaqualone tablets. Vaughn had a number of conversations with agents in regard to these arrangements, and on September 9, 1980, he introduced Dean Quarnstrom to the agents as the man who was going to handle the trucks and buyers. At this meeting, Quarnstrom informed the agents that he had a friend with two trucks ready, that he had warehouses set up in Jupiter, Florida and Fort Lauderdale, and that he had buyers who could be available within twenty-four hours.
On October 9, 1980, the DEA agents met with all three appellants in Savannah, Georgia to discuss and view possible off-load and stash sites for an operation in Georgia. After travelling to a number of potential storage sites, they all agreed on a remote stable as an ideal storage area. The group then proceeded to a water bank, which Vaughn approved as a docking site. The discussions between the agents and appellants indicated that Vaughn was specifically interested in the various means of importation, while Badolato and Quarnstrom were more concerned with the logistics of distribution once the marijuana was safely in the country.
After travelling to potential stash sites, the group eventually arrived at a picnic area on Jekyll Island. Here they began to hammer out the details of the operation. They discussed where the agents would meet Vaughn’s ship, how the marijuana would be weighed at the stable area, and finally distribution of the contraband. Quarnstrom indicated that he could take 8,000 pounds in one large van to the Atlanta area, and wanted to know the location of all weigh stations between the stable site and Atlanta. Badolato advised that the trucks be kept in Jacksonville area until the time and date of arrival of the vessel was confirmed. This was to avoid arousal of local suspicions. According to the testimony of one agent, most of the details of the plan were solidified at Jekyll Island. Although there was no definite agreement as to price, quantity, or quality of marijuana, it was agreed that the off-loaders would receive $25 per pound for the marijuana they handled. In addition, Vaughn privately indicated to the agents that Badolato and Quarnstrom agreed to pay him $265 per pound.
On February 7, 1980, Vaughn and Bado-lato again met with the agents in an apartment in Miami to discuss another drug deal whereby Vaughn and Badolato would purchase marijuana from the DEA agents. Vaughn and Badolato evaluated the quality of a sample bale of marijuana and negotiated for a price; however, they made no commitment to purchase it. At this meeting, Vaughn also explained that the October deal never materialized because his organization was having problems with its equipment. This entire meeting was videotaped and subsequently introduced into evidence.
At trial, Badolato’s principle argument was that because there was no agreement as to price, quality or quantity, he could not be found guilty of a conspiracy. Vaughn, a treasure salvager, maintained that he was the target of government conspiracy to frame him for interfering in the treasure salvaging rights of a competitor, Bob Ab-planalp. Vaughn claimed that Abplanalp, through his friends Richard Nixon and John Mitchell, was using the Justice Department to persecute Vaughn. Finally, Quarnstrom argued that he was doing undercover research for a movie script about large scale drug operations and had no intent to engage in the conspiracy. In furtherance of his defense, Quarnstrom sought to introduce an educational documentary on drug abuse among teenagers which he had produced. The trial court, however, refused to admit the film because of its prejudicial impact on Badolato and Vaughn.
II.
On appeal, appellants first challenge the sufficiency of the evidence supporting their convictions. The applicable standard of review for a sufficiency challenge recently was enunciated in United States v. Bell, 678 F.2d 547 (5th Cir. Unit B) (en banc), cert. granted, — U.S. —, 103 S.Ct. 444, 74 L.Ed.2d 600 (1982):
It is not necessary that the evidence exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, provided a reasonable trier of fact could find that the evidence establishes guilt beyond a reasonable doubt. A jury is free to choose among reasonable constructions of the evidence.
678 F.2d at 549 (footnote omitted). In applying this standard we also are mindful that the evidence and all reasonable inferences are to be viewed in a light most favorable to the Government. Id. see also Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942).
Fortunately, or unfortunately as the case may be, this circuit has had the opportunity to develop a substantial body of case law with respect to the requirements necessary to sustain a conviction for drug conspiracy. The most basic element of such a conspiracy is an agreement between two or more persons to violate federal narcotic laws. United States v. Lee, 694 F.2d 649, 652 (11th Cir.1983), United States v. Tamargo, 672 F.2d 887, 889 (11th Cir.1982), cert. denied, — U.S. —, 103 S.Ct. 141, 74 L.Ed.2d 119 (1982). Although in most conspiracy cases the Government also must demonstrate an overt act in furtherance of the conspiracy, no such requirement exists when the charge involves a drug conspiracy in violation of 21 U.S.C. § 846. United States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982); United States v. Spradlen, 662 F.2d 724, 727 (11th Cir.1981); United States v. Diaz, 655 F.2d 580, 584 (5th Cir.1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). What the Government must demonstrate is that a conspiracy existed, that the defendant had knowledge of it, and that he or she voluntarily became part of it. United States v. Lippner, 676 F.2d 456, 466 (11th Cir.1982); United States v. Malatesta, 590 F.2d 1379, 1381 (5th Cir.) (en banc), cert. denied, 440 U.S. 962, 99 S.Ct. 1508, 59 L.Ed.2d 777 (1979).
It also is clear that the existence of a drug conspiracy may be demonstrated by circumstantial evidence such as inferences from the conduct of the defendant or the circumstances indicating a scheme or plan. Lee, 694 F.2d at 652; Lippner, 676 F.2d at 466; Spradlen, 662 F.2d at 727. Moreover, the requirement of knowledge of the conspiracy agreement refers simply to knowledge of the essential objective of the conspiracy. Tamargo, 672 F.2d at 889; United States v. Alvarez, 625 F.2d 1196, 1198 (5th Cir.1980) (en banc), cert. denied, 451 U.S. 938, 101 S.Ct. 2017, 68 L.Ed.2d 324 (1981). To be found guilty, a defendant need not have knowledge of all the details of the conspiracy, and may play only a minor role in the total operation. Lee, 694 F.2d at 652; United States v. Nickerson, 669 F.2d 1016, 1022 (11th Cir.1982); Alvarez, 625 F.2d at 1198.
A.
Bearing in mind these principles, we turn first to the contention of Badolato and Vaughn that no agreement ever was finalized. In particular, Badolato maintains that he was not involved in the September discussions between the agents and Vaughn and Quarnstrom, and that he did not agree to buy any marijuana until he saw the merchandise. Appellants also maintain that the group never agreed on the quality, quantity, or purchase price of the marijuana to be imported. Notwithstanding these contentions, the record reveals substantial evidence of an agreement. The group agreed on an off-load site, a storage site, and many of the practical details involved in moving the marijuana. Although Badolato’s discussions with the agents concerned distribution, while Vaughn was the dominant figure in the importation discussions, knowledge of all the details of the conspiracy is not necessary to sustain a conviction. See, e.g., Lee, supra; United States v. Davis, 679 F.2d 845 (11th Cir.1982). The evidence indicated that Vaughn’s role was to handle shipping the marijuana into the country, while Badolato and Quarnstrom were to provide a market for the merchandise.
Although actual price, quantity and quality were not finalized when the group met in Georgia, testimony indicated that such details often are left unresolved. This is because price depends upon quality, which only can be determined at the time of delivery. Inspection, weigh-in, and division of marijuana was to take place at the storage area agreed upon by the group. Tentative plans indicated that Vaughn’s initial vessel would deliver 18,000 pounds of marijuana. Quarnstrom was to take 8,000 pounds of that for distribution in Atlanta while Bado-lato was to distribute the remainder. In terms of price, it was agreed that the off-loaders would receive $25 per pound. Vaughn also indicated that Quarnstrom and Badolato would be willing to pay approximately $265 per pound. More definite plans could not be made until the marijuana was available for inspection. Indeed, at the subsequent video-taped meetings the following February, Vaughn explained that the October plans were not consummated because his organization “kept pulling equipment out from under him,” record, vol. 8 at 201, and not because any lack of agreement on the part of members of the group.
From these representations and the additional testimony and evidence proffered at trial, a reasonable jury could certainly have found the existence of a conspiracy, knowledge of the conspiracy on the part of each defendant, and that each defendant voluntarily played an active role. See Lippner, supra. Thus, applying the Bell standard, the evidence was sufficient to support the jury’s verdict.
B.
Appellant Quarnstrom raises an additional defense based upon insufficiency of the evidence. Although he acknowledges meeting and discussing plans for the operation in Georgia, Quarnstrom’s position throughout these proceedings has been that his only purpose in associating with Badolato and Vaughn was to gather information for a movie script about big time drug smugglers. Because he was only present to acquire an insider’s knowledge of the narcotics scene, Quarnstrom contends that he lacked the intent to advance an illegal purpose that is required for a conspiracy conviction.
The Government does not deny that Quarnstrom is an investigative journalist and film-maker by profession, and we are not unsympathetic to this position; however, his argument on appeal confuses the intent to enter into an agreement to violate federal drug laws with the purpose or goal which motivates one to enter into such an agreement. Quarnstrom was convicted of the illegal act of agreeing to violate the federal drug laws. The conspiracy of which he was convicted is distinct from any substantive offense. Conspiracy laws are designed to protect society from the dangers of concerted criminal activity. They identify the agreement itself as a sufficient threat to the social order so as to permit the imposition of criminal sanctions. United States v. Feola, 420 U.S. 671, 693-94, 95 S.Ct. 1255, 1268, 43 L.Ed.2d 541 (1975); United States v. Tombrello, 666 F.2d 485, 489 (11th Cir.), cert. denied, 456 U.S. 994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982). And they are based in part on the belief that the likelihood of accomplishment of a crime is greater when more than one person agrees to engage in criminal activity. See Callanan v. United States, 364 U.S. 587, 593, 81 S.Ct. 321, 325, 5 L.Ed.2d 312 (1961).
What Quarnstrom hoped to achieve by entering into this agreement is of little consequence. Seldom does anyone enter into an illegal activity without the hope of acquiring something perceived to be important. The usual goal in a drug conspiracy is financial gain. Yet a person would be just as guilty if the motive were revenge or even to obtain money for a worthy cause. It may be that one bears a grudge against the dominant drug seller in a particular area, and the only purpose in entering the conspiracy is to obtain inside knowledge of the operation for sabotage purposes. Or it may be that one wants to write a book, play or television script. Regardless of what the conspirator hopes to get out of it, conspiracy is a criminal act, and the issue properly phrased is whether Quarnstrom knowingly and intentionally entered into it. See Lee, 694 F.2d at 945; Tamargo, 672 F.2d at 889; Spradlen, 662 F.2d at 727.
Quarnstrom’s reliance on United States v. Harbin, 601 F.2d 773 (5th Cir.), cert. denied, 444 U.S. 954, 100 S.Ct. 433, 62 L.Ed.2d 327 (1979), to demonstrate that he did not intend to enter the conspiracy is not persuasive. In Harbin, a defendant’s conviction for a drug related conspiracy was reversed for insufficient evidence because the record supported his claim that he was unfamiliar with the conspiracy’s drug transactions. 601 F.2d at 783. The court found that the defendant’s telephone inquiries to other alleged members of the conspiracy indicated only that he was “curious” about illegal drug activities.. Id. In marked contrast, the evidence in the present case indicates that Quarnstrom fully participated in meetings with the agents, expressed a thorough understanding of the details of the conspiracy, and agreed to supply services needed for its success.
Similarly unavailing is Quarnstrom’s reliance on United States v. Reyes, 595 F.2d 275 (5th Cir.1979). In Reyes, after tracking an aircraft on an erratic course, customs agents searched the plane and found traces of marijuana in its cargo area. The cargo area also had been smeared with fresh pineapple to mask the smell of the marijuana. Id. at 280. Later, the Coast Guard recovered bales of marijuana floating in the sea under the recorded flight path of the plane. Id. at 278. The defendants on appeal were four illegal aliens who claimed to be passengers on the plane solely for the purpose of entering the United States illegally. Their convictions were reversed because the only evidence adduced against them was their presence on the aircraft when the plane landed. Id. at 280. There was no testimony that the aliens ejected the bales or smeared the cargo area with pineapple. Moreover, “[n]o active role in the alleged conspiracy or in the charged importation was even intimated during the government’s case.” Id.
Conversely, the evidence indicates that Quarnstrom was not a passive bystander to the conspiracy. The testiniony of the agents, as well as a taped telephone conversation between Quarnstrom and one of the agents demonstrate that Quarnstrom was integrally involved in the operation. Applying the Bell standard therefore a reasonable jury could find that Quarnstrom had “the deliberate, knowing and specific intent to join the conspiracy.” Davis, 679 F.2d at 853 (quoting United States v. Morado, 454 F.2d 167, 175 (5th Cir.), cert. denied, 406 U.S. 917, 92 S.Ct. 1767, 32 L.Ed.2d 116 (1972).). As stated in Bell, “a jury is free to choose among reasonable constructions of the evidence.” 678 F.2d at 549. Here, the jury simply concluded that Quarnstrom’s actions and statements evidenced his intent to join the conspiracy, no matter what his ultimate goal may have been.
III.
Appellants Badolato and Vaughn next contend that the trial court erred in allowing the Government to show the jury the videotape of the February meeting. They argue that it should have been excluded under the extrinsic evidence rule. Federal Rule of Evidence 404(b), however, provides for the admissibility of evidence under limited circumstances, and in United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), cert. denied, 440 U.S. 920, 99 S.Ct. 1244, 59 L.Ed.2d 472 (1979), the court set forth the rules for determining when evidence of an extrinsic offense is admissible. First, the evidence must be relevant to an issue other than the defendant’s character. Second, its probative value must not be substantially outweighed by undue prejudice. 582 F.2d at 911; accord, United States v. Mitchell, 666 F.2d 1885 (11th Cir.1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1340 (1982).
The first prong of the Beechum test is satisfied “if the evidence goes to the defendant’s intent, the extrinsic offense requires the same intent as the charged offense, and the jury could find that the defendant committed the extrinsic offense.” Mitchell, 666 F.2d at 1389; accord United States v. Lippner, 676 F.2d at 461. The videotape of the February meeting satisfies these criteria. Both the extrinsic and the charged offense involve the same intent to violate the narcotic laws. Appellants’ primary argument, is that government failed to prove that Badolato and Vaughn committed the extrinsic offense, because the February meeting ended with Badolato stating he would contact the agents if he decided to buy the marijuana. However, in Beechum, the court defined the term “offense” to include other' crimes, wrongs or acts regardless of whether the extrinsic activity gives rise to criminal liability. 582 F.2d at 903 n. 1. Thus, appellant’s asserted requirement of a completed illegal act is not warranted under Beechum.
The second prong of Beechum involves balancing the probative value of the film against its prejudicial impact. Moreover, like a Fed.R.Evid. 403 admissibility ruling, the trial judge’s determination may only be reviewed for abuse of discretion. Lippner, 676 F.2d at 462. We find no such abuse in the court’s decision to admit the videotape. The district court carefully considered the Beechum factors, and ruled it admissible for the purpose of showing intent — a contested issue at trial.
IV.
Each appellant maintains that his trial should have been severed from the trials of his co-defendants. Federal Rule of Criminal Procedure 14 authorizes severance if the district court determines prejudice will result from joinder. But the decision to sever lies within the discretion of the district judge, and will not be overturned in the absence of abuse of that discretion. United States v. Riola, 694 F.2d 670, 672 (11th Cir.1983). Moreover, a district court decision will not be overturned by a showing of some antagonism or prejudice. Id. Instead, appellants must demonstrate that they received a fundamentally unfair trial and “suffered compelling prejudice against which the trial court was unable to afford protection.” Id. (quoting United States v. Berkowitz, 662 F.2d 1127, 1132 (5th Cir.1981).).
Badolato and Vaughn argue that their trials should have been severed because their defenses were antagonistic and mutually exclusive; Badolato contended that he lacked the requisite agreement, while Vaughn maintained that he was the target of a governmental frame-up. To warrant reversal, however, appellants, must demonstrate an irreconcilable conflict of defenses. United States v. Capo, 693 F.2d 1330, 1335 (11th Cir.1982). That is, “if the jury, in order to believe the core of testimony offered on behalf of [one] defendant, must necessarily disbelieve the testimony offered on behalf of his co-defendant,” the trial should be severed. United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981); accord Riola, 694 F.2d at 672.
Although each appellant claimed a separate defense, the jury would not have to disbelieve one to believe the other. Badolato’s defense that he never agreed to anything was not inconsistent with Vaughn’s defense that John Mitchell and Richard Nixon were somehow orchestrating the entire scenario. See United States v. Swanson, 572 F.2d 523, 529 (5th Cir.1978), cert. denied, 439 U.S. 849, 99 S.Ct. 152, 58 L.Ed.2d 152 (1979). Nor was it inconsistent with Quarnstrom’s claim that he lacked the requisite intent to conspire. Similarly, Vaughn’s frame-up defense did not require the jury to disbelieve Badolato’s defense that he never agreed to anything or Quarnstrom’s defense that he was a passive observer.
Vaughn also claims that severance was necessary so that Vaughn’s attorney could comment on the fact that Vaughn testified while co-defendants did not testify. See DeLuna v. United States, 308 F.2d 140 (5th Cir.1962). In DeLuna, the court found a duty to sever if necessary to protect a co-defendant’s constitutional right to silence from prejudicial comment. 308 F.2d 141. However, DeLuna is applicable only when the defenses are based on mutually exclusive theories of guilt. United States v. Nakaladski, 481 F.2d 289, 302 (5th Cir.), cert. denied, 414 U.S. 1064, 94 S.Ct. 570, 38 L.Ed.2d 469 (1973). Unlike in DeLuna, Vaughn’s attorney did not wish to lay the blame on co-defendants Badolato and Quarnstrom in order to vindicate his client. See 308 F.2d at 142. Because the defenses offered in this trial were not mutually exclusive, the district court did not abuse its discretion in failing to sever.
Quarnstrom offers an additional plea for séverance on spill-over grounds. He maintains that he suffered a compelling prejudice from extrinsic evidence admitted against his co-defendants. Quarnstrom asserts that in the absence of this spill-over effect, the jury would never have convicted him. The test in this context is
[w]hether under all circumstances of the particular case... it is within the capacity of the jurors to follow the court’s admonitory instructions and accordingly to collate and appraise the independent evidence against each defendant solely upon that defendant’s own acts, statements and conduct. In sum, can the jury keep separate the evidence that is relevant to each defendant and render a fair and impartial verdict as to him? If so, though the task be difficult, severance should not be granted.
Lippner, 676 F.2d at 464-65 (quoting Tillman v. United States, 406 F.2d 930, 935 (5th Cir.1969).).
Quarnstrom’s spill-over argument is not persuasive. Admitting evidence of prior or subsequent misconduct by some defendants does not necessarily warrant severance to protect co-defendants from guilt by association. See United States v. Davis, 546 F.2d 617, 620 (5th Cir.1977). Here, the extrinsic evidence admitted against Badolato and Vaughn is not inconsistent with Quarnst-rom’s defense. Indeed, it arguably enhanced Quarnstrom’s contention that he had to remain undercover to win the confidence of undesirable drug smugglers. In any event, Quarnstrom can offer no reason why the jurors could not separate which evidence was relevant to which defendant, particularly in light of the trial judge’s painstaking effort to so instruct the jury as each piece of evidence was introduced.
Quarnstrom’s final argument for severance is that the district court erred in denying him the opportunity to show an educational film on teenage drug abuse that he had produced earlier in his film making career. The film consists primarily of interviews with teenagers relating their experiences with drugs. By showing the film, Quarnstrom sought to demonstrate the investigative technique he allegedly was using with Badolato and Vaughn. The district court, however, refused to show the film because of its prejudicial effect on the co-defendants.
Upon viewing the film, we find that its omission did not prejudice Quarnstrom sufficiently to warrant severance. Quarnst-rom’s ability to interview teenagers on film is of dubious probative value to his undercover defense. Nowhere does he allege that he misrepresented himself to the teens in the film in the same manner in which he alleges he misrepresented himself to Bado-lato, Vaughn, and the DEA agents.
Nor was Quarnstrom’s1 ability to present defense prejudiced by the film’s omission. Initially, the Government never denied that Quarnstrom was a film-maker and investigative journalist. In addition, two of Quarnstrom’s witnesses testified to Quarnstrom’s activities and techniques. Linda Obst, a motion picture producer, characterized Quarnstrom as “someone who was capable of penetrating the inside of stories...” Record, vol. 9, at 47. She also described Quarnstrom’s idea for a film:
Well, Dean’s [Quarnstrom] idea was to give an insider’s look at the big business operation of dope smuggling, give a sense of the adventure that was involved, the high risk involved, and the sense of people getting caught over their heads.
Id. at 46. Mark Lediard, a communication training expert, testified that he had produced a videotape with Quarnstrom to educate teenagers about drug abuse. Id. at 71, 73. Lediard also testified about Quarnst-rom’s proposed smuggling story:
He told me he had been travelling; he had been finding it very easy to strike up conversations and hear all kinds of stories; and he thought the next draft of the story would be a much more powerful draft because he had heard a great deal about how the business worked and what people did and so on.
Id. at 89. Through this testimony Quarnstrom was able to establish his explanation for his association with Badolato, Vaughn, and the DEA agents. Showing the film would not have assisted in his defense to the extent that it was offered to demonstrate technique, since he was not using the same technique. Quarnstrom therefore was not sufficiently prejudiced to justify overturning the trial judge’s decision not to sever.
Having determined that the film did not justify severance, the district court properly determined that its prejudicial effect far outweighed its dubious probative value. In the film the teenagers discuss all sorts of bad drug experiences including experiences with drugs other than marijuana. The film itself is a subtle and poignant testimony to the evils of teenage drug abuse and would therefore reflect poorly on those engaged in the business of furthering such abuse for financial gain. What Quarnstrom ultimately sought to prove by its admission was that anyone who would make such a film could only have good motives for associating with drug smugglers. However, as discussed above, Quarnstrom’s motivation was not the issue before the jury.
V.
As part of his motion for a new trial, appellant Vaughn maintained that he was denied his sixth amendment right to effective assistance of appointed counsel. Vaughn was declared an indigent by the court, and John McKnight was appointed to represent him. The district court conducted a plenary hearing specifically on the issue of effectiveness of counsel and concluded that McKnight’s performance was reasonably effective under all the circumstances.
Generally, ineffective assistance of counsel claims are not considered on direct appeal because a district court normally has not had the opportunity to conduct an evidentiary hearing or to render findings of fact. E.g., United States v. Rodriguez, 582 F.2d 1015 (5th Cir.1978). Here, however, the district court has conducted a full hearing and has developed a complete record. The court also analyzed the issue thoroughly in its order denying defendants’ motions for judgment notwithstanding the verdict and new trial. Therefore, rather than dismissing Vaughn’s claim without prejudice to raise it pursuant to 28 U.S.C. § 2255, we address the issue.
In Washington v. Strickland, 698 F.2d 1243 (5th Cir. Unit B 1982) (en banc), the court concluded that to sustain a claim of ineffective assistance of counsel, an appellant must demonstrate both a denial of effective assistance of counsel and a showing of prejudice 693 F.2d at 1258. Upon review of the entire record, we conclude that Vaughn has failed to satisfy either requirement. Vaughn’s initial complaint that McKnight lacked sufficient experience in federal criminal trials alone is unrelated to the question whether Vaughn received reasonably effective assistance of counsel. Similarly unavailing is Vaughn’s second contention that McKnight failed to pursue an entrapment defense. As the district court found, “On the contrary, McKnight testified that he did consider [an entrapment defense] and determined not to press it overtly. The practical wisdom of this choice was supported by the testimony of government agents at trial indicating Vaughn made the first overtures concerning the importation scheme.” Record, vol. 4 at 662. See United States v. Killian, 639 F.2d 206, 210 (5th Cir.1981).
Vaughn’s most plausible argument is that McKnight failed to interview and to compel the attendance of four witnesses who allegedly could have shed light on Vaughn’s defense that Robert Abplanalp, a friend of former President Richard Nixon and former Attorney General John Mitchell, was somehow using his influence with the former Republican Administration to indict Vaughn in 1981. McKnight did subpoena these potential witnesses (three were served and one could not be located); however, not one appeared at trial. McKnight is now faulted for failing to compel the attendance of the witnesses and failing to seek a continuance. The district court’s assessment of that charge is as follows:
As previously mentioned, McKnight is also faulted about his ignorance in failing to know how to compel the attendance of witnesses Abplanalp and the like. But this is not even good 20-20 hindsight. It is sheer fantasy to argue that any of those subpoenaed would have supported Vaughn. On the contrary, the apparent refusal of these witnesses to attend the trial gave McKnight some semblance of a basis for arguing that the arrogant flaunting of the judicial process by Ab-planalp and his lawyer was further evidence of the truth of Vaughn’s claim of a “conspiracy to get him.”
Record, vol. 4 at 665. We agree with this assessment as it pertains to McKnight’s failure to compel attendance of the witnesses.
More troubling is the allegation that McKnight failed to interview these potential witnesses. This is because the failure to conduct a reasonably substantial investigation into a defendant’s one plausible line of defense is not a permissible trial strategy. Washington, 693 F.2d at 1252. Although McKnight testified that he believed Vaughn’s “conspiracy” defense to be plausible “[t]he scope of duty to investigate into defendant’s one line of defense may be affected... by factors such as the strength of the government’s case.” Id. at 1253 n. 16. Undoubtedly, the Government’s best case was against Vaughn, the most active participant in the October plans. But, in addition, the Republican conspiracy was not Vaughn’s only line of defense. He also generally denied agreeing to enter into the conspiracy, a defense actively pursued by McKnight throughout the proceedings. The district court’s finding that McKnight provided reasonably effective assistance to Vaughn is therefore amply supported by the record. We note further that at the post trial hearing, Vaughn proffered no evidence that the potential witnesses would have testified to anything favorable to Vaughn’s defense. He, therefore, also failed to demonstrate any degree of prejudice.
For the above reasons, the judgments of the district court are
AFFIRMED.
. The details of the arrangements were quite specific. Vaughn discussed the amount of boat traffic on the river, how they would have to build a ramp to get the marijuana off the boat, water depth and current patterns, and transportation from the river bank to the main dirt road for transport to the stash site. Badolato wanted a stash site closer to the water and wanted to know how the trucks could move back out to the interstate. They ultimately agreed to compartmentalize the operation by having the agent’s men take the truck to the stash area, load it, and return it to a truck stop where Badolato’s drivers could take over. Ba-dolato also suggested that guards be placed on U.S. 17 to ensure that no traffic was coming as agents pulled out of the gate onto the highway to go to the truck stop. Quarnstrom was con-cemed about the need for a power generator for portable lighting, electronic scale, and covers for the stable. He also urged the group to consider an escape route in the event that police became involved.
. Badolato specifically informed the agents that he had recreational vehicles which could move at least several hundred pounds of marijuana into an area in Pennsylvania.
. Vaughn went on to explain that his equipment problems included the crash of an airplane and transmission difficulties with a particular boat.
. Quarnstrom maintains that his role in the conspiracy is no different from that of the DEA agents. Although ingenious, the analogy is not persuasive. The DEA agents were acting solely as government informants, and are effectively granted immunity for acting upon the instructions of the Attorney General. Cf. 21 U.S. C.A. § 878(5) (1981) (authorizing agents to act pursuant to the instruction of the Attorney General). Moreover, the agents clearly withdrew from the conspiracy while Quarnstrom did nothing to defeat its furtherance. Although after the October meetings Quarnstrom returned to California, mere cessation of activity in furtherance of the conspiracy does not constitute withdrawal. To withdraw, a co-conspirator must affirmatively defeat or disavow the purpose of the conspiracy.. United States v. Quesada-Rosadal, 685 F.2d 1281, 1284 (11th Cir.1982); United States v. Diaz, 662 F.2d 713, 716 (11th Cir.1981).
. The pilot of the plane was a co-defendant at trial, but jumped bond while the appeal was pending. His appeal was dismissed. 595 F.2d at 277 n. 1.
. Our holding simply is that sufficient evidence supports the jury’s verdict that Quarnstrom intended to enter into the conspiracy. In discounting the effect of his motivation in this determination we do not intend to hold that motivation or purpose plays no role in these proceedings. Such considerations are most appropriate at the sentencing stage of a trial. Indeed, the record indicates that the district judge did consider Quarnstrom’s purpose at the sentencing hearing and, as a result, dispensed a more lenient sentence to Quarnstrom than to Badolato and Vaughn.
At this stage of the litigation we would note further that Quarnstrom still may move to reduce his sentence. Rule 35(b) of the Federal Rules of Criminal Procedure authorizes a reduction of sentence within 120 days of this affirmance. If he feels that the sentencing judge did not give sufficient consideration to what he contends his purposes were, such contentions can be presented under a Rule 35(b) motion. We express no opinion on the merits of such a motion should one be filed.
. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
. Although both Obst and Lediard testified that they knew Quarnstrom was in contact with drug smugglers, neither could offer any details of the extent of his involvement or lack thereof. Apparently, Quarnstrom was on his own, and was to obtain the information by his own means. See Record vol. 1, at 52. In other words, Quarnstrom was free
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
FAGG, Circuit Judge.
Watson Chapel School District (the School) and Leydel Willis both appeal from adverse decisions by the district court. 703 F.Supp. 1381 (E.D.Ark.1988). We affirm the district court’s decision that the School intentionally discriminated against Willis because of her sex, but we reverse the court’s ruling denying Willis back pay and front pay.
Leydel Willis has taught business education in the Watson Chapel School District for over twenty-five years. She is certified in Arkansas as a business and vocational education teacher and as a secondary school principal. Between 1983 and 1988, the School hired eight male administrators for its junior and senior high schools. Willis applied for all eight positions, and each time the School rejected her. The district court found the School refused to hire Willis because she was a woman, see 42 U.S.C. § 2000e-2 (1982), and ordered the School to appoint Willis to the next available secondary administrative position.
The School contends, however, the district court committed error by using disparate impact analysis to decide Willis’s intentional discrimination claim. To support reversal of the district court, the School asks us to lift isolated passages from the court’s opinion and read them out of context. This argument is without merit.
It is clear from the record that the district court applied the disparate treatment framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Community Affairs v. Bur-dine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), made a factual inquiry into “which party’s explanation of the [School’s] motivation it believe[d],” United States Postal Serv. Bd. v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983); see also Henderson v. City of Mexico, 798 F.2d 320, 322-23 (8th Cir.1986), and decided the School intentionally discriminated against Willis. Craft v. Me- tromedia, Inc., 766 F.2d 1205, 1211 (8th Cir.1985), cert. denied, 475 U.S. 1058, 106 S.Ct. 1285, 89 L.Ed.2d 592 (1986).
The district court observed that m four instances the superintendent “preferred a male without prior administrative experience over a female without prior administrative experience,” and the superintendent credited the male candidates with “[ ]leadership,[ ] [ lability,[ ] and [ ]stability[ ]” even though their experiences and credentials were similar or inferi- or to Willis’s. On another occasion, the superintendent told a school board member he was “le[e]ry of females” in the junior high principal position, but the superintendent later acknowledged Willis was better qualified than the man he recommended. The record amply supports the district court’s determination that the reasons the School gave for failing to promote Willis were pretextual in at least four instances. In our view, the court’s finding of intentional sex discrimination is not clearly erroneous. Id. at 1211-12.
Turning to Willis s appeal, she contends the district court committed error in failing to award her back pay and front pay. The court concluded that “[bjecause of the numerous positions involved [] and the varying salaries of each position, it would be impossible to calculate compensatory damages.” We disagree. Mere difficulty in calculating damages is not sufficient reason to deny relief. See Kirby v. Colony Furniture Co., 613 F.2d 696, 699-700 (8th Cir.1980).
Although Willis was denied promotion to eight different positions, the School’s salary scale should provide the district court with adequate guidance to calculate Willis’s compensation. Any ambiguities in the amount of salary owed Willis should be resolved against the School. Henry v. Lennox Indus., 768 F.2d 746, 753 (6th Cir. 1985); Horn v. Duke Homes, 755 F.2d 599, 607 (7th Cir.1985). We thus remand the case for computation of Willis’s back and front pay award. Willis, of course, bears the burden of proving her pecuniary losses on remand. See id. at 606.
Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HARPER, District Judge.
These appeals stem from judgments of conviction entered in the United States District Court for the Southern District of Iowa. Appellants were found guilty on two counts submitted to the jury, in one count for forcibly breaking into a building used in part as a post office with the intent to commit larceny in violation of 18 U.S.C.A. § 2115, and in one count for causing damage to government property in excess of $100.00 in violation of 18 U.S.C.A. § 1361.
The defendants-appellants filed motions to suppress the evidence. An evi-dentiary hearing was held on these motions, which were denied by the court. Thereafter, the defendants were convicted after a jury trial on both counts and each was sentenced to five years imprisonment on each count to run concurrently-
Appellants claim error in the admission of certain evidence taken by the police from a motor vehicle operated by defendant, Donald Lee Kness, prejudice by the joint trial, and insufficient evidence to convict defendants Knudtson and Evans.
The facts leading to the seizure of the vehicle and evidence are as follows: On the night of June 4, 1970, the Craw-fordsville, Iowa Post Office was burglarized. Three residents of Crawfordsville, Earl Lowe, Kenneth Stodgill and Richard Griffin, were in the vicinity of the post office at that time. Two of these citizens testified that they heard a pounding noise while at a house catty-corner to the burglarized building. From a distance of one-half block all three witnesses saw four men running down an alley adjacent to the post office. Thereafter, a man walked past them whom Griffin testified resembled defendant, Donald Lee Kness, and Stodgill testified looked like either defendant Kness or Knudtson. A few moments latter these citizens observed a light green 1968 Ford Fastback with one occupant drive up the same alley. Thereafter, they saw the same car parked a half block from the post office, where it remained some fifteen to twenty minutes before it pulled away. A short time later Stodgill, Lowe and Griffin found the door to the building housing the post office pried open and notified the local deputy sheriff.
A description of the car in question was broadcast over area police radio and intercepted by the police at Iowa City, Iowa, which is located on the highway between Crawfordsville and Cedar Rapids. The Iowa City authorities had earlier stopped a car matching the description and had issued a traffic violation summons to Donald Lee Kness of Cedar Rapids. The car containing four occupants then departed from Iowa City. Subsequent to the reception of the radio transmission from Crawfordsville, the Iowa City police notified authorities at Cedar Rapids as to the expected route and time of arrival in Cedar Rapids of the automobile in question.
The police in Cedar Rapids located the described vehicle and followed it to a parking lot adjacent to some taverns. Identification was procured from Donald Lee Kness and Gene Allen Knudtson, but not from defendant Evans. The three defendants, the only occupants of the car, then left the automobile and proceeded toward the taverns. The Cedar Rapids authorities kept the car under surveillance. Two hours later defendant Kness returned with Marjorie Mae Johnson, the owner of the car, and sought to regain its possession. At this time Kness was arrested for intoxication.
The three witnesses who had seen the vehicle near the Crawfordsville Post Office were taken to the car in Cedar Rapids. They positively identified the car as the two-door light green 1968 Ford Fastback which they had earlier seen. They also noted other identifying characteristics such as snow tires, which matched the only tread marks they had seen in the alley next to the Crawfords-ville Post Office, and a pulled rear bumper.
Elmo Carleton, the postal inspector, ordered the car removed to a public garage. Inspector Carleton testified that at this time he knew that defendants Kness and Knudtson had a very high reputation in the Cedar Rapids area for committing breaking and entering.
Early that morning following the burglary, Inspector Carleton sought from the Commissioner a search warrant on the basis of “a positive identification being made of the above described vehicle by three Crawfordsville, Iowa residents, namely Kennneth Stogell, Dick Griffin and Wayne Lowe, each stating that it is the same vehicle which they witnessed at the United States Post Office at Crawfordsville, Iowa, during the burglary of the said post office on the night of June 4, 1970.” The search warrant was issued, resulting in the location of a large quantity of items in the trunk of the vehicle which had been taken from the Crawfordsville Post Office.
Appellants contend that the car was seized prior to the identification of the vehicle by the Crawfordsville residents, and, therefore, without probable cause. The record indicates that there was no seizure of the vehicle prior to the identification by the Crawfordsville residents. The Officers who surveyed the vehicle from the time the appellants left it until its identification, testified that only one attempt was made to retrieve the automobile by Kness, who was arrested for intoxication and, therefore, incapable of driving the car. Marjorie Mae Johnson, who accompanied Kness, made no request to drive the automobile, and left in a cab. The car was impounded only after the Crawfordsville residents identified it, at which time probable cause to seize the car existed.
The court in Carroll v. United States, 267 U.S. 132, pages 155-156, 45 S.Ct. 280, page 286, 69 L.Ed. 543 (1925) sets forth the standard for determining the reasonableness of a seizure of a vehicle:
“The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband * * * which is being illegally transported.”
In Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), the court applied the Carroll test in approving a seizure of an automobile primarily on information similar to that known by the authorities here. The police in Chambers, supra, stopped a car on the basis of a description from two teenagers of an automobile seen circling the block in the vicinity of a robbery and speeding from a nearby parking lot. One of the occupants of that car was found to have on a green sweater, and a trench coat was also in the ear, which articles of clothing were said to have been worn by the robbers. The police seized the car, took it to the police station, and searched it. The court found that probable cause existed for the search and seizure.
On the facts before this court, Inspector Carleton knew when he ordered the seizure of the vehicle that the Post Office in Crawfordsville had been burglarized; that a car matching the description of the one in question had been seen being driven in an alley next to the Post Office and had been parked nearby; that the vehicle driven by the defendants had been stopped in Iowa City, a town on the highway between the scene of the burglary and Cedar Rapids, a short time after the burglary was discovered ; and that two of the defendants had a reputation for breaking and entering. Inspector Carleton was also present when the three residents of Crawfordsville identified the car on the basis of certain general and specific features. This meets the test of probable cause under Carroll.
Applying Chambers v. Maroney, supra, the authorities had probable cause not only to seize the automobile, but to search it after the identification by the Crawfordsville residents. However, the vehicle was not searched until the appellants had been given that extra privacy afforded by a warrant.
Appellants contend that the affidavit is insufficient on its face to support a finding of probable cause for the issuance of a valid search warrant. In Whiteley v. Warden, 401 U.S. 560, page 564, 91 S.Ct. 1031, page 1035, 28 L.Ed. 2d 306 (1971) the Supreme Court reiterated the standard for finding probable cause and stated:
“The decisions of this Court concerning Fourth Amendment probable cause requirements before a warrant for either arrest or search can issue require that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant.”
The affidavit here in question gives a detailed description of the car to be searched and the stolen property expected to be discovered. It also contains statements showing that the Post Office in Crawfordsville had been burglarized the night before. Three residents of Crawfordsville had personally seen the vehicle at the scene of the crime at the time of its commission. This information provides the nexus between the burglary in Crawfordsville and the car, which was a critical element absent in Whitely v. Warden, supra, note 8, at 565, 91 S.Ct. 1031.
The presence of these witnesses at the scene of the crime illustrates the reliable manner in which the witnesses obtained the information. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964); United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); McCreary v. Sigler, 406 F.2d 1264 (8th Cir. 1969). In addition, the three witnesses were actually named. The positive identification of the car related in the affidavit was an underlying fact adding reliability and credibility to the witnesses’ observations of the vehicle at the scene of the burglary. United States v. Harris, supra; Aguilar v. Texas, supra. The affidavit meets the requirements of probable cause set down by the Supreme Court.
Appellants Knudtson and Evans contend that they are entitled to a judgment of acquittal since reasonable doubt existed as a matter of law. We cannot agree. Proof beyond a reasonable doubt has long been the standard for determining guilt of a criminal charge. Davis v. United States, 160 U.S. 469, 16 S.Ct. 353, 40 L.Ed. 499 (1895); Brinegar v. United States, 338 U.S. 160, 174, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).
In United States v. Francisco, 410 F.2d 1283 (8th Cir. 1969), the court in determining whether the prosecution had met this burden, held, 1. c. 1285-1286:
“In a criminal case where there has been a conviction resulting from a jury verdict of guilty, the appellate court must accept as established all reasonable inferences that tend to support the action of the jury, and any conflicts in the evidence are resolved in favor of the jury verdict. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); La-tham v. United States, 407 F.2d 1, 2 (8th Cir. 1969); * * *. In determining the sufficiency of the evidence, we must view it most favorably to sustain a jury verdict. Teel v. United States, 407 F.2d 604 (8th Cir. 1969); Moodyes v. United States, 400 F.2d 360, 363 (8th Cir. 1968); Meyer v. United States, 396 F.2d 279, 283 (8th Cir. 1968).”
Applying the above standard to the evidence in this case, the jury could properly infer that the defendants Knudtson and Evans participated in the burglary of the Post Office in Craw-fordsville on June 4, 1970. Among the facts established by the government from which the jury could make such an inference were the following: That four people were seen running in an alley near the burglarized post office in Crawfordsville at approximately the time the burglary took place; that defendant Knudtson along with defendant Kness was identified as resembling the man seen in Crawfordsville by the three residents, as testified to by the witness Stodgill; that three other people were in the car at the time defendant Kness was issued a ticket in Iowa City, at about the time it would take the car to travel from Crawfordsville to Iowa City after the burglary; that the car was spotted in Cedar Rapids at approximately the time it would take the car to travel from Iowa City to Cedar Rapids, and when the car eventually stopped in Cedar Rapids, defendants Knudtson, Evans and Kness emerged therefrom; that the fruits of the crime were found in the trunk of the car in which Knudtson and Evans were riding, and nothing had been put in or removed from the trunk after the defendants left it; and that burglary tools, one of which an expert identified as positively having made marks found on the handle and combination of the post office safe, were found in the trunk.
The above facts provide ample evidence to support the connection of the defendants Evans and Knudtson to the burglary of the United States Post Office in Crawfordsville.
There is no merit to appellants’ contention that the defendants were prejudiced by the joint trial. Rules 8(b) and 13, Federal Rules Criminal Procedure, clearly permit the joinder of defendants.
In Golliher v. United States, 362 F.2d 594 (8th Cir. 1966), the court at page 603 said:
“Since the trial court is affirmatively empowered to order a joint trial, to be entitled to relief the appellants must affirmatively demonstrate that the joint trial has prejudiced their right to a fair trial. Fisher v. United States, 324 F.2d 775 (8 Cir. 1963).”
Appellants have not demonstrated that-any evidence introduced in the trial would have been inadmissible in separate trials of each of the defendants. There is no showing that these two appellants did not receive a fair trial. The lower court did not abuse its discretion in ordering the joint trial of the appellants.
Judgment affirmed.
. The crimes of which the defendants presently stand convicted were committed while all three were enjoying release on bond pending appeal from convictions for similar charges in the state courts.
. Rule 8(b) : “Joinder of Defendants. Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.”
Rule 13: “The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants if there is more than one, could have been joined in a single indict- . ment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
MESKILL, Circuit Judge.
This appeal arises from several transactions of a joint business venture (“the joint venture”) involving Norman (“Norman”), Martin (“Martin”) and Robert (“Robert”) Rodman, Sydney Newman and Walter Ornstein as the joint venturers. After the Commissioner of Internal Revenue (“Commissioner”) had asserted deficiencies and penalties against Norman and Arlene Rod-man, Martin and Phyllis Rodman, and the Estate of Sydney Newman and the decedent’s wife, Dorothy, for the years 1956, 1957, and 1959 through 1962, and against Robert and Gertrude Rodman for the years 1956, 1957, 1960 and 1962, the tax court, Quealy, Judge, made determinations of deficiency which Norman and Arlene Rodman appeal with respect to tax years 1956 and 1957, which Martin and Phyllis Rodman appeal with respect to years 1956, 1957 and 1959 through 1962, which the Estate of Sydney Newman and the decedent’s wife Dorothy appeal with respect to tax years 1956 and 1957, and which the Estate of Robert Rodman and the decedent’s wife Gertrude appeal with respect to tax years 1956 and 1957. The Commissioner has taken a protective cross appeal involving each of the appellants’ 1957 tax years. The tax court’s opinion, T.C.Memo. 1973-277, is reported at 32 T.C.M. 1307 (1973).
As did the tax court, we shall take up first the claims which apply to the joint venture as a whole and then address the various claims raised by the appellants as individuals. Generally, the points raised on appeal are that the tax court erred when it (1) disallowed the inclusion of an allegedly unconditional $900,000 debt as part of the cost of certain shares of stock owned and traded by the joint venture, (2) characterized a payment of $250,000 received by the joint venture as ordinary income, (3) disallowed certain of the joint venture’s alleged business expense deductions, (4) characterized as a capital loss to its members the loss that apparently accrued when the joint venture terminated, (5) allocated to Martin Rodman his share of the joint venture’s income based upon the entire calendar tax year even though he joined the venture only in November, and (6) denied the joint venturers’ wives the benefits of “innocent spouse” status. We affirm the tax court’s judgment in all respects except its allocation of a full year’s share of income to Martin Rodman, which allocation we reverse. Because each of the issues raised rests upon different factual footings, the facts germane to each issue will be treated separately.
I. The $900,000 Debt
In 1955 Ornstein, Newman, Robert and Norman entered into a joint venture, the initial objective of which was to attempt to acquire control of A.M. Byers Company, Inc. (“Byers”). By 1956, however, having lost its bid to gain control of Byers, the joint venture’s primary activity became trading publicly the stock of Torbrook Iron Ore Mines, Ltd. (“Torbrook”), a Canadian company incorporated in 1956 to promote prospecting licenses issued by the Nova Scotia Minister of Mines. During 1956 the joint venture acquired 1,179,050 Torbrook shares and realized $2,574,903.34 from sales to the public of 835,055 of those shares.
The dispute in the tax court and now on appeal focuses upon the cost of 500,000 of the Torbrook shares that the joint venture, which used the accrual method of accounting, allegedly purchased from one Aurele Brisson, a Montreal attorney who died in 1970. At the time of Torbrook’s incorporation in early 1956, Brisson had subscription rights to the 500,000 shares for a stated consideration of $100,000, that is, 20 cents per share. There was no proof, competent or otherwise, that Brisson actually owned the shares introduced at the trial, however, other than a letter written by Robert in May, 1956, on behalf of the joint venture. In that letter Robert confirmed an alleged agreement between Robert and Brisson, whereby Brisson agreed to sell and Robert agreed to purchase the 500,000 shares for the joint venture for the stated consideration of 21 cents per share ($105,000) plus 20 percent of any additional shares of Tor-brook stock that the joint venture might acquire in the future.
At the trial, Norman Elliot, the joint venture’s accountant, testified that the May 1956 agreement with Brisson first came to his attention in September of that year and that he suggested that the open-ended 20 percent contingent liability be replaced by a definite liability of a fixed amount. Upon request, Elliot drafted a letter to Brisson to be signed by Robert proposing that Brisson cancel the 20 percent agreement and accept in its place a $900,000 non-interest-bearing note payable on November 15, I960.
The next time Elliot saw this letter was in May, 1957, when he was preparing the joint venture’s 1956 information return. The letter then bore the date “November 3, 1956” and contained signatures purporting to be those of Robert Rodman and A. Brisson. Together with the letter, Elliot received a photocopy of what purported to be a note also dated November 3, 1956, by which Robert promised on behalf of the joint venture to pay Brisson the sum of $900,000 on November 15, 1960. Based upon these documents, Elliot accrued on the joint venture’s return the sum of $900,000 as part of the cost to the joint venture for the Torbrook stock.
Upon this evidence, the appellants asserted at trial that an unconditional debt of $900,000 to Brisson had been proved and should be included in the cost of Torbrook stock in accordance with the principle enunciated in Crane v. Commissioner, 331 U.S. 1, 67 S.Ct. 1047, 91 L.Ed. 1301 (1947). The Commissioner, however, contended that the authenticity of the documents had never been demonstrated and further that there was significant evidence to show that the note had never been delivered to Brisson, and that it was never intended that the joint venture would incur a bona fide unconditional debt to him. It is noteworthy that the original of the November 3, 1956, note and a letter from Brisson to Robert, dated January 7, 1957, were discovered among Sydney Newman’s effects at his death. The letter acknowledged receipt from Robert of 200,000 Torbrook shares in full satisfaction of the $900,000 debt. The appellants conceded, however, that the 200,-000 shares of Torbrook were never delivered to Brisson. Taking the record as a whole, the tax court found that “there was at no time a definitive obligation to Brisson upon which to predicate the accrual of a liability on the part of the joint venture.” 32 T.C.M. 1318.
Although the appellants now attempt to characterize the tax court’s decision as a departure from the Crane doctrine, it is clear that the decision was no more than a factual finding by the court that the appellants had failed to sustain their burden of proving the existence, the bona fides and the unconditional nature of the $900,000 debt. As a factual finding, the tax court’s decision must, of course, be upheld on appeal unless that finding is “clearly erroneous.” Commissioner v. Duberstein, 363 U.S. 278, 290-91, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). There is nothing in the record to indicate that the finding was erroneous, much less clearly erroneous. Indeed, the mere fact that there was no authentication of the documents upon which the appellants base their contention would in itself suffice to uphold the tax court’s finding. In addition, however, there was no proof that the original note had ever been delivered to Brisson. That latter failure, together with the proof of possession by Newman of both the original note and the January 7, 1957, letter from Brisson, which obviously misrepresented the facts with respect to the satisfaction of the debt, certainly casts a shadow over the bona fides of the entire transaction. In short, the record clearly supports the tax court’s finding that the joint venture owed no definitive obligation to Brisson with respect to the purchase price of the Torbrook stock in question.
II. The $250,000 Payment
As discussed above, the joint venture’s initial activity involved an attempt in 1955 to gain control of the management of Byers through proxy solicitations. The joint venture’s major competitor in the proxy fight was General Tire & Rubber Company (“General Tire”). In 1956, the joint venture lost the proxy battle and entered into an agreement with General Tire, which agreement resulted in the payment of $250,000 from General Tire to the joint venture. The issue in the tax court and now on appeal is whether that payment should be characterized as a capital gain or as ordinary income to the joint venture. The tax court determined that the entire payment was ordinary income to the joint venture. We agree.
In return for the $250,000 payment, the joint venture agreed, in pertinent part, to the following consideration: (1) to accept an offer by General Tire, if made, to exchange the 25,000 shares of Byers stock “owned or controlled” by the joint venture for General Tire stock (“the option”), (2) to assign to General Tire all of the joint venture’s right, title and interest in a pending patent application concerning a rubber bellows pump (“the patent”), (3) to assign to General Tire the joint venture’s claims against Byers resulting from expenses totalling in excess of $380,000 allegedly incurred by the joint venture in connection with the proxy solicitations, and (4) to refrain, for a five year period, from opposing or hindering General Tire in its attempt to gain control of Byers.
In its 1956 information return, the joint venture characterized the $250,000 payment as a long-term capital gain from the sale of the patent application. The trial in the tax court proceeded upon that assertion. Later, in their brief to the tax court after trial, the appellants further asserted that the payment was also made for General Tire’s option to purchase the Byers stock owned by the joint venture, which option apparently was later exercised by General Tire. The appellants reasoned that under both theories the payment was an exchange for a capital asset and hence should be treated as a capital gain. The Commissioner determined that the entire payment was to secure the joint venture’s acquiescence in General Tire’s further efforts to gain control of Byers and to extinguish the joint venture’s claim for reimbursement for proxy expenses. The tax court, finding that the appellants had failed to prove what portion of the payment, if any, should be allocated to the patent or the option, sustained the Commissioner’s determination.
At the outset, we note that appellants’ assertion that part of the $250,000 payment was attributable to the purchase of the option is an assertion that was not timely raised in the tax court. Appellants’ contention at trial was that the payment was attributable solely to the patent application. It was not until after trial that they argued in their brief that the payment constituted consideration for the option. It is well settled in the tax court that an issue raised for the first time in briefs after trial is not timely raised. William E. Robertson, 55 T.C. 862, 864-65 (1971); Sidney Messer, 52 T.C. 440, 455 (1969); cf. Guild v. Commissioner, 543 F.2d 425 (2d Cir. 1976). The tax court nevertheless considered the claim but found the appellants had failed to prove what value, if any, should be placed on the option for the purpose of allocating a portion of the payment to it. In fact, the record fails to show even that the joint venture owned all of the 25,000 shares of Byers stock for which it had granted the option.
The tax court found a similar, if not a more serious, lack of proof with respect to the value of the patent application. The sole evidence in the record with respect to the patent application is a stipulation of certain facts recited below, certified copies of recorded assignments of rights in the patent and the agreement between General Tire and the joint venture. The stipulation provided that patent application # 363362 was filed on June 22, 1953, with the United States Department of Commerce, that the application was rejected and restricted on April 28, 1954, that an amended application was filed October 28, 1954, and again rejected on April 17, 1956, that a further amendment was filed on October 26, 1956, and rejected again on December 6, 1956, that yet another amendment was filed on June 5, 1957, that a notice of claim allowance was filed with respect to six of the seventeen claims on June 12, 1957, and finally that the application was forfeited for failure to pay the final filing fee. The first assignment of rights in the patent was made on August 7, 1953. On that occasion, James J. Sunday, the inventor of a “FLUID PUMP,” the subject of the patent application, assigned all his right, title and interest in the invention and the patent application to Newman for “One Dollar ($1.00) and other good and valuable consideration.” On September 22, 1953, for the same stated consideration, Newman assigned an undivided one-fourth interest to each of Ornstein, Robert and Norman. There was no further evidence on the issue.
The tax court noted that part of the $250,000 payment may have been allocable to the assignment of the patent application to General Tire, but concluded that the absence of any proof of the value of the application prevented it from making an allocation.
It is rather clear from the tax court’s opinion that it was not convinced by appellants’ argument that the bulk of the $250,000 payment was made by General Tire for any reason other than to end the acquisition battle and to extinguish the joint venture’s proxy expense claim. Given the state of the record here, we cannot fault the tax court’s factual determination. Generally, where a transaction involves the sale of both capital assets giving rise to capital gains treatment and other assets giving rise to ordinary income, an allocation between the two categories within the transaction is necessary. Helvering v. Taylor, 293 U.S. 507, 55 S.Ct. 287, 79 L.Ed. 623 (1935); Commissioner v. Ferrer, 304 F.2d 125, 135 (2d Cir. 1962). Neither the Commissioner nor the tax court is required to accept the allocation suggested by the taxpayer but should make such an allocation based upon the relative value of each item transferred as it relates to the whole of the transaction. F. & D. Rentals, Inc. v. Commissioner, 365 F.2d 34, 40 (7th Cir. 1966).
In essence, the appellants in the instant case attempted to allocate the entire payment to the patent in spite of the fact that the agreement clearly transferred to General Tire ordinary income rights in addition to the patent; however, they presented no evidence as to the patent’s value. Thus, there was no evidential basis upon which the tax court could make the allocation based on the relative values of the items. As a result, the tax court apparently felt compelled to sustain the Commissioner’s allocation based upon the presumption that his allocation was correct and must be sustained unless the taxpayer shows that it is “plainly arbitrary.” See Id. at 40-41. Regardless of any presumption favoring the Commissioner’s allocation, the record demonstrates that the patent application was, as asserted by the Commissioner, virtually worthless. Not only had the patent application been rejected prior to General Tire’s acquisition of it, but General Tire abandoned it shortly thereafter by failing to pay the required filing fees. It is certainly unlikely that General Tire would have paid such a substantial sum for such a tenuous patent application.
Furthermore, appellants have not attempted to show that the patent application was a capital asset as defined in § 1221 of the Internal Revenue Code of 1954 (the “Code”), 26 U.S.C. § 1221, or even that it was property used in a trade or business entitled to capital gain treatment under certain circumstances as set forth in § 1231 of the Code, 26 U.S.C. § 1231. Rather, appellants make the bold assertion only that the joint venture was entitled to long term capital gains treatment through the special provisions of § 1235 of the Code, 26 U.S.C. § 1235, which generally provides such treatment for the transfer of a patent or patent rights by a “holder” of the patent or its rights. There is, however, nothing in the record to indicate that any of the joint venturers satisfy § 1235(b)’s definition of a “holder.” That definition requires that in order to be a holder one must be an individual (1) whose efforts created the invention, or (2) who acquired his interest in exchange for money or money’s worth paid to the creator prior to the invention’s having been reduced to actual practice if that individual is neither the employer nor a relative of the creator.
Because a joint venture is not an individual, it cannot itself be a “holder,” Treas.Reg. § 1.1235 — 2(d)(2); Burde v. Commissioner, 352 F.2d 995, 998 (2d Cir. 1965). Although the individual members of a joint venture may be accorded such status, on the record in the tax court only Newman can claim that he paid any consideration to Sunday, the creator of the invention, for the first assignment. Even his unstated claim of entitlement to “holder” status is incomplete, however. There is no evidence that any consideration was paid prior to actual reduction to practice of the invention; in fact, the venture reported a zero basis for the patent in its 1956 return. Also, there was no evidence with respect to whether or not Newman was Sunday’s employer. Without such proof, we fail to see how § 1235 is applicable in this case or upon what other basis appellants hoped to establish that the transfer of the patent entitled them to capital gains treatment.
III. Business Expenses
During the tax year 1956 the joint venture reported receipts in excess of $2.5 million from the public sale of the Torbrook stock. In that year it claimed as ordinary and necessary business deductions sales expenses in the amount of $124,804.19 and travel and investigation expenses in the amount of $9,445.56. For 1957, in which it reported like receipts of $160,301.97, the joint venture claimed the following business deductions on its return: sales expenses of $40,793.90, travel and investigation expenses of $7,688.98, commissions of $2,700.00, and legal and accounting expenses of $64,053.88. The Commissioner disallowed all of the disputed expense deductions for 1956 except $2,759.83 for travel and investigation. For 1957, he disallowed all of the claimed commissions and travel and investigation expenses, all but $517.52 of the sales expenses and all but $2,836.00 of the legal and accounting expenses.
At trial, the appellants offered no competent evidence to indicate that any of the disallowed expenditures had in fact been made. The sole evidence bearing upon these expenses was the testimony of the joint venture’s accountant, Mr. Elliot. He testified that when he prepared the joint venture’s 1956 and 1957 returns, he would have required substantiation of the expenditures sufficient to satisfy himself of their authenticity before entering the figures on the returns. There was no testimony regarding the purpose of any of the particular expenditures. None of the principals of the joint venture who had personal knowledge of any of the disallowed expenditures testified, nor was any documentary evidence introduced to support any of the costs. Consequently, because no evidence was introduced, the tax court sustained the Commissioner’s disallowances on the ground that there had been a failure of substantiation.
Appellants’ contention in this Court is that the tax court should have estimated a reasonable figure for the claimed deductions and should have allowed that amount to be deducted. In.justification for their failure to introduce any documentation, the appellants explain that all such documentation had been lost as a result of the passage of 17 years between the years in question and the tax court trial, as well as the deaths of two of the principals involved. They cite the well known decision of this Court, Cohan v. Commissioner, 39 F.2d 540 (2d Cir. 1930), in support of their position that the Commissioner may not arbitrarily deny all deductions simply because those deductions are not documented. We disagree with the contention that the Cohan rule is applicable here and affirm the tax court’s disallowance of the deductions.
In Cohan v. Commissioner, supra, the famous theatrical producer, George M. Cohan, testified at trial that he had spent substantial sums of money travelling and entertaining actors, employees and drama critics in furtherance of his theatrical production business. He could not substantiate by records the actual amounts of such expenditures but instead estimated the amounts in his testimony. The Board of Tax Appeals found that Cohan had made substantial expenditures and that those expenditures were allowable expenses, but denied any deductions on the ground that, in the absence of details, it was impossible to determine his actual expenses. This Court remanded with instructions that the Board “make as close an approximation as it can, bearing heavily if it chooses upon the taxpayer whose inexactitude is of his own making.” Id. at 544. Much of this Court’s reasoning was based upon the fact that the Board’s finding that allowable expenses had been incurred was inconsistent with its denial of any deductions at all.
The instant case presents quite a different situation. Here there is no competent evidence that any business expenditures over and above those allowed by the Commissioner were ever made. There was no tax court finding that the disputed expenditures were made, nor was there a finding that they were allowable. Consequently, this is not a case where there is a reasonable certainty that there were valid expenditures, with only the amount still in question. In re Sperling’s Estate, 341 F.2d 201, 202 (2d Cir. 1965). Judicial attempts to ameliorate the harsh results of a strict requirement that taxpayers account for every penny of deductions have not and cannot be stretched to the extent that taxpayers may merely claim deductions on their returns and, without further proof, expect the tax court to allow a reasonable deduction based upon the nature of the taxpayers’ businesses and the amounts of their receipts. Regardless of the Cohan rule with respect to amounts allowable, the courts have consistently held that at least the existence of an expense must be proved before any deduction can be taken. E.g., New Colonial Co. v. Helvering, 292 U.S. 435, 440, 54 S.Ct. 788, 78 L.Ed. 1348 (1934). The appellants failed to do so here.
The failure of proof cannot be excused merely because the joint venture’s records may have been lost or destroyed or because members of the venture have died. Cf. Hague Estate v. Commissioner, 132 F.2d 775, 776 (2d Cir. 1943).
IV. The 1958 Losses
On March 19, 1957, the joint venture’s sales of Torbrook stock to the public in the United States came to an abrupt halt. On that date the United States District Court for the Southern District of New York, upon complaint of the Securities and Exchange Commission (“SEC”), enjoined Newman and Robert from trading in Torbrook stock until that stock was registered with the SEC. Subsequently, in 1958, the joint venture’s entire inventory of Torbrook stock became worthless. The Commissioner conceded as much and allowed the joint venture a net operating loss, the distributive shares of which loss were available to be carried back to the individual members’ 1955 and 1956 tax years pursuant to § 172 of the Code, 26 U.S.C. § 172.
After the trial in the tax court, however, the appellants individually contended that they were entitled to further net operating
loss carrybacks and carryovers because the joint venture itself, and each of the appellants’ interests in it, had been abandoned when it became apparent that the entire Torbrook joint venture was worthless. Their contention was that when the joint venture terminated, each member’s interest became worthless and resulted in further individual net operating losses. The tax court rejected the appellants’ application to reopen the record in order for each member to prove his adjusted basis in the joint venture and denied the further net operating losses on the theory that the appellants had not shown that the termination of the joint venture created an ordinary rather than a capital loss for each of the participants. We agree that the appellants have failed to show that they are entitled to ordinary losses and therefore find no abuse of the tax court’s discretion in refusing to reopen the record.
It is well settled, and there is no dispute between the parties, that for tax purposes a joint venture is treated as a partnership. Sections 761(a) and 7701(a)(2) of the Code, 26 U.S.C. §§ 761(a) and 7701(a)(2). Further, there seems to be no dispute that the partnership terminated in 1958 within the meaning of § 708(b)(1)(A) of the Code, 26 U.S.C. § 708(b)(1)(A), because no part of the partnership’s “business, financial operation or venture continue[d] to be carried on by any of its partners in a partnership.” To that extent, it seems clear that a distribution to the partners of solely cash, uncollected receivables, and appreciated inventory made by the partnership at its termination would be a distribution in liquidation of the partners’ interests, see § 761(d) of the Code, 26 U.S.C. § 761(d), and a loss engendered by such a distribution would be recognized under § 731(a) of the Code, 26 U.S.C. § 731(a), as
a loss from the sale or exchange of the partnership interests of the distributee partners. Finally, § 741 of the Code, 26 U.S.C. § 741, provides that any such loss recognized to a partner shall be considered as a loss from the sale or exchange of a capital asset, except to the extent that the property distributed was substantially appreciated inventory and unrealized receivables. See § 751 of the Code, 26 U.S.C. § 751.
Given this general statutory framework, the appellants argue that because the entire venture was abandoned, there was no liquidating distribution, hence no deemed sale or exchange of a partnership interest, and no capital loss treatment. Zeeman v. United States, 275 F.Supp. 235, 253 (S.D.N. Y.1967) (relying upon § 165(c)(1) of the Code, 26 U.S.C. § 165(c)(1)), aff’d and remanded on other issues, 395 F.2d 861, 865 (2d Cir. 1968). The Commissioner’s position is that the appellants have not proved the lack of a distribution upon termination and further that, even if there had been no distribution, because there was no partnership property available to distribute, the resulting loss at termination would nevertheless be a capital loss. The Commissioner requests that we overrule the district court’s handling of the matter in Zeeman. See Rev.Rul. 76-189, I.R.B. 1976-20, where the Commissioner set forth his position subsequent to the oral argument on this appeal. We need not reach the Commissioner’s second argument; we agree that there is no proof that there was a total abandonment of the partnership without some type of distribution.
Appellants’ entire argument is based upon the premise that when the partnership terminated, there was a total abandonment or forfeiture similar to those treated in Gaius G. Gannon, 16 T.C. 1134 (1951), and Palmer Hutcheson, 17 T.C. 14 (1951). In those cases, both of which were decided prior to the enactment of the partnership provisions contained in the 1954 Code, the taxpayers received absolutely nothing in return for relinquishing all of their rights in their respective partnerships. In the instant case, however, it is surely possible to conclude from the facts presented in the record that when the partnership terminated, there was cash in its coffers and that some of that cash was distributed to the partners at that time. The record shows, and the appellants have admitted in their brief, that “huge” amounts of income were earned by the partnership in 1956 from the sale of Torbrook stock. There is no proof in the record that any of that “income” was distributed to the partners at that time or in 1957. Indeed, it is more than reasonable to conclude that much of that “income” was retained and reinvested elsewhere by the partnership. In its 1958 information return, the partnership reported proceeds of $185,880.40 from the sale of capital assets, the lion’s share of which assets had all been purchased in 1957, and expenses of only $15,267.12. Although those reported transactions produced a reported net long term capital gain of only $91,-713.81, there is no indication that any of the assets had been purchased on margin, and one can easily see that the proceeds were at least presumptively available for distribution when the partnership terminated. Appellants make much of the fact that the tax court mentioned in its opinion that $100,000 of a $120,000 liability of the partnership, properly accrued as part of the basis of the Torbrook stock in 1956, had gone unpaid as a result of “developments” in 1957. From that statement they argue that there were unpaid partnership liabilities at its termination, and thus attempt to negate the possibility that the partnership had any assets available for distribution at that time. We find that argument to be unconvincing in light of the equivocal nature of the tax court’s statement and in light of the proceeds from the sale of the capital assets reported in 1958 in excess of that liability. There is certainly no indication in the record that if in fact there was property available for distribution, any of the partners would or did walk away from the partnership without taking his share.
In sum, it is altogether clear that the appellants have failed to prove that there was a forfeiture at all. Unless the partners can show that they received no distribution of partnership property at the partnership’s termination, Sections 731 and 741 apply by their very terms and in all likelihood would convert any loss to a capital one.
It should be stressed that there are several other factual possibilities that could be inferred from the record as presented to this Court. There could, for example, have been so-called “hot assets,” namely, unrealized receivables or appreciated inventory included in the partnership property distributed, see § 751 of the Code, 26 U.S.C. § 751, in which case ordinary gain or loss principles would have applied to the extent of the distribution of such assets. On the other hand, there may have been other property, such as office equipment, distributed along with cash and other property, in which case it would appear that no loss would be recognized at all on the distribution itself. Section 731(a)(2) of the Code, 26 U.S.C. § 731(a)(2). These possibilities merely serve to point out the inadequate state of the evidence upon which the appellants sought to convince the tax court to reopen the record. It was certainly no abuse of discretion for the tax court to refuse to reopen the record after a protracted trial where the appellants did not even show that they were entitled to ordinary losses if § 741’s capital loss provision were inapplicable.
Y. The Partners’ Allocation of Income
The partnership (joint venture) was, as mentioned above, begun in 1955. The original partners (venturers) at its inception were Ornstein, Newman, Robert and Norman, each of whom owned a twenty-five percent interest. On November 2, 1956, however, Ornstein sold his share to the remaining three, each of whom then had a one-third interest in the partnership. Three days later, pursuant to an agreement dated November 5, 1956, Martin acquired a two-ninth’s interest, one-ninth from Robert and one-ninth from Norman, with the result that from that date until the venture’s termination, Newman retained a one-third interest and Robert, Norman and Martin each held a two-ninth’s interest.
In its 1956 partnership return, the partnership attributed to Martin a full two-ninth’s share of the entire year’s reported loss. On his personal return for that year, Martin also reported his share of the loss on a full year’s basis. When the Commissioner disallowed the accrual of the alleged $900,-000 Brisson debt, however, 1956, rather than being a loss year, showed substantial taxable income for the partnership. Based upon the allocation contained in the partnership agreement and returns, the Commissioner asserted that Martin should be taxed on the basis of his share of the partnership’s income for the entire year.
At the trial, Martin testified that it had always been the intent of all the partners that he was to share in the profits and losses only to the extent that such profits and losses occurred after November 5,1956. He contended that he should not be taxed upon income that accrued to the partnership prior to that date.
The tax court relied heavily upon both the filed tax returns and the partnership agreement, which contained no chronological limitation on Martin’s interest, to discredit Martin’s testimony about the intent of the parties. The court found that in the November 5, 1956 agreement the members had intended to grant Martin a two-ninth’s share of the entire year’s income and losses. It concluded that the parties’ intent was the controlling factor and that Martin was accountable for a full two-ninths of the partnership’s income for the entire year. On this issue of the appeal the Commissioner has conceded that the tax court erred. We agree.
The tax court’s opinion rested upon the theory that each partner in a partnership must personally take into account his distributive share of the partnership’s taxable income and loss, § 702(a)(9) of the Code, 26 U.S.C. § 702(a)(9), that such share may generally be determined by the provisions of the partnership agreement, § 704(a) of the Code, 26 U.S.C. § 704(a), and that partners may amend the agreement and reallocate their shares at any time up to the original date set by statute for filing the partnership return, § 761(c) of the Code, 26 U.S.C. § 761(c); Smith v. Commissioner, 331 F.2d 298, 301 (7th Cir. 1964); David A. Foxman, 41 T.C. 535, 554 (1964). The tax court concluded that the November 5, 1956 agreement in effect was a modification of the partnership agreement by which the partners retroactively reallocated to Martin a two-ninth’s interest in the full year’s income and losses. Based upon the statutory framework mentioned above and the factual determination that the agreement had been modified as described, the tax court’s final conclusion was that the agreement was controlling and that Martin must be taxed on a full year’s basis.
The most significant problem with the tax court’s analysis is that it does not distinguish this case, where a new partner has joined the partnership by a transfer of a partnership interest, from the type of modification considered in the Smith case, namely, where the existing members of an ongoing partnership agreed to rearrange their shares retroactively. In the instant situation we believe that such a retroactive reallocation necessarily violates the well established prohibition against one taxpayer assigning taxable income to another. Helvering v. Horst, 311 U.S. 112, 61 S.Ct. 144, 85 L.Ed. 75 (1940). In essence, the present case is no more than an assignment by Robert and Norman of a percentage of their interests in the income earned by them as partners prior to Martin’s having joined the partnership. See Treas.Reg. § 1.708-l(e)(l)(i). As such, not only does the retroactive reallocation of income to a new partner violate the Helvering v. Horst general assignment of income prohibition, it necessarily follows from that conclusion that such an attempted assignment in the partnership agreement also falls within § 704(b)(2)’s caveat that a term in a partnership agreement cannot be controlling for tax purposes where its principal purpose is the evasion of taxes. Consequently, where a new partner is involved in the sale or exchange of a partnership interest, we must disagree with the tax court’s conclusion that the intent of the parties, as evidenced by the partnership agreement, is the controlling factor as to whether or not income or losses which accrued prior to the partner’s joining may be reallocated to him retroactively.
The conclusion we reach also has a statutory foundation. Section 706(c)(2) of the Code, 26 U.S.C. § 706(c)(2), sets forth certain standards to be applied to “close” the partnership year upon the sale of a part or the whole of a partner’s interest. Those provisions require that when a partner transfers his entire interest, the partnership year closes as to him. In the instant case, therefore, when Ornstein sold his entire twenty-five percent interest to Newman, Robert and Norman, the partnership year closed as to him and his distributive shares of the partnership’s financial affairs were set as of that moment. The transferee partners at that point, Newman, Robert and Norman, each owned one-third interests in what remained of the partnership’s income and loss items described in § 702(a). See Treas.Reg. § 1.706-l
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal from a judgment in favor of the defendant in a medical malpractice case arising out of a snowmobile accident in which the plaintiffs’ minor daughter fractured her right arm. A jury rejected, inter alia, the plaintiffs’ contention that they did not give informed consent for defendant, Roberto Ballestas, M.D., to perform surgery on their daughter because Dr. Ballestas had failed to inform them of the existence of an alternative, noninvasive method of treatment. The district court refused to grant the plaintiffs a judgment n.o.v. or a new trial, and they appealed. The primary question before us is whether the district court erred in concluding that there was sufficient evidence to support the jury’s verdict regarding informed consent. We hold that the jury’s verdict was against the weight of the evidence, and remand the case to the district court for a new trial on the informed consent claim. In all other respects, we affirm the judgment of the district court.
I.
On February 18, 1980, Maria Marino, age eleven, fell from a snowmobile while vacationing with her parents in the Pocono Mountains. Maria sustained an injury to her upper right arm and was immediately transported from the accident site to Gna-den Huetten Memorial Hospital in Lehigh-ton, Pennsylvania. After being examined by emergency room personnel, Maria was referred to Dr. Roberto Ballestas, an orthopedic surgeon.
In his examination of Maria, Dr. Balles-tas noted limited lateral motion and weakness in her wrist, and virtually total loss of dorsiflexion. After the examination and review of Maria’s x-rays, Dr. Ballestas diagnosed Maria’s condition as a fractured right humerus with possible involvement of the radial nerve.
The testimony regarding what occurred after this point is in conflict. Dr. Ballestas testified that he explained to Maria’s parents, appellants Joseph and Claide Marino, the need for immediate “open reduction” surgery to explore the radial nerve and thereby diminish the risk of permanent nerve damage. According to Dr. Ballestas, he informed the Marinos of his belief that any delay in treatment involved the possibility of further nerve damage and the potential loss of use of the arm. It is undisputed that the Marinos expressed the desire to have their daughter treated by their family orthopedic surgeon, Dr. Harold Friedman. Dr. Ballestas testified that he responded to this desire by telling the Mari-nos that they could take Maria home to be treated by another doctor, but that this course would risk permanent injury to Maria’s arm.
According to Mrs. Marino’s testimony, Dr. Ballestas never told her that Maria could be removed from the hospital. She testified that Dr. Ballestas told her that Maria would lose the use of her arm if it was not operated on within two hours, and that, as a result of Dr. Ballestas’ comments, she felt that she never had the choice of removing Maria from the Gnaden Huetten Memorial Hospital and taking her home to New Jersey for treatment. Mr. Marino testified that he too was left with the distinct impression, after listening to Dr. Ballestas, that Maria could not leave the hospital because immediate surgery was the only treatment possible. Both parents stated that, had they been informed of a school of accepted medical thought that advocates immobilizing the arm and delaying surgery indefinitely, they would not have consented to immediate surgery and would have instead taken Maria home for treatment.
The parties agreed that, after Dr. Balles-tas informed the Marinos that immediate surgery was indicated, Mrs. Marino telephoned Dr. Friedman for advice concerning the proposed surgery; they also agreed that Dr. Friedman did not speak with Dr. Ballestas regarding Maria’s condition. Mrs. Marino testified that she conveyed to Dr. Friedman the information about Maria’s arm given to her by Dr. Ballestas and asked Dr. Friedman whether the proposed surgery was appropriate. Mrs. Marino also testified that Dr. Friedman told her that the operation might be appropriate in some instances but that he could not determine whether this was such a case because he had not examined Maria or reviewed her x-rays.
Appellants gave their written consent to the operation and Dr. Ballestas performed the surgery. During the course of the open reduction and exploration of the radial nerve, Dr. Ballestas inserted a metal surgical plate and two screws into Maria’s arm for the purpose of internal fixation. Because of Maria’s complaints of sensitivity, Dr. Friedman removed the plate and screws from her arm several months after the original operation. Maria has regained full function of her arm, but she has a residual scar that may require surgical revision.
At trial, both sides offered medical experts. Plaintiffs called Dr. Friedman, who testified that in Maria’s case there had been absolutely no need to explore the nerve. In his opinion, Maria’s arm would have recovered without the surgery performed by Dr. Ballestas, and, therefore, a competent surgeon would not have undertaken the operation. Instead, he testified, the proper treatment would have been to immobilize the arm in plastic splints, which would have permitted Maria to travel without risking further damage.
Dr. Ballestas called two experts: Dr. Walter Finnegan, an orthopedic surgeon from Allentown, Pennsylvania, and Dr. Peter Lichtenfeld, a neurologist from New York City. Dr. Finnegan, while testifying that he and his colleagues in Allentown would have performed the immediate open reduction and exploratory surgery performed by Dr. Ballestas, acknowledged that there are two schools of medical thought about the appropriate treatment in cases like Maria’s. He stated:
[T]here are at least two, for simplicity, two basic schools of thought, one which would say let the fracture heal and hope that the radial nerve returns ... and if not, go back later, months later, and explore the nerve. The other school, which I really feel is more conservative, but it would be viewed by some as more aggressive, is to open it or surgically explore it early.
During cross-examination, Dr. Finnegan testified that he would tell the parents of a patient in Maria’s condition that
there were two options and that the expected outcome with one [immobilization] would be perhaps 80, 90 percent chance of recovery, based upon long-term statistical studies and what we have in the literature, but that there would be a period of probably six months wherein we would be wondering, waiting to find out whether the radial nerve recovered and that there might be a need for later, surgical intervention in that instance ... that would be if I were to take an early nonoperative approach ... The other treatment alternative would be to surgically explore the fracture site and the radial nerve and in that instance, I would state that I personally would feel that we could then repair any damage which did occur, gross damage to the nerve, disruption, if you will, and even if we found the nerve to be intact, we would thereafter have peace of mind that recovery would occur ... But I do feel that both alternatives should be available, and the statistical chance of recovery offered.
Dr. Lichtenfeld testified that it was within accepted medical standards and practice to explore the radial nerve of an injury of the type sustained by Maria and that, in his opinion, this method would improve the chance of recovery. He also agreed, however, that immediate surgery is not the only form of treatment for the condition presented in Maria’s case. Dr. Lichtenfeld stated that there is a greater than fifty percent chance that an injured radial nerve will recover spontaneously. He further testified that a patient in Maria’s condition can be moved if the fracture is stabilized by a splint.
Dr. Ballestas, testifying on his own behalf, stated that there are two schools of medical thought concerning the appropriate treatment for Maria’s injury: one that advocates operating immediately, and another that advocates immobilizing the arm and operating later. Although Dr. Ballestas’ testimony is unclear on this point, the delayed surgery technique that he recognized would appear implicitly to include the possibility that spontaneous regeneration will occur without surgery. Dr. Ballestas testified without equivocation, however, that in Maria’s case immediate surgery was the preferred course of action.
II.
Plaintiffs instituted suit in the district court against Dr. Ballestas and Gnaden Huetten Memorial Hospital, alleging negligence and lack of informed consent. The negligence theory was based on the contention that Dr. Ballestas, in both his decision to operate on Maria and in his performance of the surgery, did not exercise the care and judgment of a reasonably prudent person engaged in his specialty. Plaintiffs’ theory of informed consent was also twofold: (1) that they were not adequately advised of alternative methods of treatment; and (2) that they were not informed that Dr. Ballestas would insert the metal surgical plate and did not consent to this procedure.
The informed consent theory of “alternative procedures” was pleaded by plaintiffs in their complaint and was included in their pre-trial memorandum. The district court charged the jury with respect to both negligence and lack of informed consent, and the jury answered special interrogatories, pursuant to Fed.R.Civ.P. 49(b), which addressed both theories of liability. The jury returned a verdict in favor of Dr. Ballestas, finding that plaintiffs had failed to prove negligence by Dr. Ballestas in his choice and performance of the operation and also that plaintiffs had failed to prove a lack of informed consent.
Following the jury’s verdict, plaintiffs moved pursuant to Fed.R.Civ.P. 50(b) for judgment n.o.v. or, in the alternative, for a new trial. In a memorandum opinion, the district court summarily upheld the jury verdict with respect to the negligence claims. The court found more problematic the verdict respecting the informed consent theory based on the existence of an alternative procedure, but declined to grant the motion on this ground for two reasons: first, the court suggested that plaintiffs had not really proceeded on the informed consent theory at trial, and second, the court found that the jury’s verdict on this issue was supported by the evidence.
On appeal, the Marinos contend that the district court erred in denying their motions for a judgment n.o.v. or for a new trial because there is no evidence to support the conclusion that they rendered informed consent to the operation. Further, the Marinos argue that the district court erred in holding that they had not proceeded upon the alternative procedure theory at trial. Dr. Ballestas rejoins that there was sufficient evidence to support the jury’s verdict that he had fulfilled his duty of disclosure to the Marinos.
III.
In examining the district court’s denial of appellants’ motions for judgment n.o.v. or, in the alternative, for a new trial, we are required to “view all the evidence and inferences reasonably drawn therefrom in the light most favorable to the party with the verdict.” Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1273 (3d Cir.1979). We may reverse the judgment of the district court only if “the record ‘is critically deficient of that minimum-quantum of evidence from which a jury might reasonably [decline to] afford relief.’ ” Dawson v. Chrysler Corp., 630 F.2d 950, 959 (3d Cir.1980) (quoting Denneny v. Siegel, 407 F.2d 433, 439 (3d Cir. 1969)), cert. denied, 450 U.S. 959, 101 S.Ct. 1418, 67 L.Ed.2d 383 (1981). Before we evaluate the evidence in light of this standard, we must review the legal elements of plaintiffs’ claim against which the sufficiency of evidence must be judged.
A.
Under Pennsylvania law, absent an emergency situation, the patient’s informed consent — or, if the patient is a minor, informed consent of the patient’s parent or guardian — is a prerequisite to surgery. Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663, 668-69 (1966); Cooper v. Roberts, 220 Pa.Super. 260, 265, 286 A.2d 647, 649 (1971); Dunham v. Wright, 423 F.2d 940, 943 (3d Cir.1970). Absent informed consent, an operation constitutes an assault on the patient by the physician who is liable for any resulting injuries. Such liability attaches regardless of whether the operation was negligently performed. Cooper, 220 Pa.Super. at 265, 286 A.2d at 649. The burden is on the plaintiff to prove that the operation was performed without the requisite consent. Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15, 16 (1940).
The Pennsylvania Supreme Court has defined “informed consent” as consent made with knowledge and understanding of the nature of the undertaking. Gray, 423 Pa. at 166, 223 A.2d at 674. A patient can give informed consent only when he or she fully understands the nature of the proposed operation and is apprised of all of its possible consequences. Id. This court, in Dunham, 423 F.2d at 944, relying on the decision in Gray, stated:
Although it is not clearly articulated, a careful analysis of the rationale of the applicable citations, including Gray v. Grunnagle, indicates that before a patient will be deemed to give an informed consent, it may be necessary that he know the alternative methods of treatment available to him and the inherent dangers and possibilities of success of such alternatives. The philosophy behind such theory of informed consent is that the patient has the right and responsibility to determine whether he wants to risk the suggested corrective surgery. If a patient’s decision is to be a knowing and intelligent one, he must understand in addition to the risks of the suggested surgery, the possible results of the failure to chance it. A complete understanding of the consequences of foregoing the operation would seem necessarily to include a consideration of the alternative treatment for the patient’s disease or condition.
One year later, in Cooper, 220 Pa.Super. at 267-68, 286 A.2d at 650-51, the Pennsylvania Superior Court explicitly recognized a patient’s right to be informed of all recognized alternative methods of treatment and stated that a physician fulfills his duty of disclosure only when “the physician [has] disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff’s would deem significant in making a decision to undergo the recommended treatment.” Id. at 267, 286 A.2d at 650.
B.
An evaluation of the evidence produced at trial leads us to conclude that the verdict in favor of Dr. Ballestas on the informed consent issue was not supported by any evidence and cannot stand. First, the record discloses uncontradicted evidence of the existence of an alternative procedure. Dr. Ballestas and the two medical experts who testified on his behalf acknowledged that an established school of medical thought advocates immobilization of the arm to guard against further nerve damage, allowing time for spontaneous regeneration, with recourse to surgery only when and if regeneration does not occur.
Second, viewing the evidence in the light most favorable to defendant, as we must, the record nonetheless shows that Dr. Ballestas failed to advise the Marinos of the existence of this alternative procedure, thereby breaching his duty of disclosure. According to Dr. Ballestas, he told the Ma-rinos that they were free to remove Maria from the hospital, but he qualified this statement with the warning that to do so would risk permanent paralysis of their daughter’s arm. Although a physician may, and indeed should, express his opinion regarding preferable methods of treatment, he may not neglect to set out in a fair manner the alternatives to the procedure he advocates. Under Pennsylvania law, the Marinos were entitled to the information that one school of medical thought favors immobilizing the arm and delaying surgery indefinitely in order to facilitate spontaneous regeneration of the damaged nerve. This is undoubtedly information that reasonable parents would consider material in deciding whether to permit immediate surgery on their child’s arm. Absent advice that this course of treatment represented an acceptable, though not preferable, alternative, Dr. Ballestas’ remarks did not convey to the Marinos the information they needed to make an informed choice.
In concluding that the evidence supported the jury’s finding that the Marinos gave informed consent to the operation, the district court ascribed much weight to the telephone consultation between Mrs. Mari-no and Dr. Friedman prior to the surgery. We do not doubt that there are situations in which information from another physician can adequately substitute for information not given by a patient’s surgeon. This would be true if the consulting physician examines the patient personally, or if he otherwise obtains the data necessary to enable him, before consent to the operation is given, to render a medical opinion on the case. In the instant case, Dr. Friedman could have given advice sufficient to sustain the verdict for Dr. Ballestas if Dr. Ballestas had spoken directly to Dr. Friedman or if Dr. Ballestas had conveyed to Mrs. Marino precise information regarding Maria’s condition that she, in turn, accurately relayed to the New Jersey physician. Neither of these scenarios occurred, however. Indeed, according to Mrs. Marino’s uncontradicted testimony, Dr. Friedman told her that he could not render an opinion as to the proper course of action based on her description of the injury. Under these circumstances, it cannot fairly be said that there is evidence sufficient to sustain the district court’s conclusion that the discussion between Mrs. Marino and Dr. Friedman (or any other evidence) rendered plaintiffs’ consent informed.
C.
Even though the evidence points ineluctably to the conclusion that plaintiffs did not give informed consent to the operation, we would be obliged to uphold the judgment of the district court if it properly rested on the alternative ground that plaintiffs had not proceeded on the lack of informed consent/alternative procedure theory at trial. We cannot agree, however, with the district court’s conclusion that this theory was not presented. Plaintiffs pleaded the alternative procedure theory in their complaint and included it in their pre-trial memorandum. Testimony regarding the existence of an alternative procedure and addressing whether Dr. Ballestas had adequately informed Maria’s parents of the alternative was presented at trial. Plaintiffs requested and received detailed jury instructions on the theory. Defendant was obviously aware that plaintiffs were proceeding on dual theories of negligence and lack of informed consent because defendant’s counsel addressed all issues in direct examination of the defense witnesses.
The district court, in its disposition of the post-trial motions, was apparently influenced by the fact that plaintiffs’ expert, Dr. Friedman, testified almost exclusively on the negligence issue and did not, in terms, advance the informed consent theory. Indeed, the focus of Dr. Friedman’s testimony was that Dr. Ballestas acted without due care in deciding to perform the operation at all; in Dr. Friedman’s view, immobilization and delay (as opposed to immediate surgery) was the only viable course of treatment. Dr. Friedman thus never testified explicitly that a reasonable doctor would have told the plaintiffs about an alternative to surgery. However, this opinion was implicit in Dr. Friedman’s testimony that a competent doctor would have reassured the Marinos and pursued the alternative course of action. Therefore, we reject the district court’s conclusion that plaintiffs did not pursue the informed consent theory at trial.
IV.
When presented with an appeal from the denial of motions for judgment n.o.v. or, in the alternative, a new trial pursuant to Fed.R.Civ.P. 50(d), an appellate court has discretion to order the district court to enter a judgment for the appellant, to order a new trial, or to refer the question of whether to grant a new trial to the district court. Neely v. Martin K. Eby Construction Co., 386 U.S. 317, 329, 87 S.Ct. 1072, 1080, 18 L.Ed.2d 75 (1967). In the case before us we have concluded that there was no evidence to support the jury’s verdict that the Marinos were informed when they consented to the operation on their daughter’s arm. The record is therefore deficient of that minimum quantum of evidence from which the jury could have declined to afford relief. Dawson, 630 F.2d at 959. However, our review of the record, including the comments of the district court, persuades us that confusion at trial resulted from plaintiffs’ attempt to try the case on two negligence theories and two informed consent theories simultaneously. This confusion was exacerbated by the testimony of plaintiffs’ expert witness, which focused on his opinion that the defendant doctor should not have operated at all, rather than on the opinion that Dr. Ballestas should have presented plaintiffs a choice.
Given these problems, and in view of the district court’s comments, we believe that the interests of justice require a new trial on the informed consent issue rather than the grant of a judgment n.o.v. for the plaintiffs. Accordingly, pursuant to our authority under Neely, we will vacate the jury verdict and remand to the district court for a new trial on the issue of informed consent. In all other respects, we affirm the judgment of the district court.
. Jurisdiction is founded on diversity of citizenship, 28 U.S.C. § 1332.
. It is clear from the record that Dr. Ballestas was not an employee of the hospital, and that the hospital did not hold him out as an employee. The doctor maintained a private practice separate and apart from the hospital and merely had staff privileges there. Because there is no evidence that would support respondeat superior liability, we affirm the decision of the district court rejecting the challenge to the jury verdict in favor of defendant Gnaden Huetten Memorial Hospital.
. The district court disposed of the latter informed consent claim, saying, "We view the insertion of the metal plate as being within the authorization to perform surgery, and not as a matter for which a specific consent is required.” Since plaintiff-appellants have failed to pursue this lack of informed consent theory on appeal, we conclude that they have conceded this issue.
. The interrogatories asked:
1. Have plaintiffs shown by a fair preponderance of the evidence that the consent given for the surgical procedure performed by Dr. Ballestas was not informed consent?
2. Have plaintiffs shown by a fair preponderance of the evidence that the operation performed by Dr. Ballestas was not in accordance with sound medical practice in a recognized school of medical opinion?
3. If you conclude the operation by Dr. Ballestas was a reasonable medical procedure, did Dr. Ballestas perform the surgery with a degree of skill, knowledge, and care that complied with the standard of care for a specialist in orthopedics?
a) In connection with the size and appearance of the scar?
b) In connection with the insertion of the metal plate?
. We affirm the district court’s disposal of the negligence claims because there is sufficient evidence to support the jury’s verdict that plaintiffs failed to prove Dr. Ballestas had acted negligently in his decision to operate and in his performance of the operation. Drs. Finnegan and Li-chtenfeld both testified that the choice of the surgery performed by Dr. Ballestas was within acceptable medical standards and that Dr. Ballestas had performed the surgery in an acceptable fashion. The jury was entitled to credit the testimony of these experts.
. The parties agree that Pennsylvania law is controlling.
. We cannot determine whether this theory was argued to the jury in summation because the closing arguments of counsel were not transcribed and may not have been reported.
. In view of Dr. Friedman’s testimony in plaintiffs’ case in chief, and of the evidence recounted in parts I and III.B. (including the testimony of Drs. Finnegan and Lichtenfeld and of Dr. Ballestas himself), we are at a loss to understand the dissent’s contention that plaintiffs did not meet their burden of proof. The dissent also suggests that Dr. Friedman's failure to focus upon the alternate procedure theory in his direct testimony means that plaintiffs did not pursue this theory. In light of the facts as recounted in part I, and for the reasons set forth in this part (III.C.), the dissent is incorrect. Finally, contrary to the dissent’s assertion, our review is not affected by matters of credibility; there was simply no evidence that Dr. Ballestas informed the plaintiffs about the alternative procedure.
. The district court, in its memorandum opinion denying plaintiffs’ motion for a judgment n.o.v. or for a new trial, stated:
Plaintiffs’ evidence did not develop that there are two clear cut alternative methods of treating an injury such as that sustained by Maria. Although the issue of informed consent was submitted to the jury, we believe plaintiffs are belatedly seeking to convert what is essentially a medical malpractice case into a lack of informed consent claim. The testimony concerning alternative viewpoints as to treatment, in fact, came from the defense witnesses, and plaintiffs’ expert opined that surgery was not an acceptable treatment under any circumstances. Dr. Ballestas acknowledged under cross-examination that some medical authorities would apply a cast to the broken arm, to permit an opportunity for the nerve damage and fracture to heal .themselves. If this method of treatment proved unsuccessful the surgery would be done later. Although Dr. Ballestas may not have specifically reviewed this possible course of action in detail, he did inform Maria’s parents that she could be taken home for treatment, with the reservation that delay might be harmful.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
AINSWORTH, Circuit Judge:
The Secretary of Labor brought this, suit under Section 16(c) of the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.) to recover overtime compensation claimed to be due under Section 7 of the Act to D. C. Mangrum, a former employee of Tyler Pipe and Foundry Company, defendant, for the period February 26, 1963 to September 12, 1964. Tyler Pipe operates a foundry at Swan, Texas, where it produces cast iron and fittings, approximately 70 per cent of which was shipped in its own trucks in interstate commerce as a private carrier.
It is agreed that the employee is within the Act’s general coverage, but defendant contends that Mangrum’s employment was exempt from the overtime provisions by virtue of Section 13(b) (1) of the Act which exempts employees for whom the Interstate Commerce has power to establish qualifications and maximum hours of service pursuant to Section 204 of the Motor Carrier Act (see 49 U.S.C. § 304). Mangrum worked in excess of forty hours each week, and defendant has refused to compensate him for overtime for the excess hours. The question for decision, therefore, is whether Mangrum’s employment is exempt from the overtime provisions of the Act by virtue of being subject to the motor carrier exemption which is limited to certain employees whose activities affect the safety of operations of vehicles in interstate commerce.
The district judge held that Mangrum was not within the exemption during the period February 26, 1963 through December 31, 1963, but was exempt during the period January 1, 1964 through September 12, 1964 and rendered judgment accordingly. Both parties have appealed from this judgment insofar as it adversely affects them.
Mangrum was employed in defendant’s garage, working six days a week, excluding Sundays, eight hours per day. The trial judge found that during the first ten months his work consisted primarily of service and repair work on fork lifts “and front end Loaders,” the industrial machines used in the manufacturing operations, and thereafter he was employed to do service and repair work on industrial machinery; that during the years 1963 and 1964, Man-grum, a Class C automotive mechanic, was with all of the other Class A, B and C mechanics employed in defendant’s garage, subject to being called upon at any time and during any day of the week as part of their regular duties and in the ordinary course of their work, to perform “line-up” work on diesel trucks owned by the defendant and used to transport its property in interstate commerce. The line-up work was done on each work day but was especially heavy on Saturdays. The court found that the shift foreman simply picked garage employees at random to do this work and Mangrum was called upon at any time, and as part of his regular duties, and in the ordinary course of his job to perform such work. However, the court held that he did no line-up work in 1963, but in 1964 he did line-up work on Saturdays in sixteen work weeks, the amount and frequency on these particular Saturdays not being stated in the record. Line-up work was performed by Man-grum in the following way: He received instructions from the shift foreman which particular tractor he was to hook up with a particular trailer at the loading dock. He then drove the tractor from the parking area to the loading dock and hooked it up to the proper loaded trailer unit which involved connection and inspection of the two air brake hoses, connection and inspection of the fifth wheel and connection and inspection of the light system, including brake lights. The court said that this work directly affected the safety of operations of motor vehicles in interstate commerce. After completing the line-up work Mangrum drove the tractor-trailer to the fuel pump and left it there for handling by others. This was the only work performed by Mangrum on trucks operated in interstate commerce. After the tractor-trailer was left at the fuel pump it was fueled and driven by others to the body shop where an inspection was made by the service crew to determine if the brakes, lights, tires, windshield wipers and mud skirts for the back wheels were in order and in good condition. If so, the tractor-trailer was driven to the line and parked to await the driver who took it out. The defendant’s garage was divided into three areas: the first section known as the fork truck shop was that in which Man-grum was regularly employed where industrial machinery only was serviced or repaired; the second section was the diesel truck garage where tractors and over-the-road motor equipment was serviced or repaired; the third section was the trailer shop where trailers were similarly cheeked and repaired and where the service crew (other than Mangrum) checked the hooked-up tractor-trailer prior to it being driven to the line to await the driver. Under these circumstances, the district judge held that the exemption in Section 13(b) (1) of the Act did not apply for the year 1963 but did apply in the year 1964.
Defendant’s principal authority is the decision in Morris v. McComb, 332 U.S. 422, 68 S.Ct. 131, 92 L.Ed. 44 (1947), whereas plaintiff’s reliance is on Pyramid Motor Freight Corporation v. Ispass, 330 U.S. 695, 67 S.Ct. 954, 91 L.Ed. 1184 (1947), decided by the Supreme Court several months prior to Morris. Defendant contends that under Morris v. McComb, Mangrum’s employment was exempt from the requirements of the Fair Labor Standards Act even though the total period of employment involved discloses only sixteen Saturdays when some line-up work was done by the employee. Defendant states that the holding in Morris is that “ * * * it is ‘the character of the activities rather than the proportion of either the employee’s time or of his activities that determines the actual need for the Commission’s power to establish reasonable requirements with respect to qualifications, maximum hours of service, safety of operation and equipment.’ ” Therefore, defendant contends that Mangrum was subject to being called at any time to do line-up work, both in the years 1963 and 1964, and should be classified as an exempt employee not subject to the overtime provisions of the Act. The facts in Morris, though having some analogy to those here, are not the same and the case is clearly distinguishable. The employees involved there were drivers and mechanics, all of whom were fully engaged full time and continuously in safety-affecting work, sharing indiscriminately in the interstate operations of the employer who operated a general cartage business as a motor common carrier in the metropolitan Detroit area and contiguous counties. On the average, in Morris, only about 4 per cent of the drivers’ and mechanics’ time was devoted to service in interstate commerce; however, this activity was not equally distributed to each driver. The Court held that the applicability of the Interstate Commerce Commission’s requirements as to specific drivers during specific weeks was not the issue but it was the fact that the Commission had power to establish qualifications and maximum hours of service, pursuant to Section 204 of the Motor Carrier Act, for the entire classification of the employees, drivers and mechanics that determined that these employees were exempt from Section 7 of the Fair Labor Standards Act pertaining to overtime compensation. The Court held that the employees were exempt from the Act in all work weeks, including those in which no interstate commerce work was performed because “ * * * apparently in the normal operation of the business, these strictly interstate commerce trips were distributed generally throughout the area and their performance was shared indiscriminately by the drivers and was mingled with the performance of other like driving services rendered by them otherwise than in interstate commerce. These trips were thus a natural, integral and apparently inseparable part of the common carrier service of the petitioner and of his drivers.”
That is not the case here. Mangrum’s regular duties as a mechanic for Tyler Pipe were carried on in service and repair only of industrial machinery such as fork lifts and front end loaders. He was not a motor vehicle mechanic and was never employed in the garage in repair and service of defendant’s tractors and trailers used in the delivery of its products in interstate commerce. He was sporadically and infrequently called on in the year 1964 on Saturdays of sixteen work weeks to perform line-up work which was preceded and followed by the work of other mechanics and employees as to both service and inspection. He was not regularly employed in safety-affecting work. Accordingly, the case is more nearly like Pyramid Motor Freight Corporation v. Ispass, supra, in which the Supreme Court held that under the facts of that case the mere handling of freight at a terminal by so-called loaders, before or after the loading or even the placing of articles of freight on a motor carrier truck itself, may form “so trivial, casual or occasional a part of an employee’s activities, or his activities may relate only to such articles or to such limited handling of them, that his activities will not come within the kind of ‘loading’ which is described by the Commission and which, in its opinion, affects safety of operation.” This is the de minimis rule. Under the circumstances, Mangrum’s service in line-up work being so trivial, casual, occasional and insubstantial, we hold that his employment both in 1963 and 1964 is subject to the overtime provisions of the Fair Labor Standards Act and not exempt. The exemption should be considered with due regard to the rule that such exemptions from the operation of humanitarian legislation, such as the Fair Labor Standards Act, are to be narrowly construed. A. H. Phillips, Inc. v. Walling, 324 U.S. 490, 65 S.Ct. 807, 89 L.Ed. 1095 (1945).
We had occasion to apply the holding in Pyramid Motor Freight, with full recognition of Morris, in our decision in Wirtz v. C & P Shoe Corporation, 5 Cir., 1964, 336 F.2d 21. In the latter case the employer’s warehousemen occasionally participated in driving or helping on the employer’s trucks. But this Court held that such activities were a negligible part of the warehousemen’s duties, were not of a safety-affecting character and concluded that they were not exempt since they constituted a trivial, casual and occasional part of the employees’ employment. The Court further held that “The primary jobs of these employees who sporadically helped on the trucks or acted as drivers did not include such work, and these infrequent activities on their part come within the de minimis rule set down by the Supreme Court in Pyramid Motor Freight Corporation v. Ispass, supra.” See also Opelika Royal Crown Bottling Company v. Goldberg, 5 Cir., 1962, 299 F.2d 37. Our holding is the same here, for we do not believe the circumstances justify application of the exemption as to either the years 1963 or 1964.
Affirmed in part; reversed in part.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
BRATTON, Circuit Judge.
Harry Rabinovitz, hereinafter called Harry, and Birdie Rabinovitz, hereafter called Birdie, were husband and wife. They resided in Leavenworth, Kansas, and they did not have any children. Harry died testate in 1922. By the terms of his will, he nominated Birdie as executrix; directed that his debts and funeral expense be paid; directed that $100 per month be paid to his sister, Sara Rosenberg, so long as she should live, or until the death of his wife; and gave the rest and residue of his estate to Birdie, for her life, with full power to use, sell, and dispose of the whole or any part thereof as she might deem proper. Subject to these provisions, it was further provided in the will that if there should be any remainder of the estate at the time of Birdie’s death it should go, twenty-five per cent to the testator’s sister, Sara Rosenberg; twenty-five per cent to his sister, Emma Richman; twenty-five per cent to his niece, Alice Rabinovitz; and twenty-five per cent to his sister-in-law, Salma Miller, with provision that if she should be dead at the time of the death of Birdie, then such portion should go to the children of her body living at the time of the death of Birdie. The will contained other provisions which do.not have any material bearing here. The will was admitted to probate in the probate court of Leavenworth County, and Birdie was appointed executrix. .She filed an inventory and appraisement •showing real and personal property of the ■estate. No claims were filed, the executrix ■did not file any reports or settlements, no ■orders were entered, and the proceeding is still pending. Birdie died testate in 1944. By her will, bequests -were made to her sister, Cora Feilchenfeld, her brother, Emanuel Ettlinger, and her nieces Joan Miller •and Marilyn Miller, daughters of Salma Miller who predeceased Birdie. The will ■was admitted to probate in the probate ■court of Leavenworth County, John Baum was appointed executor, and an inventory and appraisal was filed in the proceeding showing real and personal property in that county of the value of $37^000 and $56,972.-92, respectively. Ancillary proceedings were had in the probate court of Jackson County, Missouri, and Emanuel Ettlinger was appointed ancillary executor.
Sara Rosenberg, Emma Richman, and Alice R. Fradkin, nee Alice R. Rabinovitz, instituted this action in the United States Court for Kansas against Baum and Et-tlinger, executor and ancillary executor, respectively, of the estate of Birdie, Ettlinger and Cora Feilchenfeld, as legatees under the will of Birdie, and Joan Miller and Marilyn Miller as legatees under the wills of both Harry and Birdie. The purposes of the action were (1) to impress a trust upon certain real estate which had been conveyed to Birdie, and (2) for an accounting in respect of the assets of the estate of Harry. Defendants prevailed and plaintiffs appealed. For convenience reference will be made to the parties in the manner in which they appeared in the trial court.
Although they prevailed in the court below, the defendants assert that the court lacked jurisdiction. They argue that the probate court of Leavenworth County had exclusive original jurisdiction of the estate of Harry and that the United States Court was without jurisdiction of the subject matter of the suit. It is settled law in Kansas that under the Probate Code of 1939, Laws Kan. 1939, c. 180, the probate courts are vested with exclusive original jurisdiction of all matters incident and ancillary to the administration, management, control, settlement, and distribution of estates. Under the provisions of the code, the original jurisdiction of the probate courts-was extended so as to invest them with all necessary legal and equitable power to deal judicially with the administration of estates. Foss v. Wiles, 155 Kan. 262, 124 P.2d 438; Dixon v. Fluker, 155 Kan. 399, 125 P.2d 364; Swisher v. Bouse, 155 Kan. 797, 130 P.2d 565; Egnatic v. Wollard, 156 Kan. 843, 137 P.2d 188; Burns v. Drake, 157 Kan. 367, 139 P.2d 386; Bitzer v. Smith,. 158 Kan. 83, 145 P.2d 148.
A United States Court does not have jurisdiction to entertain a proceeding' purely of a probate character relating to-the administration of the- estate of a deceased person. Byers v. McAuley, 149 U.S. 608, 13 S.Ct. 906, 37 L.Ed. 867; Farrell v. O’Brien, 199 U.S. 89, 25 S.Ct. 727, 50 L.Ed. 101; Caesar v. Burgess, 10 Cir., 103 F.2d 503; Miami County National Bank v. Bancroft, 10 Cir., 121 F.2d 921; Harris v. Zion’s Savings Bank & Trust Co., 10 Cir., 127 F.2d 1012, affirmed 317 U.S. 447, 63 S. Ct. 354, 87 L.Ed. 390. But where, as here, diversity of citizenship is present and the requisite amount is in controversy, a United States Court has jurisdiction to determine questions relating to the interests of heirs, devisees, or legatees, which may be adjudicated without interfering with the control of the probate court in the general administration of the estate. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S.Ct. 10, 54 L.Ed. 80; Sutton v. English, 246 U.S. 199, 38 S.Ct. 254, 62 L.Ed. 664; Wells v. Helms, 10 Cir., 105 F.2d 402; Robinson v. Georgia Savings Bank & Trust Co., 5 Cir., 106 F.2d 944; Lathan v. Edwards, 5 Cir., 121 F.2d 183. And that jurisdiction can not be limited or curtailed by state legislation creating probate courts and vesting in them exclusive jurisdiction over the settlement of estates of decedents. Payne v. Hook, 7 Wall. 425, 19 L.Ed. 260; Miami County National Bank v. Bancroft, supra.
Coming to the merits, by warranty deeds executed and recorded in 1908, 1918, and 1921, respectively, certain lots in Leavenworth were conveyed to Birdie, and the legal title remained in her at the time of her death. Plaintiffs seek to impress a constructive trust upon the lots. They contend that the lots were acquired with money belonging to Harry; that Birdie and Harry agreed that she should hold the legal title in trust for him; and that the legal title is now held in trust for the benefit of the plaintiffs and the defendants Joan Miller and Marilyn Miller, legatees under the will of Harry. It is the adjudicated rule in Kansas that where real estate is purchased for a consideration paid by the husband and the conveyance is made to the wife, a presumption arises that it is intended as a gift from him to her. Olson v. Peterson, 88 Kan. 350, 128 P. 191; Clester v. Clester, 90 Kan. 638, 135 P. 996, L.R.A. 1915E, 648; Page v. Pierce, 92 Kan. 149, 139 P. 1173; Manhattan State Bank v. Haid, 97 Kan. 297, 155 P. 57. The further rule in that state is that where property is acquired for a consideration paid by one person and the title is taken in the name of another, a trust does not arise or result in favor of the former unless the two agree, without fraudulent intent, that the one to whom the title is conveyed shall hold the property or some interest in it for the benefit of the one furnishing the consideration. And the showing that the consideration was so furnished, the title so taken, and the agreement so entered into must be clear and convincing to the tribunal authorized to determine the controverted issue. Kull v. Pearl, 147 Kan. 329, 76 P.2d 790.
Recognizing these principles, plaintiffs endeavored to show that the lots were acquired with funds belonging to Harry and that Birdie and Harry agreed that she should hold the title in trust for him. Sara Rosenberg testified that Harry was a rich man, that he always had a lot of money, and that he contributed to the support of his relatives. Sara Rosenberg and Emma Richman testified that Birdie did not have any money or property at the time of her marriage and that she did not inherit any estate afterwards. Too, there was testimony that she did not follow any gainful employment during her married life. Sara Rosenberg, Emma Richman, Alice Fradkin, and Abe Rabinovitz, a nephew of Sara Rosenberg and Emma Richman and a cousin of Alice Fradkin, testified that they heard Harry state to his father that he had purchased the lots and had caused them to be conveyed to Birdie, and that Birdie thereupon stated that she held the title for him and would convey them to him at any time he desired.- The court did not make any specific finding as to the source of the money with which the real estate was purchased, but the court expressly found that Birdie did not agree with her husband that she would hold the title in her name in trust for his use and benefit and did not agree to convey the property to him. In short, the court declined to give decisive credence to the testimony offered relating to the source of the money with which the property was acquired and as to the agreement between Harry and Birdie that she held title in trust for him. Plaintiffs argue that the testimony was not contradicted and that the court should have accepted and adopted it. Where unimpeached witnesses testify distinctly and positively to a fact and are not contradicted, their testimony should under ordinary circumstances be credited and have the effect of overcoming presumptions. But that rule is subject to qualifications. There may be such inherent unreasonableness or improbability in the statements made by the witnesses as to deprive them of credit, however positively made. Though unimpeached, the witnesses may manifest such an interest in the question as to dilute their credibility. Their attitude may completely discredit the testimony. Physical facts may dispute it. And other circumstances may render it unworthy of belief. In such case the court or jury is not required blindly to adopt the 'testimony. Instead, the court or jury may in the exercise of sound judgment decline to give it decisive credence, though it is not contradicted by direct adverse testimony. Quock Ting v. United States, 140 U.S. 417, 11 S.Ct. 733, 851, 35 L.Ed. 501; Lowenstein v. I. N. Platt & Co., 2 Cir., 58 F.2d 173; United States v. Washington Dehydrated Food Co., 8 Cir., 89 F.2d 606; Goodyear Tire & Rubber Co. v. Federal Trade Commission, 6 Cir., 101 F.2d 620, certiorari denied, 308 U.S. 557, 60 S.Ct. 74, 84 L.Ed. 468; Emanuel v. Kansas City Title & Trust Co., 8 Cir., 127 F.2d 175. Viewing the testimony of the witnesses in the light of that rule and taking into consideration all of the facts and circumstances shown in the case, particularly that the lots were not included in the verified inventory and appraisal which Birdie filed, that from the time of the filing of the inventory until after the death of Birdie- — more than twenty-two years — plaintiffs did not raise any question concerning the accuracy of the inventory and failed until after the death of Birdie to assert or indicate in any other manner a belief or understanding that she merely held the title in trust, i't cannot be said that the court erred in failing to find that the lots were acquired for a consideration furnished by Harry and that Birdie agreed with Harry to hold the title in trust for him.
Plaintiffs also seek to impress a trust upon certain lots in Kansas City, Missouri. It is their contention that Birdie acquired these lots with funds belonging to the estate of Harry, and that they are held in trust for the benefit of plaintiffs and the defendants Joan Miller and Marilyn Miller, legatees under Harry’s will. In 1930, Birdie purchased a note in the sum of $5,000, secured by a deed of trust on part of the lots. In 1936, the deed of trust was foreclosed and she became the purchaser at the trustee’s sale. In 1930 or 1931, Birdie purchased a note in the sum of $16,000, secured by a deed of trust on other lots. . In 1933, the deed of trust was foreclosed and she purchased the lots as the sheriff’s sale. In 1936, Birdie purchased a third note in •the sum of $15,000, secured by a deed of trust on still other lots; and in 1939, the lots were conveyed to her in satisfaction of the debt. These several properties have stood in the name of Birdie ever since they were acquired in the manner outlined. The court found that Birdie acquired the lots with her own funds and not with funds belonging to the estate of Harry. It is to be noted that the three notes were acquired eight years, eight or nine years, and fourteen years, respectively, after the death of Harry. The face amount of each note was shown, but there was no showing in respect to the amount paid for them, and there was no direct evidence as to the source of the money or other consideration with which they were purchased. The evidence relating to the matter was indirect, meager, and sketchy. The evidence and the inferences fairly to be drawn from it presented an issue of fact as to whether the funds or other consideration paid for the notes belonged to the estate of Harry or to Birdie individually. That issue was for the trial court. The court found it against the plaintiffs and the finding is not dearly erroneous. Accordingly, it must stand on appeal. Patton v. Lewis, 10 Cir., 146 F.2d 544; Gerson v. Anderson-Prichard Production Corp., 10 Cir., 149 F.2d 444; Flores v. Bruesselbach, 10 Cir., 149 F.2d 616.
The court found that at the time of the death of Harry, the total value of his estate was $43,276.13; and that under the power and authority granted by the terms of the will, Birdie sold and disposed of all of the assets of the estate listed and described in the inventory for $52,500, in cash. Those facts were stipulated and the findings are not challenged. The time of the sale or sales is not shown. The court further found that Birdie expended $28,445 in payment of debts which Harry owed at the time of his death, and that she expended the further sum of $974.75 for funeral expenses, aggregating $29,419.75. The court further found that Birdie made the monthly payments of $100 to Sara Rosenberg, as directed in the will, beginning in 1922 and ending in 1944, totaling $25,500. That finding is not attacked. The court further found that Birdie expended for her support, maintenance, comfort and travel the sum of $100 per month from the date of the death of Plarry until his estate was consumed. Based upon those findings, the court further found that the entire estate of Harry was consumed and used up prior to Birdie’s death, and that at her death no assets of any kind remained in the estate for distribution to the remaindermen under his will.
Plaintiffs challenge the allowance of credit for payment of some of the debts of Harry on the ground that there was no sufficient proof affirmatively showing that the payments were actually made. It would not serve any useful purpose to detail the evidence relating to each separate item. It is enough to say that there was direct evidence of some of the payments and circumstantial evidence of the others. A careful examination of the record is convincing that the finding of the court in respect of the payments was not clearly erroneous. Therefore it is not to be overturned on appeal. Patton v. Lewis, supra; Gerson v. Anderson-Prichard Production Corp., supra; Flores v. Bruesselbach, supra.
The allowance of credit for all of the amounts paid by Birdie in the discharge of obligations of the estate of Harry and in settlement of the funeral expenses is attacked on the further ground that claims were not filed in the probate proceeding, and the probate court did not allow the claims or ratify their payment. Plaintiffs say that an executrix cannot claim credit for payment of alleged claims against the estate which have not been presented to, allowed by, or ratified by the probate court having jurisdiction of the estate. Section 22-709, General Statutes of Kansas 1935, provides that no probate court shall allow any demand against an estate unless the claimant makes oath in open court or files with the claim an affidavit stating that, to the best of his knowledge and belief, credit has been given for all payments and offsets, and that the balance claimed is justly due; and section 22-711 provides that an executor or administrator may pay in its regular order any duly verified demand against the estate not in excess of $50. Payment of a claim of more than $50 without allowance is contrary to law and made at the hazard of the executor or administrator. Wright v. Stage, 86 Kan. 475, 121 P. 491; In re Kappelman’s Estate, 101 Kan. 654, 168 P. 876. But it has been held that where the assets are sufficient to pay all claims in full, the probate court may subsequently ratify the action of the executor or administrator in making payment of a just debt without approval and give him credit for the amount. In re Kappelman’s Estate, supra. It is to be remembered that this is an action in equity, and it can be maintained only on equitable grounds. Young v. Scott, 59 Kan. 621, 54 P. 670. Having found that the funds were expended in payment of just demands against the estate, to disallow credit for them now would in effect exact double payment. The technical irregular payment of the demands without their allowance by the probate court d:d not give rise to any present substantial injury to the remaindermen which a court of equity is required to redress by disallowing credit for the amount.
Plaintiffs urge in effect that all or some of the assets reflected in the inventory and appraisal filed in the probate proceeding affecting the estate of Birdie are in fact assets of the estate of Harry. According to the inventory and appraisal, Birdie left an estate in excess of $100,000. Plaintiffs ask pointedly where she could have accumulated an estate of that size. The lots in Leavenworth deeded to her long prior to the death of Harry represent approximately $37,000 of the amount. The source of the balance of the estate is not clear. It may well be that Henry’s life was insured in a substantial amount with Birdie as the beneficiary. The record is completely silent in that respect. And it may be that Birdie accumulated the estate by her own foresight and judgment. Birdie sold for $52,500 the assets listed in the inventory and appraisal filed in the probate proceedings of the estate of Harry, but the increment to the estate by way of earnings or otherwise is not shown persuasively. The only things shown with certainty are that Birdie received $52,500 for the original assets, that she paid out $29,419.75 in settlement of Harry’s debts and funeral expenses, that she paid out $25,500 to Sara Rosenberg, the two aggregating $54,919.75, and that her living expenses were about $100 per month. It thus appears that the case is freighted with elements not established with mathematical exactness. But in a case of this kind, involving the conduct of Birdie extending over a period of twenty-two years, where records are not only meager but almost nonexistent, a reasonable latitude must be allowed the trial court for well founded inference, deduction, and conclusion. A court of equity in such circumstances cannot be restricted to rigid and inflexible certainties. It must employ and be guided to some extent by reasonable inferences and approximations. On the whole, we are unable to say that the finding of the court that at the death of Birdie no assets remained in the estate of Harry for distribution to the remaindermen under his will was clearly wrong. And therefore it will not be disturbed here. Patton v. Lewis, supra; Gerson v. Anderspn-Prichard Production Corp., supra; Flores v. Bruesselbach, supra.
Plaintiffs contend that an executrix occupies a fiduciary relation of the highest order; that she is under the duty to keep and render clear and accurate accounts ; that the burden is on her to exhibit a clear and accurate account, especiálly where she has commingled funds of the estate with his personal funds; that Birdie failed to keep clear and accurate accounts as executrix; that she commingled funds of the estate with her own funds; that the burden rested on the defendants to exhibit clear and accurate accounts; and that they failed to discharge the burden. As previously stated, Birdie did not file any reports in the probate court, and it is fairly apparent from the record that she failed to keep separate accounts as executrix but- commingled the funds of the estate with her personal funds. It is held in Kansas that an executor or administrator occupies a fiduciary relation of the very highest order in respect of the funds belonging to the estate; that it is his duty to keep the funds separate from his own funds; that when the report of account of an executor or administrator is challenged, or an action is brought against him by an administrator with the will annexed, an administrator de bonis non, or an heir or legatee, the burden rests upon him to exhibit a clear and accurate account; and that in such an action or proceeding, any credits, the accuracy of which is not sufficiently established by him, will be rejected. Vincent v. Werner, 140 Kan. 599, 38 P.2d 687; In re Park’s Estate, 151 Kan. 447, 99 P.2d 849. Where he fails to pay out funds in his hands belonging to the estate when ordered, he- may be charged with interest from the time of his neglect to obey the order of the court. Wollard v. Peterson, 145 Kan. 631, 66 P.2d 375. And where he commingles funds belonging to the estate with his own personal funds, sells to the estate bonds belonging to himself individually, at a profit, and fails to keep clear and accurate accounts, he may be surcharged with compound interest on the trust funds which he commingled with his own. Vincent v. Werner, supra. But Birdie did not fail to obey any order of the court, and there was no indication that she sold personally owned property to the estate at a profit or committed any other wrong of that kind.
Birdie was more than executrix of the will of Harry. Under the terms of the will, she had a life estate with power o'f disposal. As life tenant with power of disposal, she could convey the property belonging to the estate. Ernst v. Foster, 58 Kan. 438, 49 P. 527; Greenwalt v. Keller, 75 Kan. 578, 90 P. 233; Pearson v. Orcutt, 107 Kan. 305, 191 P. 286. It was a qualified power of disposition, .in that she could not make a gift of it or dispose of it by will. Greenwalt v. Keller, supra. But otherwise she- could control and dispose of it in the usual and ordinary manner as though she owned it in fee. Otis v. Otis, 104 Kan. 88, 177 P. 520. She was authorized to pay Harry’s debts and funeral expenses, make the monthly payments to Sara Rosenberg, support and maintain herself according to her own pleasure, and use the balance in any manner that she saw fit, except that she could not dispose of it by gift inter vivos or by will. It was only in the event that she failed to exercise her right of disposal, or exercised the right and acquired other property which was held as part of the estate, that any property passed to the remainder-men at her death. Postlethwaite v. Edson, 98 Kan. 444, 155 P. 802; Scott v. Gillespie, 103 Kan. 745, 176 P. 132, certiorari denied 249 U.S. 606, 39 S.Ct. 289, 63 L.Ed. 799; Otis v. Otis, supra. And in a case of this kind for an accounting, brought by the re- ■ maindermen under the will against the personal representatives of the estate of the deceased executrix, who was also life tenant of the estate with power of disposition, the burden rested upon the plaintiffs to show that the property belonging to the estate had not been consumed or exhausted at the time of the death of the life tenant. They were required to show that assets belonging to the estate existed at the death of the life tenant and thereupon passed to the remaindermen. Seward v. Davis, 198 N.Y. 415, 91 N.E. 1107; In re Welsh’s Estate, 239 Pa. 616, 86 A. 1091; Cf. Swarthout v. Ranier, 143 N.Y. 499, 38 N.E. 726. Plaintiffs failed to discharge that burden and therefore were not entitled to recover on accounting.
The remaining contention which merits a word is that a judgment, decision, or determination by a judge or chancellor prior to a hearing of all the evidence amounts to a deprivation of property without due process. The argument is that the court prejudged at least one issue in the case. Certain comments or observations of the court and certain questions propounded to witnesses are emphasized in support of the point. The presiding judge made pertinent comments or observations from time to time and also propounded relevant questions to witnesses, but there is not the slightest basis for the contention that any justiciable issue was prejudged or that the trial was conducted in an unfair manner. On the contrary, the trial judge of long experience presided with becoming impartiality and fairness.
The judgment is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
WOODBURY, Circuit Judge.
These are cross-appeals from a final decision of the Supreme Court of Puerto Rico in proceedings on the final account of Mario Mercado Riera as testamentary executor of his deceased father’s estate. It is the accounting proceedings to which we referred incidentally as “raging in the insular courts” in our opinion on anothe'r phase of this bitter and long drawn out controversy between three of the decedent’s four children, heirs and equal residuary legatees. Mercado Riera v. Mercado Riera, 1 Cir., 152 F. 2d 86, 91.
The final account here in issue was submitted by the executor, now the ex-executor, in March, 1940, subject to supplementary accounts, and thereupon his brother and one of his sisters (the other sister has remained neutral throughout this sordid dispute) filed 19 objections thereto in the insular district court of Ponce. That court, after hearing testimony for 31 days and considering briefs totaling 700 typewritten pages, filed an opinion of 30 typewritten pages in accordance with which it entered a “final order or decree” modifying the executor’s account in 11 particulars, and as so modified, approving it.
Thereupon both the executor and the opposing heirs appealed to the Supreme Court of Puerto Rico — the former attributing 20 errors to the insular district court and the latter 13- — and submitted to that court a record consisting of 2,838 pages of testimony, 8S5 pages of documentary evidence, and briefs totaling 881 pages. The Supreme Court of Puerto Rico, remarking that “it will be seen that it has been no easy task to extract from that mountain of papers the very simple questions involved in this long and seemingly interminable dispute”, considered every one of the errors attributed by the parties to the district court in an opinion of .66 typewritten pages and an opinion on re-hearing of 15 typewritten pages. As a result that court entered a judgment modifying the “decision or final order” of the district court in 9 particulars, and as so modified, affirming it “without special imposition of costs.”
The ex-executor then appealed to this court under 28 U.S.C.A. § 225(a), Fourth, and the opposing heirs as appellees filed a motion under our Rule 39(b) to dismiss or in the alternative to affirm. Subsequently the opposing heirs also appealed, but the executor as appellee therein has never filed or asked to file á motion to dismiss or affirm similar to the one filed by the opposing heirs as appellees in the other appeal. However, this does not preclude us from dealing with both appeals at this stage since under our rule this court may “upon its own motion, dismiss the appeal or affirm the judgment appealed from where the law and justice of the case so require.” In our opinion the law permits and justice requires that the judgment of the Supreme Court of Puerto Rico should be summarily affirmed on both appeals.
Both parties as appellants, now apparently for the first time, assert the existence of a wide variety of questions of federal law. We have carefully considered their assertions and find them wholly unwarranted. Indeed we find them so unwarranted that it would serve no useful purpose even to catalogue them, far less to discuss them.
All that is presented by these appeals are pure questions of local law, and only two of them are of consequence. They are with respect to the executor’s compensation and with respect to the guardianship of a minor, and they are the two questions which the Supreme Court of Puerto Rico granted rehearing to consider more fully. Therefore both of these questions have received particularly careful and full consideration by the court appealed from. Not only can we discern no “clear or manifest” error, or anything “inescapably wrong” (De Castro v. Board of Commissioners, 322 U.S. 451, 458, 64 S.Ct. 1121, 88 L.Ed. 1384, and cases cited) in the decision of either of these questions of purely local concern, or of any of the multitude of other similar questions presented, but we cannot even discern any error at all in their decision. Indeed, an inspection of the record and a study of the painstaking opinion of the Supreme Court of Puerto Rico, in which all questions presented were carefully, even elaborately, discussed, leaves us with the firm conviction that a hearing on these appeals could not possibly disclose the existence of any error of sufficient magnitude to warrant reversal. Under these circumstances it seems to us that the law permits summary affirmance under our Rule 39(b) since a hearing on the appeals would clearly be futile (Mario Mercado E Hijos v. Commins, 322 U.S. 465, 466, 64 S.Ct. 1118, 88 L.Ed. 1396) and that justice requires summary affirmance in order to prevent further useless expense and delay in this already overly long and undoubtedly very expensive litigation. Appropriate orders will be entered in both appeals.
On this previous appeal we affirmed judgments of the Supreme Court of Puerto Rico ordering the executor to distribute .the estate in his hands according to the terms of a certain compromise contract executed by the four heirs and other interested parties on September 9,1938.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
RANDALL, Circuit Judge:
The decisive issue presented by this appeal is the propriety of the defendant’s removal of this action to federal court from the Texas state court in which it was brought. Upon its removal, the federal district court denied the plaintiff’s motion to remand, and granted the defendant’s motion to dismiss. The court’s dismissal was premised on its finding that the plaintiff’s state law causes of action, which consisted of alleged violations of the Texas Deceptive Trade Practices-Consumer Protection Act, negligence, and fraud, were preempted by the Employment Retirement Income Security Act of 1974 (“ERISA”). Thus, the district court found that because the state court did not have original jurisdiction over the matter, the federal court did not have derivative jurisdiction under the removal statute. See, e.g., Lambert Run Coal Co. v. B. & O. R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). Because we conclude that this action does not arise under federal law, the state court did have jurisdiction over the case and the removal and resulting dismissal were improper; thus, we remand to the district court with directions to remand to the state court in which the action originated.
I. FACTS AND PROCEDURAL BACKGROUND.
The defendant in this case, South Central United Food & Commercial Workers Unions and Employers Health and Welfare Trust (the “Plan”), is a jointly trusteed employee health and welfare benefit plan, maintained in accordance with the Labor Management Relations Act (the “Taft-Hartley Act”), 29 U.S.C. § 141 et seq. (1976 & Supp. V 1981), and subject to ERISA’s regulatory scheme, 29 U.S.C. § 1001 et seq. (1976 & Supp. V 1981). The plaintiff, Kathleen Powers, is a participant in the Plan, and her son is a beneficiary of the Plan. In 1981, Powers sought to have her son hospitalized at the Deer Park General Hospital. Because Powers was unsure whether the Plan would cover expenses incurred at Deer Park, a hospital employee telephoned the Plan. The Plan employee with whom the Deer Park employee spoke represented that the Plan would provide coverage. Powers hospitalized her son at Deer Park, where his expenses aggregated $10,534.60. Upon receiving bills for this amount, the Plan denied coverage and refused to pay. It is undisputed that the Plan does not provide coverage for the expenses at issue, because Deer Park does not fall within the Plan’s definition of “hospital.”
Powers brought suit in state court, alleging that the Plan’s misrepresentation of coverage constituted negligence and fraud, and violated the Texas Deceptive Trade Practices-Consumer Protection Act (“DTPA”), Tex.Bus. & Com.Code Ann. § 17.41 et seq. (Vernon 1982 Supp.). The Plan petitioned for removal to federal court under 28 U.S.C. § 1441 (1976), asserting that Powers’ claim was preempted by ERI-SA and by the Taft-Hartley Act; thus, the action “arose under” federal law. Powers filed a motion to remand the case to state court, alleging that no federal question was presented by her complaint.
The district court concluded that Powers’ complaint stated a claim under ERISA, that her state claim was preempted by ERISA, and that, because the claim was one falling within the exclusive jurisdiction of the federal courts and could not have been brought originally in state court, the federal court did not have derivative removal jurisdiction.
The court’s finding was based on its determination that the Plan employee who made the misrepresentation concerning coverage was a Plan fiduciary as defined in 29 U.S.C. § 1002:
[One who] exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets.
Section 1104(a) provides that a plan fiduciary must discharge his or her duties
solely in the interest of the participants and beneficiaries ... with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims....
Because section 1132(a)(3) authorizes civil actions by plan participants or beneficiaries to enforce any of ERISA’s provisions, the district court reasoned, Powers’ suit stated a violation of the standard of care provided by section 1104(a); thus her claim stated a federal question. The enforcement provisions of ERISA provide that the state and federal courts shall have concurrent jurisdiction over actions:
[T]o recover benefits due to him under the terms of his plan, or to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan....
29 U.S.C. § 1132(a)(1)(B). The federal courts have exclusive jurisdiction over all other civil actions. 29 U.S.C. § 1132(e)(1). Powers’ claim does not fall within section 1132(a)(1)(B), because it is undisputed that the Plan does not cover the expenses in controversy. Thus, the district court concluded that the case is one within the exclusive jurisdiction of the federal courts under section 1132(e)(1). Our disposition of this appeal precludes our reaching the merits of the case or the district court’s determinations thereon.
II. REMOVAL.
The basic removal statute, 28 U.S.C. § 1441, provides:
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
Moreover, section 1446 provides:
(b) The petition for removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, ...
28 U.S.C. § 1446(b) (1976 & Supp. V 1981) (emphasis added). In construing the removal statutes, the Supreme Court has mandated a “strict construction” approach, in recognition of the congressional intent to restrict the jurisdiction of federal courts on removal. See American Fire & Casualty Co. v. Finn, 341 U.S. 6, 10, 71 S.Ct. 534, 538, 95 L.Ed. 702 (1951) (“The Congress, in [§ 1441], carried out its purpose to abridge the right of removal”); Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09, 61 S.Ct. 868, 872, 85 L.Ed. 1214 (1941) (referring to precursor to § 1441); see also La Chemise Lacoste v. Alligator Co., 506 F.2d 339, 344 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S.Ct. 1666, 44 L.Ed.2d 94 (1975).
The “original jurisdiction” to which section 1441 refers can rest with the federal courts because of diversity of citizenship between the parties, see 28 U.S.C. § 1332 (1976), because the claim “arises under” federal law, see 28 U.S.C. § 1331 (1976 & Supp. Y 1981), or by virtue of some other explicit grant of jurisdiction, see, e.g., 28 U.S.C. § 1337 (discussed infra). In the instant case there is no diversity of citizenship; thus, for removal to have been proper under section 1441, our inquiry must focus on whether Powers’ complaint stated a claim “arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331.
III. DISCUSSION.
We begin by noting that the “arising under” component of federal subject matter jurisdiction has been exhaustively analyzed by courts and commentators alike. The Supreme Court has recently noted that “when considered in light of § 1441’s removal jurisdiction, the phrase ‘arising under’ masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” Franchise Tax Board of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 2846, 77 L.Ed.2d 420 (1983). While the precise boundaries to which federal jurisdiction extends are not matters upon which all agree, certain principles are firmly established, and none more so than the “well-pleaded complaint” rule. As stated by the Supreme Court in Taylor v. Anderson, 234 U.S. 74, 75-76, 34 S.Ct. 724, 724, 58 L.Ed. 1218 (1914), that doctrine provides: See also Franchise Tax Board, supra; Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The well-pleaded complaint rule dictates that “a defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law.” Franchise Tax Board, 103 S.Ct. at 2847 (emphasis in original). It is insufficient for jurisdictional purposes that the plaintiff asserts that federal law deprives the defendant of a possible defense, see Taylor v. Anderson, supra, and Mottley, supra, or that the defendant’s anticipated defense would not serve to defeat the plaintiff’s claim, see Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894). Likewise, neither the defendant’s answer nor its petition for removal may serve as the basis for federal jurisdiction to the extent that each may assert that the plaintiff’s claim “arises under” federal law. See Franchise Tax Board, supra.
[Wjhether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute ... must be determined from what necessarily appears in the plaintiff’s statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation or avoidance of defenses which it is thought the defendant may interpose.
Further, and more pertinent here, an asserted or anticipated defense predicated on federal preemption of state law is, in jurisdictional terms, a defense like any other, and will not serve to invoke federal jurisdiction. See Franchise Tax Board, supra (ERISA); Pan American Petroleum Corp. v. Superior Court, supra (Natural Gas Act); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981) (Home Owner’s Loan Act); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (National Bank Act); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972) (antitrust).
Franchise Tax Board is particularly applicable to the case at bar. There, a state agency (the “Board”) sought to collect certain delinquent state taxes by levying on money held by a benefit plan for its members. The Board filed suit in state court, asserting its levy authority by virtue of a state statute empowering the Board to enforce the state’s tax law, and seeking a declaratory judgment that ERISA did not preempt the Board’s power to levy. The plan removed the action to federal court, contending that ERISA preempted the Board’s statutory levy power as against an ERISA-regulated plan. The Supreme Court found that the federal courts lacked original subject matter jurisdiction, and remanded the case for remand to the state court.
The Court’s analysis of the propriety of removal in Franchise Tax Board rested fundamentally on the “powerful doctrine” of the well-pleaded complaint rule as it has developed from Taylor, Mottley, and Gully. See Franchise Tax Board, 103 S.Ct. at 2846-48. With regard to the Board’s first cause of action, to enforce its levy, the Court found that:
[A] straightforward application of the well-pleaded complaint rule precludes original federal court jurisdiction. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law.... The well-pleaded complaint rule was framed to deal with precisely such a situation.... [A] case may not be removed to federal court on the basis of a federal defense, including the defense of preemption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.
Id. at 2848 (emphasis added).
Similarly, in Pan American Petroleum Corp. v. Superior Court, supra, the Court considered the merits of an attack on the jurisdiction of a state court. The defendants asserted, in a contract price dispute, that the Natural Gas Act, 15 U.S.C. § 717 et seq. (1976), superseded by the Emergency Natural Gas Act of 1977,15 U.S.C. § 717 et seq. (Supp. V 1981), preempted state law on the issue of wholesale natural gas prices. The Supreme Court had, in an earlier decision, confirmed the preemptive power of the Natural Gas Act. See Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035 (1954). Nonetheless, in Pan American Petroleum both the Delaware and United States Supreme Courts found that the federal courts lacked original jurisdiction, since the Natural Gas Act arose only as a defense to the plaintiff's state law contract claim:
[Questions of exclusive federal jurisdiction and ouster of jurisdiction of state courts are, under existing jurisdictional legislation, not determined by ultimate substantive issues of federal law. The answers depend on the particular claims a suitor makes in a state court — on how he casts his action. Since “the party who brings a suit is master to decide what law he will rely upon,” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25 [33 S.Ct. 410, 411, 57 L.Ed. 716] [1913], the complaints in the Delaware Superior Court determine the nature of the suits before it.
366 U.S. at 662, 81 S.Ct. at 1307. The settled preemptive effect of the Natural Gas Act, the Court found, did not alter the jurisdictional structure at issue:
“Exclusive jurisdiction” is given the federal courts but it is “exclusive” only for suits that may be brought in the federal courts. Exclusiveness is a consequence of having jurisdiction, not the generator of
jurisdiction because of which state courts are excluded.
Id. at 664, 81 S.Ct. at 1308.
We think that the analysis employed in Franchise Tax Board and Pan American Petroleum, in light of Mottley, Gully, and their progeny, is clearly dispositive in the instant case. Its application is a simple exercise. Powers alleged no federal cause of action, raised no federal issue, and relied on no federal statute. Rather, she seeks relief based on the Texas DTPA, negligence, and fraud. ERISA’s preemptive effect or the lack thereof arises solely on the basis of the Plan’s pleadings and petition for removal. As an initial proposition, therefore, the “law that creates the cause of action” is state law, and original federal jurisdiction is lacking unless Powers’ claim falls victim to an exception to the well-pleaded complaint rule.
An independent and established corollary of the well-pleaded complaint doctrine provides that a plaintiff may not defeat removal by fraudulent means or by “artfully” failing to plead essential federal issues in the complaint. See Franchise Tax Board, 103 S.Ct. at 2853; Avco Corp. v. Aero Lodge No. 7S5, International Ass’n of Machinists, 376 F.2d 337, 339-40 (6th Cir. 1967), aff’d, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968), Fraudulent or “artful” pleading frequently arises in the context of unnecessary joinder of non-diverse parties in an attempt to defeat removal based on diversity jurisdiction. See, e.g., Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 97, 42 S.Ct. 35, 37, 66 L.Ed. 144 (1921); Wecker v. National Enameling & Stapling Co., 204 U.S. 176, 27 S.Ct. 184, 51 L.Ed. 430 (1907); Covington v. Indemnity Insurance Co. of North America, 251 F.2d 930 (5th Cir.), cert. denied, 357 U.S. 921, 78 S.Ct. 1362, 2 L.Ed.2d 1365 (1958). We note the inapplicability of these eases here.
Not all cases of “artful” pleading involve diversity jurisdiction, however. In Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981), the Supreme Court considered the propriety of the district court’s denial of the plaintiff’s motion to remand an action removed on the basis of federal question jurisdiction. In Moitie, the plaintiff originally brought suit in federal court, alleging violations of the federal antitrust laws. When the suit was dismissed for failure to state a claim, the plaintiff refiled in state court, alleging antitrust violations based on the same transactions and theories set forth in the original complaint, but couched solely in terms of state law. The Supreme Court sanctioned the district court’s refusal to remand the case to state court upon its removal to federal court, holding that the plaintiff’s “artful pleading” was merely a device employed to avoid explicitly raising “essentially federal law claims.” 452 U.S. at 397 n. 2, 101 S.Ct. at 2427 n. 2.
Clearly, Moitie presented a problem different from the one at hand. Powers has not evidenced a desire to proceed under federal law; rather, she has consistently and vociferously attempted to avail herself of the state forum and relief to which she asserts entitlement. That her claims may be “essentially federal” is a proposition resting on the assumption that ERISA totally preempts her state law claims. As we have discussed, federal preemption of state law is a defense to Powers’ claim and, while its assertion may well interject a federal question into this case, not every federal question presented in a case means that the case “arises under” federal law for purposes of original jurisdiction under section 1331. See Franchise Tax Board, 103 S.Ct. at 2847; Pan American Petroleum, 366 U.S. at 664, 81 S.Ct. at 1308; Mottley, 211 U.S. at 152, 29 S.Ct. at 43. Only when the plaintiff’s complaint clearly establishes that the claim is one necessarily arising under federal law will the federal issue suffice to support removal to federal court. See, e.g., Federated Department Stores, Inc. v. Moitie, 452 U.S. at 406-08, 101 S.Ct. at 2431-2432, 2433 (Brennan, J., dissenting); Trent Realty Associates, 657 F.2d at 35. As the Third Circuit noted in Trent Realty:
In contrast to exclusive federal jurisdiction, preemption by federal statute or regulation may not be an unavoidable issue. Experienced litigators may almost certainly expect that a defendant will assert federal preemption if that doctrine supports its position, but this anticipated defense is indistinguishable for this purpose from the defense that federal law precludes maintenance of the state claim. Because the unavailability of removal in the latter situation is solidly entrenched, ... we can find no basis for removal jurisdiction in the anticipated defense of federal preemption.
Id. (citing Mottley, supra). That the preemption defense is not merely anticipated but actually articulated by the defendant, as in the instant case, is a distinction without a difference. See Pan American Petroleum, 366 U.S. at 662-64, 81 S.Ct. at 1307-1308.
The Plan also asserts that removal jurisdiction properly rested with the federal court because Powers’ complaint presented a claim preempted by the Taft-Hartley Act, 29 U.S.C. § 141 et seq. The district court, relying on our holding in Woodfork v. Marine Cooks & Stewards Union, 642 F.2d 966, 975 (5th Cir.1981), that the Taft-Hartley Act does not preempt state regulation of pension law, found that Powers’ complaint did not “necessarily present[] a federal question under the Taft-Hartley Act.” We do not comment on the correctness of this determination, because the lack of removal jurisdiction precludes our doing so. Rather, that the Plan’s assertion of Taft-Hartley preemption is subject to the same defects discussed above with regard to the issue of ERISA preemption is dispositive of this argument.
Finally, the Plan asserts that, because both ERISA and Taft-Hartley are acts of Congress regulating interstate commerce, Powers’ claim falls within the original jurisdiction of the federal courts by virtue of 28 U.S.C. § 1337(a) (1976 & Supp. V 1981), which provides in pertinent part:
The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies ....
Again, this argument must yield to our analysis with regard to the ERISA preemption issue. A case does not “arise under” federal law for purposes of section 1337(a) where the act of Congress regulating commerce is interjected into the suit as a defense. See Franchise Tax Board, 103 S.Ct. at 2845 n. 7; Trent Realty Associates, 657 F.2d at 35.
IV. CONCLUSION.
In summary, we hold that a defense of federal preemption of state law claims does not suffice to bring a case within the original jurisdiction of the federal courts. The extent to which a federal question is raised by such a defense will not serve to define the action as one “arising under” federal law for purposes of removal.
The decision of the district court is REVERSED and the case REMANDED for proceedings consistent with this opinion.
. See, e.g., Franchise Tax Board of the State of California v. Construction Laborers Vacation Trust for Southern California, - U.S. -, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Phillips Petroleum Co. v. Texaco, Inc., 415 U.S. 125, 94 S.Ct. 1002, 39 L.Ed.2d 209 (1974); Pan American Petroleum Corp. v. Superior Court, 366 U.S. 656, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961); Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950); Gully v. First National Bank in Meridian, 299 U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936); Smith v. Kansas City Title & Trust Co., 255 U.S. 180, 41 S.Ct. 243, 65 L.Ed. 577 (1921); Hopkins v. Walker, 244 U.S. 486, 37 S.Ct. 711, 61 L.Ed. 1270 (1917); Taylor v. Anderson, 234 U.S. 74, 34 S.Ct. 724, 58 L.Ed. 1218 (1914); Louisville & Nashville R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Tennessee v. Union & Planters’ Bank, 152 U.S. 454, 14 S.Ct. 654, 38 L.Ed. 511 (1894); Osborn v. Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204 (1824); Trent Realty Associates v. First Federal Savings & Loan Ass’n of Philadelphia, 657 F.2d 29 (3d Cir.1981); First National Bank of Aberdeen v. Aberdeen National Bank, 627 F.2d 843 (8th Cir.1980) (en banc) (and cases cited therein); La Chemise Lacoste v. Alligator Co., 506 F.2d 339 (3d Cir.1974), cert. denied, 421 U.S. 937, 95 S. Ct. 1666, 44 L.Ed.2d 94 (1975); State of Washington v. American League of Professional Baseball Clubs, 460 F.2d 654 (9th Cir.1972); T. B. Harms v. Eliscu, 339 F.2d 823 (2d Cir. 1964); C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure: Jurisdiction §§ 3562-3567 (1975); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, The Federal Courts and the Federal System 889 (2d ed. 1973); Aycock, Introduction to Certain Members of the Federal Question Family, 49 N.C.L.Rev. 1 (1970); Bergman, Reappraisal of Federal Question Jurisdiction, 46 MichX.Rev. 17 (1946); Chadboum & Levin, Original Jurisdiction of Federal Questions, 90 U. Pa.L.Rev. 639 (1942); Cohen, The Broken Compass: The Requirement that a Case Arise “Directly” Under Federal Law, 115 U.Pa.L.Rev. 890 (1967); Forrester, The Nature of a Federal Question, 16 Tul.L.Rev. 363 (1942); Fraser, Some Problems in Federal Question Jurisdiction, 49 Mich.L.Rev. 73 (1950); Mishkin, The Federal “Question” in the District Courts, 53 Colum.L.Rev. 157 (1953).
. See generally C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Jurisdiction §§ 3562-3567 (1975).
. With regard to the Board’s second cause of action, for declaratory relief under the state declaratory judgment statute, the Court noted that although ERISA was explicitly invoked by the Board in its complaint, Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 70 S.Ct. 876, 94 L.Ed. 1194 (1950), mandated a finding of lack of federal jurisdiction. The Court held that federal courts do not have original or removal jurisdiction when a federal question is presented in an action under a state declaratory judgment statute. See Franchise Tax Board, supra, 103 S.Ct. at 2851.
. American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260, 36 S.Ct. 585, 586, 60 L.Ed. 987 (1916).
. With regard to the instant action, we note that although it was disclosed during oral argument that Powers has filed a parallel suit in federal court, she has done so to avoid running afoul of the statute of limitations should our decision preclude her proceeding further in state court. That her federal suit evidently alleges violations of ERISA based on the same set of circumstances involved in the instant case does not bring her within Moitie, however, because her federal suit is merely a tactical manuever, instituted after her state court filing, to protect herself. This is clearly and substantially different from the situation presented in Moitie.
. We note that the instant case is factually and legally distinguishable from our holding in In re Carter, 618 F.2d 1093 (5th Cir.1980), cert. denied sub nom., Sheet Metal Workers v. Carter, 450 U.S. 949, 101 S.Ct. 1410, 67 L.Ed.2d 378 (1981). In Carter, the plaintiffs complaint necessarily presented a federal claim. We noted there that “upon removal the removal court should inspect the complaint carefully to determine whether a federal claim is presented, even if the plaintiff has couched his pleading exclusively in terms of state law.” Id. at 1101. In the case at hand, there is no standpoint from which Powers’ complaint can be viewed as presenting a federal claim. We reiterate that to the extent federal preemption arises as an issue, it is a defense to Powers’ state law claims and can not serve as the basis for original federal jurisdiction.
. We note that our determination does not preclude an eventual federal forum on the preemption issue. As the Supreme Court stated in Franchise Tax Board, “[Ojf course, the absence of original jurisdiction does not mean that there is no federal forum in which a preemption defense may be heard. If the state courts reject a claim of federal preemption, that decision may ultimately be reviewed on appeal from this Court.” 103 S.Ct. at 2848 n. 12.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
BIGGS, Circuit Judge.
The question presented for our determination at the time of the argument was whether the trust of which the petitioner, Fidelity Trust Company, is trustee was an association taxable as a corporation during the years 1932, 1933 and 1934, pursuant to the provisions of Sections 1111(a) (2) of the Revenue 'Act of 1932, c. 209, 47 Stat. 169, 289, and 801(a) (2) of the Revenue Act of 1934, c. 277, 48 Stat. 680, 771, 26 U.S.C.A.Int.Rev.Code, § 3797(a) (3). In view of the decision of this court in Germantown Trust Company, Trustee, v. Commissioner of Internal Revenue, 3 Cir., 106 F.2d 139, the petitioner did not contend that the assessment of deficiencies for the years 1932 and 1933 by the Commissioner was barred by limitations. Our ruling upon this question was reversed by the Supreme Court in Germantown Trust Company v. Commissioner, 60 S.Ct. 566, 84 L.Ed. -. It follows that since the trustee filed fiduciary income tax returns for the taxable year 1932 on March 15, 1933, and for the taxable year 1933 on March 15, 1934, and since the Commissioner gave the deficiency notice on March 13, 1937, the two year limitation after the filing of the return for the assessment of deficiencies by the Commissioner prescribed by Section 275(a) of the Revenue Act of 1932, c. 299, 47 Stat. 169, 237, 26 U.S.C.A.Int.Rev.Acts, p. 565, is applicable and the Board of Tax Appeals erred in holding that the assessment and collection of taxes from the petitioner for the years 1932 and 1933 were not barred by limitations. The status of the trust for the taxable year 1934, however, remains for our determination.
Section 801(a) (2) of the Revenue Act of 1934 provides: “The term ‘corporation’ includes associations, joint-stock companies, and insurance companies.”
The facts are as follows: George V. Marshall, the father of the beneficiaries under the trust sub judice, acquired certain real estate and interests in real estate in the City of Pittsburgh, Pennsylvania. In 1917 Marshall leased his land'to Frank & Seder, a partnership, for use by them as a department store, the lease to expire upon April 30, 1938. The lease was for a net rental; taxes, insurance and repairs to be paid by the lessees. In 1918, Marshall died, leaving his interests in the property to his wife, who caused Marshall Land Company to be incorporated under the laws of Pennsylvania. She conveyed her interest in the land to this company. In December, 1923, National Department Stores, Inc., acquired the business and’ assets of Frank & Seder, Inc., a corporation which had acquired the assets of the partnership. Other interests in the real estate occupied by the store were conveyed to Marshall Land Company from time to time and by February 20, 1924, the land and interests of Marshall Land Company in the site became coextensive with those now held by the petitioner. On February 28, 1922, Mrs. Marshall divided her stock, apparently constituting all of the stock of the Marshall Land Company, between her four children, the beneficiaries under the trust.
In April, 1924, National Department Stores, Inc., desiring to enlarge its building, entered into agreement with Marshall Land Company extending the lease previously executed until April 30, 1968. In November, 1925, Marshall Land Company conveyed the real estate to its four shareholders as tenants in common. They immediately conveyed the land to the trustee.
Other facts require brief mention. The land was conveyed to the trustee subject to a mortgage falling due in 1927. When due it was paid by a loan procured by the trustee. This loan was secured by a mortgage .with interest at 5% per annum and with a specified amortization. In 1932 National Department Stores, Inc., defaulted in the payment of the rent. The lease provided that upon such default the lessor could evict the tenant. The trustee did not exercise this power but negotiated a new lease with National Department Stores, Inc., receiving reduced rentals during the period of the negotiations. The new lease was upon substantially the same terms as the old.
The agreement of trust between the Marshall heirs and the petitioner gives the trustee power to hold and manage the property, to lease it, to collect the rents and oversee the payment of taxes, municipal assessments, insurance and the interest on any mortgage, to make payments on account of any mortgage, to pay the income from the trust to the beneficiaries, to sell the property or any part of it at public or private sale, to make and deliver notes, to secure funds, to make payments on account of principal or interest upon indebtedness, to execute and deliver bonds and mortgages in order to refund any existing mortgage, and to pay for the construction of a building or alterations to it.
The trust agreement also provides that the trustee shall not be liable for taxes, judgments or other charges other than to the extent of the trust res. The agreement circumscribes the conduct of the trustee in that it requires a majority in interest of'the beneficiaries to consent to specified acts on the part of.the trustee. For example, the trustee may not make a lease, withhold income from the beneficiaries, sell the property or any part of it, make or deliver notes or other evidences of indebtedness, or construct or alter any building upon the land without the consent of a majority in ‘interest of the beneficiaries. The agreement also provides that the trust shall continue to the end of the life of the last surviving beneficiary but not beyond April 30, 1968. On the other hand the agreement provides that a majority of the beneficiaries may revoke the trust at any time. The trust agreement states that the guardian of any minor shall have the same powers in respect to the trust as would the minor if he was of age and acting for himself.
Aside from the petitioner negotiating a new lease with the trustees, of National Department Stores, Inc., during that company’s insolvency and paying off the old mortgage and negotiating the new, the administration of the trust has been of the ordinary and usual kind. The petitioner has collected the rent, made the interest and amortization payments on the mortgage, and paid the net income to the beneficiaries. It appears from the rent and expense accounts in evidence that upon one occasion the trustee paid a county tax and was reimbursed therefor by National Department Stores, Inc. The petitioner has charged a comparatively small fee for its annual compensation.
We are required in the light of the foregoing to determine if this trust is an association employed to carry on a business enterprise and to share its gains. Such is the criterion applied by the Supreme Court in Morrissey v. Commissioner, 296 U.S. 344, 359, 56 S.Ct. 289, 80 L.Ed. 263. Whether or not the beneficiaries exercise a substantial measure of control is no longer the test. Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949. The later cases stress the powers given to the trustee in the instrument. So in the Morrissey case, 296 U. S. at page 357, 56 S.Ct. at page 295, 80 L.Ed. 263, the Chief Justice stated: “Undoubtedly the terms of an association may make the taking or acquiring of shares or interests sufficient to constitute participation, and may leave the management, or even control of the enterprise, to designated persons. But the nature and purpose of the co-operative undertaking will differentiate it from an ordinary trust. In what are called ‘business trusts’ the object is not to hold and conserve particular property, with incidental powers, as in the traditional type of trusts, but to provide a medium for the conduct of a business and sharing its gains. Thus a trust may be created as a convenient method by which persons become associated for dealings in real estate, the development of tracts of land, the • construction of improvements, and the purchase, management, and sale of properties; a|c * sfc
Many of the indicia of the business trust as referred to by the Supreme Court' in the Morrissey case, 296 U.S. at page 359, 56 S.Ct. 289, 80 L.Ed. 263, are present. The trustee holds the title to the property “embarked” in the enterprise. The trustee as a continuing trustee affords uninterrupted management of the property. Management is centralized in the trust and continuity remains uninterrupted except by the death of the last surviving beneficiary or the termination of the lease. The transfer of beneficial interests to minor children of the beneficiaries is contemplated. The liability of the trustee is limited expressly to the property in its hands.
We think the facts of the case at bar present analogy to those of Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273. In this case two individuals acquired vacant land in the City of Chicago with the view of improving it, and placed their interests in trust to that end. The Supreme Court held their “association” to. be taxable under the provisions of Section 2(a) (2) of the Revenue Act of 1926, 44 Stat. 9, 26 U.S.C.A.Int.Rev.Code, § 3797(a) (3), substantially similar in language to the Act we are considering. See also Helver-ing v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278, and Helver-ing v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275.
The trustee possesses the broad powers necessary to carry on a business for profit. For example, with the consent of a majority in interest of the beneficiaries it may borrow money to construct a building upon the premises and sell at public or private sale the whole or any part of the real estate. It is our opinion that these powers transcend those of a trustee under a traditional trust. The broad powers conferred upon the trustee by the indenture were not exercised, but we think this to be immaterial. Such powers may be exercised by the trustee if necessary. We conclude that the trust is a business trust and the trustee is engaged on behalf of the beneficiaries in the handling of their real estate for profit. In short, the trustee is doing precisely that which the Marshall Land Company, a business corporation, did, and the beneficiaries associated themselves in the trust to that end.
Our conclusion is confirmed by an examination of the applicable Treasury Regulations, viz., Articles 801-(2 to 3 inclusive) of Regulations 86, promulgated under the Act of 1934, which indicate that the word “associations” includes any organization created for the transaction of business. These regulations, though considerably expanded, are not dissimilar to those published under the Act of 1924, viz., Regulations 65, Articles 1502 and 1504,' as amended. It must be presumed therefore that Congress in making use of the word “associations” in the 1934 Act viewed with approval the pertinent regulations published under the 1924 Act. Morrissey v. Commissioner, supra, 296 U.S. at pages 353-355, 56 S.Ct. at page 293, 80 L.Ed. 263. It should also be pointed out that Articles 1311-1314 of Regulations 77, promulgated under the Act of 1932, are similar in tenor.
The case of Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 81 L.Ed. 1174, relied on by the petitioner, will not serve as authority in the case at bar. As was stated by Mr. Justice Sutherland in the cited case, 301 U.S. at page 387, 57 S.Ct. at page 800 81 L.Ed. 1174, the duties of the trustee were purely ministerial and had it not been for the declaration of trust the case presented would have been “ * * * the simple case of an appointment by a land owner of an agent to subdivide the land and sell it, * * * ”. Mr. Justice Sutherland went on to say: “It is quite evident that such an arrangement has no element of substance or method which would warrant its designation as an association under the statutory provision in question.”
Accordingly the decision of the Board of Tax Appeals is reversed in so far as it provides for the assessment and collection of taxes from the petitioner for the years 1932 and 1933, but is otherwise affirmed. The cause is remanded for redetermination of the taxes due from the taxpayer.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
Plaintiff-appellant brought this action against defendants-appellees, who were repair contractors doing work on property owned by appellant. By the action, appellant sought indemnification for, or contribution toward, a settlement it had made with one of the appellees’ employees. Appellees’ employee had brought suit against the appellant to recover money damages for injuries sustained in a fall on appellant’s premises, basing his claim on negligence. Prior to trial appellant or its liability insurance carrier made a compromise settlement with the employee in the amount of $40,000. It brought this suit against appellees to recover such sum, or a contribution thereto, plus $10,241.38 representing legal services and expenses incurred in preparing for and settling the suit against it.
This case was tried to the court without a jury and resulted in a judgment in favor of the appellees and against the appellant for costs and disbursements. In ordering judgment for the appellees, the District Court found that the appellant, as the property owner, had full apd complete knowledge and notice of the dangerous condition of its premises which resulted in the employee’s injury and specifically held that appellant’s negligence was the proximate cause of the employee’s fall and his injuries. It further held that the failure of the appellees, who had agreed to comply with all statutes and safety regulations of the State of Minnesota to assure that safety lines and other safety equipment were taken to the building and used by the employees, was not a proximate cause of the injuries and that appellant could recover on neither the theory of indemnity nor contribution between two joint tort feasors.
Appellant had also contended below that since appellees had offered to provide “complete insurance coverage”, it breached its contract in that its insurance policies did not contemplate defense of third parties against suits such as brought by appellees’ employee. The District Court concluded as a matter of law that appellees did not breach the contract in this regard and, in dismissing this argument, noted that prior to commencement of the repair operation appellant had requested to see appellees’ certificates of insurance and thus was then “cognizant of the [appellees’] precise insurance coverage”. Whirlpool brought this appeal, questioning the District Court’s findings and conclusions.
The District Court’s complete Findings of Fact, Conclusions of Law and detailed Memorandum Opinion are published in Whirlpool Corporation v. Morse, D.C. Minn., 1963, 222 F.Supp. 645. Judge Larson has, with infinite care, set forth the contentions of the parties, his findings and conclusions arrived at, and the Minnesota law by which the case was ruled. Because we are in complete accord with Judge Larson’s excellent published opinion, we find no reason for reiterating here that which he has so ably set forth. On the basis of that opinion, this case is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Dissenting Opinion filed by Circuit Judge SILBERMAN.
RANDOLPH, Circuit Judge:
This appeal raises two issues. The first is whether District of Columbia law permits Rayful Edmond, III to be prosecuted for aiding and abetting a first-degree murder after the gunman has been acquitted of that offense. The second question arises because Edmond successfully moved to sever counts in a multi-count indictment, forcing the government to try him twice, first for conspiracy and second for a murder allegedly committed in furtherance of the conspiracy. The question is whether the Double Jeopardy Clause of the Fifth Amendment bars the government, in the second trial, from proceeding on the basis that Edmond’s participation in the conspiracy rendered him guilty of the murder.
I
On June 20, 1989, Rayful Edmond, III, Columbus Daniels and twenty-seven others were named as defendants in a forty-three count, superseding indictment. The indictment charged the defendants with participating in a conspiracy to violate federal narcotics laws and with committing various drug-related offenses. Count 21, which is at the center of this appeal, charged Edmond and Daniels with first-degree murder while armed:
RAYFUL EDMOND III, and COLUMBUS DANIELS, also known as “Little Nut,” within the District of Columbia, while armed with a pistol, purposely and deliberately with premeditated malice, killed Brandon Terrell, by shooting him with a pistol on or about June 23, 1988, thereby causing injuries from which Brandon Terrell died on or about June 23, 1988.
(In violation of Title 22, D.C. Code, Sections 2401, 3202 and 105).
The government had two theories for proving Edmond’s guilt of Count 21. The first was aiding and abetting. The second was that Edmond created and controlled a large conspiracy to distribute cocaine and that Brandon Terrell was murdered in furtherance of that unlawful agreement. Whether Edmond was on notice of this second theory is in dispute. In this appeal, the government informs us that it expected to show that Edmond supplied drugs to Terrell, that Terrell refused to pay for the drugs, and that Terrell wanted to compete with Edmond by establishing his own drug distribution network. On the evening of Terrell’s death, the following events allegedly transpired. Terrell insulted Edmond and argued with him when they met at a Washington, D.C., nightclub. Before leaving the nightclub, Edmond told Columbus Daniels, one of his lieutenants, to go outside, retrieve a gun, and wait for an instruction to shoot Terrell. Later, outside the club, Edmond and Terrell argued again. Edmond withdrew and, upon his signal, Daniels shot and killed Terrell.
On the motions of Edmond and other defendants, the district court severed Count 21 and other counts charging firearms offenses and crimes of violence. The court also severed the defendants. Two trials of different defendants proceeded on the conspiracy counts and other drug-related counts. On December 6, 1989, the jury found Edmond guilty of participating in'a conspiracy to violate federal narcotics laws, conducting a continuing criminal enterprise, unlawfully employing persons under the age of eighteen, travelling interstate in aid of racketeering, and unlawfully using a communications facility. In a separate trial, the jury convicted Daniels of conspiracy.
Edmond, Daniels and two additional defendants (James Antonio Jones and Jerry Millington) still faced trial on the severed counts. In proceedings unnecessary to recount in detail (see 738 F.Supp. 572 (D.D.C. 1990)), the district court dismissed the one remaining federal charge (carrying a firearm in connection with a drug trafficking offense, 18 U.S.C. § 924(c)). This left only counts charging violations of District of Columbia law, including Count 21. The district court initially had pendent jurisdiction over these local offenses as a result of their joinder with the federal charges in the indictment (see United States v. Koritko, 870 F.2d 738, 739 (D.C.Cir.1989)). Although no federal charges remained to be tried, the court exercised its discretionary authority to retain jurisdiction over the local offenses and scheduled the trial of these defendants for July 12, 1990. 738 F.Supp. at 579.
Before that date, the government dismissed without prejudice the charges against Jones and Millington. On Edmond’s motion, the court ordered that he and Daniels be tried separately. Daniels was tried first on Count 21. On June 21, 1990, the jury returned a special verdict, finding Daniels not guilty of first-degree murder while armed but guilty of the lesser included offense of second-degree murder while armed.
This caused Edmond to move for a reduction of the murder charge against him to second-degree murder while armed, to the extent his responsibility rested on aiding and abetting Daniels. The court granted Edmond’s motion and, in another ruling, held that the Double Jeopardy Clause barred the government from proving Edmond’s guilt by showing that Daniels murdered Terrell in furtherance of a conspiracy of which Edmond was a member. The government brought this appeal instead of prosecuting Edmond in compliance with these rulings.
II
The district court reduced the charge against Edmond to second-degree murder on the ground that District of Columbia law does not permit an aider and abettor to “be tried for an offense greater than that committed by the principal.” Memorandum opinion at 4 (July 11, 1990). Daniels’ acquittal of first-degree murder therefore relieved Edmond of liability for that offense.
Whether the district court ruled correctly turns on the meaning of D.C.Code § 22-105:
In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, the intent of this section being that as to all accessories before the fact the law heretofore applicable in cases of misdemeanors only shall apply to all crimes, whatever the punishment may be.
D.C.Code § 22-105 is an Act of Congress applicable exclusively to the District of Columbia. We do not treat such local statutes as if they were part of the United States Code. Our policy has been to defer to the District of Columbia Court of Appeals on questions of statutory interpretation. D.C.Code § 11-102; Hall v. C & P Tel. Co., 793 F.2d 1354, 1358 & n. 9 (D.C.Cir.1986), reh’g denied, 809 F.2d 924 (D.C.Cir.1987). The Supreme Court does the same, treating interpretations by the District of Columbia Court of Appeals as if they were rendered by the highest court of a State on questions of state law, with the exception that the Court will interpose its own judgment when it detects an egregious error. Pernell v. Southall Realty, 416 U.S. 363, 368-69, 94 S.Ct. 1723, 1726, 40 L.Ed.2d 198 (1974); Whalen v. United States, 445 U.S. 684, 687-89, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980).
The District of Columbia Court of Appeals has determined that D.C.Code § 22-105 “does not differ substantially from its federal counterpart.” Hackney v. United States, 389 A.2d 1336, 1342 (D.C.1978), cert. denied, 439 U.S. 1132, 99 S.Ct. 1054, 59 L.Ed.2d 95 (1979). For that reason, if the court of appeals were faced with the issue presented here it would doubtless consult Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), and its interpretation of 18 U.S.C. § 2(a), which renders anyone who aids or abets the commission of a federal offense “punishable as a principal.” The district court thought, however, that Standefer would exert little influence on the court of appeals. We disagree. The similarity between the federal and local statutes and their common origin, which Standefer describes, entitles the Supreme Court’s decision to far more weight than the district court was willing to give it.
Standefer held that a defendant accused of aiding and abetting the commission of a federal offense may be convicted despite the principal’s acquittal of that offense. Early common law applied this rule to aiders and abettors of misdemeanors. A more complicated rule governed aiders and abettors of felonies. Principals in the second degree — that is, accessories who were actually or constructively present at the scene of the felony offense — were treated in the same manner as abettors of misdemeanors. 447 U.S. at 16, 100 S.Ct. at 2004. Other accessories in felony cases, however, were treated differently. Their liability was considered derivative and their fate depended on the fate of the principals, who were required to be tried first. If the actual perpetrators were never tried, or were acquitted, or were pardoned after conviction, these accessories could not be held criminally liable for the offense. Id. Early in this century, as part of a general reform movement, Congress adopted the common law misdemeanor rule for all federal offenses. 447 U.S. at 18-19, 100 S.Ct. at 2005. The Supreme Court found that the predecessor of 18 U.S.C. § 2(a) had abolished the common law’s misdemeanor-felony distinction by directing that whoever aided or abetted the commission of an offense “is a principal.” 447 U.S. at 18, 100 S.Ct. at 2005. Under federal law, acquittal of the direct perpetrator thus became irrelevant in the accessory’s prosecution.
Of particular importance to this case, the Court in Standefer supported its interpretation of the federal aiding and abetting statute by relying on D.C.Code § 22-105, which Congress passed in 1901. 447 U.S. at 18 & n. 10, 100 S.Ct. at 2005 & n. 10. The federal and District of Columbia statutes, although enacted several years apart, were “part and parcel of [the] same reform movement,” and both provisions contained language “unmistakably demonstrating]” that accessories were to be treated as principals. 447 U.S. at 18, 100 S.Ct. at 2005.
D.C.Code § 22-105, if anything, was even clearer than the federal statute. It contained an explanatory clause stating: “the intent of this section being that as to all accessories before the fact the law heretofore applicable in eases of misdemeanors only shall apply to all crimes, whatever the punishment may be.” In light of the history recounted in Standefer, the import of this clause is as certain as can be. The “law heretofore applicable in cases of misdemeanors” was that “all participants were deemed principals” and that “a prior acquittal of the actual perpetrator did not prevent the subsequent conviction of a person who rendered assistance.” 447 U.S. at 16, 100 S.Ct. at 2004.
Only a short time ago, we held that an aiding-and-abetting conviction pursuant to § 22-105 “may stand even where the principal is acquitted in a separate trial.” United States v. Richardson, 817 F.2d 886, 888 (D.C.Cir.1987). The proposition was so certain that we summarily rejected an argument against it, citing Standefer and Murchison v. United States, 486 A.2d 77, 81 (D.C.1984), which affirmed the conviction of an aider and abettor despite the principal’s mistrial. 817 F.2d at 888.
We would be inclined to dispatch Edmond’s argument in the same manner but for the intervening decision in Morriss v. United States, 554 A.2d 784 (D.C.1989), and the significance the district court attributed to it. Morriss was tried for aiding and abetting the murder-for-hire of co-defendant Cole’s husband. His role in the murder consisted in procuring the three gunmen Cole hired. In a joint trial, Mor-riss and Cole were convicted of second-degree murder. The court of appeals reversed Cole’s conviction on the ground that a pretrial statement by Morriss, who did not testify, should not have been admitted against her (see Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)). 554 A.2d at 787.
Morriss’ appeal presented a separate question. Morriss had defended on the basis that he thought Cole only wanted her husband beaten and that he, Morriss, did not know of her intention to have him murdered. Over Morriss’ objection, the trial court instructed the jury that an aider and abettor need not intend the particular crime committed by the principal so long as the crime was the natural and probable consequence of his actions. The court of appeals sustained the instruction, rejecting Morriss’ argument that an aider and abettor must share, or at least know of, the mens rea of the principal. 554 A.2d at 788-89. Nevertheless, the court reversed Morriss’ conviction and remanded so that he could be retried with Cole.
The reasoning behind this disposition seems to us rather obscure. Citing Stan-defer, the court of appeals stated that “[e]ven the acquittal of a principal does not preclude conviction of an aider and abettor,” although the government must show that someone actually committed “the act constituting the offense.” 554 A.2d at 790. But the court’s reversal of Cole’s conviction presented what it described as a “difficulty” with respect to Morriss’ conviction. Id. The “difficulty” appears to have been evidentiary in nature. After reciting that the “government’s whole theory of Mor-riss’ consequential liability depends upon his solicitation of the killers at [Cole’s] behest” and her “participation in arranging for the slaying,” the court concluded that Morriss’ conviction could not “fairly stand in the wake of trial error in the conviction[] by the same jury of the primary participante ], ... Cole.” Id. At this point the court dropped a footnote acknowledging that Morriss’ pretrial statement “provided an additional strand of evidence” against him but not Cole and stating that “[t]his” may have been relevant in separate trials “or even in a joint trial where a jury convicted Morriss while acquitting Cole” (554 A.2d at 790 n. 13). The footnote concluded, however, that the court could not “tell how the jury interrelated factors in determining the guilt of” Cole and Morriss. Id. Morriss’ pretrial statement recounted his connection with Cole and his understanding that Cole only wanted someone to “rough up” her husband. 554 A.2d at 791. Perhaps the court thought the jury might somehow have misused Morriss’ statement in finding him guilty. For example, suppose the jury first erroneously found Cole guilty in light of Morriss’ pretrial statement and, using that improper finding, decided that Morriss was also guilty because Cole’s actions were the “natural and probable consequence” of Morriss’ assistance. The jury could have done this only by violating the instructions, but the court of appeals thought that such a violation might have occurred. 554 A.2d at 787. If this was the court’s thinking in Morriss, it explains why — as the footnote strongly suggests — the court would have sustained Morriss’ conviction if he had been tried separately or if, in a joint trial, Cole had been acquitted.
At all events, we are confident that the court of appeals did not intend its decision in Morriss to represent an interpretation of § 22-105 in conflict with the Supreme Court’s reading of that District of Columbia provision in Standefer. The court of appeals did not even mention § 22-105, let alone analyze its language and the extensive history behind Congress’ choice of words. Courts do not generally construe statutes without at least mentioning them and we will not impute such an odd method of decisionmaking to the court of appeals. Furthermore, the court of appeals cited Standefer and accurately paraphrased the Supreme Court’s holding. This signified the court’s approval, or at least acceptance, of the Supreme Court’s decision that even the acquittal of the principal does not bar a separate prosecution of an alleged aider and abettor.
Morriss therefore does not represent some new, authoritative interpretation of § 22-105 by the District of Columbia Court of Appeals. Edmond’s contrary argument rests on a perceived inconsistency between the court’s judgment reversing Morriss’ conviction and the rule of law recognized in Standefer and in the Morriss opinion. But if we accepted Edmond’s reasoning, which we do not, the most we could say is that Morriss misapplied the settled law of aiding and abetting, not that it formulated an entirely new construction of § 22-105 totally at odds with its plain language, the manifest intention of Congress, the extensive history of this and other congressional legislation examined in Standefer, and a line of cases construing § 22-105 going back as far as 1907.
The district court’s basic mistake was in thinking that, in view of the Daniels verdict, Edmond was being prosecuted for aiding and abetting a first-degree murder that never happened. That view is contrary to District of Columbia law. Whether there has been a first-degree murder remains to be determined — by the jury at Edmond’s trial, where the government must prove this offense. See Allen v. United States, 383 A.2d 363, 367 (D.C.1978). This is the point of Jefferson v. United States, 558 A.2d 298 (D.C.1989), cert. denied, — U.S.-, 110 S.Ct. 748, 107 L.Ed.2d 765 (1990), which the district court cited. Jefferson held that one “cannot be convicted of carrying a pistol without a license on an aiding and abetting theory where there is no proof that the person in actual possession of the pistol did not have a license to carry it.” 558 A.2d at 303. Jefferson simply recognizes that in the abettor’s trial, the government must prove the criminal act the defendant is accused of abetting.
The special verdict in Daniels’ case is an entirely separate matter. The jury there decided only Daniels’ culpability. Its verdict said nothing about Edmond or his alleged role in bringing about Terrell’s death. Under § 22-105, Edmond must stand trial as a principal, which means that whether he is guilty and, if so, the degree of his offense, will depend entirely on what the government proves at his trial. That much has been settled in the District of Columbia since 1907. The first reported ease under § 22-105 recognized that one who commands a crime to be done is guilty of the crime even if the actual perpetrator is guiltless and held that “[o]ur Code obliterates the former distinction between principals and accessories before the fact,” Maxey v. United States, 30 App.D.C. 63, 76 (1907). As to Edmond’s prosecution, Daniels’ acquittal of first-degree murder is therefore “irrelevant.” Standefer, 447 U.S. at 20, 100 S.Ct. at 2006.
The decision in Morriss is fully consistent with that result. Whatever else Mor-riss may signify, the court of appeals there firmly rejected the notion that an aider and abettor must, share the mens rea of the principal. 554 A.2d at 789. In so ruling, the court of appeals relied on its decision in Hackney v. United States, which held that “it is the abettor’s state of mind rather than the state of mind of the perpetrator which determines the abettor’s guilt or innocence.” 389 A.2d at 1341, quoting Perkins, Criminal Law 662 (2d ed. 1969). See also Allen v. United States, 383 A.2d at 367-68; Shanahan v. United States, 354 A.2d 524, 528 (D.C.1976).
Our brother Silberman, in dissent, nevertheless thinks the District of Columbia Court of Appeals has doubts about “the fairness of convicting an aider and abettor if the principal were not convicted (or were convicted of a lesser charge).” But even if “fairness,” rather than §• 22-105, controlled, we fail to see how prosecuting Edmond for the greater offense while Daniels stands convicted only of the lesser could give rise to that concern. Indeed, if Mor-riss stood for what our dissenting colleague supposes, the decision would constitute a major convulsion, a flat contradiction of the law of accessorial liability applied for at least three centuries. Even at early common law, Edmond’s prosecution for first-degree murder would have been proper. On the government’s theory, common law would consider Edmond a principal in the second degree, an accessory “at the fact,” and “a principal in the second degree may be convicted of a higher degree of guilt than the principal in the first degree. The former may be convicted of first degree murder, for example, although the latter has been convicted of second degree murder.” Perkins, Parties to Crime, 89 U.Pa.L.Rev. 581, 608-09 (1941). There is nothing unfair about this. First-degree murder requires premeditation, as when a killing is planned and calculated; second-degree murder does not involve planning, although the homicide is committed intentionally and with malice aforethought. Harris v. United States, 375 A.2d 505, 507-08 (D.C.1977); Austin v. United States, 382 F.2d 129, 137 (D.C.Cir.1967). In a joint trial, if a jury thought an aider and abettor carefully conceived a murder but enlisted an executioner only at the last possible moment, it could consistently convict the abettor of first-degree murder while finding the actual perpetrator guilty only of the lesser offense. There is no reason why separate juries in separate trials of the principal and the aider and abettor would be acting inconsistently or unfairly if they did the same. The degree of murder in each case depends on the mens rea of the defendant who is on trial. This is hardly a new insight. In 1724, William Hawkins explained that “if there were Malice in the Abettor, and none in the Person who struck the Party, it will be Murder as to the Abettor, and Manslaughter only as to the other.” W. Hawkins, A Treatise on the Pleas of the Crown, Book II, at 312 (1724), reprinted in American Law: The Formative Years (M. Horwitz & S. Katz eds. 1972). See also Perkins, supra, 89 U.Pa.L.Rev. at 609 & n. 239, citing I Hale P.C. *438, for the same point.
One of the basic duties of an appellate court is to signify when it is departing from precedent and to provide a legal analysis explaining why it is changing course. The District of Columbia Court of Appeals knows this as well as we do. Mor-riss can carry the meaning our dissenting colleague ascribes to it only if the court of appeals breached that basic duty. In order to agree with our brother Silberman, we would have to conclude that the court of appeals, without saying so, disagreed with Hackney v. United States, 389 A.2d at 1342, which recognizes — as does Stande-fer — that there is no substantial difference between the federal statute on aiding and abetting and D.C.Code § 22-105. We would have to view Morriss as Janus-faced, as a decision expressly relying on Stande-fer for the principle that acquittal of the actual perpetrator does not bar prosecution of the abettor, while silently rejecting that principle on the basis of some unexpressed concerns about fairness. We would also have to believe that the court of appeals, without any discussion, tossed aside its many other decisions that under § 22-105, aiding and abetting is not a derivative offense and that the acquittal or even the “entry of a ‘no finding’ as to the principal” does not bar conviction of the aider and abettor. Strickland v. United States, 332 A.2d 746, 749 (D.C.1975), citing with approval Gray v. United States, 260 F.2d 483, 484 (D.C.Cir.1958); and United States v. McCall, 460 F.2d 952, 955 n. 13 (D.C.Cir.1972).
That we find nothing in Morriss to warrant such extraordinary treatment does not, as the dissent infers, reflect any lack of deference. The disagreement between us and our colleague is not about whether deference is due. It is about whether we should read into an opinion concerns never mentioned, intentions never revealed and interpretations of a statute never cited. Out of respect for the court of appeals, this we refuse to do.
We are also urged to defer to the district court’s interpretation of District of Columbia law to an even greater extent than would be compelled by the force of the court’s reasoning. See Russell v. Salve Regina College, 890 F.2d 484 (1st Cir.1989), cert. granted, — U.S.-, 110 S.Ct. 3269, 111 L.Ed.2d 780 (1990). But whatever deference we gave, we would still be constrained to set aside the court’s judgment. Our firm conclusion is that the court erred in determining that D.C.Code § 22-105 forbids prosecution of an aider and abettor for an offense after the principal has been found not guilty of the same offense.
Ill
The remaining issue requires an understanding of Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946), which establishes two propositions important to our decision. The first is that “commission of [a] substantive offense and a conspiracy to commit it are separate and distinct offenses,” so that “the plea of double jeopardy is no defense to a conviction for both offenses.” 328 U.S. at 643, 66 S.Ct. at 1182. The second is that the criminal act of one conspirator in furtherance of the conspiracy is “attributable to the other[ ] [conspirators] for the purpose of holding them responsible for the substantive offense.” Id. at 647, 66 S.Ct. at 1184. This second aspect of Pinkerton, commonly known as the Pinkerton theory of liability or the Pinkerton doctrine, would permit the government to make its case against Edmond by proving that Daniels murdered Terrell in furtherance of a conspiracy of which Edmond was a member. The government planned to proceed on this basis in addition to establishing Edmond’s guilt as an aider and abettor.
The district court barred use of a Pinkerton theory at Edmond’s murder trial because the. government would reprove the drug conspiracy, which would become a lesser included offense of the murder charge. In light of Grady v. Corbin, — U.S.-, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), and United States v. Rosenberg, 888 F.2d 1406 (D.C.Cir.1989), the district court concluded that this would deprive Edmond of his right under the Double Jeopardy Clause not to be twice put in jeopardy of the narcotics conspiracy charge. The correctness of that ruling is the only question raised with respect to the Pinkerton theory.
The government does not dispute that if Edmond had been tried and convicted of the conspiracy and then indicted for the murder, Grady and Rosenberg would stand in the way of the government’s proving the conspiracy to establish Edmond’s liability for the murder. But the Double Jeopardy Clause does not apply, the government contends, because the separate trials are simply the consequence of Edmond’s severance motion. The district court rejected this argument. Edmond had not knowingly waived his double jeopardy right, the court ruled, because the indictment failed to inform him of the government’s Pinkerton theory.
At the time Edmond filed his motion for a separate trial on the murder charge, he had no double jeopardy claim to assert or to waive. He was then set to be tried for conspiracy and murder in one proceeding. Pinkerton and other Supreme Court decisions confirm that nothing in the Double Jeopardy Clause prohibits the government from prosecuting a defendant for multiple offenses, including lesser included offenses, in one trial. Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 2536, 2541, 81 L.Ed.2d 425 (1984); Jeffers v. United States, 432 U.S. 137, 152, 97 S.Ct. 2207, 2217, 53 L.Ed.2d 168 (1977); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977).
The district court thought that Edmond was entitled to be informed of the government’s Pinkerton theory before he moved to sever the murder charge. Why the district court also thought the information had to be contained on the face of the indictment is not apparent. Indictments do not recite the government’s theory of proof, which is what the Pinkerton theory is. Despite the all too common use of “speaking” indictments, the function of a federal indictment is to state concisely the essential facts constituting the offense, not how the government plans to go about proving them. Fed.R.Crim.P. 7(c)(1). The indictment here did just that and we therefore reject any suggestion it should have done more.
At all events, the indictment’s listing of Terrell’s murder as an overt act in the drug conspiracy was enough to alert the defense to the prospect of a Pinkerton theory. If the defense had any lingering doubts, these ended when the government responded to the severance motions of Edmond’s co-defendants, which Edmond had joined. In each opposition, the government stated that all defendants were, under Pinkerton, legally responsible for the murder of Terrell “since they are co-conspirators with the persons who actually did the shootings.” The portent of this did not elude Edmond’s counsel. In a hearing on August 3, 1989, when Edmond’s counsel argued in favor of severing the murder count, he expressed his understanding of the government’s position that “the shootings and killings were committed in furtherance of a conspiracy.” Transcript of Aug. 3, 1989, at 12. The court granted Edmond’s severance motion the day after the hearing, on August 4, 1989.
The record therefore shows that Edmond had notice of the government’s Pinkerton theory before the court granted the severance motion and set the murder count down for a separate trial. Under the district court’s waiver analysis, Edmond therefore knowingly relinquished his double jeopardy claim by successfully seeking separate trials. We are reluctant, however, to rest our decision on waiver. The Double Jeopardy Clause imposes no duty on the government to inform defendants of the consequences of their winning severance motions. The Supreme Court, in two closely-analogous double jeopardy cases, neither employed a waiver analysis nor mentioned the term. Under these decisions, a defendant who has caused the government to proceed against him in successive trials on separate counts in a multi-count indictment has no double jeopardy right to waive.
Ohio v. Johnson, 467 U.S. at 501, 104 S.Ct. at 2541, rejected the idea that a defendant’s pleading guilty to a lesser included offense in a multi-count indictment raised a double jeopardy bar to prosecution on the greater offense. It follows from Johnson that if Edmond had entered a guilty plea to the drug conspiracy count, rather than moving to sever it, the government would still be entitled to prove the conspiracy to establish his guilt on the remaining murder charge. Id. This case, of course, is different because Edmond’s conspiracy conviction resulted from a verdict, not a guilty plea. But we do not believe the Supreme Court meant the Double Jeopardy Clause to turn on that distinction. The Court expressed its ruling without distinguishing between initial convictions after guilty pleas or after trials: “a determination of guilt and punishment on one count of a multicount indictment [does not raise] a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded.” Id.
Although the Court in Johnson did refer to the absence of a trial on the lesser included offense to which the defendant pleaded guilty, the Court did so to illustrate the lack of “governmental overreaching that double jeopardy is supposed to prevent.” 467 U.S. at 602, 104 S.Ct. at 2542. The absence of prosecutorial abuse is just as apparent here. Nothing constrained Edmond to move for a severance of counts except the hope of gaming some tactical advantage. When his motion succeeded, it was not the government who, in the language of the Double Jeopardy Clause, caused Edmond “to be twice put in jeopardy.” Edmond did this to himself.
Jeffers v. United States is similar. There the defendant successfully opposed the government’s motion for a consolidated trial on two indictments charging related offenses. The Court rejected the defendant’s claim that the Double Jeopardy Clause barred his trial on the second indictment after he had been convicted on the first. Justice Blackmun’s plurality opinion spoke directly to the situation in this case: “although a defendant is normally entitled to have charges on a greater and lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election.” 432 U.S. at 152, 97 S.Ct. at 2217. That statement, which is fully consistent with the Court’s later decision in Johnson, would doom Edmond’s double jeopardy claim.
Edmond stresses a footnote in the Jeffers plurality opinion, which said that the “considerations relating to the second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges.” 432 U.S. at 152 n. 20, 97 S.Ct. at 2217 n. 20. He argues that the government contributed to his separate trials because, if its Pinkerton theory had appeared on the face of the indictment, he might not have moved to sever. The obvious answer is that Edmond, not the government, caused the separate trials. Furthermore, we have alreády ruled that an indictment does not have to contain the government’s theory of proof and that, in any event, Edmond had notice of how the government planned to proceed on the murder count.
In his final claim, Edmond returns to Johnson and seizes on the Court’s statement that the Double Jeopardy Clause serves to prevent prosecutorial overreaching. 467 U.S. at 502, 104 S.Ct. at 2542. The “overreaching” here is supposedly of two sorts: requiring Edmond to stand trial for murder when he has already been tried and convicted for other offenses; and trying him for murder when he is already serving three life sentences with no possibility of parole. There is nothing to either claim. Edmond is facing another trial because he allegedly murdered Brandon Terrell. When the government refuses to disregard the killing of a human being and insists, on trying a defendant charged with violating society’s most important rule, it is not overreaching. Edmond’s punishment for his other crimes may already have reached the maximum. But the responsibility for Brandon Terrell’s death has yet to be fully determined. That is the proper function of a criminal trial.
One matter remains to be considered. On July 9, 1990, the district court ruled that the government could not introduce evidence of the drug conspiracy because, under Rule 403, Fed.R.Evid., its prejudicial effect would outweigh its probative value. The court’s ruling assumed that the government would be barred from using a Pinkerton theory to establish Edmond’s responsibility for the murder. That assumption is no longer correct in light of our decision.
We therefore vacate the court’s order excluding evidence of the conspiracy. The court’s judgment reducing the charge against Edmond to second-degree murder while armed and the court’s order barring the government from using a Pinkerton theory, are reversed and the case is remanded for further proceedings consistent with this opinion.
The court commends .Plato Cacheris, Esq., who was appointed by this court, and his co-counsel, Philip J. Inglima, Esq., for their able presentation on Edmond’s behalf.
Reversed and remanded.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
CUDAHY, Circuit Judge.
This case involves the allocation of income and expenses between a charitable organization’s tax-exempt activities and its taxable business endeavors for purposes of computing the charity’s “unrelated business income tax” under 26 U.S.C. sections 511 to 513. The American Medical Association (the “AMA”), a tax-exempt charitable organization, filed suit in the Northern District of Illinois seeking a refund for the tax years 1975 through 1978. The AMA argued that the Internal Revenue Service (the “IRS”) had improperly calculated its income from the non-exempt unrelated business of publishing advertising in the organization’s publications. In a series of opinions, reported at 668 F.Supp. 1085 (1987), 668 F.Supp. 1101 (1987), 688 F.Supp. 358 (1988) and 691 F.Supp. 1170 (1988), the district court substantially agreed with the AMA’s statutory and regulatory arguments, and ordered the United States to pay the AMA the full amount of the refund requested. We affirm in part and reverse in part.
I.
The AMA is a tax-exempt membership organization under section 501(c)(6) of the Internal Revenue Code. Its charitable function is “to promote the science and art of medicine and the betterment of public health.” In aid of this purpose the AMA publishes the Journal of the American Medical Association (“JAMA”) and the American Medical News (“AM News”). Most of the AMA’s members pay annual dues to belong to the organization. Between 1975 and 1978, AMA members received JAMA and AM News at no additional cost as a benefit of membership.
JAMA and AM News both contain articles of relevance to the practice of medicine. But the journals also contain paid advertising. During the relevant period the AMA sent complimentary copies of JAMA and AM News to targeted groups of physicians who make up an especially desirable audience for firms likely to advertise in the journals. The parties stipulated that the AMA’s sole purpose in engaging in this complimentary “controlled circulation” was to increase advertising revenues. Many of the AMA’s dues-paying members were also on the controlled circulation list and therefore would have been entitled to receive JAMA and AM News even if they were not AMA members. However, the AMA apparently did not inform these physicians that they were entitled to complimentary copies of the journals. Nor did the AMA refund any portion of these physicians’ membership dues in recognition of the fact that they need not have paid for the periodicals.
Between 1975 and 1978, the AMA placed a portion of the membership dues it received in an “association equity” account, which was intended to serve as a reserve fund to offset any deficit which might occur in future years if the association’s revenues were insufficient to cover expenses. The amounts deposited in the association equity account remained on the AMA’s books as a reserve until 1985, when the AMA withdrew some of these funds to compensate for a shortfall in its revenue.
There is no dispute that the editorial or readership content of the two periodicals furthers the AMA’s charitable mission, and therefore any revenue attributable to the publication and distribution of articles in JAMA and AM News is exempt from taxation. And the AMA has admitted that the advertising in JAMA and AM News is a business endeavor unrelated to the AMA’s charitable purpose, and is therefore taxable. This case presents several questions involving the allocation of income and expenses between the exempt and taxable aspects of JAMA and AM News, and the allocation of membership dues between these periodicals and the AMA’s other (exempt) activities.
The statutory scheme applicable to these journals is fairly straightforward. Section 511 of the Code provides that the “unrelated business taxable income” of a charitable organization is subject to the tax applied to corporate income under section 11. Section 512(a)(1) defines “unrelated business taxable income” as
the gross income derived by any organization from any unrelated trade or business (as defined in section 513) regularly carried on by it, less the deductions allowed by this chapter which are directly connected with the carrying on of such trade or business....
(emphasis added). Finally, section 513(a) defines an “unrelated trade or business” as
any trade or business the conduct of which is not substantially related (aside from the need of such organization for income or funds or the use it makes of the profits derived) to the exercise or performance by such organization of its charitable... purpose or function constituting the basis for its exemption under section 501....
In a provision added in 1969, and significantly titled “Advertising, etc., activities,” section 513(c) further explains:
the term “trade or business” includes any activity which is carried on for the production of income from the sale of goods or the performance of services. For purposes of the preceding sentence, an activity does not lose identity as a trade or business merely because it is carried on within a larger aggregate of similar activities or within a larger complex of other endeavors which may, or may not, be related to the exempt purposes of the organization.
The Supreme Court construed these provisions in United States v. American College of Physicians, 475 U.S. 834, 106 S.Ct. 1591, 89 L.Ed.2d 841 (1986). American College involved a charitable organization’s medical journal which, as here, contained both articles which furthered the organization’s exempt function and paid advertisements. The Supreme Court held that section 513(c) clearly indicated Congress’ intent to treat advertising in an otherwise tax-exempt publication as a separate “trade or business,” which may be taxable if the “conduct of [the advertising business] is not substantially related... to the... performance by such organization of its charitable... purpose.” Id. at 839-40, 106 S.Ct. at 1594-95. To determine whether the advertising content of a journal is “substantially related” to the organization’s educational mission, the IRS must look to the manner in which the advertising is selected and displayed; i.e., whether only advertising of new technologies or medications is allowed, whether the charity coordinates the subject matter and content of the ads, etc. Id. at 848-50, 106 S.Ct. at 1599-1600. The organization’s tax exemption extends to its publication of advertising only if the advertisements “contribute[ ] importantly” to the charity’s exempt purpose. Id. at 847, 106 S.Ct. at 1599; see also United States v. American Bar Endowment, 477 U.S. 105, 109-16, 106 S.Ct. 2426, 2429-32, 91 L.Ed.2d 89 (1986).
American College specifically endorsed the so-called “fragmentation” principle, whereby a charitable organization’s publications are divided into two components: (1) the tax-exempt publication of the journal’s “editorial” or “readership content”; and (2) the taxable enterprise of selling and publishing advertising. The United States and the AMA agree on these general principles; in fact, the AMA has even conceded that the advertisements in JAMA and AM News are not “substantially related” to the AMA’s educational mission, and therefore constitute an “unrelated” business under American College. The parties’ disagreement centers on the application of the “fragmentation” principle to the facts of this case.
The IRS has adopted detailed regulations which govern the allocation of revenues and expenses between a journal’s exempt editorial and non-exempt advertising activities. Regulation 1.512(a)-l(f)(6) provides for division of a periodical’s costs into two categories:
(ii)(a) The direct advertising costs of an exempt organization periodical include all expenses, depreciation and similar items of deduction which are directly connected with the sale and publication of advertis-ing_ The items allowable as deductions under this subdivision do not include any items of deduction attributable to the production or distribution of the readership content of the periodical.
(iii) The “readership” costs of an exempt organization periodical include expenses, depreciation or similar items which are directly connected with the production and distribution of the readership content of the periodical.... [Rjeadership costs include all the items of deduction attributable to an exempt organization periodical which are not allocated to direct advertising costs under subdivision (ii)...
26 C.F.R. § 1.512(a)-l(f)(6). “Direct advertising costs” are fully deductible from gross advertising income, Reg. (f)(2)(i); “readership costs” are only deductible from gross advertising income to the extent they exceed circulation income. Reg. (f)(2)(ii)(b). “Circulation income,” in turn, is defined as
the income attributable to the production, distribution or circulation of a periodical (other than gross advertising income).... Where the right to receive an exempt organization periodical is associated with membership... in such organization for which dues... are received (hereinafter referred to as “membership receipts”), circulation income includes the portion of such membership receipts allo-cable to the periodical (hereinafter referred to as “allocable membership receipts”).
Reg. 1.512(a)-l(f)(3)(iii). Regulation (f)(3)(iii) goes on to explain that “allocable membership receipts” should generally represent the amount which a taxable organization would have charged for the periodical in an arms-length transaction with the member. The regulation refers taxpayers to regulation (f)(4) “for a discussion of the factors to be considered in determining al-locable membership receipts.” Regulation (f)(4) provides three methods for determining the share of membership receipts which should be deemed to constitute a member’s payment for the right to receive the periodical. Only the third method of calculating allocable membership receipts is applicable to JAMA and AM News. That method is described as a “pro rata allocation.”
Since it may generally be assumed that membership receipts and gross advertising income are equally available for all of the exempt activities (including the periodical) of the organization, the share of membership receipts allocated to the periodical, where [methods 1 and 2] do not apply, shall be an amount equal to the organization’s membership receipts multiplied by a fraction the numerator of which is the total periodical costs and the denominator of which is such costs plus the costs of other exempt activities of the organization.
Reg. 1.512(a)-l(f)(4)(iii). Therefore, the amount of dues to be allocated to circulation income under the pro rata allocation method equals total membership receipts multiplied by the ratio of total periodical costs to the costs of all exempt activities.
The AMA raises a number of challenges to the validity of these allocation rules, and to the IRS’s application of these principles in this case. However, before discussing the AMA’s arguments in detail, it is worth noting that the AMA’s goal throughout this litigation has been to reduce, to the maximum extent allowable, its tax liability from its “unrelated” advertising business. Therefore, the AMA would like to decrease the amount of its (taxable) advertising income by increasing the expenses (labelled “direct advertising costs”) which are fully deductible from advertising income. And, since any loss attributable to the readership content of JAMA and AM News is also deductible from advertising income (in something of a departure from strict application of the “fragmentation” principle), the AMA is also interested in producing a loss on the readership side of the journals. Such a loss may be created, in part, by decreasing the amount of circulation income derived through the allocation of membership dues to circulation income in the form of a hypothetical subscription price which members pay (as part of their total membership dues) for the right to receive the journals.
The AMA argues, most generally, that the allocation regulations are invalid because the IRS did not comply with the notice and comment requirements of the Administrative Procedure Act (the “APA”) in promulgating the rules. In the alternative, the AMA urges that the regulations are invalid because they conflict with the statutory provisions governing the unrelated business income tax.
The AMA also makes a series of fact-specific arguments. First, it argues that membership dues which were placed in the “association equity” reserve account, and which were not employed to cover current expenses in the tax years in question, should not have been included in “membership receipts” for the purpose of determining the allocation of membership dues to circulation income. The AMA’s next two arguments relate to its practice of distributing complimentary copies of JAMA and AM News as part of its “controlled circulation.” The AMA argues, first, that the cost of producing the articles in these complimentary copies (which would normally be considered “readership costs” and deductible only from tax-exempt circulation income) should be considered “direct advertising costs” since the AMA’s sole purpose in distributing these copies was to promote its advertising business. Second, the AMA argues that the dues of physicians who were AMA members, but who were entitled to receive the journals anyway due to their membership in the control groups, should not be included in allocable membership receipts, since it is absurd to suggest that these physicians paid for a journal which they would have received free of charge in any case.
The district court accepted the AMA’s arguments in substantial part. In its first opinion, the court held that the costs of producing the editorial content of journals distributed free of charge to promote the AMA’s advertising business were “direct advertising costs” directly deductible from advertising income. 668 F.Supp. 1085, 1094-96 (N.D.Ill.1987). The court also ruled that the dues placed in the AMA’s “association equity” account should not have been considered current membership receipts, and therefore no portion of these payments should have been allocated to circulation income in the year received. Id. at 1096-97. Finally, the court ruled, contrary to the AMA view, that the dues received from AMA members who were also members of the control group were to be included in the dues allocated to circulation income. Id. at 1097-98.
The court’s second opinion rejected the AMA’s argument that the allocation rules were inconsistent with the governing provisions of the tax code. 668 F.Supp. 1101, 1102-04 (N.D.Ill.1987). However, the court found the regulations invalid because their promulgation did not comply with the notice requirements of the APA, since the final allocation rules adopted “an entirely different approach to the determination of allocable membership receipts” than the initial proposal. Id. at 1104-06. Since the court concluded that it was impossible to determine the AMA’s tax liability without the benefit of any (valid) allocation rules, the action was stayed to allow the IRS to promulgate new allocation rules in a manner consistent with the APA. Id. at 1107-08.
The district court's third opinion, 688 F.Supp. 358 (N.D.Ill.1988), rejected the Government’s petition for reconsideration of the court’s APA ruling. The court held that the Government had waived the argument that the allocation rules were not subject to the notice-and-comment provisions of the APA since the rules were “interpretative,” rather than “legislative.” See 5 U.S.C. § 558(b)(A), (d)(2). Following this rebuff the Government refused to re-promulgate the allocation rules. Therefore, in its fourth opinion, the court granted the AMA a refund in the full amount requested in the complaint. 691 F.Supp. 1170 (N.D.Ill.1988).
II.
The AMA argues most generally that the rules governing the allocation of a portion of membership dues receipts to circulation income are invalid because the public did not receive adequate notice of the IRS’s regulatory intentions before the final rules were issued. The AMA contends that the inadequate notice violated section 553(b)(3) of the APA, which requires an agency proposing a new rule to include in the notice of proposed rulemaking (the “NPR”) “either the terms or substance of the proposed rule or a description of the subjects and issues involved.” 5 U.S.C. § 553(b)(3).
The allocation rule finally adopted, see 26 C.F.R. § 1.512(a)-l(f)(4), provides three methods for determining the portion of membership dues which will be allocated to circulation income. (In essence, these allocation rules are meant to determine a hypothetical subscription price which members of a charitable organization pay for the organization’s journals as part of their single, undivided dues payment.) First, if 20% or more of the journal’s circulation consists of sales to nonmembers, then this arms-length sale price is deemed to be the price paid by members. Reg. (f)(4)(i). If this first method does not apply, and 20% or more of the association’s members elect not to receive the journal in exchange for a reduction in their dues assessment, the amount of the dues reduction is determined to be the imputed price of the journal to members who receive it. Reg. (f)(4)(ii). Finally, if these two allocation methods are inapplicable, the allocable portion of membership dues is calculated by determining the ratio of the association’s costs for producing the journal in relation to the cost of all of the association’s exempt activities. The regulation then prescribes that alloca-ble membership dues bear the same relationship to total dues receipts as the proportion of the costs of the journal to the cost of all activities. This is the “pro rata allocation method” of regulation (f)(4)(iii). These three allocation rules are apparently the exclusive methods of determining allo-cable membership receipts under the final rule.
In contrast to the ironclad, exhaustive methodology of the final version, the proposed allocation rule enumerated seven factors which would be considered in allocating dues receipts to circulation income. 36 Fed.Reg. 18,316, 18,318-20 (1971). The NPR specifically stated that other factors beyond those mentioned would be considered where appropriate. Id. at 18,318. Moreover, the third of the seven factors listed in the proposed rule provided that:
The fact that a taxable organization issues a periodical which is comparable to an exempt organization periodical and makes a practice of distributing substantially all of its circulation at no charge is substantial evidence that none of the membership receipts of the exempt organization are allocable to its periodical.
Id. The AMA believes that this (never-promulgated) provision would have permitted it to allocate no membership receipts to circulation income, since the AMA’s taxable competitors distribute most of their periodicals through complimentary controlled circulation. However, under the final rule’s pro rata allocation method, the IRS allocated approximately $33 per member, or almost $6 million, to circulation income.
The district court concluded that the final rule adopted “an entirely different approach to the determination of allocable membership receipts” and “deviated so drastically” from the NPR that the final rule was invalid due to the inadequacy of the notice of the terms of the final rule. 668 F.Supp. at 1105-06. We agree with the district court that the final rule indeed worked a substantial change to the NPR: gone is the flexible, case-by-case “totality of the circumstances” approach of the original proposal; in its stead the IRS has substituted a limited set of precise rules which must be applied in all cases. But we do not agree with the district court’s holding that this change in approach (which was occasioned by the numerous criticisms of the NPR’s vagueness and malleability) renders the rule invalid under the APA.
Two types of notice of proposed rules are authorized by section 553: either notice which specifies the “terms or substance” of the contemplated regulation or notice which merely identifies the “subjects and issues involved” in the rulemaking proceeding inaugurated by the notice. Thus the statutory language makes clear that the notice need not identify every precise proposal which the agency may ultimately adopt; notice is adequate if it apprises interested parties of the issues to be addressed in the rule-making proceeding with sufficient clarity and specificity to allow them to participate in the rulemaking in a meaningful and informed manner. Stated another way, a final rule is not invalid for lack of adequate notice if the rule finally adopted is “a logical outgrowth” of the original proposal.
That an agency changes its approach to the difficult problems it must address does not signify the failure of the administrative process. Instead, an agency’s change of course, so long as generally consistent with the tenor of its original proposals, indicates that the agency treats the notice-and-comment process seriously, and is willing to modify its position where the public’s reaction persuades the agency that its initial regulatory suggestions were flawed. As Judge Leventhal explained,
[t]he requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs' from the rule it proposed, partly at least in response to submissions.... A contrary rule would lead to the absurdity that in rulemaking under the APA the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary.
International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 632 & n. 51 (D.C.Cir.1973).
Of course, in this context the enunciation of general legal principles is not especially helpful. The adequacy of notice in any case must be determined by a close examination of the facts of the particular proceeding which produced a challenged rule. However, without reciting in detail the facts of other cases, we note that courts have upheld final rules which differed from proposals in the following significant respects: outright reversal of the agency’s initial position; elimination of compliance options contained in an NPR; collapsing, or further subdividing, distinct categories of regulated entities established in a proposed rule; exempting certain entities from the coverage of final rules; or altering the method of calculating or measuring a quantity relevant to a party’s obligations under the rule.
On the other hand, a rule will be invalidated if no notice was given of an issue addressed by the final rules. Moreover, courts have held on numerous occasions that notice is inadequate where an issue was only addressed in the most general terms in the initial proposal, or where a final rule changes a pre-existing agency practice which was only mentioned in an NPR in order to place unrelated changes in the overall regulatory scheme into their proper context.
The crucial issue, then, is whether parties affected by a final rule were put on notice that “their interests [were] ‘at stake’ ”; in other words, the relevant inquiry is whether or not potential commentators would have known that an issue in which they were interested was “on the table” and was to be addressed by a final rule. From this perspective it is irrelevant whether the proposal contained in the NPR was favorable to a particular party’s interests; the obligation to comment is not limited to those adversely affected by a proposal. “[AJpproval of a practice in a proposed rule may properly alert interested parties that the practice may be disapproved in the final rule in the event of adverse com-merits.” Even a favorable proposal should notify an interested party that a particular issue has been opened for discussion. The publication of a proposed rule does not forever bind the agency to the approach contained in the NPR; if interested parties favor a particular regulatory proposal, they should intervene in the rule-making to support the approach an agency has tentatively advanced.
Judged by these standards, it is clear that the AMA received adequate notice of the IRS’s proposed regulations on the allocation of membership dues to circulation income. The approach finally adopted by the IRS, while substantially different from the NPR, was a “logical outgrowth” of the original proposal. The final rule dealt with the identical issue of dues allocation, merely altering the allocation regime to assure greater consistency and fairness. The allocation rules finally adopted were not a wholly new approach to the issue of dues allocation. Instead the final rule was “contained” in the proposed version, and merely eliminated some of the alternative calculation methods specified in the NPR. Thus all aspects of the final rule were available to the public for comment. Moreover, the possibility that membership dues might be imputed in part to a tax-exempt organization’s periodicals was an issue which had not previously been addressed by IRS regulations or established practice. The NPR for the first time dealt with an issue of great importance to organizations like the AMA. All such organizations must have recognized that the IRS was writing on a clean slate; the AMA cannot argue that it relied on established past practice as a justification for its non-participation. The AMA’s sole explanation for its failure to comment is that the rule as initially proposed looked fine to it, and therefore the association saw no need to intervene in the rulemaking. But as we have seen, an agency’s proposed rule is merely that, a proposal. While an agency must explain and justify its departures from a proposed rule, it is not straitjacketed into the approach initially suggested on pain of triggering a further round of notice-and-comment. The AMA was given a meaningful opportunity to comment on the IRS’s dues allocation rules, and those rules will not be invalidated for lack of proper notice.
III.
The AMA also contends that the allocation rules are inconsistent with the Code sections governing the unrelated business income tax. The regulations establish a dichotomy between “direct advertising costs” and “readership costs”; readership costs (those expenses associated with the production and distribution of the editorial content of a periodical) are not fully deductible from advertising income. The AMA argues that the readership content of its journals contributes to the production of advertising revenue; to the extent the regulations prohibit the deduction of readership costs directly from advertising income, they are inconsistent with the statutory mandate that expenses “directly connected with” an unrelated business should be fully deductible. See § 512(a)(1). The AMA also contends that the allocation rules are invalid because they ignore competitive factors in allocating membership receipts to circulation income. According to the AMA the overriding purpose of the unrelated business income tax was to equalize competition between taxable and tax-exempt entities operating similar enterprises; to the extent the regulations prohibit the AMA from demonstrating that the subscription price charged by its competitors is lower than the result of the pro rata allocation method, the regulations impermissibly depart from the “competition-equalizing” purpose of the statute.
At the outset we note that the Supreme Court has indicated that courts should generally defer to the IRS’s interpretation of the Internal Revenue Code in regulations meant to implement the Code’s provisions. Treasury regulations “ ‘ “must be sustained unless unreasonable and plainly inconsistent with the revenue statutes,” and “should not be overruled except for weighty reasons.” ’ ” “The choice among reasonable interpretations is for the Commissioner, not the courts.” National Muffler Dealers Ass’n, Inc. v. United States, 440 U.S. 472, 488, 99 S.Ct. 1304, 1312, 59 L.Ed.2d 519 (1979); Chevron USA Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d 694 (1984).
The regulations related to the deductibility of a periodical’s expenses generally parrot the statutory language. The statute states that expenses are fully deductible from taxable income if they are “directly connected with” the conduct of the unrelated business; the regulation similarly provides that “direct advertising costs,” which are fully deductible, are those costs which are “directly connected with the sale and publication of advertising.” Reg. 1.512(a)-l(f)(6)(ii)(a). So far, there would not appear to be any problem.
However, the regulation goes on to state that “readership costs,” (those costs which are “directly connected with the production and distribution of the readership content of the periodical”), are only deductible from advertising revenues to the extent that those costs exceed circulation income; i.e., only to the extent that the editorial side of the journal produces a “loss.” Reg. 1.512(a)-l(d)(2), (f)(1). These are the provisions with which the AMA vigorously disagrees. For as the AMA sees things, the readership content of a journal contributes to its publisher’s ability to sell advertising — a journal with high-quality articles is presumably more widely read and advertisers are accordingly more likely to place ads for their products in such a periodical. By failing to take account of the symbiotic relationship between advertising and editorial content, the regulation impermissibly fails to allow the deduction of costs which are in reality “directly connected with” the sale and publication of advertising.
While the AMA’s argument is perhaps minimally plausible, we do not believe the AMA has carried the heavy burden of demonstrating that the IRS’s contrary approach is “plainly inconsistent” with the tax code. First, we note that the AMA’s position here is somewhat ironic — the AMA has been accorded a tax exemption for the readership content of its journals because the publication of a periodical furthers the organization’s charitable purposes by disseminating knowledge to its members. The AMA (and many other tax-exempt organizations) initially argued that even the advertising revenue of its periodicals was tax exempt, because the advertising subsidized the readership content of the journal and thereby contributed to the organization’s exempt purposes. That position was ultimately defeated by the addition of section 513(c) to the Code, and the decision in United States v. American College of Physicians, 475 U.S. 834, 106 S.Ct. 1591, 89 L.Ed.2d 841 (1986). The AMA now essentially reverses its position, portraying its journals as, in large part, vehicles for advertising, and seeks to have a portion of editorial costs deducted directly from taxable advertising income.
Certainly, the AMA makes a valid point that the editorial content of its journals contributes in some manner to the success of the advertising business. Presumably few AMA members would read, and therefore few advertisers would advertise in, a journal which was one-hundred percent advertising. However, it is entirely plausible to label this general benefit which the articles confer on the advertising “indirect” (and therefore not fully deductible from advertising revenue), especially when advertising is viewed (as it must be under the “fragmentation” principle, see section 513(c) of the Code) as a separate and independent enterprise. The costs of producing the readership content of the AMA’s journals is most directly connected with the editorial “business” of the journals; these costs are attributable only indirectly to the other business (advertising) which the AMA also conducts within the confines of a single periodical. See Reg. 1.512(a)-l(a) (“to be ‘directly connected with’ the conduct of unrelated business for purposes of section 512, an item of deduction must have proximate and primary relationship to the carrying on of that business”). If two businesses occupy a single building, and one business increases its sales volume, thereby increasing the customer traffic through the common building, benefitting the second, independent enterprise, we would without hesitation label the effect on the latter business “indirect.” The situation of the AMA’s publications is identical — the AMA essentially carries on two separate businesses “under the same roof”; when one business does well and increases the allure of the building as a whole to customers, the effect on the second business is “indirect” and therefore the first enterprise’s expenses are not immediately deductible from the latter’s income. It is certainly reasonable for the IRS to have concluded that, in general, “readership costs” of the AMA’s periodicals are not “directly connected with” the conduct of the AMA’s advertising business.
The AMA argues that the Second Circuit’s decision in Rensselaer Polytechnic Institute v. Commissioner, 732 F.2d 1058 (1984), requires that the AMA be allowed to deduct some portion of readership costs from advertising income. Rensselaer involved a fieldhouse operated by a tax-exempt educational institution. The field-house was used for both tax-exempt, student events (e.g., college athletics), and for commercial functions, such as commercial ice shows. The staging of commercial events at the fieldhouse constituted an “unrelated business.” The allocation question before the Second Circuit involved certain “fixed costs” of operating the structure— repairs, depreciation, salaries of fieldhouse personnel, etc. The court held that those fixed expenses should be allocated to the school’s tax-exempt and taxable businesses based on the number of hours for which the fieldhouse was used for each activity, since the fixed costs were attributable to both student and commercial events. Id. at 1061-62; see also Disabled Am. Veterans v. United States, 704 F.2d 1570, 1573-74 (Fed.Cir.1983).
Rensselaer is distinguishable from this case. Rensselaer involved the cost of goods or services which actually benefited both the tax-exempt function and the unrelated trade or business.. Rensselaer would control the present case if the AMA wished to apportion the costs of a printing press, paper stock or employees used in both the editorial and advertising businesses based on the extent to which each business employed the common resource. Such an apportionment would clearly be proper, since the expense benefited both activities in some measure.
But Rensselaer does not address the independent question whether, assuming costs are directly tied to only one activity, those costs may still be deductible from the other activity, because the activities themselves benefit each other in some undefined fashion. In Rensselaer the school did not argue that a portion of the costs of its student functions should be deducted from its taxable income because staging student events promoted commercial leasing by demonstrating to the entertainment industry that the fieldhouse was an attractive venue fully capable of handling major events. (As a factual matter, such an argument might well be accurate — commercial promoters would doubtless be hesitant to stage a major entertainment event in a stadium which was seldom used, and with which the local audience was unfamiliar.) We have no doubt that, if such an argument had been presented, the Second Circuit would have rejected it for the same reasons we reject the AMA’s argument here — while one activity may benefit the other in some generalized way, that beneficial effect is more properly viewed as only “indirectly connected” to the benefited business.
The AMA also contends that the regulations are invalid because they ignore the situation of the AMA’s taxable competitors in determining the portion of membership dues receipts to be allocated to circulation income. The AMA argues that the approach of the regulations is inconsistent with the fundamental purpose of the unrelated business income tax, which was to equalize competition between taxable and tax-exempt organizations plying the same trade. The AMA argues that this “competition-equalizing” goal can be attained only by placing the AMA’s journals on the “same [i.e., identical] tax basis” as its commercial competitors. The simple answer to this argument is that, although the equalization of competition was indeed a major goal of the unrelated business tax, Congress never intended to place tax-exempt organizations on a tax basis identical to that of their commercial competitors. Congress instead endorsed the “fragmentation” principle, whereby a charity’s periodicals are divided into two components. In light of Congress' adoption of the “fragmentation” concept, it is not possible to place the AMA’s journals on an identical footing with competing publications. Taxable publications labor under no “fragmentation” requirement; there is no need for a taxable publisher to segregate its income or expenses into components, some taxed, others not. A commercial publisher is taxed on all aspects of its business. Therefore, although it is certainly instructive to recall the purposes underlying the enactment of the unrelated business income tax, direct analogies to the tax treatment of commercial publishers are of limited assistance in deciding specific allocation questions involving tax-exempt organizations.
Moreover, while the equalization of competition between taxable and tax-exempt entities was a major goal of the unrelated business income tax, it was by no means the statute’s sole objective. As the Fifth Circuit concluded after conducting a detailed examination of the legislative history of the unrelated business income tax, “although Congress enacted the predecessors of section 511-513 to eliminate a perceived form of unfair competition, that aim existed as a corollary to the larger goals of producing revenue and achieving equity in the tax system.” Louisiana Credit Union League v. United States, 693 F.2d 525, 540 (5th Cir.1982); see also Rensselaer, 732 F.2d at 1063-64 & n. 2 (Mansfield, J., dissenting). This interpretation of the unrelated business income tax should not be constrained by a narrow focus on only one of several objects which motivated Congress to enact the tax.
We will not second-guess the IRS’s decision to eliminate from its proposed rules the allocation method using as a benchmark periodicals of comparable taxable enterprises in computing the portion, if any, of a charitable organization’s membership dues to be considered an implicit subscription payment. The IRS could reasonably conclude that the efforts required to attempt to determine whether another publication was “comparable” were not worthwhile. This is true especially if, as in the final rule here, allocable membership receipts could be determined using factors internal to the charity, such as the relation of periodical costs to the cost of all exempt activities. Although the AMA’s alternative allocation approach is also reasonable (and in fact was included in the IRS’s initial proposal), it is for the IRS to choose among a number of rational approaches to a difficult question of income measurement. We therefore conclude that the IRS regulations governing the allocation of membership dues to circulation income are not inconsistent with the relevant provisions of the Internal Revenue Code.
IV.
The AMA argues that membership dues which it placed in an “association equity” account should not have been counted as current membership receipts in order to determine the amount of membership dues which should be considered a member’s payment for the right to receive the AMA’s periodicals. The amounts paid into the association equity account were not used to meet the AMA’s expenses in the tax years in question, but were instead employed as a reserve fund to meet possible future operating deficits. The parties stipulated that the amounts placed in this reserve were in fact not employed by the AMA to compensate for revenue shortfalls until the 1985 tax year.
The IRS regulation outlining the “pro rata allocation method” for membership dues states that this method for determining an imputed subscription price for a charity’s publications rests on the assumption “that membership receipts and gross advertising income are equally available for all of the exempt activities (including the periodical) of the organization.” Reg. 1.512(a) — l(f)(4)(iii). Where membership receipts are not employed to meet current expenses (and are not, in fact, even “available” to pay current expenses due to a self
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
In an earlier decision in this proceeding, this court denied enforcement of the bargaining order of the Board. Pepper & Tanner, Inc. v. N. L. R. B., 474 F.2d 1256 (6th Cir. 1973). In that case, the Board had ordered the company to bargain collectively with Local Union 1275, International Brotherhood of Electrical Workers, AFL — CIO. It appeared that Local Union 1275 was no longer in existence, having merged into Local 474.
We said:
This court is unwilling to enforce a bargaining order requiring the Company to bargain with a union which the record indicates is no longer in existence. Neither are we willing to require the Company to bargain with a successor or merged Union when there has been no adjudication by the Board, supported by substantial evidence, that the successor or merged union is the authorized bargaining representative of the employees in the appropriate unit. 474 F.2d at 1257.
The case was remanded to the Board with directions to hear evidence and make a determination as to whether Local 1275 is still in existence and, if not, whether there is a successor or merged Union which is the duly certified and authorized collective bargaining representative of the employees in the appropriate unit. If necessary, the Board was directed to conduct a Board-supervised election to determine the latter issue.
In a supplemental decision and order, reported at 212 N.L.R.B. No. 72, the Board concluded that Local 474 is the legal successor to Local 1275 and, as such, is the authorized bargaining representative of the company’s employees.
Member Kennedy strongly dissented, asserting that the decision of the majority “violates the most elementary principle that the purpose of the Act is the protection of the rights of employees to organize and select their own bargaining representatives.”
We conclude that substantial evidence on the record considered as a whole does not support the finding that the successor or merged union is the authorized representative of the employees in the appropriate unit.
Enforcement of the order of the Board is denied. The costs of this review are taxed against the National Labor Relations Board.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PAGE, Circuit Judge.
This is an appeal and a cross-appeal by the parties to a bill, filed by Barger (appellant in No. 4131 and appellee in No. 4144), trustee in bankruptcy of the estate of Alton W. Downs and here called appellant, against the National Discount Corporation (appellee in No. 4131 and appellant in No. 4144), here called appellee, to recover for the bankrupt estate property taken by appellee from bankrupt within four months of bankruptcy.
Certain of the property was taken under a chattel mortgage and subsequently sold for $900, which it is agreed was the fair value thereof. The court held against appellee on the chattel mortgage transaction, and decreed payment to appellant of $900, plus $180, cash paid by bankrupt at the time the mortgage was given. From that order, appellee appealed.
The other matters complained of in the bill, with the exception of a payment of $350 by cheek, at the time the chattel mortgage was made, grew out of transactions under conditional sales contracts. As to those transactions and the assignment of the $350 check, the decree was. favorable to appellee, and appellant appealed.
Courts, reviewing cases on appeal, should be slow to overturn the conclusions of the trial court upon the facts, particularly where the master,' who heard the witnesses, and the judge agree.
In this case, we are satisfied that appellee had abundant notice of the probable insolvency of Downs when the chattel mortgage was taken. It is not claimed that the sales contracts with Downs were void, but only that the method of handling the business under them was improper.
We are of opinion that the evidence fairly supports the finding of the master, favorable to appellant, as to the cash payment of $180, and the conclusion, favorable to appellee, as to the payment of $350, made by check at or about the time of giving the mortgage, and that the appellee was entitled, under the sales contracts, to the cars taken from bankrupt.
The decree is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
CHOY, Circuit Judge:
Lawrence Olson appeals his conviction for refusal to submit to induction. We affirm.
On October 11, 1966, Olson enrolled in Shasta Junior College and subsequently received a II-S student deferment. In 1967, he transferred to Cabrillo Junior College, and the II-S was continued. At the completion of his second year in college, his first at Cabrillo, Olson had completed 58% units, which fell short of the 60 units required by Cabrillo for junior college graduation after two years.
In December, 1968, Olson’s Local Board found that he was not “satisfactorily pursuing a full-time course of instruction” within the meaning of 32 C.F.B. sec. 1625.25 and reclassified him I-A. One day after the expiration of the thirty-day appeal period, Olson asked for an appeal and a personal appearance before the Board. The Board granted the appeal, but refused a personal interview. The I-A was upheld on appeal, and Olson was ordered to report for induction. He failed to do so, and was reordered to report. He did so, but refused to take the symbolic step forward. Olson was then indicted and convicted.
The Local Board was correct in revoking Olson’s II-S and reclassifying him I-A. Olson enrolled in a two-year college in October, 1966, and in October, 1968, should have completed the full 60-credit program required to graduate. He did not. Olson had four years from 1966 to obtain his baccalaureate degree; the letter sent by Tahoe College in 1969, attesting that he was enrolled as a full-time third-year student at that institution and would graduate in 1971, confirmed that he could not do so.
The Selective Service System recognizes that the four-year requirement need not be rigidly applied when a student transfers from a junior or community college to a four-year school. Local Board Memorandum No. 43, issued by the Director of Selective Service, provides :
“When a registrant transfers from a junior college or community college to a degree granting institution, and loses credit through no fault of his own, he may have less than the percent of course completion required in Regulation) 1625.25(c). * * * The local board may, in its discretion, grant a II-S deferment for the first year after transfer. * * * ”
But this Memorandum does not help Olson. First, the II-S deferment is discretionary with the Local Board. It need not be given. Second, the Memorandum applies only when a registrant transfers from a junior to a four-year institution and loses credit in that transition. Olson lost his credits in his move from Shasta Junior College to Cabrillo Junior College, or during his enrollment at either school. Finally, Olson has not proved that he lost his credits through no fault of his own.
Whether a student is “satisfactorily pursuing a full-time course of instruction” is a question of fact. In resolving that question, the main source of information and evidence is generally the college administration. “When a college cannot certify that the registrant is expected to graduate on time, certainly a local board would have a basis in fact for terminating the [II-S] deferment.” Coleman v. Tolson, 435 F.2d 1062, 1064 (4th Cir., 1970). Olson could not graduate in time. The Local Board was correct in revoking his II-S. United States v. Brooks, 415 F.2d 502 (6th Cir., 1969).
There is no evidence in the record to indicate that the Board’s refusal to reopen Olson’s classification when it received the Tahoe College letter was punitive in nature. Since Olson had not presented a prima facie case warranting reopening his classification, the Board’s refusal to do so was not illegal.
Finally, Olson cites United States v. Karlock, 427 F.2d 156 (9th Cir., 1970), and urges that once the Board had waived the thirty-day appeal requirement and allowed his appeal, it was also obligated to grant him a personal appearance. We find Karlock distinguishable. Karlock brought a new classification request to his board’s attention; and once it had agreed to entertain that new classification request, it had an obligation to afford the registrant an opportunity for both local and appeals board review. Here, Olson was continuously contesting the validity of the revocation of his II-S. To extend Karlock to such a situation is unwarranted. The Board’s decision here to bestow one benefit does not require it to bestow another.
Affirmed.
. (a) In Class II-S shall be placed any registrant who has requested such deferment and who is satisfactorily pursuing a full-time course of instruction at a college, * !! * such deferment shall continue until such registrant * * * fails to pursue satisfactorily a full-time course of instruction. * * *
(b) A student shall be deemed to be “satisfactorily pursuing a full-time course of instruction” when, during his academic year, lie has earned, as a minimum, ei'edits toward his degree which, when added to any credits earned during prior academic years, represent a proportion of the total number required to earn his degree at least equal to the proportion which the number of academic years completed bears to the normal number of years established by the school to obtain such degree. For example, a student pursuing a four-year course should have earned 25% of the credits required for his baccalaureate degree at the end of his first academic year, 50% at the end of his second academic year, and 75% at the end of his third academic year.
. Nor dill the Tahoe College letter constitute a prima facie case warranting reopening Olson’s classification. 32 C.F.R. sec. 1625.4; Mulloy v. United States, 398 U.S. 410, 90 S.Ct. 1766, 26 L.Bd.2d 362 (1970). The letter confirmed the fact that Olson had not completed his second academic year according to the terms of the Regulations. Since Olson’s academic year terminated in October, 1968, United States v. Brandt, 435 F.2d 324 (9th Cir., 1970), a prima facie case would have to show that at that time Olson had completed 50% of the credits needed to graduate in 1970. The Tahoe College letter did not show that.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
The state eourt, having appointed a receiver for the Louisville Trust Company, terminated the receivership upon a plan of reorganization being carried into effeet. Appellant appeared in such proceeding and objected to the termination of the receivership. His objections were overruled and he appealed to the Court of Appeals of 'Kentucky, where the decree of the lower eourt was affirmed. Thereupon he instituted the present action in the District Court, suing in behalf of himself and all others similarly situated and claiming that the judgment of the Court of Appeals of Kentucky, affirming the decree of the circuit court of that state, deprived plaintiff of his property without due process of law in violation of the Fourteenth Amendment to the Constitution of the United States. No other ground of jurisdiction appearing, plaintiff’s appeal wa$ dismissed upon appropriate motion.
We are not here concerned with the merits of plaintiff’s other contentions, viz., that he is entitled to restitution of certain trust funds alleged to have been illegally invested by the appellee and to the appointment of a receiver to effeet such restitution. No contention was made that the state courts did not have jurisdiction in originally appointing the receiver or in the conduct of such receivership, including its termination. The only contention is that in the exercise of such jurisdiction the state eourt erred in granting the relief sought by other parties to such action and in denying relief to appellant. Under such circumstances the District Court has no jurisdiction to entertain an action on appellant’s behalf in effect to set aside the judgments of the state courts whether such judgments involved the decision of constitutional questions or otherwise. Rooker et al. v. Fidelity Trust Co. et al., 263 U. S. 413, 44 S. Ct. 149, 68 L. Ed. 362.
Affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
GARRECHT, Circuit Judge.
Consolidated Timber Company, a Washington corporation, is engaged in logging and lumbering in Oregon and has its headquarters at Glenwood, Oregon. It employs a logging crew and also has contracts with smaller companies which log part of its property and deliver logs to it at specified places. Some of the logs cut by Consolidated and its contracting companies are sold to mills in Washington County, Oregon, but the larger percentage of logs are sold to saw mills in Oregon and Washington. All sales are made and completed within the state of Oregon. The logs are then manufactured into lumber by the purchasing mills and in each instance at least 70 per cent, of the lumber manufactured from said logs moves in interstate commerce.
Between October 24, 1938, and June 28, 1940, Consolidated operated at Glenwood, Oregon, what is known in logging parlance as a cookhouse, which consisted of a kitchen and dining room in a building separate and apart from the other buildings of the Company. Cookhouse facilities were available to Consolidated’s employees, to employees of contracting companies, and to the general public. Consolidated’s employees were not, however, compelled to take their meals at the cookhouse; many of them lived in Glenwood and ate at home; further, the court found that the greater proportion of the Company employees took their meals elsewhere than at the Glenwood cookhouse. Many of the regular diners were employees of contracting companies, and an average of ten meals a day (that is, to an average of three plus persons) were served to strangers — the general public. There were, in addition, six persons who were employed in other businesses in Glenwood who regularly took their meals at this cookhouse. Meals served to these persons, to the general public, and to the employees of companies under contract to Consolidated were paid for in cash; those taken by Consolidated employees were paid for by deductions out of wages. Consolidated employees were charged approximately ten per cent, less per meal than were those who paid in cash. This is accounted for in an agreement between an employers’ association, of which Consolidated was a member, and the employees’ union, to the effect that cookhouses in the logging area be operated as self-sustaining, but without profit, that is, at cost.
The Company also operated another cookhouse, subsequent to June 10, 1940, at a point located approximately seventeen miles southwest of Glenwood, known as Camp 2. This cookhouse, which also consists of a dining room and kitchen, is also in a building separate from the other Company buildings at Camp 2. Its facilities are used by substantially all of Consolidated’s employees at Camp 2, and it is the only practicable eating facility at said Camp. The employees are not, however, required to eat there, and occasionally, though rarely, some do go into Glenwood, seventeen miles distant. The cookhouse is used, as well, by employees of companies under contract to Consolidated and a few of the general public who might visit Camp 2. Meals are paid for at the same rates, and in the same manner, as at Glenwood.
Consolidated Timber Company employs from 275 to 315 employees, all of whom, except salaried employees, engage in its logging operations on a forty hour week basis (since October 24, 1938) and are paid at the rate of time and one-half for all time in excess thereof. A limited number of persons, including some employed in the cookhouses, are employed by the Company at an agreed monthly wage. Although logging operations are carried on only five days a week, the cookhouses are customarily kept open seven days a week, operated by a skeleton crew on the “off-days,” for the convenience of those who use them even when logging operations are interrupted.
Ivan Womack, plaintiff below, was employed as a bakér in one of the aforesaid cookhouses at a monthly salary of $125, plus room and board of a reasonable value of $45 a month. Womack filed a complaint in the district court against Consolidated Timber Company, under the provisions of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 29 U.S.C.A. §§ 201-219, claiming that from October 30, 1938, to the date of the complaint he did work or was compelled to work overtime hours in excess of number of hours- prescribed in said Act as the length of the workweek; that he was not informed of the precise number of overtime hours he was compelled to work, but that such information was in the possession of the defendant. He prayed judgment for the overtime pay which he alleged he was entitled to as liquidated damages, and also for attorney fees.
The complaint was framed in five causes of action. The first we have just outlined; the remaining four were similar in allegation and prayer, save that in each instance the named employee was a different person, although the employer was the same. The amount sought to be recovered varied in each cause of action. Each of the individuals named in each of the latter four causes of action had assigned his claim to the plaintiff, Ivan Womack.
The answer of the defendant, Consolidated Timber Company, admitted the employment, operation of the logging business, and maintenance of the cookhouses, but denied that the plaintiff or his assignors were engaged in the production of goods for commerce within the meaning of the provisions of the statute sued under. It further alleged that if the employment was within the Act, it was specifically exempted by Section 13(a) (2) thereof.
The facts were stipulated to prior to trial, which was had before the court without a jury. The trial judge rendered an opinion (D.C., 43 F.Supp. 625), as a result of which he determined that the cookhouse located in the town or village of Glenwood was a retail or service establishment and, therefore, exempt, but that the cookhouse at Camp 2 was “an adjunct to the production of goods and employees therein are assisting in that process” and within the Act. Findings of fact ánd conclusions of law were entered, and decree filed in accordance therewith.
Consolidated appeals, contending, first, that the employees in a logging camp cookhouse are not engaged in the production of goods for commerce withirwthe meaning of Section 7(a) (2) of the Fair Labor Standards Act and, secondly, that the logging camp cookhouse at Camp 2 is a retail or service establishment within the meaning of Section 13(a) (2) of the Act and that the provisions of Sections 6 and 7 of the said Act, relating to hours of labor, are not applicable.
Cross appeal is taken by Womack, who urges that the cookhouse at Glenwood is not a retail or service establishment and that the provisions of Sections 6 and 7 of the Act apply.
It is perhaps unnecessary for us to comment that both parties appear desirous of upholding that part of the decision of the lower court which is in their favor.
For the record, and solely in the interest of clarity, we pause here to observe that the amount in controversy in each cause of action falls far below the ordinary minimum jurisdictional amount of $3,000 exclusive of interest and costs prescribed by 28 U.S.C.A. § 41(1) ; when aggregated the claims total approximately $2,600, also under the required amount. Subdivision (8) of said Section 41, however, vests in the District Court original jurisdiction of “all suits and proceedings arising under any law regulating commerce.” This subdivision confers jurisdiction in the said court of the instant case, regardless of the amount involved, or of diversity of citizenship, for that matter. Mulford v. Smith, 307 U.S. 38, 46, 59 S.Ct. 648, 83 L.Ed. 1092.
Section 6 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1062, prescribes the minimum wages which may be paid an employee. Section 7 of said Act sets out the maximum hours which an employer shall employ any of his employees “engaged in commerce or in the production of goods for commerce” during a workweek, “unless such employee receives compensation for his employment in excess of the hours * * * specified at a rate not less than one and one-half times the regular rate at which he is employed.” Section 13(a) (2) provides: “The provisions of sections 6 and 7 [sections 206 and 207 of this title] shall not apply with respect to * * * (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce; * * *.”
The first question to be answered is whether the employees here involved were engaged in commerce or in the production of goods for commerce as that phrase is used in Section 7(a) of the Fair Labor Standards Act of 1938, 52 Stat. 1060. Section 3(j) of the said Act, after defining the word “produced” as meaning “produced, manufactured, mined, handled, or in any other manner worked on in any State,” provides that “for the purposes of this Act [chapter] an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing * * *, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.”
Since a high percentage of the goods handled or “produced” by Consolidated is destined to, and does, move in interstate commerce, we are satisfied, and it is not to our knowledge contended otherwise, that the loggers (using that term in its general connotation, and not in the vernacular) employed by Consolidated are engaged in the production of goods for commerce. United States v. Darby, 312 U. S. 100, 117, 118, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; Hamlet Ice Co. v. Fleming, etc., 4 Cir., 127 F.2d 165, 170; Enterprise Box Co. v. Fleming, etc., 5 Cir., 125 F.2d 897, 899; Warren-Bradshaw Drilling Co. v. Hall et al., 5 Cir., 124 F.2d 42, 44, affirmed 63 S.Ct. 125, 87 L.Ed. -. We pass now to consider a more vital problem, namely, are the cookhouse employees who prepare and serve meals to these “loggers,” by reason thereof engaged “in any process or occupation necessary to the production” of the timber which moves in interstate commerce?
The Supreme Court case of Philadelphia, Baltimore & Washington R. Co. v. Smith, 250 U.S. 101, 39 S.Ct. 396, 63 L.Ed. 869, decided May 19, 1919, merits our attention. That case involved an interpretation and application of the provisions of the Federal Employers’ Liability Act, as amended, 35 Stat. 65, 36 Stat. 291, 45 U.S.C.A. § 51 et seq. Smith was an employee of an interstate railroad; his duties were to cook the meals, make the beds, etc., for a “gang” of bridge carpenters, who were employed by the railroad to repair the bridges, and bridge abutments, along the railway line; the gang, including Smith, moved from place to place along the railroad line in a camp car to facilitate their work in repairing the various bridges. Smith was injured while within the said car, on a side track, as a result of a locomotive colliding with the car while he was occupied cooking a meal for the bridge carpenters, who were repairing a bridge in the vicinity. Smith brought action under the provisions of the Federal Employers’ Liability Act, supra; the defendant railroad contended the plaintiff was not engaged in interstate commerce so as to come within the statute. From a judgment in favor of plaintiff the railroad appealed. Discussing the relation of the plaintiff’s work to that of the bridge carpenters (whose work was in interstate commerce), the Supreme Court at page 103 of 250 U.S., at page 396 of 39 S.Ct., 63 L.Ed. 869, said:
“ * * * It may be freely conceded that if he [the plaintiff] had been acting as cook and camp cleaner or attendant merely for the personal convenience of the bridge carpenters, and without regard to the conduct of their work, he could not properly have been deemed to be in any sense a participant in their work. But the fact was otherwise. He was employed in a camp car which belonged to the railroad company, and was moved about from place to place along its line according to the exigencies of the work of the bridge carpenters, no doubt with the object and certainly with the necessary effect of forwarding their work, by permitting them to conduct it conveniently at points remote from their homes and remote from towns where proper board and lodging were to be had. * * * The significant thing, in our opinion, is that he was employed by defendant to assist, and actually was assisting, the work of the bridge carpenters by keeping their bed and board close to their place of work, thus rendering it easier for defendant to maintain a proper organization of the bridge gang and forwarding their work by reducing the time lost in going to and from their meals and their lodging place. * * * "
The reasoning used by the Supreme Court in solving the problem in the above case is applicable to the case at bar. To be sure, neither cookhouse was mounted on wheels that it might be moved in interstate commerce, as was the camp car, but this is simply an incident and not a ground for the decision in the case. The employees in our case (compare- the last sentence just above quoted) were actually assisting the work of the loggers by keeping their board close to their place of work, thus rendering it easier (perhaps, even, possible) for Consolidated to maintain a proper organization of its loggers and forwarding their work by furnishing the food whereby the men were given the strength to pursue their labors. And, in our determination, we find ourselves well within the limitations — the lines drawn— in a case lately announced by the Supreme Court involving substantially the same basic question, Kirschbaum v. Walling, and Arsenal Bldg. Corp. v. Walling, 316 U.S. 517, 62 S.Ct. 1116, 86 L.Ed. 1638. It was questioned in each case in the trial courts, whether building maintenance employees of building owners were brought within the protection of the Fair Labor Standards Act, supra, by reason of the fact that tenants occupying space in the buildings were engaged in the production of goods for commerce. The Supreme Court said (at page 1121 of 62 S.Ct.):
“ * * * In our judgment, the work of the employees in these cases had such a close and immediate tie with the process of production for commerce, and was therefore so much an essential part of it, that the employees are to be regarded as engaged in an occupation ‘necessary to the production of goods for commerce.’ ”
See also Southern Pacific Co. v. Industrial Accident Commission, 251 U.S. 259, 263, 40 S.Ct. 130, 131, 64 L.Ed. 258, 10 A.L.R. 1181, where it is said “ * * * the character of the employment, in relation to commerce, may be adequately tested by inquiring whether, at the time * * *, the employe was engaged in work so closely connected with interstate transportation as practically to be part of it. * * * ”
Having established to our satisfaction that the cookhouse employees were engaged in a “process or occupation necessary to the production” of goods for commerce, we shall next consider whether the work in which they were engaged was “in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.” To do so, it is necessary for us to enlarge somewhat upon the pertinent facts already recited herein by reciting some more detailed facts as they are revealed by the transcript of record.
The parties selected a certain month as typical of the number of meals served in the Glenwood cookhouse, and to whom served. In this typical month Consolidated employed 302 persons; 217 men regularly used the cookhouse, of whom 110 were employees (including 18 cookhouse employees) of Consolidated, 101 were employees of logging companies under contract to Consolidated, and 6 were employees of independent businesses operated at Glenwood. One hundred ninety-two employees of Consolidated did not use the cookhouse. During the same typical month 302 meals— an average of ten a day, were served to strangers.
It also appears, from other evidence, that in August or September, 1940, there was opened in the postoffice at Glenwood a lunch counter having approximately six stools, at which were served sandwiches, coffee, and ice cream. At the time of trial the cookhouse in Glenwood was being operated by a union member as a private enterprise; he paid the Company a nominal rental of $1 a month for the facilities.
There was no road to or from Camp 2, except the Company railroad, and the only means of travel was by train or track speeder. Generally speaking, all of the Consolidated employees at Camp 2 and some of the employees of contracting companies eat regularly at the cookhouse there. It is admittedly necessary to have a cookhouse at Camp 2, whether operated by the Company or as an independent enterprise by third parties.
Counsel for Consolidated argue that the cookhouse employees were employed in a service establishment the greater part of whose service was in intrastate commerce and that the cookhouse employees were within the exemption or exception of Section 13(a) (2) of the Act. It is elementary, of course, that the Act is remedial and that persons claiming to come within exemptions therein must bring themselves within both the letter and the spirit of the exceptions, which are subject to a strict construction. Bowie v. Gonzalez, 1 Cir., 117 F.2d 11, 16; Fleming v. Hawkeye Pearl Button Co., 8 Cir., 113 F.2d 52, 56.
We think it quite generally understood by both lawyer and layman that an ordinary restaurant or eating place “renders a service” rather than “makes a sale,” and that a restaurant is a “service” -rather than a “retail” establishment; it not being contended otherwise, we shall so assume for the purpose of the following discussion. Considering the applicability of Section 13(a) (2), the Circuit Court of Appeals for the Third Circuit, in Fleming v. A. B. Kirschbaum Co., supra, at page 572 of 124 F.2d, said:
“* * * it is clear that to come within the exemption not only must the employees render service the greater part of which is in intrastate commerce but they must also be engaged in a ‘service establishment.’
“ * * * It is fair to infer that the type of establishment meant is that which has the ordinary characteristics of a retail establishment except that it sells services instead of goods. In other words it is an establishment the principal activity of which is to furnish service to the consuming public. Typical retail establishments are grocery stores, drug stores, hardware stores and clothing shops. In Wood v. Central Sand & Gravel Co., D.C.W.D. Tenn.1940, 33 F.Supp. 40, 47, the court suggested as illustrations of what Congress meant by service establishments ‘barber shops, beauty parlors, shoe-shining parlors, clothes pressing clubs, laundries, automobile repair shops.’ We think these illustrations apt. * * * ”
In our opinion the exemption invoked was not intended to apply in a situation such as confronts us in the instant case. Here the cookhouse was a “necessary” part of the Company’s production of goods for commerce. It was not operating with the intent or purpose of showing a profit to the owners from the sale of food or service, but to render a very necessary assistance to the business of the Company, which was the production of logs in interstate commerce. The cookhouse was not a separate or independent establishment; it was actually a part of the Company’s facilities — a link in the chain — whereby it operated its business and a means whereby it accomplished the purpose of its existence. Neither cookhouse was in competition with any private restaurant for there is no evidence of an effort to secure the patronage of the general public; the service was sold at cost to those whom the cookhouse was intended to serve: the loggers. The principal activity of the cookhouse definitely was not to furnish service to the consuming public, as' such, but was to serve the employees of the Company.
Our conclusion here does not have the effect of writing the exemption out of the Act, for we are of the opinion that the retail or service establishment exempted by the Act is not one which is part of the production of goods for commerce, or a link in a chain to that end, but more precisely an establishnient, probably independent, devoted to serving the public generally, the lesser part of its business being in interstate and the greater in intrastate commerce. It here occurs to us that perhaps it may not truthfully be said that the greater part of the servicing of either cookhouse was in intrastate commerce. Was not the greater number of diners at the cookhouses engaged in the production of goods for commerce?. Were not the cookhouses an integral part of an organization devoted to the production of goods for commerce? Does it not follow, reasonably and logically, that the greater part of the service rendered by the cookhouses was in interstate commerce rather than intrastate ?
We are unable to make out any fundamental distinction between the basic purpose and integration in the Company business between the Glenwood cookhouse and that at Camp 2. If there be any difference, it is but of degree. Each accomplishes the same purpose, each is a unit in the facilities necessary to the Company’s production of goods for commerce. The argument that because the Glenwood cookhouse is situated in a village wherein is also located a lunch counter or fountain equipped with a half dozen stools, serving sandwiches and coffee, is not persuasive. No such establishment could supply the necessary meals required by several hundred hungry laborers. Moreover, it is of no consequence to argue that the Company might have employed loggers residing in the vicinity who would not be under the necessity of eating at a cookhouse, because it is not what could have been the fact, but what actually was the fact, upon which the decision must rest.
The conclusion of the court below that the Glenwood cookhouse is within the exception of Section 13(a) (2) is not supported by the facts found; the conclusion that the Camp 2 cookhouse is not within the said exemption is supported by the facts found. Therefore, the decree of the lower court dated January 8, 1942, is set aside, with directions to enter a decree in accordance with this opinion.
Fleming v. A. B. Kirschbaum Co., 3 Cir., 124 F.2d 567, and Fleming v. Arsenal Bldg. Corp., 2 Cir., 125 F.2d 278, affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
FRIENDLY, Circuit Judge:
This court yields to none in recognizing the high place in our legal system held by § 1 of the Enforcement Act of 1871, 17 Stat. 13, now 42 U.S.C. § 1983, and the Act’s jurisdictional implementation, 28 U.S.C. § 1343(3). It would be hard to think of any more compelling task for a federal court than “to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.” If the time has come, as many federal judges are convinced it has, when in order to discharge that duty, to expedite the trial of federal criminal cases, and to determine other questions arising under federal law, the federal courts must be relieved of tasks for which they have no peculiar competence, the Congress should move swiftly to that end.
On the other hand, the framers of the Act of 1871 could hardly have intended it to become the standard method of constitutional attack upon state action although, until then, the lower federal courts had scarcely been available for that purpose at all, see Hart & Wechsler, The Federal Courts and the Federal System, 727-30 (1953). Suits under that statute thus should not be lightly brought. Apart from the burden they impose on federal judges and their abrasive effect on federal-state relations, counsel should never forget Mr. Justice Jackson’s observation, in a closely related context, that “it must prejudice the occasional meritorious application to be buried in a flood of worthless ones.” Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 425, 97 L.Ed. 469 (1953) (concurring opinion). See Note, Limiting the Section 1983 Action in the Wake of Monroe v. Pape, 82 Harv.L.Rev. 1486 (1969), and the reply by Paul Chevigny, Esq., attorney for the New York Civil Liberties Union, 83 Harv.L.Rev. 1352 (1970). There is thus a responsibility, resting upon all counsel but especially upon those for civil rights organizations, not to swell the tidal wave of actions under the civil rights statute by bringing suits for declaratory or injunctive relief when no need for this exists. All too often we see a motion for a temporary injunction allegedly requiring the district judge to set all his other tasks aside and determine, in days or even hours, on the basis of conflicting affidavits, much of them hearsay, and scanty briefs, a constitutional issue of great pith and moment that could have been considered, in a much more orderly fashion and with a better development of the facts, by the presentation of a defense in a state court, with ultimate review by the Supreme Court if that should prove to be required. If the judge denies the temporary injunction, as he well may do simply because of the inadequacy of the factual showing, this court is similarly asked to shunt other suitors aside and stay or precipitately reverse. Another variant, even less excusable, is a ease like this, where the need for action by any court on the point that ignited the controversy has disappeared even before the suit was brought and where problems for the future, if there are any, can in all probability be resolved by calm discussions with state officials in the absence of any litigation whatsoever. Compare Fortas, Thurman Arnold and the Theatre of the Law, 79 Yale L.J. 988, 995 (1970).
The action concerns New York’s procedures with respect to counsel under Article 7 of the Family Court Act, entitled “Proceedings Concerning Juvenile Delinquency and Whether a Person is in Need of Supervision,” more particularly the latter. Section 732 provides for a proceeding to adjudicate a male under 16 or a female under 18 as being in need of supervision if the child “is an habitual truant or is incorrigible, ungovernable, or habitually disobedient and beyond the lawful control of his parents, guardian or lawful custodian” and “requires supervision or treatment.” Proceedings may be initiated by a peace officer, the parent or other person legally responsible for the juvenile’s care, a victim or witness of the juvenile’s objectionable activity, or the recognized agents of a duly authorized organization, § 733. Detention pending the initial hearing is authorized only' if the court finds there is a substantial probability that the juvenile will not appear in court on the return date or a serious risk that before that date he may do an act which would constitute a crime if performed by an adult. The next step is a “fact-finding hearing,” § 742, which must be held within three days after the filing of the petition if the juvenile is under detention, § 747. This hearing is limited to determining whether the juvenile did the acts alleged to demonstrate that he needs supervision, § 742. At the conclusion of this hearing or later, there is a “dispositional hearing” to determine whether the juvenile requires supervision or treatment, §§ 743, 746.
Article 2, Part 4, of the Family Court Act manifests New York’s concern “that minors who are the subject of family court proceedings should be represented by counsel of their own choosing or by law guardians,” § 241. This latter group consists of attorneys “admitted to practice law in the state of New York” who are designated as law guardians by the appellate division of the Supreme Court through agreement with a legal aid society, or otherwise, §§ 242, 243. In any proceeding under Article 7, the family court must “appoint a law guardian to represent a minor who is the subject of the proceeding if independent legal representation is not available to such minor by reason of inability to pay other counsel or other circumstances,” § 249.
Plaintiff Tomacita Negron, aged 16, was taken into custody on October 16, 1969, upon a petition brought by her mother claiming her to be a person in need of supervision. On the following day, the Family Court held a fact-finding hearing at which Tomacita was represented by a member of the New York Legal Aid Society who had been appointed as her law guardian. Upon her admission of the allegations of the petition, she was found to be a person in need of supervision and was remanded to Manida Hall Juvenile Center, first until October 27, when she was again represented by a law guardian in a dispositional hearing which was adjourned, and then until November 6.
Jonathan A. Weiss, then a staff attorney for MFY Legal Services, Inc., who brought this action as Tomacita Neg-ron’s “next friend,” had represented her on two occasions earlier in 1969 when her mother filed petitions alleging her to be in need of supervision. Each time he had succeeded in getting Mrs. Negron to withdraw the petition. There was an intervening placement, in connection with which Mr. Weiss apparently did not represent her, at another juvenile centre whence, according to her mother, Toma-cita exited through a back window. Nothing in the transcript of the October 17 Family Court hearing indicates that Tomacita manifested any desire to have Mr. Weiss rather than the Legal Aid Society lawyer act for her. Indeed, the only evidence that Tomacita desired Mr. Weiss’ services is his statement in a supplemental affidavit, apparently submitted after the argument in the district court, that when he got to see her on November 6, as recounted below, she informed him “that she had been asking for him as her lawyer,” without any detail as to when or to whom the request was made.
Late in the afternoon of Friday, October 31, 1969, Mr. Weiss learned “through the family” that Tomacita was at Manida Hall. Wishing to see her over the weekend, he applied to various state or city employees to that purpose. While the affidavits differ as to the cooperativeness or uncooperativeness of the employees and of Mr. Weiss, it seems fairly plain he was told that he could see Toma-cita only if accompanied by one of her parents or if authorized by one of the many judges of the Family Court, all of whom were listed in the telephone book, or by filing a notice of appearance when the Family Court opened early on the morning of Monday, November 3.
Mr. Weiss did not follow either course that might have made it possible to see Tomacita during the weekend — for what useful purpose the record does not disclose. He claimed in argument that application to Mrs. Negron would have been unavailing, but this hardly seems clear in light of the fact that she had consented to his representing Tomacita on two prior petitions that year and, indeed, had withdrawn both those petitions upon Mr. Weiss’ urging. Moreover, it was “through the family” that he learned of Tomacita’s presence in Mani-da Hall. He explained his failure to apply to one of the Family Court judges as reflecting a desire not to intrude on their weekend privacy. While such consideration is appreciated by judges, it would not be a sufficient reason for failing to act if Mr. Weiss had reason to consider that Tomacita was suffering any significant harm or that her case was being prejudiced in a manner which consultation with him over the weekend might have cured. It seems much more likely that his inaction was due to a sound realization that, since she had been lawfully detained as the result of a proceeding wherein she was represented by counsel to whose appearance she had assented, nothing could be done for her until the dispositional hearing on November 6, and that by filing a notice of appearance on Monday, November 3, he could see her long before that time. When Monday arrived, instead of following that simple course, he advised counsel for the New York City Office of Probation around 4 P.M. that he wa& on his way to federal court to file an action for a declaratory judgment and to request a preliminary injunction and a temporary restraining order. In fact, the order to show cause submitted to and signed by the district judge contained no provision for a temporary restraining order and requested a hearing on November 10. Before that date, Mr. Weiss filed a notice of appearance in the Family Court and appeared for Tomacita at the hearing on November 6, when she was remanded to the centre and the case was adjourned for a fortnight. The record does not inform us just what happened then, although it appears that the court determined Tomacita to require supervision and remanded her to the custody of the Hudson Training School. Mr. Weiss has appealed the disposition and initial fact-finding within the state system, where the matter is still pending.
Apparently realizing that any urgency had disappeared, the district judge did not render his decision until March 5, 1970. He found that the requirements with respect to attorneys’ visits at juvenile centers were reasonable and not unconstitutional, and accordingly he denied the request for a temporary injunction insofar as it sought relief from practices requiring, first, that an attorney produce a notice of appearance or permission of the Family Court or of the juvenile’s parents when he wishes to visit with a juvenile; second, that he make an advance appointment; and third, that an inmate who desires to contact an attorney do so by mail rather than telephone. He also denied the request for damages. On the other hand, he enjoined defendants from denying plaintiff the right to consult privately with her attorney and from refusing to arrange appointments “in such a manner as to discriminate against plaintiff and her attorney.” Both sides have appealed.
To take the easiest point first, we wholly approve the denial of an injunction with respect to the practice concerning the making of appointments. As explained in the affidavit referred to in fn. 2, such a practice is desirable “to insure the child’s appearance for the interview instead of being, for example, at the clinic, at school, in court or at other activities,” including, we suppose, such essential ones as eating, bathing and sleeping. There is not a word in the papers to suggest that the state authorities have been in any way arbitrary in scheduling interviews with counsel, or that they would insist,on an advance appointment if a true emergency occurred, see fn. 3. In such circumstances, it is difficult to view the advance appointment practice as imposing a burden of any significance upon the right to rep-reservation by counsel of one’s choice. The requirements with respect to proof of authority to represent the juvenile are also reasonable in the “usual case,” see fn. 2, and in all but the most exceptional “exceptional case.” The state has a legitimate interest in protecting juveniles under detention from visits by attorneys (or persons asserting themselves to be such) whom the juveniles have expressed no desire to see and who have not established authority to speak for them. When we refer to the exceptional “exceptional case,” we are thinking of one in which a juvenile might have a particularized need to consult an attorney outside the preferred visiting hours and at a time when parental or Family Court permission would be difficult to obtain in short order. But the affidavits'are far from convincing us that the officials would be obdurate in such an instance, and Tomacita Negron’s case surely did not present a situation of that sort. Similarly, we do not believe — and the facts of this case in no way alter our belief — that the juvenile’s right to counsel is unduly curtailed by the 9:00 A.M. to 5:00 P.M. visiting hour restriction with its permissible exceptions by special arrangement for weekend and after-hour meetings.
This leaves the matter of the juvenile’s right to contact his attorney by telephone. The prayers for relief in the complaint and the amended complaint were silent on this point. So was the moving affidavit. The issue entered the case only on the basis of an assertion in the supplemental affidavit of Mr. Weiss that he “was informed by his client Tomacita Negron that the Center was very restrictive of the use of the telephone and my client doubted that she could call me,” and that a social worker at Manida Hall told him that the only person Probation would call was Tom-acita’s mother. While we tend to believe that a juvenile detained in a center is constitutionally entitled to access to a telephone, under reasonable regulations designed to prevent abuse, either to enlist the aid of an attorney or to communicate with one already retained, vague hearsay statements of the sort contained in the supplemental affidavit, on a point the defendants could reasonably have considered not to have been at issue, did not call for an injunction. The request for damages of $10,001, evidently inserted out of abundant but unnecessary caution in the event that the court declined to assume jurisdiction under 28 U.S.C. § 1343(3), was wholly unsubstantiated and the propriety of its denial has not been seriously challenged.
Turning to the cross-appeal, we fully agree with the district court that a detained juvenile has a constitutional right to consult with an attorney in privacy and that the New York authorities could not properly discriminate against Mr. Weiss and Tomacita in arranging for consultations outside the normal 9:00 A.M. to 5:00 P.M. weekday horn’s. But there was no basis for thinking they had infringed either of these rights. The complaints and the affidavits made no claim of discrimination against Mr. Weiss or his client; rather the complaint, with the usual allegations designed to make this a class action, condemned the Manida Hall practices as they applied to juveniles generally. On the issue of privacy, Mr. Weiss’ moving affidavit contained the double hearsay statement that his social worker, Betty Corliss, was informed by a Mrs. Thomas, a Manida Hall social worker, that he “could not see the girl except with the written permission of the family court and with a social worker present,” and a claim that when he called Mrs. Thomas, she “confirmed her earlier statement.” In contradiction to Mr. Weiss’ allegation we have affidavits of Counsel to the Administrative Board of the Judicial Conference of the State of New York and of Mr. Cole, see fn. 2, both of whom assert in the most positive terms that interviews between the juvenile and the attorney are completely private, unless the attorney specifically permits a staff member to be present. Counsel to the Office of Probation for the New York City Courts stated in another affidavit that she had spoken to Miss Thomas who denied having told Mr. Weiss he could see his client only in the presence of a social worker. Confronted with all this, Mr. Weiss took another tack. In his supplemental affidavit he conceded he had seen Tomacita alone, but alleged that “the door was left open, so I had to close it myself only to discover that this room, right next to the social worker’s room, had paper-thin walls so that to preserve privacy you have to almost whisper.” The defendants, reasonably we think, did not continue this volley.
The district judge did not decide there had been a discrimination against Mr. Weiss. Neither did he measure the wall or determine its soundproof characteristics. Rather he justified the injunction, permanent as we read it, on the ground that defendants conceded plaintiff’s rights in these two respects and there was consequently no objection to ordering them to refrain from what they would not do anyway. But “it is elementary that a court of equity will not enjoin one from doing what he is not attempting and does not intend to do.” New Standard Publishing Co. v. F.T.C., 194 F.2d 181, 183 (4 Cir. 1952).
Affirmed on appeal, reversed on cross-appeal.
. Actions under the Civil Eights Act have grown from 296 in the fiscal year 1961 to 3985 in the fiscal year 1970, an increase of 1246%. In the past year alone there was a 62.5% increase, to 3985 in 1970 from 2453 in 1969. No other category of civil litigation except state prisoner petitions has shown anything like such explosive growth. See Ann.Rep. of Director of Adm. Office of the United States Courts, 1970, Table 12B.
. An affidavit by Arthur B. Cole, Director of Operations of the Institutional Services, under the jurisdiction of the Office of Probation for the courts of New York City, explained wliat the procedures were. He distinguished between “the usual case” and “the exceptional case.” In the former, an attorney desiring to visit juvenile clients is advised to file a notice of appearance with the Family Court and to bring a copy with him. He is also asked to state the date and time when he wishes to visit, so that the youngster can be made available. The interview is conducted in complete privacy unless the attorney requests otherwise. The attorney is advised that the center prefers interviews between 9:00 A.M. and 5:00 P.M. on weekdays when the Family Court is in session, but will arrange for interviews at earlier or later hours or on weekends if the attorney requests. The “exceptional case” is where the attorney has been unable to file a notice of appearance. Normally he may then see the child only if accompanied by the parents or one of them having custody of the child, or the child’s legal guardian, who will attest the attorney’s authority. The staff, however, is instructed to consult with a superior officer “regarding any other exceptional instances which may occur”; some such superior is “always able to be contacted at any time of tlie day or .evening.” The objective of these procedures is to ascertain that the person visiting has in fact been retained to represent the juvenile with reference to his detention.
. We have avoided the word “requirement” since the record does not demonstrate that the practice with respect to making advance arrangements is an absolute. A letter dated November 10, 1969, to Mr. Weiss from one of defense counsel used the phrase “it is strongly advisable.”
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
DENMAN, Circuit Judge.
The Board seeks our enforcement of its order that respondent cease and desist from (a) discouraging membership in the Brotherhood of Railway Trainmen, hereinafter called the Brotherhood, or any other labor organization of its employees, by laying off, discharging, refusing to reinstate them or otherwise discriminating against them in regard to their hire or tenure of employment ; (b) from otherwise interfering with, coercing or restraining its employees in the exercise of their right guaranteed by § 7 of the National Labor Relations Act, 29 U.S.C.A. § 157; and that respondent take affirmative action (c) by offering reinstatement to two discharged railway employees and (d) make good their back pay, with the usual requirement for the posting of notices.
Respondent corporation is engaged in felling timber and transporting logs by rail from its forests. It is not questioned that it is engaged in interstate commerce.
Respondent’s employees, both loggers and trainmen, had been organized in the Carpenters and joiners of America, an affiliate of the American Federation of Labor. After a prolonged strike, they transferred their allegiance to the International Woodworkers of America, an affiliate of the Congress of Industrial Organizations, which became the bargaining agent of all the men. In 1940, certain railway employees sought to effect an organization of the railway men in one of the railway Brotherhoods. There is substantial evidence that respondent’s manager and assistant superintendent, in charge of railway operations, were strongly opposed to such an organization as likely to cause labor struggle between the A. F. of L. and C. I. O. interests, with the consequent interference with log production.
The assistant superintendent suggested to certain railway employees that one C. B. Groves, one of the organizers, was a “trouble maker.” Groves was threatened with discharge by his camp foreman, Vic Lehman, who had the power to “hire and fire,” and told Groves, “I just want to say you had better be careful what you say about the Brotherhood; somebody is going to be let out, and it might be you.”
There was also testimony that the assistant superintendent stated to a railway employee that the Brotherhood movement would lead to a shut down and also to a cessation of respondent’s railway operations which would be taken over by the Northern Pacific Railway. We hold that there is substantial evidence of a violation of § 8(1) of the Act, 29 U.S.C.A. § 1.58(1), prohibiting interference and restraint in the self-organization for the purpose of collective bargaining, and warranting the cease and desist orders (a) and (b).
Respondent discharged two railway employees, Lytle and Reece. Lytle was an active leader in the railway organizational movement. Reece was secretary of the trainmen’s executive committee. Both had been employed as railway brakemen by respondent for substantial periods — Lytle for several years; Reece for over a year. They were discharged for the purported reason that they had violated a safety rule requiring them to stand on the forward end of a flat car ahead of the locomotive of a logging train, when it was about to cross a highway.
There was evidence from which the Board could infer that the men, who were inside the housing on the rear of the car, as well could have made the crossing safe from the position in which they stood and from which they had a clear view of vehicles on the highway approaching the crossing, and that there was but a technical violation of the rule.
There was also evidence from which the Board could infer that the purpose of the discharge of the two organizers, rather than a reprimand or a short lay-off, was to coerce, by such discrimination, the other railway employees seeking to organize the Brotherhood.
Reece, as spokesman for the railway employees, had presented to respondent’s general manager their request for the recognition of the Brotherhood. The general manager expressed his opposition. Three days later, Lytle and Reece were assigned to a braking crew whose duties would require them to be on the front of the flat car on crossing the highway. The assistant superintendent, who, from prior experience, well could have expected the men to stay in the housing and not go to the end of the car, drove from the company camp to and across the crossing and stopped his automobile there just before the approach of the logging train. JMo other automobile was in sight and no one on the highway could have been in danger. The assistant superintendent observed that Lytle and Reece did not come to the end of the car and immediately returned to the camp where he reported the matter to the general manager. The next morning the two men were laid off and shortly thereafter discharged.
We hold that the Board had reasonable ground to infer that the assignment of the men to the particular train, shortly after Lytle’s demand for Brotherhood recognition, the purposeful follow-up of the superintendent for the expected minor infraction of the rule, and the drastic punishment of the discharges were discriminatory acts in violation of § 8(3) of the Act and were purposed to remove the men — not for the good of the operation, — but to prevent their and their companions’ further organizing activities.
The petition of the Board for the enforcement of its order is granted.
Affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
MESKILL, Circuit Judge:
Four plaintiffs in this action, Joseph Rodonich, Alex Chotowieky, Wasyl Lawro and Harry Diduck, all members of defendant House Wreckers Union Local 95 (Local 95), appeal from a judgment of the United States District Court for the Southern District of New York, Cannella, J., entering a verdict after a jury trial against Local 95 and dismissing plaintiffs’ claims against Laborers’ International Union of North America (LIUNA). LIUNA, Local 95 and the individual defendants cross-appeal from the judgment.
In their complaint, plaintiffs alleged that defendants engaged in a scheme to suppress dissent within Local 95 and unlawfully disciplined them in violation of sections 101(a)(1), (2), (5), 609 and 610 of the Labor Management Reporting and Disclosure Act, 29 U.S.C. §§ 411(a)(1), (2), (5), 529, 530 (1982) (LMRDA), section 301(a) of the Labor Management Relations Act, 29 U.S.C. § 185(a) (1982) (LMRA), the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962 (1982) (RICO), and LIUNA’s constitution.
Before trial, the district court dismissed the state law contract claim as preempted by federal labor law and granted LIUNA summary judgment on plaintiffs’ claim that LIUNA breached its constitution in violation of section 301(a) of the LMRA. See Rodonich v. House Wreckers Union Local 95 of Laborers’ International Union of North America, 624 F.Supp. 678 (S.D.N.Y.1985). The court refused, however, to grant summary judgment on the remaining counts. After a jury trial, a verdict was returned in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95. The district court entered final judgment dismissing plaintiffs’ remaining claims against LIUNA and dismissing all claims of plaintiff Diduck. Judgment was entered in favor of plaintiffs Rodonich, Chotowicky and Lawro against Local 95 in accordance with the verdict.
We affirm the dismissal of all claims against LIUNA except those asserted by Diduck. As to Diduck’s claims, we reverse the district court’s dismissal of the complaint, hold LIUNA liable to Diduck and remand the case for further proceedings on the issue of damages. Plaintiffs do not appeal the dismissal of their RICO claims against LIUNA.
BACKGROUND
This case arises out of a political struggle between two warring union factions for control of Local 95. Plaintiffs Rodonich, Chotowicky and Lawro comprised the “Rodonich faction,” which in 1981 held three of the seven seats on Local 95’s Executive Board. Rodonich occupied the position of Secretary-Treasurer, Chotowicky was Vice President and Lawro was Recording Secretary. Plaintiff Diduck did not hold office in Local 95, but actively supported the Rodonich faction. The Rodonich faction shared power on the Executive Board with members of their rival faction, known as the “Senyshyn faction,” including several of the named individual defendants to this suit, most notably John Senyshyn, who was President of Local 95 in April 1980.
In April 1981, Local 95’s Business Manager and Chief Executive Officer, Michael Novack, resigned from office. The bitter schism that precipitated Novack’s resignation left Local 95’s Executive Board evenly balanced between the two factions. As a consequence of this resignation, political disruption within the union intensified. Acts of violence were reported. Rodonich claimed that he was assaulted by defendant Samuel Adams and several other men. In a letter dated May 25, 1981, and addressed to Senyshyn with copies to LIUNA officials, Harry Diduck reported that he was threatened by Adams. Diduck’s letter also accused Senyshyn of being responsible for a certain contractor’s paying below union scale wages and of delaying charges against Novack stemming from an earlier stabbing of a Local 95 member.
Shortly thereafter, Adams filed charges of slander against Diduck based on Di-duck’s letter to LIUNA. Adams also filed charges against Rodonich for calling him a “nigger.” Other charges against Rodonich alleged that he had failed to pay the salary of the Business Manager, the validity of whose recent election to the Executive Board Rodonich disputed. Rodonich and Chotowicky were both charged with “dishonesty” and “fraud” because Chotowicky, who believed that he was rightfully the acting President while Senyshyn temporarily occupied the position of Business Manager, had performed the President’s job of co-signing (with the Secretary-Treasurer, Rodonich) union checks. Lawro was charged with “negligence,” “incompetence” and “dishonesty” for failing to take the minutes of a union meeting.
Local 95’s charges against plaintiffs were brought before a panel of union members selected by Senyshyn. After trials held on August 24, 1981, plaintiffs were found guilty. As a result, Rodonich, Chotowicky and Lawro were removed from Local 95’s Executive Board. Diduck was fined $500 and warned that his membership in Local 95 would be revoked if he committed further offenses. Diduck’s fine was stayed pending appeal and has never been collected.
Pursuant to Article 12 of the Uniform Local Union Constitution, plaintiffs appealed to LIUNA. Plaintiffs wrote numerous letters to LIUNA officials detailing the history of the factional dispute that led to their being disciplined and alleging that they had “been disciplined for the exercise of [their] rights, as union members.” See Letter from J. Rodonich to A.E. Coia, General Secretary-Treasurer, LIUNA (Oct. 12, 1981), J.App. at 241. On January 13, 1982, LIUNA’s Eastern Hearings Panel heard plaintiffs’ appeals — first Diduck’s appeal and then those of Rodonich, Chotowicky and Lawro. All four plaintiffs were represented by counsel at these hearings. Di-duck’s counsel stressed that Diduck had been fined for statements he made in a letter to LIUNA and argued that such a fine violated the union constitution as well as Diduck’s right of free speech. Counsel for Rodonich, Chotowicky and Lawro stressed that the charges arose out of a factional dispute and involved a pattern of violence.
The decision of LIUNA’s Hearings Panel reported that “the charges are amply supported by the evidence.” This decision was approved and adopted by LIUNA’s General Executive Board on February 23, 1982. Plaintiffs filed their complaint in the Southern District of New York on August 23, 1983.
The trial in the district court was conducted in three separate phases and the jury returned three separate verdicts: (1) determining liability on LMRDA and LMRA claims, (2) determining liability on RICO claims, and (3) determining damages. After the first phase, the jury found liability on the part of Local 95, John Senyshyn, Joseph Sherman and Albert Bender on the LMRDA and LMRA claims in favor of Rodonich, Chotowicky and Lawro. It found no liability on the part of LIUNA to anyone.
After the second phase, the jury found that two of the individual defendants, Joseph Sherman and Stephean McNair, had participated in Local 95’s affairs through a pattern of racketeering activity in violation of RICO.
After a third phase, the jury awarded Rodonich, Chotowicky and Lawro compensatory damages in the amount of salary each had lost as a result of his unjust removal from office and awarded Rodonich and Lawro punitive damages against certain of the defendants on their LMRDA claims. The jury also awarded three dollars each to Rodonich, Chotowicky and Lawro on their RICO claims against Sherman and McNair.
On March 14, 1986, the court entered judgment in accordance with these verdicts and dismissed the contract claim and LMRA claim against LIUNA pursuant to its pretrial order. Shortly thereafter, Di-duck brought a motion for , judgment notwithstanding the verdict, which was denied on May 21, 1986. These appeals and cross-appeals followed.
DISCUSSION
Plaintiffs Rodonich, Chotowicky and Lawro argue that Judge Cannella improperly instructed the jury regarding LIUNA’s liability for the wrongful acts of Local 95 and the evidence needed to support an award of damages for emotional distress. Plaintiffs also argue that LIUNA is liable as a matter of law on all claims. Plaintiff Diduck argues that the district court erred in denying his motion for judgment notwithstanding the verdict. Cross-appellants argue that plaintiffs’ LMRA and LMRDA claims are barred by a six month statute of limitations. We consider each claim in turn.
A. LIUNA ’s Liability
The primary issue presented by this appeal concerns the liability of an international union when, in the course of carrying out its internal appellate function, it affirms the imposition of unlawful discipline by one of its locals upon a union member. Plaintiffs advance several legal theories to support their claim that LIUNA is liable for affirming discipline imposed on them by Local 95. First, plaintiffs contend, under common law principles of agency, that an international union is liable when it ratifies the acts of its agent, the Local, with full knowledge of those acts. Second, again under common law agency principles, plaintiffs argue that LIUNA is vicariously liable for the acts of the Local as its principal, regardless of ratification. Third, plaintiffs claim that LIUNA is directly liable as a coparticipant in the scheme to suppress dissent within Local 95. Finally, based on contract theory, plaintiffs contend that LI-UNA is liable for breaching a duty imposed by its constitution to decide all appeals fairly. We disagree and affirm the part of the judgment that so held.
1. Ratification
The success of plaintiffs’ LMRDA claims depends on proof that their retaliatory discharge from office was part of an overall scheme to suppress dissent within the union. See Cotter v. Owens, 753 F.2d 223, 230 (2d Cir.1985). Appellants hope to establish LIUNA’s liability through the common law agency theory of ratification. In response, LIUNA argues that it cannot be held liable for mere affirmance of discipline absent a showing of bad faith or fraud. See International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1113, 1129 (D.C.Cir.1972), cert. denied, 418 U.S. 904-05, 94 S.Ct. 3194, 41 L.Ed.2d 1152 (1974).
It is far from settled whether common law agency principles govern an international union’s LMRDA liability for acts of a union local. A plain reading of LMRDA’s liability and enforcement provisions reveals that Congress did not distinguish between international and local labor organizations with regard to their liability under the Act. See 29 U.S.C. §§ 412, 529 (1982).
Agency principles frequently have been applied to federal labor law generally. For example, in NLRB v. Local Union No. 46, Metallic Lathers & Reinforcing Iron Workers, 727 F.2d 234, 237 (2d Cir.1984), we found an international union liable under the National Labor Relations Act (NLRA) for ratifying the imposition of unlawful discipline through its internal appellate process. Liability under an agency theory also applies to “violation[s] of contracts ... between any ... labor organizations” under the LMRA. See 29 U.S.C. § 185(b); Carbon Fuel Co. v. United Mine Workers, 444 U.S. 212, 216-17, 100 S.Ct. 410, 413-14, 62 L.Ed.2d 394 (1979). In Aguirre v. Automotive Teamsters, 633 F.2d 168, 170-74 (9th Cir.1980), the Ninth Circuit specifically applied agency theory to LMRDA claims to hold a union liable for the acts of its officers who infringed voting rights of union members. Finally, a union may be held liable under the Norris-LaGuardia Act “for the unlawful acts of ... agents” provided that there exists “clear proof of actual participation in, or actual authorization of, such acts, or of ratification of such acts after actual knowledge thereof.” 29 U.S.C. § 106 (1982).
Our Metallic Lathers decision applied common law principles of agency to an unfair labor practice claim in a fact situation similar to this one — the liability of an international union for having affirmed, through the intraunion appellate process, the imposition of unlawful discipline on union members by a union local. Because such a claim can either be brought as an unfair labor practice claim under the NLRA or as a free standing LMRDA claim, see, e.g., Doty v. Sewall, 784 F.2d 1, 7 (1st Cir.1986) (recognizing an overlap between section 8(b)(1)(A) of the NLRA and sections 411 and 412 of the LMRDA); Grand Lodge of International Association of Machinists v. King, 335 F.2d 340, 346-47 (9th Cir.), cert. denied, 379 U.S. 920, 85 S.Ct. 274, 13 L.Ed.2d 334 (1964); cf. 29 U.S.C. § 523(a) (1982), and because the policies underlying the NLRA closely parallel those underlying the LMRDA, we are persuaded that the same standards of agency should govern both types of claims.
We next consider the standard of ratification that should be applied in this case. Under general principles of common law, “ratification can only occur when the principal, having knowledge of the material facts involved in a transaction, evidences an intention to ratify it.” Breen Air Freight, Ltd. v. Air Cargo, Inc., 470 F.2d 767, 773 (2d Cir.1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1901, 36 L.Ed.2d 392 (1973); see also Restatement of Agency 2d ¶¶ 91, 93-100. Plaintiffs in the instant case were required to prove by clear and convincing evidence that Local 95 engaged in a purposeful and deliberate attempt to suppress dissent within the union. See Newman v. Local 1101, 570 F.2d 439, 445-46 (2d Cir.1978); Schonfeld v. Penza, 477 F.2d 899, 904 (2d Cir.1973). Therefore, we hold that ratification would occur if LIUNA affirmed the discipline imposed on plaintiffs with full knowledge that it was part of an overall scheme to suppress dissent in violation of the LMRDA.
Plaintiffs contend that, based on the facts of this case, LIUNA must be held liable as a matter of law for ratifying the discipline imposed by Local 95’s trial board. We disagree. Rodonich, Chotowicky and Lawro each were disciplined for failure to fulfill their duties as union officials. Nothing on the face of these charges suggested a scheme to suppress dissent within Local 95. Instead, discipline was based on concrete violations of official duties. LIUNA’s review board was also faced with .evidence of a bitter factional dispute within Local 95. Certainly, LIUNA was not required to accept either party’s version of the events as true. We, therefore, conclude that plaintiffs’ mere allegations of unlawful discipline were insufficient to establish LIUNA's full knowledge of Local 95’s conduct as a matter of law.
Plaintiffs next attack the district court’s instruction on the issue of ratification. Objections were made at trial to the following portion of the jury charge:
The mere fact that the International had oral or written statements or letters from plaintiffs and others regarding the events occurring in Local 95 does not establish full knowledge of the International of the facts asserted in those statements and letters. These statements and letters were merely allegations of fact.
. J.App. at 612.
Plaintiffs argue that, under this instruction, because LIUNA could not be deemed to obtain knowledge of the scheme from plaintiffs’ only evidence, i.e., the oral and written statements and letters, only an outright admission by LIUNA that they knew of the scheme would suffice to establish full knowledge. Plaintiffs, therefore, complain that this instruction had the effect of directing a verdict against them. We do not agree. Judge Cannella did not. instruct the jury to discredit plaintiffs' evidence. The district court merely admonished the jury not to accept plaintiffs’ allegations at face value in determining whether LIUNA possessed full knowledge of a scheme to suppress dissent. As we have already noted, LIUNA was not required to credit any party’s version of the events when reviewing Local 95’s disciplinary action. The jury, however, remained free to consider whether the probative worth of plaintiffs’ evidence was sufficient to create an inference of fuli knowledge on the part of LIUNA. Therefore, we find no error in this portion of the district court’s charge.
Plaintiffs also objected at trial to a portion of the jury charge that insulates LIUNA from any obligation to correct wrongdoing by the Local:
The International has no affirmative obligation to act to correct the unlawful acts of its affiliated local union such as Local 95 or their officers, even though LIUNA, or the International, may have had knowledge of those unlawful acts.
You may find the International liable for the removal of the plaintiffs Rodonich, Chotowicky and Lawro if you find that the International denied plaintiffs Rodonich[,] Chotowicky and Lawro internal union appeals with full knowledge of the overall scheme to suppress the dissent in Local 95 or that the International acted and participated in such scheme.
J.App. at 611-12. We find no fault with this instruction. Judge Cannella’s charge simply makes clear that LIUNA has no independent duty to intervene in the affairs of Local 95. This is established law, see Carbon Fuel, 444 U.S. at 218-19, 100 S.Ct. at 414-15; United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 395, 42 S.Ct. 570, 577, 66 L.Ed. 975 (1922), and was correctly relayed to the jury.
2. Vicarious Liability
Plaintiffs next argue that LIUNA should be held vicariously liable as a principal for the acts of its agent, Local 95. The district court considered plaintiffs’ argument and specifically rejected it, J.App. at 56, finding that Local 95 alone had the power to impose discipline. According to the district court, Local 95 could not be considered LIUNA’s agent for purposes of imposing discipline on union members because the Local acted in its own behalf, not LIUNA’s.
In response to Judge Cannella’s ruling, plaintiffs now argue that LIUNA had exclusive power to interpret constitutional provisions that authorize discipline. LIUNA argues that plaintiffs also exercised sufficient supervisory power to render Local 95 an agent of LIUNA.
Plaintiffs’ arguments are unpersuasive. First, it is well settled that the mere exercise of supervisory powers is insufficient to render the affiliate union an agent of the international. Coronado Coal Co. v. United Mine Workers, 268 U.S. 295, 300-01, 45 S.Ct. 551, 552-53, 69 L.Ed. 963 (1925); Shimman v. Frank, 625 F.2d 80, 97-99 (6th Cir.1980); Barefoot v. International Brotherhood of Teamsters, 424 F.2d 1001, 1004 (10th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 239, 27 L.Ed.2d 257 (1970); United Brotherhood of Carpenters v. NLRB, 286 F.2d 533 (D.C.Cir.1960). Second, there was no specific agency relationship between the two unions for purposes of imposing discipline as alleged. Although it is true that LIUNA has power to interpret its constitution, the power to impose discipline rests with the Local. Uniform Local Union Constitution, Arts. Ill, XII as amended Sept. 14-18, 1981; J.App. at 73. It is the Local, not LIUNA, that has power to initiate and decide disciplinary matters. Any member may bring charges against another member by filing those charges with Local 95. After a hearing before the Local Union Trial Board, a recommendation is made to the members who vote to approve or reject the recommendation. Only after membership action may an appeal be taken to LIU-NA. On appeal, LIUNA merely reviews the Local Union Trial Board’s decision without conducting a trial de novo. Because Local 95 does not act at the direction of LIUNA at any stage in the proceedings prior to appellate review, there exists no basis for finding that Local 95 was LIUNA’s agent in this disciplinary matter.
3. Co-participant Liability
Plaintiffs argued in the district court that LIUNA should be liable as a co-participant in the scheme to suppress dissent within Local 95. The jury rejected plaintiffs’ argument. On appeal, plaintiffs contend that the district court failed to instruct the jury on this theory of liability.
Judge Cannella’s charge, however, adequately presented the theory of co-participant liability to the jury.
The International may be held liable with respect to a particular claim if you find that it instigated, supported, ratified, encouraged or otherwise participated in any act committed by Local 95 or the individual defendants.
J.App. at 606 (emphasis added). The court gave a similar instruction in another portion of its charge as well. See J.App. at 612-13. Clearly, the jury was instructed that it could find LIUNA liable if LIUNA had participated in unlawful discipline. Plaintiffs’ claims to the contrary are merit-less. Likewise, plaintiffs’ argument that no reasonable jury could find that LIUNA did not participate in the scheme is without support in the record. No evidence was presented that LIUNA instigated or in any way became directly involved in a scheme to suppress dissent. We, therefore, reject plaintiffs’ claims regarding co-participant liability.
4. Breach of Union Constitution
Plaintiffs assert that, under section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185, LIUNA is liable for having breached its constitution by failing to afford plaintiffs a fair hearing. In dismissing plaintiffs’ claim, Judge Cannella decided that he could not act as a “superreview board” because plaintiffs cited no specific constitutional provision alleged to have been violated. On appeal, plaintiffs now allege specific constitutional violations.
Local 95’s constitution provides that “[t]he hearing and trial shall be conducted in an orderly, fair and impartial manner and should assure the full presentation of all facts to the Trial Board____” Uniform Local Union Constitution, Art. XII, § 4; J.App. at 73. LIUNA’s constitution adopts these procedures for trials conducted by local unions. Plaintiffs argue that “LIUNA breached [its constitution] when it knowingly affirmed appellants’ discipline, imposed without a fair hearing.” Br. of Plaintiffs at 16. We reject this claim for the same reason that we reject plaintiffs’ ratification theory. There is simply no evidence to support a finding that LIUNA acted with full knowledge of any impropriety in the proceedings conducted by Local 95. Plaintiffs’ section 301 claims, therefore, must fail.
B. Plaintiff Diduck’s Claims
Diduck claims that Judge Cannella erred in his charge to the jury regarding discipline imposed by Local 95. The charges filed against Diduck stated that he had “wilfully slandered” defendant Adams in a letter addressed to Senyshyn with copies to LIUNA. According to the letter, Adams threatened Diduck with bodily harm on one occasion. Diduck also heavily criticized Senyshyn’s union activities, including Senyshyn’s failure to take action against union members who stormed Rodonich’s office.
There is no question that discipline of a union member for even libelous speech is a violation of the LMRDA. Salzhandler v. Caputo, 316 F.2d 445, 446 (2d Cir.), cert. denied, 375 U.S. 946, 84 S.Ct. 344, 11 L.Ed.2d 275 (1963); see Petramale v. Local No. 17 of Laborers International Union, 736 F.2d 13, 18 (2d Cir.), cert. denied, 469 U.S. 1087, 105 S.Ct. 593, 83 L.Ed.2d 702 (1984). The only question presented here is whether Local 95 actually disciplined Di-duck. After a trial, Local 95 found Diduck “guilty” of the charges, fined him $500 and issued a “warning” that Diduck’s union membership would be revoked if he committed further misconduct. No effort was made to collect the fine.
The district court instructed the jury regarding discipline as follows:
You must determine whether this fine was enforced against Diduck. If not, he has suffered no discipline unless you find that the disciplinary proceedings were brought in bad faith and Diduck suffered injury to his free speech as a result of these proceedings.
J.App. at 614. Objections to the charge were timely made. J.App. at 630-31. Because Diduck conceded that he did not pay the fine, he argues that the instruction was tantamount to directing a verdict against him. We agree. Lack of enforcement of the fine is irrelevant. Clearly, Diduck was penalized for the assertion of protected rights. Once Local 95 rendered its decision, Diduck became a debtor of the Local. Failure to pay the fine presumably would result in further sanctions, including the possibility of expulsion from the union. Moreover, the language in Judge Cannella's instruction permitting the jury to find discipline if the proceedings were brought in bad faith and if Diduck suffered injury to his free speech did not remedy this error. Diduck should have been permitted to prove that he was disciplined merely by showing that the fine was imposed. The alternative elements of bad faith and injury to free speech are more difficult to prove and, therefore, do nothing to alleviate the prejudicial impact of the charge.
Because the imposition of a fine constituted discipline in violation of Diduck’s rights under the LMRDA, a directed verdict should be entered on remand in favor of Diduck on the .issue of liability both as against Local 95 and LIUNA. LIUNA is liable for having ratified Local 95’s action with full knowledge of its unlawful character because the charges of slander were violative of the LMRDA on their face. On remand, Diduck may seek damages for Local 95’s imposition of unlawful discipline.
C. Other Claims
In its cross-appeal, LIUNA argues that plaintiffs’ claims are time barred by a six month statute of limitations found in section 10(b) of the NLRA. LIUNA contends that DelCostello v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983), provides support for “borrowing” a limitations period from federal law, rather than state law, for claims brought under the LMRDA, which contains no statute of limitations. The district court rejected LIUNA’s argument and adopted a three year state statute of limitations applicable in federal civil rights actions. We agree with that decision.
In DelCostello, the Supreme Court held that the six month federal statute of limita.tions found in section 10(b) of the NLRA was the most appropriate for claims asserted under the LMRA. In so holding, the Court departed sharply from the traditional practice of borrowing limitations periods for federal statutes from state law. This departure was justified, according to the Court, “[i]n ... circumstances [where] state statutes of limitations [are] unsatisfactory vehicles for the enforcement of federal law.” 462 U.S. at 161, 103 S.Ct. .at 2289. A six year state limitations period applicable to contract actions was rejected in DelCostello. The Court reasoned that the disruptive nature of a hybrid action brought .under section 301 of the LMRA against an employer, together with a fair representation claim brought against a union, impacted directly on the finality of private settlements under the collective bargaining system. This disruption justified the adoption of the six month statute found under section 10(b) of the NLRA, which Congress established to promote stable bargaining relationships.
We have previously held that DelCostello’s reasoning should be narrowly construed. “The particularized circumstances of the hybrid section 301/duty of fair representation suit, which inevitably involve an immediate and direct impact on labor-management relations, demarcate the limits of DelCostello’s reach.” Monarch Long Beach Corp. v. Soft Drink Workers, 762 F.2d 228, 231 (2d Cir.1985), cert. denied, _ U.S. _, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985). In this case, no immediate and direct impact on labor-management relations exists. The concerns for protecting the finality of private settlements are not implicated in a suit alleging infringement of union members’ rights under the LMRDA. Union democracy claims do not attack the compromise reached between a union and an employer. See Doty, 784 F.2d at 7. Such a suit does not implicate the collective bargaining process. Instead, LMRDA claims are asserted only against the union and concern disruption of internal union democracy. Any impact felt upon the collective bargaining process is, at most, tangential and certainly not of the direct nature found controlling in DelCostello. We adhere to DelCostello’s admonition, therefore, that its holding “should not be taken as a departure from prior practice in borrowing limitations periods for federal causes of action” and that it should not be interpreted “to suggest that federal courts should eschew use of state limitations periods anytime state law fails to provide a perfect analogy.” 462 U.S. at 171, 103 S.Ct. at 2294.
Plaintiffs urge the adoption of the three year statute of limitations governing personal injury actions in New York, C.P.L.R. § 214(5), for suits arising under the LMRDA. Although personal injury actions provide a less than perfect analogy to LMRDA claims, state limitations periods for personal injury claims have been applied to federal civil rights laws, E.g., Wilson v. Garcia, 471 U.S. 261, 276, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). Civil rights violations bear a strong resemblance to claims asserted under the LMRDA, such as free speech, freedom of assembly and right to vote claims. The same concerns prompting the use of a three year limitations period for civil rights claims are also present in LMRDA suits. For instance, a plaintiff must be given sufficient time to discover defendant’s wrongdoing, but not so much time as to allow witnesses to disappear, memories to fade or to otherwise impair the ability of the defendant to mount a defense. We, therefore, deem New York’s personal injury statute of limitations to be the most appropriate state limitations period to govern federal LMRDA claims. Accordingly, we agree with the district court’s conclusion that plaintiffs’ suit was timely filed.
The final issue on this appeal concerns the district court’s instruction on mental distress. The court instructed the jury as follows:
Moreover, you must find that the plaintiff you are considering has proven a basis for such damages by the fair preponderance of credible evidence. The mere fact that a plaintiff may assert that he has suffered emotional or mental distress or loss of reputation is an inadequate basis as a matter of law for awarding such damages. You may not presume that the plaintiff suffered mental or emotional distress simply because their [sic] rights were violated. Rather, you must find such mental or emotional distress based upon the particular plaintiff’s physical condition or medical evidence. You are limited by the testimony as it was given during the course of the trial.
J.App. at 639-40. Objections to the charge were noted by the district court. Id. at 641-42. Plaintiffs argue that this instruction was erroneous because it prohibited an award of damages for emotional distress or injury to reputation without a finding of physical injury. While we agree that this may be the fair import of the instruction, we cannot agree that the charge was erroneous.
The qualification that claims of emotional distress be supported by a physical manifestation of injury is an appropriate safeguard against the award of excessive and speculative damages against unions. “Such awards could deplete union treasuries, thereby impairing the effectiveness of unions as collective-bargaining agents.” International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 50-51, 99 S.Ct. 2121, 2127, 60 L.Ed.2d 698 (1979) (punitive damages not recoverable in fair representation suits against a union). We do not suggest that damage awards for emotional distress are inappropriate in LMRDA suits. Such awards are proper forms of compensatory relief for actual injury. However, we deem it advisable, in light of the significant impact on union coffers, to require a physical manifestation of emotional distress before permitting an award. We, therefore, find ourselves in agreement with the rule in the Ninth Circuit that damages for emotional distress are not recoverable under the LMRDA absent a showing of physical injury. See, e.g., Bloom v. International Brotherhood of Teamsters, 752 F.2d 1312, 1315 (9th Cir.1984) (noting rule that actual injury must be demonstrated); Bise v. International Brotherhood of Electrical Workers, 618 F.2d 1299, 1305 (9th Cir.1979) (jury’s award of damages for emotional distress vacated where evidence failed to show actual harm), cert. denied, 449 U.S. 904, 101 S.Ct. 279, 66 L.Ed.2d 136 (1980); International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers v. Rafferty, 348 F.2d 307, 315 (9th Cir.1965) (emotional distress, standing alone, is not a basis for awarding damages under LMRDA).
CONCLUSION
We affirm the decision of the district court as to all claims against LIUNA except those of plaintiff Diduck. Regarding Diduck’s claims, we reverse the decision on the issue of liability and remand the case to the district court for entry of a directed verdict in favor of Diduck and for further proceedings on the issue of damages. The decision is affirmed as to LIUNA’s cross-appeal regarding the statute of limitations and plaintiffs’ claim regarding the instruction on emotional distress.
. LIUNA urges us to craft a broad protection for international unions engaged in reviewing local union disciplinary action. According to LIUNA, liability should be imposed only where the international acts in bad faith or is guilty of fraud. Without such protection, “labor organizations would likely be discouraged from establishing and maintaining internal appellate processes.” Br. of LIUNA at 34. LIUNA cites International Brotherhood of Electrical Workers v. NLRB, 487 F.2d 1113 (D.C.Cir.1972), cert. denied, 418 U.S. 904-05, 94 S.Ct. 3194, 41 L.Ed.2d 1152 (1974) (IBEW), in support of its contention.
In IBEW, the District of Columbia Circuit upheld a cease and desist order against an international union for affirming discipline imposed unlawfully on union members by a union local. Id. at 1128-29. The court also held, however, that the international could not be held liable in damages for mere affirmance of unlawful discipline where the international performs its appellate function in good faith and in the absence of fraud. Id. at 1129; see also People ex rel. Solomon v. Brotherhood of Painters, Decorators and Paperhangers of America, 218 N.Y. 115, 112 N.E. 752, 754 (1916). IBEW was based on violations of the NLRA rather than the LMRDA.
We do not read IBEW as propounding a novel theory of liability or eschewing traditional concepts of agency liability in the present context. The IBEW Court specifically stated that "[t]he International Union should only be held liable for the illegal fines collected by Local 134, if the [local] union acted as its agent." 487 F.2d at 1129. In any event, we see little difference between the "bad faith/fraud” formulation espoused by LIUNA and the "ratification with full knowledge” standard we adopt today. Ratification with full knowledge of unlawful discipline necessarily amounts to bad faith.
. Plaintiffs' cause of action against LIUNA accrued on receipt of LIUNA’s decision to affirm Local 95. This letter was dated February 23, 1982, and, presumably, was received a short time thereafter. Plaintiffs filed their complaint on August 23, 1982.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HARLINGTON WOOD, Jr., Circuit Judge.
Petitioner Tuf-Flex Glass seeks review of the National Labor Relations Board’s finding that Tuf-Flex unlawfully refused to bargain with the intervenor union, following its certification, in violation of Section 8(a)(5) of the National Labor Relations Act; the respondent Board has cross-petitioned for enforcement of its concomitant order directing Tuf-Flex to bargain with the union and to provide certain requested information and to post an appropriate notice. The primary issue raised on appeal is whether there was substantial evidence in the record permitting the Board to conclude that certain threats made in the course of a union election campaign did not result in an impermissibly coercive voting atmosphere. We agree with the Board’s finding and grant enforcement of its order in full.
I.
The underlying controversy began in March, 1981, when the union filed a representation petition seeking certification as the collective bargaining representative of the twenty-five production and maintenance workers employed at Tuf-Flex’s Elmhurst, Illinois facility which manufactures tempered architectural safety glass. In April, a secret ballot election was conducted by the Board, and the union won by a vote of 14 to 8. Tuf-Flex, however, filed timely objections to the election, alleging that the union had unlawfully threatened employees with reprisals for failing to vote in the union’s favor, thus coercing them into voting for the union. The Board’s regional director investigated the objections, and in May recommended that the objections be overruled and the union certified as the bargaining representative. The Board, however, directed an evidentiary hearing to explore the existence, nature, origin and effects of the alleged threats.
In November, 1981, that proceeding was held. At the hearing, numerous versions of the alleged events were set forth even by the same witnesses and, accordingly, the hearing officer deemed it necessary to make certain credibility determinations as part of his findings. After doing so, the hearing officer found that the credible testimony established that at least two weeks prior to the election, one employee, Salvador Arias, told another employee, Pedro Sanchez, to tell yet a third employee, Jose Gutierrez, that if Gutierrez did not vote for the union and tell other employees to vote for the union, Arias would file a “complaint” (whose nature was never specified) against Gutierrez concerning the latter’s admitted involvement in an incident more than a year earlier in which he acted as an intermediary between a company “leadman” and two job applicants who paid the leadman money in order to obtain employment with Tuf-Flex. Arias, the hearing officer found, subsequently made the same statement directly to Gutierrez, and Sanchez later repeated to Gutierrez the conversation between Sanchez and Arias but, “because of Sanchez’s fears at that time,” added his own gloss that Arias might “hurt” Gutierrez or his family. The hearing officer also found that Gutierrez related his conversation with Arias to another employee, Florentino Villalpando, and that on the day of the election, Sanchez, Gutierrez and Villalpando told four employees to vote for the union, but did not give the employees a reason for doing so. These employees testified that they were in no way threatened and one stated that he had responded to this overture by noting that the vote was secret and his decision a personal one.
Prior to assessing whether these events created a level of coercion sufficient to invalidate the election, the hearing officer undertook to determine whether Arias acted as an agent of the union and thus whether his threat should be deemed attributable to the union. Noting that the credible testimony established that Arias was the employee who first contacted the union to initiate the organizing campaign, that employees referred to Arias as “the union man” since he was the most vocal union supporter at the plant, that Arias aided the union organizer, Miguel Travieso, and was used by him to “get the news” to Tuf-Flex employees, that Arias passed out union authorization cards and campaign literature on company premises, and that at a union meeting Arias sat next to Travieso, but that Arias was never promised nor did he receive any monetary or other benefit from the union and that Travieso was in charge of the union’s organizing campaign (e.g., Travieso telephoned and visited employees’ homes, distributed leaflets at the plant, obtained authorizations and signatures, distributed his business card to several employees and solicited further questions, was present in official capacity at several union organization meetings, and was seen by employees at the plant and was known to be a union staff member), the hearing officer concluded that Arias was not an agent of the union and had no actual or apparent authority to speak on the union’s behalf. The hearing officer reasoned that mere vocal support for the union and encouragement of employees to attend union meetings could not confer spokesman status to a union supporter, and that, in the case before him, any impression of agency that Arias may have created was overcome by employees’ testimony that they knew Travieso was the union’s representative and that Travieso was visible to employees at the plant and at organizing meetings. The hearing officer thus distinguished the case before him from such cases as Beaird-Poulan Division, Emerson Electric Co., 247 NLRB No. 180 (1980) and NLRB v. Georgetown Dress Corporation, 537 F.2d 1239 (4th Cir.1976), where an in-plant organizing committee composed of employees was the primary or sole intermediary between the employees and the union and thus the employees were deemed to have agency status.
Having determined that Arias’ statements were not to be considered those of a union agent, the hearing officer then inquired whether Arias’ “conduct as a rank- and-file employee was so aggravated as to create a general atmosphere of coercion and fear of reprisal so as to interfere with employee free choice in the election,” reflecting that a somewhat looser standard is applied by the Board and the courts in assessing the impact of conduct of rank-and-file employees, as opposed to that of union agents. Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 510-511 n. 5 (7th Cir.1977); Steak House Meat Company, 206 NLRB 28, 29 (1973). The hearing officer found that Arias’ threat to file an unspecified “complaint” was not “sufficiently substantial” to create a “general environment of fear and reprisal,” since the meaning and consequences of the threatened complaint-filing were unclear and in any event the complaint would be a peaceful, legal action rather than one involving violence or physical harm, thus making the case analogous to that presented in Beaird-Poulan Division, Emerson Electric Co., 247 NLRB No. 180 (1980) and Mike Yurosek & Sons, Inc., 225 NLRB 148 (1978), enforced, 597 F.2d 661 (9th Cir.1979), cert, denied, 102 LRRM 2360 (1979), where threats involving the filing of charges against employees or the initiation of immigration service investigations against illegal aliens in the bargaining unit were found insufficient to warrant the vitiation of election results. Thus, having determined that the election was not impermissibly tainted by coercion, the hearing officer issued a report recommending that Tuf-Flex’s objections be overruled.
Tuf-Flex took exception to the hearing officer’s report and further urged the Board to overturn the election on the new and independent basis that two allegedly “supervisory” employees had undertaken pro-union activity. In June, 1982, the Board issued a supplemental decision adopting the hearing officer’s recommendations and certifying the union as the bargaining unit representative; it also required the company to commence collective bargaining negotiations and provide the union with certain information and post appropriate notice. In July, Tuf-Flex refused to comply with the order on the basis that the Board’s certification of the union was improper; the union countered with an unfair labor practice charge alleging that Tuf-Flex was unlawfully refusing to bargain. The Board’s regional director issued a complaint charging Tuf-Flex with violating Section 8(a)(5) of the NLRA. After transferring the case to itself, the Board concluded in December, 1982 that Tuf-Flex unlawfully refused to bargain, noting that all of the issues before it were, or could have been, raised in the prior representation hearing, and that no new evidence had been presented requiring reexamination of the Board’s earlier representation decision. Accordingly, the Board directed the company to bargain with the union, provide the requested information, and post appropriate notice. Tuf-Flex seeks review of that order, and the Board has cross-petitioned for its enforcement.
II.
Before confronting the heart of this case — the legal significance of Arias’ threat — we must address the-apparent contention by Tuf-Flex that the facts were erroneously found by the hearing officer. For example, Tuf-Flex represented in its brief that, in contrast to the hearing officer’s findings, the evidence showed that Arias threatened to “hit” Gutierrez or “hurt” his family, that Arias threatened that the union, and not Arias, would file the “complaint,” that Sanchez conveyed Arias’ “complaint” threat not only to Gutierrez but to four other employees, that Gutierrez attempted to “compel” or “coerce” employees to vote for the union, and, with respect to the agency question, that Arias stated to his fellow employees that he would be “in charge” if the union won the election.
We note at the outset that each of these factual determinations explicitly turned on the hearing officer’s assessment of witness credibility and demeanor, and that such determinations may not be overturned absent the most extraordinary circumstances such as utter disregard for sworn testimony or the acceptance of testimony which is on its face incredible. NLRB v. Berger Transfer & Storage Co., 678 F.2d 679, 687 (7th Cir.1982); Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 505 (7th Cir.1977). Here, the hearing examiner undertook the painstaking and, given the inconsistency of narratives emanating in some cases from the very same witness, exasperating task of winnowing the most likely version of the pre-election events. We find his reasoning and conclusions both rigorous and sound.
For example, with respect to the actual content of Arias’ threat, the hearing officer was confronted with numerous and conflicting versions from Sanchez and Gutierrez, in only some of which they indicated that Arias threatened to “hit” or “hurt” Gutierrez or his family or that the union would be the party to file the complaint. In particular, the hearing officer noted that Sanchez’s testimony regarding the purportedly violent portion of Arias’ threat was unreliable as he had a tendency to convey impressions rather than verbatim recollections, and that the testimony that Arias said the union would file the complaint was too “confusing and imprecise” to warrant credulity. Likewise, the hearing officer found, there was not a shred of evidence that the existence or content of the Arias threat was conveyed to other employees beyond Sanchez, Gutierrez and Florentino Villalpando or that the threats were used to press employees into voting in favor of the union; indeed, each of the allegedly threat-compelled employees testified that, although they were told to vote for the union by Sanchez, Gutierrez and Villalpando, no reason for such a vote was given and no threat was made in connection with these voting instructions. With respect to Arias’ alleged remark that he would be “in charge” upon the union’s election, the hearing officer discredited the evidence supporting its occurrence in large part because the only witness affirmatively attesting to it admitted on cross-examination that he did not pay attention at the meeting where the remark was allegedly made, and that he did not actually remember what Arias said there. Tuf-Flex’s other implicit challenges to the hearing officer’s factual findings, like these, are merely attempts to disturb the well-considered reconstruction of events arrived at through the making of difficult credibility assessments from numerous conflicting narratives and the observation of witness demeanor. The examination of this record leaves us convinced that the hearing officer’s reconstruction was amply supported by substantial evidence on the record as a whole.
III.
Turning to the legal effect of Arias’ threats on the integrity of the election atmosphere, we first express our agreement with the hearing officer’s and the Board’s findings that Arias- was not clothed by the union with either actual or apparent authority, and thus his threats were properly not imputed to the union through traditional agency principles. The test of agency in the union election context is stringent, involving a demonstration that the union placed the employee in a position where he appears to act as its representative. Certain-Teed Products Corp. v. NLRB, 562 F.2d 500, 509-510 n. 5 (7th Cir.1977); Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 649 F.2d 589, 594 (8th Cir.1981); it is not enough that the employee unilaterally claims representative status, Firestone Steel Products Company, 235 NLRB 548, 550 (1978); 1 Restatement (Second) of Agency § 8 (1958). While Arias was known as the most active “union man” and was used as a conduit to “get the news to employees,” passing out union literature and authorization cards, substantial evidence established that Tuf-Flex employees were well aware that Miguel Travieso was the union’s representative in the campaign, as he had communicated with and solicited questions from the employees in person at home and outside the factory and had conducted and keynoted several union organizational meetings. Thus, unlike in Pastoor Brothers Co., 223 NLRB 451, 453 (1976) and Local 340, International Brotherhood of Operative Potters, 175 NLRB 756, 759 (1969), relied upon by Tuf-Flex, where the employees, respectively, took a dominant campaign role (arranging union meetings, drafting campaign literature, serving as union election observers), or were the sole union contact with employees, here there is an absence of evidence of conduct or non-conduct by the union sufficient to signal to employees that Arias was anything more than an enthusiastic supporter helping a full-time organizer. Moreover, if is not even contended here that the union had knowledge of, much less affirmed, Arias’ interpersonal threats. See Certain-Teed Products Corp., 562 F.2d at 511 n. 5. Compare NLRB v. Urban Telephone Corp., 499 F.2d 239, 243 (7th Cir.1974). Thus, we agree with the hearing examiner that Arias’ statements are not attributable to the union under either of the alternative agency theories of apparent authority or ratification.
Having thus found Arias’ statements to be without the union’s implied imprimatur, we must give less weight to these utterances in determining whether the hearing officer properly found the election to be valid. Certain-Teed Products Corp., 562 F.2d at 510-11; NLRB v. Urban Telephone Corporation, 499 F.2d 239, 242 (7th Cir.1974). Under such circumstances, our touchstone for analysis is whether Arias’ isolated threat created such an atmosphere of fear and reprisal that the rational, uncoerced selection of a bargaining representative was rendered impossible. Beaird-Poulan Division, Emerson Electric Co. v. NLRB, 649 F.2d 589, 594 (8th Cir. 1981); Bush Hog, Inc. v. NLRB, 420 F.2d 1266, 1269 (5th Cir.1969).
No such pervasive fear of reprisal crippling free choice was present here. The credited evidence showed merely collateral pressure applied to a single individual, Gutierrez, through the threat of the activation of a legal and peaceful channel of redress for conduct in which Gutierrez admittedly participated; the evidence also showed that two other employees, Sanchez and Villalpando, learned of this threat as conduit and confidant, respectively. There is no evidence showing that any other employee in the twenty-five-member bargaining unit knew of the threat, much less that they felt coerced or threatened in any way by those who knew of the threat; to the contrary, the employees testified that they had not been threatened and one even stated that he had responded to the partisan overtures of Gutierrez, Villalpando and Sanchez by noting that the ballot was secret and his choice a personal matter. These are hardly the indicia of pervasive coercion destroying the employee electorate’s freedom of choice, as in NLRB v. Urban Telephone Corp., 499 F.2d 239, 244 (7th Cir.1974) and Sonoco of Puerto Rico, Inc., 210 NLRB 493 (1974), where there were numerous threats of physical violence made to employees contingent upon the union’s loss. Instead, this case is closer to NLRB v. Mike Yurosek & Sons, Inc., 597 F.2d 661, 662 (9th Cir.1979), where there was set in motion a widespread rumor that upon the defeat of the union, the Immigration and Naturalization Service would be alerted to the presence of illegal alien employees; Beaird-Poulan Division, Emerson Electric Co., 247 NLRB No. 180 (1980), aff’d 649 F.2d 589, 593 (8th Cir.1981), where, inter alia, one employee threatened to invoke internal union sanctions against another employee because the latter has ceased attending union meetings; and Fones v. NLRB, 431 F.2d 417, 419-20 (5th Cir.1970), where employees were threatened with the exposure of their extramarital liaisons; in all three cases, the threats were found insufficient alone or in combination with others to irretrievably pollute the otherwise unfettered electoral atmosphere. Especially where, as here, there was positive testimony that the pro-union campaign statements by those who knew of Arias’ peaceful and contingent legal action contained no reference to that action and were perceived subjectively as noncoercive, a similar result is required.
IV.
Tuf-Flex alternatively contends that enforcement of the Board’s order should be denied on the basis that the hearing officer violated Tuf-Flex’s due process rights by permitting the allegedly poorly translated affidavits of five employees taken by the Board to be used by the union in cross-examining company witnesses, by requiring Tuf-Flex to make available for union cross-examination purposes affidavits and statements taken from employees by Tuf-Flex’s attorneys (allegedly in violation of the attorney-client privilege), and by refusing to permit Tuf-Flex to recall five witnesses and call two new witnesses at the conclusion of the union’s case to testify at greater length concerning union organizer Miguel Travieso’s role in the Tuf-Flex campaign. These contentions are without merit.
With respect to the affidavits and statements, Tuf-Flex has failed to meet its threshold burden of establishing that prejudice resulted from any error involved in their production. Dodson v. National Transportation Safety Board, 644 F.2d 647, 652 (7th Cir.1981); NLRB v. Health Tec Division/San Francisco, 566 F.2d 1367, 1371-72 (9th Cir.), cert, denied, 439 U.S. 832, 99 S.Ct. 110, 58 L.Ed.2d 127 (1978). Here, no prejudice could have resulted, since the hearing officer and the Board simply did not rely on the affidavits in resolving any issue in the case. For example, none of the Board affidavits were ultimately relied upon for substantive or credibility purposes: the hearing officer specifically gave “no weight” to Arias’ affidavit; the Board stated in its adoption of the hearing officer’s findings discrediting parts of the Sanchez’s and Gutierrez’s testimony that it did not rely on their affidavits, but rather on their demeanor, and inconsistent and confusing testimony; and the testimony of Marquez, Jesus and Lorenzo Villalpando, and Reyes was directly credited without reliance on the affidavits. Similarly, none of the company’s affidavits compelled under the contested order had any impact on the hearing officer’s credibility determinations, as he credited the testimony of most of these witnesses. With respect to the testimony of two witnesses he did not credit, the impeaching affidavits were made available to the union through an alternative' route: their submission by Tuf-Flex in conjunction with the company’s filing of objections and the production of these documents by the regional director at the hearing without company objection. Failing, then, to demonstrate any prejudicial impact of the production of the compelled affidavits and statements, Tuf-Flex is not entitled to non-enforcement on the basis of possible procedural error committed thereby.
We also believe that the hearing officer’s refusal to permit Tuf-Flex to recall five witnesses and two new witnesses at the close of the union’s case to expand on the previously explored theme of the relative prominence of Arias and Travieso in the organizing campaign did not constitute a clear abuse of discretion or result in any prejudice to the company. NLRB v. Doral Building Services, Inc., 666 F.2d 432, 435 (9th Cir.1982); Dodson v. National Transportation Safety Board, 644 F.2d 647, 652 (7th Cir.1981); Barrus Construction Company v. NLRB, 483 F.2d 191, 195-97 (4th Cir.1973), as such testimony was cumulative. Prior to the point at which the testimony was barred, the issue of Arias’ authority and Travieso’s prominence in the campaign had been explored exhaustively and formed a central issue in the hearing. Indeed, five of the witnesses sought to be requestioned had already testified precisely to their view of Travieso’s activities, and there was no offer of proof that they or the two new witnesses would discuss any unexplored evidence of those activities; Tuf-Flex’s counsel conceded that the information could have been proffered as part of its case in chief. While it is true that Travieso himself testified for the first time in the union’s presentation, nothing in his testimony created inconsistencies with the employees’ earlier testimony concerning his role. Because Tuf-Flex failed to identify any essentially new matters raised by the union’s case, the hearing officer was well within his discretion in forbidding the company from offering more direct evidence ostensibly in rebuttal. Page v. Barko Hydraulics, 673 F.2d 134, 135-140 (5th Cir.1982); 6 J. Wig-more, Evidence § 1873 (Chadbourn Rev.Ed. 1976).
V.
The intervenor union has moved that this court grant it attorney’s fees against Tuf-Flex pursuant to 28 U.S.C. § 1927 as a punitive gesture directed against the company’s allegedly unreasonable and vexatious multiplication of the proceedings. The vexation alleged stems from Tuf-Flex’s failure to accurately note in its brief the true nature and consequences of the hearing officer’s rulings with respect to the affidavits discussed in IV, supra, and its failure to note that many of the assertions contained in its statement of facts had been specifically discredited by the hearing officer, as discussed in II, supra. It is true that factual misrepresentation can form the basis for a punitive award, but generally this extraordinary sanction is only applied where the misrepresentation is responsible for preserving an otherwise meritless suit. See, e.g., McCandless v. Great Atlantic and Pacific Tea Co., 697 F.2d 198, 202 (7th Cir.1983). While we do not look favorably upon the lack of candor of Tuf-Flex in failing to note explicitly that it was challenging certain credibility findings of the Board or to characterize more accurately the facts concerning the affidavit and rebuttal rulings, we think that such omissions do not warrant the award of fees where, as here, the legal basis of the company’s primary objection to the election (i.e. the alleged coercion) was, if not ultimately convincing, at least plausible. Overnite Transp. Co. v. Chicago Industrial Tire Co., 697 F.2d 789, 795 (7th Cir.1983).
For the foregoing reasons, Tuf-Flex’s petition for review of the National Labor Relations Board order directing it. to bargain with the union and to provide requested information and post appropriate notice is denied and the Board’s order is hereby enforced. The union’s motion for attorney’s fees is denied.
Enforced.
. Tuf-Flex also urges this court to review the Board’s approval of the representation election on the basis, first suggested in the company’s exception to the hearing officer’s report, that two of Tuf-Flex’s statutory supervisory employees engaged in pro-union conduct. Although the supervisory status of these two employees was first raised by the union before the hearing officer, the specific contention that such supervisory status produced independent grounds for nullifying the election was urged for the first time before the Board nearly a year after the election, in clear violation of the Board’s procedures requiring that objections be filed within five days after the election, 29 C.F.R. § 102.69, except where the previously unalleged misconduct is newly discovered or information about it previously unavailable. Burns v. International Securities Service, Inc., 256 NLRB No. 165 (1981); Parks Food Service, 235 NLRB 1410 (1978). Thus, the Board properly refused to consider this contention, as it was raised in an untimely fashion and no averment was made that evidence of the supervisory misconduct was either newly discovered or previously unavailable. We must therefore decline to consider this contention on appeal. NLRB v. Newton-New Haven Co., 506 F.2d 1035, 1038 (2d Cir.1974); Singer Co. v. NLRB, 429 F.2d 172, 181 (8th Cir.1970).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
CONTIE, Senior Circuit Judge.
The appellant, the United States of America, contests the district court’s dismissal of the indictment as insufficient. The indictment alleged that appellee, Jean Pierre DeAndino, violated 18 U.S.C. § 875(c) because he “did knowingly and willfully transmit in interstate commerce ... a communication containing a threat to injure.” For the following reasons, we reverse the decision of the district court and find that the indictment is sufficient.
I.
On November 19, 1990, an indictment was returned in the United States District Court for the Western District of Kentucky, charging appellee, Jean Pierre DeAndino, with violation of 18 U.S.C. § 875(c). The indictment read as follows:
On or about the 21st day of October, 1990, in the Western District of Kentucky, Jefferson county, Kentucky, and elsewhere, JEAN PIERRE DeANDINO, defendant herein, did knowingly and willfully transmit in interstate commerce between Washington, District of Columbia, and Louisville, Commonwealth of Kentucky, a communication containing a threat to injure Nelson Baker, to wit, that JEAN PIERRE DeANDINO was, “going to blow his brains out” and he was “going to die.”
In violation of Title 18, United States Code, Section 875(c).
The indictment tracked the language of the statute, 18 U.S.C. § 875(c), which reads as follows:
Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined not more than $1,000 or imprisoned not more than five years, or both.
Appellee moved to dismiss the indictment as flawed, because it did not allege that he possessed a specific intent to threaten. The district court found that the indictment was flawed and dismissed it. The district court held that section 875(c) “defines a specific intent crime,” and an indictment for such a crime “must charge that the defendant knowingly and willfully threatened or intended to threaten.” Joint Appendix at 9-10. The court found that the indictment charging DeAndino was insufficient, because it. “charges only that the defendant knowingly and willfully transmitted a communication containing a threat.” Id.
The United States timely appealed the dismissal, arguing that section 875(c) defines a general intent crime, not a specific intent crime, in regard to the threat element of the offense, and the indictment was therefore sufficient.
II.
An indictment is sufficient if it “set[s] forth the offense in the words of the statute itself, as long as ‘those words ... fully, directly, and expressly ... set forth all the elements necessary to constitute the offense intended to be punished.’ ” Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). A criminal statute such as 18 U.S.C. § 875(c) does not contain a specific mens rea element. However, such a statute is not presumed to create a strict liability offense, because “mere omission [from the statute] of any mention of intent will not be construed as eliminating that element from the crime denounced.” Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 250, 96 L.Ed. 288 (1952). In other words, the prosecution bears the burden of proving that the defendant “knowingly committed an act which the law makes a crime.” United States v. Bailey, 444 U.S. 394, 407, 100 S.Ct. 624, 663, 62 L.Ed.2d 575 (1980).
In the present case, the indictment tracked the statutory language and stated that it is a crime to “transmit in interstate commerce ... a communication containing a threat” and added the words “knowingly” and “willfully” before the word “transmit” to indicate that the defendant’s act must be “knowing” — in other words, he cannot be prosecuted for mistakenly or inadvertently transmitting a communication containing a threat to injure.
There are three elements of the offense defined by 18 U.S.C. § 875(c). There must be: (1) a transmission in interstate commerce; (2) a communication containing a threat; and (3) the threat must be a threat to injure the person of another.
The issue in the present case is whether the second element — “the communication containing a threat” — requires general intent or specific intent. If the statute contains a general intent requirement in regard to the threat element of the offense, the standard used to determine whether or not the communication contained an actual threat is an objective standard, i.e., would a reasonable person consider the statement to be a threat. If the statute contains a specific intent requirement, the standard is a subjective standard, i.e., did the particular defendant have the subjective knowledge that his statement constituted a threat to injure and did he subjectively intend the statement to be a threat.
In regard to the present case, if the threat element of section 875(c) has a mens rea requirement of general intent, whether the communication is a “true threat,” and hence criminal, would not be determined by probing DeAndino’s subjective purpose, but instead would be determined objectively from all the surrounding facts and circumstances. See United States v. Vincent, 681 F.2d 462, 464 (6th Cir.1982) (applying “objective” standard under which inquiry in section 871 threat prosecutions is whether a reasonable person would have taken the defendant’s statement as “a serious expression of an intention to inflict bodily harm”); United States v. Lincoln, 462 F.2d 1368, 1369 (6th Cir.) (in rejecting argument that section 871 requires that a defendant have willfully intended to carry out the threat, court agreed with all other circuits that statute applies where the “defendant intentionally make[s] a statement, written or oral, in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression” of a threat to injure), cert. denied, 409 U.S. 952, 93 S.Ct. 298, 34 L.Ed.2d 224 (1972).
If the statute at issue in the present case has a heightened mens rea requirement of specific intent in regard to the threat element of the offense, the question of whether or not the alleged threat is a “true threat” would be determined by probing DeAndino’s subjective purpose in making the statement. The district court found specific intent was required, and that in order to properly designate the elements of the offense, the indictment would have to specify that the defendant knowingly threatened his victim. We disagree with the district court’s conclusion that section 875(c) requires specific intent.
In United States v. Brown, 915 F.2d 219, 225 (6th Cir.1990), this court has taken the position that “a general rule of construction of criminal statutes provides that where a statute does not specify a heightened mental element such as specific intent, general intent is presumed to be the required element” (emphasis added). According to the rationale of Brown, because the language of section 875(c) does not expressly require a heightened mental element in regard to the “communication containing a threat,” it is presumed that the statute requires general intent. Although Brown did not deal with a statute containing a threat, the presumption we articulated in Brown that unless there is evidence to the contrary, criminal statutes require general intent is in accord with other courts that have analyzed statutes containing a “threat” as an element of the offense. See United States v. Bozeman, 495 F.2d 508, 510 (5th Cir.1974) (a conviction under 18 U.S.C. § 875(c) requires proof that the threat was made knowingly and intentionally), cert. denied, 422 U.S. 1044, 95 S.Ct. 2660, 45 L.Ed.2d 696 (1975); United States v. LeVison, 418 F.2d 624, 626 (9th Cir.1969) (“a general intent to threaten is an essential element of the crime”); United States v. Holder, 302 F.Supp. 296, 300 (D.Montana 1969) (it is sufficient to establish knowing intent to communicate a threat to injure), aff'd by, 427 F.2d 715 (9th Cir.1970).
In regard to the present case, although a general intent to threaten is an essential element of the offense, see United States v. LeVison, 418 F.2d at 626, there is nothing in the language of the statute or legislative history to indicate that Congress intended that there be a heightened mens rea requirement in regard to the threat element or to indicate that the prosecution has to prove a specific intent to threaten based on the defendant’s subjective purpose. Therefore, the rationale of Brown that criminal statutes are presumed to require general intent applies.
For this reason, the district court erred in finding that in addition to stating a knowing intent to transmit a communication containing a threat, the indictment also had to indicate a specific intent to threaten. The district court relied on a Ninth Circuit opinion, United States v. Twine, 853 F.2d 676 (9th Cir.1988), in reaching this conclusion. We find that the reasoning of Twine is flawed. The Twine court held that a specific intent requirement is necessary in regard to the threat element of section 875(c) in order “to insure that a defendant would not be convicted for an act because of mistake, inadvertence, or other innocent reason.” Id. at 680. However, these defenses may be raised for crimes of general intent as well as for crimes of specific intent. Even if a statute containing the word “threat” has only a general intent requirement, the prosecution must still prove that the threat is a “real threat” as opposed to a mistake or inadvertant statement. Moreover, the reasoning in Twine that a heightened mens rea element is required is contrary to the presumption of this circuit in United States v. Brown that a criminal statute requires general intent unless there is specific evidence to the contrary in the statute or legislative history. The district court also believed the present case was controlled by this court’s decision in United States v. Heller, 579 F.2d 990 (6th Cir.1978). We do not agree. Heller involved 18 U.S.C. § 875(a), which defines a crime separate and distinct from that defined in § 875(c), and did not address the issue of specific intent to threaten.
The district court also stated that because intent is a vital issue in a prosecution under section 875(c), it logically follows that there must be a specific intent to threaten. Although the issue of whether or not DeAndino’s alleged threat is a “real threat” will be a vital one in a prosecution under § 875(c), it is a vital issue regardless of whether specific intent or general intent is required. The difference between a specific intent and general intent crime involves the way in which the intent is proved — whether by probing the defendant’s subjective state of mind or whether by objectively looking at the defendant’s behavior in the totality of the circumstances. See United States v. Hoffman, 806 F.2d 703, 707 (7th Cir.1986) (government must establish that a “true threat” was made under such circumstances wherein a reasonable person would perceive that the statement would be interpreted as a threat), cert. denied, 481 U.S. 1005, 107 S.Ct. 1627, 95 L.Ed.2d 201 (1987).
To conclude, we believe the district court erred in holding that a sufficient indictment under. 18 U.S.C. § 875(c) must charge that the defendant “knowingly and willfully threatened or intended to threaten.” Specific intent is not an express element of section 875(c) according to the plain words of the statute. The general intent presumed by this court in United States v. Brown to be required for a violation of most criminal statutes is sufficiently indicated in the indictment as it now stands, which tracks the language of the statute. Therefore, the judgment of the district court is hereby REVERSED. Section 18 U.S.C. § 875(c) does not require specific intent in regard to the threat element of the offense, but only general intent. The case is REMANDED to the district court for proceedings consistent with this opinion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
CHAPMAN, Circuit Judge:
This appeal involves enforcement of an Internal Revenue summons issued to Olen E. Morgan (taxpayer) as president of Pool Builders Supply of the Carolinas, Inc. The Internal Revenue Service (IRS) appeals from the district court’s enforcement of the summons on the condition that the IRS provide the notice pursuant to § 7605(b) of the Internal Revenue Code, 26 U.S.C. § 7605(b) (1982). Taxpayer cross-appeals from the district court’s finding that § 7602 of the Code was not unconstitutional and its refusal to deny enforcement of the summons. 579 F.Supp. 1463. We hold that the district court erred in requiring the IRS to issue a notice pursuant to § 7605(b) as a precondition to the enforcement of the summons. We also hold that § 7602, on its face and as applied, is not unconstitutional. Thus, we reverse in part and affirm in part.
I
The IRS assigned Revenue Agent Lenial Brite of its Examination Division to audit taxpayer’s federal income tax returns for the years 1979 and 1980. In early 1982, as part of his audit, he approached taxpayer and asked to examine the records of taxpayer’s corporation, Pool Builders Supply of the Carolinas, Inc. Between February 25 and May 20,1982, Agent Brite examined various books and records of the corporation on several occasions. During this examination he detected “a large discrepancy of income reported on the return compared to the bank deposits through the amount maintained by the corporation.”
In an effort to account for the discrepancy, Agent Brite further examined the corporation’s records and asked taxpayer and his attorney for an explanation. Still unable to determine to his satisfaction the nature and reason for the discrepancy, Agent Brite suspended his examination and, in accordance with IRS procedures, referred the matter to the Criminal Investigation Division of the IRS for investigation of possible criminal tax fraud. Agent Brite testified that at the time of the referral, June 7, 1982, he had not (1) ended his involvement with the case, (2) completed his examination for civil tax assessment purposes, (3) taken any steps to close the audit, or (4) seen all the records called for by the instant summons. Following the referral to the Criminal Investigation Division, the IRS assigned the case as a Joint Investigation to Special Agent Benjamin Howell who expanded the investigation to include 1978 and issued a summons to taxpayer as president of Pool Builders Supply of the Carolinas, Inc., to produce numerous corporate financial documents for the period December 1, 1977, through January 31, 1981.
Taxpayer appeared before Agent Howell as required by the summons, but refused to provide testimony or produce the summoned records. The government then petitioned the district court for enforcement. Taxpayer resisted enforcement on the ground that the IRS had not issued a “second inspection” notice as required by § 7605(b). Following a hearing at which both agents testified, the district court ordered the summons enforced upon the condition that the IRS provide the notice required by § 7605(b). The district court also concluded that § 7602 was not unconstitutional on its face or as applied. This court has jurisdiction over these appeals pursuant to 28 U.S.C. § 1291.
II
The first issue presented is whether the IRS must issue a notice pursuant to § 7605(b) as a precondition to the enforcement of the instant summons. Section 7605(b) provides:
No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer’s books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary, after investigation, notifies the taxpayer in writing that an additional inspection is necessary.
The district court held that an examination of the records by a special agent, after examination by a revenue agent, would constitute a “second inspection” within the meaning of § 7605(b). Accordingly, the district court conditioned enforcement of the summons on the IRS providing the “second inspection” notice required by § 7605(b).
The district court found that the referral was the end of the “first” inspection because Revenue Agent Brite had “unilaterally and voluntarily suspended” his examination by referring the case to the Criminal Investigation Division for investigation of possible criminal tax fraud. The district court reached this conclusion because “[t]he purpose of Special Agent Howell’s investigation (criminal) was totally different from that conducted by Agent Brite (civil).” This ruling, however, is completely contrary to the case law on the question.
The federal courts uniformly have interpreted § 7605(b) to require the issuance of a notice only when the second inspection of a taxpayer’s books is part of a second audit. Thus, when the agent’s initial audit or examination has been suspended by referral to the Criminal Investigation Division upon an indication of fraud, the joint investigation under the direction of the special agent is a continuation of the revenue agent’s audit and no second inspection notice is necessary. United States v. Silves-tain, 668 F.2d 1161, 1163-64 (10th Cir. 1982); United States v. Jones, 630 F.2d 1073,1080-81 (5th Cir.1980); United States v. Popkin, 623 F.2d 108, 109 (9th Cir.1980); United States v. Lenon, 579 F.2d 420, 423 (7th Cir.1978); United States v. Garrett, 571 F.2d 1323, 1328-29 (5th Cir.1978); United States v. Held, 435 F.2d 1361, 1366 (6th Cir.1970), cert. denied, 401 U.S. 1010, 91 S.Ct. 1255, 28 L.Ed.2d 545 (1971).
In this case Revenue Agent Brite testified that he had not completed the investigation when he referred the case to the Criminal Investigation Division to determine the taxpayer’s correct tax liability. The IRS Manual requires an agent to suspend his examination when he discovers a firm indication of fraud and refer the case to the Criminal Investigation Division. II Audit C.C.H. Int.Rev. Manual H 4565.21, p. 8177-17; United States v. Jones, 630 F.2d at 1080-81; United States v. Gilpin, 542 F.2d 38, 40 (7th Cir.1976). When an audit has not been completed because of a referral to the Criminal Investigation Division, no second inspection notice is required in order for the special agent to gain access to the records sought. United States v. Silvestain, 668 F.2d at 1163-64; United States v. Jones, 630 F.2d at 1080-81; United States v. Lenon, 579 F.2d at 422-23; United States v. Garrett, 571 F.2d at 1328-29; and United States v. Gilpin, 542 F.2d at 40-41. In those cases the courts specifically held that where a referral of the case was made to the Criminal Investigation Division (formerly Intelligence Division) before completion of the revenue agent’s audit, “ ‘The second inspection’ provisions of 26 U.S.C. § 7605(b) were not applicable.” United States v. Gilpin, 542 F.2d at 41. Therefore, the district court erred in requiring the IRS to issue a notice pursuant to § 7605(b) as a precondition to the enforcement of the instant summons.
Ill
The second issue presented is whether § 7602 of the Code violates the taxpayer’s constitutional rights under the fourth and fifth amendments. Section 7602 empowers the IRS, inter alia, to summon and examine data for the purpose of ascertaining the correctness of any tax return, making a return where none has been filed, determining correct tax liabilities or “inquiring into any offense connected witv the administration or enforcement of the internal revenue laws.”
The Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA) Pub.L. No. 97-248, 96 Stat. 324 (1982), amended § 7602 in two ways. First, it expanded the purposes for which the summons power could be used, to include criminal as well as civil tax investigations. Second, it drew a “bright line” indicating that the summons power ended at the point where an investigation was referred to the Justice Department for prosecution. By this change Congress intended to establish a mechanical test for determining the validity of the summons. See Pickel v. United States, 746 F.2d 176, 183 (3d Cir.1984); Moutevelis v. United States, 727 F.2d 313 (3d Cir.1984).
Taxpayer argues that § 7602, as amended by TEFRA, violates the fourth and fifth amendments by authorizing an IRS special agent, by the mere issuance of a § 7602 summons, to compel a person or a corporation to turn over their private records and papers to the agent without securing a warrant based upon probable cause from a neutral judicial official. The key element which allegedly renders § 7602 unconstitutional is the explicit congressional mandate that the IRS may issue a § 7602 summons for the primary, singular and exclusive “purpose of inquiring into any offense connected with the enforcement of the internal revenue laws.” § 7602(b). Taxpayer contends this provision violates the fourth amendment proscription against warrant-less searches and seizures of private papers and records because it allows Special Agent Howell to force the production of private papers and records for the primary and sole purpose of conducting a criminal investigation free of any requirement that such summons may issue only upon securing a warrant based upon probable cause. Therefore, taxpayer argues, § 7602 is unenforceable on its face and as applied.
Taxpayer also contends that § 7602(b) violates the fifth amendment’s guarantee of prosecution upon indictment by grand jury. According to taxpayer, § 7602(b) grants special agents overly broad investigative powers which seriously intrude upon the role of the grand jury as the principal tool of a criminal discovery and prosecution. Accordingly, taxpayer argues that by vesting revenue agents with the power to summons, free of restraint, any material in connection with the investigation of a criminal offense under the tax laws, Congress has impermissibly constituted these employees of the executive branch as “one person grand juries” in violation of the fifth amendment guarantee of prosecution upon indictment by grand jury.
Taxpayer has misconceived the nature of an IRS summons. An IRS summons authorizes neither a search nor a seizure. An IRS agent cannot “compel” or “force” the production of records. Although an IRS summons commands that the person to whom it is addressed appear before the IRS and produce records or give testimony, United States v. Euge, 444 U.S. 707, 712, 100 S.Ct. 874, 878, 63 L.Ed.2d 141 (1979), an IRS summons is not self-enforcing. If, as here, the summons is not complied with, the government must petition a district court for judicial enforcement of the summons. See United States v. Lask, 703 F.2d 293, 297 (8th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 104, 78 L.Ed.2d 107 (1983). Section 7402(b) and 7604(a) of the Code grant jurisdiction to the United States District Courts to issue orders compelling, through their powers of contempt, compliance with Internal Revenue summons. Because enforcement of a summons invokes the process of a court, a court will not enforce a summons if it would constitute an abuse of that process. United States v. Powell, 379 U.S. 48, 58, 85 S.Ct. 248, 255, 13 L.Ed.2d 112 (1964); United States v. LaSalle National Bank, 437 U.S. 298, 318, 98 S.Ct. 2357, 2368, 57 L.Ed.2d 221 (1978); United States v. Samuels, Kramer & Co., 712 F.2d 1342, 1344 (9th Cir.1983). Thus, we agree with the district court that § 7602, as amended, is not unconstitutional.
IV
We have reviewed carefully taxpayer’s other exceptions and have found them to be without merit. Accordingly, the decision of the district court is
REVERSED IN PART
AFFIRMED IN PART
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM:
Henry Chaplinski was convicted of importing cocaine in violation of 21 U.S.C. 952(a) and of possessing cocaine for distribution in violation of 21 U.S.C. § 841(a)(1). On appeal, he first contends that the District Court should have excluded the cocaine from the trial on the grounds that it was seized after an illegal search and that the Government had failed to establish a sufficient chain of custody. Second, he argues that the Court should not have permitted one of the Government’s witnesses to testify. We find no merit to either of these contentions and affirm.
Appellant Chaplinski was employed by George S. Ford, president of an airfreight concern. Ford and Chaplinski travelled to Colombia twice in 1977 to set up an office in that country and to prepare Chaplinski to become the manager. Chaplinski was arrested in the Miami International Airport after the return flight from the second trip.
While making a routine inspection of Chaplinski’s luggage, Customs Agent Johnson smelled a strong odor of glue and observed that the sides of the suitcase seemed unusually thick. He asked Chaplinski to remove his belongings from the suitcase, and, taking it into a separate office, cut the lining of the case and discovered two plastic bags filled with white powder glued to the sides of the suitcase. A thorough examination revealed a total of 18 such bags. The bags, which were tested “on the field” and proved to contain approximately 1,439 grams of cocaine, were delivered to Agent Baumwald of the Drug Enforcement Administration [DEA], who in turn took them to the DEA Office and laboratory.
Chaplinski’s first argument is that the strong odor of glue provided the customs inspector with insufficient basis for the “reasonable suspicion” necessary to search the suitcase within constitutional limits. This argument misunderstands the law and understates the facts. At the border, customs agents need not have a reasonable or articulable suspicion that criminal activity is involved to stop one who has traveled from a foreign point, examine his or her visa, and search luggage and personal effects for contraband. United States v. Brignoni-Ponce, 1975, 422 U.S. 873, 887, 95 S.Ct. 2574, 45 L.Ed.2d 607; United States v. Himmelwright, 5 Cir., 1977, 551 F.2d 991; United States v. Bowman, 5 Cir., 1974, 502 F.2d 1215, 1219. As we have stated many times before, “[t]he national interests in self-protection and protection of tariff revenue authorize a requirement that persons crossing the border identify themselves and their belongings as entitled to enter and be subject to search.” United States v. Brennan, 5 Cir., 1976, 538 F.2d 711, 715; United States v. Ingham, 5 Cir., 1974, 502 F.2d 1287, 1291 (emphasizing importance of customs searches in collecting import revenues). Furthermore, the combination of a strong odor of glue with suitcase walls of an unusual thickness clearly provided a reasonable suspicion that contraband was present, and fully supported the agent’s action in cutting the lining of the suitcase.
Chaplinski’s second argument is that discrepancies in the amounts of cocaine entered on the reports accompanying the drugs as they were transferred between government personnel fatally taints the chain of custody for the cocaine introduced at the trial. Evidence of the record amply documents the journey of the cocaine from the time it was seized at the airport until it was analyzed at the DEA laboratory. “The adequacy of the chain of custody was a factual question which the jury resolved against appellants].” United States v. Graham, 5 Cir., 1972, 464 F.2d 1073, 1076.
Finally, Chaplinski attacks the admissibility of Charles Ford’s testimony as a Government witness on the grounds that the Government misled the defendant as to the availability of this witness and did not inform the defendant that Ford would testify until the end of the final day of evidence. Chaplinski contends that this was a deliberate subterfuge designed to undermine F.R. Crim.P. 16 and the District Court’s standing discovery order. We hold this contention meritless. The Government’s records indicate that agents unsuccessfully attempted to locate Ford shortly after Chaplinski’s arrest. Chaplinski argues that the uncorrected record entry that Ford could not be found made it unjust for the Government later to present him as a “surprise” witness. The Government’s response is that they later found Ford; that they did not intend to mislead the defendant as to Ford’s availability, but that no rule requires them to reveal the names of the witnesses they intend to call. It is clear law that “[a]part from the Congressionally created exception in capital cases, the granting of a defense request for a list of adverse witnesses is a matter of judicial discretion . . . ”. United States v. Hancock, 5 Cir., 1971, 441 F.2d 1285, 1286; United States v. Moseley, 5 Cir., 1971, 450 F.2d 506, 510. Chaplinski made no request for the names of the Government witnesses and we find no evidence of discretion used or abused.
AFFIRMED.
. Customs agents have broad authority to stop and search for contraband. 19 U.S.C. §§ 482, 1581, 1582; see also § 1496.
. The standing discovery order does not require the Government to report the names of witnesses adverse to the defendant, with the exception of alleged coconspirators, accomplices, or informants, witnesses who gave grand jury testimony, and witnesses receiving any preferential treatment or promises of immunity or leniency. R., vol. I, at 8-10.
. Indeed, Ford testified that Chaplinski had telephoned him two weeks before the trial at Ford’s office. Tr., at 174-75.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
MURRAH, Chief Judge.
This appeal is from the dismissal of a garnishment proceeding brought to recover the unpaid balance of a judgment. Appellant had obtained the judgment against one John Bennett for damages resulting from an automobile accident. Bennett was employed as a land man by the McAlester Fuel Company and appellees are the insurers of McAlester under a general liability policy bearing an endorsement indemnifying such Company and its employees “when * * * liability is incurred by reason of, or in connection with, the assured’s operations.”
McAlester furnished Bennett an automobile to use in the performance of his company duties, and allowed its use on personal trips under an arrangement whereby Bennett reimbursed the Company at the rate of per mile. The record shows that Bennett left his place of employment in Midland, Texas and drove, with his family, to Roswell, New Mexico, where he transacted company business. He then drove, with his family, to Enid, Oklahoma to visit his wife’s relatives. On the return trip to Midland, the accident giving rise to the judgment occurred.
Appellant contends that Bennett was traveling “in connection with” the operations of McAlester at the time of the accident. Appellees contend that the terms “by reason of” and “in connection with,” as used in the contract, are synonomous and that a causal connection between the work or business of McAlester and the act of the employee which created his liability is necessary to bring that act within the coverage of the policy.
The first portion of the endorsement in question insured McAlester and its employees and agents “ * * * for any and all sums which (they) shall be legally liable to pay * * * by reason of the assured’s operations.” Clearly, this language required that the insurer respond only to liability incurred by its employees or agents in the course of their employment—i. e., while performing some function within the scope of their agency relationship. The remaining portion of the endorsement, however, restates the coverage when liability is incurred “by reason of * * * the assured’s operations” and alternatively provides that the same coverage shall obtain when liability results “in connection with” the assured’s operations.
The law will not presume that the parties used tautological words to express their contract. Rather, it will presume that every word has a distinct meaning and purpose within the context in which it is found. See Utex Exploration Co. v. Garwood (10 C.A.) 246 F.2d 547, 550; First National Insurance Co. of America v. Norton (10 C.A.) 238 F.2d 949; Basler v. Warren (10 C.A.) 159 F.2d 41, 43. The words “by reason of or in connection with” were obviously used as words of art to delineate coverage under the insurance contract. Clearly, these terms were not intended to be used synonomously. Rather, we think the term “in connection with” was intended to provide coverage in addition to that already stated in the contract. This additional coverage would seem to apply not only to acts within the doctrine of respondeat superior, but to acts which are in any way connected with the operations of the employer. It is not conditioned on the exercise of an agency relationship, nor does it require that the employee be acting within the scope of his employment. Had such been the intent, it would have been a simple matter to so state.
Here, the business purposes of Bennett’s trip undoubtedly ceased at Roswell. Even so, the record shows that it was within Bennett’s personal discretion to perform additional work for McAlester during the entire trip if he thought it advisable, and he was subject to call at any time. Indeed, he had left word where he might be reached during the trip. In addition, he carried a briefcase containing notes about company business and he was required to return the automobile to Midland, Texas. Each of these factors are tangibly associated and related to the “operations” of Mc-Alester and although merely incidental to Bennett’s return trip from Enid, they were sufficiently “connected” to McAlester’s operations to satisfy the plain terms of the endorsed coverage and to render Bennett an “assured” within the meaning of the policy.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
SWAN, Circuit Judge.
The very thorough and able opinion of the District Court sets forth the facts in great detail. We shall repeat them only so far as seems necessary to outline the controversy and to present the questions which we deem decisive of this appeal.
The litigation is between two New York corporations, each using, and claiming the right to use, the trade-mark “4711” upon eau de cologne and other toilet preparations. For almost one hundred and forty years the Muelhens family of Cologne, Germany, has been engaged in manufacturing eau de cologne under a secret recipe handed down from father to son. Its business .began at 4711 Gloekengasse in that city in 1792, and its cologne and some other toilet preparations have been advertised and marketed throughout the world under the trade-mark “4711.” The defendant corporation, Ferd. Muelhens, Inc., was recently established by the German house as its selling agent in the United States. It has sold toilet preparations under the aforesaid trade-mark, and has advertised that the cologne which plaintiff sells under the same mark is not the genuine “4711” eau de cologne and is not made under the original seeret formula.
The plaintiff claims the exclusive right to use this trade-mark in the United States by virtue of a seizure by the Alien Property Custodian, a sale by the Custodian to Kropff, and Kropff’s assignment to the plaintiff cor-” p oration, which he caused to be organized in 1920. It appears that Kropff came to New York in 1878 to establish, in partnership with Julius Muelhens, a brother of Ferdinand, who was then proprietor of the German house, an agency for the sale of its products in the United States. In 1881 the selling arrangement was evidenced by a partnership agreement between Kropff and Ferdinand Muelhens. This gave the firm of Mulhens & Kropff a revocable license to use the trademarks and labels of the German house and» “to have them registered, without prejudice, however, to the continued sole proprietorship of Ferdinand Muelhens” therein. Under this agreement the trade-mark “4711” was registered in 1882 by the firm of Mulhens & Kropff. In 1889 a new partnership agreement was formed between Kropff and' Ferdinand Muelhens which recited that the purpose of the business was “the importation of products manufactured by Ferdinand Muel-hens in Cologne, and the manufacture of eau de cologne, glycerine soaps and other perfumeries under the trade-marks of the said Ferdinand Muelhens, of Cologne, as well as under trade-marks which the new firm of Mulhens & Kropff may possibly accept.” Muelhens was obligated to supply at cost the raw products and compounded essences required for the business and the firm was obligated to buy the raw products from him. In the event of dissolution of the firm, Muel-hens reserved the right to take over the business and to have all recipes forthwith returned to him. The partnership was- to continue for ten years and to be renewed thereafter for successive five-year periods unless notice of termination was previously given. This agreement continued unrevoked up to the entry of the United States into the European war. In 1905 the trade-mark “4711” was re-registered by the partnership; and it was renewed by the plaintiff corporation in 1925. On May 6, 1918, the Alien Property Custodian demanded of Kropff the entire interest of Ferdinand Muelhens in the firm of Mulhens & Kropff, and a supplementary demand specifically enumerated the “4711” trade-mark. In 1920 Kropff, who in the meantime had continued the business on his own account and under a license to liquidate the Muelhens interest, purchased from the Custodian all the seized rights of Muelhens, and forthwith Kropff assigned to the plaintiff the business, good will, and trade-marks formerly belonging to the firm of Mulhens & Kropff. Thereafter the plaintiff sold its products under the “4711” label and advertised that they were prepared in accordance with the original recipe; but, after denial of its application for a preliminary injunction on the ground that its assertion of manufacture under the secret formula was false, it abandoned this form of advertising.
The decree, from which both parties have appealed, finds that the plaintiff has the. exclusive right to use the trade-mark “4711” in the United States, and that the defendant has infringed. It finds also that prior to April, 1917, the firm of Mulhens & Kropff had applied this trade-mark, in connection with the sale of eau de cologne, eau de cologne face powder, and eau de cologne smelling salts, only to such cologne, face powder, and smelling salts as were manufactured in accordance with seeret recipes owned solely by the German house of Muelhens; that neither plaintiff nor its immediate predecessor, Kropff, knew the seeret recipes; but nevertheless, for ten years they had applied said trade-mark to eau de cologne, face powder, and smelling salts manufactured under different formulas, and had falsely made public statements that their products were made under the original secret recipes. Accordingly, infringement by defendant was enjoined only upon condition that plaintiff would purge its fault until December 31, 1937, by applying to each bottle or package of eau de cologne, eau de cologne face powder, and eau de cologne smelling salts sold under its trade-mark “4711” a label stating, “Not manufactured in accordance with the original secret recipe in use since 1792 and before 1917.” The decree also denied an accounting and left each party to hear its own costs.
The opinion below first discusses the chief dispute of fact, namely, whether or not Kropff had knowledge of the secret recipe for 4711 eau de cologne. This was decided adversely to the plaintiff, and it will suffice to say that we consider the correctness of the finding fully demonstrated. Indeed, upon the argument on appeal this fact was conceded.
The legal rights of the parties prior to the declaration of war were then considered, the court concluding that Muelhens individually was the owner of the secret recipe and of the trade-mark, the registration of which inured to the benefit of the firm as licensee for the duration of the partnership. Attention was then directed to the effect of the declaration of war and the Alien Property Custodian’s seizure and assignment. It was held that the war terminated the partnership, and that the Custodian could not seize, and did not purport to seize, the secret recipe, but that he did seize from Muelhens and convey to Kropff “the potential good will of any business in ‘4711’ products which might thereafter be established in the United States,” and that the plaintiff as successor to Muelhens’ American business may apply the trade-mark to articles which approximate those made under the secret recipe, although the recipe itself was not transferred nor known to the plaintiff or to Kropff, its predecessor in title.
We are in entire accord with the opinion below except upon the one point last stated. As applied to eau de cologne, the mark “4711” meant two things: (1) Origin in the house of Muelhens; and (2) manufacture under a secret recipe. The secondary meaning is now disputed, but on the record it is clear, and indeed plaintiff’s attorney conceded in his brief filed on the motion for a preliminary injunction that “ * * * the long continued representations, in the present ease, with respect to the formula of 4711 cologne made and sold in this country, “ * impressed upon the mark a substantial guarantee that any cologne bearing said mark was made according to said original recipe; so that, in 1917, neither the partnership nor Kropff could have properly sold any other cologne as 4711 than that of the original recipe, without expressly stating or in some way bringing to the attention of the public that said cologne was not according to the original recipe although bearing the trademark.”
Plaintiff has succeeded to Muelhens’ business in this country, which would entitle plaintiff to use the mark in its first meaning. It has not succeeded to Muelhens’ ownership of the recipe, and therefore may not truthfully use the second meaning. The defendant, on the other hand, if allowed to use the mark, will truthfully represent the quality of its article, but will misrepresent that it is continuing Muelhens’ former American business. Under such circumstances, which user of the mark has the superior right? Logie will hardly solve the problem. On the one hand, it is said that to allow one who does not know the recipe to seize the good will dependent on marketing the product of the secret formula runs counter to the admitted principle that good will cannot be assigned in gross; on the other, that, since Muelhens would have had the privilege of somewhat changing the formula and still applying to the modified product the old mark, his successor in business should have the same privilege, and the right to prevent Muelhens’ user. While the question is very doubtful, a majority .of the court believe that assignment of the recipe is essential to give the assignee the exclusive right to a mark which denotes a product manufactured thereunder. Otherwise the public will be unable to procure the genuine product under the name by which it has always been known. The law affords trade-mark protection to a merchant in order that prospective customers may not be lured away by one who counterfeits his goods. Those who insist upon the genuine 4711 eau de cologne are not prospective customers of the plaintiff, for he cannot supply it. On the whole we think the plaintiff should not be protected in the use of a mark which he can himself use only deceptively. See Cotton v. Gillard, 44 L. J. Ch. 90; Lecouturier v. Rey, 1910 A. C. 262; Ingenohl v. Wing On & Co., 44 Rep. Pat. Cas. 343, 352; G. H. Munn & Co., 39 Rep. Pat. Cas. 379, 389; Baglin v. Cusenier, 221 U. S. 580, 595, 31 S. Ct. 669, 55 L. Ed. 863; Baldwin v. Von Micheroux, 5 Misc. Rep. 386, 389, 25 N. Y. S. 857.
With respect to articles as to which the 4711 mark has not a.secondary meaning but connotes only origin in the German house of Muelhens, the injunction was properly issued and an accounting should be granted. As to the few articles as to which the mark connotes preparation under a secret formula, the injunction should be denied.
The decree is reversed for further proceedings in conformity herewith.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
DONALD RUSSELL, Circuit Judge:
Plaintiffs/appellants Codell Blease Thomas and Elizabeth F. Thomas appeal from the district court’s entry of summary judgment in favor of defendant-appellee General Electric Credit Corporation (GECC). The Thomases sought declaratory relief, injunctive relief, and damages for alleged violations of the Truth-in-Lending Act, 15 U.S.C. §§ 1601-1693, and Regulation Z thereunder, 12 C.F.R. § 226.1 et seq. Appellants also alleged pendent claims. GECC pled res judicata, basing such plea on a prior judgment in an action between the parties in the State Court. An explication of the proceedings in the prior State action is necessary for an understanding of GECC’s defense.
Prior to the filing of this federal action, the defendant GECC had filed in State Court an action to recover of the Thomases on a “Consumer Credit Contract” executed by them. The payment of the obligation by the Thomases was secured by a lien or pledge of a mobile home and certain household goods, and by an alleged real estate mortgage. To that State action, the Thom-ases, as the defendants in the State action, filed an answer and counterclaim in which they set up both as an affirmative defense and as a counterclaim the invalidity, under the federal Truth-in-Lending Act, of the “Consumer Credit Installment Contract.” They also alleged that the real estate mortgage sued on was a forgery. The cause was referred to a Referee “for the purpose of taking the testimony and reporting [his] findings of fact and conclusions of law, with leave to report any special matters.” The Referee heard the case and filed his report. In that Report he held: “The testimony is bare of any facts that would show any violation of the truth in lending act, 15 U.S.C.A. section 1601 and Regulation Z____” He also found the security agreement to be “a valid negotiable instrument and a valid security interest in the mobile home and its contents.” However, he held the real estate mortgage had not been executed by the Thomases (plaintiffs in the federal action) and he recommended that “the real estate mortgage [be held] not enforceable” ... the demands in the defendants’ Counterclaim be denied ... that the mobile home and personal property covered by the security in interest be “sold according to law and the custom of this Court” and that the plaintiff GECC have judgment against the defendants. The defendants (plaintiffs here) did not except to the finding that there was no evidence of a violation of the Truth-in-Lending Act by the defendant GECC. The Report was duly confirmed and judgment entered and enforced.
Later, these plaintiffs filed in the State Court a motion to vacate the judgment theretofore entered in the State action against them under Section|15-27-130 Code of Laws of South Carolina (1976). The basis of their motion was “extrinsic fraud” on the part of GECC. The motion was heard before the Honorable J. Woodrow Lewis, retired Chief Justice of the Supreme Court of South Carolina, sitting as a special judge. Judge Lewis heard the testimony which amounted in large part, if not wholly, to a claimed violation of the federal Truth-in-Lending Act and a claim of perjury in the testimony during the trial of the state action asserting a violation of the Act. Judge Lewis denied the motion, stating the reasons for his decision in a formal order, grounds being that the plaintiffs’ claim if true, would have been “intrinsic fraud, not extrinsic fraud,” but finding no basis in the record for a finding of fraud of any kind. If the testimony had been considered, he found such evidence would have been irrelevant to the decision. Though they noticed an appeal from Judge Lewis’ decree, the plaintiffs never perfected their appeal and the appeal was duly dismissed.
We have reviewed in detail the proceedings in the State Court because the plaintiffs contended in argument they had never been accorded their day in the State Court on either their Truth-in-Lending claim or their motion to vacate judgment for alleged “extrinsic fraud.” The record is conclusive against both contentions. The defense of res judicata, as asserted by GECC, was thus amply demonstrated by the undisputed record and the district court properly dismissed the action on that ground. Accordingly, the judgment of the district court is
AFFIRMED.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
RE, Chief Judge:
Appellants, Erwin Clotida and Olivia Chatten, appeal from a judgment of conviction entered on August 15, 1988, following a jury trial in the United States District Court for the District of Puerto Rico. Clo-tida and Chatten were convicted of aiding and abetting each other in the possession with the intent to distribute cocaine, importation of cocaine, and possession of cocaine on board an aircraft in violation of United States Code, Title 18, Section 2, and Title 21, Sections 841(a)(1), 952(a), and 955.
Clotida and Chatten contend that the district court erred in denying their respective motions for acquittal made at the close of the government’s case-in-chief pursuant to Rule 29 of the Federal Rules of Criminal Procedure. Clotida also contends that the trial judge “committed a reversible error by allowing the prosecutor to present, as rebuttal evidence, a substantial part of his case in chief, [a] ... confession by the appellant[,] ... Clotida.”
The threshold question as to both Clotida and Chatten is whether they waived their rights on their Rule 29 motion because of their failure to have renewed the motion at the close of all the evidence. A question is also presented as to whether, under the circumstances of this trial, the government’s use of Clotida’s inculpatory statements in rebuttal rendered the trial unfair by unconstitutionally impairing his fifth amendment right to testify in his own defense.
Since, after having offered his own testimony as a defense, Clotida failed to renew his motion for acquittal at the close of all the evidence, his motion is deemed waived. His conviction, therefore, may only be reviewed under a “manifest injustice” standard. Upon an examination of all the evidence presented at trial, we find the evidence against Clotida to be sufficient to sustain a verdict of guilty. Since we find his contention as to the government’s rebuttal evidence to be without merit, Cloti-da’s judgment of conviction is affirmed.
Since Chatten did not offer any evidence in her own defense, her Rule 29 motion is not deemed waived. Therefore, only evidence presented in the government’s casein-chief may be considered. Since the evidence against Chatten “is largely circumstantial the test is ‘whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.’ ” United States v. Mehtala, 578 F.2d 6, 10 (1st Cir.1978) (quoting Dirring v. United States, 328 F.2d 512, 515 (1st Cir.1964)). The total evidence presented by the government in its case-in-chief against Chatten fails to support the jury’s verdict of guilty beyond a reasonable doubt. Since her Rule 29 motion should have been granted, the judgment of conviction is reversed.
BACKGROUND
Clotida and Chatten, residents of the Netherlands, went on vacation in Ecuador to “look for a beach.” At trial, during cross-examination, Clotida, in response to questions by the prosecutor, admitted that he had purchased the airline tickets in Amsterdam on February 16, 1988, with his own money.
Clotida testified that he and Chatten arrived in Quito, Ecuador on February 27, 1988. While in Quito, Clotida claims to have been introduced to Serapio by a certain Vivian, who had travelled with Clotida and Chatten from Amsterdam to Quito. Serapio asked Clotida if he would take some luggage back to Amsterdam for him. Serapio told Clotida that he would receive a “reward” if he delivered the luggage at the airport in Amsterdam to “someone there who would have a sign in his hand with the name Serap[io] on it and [Clotida would] give it to that person.” Clotida stated that because he was “broke,” he accepted Sera-pio’s offer.
Clotida testified that Serapio gave him “two pieces of luggage with clothing....” According to Clotida, he did not check the contents of the suitcases until the night before he left Quito, March 5, 1988. Cloti-da testified that he opened the suitcases “[t]o make sure that there were only clothes in there, and that was so, there were only clothes in there.”
Clotida also stated that because he had no suitcases of his own, he intermingled his and Chatten’s clothes with those of Sera-pio. In addition, he testified that he borrowed a large suitcase from Vivian, in exchange for a smaller suitcase which he had brought to Ecuador. On cross-examination, Clotida denied that he detected cocaine in the clothes in the suitcases given to him by Serapio. He admitted, however, that he did spray deodorant on his clothes, “so that they wouldn’t smell like the others.”
In his testimony, Clotida also stated that, on March 6, 1988, he and Chatten boarded an Iberia flight departing from Quito, Ecuador to Amsterdam, the Netherlands, with stop-overs in San Juan and Madrid. In the course of a cargo inspection in San Juan, United States Customs Inspector Hector Albino of the Contraband Enforcement Team (CET) noticed a “heavy” suitcase emitting a “chemical” or “perfume-like odor.” Upon opening the suitcase, Inspector Albino found “various clothing which were soaked, that felt moist, wet, sticky to the touch, like they were starched.” Inspector Albino made a field test which consisted of cutting a section of the garment and placing it in a tube with a chemical. He obtained a blue color reaction which indicated the presence of cocaine.
Inspector Albino proceeded to notify other members of the CET including the team leader, Juan Otado. Inspector Otado instructed the CET to check all luggage to Amsterdam, and, in particular, to check the baggage tag numbers of the luggage to see if they corresponded with the one containing the contraband. Upon further investigation, Customs Inspectors Nilsa Perez and Luis Gonzalez found two additional suitcases with the same baggage tag numbers. These suitcases were opened, and they too contained clothing which a field test revealed were impregnated with cocaine.
The Customs Inspectors seized the suitcases and proceeded to identify the passengers to whom they belonged. They asked flight attendants to search for passengers whose final destination was Amsterdam. Flight information indicated that, of the three persons who were bound for Amsterdam, one cancelled, leaving only Clotida and Chatten.
The Customs Inspectors went to the pre-boarding area to find Clotida and Chatten to verify that they were the owners of the suitcases in question. This verification was made by matching the baggage claim tickets Clotida had in his possession with those of the suitcases containing the contraband.
Clotida and Chatten were arrested, and were read their Miranda Rights in English. Because he stated he did not understand English, Clotida was also read his rights in Spanish. On Clotida’s person were found the airline tickets, boarding passes, baggage claim tickets, and passports for both him and Chatten. In addition, Clotida was in possession of a formula for sodium carbonate (Na2C03).
Clotida and Chatten were then taken to the Customs enclosure area where they were given the Miranda Warning in written form. Clotida was also given a “Waiver of Rights” form, which he signed, after he was told he was free to sign it “if he wanted to.”
While Clotida was in the Customs enclosure area the seized suitcases were weighed. In answer to Inspector Otado’s question as to the weight of the suitcases, Inspector Albino responded that the gross weight of the luggage was 133 lbs. Upon hearing this, Clotida commented “[tjhat’s not correct because there’s only 32 pieces of clothing that are saturated with cocaine.”
At trial, in its case-in-chief, the government called as witnesses Customs Inspectors Albino, Otado, Perez and Gonzalez. They all testified as to their roles and actions as to the discovery and examination of the three suitcases which contained the contraband. Inspectors Albino and Otado also testified as to what took place when Clotida was taken into custody and was brought to the Customs enclosure area.
The government also called Sergeant Hiram Gomez Santini, of the Puerto Rico Police Department, who is assigned to the Drug Enforcement Agency (DEA). Sergeant Gomez testified that he was called to the airport on March 6, 1988, so that the Customs Inspectors could turn over the evidence seized in the arrest of Clotida and Chatten. He also testified as to what was done to the evidence once it came into his possession.
The government’s last witness in its case-in-chief was Dorothy Ann Roman, a chemist, of the DEA. After qualifying as an expert, Ms. Roman described the analysis she performed on the contraband. She testified that “the net weight of the cocaine ... extracted [from the clothing] would amount to 5,895 grams.” When questioned about the formula for sodium carbonate, which Clotida had on his person, she testified that sodium carbonate was “a common way ... to extract cocaine from another substance.”
At the close of the government’s case, pursuant to Rule 29 of the Federal Rules of Criminal Procedure, Clotida and Chatten moved for acquittal. Based on the evidence presented in the government’s casein-chief the motions were denied. In denying the motions the district court stated:
Certainly, from that evidence a juror can make reasonable inferences to the effect that they planned this trip to go to a source of cocaine, to procure the cocaine, to conceal the cocaine as best as possible in the way it was impregnated into the clothing, and to bring that cocaine back to Holland, and that they both knew what was happening and they both knew that that was the purpose of the trip.
The defense consisted solely of the testimony of Clotida. Essentially, Clotida testified as to his trip to Ecuador with Chatten, and how he came to meet Serapio. He testified that “there were only clothes [in the suitcases],” and that he did not see any drugs. Clotida sought to exculpate Chat-ten by testifying that she had no knowledge of his meeting with Serapio, and that she had not aided him in packing the suitcases.
On cross-examination, Clotida denied that he had made the statement to Customs Inspectors, that there were “32 pieces of clothing ... saturated with cocaine.” At the close of the defense, neither Clotida nor Chatten renewed their Rule 29 motion.
In rebuttal, the government impeached Clotida’s testimony using statements he made after his arrest. Sergeant Hiram Gomez Santini testified that, after his arrest, Clotida was taken to the DEA district office in San Juan, and it was there that Clotida told Sergeant Gomez that:
he looked inside the bag, touched the clothes, tasted them and smelled them and he determined that it was cocaine, and that a strong odor was coming from the clothing and that he was afraid of being detected by the authorities so he sprayed deodorant on the clothing and spread them in three different bags.
The jury found Clotida and Chatten guilty on all three counts of the grand jury indictment.
I. The Rule 29 Motions
In pertinent part, Rule 29(a) of the Rules of Criminal Procedure provides that:
The court on motion of a defendant ... shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.
Fed.R.Crim.P. 29(a). The proper procedure for making a Rule 29(a) motion is set forth in the case of United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978):
Under [this] rule, a defendant who moved for a judgment of acquittal at the close of the government’s case must move again for a judgment ... at the close of the entire case if he thereafter introduces evidence in his [own] defense because, by presenting such evidence, the defendant is deemed to have withdrawn his motion and thereby to have waived any objection to its denial.
A. As to Defendant Erwin Clotida
Clotida failed to renew his Rule 29 motion at the close of the entire case after having offered evidence in his own defense. This failure, therefore, constitutes a waiver of Clotida’s Rule 29(a) motion. See United States v. Kilcullen, 546 F.2d 435, 441 (1st Cir.1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977). Hence, on this appeal, Clotida may only prevail if it is demonstrated, after an examination of all the evidence offered at trial, that it would be a “gross” or “manifest injustice” to sustain the conviction. See United States v. Jimenez-Perez, 869 F.2d 9, 11 (1st Cir.1989); United States v. Cheung, 836 F.2d 729, 730 n. 1 (1st Cir.1988) (per curiam).
The evidence at the trial reveals clearly that there is no doubt that Clotida carried the luggage or suitcases for financial gain. Furthermore, the circumstances indicate that Clotida was in constructive possession of the luggage. It is not questioned that Clotida was in possession and control of the baggage claim tickets. In addition, on Clo-tida’s person was found the chemical formula to extract the cocaine from the impregnated clothing.
Other than the testimony of Clotida, which was refuted by the government and disbelieved by the jury, there is no evidence to rebut the inference that Clotida knew that the clothing was impregnated with cocaine. Sergeant Gomez testified that Clotida admitted his knowledge of the cocaine in the suitcase, and, in fact, tried to conceal its odor by spraying with deodorant. Moreover, Clotida’s spontaneous utterance at the Customs enclosure area that there were “32 pieces of clothing ... saturated with cocaine” was found by the district court to be “voluntarily given ... prompted by himself without any question propounded to him.”
Hence, as to Clotida, the evidence overwhelmingly supports the verdict of the jury. His testimony, that he was vacationing in Ecuador in search of a beach, and there met a stranger from whom he received the impregnated clothes, strains credibility. Since it was entirely reasonable for the jury to disbelieve his testimony, his conviction is clearly not a “manifest injustice.”
B. As to Defendant Olivia Chatten
Chatten did not present any evidence in her own defense, nor did her attorney examine her codefendant, Clotida. It has been uniformly held that if a defendant “rests v/ithout introducing evidence of his own he need not renew his [Rule 29] motion in order to preserve his objection to the sufficiency of the evidence. The motion need not be renewed, and defendant waives nothing, even if a eodefendant has offered evidence.” C. Wright, Federal Practice and Procedure, § 463 (2d ed. 1982) (footnotes omitted); see also Lopez, 576 F.2d at 843 (codefendant’s testimony favorable to defendant not deemed to waive defendant’s prior Rule 29 motion).
On the facts presented, therefore, Chat-ten did not waive the Rule 29 motion which she made at the close of the government’s case-in-chief. Accordingly, in order to sustain Chatten’s conviction it must be shown that, when examined in a light most favorable to the government, the evidence presented in the government’s case-in-chief, including all inferences that may be drawn therefrom, would permit a reasonable juror to find guilt beyond a reasonable doubt. See Lopez, 576 F.2d at 843. Hence, in the language of Lopez, “[sjince we can review the sufficiency of the evidence only as of the time the Rule 29 motion was made, we consider only the government’s testimony in chief and exclude the ... evidence presented by codefendant” Clotida. Id. See also United States v. Evans, 572 F.2d 455, 475 (5th Cir.), cert. denied sub nom. Tate v. United States, 439 U.S. 870, 99 S.Ct. 200, 58 L.Ed.2d 182 (1978); United States v. Polizzi, 500 F.2d 856, 904 (9th Cir.1974), cert. denied, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Cephus v. United States, 324 F.2d 893, 895-97 (D.C.Cir.1963).
Clotida and Chatten are charged with aiding and abetting each other in the commission of the offenses of possession with the intent to distribute cocaine, importation of cocaine, and the possession of cocaine aboard an aircraft. To help determine whether a party is an aider or abettor, the Supreme Court in Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 769, 93 L.Ed. 919 (1949), articulated the following test:
In order to aide and abet another to commit a crime it is necessary that a defendant “in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed.”
(quoting United States v. Peoni, 100 F.2d 401, 402 (2d Cir.1938)).
In contrast to the evidence against Cloti-da, Chatten’s connection with the criminal enterprise is based entirely on circumstantial evidence. Circumstantial evidence has been defined as “proof which does not actually assert or represent the proposition in question, but which asserts or describes something else, from which the trier of fact may either (i) reasonably infer the truth of the proposition, ... or (ii) at least reasonably infer an increase in the probability that the proposition is in fact true.... ” 1 D. Louisell & C. Mueller, Federal Evidence § 94 (1977). It has been noted that “[t]he ... general problem of circumstantial proof is to determine whether proffered evidence indirectly or inferentially supports the proposition sought to be proved.” Id. at § 91.
It cannot be doubted, however, that circumstantial evidence is often very probative. As Professor Wigmore notes, without allowing the introduction of evidence that permits “an inference upon an inference,” “hardly a single trial could be adequately prosecuted.” 1A J. Wigmore, Evidence § 41 (1983). Indeed, “the courts in general have recognized that circumstantial evidence may, in given settings, have equal if not greater weight than direct evidence.” 1 C. Torcía, Wharton’s Criminal Evidence § 5 (14th ed. 1985). Furthermore, it is important to note that, in the context of review of a motion for acquittal, “no legal distinction exists between circumstantial and direct evidence.” United States v. Sutton, 801 F.2d 1346, 1358 (D.C.Cir.1986).
The evidence presented by the government, in its case-in-chief against Chatten, is insufficient to sustain the jury’s verdict of guilty. United States v. Glover, 814 F.2d 15 (1st Cir.1987), represents a fair example of the farthest that this court has ventured in sustaining a conviction based entirely on circumstantial evidence. In Glover, the defendant was convicted of a conspiracy to possess cocaine with intent to distribute. On appeal, the defendant argued that the evidence was insufficient to support her conviction, “because there was no direct connection between her and either the drugs found in [her codefendant’s] possession or the drug paraphernalia found in her home.” Id. at 16. This court, however, sustained the conviction because the evidence showed that the defendant knew certain facts about the presence and location of the cocaine. Id. at 16-17.
In Glover, the court concluded that: [T]he evidence of [the defendant’s] knowledge of open drug activity in her apartment, combined with her control of the closet containing the cash, permitted the inference that she at least tacitly agreed to participate in a plan to possess cocaine with the intent to distribute it in which her role included providing the premises for the drug venture and controlling the funds generated as a result of it.
Id. at 17. Hence, we held that “the evidence, viewed as a whole in the light most favorable to the government, together with all legitimate inferences that can be drawn from it, was sufficient for a reasonable jury to conclude that [the defendant] conspired with the intent to distribute cocaine.” Id. at 16-17.
In the present case, the evidence relied on to connect Chatten to the crime charged does not approach the evidence present in Glover. Rather, this is “a case of ‘mere presence’ in which [Chatten] was convicted simply because she was present at the scene of a crime and shared a relationship with the perpetrator.” Id. at 17. Hence, the present case is more closely analogous to United States v. Mehtala, 578 F.2d 6 (1st Cir.1978), rather than Glover.
In Mehtala, the defendant was convicted of knowingly aiding and abetting in the importation of marijuana by boat. On appeal, this court noted that “[t]he Government’s entire proof consisted of Mehtala’s presence on the ship ... and inferences of a close relationship with the [ship’s] captain.” Id. at 10. The court stated that there was “[n]o evidence ... that Mehtala embarked on the voyage for any purpose other than a pleasure cruise. There [was] no indication that she had a prior association with the captain, that she used marijuana, or that she had been engaged in previous drug operations.” Id. The court reasoned that:
Even if through the supposed close relation between Mehtala and the ... captain, Mehtala obtained knowledge of the presence of the marijuana, this knowledge would not be sufficient to convict her of aiding and abetting. “Mere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt; nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.”
Id. (quoting United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977)). Hence, in Mehtala, this court reversed the conviction because the government had not proved the defendant’s guilt beyond a reasonable doubt. See id.
In this case, the government, in its casein-chief, presented no evidence that Chat-ten assisted Clotida in the smuggling of cocaine, or, even apart from assisting, had any knowledge of the presence of the cocaine. The government’s case against Chatten consisted of the evidence of the clothing, impregnated with cocaine and found in the suitcases with baggage tag numbers that matched those in the possession of Clotida.
The evidence is clear, as the arresting officer Inspector Albino testified, that it was Clotida who “had both airline tickets, all the baggage claim tickets and both their passports.” From the government’s casein-chief, the only evidence that may be said to connect or tie Chatten to the crime was the fact that she was present at the airport in San Juan, and had accompanied Clotida from Quito, Ecuador.
The remainder of the government’s case dealt with the events that followed after the evidence was seized, and after Clotida and Chatten were arrested. That part of the testimony of Customs Inspectors Albino and Otado, which related to the events inside the Customs’ enclosure area, pertained only to Clotida. The testimony of Sergeant Hiram Gomez Santini related to what happened to the contraband after it was released by Customs, and the testimony of Roman, a chemist for the DEA, dealt with the tests performed on the contraband. Indeed, the only testimony which pertained directly to Chatten after her arrest, related to the reading of her Miranda Warning.
In sum, no evidence in the government’s case-in-chief indicated that Chatten “associate^] [herjself with the venture, that [s]he participate^] in it as in something that [s]he wishe[d] to bring about, that [s]he [sought] by h[er] action to make it succeed.” See Nye & Nissen, 336 U.S. at 619, 69 S.Ct. at 769. It has been stated that “[m]ere association between the principal and those accused of aiding and abetting is not sufficient to establish guilt, nor is mere presence at the scene and knowledge that a crime was to be committed sufficient to establish aiding and abetting.” United States v. Francomano, 554 F.2d 483, 486 (1st Cir.1977) (citations omitted).
Chatten reaps the full benefit of the presumption of innocence. The presumption of innocence of an accused in a criminal trial is a fundamental principle of the common law. Blackstone, in his commentaries, discussing presumptions in the criminal law, asserted that “the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.” 4 W. Blackstone, Commentaries 352. In McKinley’s Case, 33 How.St.Tr. 275, 506 (1817), Lord Gillies of the High Court of Justiciary at Edinburgh asserted that “the presumption in favour of innocence is not to be re-dargued by mere suspicion.... I conceive that this presumption is to be found in every code of law which has reason, and religion, and humanity, for a foundation. It is a maxim which ought to be inscribed in indelible characters in the heart of every judge and juryman....” The origins of the presumption of innocence may be found in ancient Rome, and, indeed, can be traced to the codes of Athens and Sparta. See Coffin v. United States, 156 U.S. 432, 453-55, 15 S.Ct. 394, 402-03, 39 L.Ed. 481 (1895).
In the United States, with commendable brevity, Wigmore states that “[t]he presumption of innocence is fixed in our law.” 9 Evidence § 2511 (emphasis omitted). In Coffin, in a portion of the opinion that is still valid and worthy of quotation, Justice Edward White stated that it “is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin, 156 U.S. at 453, 15 S.Ct. at 402. The Coffin Court, in stressing the importance of the presumption of innocence, concluded “that the presumption of innocence is evidence in favor of the accused introduced by the law in his behalf....” Id. at 460, 15 S.Ct. at 405. Professor Wigmore, however, notes that “[n]o presumption can be evidence; it is a rule about the duty of producing evidence.” 9 Evidence § 2511 (emphasis in original) (citation omitted). In the words of Professor Wigmore, the “tem-poary aberration” caused by Coffin, as to the evidentiary effect of the presumption of innocence, “was soon afterwards discarded in the court of its origin.” Id. (citing Agnew v. United States, 165 U.S. 36, 51-52, 17 S.Ct. 235, 241, 41 L.Ed. 624 (1897); Holt v. United States, 218 U.S. 245, 253, 31 S.Ct. 2, 6, 54 L.Ed. 1021 (1910)).
The presumption is nonetheless basic and essential. An American scholar writes that it “is a substantive principle of law which is so engrained in the accusatorial system of American justice that no one challenges its preferred and unquestioned position.” M. Bassiouni, Criminal Law and Its Processes § 2.2 (1969). The presumption also reflects a universally accepted norm proclaimed as a human right and fundamental freedom in article 11 of the Universal Declaration of Human Rights. G.A.Res. 217, 3 U.N.GAOR 71, 73, U.N.Doc. A/810, at art. 11 (1948) (“Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law....”).
In In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970), the Supreme Court held that the due process clause of the United States Constitution “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Beyond the rule that places the burden upon the prosecution of producing evidence to prove the accused guilty, Professor Wigmore states that “the presumption of innocence ... conveys for the jury a special and additional caution ... to consider, in the material for their belief, nothing but the evidence, i.e., no surmises based on the present situation of the accused.” 9 Evidence § 2511 (emphasis in original).
Chatten did not waive her Rule 29 motion. Considering, therefore, that the evidence presented by the government in its case-in-chief, including all inferences that could be drawn therefrom, was insufficient to have permitted the jury to find her guilty beyond a reasonable doubt, Chat-ten's conviction was improper. Hence, the district court erred in denying Chatten’s Rule 29 motion.
The essence of any truly civilized criminal justice system is fairness in the individual case. In reversing Chatten’s conviction, we are reminded that “[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent [persons] are being condemned.” In re Winship, 397 U.S. at 364, 90 S.Ct. at 1072. To deem the evidence presented against Chatten adequate would do violence to the presumption of innocence, and the due process requirement that a defendant be proved guilty beyond a reasonable doubt.
II. The Prosecution’s Rebuttal
Clotida also argues that, “in allowing the prosecutor to bring [in] what amounted to a confession through rebuttal,” the district court abused its discretion by permitting the “surprise” of the defendant. Clotida asserts that the “sandbagging” tactics of the prosecution effectively deprived him of his fifth amendment right to testify in his own defense by impairing his ability to make an intelligent decision as to whether or not to testify.
It has been stated that “[t]he function of rebuttal is to explain, repel, counteract or disprove evidence of the adverse party. The fact that testimony would have been more proper for the case-in-chief does not preclude the testimony....” United States v. Luschen, 614 F.2d 1164, 1170 (8th Cir.) (citation omitted), cert. denied sub nom. King v. United States, 446 U.S. 939, 100 S.Ct. 2161, 64 L.Ed.2d 793 (1980). As the Supreme Court noted in Geders v. United States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976), the order in which the parties present their evidence is totally within the discretion of the trial court.
In determining whether the trial court has abused its discretion in any particular case, three factors must be considered: “(1) surprise to the defendant, (2) defendant’s opportunity to meet the proof, and (3) detriment to the defendant because of the order in which the evidence was introduced.” Luschen, 614 F.2d at 1170.
Notwithstanding Clotida’s assertion, the facts and circumstances indicate that there was no “surprise” in this case. With full knowledge of the facts, Clotida assumed the risk of the consequences of testifying contrary to his own prior inculpatory statements. Surely, he can hardly claim “surprise” if the government would attempt to rebut his testimony, and delve into damaging statements that he had made after his arrest in the presence of DEA agents. Regardless of purpose or motive, whether to assert his innocence or exculpate Chatten, it was clearly his decision to testify and risk the consequences of rebuttal evidence.
Unlike cases in which there is non-disclosure by the prosecution, in violation of Rule 16, the government in this case allowed a complete open-file discovery so that Clotida was fully aware of the risks of taking the stand. See United States v. Gladney, 563 F.2d 491 (1st Cir.1977). Under the circumstances presented, there was no violation of Clotida’s constitutional right to testify or remain silent.
CONCLUSION
In agreement with the district court, we hold that Clotida waived his Rule 29 motion, and that there is no “manifest injustice” in sustaining the jury’s verdict of conviction. Additionally, we hold that the district court did not abuse its discretion in permitting the government’s rebuttal evidence.
The conviction of Chatten must be reversed because the evidence presented in the government’s case-in-chief, including all inferences drawn therefrom, does not support the jury’s verdict of guilty beyond a reasonable doubt. Her Rule 29 motion, therefore, should have been granted. Accordingly, the judgment of the district court is affirmed as to Clotida and reversed as to Chatten.
So Ordered.
. The testimony of Clotida, which is outside the government’s case-in-chief, established that Olivia Chatten was involved in an extramarital affair with Clotida, accompanied him from the Netherlands to Ecuador, and lodged with him in the same hotel room. Clotida also testified that he intermingled his and Chatten’s clothes with the clothes given to him by Serapio, and put them all in the suitcases. For purposes of the Rule 29 motion, however, we may only consider the evidence in the government’s case-in-chief and exclude the testimony of Clotida. See Lopez, 576 F.2d at 843. See also Evans, 572 F.2d at 475; Polizzi, 500 F.2d at 904; Cephus, 324 F.2d at 893.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HILL, Circuit Judge:
This case is another poignant illustration of the fact that when business relationships turn sour, the ailing party is apt to turn to the Sherman Act for relief.
THE FACTS
Appellant, GTE Directories Corp., (GTEDC) is a wholly owned subsidiary of the GTE Corporation. GTEDC enters into contracts with telephone operating companies, including those companies owned by GTE, to publish the telephone company’s directory. This lawsuit concerns the directories published by virtue of GTEDC’s lawful contract to be the official publisher of the General Telephone Company of Florida’s directories for Tampa, Clearwater and St. Petersburg, Florida. GTEDC sells advertising space in these directories; this advertising space is the familiar “yellow pages,” containing advertising of businesses with products and services to sell in the community covered by each particular directory.
According to the uncontradicted testimony of John D. O’Neill, former vice president of GTEDC, prior to 1975 Yellow Pages advertising had been coordinated by American Telephone & Telegraph Company (ATT). In May of 1975 ATT, decided to abandon this role, and their coordinating efforts were taken on by the newly formed National Yellow Pages Service Association (NYPSA), which was founded as a self-regulating organization of the publishers of telephone directories. One of the first issues which the NYPSA tackled was the coordination of national advertising. Because each publisher dealt with directories published in specific communities, a national company wishing to place advertisements in many different directories from many different publishers. To ameliorate the logistical problems this situation caused, the NYPSA created the position of Authorized Selling Representative (ASR). According to the NYPSA bylaws and guidelines, an ASR was authorized to sell advertising to any national advertiser on behalf of any publisher within NYPSA. Thus, a national advertiser, such as Greyhound Bus Lines, could purchase an advertisement in the directory of every major metropolitan area in the United States and receive only one bill from the ASR with whom it was dealing. It is the responsibility of the ASR to coordinate the advertising, i.e., to contact each publisher about placing an ad. The publisher pays a 25% commission to the ASR for each advertisement placed in its directory.
According to the guidelines published by NYPSA, in order to qualify as “national yellow pages advertising,” an advertising package must involve two or more publishers, and be designed to place ads in 20 or more directories in at least three states, with 30% of the advertising revenue generated in states outside the primary state. However, the guidelines go on to say, “this minimum standard does not preclude any member [publisher] from accepting as a yellow pages service ad any advertising program having fewer publishers, fewer directories, or fewer states, than the minimum standard.”
The guidelines provide that each publisher will recognize an ASR’s national sales, and will pay a commission on those sales. Under the NYPSA guidelines, the publisher in whose directory a national ad is placed bills the ASR for the advertising space, and the ASR is ultimately responsible for payment. The ASR collects from its advertiser clients. Each publisher has the right not to deal with an ASR who fails to pay its bills promptly, or otherwise cannot establish itself as a good credit risk. Many of the publishers of telephone directories are themselves qualified ASR’s. At the time the events involved in this litigation took place, GTEDC had a separate department qualified as an ASR for national yellow pages advertising.
Mr. Joel Blumberg is the central figure in this litigation. He was a sales person for GTEDC until 1975 when he started his own business as a “yellow pages consultant” in the Tampa Bay area. In 1979, after NYPSA authorized nonpublisher ASR’s to sell national yellow pages advertising, Blumberg’s company, Ad-Vantage Telephone Directory Consultants, Inc. (“Ad-Vantage”) became an ASR.
Once in business as an ASR, Mr. Blum-berg decided to “discount” yellow pages advertising. He accomplished this by charging his clients less than the publisher’s established rate for a yellow pages advertisement. However, Ad-Vantage was still required to pay the publisher full price for the ad. Presumably, the difference between what Ad-Vantage had to pay a publisher and the amount paid by its clients to Ad-Vantage came out of Ad-Vantage’s commissions.
GTEDC was apparently concerned about discounting, allegedly because ASR’s who failed to charge their clients the authorized rate for yellow pages advertising seemed unable to pay their publisher’s bills on time and also provide “full and comprehensive service” to their clients. This concern was expressed in the first issue of “NYPSA News” a newsletter published by GTEDC in May of 1982.
Evidently one of the “discounting ASR’s” who did have some problems paying its bills was Mr. Blumberg’s company, Ad-Vantage Inc. Mr. Blumberg’s own testimony indicated that, at least in the early part of 1982, the company was having to finance some of its clients’ accounts by paying the publishers before it received payment from its advertisers.
According to its version of the facts, GTEDC suffered chronic collection problems with Ad-Vantage over a period of two years. The extent of Mr. Blumberg’s failure to keep Ad-Vantage’s account with GTEDC “current” was hotly disputed at trial. However, it was undisputed that several checks sent to GTEDC by Ad-Vantage had bounced. After extensive contacts with Mr. Blumberg regarding Advantage's alleged indebtedness to GTEDC, a senior attorney in charge of collections at GTEDC sent a letter directly to the advertisers for whom Ad-Vantage had placed advertisements in the GTEDC directories. The letters, dated May 6, 1982, explained that certain difficulties had arisen between GTEDC and Ad-Vantage; that GTEDC would bill each advertiser directly for its advertising submitted through Ad-Vantage; and that future advertising orders submitted by Ad-Vantage must be accompanied by advance payment, or a guarantee of payment by the advertiser.
Mr. Blumberg was advised of this direct mailing by letter dated May 10,1982. This letter advised Mr. Blumberg that according to GTEDC’s records, his company still owed GTEDC $38,424.06, and that another $122,335 would be due promptly. The letter informed Mr. Blumberg that “when you are able to bring your account to a current status with GTE Directories Corp., we will once again be willing to accept your orders in the normal course of business.”
Ad-Vantage claimed that as a result of GTEDC’s direct contact with its clients, it lost several major accounts, and ultimately went out of business (to be immediately reborn under the name of National Yellow Pages Directories Services). Accordingly, Ad-Vantage sued GTEDC in federal district court, claiming, inter alia, that GTEDC’s action violated the Sherman Act and the Florida anti-trust statute, and constituted breach of contract, and tortious interference with business relations under Florida law. GTEDC counter-claimed for $208,000 which it claimed Ad-Vantage still owed on past due accounts.
The case went to trial before a jury, and the jury returned a verdict in favor of the plaintiff, Ad-Vantage, but only on the antitrust claims brought under the Florida Anti-trust Act, and the tortious interference with business relations claim. GTEDC prevailed on its counter-claim. The jury awarded Ad-Vantage $1.5 million in compensatory damages on the Florida anti-trust claim, and $500,000 in punitive damages on the interference with business relations claim. The antitrust award was trebled, pursuant to Florida law, for a total award of $4,500,000. The court then struck the $500,000 punitive damage claim as duplicative in light of the punitive nature of the treble damages awarded on the antitrust claim.
On appeal, GTEDC claims that the district court erred in not directing a verdict or entering judgment notwithstanding the verdict on the monopolization claims, on grounds that Ad-Vantage failed to offer evidence of a relevant market; that the district court should have directed a verdict or granted J.N.O.V. on the business tort claim because GTEDC’s actions were justified under Florida law; that the district court erroneously instructed the jury as to Florida law on tortious interference with business relations; and that a directed verdict or J.N.O.V. should have been entered for GTEDC because Ad-Vantage's evidence on the issue of damages was insufficient. Ad-Vantage cross-appeals, claiming that the district court erred by not adding the $500,000 in punitive damages to the treble damages awarded on the anti-trust claim. It also argues that should this court reverse any part of the verdict in favor of Ad-Vantage, it must also reverse the judgment for GTEDC.
I. THE ANTI-TRUST CLAIMS
We turn first to GTEDC’s arguments regarding the district court’s failure to direct a verdict on Ad-Vantage’s anti-trust claims. The crux of its argument is that Ad-Vantage failed to prove a relevant market within which a jury could correctly evaluate the effect of GTEDC’s actions upon its competition.
Initially, we must note that the jury rendered a verdict for the defendant, GTEDC, on the federal anti-trust claims. GTEDC was found liable only for violating Florida anti-trust law, and only that portion of the Florida Anti-Trust Act of 1980 which tracks Section 2 of the Sherman Act, 15 U.S.C. § 2. Fla.Stat. § 542.19 provides:
Monopolization; attempts, combinations, or conspiracies to monopolize.— It is unlawful for any person to monopolize, attempt to monopolize, or combine or conspire with any other person or persons to monopolize any part of trade or commerce in this state.
The Florida Anti-Trust Act further provides, in section 542.32, that:
In construing this chapter, due consideration and great weight [shall] be given to the interpretations of the federal courts relating to comparable federal anti-trust statutes____
In applying this provision, the Florida courts held that the Florida legislature has, in effect, adopted as the law of Florida the body of anti-trust law developed by the federal courts under the Sherman Act. St. Petersburg Yacht Charters, Inc. v. Morgan Yacht, Inc., 457 So.2d 1028 (Fla.App.1984). Thus, in analyzing this case, we may, and indeed must, apply the federal precedent developed under Section 2 of the Sherman Act.
Section 2 (and the comparable Florida statute) present two potential antitrust offenses: monopolization and attempt to monopolize. To prove monopolization, the Section 2 plaintiff must demonstrate possession of monopoly power in the relevant market, and the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident. United States v. Grinnel Corp., 384 U.S. 563, 570-71, 86 S.Ct. 1698, 1703-04, 16 L.Ed.2d 778 (1966); Dimmitt Agricultural Industries, Inc. v. CPC International Inc., 679 F.2d 516 (5th Cir.1983), cert. denied, 460 U.S. 1082, 103 S.Ct. 1770, 76 L.Ed.2d 344 (1982). To prove an attempt to monopolize a plaintiff must demonstrate that the defendant had a specific intent to accomplish the illegal result, i.e., monopolization, and that there existed a dangerous probability that the attempt would be successful. Spectrofuge Corp. v. Beckman, 575 F.2d 256, 276 (5th Cir.1978), cert. denied, 440 U.S. 939, 99 S.Ct. 1289, 59 L.Ed.2d 499 (1979). In this circuit a Section 2 plaintiff attempting to prove either completed monopolization or an attempt to monopolize must “provide the jury with sufficient evidence to permit it to define the relevant geographic and product market.” In re Municipal Bond Reporting Anti-Trust Litigation, 672 F.2d 436, 441 (5th Cir.1982); Dimmitt, 679 F.2d at 525. In proving an attempt to monopolize, the relevant market must be demonstrated in order to show that there was a dangerous probability of monopolization in a relevant market. Thus, both aspects of a Section 2 violation require proof of a relevant market.
As in most anti-trust litigation, the relevant market was a subject of hot dispute in this case, and the confusion was exacerbated by appellee’s chameleon-like ability to shift the focus of its market analysis between national and local advertising. The relevant market is a question of fact for the jury. See Dimmitt, 679 F.2d at 527; Mesirow v. Pepperidge Farm, Inc., 703 F.2d 339, 345 (9th Cir.1983), cert. denied, 464 U.S. 820, 104 S.Ct. 83, 78 L.Ed.2d 93. In its motion for a directed verdict, and again in its motion for J.N.O.V., GTEDC maintained that Ad-Vantage failed to demonstrate a relevant market.
In evaluating this claim, we are mindful of the Supreme Court’s recent admonition that, “a trial judge must direct a verdict only 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. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). After carefully evaluating all of the arguments made by both parties, and after examining all of the evidence presented on this issue with painstaking thoroughness, we conclude, for the reasons given below, that the district court ought to have granted a directed verdict or J.N.O.V. in favor of GTEDC on the anti-trust claims.
We begin by examining Ad-Vantage’s claim that “yellow pages advertising” is a relevant product market. The relevant market is made up of those “commodities reasonably interchangable by consumers for the same purposes.” United States v. DuPont & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 1007, 100 L.Ed. 1264 (1955). Ad-Vantage offered sufficient testimony to allow the jury to conclude that advertising in telephone directories is unique. In other words, other forms of advertising, such as advertising in newspapers, consumer magazines, or business publications, was not seen by businesses as a suitable substitute for yellow pages advertising. In addition, the increase in price of yellow pages was not commensurate with increases in the pricing of other forms of advertising. However, we note (for reasons which will become important later in our analysis) that all of Ad-Vantage’s evidence dealing with the uniqueness of yellow pages advertising related only to advertising in the “official” yellow pages, i.e., advertising published in telephone directories published under contract with the telephone company operating in a specific geographic area.
Determining the product market is only the first step. The relevant product market must also be accompanied by proof of the relevant geographic market. This is the “area of effective competition” within which the parties operate. Standard Oil Co. v. United States, 337 U.S. 293, 299, 69 S.Ct. 1051, 1055, 93 L.Ed. 1371 (1949). Initially, all of Ad-Vantage’s anti-trust claims rested upon the fact that GTEDC and AdVantage were both Authorized Selling Representatives of national advertising. Evidence offered at trial indicated that competition for national ad campaigns did take place between GTEDC’s national sales force (its own ASR) and Ad-Vantage. As an ASR, GTEDC’s national sales force solicited advertising not only for its own telephone directories, but also advertising to be placed in the directories published by other members of the NYPSA. When acting as an ASR, the national sales force for GTEDC earned a commission on the ads placed with other publishers, the same as a nonpublisher ASR would earn.
Ad-Vantage originally claimed that GTEDC’s actions as an ASR were aimed at destroying competition in two relevant geographic submarkets. The first submarket consisted of the sale and purchase of yellow pages advertising space by businesses qualifying as national accounts situated or headquartered in any community or section of the United States. The second submark-et consisted of the sale of national advertising in specific yellow pages directories, published in and for a specific community, such as the directories that GTEDC published for Tampa, St. Petersburg, Clear-water, etc.
The problem with these market definitions soon became evident at trial. AdVantage could muster no proof that GTEDC, as an ASR, had obtained any significant degree of market power in the area of national yellow pages advertising. In other words, while GTEDC as an ASR competed with Ad-Vantage as an ASR for the sale of national advertising, Ad-Vantage could offer no proof that GTEDC had monopolized national advertising or had attempted to monopolize national advertising, either in the nationwide market or as appearing in any given directory. We need reiterate at this point that “national advertising,” according to the NYPSA guidelines, meant advertising programs ordering ads to appear in 20 or more different directories, published by two or more different publishers, placed in at least three different states, with 30% of the advertising revenue outside the primary state.
With its national advertising theory rapidly collapsing, Ad-Vantage moved to amend its complaint to conform to the evidence produced at trial. The amendment was allowed, primarily because GTEDC failed to show that it would be prejudiced. Thus, the final market asserted by Ad-Vantage, on which the jury received instructions, was as follows:
Ad-Vantage claims that the relevant market or submarket in this case is the purchase and sale of advertising space in a specific yellow pages directory covering a specific geographic area, for example, Tampa, Clearwater and St. Petersburg. It includes buyers and sellers such as GTEDC directories corporation and authorized selling representatives, wherever located, desiring to purchase advertising space from the publisher, such as GTE directories corporation, of the Yellow Pages directory for any specific geographic area.
The purpose of this amendment was to shift the focus from national advertising to local advertising within the telephone directories produced by GTEDC for the Tampa Bay communities. This was accomplished by switching from sale of “national advertising” to “sale of advertising space.” The conclusion that this definition shifted the market focus to local advertising is supported by the fact that the jury found GTEDC liable for violating only the Florida antitrust laws. The only distinction between the Sherman Act and the Florida law is that the Florida law does not require an effect on interstate commerce. St. Petersburg Yacht Charters, 457 So.2d at 1032. “National” advertising clearly effects interstate commerce; it is designed to promote it.
A local advertisement differs markedly from a national ad. A local ad is bought by a local business and appears only in the directory or directories which serve the same geographic area as the one in which that business operates. For example, a “Mom and Pop” grocery store located in St. Petersburg would buy an advertisement in the St. Petersburg directory. It would have no reason to advertise in all of the major metropolitan areas of the United States. Uncontradicted testimony by NYP-SA officials at the trial established that most local advertising is placed by direct contract with the publisher of the local directory.
The NYPSA guidelines do establish that, should a publisher desire, it may accept orders for local advertising from an Authorized Selling Representative and treat such advertising as if it were a national ad. That is, a publisher who receives an order for a local ad from an ASR may accept it and may pay the ASR who obtained the ad a commission. However, it is clear that it is the individual publisher’s prerogative to decide whether or not it will pay a commission to ASRs for placements of local advertising. On the other hand, each publisher is bound by the NYPSA guidelines and bylaws to honor an ASR’s placement of a national ad; in that case it must pay the commission.
Counsel for Ad-Vantage explicitly recognized GTEDC’s exclusive right to control the sale of local advertising within its publications up until the time that it successfully amended its complaint at trial. In its original amended complaint, Ad-Vantage related that, “coincident with its exclusive publication rights, GTEDC is authorized by the local telephone companies as the exclusive agent for the solicitation of yellow pages advertising from local accounts, i.e., advertisers not qualified as “national accounts,” in each locality for which it publishes a directory____” Further, in his opening argument, counsel for Ad-Vantage stated, “GTEDC has the exclusive right to sell what is called local clients.” He stated further, “GTEDC, notwithstanding the creation of NYPSA, notwithstanding the creation of ASRs, still reserves to itself the exclusive right to sell all local advertising. Ad-Vantage, Mr. Blumberg, cannot sell advertising to advertisers who do not qualify as national accounts, and he can’t give them a price break.”
The evidence precipitating Ad-Vantage’s change of heart with respect to local advertising came in the form of testimony by two yellow pages advertisers, Peter J. Blank of Home Federal Bank, and Alfred C. Grecco, of Apsco Appliance and TV Centers, for whom Ad-Vantage placed local advertisements with GTEDC. Ad-Vantage apparently received a commission from GTEDC for placement of these ads. In addition, testimony by a GTEDC official indicated that because GTEDC took orders for more than a million ads a year, it could not stop to make sure that all of them were national rather than local ads. It was simply uneconomical to police the ads placed by ASRs.
Based on the above evidence, Ad-Vantage reasoned that there was really no difference between national accounts and local accounts. Thus, it could be said that Ad-Vantage “competed” with the GTEDC's local sales force for the sale of local advertising. GTEDC published the only directories carrying official yellow pages advertising, and local accounts made up 90% of the advertising in the Tampa GTEDC directory. Thus, counsel for Ad-Vantage argued, GTEDC had a 90% share of the relevant market according to this logic.
On motion for directed verdict, counsel for GTEDC rationally pointed out that AdVantage’s new theory of the case meant that GTEDC was being accused of monopolizing its own telephone book. GTEDC’s 90% “market share” was nothing more than a reflection of the fact that it had a lawful contract with the telephone company to produce the telephone directory and solicit local advertising for that directory.
In response, counsel for Ad-Vantage added the final gloss to its market theory. Faced with a 90% lawful monopoly, it argued that the publication of the telephone directory was a separate activity from the sale of yellow pages within that directory. In other words, it argued that the lawful power to publish the exclusive directory for a specific geographic area did not give GTEDC the right to be the exclusive seller of advertising space within the directory which it published.
Based on this theory, the court instructed the jury:
GTE Directories Corporation, by virtue of its contract with General Telephone Company of Florida, possesses a lawful monopoly over the product it produces, the official Yellow Pages Directory for the City of Tampa and other communities. That GTE Directories Corporation possesses the power to publish its directories and to set rates for advertising space in those directories is not to be considered by you as evidence of monopoly power, monopolization or an attempt to monopolize.
On the other hand, that lawful monopoly to publish the official yellow pages and to set rates for advertising space in the yellow pages may not be exercised to the end that another activity is monopolized or attempted to be monopolized.
The district court never defined what “another activity” might be in the context of this case. Based on these instructions explaining Ad-Vantage’s final version of its market theory, as argued by its counsel in closing arguments, the jury found GTEDC liable for monopolization and attempted monopolization under Florida law.
We must admit that this market theory has a certain superficial appeal. It seems analogous to a typical wholesale/resale monopolization case. In fact, for Ad-Vantage’s theory to work, the appropriateness of that analogy is crucial. GTEDC must be viewed as a wholesaler or manufacturer of advertising “space.” Ad-Vantage must play the role of retailer of this space. AdVantage sells the space to consumers of yellow pages advertising. While GTEDC’s contract with the telephone companies enables it to manufacture the space, it cannot use its manufacturing power as leverage to control another level of activity, i.e., the retail sale of this space. Unless this analogy is justified by the commercial realty existent here, Ad-Vantage’s claims must fall, because it is not a lawful competitor of GTEDC for local advertising; the relevant market is the area of effective competition.
A Section 2 claim can be supported by limiting the market definition to a single level of distribution where a vertically integrated manufacturer uses his dominant position at one level of competitive activity (manufacturing) to eliminate competition at another level (retailing). See e.g., Spectrofuge, 575 F.2d 256 at 282; Eastman Kodak v. Southern Photo Materials Co., 273 U.S. 359, 47 S.Ct. 400, 71 L.Ed. 684 (1927); Poster Exchange, Inc. v. National Screen Service Corp., 431 F.2d 334, 339 (5th Cir.1970), cert. denied, 401 U.S. 912, 91 S.Ct. 880, 27 L.Ed.2d 811 (1971). Becker v. Egypt News Company, Inc., 713 F.2d 363 (8th Cir.1983). In these cases, the monopolist is seen as imposing a vertical restraint on intrabrand competition. See also Paschall v. Kansas City Star, 727 F.2d 692, 698 (8th Cir.1984), cert. denied, 469 U.S. 872, 105 S.Ct. 222, 83 L.Ed.2d 152 (legitimate business reasons for vertical integration will negate antitrust liability in the absence of “dirty tricks.”)
However, the superficial similarity between this case and the vertical restraint cases cited above fails when the commercial reality of GTEDC’s local advertising sales is carefully examined. To the extent that the sale of yellow pages advertising is an activity separable from the publishing of that advertising the sales made by non-GTEDC ASR’s are in the nature of an agency and not retail sales.
The wholesale/resale analogy falls for several reasons. First, there is no “resale.” Yellow pages is not a product that is produced and distributed. The blank yellow pages do not exist prior to the sale of an advertisement, somehow awaiting distribution on a resale market. Each advertisement, that is, the space for the ad, is “created” when the advertisement is sold to the advertiser. A GTEDC official testified that publishers will make the yellow pages as large as is necessary to accommodate all of the advertisements placed in it. ASRs do not maintain an inventory of ad space to be sold. An ASR cannot purchase a page in the yellow pages and then distribute it to advertisers as it sees fit.
Thus, the market structure at issue here is quite different from the wholesale/retail schemes used to support Section 2 claims in the cases cited by Ad-Vantage. In Poster Exchange, 431 F.2d 334, the defendant was a manufacturer who made a bona fide sale of its products to its distributors, who then sold the products to the consumers. In Heatransfer Corp. v. Volkswagenwerk, 553 F.2d 964 (5th Cir.1977), cert. denied, 420 U.S. 929, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978), the defendant was accused of using its power over one product, the manufacture of Volkswagens, to control the sale of airconditioning units for those Volks-wagens, when four different companies were producing air conditioning units for use in Volkswagen cars. In Becker v. Egypt News, 713 F.2d at 363, the defendant was accused of using its power in the wholesale market to control the retail market for the Daily Racing Form. However, the daily racing form was a commodity, produced and sold to the retailer, who assumed all the risks of distribution.
The failure of the wholesale-resale analogy is further illustrated by comparison to Sherman Act Section 1 resale price maintenance cases. In a typical price maintenance case, a manufacturer produces a product, and sells it to a retailer. The manufacturer then attempts, in some way, to control the price that its retailer can charge for the product. Retail price maintenance is considered per se illegal under the Sherman Act. Dr. Miles Medical Co. v. John D. Park & Sons Co., 220 U.S. 373, 31 S.Ct. 376, 55 L.Ed. 502 (1911); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). It applies where the risks of distribution are borne by otherwise independent firms in competition with each other. Green v. General Foods Corp., 517 F.2d 635 (5th Cir.1975), cert. denied, 424 U.S. 992, 96 S.Ct. 1409, 47 L.Ed.2d 348 (1976).
In some cases, however, an activity which looks like resale price maintenance is held not to fall within that category because the relationship between the parties is not that of wholesaler-retailer. The pivotal case establishing this doctrine is Unit ed States v. General Electric Company, 272 U.S. 476, 47 S.Ct. 192, 71 L.Ed. 362 (1926), which held that a genuine agency or consignment relationship falls outside the per se rule of Dr. Miles. Thus, in General Electric the Supreme Court found that General Electric’s patent on the light bulb it manufactured resulted in a consignment rather than a wholesale/resale relationship with its “distributors.” Similarly, in Hardwick v. Nu-Way Oil Co., 589 F.2d 806 (5th Cir.1979), we found that where service station operators, “were little more than salaried conduits to enable Nu-Way Oil to make retail sales directly to the consumer,” resale price maintenance was not at issue. See also Green v. General Foods, 517 F.2d at 635 (per se prohibition on resale price maintenance prohibits such where the risks of the distribution process are bom largely by numerous otherwise independent individuals or firms in competition with each other for sale of a product). The implicit assumption behind all these cases is there can be no antitrust violation without a competitor, and agents do not compete with those whom they represent.
We find a recent case from the Seventh Circuit to be particularly instructive in analyzing the Yellow Pages market. In Illinois Corporate Travel, Inc. v. American Airlines, 806 F.2d 722 (7th Cir.1986), McTravel sued American Airlines for American’s refusal to allow McTravel to write tickets good for travel on American. American admitted that it refused to allow McTravel to sell tickets on American because McTravel would not agree by contract to refrain from advertising discounts. McTravel wanted to let people know that it would rebate part of its usual 10% commission from American to the consumer should a traveler book his or her flights through McTravel.
American’s policy was functionally a price restriction. However, the district court declined to issue a preliminary injunction based on a resale price maintenance claim because it concluded that McTravel and other travel service companies are agents of the airline companies. The court of appeals affirmed the district court’s decision, concluding that “travel service operators cannot resell air travel.” This decision was based on the following findings. An air carrier establishes the price for its tickets and announces that price to the public; it determines the numbers of flights and the destinations of each; a traveler has a choice between dealing directly with the airline or through a travel agent, but the travel agent must obtain the airline’s clearance to make a reservation. The travel agent does not purchase an inventory of seats. Travelers receive the service they have paid for directly from the airline; and, although a travel agent may lose his commission when a ticket is not used, the risk of unfilled seats remains at all times with the airlines. Id. 806 F.2d at 725.
We find this analogous to the relationship between an ASR and a yellow pages publisher. The publisher lawfully establishes the price for its advertising and announces it to the public. It determines when it is going to publish directories, and has the ultimate say on how many advertisements it will accept. An advertiser may deal directly with the publisher, or may use an Authorized Selling Representative. However, should it use an ASR, the ASR must submit a request for advertising to the publisher, analogous to a reservation in the forthcoming publication. The ASR does not purchase an inventory of yellow pages space. The service which the advertiser has paid for is performed by the publisher, not the ASR. Further, should the advertisement fail to appear as requested in the appropriate directory, the publisher is under an obligation to refund the advertiser’s money. Finally, should a publisher not receive enough advertisements to make a directory profitable, it must still publish the directory; the publisher retains the “risk” that not enough yellow pages advertisements will be “distributed” — not the ASRs.
The record in this case is replete with evidence that an Authorized Selling Representative functions as an agent, not a retailer. The NYPSA guidelines provide that, “in any case where a difference arises between an advertiser and the publisher, [the ASR] represents the publisher’s interest.” The application for ASR status states that, “the undersigned further understands that when selling National Yellow Pages advertising to national advertisers or their advertising agencies, or when negotiating disputes with such national advertisers or their advertising agencies, it is representing the publishers who are members of this association____” Finally, the executive director of the National Yellow Pages Association, Fred Smykla, testified that an ASR represents the publisher in all things that the publisher does, and is expected to act in the publisher’s best interests.
There is some evidence in the record to indicate that an ASR, when purchasing advertisements on behalf of an advertiser, is acting as the agent of the advertiser. For example, letters from GTEDC to Ad-Vantage’s client referred to Ad-Vantage as the advertiser’s agent. Also, should the advertiser fail to pay the ASR through whom it purchased yellow pages advertising, that ASR is still liable to the publisher for payment. However, this does not establish that a dual distribution system existed; it merely means that all advertising was purchased directly from the publisher, and that the advertisers who dealt through an ASR had an agent acting on their behalf. Either way, an ASR functions as an agent, not an “independent contractor,” and not, in any case, as a retailer of yellow pages advertising space. There was simply no evidence presented which would allow a reasonable jury to reach the latter conclusion, a conclusion essential to Ad-Vantage’s market theory. Thus, Ad-Vantage’s leveraging argument fails. There was no “second activity” monopolized by using GTEDC’s lawfully acquired market power to publish telephone directories as leverage.
Once the market structure is thus clarified, we can distinguish this case from the most relevant former fifth circuit precedent, Six Twenty-Nine Productions v. Rollins Telecasting, Inc., 365 F.2d 478 (1966). In that case, a television station with a lawful local monopoly decided to expand its in house advertising agency services. That is, in addition to selling air time, it began producing television advertisements and receiving additional remuneration for these services from its advertiser clients. When Six Twenty-Nine Productions, a local advertising agency, attempted to place advertisements with the station, a station representative informed the agency that it would not pay Six Twenty-Nine a commission, and that the station had “set aside $1,000,000 to put the agency [Six Twenty-Nine Productions] out of business.” When Six Twenty-Nine Productions sued the television station under the Sherman Act, the station defended on the ground that it had the absolute right to refuse to deal with a competitor under United States v. Colgate & Co., 250 U.S. 300, 39 S.Ct. 465, 63 L.Ed. 992 (1919). The court of appeals disagreed, finding that Six Twenty-Nine stated a cause of action based on the idea that the television station, “used [its] legal monopoly power to create monopoly power in a separate but related field....” Id. 365 F.2d at 483.
Thus, in Six Twenty-Nine Productions, a leveraging argument was possible. The production of advertisements is a related activity separate from the sale of advertising space. Each is a separate source of revenue. In the context of this case, no evidence was presented indicating that ASRs do not receive separate compensation from their clients when the ASRs engage in the production — the lay out — of the advertisements. In fact, testimony of a former NYPSA official indicated that most of the national yellow pages advertising is purchased through ASRs by advertising agencies on behalf of national advertisers, supporting the notion that ad agencies perform a separate function. Thus, the leveraging argument made in Six-Twenty-Nine Productions is not available here.
A clear view of the yellow pages market structure also obviates application of the case most heavily relied upon by Ad-Vantage, that being Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 105 S.Ct
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
SOPER, Circuit Judge.
This suit for infringement of patents issued to Driggs and Faber relates to claims 1 and 2 of patent No. 1,712,382, and claims 2 and 7 of patent 1,712,383, which patents were issued May 7, 1929, on applications filed March 20, 1928, and to claims 1 to 4, 9 to 12 and 18 to 23 of patent No. 1,947,-834 issued February 20, 1934 on an application filed September 19, 1931. These patents are called herein the first, second and third patent respectively. The first patent was for a firearm, the second for fixed ammunition for firearms, and the third for a flare signal. Infringement was charged against Triumph Explosives, Inc., a manufacturer of explosives, herein called the defendant, and against Glenn L. Martin Company, a purchaser of its goods. The District Judge held the first and second patents valid and infringed, and the third patent valid but not infringed. Cross-appeals were taken. D.C., 37 F.Supp. 766.
The general purpose of the patents is indicated by the introductory paragraphs of the specification of the first patent, which are as follows: “This invention relates to an improved hand operated muzzle loading firearm adapted for use in firing comparatively heavy projectiles at a low initial velocity, and with a minimum of recoil, and it is especially adapted for use in firing pyrotechnic signals from aircraft or from water borne vessels. It may also be used to discharge flares for illumination purposes, smoke signals, or the like, or it may be useful in distributing gases by police, or military or naval troops, and in a great variety of other ways, * *
The evidence indicates that after the first World War, need was felt for an improved device to furnish signal lights and flares to be used by aviators in place of the Very pistol which was a breech-loading mechanism requiring the use of two hands. Various ideas were suggested but no substantial improvement was made until the applications for the first two patents in suit were filed. The Ordnance Division of the United States Army had been searching for a more satisfactory manner of signal-ling, consisting of a pistol that could be operated with one hand, fired in any direction, up, down or sideways, by the use of ammunition which, in case of misfiring, could be released from the pistol without bringing it back into the plane and thereby increasing the fire hazard. The patented devices met these requirements and were adopted by the Army as standard equipment. Faber had been connected with the Pyrotechnic Schools of the Ordnance Department, and may have had something to do with the formulation of the Army’s requirements, but there is no doubt that the new apparatus was a substantial improvement, or that it achieved commercial success. The sales between 1928 and 1940 were something in excess of one million dollars.
The patents disclose a heavy metal pistol with a very short, large calibre, smooth bore barrel into which is loaded from the muzzle a longer aluminum cylinder which serves as a cartridge case and auxiliary barrel. The cartridge case is held automatically in the barrel by a spring latch which fits into an annular groove at the base of the cylinder and can be released when desired by pressure of the thumb. The cartridge case is closed at both ends but contains at the base a blank cartridge that is exploded when the trigger of the pistol is pulled. The cartridge case also contains an aluminum cylinder or projectile case which encloses a candle or flare attached to a folded parachute. The explosion of the blank cartridge forces the projectile case from the cartridge case, which remains in the barrel of the pistol. The explosion also fires a delayed action .fuse in the base of the projectile case so that after it has been shot out, a powder charge within is ignited, forcing the flare, that has also been ignited, and the parachute into the air. The cartridge case with its contents is called fixed ammunition. In practical operation cartridge cases are placed in a rack in the cockpit of the plane; the pistol, conveniently placed near at hand, is grasped by the aviator and the barrel is pressed down over the base of a cartridge case until it is automatically held by the spring latch. The pistol is then fired outside the plane and while it is held outside, the cartridge case is dropped by releasing the latch.
Claim 1 of the first patent is as follows: “A muzzle loading- low pressure fire arm, adapted to be used with fixed ammunition provided with a cartridge case, comprising a pistol grip, a short smooth bore barrel, spring actuated firing mechanism with a trigger for releasing same, and automatic means for holding the cartridge dase in said barrel before and after firing, with means for releasing same from said barrel when desired.”
. On September 23, 1931, a disclaimer was filed restricting Claim 1 as follows: “By-restricting the element ‘cartridge casing’ of said Claim 1 to ‘closed at its rear end and capable of standing the strains of firing and ejecting completely a projectile therefrom without deformation of the cartridge casing’.”
Claim 2 of .the first patent is as follows: “A muzzle loading low pressure fire arm, adapted to be used with fixed ammunition provided with a cartridge case, having an annular groove near its base comprising a hand grip, a short smooth bore barrel of large calibre, spring actuated firing mechanism with a trigger for releasing same, and means for retaining the cartridge case in said barrel before and after firing, or for releasing same from said barrel when desired, and means comprising a spring latch adapted to engage in said annular groove, and to. be released by hand.”
The validity of Claim 1 of this patent is first attacked on account of the character of the disclaimer. It is said that the disclaimer serves to add an element to the original claim and therefore amounts to a surrender of the claim. It was held in Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 55 S.Ct. 455, 79 L.Ed. 1005, that a patentee is not permitted to add by disclaimer a new element to a combination claimed by his patent, thereby transforming it into a new patent for a new combination; and also that a disclaimer, although invalid, amounts to an abandonment of the claim which cannot thereafter be revived. The principle was applied in that case to a patent for a combination apparatus for securing uniformity of speed in machines for recording talking motion pictures; and a disclaimer was held invalid which attempted to add a flywheel to the combination.
There is merit in this contention. The title of the first patent and the introductory paragraphs of the specification quoted above indicate that the invention relates, not to the fixed ammunition to be fired, but to the pistol to be used to fire it. Ammunition is the subject of the second patent. Thus, the patentees state in their specification of the first patent that the “cartridge case and its contents are illustrated, described and claimed in our separate copending application filed March 20, 1928, Serial Number 263,026, and entitled ‘Improvements in Fixed Ammunition for Firearms’, but for the purpose of illustrating the operation of the gun, this cartridge case and its contents will now be briefly described”. So also we find that the original claim speaks of a firearm “adapted to be used with fixed ammunition provided with a cartridge case”. The claim describes the pistol, its firing mechanism and automatic means for holding the cartridge case in the barrel before and after firing, but does not describe the fixed ammunition itself. The disclaimer for the first time speaks of the cartridge case as an element of the claim and seeks to restrict this element to a cartridge case closed at the rear and strong enough to stand the explosion without deformation. The evidence does not show why the disclaimer was filed or what excess of invention, claimed through “inadvertence, accident, or mistake”, the patentee was attempting to correct under the permissive terms of R.S. § 4917, 35 U.S.C.A. § 65; but whatever the motive, the attempt to introduce this new element into a claim originally confined to the pistol cannot be sanctioned under the established rule. See Altoona Publix Theatres v. Tri-Ergon Corp. supra; Milcor Steel Co. v. George A. Fuller Co., 2 Cir., 122 F.2d 292.
We think, moreover, that both claims of the first patent are invalid because the disclosures of the prior art were of such a character that it did not require an exercise of inventive faculty to devise the pistol. The French patent No. 594,962 to Vaxelaire published September 24, 1925, and the French patents No. 496,832 and No. 509,591 to Rollet published on November 18, 1919 and November 13, 1920 respectively, furnished sufficient information to enable one skilled in the art to add the improvements of the patent to signalling pistols that had long been known and used.
The Vaxelaire patent relates to improvements in the manufacture of rocket pistols for firing signal cartridges, and discloses an apparatus which enables the shooter to load the pistol and to extract the empty cartridge after it has been fired, with the use of only one hand. The patent does not show a completed structure but is confined so far as it is pertinent to the present discussion to this one improvement. This is accomplished by providing a cylindrical casing to contain the pyrotechnic signal and by attaching to the casing a hollow cylindrical tube of smaller diameter so grooved as to permit it to be held rigidly in the barrel of the pistol. Suitably disposed in the barrel are hooks or shoulders actuated by springs which are operated by buttons or levers placed on the exterior of the pistol.- The hooks or shoulders cannot move automatically during the firing. They are actuated only when the shooter pushes a button or lever, thereby operating the springs and causing the liberation of the cartridges. This arrangement enables the operator to load and unload the pistol with one hand, and also suggests a cartridge case which extends beyond the barrel of the pistol but remains therein during the firing whereupon the signal is expelled from the casing.
Rollet’s earlier patent, No. 496,382, relates to a signal cartridge for use in sig-nalling pistols in aviation service. The flare or signal is lodged in a metal case which is introduced into the bore of the pistol and remains there during the firing. The case is closed in the rear so that the gases resulting from the ignition do not come in contact with the barrel of the pistol. The cartridge is frictionally held in the barrel. It consists of a cylindrical tube of approximately the same diameter as the calibre of the barrel and is equal in length to the barrel. The tube is prolonged so as to form a cylinder of greater diameter that remains outside the barrel and contains the fireworks to be ignited. Before firing, the lid of the larger cylindrical portion of the casing is taken off. Ignition is conveyed through a wick in the smaller tube from powder contained at the lower end that is enclosed. The smaller cylindrical portion fits frictionally into the barrel and no means are shown for automatic firing, holding or release. Both hands are required to operate the apparatus.
The fireworks are not carried in a separate projectile casing but in the larger portion of the cartridge casing outside the barrel of the pistol and they leave the cartridge casing and are launched to the exterior by the force of the deflagration gases from the powder charge actuated by the primer which is subject to the firing pin of the pistol.
In the later Rollet patent, No. 509’,591, a muzzle loading pistol with a very short barrel of large calibre is shown and also a cartridge designed to be locked in the barrel by a bayonet joint. An enlarged outer end of the cartridge projects beyond the barrel. The thickness of the metal in the cartridge is great enough so that it will not be warped through use but may be used again and again, meanwhile serving as a reenforcement for the barrel. The device is said to be capable of firing the signal as far as possible without deterioration of the sleeve. The lighting of the device is caused by percussion. Two hands are required for its operation. It will be noticed that the cartridge case is closed at the rear end and that it is of sufficient strength to resist the explosion.
None of these French patents purports to show a complete structure consisting of a fire arm and fixed ammuriition. They merely offer improvements to signal-ling pistols and signalling means that are assumed to be well known. But complete anticipation of the patent in suit is not essential to a determination of invalidity. It is very clear that the Vaxelaire patent showed an improvement to a signalling pistol, permitting it to be loaded, fired and unloaded by the use of one hand, and that taken together, the three French patents suggested a pistol adapted to be used with a cartridge casing closed at its base and having an annular groove near its base and strong enough to act as an auxiliary barrel to the pistol. It did not require invention in our opinion to introduce these improvements in the signalling pistols that were well known when the application for the first patent in suit was filed, or to devise the combination of that patent; and this plain absence of invention is nor overcome by evidence of the commercial success of the Driggs and Faber pistol even though it satisfied a long felt want. Altoona Publix Theatres v. Tri-Ergon Corp., 294 U.S. 477, 487, 55 S.Ct. 455, 79 L.Ed. 1005. It may be added that the commercial success achieved was due to the practical advantage that flowed from the use of the fixed ammunition of the second patent in the pistol of the first patent and not from the pistol alone.
• The second patent in suit specifically describes and claims the, fixed ammunition to bé used in the pistol. It consists of a cartridge case of sufficient size to contain the prójectile and of sufficient strength to serve as an auxiliary barrel when used with a short barrel pistol, such as is shown and claimed in the co-pending application for the first patent. As more particularly Shown by the specification, the device consists of a cylindrical cartridge casing with a stem of smaller diameter adapted to slide freely in the short barrel of the pistol and carrying an annular groove which engages the spring latch in the pistol. A blank cartridge, which fits in the base of the cartridge case, contains a small amount of explosive to expel the projectile therefrom. In the base of the cartridge case is an expansion chamber which affords sufficient room for the escape of the gases from the explosive. The forward portion of the cartridge case comprises the loading chamber into which the projectile is slidably mounted. The projectile consists of a cylindrical casing with side walls which may be of aluminum, bakelite, cardboard or other suitable material. It contains a pad of felt next to the base plug which forms the head of the cylindrical casing. This head has a flange to engage the end of the cylindrical casing and contains a sufficient expelling charge which is ignited by a fuse two or three seconds after the piece has been fired and the projectile has been ejected from the cartridge case. In front of the plug, another cylinder containing the flare composition is mounted. An ignition Charge is situated adjacent to the chamber containing the expelling charge and is ignited by the latter and in turn ignites the flare. Forward of the flare is the parachute connected by the flare suspension wire to the end cap of the flare. The outer end of the cartridge case is closed by a cupped head.
Claims 2 and 7 of the second patent are as follows:
“2. Fixed ammunition for use with low power smooth bore firearms, having a short barrel of large calibre, said ammunition comprising a cartridge case forming an auxiliary barrel for the small arm and provided with a rearwardly projecting portion adapted to slide freely in the gun barrel with a propelling charge in the rear end of said cartridge case, and having a chamber for the expansion of the gases from the propelling charge, and said cartridge case having a loading chamber in front of said expansion chamber with a projectile mounted in said loading chamber, and adapted to be ejected therefrom by the gases from' the propelling charge, said projectile comprising a tube closed at its rear slidably mounted in said loading chamber, signalling devices mounted in said tube and an expelling charge mounted in the base of said tube with means controlled by the firing of the small arm for igniting said expelling charge.”
“7. Fixed ammunition for use with low power smooth bore firearms, having a short barrel of large calibre, said ammunition comprising a cartridge case forming an auxiliary barrel for the small arm and provided with a rearwardly projecting portion adapted to slide freely in the gun barrel with a propelling charge in the rear end of the cartridge case, and having a chamber for the expansion of the gases from' the propelling charge, and said .cartridge case having a loading chamber in front of said expansion chamber, with a projectile mounted in said loading chamber, and adapted to be ejected therefrom by the gases from the propelling charge, said projectile comprising a tube slidably mounted in the loading chamber of the cartridge case, a parachute and flare mounted in said tube, an expelling charge also mounted in said tube for ejecting said parachute and flare and for igniting said flare, and means, controlled by the firing of the small arm, for igniting said expelling charge.”
When we first considered this patent, we reached the conclusion that it disclosed a combination of inventive quality not shown in the Rollet patents or other prior art. We pointed out in an opinion, for which the present opinion has been substituted, that the combination of the patent comprised a projectile casing containing the signal mounted in a cartridge casing that formed an auxiliary barrel for the pistol, an expelling charge in the projectile casing, means to ignite this charge after the projectile had been expelled from the cartridge, and means to ignite the flare material in the projectile from the firing means of the pistol after the projectile had left the cartridge casing; and we concluded that the novelty of this arrangement did not consist merely in the contents of the projectile, or in the combination of the cartridge casing and the projectile.
But, upon further examination of the prior art, assisted by briefs and arguments of counsel upon rehearing, we are convinced that this conclusion was erroneous in that it failed to give sufficient weight to the British patent to Wilder No. 128,975 of July-10, 1919, which was referred to in somewhat general terms but not specifically described in the original briefs or arguments. This patent disclosed a projectile enclosing a pyrotechnic signalling device of the kind adapted to be discharged into the air from a gun and to be suspended by a parachute. A more particular description of this projectile is not needed at this point for it has already been set out in the description of the projectile contained in our summary of the specifications and in claims 2 and 7 of the second patent above set out. In short, it now appears that what we formerly attributed to the patentee as a new and substantial contribution to the art was in fact to be found in the Wilder patent. The projectile element of the second patent in suit is in fact the projectile of Wilder.
The question, therefore, is whether invention can be found in the combination of this device with the cartridge casing of the second patent to form the fixed ammunition therein described. We think not; for, as we have pointed out above, the Vaxe-laire patent disclosed the method by which a cylindrical casing could be loaded in the barrel of a pistol and unloaded at will with one hand; and the Vaxelaire patent and more clearly the Rollet patents also disclosed a cylindrical cartridge casing closed at its base, of sufficient strength to serve as an auxiliary barrel of the pistol, consisting of a stem of smaller diameter to be inserted within the barrel of the pistol and a portion of larger diameter projecting beyond the barrel of sufficient size to contain the projectile. To put these suggestions together, and combine them with the Wilder projectile, as is done in the second patent, was undoubtedly an improvement in the art that makes for safety and efficiency in the use of pyrotechnic signals and is of value in the present war emergency; but in our view it does not rise to the dignity of invention. '
We do not find, as contended at the bar, that the second patent may be distinguished from the Rollet patents because in it one explosion occurs within the barrel of the pistol and another explosion occurs beyond the barrel within the extended portion of the cartridge casing that is made strong enough to stand the strain, while in the Rol-let structure there is no explosion in that part of the cartridge which is beyond the barrel of the pistol. It plainly appears from an examination of the drawings and specifications of the second patent in suit that while the first explosion takes place within the cartridge casing inside the bore of the pistol, the second explosion does not take place until the projectile casing has left the cartridge casing, and only then takes place the second explosion which ejects the Contents of the projectile casing into the air. Moreover, it is not without significance that neither the Rollet patents nor the Wilder patent were cited in the examination of the second patent in the Patent Office.
The third patent in suit, which is fully described in the opinion of the District Court, covers an improvement in the projectile case covered by the second patent. The improvement, as set out in the claims of the third patent, consists in the construction of the projectile case of one piece of aluminum with a relatively heavy base and thin side walls. The validity of the patent is not free from doubt, but the question need not be decided here; for even if the patent is valid, it is only entitled, as the District Judge, held, to a narrow range of equivalents, and it was not infringed by the defendant because its structure, notwithstanding a general similarity to the structure of the patent, was not made of a single piece of metal.
The decree of the District Court will be affirmed in part and reversed in part, and the case will be remanded for further proceedings in accordance with this opinion.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM:
Because all of the issues in this case have been rendered moot by this court’s unpublished decision in Bertolotti v. Dugger, No. 90-3666 (11th Cir. July 27, 1990), we affirm the district court.
AFFIRMED .
All stays issued by this court are vacated.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HAYNSWORTH, Circuit Judge.
The foreman of a gang of stevedores was injured when there was a rupture of a block on machinery attached to a grain elevator, but partially lowered into the hold of a deactivated vessel owned by the United States. Under the Suits in Admiralty Act he filed a libel against the United States. This action resulted in the usual petition to implead the granary, with which the United States had contracted for the unloading of the vessel, and a further petition by the granary to implead the stevedore, the employer of the injured man, with which it had contracted for the incidental stevedoring work. The District Court dismissed the libel after finding that the United States was not negligent and had not warranted that the machinery of the granary was “seaworthy.”
The principal question is whether the owner of a deactivated vessel warrants to a stevedore employed by a granary the condition of the granary’s unloading machinery. We agree with the District Court that it does not.
The Harry Lane, a Liberty ship owned by the United States, was deactivated in 1945. Her supplies, stores, and nautical instruments were removed. Her boilers, engines and pipes were drained, flushed with preservatives or filled with grease. The tail shaft and propeller were locked and the rudder fixed amidship. Her cargo gear and tackle were stripped, her winches drained and the packing removed from the pistons. Her Coast Guard Certificate of Inspection was lifted and the biannual Coast Guard inspection suspended. She was then relegated to the James River Reserve Fleet, a “moth ball fleet.” She could not be operated again as a commercial vessel without a major overhaul and relicensing and re-certification.
There she remained until the price support program for wheat resulted in such surpluses that the storage facilities for grains were taxed. She, with a number of other “moth-balled” vessels, was then pressed into service as a floating warehouse. She was modified to provide additional ventilation to her holds to protect the grain which was expected to be stored there for a long period.
In June 1954, the Harry Lane was towed to the Norfolk & Western grain elevator at Norfolk, loaded with surplus grain and returned to the Reserve Fleet. She remained there until September 1956, when she was again towed to the Norfolk & Western grain elevator for the purpose of discharging the grain she had taken on more than two years earlier.
This use of the vessel was under a general storage agreement between Continental Grain Company, the lessee of the Norfolk & Western grain elevator, and Commodity Credit Corporation supplemented by specific agreements for the utilization of the storage space in deactivated vessels of the Reserve Fleet. Continental, in turn, had a contract with Atlantic and Gulf Grain Stevedoring Associates pursuant to which Atlantic and Gulf supplied the necessary stevedoring services.
Norfolk & Western’s elevator was equipped with a “Marine leg,” a device for unloading grains. It is a large piece of equipment, permanently affixed to the elevator and to the dock. It is incapable of lateral movement, but, when a ship is properly placed beneath it, the mouth of the leg may be lowered into the hold until it is in contact with the grain. The marine leg is, basically, a housing containing a system of endless-belt, grain-carrying conveyors. These conveyers elevate the grain through the leg and carry it horizontally into the elevator.
When the grain has been removed to the point that the mouth of the leg is on the bottom of the hold and the elevation of the grain in the corners and remote areas of the hold has been so reduced that the grain no longer flows to the leg, it is necessary to bring such remaining grain to the leg and its elevating machinery. For this purpose, the leg is equipped with four plows or grain shovels. Each of these plows is connected, through a bridle, to a line which runs through a block attached to a pad eye at one of the corners of the leg, near the mouth, and thence, through other blocks to one of several small drum winches, high in the leg but controlled by the longshoremen in the hold by means of a clutch line.
The procedure is for a longshoreman to walk the plow away from the leg and place it in any desired location. When the plow has been placed, the drum winch is engaged through the clutch line. As the drum takes up the plowline, it draws the plow, and the grain in front of it, back to the leg.
On the day of his injury, Roper was supervising a crew of stevedores operating the grain plows. He undertook to demonstrate to one of them a more efficient use of the plow. During the course of this demonstration, after the drum winch had been engaged and while the plowline was in tension, a strap holding the plowline block near the mouth of the leg broke, and the block flew into Roper’s face.
Subsequent examination of the block disclosed the fact that its bushing had become worn, allowing the sheave to wobble and to contact the strap. The turnings of the sheave cut into the strap until the strap failed.
The block was unsafe for use, but the defect was not apparent upon a visual inspection of the assembled block. Indeed, Roper testified that one of his duties was to inspect the marine leg and its equipment prior to each use of it and that he had inspected it on the day that he was injured. The defect would have been apparent if the block had been disassembled. The disassembly of one block would not have been a complicated operation nor of long duration. If there was a duty to disassemble this block for inspection purposes, however, the duty would require the disassembly and minute inspection of all of the blocks, tackle and equipment used in association with the marine leg, perhaps the conveying machinery of the leg itself.
Under these circumstances, we think there is ample support for the finding that there was no showing of negligence on the part of the United States. It had engaged the expert operator of the machinery to do the work and it, in turn, had engaged the expert stevedores, who regularly worked with the machine, to perform the stevedoring service. The duty of care by the owner of a live ship to make her safe for the work to be done would hardly require it to make such a minute inspection of shore-based machinery not in its control as would have been required to disclose the defect here. When the United States engaged competent people to do the work in which they were specialists, it was not required to verify for itself the effectiveness of the expert’s maintenance of his specialized equipment.
The more important question is whether the United States, as owner of this deactivated vessel, warranted to the stevedore the soundness of the marine leg and its appliances. The District Court did not consider whether the usual warranty of seaworthiness would encompass this sort of shore-based, shore-attached equipment, for it held there was no warranty of seaworthiness. Since we agree, we also confine ourselves to the holding that there was here no warranty of the seaworthiness of any unloading equipment.
It is now settled that a deactivated vessel in one of the “moth ball” fleets is, for these purposes, dead and withdrawn from navigation, so that there is no warranty of her seaworthiness. Generally, the warranty of seaworthiness would not arise again until the vessel had been put through a major overhaul and she and her appliances and rigging had been reconditioned, restored and re-certified.
In West, as here, the vessel was a deactivated Liberty ship which had been in the moth ball fleet at Norfolk. She was towed from Norfolk to Philadelphia and there delivered to a ship yard for the purpose of being reconditioned and reactivated. She had aboard several men who became her principal officers when she was recommissioned, but, though in the general employ of the owner, they had not signed on the vessel when, during the course of the reconditioning work, West was injured. These men had the right to inspect the work on behalf of the United States, but no right to control or supervise it. So here, the riding master had no authority to control or supervise the unloading operation, for his duties were limited to protection of the vessel from such hazards as fire and pilferage.
In deciding that there was no warranty of seaworthiness, the Supreme Court in West assumed that the injured man may have been doing seamen’s work. It held there was no warranty to anyone, whatever the nature of the particular work he was doing, because the vessel affirmatively represented that she was not sound or fit for sea and the work was controlled by the shipyard. Here the ship affirmatively represented that her unloading equipment was not sound or fit for use and the work being done was controlled by the elevator, not by the ship or her owner.
Roper seeks to avoid the thrust of West by contending that the Harry Lane was returned to navigation when she was placed in service as a floating warehouse and moved from the Reserve Fleet to the grain elevator. He argues that she was actually “carrying” cargo, that the movement was in furtherance of a commercial transaction and that she should be treated as if she had been reactivated and returned to service.
Of course, the United States was under a duty to exercise care to see that such things as the vessel’s hatch covers and ladders, with which the stevedores must necessarily work, were reasonably safe for use. Should we ignore the fact that the vessel had no crew and carry Roper’s contentions to their extremities, we could, at most, find a warranty that the ship, itself, her hatch covers and ladders were safe for their intended use. No such limited use could give rise to a warranty of seaworthiness of unloading equipment, all of which was still in “moth balls” or completely removed.
Petterson v. Alaska Steamship Co. and Rogers v. United States Lines extended a live ship’s warranty of her unloading equipment and gear to similar appliances brought aboard by the stevedore and used with the actual or implied permission of the ship. In such situations it is appropriate that the protection of the warranty not depend upon technicalities of title. Those cases in no way suggest, however, that a dead vessel which does not warrant its own equipment, and no one supposed it did, nevertheless warrants the machinery of a granary simply because it is used to unload the vessel. It is not the fact that an unloading operation is being performed which gives rise to the warranty, but the fact that the vessel in service ordinarily represents she is sound and complete in her gear and equipment. There was no such representation here, for the vessel clearly represented itself as being entirely without operable equipment and usable gear. The ship which has no equipment or gear to warrant, does not warrant to others the soundness of machinery they may bring aboard.
We conclude that the owner of this dead vessel did not warrant to Roper the soundness of the granary’s machinery.
Affirmed.
. 46 U.S.C.A. § 741 et seq.
. See United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541. McKnight v. N. M. Paterson & Sons, Limited, D.C.N.D.Ohio, 181 F.Supp. 434.
. West v. United States, 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161; see also Latus v. United States, 2 Cir., 277 F.2d 264, 265 (decided April 11, 1960); Kissinger v. United States, D.C.E.D.N.Y., 176 F. Supp. 828.
. To accomplish the movement of the vessel from the Reserve Fleet to the elevator, the custodial agent sent aboard a riding master and six seamen, but the seamen did not sign on the vessel. They took -with them six mooring lines, a heaving line, fire hose, a boarding ladder, safety lamps, a sounding rod, a lead line and several electric light clusters. The seamen handled the mooring lines at the Reserve Fleet anchorage and at the elevator, but were then dismissed. The riding master remained employed to see that the ship was properly moored and kept clean, that the seals on her storerooms were not broken and that fire hazards were not created. He was not berthed or messed aboard. Indeed, he was not in command of the actual movement of the vessel, that having been under the control of the pilot captain of one of the two tug boats that moved the vessel.
. See, however, Hawn v. American S.S. Co., 2 Cir., 107 F.2d 999; Kissinger v. United States, D.C.E.D.N.Y., 176 F.Supp. 828.
. 9 Cir., 205 F.2d 478, affirmed sub nom. Alaska Steamship Co. v. Petterson, 847 U.S. 896, 74 S.Ct. 601, 98 L.Ed. 798.
. 347 U.S. 984, 74 S.Ct. 849, 98 L.Ed. 1120.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
RIVES, Circuit Judge.
The only question presented for decision is whether the provisions of Florida Statutes § 608.55, F.S.A. apply to a foreign corporation and to the officers and directors of a foreign corporation while such corporation is engaged in business in the State of Florida. We agree with the district court that they do not.
The appellant Crane Company sought to recover the sums due it by the appellee Bahamian corporation from appellee E. J. Richardson, by virtue of the fact that Richardson, while he was an officer of the Bahamian corporation and while that corporation was failing to meet its obligations, had been repaid loans of money made by him to the Bahamian corporation. The appellant insists that Richardson thus became personally liable to appellant by virtue of the provisions of Florida Statute, § 608.55, F.S.A. The district court, after hearing the evidence, entered its findings and conclusions, ruled that the provisions of the Florida Statute, § 608.55, F.S.A. were not applicable to a foreign corporation, and accordingly entered judgment for defendant Richardson.
Florida Statute, § 608.55, F.S.A. (without some later amendments not here material) was first enacted by the Florida Legislature in 1925. It was adopted almost entirely from the New York Stock Corporation Law enacted by the Legislature of New York in 1893. In 1894, the Court of Appeals for the State of New York, in Vanderpoel v. Gorman, 140 N.Y. 563, 35 N.E. 932, 24 L.R.A. 548, construed the New York statute as being limited to domestic corporations. Thereafter, in 1897, long before the enactment of the Florida statute, the New York Legislature, by Section 114, Article 11, provided expressly that the New York statute should apply to foreign stock corporations transacting or doing business in the State of New York. See Irving Trust Co. v. Maryland Casualty Co., 2 Cir., 1936, 83 F.2d 168, 170, 111 A.L.R. 781, footnote. The earlier, but not the later, New York statute was adopted by the Florida Legislature.
The Supreme Court of Florida has applied to this particular Florida statute the familiar rule that it is governed by the construction placed upon it at the time of its enactment by the highest court of the state from which the statute was adopted. Denmark v. Ridgell Furniture Co., 1934, 117 Fla. 244, 157 So. 489; see also Williams v. American Crafts, Inc., D.C.App.FIa., 3rd Dist., 1961, 129 So.2d 165, 168.
The Supreme Court of Florida has also held that when the legislature adopts only a portion of an existing statute of another state, it creates a strong presumption of legislative intention to omit from Florida law that portion of the other state statute not adopted. Peterman v. Floriland Farms, Inc., 1961, 131 So.2d 479, 480. Without more, it would appear that Section 608.55 of the Florida Statutes does not apply to a foreign corporation.
The history of the Florida statute is equally compelling. As stated, it was originally enacted in 1925. With a number of amendments, the statute has remained on the books. It obtained its present identity, Section 608.55, by virtue of the Florida Laws of 1953, c. 28170, Sec. 1. Prior thereto it was known as Section 612.45, Florida Statutes. Chapter 612 was repealed by the 1953 Legislature, the sections thereof being consolidated into new Chapter 608. Old Section 612.01, Florida Statutes, reveals that Chapter 612, including Section 612.45, was limited in its application to domestic corporations. See 18 F.S.A. p. 270.
The appellant Crane Company insists, however, that the decision of the Court of Appeals of New York in Vanderpoel v. Gorman, supra, does not apply, because the rationale of that case is in conflict with the provisions of the Florida Statute, § 613.02, F.S.A. That section does not, however, make foreign corporations subject to the same penalties, obligations, liabilities and restrictions as domestic corporations, nor does it provide for any personal liability of officers and directors.
No Florida case has been cited to justify appellant’s position that Florida Statute, § 613.02, F.S.A. would authorize the district court to disregard the clear and explicit language of the New York and Florida courts and the history of Section 608.55, all of which lead to the inevitable conclusion that Section 608.55 applies only to domestic corporations.
Accordingly, the judgment of the district court is
Affirmed.
. In pertinent part:
“No corporation which shall have refused to pay any of its notes or other obligations when due, nor any of its officers or directors, shall transfer any of its property, to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt, or upon any other consideration than the full value of the property paid in cash. * * * The directors or officers of a corporation who shall violate or be concerned in violating any provision of this section shall be personally liable to the creditors and stockholders of the corporation of which they shall he directors or officers to the full extent of any loss such creditors and stockholders may respectively sustain by such violation.” 18 F.S.A. § 608.55, pp. 224, 225.
. Florida Laws, 1925, c. 1009G, Section 43.
. In pertinent part:
“013.02 Issuing permit to transact business in the state
«(l) * * * the secretary of state shall, if the objects of the corporation are such as are not prohibited by the laws of the state, issue a permit allowing such corporation to transact business in this state, and such corporation shall thereupon be empowered to exercise all and be limited to the same rights, powers and privileges as like corporations organized under the laws of this state * *
. The authority and cases relied upon by appellant are distinguishable on that ground. See 23 Am.Jur., Foreign Corporations, Sections 313, 314; Friend & Company v. Goldsmith and S. Company, 1923, 307 ILl. 45, 138 N.E. 185; Floyd v. National Loan & Investment Co.. 1901, 49 W. Va. 327, 38 S.E. 653, 54 L.R.A. 536.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PIERCE, Circuit Judge:
This case involved cross-suits before Robert Sweet, Judge, in the United States District Court for the Southern District of New York. It arose from a dispute between two competitors that manufacture bedspreads and accessories (hereinafter referred to simply as “bedspreads”). The plaintiff and appellant Shapiro & Son Bedspread Corp. (“Shapiro”) contends that the district court erred in dismissing its complaint of copyright infringement on a motion for summary judgment. The defendants and cross-appellants Royal Mills Associates, and three of its individual partners (“Royal”) claim error in the district court’s dismissal of their counterclaim, which alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s claimed copyright was invalid.
For the reasons hereinafter stated, we reverse the district court’s dismissal of Shapiro’s claim, and we affirm the dismissal of Royal’s counterclaim.
Background
The essential facts of this case are few and garnered from an undeveloped record, but are largely undisputed. On October 28, 1978, Shapiro published a new fabric design, entitled “6723-4 Lace Fantasy” (“Lace Fantasy”), to be incorporated into bedspreads. Lace Fantasy soon became Shapiro’s best-selling line, with sales aggregating more than 500,000 units from the design’s inception until this action was commenced on May 26, 1983. The bedspreads were distributed and sold in heat-sealed plastic bags. During the above period, all of the Lace Fantasy bedspreads distributed by Shapiro contained a printed flyer inserted into the heat-sealed bags containing the bedspreads. The flyer bore the words “Design Copyrighted.”
In April, 1983, Shapiro learned that its competitor, Royal, was selling bedspreads under the name “Lace Splendor” with a design strikingly similar to Lace Fantasy, but at a lower price than Shapiro’s product. Shapiro then took steps to register a claim of copyright for its Lace Fantasy design. During this process, Shapiro became aware that the flyers it was inserting into the bags containing its bedspreads were legally insufficient to sustain a claim of copyright. The record indicates, and Royal concedes, that Shapiro took measures to affix an appropriate copyright notice to all bedspreads already manufactured but still in its possession, and to all those subsequently manufactured. Joint Appendix at 37-38, 122-25; Brief for Defendants-Appellees-Cross-Appellants at 6. The copyright registration form submitted to the Library of Congress contained, in addition to a copy of the flyer bearing the defective notice, a photograph of a Lace Fantasy bedspread with a sewn-in label bearing the typewritten words “Copyright by Everwear.” This copyright notice apparently was not identical to the corrected notice that was actually affixed to Shapiro bedspreads after the deficiency in the earlier notice was discovered. Royal claims this constitutes a misrepresentation, but does not contest the sufficiency of the labels now affixed by Shapiro, nor does it argue that the label submitted with the copyright registration application was insufficient.
After it obtained registration of its copyright, Shapiro wrote to Royal demanding that Royal cease infringing the Lace Fantasy design. Royal rejected the demand, and this action followed.
In a decision dated July 25, 1983, Judge Sweet denied Shapiro’s motion for a preliminary injunction. This decision was based on his finding that Shapiro’s publication of the Lace Fantasy design for close to five years, coupled with its failure to present evidence showing that a “cure” of the publication without proper notice had been effected, left Shapiro with only a slim chance of success on the merits and did not raise sufficiently serious questions going to the merits to make them a fair ground for litigation. Shapiro & Son Bedspread Corp. v. Royal Mills Associates, 568 F.Supp. 972 (S.D.N.Y.1983). By order dated February 10,1984, Judge Sweet granted Royal’s motion for summary judgment. This ruling, which is now before us, relied heavily upon his earlier denial of a preliminary injunction, and was predicated specifically upon the court’s determination that Shapiro had failed to demonstrate that it had made any effort to add proper notice of copyright to those bedspreads bearing deficient notice, and which had not yet been “distributed to the public” within the meaning of section 405(a) of title 17, U.S.Code. Accordingly, the court held Shapiro’s copyright to be invalid and dismissed the complaint. Some months later, by order dated August 9, 1984, Judge Sweet dismissed Royal’s counterclaim, which had alleged that Shapiro’s action was brought in bad faith and sought damages and a declaratory judgment that Shapiro’s copyright was invalid. Judge Sweet observed that his earlier holdings regarding Shapiro’s failure to cure its defective notice involved issues of first impression in this Circuit and elsewhere, and thus that Shapiro’s action was not brought with malice, but rather was colorable. He further found that Shapiro, in its application for registration of copyright, made no misrepresentations to the Register of Copyrights that would sustain a finding that the action was brought maliciously.
Discussion
A. The Shapiro Appeal
Shapiro jeopardized its present claim of copyright in the Lace Fantasy design by publishing it without proper notice of copyright for the period October 1978 to April 1984, during which the only notice on the product was the words “Design Copyrighted” which appeared on the flyer inserted into the bags containing the bedspreads. Shapiro’s original notice was deficient in two respects: (1) it was not in the form specified by 17 U.S.C. section 401(b), which requires that in the case of a copyrighted design reproduced in or on a “useful article,” the legend “Copyright,” “Copr.” or the symbol © be followed by the name of the owner of copyright in the work; and (2) it was not “affixed to” the work, as required by section 401(c). In general, publication of a work without a proper notice of copyright affixed injects the work into the public domain. See 17 U.S.C. § 405(a) (1982); 2 M. Nimmer, Nimmer on Copyright § 7.14[A] (1984).
Section 405(a), however, permits a defective notice to be cured and copyright to attach, if certain conditions are met:
(1) proper notice was omitted from only a relatively small number of works distributed to the public; or
(2) copyright registration for the work is effected within five years of the publication without proper notice, and a reasonable effort is made to add proper notice to all works that are distributed to the public after the omission of proper notice has been discovered; or
(3) proper notice was omitted by a third party in violation of the copyright owner’s express written requirement that it be included.
See 17 U.S.C. § 405(a) (1982).
In view of the eoncededly large number of works bearing defective notice that Shapiro distributed (more than 500,-000), and of the absence of any suggestion that anyone other than Shapiro was responsible for the defective notice, it appears that the only applicable section 405 curative provision is subsection (a)(2). Consequently, the principal issue presented is whether Shapiro’s efforts to add proper notice to all works distributed to the public after the defectiveness of the original notice was discovered were “reasonable” within the meaning of section 405. If they were, Shapiro may be found to have cured its earlier omission of proper copyright notice by making a reasonable effort to add notice, and by effecting copyright registration within five years of the initial publication without notice. Shapiro would then have several possible remedies against infringers. See 17 U.S.C. §§ 501-509 (1982). If, on the other hand, Shapiro’s efforts were not “reasonable” within the meaning of section 405, it would have no valid claim to copyright in the Lace Fantasy design, and that design, by virtue of its publication without proper notice, now would be in the public domain. 17 U.S.C. § 405(a) (1982).
The question whether efforts made to cure defective notice are “reasonable” has not yet been exhaustively examined by the courts. See 2 M. Nimmer, Nimmer on Copyright § 7.13JTB], at 7-94 (1984). It nevertheless seems clear that if no effort is made to add proper notice to copies distributed to the public after the defective notice is discovered, no cure is accomplished. When, however, some effort is made, the question whether it was “reasonable” is one of fact. Cf. In re M/T Alva Cape, 405 F.2d 962, 969 (2d Cir.1969) (whether precautions taken to avert explosion were “reasonable” requires full exploration of surrounding circumstances).
Section 405(a)(2) requires reasonable efforts to add notice to “all copies ... that are distributed to the public in the United States after the omission has been discovered.” A fair reading of this language indicates that it covers all copies bearing defective notice at the time the defect is discovered, and which have not yet been distributed to the public — that is, all those copies which are distributed to the public after the defect is discovered. In Shapiro’s case, these copies include those in its own hands when the defective notice was discovered and thereafter, as well as those at an intermediate state in the distribution chain, having left Shapiro’s facilities but not yet sold to consumers. All of these are copies which bore defective notice, and which had not yet been distributed to the public within the meaning of section 405(a)(2).
In dismissing Shapiro’s complaint, the district court held that “no action to affix the required notice [was taken] by Shapiro,” and accordingly granted Royal’s motion for summary judgment. Slip op. at 4 (S.D.N.Y. Feb. 3, 1984). In doing so, however, the court seems to have disregarded the inventory of defective bedspreads that Shapiro itself had on hand. Upon discovering that the notice was defective, it appears that Shapiro took prompt steps to correct the notice on the bedspreads in its inventory and to ensure that it shipped no further units without proper notice affixed.
Consequently, the record does not support the conclusion that “no action” to cure the defective notice was undertaken by Shapiro. Rather, the question becomes .whether the efforts that were undertaken may be held to be unreasonable as a matter of law, in order to sustain the district court’s grant of summary judgment to the defendants. In our view, Shapiro’s actions cannot be deemed to be unreasonable as a matter of law.
The number of bedspreads in Shapiro’s possession vis-a-vis those already shipped is a still-unresolved question of fact. Shapiro concedes, however, that although it re-la-belled the inventory still in its possession, it took no steps to add proper notice to those bedspreads already shipped to retailers but not yet sold to consumers. This decision, according to the affidavit of Shapiro’s president, was made because the bedspreads were typically sold in small quantities to numerous retailers, whose turnover of the bedspreads was rapid. In Shapiro’s view, efforts to add notice to these bedspreads would have been unavailing, chiefly because by the time the information regarding distribution of the product could be gathered and proper notice prepared and distributed, the defective inventory would already have been sold. Additionally, Shapiro asserts that attempts by retailers to properly “affix” notice to the bedspreads would render the bedspreads unsaleable to consumers, because the retailers would have to open the heat-sealed bags in which the bedspreads were contained and would not be able to re-seal those bags.
Royal, however, chiefly relying upon Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982), contends that Shapiro’s failure to undertake efforts to add proper notice to the already-distributed bedspreads rendered summary judgment appropriate in this case. We disagree.
In Beacon Looms, which involved allegations of infringement of a design for curtain panels, the district court held that the sending of only 50,000 pressure-sensitive labels to customers, who had ordered 900,-000 panels in the preceeding nine months, was not a “reasonable” attempt to cure the omitted notice. Accordingly, the court granted a preliminary injunction against the assertion by the defendant of copyright in the curtain design. 552 F.Supp. at 1313-14.
We do not believe that the rationale of Beacon Looms applies to the case before us. In Beacon Looms, there did not appear to be any evidence regarding the turnover rate of the panels distributed to retailers. Further, no notice at all had been affixed to the panels, possibly misleading a purchaser into believing no copyright was claimed. Finally, there was testimony in Beacon Looms that the purported copyright claimants themselves believed that the number of pressure-sensitive labels they had sent in order to remedy the defect was insufficient to cover the number of units remaining in the hands of retailers. Id. at 1313. Here, by contrast, the record suggests that there was a rapid turnover of inventory, which could lead to a finding that efforts to re-label product already shipped would have been unavailing; moreover, some form of notice, albeit defective, had been included, so that a purchaser would be aware that some proprietary-claim was being asserted.
Other district court cases that have considered whether efforts to add curative notice are “reasonable” have also involved efforts by the copyright claimants to add notice to units no longer in their own possession. E.g., Florists’ Transworld Delivery v. Reliable Glassware Co., 213 U.S. P.Q. (BNA) 808 (N.D.Ill.1981). We do not, however, believe that the mere consideration of this factor elevates it to the status of a statutory requirement under section 405. Although such a factor is clearly relevant, the fundamental inquiry remains whether the efforts undertaken in a given case, viewed as a whole, were “reasonable.” See O’Neill Developments, Inc. v. Galen Kilbum, Inc., 524 F.Supp. 710 (N.D. Ga.1981). Here, where the record indicates that at least some of the bedspreads bearing defective notice and not yet distributed to the public were apparently properly relabelled, there remains an issue of fact as to how many were re-labelled compared to those not re-labelled. Further, there is an issue as to whether Shapiro’s efforts to relabel product already shipped would have been unavailing. In sum, there remains a material question of fact as to whether Shapiro’s efforts, taken as a whole, were reasonable. It is well-settled that summary judgment is improper where material issues of fact remain to be determined; the burden is upon the movant to show the absence of such issues, and we read the record in the light most favorable to the party opposing the motion. E.g., Falls Riverway Realty, Inc. v. City of Niagara Falls, 754 F.2d 49, 54 (2d Cir.1985). We accordingly conclude that the district court’s grant of summary judgment on the question of the reasonableness of Shapiro’s efforts was error, and therefore reverse and remand for further proceedings in the matter.
B. The Royal Cross-Appeal
Royal has cross-appealed from Judge Sweet’s dismissal of its counterclaim, which sought a declaratory judgment that Shapiro’s copyright was invalid, and damages caused by Shapiro’s allegedly bringing this action in bad faith. Whether or not Shapiro ultimately prevails on its claim, however, we see no basis for a ruling that its action was brought in bad faith. Accordingly, we affirm the dismissal of Royal’s counterclaim.
Royal also contends that in view of the alleged invalidity of Shapiro's copyright claim, Shapiro’s actions in notifying Royal’s customers that Royal was infringing Shapiro’s copyright and that this could have adverse legal consequences for sellers of Royal’s allegedly infringing product unlawfully interfered with Royal’s business. In our view, however, Shapiro’s actions were not improper, since if in fact Shapiro has a valid copyright in the Lace Fantasy design, as may prove to be the case, sellers of infringing works may indeed be subject to certain sanctions. 17 U.S.C. §§ 106, 501 (1982).
Finally, Royal alleges that Shapiro “made a misrepresentation” to the Register of Copyrights by submitting, in connection with its copyright application, a photograph of a Lace Fantasy bedspread with a sewn-in copyright notice that was not identical to the one actually affixed to the bedspreads. This, Royal claims, warrants reversal of the district court’s grant of summary judgment to Shapiro on Royal’s counterclaims. We disagree. Since the notice submitted to the Register apparently complied with the statutory requirements, as did the notice actually affixed by Shapiro after it discovered the original defect, in our opinion any “misrepresentation” that may have taken place is de minimis and does not warrant reversing the dismissal of the counterclaim.
Conclusion
For the reasons hereinabove stated, we affirm the district court’s dismissal of Royal’s counterclaim, and reverse and remand the dismissal of Shapiro’s claim of copyright infringement for further proceedings on the question of the reasonableness of Shapiro’s efforts to cure the defective copyright notice packaged with its bedspreads.
. Judge Sweet noted that "[t]he identity of size, dimension, curve and angle is so striking that the conclusion that Royal’s design was created by laying tracing paper on Shapiro's pattern would not be an unreasonable one.” 568 F.Supp. 972, at 979 (S.D.N.Y.1983).
. Shapiro asserts on appeal that it had approximately 25,000 defectively-labelled bedspreads on hand, which it re-labelled. We are unable to find support in the record for this, but in any event do not rely upon this figure, noting only that the number of bedspreads re-labelled by Shapiro remains a material fact in dispute, bearing upon the reasonableness of Shapiro’s efforts.
. Although section 405(a) speaks in terms of the “omission" of notice, "[t]he legal consequences are the same regardless of whether there has been an omission of any notice whatsoever, or whether an improper notice ... is used." 2 M. Nimmer, Nimmer on Copyright § 7.14, at 7-102 n. 1 (1984). This conclusion, moreover, is completely consistent with the language of section 405, which expressly relates to the "omission of the copyright notice prescribed by sections 401 through 403” — that is, the omission of proper notice, which encompasses the inclusion of defective notice. See also 17 U.S.C. § 406(c) (1982) (copies publicly distributed by authority of copyright owner without a notice containing name and date are considered to be published without notice and claims of copyright therein are governed by section 405).
. We note, however, that by publishing the design for some 41/2 years before effecting copyright registration, Shapiro may no longer seek the remedies of statutory damages or attorney’s fees. 17 U.S.C. § 412 (1982).
. We note that the time of "discovery” of improper notice, at least where the claimant has intentionally failed to include notice, has been considered by some to take place at the time of the first publication of the work. See Beacon Looms, Inc. v. S. Lichtenberg & Co., 552 F.Supp. 1305 (S.D.N.Y.1982); 2 M. Nimmer, Nimmer on Copyright § 7.13[B][3] (1984). Here, however, there was clearly some attempt made by Shapiro to protect its rights by including a copyright notice, albeit defective; in such a case, "discovery” of the omission of proper notice takes place when the claimant is apprised that the notice is for some reason insufficient for its intended purpose.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
OPINION
PER CURIAM:
This case is before the Court on. the petition of Atlas Hotels, Inc. (hereinafter “Atlas”), to review and set aside an Order of the National Labor Relations Board (henceforth “Board”), directing it to bargain collectively with a union. The Board has filed a cross-petition for enforcement of an order finding petitioner in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (hereinafter “Act”). This petition is filed pursuant to Sections 10(e) and (f) of the Act, as amended (29 U.S.C.A. § 160(e) and (f)). The Board’s decision ánd orders are reported at 205 N.L.R.B. 47 and 210 N.L.R.B. 86.
Atlas operates five “motor-hotels” in San Diego, California, and these hotels are located within a two-mile radius of San Diego’s “Hotel Circle,” a cluster of motels, hotels, dining, recreation and convention facilities catering to transient visitors and conventions. Each of the five Atlas hotels is headed by a manager and divided in departments. Department" heads are in charge of the various departments and they are directly responsible to their respective hotel manager.
Employees at all the hotels are subject to common labor relations policies. Job classifications are established on a company-wide basis and the employees within each classification receive the same general wages and fringe benefits. Transfer of employees among the five hotels is limited to selected employees in management training programs. Apparently, employee interchange is minimal, never involves bakery or bakery sanitation personnel, and primarily occurs in unusual situations where extra help is needed at one of the other Atlas hotels to augment the regular work force. E. g., if a large banquet were planned, food-related employees from one hotel might assist food-related, employees at another hotel in serving the dinner.
The largest of the hotels, the Town & Country Hotel, contains 600 of Atlas’ 1300 guest rooms, a coffee shop, restaurant, cocktail lounge, supper club, 17 banquet rooms and a number of kitchens. An adjoining convention center provides meeting and dining facilities for upwards of 2,000 people. The Atlas bakery is housed in a separate area, adjacent to the kitchen, in this convention center, but location has little or no impact upon services. Excepting sandwich bread and hamburger rolls obtained from other sources, the bakery produces all the baked goods used at the five hotels and convention center; the Town & Country Hotel enjoys no special treatment due to proximity.
The bakery is open seven days a week and operates on two shifts, from about 10:00 p. m. to 6:00 a. m. and from 6:00 a. m. or 7:00 a. m. to mid-afternoon, under the supervision of a “director of baking.” The “director of baking” orders supplies, schedules production and keeps time for the bakery employees; his immediate supervisor is the food and beverage manager of the Town & Country Hotel, who also serves as “executive chef” for all five hotels.
Altogether, seven people are employed in the bakery, and they were hired specifically for bakery work either because of their prior experience or their interest in learning the trade. During the course of their work they perform the usual duties of bakers, and utilize specialized baking equipment in the large scale production of cakes, pies, pastries and other baked goods. With the exception of a bakery deliveryman, who spends an undisclosed portion of his time primarily delivering baked goods and the remainder assisting bakers, all bakery employees work exclusively in the bakery.
The Bakery and Confectionery Workers’ International Union of America, Local No. 315 (hereinafter “Union”), which has traditionally devoted itself to serving the interests of baking employees, sought to represent a unit of bakery and bakery sanitation workers employed at the Atlas bakery. Atlas objected, contending that some other unit would be more appropriate, particularly a unit comprising all of the production and maintenance employees at its five San Diego hotels. Additionally, there is no history of collective bargaining in the respective units urged by the parties, and no union seeks representation on a broader hotel-wide or company-wide unit.
The Union petitioned the Board for an election pursuant to Section 9(c) of the Act. A hearing was held on the matter, evidence presented, and on the basis of this evidence the Board found that the bakery employees constituted a separate unit appropriate for collective bargaining. Accordingly, the election was ordered.
Thereafter, Atlas requested a review of the decision, contending, inter alia, that the unit established was inappropriate for bargaining; that it represented a departure from traditional Board policy of single unit representation of manual employees in highly integrated hotel operations; and that the decision was based upon Board precedent overruled by this Court. However, the Board denied Atlas’ request on the ground that it raised no substantial issues warranting review.
After some initial dispute, the Union won the election and was certified as the collective bargaining representative of the bakers and bakery sanitation workers. In order to challenge the unit determination, Atlas refused to bargain and the Union filed an unfair labor practices charge with the Board. The Regional Director issued a complaint alleging that the refusal to bargain was unlawful, and Atlas answered asserting that the separate unit of bakers was inappropriate; that the unit was contrary to precedent; and that other units might also have been found appropriate and should therefore have been considered.
General Counsel for the Board moved for summary judgment on the ground that Atlas’ answer raised no issue which had not been litigated and determined in prior proceedings. The motion was granted, and the Board also found that, by refusing to recognize and bargain with the Union, Atlas had violated Section 8(a)(5) and (1) of the Act. 205 N.L. R.B. 47.
The Board filed an application for enforcement of its order and Atlas cross-petitioned for review. Shortly thereafter the Board moved to have the case remanded for reconsideration in light of a recent Ninth Circuit decision in which enforcement was denied a Board order under similar circumstances. The motion was granted, and in May, 1974, the Board filed a supplemental decision explicating and affirming its prior decision and order. 210 N.L.R.B. 86. Atlas then filed the petition at bar, and the essential issue before the Court on appeal is whether the bargaining unit established by the Board was appropriate under Section 9 of the Act.
The Act delegates to the Board the primary responsibility for determining the appropriate bargaining unit. N.L.R.A. § 9(b), 29 U.S.C.A. § 159(b); General Instrument Corporation v. N.L.R.B., 319 F.2d 420, 422 (4th Cir. 1963). And this Court has granted the Board great latitude in making these unit determinations. Gallenkamp Stores Co. v. N.L.R.B., 402 F.2d 525, 530 (9th Cir. 1968); Foreman & Clark, Inc. v. National Labor Relations Board, 215 F.2d 396, 405 (9th Cir. 1954); N.L.R.B. v. Merner Lumber and Hardware Company, 345 F.2d 770, 771 (9th Cir. 1965).
This broad delegation is somewhat limited by Section 9(c)(5) of the Act, which provides:
“In determining whether a unit is appropriate for the purposes specified in subsection (b) of this section the extent to which the employees have organized shall not be controlling.”
Nevertheless, the issue of unit determination is within the particular expertise of the Board, vested in that body by statute, and a Board decision, if not final, is rarely disturbed. National Labor Relations Board v. J. W. Rex Co., 243 F.2d 356, 359 (3rd Cir. 1957). In fact, courts recognize that such decisions, by necessity, involve a large measure of expertise and informed discretion. National Labor Relations Board v. J. W. Rex Co., supra, at 359; International Ass’n of Tool Craftsmen v. Leedom, 107 U.S.App.D.C. 268, 276 F.2d 514, 516 (1960). Hence, deference should be given the informed experience and judgment of an agency, Mourning v. Family Publications Service, Inc., 411 U.S. 356, 371-372, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), and judicial interference confined to instances where there has been a clear, patent or flagrant abuse of discretion. Avila-Contreras v. McGranery, 112 F.Supp. 264, 268 (D.C.Cal.1953); Reece v. United States, 455 F.2d 240, 242 (9th Cir. 1972).
It is not necessary that the Board choose the most appropriate bargaining unit; it is sufficient if the unit chosen is within the range of units appropriate under the circumstances. State Farm Mutual Automobile Insurance Co. v. N.L.R.B., 411 F.2d 356, 358 (7th Cir. 1969); N.L.R.B. v. Bogart Sportswear Mfg. Co., Inc., 485 F.2d 1203, 1206 (5th Cir. 1973). Likewise, in arriving at a decision, the Board can consider the extent to which employees have organized, so long as the extent of organization is not the controlling reason. Foreman & Clark, Inc. v. National Labor Relations Board, supra, at 406; N.L.R.B. v. Metropolitan Life Insurance Co., 380 U.S. 438, 441-442, 85 S.Ct. 1061, 13 L.Ed.2d 951 (1965).
In the instant case the Board found: (1) that the Union traditionally represented the interests of bakery employees; (2) that the bakery employees worked at a specific trade; (3) that they worked in areas apart from other employees; (4) they were separately supervised; and (5) they had a minimum of contact with the other hotel staff. From these facts the Board reasonably concluded that the Atlas bakery workers were a separate unit appropriate for the purposes of collective bargaining. Even though there is evidence contrary to these findings; nevertheless, there is substantial evidence in the record to support the Board’s findings, and this renders them conclusive. N.L.R.A. § 10(e), 29 U.S.C.A. § 160(e); National Labor Relations Board v. Crompton-Highland Mills, Inc., 337 U.S. 217, 220, 69 S.Ct. 960, 93 L.Ed. 1320 (1949); N.L.R.B. v. Merner Lumber & Hardware Company, supra, at 771.
Furthermore, these findings indicate that the final unit decision was a reasoned, valid exercise of the Board’s delegated authority; not impermissibly controlled by the extent of organization nor a clear abuse of discretion under the circumstances.
In Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110, 1114 (9th Cir. 1971) this Court noted that Board precedent had established a policy of single unit representation for manual employees in highly integrated hotel operations, with two exceptions: (1) where well defined area bargaining practices recognized a less than hotel-wide unit as appropriate, (2) where the enterprise in fact was not highly integrated, and a smaller unit was consistent with the true community of interest among the particular employees. And that where a Board decision is contrary to this established policy, it must be buttressed with sufficient reasons to overcome an inference that the decision was either arbitrary or controlled by the extent of organization. Id. at 1116.
However, our decision in Westward-Ho Hotel Co. v. N.L.R.B., supra, is not dispositive of this case. For under the particular circumstances of that case, the Court concluded that the reasons given by the Board were insufficient to explain its departure from established policy on grounds other than the extent of organization. Id. at 1117. This Court did not hold that those reasons were per se insufficient; since the Board has wide discretion in designating bargaining units, minor factual differences may justify opposite results. N.L.R.B. v. Cumberland Farms, Inc., 396 F.2d 866 (1st Cir. 1968).
In brief, facts and reasons given in the present case justify the Board’s determination that, rather than being an integral part of a hotel, petitioner’s bakery was in fact a separate and appropriate unit for purposes of collective bargaining. Therefore, the Order of the Board is affirmed and it will be enforced.
. Bakery and Confectionery Workers’ International Union of America, Local No. 315.
. The development and scope of this policy is judicially chartered in footnote number 4, Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110, 1113 (9th Cir. 1971).
. Among the many supportive sources cited in his Decision and Direction of Election, the Regional Director made reference to Hotel Westward-Ho, 171 N.L.R.B. 173; later denied enforcement. Westward-Ho Hotel Co. v. N.L.R.B., 437 F.2d 1110 (9th Cir. 1971).
. A secret ballot election was held January 5, 1975, in which eight ballots were cast, three for the Union and three against, with two ballots being challenged. The Regional Director conducted an investigation and thereafter sustained the challenge to one ballot, and overruled the challenge to the second ballot. This second ballot was for the Union.
. Ramada Inns, Inc. v. N.L.R.B., 487 F.2d 1334 (9th Cir. 1973).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
STEPHENS, Circuit Judge.
This case was heretofore argued and submitted to a division of this court and thereafter was reargued and resubmitted to the court en banc. The court’s opinion and order affirming the judgment was filed and made June 28, 1948. On August 24, 1948, the opinion was withdrawn for correction and this opinion was filed. Judge Garrecht approved this opinion, but died before it was filed.
Irving McCoy was indicted in two counts with violations of 18 U.S.C.A. § 80 for the presentation of false claims and for aiding and abetting the presentations of false claims to an agency, of the United States. The trial court denied motions to dismiss as to each count, but ordered a judgment of acquittal as to the first count, and denied the motion to acquit as to the second count. In accordance therewith a judgment of acquittal on the first count was had, and the second count was tried to- a judge and jury. A verdict of guilty was returned. Judgment was entered and sentence was pronounced. McCoy appeals.
It was charged in the second count that McCoy “knowingly and wilfully made and caused to be made and aided and abetted in making a false and fraudulent statement and representation and knowingly and wilfully presented and caused to be presented and aided and abetted in presenting said false and fraudulent statement and representation to the United States Government, * * * knowing said statement to contain fraudulent and false statements for the purchase * * * ” of two surplus army trucks “ * * * for the purpose of aiding a veteran to establish and maintain his own small business, profession or agricultural enterprise while in truth and in fact the defendant was not a veteran entitled to purchase said trucks under the provisions of the Surplus Property Act, 50 U. S.C.A.Appendix, § 1611 et seq. * * * and the purchase of said trucks were in fact for the purpose of being used in a non-veteran’s business, viz., the business of the defendant.”
Upon appeal McCoy raises several points, each of which he argues as constituting reversible error. We treat each point under appropriate subheadings.
The court refused to dismiss second count.
Was an offense against the laws of the United States charged in the second count of the indictment? It is claimed that the purchase by a veteran of surplus property for use in a non-veteran’s business is not unlawful, so that even if the facts alleged in the indictment are true, the concluding allegation “and the purchase of s'aid trucks were in fact for the purpose of being used in a non-veteran’s business, viz., the business of the defendant” destroys the validity of the indictment. It is thus concluded by appellant that since the indictment alleges that the property was to be used in the business of the defendant, a non-veteran, but does not negative the idea that the property might have been required by the veteran, as a condition precedent to employment, all of the facts as alleged could be true and defendant could not be guilty. The Surplus Property Administration, Reg. 7, Fed. Reg., Vol. 10, No. 203, pp. 12849-50, is cited, in which it is provided that a veteran may be deemed to have his “own business” etc., for the purpose of acquiring property when he is “engaged by others as an employee or agent and is required by his employment to have his own tools or equipment.”
Appellant’s construction of the indictment is too narrow. In the first place every particular relating to the charge is not required to be set out in the indictment, and it is not required that every possible combination of facts, which would constitute legal acts, should be negatived in it. Hopper v. United States, 9 Cir., 142 F.2d 181. However, the indictment is not reasonably subject to the construction appellant puts upon it. The allegations of the indictment are that the purpose of the intended purchase was for a permitted use by the veteran in aid of his own business. Such purpose, however, was untrue, andl the real purpose was in the interest of the non-veteran. The claim that the indictment is fatally defective rests upon a strained technical analysis of the drafter’s rhetoric to the effect that a mere possible meaning of the language used could be that the trucks were purchased for use in the veteran’s business of hauling for the non-veteran in his business. However, even such technical analysis does not lead to appellant’s conclusions. The indictment must be considered as a whole, and the violated statute is cited in it and plainly informs the accused of the law allegedly violated. The gist of the government’s accusation is that the real purpose for acquiring the trucks was in the interest of the non-veteran and not in the interest of the veteran. The construction of the sentences reciting the acts which constitute the alleged offense plainly sets off the real purpose of the veteran-applicant as opposite to and inconsistent with any purpose of the veteran imhis own use of the trucks. The recital of such acts also precludes any possible double jeopardy, for they are definitely identified. See Bridgeman v. United States, 9 Cir., 140 F. 577; Bost v. United States, 9 Cir., 103 F.2d 717; and United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921.
In refusing to dismiss the second count, the court committed no error.
The court refused to order an acquittal on second count.
Appellant argues insufficiency of evidence to sustain the judgment of conviction and that the court erred in denying a motion for the entry of a judgment of acquittal on the second count. The case is built on evidence, which, the government asserts, shows that McCoy aided and abetted Frederick Browning, a veteran entitled to purchase surplus property for his own use, in presenting purchase applications on their faces representing that the property is to be used for the veteran in a permissible enterprise, such representations, however, being false and fraudulent.
Appellant, the defendant below, offered no evidence other than testimony as to his good reputation. The evidence introduced by the government, then, stands upon its own intrinsic merit affected only by the testimony as to McCoy’s reputation.
It was the.theory of the government that McCoy had a general plan to use veterans as a means of acquiring war surplus property for his own business. It is disclosed by the evidence that McCoy procured a catalogue issued by the War Assets Administration from one Lahren, a veteran. When McCoy discovered that Lahren was going to Seattle to secure some equipment with $2500, he offered to and did drive him from Livingston, Montana, to Seattle. Together they went to several places in the State of Washington where supplies of surplus property were held, and McCoy proposed to Lahren to pay half of the purchase price on various items. McCoy proposed that the two each pay one-half the purchase price of about $5000 for a bulldozer to be resold in California. While in Seattle, McCoy went to fill out applications with Lahren for the purchase of surplus property and helped fill in the details after having read the application blank and thereby familiarizing himself with its requisites. Lahren did not finally consent to make any purchase, and nothing was purchased on the trip. On another trip McCoy drove Lahren to Butte, Montana, where a sale was being advertised, and on the way he picked up Browning, another veteran. Lahren testified that McCoy told him “ * * * the more veterans he had, the more chance he had of getting equipment.”
It was at Butte that the transactions occurred with which we are directly concerned. Browning testified that he received advice on the trucks from McCoy, and that he signed the application in question for the purchase of two surplus property trucks after discussing the matter with McCoy. McCoy paid the whole purchase price and took delivery. According to Browning, an arrangement was entered into between the two, whereby McCoy was to retain possession of the trucks until they were paid for, which was to be accomplished through hauling agreements with “Gallatin Industries”, a corporation. After they had been paid for they were to belong to McCoy and Browning, “fifty-fifty.” “Gallatin Industries” was named in the application as the enterprise in which the trucks were to be used for hauling lava rock. Browning and McCoy each had an interest in “Gallatin Industries”. At the time of the trial the trucks had not been so used, and were still in the possession of McCoy, because, according to Browning, “Gallatin Industries” was waiting to get bigger block machines so the material could be used by the company. One of the two trucks was registered by McCoy in Browning’s name, and the other one remained unregistered. Browning denied that McCoy had anything to do with the actual making of the application itself, and that he, Browning, made no false statement in the application. Browning, at the trial, could not tell the cost of the trucks, but testified that no writing passed between himself and McCoy, and nothing was said about interest on the money paid for the trucks.
It was stated in the application: “(4) I hereby certify that the surplus property herein applied for is to be used in and as a part of the enterprise described herein.” A witness on behalf of the government, Mrs. Woodhull, testified that while the trial was in progress a note was given by McCoy to her to be delivered to the witness Lahren. The note, which is unsigned and undated, reads as follows:
“You have a right to change you.r story at any time. McCoy is a kind of boaster and might say he owned the trucks for a joke to be big. He also has a dealer’s license and can buy surplus property anywhere.
“He heard the boys wanting to borrow money from me to buy trucks and I said I might loan it if they would go on the rock haul from Tom Miner basin to Bozeman for the cement blocks.
“The boys say they heard him trying to get trucks or cats from someone. So he should be careful.
“I don’t know is a pretty good answer to most anything. Or I don’t remember.
“You can say you offered to take me in as a partner and I didn’t do it.
“Hi [meaning Hi Lahren], John Sexton and Browning, Dean and those fellows are on my side so you better look out.”
It is claimed by appellant that there is no evidence as to McCoy’s knowledge of representations made in the application signed by Browning, or that he suggested the making of any false representation. The recitation of facts hereinbefore stated does not support either of these claims. McCoy was familiar with the application form and the conditions stated therein. The trial court’s comments on the evidence when it ruled on the motion to dismiss are apropos, and we quote them in the margin.
In order to prove guilty knowledge, it is not necessary that the defendant knew or dictated the specific words used by the veteran. If this were not so, an active aider and abettor need only look the other way when the paper was filled out. The transcript of the evidence is all one way that McCoy knew the purchase of surplus property was open to veterans only, and not being a veteran, he knew that he was ineligible to purchase at the sale either for a full or part ownership of the trucks. Even veterans could purchase surplus property only for the veteran’s use in a permissible activity..
Of course, if Browning was the real purchaser and was purchasing the trucks for any of the permitted uses, Browning has committed no- offense, and it follows that McCoy could not be guilty of aiding and abetting in any offense committed by Browning. The jury had a right to weigh Browning’s full explanation of the purchase to determine whether Browning was purchasing for any of the permitted uses or whether he had fraudulently misrepresented as to such intended uses in the applications for the purchases and whether McCoy had knowingly and intentionally aided and abetted Browning in making the fraudulent representations. Browning’s own testimony is that the interest in the trucks was to be “fifty-fifty.” That is, according to Browning’s testimony, not only he was a purchaser, but so was McCoy. If the arrangement between Browning and McCoy had been actually made as testified by Browning and the purchases were for the purpose of aiding Browning in his own small business of acting with McCoy in using the two- trucks for hauling rode for “Gallatin Industries,” the arrangement was not within the law for the following reasons: The law, as we understand it, does not authorize the veteran to-buy for another at least without a full disclosure of the facts. No disclosure was made to the government that the purchaser’s small business was connected in any way with McCoy. The interest of the veteran with a non-veteran in the enterprise or income therefrom was not more than-fifty per cent. But the specific charge against McCoy is that Browning was- not purchasing the trucks or an interest therein for his own small business at all but solely for and at the instigation of the non-veteran McCoy. The finding of guilt necessarily means that the jury did not believe Browning’s account of his arrangement with McCoy, but believed that the whole proceeding was a scheme for McCoy, a non-veteran, to enjoy privileges available only to veterans.
The appellant cites cases holding that where all the substantial evidence is as consistent with innocence as with guilt, it is the duty of the appellate court to reverse a judgment of conviction. But we cannot say, as this court said in Karn v. United States, 9 Cir., 158 F.2d 568 (referred to herein under another subhead), that there is no evidence to sustain the verdict nor can we say that as a matter of law the evidence is as consistent with innocence as with guilt. The trial court did not think so. The jury thought the evidence as a whole established the guilt of appellant beyond a reasonable doubt. We hold that the court committed no error as to this subheading.
Was it error to receive in evidence certain testimony of the witness Lahren?
The court over appellant’s objection admitted into evidence the testimony of the veteran, Lahren, as to conversations between Lahren and McCoy in regard to the purchase of war surplus equipment. The conversations admitted into evidence do not relate to the surplus property referred to in the indictment, and for that reason appellant claims its reception was error. Evidence of another offense to be admissible, says appellant, must show prima facie the commission of a completed offense. This argument misses the point. The evidence objected to was introduced to show a course of conduct or general design and plan of McCoy’s to circumvent the law through the use of veterans to purchase surplus property for his own purposes. It goes to McCoy’s intent and purpose in his relation and actions with Browning. Incidentally it rather clearly shows McCoy’s familiarity with the requirements for the purchase of surplus goods by veterans.
Since a state of mind is difficult to prove precisely, evidence of surrounding circumstances may be admitted to prove intent. Shreve v. United States, 9 Cir., 103 F.2d 796, 803, and cases cited therein. In United States v. Uram, supra, 148 F.2d at page 189, the court admitted testimony of a 1938 transaction because it was pertinent to the instant charge in that it “ * * * bore heavily on his intent in the 1939 [instant] transaction. It proved his ‘knowledge’ and threw light on his purpose in the 1939 transaction.” Evidence was properly admitted as to McCoy’s attempt to induce Lahren to do that which later he succeeded in inducing Browning to do. Lahren’s testimony as to advice and aid of McCoy and that McCoy made out applications which Lahren later refused to go on with, was properly admitted. No error was committed in regard to this subheading.
Were the instructions fatally defective as to the subject of knowledge and intent?
It is argued that appellant was entitled to a proffered specific instruction upon the proposition that he must know what representations were made by Browning and know them to be false before he could be convicted. Of course, knowledge and intent are essential elements of the crime, and the court gave ample instructions on this subject. Throughout the instructions there are repeated statements to the effect that if the nominal purchaser (Browning) had no intention of buying upon his own account but instead was intentionally using his veteran right for the benefit of McCoy, and that. McCoy knew this and schemed, aided and abetted it, that McCoy was guilty as a principal of violating the law.
It is next contended that the instructions failed to call to the attention of the jury the necessity for finding beyond a reasonable doubt the presence of a wrongful intent on the part of the veteran Browning at the time the application Was filed. The requested instructions state that the intent of the veteran, at the time the representation or statement was made, would be controlling, and that if the veteran honestly believed that he had a right to make the application, he could not knowingly have made false representations to the government; further, that if the veteran acted in good faith, no offense was committed. All of these requirements were plainly and unmistakenly recited in the court’s instructions, and, therefore, there was no call upon the trial judge to repeat them by using appellant’s text covering the subj ects.
It is argued that the inference could be drawn from the charge to the jury that no affirmative action on McCoy’s part was necessary and that he might be convicted even though he had no active part in making the presentation of the false statement; that under the instructions given, defendant could be convicted even though he did not know that the veteran would make any false statements in his application; and that the jury was not charged that the defendant could be repaid out of the profits accruing from operation of the truck. We do not agree that there was error in not further instructing the jury on these subjects. The theories of the government and appellant in the prosecution and in the defense were fairly and impartially placed before the jury by the instructions.
We perceive no error in the case upon the subjects treated above.
Did the court err in submitting the case to the jury without a specific instruction on the subject of circumstantial evidence?
Appellant offered an instruction on the subject of circumstantial evidence, but the court declined to give it and submitted the case without any specific instruction on that subject. Appellant claims that all or practically all of the evidence was of circumstances and for that reason an instruction on the subject of circumstantial evidence should have been given. The government claims that the case is amply supported by direct evidence and for that reason it is not a circumstantial evidence case and that no instruction on the subject was required.
It is said in 20 Am.Jur. p. 258, § 270, that “the basic distinction between direct and circumstantial evidence is that in the former instant witnesses testify directly of their own knowledge as to the main facts to be proved, while in the later case proof is given of facts and circumstances from which the jury may infer other connecting facts which reasonably follow according to the common experience of mankind.”
Measured by the above rule there is evidence of both kinds in the case, each of which, in all probability, had considerable weight with the jury. However, even with the aid of such a concise statement, it is not always easy to lay one item of evidence on one side of the distinguishing line and another item on the other side of the line. Much evidence, which, with its recital, would be classed as direct evidence, upon closer observation turns out to be circumstantial in character. Events occur so often in pattern that we accept them as direct evidence of a fact proved, whereas they are only facts which habitually accompany the fact we deem proved. Any rule for the special treatment of evidence upon the basis of its character, direct or circumstantial, is bound to be difficult of correct application. And too, any instruction to a jury directing a different treatment for circumstantial evidence than is to be accorded direct evidence will, if heeded at all, tend to confusion and incite in the juror’s mind the too prevalent and persistent illusion that circumstantial evidence is inferior -to direct evidence. The giving of any such instruction is very apt to be regarded as in some degree judicially confirming the not uncommon belief that a conviction by the aid of circumstances is highly unreliable and unconscionable. The books are full of judicial discord through attempts to distinguish between direct and circumstantial evidence in jury instructions.
The second circuit has lead out with definite holdings that all evidence received in a case is to be given such effect as the jury deems it to be entitled. That court refuses to follow courts which have worked out technical and academic distinctions between direct and circumstantial evidence too fine for practical application and so fine as to impel misunderstanding and confusion on the part of the jurors. That the giving of an instruction on circumstantial evidence is not regarded by the United States Supreme Court as one of the essentials to the due process of law is shown in the case of Goldsby v. United States, 160 U.S. 70, 16 S.Ct. 216, 40 L.Ed. 343. It is held in that case that it is not error to submit the case without such instruction where none is requested. We do not say that the giving of an instruction on the subject is per se error; we do hold that it was not error to submit the instant case without it.
When the charge to the jury is read as an integrated whole, as all in-structions should be read, it is seen that the court in simple, understandable language defined the essential rights of both government and accused. It understood and realized that the duty of the jury was to listen to everything the court permitted to be presented to it and under certain fundamental rules to apply it to the issue of guilt or innocence. Together with defining the fundamental rules for the consideration of the evidence, the court told the jury: “When two conclusions may be reasonably drawn from the evidence, the one of guilt and the other of innocence, the jury should reject the one of guilt and accept the one of innocence, and in that event should find the defendant not guilty. That is where two conclusions can be drawn as reasonably one way as the other, one pointing to the guilt and one to the innocence, you, of course, must indulge the presumption of innocence and draw the conclusion of innocence.”
It is argued that the above instruction makes possible the finding of guilt notwithstanding the probative circumstances may not only be consistent with guilt but at the same time may not be inconsistent with some hypothesis of innocence. It must not be overlooked in considering this point that all conclusions and all hypothesis which may be found are not to be mere possibilities. They must be reasonable. Henderson v. United States, 9 Cir., 143 F.2d 681, 682. The instruction quoted told the jury that guilt could be found only in case the jury found that the matters proved were consistent with guilt and that no other conclusions could reasonably be drawn from the evidence.
A single circumstance, standing alone, within the realm of the possible, can usually be accounted for upon an innocent basis. But the jury is charged with making all of its conclusions upon the basis of what is reasonable and at every turn under' the admonition that the accused is presumed to be innocent and under the necessity of declining to find guilt until the proof convinces beyond a reasonable doubt. The instruction quoted fits all the evidence of facts into an integrated whole, and when this has been done and the jury’s verdict is guilt, the jury has found that no other determination could be reasonable. That a hiatus exists here whereby the evidence may reasonably be held not to be inconsistent with some hypothesis of fact other than guilt is faulty reasoning.
Of course, the jury’s conclusion must have support in the evidence to the effect •that there is no hypothesis determinable from the proof under which the verdict of guilt could reasonably be avoided, but this is not saying that any technical form of instruction need be given. In the very recent case of Karn v. United States, 9 Cir., 158 F.2d 568, this court, at page 570, said: “The prosecution relied entirely upon circumstantial evidence for a conviction. It is sufficient to say that under such circumstances the evidence must not only be consistent with guilt, but inconsistent with every reasonable hypothesis of innocence. The evidence should be required to point so surely and unerringly to the guilt of the accused as to exclude every reasonable hypothesis but that of guilt. 23 C.J.S. Criminal Law, § 907, pages 151, 152; Paddock v. United States, 9 Cir., 1935, 79 F.2d 872, 876; Ferris v. United States, 9 Cir., 1930, 40 F.2d 837, 840. Our considered judgment is that the evidence in this case falls far short of meeting this exacting standard.”
In the cited case- the court was considering whether the evidence supported the judgment. In the Ferris case, cited therein, the court was considering the same issue and stated the same rule in substance as stated in the Kara case. In the Ferris case the appellate court found that the evidence did not permit of any reasonable hypothesis that would permit of an acquittal, and in the Kara case exactly the opposite was found from a consideration of the evidence. Thus, it is seen that neither of these cases are in conflict with what we have said.
In Gurera v. United States, 8 Cir., 40 F.2d 338, 340, it is said: “There are cases where such form of instruction is proper, but those are cases where the essential facts are proven only by circumstantial evidence, and where such evidence, taken to be true, is as consistent with innocence as with guilt. That is not the situation here. The • evidence here shows that, if the jury should believe the facts as detailed by the government, in fact, it may be said if they believe those facts which are undisputed, then there would be no room for more than one construction thereof •because they are not consistent with innocence.” In Affronti v. United States, 8 Cir., 145 F.2d 3, 9, it is said: “Some of the evidence in this case was circumstantial, such asi the evidence of flight. Some was direct and positive. The court might properly have told the jury that some of the evidence was circumstantial, and have included in its instructions the circumstantial evidence rule. Since the evidence of the government was unexplained and uncontradicted, and, if believed, was inconsistent with the innocence of the defendant, we think that the failure of the court to include the circumstantial evidence rule in its instructions was not error. Gurera v. United States, 8 Cir., 40 F.2d 338, 340; Corbett v. United States, 8 Cir., 89 F.2d 124, 128; Stryker v. United States, 10 Cir., 95 F.2d 601, 604.” See also Bedell v. United States, 8 Cir., 78 F.2d 358, 368.”
Our method of trying those accused of crime is to submit the issue of guilt or innocence to a jury upon the evidence adduced and the applicable law as given it by the court. When the case has been submitted to the jury for decision under the instruction that guilt is only to be found in case the jury regards guilt as the only reasonable determination, the verdict should not be set aside by us unless as a matter of law we should find that there is no adequate support in the evidence for such determination. Otherwise we should be interfering with the jury’s function. We cannot find such lack of support in the evidence of our case.
To the extent that the expressions and rulings of this court in Paddock v. United States, 9 Cir., 79 F.2d 872, must be construed as in conflict with our rulings and expressions herein, they may be deemed to be overruled.
Affirmed.
One of the purposes of the Surplus Property Act of 1944 (58 Stat. 765) was to afford returning veterans an opportunity to establish themselves as proprietors of agricultural, business, and professional enterprises (50 U.S.C.A.Appendix § 1611(f)). The Surplus Property Administrator had authority under the Act to prescribe regulations to effectuate the objectives of it to aid veterans in the acquisition of surplus property, in appropriate quantities and types, to enable them to establish and maintain their own small business, professional, or agricultural enterprises.
Under Regulation 7 (10 Fed.Reg. 6519), a veteran’s own small business or professional enterprise is defined to include any commercial, industrial, manufacturing, financial, service, legal, medical, dental,- or other lawful enterprise (other than agricultural — separate provision is made in this case) having an invested capital not in excess of $50,000, which a veteran maintains or desires to establish: Provided, That he is or will be, directly or indirectly, the sole proprietor thereof or that no person or persons, other than other veterans, have or will have any proprietary interest in the
enterprise, singly or together, directly or indirectly, in excess of 50% of either the capital invested in such enterprise or of the gross profits or income thereof.
Subsequent amendment of Regulation 7 (10 Eed.Reg. 12849), effective October 15, 1945, provided, “own” business or professional or agricultural enterprise means one of which more than fifty (50) per cent of the invested capital or net income thereof is owned by, or accrues to, a veteran or veterans. A veteran may be deemed to have his “own” business or professional or agricultural enterprise for the purpose of acquiring particular tools or equipment when he is engaged by others as an employee or agent and is required by his employment to have his own tools or equipment.
The subsection following relates to “small business.” Any construction of facts in the instant case would bring it within the definition of small business.
United States v. Goldsmith, 2 Cir., 108 F.2d 917, 920, 921: ‘“While it is certainly true that a valid indictment cannot be dispensed with as a predicate to conviction where an indictment is necessary, Grimsley v. United States, 5 Cir., 50 F.2d 509, it is also true that * * * a substantial compliance with the purpose of an indictment to acquaint the defendant with the offense of which he stands, charged, so that he can prepare his defense and protect himself against double jeopardy, is sufficient.’ Hutcheson, C. J., in Hartwell v. United States, 5 Cir., 107 F.2d 359, 302.
“So indictments under this statute are-to be upheld when they acquaint the defendant with the offense of which lie-stands charged, so that he can prepare his defense and protect himself against double jeopardy. Bridgeman v. United States, 9 Cir., 140 F. 577, 590; Bost v. United States, 9 Cir., 103 F.2d 717. The allegations here in question become somewhat involved, as seems to be a way indictments have, at least where the now much urged simplification of criminal procedure has not been authorized. But they do disclose the prosecution’s case so that the accused knows what he must meet. That is sufficient.”
“The jury from the evidence could reasonably find that this sale was held as provided by the regulation of the Surplus Property Administrator dated October 10th, 1945, that veterans shall be given preference to purchase surplus property for the use in their own small business, agricultural and professional enterprise. In other words, the defendant knew that veterans themselves could not purchase except for those particular purposes and had no preference except for those particular purposes. That being to the jury could find under the evidence that the defendant knew that written applications were required by the government before even a veteran would be permitted to buy. That certain information must be given to the government by the veteran in order to permit the veteran himself to purchase at the sale, and that this was a part of the information that would be given by the veteran that the purchase was for the purpose of permitting the veteran to maintain his own small business, agricultural and professional enterprise. In other words, those representations were to be made to the government although he didn’t see the particular blank that the witness signed. In addition to that there is evidence here a similar blank was placed before him and that he assisted in some degree in advising the veteran as to the data that should be put in that blank; that he had the blank and had an opportunity to read it. The witness, of course, could not testify whether he did or whether he didn’t. The jury might find that he did.
“In other words, I believe that if it was the purpose of the defendant to get these trucks for his own business and if he knew that in order to do that representations must be made to the government by another, that he agrees and confederates with the other that the other will make such representations as are needed to permit the scheme to be carried into its ultimate fruition, that then it is not necessary for the government to establish that the defendant was there personally when the representations were made or that he knew * * * that if in making those representations the person making them disclosed the true facts that the nefarious deal that they entered into would not be consummated and the government would not permit the sale of the truck, that the government has sustained its burden.”
It is stated in United States v. Uram, 2 Cir., 148 F.2d 187, 190: “Schomer’s [one of tlie defendants] contention that there is no proof of his connection with the alleged crime — that he was present merely when the Campbells signed the applications in blank — has only plausibility for its support. A reading of the record removes any apprehension one might otherwise have as to his guilty participation in the commission of the fraud. Hyde v. United States, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann.Cas. 1914A, 614. He was the instigator of the whole transaction, was present at its inception, a real participant therein, and a beneficiary thereof. So the jury could have well found, and did find from all the evidence.” To the same effect is a statement made in United States v. Goldsmith, 2 Cir., 108 F.2d 917, 921: “The further claim is made that merely giving advice cannot be a crime. But the statute prohibits not only the cause of false statements to be made, but also the concealing or covering up of a material fact by a trick, scheme, or device; and the charge is that the trick here was the defendant’s. The statute is broad enough to reach the brains behind a scheme, as well as the mere instrument of its execution.” In Hamner v. United States, 5 Cir., 134 F.2d 592, the court held that the evidence was insufficient to justify a conclusion beyond a reasonable doubt that Hamner knew the false invoices were to be made or were made, that is, that it was not established that the defendant knew such representations were to be made to a government board. Thus, it was possible that the defendant in the cited case believed that the dealer in tires could get the tires some place where he was not required to make any representations to get them. The caséis distinguishable from the instant one because McCoy knew that certain representations must be made to the government before the- trucks could be purchased.
See 10 Fed.Reg. p. 12850, § 8307.3-4.
The rule is stated in a California case, Atkins Corporation v. Tourny, 6 Cal. 2d 208, 215, 57 P.2d 480, 485, which we quote because of its apt language: “Under such circumstances, to strengthen his case, intervener offered evidence of similar transactions of Simons [defendant] at or about the same time, dealing with the same oil stock. This the trial court excluded on the theory that intervener had failed to prove any fraud. The evidence should have been admitted. Cases of fraud are exceptions to the general rule that other offenses of the accused are not relevant to establish the main charge. Where fraud is charged, evidence of other frauds or fraudulent representations of like character, committed by tlie same parties at or near the same time is admissible to prove intent.”
In United States v. Austin-Bagley Corp., 2 Cir., 31 F.2d 220, 234, certiorari denied 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 3002, it is said: “The judge declined to charge that circumstantial evide.nce could sustain a conviction only in case it excluded innocence ‘to a moral certainty,’ language which perhaps may be necessary in New York. People v. Bennett, 49 N.Y. [337], 139; People v. Fitzgerald, 150 N.Y. 253, 50 N.E. 846; People v. Razezicz, 206 N.Y. 249, 99 N.E. 557. We cannot agree that there are any inexorable formulas on the subject; it is enough that the judge shall in substance tell the jury that they must be satisfied beyond any reasonable chance of mistake. This caution we agree he must give, but to translate such an admonition into a rigid ritual is to forget the actual determinants of a verdict and to mistake shadows for reality.” In United States v. Becker, 2 Cir., 62 F.2d 3007, 1010, it is said: “The judge failed to charge the jury as to circumstantial evidence, contenting himself with an entirely neutral statement of the opposed contentions of the parties, though he had been asked to say that such evidence was enough only when it foreclosed the hypothesis of innocence. He had with ample elaboration told them that they must be satisfied beyond fair doubt of the defendant’s guilt, and that in our judgment was enough, though some courts have held otherwise. Stutz v. United States, 5 Cir., 47 F.2d 3029; Garst v. United States, 4 Cir., 180 F. 339; Anderson v. United States, 5 Cir., 30 F.2d 485, 487. The requirement seems to us a refinement which only serves to confuso laymen into supposing that they should use circumstaniial evidence otherwise than testimonial. All conclusions have implicit major premises drawn from common knowledge; the truth
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
ALVIN B. RUBIN, Circuit Judge:
Calvin W. Slaughter, who was forty-one years old and had worked for Allstate Insurance Company for sixteen years, was discharged for the stated reason that he had submitted a false insurance claim for damages to his home. Allstate replaced him with a younger person. Slaughter and his wife sued Allstate and various Allstate employees, asserting claims under the Age Discrimination in Employment Act of 1967, as well as various tort claims under Texas state law. Allstate counterclaimed, asserting that Slaughter had violated a covenant not to compete following his discharge, and obtained a preliminary injunction from the district court against his competition. Subsequently, the district court dismissed the claims against the Allstate employees and rendered summary judgment in favor of Allstate. We affirm the judgments of the district court.
I.
Slaughter, an insurance sales agent for Allstate, had an Allstate policy on his home for fire and extended coverage in the amount of $85,000, subject to a deductible of $850. The premium was lower than it would have been if the deductible had been less. The policy was to expire on March 27, 1984. Slaughter testified in his deposition that he had decided to increase the coverage and decrease the deductible, but had neither filed an application to do so nor paid the additional premium that this would entail when on March 24 he suffered water damage, amounting to $550, to a carpet in his home. Subsequently, on March 26, Slaughter filed an application to Allstate to increase the insured value of his home and decrease the deductible. He dated the application March 26, but backdated the effective date of the change to March 23. As a result of the lower deductible, half of the damage to the carpet was covered. Slaughter filed a claim for his loss without reporting to his supervisors that he had made the changes in his policy after the loss had occurred.
Several days thereafter, Slaughter discussed the changes with his superior. What was said then is disputed. Slaughter’s version is that the superior told him that the claim would probably be denied, but that denial would be the worst that could happen, and that Slaughter should submit it for a “management exception.” Allstate investigated the matter, and after further discussions with Slaughter, discharged him on September 7.
In his complaint, Slaughter prayed for reinstatement and compensatory and punitive damages. Although he alleged that, “unless subjected to the specific injunctive orders of this court, the Defendants will continue to deny to the Plaintiff the benefits of his contract of employment as an insurance sales agent, and the Plaintiff has no plain and adequate remedy at law,” Slaughter did not seek any injunctive relief other than reinstatement in the complaint.
II.
The Act gives no basis for relief against the company employees as individuals. Reinstatement, the only appropriate relief sought by Slaughter under the Act, could be granted only by Allstate. The complaint stated no other federal claim against the named individual defendants. The judgment dismissing the age discrimination claim against the individual defendants was, therefore, correct. In the absence of a federal claim, a district court may in its discretion, and generally should, dismiss pendent state law claims. The district court properly declined to exercise jurisdiction of the state law claims against the individual defendants.
III.
The district court entered the preliminary injunction enforcing Slaughter’s covenant not to compete on May 23, 1985. The preliminary injunction was then appealable as of right. Fed.R.App.Proc. 4(a)(1) requires the notice of appeal from any order appealable as of right to be filed within 30 days after the order is entered. That time limit is jurisdictional. Because Slaughter did not file a notice of appeal until March 1986, we lack jurisdiction to consider the appeal from the preliminary injunction.
IV.
The party opposing a motion for summary judgment may not rest on the allegations of his complaint. As the Supreme Court held in Celotex Corp. v. Catrett, the party who bears the burden of proof on an issue at trial must, in responding to a proper motion for summary judgment, “make a sufficient showing on an essential element of [his] case” to establish a genuine dispute. If he has had sufficient time for discovery, he must “designate ‘specific facts showing that there is a genuine issue for trial.'" Although our earlier jurisprudence required the district judge to search the record for a genuine dispute about a material fact, Celotex Corp., as well as this court’s recent decision in Fontenot v. Upjohn Co., makes clear that the moving party must point out to the court the absence of evidence showing a genuine dispute — though the moving party need not always present actual evidence negating a dispute. The court in Celotex Corp. said:
Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.
Allstate’s motion for summary judgment was based almost entirely on Slaughter’s deposition supplemented by other evidentiary materials. The Slaughters did not file any evidentiary material in opposition
to this motion. The Slaughters do not point, either in the record or in their brief to this court, to any genuine dispute of a material fact. While Slaughter did not backdate the form that he filled out to change his policy, he did backdate the effective date of the change. The Slaughters’ suggestion that it is not dishonest to backdate the effective date of an insurance policy to acquire retroactive coverage betrays a curious sense of morality. That Slaughter took such action was sufficient to warrant his discharge absent use of the incident as a pretext to cloak discrimination.
Whether, as Slaughter contends, he told his supervisor about the discrepancy in dates a few days after making the change, or, as Allstate’s evidence indicates, this conversation about the discrepancy in dates took place a month later, when Allstate was investigating the matter, is immaterial. The conversation did not negate the earlier dishonesty but, at most, minimized in Slaughter’s mind the danger to which he had exposed himself. Slaughter points to nothing other than this conversation to show that Allstate’s reasons for discharging him were pretextual.
While Slaughter said in his deposition that he believed and suspected that Allstate had a company policy of replacing agents over 40 with younger agents to reduce expenses, he admitted having no personal knowledge of such a policy and adduced no evidence of it. Testimony based on conjecture alone is insufficient to raise an issue as to the existence of the alleged policy. It is difficult indeed to see how Allstate would save money with such a policy, since the evidence shows that all agents were paid on a commission basis, with compensation keyed to sales, so that younger agents making greater sales earned more than Slaughter.
The burden of establishing pretext rests on the party asserting age discrimination. In Anderson v. Liberty Lobby, Tree., the Supreme Court held that “evidence” as weak as Slaughter’s cannot preclude summary judgment, saying:
The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.
* * * * * *
If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. (Citations omitted.)
There is, of course, no rule of law prohibiting summary judgment in an age discrimination case.
Slaughter’s pendent state claims against Allstate include a contention that Allstate breached its contract with him by discharging him without notice. The contract, however, does not require notice and an opportunity for corrective action before discharge on grounds of dishonesty. It requires advance warning and counselling only in instances of unsatisfactory work. Here, dishonesty was the ground for discharge.
The Slaughters also assert the existence of evidence from which a jury might have determined that Allstate slandered him, but do not identify that evidence. The only testimony adduced on this issue related to the circumstances of Slaughter’s termination. The publicity given Slaughter’s discharge was in publications that (i) were privileged because they were made in good faith, between persons within the Allstate system who had an interest in the discharge, or (ii) stated nothing about the reason for his termination.
The state law claim against Allstate for intentional infliction of emotional distress depends on the successful assertion of an independent tort, and was therefore properly dismissed. The conspiracy claim was properly dismissed because it was made only against the individual defendants, who had already been dismissed from the case, and not against Allstate.
Y.
The Slaughters assert that the district court erred in “failing to consider and exercise pendent party jurisdiction” of their state law claims against the Allstate employees. The Slaughters, however, never invoked pendent party jurisdiction. Moreover, even when properly invoked, the exercise of pendent jurisdiction is left to the discretion of the district judge. Their claims were dismissed without prejudice.
For these reasons, we AFFIRM the judgments of the district court.
. 29 U.S.C. § 623, et seq. (1986).
. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
. --- U.S. ---, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
. Id. at ---, 106 S.Ct. at 2553.
. Id.
. 780 F.2d 1190, 1195-97 (5th Cir.1986).
. Celotex Corp., --- U.S. at ---, 106 S.Ct. at 2555.
. Confer v. SKF Industries, Inc., 40 FEP 1721, 1724 (W.D.Pa.1986). [Available on WESTLAW, DCTU database].
. United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).
. --- U.S. ---, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
. Id. at ---, 106 S.Ct. at 2512, 2511.
. See Anderson v. Liberty Lobby, --- U.S. ---, 106 S.Ct. 2505.
. Bergman v. Oshman’s Sporting Goods, Inc., 594 S.W.2d 814, 816 (Tex.Civ.App. --- Tyler 1980, no writ).
. Vietnamese Fishermen’s Assn. v. Knights of the Ku Klux Klan, 518 F.Supp. 993, 1013-14 (S.D.Tex.1981); cf. Fenslage v. Dawkins, 629 F.2d 1107, 1110-11 (5th Cir.1980).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
The judgment is affirmed.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
MARIS, Circuit Judge.
These are cross-appeals from a judgment entered in the United States District Court for the District of Puerto Rico in an action brought under the Fair Labor Standards Act of 1938, as amended 29 U.S.C.A. §§ 201 et seq., for the recovery of unpaid minimum wages and overtime compensation. The plaintiffs, who worked in a hotel which included a restaurant, and in a hospital both of which were maintained by the defendant Central Aguirre Sugar Co. in the vicinity of its sugar mill in Aguirre, had been paid the local minimum wages applicable to their respective industries.
The facts were stipulated and may be summarized as follows :
The defendant is engaged in the processing of sugar cane into raw sugar for interstate commerce at its sugar mill located in Aguirre in the Municipality of Salinas, Puerto Rico. It operates an integrated industrial complex, an affiliated agricultural partnership which is engaged in the planting, cultivation and harvesting of sugar cane ground at defendant’s mill, an affiliated railroad company which is engaged in transporting sugar cane, raw sugar and other products, and an affiliated company which manufactures raw sugar from sugar cane. Among its personnel it has a staff of executive, professional and technical men, such as engineers, agronomists, accountants, chemists and superintendents. Since 1931 defendant has operated a hotel-restaurant to provide members of this staff and the public with lodging and board. About 10% of the hotel business is with the general public. Its facilities are not available to any of the non-supervisory, production and maintenance employees of the defendant and its affiliates. The hotel is owned by defendant, and not by a separate legal entity, and is operated on a nonprofit basis as an independent department. Defendant pays the hotel employees, and the accounting, clerical and stenographic work of the hotel is performed by the defendant’s employees. The operation of the hotel is subject to the direction of defendant’s president and executive vice president. There are public hotels and restaurants in the nearby towns of Aguirre, Salinas, Guayama, Santa Isabel and Ponce.
The defendant also owns a hospital, which is not operated by a separate legal entity, but as an independent department whose employees are paid by defendant. The hospital is operated at a loss made up annually by the defendant. Accounting, stenographic and clerical services are provided by defendant. The hospital is managed by a medical director wlm consults with defendant’s president and executive vice president. The hospital was founded in 1931 and provides medical, hospital and surgical services to the employees of the defendant and its affiliated enterprises. These services are provided to defendant’s sugar mill employees and their families under a welfare plan provision of a collective bargaining contract signed in 1958. The hospital’s services are also used by the general public. There are other hospitals and medical services in the area, including a municipal hospital in Salinas, a public health center in Guayama, and private hospitals in Ponce.
The question whether the plaintiffs were engaged in commerce within the meaning of section 3(j) of the Fair Labor Standards Act, as amended 29 U.S.C.A. § 203(j), was submitted to the district court on the stipulated facts, which included the facts set out in affidavits and answers to interrogatories filed in the case. In an opinion filed September 13, 1962 the district court concluded that the plaintiffs were covered by the Act and, therefore, were entitled to unpaid wages as claimed. Subsequently, hearings were held on plaintiffs’ claims for liquidated damages, interest and counsel fees. On June 21, 1963 findings of fact and conclusions of law were filed and a final judgment was entered which directed the defendant to pay $60,040.62 to listed plaintiffs, plus interest from the date of judgment, together with counsel fees in the amount of $15,000.00. From the judgment thus entered the defendant has appealed, at our docket No. 6183. In its judgment the district court denied the plaintiffs’ claim for liquidated damages. The employees of the hospital alone have appealed from that determination, at our docket No. 6192.
The defendant’s first contention is that the district court erred in concluding that plaintiffs were engaged in the production of goods for commerce within the meaning of the Fair Labor Standards Act and were, therefore, covered by the minimum wage provisions of the Act. The district court took the view that “the plaintiffs’ work must be examined in a frame of reference that includes the entire operation to which his activities are related, and not limited to an inquiry whether his work is necessary or essential to the production of goods, but rather is there substantial need for it and for defendant’s provision for it?” The latter question the court answered in the affirmative on the premise that the fact that since 1931 the hotel-restaurant had been maintained for the convenience of defendant’s higher echelon personnel and the hospital had been maintained to provide services to defendant’s employees and their families in addition to the general public justified the conclusion that both hotel and hospital answered a substantial need for the defendant’s enterprises.
We agree with the defendant that the district court applied the wrong test in determining the question whether the plaintiffs are covered by the Act. Section 3(j) of the Act provides in pertinent part:
“(j) * * * for the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any closely related process or occupation directly essential to the production thereof, * * * ”. [Emphasis supplied] 29 U.S.C.A. § 203(j).
The Act thus requires the plaintiffs to satisfy the court that they are engaged in a closely related process directly essential to the production of goods for commerce, not merely that their activities supply a substantial need of such production. We do not think that the plaintiffs in this case have shown themselves to be thus engaged within the meaning of the Act.
Prior to 1949 subsection 3(j) of the Act contained the language “ * * * or in any process or occupation necessary to the production thereof”. By the Act of October 26, 1949, c. 736, § 3, 63 Stat. 911, this language was amended to read “ * * * or in any closely related process or occupation directly essential to the production thereof”. It is clear from the legislative history that by this change Congress sought to eliminate marginal and fringe employees which prior cases had held to be covered by the Act, through providing a more precise and restricted criterion to determine the nature of the relationship which an employee’s activities must have to the production of goods in order for him to be regarded as an employee engaged in the production of such goods. In this connection, it was emphasized that “employees engaged in providing residential, eating, or other living facilities for factory workers, are quite clearly not performing any activities that are closely related or directly essential to the production of goods.” The Administrator of the Wage and Hour Division of the Department of Labor pointed out that employees are not engaged in work “closely related” and “directly essential” to their employer’s production of goods for commerce merely because they “provide a convenient means of meeting personal needs of his employees” who are engaged in the production of goods for commerce for “residential, eating, or other living facilities.”
It is true, nonetheless, that there may be cases in which the activities of hotel and restaurant employees provide living facilities for employees directly engaged in the production of goods under circumstances where such facilities are essential to assure continued and efficient production of goods, and are therefore so “closely related” and “directly essential” to the production of goods as to be covered by the Act. As illustrations of such activities the Administrator of the Wage and Hour Division has referred to “employees like cooks, cookees, and bull cooks in isolated lumber camps or mining camps, where the operation of a cook-house may in fact be ‘closely related’ and ‘directly essential’ or, indeed, indispensable to the production of goods for commerce.” As examples the Administrator cited Consolidated Timber Co. v. Womack, 9 Cir. 1942, 132 F.2d 101, and Hanson v. Lagerstrom, 8 Cir. 1943, 133 F.2d 120, and the plaintiffs have, in addition, cited Basik v. General Motors Corporation, 1945, 311 Mich. 705, 19 N.W.2d 142, 159 A.L.R. 966, and Mitchell v. Anderson, 9 Cir. 1955, 235 F.2d 638. It is sufficient to say that in each of these cases the circumstances, including the isolated location of the employer’s operation and the need to provide facilities for lodging and meals for the production workers if they were to carry on production, were the bases for the finding that the employees of these facilities were covered by the Act. The cases are thus clearly distinguishable from the present case.
A word may be added regarding the case of Mitchell v. Anderson, 9 Cir. 1955, 235 F.2d 638, since the district court appears to have placed its reliance upon that case in applying the test of “substantial need” to the plaintiffs here. That case involved the coverage of employees of a mess hall and bunk house maintained by the Anaconda Copper Mining Company for the accommodation of some of its male employees in Darwin, an isolated town of less than 150 population located in the Mojave desert of California near the company’s Darwin Mine. The mine employed approximately 250 men. Public accommodations in Darwin were meagre. The Court of Appeals appears to have thought, as Circuit Judge Fee insists in his dissenting opinion, that the question to be decided was merely whether there was “substantial need” for the operation of the mess hall and bunk house in carrying on the company’s operations. In any event a majority of the court held that these facilities were essential to production and reversed the judgment of the district court which had held the activities of the mess hall and bunk house employees not to be essential and hence outside the coverage of the Act. If, as the dissenting judge insisted, the court in Mitchell v. Anderson did apply the test of substantial need, the test which the district court applied in the present ease, rather than the “closely related” and “directly essential” test of the present law its decision is not controlling. In any event we think that the case, involving as it did facilities needed to maintain production workers at an isolated operation in a sparsely inhabited desert area, is so clearly distinguishable on its facts from the present case as to furnish no support for the decision of the district court here.
In the present case the defendant’s hotel-restaurant facilities were not maintained for the workers in the mill. In fact they were not available for those workers but were maintained solely for the convenience of the higher echelon employees, business guests and invitees and members of the general public. Maintaining the hotel-restaurant doubtless serves as a great convenience to these groups but, as we have pointed out, the statute requires that the facilities must be much more a part of the actual operation of the plant than merely to serve “a convenient means of meeting personal needs.” The hotel-restaurant may very well have supplied a “substantial need” as the district court concluded, but we think the stipulated facts preclude a finding that the hotel-restaurant employees are engaged in activities which are closely related to and directly essential to the production by the defendant of goods for commerce. We note in this connection that in all the cases to which we have referred the courts concluded that the production of goods would have been affected if the facilities in question had not been provided. The facts in the present case would not support such a conclusion.
The district court was equally wrong in its conclusion that the hospital employees were covered by the Act because the defendant had a “substantial need” for the hospital service. In Juarez v. Kennecott Copper Corporation, 1955, 225 F.2d 100, the Court of Appeals for the Tenth Circuit held that the employees of a hospital owned and operated by the Kennecott Copper Corporation at the rim of its open pit copper mine at Santa Rita, New Mexico, were not within the coverage of the Act. The hospital was operated for the company’s employees, the members of their families and the members of the public, only 20% of its operations involving caring for employees. The hospital was independently operated by the company and there were ample other hospital facilities in the area. On these facts both the district court and the court of appeals held that the hospital employees were not engaged in a closely related process or occupation directly essential of the production of goods in commerce. We think that Juarez v. Kennecott Copper Corporation is indistinguishable on its facts from the case before us, so far as the defendant’s hospital is concerned. See also Huke v. Ancilla Domini Sisters, 7 Cir. 1959, 267 F.2d 96.
We conclude that neither the employees of the defendant’s hotel-restaurant nor its hospital employees are engaged in activities so closely related to and directly essential to the production of goods for commerce within the meaning of section 3(j) as to be within the coverage of the Fair Labor Standards Act. The judgment in their favor for $60,040.62 plus interest and counsel fees must accordingly be reversed on this ground. The other grounds urged by the defendant for reversal need, therefore, not be considered. Moreover, since the judgment for the plaintiffs must be reversed in toto the appeal of the hospital-employee plaintiffs, based upon the ground that the district court erred in not awarding them liquidated damages, becomes moot and must accordingly be dismissed.
In No. 6183 the judgment of the district court will be reversed. The appeal in No. 6192 will be dismissed. The parties will bear their own costs.
. Tile complaint covered a period of 2 years prior to its filing date, September 2, 1960.
. The hotel and restaurant employees included waiters, cooks, maids and laundry workers.
. The hospital employees included orderlies, laundry workers, kitchen helpers and an auxiliary nurse.
. See statement of majority of Senate conferees on H.R. 5856, 81st Cong., 1st Sess. 1949, 95 Cong.Rec. p. 14874.
. Statement of the managers on the part of the House of Representatives on H.R. 5856, H.Rept. No. 1453, 81st Cong., 1st Sess., 2 U.S.Code & Cong.Serv.1949, pp. 2251, 2254.
. Interpretive Bulletin of the General Coverage of the Wage and Hour Provisions of the Pair Labor Standards Act of 1938, as amended, issued May 4, 1950, 29 C.P.R. § 776.18(b), 15 F.R. 2925, 2933.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
John R. James Jr., challenges several evi-dentiary rulings in the wake of which he was convicted of possessing a controlled substance with intent to distribute. His effort to exclude heroin seized from his jacket strikes us as misplaced, but we agree that the lurid circumstances of his arrest were improperly placed before the jury. Since we cannot characterize this error as harmless, we reverse the conviction and remand the ease for a new trial.
I
Application of the law to this case must needs rest on the ramiform and occasionally conflicting evidence adduced at James’ trial. Testimony by District of Columbia police officers Green and McMasters was substantially as follows. Late on the evening of November 4, 1975, while they were on “old clothes” detail, a passing 1961 Plymouth bearing taxicab markings excited their interest.' In their unmarked cruiser, the officers followed the Plymouth until it came to a halt, whereupon they pulled alongside. The officers alighted, as did the Plymouth’s two occupants, and one— James — was perceived as making what was described at trial as “a throw-a-way gesture” towards a nearby hedgerow.
James and his companion, Clennon Burke, were asked to and did identify themselves. At this point, so the officers testified, James abruptly volunteered that he had no “dope," and in an apparent effort to convince displayed to them the contents of the glove compartment, ash tray and trunk of the Plymouth. Not content with this exhibition, James opened his jacket, then doffed it, but as he did the officers heard it brush the car with the clang of metal on metal. Officer McMasters testified that he asked James whether that signified a gun in the jacket; James replied in the negative and requested the officer to satisfy himself on that score. McMasters stated that he searched the coat and found various tools for narcotics distribution but, as these carried no trace of contraband, they were, after some discussion of James’ intentions, replaced in the jacket. James and Burke went their way on foot.
The officers’ suspicions thus alerted, they reboarded their cruiser and embarked, but with doused lights circled back to take up a covert position for surveillance. They said that they then saw James and Burke drop behind the hedgerow and retrieve two silver objects, which James put in his jacket. With this, the officers set off, but as the cruiser approached James removed his jacket, balled it up and, as the officers watched, tucked it under the arm of William Giles, James’ elderly uncle, who had suddenly appeared on the scene. The officers immediately addressed Giles, who unhesitatingly surrendered the garment to them just as James and Burke entered the nearby house of James’ aunt, Giles’ sister. When the bundle unraveled, revealing two tinfoil packets, the officers gave chase, entering the aunt’s house only to find that James and Burke had exited at the rear.
Certain particulars of the officers’ version were vigorously disputed by James and Burke, both of whom testified. They recalled no mention of narcotics in their meeting with the officers, claimed that the car search was permitted only upon demand and contended that no paraphernalia of any kind came to light. Jámes denied any “throw-a-way” motion and both explained that the objects retrieved from the hedge were cigarette packs which, while the police were doubling back, had been tossed by Burke and fumbled by James. The defense theory was, essentially, that the narcotics paraphernalia taken from James’ jacket, as well as a brown powder containing heroin which was found in the tinfoil packets, were “planted” in the jacket after James had given up possession.
II
The appropriation of the jacket by the officers and their subsequent examination of its contents occasioned a motion to suppress, from the failure of which James appeals. He concedes that probable cause to search the jacket had matured by the time it was seized but contends that the search was invalid “because the police acted without a warrant.” Thus our question is “whether the police action was reasonable under all the circumstances,” and we have no difficulty in finding it so.
The warrantless search could have been sustained had James been apprehended while still wearing the jacket, or had James flung it on the pavement. That the jacket had instead been passed on to Giles, who could have been either a dupe or a confederate, did not alter the need for swift action. In either event the officers, who had observed the transfer of the jacket, had ample grounds for suspecting that it contained evidence “peculiarly vulnerable to speedy and easily accomplished destruction,” and it was at the very least their duty to forestall that possibility. Moreover, seizure of the jacket, easily accomplished as it was, was far less intrusive than immobilizing Giles until a warrant could be secured. It was the more reasonable in light of James’ retreat, since the officers could thereby ascertain readily whether the game was worth the candle and, if so, give chase.
We find no fault with the course of action resulting in the seizure, and its fruits were properly admitted at trial. Had there been no more to this case, the officers’ testimony concerning their initial encounter with and observation of James, taken together with the evidence we hold to have been legally seized, would readily have required affirmance of the convictions. Yet the Government did not content itself with that evidentiary presentation, but spread before the jury the debilitating and potentially prejudicial circumstances of James’ subsequent arrest. To the consequences of that course of action we now turn.
III
James was arrested in a drug raid on November 20, 1975, sixteen days after the events on which the indictment here was based. A squadron of police officers, confidentially informed that a cadre of supposedly armed citizens were gathering for a narcotics transaction, converged on an apartment, identified themselves, rushed through the door, and recovered a cache of contraband and a brace of weapons. James and another man, described at trial as “wanted by the FBI and U.S. Marshall’s [sic] Office,” jumped out a third floor window into the arms of police, followed— through the window — by “a quantity of heroin and other drugs and a pistol.” Burke was also apprehended in the raid.
In James' pocket when he was arrested was a slip of paper bearing cryptic notations. The Government introduced the slip at trial, but did not immediately undertake to explain how, if at all, it was probative of the offense with which James was charged. On cross-examination of Officer McMasters, however, defense counsel adduced from him his interpretation of the notations, which in his estimation detailed a narcotics transaction. When defense counsel asked McMasters whether the symbols “[c]ouldn’t mean anything else,” he replied that “[t]here were a lot of other circumstances surrounding the receipt of this piece of paper.” This exchange was seen by the trial judge as “opening the door” for the prosecution’s elicitation on redirect examination of a detailed account of the November 20 raid, which appears in the margin, “because of the fact that the officer was questioned as to the meaning of the slip of paper.... He is entitled to take into consideration in making his evaluation of what was on that paper the surrounding circumstances.... ” Parts of the officer’s account were later repeated in rebuttal of James’ version of the November 20 raid.
James claims that admission of the extensive testimony regarding the circumstances of his arrest was error. This is disputed by the Government, which contends also that, assuming arguendo the theoretical inadmissibility of Officer McMasters’ narration, defense counsel “opened the door” to it by his inquiry into the meaning of the note — the position to which the trial judge subscribed. Speaking first to that narrower issue, we disagree that McMasters’ reportage was invited by defense counsel. Ordinarily, evidence inadmissible to prove the case-in-chief is rendered admissible only if “the defendant himself introduces the evidence or is in some manner estopped from objecting to its use.” A defendant may not, for instance, deny that he had ever possessed narcotics, or make similarly sweeping claims going “beyond a mere denial of complicity in the crimes of which he was charged”, without running the risk that “bad acts” testimony or even illegally-obtained evidence will be introduced in rebuttal. After all, “[t]he price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him.”
There is, however, a fine line between trial conduct spreading new vistas before the inquiring eyes of the jury and that which seeks further to explore previously discovered terrain. The defense in this case hewed closely to that line. The writing itself was already in evidence; had counsel solicited from McMasters no more than a recitation of the notations, no new issues would have been presented the trier of fact. As it was, such a declamation would have been incomprehensible, and so the officer was requested to extend the various abbreviations. James’ attorney did inquire as to whether an alternative reading was possible, but a potential for ambiguity was no more than the sparseness of the note fairly suggested. Defense counsel expressed or implied nothing about the circumstances of James’ arrest, which, though they may have provided some foundation for Officer McMasters’ explication, were under the circumstances no more invited than testimony that his rendering was based on the defendant’s criminal record or reputation.
If the story of James’ arrest was properly before the jury, therefore, it must be by virtue of Rule 404(b) of the Federal Rules of Evidence, which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
As illuminated by its legislative history that rule countenances admission of “bad acts” evidence that is relevant to any material issue in the case except to show the likelihood that, having once fallen into sin, a second slip is likely. Only one other condition is imposed on the proponent of such evidence: “its probative virtues must outweigh its prejudicial proclivities” in order to satisfy the strictures of Rule 403. To determine the admissibility of Officer McMasters’ narrative regarding James’ arrest, then, we must ascertain first the use to which it might logically have been put and next the balance that possibly could be struck between its probative value in that role and its inflammatory impact.
The essential elements of the offense with which James’ was charged were the (a) knowing (b) possession of heroin with (c) intent to distribute it. These were the only facta probanda — facts in issue — in the case, for James raised no affirmative defenses. The circumstances of his arrest suggest little about whether he had heroin in his jacket sixteen days earlier, unless the impermissible inference be drawn that he had been associated with the drug once — during passage through the third story window — so it probably was not his first encounter with that evil. Nor does it prove very much about his pharmacological expertise, for the drugs discovered on November 20 — the date of the raid — were, so far as the record reveals, never linked to him. In any event, there was no dispute about whether he would know heroin if he saw it.
The issue thus resolves itself into whether James’ presence in an apartment in which were found substantial quantities of heroin is probative of an intent to distribute other heroin sixteen days earlier. Granting that a person found in that situation might be more likely so to contemplate, such an inference is so weak as to bring into serious question whether its contribution to the accuracy of the trial process outweighed the likelihood that its dramatic flavor would derange it.
Evidence of a prior crime “is always.. prejudicial to a defendant. It diverts the attention of the jury from the question of the defendant’s responsibility for the crime charged to the improper issue of his bad character.” Particularly is that true here, where testimony of subsequent intimacy with narcotics is aggravated by the addition of the sordid incidentals of that relationship. Officer McMasters’ account included damaging double hearsay relating to narcotics sales; it was freighted with guns, violent action and a wanted man. In the wake of, and predicated upon, this scenario the jury was exposed not only to James’ attempt to explain his role, but also to a reprise of the officer’s story “in rebuttal”; and was informed as well that Burke, the principal defense witness, had been arrested at the same time. Given the slight probative force of this evidence, and its obvious potential for prejudice, we perceive no balance on which it properly could have been admitted.
The large majority of persons of average intelligence are untrained in logical methods of thinking, and are therefore prone to draw illogical and incorrect inferences, and conclusions without adequate foundation. From such persons jurors are selected. They will very naturally believe that a person is guilty of the crime with which he is charged if it is proved to their satisfaction that he has committed a similar offense, or any offense of an equally heinous character. And it cannot be said with truth that this tendency is wholly without reason or justification, as every person can bear testimony from his or her experience that a man who will commit one crime is very liable subsequently to commit another of the same description.
We are cognizant that “it is not the appellate court’s function... to speculate upon probable reconviction and decide according to how the speculation comes out”; such judgments diminish the jury’s traditional role. Appellate assessment of the harm devolving from errors at trial properly looks rather to the “impact of the thing done wrong on the minds of other men, not on one’s own, in the total setting.” Our office extends only to determining whether we can say “with fair assurance... that the judgment was not substantially swayed by the error,” for otherwise the conviction cannot stand. We harbor no such assurance here. The Government’s success hinged in several respects upon its ability to convince the jury that James and the witness Burke were mendacious, so that contradictions between their testimony and that of the police might be resolved in favor of the latter. Admission of the testimony concerning James’ arrest may crucially have affected the jury’s estimate on that score, and that possibility impels us to reverse.
Reversed and Remanded.
. 21 U.S.C. § 841(a) (1970).
. U.S.Const. amend. IV. See Part II infra.
. See Part III infra.
. See, e. g., United States v. Collins, 142 U.S. App. 100, 102, 439 F.2d 610, 612 (1971).
. Transcript (Tr.) III/188.
. As it happened, Burke, the driver, had no operator’s license in his possession and the Plymouth, though registered to James, carried a “dead sticker” and so could not legally be driven. A check with the police computer revealed that a valid license had been issued Burke and that no warrants for either were outstanding.
. A tea strainer, several measuring spoons and thirteen snippets of tinfoil.
. The officers testified at the suppression hearing that James had contemplated a ruse on some local narcotics purveyors. Officer McMasters is said to have suggested that such a course of action might place James in harm’s way, and to have expressed the fervent desire that James carry out his plan, if at all, on someone else’s beat.
. Rather, they claimed that the officers questioned them about a recent robbery.
. The necessity of so doing was rationalized by their parting ways during the period in which the police were absent — Burke to a store for the cigarettes, and James to talk to Giles.
. Some suspicion was cast Giles’ way by the defense, but in its view the real culprits were the officers, one of whom was quoted by James as saying he “got [sic] to give it [the offense] to somebody.” Tr. IV/7.
. Cf. Simmons v. United States, 390 U.S. 377, 390, 88 S.Ct. 967, 974, 19 L.Ed.2d 1247, 1256-1257 (1968) to support James’ standing.
. Brief for Appellant at 40. The question of Giles’ consent to the seizure was raised in the District Court, which made no finding on the issue. See United States v. James, Crim. No. 75-862 (memorandum opinion D.D.C. Mar. 18, 1976) (unreported). We likewise decline to predicate our decision on such consent as Giles might have given. See generally Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1791-1792, 20 L.Ed.2d 797, 820 (1968). Neither do we sustain the search on grounds that James abandoned his jacket, cf. e. g., Kein-ingham v. United States, 113 U.S.App.D.C. 295, 307 F.2d 632 (1962), cert, denied, 371 U.S. 948, 83 S.Ct. 502, 9 L.Ed.2d 497 (1963); Brown v. United States, 261 A.2d 834, 835 (D.C.App. 1970), as the Government fleetingly suggests. Brief for Appellee at 18.
. Brief for Appellants at 40.
. United States v. Johnson, No. 73-2221 (D.C. Cir. en banc Jan. 12, 1977), at 18-19 n.10.
. Compare United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 2409-2410, 49 L.Ed.2d 300, 305 (1976); Warden v. Hayden, 387 U.S. 294, 298, 87 S.Ct. 1642, 1645, 18 L.Ed.2d 782, 787 (1967), with United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 477, 38 L.Ed.2d 427, 441 (1973); United States v. Brown, 150 U.S. App.D.C. 113, 114, 463 F.2d 949, 950 (1972); Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967). See also United States v. Purry, 178 U.S.App.D.C. 139, 142, 545 F.2d 217, 220 (1976).
. See Keiningham v. United States, supra note 13; Brown v. United States, supra note 13. See also Kieinbart v. United States, 142 U.S. App.D.C. 1, 3, 439 F.2d 511, 513 (1970).
. United States v. Johnson, supra note 15, at 24.
. We express no view as to whether the seizure might have been reasonable had Giles resisted, or whether, indeed, had it been Giles who complained the same result would obtain. See generally Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1971).
. Cf. United States v. Robinson, 174 U.S.App. D.C. 351, 358, 533 F.2d 578, 585 (1976).
. Tr. III/52.
. Id.
. As nearly as can be reconstructed the notations were:
$990.0 6 SP 100. 13 — Q—30.
-350. SID 2 SP + 5Q 640 3 4 SP + 8Q
Cf. Tr. III/38 with id. IV/12-14 and id. IV/27-30.
. Defense counsel stated this was done to avoid such strategic advantage as the prosecution might have gained by introducing the interpretation on rebuttal, thereby having the last word on the subject.
. The officer, who had previously been qualified as an expert in narcotics distribution, translated “SP” as “spoons,” “Q” as “quarter spoons,” and opined that “SID” was a man’s name; he later testified, albeit haltingly, that one of those arrested with James was named Sidney. James was later to testify that the notations were data related to an estimate for a housepainting contract, and that the same symbols meant “supplying paint,” “quarts” and “sanding interior doors,” respectively; and to explain in some detail how these variables affected the bid he claimed to have roughed out on that sheet.
. Tr. III/39.
. “On November 20, 1975 the United States Marshall’s [sic] Office received information there was an Apartment 145 Ivanhoe Street, Southwest where a large quantity of heroin was in the process of being cut. They also received information there were five men and two women in the apartment. The apartment belonged to the two ladies. There were also five guns in the apartment. Between eight and ten o’clock in the evening myself and Officer Bruce Wilson of the Metropolitan Police Department and approximately eight or nine other policemen surrounded the building with shotguns, canine dogs and U.S. Marshall’s [sic] Office personnel. Subsequently we went to the door, knocked on the door and as we were knocking on the door the toilet flushed three different times and two men jumped out the third floor window of the building. Those two men, one being Mr. John R. James, Jr. and the other man named Norman Fitzgerald wanted by the FBI and U.S. Marshall’s [sic] Office. As they came out the window a quantity of heroin and other drugs and a pistol came out the third floor window with them. They were apprehended on the ground in the rear of the building. We gained entrance to the apartment and also additionally recovered almost approximately $1,000 in drugs and arrested the other people in the apartment and recovered all the weapons.” Tr. III/52.
. Id. at 54-55.
. Tr. IV/47-50. McMasters also testified that Burke, an important defense witness, was also arrested in the November 20 raid, and as well gave the description of James’ fellow defenes-tratee as a wanted man, see text supra at note 21 and note 27 supra. The latter evidence is alleged to be improper, but in view of our disposition we need not reach that question.
. Tr. III/50 — 51.
. Johnson v. United States, 120 U.S.App.D.C. 69, 70, 344 F.2d 163, 164 (1964).
. Walder v. United States, 347 U.S. 62, 65, 74 S.Ct. 354, 356, 98 L.Ed. 503, 507 (1954).
. Cf. United States v. Washington, 150 U.S. App.D.C. 68, 70, 463 F.2d 904, 906 (1972); Felton v. United States, 83 U.S.App.D.C. 277, 279, 170 F.2d 153, 155, cert, denied, 335 U.S. 831, 69 S.Ct. 18, 93 L.Ed. 385 (1948); United States v. Gonzalez, 491 F.2d 1202, 1204 (5th Cir. 1974). See also United States v. Lewis, 157 U.S.App. D.C. 43, 49-50, 482 F.2d 632, 638-639 (1973). See generally C. McCormick, Evidence § 58 at 132 n. 7 (E. Cleary ed. 1972).
. E. g., Walder v. United States, supra note 32; United States v. Townes, 512 F.2d 1057, 1059 (6th Cir. 1975).
. Michelson v. United States, 335 U.S. 469, 479, 69 S.Ct. 213, 220, 93 L.Ed. 168, 175 (1948), quoted in Johnson v. United States, supra note 31, 120 U.S.App.D.C. at 71, 344 F.2d at 165. Cf. United States v. Lewis, supra note 33.
. Compare, e. g., United States v. McCoy, 515 F.2d 962, 964 (5th Cir. 1975), cert, denied, 423 U.S. 1059, 96 S.Ct. 795, 46 L.Ed.2d 649 (1976), with United States v. Johnson, 495 F.2d 242, 244-245 (10th Cir. 1974). In McCoy, a prosecution for illegal possession of a firearm, the defense sought “to create the idea that the revolver in question had been purchased by the defendant’s wife for her protection.” 515 F.2d at 964. To negate the theory, the Government was allowed to present seven otherwise inadmissible firearms found in the defendant’s home. In Johnson, on the other hand, the defendant had said he had “nowhere on [his] record.. any indication” of narcotics violations. 495 F.2d at 245. This the court said, might have justified further testimony regarding his “criminal record in relation to dangerous drugs” id. (emphasis in original), but it did not open the door to testimony that he had been present in a room in which narcotics had been discovered, since “there [was no] evidence of a sale of drugs or any other unlawful act by” the defendant. Id. And compare Walder v. United States, supra note 32 (defendant’s denial that he ever possessed narcotics opens door to illegally-seized evidence), with Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925) (defendant’s testimony that “he received the packages... but... did not know their contents [to be] narcotics”, id. at 29, 46 S.Ct. at 5, 70 L.Ed. at 148, and his denial on cross-examination that he had ever seen narcotics, does not open the door to rebuttal use of narcotics seized from his house, since he “was not asked and did not testify concerning” those narcotics. Id. at 35, 46 S.Ct. at 7, 70 L.Ed. at 150. See also White v. United States, 121 U.S.App.D.C. 287, 349 F.2d 965 (1965); Johnson v. United States, supra note 31; Gonzales v. Beto, 266 F.Supp. 751, 753 (W.D.Tex.1967), aff’d sub nom. Texas v. Gonzales, 388 F.2d 145 (5th Cir. 1968).
. Nor did it seek selectively to elicit facts about the arrest, in which case, of course, the prosecution would have been free to illuminate its other aspects. Cf. United States v. Coppola, 526 F.2d 764, 771-772 (10th Cir. 1975). See also United States v. Bass, 175 U.S.App.D.C. 282, 287-288, 535 F.2d 110, 115-116 (1976).
. The March, 1971, Advisory Committee draft of Rule 404(b) was identical to the final version. The Supreme Court’s submission of the proposed rules to Congress substituted “[t]his subdivision does not exclude the evidence when offered” in place of “it may, however, be admissible for other purposes.” Communication from Chief Justice of the United States on Rules on Evidence, House Doc. No. 93-46, 93d Cong., 1st Sess. 7 (1973). The Advisory Committee notes included in this submission shed no light on the reason for this change, see id. at 68, but the House subcommittee determined that it “preferred the 1971 formulation as placing greater emphasis on admissibility than did the final [Supreme] Court version,” and so amended the Rule. House Comm, on the Judiciary, Committee Print on Federal Rules of Evidence, H.R. 5463, as amended by the Sub-comm. on Criminal Justice 10 (1973). See H.R. Rep.No.93-650, 93d Cong., 1st Sess. 7 (1973). Several parties, including the Department of Justice and the American Bar Association, expressed concern that the 1971 draft implicitly bestowed on trial judges discretion to exclude “bad acts” evidence for reasons unspecified in any other rules. See, e. g., Rules of Evidence (Supplement), Hearings on H.R. 5463 Before the Subcomm. on Criminal Justice of the House Comm. on the Judiciary, 93d Cong., 1st Sess. (Serial No. 2 1973) at 269 (statement of Prof. Richard Field); id. at 344 (statement of American Bar Ass’n); Rules of Evidence (H.R. 5463), Hearings on H.R. 5463 Before the Senate Comm. on the Judiciary, 93d Cong., 2d Sess. 123 (1974) (statement of Assistant Attorney General Rakestraw). Congress’ response is contained in the Senate Judiciary Committee’s report:
Although your committee sees no necessity in amending the rule itself, it anticipates that the use of the discretionary word “may”. is not intended to confer any arbitrary discretion on the trial judge. Rather, it is anticipated that with respect to permissible uses for [“bad acts”] evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403
S.Rep.No.93-1277, 93d Cong., 2d Sess. 24-25 (1974), U.S.Code Cong. & Admin.News 1974, pp. 7051, 7071. This has led Judge Weinstein, a member of the Advisory Committee that drafted the rules, to opine that “[o]nly one series of evidential hypotheses is forbidden in criminal cases by Rule 404: a man who commits a crime probably has a defect of character; a man with such a defect is more likely than men generally to have committed the act in question.” 2 J. Weinstein & M. Berger, Evidence ¶ 404[08] at 40 (1975).
. If, however, the “issue” is the credibility of a witness, the more detailed strictures of Rules 608(b) and 609 govern the admissibility of evidence of specific acts by the witness. See generally United States v. Smith, No. 75-1920 (D.C.Cir. Dec. 17, 1976), at 16-17.
. See note 38 supra.
. Bradley v. United States, 140 U.S.App.D.C. 7, 13, 433 F.2d 1113, 1119 (1969).
. Fed.R.Evid. 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The applicability of Rule 403 to evidence described in Rule 404 is confirmed not only by the Advisory Committee’s notes, see Communication, supra note 38, at 68, but also by the Senate Report, quoted in pertinent part supra note 38.
. 21 U.S.C. § 841(a) (1970) provides that, with exceptions not relevant here, it is unlawful “for any person knowingly or intentionally — (1) to possess with intent to manufacture, distribute, or dispense a controlled substance.,” such as heroin.
. See, e. g., Brooke v. United States, 128 U.S. App.D.C. 19, 24-25, 385 F.2d 279, 284-285 (1967). So the trial judge instructed the jury here. Tr. IV/68-70. See also Direct Sales Co. v. United States, 319 U.S. 703, 710-712, 63 S.Ct. 1265, 1269-1270, 87 L.Ed. 1674, 1681— 1682 (1943).
. See Stone, The Rule of Exclusion of Similar Facts Evidence: America, 51 Harv.L.Rev. 988, 1026 n. 190 (1938). Facta probanda stand in contrast with facta probantia — “probative facts” — such as motive, from which inferences regarding facts in issue may be drawn.
. Cf. 2 J. Weinstein & M. Berger, Evidence ¶ 404[10] at 67 n. 4 (1975), citing C. McCormick, Evidence § 157 at 331 (1954) (“the customary principle that [prior crimes] evidence may not be introduced on issues which are not contested”). This principle has been espoused by nearly all of the courts of appeals. E. g., Bradley v. United States, supra note 41, 140 U.S.App.D.C. at 13-14, 433 F.2d at 1119-1120, citing Billings v. United States, 42 App.D.C. 413, 415 (1914); United States v. Brettholz, 485 F.2d 483, 487 (2d Cir. 1973), cert, denied, 415 U.S. 976, 94 S.Ct. 1561, 39 L.Ed.2d 871 (1974), citing C. McCormick, Evidence § 190 at 453 (Cleary ed. 1972); United States v. Cook, 538 F.2d 1000, 1003 (3d Cir. 1976); Lovely v. United States, 169 F.2d 386, 388 (4th Cir. 1948); United States v. Bloom, 538 F.2d 704, 711 (5th Cir. 1976) (Tuttle and Clark, JJ., concurring), citing United States v. Goodwin, 492 F.2d 1141, 1150-1151 (5th Cir. 1974); United States v. Mahar, 519 F.2d 1272, 1273 (6th Cir.), cert, denied, 423 U.S. 1020, 96 S.Ct. 458, 46 L.Ed.2d 393 (1975); United States v. Clemons, 503 F.2d 486, 490 (8th Cir. 1974). See also United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976); United States v. Phillips, 375 F.2d 75, 82-83 (7th Cir.), cert, denied, 389 U.S. 834, 88 S.Ct. 40, 19 L.Ed.2d 95 (1967) (dissenting opinion). It is also adverted to in the Advisory Committee notes to Rule 404(b), Communication, supra note 38, at 68.
. The premises on which such an inference rest are:
(1) If James was there, he probably knew of the presence of narcotics, but see United States v. Johnson, supra note 36;
(2) if so, he was probably involved with them;
(3) if so, he was probably buying or selling, but cf. United States v. Partyka, 544 F.2d 345, 347 (8th Cir. 1976); United States v. Masters, 450 F.2d 866, 867 (9th Cir. 1971), cert, denied, 405 U.S. 1044, 92 S.Ct. 1329, 31 L.Ed.2d 587 (1972);
(4) if so, he probably had the requisite intent on November 20;
(5) if so, he probably had the requisite intent on November 4.
Aside from the attenuation inevitable when one is, as here, multiplying fractions, the degree to which this sort of equation deviates from common sense was suggested in United States v. Masters, supra, 450 F.2d at 867, where one accused of smuggling marijuana was asked if he used it; “[o]n that theory,” said the court, “anyone who drank in the Prohibition era should have been a rumrunning suspect.”
. See Fed.R.Evid. 403, quoted supra note 42.
. United States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968). Cf. 1 Underhill, Criminal Evidence § 205 (5th ed. 1956), quoted in Drew v. United States, 118 U.S.App.D.C. 11, 15-16 n. 8, 331 F.2d 85, 89-90 n. 8 (1964):
. Cf. United States v. Kearney, 136 U.S.App. D.C. 328, 332, 420 F.2d 170, 174 (196
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
PER CURIAM.
This case is before the Court upon the petition of Fotofab Coi’poration (the Company) to review and set aside an order of the National Labor Relations Board. The Board has filed a cross petition for enforcement. The decision and order of the Board are reported at 181 N.L.R.B. No. 105. Reference is made to the published decision for a complete statement of facts.
The Board found that the Company violated §§ 8(a) (1) and 8(a) (3) of the National Labor Relations Act, 29 U.S.C. §§ 158(a) (1), 158(a) (3), by discharging two employees because of their efforts in behalf of a union organizing campaign. We find that there is substantial evidence on the record considered as a whole to support the findings of the Board. Winston Heat Treating, Inc. v. N.L.R.B., 422 F.2d 844 (6th Cir.); N.L.R.B. v. Lawson Printers, Inc., 408 F.2d 1004 (6th Cir.); N.L.R.B. v. Challenge-Cook Brothers of Ohio, Inc., 374 F.2d 147 (6th Cir.); N.L.R.B. v. Elias Brothers Big Boy, Inc., 325 F.2d 360, 366 (6th Cir.); N.L.R.B. v. Ford, 170 F.2d 735 (6th Cir.).
One of the witnesses who testified before the trial examiner previously had been convicted of burglary and participation in the theft of an automobile. At the hearing before the Board the credibility of this witness was attacked because of his criminal record and also because of his marital status. The trial examiner credited the testimony of the witness because of his demeanor, stating that “His testimony seemed particularly straight-forward and responsive to the question put to him.” The trial examiner also pointed out that this was a disinterested witness, being at the time of his testimony a self-employed freelance artist enjoying considerable success in his field.
In November 1970 this witness was indicted for first degree murder of the victim of an attempted rape. His trial was set for January 18, 1971.
On November 10 the Company filed a motion with the Board requesting that the Board withdraw from the Court the certified list of the record in this case and that the case be held in abeyance pending the adjudication of the criminal charge against this witness. This motion was denied by the Board.
The Company has filed in this Court a motion to hold the case in abeyance pending adjudication of the pending criminal charges against the witness in question. Upon consideration, the motion is overruled.
Enforcement granted.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HEANEY, Circuit Judge.
This appeal arises out of a private antitrust suit between the publishers of two daily newspapers in southwestern North Dakota. The Morning Pioneer, Inc., publishes a morning paper, “The Morning Pioneer,” in Mandan. Seven' miles away in Bismarck, an evening paper, “The Bismarck Tribune,” is published by The Bismarck Tribune Company.
For several years, there was very little competition for circulation or advertising between the newspapers in their respective hometowns. Consequently, the Pioneer’s Bismarck circulation was very limited as was the Tribune’s Mandan circulation. The papers entered into agreements under which virtually all national and some local advertising was solicited jointly for publication in both papers, and the proceeds were distributed to reflect relative shares of the total circulation — seventy-five percent to the Tribune and twenty-five percent to the Pioneer. In 1963, the management of the Tribune shifted to an aggressive publisher, and a Bismarck family with a printing background — the Conrads— purchased the Pioneer. The previous noncompetitive atmosphere was replaced by aggressive competition. Each paper initiated measures to increase its circulation and advertising in the other’s hometown.
In August, 1969, the Pioneer brought this action, seeking damages and injunc-five relief. It alleged that the Tribune’s practice of selling its carrier-delivered newspapers for a lesser price in Mandan and elsewhere than in Bismarck constituted price discrimination in violation of § 2(a) of the Clayton Act as amended by the Robinson-Patman Act. It also complained that the Tribune engaged in practices constituting an “attempt to monopolize” as prohibited by § 2 of the Sherman Anti-Trust Act by: (1) attempting to purchase the Pioneer; (2) cancelling the joint advertising agreements; (3) hiring Pioneer employees; (4) granting certain advertisers rates more favorable than the published rates to encourage advertising in the Tribune rather than the Pioneer; (5) giving premiums to new subscribers; (6) selling the Tribune for a lesser price in Mandan than in Bismarck; and (7) blanketing Mandan homes with free copies of the Tribune on numerous occasions.
The District Court held that three periods of blanketing had been of sufficient intensity to constitute an “attempt to monopolize” in violation of the Sherman Act, but that the other practices, considered individually or collectively, did not constitute such an attempt. It further held that the Clayton Act had not been violated. It denied injunctive relief but awarded the Pioneer nominal single damages of one dollar (three dollars trebled) and attorney’s fees of $7,350, plus costs for the Sherman Act violation.
The Pioneer asserts on this appeal that the District Court erred in: (1) finding that the intensive blanketing during the three periods was the only Sherman Act violation; (2) awarding only nominal damages for this violation; (3) failing to find that the price difference violated the Clayton Act and not awarding damages for that violation. It asks this Court to assess substantial damages for the claimed violations or to remand to the District Court with instructions to it to determine damages for the violations, or to grant a new trial. No request for injunctive relief is made. The Tribune, on the other hand, asserts that the District Court erred in: (1) holding that the blanketing violated the Sherman Act; and (2) awarding excessive attorneys’ fees for the violation. It asks that the court be affirmed except insofar as it found a violation of the Sherman Act and granted attorneys’ fees to the Pioneer. It requests that these fees be disallowed or reduced.
THE SHERMAN ACT VIOLATIONS
To establish an “attempt to monopolize” in violation of § 2 of the Sherman Act, it is necessary to prove: (1) a specific intent to monopolize; (2) an overt act or acts; and (3) a dangerous probability of monopolization of a specific product market in a particular geographic market. See, Acme Precision Products, Inc. v. American Alloys Corp., 484 F.2d 1237, 1240 (8th Cir. 1973); Agrashell, Inc. v. Hammons Products Company, 479 F.2d 269, 284-286 (8th Cir.), cert. denied 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973). See also, Hibner, Attempts to Monopolize: A Concept in Search of Analysis, 34 ABA Antitrust L.J. 165 (1967); Smith, Attempt to Monopolize: Its Elements and Their Definition, 27 Geo.Wash.L.Rev. 227 (1959).
The court properly found that each of the necessary elements was present here. The Tribune was the dominant daily newspaper in southwestern North Dakota. If it succeeded in driving the Pioneer out of business, a dangerous probability existed that it would achieve a monopolistic position in the daily newspaper market and would be able to exploit that position to the disadvantage of the people and businesses in the area. The fact that television and radio would continue to compete in the news and advertising field would not prevent the Tribune from exploiting its position as the only daily newspaper because electronic media is not wholly competitive with respect to some types of news and advertising. These include: in depth stories on local and national affairs; detailed stories on births, deaths, marriages and social engagements; stock market statistics; detailed sports stories; and price advertising, particularly in the grocery field.
The intent to monopolize was adequately shown by the Tribune’s distribution of thousands of free newspapers to Mandan housing units during April and May and September and October of 1963, and during January through March of 1965. Much of the blanketing during these periods was done on Wednesday, the heavy grocery ad days. It was sometimes accompanied by an appeal to Mandan grocery advertisers to place ads on those days. Because advertising constituted eighty percent of the Pioneer’s revenue and a significant portion of that revenue came from grocery advertising, the dangerous probability that the Pioneer would be driven out of business by a continuation of the practice is evident. Accord, Kansas City Star Company v. United States, 240 F.2d 643, 662 (8th Cir.), cert. denied, 354 U.S. 923, 77 S.Ct. 1381, 1 L.Ed.2d 1438 (1957). The blanketing condemned by the court clearly exceeded that permissible in furtherance of a legitimate attempt by the Tribune to enter the Mandan market and properly served as a basis for the court’s implicit finding of an intent to monopolize by the Tribune.
The Pioneer would have us go a step further and find that the District Court erred in failing to find that other acts also were illegal attempts to monopolize. We decline to do so. There is adequate evidence in the record to support the court’s findings that: the cancellation of the joint advertising agreement served to terminate an anti-competitive agreement; that the Tribune did not act improperly in hiring former employees of the Pioneer; that the premium giveaway programs engaged in by the Trib-r une were reasonable and done in accordance with accepted practices in the newspaper industry; and that no improper advertising rate discrimination occurred.
The Pioneer would also have us reverse the court’s implicit holding that the Tribune’s practice of charging a lower price in Mandan was not violative of the Sherman Act. We reject the invitation. That holding is supported by the evidence demonstrating that the pricing practice was one of over thirty years standing.
Finally, the Pioneer urges that the District Court erred by not viewing all of the acts of the Tribune together in determining whether there was an attempt to monopolize. The Pioneer is correct in asserting that the trier of fact must adopt that approach, see, Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679, 691 (8th Cir. 1966), but the Pioneer is mistaken in its assertion that the court failed to do so. After considering each act individually, the court stated that it was required to view “the evidence as a whole and * * * not tightly compartmentalize the various components, and wipe the slate clean after scrutiny of each.” It then stated:
* * * Nevertheless, I find that the conduct of the Bismarck Tribune, whether considered in its separate parts or as a whole, did not constitute an act in restraint of trade. I reiterate that both papers, following March of 1962, responded to the termination of a non-competitive agreement with aggressive, but reasonably competitive conduct, except for the blanketing per-viously discussed. 342 F.Supp. at 1142.
DAMAGES FOR THE SHERMAN ACT VIOLATION
Any person injured in his business or property by reason of another’s violation of the antitrust laws may recover treble damages from the wrongdoer. 15 U.S.C. § 15. But it is not enough for recovery of damages to prove that an antitrust law was violated by the defendant. Cf., Duff v. Kansas City Star Company, 299 F.2d 320, 323 (8th Cir. 1962). Rather, the rule is that damages may not be awarded to a litigant unless he also proves “with a fair degree of certainty, the fact of damage and the causal connection between the antitrust violation and the injury.” ABA Antitrust Section, Antitrust Developments: 1955-1968, at 282 (1968). See, Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957-958 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). Cf., Perkins v. Standard Oil Co., 395 U.S. 642, 648, 89 S.Ct. 1871, 23 L.Ed.2d 599 (1969); Story Parchment Co. v. Paterson P. Paper Co., 282 U.S. 555, 51 S.Ct. 248, 75 L.Ed. 544 (1931).
The Pioneer’s claims for damages for the Sherman Act violation were premised on two factors — loss of advertising revenue and loss of circulation. The District Court found that Pioneer lost one-third of its grocery advertising during a five-week period in 1965, that this was the only advertising loss, and that it was caused by the illegal blanketing in 1965. It declined to award more than nominal damages for the loss because no evidence was introduced to show what the advertising revenue actually was or would have been absent the blanketing. We are satisfied that the court’s findings and conclusions with respect to the loss of advertising revenue are supported by substantial evidence. This is not an instance where the defendant’s actions prevented a precise computation of the damage. Rather, the fault lies in the plaintiff’s failure to introduce any evidence as to the value of its grocery advertisements, normal or actual, during the five-week period. The plaintiff’s witness merely related that the loss was one-third of the normal. To have awarded more than nominal damages under these circumstances would have been to engage in impermissible speculation and conjecture. See, e. g., Siegfried v. Kansas City Star Company, 298 F.2d 1, 5-8 (8th Cir.), cert. denied, 369 U.S. 819, 82 S.Ct. 831, 7 L.Ed. 2d 785 (1962).
The court properly declined to award damages for loss of circulation. While there was evidence in the record to support a finding that Pioneer lost three hundred paid subscribers between 1963 and 1964, the court’s finding that it was impossible to determine that the loss in subscription was caused by the Tribune’s wrongdoing was not clearly erroneous. The reduction, as the court indicated, could have been caused by one or more of the following facts: (1) the Pioneer was changed from an evening to a morning paper on May 19, 1963; (2) the arrangement between the Pioneer and the Tribune owners of not competing in the other’s hometown was also curtailed in 1963; (3) the Pioneer, especially its circulation department, was poorly managed; and (4) the Pioneer’s editorial policy was shifted to a more liberal position by the Conrads. The Pioneer made an attempt to prove that these factors did not cause the reduction, but its proof did not satisfy the District Court. We cannot say that the court erred in concluding that the proof of causation was inadequate.
THE CLAYTON ACT ISSUES
. The District Court found that for over thirty years, the Tribune, by carrier, was sold for a lower price in Man-dan than in Bismarck. It held that this practice did not violate § 2(a) of the Clayton Act for two reasons: (1) The Tribunes delivered in the two cities were not of “like grade and quality” as the Tribune had a lesser value to Mandan readers than Bismarck readers. (The court reasoned that the paper arrived later in Bismarck, contained little Mandan news, and less advertising of interest to Mandan readers.) (2) The effect of the price discrimination was not “substantially to lessen competition or tend to. create a monopoly.”
We need not decide whether the court erred in concluding that the Tribune did not violate § 2(a) of the Clayton Act .by its price discrimination practice. Even if we resolved all the Clayton Act liability contentions in the Pioneer’s favor — i. e., that newspapers are “commodities” subject to the Act, that the Tribunes delivered in Mandan and Bismarck were of “like grade and quality” and that the price discrimination had the prohibited effect on competition — a reversal and remand of this ease to the District Court would be unnecessary. This is true because the Pioneer failed to prove that it was injured by the Tribune’s price discrimination.
The basic injury alleged to have been caused by the price discrimination was a loss in the Pioneer’s Mandan circulation, and proof that this loss was caused by the price discrimination was properly found by the District Court to be wholly inadequate. We also note that the price discrimination complained of was terminated in October 1970, and there is no showing or contention that it is likely to be reinstituted.
ATTORNEYS’ FEES
The award of attorneys’ fees to successful plaintiffs is sanctioned by 15 U.S.C. § 15. Where no factual error is claimed, the amount assessed by the District Court must stand unless the party seeking review establishes that the court has abused its discretion. Armco Steel Corporation v. State of North Dakota, 376 F.2d 206, 212 (8th Cir. 1967). When the damages recovered are relatively small, as is the case here, it is not necessarily an abuse of discretion to grant attorneys’ fees in excess of the damage award. Advance Business Systems & Supply Co. v. SCM Corporation, 415 F.2d 55, 70 (4th Cir. 1969), cert. denied, 397 U.S. 920, 90 S.Ct. 928, 25 L. Ed.2d 101 (1970). In arriving at the fee, the court considered the proper factors, and we find no abuse of discretion here.
We deny the Pioneer’s request for attorneys’ fees on this appeal.
Each party will bear its own costs on this appeal.
Affirmed.
. The opinion of the District Court details the history of the newspapers’ ownership and competitive practices. 342 F.Supp. 1138, 1139-1140 (D.N.D.1972).
. At trial, the Pioneer limited its claim and proof of damages from price discrimination to that discrimination existing between Bismarck and Mandan.
. That section provides:
It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality, where either or any of the purchases involved in such discrimination are in commerce, where such commodities are sold for use, consumption, or resale within the United States * * * and where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: * * *
15 U.S.C. §13(a) (1970).
. Section 2 of the Sherman Act, makes it unlawful to “attempt to monopolize * * * any part of the trade or commerce among the several states * * 15 U.S.C. § 2 (1970).
. See, United States v. Times Mirror Company, 274 F.Supp. 606, 618 (C.D.Cal.1967), aff’d mem., 390 U.S. 712, 88 S.Ct. 1411, 20 L.Ed.2d 252 (1968) ; Roberts, Antitrust Problems in the Newspaper Industry, 82 Harv.L.Rev. 319, 320-322 (1968). See also, United States v. Grinnell Corp., 384 U.S. 563, 572, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966), where the Supreme Court sanctioned the recognition of submarkets for antitrust purposes.
. The blanketing in April and May of 1963 began on the same day as the commencement of the publication of the Pioneer by its new owners, the Conrads. It continued daily for three weeks; and on each day, between 1,600 and 2,000 papers were distributed. The blanketing in September and October was continuous for one week; and for the balance of the two-month period, it was done each week on Wednesday. On most of these days, 1,500 copies of the Tribune were distributed. Finally, during January of 1965, blanketing took place on eight occasions and between 1,000 and 2,400 copies were distributed on each day. This was followed by blanketing of similar intensity on eight days in February and on seven days in March of 1965.
. We are convinced that the court misstated when it used the term “restraint of trade” here. We are satisfied that the court meant to use the term “attempt to monopolize,” as that was the question before the court,
. The court stated that the Pioneer’s circulation records were so questionable and unreliable that it would have been improper to find a loss in circulation by relying on them. While this fact precluded the court from estimating the Pioneer’s circulation after Marcli 31, 1966, it could have determined the paper’s circulation with the necessary degree of certainty prior to that date by relying on the reports of the Audit Bureau of Circulations (ABC).
The ABC report for the nine-month period ending March 31, 1963, shows an adjusted figure for “Carrier and Dealer” circulation of the Pioneer in Mandan to be approximately 2,250, while the same adjusted figure for the twelve-month period ending March 31, 1964, is about 1,925. In reaching these figures, we assumed that the adjustments made were attributable to the “Carrier and Dealer” category rather than the “Mail” category ns the latter appeared to have less variation during the years in question. This Mandan reduction of approximately three hundred continued through March 31, 1966, when the Pioneer’s last audited report by the ABC was prepared. After that date, the Pioneer terminated its affiliation with the ABC.
. The record reveals that during this period, the Mandan price was five cents per week less than the Bismarck price. The practice of charging less for carrier-delivered Tribunes in Mandan was curtailed on October 26, 1970, but a differential was continued in other communities. Except for the period of September 1966-September 1967, the price of the Tribune by carrier in Mandan was less than or equal to the price of the Pioneer by carrier in Mandan. The higher Pioneer price in the period of exception resulted from an increase in the Pioneer’s price, and the difference was five cents per week.
. The parties agree that “price discrimination” between different purchasers was proven. See Federal Trade Com. v. Anheuser-Busch, 363 U.S. 536, 549, 80 S.Ct. 1267, 4 L.Ed.2d 1385 (1960), where the Supreme Court held “a price discrimination within the meaning of [§ 2(a)] is merely a price difference.” They also agree, as they had stipulated at trial, that the interstate commerce requirements of the antitrust laws were met in this case. While we are satisfied that there was sufficient connection with interstate commerce under the Sherman Act, there is doubt as to whether third commerce requirements of § 2(a) of the Clayton Act, was met — i. e., that “either or any of the purchases involved in such discrimination [were] in commerce.” 15 U.S.C. § 13(a). See, e. g., Stickells, Federal Control of Business-Antitrust Laws § 126 (1972) ; Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J. 1155, 1166-1168 (1958). See also, Little-john v. Shell Oil Company, 483 F.2d 1140 (5th Cir.) (en banc), cert. denied, 414 U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (1973). Nonetheless, we decline to examine this question any further because it was not raised by the parties and its resolution either way would not affect our disposition of the appeal.
. The term “commodity” is not defined in the Act, but it is generally thought to include only tangible items of commerce and not services. See, Tri-State Broadcasting Co. v. United Press Internat’l, Inc., 369 F.2d 268, 270 n. 2 (5th Cir. 1966). See also, Stickells, Federal Control of Business-Antitrust Laws § 129, at 449-450 (1972) ; Rowe, Discriminatory Sales of Commodities in Commerce: Jurisdictional Criteria Under the Robinson-Patman Act, 67 Yale L.J., supra at 1163-1165. We recognize that the production of a newspaper requires and incorporates the services of a great number of people, but the fact remains that when finally published, the paper takes on a tangible form and it is bought and sold in the market place. As such, it is predominantly a tangible good and, thus, a “commodity” subject to the Act.
. In reaching its decision as to “like grade and quality,” the court appears to have applied the “market acceptance” standard. While that standard is not without support among the commentators, see, e. g., Cassa-dy & Grether, The Proper Interpretation of “like Grade and Quality” Within the Meaning of Section 2(a) of the Robinson-Patman Act, 30 S.Cal.L.Rev. 241 (1957), it was rejected by the Supreme Court in Federal Trade Com. v. Borden Co., 383 U.S. 637, 640-641, 86 S.Ct. 1092, 16 L.Ed.2d 153 (1966). There, the Court indicated the proper test is that of “physical comparison.”
. The court appears to have required that the Pioneer prove the Tribune’s price discrimination in fact had the prohibited effect on competition. Such a burden is not required under the statute. It is only necessary for the plaintiff to prove there is a “reasonable possibility” that the price discrimination may have the prohibited effect on competition. Federal Trade Com. v. Morton Salt Co., 334 U.S. 37, 47, 68 S.Ct. 822, 92 L.Ed. 1196 (1948). See, Utah Pie Co. v. Continental Baking Co., 386 U.S. 685, 701, 87 S.Ct. 1326, 18 L.Ed.2d 406 (1967) ; Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 957 (10th Cir. 1959), cert. denied, 363 U.S. 843, 80 S.Ct. 1608, 4 L.Ed.2d 1727 (1960). But see, Federal Trade Com. v. Morton Salt Co., supra, 334 U.S. at 55-61, 68 S.Ct. 822 (Jackson & Frankfurter, J.J., dissenting) and Moog Industries v. Federal Trade Commission, 238 F.2d 43, 61 (8th Cir. 1956), where the standard of “reasonable probability” was advanced.
. The theory that the price discrimination caused the loss in the Pioneer’s Mandan circulation is weakened by the evidence showing that the Tribune’s Mandan circulation remained stable after it terminated the price differential in October of 1970. The ABC’s report for the twelve-month period ending March 31, 1970, reveals that the Tribune’s Mandan “Carrier and Dealer” circulation was then 1,811, while the ABC’s report for the twelve-month period ending March 31, 1971, shows the circulation increased to 1,895.
. The court indicated it was considering the following factors in determining the award of attorneys’ fees: (1) the fact that plaintiff’s counsel had not had the benefit of a prior judgment or decree in a case brought by the government; (2) the standing at the bar of counsel on both sides; (3) the time spent by plaintiff’s counsel; (4) the magnitude and complexity of the litigation; (5) the responsibility undertaken by counsel; (6) the amount recovered; and (7) the court’s knowledge of the quality of counsel’s work done on the case in and out of court. See generally, Comment, Attorneys’ Fees in Individual and Class Action Antitrust Litigation, 60 Calif.L.Rev. 1656 (1972).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
POPE, Circuit Judge.
This was an action for the recovery of estate taxes levied and collected from the plaintiff “appellant with respect to the estate of Thomas McDonough. Thomas McDonough died September 13, 1948, just 14 months and 8 days after the death of his brother Peter. He succeeded, by right of survivorship, to property held by himself and Peter as joint tenants. This circumstance required the application of subdivision (c) of § 812 of the Revenue Code of 1939, 26 U.S.C.A. § 812 (c), headed “Property previously taxed”, and authorizes a deduction from the gross estate for property previously taxed as a part of the estate of a previous decedent, when such property was acquired by bequest, devise or inheritance, (including survivorship of a joint tenant) from a decedent who died within five years prior to the later decedent’s death. The dispute we must settle relates to the manner in which the value of this “property previously taxed” should be ascertained.
The facts of the ease are set forth in the decision of the district court, reported at 130 F.Supp. 923. They present an unusual and comparatively rare situation. This is unlike the ordinary case in which the prior estate completely discharges its obligations, including debts and estate taxes, out of the original corpus of the estate. In such case this net balance is what the successors receive by “bequest, devise, or inheritance” from such prior decedent. What makes this case difficult is that here the joint tenancy property passed to Thomas before the estate tax owed by Peter’s estate was paid, and the tax was paid after the death of Thomas by Thomas’ executors. One-half of the value of the joint property, or $577,971.92, was included in Peter’s gross estate for purposes of determining its estate tax liability, and, because this tax was not paid out of Peter’s estate, all its gross value was included and identified in Thomas’ estate as having been received from Peter. Therefore, appellant asserts, the amount of property previously taxed within five years which was entitled to be deducted from the gross estate for estate tax purposes in the estate of Thomas was this $577,971.92. They say that this is precisely what § 812 provides. That section, as pertinent here, is as follows:
“§ 812. Net estate. For the purpose of the tax the value of the net estate shall be determined, * * * by deducting from the value of the gross estate—
* * * * * i
“(c) Property Previously Taxed. An amount equal to the value of any property (1) forming a part of the gross estate situated in the United States of any person who died within five years prior to the death of the decedent, * * * where such property can be identified as having been received by the decedent * * * from such prior decedent, by gift, bequest, devise, or inheritance, or which can be identified as having been acquired in exchange for property so received. * * * This deduction shall be allowed only where * * * an estate tax imposed under this chapter or any pri- or Act of Congress, was finally determined and paid by or on behalf of * * * the estate of such pri- or decedent, * * * and only in the amount finally determined as the value of such property in determining the value of * * * the gross estate of such prior decedent, and only to the extent that the value of such property is included in the decedent’s gross estate, and only if in determining the value of the net estate of the prior decedent no deduction was allowable under this subsection, section 861(a) (2), or the corresponding provisions of any prior Act of Congress, in respect of the property or property given in exchange therefor.
*****
“Where a deduction was allowed of any mortgage or other lien in determining the * * * estate tax of the prior decedent, which was paid in whole or in part prior to the decedent’s death, then the deduction allowable under this subsection shall be reduced by the amount so paid. * * *
*****
«* * * Where the property referred to in this subsection consists of two or more items the aggregate value of such items shall be used for the purpose of computing the deduction. * * * ” (italics ours.)
In determining the identified “property previously taxed”, the Government made certain deductions from the gross estate valuation previously mentioned. These included $141,592.71, that part of Peter’s estate tax attributable to the joint tenancy property, and $49,263.81, representing inheritance taxes on the same property. The Government thus claimed that the amount of the deduction for “property previously taxed” should be a net amount after subtracting these items from the total “value of such property * * * included in the decedent’s gross estate”.
Appellant challenges this procedure for calculating a “net amount” by pointing to the text of § 812, and noting that it has no language which, in so many words, authorizes the Government’s mode of calculation. Thus attention is called to the language we have italicized in the above quotation of the section. The reference is to values included in the gross estate. And it is said there is no room for implying an authorization for reduction to a net amount, by subtracting the estate and inheritance taxes mentioned, as the one express provision for a reduction of the “deduction allowable under this subsection” is that part which reads: “Where a deduction was allowed of any mortgage or other lien in determining * * * the estate tax of the prior decedent, which was paid in whole or in part prior to the decedent’s death, then the deduction allowable under this subsection shall be reduced by the amount so paid.” Clearly enough this last quoted language does not apply here, both because these taxes were not deducted “in determining the * * * estate tax of the prior decedent,” and they were not paid “prior to the decedent’s death”.
Both positions find support in the authorities. Appellant finds support in Commissioner of Internal Revenue v. Garland, 1 Cir., 136 F.2d 82, 83. That also was what might be called an exceptional case in that certain obligations of the prior estate, including estate and inheritance taxes, and debts, were paid not out of the corpus of the prior estate, but out of income of that estate prior to the death of the second decedent. In arriving at the value of the property previously taxed for the purpose of computing the deduction allowed by the then revenue code section (which was in substance the same as the section here considered), the Commissioner undertook to deduct these debts and obligations of the prior decedent’s estate from its gross value. The taxpayer there petitioned the Board of Tax Appeals for a redetermination making the same argument which appellant presents here, and was sustained by the Board. In reviewing the Board’s decision, the court there said :
“In such a situation, § 303(a) (2) provides, with qualifications not now relevant, that the present decedent’s estate is entitled to a deduction in an amount equal to the value of the identified property as it stood in the gross estate of the prior decedent.
“In effect what the Commissioner asks us to do is to go beyond the permissible limits of statutory interpretation and to write into § 303 (a) (2) a further proviso that in no event may the allowable deduction exceed the interest of the present decedent in the estate of the prior decedent as of the date of the latter’s death. Neither in the wording of the statute nor in its legislative history do we find any support for the Commissioner’s assertion that the statute was never intended to place the second decedent in a better position from an estate tax viewpoint than would have been the case had the obligations of the first estate been satisfied in full by liquidation of property included in the gross estate instead of being satisfied in whole or in part out of income earned by the estate during administration. Obviously, Edith’s estate is better off by reason of the fact that Harry’s estate after his death earned income which could be applied to satisfy the obligations of the estate. If there had been no such income, part of the real estate or securities would have had to be sold to satisfy the tax and other obligations of Harry’s estate and thus would not have been found in Edith’s estate as identifiable property derived by devise or bequest from the prior estate. Insofar as Edith’s estate gains any advantage under the circumstances it is an advantage resulting from the unambiguous language of § 303(a) (2).”
The same general view was expressed by Judge Hutcheson in dissenting from the majority opinion in Bahr v. Commissioner, 5 Cir., 119 F.2d 371. In that case, as here, the estate taxes on the pri- or estate had not been paid when the second decedent died. They were paid by the latter’s executors. The majority of the court took the view, which the Government has presented here, that the “property previously taxed” deduction should be valued by the net undistributed estate of the first decedent, that is to say, the same amount that would have been arrived, at had administration. of the first estate been completed and .the estate taxes and other charges paid out of the corpus before the assets were turned over to the successor under the will. Protesting this, Judge. Hutcheson said, at page 377: “Where the words of a taxing act have a sensible meaning they are controlling. They must be followed rather than a supposed intent not expressed in them. * * *" It is' to be noted that in its later case, Thomas v. Earnest, 5 Cir., 161 F.2d 845, the court which had decided the Bahr case, supra, modified the rule of its former decision by holding that in a case of this character, the value- of property previously taxed should not be reduced by the amount of the federal tax due on the prior estate. The court reached that conclusion through its interpretation of that part of § 812(c) which is last quoted above and which authorized a reduction to the extent of deductions allowed “in determining * * * the estate tax of the prior decedent,” and because estate taxes are not allowed as a deduction in determining the estate tax. The Thomas case, at least in part, supports the position of the appellant here.
The Government’s position finds full support in Central Hanover Bank & Trust Co. v. Commissioner, 2 Cir., 159 F.2d 167, 169. In that case a husband died leaving his wife as executrix and sole legatee. She died approximately four years later. Within six months after the husband’s death, the personal property of his estate was distributed to the wife as sole legatee. The debts of the husband’s estate were then paid by the wife who used her own funds for that purpose. In calculating the value of the property previously taxed, the Commissioner allowed only that percent of the assets distributed to the wife which represented the value over and above the debts of the husband. The taxpayer urged the court to follow Commissioner of Internal Revenue v. Garland, supra. The court recognized that the language of the statute left something to be desired in the way of a definite provision to govern this precise case. The court suggests that the precise point is not covered by express language by saying: “Had Congress been aware of such a possibility, it can scarcely be doubted that it would have provided against it.” The court appeared to be of the impression that the framers of the section must have had in mind the accomplishment of the same result whether the first estate be liquidated and its debts and estate taxes paid from the corpus of that estate, or whether the devisee or legatee under the first estate paid the debts and estate taxes from income received from the first estate pending administration, or whether those debts and taxes were paid out of other resources either by such devisee or legatee herself, or by the executrix of her estate. The court refused to make the same literal application of the language of the section that had been adopted by the first circuit in Commissioner of Internal Revenue v. Garland, saying, 159 F.2d at page 169: “There is no more likely way to misapprehend the meaning of language — be it in a constitution, a statute, a will or a contract — ¡than to read the words literally, forgetting the object which the document as a whole is meant to secure. Nor is a court ever less likely to do its duty than when, with an obsequious show of submission, it disregards the overriding purpose because the particular occasion which has arisen, was not foreseen.”
We have come to the same conclusion of the Second Circuit in Central Hanover Bank, supra. In doing so, we need not say that this is a case in which the assumed purposes of Congress can be read into the statute where appropriate literal language is missing. The court in the Central Hanover Bank case noted that the section recites that the deduction for property previously taxed is permissible “where such property can be identified as having been received by the decedent * * * from such prior decedent”. Referring to this, the court said: “The question is whether by ‘identity’ the statute means the physical identity of the asset, or the identity of the legatee’s financial interest in it. * * * [W]hen she ‘received’ the shares * * * the only interest ‘bequeathed’ to her was that proportion of their value which was free of the debts then still unpaid”. In thus holding that the property which can be identified as having been received by the decedent from such prior decedent was the net amount received from that estate, we think that the court arrived at a correct solution of the problem and one which we choose to adopt and follow.
We note here one difference between this and the other cases cited. Here Thomas took by succession as a joint tenant. What he thus received, while subject to, and chargeable with the estate tax, § 827, I.R.C.1939, 26 U.S.C.A. § 827, and the inheritance tax, Cal.Rev. and Tax.Code, § 13671, is not chargeable with other claims against Peter’s estate. Zeigler v. Bonnell, 52 Cal.App.2d 217, 126 P.2d 118. The language used by Judge Hand, quoted above from the Central Hanover Bank case, refers to the value free from the “debts” then still unpaid. He said: “It is of no consequence whether the debts were liens in a formal sense upon the husband’s assets; it is enough that, if the wife did not pay them, the creditors could follow them and sell them on execution.” Here, in applying the rationale of the Central Hanover Bank case, we must substitute for the general word “debts”, the words “estate and inheritance taxes”, as they are the only items of charge against Peter’s estate collectible from the joint property which passed to Thomas.
Although we approve the decision of the district court in adopting the rule of the Central Hanover Bank case, yet we are unable to ascertain from the record before us whether the court took into account this distinction. Its opinion states [130 F.Supp. 924]: “The Commissioner redetermined the tax and allowed a deduction of only $373,894.78, which is the value of all of Peter’s gross estate less all the estate taxes, state inheritance taxes, deductions, legacies and claims made in the Estate of Peter McDonough.” The record does not make clear to us whether, in arriving- at the figure mentioned, the Commissioner did so by subtracting from the gross estate valuation claims which are not chargeable against the joint property. For this reason we remand the case to the court below with directions to permit the parties to stipulate, if they can, as to the proper amount of the allowable deduction for “property previously taxed”, computed in the manner here held proper, and if such stipulation be not made, to proceed to a determination of such amount.
Subject to the directions for further proceedings here ordered, the judgment is affirmed.
. The phraseology of § 812(c) is “ * * * ■where such property can be identified as having been received by the decedent * * * from such prior decedent by gift, bequest, devise, or inheritance”,
. Bloedorn v. United States, 116 F.Supp. 133, 126 Ct.Cl. 591, reaches the same conclusion.
. This refers- to the possibility of the legatee under the -will of the first decedent deliberately increasing the deduction allowable by not liquidating the first estate or paying its debts from its corpus but rather taking all the assets and paying the debts from other sources.
. The 1954 Code, § 2013, 26 U.S.C.A. § 2013, deals with this problem in a different and more explicit manner. See also U. S. Code Congressional and Administrative News, 1954, Vol. 3, p. 5106.
. These varying views are discussed in an illuminating article on “The lístate Tax Deduction for Property Previously Taxed”, 53 Col.L.K. 761 (1953), by liarry J. Kudick, who calls this section “the most complex and confounded provision of the entire federal estate tax law.”
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
BAZELON, Chief Judge:
In an earlier appeal, 482 F.2d 786 (1973), Morgan claimed, inter alia, that the trial court abused its discretion in denying his motion to withdraw his guilty pleas. We remanded the record because we found it inadequate to resolve Morgan’s contention. On remand, additional information has been brought to the attention of the district court which has moved it to indicate that if permitted by this court it would reconsider its denial of sentencing under the Youth Corrections Act, and appellant’s motion to withdraw his guilty pleas. Accordingly, appellant now moves:
that the mandate on remand to the District Court be amended and enlarged to permit the District Court to reconsider its denial of sentencing under the Youth Corrections Act, and if upon reconsideration, Youth Act is denied, to permit [the] District Court to entertain a motion by appellant to withdraw his guilty pleas and to enter a plea of not guilty by reason of insanity.
We grant this motion subject to the limitations stated herein.
I
A detailed description of the facts in this case is set forth in the opinion in the earlier appeal. Briefly, Morgan was indicted on three counts of first degree murder for slaying his wife, baby and mother-in-law. Initially he indicated his intention to rely on a plea of insanity supported by a report from Saint Elizabeths Hospital stating that on the day of the offense “[Morgan] was suffering from a mental disease [Schizophrenia, Chronic Undifferentiated Type] which substantially affected his mental and emotional processes and substantially impaired his behavior controls and the alleged offenses, if committed by him, were the products of his mental condition.” Shortly after this report was filed, however, the prosecutor informed the court that the examining psychiatrist had “changed his opinion,” and desired to study appellant further. Subsequently, another report was filed by the same psychiatrist to the effect that appellant was “without mental disease now and at the time of the alleged crime.”
In light of the revised report, and the fact that appellant would soon reach his twenty-second birthday, thereby making him ineligible for the Federal Youth Corrections Act, he pled guilty to three counts of first degree murder. Thereupon, he was committed to the Medical Center for Federal Prisoners at Springfield, Missouri, for observation and evaluation under section 5010(e) of the Youth Act. The report filed pursuant to that evaluation indicated that appellant was suffering from “schizophrenic reaction, chronic undifferentiated type” —the same diagnosis as indicated in the initial Saint Elizabeths report—and advised against youth sentencing, in part because of the severity of appellant’s mental illness.
On the basis of this report, appellant moved, before sentencing, to withdraw his guilty pleas so that he might raise an insanity defense. The court denied his motion. It then expressly relied upon the recommendation of the 5010(e) report to impose an adult sentence of twenty years to life.
On appeal, we noted the extremely “questionable circumstances surrounding [appellant’s mental] examinations [at Saint Elizabeths],” and therefore remanded the record for a “thorough hearing” before deciding any issues. Four months later appellant filed the instant motion. The government has filed no opposition. We are advised by appellant’s counsel that appellant was originally sentenced to the Medical Center for Federal Prisoners at Springfield pursuant to the trial court’s “direct-five]” that appellant receive “treatment.” Within one year, however, appellant was transferred from the Medical Center to the federal penitentiary at Terre Haute because the Medical Center found “his overall adjustment improved considerably and he has reached a point in treatment where he needs to try those behaviors which he has learned through therapy in different situations at another institution. His judgment has improved considerably and his overall performance has greatly increased.”
II
Appellant requests: (1) that the district court be allowed to reconsider its denial of a youth sentence; and (2) that if upon reconsideration the court still denies youth sentencing, it be allowed to reconsider appellant’s motion to withdraw his guilty pleas and enter a plea of insanity. We grant appellant’s motion in so far as it allows the district court to reconsider these matters. At this time, however, there is no need for appellant to specify the order in which he will press his motions in the court below. We assume that the district court would prefer that appellant not be bound by a particular choice until he has the opportunity to weigh and consider the information developed at the hearing ordered in our earlier opinion.
From all that presently appears, if the Saint Elizabeths psychiatrist had not “changed his opinion,” the testimony in support of appellant’s insanity defense would have been uncontradicted. Since the hearing we ordered will disclose whether the psychiatrist’s “change [of] opinion” was the product of permissible or impermissible factors, it is essential to appellant’s decision whether to move first for reconsideration of his sentence or for withdrawal of his pleas. Of course, neither this court nor the district court would seek to influence appellant’s choice, but only to insure that it is a knowing and intelligent one.
So ordered.
. This report was prepared by the same psychiatrist who had examined Morgan at the Youth Center only one year earlier, and who at that time found that “rehabilitation of the man would require many years. . . . [He presents] a very difficult problem as far as treatment and prognosis are concerned.”
. In such circumstances, the government frequently refrains from actively contesting the insanity plea. Bee D. Chambers, A Report on John Howard Pavillion at Saint Elizabeths Hospital, June 4, 1969, at 8 (“No doctor . . . could remember a single case in which the U. S. Attorney’s office had contested a hospital finding of mental illness and ‘productivity.’ ”) ; Pugh, The Insanity Defense In Operation: A Practicing Psychiatrist Views Durham and Brawner, 1973 Wash.U.L.Q. 87, 89 (“If [Saint Elizabeths] reports that the defendant was insane, the prosecution ceases to contest the issue.”).
. See 482 F.2d at 793.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HEANEY, Circuit Judge,
with whom LAY, BRIGHT and WEBSTER, Circuit Judges, join.
This matter comes before the Court en banc on a petition for rehearing. The sole issue is whether the trial court erred in requiring the parties to a collective bargaining agreement to submit a mid-contract wage dispute to binding arbitration.
On August 8, 1968, the Union entered into a collective bargaining agreement with the then owner of the business. Article XX of the agreement provides:
Section 1. This agreement shall remain in full force and effect until August 8, 1973, and from year to year thereafter, unless sixty (60) days prior to August 8, 1973, or any year thereafter, the Union notifies the Employer or the Employer notifies the Union of its desire to terminate or modify this Agreement. This notice must be written.
Section 2. Either the Employer or the Union shall have the right as of August 8, 1971, to reopen for negotiation on the subject of wages and seniority only, upon either party giving written notice to the other at least sixty (60) days prior to such reopening date. In the absence of such notice, the existing conditions shall continue to remain in effect until the expiration date of the Agreement.
Thereafter, most of the assets of the business were sold to the Bormon Investment Company, and that firm became obligated to abide by the terms of the agreement as a successor employer.
The Union and the Employer exercised their option to reopen the contract on wages and seniority by giving a timely notice. The parties were unable to reach an agreement on either issue. The Union demanded that the unresolved issues be submitted to arbitration. The Employer refused on the grounds that it was not obligated to arbitrate these issues. The Union then brought an action seeking to require the Employer to submit the dispute to arbitration.
The agreement generally establishes wage rates and working conditions. It specifically provides:
ARTICLE I.
Purpose
Section 1. It is the intent and purpose of the parties hereto, to set forth herein their basic agreement covering wages, hours of work, and conditions of employment to be observed between the parties hereto, and to provide procedures for the prompt, and equitable adjustment of all grievances and disputes arising between the Employer and the Union or any employee or employees covered by this Agreement.
* * * * * *
ARTICLE XIII.
No Strike or Lockout
Section 1. There shall be no strikes, stoppages, slowdowns, or concerted activity interrupting or interfering with production, or lockouts, for any reason whatsoever during the life of this Agreement.
It also contains a grievance and arbitration clause which reads as follows:
ARTICLE XIV.
Grievance and Arbitration
Section 1. It is hereby agreed that the Union may have one (1) duly accredited representative to be known as the “Steward” in each plant to be selected by the Union. It shall be his or her duty to receive complaints and to present them to the management. * * *
Section 2. In order to determine the existence and/or validity of a grievance, the Steward shall notify the Plant Manager or his designated representative of the charge by an employee, and as soon as practicable, the Steward and the Employer representative shall discuss the matter with the view of resolving the issue if possible. * * *
Section 3. If the grievance is not settled in the manner set forth in Section 2 within two (2) working days after the Steward has first discussed it with the Plant Manager, it shall be reduced to writing and considered between the Business Agent and Company representatives.
Section U. If not settled within five (5) working days as set forth in Section 3, the matter shall be referred to arbitration.
Section 5. Each party shall select an arbitrator [.] * * '* Should there be no agreement between the two arbitrators as to the third arbitrator, application shall be made to the Federal Mediation and Conciliation Service in Washington, D. C., for a panel of five (5) nominees. The parties shall alternate in striking two names each and the remaining shall be the impartial arbitrator. The arbitrator shall not have the power to add to, subtract from, or change the terms of the contract. The decision of a majority of the panel shall be final and binding. * * *
* * * * * *
ARTICLE XVIII.
Savings Clause
Section 1. If any law now existing or hereinafter enacted, or any proclamation, regulation, or edict of any state or national agency shall invalidate any portion of this Agreement, the entire Agreement shall not be invalidated, and either party hereto, upon notice to the other, may reopen for negotiation the invalidated portion, and if agreement thereon cannot be reached, within thirty (30) days, either party may submit the matter to arbitration as herein provided.
The matter was submitted to the trial court on cross-motions for summary judgment. The court initially determined that the question of arbitrability was for it to decide. It then held, on the authority of the United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), that the dispute was arbitrable because no forceful evidence of an intent or purpose to exclude the dispute from arbitration was evidenced.
The Employer argues on appeal: (1) that they are under no obligation to arbitrate any wage and seniority issues; (2) that their only obligation under the agreement is to negotiate on the two issues, and they have fulfilled that obligation; (3) that arbitration is only available to resolve employee grievances, and then only after such grievances have been processed in accordance with Sections 1, 2, 3 and 4 of Article XIV of the agreement; and (4) that, here, no grievance exists, and that the dispute between the Employer and the Union was not processed in accordance with the above sections.
The trial court correctly held that the issue of arbitrability was one for it to decide. John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964); Drake Bakeries v. Local 50, 370 U.S. 254, 82 S.Ct. 1346, 8 L.Ed.2d 474 (1962).
The trial court also properly decided that the midterm contract dispute between the Employer and the Union over wages and seniority is an arbitrable one.
Warrior teaches:
The Congress, however, has by § 301 of the Labor Management Relations Act, assigned the courts the duty of determining whether the reluctant party has breached his promise to arbitrate. For arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. Yet, to be consistent with congressional policy in favor of settlement of disputes by the parties through the machinery of arbitration, the judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or agreed to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
* * -X- * -X- -X-
* * * In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail, particularly where, as here, the exclusion clause is vague and the arbitration clause quite broad. Since any attempt by a court to infer such a purpose necessarily comprehends the merits, the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement, even through the back door of interpreting the arbitration clause, when the alternative is to utilize the services of an arbitrator.
United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. supra at 582, 584-585, 80 S.Ct. 1347, 1353, 1355. Accord, Local Union No. 4, IBEW, AFL-CIO v. Radio Thirteen-Eighty, Inc., 469 F.2d 610 (8th Cir. 1972) ; Builders Ass’n of Kansas City v. Greater Kansas City Lab. D.C., 326 F.2d 867 (8th Cir.), cert. denied, 377 U.S. 917, 84 S.Ct. 1182, 12 L.Ed.2d 186 (1964).
We are convinced, as was the trial court, that it cannot be said with positive assurance that the arbitration clause is not susceptible to an interpretation that covers the asserted dispute. Although the “Grievance and Arbitration” clause speaks of employee grievances, the “purpose” clause of the agreement asserts that the agreement is intended to provide “procedures for the * * * equitable adjustment of all grievances and disputes arising between the Employer and the Union * * * ”. If the contract is to be read as a whole, as it must, Montana-Dakota Utilities Co. v. N. L. R. B., 455 F.2d 1088 (8th Cir. 1972), effect should be given to this language. The savings clause speaks of submitting matters other than grievances to “arbitration as herein provided,” thus negating an intent to limit the arbitration clause in the manner suggested by the appellant. Moreover, the collective bargaining agreement includes an absolute “no strike, no lockout” clause. This inclusion lends support to the view that the collective bargaining agreement was intended to completely effectuate the federal policy of promoting industrial stabilization through collective bargaining.
In summary, we not only fail to find forceful evidence of a purpose to exclude the mid-contract wage dispute from arbitration, but we find evidence of a contrary purpose. The Warrior rule is thus triggered.
Concern has been expressed that the effect of this opinion will be to make midterm wage disputes in multi-year contracts subject to arbitration whenever a collective bargaining agreement contains an arbitration and a no-strike clause. We find no cause for such concern. The parties to a collective bargaining agreement can, by plain language, exclude such dispute from arbitration. They can lift the “no strike, no lockout” pledge in such circumstances, see, United Steel Workers v. Warrior and Gulf Navigation Co., supra, n. 5, 579, 80 S.Ct. 1347, or permit the pledge to remain in effect and require the dispute to be resolved by bargaining or not at all. All that is necessary is that the parties make their intent to exclude arbitration clear. They have not done so here.
We find no merit to the Employer’s contention that the judgment against three minor defendants should be set aside because it was imposed on them without the prior appointment of a guardian ad litem. The first exception to Rule 17(b), 28 U.S.C., permits a partnership to be sued in its common name for the purpose of enforcing against it a substantive right existing under the laws of the United States. The right to arbitrate is such a right.
Moreover, the trial court properly found that the minors’ interests were adequately protected by the presence of their parents as defendants. See, Westcott v. United States Fidelity and Guaranty Company, 158 F.2d 20 (4th Cir. 1946); Rutland, Administrator v. Sikes, et al., 203 F.Supp. 276 (E.D.S.C.), aff’d, 311 F.2d 538 (4th Cir. 1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1871, 10 L.Ed.2d 1053 (1963).
The judgment below is affirmed by an equally divided court.
. Initially, a divided panel affirmed the District Court holding that the parties were required to submit the dispute to binding arbitration. Laundry, Dry Cleaning and Dye House Workers International Union, etc. v. Robert M. Mahoney et al., No. 72-1731, filed August 16, 1973 (unpublished).
. See, 85 Harv.L.Rev. 636 (1972) ; Griswold, The Supreme Court 1959 Term, 74 Harv.L.Rev. 81, 181 (1960) ; 59 Mich.L.Rev. 454 (1961) ; 45 Mimi.L.Rev. 282 (1960) ; The New Federal Law of Labor Injunctions, 79 Yale L.J. 1593 (1970).
. In Hughes Tool Co., 36 Lab.Arb. (1960), an arbitrator reached a result generally inconsistent with that reached here. The arbitrator stated:
Both parties referred in their respective arguments to the recent decisions of the United States Supreme Court in * * * American Manufacturing Co., [and] Warrior * * *. Those cases all dealt, however, with the power of federal courts, rather than with the discretion of arbitrators. Construing those cases in a way most favorable to the Union here involved would lead at most to the conclusion that if the parties had litigated this issue in federal court instead of submitting it to private arbitration, the court would have ruled that the issue was arbitrable ; or that, conversely, if the arbitration decision in this case were in favor of arbitrability, the court would decline to vacate it on review.
Id. at 1129.
. * * * The present federal policy is to promote industrial stabilization through the collective bargaining agreement. * * *
Complete effectuation of the federal policy is achieved when the agreement contains both an arbitration provision for all unresolved grievances and an absolute prohibition of strikes, the arbitration agreement being ' the “quid pro quo” for the agreement not to strike. Textile Workers v. Lincoln Mills, 353 U.S. 448, 455, 77 S.Ct. 912, 1 L.Ed.2d 972.
United Steel Workers v. Warrior and Gulf Navigation Co., 363 U.S. 574, 578, 80 S.Ct. 1347, 1350, 4 L.Ed.2d 1409 (1960).
. The demands of the Steel Workers trilogy were recently reiterated in Gateway Coal Company v. United Mine Workers of America, et al., 414 U.S. 368, 94 S.Ct. 629, 38 L.Ed.2d 583 (January 8, 1974), in which a general arbitration clause was held applicable to safety disputes.
The following cases are distinguishable on their facts: West Coast Telephone Co. v. Local U. No. 77, Int. Bro. of Elec. Wkrs., 431 F.2d 1219 (9th Cir. 1970) ; Federal Labor Union No. 18887 v. Midvale-Heppenstall Co., 421 F.2d 1289 (3rd Cir. 1970) ; Radio Corp. of Am. v. Association of Scientists & Pro. Eng. P., 414 F.2d 893 (3rd Cir. 1969). In each case, the collective bargaining agreement made it clear that the issue the Union sought to arbitrate was, in fact, non-arbitrable. dee also, Firestone Tire and Rubber Co. v. International Union, Etc., 476 F.2d 603 (5th Cir. 1973) ; Ford v. General Electric Co., 395 F.2d 157 (7th Cir. 1968).
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
MANION, Circuit Judge.
In the early 1970’s, two Wisconsin towns hired Scotty Smith Construction Company (“Scotty”) to build an incinerator to burn their garbage. That action spawned a series of events that eventually resulted in a lawsuit that now has been in the federal courts for almost ten years. This is the suit’s second appearance before this court. See Fidelity & Deposit Co. of Maryland v. Sheboygan Falls, 713 F.2d 1261 (7th Cir.1983). Unfortunately, we are unable to put the suit to rest.
I.
When the towns hired Scotty to build the incinerator, they required Scotty to post a performance bond for $710,000, the amount of the contract price. Fidelity and Deposit Company of Maryland (“Fidelity”) was the bond surety. To acquire the bond, Scotty agreed to indemnify Fidelity if Fidelity had to pay on the bond. The indemnity agreement provided, among other things, that Scotty would pay any litigation expenses, including attorneys’ fees, that Fidelity incurred in paying the bond.
Scotty subcontracted with Midwesco, Inc. to build the incinerator’s pollution-control system. Midwesco had provided Scotty with a bond issued by United States Fidelity and Guarantee Company (“USF & G”). Under that bond, Midwesco agreed to indemnify Scotty for any costs Scotty incurred (including attorneys’ fees) that might arise from Midwesco’s performance of the subcontract.
Midwesco obtained the scrubber for the pollution-control system from Krebs Engineers and installed it in the system. Unfortunately, the scrubber did not scrub as well as it was supposed to. Emissions from the incinerator exceeded the maximum levels allowed by Wisconsin law, and also exceeded the limits set by the contract between Midwesco and Krebs. Midwesco, Krebs, and Scotty made efforts to get the scrubber to perform up to snuff, but to no avail. The towns had paid all but about $38,000 on the contract with Scotty, and were stuck with an incinerator they could not use.
Understandably perturbed by this turn of events, the towns asserted that the scrubber’s failure was a breach of contract by Scotty, and notified Fidelity that it must pay under the bond. A few months after the towns notified Fidelity of their claim, Fidelity filed a declaratory judgment action against the towns, Scotty, Midwesco, Krebs, and several other defendants. The complaint sought a declaration that Scotty had not breached the contract and that Fidelity was thus not liable to the towns on the bond. Alternatively, the complaint sought a declaration that if Fidelity was liable on the bond, Scotty was liable to Fidelity under the indemnity agreement.
Soon after Fidelity filed its complaint, other claims, cross-claims, and counterclaims began to fly amongst a number of parties. We mention only those claims relevant here. The towns sued Scotty, Mid-wesco, and Krebs for breach of contract. Scotty sued the towns for the $38,000 contract balance, and Midwesco, USF & G, and Krebs for indemnity. Midwesco sued the towns and Scotty for the amounts they owed Midwesco for its work, and also sued Krebs for breach of contract, negligence, and products liability. Finally, Krebs sued Midwesco for the balance due on their contract.
After a trip to this court, where we reversed the district court’s grant of summary judgment against the towns, see 713 F.2d at 1268-72, the district court set the case for a jury trial. During the first day of the trial, before any evidence was taken, the parties settled all claims involving the towns. This left Scotty, Midwesco, and Krebs—mainly Midwesco and Krebs—to fight among themselves to determine who would ultimately bear the costs caused by the scrubber’s failure. Those issues were tried to the court.
After trial, the district court held that Midwesco had to reimburse Scotty for attorneys’ fees that Fidelity had incurred and that Scotty had reimbursed to Fidelity under Scotty’s and Fidelity’s indemnification agreement. The district court also held, however, that Krebs had breached its contract with Midwesco, as well as certain implied and express warranties. Applying Wisconsin law, the court held that Midwes-co was entitled to consequential damages from Krebs, despite a consequential damages disclaimer in the contract. The court awarded Midwesco: 1) the out-of-pocket expenses it incurred in attempting to solve the scrubber problem; 2) Fidelity’s attorneys’ fees that Scotty had reimbursed to Fidelity and that Midwesco had reimbursed to Scotty; and 3) thirty-three percent of Midwesco’s own attorneys’ fees. Both Midwesco and Krebs have appealed.
II.
In its cross-appeal, Krebs challenges the damages the district court awarded to Mid-wesco. Krebs first contends that the district court erred by awarding Midwesco any consequential damages at all. Before deciding that issue, however, we must determine what state’s law to apply. The district court applied Wisconsin law; on appeal Krebs argues that California law applies because the contract between it and Midwesco specifically provided that California law would govern the contract.
Wisconsin courts have recognized the general rule that parties to a contract may select the law governing their contract. See Bush v. National School Studios, Inc., 139 Wis.2d 635, 407 N.W.2d 883, 886 (Wis.1987) (citing cases); see generally Restatement (Second) of Conflicts of Laws §§ 186 & 187 (1971); E. Scoles & P. Hay, Conflict of Laws § 18.1 (1984). But Krebs has waived any dependence on California law. In arguing the consequential damages issue in the district court, Mid-wesco relied solely on Wisconsin law. Krebs’ briefs below did not assert that California law controlled or cite any California cases. The only time Krebs mentioned California law was in noting that Wisconsin and California law were substantially the same, so that the district court’s choice between Wisconsin or California law was “immaterial.” Krebs cannot blame the district court for not digging up the California law it failed to cite, particularly after telling the court that the choice of law was “immaterial.” It is not the trial judge’s job to do the parties’ work for them. See International Administrators v. Life Ins. Co., 753 F.2d 1373, 1377 n. 4 (7th Cir.1985). Krebs took the risk that in applying the Wisconsin law the parties did cite, the district court would reach a different result than it might have had it applied California law. For better or worse, Krebs must live with the district court’s choice of Wisconsin law. Cf. Muslin v. Frelinghuysen Livestock Managers, 777 F.2d 1230, 1231 n. 1 (7th Cir.1985).
The contract between Krebs and Midwes-co provided that Midwesco’s exclusive remedy for any breach by Krebs was repair or replacement of defective parts. The contract also specifically provided that Krebs would not be liable for any consequential damages. The Uniform Commercial Code, as adopted in Wisconsin, allows parties to limit a buyer’s remedies and exclude consequential damages. Wis.Stat.Ann. § 402.719 (West 1964 & Supp.1987); see Murray v. Holiday Rambler Corp., 83 Wis.2d 406, 265 N.W.2d 513, 517, 519-20 (Wis.1978). But “[wjhere circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may be had as provided in [the UCC].” Wis.Stat. Ann. § 402.719(2). The district court held that since replacing any parts, or even the entire scrubber, could not cure the scrubber problem, the exclusive repair or replace remedy failed of its essential purpose. Therefore, the court disregarded the limitations of remedies in the contract and awarded Midwesco consequential damages.
Krebs does not contest the district court’s finding that the exclusive contract remedy failed of its essential purpose. Krebs does argue, though, that the district court erred by refusing to give effect to the consequential damages disclaimer. According to Krebs, a consequential damages disclaimer should be considered separately from a clause limiting remedies to repair or replacement. Even if the limited remedy fails of its essential purpose, the consequential damages exclusion should remain in effect unless no other effective remedy (for example, incidental damages, Wis.Stat. Ann. § 402.715(1) or difference-in-value damages, Wis.Stat.Ann. § 402.714(2)) remains.
Other courts have given effect to consequential damages disclaimers even when exclusive remedies failed of their essential purposes. E.g., Chatlos Systems v. National Cash Register Corp., 635 F.2d 1081, 1085-86 (3d Cir.1980); S.M. Wilson & Co. v. Smith International Inc., 587 F.2d 1363, 1374-76 (9th Cir.1978). But whatever the merits of Krebs’ argument as an original matter, it is not Wisconsin law. In Murray v. Holiday Rambler Corp., supra, the Wisconsin Supreme Court held:
Where the exclusive limited remedy of the contract fails of its essential purpose... the buyer is entitled to invoke any of the remedies available under the UCC. This includes the right to recover consequential damages under sec. 402.715.
Thus, although an express warranty excludes consequential damages, when the exclusive contractual remedy fails, the buyer may recover consequential damages... as though the limitation had never existed.
265 N.W.2d at 525, 526 (citations omitted).
Krebs argues that Murray is factually distinguishable from this case. The contract between Krebs and Midwesco specifically excluded consequential damages; the contract in Murray contained a clause excluding all remedies except the exclusive contract remedy without specifically mentioning consequential damages. But a clause excluding all remedies does exclude consequential damages. Also, as we have seen, Murray was quite explicit in its holding concerning consequential damages. And in reaching that holding, the Murray court cited with approval a case allowing plaintiffs to recover consequential damages despite a clause excluding all remedies except the exclusive remedy, Ehlers v. Chrysler Motor Corp., 88 S.D. 612, 226 N.W.2d 157 (1975) and cases allowing plaintiffs to recover consequential damages despite clauses specifically excluding consequential damages, e.g., Koehring Co. v. A.P.I., Inc., 369 F.Supp. 882 (E.D.Mich.1974); Adams v. J.I. Case Co., 125 Ill.App.2d 388, 261 N.E.2d 1 (1970). See Murray, 265 N.W.2d at 526; cf. S.M. Wilson & Co., 587 F.2d at 1374 (noting that Adams and Koehring Co. belong to a family of cases supporting the proposition that a limited remedy’s failure “does remove from the contract the bar to the recovery of consequential damages”). Murray’s explicit holding, its reasoning, and the cases it cited lead us to conclude that the Wisconsin courts would find the distinction Krebs argues to be insignificant, and would award consequential damages to Midwesco, if proved.
Krebs also cites Phillips Petroleum Co. v. Bucyrus-Erie Co., 131 Wis.2d 21, 388 N.W.2d 584 (Wis.1986) to support its argument that consequential damages are available when an exclusive remedy fails only if no other effective remedy remains. In Bu-cyrus, the Wisconsin Supreme Court allowed a plaintiff to collect consequential damages when the limited repair and replacement remedy failed. Although Bucy-rus referred to “the underlying philosophy of the Uniform Commercial Code that there be at least a fair quantum of remedy for breach of obligations,” the court emphasized that “[t]he essential purpose of any damage award is to make the injured party whole,” and equated an effective, or “minimum quantum of remedy” with making the injured party whole. Here, the limited remedy failed of its essential purpose; replacing or repairing the scrubber would not have solved the incinerator problem. This failure exposed Midwesco, the innocent party, to liability and litigation expense, and Krebs could make Midwesco whole only by compensating it for that liability and expense. Allowing Midwesco to recover consequential damages is consistent with Wisconsin law, as stated in Murray and Bucy-rus.
III.
Aside from contending that Midwesco was not entitled to any consequential damages, Krebs does not challenge the district court’s decision to award Midwesco damages for the expenses it incurred in attempting to solve the scrubber problem. Krebs does, however, challenge the district court’s decision to award certain attorneys’ fees to Midwesco.
Wisconsin generally follows the “American Rule” regarding attorneys’ fees and litigation expenses. Absent a specific statutory or contractual provision allowing recovery, a litigant may not recover from an opponent the attorneys’ fees and expenses the litigant incurred in litigating its claim against the opponent. Murray, 265 N.W. 2d at 527. But where a defendant’s breach of contract causes the non-breaching party to become involved in litigation with third parties, a different situation arises. In that case, the non-breaching party may recover as consequential damages the amount of any judgment, along with his reasonable attorneys’ fees and litigation expenses, incurred in the third-party litigation. City of Cedarburg L. & W. Com’n v. Glens Falls Ins. Co., 42 Wis.2d 120, 166 N.W.2d 165, 167-68 (Wis.1969) (citing Restatement (First) of Contracts § 334, at 531 (1932), and 5 Corbin on Contracts § 1037, at 225-26 (1965)); see also Murray, 265 N.W.2d at 527 n. 11 and 528 n. 12; Restatement (Second) of Contracts § 351, comment c (1981); J. White and R. Summers, Uniform Commercial Code § 10-4, at 392 (1980).
Cedarburg and Murray place two general limits on a plaintiff’s recovering its expenses from third-party litigation. First, those expenses must be the “natural and proximate result” of the breach. See Mur ray, 265 N.W.2d at 527 n. 11. This standard comports with the UCC’s general requirement that consequential damages be reasonably foreseeable. Compare J. White & R. Summers, supra § 10-4, at 389 (“ ‘the test is one of reasonable foreseeability of probable consequences’ ”) (citation omitted) with Cedarburg, 166 N.W.2d at 167 (plaintiff may recover expenses for third-party litigation “that the defendant had reason to foresee when the contract was made”).
Besides being reasonably foreseeable, the plaintiff’s third-party litigation expenses must be reasonable. Id. at 167—68; see also Restatement (Second) of Contracts § 351, comment c. A plaintiff may not unnecessarily run up its legal bill in the expectation that the breaching party will ultimately pick up the entire tab.
Krebs proposes two other limits on recovering third-party litigation expenses. Krebs “suggests” that in a ease such as this “where there are claims and counterclaims and charges and countercharges running every which way amongst the parties,” third-party litigation expenses should not be recoverable. Krebs also argues that because the towns, Scotty, and Fidelity were connected with the original transaction from which Krebs’ liability arose (that is, the building of the incinerator and sale of the scrubber), they are not really third parties, so the expenses that Midwesco incurred in defending their claims are not expenses resulting from third-party litigation. See Armstrong Construction Co. v. Thomson, 64 Wash.2d 191, 390 P.2d 976 (1964).
Krebs cites no Wisconsin authority applying these limits to recovery. In Murray, however, the Wisconsin Supreme Court noted that a litigant may recover its expenses from third-party litigation in a “proper case.” Murray, 265 N.W.2d at 528 n. 12. Krebs seizes upon the Murray court’s reference to a “proper case” to argue that the Wisconsin courts would adopt the two limitations it proposes.
Krebs reads too much into the Wisconsin Supreme Court’s reference to a proper ease. The entire sentence in which the “proper case” language appears states: “This [holding that a plaintiff may not recover attorneys’ fees resulting from his litigation against the defendant] is not to suggest that expenses of third-party litigation may not, in a proper case, be recovered under sec. 402.715, stats., in accordance with the principles generally applicable to contract damages. ” Id. (emphasis added). Read in context, we believe that all the Wisconsin Supreme Court meant by referring to a “proper case” was that third-party litigation expenses are recoverable only where they are reasonable and reasonably foreseeable. Those are the “principles generally applicable to contract damages.”
Krebs offers no other reason why the Wisconsin courts would adopt the Armstrong holding. Certainly Scotty, Fidelity, and the towns were not parties to the contract between Krebs and Midwesco. Krebs does state that a multi-party case involving several different claims, counterclaims, and cross-claims presents problems in allocating fees and expenses between litigation with the breaching party and litigation with the third party. We agree that allocation can be a serious problem (and, as we shall see, in this case it is). But difficulty in calculation should not deny an innocent party all damages caused by a defendant’s breach of contract. Courts and juries are capable of sorting out compensable third-party expenses from non-compensable expenses incurred in litigating against the breaching party. See, e.g., Campus Sweater and Sportswear Co. v. M.B. Kahn Construction Co., 515 F.Supp. 64, 111-13 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981). The allocation need not be accurate to the last dollar; all that is required is that the plaintiff prove the proper amount of third-party fees to a “reasonable probability.” See Murray, 265 N.W.2d at 526.
Given the Wisconsin Supreme Court’s emphasis on making the injured party whole in awarding consequential damages, see Bucyrus, 388 N.W.2d 592, it is reasonable to conclude that that court would allow Midwesco to recover its reasonably foreseeable third-party litigation expenses caused by Krebs’ breach. Had Krebs not breached its contract with Mid-wesco, Midwesco would not have had to defend suits by the towns, Scotty, and Fidelity. Midwesco had to spend a good deal of money to defend those suits, and the only way to make it whole is to reimburse it for those costs, to the extent that they are reasonable and may be properly allocated.
The district court awarded two amounts to Midwesco as expenses resulting from third-party litigation: $44,203, which represented thirty-three percent of Midwesco’s total legal bill for the litigation; and $86,-223 (later increased to $144,686.75 pursuant to an agreement between Midwesco and Scotty), which represented the attorneys’ fees that Scotty had reimbursed to Fidelity and then passed on to Midwesco. Krebs contends that Fidelity’s attorneys’ fees are not proper consequential damages because Midwesco’s liability for those fees was not a natural and proximate result— that is, a foreseeable result—of Krebs’ breach.
Under the UCC, a seller is liable for consequential damages “resulting from general or particular requirements of which the seller at the time of contracting had reason to know_” Wis.Stat.Ann. § 402.715 (emphasis added); see also Murray, 265 N.W.2d at 528; J. White & R. Summers, supra § 10-4, at 389-90. The test for recovering consequential damages is not whether the seller actually foresaw or contemplated the resulting damages when it made the contract; instead, the test is whether the seller, knowing or having reason to know the buyer’s needs, could have reasonably foreseen the loss as a probable consequence of a breach. Id. at 389. This test is consistent with the standard Wisconsin courts generally apply in determining whether damages for a breach of contract are foreseeable. See, e.g., Reiman Associates v. R.A. Advertising, Inc., 102 Wis.2d 305, 306 N.W.2d 292, 300 (Wis.Ct.App.1981) (damages must “reasonably to be supposed to have been in the contemplation of both parties at the time they made the contract as the probable result of the breach”); Hale v. Stoughton Hospital Ass’n, 126 Wis.2d 267, 376 N.W.2d 89, 95 (Wis.Ct.App.1985) (same).
We agree with Midwesco that the Fidelity fees were a reasonably foreseeable element of damage. Krebs knew when it sold the scrubber to Midwesco that Midwesco was going to install it as part of a pollution control device in a municipal incinerator. It should have been reasonably foreseeable to Krebs that if the scrubber did not work as it should, and the incinerator could not meet applicable emissions standards, litigation would be a likely result. It should also have been reasonably foreseeable to Krebs that Scotty would require Midwesco to supply a performance bond. Midwesco was.supplying a major component in the incinerator project; if the pollution control system failed, the entire project would probably fail (as it did), potentially exposing Scotty to substantial liability and litigation expense. In those circumstances, it would have been imprudent for Scotty not to require a performance bond from Midwesco. Thus, at the time it contracted with Mid-wesco, Krebs could have reasonably foreseen that breaching that contract, by supplying an inadequate scrubber, would result in Midwesco paying Scotty’s expenses in any litigation resulting from the scrubber’s failure.
IV.
While we have rejected all of Krebs’ general objections to the district court’s decision to award Midwesco third-party litigation expenses as consequential damages, we must remand to the district court to redetermine the amounts it should award. There are two problems with the $44,203 award for a portion of Midwesco’s own attorneys’ fees. First, it is not clear exactly what the district court was compensating Midwesco for by this award. The court stated simply that Krebs must “pay a portion of the legal fees and expenses not excluded by the traditional rule against cost-shifting.” The court also stated, however, that Midwesco could not recover expenses “incurred pursuing its own claims and defending Midwesco’s own liability against Scotty and the municipalities.... ” One of Midweseo’s “own claims” was against Krebs; Midwesco cannot recover the expenses it incurred solely in pursuing that claim. Similarly, Midwesco cannot recover expenses it incurred solely for defending Krebs’ claim against it for the balance due on their contract. But Midwesco may recover expenses it incurred in defending claims by third parties (the towns, Scotty, and Fidelity), and in pursuing its claims against third parties, as long as those claims were a foreseeable result of Krebs’ breach. On remand, the district court will have to allocate Midwesco’s fees and expenses between claims for which Midwesco may not.
To allow the district court to properly allocate the litigation expenses, Mid-wesco must present evidence to support an allocation. See Funding Systems Leasing v. King Louie Int’l, 597 S.W.2d 624, 637 (Mo.Ct.App.1979). The only evidence Mid-wesco presented regarding the fees and expenses it paid was testimony by one of its officers that it had incurred certain fees and expenses. This evidence was not sufficient to support a finding that the district court’s allocation was proper or that the fees incurred and awarded were reasonable. Although we have found no Wisconsin cases directly on point, the Wisconsin Supreme Court has stated that “the burden of proving consequential damages is on the buyer,” and that “[d]amages may not be awarded on speculation or conjecture alone.” Murray, 265 N.W.2d at 526. The United States Supreme Court has held that in cases in which a prevailing party in a civil rights case seeks attorneys’ fees under 42 U.S.C. § 1988, the prevailing party must “submit evidence supporting the hours worked,” including billing records documenting those hours, so that the district court may properly determine the hours reasonably spent. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 437, 103 S.Ct. 1933, 1939, 1941, 76 L.Ed.2d 40 (1983); see also id. at 441-42, 103 S.Ct. at 1943-44 (Burger, C.J., concurring) (“[T]he party who seeks payment must keep records in sufficient detail that a neutral judge can make a fair evaluation of the time expended, the nature and need for the service, and the reasonable fees to be allowed.”). We believe the same standard is appropriate in this case.
We also must remand for the district court to redetermine the amount of Fidelity’s attorneys’ fees chargeable to Krebs. Midwesco is entitled to recover only the fees that Fidelity reasonably incurred and passed on to Scotty; although Krebs could reasonably foresee that it might have to pay these fees, it could not reasonably foresee having to pay an excessive fee. The only evidence concerning Fidelity’s fees was testimony by one of Fidelity’s attorneys about the billing rates of the lawyers who worked on the case and about some of his activities in the case, and testimony from an official at Fidelity that it had received and paid statements from its attorneys. The record contains no billing records documenting the hours expended.
Another problem exists with the Fidelity attorneys’ fee award. The district court originally awarded $86,223. Scotty then filed a motion to reconsider, claiming that the amount Midwesco owed it (and Krebs, in turn, owed Midwesco) was $62,374 more. The district court agreed that a higher amount was appropriate, but instead of determining the precise amount the court allowed Midwesco, Scotty, and Krebs to engage in “informal discovery” regarding the reasonableness of the amount. Mid-wesco examined Fidelity’s attorneys’ billing records and disputed certain amounts; Krebs did neither. Midwesco and Scotty eventually agreed on an amount and informed the district court. The court entered judgment based on Midwesco’s and Scotty’s agreement.
There was no evidence taken in court to support the modified amount. Midwesco contends that Krebs has waived any objection it might have to the modified amount because Krebs refused to participate in discovery. We think not. The modified amount was not litigated; it was the result of an agreement between Scotty and Midwesco. The district court had no power to force Krebs to take discovery, or to agree to the amount of damages it had to pay to Midwesco. Cf. Kothe v. Smith, 771 F.2d 667, 669 (2d Cir.1985) (district court may not coerce parties into settling); Identiseal Corp. of Wisconsin v. Positive Identification, 560 F.2d 298, 301-02 (7th Cir.1977) (district court has no authority to make a party take discovery); J.F. Edwards Construction Co. v. Anderson Safeway Guard Rail Corp., 542 F.2d 1318 (7th Cir.1976) (per curiam) (district court has no authority to force a party to stipulate facts). Krebs was entitled to its day in court to contest the increase in the amount of Fidelity’s fees it had to pay.
Finally, regarding the Fidelity fees, we believe it would be inappropriate to award Midwesco fees from Krebs that are allocable to direct litigation between Fidelity and Krebs. It is true that these are third-party expenses in the sense that they do not relate to litigation between Midwes-co and Krebs. But to have Krebs reimburse Midwesco for those fees would be to, in effect, have Krebs reimburse Fidelity (through Scotty and Midwesco) for fees that arose from litigation between Fidelity and Krebs. The American Rule, which Wisconsin follows, see Murray, 265 N.W. 2d at 527-28, would not allow Fidelity to recover those fees directly from Krebs. It would be inappropriate to allow Fidelity to recover those fees indirectly from Krebs.
In determining the proper amounts to award on remand, the district court should keep in mind that there may be some overlap between recoverable and nonrecoverable fees. This should not prevent the court from reaching a proper allocation. Mathematical precision in awarding damages is not necessary. See Wis.Stat.Ann. § 402.715, official UCC comment 4. Also, as long as reasonable evidence exists, we believe it is consistent with Wisconsin law for the district court to resolve any doubts about allocation or reasonableness in favor of Midwesco, the party to be made whole. See id.; Bucyrus, 388 N.W.2d at 592 (emphasizing that the purpose of consequential damages is to make the injured party whole); see also Restatement (Second) of Contracts § 352, comment a; cf. In re Central Ice Cream Co., 841 F.2d 732, 735 (7th Cir.1988) (in determining the reasonableness of attorneys’ fees in a sanctions case, benefit of the doubt is normally resolved in the innocent party’s favor).
V.
Midwesco raises one damages-related issue in its appeal. Midwesco paid $90,000 (as did Krebs and Donohue and Associates, the project engineers) to the towns to settle all claims involving the towns. In its post-trial brief, Midwesco argued that its settlement payment was a proper element of consequential damages, and that the district court should have ordered Krebs to reimburse Midwesco for the $90,000 it paid in the settlement. The district court refused to order Krebs to pay Midwesco the $90,000, stating:
As to the settlement expense, each side bought a pig in a poke. To get rid of some pesky claims, Krebs, Donohue and Midwesco each paid $90,000 to the municipalities. Liability to the municipalities was questionable... but each side thought it best to avoid a bigger risk by working out a settlement. Although the settling parties exercised good judgment, I find no reason why Krebs should pay Midwesco’s $90,000 share of the settlement in addition to its own.
Midwesco contends the district court erred.
Generally, an injured party may recover from a breaching party any reasonable payments the injured party makes to Settle third-party litigation. Restatement (Second) of Contracts § 351, comment c. Although the parties have not cited, and we have not found, any Wisconsin cases on point, we believe that the Wisconsin courts would follow the general rule stated in the Restatement. The general rule is consistent with the make-whole rationale behind consequential damages. The general rule ¡also promotes the policy favoring private dispute settlements, see id.; if an injured party could not pass on the cost of a settlement but could pass on the cost of a litigated judgment in the third-party litigation, injured parties would rationally fight to the bitter end rather than accept reasonable settlements.
If Midwesco had settled the towns’ claims on its own, we would not hesitate to hold that Krebs should pay to Midwesco the amount Midwesco paid to the towns. The twist here, however, is that Midwesco, Krebs, and Donohue jointly settled with the towns—and we believe this twist makes a difference. The settlement was a contract between the towns, Krebs, Midwesco, Scotty, and Donohue that was intended to end all litigation involving the towns. That contract bound Midwesco. As part of that Contract, Midwesco agreed with each of the parties that it would pay $90,000 to the towns. Krebs, Scotty, and Donohue also agreed with each other, the towns, and Midwesco, to pay a certain amount (in Krebs’ case, $90,000) to the towns. The towns agreed to release all their claims against all parties—not just their claims against Midwesco. Midwesco is now asking the courts, in effect, to reform the parties’ contract to provide that Krebs shall pay $180,000 and Midwesco shall pay nothing.
We read the district court’s opinion as interpreting the settlement as we have discussed above. Given what the record reveals that the district court had before it when deciding, we think that is a proper interpretation. Midwesco, however, argues that the district court erred because the written settlement documents expressly preserved all of Midwesco’s rights against Krebs.
The “Mutual Release and Agreement” the parties signed did, in fact, state that:
Nothing in this Agreement is intended to impair, impede or in any way affect those claims and defenses which exist among [Midwesco, Scotty, and Krebs] and each or any of them, and the contractors and each of them specifically reserve any and all rights which they have or may have against one another.
The separate “Release of All Claims” document the parties signed contained similar reservation of rights language.
Krebs argues that the reservation of rights language did not preserve Midwes-eo’s right to seek reimbursement of its settlement payment from Krebs, a right which, as we have seen, undoubtedly would have existed had Midwesco settled the towns’ claims against it on its own. While the reservation of rights language appears to preserve Midwesco’s right to reimbursement, there is language in the settlement documents supporting Krebs’ argument. We need not go into detail, though, because the record does not show that Midwesco ever brought the precise language in the written documents to. the district court’s attention. Midwesco did not introduce the written documents into evidence, nor did it argue the settlement’s terms when discussing damages in its post-trial brief. Moreover, on the morning the parties settled, the district court asked each party to comment about the settlement agreement on the record. At that time, Midwesco uttered not a peep about reservation of rights language in the settlement agreement, much less about that language’s effect on Midwesco’s right to seek reimbursement of its settlement payment from Krebs. If Midweseo had commented, Krebs could have voiced its view that the reservation of rights language did not preserve Midwes-co’s right to seek reimbursement, and the district court could have decided the issue (or the parties could have agreed on what the settlement meant).
Midweseo argues that the district court’s comments “confirm[ J what is contained in the release.” We think not. The court noted:
And, in fact, a settlement of this nature is not, at least from my standpoint, entirely welcome because the case isn’t going away. I am still going to be trying the issues between the defendants, all except Donohue, as to their respective responsibility in this case.
So, although we are settling the case, it is only going to be a portion of it. And it is my understanding that the remaining portions of this case are going to be tried to the court.
The trial judge’s comments are not necessarily inconsistent with the view that the judge took on reimbursement. The district court knew that other claims and possible elements of damages existed, and it was not unreasonable for the court to assume that Midweseo could give up its right to reimbursement of the settlement payment without giving up its other damages. The important point is that the record does not show that Midweseo raised the reservation of rights language in the district court; we will not reverse the district court based on an argument that was not presented in that court.
VI.
Krebs raises one non-damages issue. According to Krebs, the district court erred in admitting Dr. Eric Aynsley’s testimony because Dr. Aynsley was not listed as a witness in the final pretrial report. The final pretrial order stated that “a witness not listed [in the final pretrial report] will not be permitted to testify absent a showing of cause or surprise.”
Dr. Aynsley was the president of Almega Corporation. Late in 1979, Midweseo, Scotty, and Krebs had hired Almega Corporation to conduct tests on the emissions from the incinerator. Almega Corporation issued a report (the “Almega Report”) detailing the results of those tests. The district court expressly relied on the Almega Report in finding that Krebs had supplied an inadequate scrubber.
Although Fed.R.Civ.P. 16 provides that the final pretrial order shall control the course of the trial, the decision whether to allow an unlisted witness to testify rests in the district court’s discretion. See Sadowski v. Bombardier, Ltd., 539 F.2d 615, 621 (7th Cir.1976). We will reverse the district court’s decision to allow an unlisted witness to testify only if there is “a clear abuse of discretion or manifest injustice.” Id.
Krebs claims that Dr. Aynsley’s testimony surprised and prejudiced it. We perceive, however, neither a clear abuse of discretion nor manifest injustice in admitting Dr. Aynsley’s testimony. The pretrial order allowed non-listed witnesses to testify if cause existed. There was good cause to allow Dr. Aynsley’s
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
OPINION
HAMILTON, Circuit Judge:
Arlington County, Virginia (the County) appeals the district court’s grant of summary judgment in favor of the plaintiffs-appellees (the Political Parties), and the subsequent injunction enjoining the County from enforcing parts of its ordinance governing the display of signs. 790 F.Supp. 618 (E.D.Va.1992). The challenged provisions of the ordinance, enacted as section 34 of the Arlington County Code, included: § F.4.f. and § E.7., limiting the number of temporary signs that an owner could place on his property to two; § C.7., prohibiting certain noncommercial portable signs; § G.I., prohibiting noncommercial signs on commercial property; and § A.I., providing a set time within which the County had to reject applications for temporary sign permits and provide reasons for any rejection. The County also appeals the district court’s award of attorneys’ fees in favor of the Political Parties.
We agree with the district court’s conclusion that the two-sign limit provisions im-permissibly infringed on the Political Parties’ First Amendment guarantee of freedom of speech. Thus, we affirm that portion of the district court’s decision. However, we disagree with the district court’s conclusion that the three remaining challenged provisions (§§ C.7., G.I., and A.l.) also violated the Political Parties’ First
Amendment rights and, therefore, reverse that part of the district court’s decision. Because the County subsequently amended these three remaining provisions, the practical effect of this reversal is to vacate and remand the award of attorneys’ fees so that the district court may consider modifying this award in light of our decision. Finally, we vacate the permanent injunction against enforcement of these three remaining provisions, since the County’s subsequent amendment renders the injunction moot as to these three provisions.
I
Arlington County adopted ordinance # 90-39 on December 8, 1990, effective February 15, 1991. As originally passed, the challenged portions of the ordinance: (1) limited the number of temporary signs that could be posted in residential districts (two-sign limit); (2) allowed seven work days for the processing of permit applications (waiting period); (3) exempted only owner identification signs from a general ban on portable signs displayed on vehicles (portable sign provision); and (4) limited the content of signs displayed at commercial sites (commercial establishment sign provision). Arlington Co.Code § 34.
On October 18,1991, the Arlington County Republican Committee, along with several other political parties and individual candidates for election, instituted this action in the United States District Court for the Eastern District of Virginia, seeking a preliminary injunction against the County to prohibit enforcement of the challenged provisions within this ordinance. On October 25, 1991, the district court issued the requested preliminary injunction. After the Arlington County general election on November 5, the Political Parties returned to court, this time seeking to permanently enjoin the County from enforcing the challenged provisions of the ordinance.
In the proceedings before the district court, the Political Parties argued that the challenged provisions violated their First Amendment guarantee of freedom of speech. Specifically, they argued that the two-sign limit prevented both the Political Parties and individual homeowners from expressing their political views. The County defended this provision on the basis that it furthered the County’s substantial interests in promoting aesthetics and traffic safety. To rebut these interests, the Political Parties introduced evidence showing the lack of any specific aesthetic or traffic safety problems during the period the preliminary injunction was enforced. Thus, the Political Parties claimed that the County did not narrowly tailor its ordinance to further its stated interests.
With respect to the portable sign and commercial establishment provisions, the Political Parties asserted that these provisions impermissibly favored commercial speech over noncommercial speech. For example, the Political Parties hypothesized that the portable sign section allowed a sign reading “Don Beyer’s Volvo” but not “Vote for Don Beyer.” In addition, the commercial establishment sign provision allowed a supermarket to post a sign advertising “a free pot with every chicken,” but not a sign advertising a candidate “promising to put a chicken in every pot.” The County defended these provisions on the basis that it had historically construed the ordinance to allow noncommercial speech wherever commercial speech was permitted. The County claimed that this interpretation rendered the Political Parties’ challenges to those three provisions nonjusticia-ble.
Finally, with respect to the seven-day waiting period, the Political Parties asserted that the seven days in which the ordinance allowed the County zoning administrator to decide on permit applications effectively prevented spontaneous, last minute sign posting. Thus, the Political Parties claimed that the waiting period also infringed on their freedom of speech. The County responded with two arguments. First, it argued that the waiting period necessarily allowed the zoning administrator sufficient time to review applications for large, complex, permanent, commercial signs. Second, the County claimed that it historically decided on applications for temporary sign permits immediately. Thus, the County argued that the Political Parties’ challenge to this provision was also nonjusticiable.
The district court rejected the County’s arguments for all of the challenged provisions, and held that the challenged provisions violated the First Amendment. The district court explained that the County did not narrowly tailor the two-sign limit or the waiting period provisions to serve its stated interests, and that the commercial establishment and portable sign provisions im-permissibly favored commercial speech over noncommercial speech. In reaching this decision, the district court rejected the idea that the Political Parties’ challenges to the commercial establishment, portable sign and waiting period provisions were nonjusticiable. The district court explained that facially unconstitutional statutes could not be saved by narrow interpretations.
In reviewing the district court’s decision, we find it helpful to analyze the two-sign limit separately from the other three challenged provisions.
II
In reviewing the challenge to the two-sign limit, the district court first analyzed whether existing case law controlled its decision. Finding no controlling case law, the district court then undertook the test established by the Supreme Court to determine the constitutionality of statutes under the First Amendment. We adopt the same approach.
A
Existing Case Law
On appeal, the County claims that Supreme Court precedent and subsequent Fourth Circuit interpretations expressly allow restrictions on temporary political signs in residential neighborhoods. The County primarily relies on Supreme Court precedent established in Members of City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984), and Metromedia, Inc v. San Diego, 453 U.S. 490, 101 S.Ct. 2882, 69 L.Ed.2d 800 (1981) (plurality opinion), as well as subsequent Fourth Circuit interpretations of Vincent and Metromedia, established in Naegele Outdoor Advertising v. Durham, 844 F.2d 172 (4th Cir.1988); Georgia Outdoor Advertising, Inc. v. Waynesville, 833 F.2d 43 (4th Cir.1987); and Major Media of the Southeast v. Raleigh, 792 F.2d 1269 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). However, we find none of these cases provides authority for imposing the two-sign limit in the present case.
In reaching this conclusion, we begin with the venerable principle that “[e]ach medium of expression ... must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1247, 43 L.Ed.2d 448 (1975). See also, Metromedia, 453 U.S. at 502, 101 S.Ct. at 2889; FCC v. Pacifica Foundation, 438 U.S. 726, 748, 98 S.Ct. 3026, 3040, 57 L.Ed.2d 1073 (1978); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. 1098 (1952). Thus, our analysis of the precedent cited by the County focuses on whether those cases specifically address restrictions on temporary political signs on residential property.
In Metromedia, the Court first addressed the extent to which governments can restrict billboards in the interest of promoting aesthetics and traffic safety. The City of San Diego passed a law banning permanent signs anywhere but in industrial zones. However, the ordinance specifically exempted on-site billboards “advertising goods or services available on the property where the sign is located.” 453 U.S. at 503. Several companies owning billboards within the city challenged the ordinance as an unconstitutional suppression of speech.
In a badly divided Court, a plurality of four Justices rejected the ordinance solely because it impermissibly preferred commercial speech over noncommercial speech. Absent this preference, the plurality could find no constitutional problem. Id., 453 U.S. at 512, 101 S.Ct. at 2895. The concurring opinion rejected the ordinance because it totally prohibited a protected form of speech without sufficient justification and was not narrowly drawn. Id. at 528-30, 101 S.Ct. at 2903-04 (Brennan, J., concurring). The three dissenting opinions generally concluded that a city may constitutionally ban all billboards, and that allowing some commercial signs did not invalidate the ordinance. Id. at 542, 560-61, 570, 101 S.Ct. at 2910, 2919-20, 2924 (Stevens, J., Burger, C.J., Rehnquist, J., dissenting in separate opinions). Thus, without an impermissible preference of commercial speech over noncommercial speech, seven Justices would have upheld the prohibition on billboards as an acceptable means to promote aesthetics and traffic safety.
However, the statute in Metromedia specifically excluded “temporary political campaign signs” from regulation. Id. at 495, 101 S.Ct. at 2886. In addition, the state court in Metromedia defined the scope of the ordinance to proscribe only permanent signs, specifically intending to avoid prohibitions on “a small sign placed in one’s front yard proclaiming a political or religious message.” Id. at 494 n. 2, 101 S.Ct. at 2885 n. 2. The Court accepted this interpretation, holding that “[w]e deal here with the law of billboards,” and defining billboards as “large, immobile and permanent structure^].” Id. at 501, 502, 101 S.Ct. at 2889, 2890.
In Vincent, the Court again considered the government’s power to ban signs in the interests of aesthetics and traffic safety. In Vincent, the City of Los Angeles passed an ordinance “prohibiting] the posting of signs on public property.” 466 U.S. at 792, 104 S.Ct. at 2122. Supporters of a candidate for election in Los Angeles challenged the ordinance under the First Amendment in an effort to prevent the city from removing campaign signs which they had posted on utility poles throughout the city. The Court upheld the ordinance, reasoning that “the visual assault on citizens ... presented by an accumulation of signs posted on public property constitutes a significant substantive evil within the City’s power to regulate.” Id. at 807, 104 S.Ct. at 2130.
However, in reaching its decision, the Vincent Court expressly distinguished banning signs on public versus private property. The plaintiffs in Vincent challenged the law in part because they believed it impermissibly favored speech on private property. The Court rejected this argument, reasoning that “[t]he private citizen’s interest in controlling the use of his own property justifies the disparate treatment.” Id. at 811, 104 S.Ct. at 2132.
In the wake of these Supreme Court decisions, we also considered First Amendment challenges to various ordinances regulating the display of signs. Such a challenge first arose in this circuit in Major Media of the Southeast v. Raleigh, 792 F.2d 1269 (4th Cir.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1334, 94 L.Ed.2d 185 (1987). In that case, the City of Raleigh enacted a statute, the relevant portions of which confined the location of off-premise signs to industrial zones and limited their size to 150 square feet when facing four-lane streets and seventy-five square feet when facing two-lane streets. Id. at 1270. The statute gave existing sign owners five and one-half years to satisfy these requirements. Although the court described the ordinance as regulating signs, the size limits and grace period clearly indicate that the ordinance applied only to large, permanent signs.
A company owning several billboards in the city challenged the ordinance as an abridgment of its First Amendment rights and as an invalid taking of property. This court rejected the First Amendment challenge, reasoning that Metromedia allowed prohibitions on “all off-premise signs or billboards for aesthetic and [traffic] safety reasons,” absent any preference for commercial speech over noncommercial speech. Id. at 1272. Thus, this court concluded that the ordinance “does not impermissibly burden commercial speech.” Id.
This court again scrutinized a similar ordinance under the First Amendment in Georgia Outdoor Advertising v. City of Waynesville, 833 F.2d 43 (4th Cir.1987). In that case, the City of Waynesville enacted an ordinance “effectively outlawing] all ... billboards within the jurisdiction of the City.” Id. at 44. A company owning numerous billboards within the city challenged the ordinance under the First Amendment, claiming that it impermissibly “outlawed a protected form of expression, commercial off-premise advertising.” Id. This court rejected this claim, again reasoning that Metromedia allowed a city to “prohibit all off-premise signs or billboards for aesthetic and [traffic] safety reasons. ...” Id. at 45 (quoting Raleigh, 792 F.2d at 1272).
Most recently, this court addressed a First Amendment challenge to a sign ordinance in Naegele Outdoor Advertising v. City of Durham, 844 F.2d 172 (4th Cir.1988). In that case, the City of Durham adopted “a billboard ordinance prohibiting] all commercial, off-premise advertising signs except alongside interstate or federally-aided primary highways.” Id. at 173. An owner of numerous billboards in Durham challenged this ordinance under the First Amendment. This court again rejected the challenge, citing Waynesville and Raleigh for the principle that a city may constitutionally prohibit “off-premise commercial billboards” to protect aesthetics and traffic safety. 844 F.2d at 173.
We find none of our precedent controls the precise issue before this court for two reasons. First, the ordinances in our previous cases regulated billboards rather than temporary signs. Although these cases explained that Metromedia permitted a ban on “all off-premise signs or billboards for aesthetic and [traffic] safety,” this language should not be read to extend to restrictions on temporary political signs on residential property. As previously discussed, Metromedia only established “the law of billboards,” 453 U.S. at 501, 101 S.Ct. at 2889, and expressly recognized the inherently unique concerns in regulating billboards.
Second, in all of the Fourth Circuit precedent discussed above, either the plaintiff challenged the ordinance as an impermissible burden on commercial speech {Durham and Waynesville), or we concluded that the ordinance did not impermissibly burden commercial speech {Raleigh). In contrast, the two-sign limit in the present case infringes on political speech. The Supreme Court consistently affords more protection to political speech than commercial speech. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980). See also, Connick v. Myers, 461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983), (“[S]peech on public issues occupies the 'highest rung of the hierarchy of First Amendment values’ and is entitled' to special protection.”) (citation omitted). Thus, the two-sign limit in the present case requires more exacting scrutiny.
B
The Test Under the First Amendment
Finding no dispositive precedent, we must analyze the two-sign limit under the Supreme Court’s test for determining whether a statute violates the First Amendment guarantee of freedom of speech. Under this test, we first question whether the two-sign limit burdens any speech. If we find any. burden, we must then determine whether the two-sign limit imposes content neutral or content based restrictions, If it is content neutral, we must then decide whether the two-sign limit serves any substantial interest of Arlington County. If the County identifies any interest, we must then determine whether the County narrowly tailored the two-sign limit to further this stated interest. Finally, we must also assess whether the two-sign limit leaves open ample alternative means for communicating the desired message. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).
We agree with the district court that the two-sign limit affects speech rather than conduct. “Communication by signs and posters is virtually pure speech.” Baldwin v. Redwood, 540 F.2d 1360, 1366 (9th Cir.1976), cert. denied, sub nom. Leipzig v. Baldwin, 431 U.S. 913, 97 S.Ct. 2173, 53 L.Ed.2d 223 (1977) (footnote omitted). In addition, we agree that the two-sign limit infringes on this speech by preventing homeowners from expressing support for more than two candidates when there are numerous contested elections. Also, if two voters living within the same household support opposing candidates, the two-sign limit significantly restricts their ability to express support through sign posting.
Since the two-sign limit burdens the freedom of speech, we next question whether those provisions impose content neutral or content based restrictions. Initially, the Political Parties claimed that the two-sign limit might be content based, since it exempted trespassing, for rent, and for sale signs. However, at oral argument they conceded that this was not the gravamen of their complaint. Since we invalidate the two-sign limit on other grounds, we assume for purposes of analysis that those provisions are content neutral.
Under the content neutral test, we must assess whether the two-sign limit furthers any substantial governmental interest. As discussed earlier, the County defends the two-sign limit by arguing that it promotes aesthetics and traffic safety. We agree with the district court’s decision that these are substantial governmental goals. Vincent, 466 U.S. at 805, 104 S.Ct. at 2129; Metromedia, 453 U.S. at 507-08, 101 S.Ct. at 2892-93.
Having found two substantial governmental interests, we next focus on whether the County narrowly tailored the two-sign limit to further these interests. We agree with the County that under this test, we cannot question whether narrowly tailoring the statute requires allowing more than two signs. Such a limit is a legislative decision, not reviewable by courts. See, e.g., Bd. of Trustees of State University of New York v. Fox, 492 U.S. 469, 478, 109 S.Ct. 3028, 3033, 106 L.Ed.2d 388 (1989) (Narrowly tailoring a statute does not “require elimination of all less restrictive alternatives.”) (citations omitted).
However, this court may require the County to justify its chosen restrictions by demonstrating a necessity for the two-sign limit. Under this part of the analysis, we question whether the County needs to limit the number of signs on private property to protect aesthetics. As the Court noted in Vincent, “[pjrivate property owners’ esthetic concerns will keep the posting of signs on their property within reasonable bounds.” 466 U.S. at 811, 104 S.Ct. at 2132. We also find persuasive the fact that the County could not show any specific aesthetic or traffic problems arising while the preliminary injunction was in force. In contrast, the district court found that after issuing the preliminary injunction, “additional signs posted were neatly displayed and not unreasonably numerous.” Joint Appendix (J.A.) at 234.
In addition, it is evident that the County could promote its interests through other, less restrictive means. First, the County could regulate the design and condition of these signs. Second, to ensure traffic safety the County could prevent posting signs within a certain distance of the street. Third, limiting the duration of these signs also furthers the County’s interest.
Finally, we agree with the district court that the two-sign limit did not provide sufficient alternatives for political speech. The County suggests several viable alternatives, including speeches in public places, door to door and public canvassing, distributing handbills, appearing at citizen group meetings, advertising, posting signs in local businesses and automobiles, and posting two signs at private residences. However, we agree with the district court that these alternatives are insufficient in that they require too much time involvement {e.g., handbilling or canvassing), or too much expense.
In addition, the County’s laundry list fails to recognize that the two-sign limit infringes on the rights of two groups: the candidates and the homeowners. Homeowners also express their views by posting political signs in their yard. In Vincent, the Court upheld the restraint on public signs in part because the speaker could still “exercise his right to speak and distribute literature in the same place where posting of signs on public property is prohibited.” 466 U.S. at 812, 104 S.Ct. at 2132-33 (emphasis added). Here, there is no viable alternative to the homeowner on his property.
In summary, we find that the County did not narrowly tailor the two-sign limit to further its interests in promoting aesthetics and traffic safety. In addition, we find that the provision leaves no viable alternative means of political speech. Thus, we find the two-sign limit violated the First Amendment rights of the Political Parties.
Ill
The Political Parties challenged the commercial establishment and portable sign provisions on the basis that they impermissibly favored commercial speech over noncommercial speech. In addition, the Political Parties challenged the waiting period provision on the basis that it effectively prevented spontaneous, last minute posting of political signs. In response, the County argued that it historically allowed noncommercial speech wherever the ordinance allowed commercial speech, and that it historically decided on applications for temporary sign permits immediately. The Political Parties presented no evidence refuting these alleged interpretations and applications of the challenged provisions of the ordinance. Thus, the County argued that its narrow interpretations and applications of these provisions created no actual case or controversy before the district court.
The district court rejected the County’s claim that its narrow interpretation and application of the commercial establishment, portable sign and waiting period provisions rendered the Political Parties’ challenges to these provisions nonjusticiable. Instead, the district court accepted the Political Parties’ argument that narrow interpretations can only save a vague statute which is subject to several possible interpretations. J.A. at 28-29. The district court explained that these three challenged provisions in the present case contained precise language and that “[tjhis court declines to write non-binding limits ... into an ordinance whose meaning is plain.” J.A. at 29, 33, and 34. The district court then held that these provisions violated the First Amendment guarantee of freedom of speech.
We disagree with the district court’s conclusion that the County’s narrow interpretation and application could not protect these three provisions from constitutional attack. Supreme Court precedent recognizes that a party may have no justiciable challenge to a particular statute if government interpretations preclude enforcement of that statute as written. For example, in Frisby v. Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988), the Court refused to enjoin a local ordinance that prohibited picketing in front of an establishment. The Court construed the statute narrowly so as to avoid any constitutional problem, relying on statements by the city, “which indicate that the town takes, and will enforce, a limited view of the ‘picketing’ proscribed by the ordinance.” Id. at 484, 108 S.Ct. at 2502. In addition, in Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961), the Court held that a challenge to a ban on contraceptives presented no justiciable question even though the law was clear on its face, because the state never enforced the law. The Court reasoned, “deeply embedded traditional ways of carrying out state policy ... or not carrying it out ... are often tougher and truer law than the dead words of the written text.” Id. at 502, 81 S.Ct. at 1755.
In the present case, the County’s uncon-tradicted evidence indicates that its historical interpretation and application of the commercial establishment, portable sign, and waiting period provisions did not result in enforcement of those provisions as written. Thus, we think the Political Parties’ challenges to those three provisions were nonjusticiable.
IY
After the ruling by the district court, the County amended the commercial establishment, portable sign and waiting period provisions of its ordinance. These amendments expressly allow noncommercial speech wherever the ordinance permits commercial speech, and require the county zoning administrator to decide on applications for temporary sign permits within twenty-four hours. The Political Parties then moved this court to dismiss as moot the County’s appeal on these three provisions. The County contested this motion, reasoning that the amendments merely clarified the County’s historical interpretation and application of these provisions.
We deny this motion, because the validity of the district court’s decision with respect to the original commercial establishment, portable sign, and waiting period provisions may affect the amount of the attorneys’ fees award. The district court awarded attorneys’ fees to the Political Parties for their significant contribution in changing an unconstitutional law. Since we find that only the two-sign limit was subject to constitutional attack, we cannot say that the Political Parties significantly contributed to any change in the other three provisions. The district court may wish to modify the attorneys’ fees award to reflect this result.
However, the County's amendments do moot the district court’s permanent injunction enjoining enforcement of the commercial establishment, portable sign and waiting period provisions. Thus, we vacate the injunction with respect to these three provisions.
Y
For the reasons stated herein, we affirm the district court with respect to its invalidation of the two-sign limit, but reverse the decision with respect to the commercial establishment, portable sign, and waiting period provisions. Because the County subsequently amended the latter three provisions, the practical effect of this reversal is to vacate and remand the award of attorneys’ fees for further consideration by the district court. Finally, we vacate the permanent injunction with respect to the commercial establishment, portable sign, and waiting period provisions, because the County’s subsequent amendment of these provisions renders that part of the injunction moot.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, AND REMANDED.
. Specifically, the relevant sections provided:
§ 34 F. Signs Permitted in All Districts With Permits
4. Temporary noncommercial signs are permitted in residential districts subject to the following:
f. No more than one (1) sign is permitted for each principal dwelling unit.
g. The sign may be freestanding or placed in a window.
(The County construes § 34 E.7., permitting “one (1) non-commercial or 'for sale,’ 'rent,' or 'lease' sign,” to allow one additional sign per residence. Thus, these sections combined create the two-sign limit.)
§ 34 A. Administration
1. A sign permit shall be obtained from the zoning administrator before any sign or advertising structure is erected_ A sign permit shall be approved or rejected within seven (7) work days. Upon request, a statement of the reasons for denial of a sign permit shall be provided within thirty (30) days after rejection. ...
§ 34 C. Prohibited Signs
The following types of signs are prohibited and shall not be permitted by variance:
7. Any portable sign, including any signs displayed on a vehicle which is used primarily for the purpose of such display. This shall not include identification signs on vehicles identifying the owner of the vehicle, or bumper stickers.
§ 34 G. Signs permitted in All “C" and "M” Districts With Permits.
Business signs identifying the products or services available on the premises or advertising a use conducted thereon may be displayed in ‘C’ and ‘M’ Districts....
. The County also briefly cites to Burson v. Freeman, - U.S. -, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992), where the Court upheld a complete ban on temporary, political signs within 100 yards of polling places. However, in that case the Court upheld the ordinance as a reasonable means to further two compelling governmental interests of protecting the right of citizens to vote freely for candidates of their choice and conducting an election with integrity and reliability. In the present case, the County does not claim that its ordinance serves these compelling governmental goals.
. The Court noted that it had previously upheld similar restrictions in summary decisions, but had never addressed such an ordinance after full, plenary review. Metromedia, 453 U.S. at 500, 101 S.Ct. at 2888.
. Moreover, both the plurality opinion and concurring opinion recognized the inherently unique qualities of billboards. Id. at 502, 101 S.Ct. at 2889 ("[B]ecause it is designed to stand out and apart from its surroundings, the billboard creates a unique set of problems for land use planning and development.’’); Id. at 528, 101 S.Ct. at 2903 (Brennan, J., concurring) ("It is obvious that billboards do present their own unique problems: they are large immobile structures that depend on eye-catching visibility for their value.”).
. At least one other court distinguished billboard restrictions from temporary political sign restrictions. City of Antioch v. Candidates Outdoor Graphic Service, 557 F.Supp. 52, 58 (N.D.Cal.1982). ("Permanent, fixed structures like billboards are a medium different from small, detachable political signs and present different regulatory problems.”)
. The 1991 Arlington County general election contained at least seven contested elections.
. See, e.g., Verrilli v. City of Concord, 548 F.2d 262, 265 (9th Cir.1977), (court invalidated an ordinance regulating signs because the city “failed to meet its burden [of] demonstrating the necessity of [its] restriction to further a legitimate government interest”).
. The County apparently recognizes this since its ordinance limits sign posting from seventy days before the event to ten days after.
. Notably, posting signs in local businesses and automobiles violates the commercial establishment and portable sign provision as written. Only the County’s interpretation of these sections allows this activity. See infra part III.
. See also, Beck v. Communications Workers of America (C.W.A.), 776 F.2d 1187, 1199 (4th Cir.1985), where this court interpreted Supreme Court precedent to establish the principle that:
a statute challenged for unconstitutionality under the First Amendment may be sustained if, as a result of a reasonable narrowing construction consonant with the legislative purpose reflected in the statute, the constitutional objective may be removed or obviated.
. The specific amendments included:
A. With respect to the waiting period, the County added the following language to § 34 A.I.:
A sign permit for any temporary sign that requires a permit shall be approved or rejected within 24 hours of the receipt of a sign permit application. If the permit is denied, the reason for the denial will be given orally, with a written reason provided within five days, if requested.
B. To clarify the portable and commercial dwelling sign provisions, the County added § 34 A.4., which states:
Wherever commercial speech is permitted on a sign under this section of the ordinance, non-commercial speech also is permitted.
. We express no opinion as to the appropriate amount of attorneys’ fees which may be awarded by the district court.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
RONEY, Circuit Judge:
In this medical malpractice action brought under the Federal Torts Claims Act (FTCA), the United States appeals from a $2 million judgment awarded to the plaintiffs, parents of an infant who died of iron poisoning. Plaintiffs cross-appeal the denial of attorney’s fees. The Government challenges a variety of evidentiary rulings, certain “outside research” of the trial judge, numerous factual findings, the taxing of costs, and the amount of damages. We vacate and remand because a Government expert witness was erroneously precluded from testifying and because the verdict is excessive and appears to be based on considerations inappropriate in a tort claims case. The denial of attorney’s fees is affirmed because this Court has recently decided that attorney’s fees may not be awarded against the United States in a case of this kind.
Early on the morning of November 2, 1980, plaintiffs’ twenty-one-month-old son, Carlos, consumed a large quantity of iron tablets. Carlos became ill and was taken by his parents to Homestead Air Force Base Hospital (Homestead) where he was treated for acute iron intoxication. At approximately 2:00 p.m. he was transferred to Jackson Memorial Hospital (Jackson Memorial) where he died shortly after midnight.
Many facts in this case were vigorously disputed: the number of pills the child ingested, the time at which he ingested them, the date on which the mother received the pills which would indicate the number of pills left on the date of ingestion, the amount of time that elapsed between the parents’ discovery of the child’s illness and their arrival at Homestead, and the accuracy of a lab slip indicating a “free iron level” of 9170 micrograms per deciliter (mg/dl). These disputed facts bear on the degree of iron toxicity in the child’s system present at various times, whether Carlos’ life might have been saved given proper and timely treatment, and what party, if any, was at fault for not correctly identifying or treating the condition. The trial court concluded that at least ten specific actions by Homestead fell below the standard of care required of that type of medical facility, and that its more than three-hour delay in administering deferoxamine (an iron antidote) and its failure to transfer him to a higher care facility sooner, caused Carlos’ death. The Government contended that Carlos would have died regardless of the treatment that could have been given him.
I. Exclusion of the Expert Witness
The Government contends that the trial court abused its discretion in excluding the testimony of Dr. Albert Rauber, professor of Pediatrics at Emory University Medical School in Atlanta, and director of the Poison Control Center.
When the Government sought to produce Dr. Rauber as its third expert witness, counsel became involved in a vigorous dispute over whether the Government had waived its right to call Dr. Rauber when it allegedly stipulated regarding experts. The trial court was obviously troubled over this dispute and stated that counsel had put the court in a difficult position. At the end of the colloquy, the court indicated that it would exclude Dr. Rauber’s testimony because of the stipulation but then stated that it would also exercise its discretion to limit the number of witnesses under Fed.R. Evid. 403. After that, Government counsel was permitted to proffer Dr. Rauber’s expected testimony.
Our review of the record leads us to the conclusion that the alleged stipulation relied on by plaintiffs was in fact limited to an agreement that each party would allow two experts to be deposed without subpoena. It does not appear that the Government explicitly waived its right to call more than two experts at trial, nor did it ever explicitly waive its right to call Dr. Rauber.
Analysis of this issue, therefore, turns on Rule 403. Under Rule 403, relevant evidence may be excluded for considerations of undue delay, waste of time, or needless presentation of cumulative evidence. The power to conduct orderly trials includes the power to exclude or limit expert testimony. United States v. Thevis, 665 F.2d 616, 633-34 (5th Cir. Unit B 1982) (criminal trial); Campbell Industries v. M/V Gemini, 619 F.2d 24, 27 (9th Cir.1980). “Rule 403 does not mean that a court may exclude evidence that will cause delay regardless of its probative value. If the evidence is crucial the judge would abuse his discretion in excluding it.” Weinstein’s Evidence, Para. 403[06] at 403-59-60 (1982).
The propriety of excluding Dr. Rauber’s testimony under Rule 403 turns on whether his testimony would have been cumulative. Two expert witnesses testified at trial for the Government. Dr. James Hillman, Director of Pediatric Emergency Care Center, Tampa General Hospital, and Medical Director of the Tampa Bay Medical Poison Control Center was of the opinion that it would have made no difference whatsoever if Carlos had begun receiving intravenous (I.V.) desferal (an iron antidote) the minute he entered Homestead because it would, even then, not have been possible to bind (neutralize) all the free iron in his blood fast enough to save him. In his opinion the only chance of saving Carlos’ life would have been to begin treatment within twenty minutes of ingestion. Dr. Hillman testified that Homestead did as good a job as they could have, given the facility and the circumstances. Despite seeming to acknowledge that the deferoxamine and the I.V. treatments could have begun somewhat earlier, and the Homestead medical records could have been more complete, he was still of the opinion that this had no impact whatsoever on Carlos’ death. When responding to the court’s questions about dialysis or transfusions as a mode of treatment, Dr. Hillman responded that the problem was that transfusions only provide access to circulating blood while the poison, here iron, is in the tissues and in “many different spaces.” Therefore, although iron might be removed from the blood, there is no corresponding clinical improvement in the patient. Similarly, he believed deferoxamine would have been of limited, if any, help because it only binds one iron tablet every three hours, while the intestines and tissues continue to absorb the iron. When questioned about Carlos’ serum iron level, free iron level, total iron level and binding capacity, Dr. Hillman testified that because Carlos’ iron level was over 9000 mg/dl at 3:00 p.m. by a conservative estimate, it was 25% to 30% what it had been within two to three hours of ingestion. This figure “peaks out” early, within two to three hours of ingestion, then “decays” rapidly. For this reason, Dr. Hill-man surmised that if Carlos’ iron level was 9.000 at three o’clock at least eight hours after ingestion, then it must have been 20.000 or 30,000 at peak value. According to Dr. Hillman, a 1000 mg/dl level is potentially lethal. Dr. Hillman was aware of no child or adult who had survived an iron level in excess of 9,000. He believed Carlos must have ingested “above 40,” pills, and “in the 50’s at least,” to explain the very high iron level so late in the day, that the distribution of pills through the small intestine goes to a long period of ingestion, and that the pills were ingested “very early” in the day.
The second Government expert witness was Dr. Eugene Gitlin, director of medical services, Parkway Regional Medical Center, director of the Emergency Department of that hospital, associate clinical professor at the University of Miami School of Medicine, associate medical director of Dade County Fire Rescue, teacher of Emergency Medicine at the VA hospital and board certified in internal medicine and emergency medicine. Dr. Gitlin was of the opinion that Homestead was within the standard of care required of that type of facility. He concluded that Carlos had ingested a “huge” amount of iron, 50-60 pills was not inconceivable, a lethal dose according to Dr. Gitlin. A blood iron level over 9000 mg/dl was an “extraordinary level.” He testified that even if treatment had been started within an hour of ingestion, Carlos could not have been saved. After reviewing all the documents which were furnished to him, including medical records and statements of the various treating physicians at Jackson Memorial Hospital, Dr. Gitlin concluded that the child could not have been saved even if he had been brought to Jackson Memorial under the conditions specified.
The district court would not admit the testimony of Dr. Albert Rauber. According to the proffer of Government counsel during trial, Dr. Rauber has been a full professor of Pediatrics at Emory University Medical School since 1971. He is the director of the Georgia Poison Control Center and would have been the only expert board qualified in Medical Toxicology. He is also board qualified in Pediatrics.
He would have testified, based on his expertise in Child Behavior, that it is unlikely that Carlos sat down and ate 40-50 pills “at one sitting.” This would indicate that the child consumed the pills over a long period of time, allowing more time for absorption prior to arrival at Homestead. In addition, Dr. Rauber was going to “draw on” certain evidence not discussed at trial: medical records, s-g-o-t and s-g-p-t, which are measures of liver and kidney functions. In Dr. Rauber’s view, the deterioration in those vital organ functions would not have occurred as rapidly had the child eaten the pills at 7:00 or 7:30 a.m.
Dr. Rauber, like the other Government experts, believed that Homestead’s treatment was reasonable and within the standard of care. He would testify that the blood iron level was accurate and very important in that it is a basis from which to go back and “determine the amount of iron that was absorbed, as opposed to ingested.” He would also have testified that iron is stored in many places in the body, not just in the blood, so “the absorption of free iron in the blood is not in the process of absorbing iron. It flows in from the tissues and must first be absorbed from the bloodstream.”
“Basically,” Dr. Rauber’s testimony would have been “that drawing free iron out of the blood does not end the absorption of iron, [t]hat it also comes out of the tissues [, and that] the mother’s delay in presenting the child in the early time of ingestion was in fact the cause of death____”
It appears Dr. Rauber’s testimony would have been based in part on evidence not relied upon by the other experts, namely the liver and kidney function tests. His analysis was somewhat different. His testimony concerning the biochemistry of iron absorption and treatment would have been more comprehensive than that of the other Government experts and was, therefore, at least partially non-cumulative. Dr. Rauber had different, and arguably better qualifications than the other experts.
Our review of the record leads us to the conclusion that the Government should be able to submit the testimony of Dr. Rauber to the court. Liability in this case turns on a proper analysis of highly technical material and the highest qualified expert should be available to the court. Inasmuch as this is a trial without a jury, no new presentation of the other evidence before the court need be made, but the court must reconsider all of the evidence in light of Dr. Rauber’s testimony, and reconsider its decision as to liability.
Although the case is remanded for further evidentiary proceedings and reconsideration of liability, it is appropriate for this Court to rule upon the other issues raised on appeal for guidance to the district court on remand.
II. Damages
Although the judgment for $2,000,-000 is vacated because of the problems at the liability stage, this Court would have vacated the judgment as excessive in any event. Plaintiffs contend the Government is foreclosed from challenging the amount of damages on appeal because it was not challenged in the motion for new trial. Where, as here, damages are set by the judge instead of a jury, issues raised during trial and ruled on by the trial court need not be raised again in a motion for new trial in order to preserve them for review on appeal. United States v. Harue Hayashi, 282 F.2d 599, 601 (9th Cir.1960). The district court awarded each parent $1 million for “future loss of support and services [and for] past and future mental pain and suffering for the duration of their respective lives.”
This Circuit has held that the “components and measure of damages in FTCA claims are taken from the law of the state where the tort occurred____” Harden v. United States, 688 F.2d 1025,1029 (5th Cir. Unit B 1982) (quoting Ferrero v. United States, 603 F.2d 510, 512 (5th Cir.1979)); 28 U.S.C.A. § 2674. Under Florida law, Fla. Stat.Ann. §§ 768.21(1) and (4), the parents of a deceased minor child may recover as follows:
(1) Each survivor may recover the value of lost support and services from the date of the decedent’s injury to his death, with interest, and future loss of support and services from the date of death and reduced to present value. In evaluating loss of support and services, the surviv- or’s relationship to the decedent, the amount of the decedent’s probable net income available for distribution to the particular survivor, and the replacement value of the decedent’s services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered____
(4) Each parent of a deceased minor child may also recover for mental pain and suffering from the date of injury.
The predecessor statute to this statute was Fla.Stat.Ann. § 768.03 (1963), repealed in 1972, which stated in pertinent part: “[T]he father of such minor child, or if the father be not living, the mother may maintain an action ... and may recover, not only for the loss of services of such minor child, but in addition thereto, such sum for the mental pain and suffering of the parent (or both parents) if they survive, as the jury may access.” Case law interpreting the predecessor statute has been held applicable to cases arising under the new damages statute. Smyer v. Gaines, 332 So.2d 655, 659 (Fla. 1st DCA 1976).
Florida appellate courts rely heavily on the damages awarded by juries in similar cases. In Gresham v. Courson, 177 So.2d 33 (Fla. 1st DCA 1965), the Florida appellate court reduced the jury damage award to a father for the death of his eleven-month-old son (1) for lack of evidence upon which to predicate the high damages, and (2) because the award was very high compared to the “trend” in the jurisdiction. The court said:
[T]he appellate courts have been and always will be unable to devise a measure or scale by which to fix with mathematical certainty the minimum and maximum limits of the verdict which a jury may lawfully return in the suit of a surviving parent for the wrongful death of his child under the facts and circumstances peculiar to a particular case. In appeals testing the amount of the verdict and judgment there is no better criterion available than as stated by Mr. Justice Terrell in Florida Dairies Co. v. Bogers, supra, and it must of necessity be applied here. In that context, if the verdict and resulting judgment do not bear a reasonable relation to the philosophy and general trend of prior decisions in such cases, the judgment must be either set aside and a new trial awarded or a remittitur imposed reducing it to an amount which the appellate court in the exercise of its discretionary powers and in good conscience deems sustainable.
Id. at 39-40. The court had previously noted what Mr. Justice Terrell said in Florida Dairies Co. v. Rogers, 119 Fla. 451,161 So. 85, 88 (1935), as follows:
In cases where damages for mental pain and suffering are allowed, it must bear some reasonable relation to the facts, the status of the parties, the amount allowed as compensatory damages, and the philosophy and general trend of decisions effecting such cases. When we say that the amount allowed must bear some reasonable relation to such factors, we do not mean that it must be equal to, be twice these, or bear any other arbitrary relation to them, but what we do mean is that these and other cognate factors are proper elements on which the allowance may be predicated. It cannot be predicated on the basis of restitution.
177 So.2d at 37-38.
In this case, a mortality table and the parents’ testimony were offered as evidence of damages, and nothing more. There is nothing in this record to show the base upon which this large judgment rests. There was no evidence regarding the value of services or support. Gresham said that “unless the deceased child had some extraordinary income-producing attributes, the cost of maintaining it to maturity would normally exceed the value of any services which might likely be rendered by the child to the parent.” Id. at 37. It seems quite apparent that the award here must be restricted to mental pain and suffering.
In showing excessiveness, the party challenging damages may show that the amount is unsupported by the evidence. Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977). A verdict must be set aside if it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the trier of fact may properly operate.
Although excessiveness may be tested by comparing the verdict to those damage awards determined not to be excessive in similar cases, Sanders v. Nabisco, Inc., 359 So.2d 46 (Fla. 1st DCA 1978); Loftin v. Wilson, 67 So.2d 185 (Fla.1953), we have been unable to find any reported case in Florida with an award this high. Perhaps some research or compilation of similar cases tried in Florida is available that could be submitted to the court and could thus be made a part of the record to furnish a basis for the amount that should ultimately be awarded.
Nothing has been presented to us, however, and there is nothing in the record before the district court to justify the amount of damages awarded in this case. A plaintiff has the burden of justifying the amount of damages that can be awarded even though the loss of an infant child can be so devastating that monetary damages are incalculable. The determination of liability was a close call, at best, and there is no base upon which to permit any punitive consideration to become involved in a damage award. In any event, the FTCA specifically prohibits an award of punitive damages. Courts should guard against punitive and emotional considerations influencing awards of damages under the FTCA. If liability is found on remand, the district court should conduct a further hearing on damages and set a damage award consistent with the opinion.
Several other evidentiary issues were raised on appeal. We affirm the district court’s ruling in each instance, with the following point-by-point discussion.
III. Exclusion of The Risk Management Report
The district court excluded from evidence a “risk management report” prepared by an insurance adjuster on behalf of Jackson Memorial under its statutory duty to maintain such a report, Fla.Stat.Ann. § 768.41(l)(d). The report was prepared November 20,1980, eighteen days after the child’s death, and contained, among other things, informal physicians’ opinions. In argument over the correctness of the district court’s ruling, neither party has noted that the statute which requires the preparation of the risk management report specifically provides that those reports are not admissible in evidence:
The incident reports shall be considered to be part of the work papers of the attorney defending the establishment in litigation relating thereto and shall be subject to discovery, but not be admissible as evidence in court____
Internal Risk Management Statute, Fla. Stat.Ann. § 768.41(4).
Florida has thus made a legislative judgment that in order to insure the reliability and efficacy of the required reports, they should not be subject to use in litigation. See also Palmer v. Hoffman, 318 U.S. 109, 113, 63 S.Ct. 477, 87 L.Ed. 645 (1943). Although not controlling in federal litigation where the Federal Rules of Evidence apply, the statute undergirds the decision of the trial court. After reading the document, the district court found that it was not admissible under either the business records or public records exception to the hearsay rule, Fed.R.Evid. 803(6) and (8).
Given the circumstances under which the report was prepared and the inclusion in it of non-contemporaneous unofficial statements, when viewed in the context of the above cited statute, it was within the district court’s discretion to exclude the report from evidence.
IV. Exclusion of Letter From Counsel to Expert
The district court excluded a letter sent by plaintiffs’ counsel, Mr. Cole, to Dr. Holzman, an employee at Jackson Memorial. Plaintiffs assert Dr. Holzman was a potential plaintiffs’ expert witness and that the letter was written to him in that capacity. In the letter, Cole stated that “the child consumed 30 to 50” iron pills, that the bottle of pills was purchased “approximately October 25, 1980,” and that plaintiffs discovered the ingestion at 7:00 a.m. on November 2, 1980. The letter, bearing on the number of pills ingested and the swiftness of the parents’ response, is relevant to the issue of fault. After reading the letter and hearing argument concerning its admissibility, the district court permitted its use for purposes of impeachment, but would not admit it into evidence for the truth of the matter stated.
Defendant, asserting that the exclusion constitutes reversible error, views the letter as an admission against interest by the authorized agent of a party opponent, Mrs. Johnson. According to plaintiffs, however, Cole had never met or spoken with Mrs. Johnson at the time the letter was written and the letter was protected under the attorney work product rule. It is apparent that any possible error arising from exclusion of the letter, if error at all, was harmless. First, the letter and its essential contents were used for impeachment. Second, the trial judge, here the trier of fact, examined the letter.
V. No Exclusion of Mrs. Johnson
Reiterating an argument raised and rejected in pre-trial motions, the Government contends Mrs. Johnson is not a proper party and that the district court therefore erred in refusing to exclude her from the courtroom during trial under Fed.R.Evid. 615.
Under the Florida Wrongful Death Statute, survivors or parents of deceased minor children are not explicitly excluded from joining as parties. Fla.Stat.Ann. §§ 768.-16-768.27. Mr. and Mrs. Johnson were both individually listed on the complaint as parties and were awarded damages in their individual capacities. The district court did not err in allowing Mrs. Johnson to remain in the courtroom during trial.
VI. Trial Judge’s “Outside Research”
This case involved extended and complex medical and scientific testimony on the nature of iron poisoning. The appropriate treatment, survival rates, and etiology are a matter of dispute in the medical community. The trial judge, apparently in order to familiarize himself with the subject matter and to put technical testimony into context, consulted medical journals not in evidence prior to hearing the expert testimony. On at least two occasions his questioning of expert witnesses referred to the journals or reflected his familiarity with the literature.
On appeal the Government alleges the trial court abused its discretion in denying a new trial because the “outside research” deprived it of the right to trial by an impartial factfinder and to challenge adverse facts made known to the factfinder. The trial judge denied the motion for a new trial because (1) the Government had failed to object during the trial, (2) he did not rely on those “outside sources,” and (3) any error was harmless.
It is a matter of common knowledge that courts occasionally consult sources not in evidence, ranging anywhere from dictionaries to medical treatises. See, e.g., Roe v. Wade, 410 U.S. 113, 129-162, 93 S.Ct. 705, 715-731, 35 L.Ed.2d 147 (1973). A trial judge’s findings are not necessarily tainted simply because he brings his “experience and knowledge to bear in assessing the evidence submitted at trial.” Hersch v. United States, 719 F.2d 873, 879 (6th Cir.1983). The trial judge may not, however, undertake an independent mission of finding facts “outside the record of a bench trial over which he [presides].” Price Brothers Co. v. Philadelphia Gear Corp., 629 F.2d 444, 447 (6th Cir.1980).
It was obvious at trial that the trial judge had done “outside research.” The Government’s failure to object during trial constitutes procedural default. In any event, the trial judge stated he did not rely on those outside sources in reaching his conclusions and this appellate court relies on those representations.
VII. Taxing of Costs
On March 5, 1984, the Clerk of Court for the Southern District of Florida, pursuant to 28 U.S.C.A. § 1920, taxed the Government $14,238.90 for plaintiffs’ costs under Fed.R.Civ.P. 54(d), which provides that “[o]n motion served within 5 days thereafter, the action of the Clerk may be reviewed by the court.” The Government, which prior to March 5th had prematurely filed itemized objections, filed a “Motion to Vacate Clerk’s Award of Costs and Memorandum” on March 8, 1984, incorporating its previous itemized objections, wherein it asked the court to “vacate the Clerk’s award of costs pending a ruling on defendant’s objections to the items of cost sought by plaintiffs.”
This record does not indicate that the district court has ruled on the Government’s March 8, 1984, Motion to Vacate. We are, therefore, without jurisdiction to entertain an appeal on the issue of costs at this time. Upon remand, the district court will have an opportunity to rule on the cost issue.
VIII. Attorney’s Fees Under FTC A
After the district court awarded $2 million in damages to the plaintiffs, the plaintiffs filed a petition for attorney’s fees. The court, asserting discretion under the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412(b), declined to make a specific fee award, indicating that the $2 million in damages was intended to include attorney’s fees: “Plaintiffs’ recovery [is] adequate to allow for the payment of attorneys’ fees from that recovery, not to exceed the statutory limit of 25% of the Final Judgment.”
In Florida, a prevailing party in a medical malpractice suit is, by statute, entitled to attorney’s fees. Fla.Stat.Ann. § 768.56. This Circuit, however, recently held that the Florida medical malpractice attorney’s fee provision does not entitle prevailing parties to a fee award against the United States under either the Federal Torts Claims Act or under the Equal Access to Justice Act (EAJA). Joe v. United States, 772 F.2d 1535, 1536 (11th Cir.1985).
The Court in Joe found nothing in either the FTCA or the EAJA to indicate that courts should diverge from the “ ‘American rule’ ” which “refers to the tradition in the United States that litigants must bear their own attorney’s fees.” Id. at 1537. The district court, therefore, had no authority to separately award attorney’s fees against the United States and should not have included in its damage judgment any amount “for the payment of attorney’s fees.” Thus, the denial of a separate judgment for fees is affirmed. Although we have already reviewed the excessiveness of the damage award, it would in any event have to be reconsidered because the district court included in it an amount for attorney’s fees.
VACATED and REMANDED.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
E. GRADY JOLLY, Circuit Judge:
Juan De Dios Levario Quiroz was convicted of assaulting a United States Border Patrol Officer with a deadly weapon. Le-vario Quiroz admitted shooting the federal officer, but claims he shot in self-defense. On appeal, he contends that the trial court erred in admitting evidence of a separate and unrelated shooting in which he also claimed self-defense. Levario Quiroz’s lawyer did not object to the introduction of the extraneous offense, and we thus review this issue under the “plain error” standard. We hold that the government’s introduction of the extraneous offense was highly prejudicial and constituted plain error. We therefore reverse Levario Quiroz’s conviction.
I
The following undisputed facts were introduced at trial. On August 17, 1982, a United States Border Patrol office received information that Levario Quiroz was wanted by the Texas Sheriffs Department and was likely to cross the Rio Grande River into the United States that afternoon. Border Patrolmen Paul Conover and Stanley Spencer proceeded to the Rio Grande River and conducted surveillance of a well-known crossing. Conover and Spencer saw a boat with two men (later identified as Levario Quiroz and Juan Enrique Galindo) cross the Rio Grande River to the United States’ side. The border patrolmen then attempted to follow the tracks of the individuals up a narrow trail leading from the river. Con-over, walking ahead of Spencer, rounded a bend in the path and saw Levario Quiroz.
At this point the parties emphatically differ as to what occurred. Conover testified that Levario Quiroz was sitting in a metal chair cradling a rifle in his arm. Conover shouted “stop” or “freeze” in Spanish (“parada”), and Levario Quiroz began shooting at Conover. Conover was shot twice and returned fire. Conover wounded Levario Quiroz with a shot-gun blast and Levario Quiroz, seriously crippled, fled only a short distance before he was apprehended. Patrolman Spencer, although unable to see Levario Quiroz at the time of the shooting incident, stated that he heard Conover shout “parada” and then shots were fired. A number of prosecution witnesses testified concerning the circumstances of Levario Quiroz’s arrest.
Levario Quiroz was his only witness. He testified that he had crossed the river to visit some friends. He stated that he was sitting in a metal chair, talking to a friend, when he heard someone yell “parada.” Suddenly, he heard shots and felt several buckshot pellets hit his legs. Levario Qui-roz then grabbed a rifle leaning against a tree and started returning fire. Thus, Le-vario Quiroz contended that he acted in self-defense.
II
The issue on appeal is whether the district court erred in admitting evidence that Levario Quiroz had been involved in a shooting in Monahans, Texas, in which he also claimed self-defense. It is therefore important to understand this evidence in the context in which it was offered at trial.
The assistant United States attorney was cross-examining Levario Quiroz about the guns that were in his possession at the time of the Rio Grande incident. Levario Quiroz had testified that he crossed the river to have a meal with some friends and had no intention of shooting anyone.
Prosecution: Why don’t you look these folks in the eye and tell them why you felt that for this friendly lunch you had to be armed to the teeth with a .45 caliber pistol and a .30 caliber pistol?
Levario Quiroz: Never, I have had problems but I never use them to kill anybody.
Prosecution: You never used these two weapons to kill someone?
Levario Quiroz: Never.
Prosecution: All right. What was Mr. Galindo carrying, how was he armed?
Levario Quiroz: He had a shotgun.
Prosecution: He had a shotgun. Was it a sawed-off shotgun?
Levario Quiroz: I don’t know. I know it was a shotgun.
The prosecution then attempted to introduce a statement signed by Levario Quiroz and given to a Mexican official while Le-vario Quiroz was in the hospital following his capture. The prosecutor, in a bench conversation, asserted that the statement was relevant for impeachment purposes and to show Levario Quiroz’s intent:
Prosecutor: Your Honor, it is time for me to get into some areas of his statement. One of the things I need to bring up, I need to ask the man, that he stated that he has never murdered anyone, with at least these two weapons. He has stated that Juan Galindo had a sawed-off shotgun as opposed to .22. He has alleged on his direct examination that he acted in self-defense, therefore, putting in the question of his intent and his credibility. Judge, what I would ask the Court, what Government’s Exhibit 22 is, first of all, is a statement given to a Mexican Consulate which Mr. Levario Quiroz signed, which he owns up to shooting three people in Ojinaga, Mexico [this reference is an apparent mistake by the prosecutor who meant to refer to the Monahans shooting] sometime prior to this particular offense. He states that Mr. Galindo was carrying .22 and he, in fact, did shoot the Border Patrol, not Galindo but himself. He owns up to that.
The prosecution specifically argued that the extraneous shooting was relevant under Fed.R.Evid. 404(b) to show intent in shooting the border patrolman. In order to rule on the admissibility of this evidence, the trial judge removed the jury from the courtroom and then questioned Levario Quiroz concerning his statement. Levario Quiroz informed the judge that he had signed the statement under duress and while under drug sedation in the hospital. After the trial court completed its inquiry into the signed statement, the prosecutor reiterated that the Monahans shooting was relevant under Rule 404(b). Levario Qui-roz’s attorney stated that he had no objection to the introduction of evidence concerning the Monahans shooting. The trial court then ruled:
You will be allowed to go, to impeach on the type of weapon that Galindo was purportedly carrying on August 17, 1982. You will be allowed to go into the fact whether or not he has ever told a Mexican] official about a shooting in Mona-hans, and allowed to pursue that. (Emphasis added.)
The prosecutor then began questioning Levario Quiroz in the presence of the jury:
Prosecution: Right. Okay. During that statement, did you tell that official, that fellow from Mexico, that Mr. Galin-do was carrying a .22 rifle; do you recall that?
Levario Quiroz: I don’t remember because the anesthesia, the shots they gave me, sometimes I didn’t know what I was saying.
Prosecution: Do you remember telling that fellow that you shot a man in Monahans, Texas?
Levario Quiroz: I do remember that because that was the last, some of the last that they asked me and I was about to get another shot [for pain].
Prosecution: Okay. You told the fellow from Mexico that you shot a male person that you knew and had a quarrel with in the past, and as a result of the shooting, two women were also wounded; is that right?
Levario Quiroz: That same incident was in Monahans.
Prosecution: Was that self-defense when you shot those two women?
Levario Quiroz: When Corales was fighting with me, he told me he was going after his gun and a lady, one of the girls, women, was handing him the gun and that is when I shot at him and hit the two women.
Prosecution: In any case, Mr. Levar-io, that was the first time you had to act in self-defense; is that correct?
Levario Quiroz: The first time you what?
Prosecution: The time in Monahans was the first time that you had to act in self-defense; is that correct, sir?
Prosecution: Now, sir, in this case when you shot the Border Patrolman with that .30 caliber carbine, that was also self-defense, wasn’t it, sir?
Levario Quiroz: Yes.
The prosecution also focused upon the Monahans shooting and the claim of self-defense during his closing argument. The prosecution stated:
Ladies and gentlemen, I don’t want you to consider the Monahans case for any other reason than whether or not this man is telling you the truth when he says he is peaceable, law-abiding. This man is not. He knows, he knows what happened out there and he is — no, this is not a laughing matter, but it will be such a laughing matter and he will laugh at each and every one of you if you let him, if you find him not guilty in this case.... You know, Mr. Levario-Quiroz certainly does, he certainly is consistent in his defenses_ Use your common sense. Getting back to what I was saying, Mr. Levario-Quiroz is very consistent. The shooting at Monahans, again, he is armed to the teeth, at a dance — at a dance. How many of you take guns to a dance? Well, it was self-defense then, too. This man, it is just really unfortunate, this is the most unlucky man I have ever seen in my life. Every time he steps out somebody is taking a shot at him and he has to defend himself.
Ill
In examining whether the trial court erred in allowing the extraneous offense testimony, we must first determine the appropriate standard of review. Since Levar-io Quiroz’s trial counsel did not object to the extraneous offense evidence, we can only reverse the trial court if plain error exists. Fed.R.Crim.P. 52(b). As the Supreme Court has stated, this rule:
authorizes the Court of Appeals to correct only “particularly egregious errors," those errors that “seriously affect the fairness, integrity or public reputation of judicial proceedings.” In other words, the plain-error exception to the contemporaneous-objection rule is to be “used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.”
United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1 (1985) (citations omitted). The court also cautioned that appellate courts should not review the alleged error in an isolated manner but rather should examine the entire record as a whole. Id., 105 S.Ct. at 1046. In the light of Young, this court has stated that “in order for an error to constitute ‘plain error,’ it must (1) seriously affect substantial rights and (2) have an unfair prejudicial impact on the jury’s deliberations.” United States v. Garza, 807 F.2d 394, 396 (5th Cir.1986).
A.
The government’s contention at trial and on appeal is that evidence concerning the Monahans shooting was relevant under Rule 404(b) to show Levario Quiroz’s intent. We therefore address only whether the extraneous evidence was admissible under Rule 404(b).
The text of Rule 404(b) states:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Our court considered Rule 404(b) in United States v. Beechum, 582 F.2d 898 (5th Cir.1978) (en banc), and this case has served as the cornerstone for precedents that have followed. Beechum establishes a two-part test for admission of extrinsic evidence: “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant’s character. Second, the evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of Rule 403.” Id. at 911. Fed.R.Evid. 403 provides: “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
In applying the Beechum test, we first consider whether the evidence is relevant. To be relevant under Beechum
the evidence sought to be admitted must tend to make the existence of some fact that is of consequence to the determination of the action either more or less probable than it would be without the evidence. Where that evidence involves an extrinsic act, its relevancy under Beechum is a function of the degree of similarity between the extrinsic act and the offenses charged. This means more than the existence of a common characteristic. For the purposes of the Beec-hum test, the common characteristic must be “the significant one for the purpose of the inquiry at hand.” United States v. Guerrero, 650 F.2d 728, 733 (5th Cir.1981) (citations omitted).
The government attempts to show similarity by arguing that both the Monahans offense and the instant shooting concerned violent acts and the claim of self-defense. It is difficult for us to understand, however, how the incident at Monahans was probative of Levario Quiroz’s criminal intent in the Rio Grande incident. This court has explained: “Where the issue addressed is the defendant’s intent to commit the offense charged, the relevancy of the extrinsic offenses derives from the defendant’s indulging himself in the same state of mind in the perpetration of both the extrinsic and charged offenses.” United States v. Satterfield, 644 F.2d 1092, 1095 (5th Cir.1981) (quoting United States v. Beechum, 582 F.2d at 911). Whether a defendant can claim self-defense for his own act of violence always depends upon the peculiar facts that surround the incident. If the factual situation surrounding Levario Qui-roz in Monahans bore any resemblance to the circumstances at the Rio Grande, the government’s position would be more understandable. However, the Monahans shooting arose in the context of a social setting involving women; Rio Grande involved a confrontation with law enforcement officers. Monahans involved someone whom the defendant had known before; Rio Grande involved strangers. The Monahans incident apparently built up over a period of some time; the Rio Grande incident occurred suddenly and unexpectedly. The Monahans incident occurred in a dance hall; the Rio Grande shooting occurred in a remote, desolate area. In Mon-ahans, only Levario Quiroz fired his weapon, but at the Rio Grande there was an exchange of fire. At Monahans, Levario Quiroz admitted his adversary did not shoot first; at the Rio Grande, according to Levario Quiroz, the border patrol shot first. At Monahans Levario Quiroz was not injured by his victim; at the Rio Grande he was critically injured by his victim. Each of these circumstances is of critical importance in evaluating the claim of self-defense, yet none of these circumstances at Monahans is similar to any of these at Rio Grande. Given the almost complete absence of characteristics in common between the two incidents, we think Monahans has no relevance to show Levario Quiroz’s state of mind when he was confronted by an armed person on the banks of the Rio Grande two months later.
The extrinsic evidence, to be sure, showed that Levario Quiroz previously had shot a man, and had, on that occasion as in this one, claimed self-defense. The jury was reminded of this point by the prosecutor in his closing argument. But, unfortunately, the Monahans incident was inadmissible for the purpose for which the prosecutor sought to use it. Rule 404(b) makes plain that “evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”
B.
Having established that the Monahans shooting was not relevant, we next inquire whether this evidence constitutes plain error. As previously noted, in order to establish plain error, an appellate court must review the entire record and determine whether the extrinsic evidence affected a substantial right of the defendant and unfairly prejudiced the jury’s deliberations and verdict. See United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 1044-46, 84 L.Ed.2d 1 (1985); United States v. Garza, 807 F.2d 394, 396 (5th Cir.1986).
After reviewing the entire record, we are convinced that the evidentiary error here resulted in the denial of the right to an impartial verdict. A review of the record establishes that Levario Quiroz shot a federal officer and that no one contested this fact. The record also makes clear that the only disputed questions before the jury were who shot first and whether Levario Quiroz shot in self-defense. There were only two witnesses to the shooting, border patrolman Conover, and Levario Quiroz. The resolution of the case before the jury could be based on nothing more and nothing less than the personal credibility of these two witnesses: whom did the jury believe? If, for example, the jury believed Levario Quiroz’s testimony that he was ambushed, shot at first and wounded, by a person he did not know, it could easily have believed that he was only defending himself against an unknown assailant who was trying to kill him; thus, the jury could have concluded that when he shot the assailant he lacked the intent to commit the crime of assaulting a federal officer. It seems to us that Levario Quiroz’s contention and testimony that he shot in self-defense is altogether plausible if one accepts his version of the events at the Rio Grande.
We repeat ourselves in saying that the only question for the jury to decide was whom it should believe, Levario Quiroz or border patrolman Conover. In assessing the importance of credibility to Levario Quiroz and the prejudice of any evidentiary error, it is fair to observe that he was significantly disadvantaged from the start. He was a Mexican who could speak little English. The jury had heard testimony that he was being sought by the sheriff for a crime. Added to these handicaps, he was asking the jury to believe his word over the testimony of a law enforcement officer. Thus, with these strikes against him, it was absolutely critical that he present to the jury all the indicia of credibility that he could call forth, in order to convince the jurors that he had acted only in self-defense.
With this critical and determinative credibility issue hanging in the balance, we have no doubt that the government's introduction of inadmissible evidence, which went to show the general character trait of committing violent acts and then claiming self-defense, was fundamentally prejudicial and undermined the impartiality of the jury’s verdict on the sole question before it: whether Levario Quiroz had acted in self-defense and therefore lacked criminal intent when he shot Conover.
Furthermore, the inadmissible evidence was highly prejudicial in other ways. It showed Levario Quiroz had shot two women and, additionally, in the course of admitting the evidence, the jury heard that Le-vario Quiroz had been indicted for the Mon-ahans offense.
We are therefore convinced that the prejudice caused by the introduction of the extraneous offense was an egregious error that seriously affected the “fairness, integrity or public reputation of [the] judicial proceedings.” United States v. Young, 105 S.Ct. at 1046. When the evidentiary error is examined within the context of the entire record, we find that plain error was committed and that fundamental fairness and basic justice require the reversal of this conviction. Consequently, we reverse and remand for a new trial.
Judge GARWOOD notes his dissent.
REVERSED AND REMANDED.
. The trial judge correctly ruled that the statement was admissible to impeach the defendant on Galindo’s weapon.
. Levario Quiroz did not testify that he was peaceable and law-abiding. He generally testified that he had no intention of harming anyone except in self-defense on the occasion of the Rio Grande shooting and that he had never killed anyone with the two guns in question.
. The government has ultimately abandoned any reason for the admissibility of this extraneous offense except to show intent under Rule 404(b). The government's confusion at trial is reflected in this portion of its final argument; it first contended that the only purpose of raising the Monahans shooting was to impeach the defendant’s testimony that he was a peaceful law-abiding person. Before the prosecutor could catch his breath, however, he argued to the jury that they should consider the Monahans incident for the purpose of showing, effectively, that Levario Quiroz's conduct in the Rio Grande incident was in conformity with his conduct at Monahans, a purpose generally prohibited under Rule 404.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
SIBLEY, Circuit Judge.
By tapping the telephone wires leading into the residence of Karl Foley in Miami, Fla., prohibition agents of the United States overheard many orders for intoxicating liquors given to Foley and his associates, arrangements made for payment and deliveries of liquors from seme place of storage elsewhere, quotations of prices, and communications with Canada and Bimini respecting the purchase and importation of liquors, and so learned that the residence was the office for a large business done in imported liquors and what records and instrumentalities of the business must be in the house. One of these agents, upon his own affidavit and those of other agents setting forth fully these conversations and that by acting on information so received they had been able ta-seize some of the liquors, applied to the District Judge for a warrant for the search of the described dwelling and the seizure therein of properties, documents, books, papers, records, codes, and accounts used as the means and instrumentalities of committing a felony, to wit, an existing conspiracy to unlawfully import, transport, sell, furnish, and deliver prohibited intoxicating liquors, and to maintain common nuisances in the keeping and selling thereof contrary to the National Prohibition Act (27 USCA), and to unlawfully bring into the United States without inspection, declaration, and entry, and to receive, conceal, and facilitate the transportation of such unlawfully imported liquors, contrary to the Tariff Act of 1930 (19 USCA § 1001 et seq.). The books, accounts, and records were elaborately described by their contents. A typewriter and adding machine were also specified. The judge made a finding of probable cause and issued a warrant for the seizure of the described property. The warrant was executed by the prohibition ag’ents, who made a return showing the seizure of the described books and papers, typewriter, and adding machine. Thereafter, but on the same day, warrants of arrest were issued and executed against Karl Foley and others. Foley was given a hearing before a United States Commissioner, who declined to inquire into the validity of the search warrant which he had not issued, and on the evidence of the witnesses produced bound him over to the District Court upon a charge of conspiracy. Thereupon Foley instituted the proceeding here under review. It is a petition entitled in the District Court of the United States for the Southern District of Florida, Karl Foley v. United States of America, and addressed to the judge of said court. It is brought by Karl Foley as a citizen of the district domiciled in the described dwelling in- Miami and tells of the search of his home by the named prohibition agents under the search warrant issued by the judge, referring to it and the return upon it as of file in the court. It tells of the hearing before the Commissioner and his refusal to act upon the lawfulness of the warrant, and that Foley was bound over to the court, but although a reasonable time had elapsed no indictment had been brought against him. The petition claimed that the information on which the warrant had issued was unconstitutionally obtained in that neither Foley nor the telephone company to whom the wires belonged had consented to their being tapped; and that the property seized was being held by the marshal and clerk of the court, and by the district’attorney, the last named proposing in the future to use it as evidence in a criminal trial in the court should petitioner be indicted. The prayers were that under 18 USCA § 625 the court would take the testimony of the witnesses in relation to the grounds for search warrant, that it would quash the warrant and would sup'press the evidence thus unlawfully obtained and would order the return of the seized property to the custody of the petitioner. As parties it named the district attorney, the marshal, the clerk, and the prohibition agents. The district attorney accepted service of a notice that on a named date Foley would “move the court” for an order upon the petition, and he appeared at the hearing, the clerk and prohibition agents also being present. Foley’s counsel there contended that the proceeding was before the judge as a committing magistrate who- had issued the search warrant and was independent of any criminal ease that might thereafter arise. lie stated he had no additional witnesses, but wished to cross-examine those who made the affidavits for the issuance of the search warrant in order to show that they had no permission to tap the wires and that they did not recognize anybody's voice and could not have identified anyone prior to the search. The judge ruled that in issuing the' search warrant there was no question of identifying persons but only the place and the things to ho seized, and that the question of identification of persons would arise only on a trial. Thereupon “the court having heard argument of counsel and being advised in the premises, it is ordered, adjudg’ed and decreed that the petition he a,nd the same is hereby denied.” This appeal followed.
It is urged that the judgment is not a final one from which an appeal may be taken. There is some difficulty in classifying it. It does not concern a search incident to and justified by an arrest, but concerns a search warrant. This is not a ease in which a prosecution was actually in progress in the District Court, although one was evidently imminent. The petition in one of its prayers refers to 18 USCA § 625, authorizing a summary hearing touching the issuance and execution of the search warrant before the officer who issued it, whether judge or commissioner. No review is provided by that statute. The judgment rendered in such a hearing would not seem to be appealable if by a Commissioner, nor does it bind a court subsequently trying a criminal case. Herter v. United States (C. C. A.) 33 F.(2d) 402, 65 A. L. R. 1240. It may be doubted whether such a decision by a judge as the mere issuer of a warrant would stand otherwise. But this petition is filed in the district com t and Sormally entitled therein and addressed to its judge. The notice given warns of action by the court, and the judgment is a formal one by the court, and no doubt entered upon its minutes. Besides the prayer under the statute there are other separate prayei-s for the return of property alleged to he in the hands of the court’s officers, the clerk, tho marshal and the district attorney, and for tho prevention of its use as evidence in the court by the district attorney. The prohibition agents were the parties to the search warrant and would have been the proper respondents in a hearing under section 625. Tho officers of tho court were not parties to the search warrant and are joined in this petition because they had the property and were intending to use it, wrongfully as was claimed. As to them tho proceeding could and should he one in the court to control their conduct as court officers. Though no indictment be pending, the court may reach forward to control the improper preparation of evidence which is to be used in a case coming before it, and ean always by summary procedure restrain oppressive or unlawful conduct of its own officers. Go-Bart Importing Co. v. United States, 282 U. S. at pages 354, 355, 51 S. Ct. 153, 75 L. Ed. 374; Atlanta Enterprises v. Crawford, Marshal (D. C.) 22 F.(2d) 834; In re Film and Pictorial Representation of Dempsey-Tunney Fight (D. C.) 22 F.(2d) 837. We think this judgment is one by the district court exercising such summary jurisdiction. An appeal was entertained without question from the refusal of the District Judge to quash a search warrant which he had issued in Dumbra v. United States, 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032. In Steele v. United States, 267 U. S. 499, 45 S. Ct. 414, 69 L. Ed. 757, a Commissioner issued the warrant but a motion to quash it and for the return of the seized property was made before and refused by the District Judge. An appeal was entertained from the order. Not only so, but it was said that the judgment of the judge on the motion to quash was res judicata in the criminal trial which followed, page 507 of 267 U. S., 45 S. Ct. 414. But it has since been said that the ruling of the judge on such questions is not conclusive in the criminal trial but the court may, if it is willing again to go into the means by which the evidence was secured, review the ruling and allow error assigned on it. Cogen v. United States, 278 U. S. at page 224, 49 S. Ct. 118, 73 L. Ed. 275. In the case last cited the reviewability of such a preliminary order is extensively examined, and the conclusion reached that the order there involved was interlocutory because the motion to return tho seized property was made after indictment found. At page 225 of 278 U. S., 49 S. Ct. 118, 120, referring to applications in summary proceedings against officers of court it is said: “The independent character of the summary proceedings is clear, even where tho motion is filed in a criminal ease, whenever the application for the [return of] papers or other property is made by a stranger to the litigation, * * * or wherever the motion is filed before there is any indictment or information against the movant, like tho motions-in Perlman v. United States, 247 U. S. 7, 38 S. Ct. 417, 62 L. Ed. 950, and Burdeau v. McDowell, 256 U. S. 465, 41 S. Ct. 574, 65 L. Ed. 1048, 13 A. L. R. 1159.” Because tho present petition was filed when no indictment was pending we think the judgment on it is independently reviewable.
The court did not err in refusing to go into a cross-examination of witnesses on the question of identifying the per sous using the telephones. The object of the search warrant, sanctioned by 18 USCA § 612(2), was the seizure of particular property concealed in the dwelling and used in the commission, of a felony. By that statute it might be seized “from the possession of the person by whom it was used in the commission of the offense, or from any person in whose possession it may be.” No persons were named in the warrant and none need have been. Property, not persons, was sought and seized.
The warrant itself disclosed that it rested upon the intercepted telephone communications. Since evidence was refused on the point of consent to tap the wires, we assume there was no consent. By the common law of evidence, aside from self-incrimination, truth was received as truth no matter if it was discovered by reprehensible means. When, however, officers of the federal government break the Federal Constitution to get at the truth the federal courts refuse to hear it, esteeming the upholding of the constitutional guaranties against abuse of governmental power more important in such circumstances than the discovery of the truth. The deceitful and surreptitious obtaining by an officer of papers prevented their use as evidence though the force of government was not used, in Gouled v. United States, 255 U. S. 298, 41 S. Ct. 261, 65 L. Ed. 647. But for this court it is settled that the surreptitious eavesdropping of federal officers by secretly tapping telephone wires is no worse than other eavesdropping, and does not require the discarding of the information secured. Olmstead v. United States, 277 U. S. 438, 48 S. Ct. 564, 72 L. Ed. 944, 66 A. L. R. 376. No physical invasion of Foley’s premises is claimed.
The things seized were not mere evidence. They were things actually used in committing the crime of conspiracy charged, and considering the extent of the business done they were even necessary to its commission. Whether the business was buying and selling liquors or a brokerage between buyers in the United States and sellers in foreign lands, it was extensive and required bookkeeping and other records. Among the things seized were books of unfilled orders and ledgers of customers’ accounts, and stock books showing liquors ordered, received, delivered and on hand which contained many pages and referred to scores of different brands. There were many invoices of shipments from Bimini, apparently current business. There were price lists covering more than a hundred brands of whiskys and other liquors. The typewriter and adding machine were shown to have been used in the business by the records made with them. We think all these clearly appear to be things used as a means of carrying on the very extensive conspiracy against the laws of the United States which was evidently in progress, and might lawfully be sought for and seized under a warrant describing them. “There is no special sanctity in papers as distinguished from other forms of property, to render them immune from search and seizure if only they fall within the scope of the principles of the eases in which other property may be seized, and if they be adequately described in the affidavit and warrant.” Gouled v. United States, 255 U. S. at page 309, 41 S. Ct. 261, 265, 65 L. Ed. 647. In Marron v. United States, 275 U. S. 192, 48 S. Ct. 74, 72 L. Ed. 231, account-books and papers in sight when one was 'lawfully arrested were held properly seized because used to carry on the criminal enterprise, though there was no search warrant for them. Go-Bart Co. v. United States, 282 U. S. 344, 51 S. Ct. 153, 75 L. Ed. 374, and United States v. Lefkowitz, 285 U. S. 452, 52 S. Ct. 420, 76 L. Ed. 877, involved a forcible exploratory search dependent on an arrest. There was no search warrant. Neither case is in point. Foley faces a search warrant regularly issued upon abundant showing of probable cause, and his contention falls before it.
Judgment affirmed.
FOSTER, Circuit Judge, dissents.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
LOGAN, Circuit Judge.
Coors Container Company appeals from a decision and order of the National Labor Relations Board (NLRB or Board), ruling that Coors Container violated section 8(a)(1) of the National Labor Relations Act (NLRA or the Act) by prohibiting display of a boycott sign and by interrogating two employees about their reasons for displaying the sign and their union sympathies, and violated both § 8(a)(1) and (3) by disciplining the two employees. 238 NLRB No. 185 (1978). The Board has filed a cross-application for enforcement of its order. The Aluminum Workers International Union, AFL-CIO was the charging party in the NLRB hearing and is intervenor in this action.
In April 1977, employees of Adolph Coors Brewery Company (the brewery) engaged in a strike and boycott of their employer. Striking employees picketed the gates of the industrial park shared by the brewery and its wholly owned subsidiary, the Coors Container Company (Coors) and distributed boycott signs to employees. Coors Container employees were not on strike and were not represented by a union, but had to cross the picket line to report to work. Pursuant to instructions from the president of the parent company, the Coors security supervisor directed guards to stop, identify, and notify the supervisor immediately of any vehicle displaying a boycott sign while on the plant site. The supervisor also told the guards that such signs were to be removed from the vehicles.
Two Coors Container employees, Andrew Clements and Mark Mugge, were stopped by security guard Paul Estala for displaying a sign which read “Boycott Coors-Scab Beer” as they were leaving the plant in Clements’ truck at the end of the night shift. The employees placed the sign in the truck window as they approached the guard station, approximately 200 to 300 feet from the industrial park exit and about IV2 to 2 miles from any production facility.
Testimony credited by the administrative law judge established the following facts concerning the confrontation. After Clements stopped the truck, Estala told Mugge and Clements to remove the sign and give it to him. When the employees refused to remove or relinquish the sign, Estala took their company identification cards, asked the two if they were sympathetic to the brewery strike and stated that they should not be coming to work if they were in sympathy with the strikers. A heated conversation ensued between Mugge and Estala. Mugge contended that they did not need to remove the sign since the truck was private property and stated that they were using the sign to pass through the picket line safely. Estala again asked if they were sympathetic to the strike. During the confrontation between Mugge and Estala both men were visibly upset and practically yelling. Mugge used expletives in the interchange and called Estala a “m_____ f------” Estala directed Clements to pull off the roadway, and called for a guard officer.
When security lieutenant Douglas McClure arrived in response to Estala’s call and asked Mugge and Clements to remove the sign, a similar confrontation occurred between Mugge and McClure with Mugge asserting that they had a right to display the sign in the truck. When Estala asked to see the truck’s registration, Mugge got out of the truck, banged his fist on its hood, used the same m_____f_____obscenity in referring to the guards and threatened to report them to the company vice-president. Donald Long, security supervisor for the Coors plant, arrived and after a briefing by McClure began questioning Clements; Mugge interrupted him to complain about Estala and again used foul language. Long told Mugge and Clements he would recommend that some action be taken against the two, who then left the premises.
When Mugge and Clements returned to the plant for their next shift, they were questioned by company officials concerning the incident and their reasons for displaying the sign. At that time Mugge was discharged and Clements was given a verbal warning. Mugge’s termination report form indicated he was discharged for “insubordination-gross misconduct.” A written record of the verbal warning given to Clements was placed in his employment file.
In its petition to this Court, Coors raises the issue whether the Board’s decision and order in this case are supported by substantial evidence in the record. More specifically, Coors challenges the Board’s conclusions that Coors violated § 8(a)(1) or (3) of the Act (1) by promulgating and enforcing a rule prohibiting employees from displaying boycott signs on company premises, (2) by discharging Mark Mugge and disciplining Andrew Clements, and (3) by interrogating the employees concerning their sympathies regarding the brewery strike and their reasons for displaying the boycott sign.
Section 7 of the NLRA guarantees employees “the right ... to form, join or assist labor organizations . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157. Section 8(a)(1) of the Act makes it an unfair labor practice “to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in section 7[157].” 29 U.S.C. § 158(a)(1). Section 8(a)(3) establishes that it is an unfair labor practice for an employer to discriminate “in regard to . . . tenure of employment ... to encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3).
In reviewing determinations by the NLRB, our function is limited to determining whether the findings of violations are supported by substantial evidence on the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 491, 71 S.Ct. 456, 466, 95 L.Ed. 456 (1951). Credibility determinations and rational inferences are within the Board’s province and ordinarily will not be disturbed on appellate review. NLRB v. Gold Spot Dairy, Inc., 417 F.2d 761, 762-63 (10th Cir. 1969).
I
It is undisputed that Coors created a rule prohibiting display of signs or stickers urging a boycott of the company’s product on Coors property in work or nonwork areas. Further, it is not disputed that Coors security guards were instructed to detain vehicles displaying such signs. Coors contends the finding that display of the boycott sign was concerted activity protected by Section 7 of the Act, unlawfully interferred with by enforcement of the Coors’ rule, is error because (1) special circumstances at the plant justified Coors’ proscription of signs, and (2) display of the boycott sign was indefensible, unprotected activity.
In contending that special circumstances justified the prohibition, Coors cites testimony by officials that the rule was necessary “to monitor internal plant security, and also guard against incidents at the gates.” Ordinarily an employer may not prohibit distribution of union literature or solicitation during non-working time in nonworking areas. NLRB v. Magnavox Co., 415 U.S. 322, 94 S.Ct. 1099, 39 L.Ed.2d 358 (1974); Republic Aviation Corp. v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 (1945). A company may, however, prohibit protected activity when special circumstances make such a prohibition necessary to maintain production and discipline. Id. at 801-03, 65 S.Ct. at 987. The mere assertion by an employer that special circumstances exist is, of course, insufficient to justify curtailment of the employee’s guaranteed rights. NLRB v. Montgomery Ward & Co., 554 F.2d 996, 1000 (10th Cir. 1977). In this case, the boycott sign was displayed over a mile from any work facility, inside the employee’s vehicle. Further, the wording of the sign was not so provocative as to remove protection of the Act. See Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 283-84, 94 S.Ct. 2770, 2780-2781, 41 L.Ed.2d 745 (1974); Linn v. United Plant Guard Workers, Local 114, 383 U.S. 53, 60-61, 86 S.Ct. 657, 661-662, 15 L.Ed.2d 582 (1966). We believe there is substantial evidence in the record to support the Board’s determination that Coors failed to show special circumstances sufficient to justify its prohibition rule.
Concerted activity for the purpose of mutual aid or protection is protected by section 7 unless such activity is unlawful, violent, in breach of contract or “indefensible.” NLRB v. Washington Aluminum Co., 370 U.S. 9, 17, 82 S.Ct. 1099, 1104, 8 L.Ed.2d 298 (1962). Coors relies on NLRB v. Local Union No. 1229, International Bhd. of Electrical Workers, 346 U.S. 464, 74 S.Ct. 172, 98 L.Ed. 195 (1953), for its contention that the conduct was indefensible. It reads that case as establishing a flat rule that any boycott by employees of their employer’s product is indefensible activity. The holding is not so broad. The Court emphasized two elements: (1) the attack was on the quality of the employer’s product, and (2) it was not connected to a labor controversy. Id. at 468, 471, 477, 74 S.Ct. at 179. See NLRB v. Frontier Guard Patrol, Inc., 399 F.2d 716, 724 n. 9 (10th Cir. 1968); NLRB v. National Furniture Mfg. Co., 315 F.2d 280, 284-85 (7th Cir. 1963). Neither of these elements is present in the instant case: the boycott sign did not disparage the quality of Coors beer, and urging a boycott in support of the striking brewery employees clearly is related to a labor dispute. Hence, petitioner’s argument fails. Accord, Texaco, Inc. v. NLRB, 462 F.2d 812 (3d Cir.), cert. denied, 409 U.S. 1008, 93 S.Ct. 442, 34 L.Ed.2d 302 (1972). Cf. NLRB v. Fruit & Veg. Packers Local 760, 377 U.S. 58, 84 S.Ct. 1063, 12 L.Ed.2d 129 (1964) (consumer picketing to discourage purchase of primary employer’s products).
We are satisfied that the record as a whole provides substantial evidence for the Board’s finding that promulgation and enforcement of a rule prohibiting boycott signs on Coors’ premises-by employees properly on the premises-violated § 8(a)(1) of the NLRA.
n
The Board found that Coors’ reprimand of Clements and discharge of Mugge interfered with the employees’ exercise of section 7 rights in violation of § 8(a)(1) and discouraged membership or support of a labor organization in violation of section 8(a)(3).
A
Coors challenges the Board’s finding as it relates to the reprimand of Clements partly on the ground that “[h]e was given only a ‘verbal warning,’ which is ‘not . . . a written reprimand under the Discipline and Discharge Policy.’ ” This is a distinction without a difference. See St. John’s Hosp. and School of Nursing v. NLRB, 557 F.2d 1368, 1377 n. 10 (10th Cir. 1977). Coors admits that the warning was the result of Clements’ display of the boycott sign. By disciplining Clements for engaging in activity protected by section 7, Coors discouraged union membership in violation of the Act. See Groendyke Transport, Inc. v. NLRB, 530 F.2d 137, 142 (10th Cir. 1976).
B
Coors challenges the Board’s finding that the discharge of Mugge was an unfair labor practice, arguing that the activity of displaying the sign was motivated by fear rather than by commitment to principle. The employees testified that the sign was displayed to protect them and the truck from being harmed by the picketing strikers. Coors contends this establishes they were not making “common cause” with the strikers and hence their activity was unprotected. See NLRB v. Union Carbide Corp., 440 F.2d 54 (4th Cir.), cert. denied, 404 U.S. 826, 92 S.Ct. 96, 30 L.Ed.2d 55 (1971).
The Board made a factual finding that these employees were also motivated by a desire to encourage the brewery strikers. We find that this determination is supported by substantial evidence on the record, which shows that Coors believed the employees were seeking to encourage the strikers and that the display was intended by Mugge and Clements to boost the morale of the strikers. Presumably, had the employees been motivated solely by fear, they would have been willing to remove the sign, as requested by the guard, and display it after passing the guard station but before reaching the gate. Even if fear played a part in the decision to display the sign, it was not the sole motivating factor and did not render the activity unprotected.
Coors contends its sole reason for Mugge’s discharge was his use of vulgar language to the security guard and guard supervisor. The Board found that Mugge did use vulgar language during the incident but held it was not so egregious as to remove the protective mantle of the .Act.
The NLRA does not interfere with an employer’s right to discharge an employee for a good reason, a bad reason or no reason at all so long as a contributing motivation in the discharge is not antiunion animus, Betts Baking Co. v. NLRB, 380 F.2d 199, 203 (10th Cir. 1967), or the fact that an employee engaged in protected activity. See Groendyke Transport, Inc. v. NLRB, 530 F.2d 137 (10th Cir. 1976); NLRB v. American Coach Co., 379 F.2d 699 (10th Cir. 1967). However, egregious or flagrant conduct by an employee may justify discharge of that employee even though the conduct occurred in the course of otherwise protected activity. Timpte, Inc. v. NLRB, 590 F.2d 871 (10th Cir. 1979). In Timpte the employee refused to refrain from using filthy language and from defaming employees and company officials in literature distributed as part of his campaign for an office in the union; we distinguished that conduct from an “impulsive behavior” situation. 590 F.2d at 873 (citing NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965)).
In the instant case, the Board’s conclusion that Mugge’s conduct was not so egregious as to forfeit the protection of the NLRA was reached by application of the standard set forth in NLRB v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965): “[N]ot every impropriety committed during such activity places the employee beyond the protective shield of the act. The employee’s right to engage in concerted activity may permit some leeway for impulsive behavior, which must be balanced against the employer’s right to maintain respect and order.” In Thor an employee lost his temper during a grievance proceeding, uttering at least one cuss word and then referring to a company superintendent by another vulgar expression. His discharge, ostensibly for that outburst, was found by the Board to be improper, and the Seventh Circuit upheld the determination. We think the conduct at issue here, though vulgar and not to be condoned, is an example of the impulsive behavior we distinguished in Timpte.
Despite petitioner’s contrary assertions, the record presents no other instance of a discharge of a Coors employee for vulgar language alone. The record reveals that Coors officials clearly were concerned with the effect of the sign both on the container company employees and the striking brewery employees, the possibility of contacts being established between the two groups, and the employees’ reason for displaying the sign.
In sum, we hold the evidence in the record, although not overwhelming, supports the Board’s conclusion that Coors disciplined the two employees in violation of NLRA §§ 8(a)(1) and (3).
Ill
The Board found that Coors violated § 8(a)(1) of the Act by unlawfully interrogating Mugge and Clements in two instances: (1) when the guard Estala asked them whether they were sympathetic to the strike by brewery employees, and (2) when, during the disciplinary hearing, Coors officials asked the employees why they had displayed the sign. Coors offers no reason for its objection to the Board’s finding that questioning during the disciplinary hearing was unlawful interrogation; rather, it simply asserts “[tjhere is nothing improper about such questioning.” Coors challenges the conclusion that Estala unlawfully interrogated the employees on the grounds that it is supported only by “self-serving” testimony of Mugge, and there was conflicting evidence. It asserts that Estala’s denial of the questioning, (“If I did, I don’t recall. But, I’m almost sure I didn’t.”) joined with the failure of Mugge and Clements to re- .... ,. .. port this questioning to other guards, mandates a finding in favor of Coors. We disagree.
Not all interrogation of employees by an employer violates the Act, “[T]he issue is whether the proof demonstrates interference, restraint or coercion of employees in violation, of § 8(a)(1).” Groendyke Transport, Inc. v. NLRB, 530 F.2d 137, 144 (10th Cir. 1976). The administrative law judge credited the testimony of Mugge and Clements as against that of Estala on this point, and the Board affirmed her findings. Contrary to petitioner’s assertion, this testimony is not the only record evidence supporting the finding of interrogation concerning union sympathy. The written statement Mugge presented at the disciplinary hearing recounted Estala’s questions and comments concerning the employees’ sympathy with the brewery strike.
Estala’s statement that if Mugge and Clements were union sympathizers they “shouldn’t be working at Coors” is less subtle than the statement deemed coercive in NLRB v. Gold Spot Dairy, Inc., 417 F.2d 761 (10th Cir. 1969), where a supervisor advised an employee to “Sort of limit your [union] meetings.” Testimony by Coors witness Glen Kline established that during the disciplinary hearing Coors officials sought to learn why the employees displayed the sign. His description indicates the disciplinary hearing had a cross-examination atmosphere and the officials focused on the possibility that the employees were sympathetic to the strikers.
Although there is conflicting evidence, we are satisfied the record as a whole sufficiently supports the finding that the questioning involved in this ease was coercive and interfered with the section 7 rights of employees to engage in concerted activities for mutual aid and protection. See NLRB v. Gold Spot Dairy, Inc., 417 F.2d 761 (10th Cir. 1969).
Enforcement granted,
. Coors also seeks to justify the promulgation and enforcement of the rule prohibiting boycott signs on grounds that (1) Mugge’s use of vulgar and offensive language removed the conduct from protection of the Act and (2) the employees displayed the sign out of fear. These arguments have relevance only to the Board’s finding that Coors’ disciplining of these employees was an unfair labor practice and are considered in Part II.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
HASTIE, Circuit Judge.
Rule 73, Federal Rules of Civil Procedure, 28 U.S.C.A., provides that the running of the time for appeal from a judgment of a District Court is terminated by the timely filing of any of certain designated types of post-judgment motions. The rule makes no specific mention of motions for rehearing or reconsideration. The present motion to dismiss an appeal requires us to consider the effect of a motion to reargue, following a granting of summary judgment, on the running of appeal time.
The procedural sequence in the court below was as follows:
On December 14, 1960, the court granted a motion of the defendants for summary judgment and entered a final order dismissing the action as to both defendants. On December 21, 1960, the plaintiffs filed a “Motion to Reargue Motions to Dismiss, In Accordance With Local Rule 34” of the District Court for the Eastern District of Pennsylvania. Other motions were filed at the same time. We do not discuss them because, if the motion to reargue did not toll the running of appeal time, none of the others did.
Supervening circumstances beyond the movants’ control, among them the untimely death of the trial judge after he had heard argument on the post-judgment motion but before he could decide it, delayed disposition of this matter for almost a year. On December 1, 1961, after a second argument of the motion, the court entered a dispositive order that “the motion to reargue is denied and the order of Judge Egan, entered December 14, 1960, is adopted and reaffirmed in toto”. On December 26, 1961, the plaintiffs filed their notice of this appeal, stating that they appealed from the order of December 1, 1961.
It is understandable that counsel regarded the order of December 1, 1961, with its reaffirmation of the final order of December 14, 1960, as a new final order. However, we think that technically the order of December 14, 1960, remained the effective judgment, particularly since the subsequent order actually denied rehearing. In the circumstances we think we should and we do treat the appeal as taken from the order of December 14, 1960. Cf. United States v. Ellicott, 1912, 223 U.S. 524, 32 S.Ct. 334, 56 L.Ed. 535. Thus, the decisive issue is whether the motion for re-argument filed seven days after entry of the final order of December 14, 1960, stopped the running of appeal time.
Rule 73 provides that “the running of the time for appeal is terminated by a timely motion” made pursuant to any of certain enumerated rules, including “granting or denying a motion under Rule 59 to alter or amend the judgment; or denying a motion for a new trial under Rule 59”. Rule 59 has been properly described as “an amalgamation of the motion for new trial at. common law and the petition for rehearing in equity adapted to the unified procedure * * *.” 6 Moore, Federal Practice (2d ed. 1953) ¶ 59.02, at 3707. Of course, technically there is no trial when summary judgment is granted. But even before Rule 59 was amended in 1946 to add subsection (e), specifically providing for motions to alter or amend a judgment, the original provision of the Rule authorizing a party to move for a new trial within ten days after judgment was construed by several courts as broad enough to include motions for reconsideration of orders finally disposing of actions before trial. Jusino v. Morales & Tio, 1st Cir. 1944, 139 F.2d 946; Safeway Stores, Inc. v. Coe, 78 U.S.App.D.C. 19, 1943, 136 F.2d 771, 148 A.L.R. 782. Since the addition of subsection (e) the courts which have considered the problem seem to have experienced no difficulty in concluding that a motion for rehearing or reconsideration made within ten days after the entry of an appealable order is within the coverage of Rule 59 and, therefore, under Rule 73 terminates the running of an appeal time. Yates v. Behrend, 108 U.S.App.D.C. 56, 1960, 280 F.2d 64; Salmon v. City of Stuart, Florida, 5th Cir. 1952, 194 F.2d 1004. And see Notes of Advisory Committee on Rules, 28 U.S.C.A., Federal Rules of Civil Procedure, Rule 59. We ourselves have recently indicated that such is the case, although a somewhat different problem was before us. See Sleek v. J. C. Penney, 3 Cir. 1961, 292 F.2d 256, 257.
It follows that local rule 34 of the District Court for the Eastern District of Pennsylvania which provides for “Motions for Reargument” within ten days after the entry of judgment is a specific authorization of a post-judgment procedure that is covered inferentially by the broader general language of Rule 59. It makes no difference that the motion before us was described as one filed under the local rule rather than Rule 59. As the present case demonstrates, a contrary conclusion would make rules of court a trap rather than a guide to counsel.
The thirty day period within which the present appeal could be taken began to run anew on December 1, 1961. Appeal was noted within thirty days thereafter, and thus was timely.
The motions to dismiss will be denied.
. The local rule reads in part as follows:
“Rule 34. Motions For Reargument.
“(a) Motions for reargument shall be filed and served within ten (10) days after the entry of the judgment, order or decree upon which reargument is requested. * * *”
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | A | songer_crossapp |
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there were cross appeals from the decision below to the court of appeals that were consolidated in the present case.
BAUER, Circuit Judge.
The issue in this appeal is whether the International Brotherhood of Teamsters Local No. 710 Pension Fund (the Fund or Plan) as amended complies with the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001 et seq. Two Plan participants, William R. Janowski and Robert H. Barnhisel (collectively Janowski), initiated this action alleging that the amendments deprived them of benefits which vested before ERISA became effective. The suit ultimately proceeded as a class action on behalf of all pre-ERISA participants of the Fund whose early retirement benefits were, or might be, affected by the amendments.
The district court, 500 F.Supp. 21, approved some of the amendments and disapproved others. It held that the designation of 65 as the normal retirement age under the amended Plan was permissible. It found, however, that the methods adopted for calculating accrued benefits for pre-ERISA service, for part-time service, and for certain early retirement and vested retirement benefits were improper. It also found that the initial Summary Plan Description Booklet distributed to Plan participants explaining the revisions did not clearly advise them of the option to elect benefits under either the old or the new Plan, whichever was greater. For these reasons, the district court entered a permanent injunction enjoining the trustees of the Fund from revoking the option of any participant who entered covered employment before July 1, 1976, to choose benefits under the prior Plan. It also awarded plaintiffs attorneys’ fees in the amount of $142,485.00. Both sides have appealed. We affirm in part and reverse in part.
Each party assigns numerous errors. The trustees allege that plaintiffs may not bring this suit either as individuals or as class representatives. They attack the district court’s finding that there was an implied accrual of benefits in the original Plan which had to be reflected in the formula adopted for computing pre-ERISA service credit and assert that the formula chosen to provide accrued benefits for part-time employees complies with the statute because it is both ratable and reasonable, as required by 29 U.S.C. § 1054(b)(3)(B). The trustees also maintain that they did not reduce any vested benefits available under the prior Plan as set forth in the July 1979 Summary Plan Description Booklet because participants enrolled in the pre-ERISA Plan may elect to receive the benefits under either Plan. Therefore, they argue that the injunction preserving this option was unwarranted. Finally, the trustees assert that the award of attorneys’ fees is improper because the litigation has failed to benefit the entire class of Fund participants and has not added to the Fund’s assets.
In contrast, Janowski maintains that 57 should have been designated as the normal retirement age because that was the normal retirement age under the prior Plan. He contends that the change from 57 to 65 deprives Fund participants of vested rights to: (1) reasonable actuarial reductions for benefits beginning before 57; (2) benefits beginning at 57 instead of 65; and (3) preretirement benefits between 47 and 57. Additionally, Janowski contends that if the class prevails on the issue of the normal retirement age the amount of the fee award should be increased to reflect this fact.
i
Initially, the trustees challenge Janowski’s right to bring this action on several grounds and urge dismissal for lack of subject matter jurisdiction. They argue that this case is not ripe because no pre-ERISA Plan participant has applied for and been denied any benefits. The trustees maintain that the named plaintiffs cannot allege any concrete injury because they are not yet ready to retire and have never applied for early retirement benefits and that they do not have a common interest with the entire class of Fund participants. Additionally, the trustees allege that the exhaustion doctrine is applicable to ERISA actions and assert that Janowski has failed to pursue his administrative remedies.
The trustees’ contention that the exhaustion doctrine applies to ERISA actions is persuasive. Although § 1132 provides that a civil action may be brought by a participant “to clarify his rights to future benefits under the terms of the plan,” 29 U.S.C. § 1132, it is silent as to whether exhaustion is a prerequisite for exercising this statutory right. While this issue has not yet been considered by this court, the Ninth Circuit has held that “sound policy requires the application of the exhaustion doctrine in suits under the Act.” Amato v. Bernard, 618 F.2d 559, 567 (9th Cir. 1980).
Assuming arguendo that the exhaustion doctrine should be applied to ERISA cases, the doctrine is not absolute, White Mountain Broadcasting Co., Inc. v. FCC, 598 F.2d 274 (D.C.Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 449, 62 L.Ed.2d 375 (1979), and unless statutorily mandated, its application is committed to the sound discretion of the court. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). Where exhaustion is not specifically required by the statute, the district court’s discretionary decision may only be disturbed on appeal when there has been a clear abuse of discretion. Medina v. Castillo, 627 F.2d 972 (9th Cir. 1980).
Exhaustion has no relevance here, for the doctrine is only appropriate where it is necessary to develop a full factual record or to take advantage of agency expertise. Aleknagik Natives Ltd. v. Andrus, 648 F.2d 496 (9th Cir. 1980). Thus, the exhaustion doctrine has been applied in ERISA cases only in situations where an individual has applied for and been denied current benefits. In contrast, this case concerns clarification of the right of an entire class to future benefits. This issue is solely a question of statutory interpretation and does not require a factual record. See McKart v. United States, 395 U.S. 185, 197-99, 89 S.Ct. 1657, 1664- 65, 23 L.Ed.2d 194 (1968); Frontier Airlines v. CAB, 621 F.2d 369 (10th Cir. 1980). Since the reasons for the doctrine are not present, the district court did not abuse its discretion in waiving the exhaustion requirement.
We reject the trustees’ contention that this case is a “battle of hypotheticals, a classic example of the difficulty of deciding a case concerning a complex, technical subject without the benefit of specific facts.” Defendants-Appellants, Cross-Appellees’ br. at 35. Janowski seeks a determination of the nature and scope of Plan participants’ rights to future benefits. Section 1132 provides that a civil action may be brought “by a participant ... to clarify his rights to future benefits under the terms of the plan . . ..” 29 U.S.C. § 1132. This action is precisely the type of action contemplated by the statute.
Lastly, the trustees’ argument that the named plaintiffs are inadequate class representatives because they have no common interest with all Fund participants ignores the fact that the class which Janowski purports to represent, and which the trial court certified, includes only “[a]ll persons who are now, or who were as of February 1, 1976, members of Local 710 of the International Brotherhood of Teamsters and who have accepted early retirement or intend to do so under the terms of the Pension Plan of said Local 710 and whose early retirement benefits were or will be affected by the amendments to the Plan made as of February 1, 1976.” The named plaintiffs certainly have interests in common with this class. The preliminary challenges to the right to bring this action fail.
II
The technical issues and the specific sections involved in this ease must be analyzed in light of the scope and spirit of ERISA as a whole. Designed to revamp private employee pension plans to ensure minimum vesting, funding, and insurance benefits, H. R.No. 1522, 93d Cong., 1st Sess. reprinted in [1974] U.S.Code Cong. & Ad.News 4639, 4647-48, ERISA is, of necessity, a highly complex and detailed statute. Three administrative agencies, the Internal Revenue Service (IRS), the Department of Labor, and the Pension Benefit Guaranty Corporation, are charged with insuring that employers amend their pension funds to conform to the statute.
The Fund involved here was created in 1955 pursuant to a collective bargaining agreement. It provided for retirement, survivor, disability, and death benefits for which the employer contributed on behalf of its employees. The Plan was amended on April 21, 1976, but was retroactively effective as of February 1, 1976. After the amendments, the Plan was submitted to the IRS and approved. Thereafter, in January 1978, a booklet describing the revisions and reprinting the text of the new Plan was published for Plan participants. The option of participants with pre-ERISA service to take early retirement benefits under the prior Plan did not appear in either the text of the Plan or the Plan description. These omissions were corrected in the revised booklet, distributed in July 1979, where the option was included in the text of the Plan and the Plan description.
Under the prior Plan a participant was entitled to benefits on the normal retirement date, the date on which the participant reached age 57 and had accumulated 20 years of credited service. The amended Plan retained the right to receive benefits at age 57 with 20 years of service but changed the designation from normal retirement to regular retirement and, pursuant to 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8), adopted a new normal retirement age of 65, applicable to participants who were not enrolled in the pre-ERISA Plan.
Since calculations of vesting and accrued benefits are based on the normal retirement age, the age designation significantly affects the amount of benefits the participant receives. Section 411(a)(8) defines normal retirement age as the earlier of: (A) the time a Plan participant attains normal retirement age under the Plan or (B) the later of the time a Plan participant attains 65 or accumulates 10 years of credited service. 26 U.S.C. § 411(a)(8). Janowski argues that subsection (A) mandates that the normal retirement age remain the same in the amended Plan as it was in the prior Plan. In contrast, the trustees read section 411(a)(8) to permit them to designate any age as the normal retirement age, subject to the limitation that it cannot be later than the date a participant attains age 65 unless the participant has not accumulated 10 years of credited service, in which case the participant reaches normal retirement age after 10 years of credited service. The trustees concede that participants in the pre-ERISA Plan have a right to benefits at age 57 after 20 years of credited service but emphasize that the right has been incorporated into the new Plan under the designation regular retirement. They assert that nothing in section 411(a)(8) requires that they designate an age less than 65 as the normal retirement age for participants who were not enrolled in the pre-ERISA Plan.
Initially, we note that § 411(a)(8) has not yet been judicially interpreted. Therefore, in construing the section we are guided by the plain meaning of the language, Atchison, T. & S.F. Ry. Co. v. United States, 617 F.2d 485 (7th Cir. 1980), as well as Congressional intent. The legislative history to § 411(a)(8) indicates that in fashioning minimal requirements for private pension funds, Congress intended to increase the number of individuals participating in retirement plans, H.R.No. 93-807, 93d Cong., 2d Sess., reprinted in [1974] U.S.Code Cong. & Ad.News 4671, while at the same time promoting the financial integrity of those plans. H.R.No. 93-533, 93d Cong. 1st Sess. reprinted in [1974] U.S. Code Cong. & Ad.News 4652. Analyzing § 411(a)(8) in this light, it is clear that Congress intended the trustees, as fiduciaries, to balance desired benefits against economic realities. For this reason, the statute authorized any normal retirement age subject to the limitations of 65 years or 10 years of service. Under § 411(a)(8) the trustees certainly could have established a normal retirement age of less than 65; the statutory language, however, in no way requires them to do so.
Congress was aware that ERISA would require private pension funds to be' substantially amended to conform to ERI-SA. Had it intended the normal retirement age to be the same age as that under the prior Plan it undoubtedly would have so provided. Obviously, the required amendments were costly and Congress wisely committed the task of balancing eligibility standards and benefit levels against the ability of the plans to pay. We agree that age 65 was permissibly chosen as the normal retirement age under the new Plan.
Janowski makes much of the fact that the normal retirement age was not redesignated until April 21, 1976. Citing no authority in support, he argues that in order to change the normal retirement age from 57 to 65 the trustees would have had to make the change before February 1, 1976, the date on which the ERISA reforms were incorporated into the prior Plan. Plaintiffs-Appellees, Cross-Appellants’ reply br. at 2. In rebuttal the trustees contend that Janowski’s timeliness argument may not be considered because it was raised for the first time on appeal and, alternatively, argue that the date on which the normal retirement age was redesignated is of no significance.
It is axiomatic that generally we may not review issues raised for the first time on appeal. Houser v. General Motors Corp., 595 F.2d 366, 371 (7th Cir. 1979). We need not decide the timeliness issue, however, for assuming arguendo that the issue was preserved, it fails. In oral argument Janowski conceded that under ERISA the trustees could have changed the retirement age to 65 had they done so before February 1, 1976. Janowski interprets the word “plan” in the phrase “normal retirement age under the plan,” 29 U.S.C. § 1002(24), 26 U.S.C. § 411(a)(8), to refer to the pre-ERISA Plan. He strenuously argues that, since 65 was not the normal retirement age under the pre-ERISA Plan or on the day the ERISA reforms became effective, the trustees had no authority to alter this age.
We do not read the word “plan” to have the restrictive definition Janowski urges. Nothing in the statutory language implies that the normal retirement age must be the age designated under the earlier Plan. In fact, § 411 makes no reference to any preERISA provision. It merely states that a normal retirement age be specified and provides that this age may be lower than 65 but not greater than 65, provided that at 65 the participant has accumulated 10 years of credited service. The. trustees did all that the statute required by specifying an age not greater than 65. We do not agree with Janowski that the date on which the preERISA Plan was revised to comply with the statute is significant. The statute did not require pre-ERISA plans to be amended on the date it became effective. Thus, preERISA benefits accrued under the prior Plan until February 1, 1976; pre-ERISA benefits could not accrue after ERISA became effective. Since the trustees concededly had the right to change the retirement age to 65 on February 1,1976, they also had the right to make this change on April 21, making it retroactively effective as of February 1, 1976.
III
The next consideration is whether the amended Plan incorporated a proper method for computing accrued benefits during pre-ERISA years. The statute sets forth two formulas to be applied to pre-ERISA years. Subsection (i) provides that accrued benefits shall be determined “under the plan, as in effect from time to time prior to September 2,1974.” This subsection is triggered whenever a prior plan contained an accrued benefit formula. Subsection (ii) provides the formula to be applied if the old plan had no accrued benefit formula.
It is undisputed that the prior Plan did not specify a formula. However, relying on the fact that the prior Plan provided for a full benefit of $450 per month for persons retiring at age 57 after 20 years of qualified service, the district court reasoned that ‘Aoth of the benefits implicitly accrued in'each of the 20 years of qualified service. We reject the concept of implied accrual of benefits, for had Congress intended that a formula based on required years of service be implied whenever a plan did not specify one, subsection (ii) would be superfluous. Since statutes should be construed so as to give effect to all their parts, People v. Consolidated Rail Corp., 589 F.2d 1327 (1978), cert. denied, 442 U.S. 942, 99 S.Ct. 2884, 61 L.Ed.2d 312 (1979), and since there was no accrued benefit formula in the prior Plan, subsection (ii) should have been applied.
IV
We next consider whether the amended Plan provides appropriate accrual for part-time service. Under § 4.04 of the amended Plan, employees who work less than 20 weeks receive no accrued credit, employees who work between 20 and 35 weeks receive one-half year credit, and employees who work more than 35 weeks receive a full year’s credit. The district court concluded that this “rough allocation” of credit was contrary to 26 U.S.C. § 411(b)(3)(B) because it was too imprecise. In reaching its decision that the allocation was not sufficiently ratable, the district court relied on two of the examples set forth in the regulation implementing § 411(b)(3)(B), 29 C.F.R. § 2530.2042(c)(4). These two examples contained computations which more accurately credit a part-time employee for the specific amount of time worked.
The trustees argue that the district court erred by treating these examples as regulations. They emphasize that the statute does not provide a formula for prorating credit but simply requires that the partial year crediting be reasonable and ratable. The trustees contend that the amended Plan fulfills these limitations. Hence, they insist that the district court had no authority to interfere with their discretion by imposing its own notion of reasonableness to require a more precise allocation than contemplated by the statute or the regulations.
Trustees’ position fails. Under the formula adopted by the trustees, employees who have worked 21 weeks receive the same credit as those who have worked 34 weeks. For employees who work more than 21 weeks, the allocation is neither reasonable nor ratable. Janowski has propounded a method of computation whereby employees who work between 21 and 34 weeks would fall within one of the six groups, each group receiving increased credit for time worked on a percentage basis up to 35 weeks, at which point credit for the entire year would be given. Under his proposed amendment, an employee who works 20 but less than 21 weeks would receive .5 year credit, an employee who works 21 but less than 24 weeks would receive .6 year credit, an employee who works 24 but less than 28 weeks would receive .7 year credit, an employee who works 28 but less than 31 weeks would receive .8 year credit, an employee who works 31 weeks but less than 35 weeks would receive .9 year credit, and an employee who works 35 weeks or more would receive a full year’s credit. This proposed Plan amendment satisfies the statute and should be incorporated into the amended Plan.
V
With respect to early retirement benefits or deferred benefits, it is undisputed that any participant enrolled in the original Plan retains the choice to receive either the new Plan’s “formula” benefit or the prior Plan’s “scheduled” benefit, whichever is greater. The trustees maintain that because this fact is undisputed and clearly set forth in the July 1979 Summary Plan Description Booklet, the entry of an injunction preserving this option is unnecessary and inappropriate.
As required by Fed.R.Civ.P. 65(d), the district court set forth its reasons for issuing the permanent injunction. It found that injunctive relief was appropriate for two reasons: (1) the improper schedule set forth in the 1978 Summary Plan Description Booklet could be readopted by the trustees and (2) retroactivity of the amendment in the July 1979 booklet was not clearly specified.
We cannot agree. In determining whether to issue a permanent injunction the likelihood of future violations must be viewed in light of past conduct. SEC v. Resch-Cassin & Co., Inc., 362 F.Supp. 964 (S.D.N.Y.1973). We are also mindful that injunctive relief is not appropriate to prevent the possible occurrence of an event at some indefinite future time. Interco Inc. v. FTC, 478 F.Supp. 103 (D.D.C.1979). In this case no participant has been refused prior Plan “scheduled benefits,” nor is there any evidence indicating that the trustees will revoke this option. The trustees have consistently stated that the option to receive benefits under the Plan was available to participants enrolled in the Plan before ER-ISA became effective. Indeed, although the trustees omitted the prior Plan’s schedule of benefits in the January 1978 Summary Plan Description Booklet, this omission was corrected in the following year’s booklet, which clearly states that “those Participants who enter Covered Employment prior to July 1, 1976 shall have the option of receiving the amount of the Early Retirement Pension as determined in Section 3.08[a] [of, the amended Plan] or the monthly amount of Early Retirement Pension according to the following Schedule [computed according to the prior Plan].” July 1979 Pension Plan & Summary Plan Description Booklet at 72. Therefore, there is no reason to conclude that the trustees will attempt to revoke the option or deny a participant benefits rightfully due. If a participant is, in the future, improperly denied benefits, an action can be brought at that time and an award of damages can be fashioned which will adequately compensate for any loss. Banks v. Trainor, 525 F.2d 837 (7th Cir. 1975), cert. denied, 424 U.S. 978, 96 S.Ct. 1484, 47 L.Ed.2d 748 (1976). Accordingly, the injunction should not have been entered.
VI
Lastly, we consider whether the award of attorneys’ fees was proper. The trial court ordered the Fund to pay $142,485.00 in attorneys’ fees for several reasons: (1) fees and expenses are authorized by the statute; (2) the class prevailed on all but one major issue; and (3) the litigation obtained a financial benefit for many members of the class. The trustees do not dispute that an award of attorneys’ fees may be appropriate in some ERISA actions, but, relying on Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102, 109-11 (3d Cir. 1976), argue that an award of attorneys’ fees is inappropriate where, as here, the litigation involves competing interests in a common fund. They contend that there has been no net benefit to the entire class of Fund participants as the result of the litigation. Again, relying on Lindy Brothers, thej maintain that where there is no benefit to the Fund, fees may not be awarded. Further, they stress that Janowski did not prevail on the normal retirement age which, they contend, is the principal issue.
It is well-settled that the standard of review of trial court awards of attorneys’ fees is abuse of discretion and that “[a]n abuse of discretion is found only when there is a definite conviction that the court made a clear error of judgment in its conclusion upon weighing relevant factors.” Hummell v. S.E. Rykoff & Co., 634 F.2d 446, 452 (9th Cir. 1980). It is equally well-settled that in determining whether an award of attorneys’ fees in suits brought under ERISA is appropriate, courts have considered the following factors: (1) the degree of the offending parties’ culpability or bad faith; (2) the degree of the ability of the offending parties to satisfy personally an award of attorneys’ fees; (3) whether or not an award of attorneys’ fees against the offending parties would deter other persons acting under similar circumstances; (4) the amount of benefit conferred on members of the pension plan as a whole; and (5) the relative merits of the parties’ positions. Iron Workers Local 272 v. Bowen, 624 F.2d 1255 (5th Cir. 1980); Eaves v. Penn, 587 F.2d 453 (10th Cir. 1978).
Unfortunately, the district court did not justify its decision to award attorneys’ fees in terms of these specific guidelines, which would have been helpful in reviewing its decision for abuse of discretion. However, while a fuller explanation of its reasoning would have been helpful, there is sufficient analysis in the district court’s decision to permit review. The district court primarily based its award on the fact that Janowski, although not wholly successful, generally prevailed on the merits, thereby preventing retirees under this and other employee pension funds from being underpaid. It also noted that although the trustees did not act in bad faith or with the intent to deprive, they failed to cooperate with Janowski in complying with at least one court order and by their dereliction may have contributed to an additional expenditure of time by Janowski’s attorneys. Further, distinguishing Lindy Brothers Builders, Inc. v. American Radiator & Standard Sanitary Corp., 540 F.2d 102 (3d Cir. 1976), the district court recognized that the fees would not be paid out of a fund which could be recovered from the trustees and balanced this factor against the fact that the Plan’s assets had significantly increased over paid benefits and that the fee award was a small factor of the total fees paid to the Fund’s attorneys in the previous fiscal year. Only the factor of whether or not an award of attorneys’ fees against the offending party would deter other persons acting under similar circumstances was not specifically addressed.
Fee provisions are designed as an enforcement incentive to insure that aggrieved parties who are unable to pay their own attorneys’ fees are not denied access to the courts. In situations where aggrieved parties are suing as “private attorneys general,” advancing a public interest, the award of attorneys’ fees and costs generally has been automatic, unless special circumstances rendered the award unjust. Thus, the discretionary fee provisions in the civil rights statutes are considered virtually mandatory. The award of fees as an enforcement incentive is not as great, however, in an ERISA action for two reasons. First, fiduciaries' have a statutory obligation to insure that plans are properly administered. 29 U.S.C. § 1105. Second, while plan participants may be suing for the benefit of all beneficiaries of a particular fund, they may also be suing merely on their own behalf.
Accordingly, it is clear that, in light of the policies reflected in ERISA, the need for awarding statutorily authorized attorney’s fees to encourage enforcement of the Act is not so compelling that the discretionary provision should be construed as virtually mandatory. Iron Workers Local 272 v. Bowen, 624 F.2d 1255, 1265 (5th Cir. 1980). Nevertheless, we believe that this award is justified because the litigation benefitted a substantial group of Fund participants and that the award is necessary to enable aggrieved parties to invoke the power of the court when pre-ERISA benefits are in danger. The award of fees is not an abuse of discretion.
In considering the amount of the award, the district court carefully and thoroughly analyzed the complexity and unsettled nature of the questions involved, the expertise of the attorneys, and the time expended to arrive at the hourly rate of $100 and $125 and the multiplier of two. We adopt the district court’s analysis and conclusion with respect to the amount awarded and, as a consequence, need not repeat it. Because the award was based on several factors, only one of which was whether Janowski was.the prevailing party, nothing in our decision requires recomputation of the amount awarded.
The district court’s decision is affirmed with respect to exhaustion, ripeness, class representation, normal retirement age and credit for part-time benefits. The district court’s opinion is reversed with respect to calculation of accrued benefits and the entry of a permanent injunction is vacated. Each party is to bear its own appeal costs. Accordingly, the district court’s decision is
AFFIRMED IN PART and REVERSED IN PART.
. Both 29 U.S.C. § 1002(24) and 26 U.S.C. § 411(a)(8) define normal retirement age as:
(A) the time a plan participant attains normal retirement age under the plan, or
(B) the later of—
(i) the time a plan participant attains age 65, or
(ii) the 10th anniversary of the time a plan participant commenced participation in the plan.
. 29 U.S.C. § 1054(b)(1)(D) in part provides:
[A] defined benefit plan satisfies the requirements of this subparagraph with respect to such years of participation only if the accrued benefit of any participant with respect to such years of participation is not less than the greater of—
(i) his accrued benefit determined under the plan, as in effect from time to time prior to September 2, 1974, or
(ii) an accrued benefit which is not less than one-half of the accrued benefit to which such participant would have been entitled if subparagraph (A), (B), or (C) applied with respect to such years of participation.
. 26 U.S.C. § 411(b)(3)(B) provides:
Less than full time service. — For purposes of this paragraph, except as provided in sub-paragraph (C), in the case of any employee whose customary employment is less than full time, the calculation of such employee’s service on any basis which provides less than a ratable portion of the accrued benefit to which he would be entitled under the plan if his customary employment were full time shall not be treated as made on any reasonable and consistent basis.
. 29 C.F.R. § 2530.204-2(c)(4) sets forth examples of acceptable credit allocations:
Examples. The following are examples of reasonable and consistent methods for crediting partial years of participation:
(i) A plan requires 2,000 hours of service for a full year of participation. An employee who is credited during a computation period with no less than 1,000 hours of service but less than 2,000 hours of service is credited with a partial year of participation equal to a portion of a full year of participátion determined by dividing the number of hours of service credited to the employee by 2,000.
(ii) A plan requires 2,000 hours of service for a full year of participation. The plan credits service in an accrual computation period in accordance with the following table:
Hours of service credited Percentage of full year of participation credited
1000 ......... ......... 50
1001 to 1200 .. ......... 60
1201 to 1400 .. ......... 70
1401 to 1600 .. ......... 80
1601 to 1800 .. ......... 90
1801 and above ........ 100
Under this method of crediting partial years of participation, each employee who is credited with not less than 1,000 hours of service is credited with at least a ratable portion of a full year of participation.
(iii) A plan provides that each employee who is credited with at least 1,000 hours of service in an accrual computation period must receive credit for at least a partial year of participation for that computation period. For full accrual, however, the plan requires that an employee must be credited with a specific number of hours worked; employees who meet the 1,000 hours of service requirement but who are not credited with the specified number of hours worked required for a full year of participation are credited with a partial year of participation on a prorata basis. For example, if the plan requires 1,500 hours worked for full accrual, an employee with 1,500 hours worked would be credited with full accrual, but an employee with 1,000 hours worked and 500 other hours of service would be credited with /3 of full accrual. The plan’s method of crediting service for accrual purposes is consistent with the requirements of this paragraph. It should be noted, however, that use of hours worked as a basis for prorating benefit accrual may result in discrimination prohibited under section 401(a)(4) of the Code.
(iv) Employee A is employed on June 1, 1980 in service covered by a plan with a calendar year accrual computation period, and which requires 1,800 hours of service for a full accrual. Employee A completes 500 hours from June 1, 1980 to December 31, 1980, and completes 100 hours per month in each month during 1981. A is admitted to participation on July 1, 1981. A is credited with 1,200 hours of service for the accrual computation period beginning January 1, 1981. Under the rules set forth in paragraph (c)(3) of this section, A is required to be credited with not less than one-third of a full accrual (600 hours divided by 1,800 hours).
. On July 24, 1980, the district court ordered the trustees to cooperate with plaintiffs in reaching a declaratory judgment which had, up to that point, been agreed upon in form only and in drafting the necessary amendments to the Plan. The trustees refused to comply with this order, thereby necessitating an additional expenditure of time by plaintiffs’ attorneys.
Question: Were there cross appeals from the decision below to the court of appeals that were consolidated in the present case?
A. No
B. Yes
C. Not ascertained
Answer: | B | songer_crossapp |
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 "privacy".
OPINION OF THE COURT
MANSMANN, Circuit Judge.
These appeals were born of the ambitious efforts of a sixth grade elementary school student who, in the lawful exercise of his constitutional rights, caused himself to be the subject of an investigation by the Federal Bureau of Investigation (“FBI”). The appeals constitute yet another illustration of the competing need for disclosure of information by government agencies and the need to prevent injury to the national security.
Todd Patterson (“Todd”) appeals from the district court’s orders granting summary judgment to the FBI and denying his post-trial motion filed pursuant to Federal Rule of Civil Procedure 60(b). We hold that the information Todd seeks from the federal agency was properly exempt from disclosure. Therefore, we will affirm the judgment of the district court.
I.
In 1983, Todd, then a sixth grade elementary school student, embarked on a precocious endeavor to write an encyclopedia of the world as part of a school project. Deciding that his school’s resources were inadequate, Todd wrote to 169 countries requesting information. Significantly, Todd enclosed much of this correspondence in envelopes bearing the return address of Laboratory Disposable Products, a business Todd’s parents operated from their home.
The flood of international correspondence engendered by the project attracted the attention of the FBI by means and methods undisclosed by the FBI. In late 1983, an FBI agent appeared unannounced at Todd’s home. The agent spoke to Todd’s parents concerning Todd’s activities and was shown the correspondence received in response to Todd’s requests. Soon after the visit, Todd contacted the FBI agent and spoke with him regarding the school project and the information requests to other countries.
As a result of the school project and the visit by the FBI agent, the FBI came to maintain a file on Todd. The file contained a directive for the FBI’s Newark Division to conduct an appropriate investigation of Laboratory Disposable Products in accordance with Attorney General Guidelines. Also included in the file is a memorandum, prepared on or about February 23, 1984, that changed the subject heading from “Laboratory Disposable Products” to “Todd Patterson.” The memorandum contains a description of Todd’s project and states “Newark indices as well as local criminal checks negative on subject” and “[i]n view of the above, Newark contemplates no further investigation in this matter.” 705 F.Supp. 1033, 1037 (D.N.J.1989).
The FBI maintains that it conducted no further investigation after 1983. However, a document released by the FBI dated December 5, 1985, along with five attachments not released, demonstrate that as of that date some entity of the United States Government continued to monitor Todd’s activities. Todd insists that surveillance remained in effect because he continued to receive pieces of mail in damaged condition. In addition, Todd and his parents report hearing strange background noises on their telephones since 1983.
In April, 1987, Todd requested, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1982), access to records the F.B.I. in Washington, D.C. might be maintaining on him. Todd was informed that the information he requested was exempt from disclosure under 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552a(j)(2). Todd appealed the denial of his FOIA request to the Department of Justice, Office of Information and Privacy, where the determination was upheld. Thereafter, Todd filed a second FOIA request, this time directed to the FBI’s Newark field Office.
In May 1988, Todd initiated a civil suit against defendants FBI, John Doe (an unknown employee of the United States Government), and John Doe Agency (an unknown agency of the United States Government). Todd sought injunctive relief, damages, and disclosure of the requested documents. The complaint presented three distinct causes of action: (1) failure to comply with FOIA; (2) violations of the Privacy Act; and (3) violations of Todd’s First and Fourth Amendment rights and of 18 U.S.C. § 1702 and 19 U.S.C. § 482, statutes relating to the U.S. Mail.
The FBI responded initially to the complaint by offering to expunge Todd’s name from its records. The offer was never accepted. Thereafter, the FBI filed a motion for summary judgment on the first and second causes of action, reasserting that the requested information was exempt from disclosure. As to the third cause of action, the FBI moved to dismiss pursuant to Fed.R.Civ.P. 12(b)(2). Following oral argument on the motion and in camera review of the withheld documents, the district court granted summary judgment to the FBI on February 7, 1989, on all three causes of action. 705 F.Supp. 1033 (D.N.J. 1989). Todd thereafter filed a motion, pursuant to Fed.R.Civ.P. 60(b), to vacate the judgment or in the alternative to supplement the record which was denied by the district court on August 18, 1989. We have jurisdiction to review the grant of a motion for summary judgment and the denial of a Rule 60(b) motion pursuant to 28 U.S.C. § 1291.
II.
A.
Todd challenges the procedures employed by the district court in its adjudication of the alleged FOIA violation. In particular, Todd contends that the record does not justify the district court’s use of an in camera affidavit and its further in camera examination of withheld documents.
In Lame v. United States Dept. of Justice, 654 F.2d 917, 922 (3d Cir.1981), we expressly authorized the use of in camera affidavits and submissions. We noted that in the ordinary case, “a Vaughn index correlating justifications for non-disclosure with the particular portions of the documents requested will generally suffice to narrow the disputed issues and permit a reasoned disposition by the district court.” Lame, at 922.
However, there are cases, albeit unusual, where the preparation of a detailed Vaughn index would require an agency to disclose the very information that it seeks to withhold. Under these circumstances, we require an agency to submit a public affidavit setting forth, in as detailed terms as possible, the basis for the claimed exemption. Lame, 654 F.2d at 921. The district court must strive to make the public record as complete as possible, soliciting as much information as can be willingly released by the agency. If, however, “the agency is unable to articulate publicly the specific disclosure it fears and the specific harm that would ensue, then in camera inspection of a more detailed affidavit must be resorted to.” See Ferri v. Bell, 645 F.2d 1213, 1224 (3d Cir.1981), opinion modified, 671 F.2d 769 (3d Cir.1982); Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C.Cir.1976). Moreover, to the extent that any public affidavits may appear sufficiently descriptive, it may nonetheless be necessary for the district court to examine the withheld documents in camera to determine whether the agency properly characterized the information as exempt. 5 U.S.C. § 552(a)(4)(B); Lame, 654 F.2d at 921; Ferri, 645 F.2d at 1222; see also Phillippi, 546 F.2d at 1012 (FOIA clearly contemplates that courts will resolve fundamental issues in contested cases on the basis of in camera examination of relevant documents).
We believe the procedural events in the case sub judice are in accord with those procedures outlined above. In seeking discovery from the FBI, Todd propounded interrogatories questioning, inter alia, the internal investigatory procedures of the FBI and the identities of the persons and agencies assigned to Todd’s case. The FBI provided answers to a few of the interrogatories, however, in most instances it claimed exemption from disclosure under the states military secrets privilege and 5 U.S.C. § 552(b)(1) and § 552(b)(7)(C) of the FOIA. In support of its claim of privilege, the FBI submitted the public affidavits of Special Agents Lieberman, Thomas, and Thorton. The purpose of the Thomas affidavit was to provide the district court with a Vaughn index for the records requested by Todd and withheld by the FBI. Lieberman’s affidavit describes the withheld documents and sets forth justifications for those withholdings under the FOIA. Lastly, the Thorton affidavit states that the Patterson premises had never been the subject of electronic surveillance and the FBI was innocent of opening or intercepting any mail directed to the Pattersons.
Ostensibly, the district court found that these affidavits constituted sufficient proof of the privileged nature of the withheld information, for it was not until after oral argument on the FBI’s motion for summary judgment that in camera inspection was ordered. Indeed, the district court’s order directing the ex parte review indicated the following:
because certain issues were raised in oral argument that were not adequately addressed in the supporting papers, I have concluded that in camera inspection of certain withheld documents is required in order for this Court to assure itself that the FBI has acted in good faith with regard to its investigation of Todd Patterson, that the FBI complied with all relevant government regulations, and that the FBI engaged in no illegal conduct.
This in camera review was necessary with respect to only two documents.
The FBI complied with the order by submitting all of the unredacted documents at issue as well as the declaration of James Geer, the FBI Assistant Director in charge of the Intelligence Division. Geer’s declaration was provided as “an explanatory affidavit that goes into more detail than the public affidavits.” The FBI also filed publicly the Declaration and Claim of Privilege of Attorney General Thornburgh so as to assert formally the state secrets privilege.
Thus, the public record consisted of certain redacted documents initially released by the FBI, a few answers to interrogatories, and four affidavits. Not surprisingly, these materials did not allay Todd’s interest in the FBI’s files. Under the circumstances, however, we believe the public submissions represent a good faith effort by the FBI to provide as much access to the information as possible. We can appreciate Todd’s objections to the anomalous situation of having to defend against a motion for summary judgment without being privy to the very documents necessary for such a defense. The Court of Appeals for the D.C. Circuit, which has considered a significant number of FOIA cases, has commented on how this “lack of knowledge by the party seeing [sic] disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution.” Vaughn, 484 F.2d at 824. However, the remedy for the unfairness is an in camera examination by the trial court of the withheld documents and any supporting or explanatory affidavits. Inasmuch as the record was made as complete as possible in this instance, we hold that the proper predicates for accepting records and affidavits in camera were satisfied in this case.
Irrespective of the district court’s in camera review, Todd argues that summary judgment should not have been granted because the FBI failed to sustain its burden to show the sensitive nature of its withheld documents. In reviewing the grant of summary judgment in proceedings seeking disclosure of records under the FOIA, this court’s scope of review is twofold: we must determine whether the district court had an adequate factual basis for its decision and whether its conclusion was clearly erroneous. Cuccaro v. Secretary of Labor, 770 F.2d 355 (3d Cir.1985); Lame v. United States Dept. of Justice, 767 F.2d 66 (3d Cir.1985).
The FBI invoked two exemptions in support of its denial of Todd’s FOIA request. The first exemption provides that documents which are “specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy,” are exempt from disclosure. 5 U.S.C. § 552(b)(l)(1982). In support of its position, the FBI submitted the Thomas affidavit which identifies the relevant Executive Order in this case as being the Executive Order on National Security Information, No. 12356, 3 C.F.R. 166 (1983). Reviewing the Thomas affidavit in conjunction with Executive Order 12356, the district court found, and we agree, that the FBI adhered to the procedural requirements of the Executive Order when the withheld FOIA material was classified.
Next, the affidavit indicates that the documents sought by Todd contain information made eligible for classification by § 1.3(a)(4) of the Executive Order. Particularly, § 1.3(a)(4) provides that information shall be considered for classification if it concerns “intelligence activities (including special activities), or intelligence sources or methods.” 3 C.F.R. 169. This section must be read in conjunction with § 1.3(b):
Information that is determined to concern one or more of the categories in Section 1.3(a) shall be classified when an original classification authority also determines that its unauthorized disclosure, either by itself or in the context of other information, reasonably could be expected to cause damage to the national security.
Id.
The remainder of the affidavit includes Thomas’ description of the documents, the location of the classified portions, and his assertions that the material satisfies the classification criteria of § 1.3(a)(4) and ultimately presents a threat to the national security. The district court found Thomas’ assertions deficient in only two respects. The district court found his references to Documents No. 4 and 5 to be unduly vague and repetitive. Upon in camera inspection of the material, however, the court was convinced that release of the withheld material reasonably could be expected to cause damage to the national security.
We conducted our own in camera review of the documents and accompanying Geer affidavit, mindful that when dealing with documents to which § 552(b)(1) applies courts are expected to accord “substantial weight” to the agency’s affidavit. See American Friends Serv. Com. v. Department of Defense, 831 F.2d 441, 444 (3d Cir.1987); see also S.Conf.Rep. No. 1200, 93d Cong. 2d Sess. 12 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6267, 6290. We find that the district court’s decision has an adequate factual basis and even on a plenary review we agree with it.
The second exemption invoked by the FBI was § 552(b)(7)(C), which exempts from disclosure:
(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would ...
(C) constitute an unwarranted invasion of personal privacy ...
5 U.S.C. § 552(b)(7)(C).
In considering this claim, the district court was required to engage in a de novo balancing test: “weighing the public benefit which would result from the disclosure against the privacy interest and the extent to which it is invaded.” Cuccaro, 770 F.2d at 359. In view of its finding that the FBI had not participated in any illegal conduct, the district court concluded that only a negligible benefit would inure to the public by releasing the names of FBI personnel. As a result of our independent examination of the documents, we find that the district court’s conclusion is correct.
Todd also maintains that the blanket exemption from release of the requested documents and the Geer affidavit was over-broad, and that all segregable, non-sensitive portions of the withheld documents should have been released. Our rule in this circuit is that, in response to a FOIA request, “[a]ny reasonably segregable, nonexempt portion of a record is to be made available to the person requesting that record.” Lame, 654 F.2d at 921. In this case, the FBI did release certain papers in which extensive redaction was necessary. Those documents completely withheld were simply inappropriate for partial redaction, except in one instance. The Geer affidavit contains some non-classified portions which could have been disclosed. Responding to questions propounded by this court at oral argument, the FBI admitted that the entire Geer affidavit need not have been withheld. However, the FBI explained that the non-classified parts of that document were available to Todd and disclosure would be made upon request. We are not convinced that earlier disclosure of these non-classified parts would have affected the outcome of the case. Future disclosure will at least assuage some of Todd’s curiosity.
B.
Todd argues that the FBI violated his rights under the Privacy Act, 5 U.S.C. § 552a(e)(7) by collecting information about his protected correspondence with foreign governments and by maintaining records of his protected activity in permanent, retrievable files indexed to his name. The FBI counters with the assertion that under § 552a(e)(7) of the Act the requested records are exempt from disclosure. Concluding that the records were entitled to exemption, the district court granted the FBI summary judgment on the second cause of action of Todd’s complaint.
Our scope of review of the district court’s determination with respect to disclosure under the Privacy Act on summary judgment is the same as that utilized initially by the district court. We must decide whether there exists a genuine issue as to any material fact in dispute, assuming resolution of any disputed fact in favor of the party opposing the motion, and determine whether the moving party is entitled to judgment as a matter of law. Cuccaro, 770 F.2d at 357.
Initially, and as a question of first impression in this circuit, we must interpret the meaning of a portion of § 552a(e)(7). Section 552a(e)(7) prohibits federal agencies from maintaining records “describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity." 5 U.S.C. § 552a(e)(7) (emphasis added). The precise meaning of the emphasized portion is not defined by the statute itself. The district court compared the decisions of other circuits which have interpreted this particular section and adopted a rule requiring agencies “to demonstrate that any and all records maintained on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency, and that there exists a sufficient basis for the maintenance of such records.” 705 F.Supp. at 1043 (emphasis in original). It is this definition that the parties now dispute. Todd argues that agencies should be made to show a “substantial relationship” between the records and the government activity. He insists that a “relevancy” standard acts to dilute his First Amendment rights.
Congress’s intent, as revealed in the statute’s legislative history, is for § 552a(e)(7) to prevent “collection of protected information not immediately needed, about law-abiding Americans, on the off-chance that Government or the particular agency might possibly have to deal with them in the future.” S.Rep. No. 1183, 93d Cong., 2d Sess., reprinted in 1974 U.S.Code Cong. & Admin.News 6916, 6971. The history also instructs:
that the kind of information about individuals which an agency seeks to gather or solicit, and the criteria for programs to investigate individuals will be judged by an official at the highest policy making level to be relevant and necessary to a statutory purpose of the agency.
1974 U.S.Code Cong. & Admin.News 6916, 6960 (emphasis added).
Only four courts of appeals have expressed an opinion as to the standard warranted when evaluating a claim under § 552a(e)(7). The Court of Appeals for the Fourth Circuit has held that Section (e)(7) is violated “to the extent that the [agency] has engaged in the practice of collecting protected information, unconnected to any investigation of past, present or anticipated violations of the statutes which it is authorized to enforce ...” Clarkson v. I.R.S., 678 F.2d 1368, 1375 (11th Cir.1982), cert. denied, 481 U.S. 1031, 107 S.Ct. 1961, 95 L.Ed.2d 533 (1987). A case-by-case analysis of whether an agency’s actions were pertinent to authorized law enforcement activity was adopted by the court in MacPherson v. I.R.S., 803 F.2d 479 (9th Cir. 1986). Section (e)(7) was interpreted by the Sixth Circuit as allowing “investigation with respect to the exercise of first amendment rights if such investigation is relevant to an authorized criminal investigation or to an authorized intelligence or administrative one.” Jabara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983) (emphasis added). The Jabara standard was adopted in Nagel v. U.S. Dept. of Health, Education and Welfare, 725 F.2d 1438, 1441 n. 3 (D.C.Cir.1984).
In our view, a relevancy standard is more consistent with Congress’s intent and will prove to be a more manageable standard than employing one based on ad-hoc review. The weight of authority supports a rule requiring a federal agency to establish some nexus between its files and classified activities. A burden as heavy as that suggested by Todd has never been imposed. We, therefore, hold that a federal agency defending its maintenance of records under Section (e)(7) must demonstrate that its records on an individual’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the agency. Thus, the district court’s interpretation of the section was legally correct.
Applying this standard to the FBI’s records, especially the Geer affidavit, we are persuaded, as was the district court, that the records maintained by the FBI on Todd’s exercise of First Amendment rights are relevant to an authorized law enforcement activity of the FBI. Continued maintenance of such records also will not violate any provision of the Privacy Act. Accordingly, with no issue of material fact to resolve, the district court properly entered summary judgment.
C.
The FBI filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(2) as to Todd’s third cause of action, arguing that in actions instituted in federal court under federal law, courts have eliminated fictitious defendants by motion. In his motion in opposition to the summary judgment motion, Todd maintained that pleading fictitious defendants was allowable until such time as the real parties in interest, who could only be identified through further discovery, could be substituted. The district court found, as a matter of fact, that the FBI and any FBI or other government employees involved in activities concerning Todd had acted in accord with all applicable statutory, regulatory, and administrative guidelines. Further, the district court held that the FBI had properly invoked the state secrets privilege in defense to Todd’s interrogatories. Because these findings were made by considering matters outside the pleadings, i.e., documents submitted for in camera review, the district court converted the motion to dismiss into one for summary judgment, as is authorized for Rule 12(b)(6) motions, and entered judgment in favor of the FBI. Todd contends that in treating the Rule 12(b)(2) motion as one for summary judgment, the district court denied him the opportunity to properly defend his position on the merits. The FBI concedes procedural error but insists that it is “plainly harmless.”
We have had occasion to consider the procedural distinction between a Rule 12(b)(6) motion and a Rule 12(b)(2) motion. In Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61 (3d Cir.1984), we explained the mechanics of a Rule 12(b)(2) motion as follows:
A Rule 12(b)(2) motion, such as the motion made by the defendants here, is inherently a matter which requires resolution of factual issues outside the pleadings, i.e. whether in personam jurisdiction actually lies. Once the defense has been raised, then the plaintiff must sustain its burden of proof in establishing jurisdictional facts through sworn affidavits or other competent evidence. Contrary to the dissent’s suggestion, therefore, at no point may a plaintiff rely on the bare pleadings alone in order to withstand a defendant’s Rule 12(b)(2) motion to dismiss for lack of in personam jurisdiction. See International Ass’n of Machinists & Aerospace Workers v. Northwest Airlines, 673 F.2d 700 (3d Cir.1982). Once the motion is made, plaintiff must respond with actual proofs, not mere allegations.
Time Share Vacation Club, 735 F.2d at 67 n. 9.
In support of its motion, the FBI submitted the Thorton, Thomas and Lieberman affidavits and its answers to interrogatories. Following oral argument on the motion, the FBI produced the Geer affidavit and the total collection of withheld documents. These materials, they contended, clearly evidenced the nonparticipation of the FBI in any mail cover activity. To the extent that the materials revealed the identities of another agency or agencies whose operations concerned Todd’s mailings, the FBI asserted the state secrets privilege to prevent disclosure. Todd’s case consisted of the affidavits of himself and his mother asserting that he had received damaged mail.
A careful reading of the district court’s opinion suggests that the court by implication decided that an action could at least be initiated against a John Doe defendant. Such a determination, however, begs the question whether Todd could receive any further meaningful discovery, so as to ultimately identify the real parties in interest, in light of the FBI’s assertion of the state secrets privilege. Finding that “a ‘reasonable danger’ that harm to the national interest will ensue if defendants are forced to comply with plaintiff’s discovery requests,” the district court held that the state secrets privilege had been properly invoked. 705 F.Supp. 1046. The district court then reasoned that if the record contained no evidence of abuse by the FBI, and the privilege applied to other information known to the FBI, then the case presented no issue of material fact and should be dismissed accordingly.
A Rule 12(b)(2) motion cannot be treated as one for summary judgment. There are situations, however, where “the question of the district court’s jurisdiction [is] entwined with the ultimate question on the merits.” International Ass’n of Machinists v. Northwest Airlines, 673 F.2d 700, 710 (3d Cir.1982). In such circumstances, it may be necessary for the district court “to proceed to a decision which impacts on the merits.” Id.; see also Land v. Dollar, 330 U.S. 731, 739, 67 S.Ct. 1009, 1013, 91 L.Ed. 1209 (1947) (district court had jurisdiction to determine its jurisdiction by proceeding to a decision on the merits).
The facts of this case present this type of complicated review. At the time the Rule 12(b)(2) motion was filed, Todd had already received certain redacted papers, three affidavits and answers to interrogatories. After in camera review of the withheld documents, the district court concluded that Todd could not secure any further discovery. The John Doe defendants would thus remain unknown. Since the suit could not be maintained against a fictitious party, the district lacked in personam jurisdiction.
We find it insignificant that the district court treated the Rule 12(b)(2) motion as one for summary judgment and dismissed the cause of action for lack of a genuine issue of material fact. Such a finding is beyond the initial and necessary inquiry of whether in personam jurisdiction actually lies. The FBI’s evidence, both public and in camera materials, convinces us that (1) the FBI is not one of the John Doe defendants, and (2) the FBI is shielded from further disclosure by the state secrets privilege. Todd thus failed to sustain his burden of proof in establishing in personam jurisdiction. Accordingly, the cause of action was properly dismissed.
D.
An order denying a motion for relief from judgment pursuant to Fed.R.Civ.P. 60 is reviewed for abuse of discretion. Lasky v. Continental Products Corp., 804 F.2d 250 (3d Cir.1986). In view of the facts of this case, we find no evidence that the district court abused its discretion in denying Todd’s Rule 60(b) motion.
III.
For the foregoing reasons, we will affirm the judgment of the district court in both appeals.
. The appeals, filed separately from each order, were consolidated for disposition by order of the Clerk.
. The parties dispute the actual number of files. It is clear from the record that at least one file was created. Todd, however, insists that at least six files exist. This was also the district court’s conclusion.
. Todd subsequently received an invitation from the Soviet Mission in New York to visit their facility, which he did after voluntarily contacting the FBI. He was requested to and did contact the FBI following his visit.
. FOIA requests made to the FBI are limited to files maintained at either the FBI headquarters or the individual field office where the request is made. Appellee's brief at 27.
. The FBI indicated at oral argument that the offer remained open. Todd's position, voiced by his attorney, was that he was unwilling to accept the offer without first reviewing the documents.
. Because it had considered matters outside the pleading, the district court considered the motion to dismiss the third cause of action as one for summary judgment. See infra part II.C.
. A Vaughn index is an affidavit which supplies an index of withheld documents and details the agency’s justification for claiming exemption. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir. 1973), cert. denied, 415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
. The state secrets privilege was first recognized in United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953). As explained by the Court,
[i]t may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.
345 U.S. at 10, 73 S.Ct. at 533.
. We note that notwithstanding this imbalance between the parties, the D.C. Circuit, as well as other circuits, have allowed the use of in camera affidavits in national security cases. See e.g., Molerio v. F.B.I., 749 F.2d 815 (D.C.Cir. 1984); Fitzgerald v. Penthouse Intern., Ltd., 776 F.2d 1236 (4th Cir.1985); Jahara v. Webster, 691 F.2d 272, 279 (6th Cir.1982), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983); and Hayden v. N.S.A., 608 F.2d 1381 (D.C.Cir. 1979).
. On the basis of our in camera review of the documents we have no hesitation in stating that there is nothing derogatory in them regarding Todd or any member of his family.
. The district court denied Todd's request to have his attorney present at the in camera proceedings. Although Todd alleges error on appeal, we find that the issue merits no further discussion.
. The FBI’s counter-argument in the district court was that its central record system is exempt under § 552a(j)(2). The district court rejected this contention, finding that the FBI had failed to show that its records on Todd were compiled specifically for purposes of a criminal investigation. This particular argument has been abandoned by the FBI on appeal.
. We can affirm, if the result reached by the district court is correct, even though our reasoning differs from that of the district court. See Tunnell v. Wiley, 514 F.2d 971, 975 n. 4 (3d Cir.1975).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
HEANEY, Circuit Judge.
Robert Vernon Bruce, proceeding pro se, brought this action seeking damages for the allegedly illegal release of his military personnel and medical records to the Criminal District Court of Dallas County, Texas. The district court dismissed the complaint for lack of jurisdiction and failure to state a claim. We affirm.
In 1965, Bruce was tried and convicted in Texas state courts for the murder of his wife. In 1976, following protracted litigation in both state and federal courts, the United States Court of Appeals for the Fifth Circuit set aside the conviction on the ground Bruce was not competent at the time of trial and granted his petition for a writ of habeas corpus subject to the state’s right to retry him for the offense. Bruce v. Estelle, 536 F.2d 1051 (5th Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977). Bruce was retried in March, 1977, and again convicted of murder. He was sentenced to life imprisonment and is presently incarcerated in the Texas Department of Corrections at Huntsville, Texas.
In the course of the second trial, Bruce’s United States Marine Corps personnel and medical records were subpoenaed from the National Personnel Records Center (NPRC) of the General Services Administration (GSA), located in St. Louis, Missouri. In his present complaint, Bruce contends that the release of his military records pursuant to the subpoena, without notice to him and without his consent, was tortious and illegal and that he was damaged by the use of the records by the prosecution at his trial. Named as defendants are the United States, GSA and Ralph W. McCann, Chief, Navy Reference Branch, NPRC. The district court dismissed the complaint, rejecting all the alternative bases of subject matter jurisdiction Bruce asserted for his claim. Only one of these requires any extended discussion.
The district court held that Bruce’s complaint failed to state a claim under 5 U.S.C. § 552a (the Privacy Act) and 28 U.S.C. § 1331. Subject to certain exceptions, § 552a(b) prohibits disclosure by federal agencies of records maintained about an individual without the prior written consent of that individual. Section 552a(g)(l)(D) provides that any individual who suffers an “adverse effect” because of agency failure to comply with § 552a(b) may bring a civil action against the agency, with jurisdiction in the United States district courts.
The district court ruled that the disclosure in this case fell within one of the specific exceptions to § 552a(b)’s consent requirement. In pertinent part, § 552a provides:
(b) Conditions of disclosure — No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—
******
(11) pursuant to the order of a court of competent jurisdiction.
Because Bruce alleged on the face of his complaint that his records were released pursuant to subpoena, a copy of which was made part of the district court record, the court held the disclosure was authorized as pursuant to an order of a court of competent jurisdiction and that Bruce failed to state a claim for violation of 5 U.S.C. § 552a.
At least one court has concluded that a subpoena is not an “order of a court” within the meaning of exception 11, holding that the provision requires a specific court order directing disclosure. Stiles v. Atlanta Gas Light Company, 453 F.Supp. 798, 800 (N.D. Ga.1978). There is nothing in the legislative history of the Privacy Act of 1974 to suggest what Congress intended by the term. We find it unnecessary to reach the question in this case. For purposes of this appeal only, we assume, but do not decide, that the subpoena was not an “order of a court” within the meaning of exception 11. We nevertheless agree that Bruce is entitled to no relief under the Privacy Act.
Section 552a(g) defines the civil remedies available under the Act. The United States is liable for damages for the type of violation here alleged only when the agency “acted in a manner which was intentional or willful.” 5 U.S.C. § 552a(g)(4). See Cell Associates, Inc. v. National Institutes, Etc., 579 F.2d 1155, 1158-1159 (9th Cir. 1978). The records in this case were released in April, 1977, more than a year before Stiles v. Atlanta Gas Light Company, supra, was decided. The then existing
Department of Defense (DOD) and GSA regulations suggested that release of records pursuant to subpoena was proper. There were at that time no regulations or other authority to the contrary. In an effort to comply with existing authority, the GSA in this case specifically requested a subpoena prior to releasing the records. Under these circumstances, GSA’s decision to release the records pursuant to the subpoena clearly cannot be considered to be a willful or intentional violation of the Act. Accordingly, Bruce’s claim for damages under the Privacy Act must fail.
In addition to the Privacy Act, Bruce claimed his action for damages was authorized under several alternative statutory provisions. We agree with the district court that none of these provide a basis for subject matter jurisdiction. Jurisdiction may not be predicated on 28 U.S.C. § 1346(b) as a claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., because Bruce failed to allege compliance with the administrative claim procedure set forth in 28 U.S.C. § 2675. Timely filing of an administrative claim is a jurisdictional prerequisite to suit under the Act. West v. United States, 592 F.2d 487, 492 (8th Cir. 1979); Smith v. United States, 588 F.2d 1209, 1211 (8th Cir. 1978); Jones v. Wyeth Laboratories, Inc., 583 F.2d 1070 (8th Cir. 1978). The Trade Secrets Act, 18 U.S.C. § 1905, does not imply a private right of action. Chrysler Corp. v. Brown, 441 U.S. 281, 316, 99 S.Ct. 1705, 1725, 60 L.Ed.2d 208 (1979). It is now well established that the Administrative Procedure Act, 5 U.S.C. § 702, does not provide an independent basis for subject matter jurisdiction. Califano v. Sanders, 430 U.S. 99, 105-107, 97 S.Ct. 980, 984-985, 51 L.Ed.2d 192 (1977); Werner v. United States Depart, of Interior, Fish and Wildlife, 581 F.2d 168, 171 (8th Cir. 1978). Finally, Bruce’s claim that the release of his records was somehow self-incriminating and in derogation of his constitutional rights under the Fifth Amendment is plainly frivolous.
Affirmed.
. The Honorable John F. Nangle, United States District Judge for the Eastern District of Missouri.
. We emphasize that the Act provides for civil remedies only against the agency, not individuals. 5 U.S.C. § 552a(g)(l); Rowe v. Tennessee, 431 F.Supp. 1257, 1264 (D.Tenn.1977), vacated on other grounds, 609 F.2d 259 (6th Cir. 1979). Individuals are subject only to criminal penalties. 5 U.S.C. § 552a(i)(l). Accordingly, Ralph W. McCann is not a proper defendant in a civil action for damages under the Act.
. In relevant part, the court reasoned:
Defendant also argues that the exception permitting disclosure of a record “pursuant to the order of a court of competent jurisdiction” is applicable in the instant action. 5 U.S.C. § 552a(b)(ll). It asserts that the subpoena issued here is such an order of the court. Again, however, the court must disagree. Section 552a(b)(ll) provides for those cases in which, for compelling reasons, the court specifically directs that a record be disclosed. Mere issuance in discovery proceedings of a subpoena — which is always subject to the power of the court to quash or limit — does not meet this standard. See United States v. Brown, 562 F.2d 1144, 1152 (9th Cir. 1978). To so hold would permit precisely the type of privacy invasions the Act sought to prevent.
In view of the foregoing, it is clear that the Privacy Act will prevent disclosure in this case of the subpoenaed documents unless the court specifically orders them produced pursuant to section 552a(b)(l 1).
453 F.Supp. at 800 (emphasis in original).
. The present exception 11 was not included in either the Senate or House Bills and is, therefore, not discussed in the Senate and House Reports. There was no Conference Report. See S.Rep.No. 93-1183, accompanying S. 3418, 93d Cong., 2d Sess., reprinted in [1974] U.S. Code Cong. & Admin.News, p. 6916; H.R. Rep.No. 93-1416, accompanying H.R. 16373, 93d Cong., 2d Sess. (1974). The first reference to the provision in congressional debate is in a recitation of the House bill in the Senate on December 17, 1974. 120 Cong.Rec. S 40,398 (1974). However, there is no discussion of the provision either on that date or in subsequent debates on the House and Senate Bills.
. The subpoena in this case was issued by the Clerk of the Criminal District Courts of Dallas County, apparently at the request of the state prosecutor. Although the subpoena ordered release of the records directly to the presiding judge, there was no affirmative order of disclosure on the part of the court or other prior judicial approval.
. The legislative history reveals this standard for recovery of damages reflected a compromise between the original House and Senate versions.
The standard for recovery of damages under the House bill was a determination by a court that the agency acted in a manner which was willful, arbitrary, or capricious. The Senate bill would have permitted recovery against an agency on a finding that the agency had erred in handling his records.
These amendments represent a compromise between the two positions. They permit an individual to seek injunctive relief to correct or amend a record maintained by an agency. In a suit for damages, the amendment reflects a belief that a finding of willful, arbitrary, or capricious action is too harsh a standard of proof for an individual to exercise the rights granted by this legislation. Thus the standard for recovery of damages was reduced to “willful or intentional” action by an agency. On a continuum between negligence and the very high standard of willful, arbitrary, or capricious conduct, this standard is viewed as only somewhat greater than gross negligence.
Analysis of House and Senate Compromise Amendments to the Federal Privacy Act, reprinted in 120 Cong.Rec. S 40405, 40406 (1974) and in 120 Cong.Rec. H. 40881, 40882 (1974) (emphasis added).
. 5 U.S.C. § 552a(l)(l) requires the GSA to comply with the regulations regarding disclosure of the federal agency which deposited the records with GSA, in this case the DOD, to the extent such regulations are not inconsistent with the Act.
The rules promulgated by the DOD under the Act indicate that the Department equates a subpoena with an order of a court.
[Records may not be disclosed without prior written consent unless disclosure will be] * * * * * *
(11) Pursuant to the order of a court of competent jurisdiction.
(i) When a record is disclosed under compulsory legal process and when the issuance of that order or subpoena is made public by the court which issued it, make reasonable efforts to notify the individual to whom the record pertains.
32 C.F.R. § 286a.8(b) (emphasis added).
In addition, GSA’s own regulations in effect at the time of release in this case provided that records could be released to a state or county court for use in a criminal prosecution “upon receipt of a proper court order or subpoena,” subject to certain exceptions not applicable in the present case. General Services Administration, Release and Access Guide for Military Personnel and Related Records at the National Personnel Records Center, NPRC 1865.16 (Dec. 29, 1972).
. The present Office of Management and Budget (OMB) guidelines for the use of federal agencies in implementing the Privacy Act merely repeat the language of exception 11 without elaboration. Office of Management and Budget, Privacy Act Implementation: Guidelines and Responsibilities, 40 Fed.Reg. 28948, 28955 (1975). The government advises, however, that OMB is in the process of developing a new guideline to implement the Stiles decision.
. Although not necessary to our decision, we note that it is doubtful Bruce could prove the requisite “adverse effect” within the meaning of § 552a(g)(l)(D) from the alleged violation of the Act. Bruce alleges he was damaged by use of the records at trial. However, the record reveals that the records were not released by GSA until after the conclusion of his second trial. Trial was held March 28-30, 1977, and the records were released by GSA on April 1, 1977. Moreover, Bruce concedes that prior to his first trial in 1965, he consented to release of his military records to his defense attorneys, and that counsel subsequently turned the records over to the Dallas District Attorney. It is clear from the Fifth Circuit opinions that these records were available to the state during protracted litigation resulting in the reversal of Bruce’s original conviction. See Bruce v. Estelle, 536 F.2d 1051, 1053 (5th Cir. 1976), cert. denied, 429 U.S. 1053, 97 S.Ct. 767, 50 L.Ed.2d 770 (1977); Bruce v. Estelle, 483 F.2d 1031, 1036 (5th Cir. 1973).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
K. K. HALL, Circuit Judge:
The issue we decide in this appeal is a limited one: whether a state which has established a policy for the stated objective of eliminating state medical assistance (medicaid) funding for nontherapeutic abortions may implement that policy by using a policy standard which requires a physician to certify that “on the basis of [his] professional judgment the life of [the medicaid recipient] would be endangered if the fetus were carried to term.” We hold that it cannot and remand to the district court for entry of an order enjoining use of such a policy and physician’s certification standard and directing modification of that standard to make it conform to its stated policy objective until such time as the state may elect to officially change its medicaid funding policy.
“Janet Doe,” a pregnant Virginia medicaid recipient, brought a civil class action against various officials of the Commonwealth of Virginia to enjoin implementation of a policy of the Virginia State Board of Health by use of a standard which would tend to discourage physicians from performing abortions for medicaid recipients by eliminating reimbursement for all abortions other than those for which a physician could certify that the recipient’s life would be endangered if the fetus were carried to term. She alleged violations of the Social Security Act, Title XIX, 42 U.S.C.A. § 1396 et seq. (“Title XIX”) and the equal protection and due process clauses of the Fourteenth Amendment. A temporary restraining order was issued pending determination of the merits of her claim.
The policy in question is an amendment to the “State Plan 'for Medical Assistance” which was finally approved by the State Board of Health on November 30, 1977. The minutes of that meeting show that the amendment was “to limit the payment for abortions to only those instances in which the mother’s life was in danger.” The minutes of that meeting and a previous meeting held September 9, 1977, show that the amendment was made following public response to hearings held to discuss medicaid funding of abortions after Congress enacted a similar limitation on the use of federal funds for abortions. The amendment was approved against the recommendation of both the Governor’s Advisory Committee on Medicare and Medicaid and the staff of the Department of Health.
On March 20, 1978, a “Medicaid Memo” was issued to physicians and hospitals participating in the medicaid program setting forth the standard for reimbursement and the physician’s certification requirement which Doe finds objectionable. Subsequent to filing of her class action and entry of the temporary restraining order, the State Board of Health passed a resolution explaining its new funding policy. The resolution referred to unspecified Supreme Court rulings which recognized that states have some discretion in funding abortions through their medicaid programs and it stated that the policy amendment was made “because [the Board] desired and continued to desire to eliminate reimbursement for abortions for which there were no good medical reasons.” The resolution also stated that, while the new funding policy “permits the physician to consider [a woman’s health], as well as other factors affecting medical necessity,” the Board was opposed to use of any subterfuge in a physician’s certification that a patient needed an abortion, “particularly for insubstantial mental health, or familial, or social reasons in cases in which there is no immediate threat to the mother’s life.
A hearing on the merits of Doe’s claim was held on May 16, 1978, at which the President of State Board of Health and the State Health Commissioner testified as to the purpose of the policy amendment and the interpretation which would be placed on it by the Commonwealth’s program administrators. Based upon the evidence presented and the arguments of counsel, the district court found that the purpose of the policy was to eliminate state funding of nontherapeutic abortions, that such a policy was permitted under Title XIX, Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977) and under the Constitution, Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), and that the policy directive contained in the resolution was clear. Thereupon, the temporary restraining order was vacated and Doe’s class action was dismissed.
Immediately following entry of the court’s order, the Commonwealth issued another “Medicaid Memo” which adopted the court’s findings of fact that the new funding policy permits the physician to consider the recipient’s “physical and mental health, as well as other factors affecting medical necessity.” It concluded by restating the previous requirement that a physician certify that, based upon his professional judgment, the life of the recipient would be endangered if the fetus were carried to term.
Doe appeals the court’s decision, claiming that use of a policy standard and a certification requirement which speak in terms of endangerment of “life” rather than “health” belies the Commonwealth’s stated intent to eliminate reimbursement only for nontherapeutic abortions when its practical effect is to eliminate many medically necessary abortions from medical coverage. She asserts that Title XIX requires funding of all abortions which are determined by physicians to be medically necessary based upon their professional consideration of all medical factors, including the mental health of the recipient and the possibility of a recipient bearing a deformed child, as in the case of her exposure to German measles. She asserts that abortions following rape and incest should be included in medicaid coverage for eligible recipients. Also, she alleges that failure to fund medically necessary abortions for low income persons effectively denies them access to abortions in violation of their constitutional rights of privacy and equal protection and due process of law.
The Commonwealth agrees with the district court’s finding that its objective is to eliminate funding only for nontherapeutic abortions. Its counsel argues that this limited objective brings the Virginia program in line with the holdings of Beal v. Doe, supra, and Maher v. Roe, supra, and that based upon the facts before us and the rulings of those cases, we should not reach the issues of statutory and constitutional construction urged upon us by Doe. It is also argued that the phrases “endanger the life of the recipient” and “endanger the health of the recipient” convey essentially the same meaning except that the former imports a more substantial degree of medical need, and that use of the policy standard of endangerment of the life of the recipient facilitates the important state interest of monitoring funding for this special medical procedure by assuring that in no instance will the Commonwealth fund an abortion for which no substantial medical reason exists. Finally, counsel for the Commonwealth argues that if we find its policy standard to be ambiguous in light of the policy-makers’ intent and the interpretation placed on it by program administrators, we should invoke the doctrine of abstention in order to permit the state courts to construe the standard in the first instance.
We think that on the facts of this case we need not reach the statutory and constitutional issues raised by Doe of whether a state may be compelled by either Title XIX or the Constitution to fund induced therapeutic abortions. Also, since the dispute before us is a limited one, we decline to invoke the doctrine of abstention. This issue may be settled simply and without further delay. See Zbaraz v. Quern, 572 F.2d 582 (7th Cir. 1978). Thus, we hold that the district court erred in dismissing Doe’s class action because the policy standard set out in the amendment and the physician’s certification requirement is ambiguous in light of the Commonwealth’s stated objective to eliminate only funding of nontherapeutie abortions.
The Commonwealth’s position throughout has been that the words “endangerment of life” really mean “endangerment of health,” or more properly “substantial endangerment of health.” We disagree. In usual parlance, conditions involving “endangerment of life” are those which pose a serious threat of death. Zbaraz v. Quern, 572 F.2d at 585. But such a narrow meaning is contrary to the one intended by the Commonwealth and makes the standard of endangerment of life ambiguous in violation of Title XIX, 1396a(a)(17). When the meaning of a standard can be made clear, we think it should be made clear and, therefore, find it necessary to reverse and remand this class action for entry of an appropriate order by the district court. Since the stated objective of the policy amendment to the State Plan for Medical Assistance is to eliminate reimbursement only for nontherapeutie abortions, as defined in Beal v. Doe, supra, and Maher v. Roe, supra, the order shall include provisions (i) directing substitution of the words “substantial endangerment of health” for the words “endangerment of life” in the amendment and the physician’s certification requirement, (ii) directing immediate issuance of a public notice for the benefit of recipients and a written communication to physicians and hospitals participating in the Commonwealth’s medicaid program which clearly set forth the standard for reimbursement to be one based upon a physician’s professional medical judgment that the health of the recipient would be substantially endangered if the fetus were carried to term and that such judgment shall “be exercised in light of all factors — physical, emotional, psycho- ■ logical, familial, and the woman’s age — relevant to the well-being of the patient,” Beal v. Doe, 432 U.S. at 442, n. 3, 97 S.Ct. at 2369, citing Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), and (iii) expressly authorizing administrative flexibility in the establishment of various physician’s certification forms and requirements to conform to any federal requirements imposed from time to time for federal funding of abortions for which the Commonwealth may choose to seek available federal funds.
The decision of the district court is
REVERSED AND REMANDED.
. In 1976, Congress passed an appropriations measure for fiscal year 1977 limiting use of federal funding for abortions; it reads,
None of the funds contained in this Act shall be used to perform abortions except where the life of the mother wouid he endangered if the fetus were carried to term, (emphasis added)
Pub.L. 94-439, § 209, 90 Stat. 1434.
In 1977, Congress passed a comparable measure applicable to federal funding of abortions for fiscal year 1978; it reads, in pertinent part,
Provided, That none of the funds provided for in this paragraph shall be used to perform abortions except where the life of the mother would be endangered if the fetus were carried to term; or except for such medical procedures necessary for the victims of rape or incest, when such rape or incest has been reported promptly to a law enforcement agency or public health service; or except in those instances where severe and long-lasting physical health damage to the mother would result if the pregnancy were carried to term when so determined by two physicians, (emphasis added)
Pub.L. 95-205, § 101, H.J.Res. 662, 91 Stat. 1460.
. This Medicaid Memo reads, in pertinent part, as follows:
Subject: Elective Abortions
In accordance with Section 32-30.1 of the Code of Virginia of 1950, as amended, the State Health Commissioner, upon the recommendation of the State Board of Health, and with the concurrence of the Governor, is amending the State Plan for Medical Assistance (Medicaid) to provide for the payment for elective abortions only when the physician has found and certified that on the basis of his/her professional judgment, the life of the mother would be endangered if the fetus were carried to term. This action is effective as of April 1, 1978.
The following exact statement must accompany each claim for an elective abortion:
“I, Dr._, certify that on the basis of my professional judgment, the life of (name) of (address) would be endangered if the fetus were carried to term. This judgment is based on the following diagnosis and/or condition: __”
-Signed
. Approved April 26, 1978, this resolution reads, in pertinent part, as follows:
“WHEREAS, the United States Supreme Court ruled in 1977 that the States do have some ability to determine whether or not they will reimburse for abortions; and
WHEREAS, in response to the 1977 United States Supreme Court cases this Board and the Governor of the Commonwealth of Virginia promulgated a new state regulation concerning Medicaid abortions which limited reimbursement to those cases in which the life of the mother would be endangered; and
WHEREAS, the Board of Health changed its Medicaid rule because it desired and continues to desire to eliminate reimbursement for abortions for which' there were no good medical reasons; and
WHEREAS, providers and recipients are apparently confused as to the intent of the regulation.
BE IT, THEREFORE, RESOLVED, that the Board of Health directs the Commissioner of Health to inform all physician providers that, while its regulation concerning Medicaid abortions permits the physician to consider her health, as well as other factors affecting medical necessity when forming his medical judgment that the life of the mother may be endangered, it is adamantly opposed to any physician provider resorting to subterfuge in his certification that his patient requires an abortion, particularly for insubstantial mental health, or familial, or social reasons in cases in which there, is no immediate threat to the mother’s life.
. On appeal, counsel for Doe and the Commonwealth move this court for leave to supplement the record in several respects and, in light of our limited holding, we find it necessary to grant only that part of Doe’s motion which would add to the record this “Medicaid Memo” which was issued after dismissal of her class action. This second “Medicaid Memo” is dated June 19, 1978, and reads in pertinent part, as follows:
SUBJECT: Abortions Covered by Medicaid The purpose of this amendment is to eliminate reimbursement for abortions for which there are no good medical reasons. It does not limit reimbursement only to those cases in which there is an immediate threat to the life of the mother. “Endanger” means to expose to harm or danger; imperil. The State Board of Health intends this language to receive a broader construction than one limited to an immediate threat to the life of the mother. The amendment permits the physician to consider the woman’s physical and mental health, as well as other factors affecting medical necessity, when forming his/her professional judgment that the life of the woman would be endangered. The physician is not to rely upon insubstantial mental health or family or social reasons when reaching his/her judgment.
Either medical diagnoses or the presence of medical risk factors, including age, could justify an induced abortion for medical reasons under this rule. The Medical Assistance Program does not intend to second guess each physician on his/her professional judgment so long as the diagnoses therefor are reasonable. However, the Board of Health is opposed to the use of subterfuge in the physician’s certification. If such is suspected, the Medical Assistance Program will investigate and, when indicated, take appropriate action.
The following exact statement must accompany each claim for an elective (induced) abortion:
“I, Dr._, certify that on the basis of my professional judgment, the life of (name) of (address) would be endangered if the fetus were carried to term. This judgment is based on the following diagnoses and/or conditions: __” _Signed
[emphasis added]
. We note that Congressional appropriations measures approved for the fiscal years 1977 and 1978 have limited the availability of federal funding for abortions. See n. 1, supra.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | A | songer_casetyp1_5-3 |
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 "privacy".
OPINION OF THE COURT
ROSENN, Circuit Judge.
This appeal, the procedural posture of which has all of the trappings of a law school examination question, requires us to explore the boundaries of the several theories under which the federal courts abstain from exercising their jurisdiction in deference to comity with the state courts. Specifically, the question presented is whether a party, who files a claim in federal court following a state administrative agency’s determination that the federal constitution does not preclude the agency’s exercise of jurisdiction, may return to federal court to litigate its federal claims after the completion of the state court proceedings in which it specifically refrains from raising its federal claims.
The Ivy Club (“Ivy” or “Club”), a social eating organization whose membership is drawn primarily from the student body of Princeton University, filed suit in the United States District Court for the District of New Jersey alleging that the exercise of jurisdiction by the New Jersey Division on Civil Rights, Department of Law and Public Safety (the “Division”) violated its first amendment rights to freedom of association and its constitutionally guaranteed right to privacy. Following the federal court’s stay of the federal suit, Ivy returned to the state court proceedings, but thereafter refrained from litigating its federal claims.
Upon termination of the state court proceedings, the district court reopened this case and, pursuant to. 28 U.S.C. § 1292(b), certified to this court the order granting Ivy’s motion to reopen its section 1983 action. We affirm the district court’s order permitting Ivy to reopen the case because we hold that Ivy, in the unique circumstances we have here, sufficiently reserved its right to litigate its federal claims in federal court.
I.
Ivy, founded more than a century ago, is a social eating club with an active membership of less than eighty undergraduate students at Princeton University and approximately fifteen hundred inactive graduate members who formerly attended the University. The Club is one of thirteen eating clubs which provide meals to a portion of upper class Princeton students. Until recently, Ivy’s membership was all male.
This litigation commenced in 1979 when Sally Frank, then a student at Princeton University, filed a complaint with the Division against Ivy, as well as two other eating clubs, the Tiger Inn and the University Cottage Club (“the Clubs”), and Princeton University. Frank alleged that the Clubs and Princeton University discriminated on the basis of sex in places of public accommodation in violation of the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq.
The Division initially refused to process Frank’s complaint, stating that it had determined that the Clubs were exempt from LAD because the Clubs were not places of public accommodation. LAD does not apply to “any institution, bona fide club, or place of accommodation, which is in its nature distinctly private.” N.J.S.A. 10:5— 5(1).
In December of 1979, Frank filed another complaint with the Division, this time alleging that the Clubs were places of public accommodations because they functioned as an arm of Princeton University. Ivy’s answer to the complaint stated as a separate defense that Ivy “has the right to freedom of association pursuant to the First and Fourteenth Amendments of the United States Constitution.” The Division dismissed Frank’s complaint, holding that it lacked jurisdiction over the Clubs because of their distinctly private nature.
Frank appealed the dismissal of her complaint to the Appellate Division of the Superior Court of New Jersey. Once again, the Clubs raised the defense of freedom of association guaranteed by the United States Constitution. The appellate division, taking no position on the merits of the complaint, vacated the decision by the Division and remanded the case for further investigation, holding that a hearing and factual findings were necessary to determine whether the Division had jurisdiction.
After a number of procedural skirmishes not relevant to the dispute at hand, on February 6, 1986, the Division issued a Partial Summary Decision, holding that the Division had jurisdiction over the Clubs. The decision affirmed an earlier ruling of the Division in which the Director of the Division rejected the Club’s argument that the exercise of jurisdiction by the Division violated their first amendment right to freedom of association. In a discussion covering six pages, the Director compared the Clubs and Roberts v. United States Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 82 L.Ed.2d 462 (1984), and held that the application of LAD to the Clubs did not violate their constitutional right to freedom of association.
On February 13, 1986, following this final determination of jurisdiction at the administrative level, and having had its constitutional defenses against the exercise of jurisdiction rejected, Ivy and the Tiger Inn filed suit in federal court. The complaint alleged that the exercise of jurisdiction by the Division of Civil Rights violated the Clubs’ civil rights under the federal constitution and requested a declaratory judgment and an injunction against the state proceedings. The defendants were Attorney General W. Cary Edwards and Director of Civil Rights Pamela Poff. Tiger Inn v. Edwards, 636 F.Supp. 787 (D.N.J.1986).
The federal court chose to stay the federal action “until the New Jersey courts have clarified the application of the New Jersey Law Against Discrimination to the plaintiffs.” Tiger Inn, 636 F.Supp. at 792. Although the plaintiffs requested the court to exercise its equitable powers in restraining the state proceedings, the court stayed the action pursuant to the Pullman doctrine, rather than the Younger doctrine. The court explicitly declined to rule whether the plaintiffs were entitled to return to federal court upon the conclusion of the state proceedings. The court cautioned Ivy and Tiger Inn “not to interpret the court’s decision to grant a stay as a ruling that they have properly reserved their federal constitutional claims for federal court adjudication pursuant to England.” 636 F.Supp. at 792.
The Ivy Club and Tiger Inn then resumed litigation at the state level. Ivy thereafter refrained from raising its federal constitutional claims in the state proceedings. It explicitly stated that it wished to reserve its right to litigate its federal claims in federal court pursuant to the England doctrine. Ivy reserved its rights under England orally before the Administrative Law Judge and again in its brief to the Appellate Division of the New Jersey Superior Court. As a part of its motion opposing certification to the Supreme Court of New Jersey, Ivy included its brief presented to the appellate division containing the England reservation. Tiger Inn, on the other hand, continued to present its federal claims in the state proceedings.
On July 3, 1990, the Supreme Court of New Jersey rendered its final decision. See Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990), cert. denied, Tiger Inn v. Frank, — U.S. -, 111 S.Ct. 799, 112 L.Ed.2d 860 (1991). The court affirmed the Division’s Order of May 26, 1987, awarded Frank humiliation damages in the amount of $5,000, but denied her club membership. It also ordered Ivy and Tiger Inn to admit women as members.
The decision, concerned primarily with the extent of hearings necessary to satisfy administrative due process, did not discuss federal constitutional claims. The only mention the New Jersey Supreme Court made of any federal constitutional claims was in its summary of the procedural history where the court noted that “[t]he Division rejected the argument that the Club members’ constitutional free-association rights would be violated if the Clubs were subject to LAD.” 576 A.2d at 251.
On August 24,1990, Ivy moved to reopen its federal action based on the 1986 complaint. On October 15, 1990, the district court reopened this case and certified the question to this court under 28 U.S.C. § 1292(b) whether Ivy had waived its right to litigate its federal rights in federal court.
On October 1, 1990, Tiger Inn filed a Petition for a Writ of Certiorari with the Supreme Court of the United States, claiming that the decision of the Supreme Court of New Jersey violated its first amendment rights. Although Ivy filed a motion for an extension of time to file its petition in the Supreme Court, Ivy never filed a petition. On January 18, 1990 the United States Supreme Court denied Tiger’s petition for cer-tiorari.
II.
A. Mootness
In the fall of 1990, Ivy formally inducted its first female members. The admission of women to the club raises the threshold question of whether this matter is moot. As is well established under Article III of the Constitution, federal courts may adjudicate only actual, ongoing cases or controversies. Lewis v. Continental Bank Corporation, 494 U.S. 472, 110 S.Ct. 1249, 1253, 108 L.Ed.2d 400 (1990). This case-or-controversy requirement subsists through all stages of the judicial proceedings, trial and appellate. Id.
Because this court has jurisdiction pursuant to 28 U.S.C. § 1292(b), the scope of appellate review extends only to questions of law raised by the order certified by the district court, United States v. Stanley, 483 U.S. 669, 677, 107 S.Ct. 3054, 3060, 97 L.Ed.2d 550 (1987). However, it is the order that is appealable, and not the controlling question; and thus we may address any issue necessary to decide the appeal before us. Morse/Diesel, Inc. v. Trinity Industries, Inc., 859 F.2d 242, 249 (2nd Cir.1988). We must necessarily decide the issue of mootness because this court has a “ ‘special obligation’ to satisfy itself of its own jurisdiction in every appeal presented to it.” McNasby v. Crown Cork and Seal Co., Inc., 832 F.2d 47, 49 (3rd Cir.1987), cert. denied, 485 U.S. 936, 108 S.Ct. 1112, 99 L.Ed.2d 273 (1988), citing Bender v. Williamsport Area School District, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986).
Ivy’s admission of women raises the question of whether the present controversy is mooted. Certainly, if Ivy admitted women in order to comply with the order affirmed by the New Jersey Supreme Court, and hence did so involuntarily, the matter would not be mooted. However, if Ivy members have freely and voluntarily decided to change their club policy, then we must consider the question of mootness.
Although Ivy admitted women only after the final decision of the New Jersey Supreme Court holding that Ivy must admit women, and after the state and federal courts denied Ivy’s request for a stay, there are indications that at least part of Ivy’s membership is in favor of admitting women. First, the club voted to admit women sometime prior to July of 1990, before the state court’s final adjudication. See Frank v. Ivy Club, 576 A.2d at 253 n. 2. After the state court’s final decision, Ivy members again voted to admit women. In light of the New Jersey Supreme Court’s order that women be admitted, it would seem that holding a vote would be unnecessary as the outcome had been decided for them by the court.
There is therefore reason to believe that Ivy, regardless of the outcome of this litigation, has decided to revise its membership policy in favor of admitting women. If this were true, even if the court decided that Ivy does have a first amendment right to exclude women from their club, our decision would have no effect. Thus, the constitutional requirement of redressability would not be met; there must be a substantial likelihood that a favorable federal court decision will remedy the claimed injury. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).
If Ivy does not intend to exercise the first amendment rights it alleges have been violated, a question that immediately comes to mind is why is Ivy pursuing this litigation. First, there might be internal disagreement within Ivy as to its admissions policy. Second, there exists practical, although not judicially cognizable, reasons for pursuing this federal litigation. The state court’s order provides that Sally Frank may apply to the Director for attorneys’ fees incurred in connection with this matter.
However, an interest in attorneys’ fees does not save a matter from mootness. Lewis v. Continental Bank, 110 S.Ct. at 1255 (reasonable caution is needed to be sure that mooted litigation is not pressed forward solely to obtain reimbursements of attorneys’ fees); Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 1707-08, 90 L.Ed.2d 48 (1986) (the fee award is wholly unrelated to the subject matter of the litigation, and the prospect that “continued adjudication would provide a remedy for an injury that is only a byproduct of the suit itself does not mean that the injury is cognizable under Article III”).
In any event, we need not resolve the question whether Ivy admitted women voluntarily. Several other factors give considerable life to this controversy. First, the New Jersey Supreme Court upheld a $5,000 judgment against Ivy and Tiger Inn. If Ivy is correct in asserting that subjecting them to LAD violates its first amendment right to freedom of association, then a damage award based on violation of that law is impermissible. In addition, the Division has retained jurisdiction over the club to observe and require compliance with its orders that Ivy admit women in all future membership selections and that the women members will be accorded the same courtesies, privileges and accommodations as males. Ivy must also report in writing to the Division for the next two years on the number of women admitted. Under these circumstances, we conclude that the matter is not moot.
B. Ivy’s Right to Litigate in Federal Court
In 1986, Ivy and Tiger Inn filed suit in federal court seeking a declaratory judgment and injunction against the state proceedings, alleging that the Division’s exercise of jurisdiction violated the Clubs’ civil rights in violation of 42 U.S.C. § 1983. See Tiger Inn v. Edwards, 636 F.Supp. 787 (D.N.J.1986). Because the plaintiffs requested that the federal court exercise its equitable powers to restrain ongoing state proceedings, the court should have decided the case under the parameters of the abstention doctrine laid out in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). However, at the State’s urging, the court abstained pursuant to the Pullman abstention doctrine. See Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). The ramifications of that decision will be explored below.
Ivy and Tiger Inn’s suit filed in federal court alleged that the defendants, Attorney General W. Cary Edwards and Director of Civil Rights Pamela Poff, were violating the clubs’ right to privacy and freedom of association as protected by the first and fourteenth amendments. The Clubs brought suit pursuant to 42 U.S.C. § 1983 which provides:
[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, or any State... subjects... any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
The Clubs alleged that the defendants’ enforcement of the New Jersey Law Against Discrimination against them violated 42 U.S.C. § 1983 and requested that the defendants be enjoined permanently from implementing any procedures to compel the Clubs to accept any person into its membership against the associational preferences of its members.
Section 1983 has engendered a great deal of discussion regarding the relationship between the federal and state courts. Originally § 1 of the Civil Rights Act of 1871, section 1983 was “enacted for the express purpose of ‘enforcing] the Provisions of the Fourteenth Amendment.’ ” Mitchum v. Foster, 407 U.S. 225, 238, 92 S.Ct. 2151, 2160, 32 L.Ed.2d 705 (1972) (quoting 17 Stat. 13). Section 1983 was intended to alter significantly the relationship of the federal government to the states.
The Civil Rights Act of 1871, together with the fourteenth amendment, were “crucial ingredients in the basic alteration in our federal system accomplished during the Reconstruction Era.” Patsy v. Board of Regents of State of Florida, 457 U.S. 496, 503, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982). The Act and the constitutional amendment had the effect of dramatically changing the relationship between the federal and state judicial systems. They threw open the doors of the federal judicial system to lawsuijts by private citizens to enable them to protect their federal rights. As a consequence of the new structure of law that evolved in the post-Civil War era, “the role of the Federal Government as a guarantor of basic federal rights against state power was clearly established.” Mitchum v. Foster, 407 U.S. at 239, 92 S.Ct. at 2160. Section 1983 now offered a “uniquely federal remedy” for vindication of individual rights violated “under the claimed authority of state law.” Id. at 239, 92 S.Ct. at 2160. It purposely interposed the federal courts between the States and the people “to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ” Id. at 242, 92 S.Ct. at 2162 (quoting Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1880)) (emphasis supplied).
The Court has delineated the extent to which Section 1983 provides protection against involuntary participation in state court proceedings in Mitchum v. Foster, supra, and Younger v. Harris, supra, and its progeny. Mitchum, on the one hand, held that the federal anti-injunction statute, 28 U.S.C. § 2283, does not preclude a federal court from enjoining a state proceeding. The anti-injunction statute provides that a “court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by an Act of Congress, or where necessary in aid of its jurisdiction, or to protect or to effectuate its judgments.” The Court reasoned that section 1983 fell within the expressly authorized exception of the anti-injunction statute. Mitchum, 407 U.S. at 243, 92 S.Ct. at 2162.
Younger and its progeny, on the other hand, have erected a formidable prudential barrier to obtaining injunctive relief from ongoing state adjudicative proceedings. In Younger, the plaintiff, who was being prosecuted under the California Criminal Syndicalism Act, sought a federal court injunction pursuant to section 1983 against the state criminal prosecution on the grounds that the existence of the Act and the prosecution under it violated the first and fourteenth amendments. The Court refused to grant the injunction, citing concerns of comity and federalism. 401 U.S. at 44-45, 91 S.Ct. at 750-51. The Court held that federal interference with state court proceedings was available only upon a showing of irreparable injury that is “both great and immediate.” Id. at 46, 91 S.Ct. at 751.
Thus, although an injunction pursuant to section 1983 is not statutorily prohibited, Younger creates a separate and independent judicially created abstention doctrine. The Younger abstention doctrine is a prudential limitation on the federal courts’ exercise of jurisdiction when a plaintiff requests that a federal court interfere with ongoing state proceedings. Consequently, the Clubs’ request for an injunction pursuant to 42 U.S.C. § 1983 fell squarely within the parameters of the Younger decision.
However, in 1986, when the district court considered the question of whether the Clubs’ suit should be dismissed pursuant to Younger, the court expressed uncertainty as to whether Younger abstention should be applied to state administrative proceedings initiated by a private plaintiff. At that time, the Supreme Court had extended the Younger doctrine to civil proceedings initiated by the state in a state court in which important state interests were involved. See Moore v. Sims, 442 U.S. 415, 99 S.Ct. 2371, 60 L.Ed.2d 994 (1979); Juidice v. Vail, 430 U.S. 327, 97 S.Ct. 1211, 51 L.Ed.2d 376 (1977); Trainor v. Hernandez, 431 U.S. 434, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977); Huffman v. Pursue, Ltd., 420 U.S. 592, 95 S.Ct. 1200, 43 L.Ed.2d 482 (1975). The Court had also applied Younger to state administrative proceedings initiated by the state in which important state interests were vindicated. See Middlesex County Ethics Committee v. Garden State Bar Assoc., 457 U.S. 423, 102 S.Ct. 2515, 73 L.Ed.2d 116 (1982); Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973).
Only after the district court first considered this case in 1986 did the Supreme Court consider the question of whether Younger abstention applied to administrative proceedings initiated by a private plaintiff In Ohio Civil Rights Commission v. Dayton Christian Schools, Inc., 477 U.S. 619, 106 S.Ct. 2718, 91 L.Ed.2d 512 (1986), a case factually similar to the one at bar, the state administrative proceedings were initiated by a private litigant filing a sex discrimination complaint with the Ohio Civil Rights Commission. Although the administrative proceedings were pending, Dayton (the defendant in the state proceedings), filed suit in federal court seeking an injunction against the state proceedings on the ground that any investigation or imposition of sanctions would violate the first amendment.
The Court held that it should abstain under Younger because “the elimination of prohibited sex discrimination is a sufficiently important state interest to bring the present case within [Younger and its progeny]" and the Court had "no reason to doubt that Dayton will receive an adequate opportunity to raise its constitutional claims." 477 U.s. at 628, 106 S.Ct. at 2723. Dayton would thus appear to be controlling precedent for the case at bar. The present case also involves the issue of sex discrimination and there have been no allegations that the state courts would not provide an adequate opportunity to raise constitutional claims. Moreover, abstention in the present case might have avoided the necessity to reach a constitutional question. Pennzoil Company v. Texaco, Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 1526, 95 L.Ed.2d 1 (1987) (unwarranted determination of federal constitutional questions is a basis for abstaining pursuant to the Younger doctrine).
Thus, in retrospect, with the additional guidance of Dayton and Pennzoi4 it appears that abstention pursuant to the Younger doctrine would have been appropriate. The defendants urge us to adopt this course of action presently and direct the dismissal of Ivy's action. However, fairness dictates that we must examine the circumstances under which the court in this case abstained and the effect of that decision on the litigants.
The district court, in deciding not to abstain pursuant to Younger, instead accepted the defendants' argument and abstained pursuant to the Pullman theory of abstention. Tiger Inn v. Edwards, 636 F.Supp. at 790. Persuaded that this case was a classic situation for Pullman abstention, the court decided to "stay the action until the New Jersey courts have clarified the application of the New Jersey Law Against Discrimination to the plaintiffs." id. at 792.
The Pullman abstention doctrine derives from Railroad Commission of Texas v. Pullman, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). In that case, the Court established the principle that federal courts may abstain as a matter of policy from deciding a question of federal constitutional law when the challenged state law is unsettled and state resolution of the claim may make it unnecessary for a federal court to address the federal constitutional claim. Thus, under Pullman, a federal court may stay the federal proceedings until the completion of state court proceedings to decide an issue of state law which might moot a federal constitutional question.
Pullman abstention, however, is usually applied when a plaintiff properly invokes federal court jurisdiction in the first instance on a federal claim. Allen v. McCurry, 449 U.S. 90, 101 n. 17, 101 S.Ct. 411, 418 n. 17, 66 L.Ed.2d 308 (1980). When the plaintiff meets federal jurisdictional requirements and initiates proceedings in federal court prior to any state proceedings, the federal court has a duty to accept that jurisdiction. Id. The federal plaintiff is relegated to the state court only for the resolution of the state law issue. Unlike Younger abstention, Pullman abstention "may serve only to postpone, rather than to abdicate, jurisdiction." Id.
The impropriety of applying Pullman in the present case is illustrated by the Clubs' inability to file suit in federal court prior to the commencement of state proceedings. Their federal complaint was that the state administrative proceedings themselves violated their federal constitutional rights. Neither could the Clubs have removed their state action to federal court; a defendant sued in state court on a state law cause of action cannot remove a case from state to federal court because of a defense based on federal law. Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908) (A plaintiff's cause of action must be based on federal law in order for the case to arise under federal law for purposes of 28 U.S.C. § 1331.).
Thus, normally, unless an injunction could be obtained pursuant to the Younger doctrine, the state defendant in these circumstances would be constrained to present its constitutional defenses in state court. The Supreme Court has held that state-court judgments must be given both issue and claim preclusion effect to subsequent actions under 42 U.S.C. § 1983 by federal courts. See Migra v. Warren City School District Board of Education, 465 U.S. 75, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984) (Parties may not raise in federal court § 1983 litigation issues that could have been litigated in an earlier proceeding.); Allen v. McCurry, 449 U.S. 90, 104, 101 S.Ct. 411, 420, 66 L.Ed.2d 308 (1980) (“There is... no reason to believe that Congress intended [§ 1983] to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all.”).
Thus, we see that Congress’ intention that section 1983 “throw open the doors of the United States courts,” Patsy v. Florida Board of Regents, 457 U.S. 496, 504, 102 S.Ct. 2557, 2561, 73 L.Ed.2d 172 (1982) (quoting remarks of Rep. Lowe), to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights does not hold true for the party who is a defendant in state proceedings alleging that the state proceedings are in violation of his federal rights. Unless the formidable barrier of the Younger abstention doctrine can be surmounted by a defendant in a state proceeding or removal is available under the Civil Rights Removal Act, that defendant must have his federal rights adjudicated by the state court system subject to review only by the Supreme Court of the United States.
To summarize, the distinction between Pullman and Younger abstention arises from the different procedural posture of a case where the federal litigation is initiated as a defense to ongoing state proceedings and a case where the plaintiff properly invokes federal jurisdiction in the first instance. In the former, the Younger doctrine is utilized when the federal court is requested to enjoin ongoing state proceedings. In the latter, the Pullman abstention doctrine is utilized when the plaintiff properly invokes the federal jurisdiction in the first instance and the federal court temporarily abstains from exercising its jurisdiction pending the state court decision on a state law question.
For our purposes, the most important consequence of district court abstention pursuant to Younger rather than Pullman is that although a decision under Younger terminates the federal litigation (or ends the state litigation if the federal plaintiff is successful), abstention under Pullman merely postpones the exercise of federal jurisdiction. Allen v. McCurry, 449 U.S. at 101 n. 17, 101 S.Ct. at 418 n. 17. A federal plaintiff who is remitted to state court pursuant to Pullman need not relinquish the right to litigate federal claims in federal court; that right may be reserved especially by following the dictates of England v. Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964).
When the district court abstained pursuant to Pullman, the court expressly did not decide whether the Clubs were able to return to federal court following the termination of the state court proceedings. The court, understandably troubled by Ivy’s litigation of its federal constitutional claims in the state administrative proceedings, cautioned the Clubs “not to interpret the court’s decision to grant a stay as a ruling that they have properly reserved their federal constitutional claims for federal court adjudication pursuant to England. ” Tiger Inn v. Edwards, 636 F.Supp. at 792.
The record before us unequivocally demonstrates that Ivy’s constitutional claims have not been adjudicated other than at the state administrative level. Subsequent to the district court’s decision to abstain, Ivy refrained from litigating its federal constitutional claims. Ivy also expressly stated its wishes to preserve its right to litigate in federal court pursuant to England at each subsequent stage of the state court proceedings.
Moreover, the New Jersey courts appear to have acquiesced to Ivy’s reservation of its right to litigate its federal claims in federal court. Although the New Jersey courts did not explicitly acknowledge Ivy’s reservation under England, neither did the state court decide Ivy’s constitutional defenses. See Frank v. Ivy Club, 228 N.J.Super. 40, 548 A.2d 1142 (1988); Frank v. Ivy Club, 120 N.J. 73, 576 A.2d 241 (1990). The only mention any state court made of Ivy’s first amendment claims was the New Jersey Supreme Court’s summary of the procedural history of the case. The court’s recognition that the first amendment claim had been decided at the administrative level hardly constitutes the adjudication of Ivy’s first amendment claims. The New Jersey Supreme Court affirmed only the order of the administrative body, not the Division’s opinion containing the first amendment discussion issued in conjunction with that order.
We therefore are faced with the situation where confronted by a Pullman abstention, Ivy chose not to pursue its federal claims in the state court. The state court apparently had no objection to that reservation. Ivy, thus, has not had a full and fair opportunity to litigate its federal claims. The Supreme Court has repeatedly recognized that the collateral estoppel doctrine cannot be applied when a party did not have a “full and fair opportunity” to litigate an issue in the earlier proceeding. See Kremer v. Chemical Construction Corp., 456 U.S. 461, 480-81, 102 S.Ct. 1883, 1896-97, 72 L.Ed.2d 262 (1982); Allen v. McCurry, 449 U.S. at 101, 101 S.Ct. at 418. Thus, the full faith and credit statute does not bar the federal court’s adjudication of Ivy’s federal claims.
The defendants argued, however, that Ivy did indeed possess a full and fair opportunity to litigate its federal claims in state court and that Ivy voluntarily waived that right. The simple answer is that the court, having granted abstention specifically pursuant to Pullman, repeatedly put Ivy in a “catch-22” situation by not deciding the reservation issue at that time. If Ivy wished to return to federal court, Ivy had to refrain from presenting its federal claims at the state level. Under England, a party who freely and without reservation submits his federal claims for decision by the state courts waives the right to litigate its federal claims in federal court. England, 375 U.S. at 419, 84 S.Ct. at 467. Thus, if Ivy had any hope of benefitting from the court’s decision to defer its exercise of jurisdiction rather than dismiss the case, Ivy necessarily had to refrain from litigating its federal issues in state court.
We are therefore left with a balancing of the equities. Ivy, on the one hand, detrimentally relied on the district court’s decision to stay this action. As a result, there has been no adjudication of Ivy’s federal claims to date. The State, on the other hand, has been litigating this case for over ten years and, had the State successfully presented the Younger abstention, it could have ended the litigation. We are less troubled, however, by any perceived unfairness to the defendants because of two factors: First, it was in response to the defendants’ urging that the court abstained under Pullman. Tiger Inn v. Edwards, 636 F.Supp. at 789. Second, at least on the record before us, the defendants failed to raise any objection to Ivy’s England reservations in the state court. Accordingly, a sense of basic fairness dictates that Ivy be permitted to litigate its federal claims in the federal forum. Unreviewed state administrative proceedings cannot be considered a sufficient and fair opportunity to fully litigate Ivy’s federal claims, the merits of which we do not reach.
The dissent disagrees with our holding that Ivy has been deprived of a full and fair opportunity to litigate its federal claims, arguing that this case should be treated as a straightforward Pullman/England case. The dissent would prefer that we ignore the procedural history of this case, stating that even if the Pullman abstention were incorrect, it has become “the law of the case.” The law of the case argument, however, supports the majority view for it validates the exercise of equitable principles under the unique circumstances of this case. However, were we just to assume that the Pullman abstention was the “law of the case” and not discuss its inappropriate use in the situation we have here, nothing would discourage, or indeed, prevent future parties from relying on it as binding precedent.
The omission of any discussion of the impropriety of applying Pullman/England abstention in the present case could mislead future state court defendants into believing that they always have an opportunity to litigate their federal claims in federal court. According to the dissent, Ivy may not return to federal court to litigate its federal claims because it did not sufficiently reserve its England rights in the state administrative proceedings pertaining to jurisdiction. Following that argument to its logical conclusion, one would conclude that had Ivy only raised its England reservations from the moment it was summoned in the state administrative proceedings, Ivy could come into federal court to have its federal claims decided on the basis that Ivy had sufficiently reserved its rights under England.
Under the jurisprudence as it stands today, that is not the law. As we discuss supra at 280, federal courts must give state-court judgments both issue and claim preclusion effect in subsequent actions under section 1983. Section 1983 did not give state-court defendants the unrestricted right to litigate their federal rights in federal court. See Allen v. McCurry, 449 U.S. at 103, 101 S.Ct. at 419 (no authority for proposition that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in federal district court, regardless of the legal posture in which the federal claim arises). The state-court defendant may successfully invoke federal court jurisdiction only if the defendant successfully amounts the Younger bar to obtaining an injunction of the state court proceedings or if removal is available pursuant to the Civil Rights Removal Act.
Notwithstanding, having sought injunc-tive relief immediately upon the final decision of the state administrative agency on the question of jurisdiction and having been the beneficiary of a Pullman abstention, although erroneously granted, Ivy should not be deprived of subsequent access to the federal court at the conclusion of the state court proceedings in which it refrained from litigating its federal claims. The dissent dismisses this proposition, stating that it is "without precedent." It is hardly surprising that no court has encountered the anomalous situation presented here. That no court has decided what should happen under these unique circumstances does
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
PER CURIAM:
This is an appeal by New York State prisoners from a judgment of the District Court for the Southern District of New York (Leonard B. Sand, Judge) granting summary judgment in favor of New York corrections officials in the prisoners’ suit challenging the reliability of urinalysis drug test results for use as evidence sufficient to warrant prison discipline. The tests are performed by State officials using the Syva Company’s EMIT-st urinalysis drug detection kits. Evidence before Judge Sand established that the testing procedure — an initial test and a subsequent confirming test — has an accuracy of at least 98%. Though the risk of false positives has not been entirely eliminated, we agree with Judge Sand that use of the test results may be relied upon as sufficient evidence to warrant prison discipline under the standards of Superintendent v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 2773, 86 L.Ed.2d 356 (1985). We also agree that the detention prior to the disciplinary hearings was administrative and conformed to the requirements of due process. See Hewitt v. Helms, 459 U.S. 460, 103 S.Ct. 864, 74 L.Ed.2d 675 (1983); Bolden v. Alston, 810 F.2d 353 (2d Cir.), cert. denied, — U.S. -, 108 S.Ct. 229, 98 L.Ed.2d 188 (1987).
On the basis of Judge Sand’s well-reasoned opinion, reported at 675 F. Supp. 102, we affirm the judgment of the District Court.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
ALARCON, Circuit Judge:
In this appeal, we must decide whether the district court erred when it denied a motion to remand the action to state court.
I
The University of Washington is a member of the National Collegiate Athletic Association (NCAA), an unincorporated association whose members are public and private colleges and universities. The NCAA regulates participation in intercollegiate sports.
As a condition of membership in the NCAA, the University of Washington agreed “[t]o administer their athletics programs in accordance with the Constitution, the Bylaws and other legislation of the Association.” NCAA Const., art. IV, § 2(a). The NCAA Constitution also states that if a student athlete is ineligible under the NCAA requirements, the member school must withhold that athlete from all intercollegiate competition. NCAA Const., art. IV, 0.1.11. If the member school does not withhold the ineligible student from competition, the school is subject to NCAA enforcement proceedings and may be expelled from the NCAA. NCAA Const., art. II, § 2(b).
The NCAA requires that a student athlete sign a statement in which the athlete consents to be tested for the use of drugs prohibited by NCAA legislation. NCAA Const., art. Ill, § 9(i). The statement must be signed annually, prior to competition in intercollegiate athletics during the academic year in question. Id. Failure to sign the consent form renders a student athlete ineligible for intercollegiate competition. Id.
Elizabeth O’Halloran is a student at the University of Washington and a member of the University’s track and cross-country teams. On May 22, 1987, O’Halloran filed a complaint against the University in Washington’s King County Superior Court. The complaint sought injunctive and declaratory relief prohibiting the University from enforcing its own drug testing program and from prohibiting students from participating in intercollegiate competition if they refused to sign the NCAA drug testing consent form. The complaint did not name the NCAA as a party.
On July 9, 1987, O’Halloran filed alternative motions for summary judgment and for a preliminary injunction. The motions were directed against enforcement of both the University and NCAA programs. On July 16, 1987, the University of Washington moved to compel joinder of the NCAA as a party. Following oral argument on July 23, 1987, the Superior Court issued an oral ruling that the portion of the University’s drug testing program that permitted testing without individualized reasonable suspicion violated the United States and Washington Constitutions. In ruling on the motion to compel joinder, the Superior Court stated that the NCAA program suffered from more constitutional deficiencies than did the University program. The Superior Court issued an order compelling joinder, but ordered that the University, not O’Halloran, join the NCAA because the University is the party that would be harmed by any action taken by the NCAA. The Superior Court said that it would issue a temporary restraining order prohibiting the NCAA from requiring the University to prohibit students who refused to sign drug testing consent forms from competing on University athletic teams. The court signed the temporary restraining order on July 24, 1987 and it expired by its own terms on July 30, 1987. Although the parties met to discuss proposed language for the temporary restraining order, the court did not sign a written order enjoining the University from enforcing the NCAA drug testing program’s consent form requirement. The temporary restraining order stated that on July 31, 1987 the NCAA was to appear and show cause why a preliminary injunction should not issue prohibiting it from taking actions against the University when the University allowed students who did not sign the NCAA consent form to compete in intercollegiate events.
On July 27,1987, the University filed and served a third-party complaint against the NCAA. On July 30, 1987, the NCAA removed the action to the United States District Court for the Western District of Washington. On August 6, 1987, O’Hallo-ran moved to remand the action to state court. On October 9, 1987, the district court denied the motion to remand the action to state court. O’Halloran v. Univ. of Washington, 672 F.Supp. 1380 (W.D.Wash.1987).
On October 15, 1987, O’Halloran moved for the entry of an order encompassing the rulings the Superior Court made prior to removal. On January 15, 1988, the district court denied this motion. The court also dismissed without prejudice the University’s third-party complaint against the NCAA because it was premature. Finally, the court ordered O’Halloran to join the NCAA as a defendant.
On January 20, 1988, O’Halloran filed a notice of appeal from the January 15, 1988 order. In this notice of appeal, O'Halloran also appealed the order denying her motion to remand the action to state court.
On January 21, 1988, pursuant to the court’s order, O’Halloran filed a Second Amended Complaint, naming the NCAA as a co-defendant, and moved for a preliminary injunction prohibiting the NCAA and the University from not allowing her to compete on its athletic teams because she refused to consent to the University drug testing program and to sign the NCAA drug testing consent form. While this motion was pending, the University dropped its plan to conduct drug testing in the absence of individualized suspicion. As a result, on February 5, 1988, all claims against the University regarding its own drug testing program were dismissed.
On February 25, 1988, the district court denied O’Halloran’s motion for a preliminary injunction. O’Halloran v. Univ. of Washington, 679 F.Supp. 997 (W.D.Wash.1988). The court held that the balance of hardships did not tip in O’Halloran’s favor. 679 F.Supp. at 1007. The court also found that she was unlikely to succeed on the merits. Id.
On March 2, 1988, O'Halloran appealed from the district court’s February 25, 1988 order. The two appeals were consolidated by this court.
II
This court has jurisdiction over the appeals from the denial of the motions for preliminary injunctions pursuant to 28 U.S.C. § 1292(a)(1) (1982).
“Where a motion to remand is denied, the propriety of removal is reviewable on appeal from the final judgment or by interlocutory appeal if the refusal to remand is certified under 28 U.S.C. § 1292(b).” Sheeran v. General Elec. Co., 593 F.2d 93, 97 (9th Cir.), cert. denied, 444 U.S. 868, 100 S.Ct. 143, 62 L.Ed.2d 93 (1979). In this case, there is not yet a final judgment and the district court did not certify under 28 U.S.C. § 1292(b) the order denying the motion to remand. However, when an appeal from an order denying a motion to remand is joined with an appeal from an order granting or denying an injunction, we will review the order denying the motion to remand at that time and not wait for final judgment or certification. See Takeda v. Northwestern Nat'l Life Ins. Co., 765 F.2d 815, 818 (9th Cir.1985) (we will review a refusal to remand at the same time we review the propriety of a preliminary injunction in order to prevent the waste of judicial resources). See also Alligator Co. v. La Chemise LaCoste, 421 U.S. 937, 938, 95 S.Ct. 1666, 1666, 44 L.Ed.2d 94 (1975) (Justice White, dissenting, said that “it would appear that jurisdictional questions should be reviewed at the first available opportunity, and I perceive no good reason for not permitting the removal issue to be raised in connection with an appeal from the denial of a preliminary injunction.”); Kysor Indus. Corp. v. Pet, Inc., 459 F.2d 1010, 1011 (6th Cir.) (per curiam), cert. denied, 409 U.S. 980, 93 L.Ed.2d 314, 34 L.Ed.2d 243 (1972) (noting that, although the court must usually wait until an appeal from final judgment to review the denial of a motion to remand, it would not wait in this case because the plaintiff was also appealing the denial of a motion for a preliminary injunction and that issue was properly before the appellate court); Mayflower Indus. v. Thor Corp., 184 F.2d 537, 538 (3d Cir.1950) (“[a]lthough the denial of a motion to remand itself would not support an interlocutory appeal, the question of removability is jurisdictional and therefore is before us for consideration once it appears that the case is properly here for review of an appealable order.”), cert. denied, 341 U.S. 903, 71 S.Ct. 610, 95 L.Ed. 1342 (1951).
Ill
The NCAA argues that because O’Halloran filed a Second Amended Complaint in federal court, realigning the NCAA as a defendant and alleging federal law violations, her appeal from the order denying remand is now moot. According to the NCAA, because the federal court clearly has jurisdiction over O’Halloran’s claims against them at this time her “first appeal should be dismissed as moot.”
O’Halloran filed her Second Amended Complaint on January 21, 1988, after the district court ordered her to realign the NCAA as a defendant. In the amended complaint, O’Halloran expressly stated that she “reserves her objections to the court’s jurisdiction.” She contends that she had filed both a motion for certification of the remand issue for appeal and a notice of appeal, which encompassed the remand issue, prior to filing her Second Amended Complaint. According to O’Halloran, because she was ordered by the court to join the NCAA, she was required to proceed by filing the amended complaint, even though the remand issue had not yet been appealed.
“Procedural defects in the removal of an action may be waived by the failure to make a timely objection before the case proceeds to the merits_ [Djefects going to the subject matter jurisdiction of the court cannot be waived and may be raised at any time.” Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1065 (9th Cir.1979) (citations omitted). “In determining the existence of removal jurisdiction, based upon a federal question [the court] must look to the complaint as of the time the removal petition was filed.” Id. Jurisdiction is based on the complaint as originally filed and not as amended. Id.
In Thomas v. Great N. Ry. Co., 147 F. 83 (9th Cir.1906), after removal from state court, the plaintiff moved to have the action remanded. After the district court denied his motion and granted a demurrer for one of the defendants, the plaintiff voluntarily amended the complaint and made the appellee the sole defendant. The appellee argued that by amending his complaint, the plaintiff submitted to the jurisdiction of the court and could no longer contend that the action was not removable. Id. at 86. This court stated that the only question was
whether the case was one properly removable from the state court as it stood in that court at the time when the petition was filed. That question is to be determined by the condition of the pleadings and the record at the time of the application for removal and not by the allegations of the petition or the subsequent proceedings which may be had in the Circuit Court.
Id. The court noted that
[a]fter the removal, and after the court had denied the motion to remand and had sustained the demurrer of McDonald [one of the defendants] to the complaint, the plaintiff was compelled either to submit to a dismissal of his action or amend his complaint in accordance with the ruling of the court. He could not, before final judgment, review in an appellate court the action of the trial court in overruling his motion to remand.
Id. at 87. Thus, the court held, “[b]y amending his complaint as he did, and submitting to trial, he did not give the court jurisdiction.” Id. See also McLeod v. Cities Serv. Gas Co., 233 F.2d 242, 244-45 (10th Cir.1956) (appellants did not voluntarily acquiesce to removal when they objected to removal and amended the pleading only after the court ordered them to do so); cf. Brough v. United Steelworkers of America, 437 F.2d 748, 750 (1st Cir.1971) (plaintiff waived the remand issue when he amended his complaint to include a federal question but was not ordered to do so).
Accordingly, we hold that when a court orders the plaintiff to amend its complaint, doing so does not moot the question whether removal to the federal court was proper. It is clear in this case that O’Hal-loran had no intention of waiving her claim that jurisdiction was not proper in federal court when she complied with the court’s order and amended the complaint.
IY
A defendant may remove an action to federal court when the action is within the original jurisdiction of the United States district court. 28 U.S.C. § 1441(a) (1982).
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
28 U.S.C. § 1441(b) (1982).
“Removal of a case from state to federal court is a question of federal subject matter jurisdiction which is reviewed de novo.” Emrich v. Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir.1988). The party seeking removal has the burden of establishing federal jurisdiction. Id. at 1195. In addition, section 1441 is strictly construed against removal. Id.
A defendant seeking to remove an action from state to federal court must file a petition in federal court “containing a short and plain statement of the facts which entitle him ... to removal_” 28 U.S.C. § 1446(a) (1982). In its Petition for Removal, the NCAA contends that the University of Washington’s third-party complaint is removable pursuant to section 1441 because it arises under the Constitution of the United States and, pursuant to 28 U.S.C. § 1331, is subject to the original jurisdiction of the federal district courts. We disagree.
In its third-party complaint, set forth as an appendix to this opinion, the University of Washington alleged that as a condition of the membership agreement between the NCAA and the University of Washington, “University student athletes are required to sign a statement consenting to testing for the use of drugs prohibited by NCAA legislation.” According to the complaint, “the University is required to withhold all student athletes from NCAA competition who have not complied with NCAA regulations.” The University further alleges that the Washington Superior Court had enjoined the University from requiring students to sign the NCAA consent form before they can compete on the University athletic teams. According to the University, were they to follow the court’s order, they would face possible sanctions, including expulsion, for non-compliance with the NCAA regulation. In its prayer, the University sought an order
[t]hat the NCAA, its agents, officers, employees, representatives, and all persons acting in concert or participating with them be enjoined from imposing any sanctions or taking any action whatsoever against the University or any University student or employee as a result of any order of this court regarding the University’s compliance with the NCAA drug-testing program.
The third-party complaint was filed to prevent the NCAA from exercising its contractual rights against the University of Washington if it failed to fulfill its promises under the membership agreement, in compliance with the order of the King County Superior Court. The University’s claim is no more than a request that the King County Superior Court deny enforcement of the NCAA membership agreement’s terms because the University has a defense that excuses non-performance. Thus the complaint presents a pure question of state law. The University did not purport to allege a cause of action arising under federal law. We note also that the NCAA is an unincorporated association. Therefore, it cannot seek removal on the ground of diversity of citizenship. Rockwell Int’l Credit Corp. v. United States Aircraft Ins. Group, 823 F.2d 302, 304 (9th Cir.1987). Accordingly, the district court did not have subject matter jurisdiction over the third-party complaint and removal was improper.
As noted above, the defendant must state the basis for removal jurisdiction in the petition for removal. Furthermore, the petition must be filed within thirty days of receiving the complaint. 28 U.S.C. § 1446(b). The petition cannot be amended to add a separate basis for removal jurisdiction after the thirty day period. Barrow Dev. Co. v. Fulton Ins. Co., 418 F.2d 316, 317 (9th Cir.1969). In this action, the NCAA based its petition for removal solely on the facts alleged in the third-party complaint. The thirty days for filing and amending the petition have passed. Thus, we need not address the issue whether a third-party defendant can base its petition for removal on an alleged federal question presented in the complaint between the original parties.
Finally, because we find there was no federal jurisdiction over the third-party complaint, we need not reach the interesting question whether third-party defendants are defendants for purposes of the removal statute.
We reverse the district court’s order denying the motion to remand this case to state court. We remand the action to the district court with directions that that court remand the entire case back to the state court from which it was removed.
REVERSED AND REMANDED.
. On January 20, 1988, O'Halloran requested an order certifying the order denying remand for immediate appeal pursuant to 28 U.S.C. § 1292(b) (Supp. IV 1986). The court denied O’Halloran’s request on February 22, 1988.
. We recognize that the rule is different if the plaintiff has not appealed the denial of the remand order and there has been a trial on the merits. "[Wjhen there is no appeal of a denial of a remand motion and the case is tried on the merits, the issue on appeal is whether the federal court would have had jurisdiction had the case been filed in federal court in the posture it had at the time of the entry of the final judgment." Lewis v. Time, Inc., 710 F.2d 549, 552 (9th Cir.1983); see also Libhart, 592 F.2d at 1066 (dictum) (“[A] judgment of a district court may be upheld, even though there was no right to removal, if (1) the case is tried on the merits; and (2) the federal court would have had jurisdiction had the case been filed in federal court in the posture it had at the time of the entry of the final judgment." (citing Grubbs v. General Electric Credit Corp., 405 U.S. 699, 92 S.Ct. 1344, 31 L.Ed.2d 612 (1972))).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
BREYER, Circuit Judge.
The appellants, Tonora Archibald and her mother Gertrude Archibald, brought this civil rights action under 42 U.S.C. § 1983, and pendant claims under state law, against two Boston policemen, the police commissioner and the City of Boston. They claimed damages arising out of a “warrant-less search” of their home. The district court directed verdicts in favor of the commissioner and the City, and submitted the case against the policemen to a jury which found in favor of the policemen. Appellants attack the judgments against them on various grounds and seek a new trial. As they conceded at oral argument, however, they cannot succeed on this appeal if the warrantless entry into their home was in fact justified under the Fourth Amendment. We believe that undisputed facts in the record of this case show that it was.
The following facts were uncontroverted at trial: On February 25, 1980, Mr. Kamya Tivay called Boston police headquarters reporting that he had been robbed. Two policemen, defendants in this case, immediately responded and contacted Tivay, who told them that about ten to fifteen minutes earlier a man, whom he described in considerable detail, had robbed him of $105 and his coat. Tivay added that he had just chased the robber into apartment 2005 at 300 Ruggles Street, a half-block away. They all went to the apartment. The police officers pointed to the door of apartment 2005, and, after Tivay said he was certain the robber had entered it, the policemen knocked. There was no response, but the officers heard noises that sounded like furniture being moved inside. After announcing their presence and hearing only these noises in response, one of the officers broke in through a window. When they entered, guns drawn, they found no robber, but only a small child, who was seriously frightened by the knocking and the entrance. The issue before us is whether on these facts a warrantless entry was justified.
Appellants recognize that a warrantless entry and search of an apartment can escape the Fourth Amendment’s prohibition of “unreasonable” searches because an emergency, reasonably so identified, makes such an entry “reasonable.” They agree that such an entry is reasonable if justified by “exigent circumstances” of the sort described in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (police entered a house to search for an armed robbery suspect who had been seen entering that house only five minutes before), or if the police were in “hot pursuit” of a suspect, as in United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976) (the suspect, in view of the police, retreated through a doorway into her own home). They argue, however, that Hayden is limited to cases involving guns, physical danger, and five minutes of elapsed time, and that Santana requires “some sort of chase” involving (in appellants’ words) the “sighting” of the suspect by the police officers.
We do not believe that Hayden or Santana are as limited in their scope as appellants suggest. Certainly other courts have read them as permitting warrantless searches in situations similar to this one. Thus, in United States v. Mitchell, 457 F.2d 513 (6th Cir.), cert. denied, 409 U.S. 866, 93 S.Ct. 161, 34 L.Ed.2d 114 (1972), a warrant-less entry and arrest was upheld although the police relied upon witnesses, not their own observations, in tracing a bank robbery suspect to his home where he was arrested two hours after the robbery. In United States v. Scott, 520 F.2d 697 (9th Cir. 1975), cert. denied, 423 U.S. 1056, 96 S.Ct. 788, 46 L.Ed.2d 645 (1976), a still more attenuated chain of identifying testimony led the police to an apartment house, where they invaded an apartment on the strength of scuffling noises and arrested suspects an hour and forty-five minutes after a bank robbery. See also People v. Escudero, 23 Cal.3d 800, 153 Cal.Rptr. 825, 592 P.2d 312 (1979) (suspect need not be kept physically in view at all times); Commonwealth v. Montgomery, 246 Pa.Super. 371, 371 A.2d 885 (1977) (Hayden governs even though bystander told the victim, not the police, where robbers were); State v. Gallo, 20 Wash.App. 717, 582 P.2d 558 (1978) (victim told police that assailant had gone to house next door); 2 W. LaFave, Search & Seizure § 6.1 & n.66 (1978). Moreover, nothing in the language of Santana or Hayden suggests that all other cases involving chases, “hot pursuit” or “exigent circumstances” must involve “sightings” or exactly similar facts to justify warrantless entry or search. Rather those eases exemplify the types of fact that offer justification. And, such facts are present here.
The crime described to the police officers was a serious crime that is by definition accompanied by violence. The witness seemed trustworthy, for he was able to give a detailed description of the assailant, and to explain coherently what had occurred. He described his own “pursuit” up to the point the officers took over. And, he stated unequivocally that the thief had entered appellants’ apartment, apartment 2005, and led the police unerringly to that apartment. The police officers arrived at the apartment no more than twenty to twenty-five minutes after the theft. Their suspicions were corroborated by the noise inside the apartment, which showed that someone was there, and by the refusal of the occupant to respond to their announcements. They thus could reasonably have believed at that point that a robbery suspect was in the apartment and that further delay could lead to the suspect’s escaping, hiding evidence, or injuring any other apartment occupant. These facts support, in our view, a reasonable perception of exigent circumstances. The mere fact that the police were in fact wrong and that only a child was inside the apartment does not weaken the reasonableness of the perception. Indeed, any contrary ruling would undesirably prevent the police from entering an apartment in other cases similar to this one but for the fact that the suspect is in the apartment holding the child prisoner. The only case that even arguably supports appellants is Wallace v. King, 626 F.2d 1157 (4th Cir. 1980), cert. denied, 451 U.S. 969, 101 S.Ct. 2045, 68 L.Ed.2d 348 (1981), in which the court held that mere grounds to believe that a suspect was present in a house does not justify dispensing with a warrant. But King involved a domestic relations matter and testimony that there was adequate time to secure a warrant — two facts that make the need for warrantless entry significantly less compelling there than in the case before us.
Because the undisputed facts show the search at issue was constitutional, the district court properly denied appellants’ motion for a new trial. Moreover, we need not pass upon appellants’ other assignments of error, which involve admissibility of evidence which was intended to show bad faith on the part of defendants or evidence of damages, for, even if they were well-founded, they would involve errors that were either harmless or irrelevant in the face of the basic validity of the entry and the search. Appellants’ case against the police commissioner and the City of Boston, based upon a charge of inadequate supervision of the police officers, depends, at a minimum, upon a possible finding that there was an unreasonable search. Hence, the directed verdicts in those cases were proper.
The judgments are affirmed.
. Appellants make much of the fact that Mr. Tivay did not explicitly state either that the man who relieved him of his property was armed or that he had used violence. Thus, the appellants claim that the alleged crime was no more than a larceny, compare Mass.Gen.Laws Ann.ch. 265, § 17, 19 (West 1970) with Mass. Gen.Laws Ann.ch. 266, § 30 (West 1970 and Supp.1981), and that the police officers were not entitled to enter an apartment without a warrant in the absence of a crime of violence. Even if the exigency involved in a particular crime diminishes as does the significance of the crime, we note that neither was the crime here reported insignificant, nor is violence a prerequisite to a finding of exigent circumstances. See, e.g., United States v. Santana, supra (suspect had just completed a narcotics transaction).
. The court dismissed the complaints against the City and commissioner on the grounds that there had been no showing that the police officers’ actions were the custom or policy of the City or that any alleged failure to supervise amounted to more than mere negligence. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Because we hold that the entrance was constitutional, we need not consider whether, if unconstitutional, it might lead to a finding of liability against the City and commissioner.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
COFFIN, Chief Judge.
Between March of 1962 and July of 1965 defendant-appellant, the Federal Bureau of Investigation (FBI), conducted electronic surveillance of Raymond Patriarca’s business office. The surveillance violated the Fourth Amendment. FBI agents recorded conversations, and compiled logs and memoranda from the tapes before erasing them. The resulting 2000 documents, consisting of over 7000 pages of summaries of the conversations, are the subject of this litigation.
In November, 1976, plaintiff-appellee, the Providence Journal Co., wrote to the Attorney General asking for release of the documents under the Freedom of Information Act (FOIA). In June, 1977, the director of the FBI denied the request in its entirety, relying on three subsections of Exemption 7 of the FOIA. 5 U.S.C. § 552(b)(7)(A), (C), and (D). The Journal’s appeal to the Justice Department went unanswered for over 20 days, and in August of 1977, the Journal exercised its right to consider its administrative remedies exhausted and to file this action in the district of Rhode Island. 5 U.S.C. § 552(a)(6)(A)(ii) and (C). Subsequently the Attorney General affirmed the FBI’s decision, but relied on only Exemption 7(C).
The district court issued a preliminary decision in which, inter alia, it granted Patriarca’s motion to intervene; and ruled that Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. §§ 2510-2520, is a specific statutory exemption under Exemption 3 of the FOIA, 5 U.S.C. § 552(b)(3); but decided that Title III is inapplicable because it has no retroactive effect. 460 F.Supp. 762 (D.R.I.1978).
In its final decision the court divided the requested information into three categories:
“1) Matters relating to Mr. Patriarca’s private life, and the private lives of his family members who are still living, i. e. his health, as well as that of his family, personal and religious beliefs and the like.
“2) Dealings with public officials and public figures in matters which may be legal and/or illegal.
“3) The names and code names or numbers of FBI agents and informants.” 460 F.Supp. 778, 789 (D.R.I.1978).
Applying Exemption 7(C), the court balanced privacy interests against the public interest in disclosure. It held that categories (1) and (3) were protected, but that category (2) was not. The district court refused to stay its judgment pending appeal, but we granted intervenor’s motion for a stay in order to maintain the status quo. 595 F.2d 889 (1st Cir. 1979).
We begin our analysis with Title III, Congress’ treatment of the problems created by electronic surveillance. We do so because of what we deem to be its compelling significance, not as a statutory exemption under Exemption 3, but in affecting the balancing process to determine whether, under Exemption 7(C), production of records would constitute an “unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(7)(C).
Title III “has as its dual purpose (1) protecting the privacy of wire and oral communications, and (2) delineating on a uniform basis the circumstances and conditions under which the interception of wire and oral communications may be authorized.” S.Rep. 1097, 90th Cong., 2nd Sess., 1968 U.S.Code Cong. & Admin.News pp. 2112, 2153. Congress, concerned about the “tremendous scientific and technological developments” which “seriously jeopardized” the “privacy of communication” to the point where “[e]very spoken word . . . can be intercepted . . . and turned against the speaker”, id. at 2154, created a “comprehensive scheme” intended “strictly to limit the employment of those techniques.” Gelbard v. United States, 408 U.S. 41, 47, 92 S.Ct. 2357, 2361, 33 L.Ed.2d 179 (1972). “[T]he protection of privacy was an overriding congressional concern.” Id. at 48, 92 S.Ct. at 2361. “The Act represents a comprehensive attempt by Congress to promote more effective control of crime while protecting the privacy of individual thought and expression.” United States v. United States District Court, 407 U.S. 297, 302, 92 S.Ct. 2125, 2129, 32 L.Ed.2d 752 (1972).
The cornerstones of this comprehensive scheme are strict regulation of the use of electronic surveillance and strict regulation of the use to which information gathered through electronic surveillance may be put. Manufacture and possession of the necessary devices are controlled. 18 U.S.C. §§ 2512, 2513. Mandatory procedures are established for procuring authorization to conduct electronic surveillance'. 18 U.S.C. §§ 2512, 2513. Limits are placed on the use to which intercepted information, even if legally obtained, may be put. 18 U.S.C. §§ 2515, 2517. Congress must be informed of all use of electronic surveillance. 18 U.S.C. § 2519. Finally, Congress has set out criminal and civil penalties for violation of Title III. 18 U.S.C. §§ 2511(1), 2520.
Though Congress clearly sought to deter unwarranted invasions by denying the perpetrators the fruits of illegal surveillance, it did not stop at the limits of the exclusionary rule. Instead, it made Title III remedial. It forbade any disclosure of illegally intercepted information, made such disclosure criminal, and gave the victim of any illegal interception a civil cause of action without regard to the nature of the information intercepted, the occurrence of disclosure, or the sustaining of actual damages. Congress’ recognition of the victim’s privacy as an end in itself, Application of the United States, 413 F.Supp. 1321, 1332 (E.D.Pa.1976), recognizes that the invasion of privacy is not over when the interception occurs, but is compounded by disclosure. See Gelbard v. United States, supra, 408 U.S. at 51-52, 92 S.Ct. 2357. Thus “production of such records”, to use 7(C)’s language, is another offense to the victim, and is barred. Congress has, in the clearest way, thus decided that the privacy interest of a victim of illegal electronic surveillance is too great to permit any disclosure at all.
The focus of the parties and the district court was so exclusively centered, insofar as consideration of Title III was concerned, on whether it could fit within Exemption 3 that Title III lost all significance once retroactivity was decided. The very bifurcation of these proceedings may have contributed to this restricted focus, since Title III had been shunted off stage before analysis under Exemption 7(C) began. This, we feel, led to error. Though the standard of review normally may be abuse of discretion, under the peculiar circumstances of this case, we think the error was one of law, in according no weight to a deliberate policy statement of Congress relating to the precise circumstances we face here.
Exemption 7(C) permits an agency to withhold “matters that are ... investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would . constitute an unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(7)(C). In order to properly balance an individual’s right to privacy against the public interest in disclosure, a court must interpret the phrase “unwarranted invasion of personal privacy”. Other legislation in which Congress sheds light on the meaning of the phrase should not be ignored. Statutes addressing the same subject should be read consistently. Kokoszka v. Belford, 417 U.S. 642, 650, 94 S.Ct. 2431, 41 L.Ed.2d 374 (1974). A strict rule confining the relevance of other statutes in FOIA cases to Exemption 3 would work- against this basic tenet of statutory interpretation. There is no reason for us to think that what Congress in 1968 considered so unwarranted an invasion of privacy that its fruits should be kept secret would not still be so considered in 1974 when Congress created Exemption 7(C).
In short, Congress, by passing Title III, has already balanced the same kind of factors that must be balanced under Exemption 7(C). Congress had decided that the risk to privacy created by illegal electronic surveillance is too great to permit any disclosure of the fruits of such surveillance. Here the FBI has conceded that the surveillance was “in willful and flagrant violation of the Constitution and applicable Federal Law.” The FBI did not get a warrant or consent for the surveillance, and the breadth of the surveillance in terms of time and extent was unreasonable. 460 F.Supp. at 770 & n. 19. This intrusion could not be legal before or after Title III. In fact, this was exactly the kind of “insidious invasion of privacy” that Congress “singled out for special scrutiny and safeguards.” In re Lochiatto, 497 F.2d 803, 807 (1st Cir. 1974). Intrusions before 1968 were no less insidious than intrusions after 1968, and to the extent reasonable, the victims should be protected from disclosure after 1968' in accord with Congress’ stated policy. We hold that Congress’ deliberate balancing under Title III is controlling under Exemption 7(C) given the circumstances of this case.
We recognize that our holding is novel in that, as the district court’s survey found, no other court has exempted information under Exemption 7(C) or the closely related Exemption 6 “solely on the ground that the manner in which the information was obtained forbids release”, 460 F.Supp. at 786, instead of balancing on the basis of the actual contents of the requested material. One explanation may be that the earliest, formative cases were decided under Exemption 6 because it existed for eight years before Exemption 7(C) was enacted. Although the two exemptions protect the same interest, 120 Cong.Rec. 17033 (1974) (remarks of Sen. Hart), Exemption 6 concerns files which are likely to have been compiled with the knowledge and at least implied consent of the subjects. Secret investigations using controversial investigatory techniques are far more likely in connection with law enforcement activities, the subject of Exemption 7. Moreover, the circumstances of this case are unique and present a particularly compelling argument for considering the manner in which the miormation was obtained. Not only has Congress passed a statute addressing this precise problem, but this manner of obtaining information is particularly likely to collect the kinds of information people are entitled to keep private because electronic surveillance is designed to go forward in even the most intimate protected surroundings without the subjects having any knowledge that they are being observed. See 1968 U.S.Code Cong. & Admin.News, supra, at 2154. The distinction between focussing on the content of information and on the manner of obtaining it blurs when the very manner of obtaining information carries such a likelihood of discovering private facts.
“[Djisclosure, not secrecy, is the dominant objective of the [FOIA]”, Department of the Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 1599, 48 L.Ed.2d 11 (1976), and Congress has decried the news media’s underuse of the FOIA, see 460 F.Supp. at 790. But these concerns must give way to Congress’ specific protection of this narrow class of information. Our holding is not broad. It gives agencies no sweeping power to withhold information, and does not create a new, general exemption for illegally obtained information. We are concerned only with the “contents” of “wire” or “oral communications” “intercepted” before June 19, 1968, by means of an “electronic, mechanical, or other device”, 18 U.S.C. § 2510(8), (1), (2), (4), and (5), in violation of the Constitution or federal law. Moreover, we need not decide to what extent “aggrieved person[s]”, 18 U.S.C. § 2510(11), or a criminal prosecutor might have rights different from the third party which brought this suit. We decide only that the FBI may properly turn down this FOIA request under Exemption 7(C).
Reversed.
. Appellee has not appealed this conclusion, and we need not address it. Exemption 3 states that the FOIA “does not apply to matters that are specifically exempted from disclosure by statute provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).
. Our analysis spares us the task of deciding the retroactivity issue. We note, though, that the case on which the district court relied, United States v. American Radiator & Standard Sanitary Corp., 288 F.Supp. 701, 707 (W.D.Pa. 1968), and other cases in accord, Philadelphia Housing Authority v. American Radiator & Standard Sanitary Corp., 291 F.Supp. 247, 250 (E.D.Pa.1968); People v. Daria, 38 A.D.2d 833, 329 N.Y.S.2d 647, 648 (1972), are different from this case in that the issue was whether to suppress information in a criminal proceeding, and the surveillance was legal before Title III.
. The district court qualified its holding as to category (3) by saying that appellee could renew its request for such information at a later time and by saying that persons now deceased have no protectible privacy interest. We need not address these issues.
. The Senate was aware of the Patriarca surveillance, and at least one Senator urged passage of Title III out of frustration that the surveillance could not be used against Patriarca in court. He contended that “with a proper showing of probable cause and close judicial supervision” surveillance could help convict Patriarca. 114 Cong.Rec. 12986 (1968) (remarks of Sen. Tydings).
. Title Ill’s policy of nondisclosure has even been held strong enough to overcome the Sixth Amendment’s policy of public access to criminal proceedings in certain circumstances. United States v. Cianfrani, 573 F.2d 835 (3d Cir. 1978).
. Indeed the same Senator who sponsored 7(C), Senator Hart, opposed Title III because he felt that it could not adequately protect personal privacy. 114 Cong.Rec. 14160-61 (1968).
. Exemption 6 permits an agency to withhold “matters that are . . personal and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy”. 5 U.S.C. § 552(b)(6).
. Some courts have gone beyond analysis of the contents of the requested material to consider the effect of a promise of confidentiality to an informant, but that factor has not been determinative. See 460 F.Supp. at 786. One court has said that illegality of collection of information does not determine the applicability of Exemption 7(C), but that court was answering an argument that because surveillance of Martin Luther King was illegal the information obtained should be released. Lesar v. Department of Justice, 455 F.Supp. 921, 924 (D.D. C.1978).
. Intervenor suggests that the appropriate narrowing principle is that disclosure should be prohibited when the requested material was obtained by a criminal search, in this case a burglary. Aside from the fact that the record before us does not reveal whether there was a breaking and entering, the Supreme Court has cast doubt on intervenor’s argument with Dalia v. United States,- U.S. -, 99 S.Ct. 1682, 60 L.Ed.2d 177 (1979), in which the Court held that covert entries to plant electronic bugging equipment can be legal if the surveillance is legal.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
Opinion PER CURIAM.
PER CURIAM:
This appeal is the latest of appellant Harper's efforts, pursuant to the Privacy Act of 1974, to prevent the ássertedly unauthorized disclosure and use of a confidential file maintained by his employer, the Small Business Administration (SBA). Specifically, appellant complains that information in the file, compiled by SBA during an internal security check on him, has been revealed to a former SBA employee to aid the latter in his claim of employment discrimination against the agency. Appellant seeks an injunction against continued use of the file, and a judicial determination that some of the material incorporated therein is false and should be expunged or amended. The District Court entered a summary judgment dismissing appellant’s action on the ground that he had failed to exhaust administrative remedies. We reverse.
I
On May 25, 1976, and again on June 7 following, appellant wrote to SBA’s Director of Personnel, asking that information allegedly obtained from his security file be removed from his former fellow employee’s equal employment opportunity file. The agency’s Privacy Act Officer and its Director of Personnel advised appellant that the data at issue were not contained in records under the control of the Office of Personnel, and that this precluded them from acting on appellant’s request.
Thereafter, on August 5, appellant initiated the present suit. Appellees moved to dismiss or, in the alternative, for summary judgment, on the ground, inter alia, that appellant had not pursued his administrative recourse as required by the Privacy Act. Several procedural motions then followed in rapid succession. In order to provide an opportunity for discovery, appellant sought, and the District Court granted, an extension of the period within which to respond to appellees’ motion. Appellees countered by requesting a protective order staying discovery pending disposition of the motion for judgment of dismissal. Appellant then filed an opposition to this motion and asked for a further extension of time, again on the basis of need for discovery. Due to a clerical error, the last motion was not transmitted to the court prior to its ruling on appellees’ motion for summary judgment. Pursuant to its Rule l-l(d), the court interpreted appellant’s apparent silence as acquiescence in the motion for judgment and, on September 30, 1976, accordingly ruled in appellees’ favor.
Appellant then filed a timely motion to vacate the outstanding judgment and for reconsideration of his previously overlooked request for a second extension of time. On June 23, 1977, the District Court held that appellant’s purported need for discovery did not constitute good cause, as required by Rule 6(b) of the Federal Rules of Civil Procedure, and denied the sought-after extension of time. At the same time, the court denied appellant’s motion to vacate the September 30, 1976, judgment on the ground that appellant had not exhausted his administrative remedies.
II
Under the Privacy Act, appellant was entitled to ask SBA for “an amendment of a record pertaining to him.” He did so and his request was denied. He was not, however, told that he could appeal that determination within the agency, nor was he apprised of the established procedures for administrative review. Thus SBA did not comply with the mandate of the Privacy Act that it “inform” him not only “of its refusal to amend the record in accordance with his request” and “the reason for the refusal,” but also of “the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official.”
Because, as appellees concede, there is no record that Harper was advised of the administrative review procedure, he should not be penalized for bypassing it. His lack of knowledge of the appropriate channels of administrative review could have led him to forego that review — which might have afforded him relief — and that in turn deterred the District Court from reaching the merits of his claim.
SBA’s failure to inform appellant of his right to administrative review aligns this case with our recent decision in Hall v. United States Civil Service Commission. And SBA has expressed its willingness to now provide appellant with that , review. To this end, the judgment appealed from is reversed and the case is remanded to the District Court with instructions to retain jurisdiction pending further consideration of appellant’s claims by the agency.
So ordered.
. Pub.L. No. 93-579, § 3, Dec. 31, 1974, 88 Stat. 1897, and amended Pub.L. No. 94-183, § 2(2), Dec. 31, 1975, 89 Stat. 1057, codified at 5 U.S.C. § 552a (1976).
. Harper v. Kobelinski, Civ. No. 76-1460 (D.D.C.) (order of June 23, 1977) (unreported).
. 5 U.S.C. §§ 552a(d)(3), (g)(1) (1976).
. Harper v. Kobelinski, supra note 2 (order of Sept. 15, 1976) (unreported).
. Rule l-9(d) of the District Court provides:
Within ten days of the date of service or such other time as the court may direct, an opposing party shall serve and file a statement of points and authorities in opposition to the motion, together with a proposed order. If such opposing statement is not filed within the prescribed time, the court may treat the motion as conceded.
(Emphasis supplied).
. Harper v. Kobelinski, supra note 2 (order of Sept. 30, 1976) (unreported).
. Fed.R.Civ.P. 6(b)(1) provides in pertinent part:
When by these rules or by a notice given thereunder or by order of the court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion with or without motion or notice order the period enlarged if requests therefor are made before the expiration of the period originally [described] or as extended by a previous order .
. Harper v. Kobelinski, supra note 2.
. Id. The court stated that “[b]ecause plaintiff neglected to complete the administrative process which is a prerequisite to the filing of an action in this court, this case, as we intended in our September 30, 1976 order, must be dismissed for failure to exhaust the appropriate administrative remedies.” Id. at 3.
. 5 U.S.C. § 552a(d)(2) (1976).
. 5 U.S.C. § 552a(d)(2)(B)(ii) (1976) (emphasis supplied).
. Brief for Appellees at 12-13.
. 174 U.S.App.D.C. 468, 533 F.2d 695 (1976) (where aggrieved governmental employee did not pursue an administrative appeal from an initial adverse agency decision because he was not apprised of the availability of such an appeal, the District Court should retain jurisdiction of employee’s action pending agency review of his claim).
. Brief of Appellees at 12-13.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
WILKINSON, Circuit Judge:
Charles Dammon, Harry Edwards, Jan Roth, Walter Currence, and Joseph Casper, members of the Maryland State Police, appeal the denial of their summary judgment claim of qualified immunity from a suit brought against them under 42 U.S.C. § 1983 by Rose and John Turner, the owners of a bar known as “Rosie’s Place II.” We affirm the denial of qualified immunity as to Dammon and Edwards because the record raises a triable issue as to whether their conduct in performing a series of administrative searches at Rosie’s violated clearly established Fourth Amendment standards of which a reasonable person would have known. The record makes clear that Roth, Currence, and Casper were far less involved in the alleged unconstitutional conduct, however, and we hold that they are entitled to summary judgment based on qualified immunity.
I.
Rosie’s Place II is a topless bar in St. Mary’s County, Maryland. The record shows that between late 1982 and the filing of the Turners’ action in January 1985, the defendants and other officers of the Maryland State Police and St. Mary’s County Sheriff’s Department conducted numerous searches of Rosie’s Place and the Turners’ residence. The Turners specified several of the officers’ actions as the basis of their suit. On November 5, 1982, a number of officers, including Dammon, Edwards, Casper, and Currence arrested several dancers and waitresses at Rosie’s Place for violations of the Maryland “Female Sitters” statute, Md.Ann.Code art. 27, § 152 (1983). The statute forbids employment of female “sitters” to solicit drink orders from patrons of a bar or other establishment. Rose Turner’s conviction under the statute was overturned on the ground that the statute violated the Maryland equal rights amendment, Turner v. State, 299 Md. 565, 474 A.2d 1297 (1984), and the charges against the other arrestees were dropped.
On November 19, 1982, Dammon, Edwards, Currence, and Roth, acting under a valid search warrant, entered the Turners' home in Lexington Park, Maryland. The officers seized books, records, and papers from the Turner residence as part of their investigation of the alleged Female Sitters violations.
On May 31, 1983, Dammon and Casper entered Rosie’s Place to conduct a “bar check” under Md.Ann.Code art. 2B, § 190, which provides for warrantless searches of “any building, vehicle and premises in which any alcoholic beverages are authorized to be kept, transported, manufactured or sold.” The plaintiffs allege that the officers searched through books and records, storage areas, and examined items in all parts of the premises.
Aside from these specific searches, plaintiffs allege that between late 1981 and early 1985, Dammon, Edwards, and other officers, either unnamed or not parties to the suit, entered Rosie’s at least one hundred times to conduct bar checks under Md.Ann. Code art. 2B, § 190. These checks are alleged to have occurred during the busiest hours at the bar, and to have caused patrons to leave the bar. Plaintiffs also allege that officers of the Maryland State Police and St. Mary’s County Sheriff’s Department took up positions outside Rosie’s Place to discourage patrons from entering. None of the defendants is specifically named in this allegation, however.
The defendants filed affidavits detailing their involvement in these events. Dam-mon and Edwards acknowledge that they participated in a large number of bar checks at Rosie’s, and the record indicates that at least one hundred searches were conducted during the relevant period. Dammon has admitted that more checks were conducted at Rosie’s than at any other bar, and that the checks never produced any citations or arrests. In support of these actions he has made only the statement, unsubstantiated by any records or statistics, that a disproportionate number of calls for police service came from Rosie’s.
After the Turners filed their suit, the defendants moved for summary judgment on the basis of qualified immunity. The trial court granted summary judgment with respect to each of the individual acts alleged as the basis for the plaintiffs’ claim. The court found the Female Sitters arrests supported by probable cause and made under a statute which, although later held unconstitutional, was presumably valid at the time of the arrests. The court held that the search of the Turner home was conducted pursuant to a valid warrant, and that none of the individual bar checks in themselves violated established constitutional rights. The court, however, denied the defendants’ motion with respect to the totality of the officers’ acts, which it characterized as a “pattern of harassment.” The court held that the record raised a triable issue as to whether improper motives on the part of the defendants rendered the series of bar checks a violation of the plaintiffs’ clearly established property right to “engage in any of the common occupations of life,” Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). From this ruling, the defendants appeal.
II.
Although an interlocutory order, the denial of a motion for summary judgment based on a claim of qualified immunity is an appealable “final decision” under 28 U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985). The public official’s qualified immunity is an “entitlement not to stand trial or face the other burdens of litigation” in certain circumstances. Id. at 526,105 S.Ct. at 2816. Unlike a defense to liability, qualified immunity is “effectively lost if a case is erroneously permitted to go to trial.” Id. The immunity is intended to allow public officials to act “with independence and without fear of consequences” where their actions do not implicate clearly established rights. Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 2739, 73 L.Ed.2d 396 (1982). This purpose cannot be achieved if officials face the possibility that they will have to stand trial without any opportunity for review of denials of their summary judgment claims of qualified immunity.
In reviewing the denial of a summary judgment motion based on qualified immunity, we look to the standard of immunity set forth in Harlow. Under Harlow, the summary judgment standard is one of the “objective reasonableness” of official conduct. Id. at 818, 102 S.Ct. at 2738. Officials “generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established rights of which a reasonable person would have known.” Id. Of course, if the plaintiff fails to allege “a violation of clearly established law, a defendant pleading qualified immunity is entitled to dismissal before the commencement of discovery.” Mitchell, 472 U.S. at 526, 105 S.Ct. at 2816. Where the acts alleged by the plaintiff do constitute a violation of clearly established rights, a defendant is entitled to summary judgment if the record does not create a genuine issue as to whether the defendant in fact committed those acts. Id. Employing the standard of Fed.R.Civ.P. 56, we must determine, reading the pretrial record in the light most favorable to the plaintiffs, if an issue of triable fact exists as to whether defendants’ conduct violated the plaintiffs’ clearly established rights. We thus review the defendant’s summary judgment motion under the “same standard as did the trial court.” White v. Pierce County, 797 F.2d 812, 814 (9th Cir.1986).
Following Mitchell, the circuits have taken different views on the proper scope of review of denials of qualified immunity. The First Circuit has held that reviewing courts should look only to the allegations in the plaintiff’s complaint, and determine whether those allegations describe a violation of clearly established law. Bonitz v. Fair, 804 F.2d 164 (1st Cir.1986). Under this view, even where a well-developed pretrial record reveals undisputed facts, the reviewing court is to ignore the record and confine itself to the allegations in the complaint. See Bonitz, 804 F.2d at 167.
We reject this approach, because it eviscerates the purposes of qualified immunity that prompted the court in Mitchell to allow these appeals. The purposes of qualified immunity are well stated in Harlow: “[w]here an official’s duties legitimately require action in which clearly established rights are not implicated, the public interest may be better served by action taken ‘with independence and without fear of consequences.’ ” Harlow, 457 U.S. at 819, 102 S.Ct. at 2739 (quoting Pierson v. Ray, 386 U.S. 547, 554, 87 S.Ct. 1213, 1218, 18 L.Ed. 2d 288 (1967)). Qualified immunity thus protects government officials not only from liability, but from trial, in recognition of the fact that subjecting officials unnecessarily to trial leads to “distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service.” Id. at 816, 102 S.Ct. at 2737. Mitchell therefore concluded that because qualified immunity is a right not to stand trial, the right cannot be vindicated by appellate .review after final judgment.
Vindication of the right thus requires that the court of appeals not confine itself to the complaint. Rather, we must inquire “whether, when all the facts are viewed in the light most favorable to the plaintiff, there is a genuine issue, triable to a jury,” of a clearly established constitutional violation. Wright v. South Arkansas Regional Health Center, Inc., 800 F.2d 199, 203 (8th Cir.1986); see Green v. Carl son, 826 F.2d 647, 651 (7th Cir.1987); Myers v. Morris, 810 F.2d 1437, 1459 (8th Cir.1987); Kraus v. County of Pierce, 793 F.2d 1105, 1108 (9th Cir.1986); Kennedy v. City of Cleveland, 797 F.2d 297, 298, 305-06 (6th Cir.1986); White, 797 F.2d at 814; Jasinski v. Adams, 781 F.2d 843, 846 (11th Cir.1986). Our review of this order must encompass the entire summary judgment record, i.e., the depositions, affidavits, and responses to interrogatories that we routinely canvass when the appeal is from a final order granting summary judgment. This approach will prove far fairer to public officials than “focusing only on plaintiffs’ generalized hyperbole” despite the presence of a pretrial record. Bonitz, 804 F.2d at 179 (Campbell, C.J., dissenting). It may upon occasion save plaintiffs the burden of undergoing a lengthy trial only to find that the appellate court never believed the case presented a triable issue in the first place.
A motion for summary judgment is not a motion for judgment strictly on the pleadings. Id. It will seldom be difficult for a plaintiff to plead a violation of clearly established law; to limit the scope of appellate review to plaintiffs allegations is entirely at odds with the goals of qualified immunity set forth in Harlow and Mitchell. Without immunity, government officials face skewed incentives that may drive them toward inaction: the person aggrieved by official actions may be quite willing to sue, but the losses to society as a whole that come from official inaction may be more diffuse and thus less likely to result in a lawsuit. See generally P. Schuck, Suing Government: Citizen Remedies for Official Wrongs 60-77 (1983). Qualified immunity is an attempt to redress this imbalance of incentives, and it entitles a defendant to summary judgment unless there is a genuine issue as to whether the defendant in fact committed a violation of clearly established law. Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815.
III.
Our review of the summary judgment record leads us to conclude that there does exist a genuine question as to whether defendants Dammon and Edwards violated clearly established Fourth Amendment law. Accordingly we affirm the district court’s denial of summary judgment as to these two defendants.
The Turners alleged both Fourth Amendment and due process violations. The facts on the present record establish a triable issue on the Turners’ Fourth Amendment claim. The pattern of harassment alleged was a series of administrative searches purportedly conducted under Md.Ann.Code art. 2B § 190. The specific constitutional provision governing this type of activity is, of course, the Fourth Amendment, and it is to the law of search and seizure that we must turn in assessing the Turners’ claim. It is the Fourth Amendment that establishes the “process” that is due to the subjects of government searches; the specific doctrines of search and seizure, not the generalized concepts of due process, provide the relevant legal standard in this context.
The summary judgment record unquestionably raises a genuine issue as to whether defendants Dammon and Edwards violated clearly established law in the way that they administered the series of bar checks in this case. It is undisputed on the record that Rosie’s Place was visited at least one hundred times. Officer Dammon has stated that he also conducted checks of other bars in the area, but he has produced no evidence to document any of these checks, and admits that he visited Rosie’s more frequently than any other bar. The only justification offered for this disproportionate pattern of searches is the unsubstantiated statement that a large number of police calls came from Rosie’s. Apart from the Female Sitters arrests, the record contains not a single police report documenting criminal complaints or activities, and no records of arrests.
The district court noted that “no evidence of any statistics or reports has been submitted by defendants showing a higher incidence of crime at Rosie’s Place II than anywhere else in the county. In fact, defendant Dammon admitted that no criminal complaints had been filed and no liquor violations were found in any of the bar checks at Rosie’s Place. Defendant Dam-mon explained why he went as far as cutting open liquor boxes in the storeroom, despite having never found any liquor violation, by saying, ‘... you never know when you are going to find a violation.’ ” It is this utter absence of objective justification for the highly disproportionate number of searches at Rosie’s Place that raises constitutional concerns. The two officers offer no basis from which any reviewing authority can gauge the reasonableness of their actions. That, of course, is the very definition of official lawlessness and the very behavior that the Fourth Amendment, by its express terms, forbids.
We recognize that the rules governing administrative searches are a peculiar species of Fourth Amendment law. Administrative search programs reflect the fact that important public interests may require searches conducted without traditional warrants or probable cause. The Supreme Court has thus recognized that the reasonableness of an administrative search must be subject to a flexible standard, “balancing the need to search against the invasion which the search entails.” Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967).
It is not the lack of a warrant that gives rise to constitutional concerns here. War-rantless searches, such as those allowed by Md.Ann.Code art. 2B § 190, are permissible in the context of heavily regulated industries, of which liquor establishments such as Rosie’s are a prime example. See Colonnade Catering Corp. v. United States, 397 U.S. 72, 90 S.Ct. 774, 25 L.Ed.2d 60 (1970); United States v. Harper, 617 F.2d 35, 38 (4th Cir.1980). Likewise, the absence of traditional probable cause would not invalidate the decision to conduct a particular search, for administrative searches can permissibly be conducted on the basis of a lesser justification. See Ca-mara, supra.
It is Dammon and Edward’s execution of the Maryland bar check program, not the program itself, that may be constitutionally objectionable. There is no question that the Fourth Amendment prohibition of unreasonable searches and seizures applies to the performance of administrative searches of commercial property. See Donovan v. Dewey, 452 U.S. 594, 598, 101 S.Ct. 2534, 2537, 69 L.Ed.2d 262 (1981); Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777; Gallaher v. City of Huntington, 759 F.2d 1155 (4th Cir.1985). It is also beyond doubt that the fundamental function of this prohibition is to protect citizens from the “unbridled discretion” of government officials. See, e.g., Marshall v. Barlow’s, Inc., 436 U.S. 307, 323, 98 S.Ct. 1816, 1826, 56 L.Ed. 2d 305 (1978). Clearly at issue on the record is whether Dammon and Edwards exercised unbridled discretion in conducting, for no apparent reason, a grossly disproportionate number of searches at Rosie’s, thereby effecting the type of “unreasonable” intrusion that the Fourth Amendment forbids.
It is part of the settled law of administrative searches that they may “not be directed at particular individuals.” S. Saltzburg, American Criminal Procedure 272 (2d ed. 1984). If it were otherwise, no enterprise would enjoy constitutional recourse from the constable’s whim. The Supreme Court has emphasized that administrative search programs must be carried out in accordance with “specific neutral criteria.” Marshall, 436 U.S. at 323, 98 S.Ct. at 1826. The Court in other contexts has contrasted permissible warrantless searches such as checkpoints that apply to all subjects equally with impermissible search programs that allow officers to single out targets for search without any justification. See Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (condemning random automobile stops). The Court has emphasized the importance of curtailing the “discretion of Government officials to determine what facilities to search and what violations to search for,” Dewey, 452 U.S. at 605, 101 S.Ct. at 2541, and that Fourth Amendment constraints on an administrative search program require “certainty and regularity” of application, New York v. Burger, — U.S.-, 107 S.Ct. 2636, 96 L.Ed.2d 601 (1987).
Some of the above cases address the question whether a warrant is required rather than the standards to be used assuming a warrantless search is applicable. The import of the statements in these opinions is clear, however, and a prior holding in “identical circumstances” is not necessary for the law to have been clearly established. See Mitchell, 472 U.S. at 535 n. 12, 105 S.Ct. at 2820 n. 12. The basic standards governing administrative searches condemn the baseless isolation of a single establishment for grossly disproportionate intrusions. Where, as here, a valid administrative search program authorizes war-rantless inspection but provides no rules governing the procedure that inspectors must follow, “the Fourth Amendment and its various restrictive rules apply.” Colonnade Catering, 397 U.S. at 77, 90 S.Ct. at 777. The cases upholding warrantless administrative searches clearly establish that these rules require certainty, regularity, and neutrality in the conduct of the searches. Burger, 107 S.Ct. at 2648; Dewey, 452 U.S. at 605, 101 S.Ct. at 2541.
The Fourth Amendment delimits the presence of public authority on private premises, for the simple reason that uncau-tioned authority is open to abuse. The danger of abuse is greater for establishments such as Rosie’s which, though licensed by law, may be the objects of public suspicion and obloquy. The rule governing administrative searches has been well stated by two leading commentators: administrative searches may permissibly be conducted either “upon a reasonable showing in the individual case of reasonable suspicion short of traditional probable cause, or upon a showing that the individual case arose by application of standardized procedures involving neutral criteria.” W. La-Fave & J. Israel, Criminal Procedure § 3.9 at 188 (1985). No reasonable officer could possibly have believed that the Fourth Amendment allows over one hundred searches of one particular bar with no objective basis.
Nothing herein is intended to impair the inspection of establishments that sell alcoholic beverages. The burden on law enforcement officials in conforming their conduct to Fourth Amendment standards is not great in the area of traditionally regulated industries. Had the officers here established that the bars in the area were subject to random checks on a roughly equivalent basis, it could not be said that the checks violated “clearly established” law. The same would be true if the record established that the large and disproportionate number of searches at Rosie’s was objectively supported by numerous arrests, by reports of criminal activity there, or even by logs detailing the subject of complaints by patrons, passersby, or neighboring establishments to which the officers had responded. At this point, however, the record contains only Dammon’s unsubstantiated statements in support of an egregiously disproportionate number of searches.
We hold that on this record Dammon and Edwards are not entitled to qualified immunity and that an issue of triable fact as to these defendants’ violation of settled Fourth Amendment principles appears to have been presented. Indeed, if no supplementary explanation of the defendants’ conduct is added to the record, the district court may wish to entertain a motion for partial summary judgment as to liability on the plaintiffs’ Fourth Amendment claim. It may later be determined that there is sufficient evidence to justify the actions alleged by the Turners and apparently acknowledged by Dammon and Edwards. That is not the case on the present record, however, and the trial court properly denied Dammon and Edwards’ summary judgment motions.
IV.
Roth, Currence, and Casper were far less involved in the allegedly unconstitutional searches, however, and the summary judgment record establishes their entitlement to qualified immunity.
It is undisputed on the record that defendant Roth participated only in the execution of the search warrant at the Turner home on November 19, 1983. The trial court found that because the search was conducted pursuant to a valid warrant, the officers were entitled to immunity from any claim arising out of this search based upon the objective reasonableness of their conduct. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Because Roth is alleged to have participated only in this search, there is certainly no genuine issue as to whether he violated clearly established law.
Similarly, defendant Currence participated only in the search of the Turner home and the Female Sitters arrests. The Female Sitters arrests were undisputedly made on probable cause and pursuant to a statute that was presumptively valid at the time. They cannot, therefore, be the basis of a valid § 1983 claim. See Street v. Surdyka, 492 F.2d 368, 372-73 (4th Cir. 1974). Currence’s level of participation in the events involving the Turners does not raise a genuine issue as to whether he violated clearly established law.
Finally, defendant Casper is alleged to have participated only in the Female Sitters arrests and in a single bar check on May 31, 1983. His affidavit acknowledges that he participated in “a number of bar checks.” This record does not reveal a genuine issue as to whether Casper violated clearly established law. Our holding that an issue of violation of clearly established law exists as to Dammon and Edwards, despite the Fourth Amendment deference due searches of liquor establishments, is largely based on the egregious facts of their specific cases. Neither the allegations nor the affidavits in the record suggests that Casper was involved in comparable conduct.
The denial of summary judgment as to defendants Dammon and Edwards is affirmed. The denial of summary judgment as to defendants Roth, Currence, and Cas-per is reversed, and we remand to the district court for entry of judgment in their favor.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
. The Turners’ suit originally included as defendants William Bell and James Goldsmith of the St. Mary’s County Sheriffs Department. Because they have been dismissed from the suit, we do not address any of the allegations directed specifically at them.
. This view focuses on language in Mitchell which states that an “appellate court reviewing the denial of the defendant’s claim of immunity need not consider the correctness of plaintiffs version of the facts" and that “the appealable issue is a purely legal one: whether the facts alleged by the plaintiff (or in some cases the defendant) support a claim of violation of clearly established law.” 472 U.S. at 528 & n. 9, 105 S.Ct. at 2816 & n. 9. Although this part of the Mitchell opinion describes the precise issue presented in Mitchell — the defendant accepted the plaintiff’s allegations, and challenged solely the characterization of the law as “well established” — we do not believe that it establishes a limitation on all reviews of denials of qualified immunity.
. The dissent would apply a due process analysis turning on the defendants’ alleged unconstitutional motive. We believe that the facts of this case make such an approach inappropriate. Where specific constitutional standards, here those of the Fourth Amendment, are applicable to alleged conduct, it is those standards by which a plaintiffs’ claim is properly judged. The Supreme Cotut has clearly endorsed this view in the context of qualified immunity:
[T]he right to due process of law is quite clearly established by the Due Process Clause, and thus there is a sense in which any action that violates that Clause (no matter how unclear it may be that the particular action is a violation) violates a clearly established right_ But if the test of "clearly established law” were to be applied at this level of generality, it would bear no relationship to the "objective legal reasonableness" that is the touchstone of Harlow. Plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unlimited liability simply by alleging violation of extremely abstract rights.
Anderson v. Creighton, — U.S.-, 107 S.Ct. 3034, 3039, 97 L.Ed. 523 (1987). This case concerns the propriety of an administrative search, subject to the objective standards of the Fourth Amendment, rather than the “extremely abstract rights” asserted here under the Due Process Clause. Plaintiffs are not entitled to assert a Fifth or Fourteenth Amendment due process right to “engage in business" should their Fourth Amendment claims fail. Such a right would be akin to that in Lochner v. New York, 198 U.S. 45, 25 S.Ct. 539, 49 L.Ed. 937 (1905), and its progeny, which the Supreme Court has long since refused to recognize.
The dissent suggests that our opinion leaves the district court without necessary guidance on the issue of “subjective good faith.” We have not discussed the defendants’ subjective motives, however, because they simply are not relevant to the proper analysis in this case either now or at a possible later trial.
In this Fourth Amendment context, as in any other, "subjective good faith" simply will not be part of the qualified immunity inquiry. The relevant question, as stated by the Supreme Court in Anderson, is "the objective (albeit fact-specific) question whether a reasonable officer could have believed Anderson’s warrantless search to be lawful, in light of clearly established law and the information the searching officers possessed. Anderson’s subjective beliefs about the search are irrelevant.” Id. 107 S.Ct. at 3040.
The dissent correctly points out that in some cases, motive or intent will be relevant despite the presence of a qualified immunity issue. This is so because intent, such as purposeful racial discrimination or class based animus, is in those cases an aspect, not of the qualified immunity inquiry, but of the cause of action itself. See, for example, the cases cited by the dissenting opinion at note 8, infra. This is not such a case. Fourth Amendment claims rise or fall on the objective reasonableness of the searches conducted, not on the underlying intent or motivation. See W. LaFave, Search and Seizure § 1.2(g) (Supp.1986).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
PER CURIAM.
This is a suit in equity for an injunction preventing the defendant, Burlington Northern Railroad Co., from putting into effect unilaterally certain methods for detecting drug use among its employees. In general, if a proposed practice by a rail carrier is a clear departure from the collective-bargaining agreement, a dispute over the practice is treated as a “major dispute” under the Railway Labor Act, and the carrier may not proceed without first negotiating with the employees’ representative. But if the proposed practice is arguably justified by the collective-bargaining agreement (including settled past practices of the parties under the agreement), then a dispute is called “minor,” and the carrier may proceed unilaterally, subject to an arbitration process before the National Railroad Adjustment Board.
This appeal involves two disputed proposed practices. First, the railroad wants to administer chemical drug testing to all employees who appear to be involved in any accident or other incident which seemingly stems from human error. Second, the railroad wants to administer similar tests to all employees who return to work after a furlough or similar absence. The District Court, 642 F.Supp. 41, held that the dispute over the first practice (post-incident testing) was minor. It therefore denied the injunction sought against the railroad’s proposed initiation of this practice. But with respect to the second challenged practice (post-furlough testing), the Court held the dispute major and therefore granted the injunction.
Both sides appeal. The union seeks reversal of the denial of the injunction against post-incident testing. The railroad seeks reversal of the grant of the injunction against post-furlough testing.
As to the first issue, we affirm. As to the second, we reverse. The Court’s reasons for these holdings are expressed in two opinions. An opinion by Judge Arnold, in which all Members of the Court join, explains our holding that the railroad may proceed with post-incident testing. An opinion by Judge Fagg, in which Judge Wollman joins, explains our holding that the railroad may proceed with post-furlough testing. Judge Arnold dissents from this latter holding.
The judgment of the District Court, insofar as it denied an injunction with respect to post-incident testing, is affirmed. Insofar as it granted an injunction with respect to post-furlough testing, the judgment is reversed, and the injunction is vacated and set aside.
It is so ordered.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
KERNER, Circuit Judge.
This appeal is from an order granting defendant’s motion to dismiss and dismissing a complaint in two paragraphs charging libel and invasion of plaintiff’s right of privacy.
The offending matter was contained in the- first of a series of six feature stories written by Elgar Brown with the foreword on the last five that they were “on the blood-smeared career of the late outlaw, John Dillinger, whose influence on those with whom he came in contact was completely evil. The series was inspired by the recent death, in squalor, of Patricia Cher-rington, Dillinger gang ‘moll’.” The stories were published on successive days from May 8 to May 13, 1949, in the Chicago Herald-American, a newspaper having extensive circulation, according to the complaint, in Lake County, Indiana, where plaintiff, a lawyer, resides and practices his profession.
The first story carried a bold headline, “How Dillinger Curse Pursued Pals to Grave,” and the following subcaption:
“(Some people are drawn to the vultures -of crime like flies into a web. The lure is tawdry and mean and gaudy with false glamor. It’s a fatal attraction.
“Greed or distorted vanity led many to serve John Dillinger in that brutal killer’s epic career of outlawry. This series, inspired by the recent squalid death of Dillinger gang moll Patricia Cherrington, shows that the bandit chief’s influence was wholly evil and that none escaped the Dillinger curse.)”
This first story was illustrated by three pictures, one of which was of Dillinger and plaintiff, taken in 1934 at a time when Dillinger had been captured in Arizona and brought back to Indiana and lodged in a jail in Crown Point from which he escaped a short time later. It showed Dillinger standing next to plaintiff with one hand on •his shoulder, with the caption below: “Victim of the Dillinger curse was Robert Es-till, Lake County, Indiana, prosecuting attorney, who foolishly struck a friendly pose with the noted outlaw. The killer’s subsequent toy-gun escape from a Hoosier jail spelled the end of Estill’s career. He was virtually laughed out of office and public life.” The article also contained the following text:
“Posed with Arm About Bandit
“Probably the most innocent of all the victims was Prosecutor Robert Estill of Lake County, Ind.
“Estill felt so expansive when they brought Dillinger to Crown Point for a too-■brief sojourn in the county jail that he posed for pictures with an arm about John in an apparently brazen show of friendship and admiration.
“It was literally a fatal mistake. Following Dillinger’s epic crashout with a wood-carved gun, Estill lived long enough to be laughed out of office. Then, a broken man, he died.”
The picture and its accompanying descriptive matter and the text set forth above are the only reference to plaintiff by name in the entire series. Otherwise the stories pictured the lurid career of Dillinger in crime and the part played by his various associates, and described the bad end to which, according to the stories, they all came, without exception.
The complaint asserts that the statements relating to plaintiff by name, taken in connection with the statements contained in the entire series, constituted an inference or innuendo that he was a crony, pal, friend and admirer of the outlaw and one of his many associates who participated in his escapades, and that the series classified him as one of a group of the various characters who were criminals or had criminal associations or tendencies, all of whom were intimate pals or cronies of Dillinger and came under the spell of his curse and for that reason to an evil end. Plaintiff denied that he was “laughed out of office” and alleged that he had 'been actively engaged in political activities and had held public office since “said date” and that he had engaged in the practice of law for 25 years and had enjoyed an excellent reputation among the members of his profession and the citizens of the county and state. He also deniéd any association with or admiration for the desperado.
Defendant’s motion on which the dismissal was predicated stated the following grounds:
1. The facts alleged do not state a cause of action under the general law of libel or under the law of Indiana.
2. The publication complained of is not actionable because it does not impeach the honesty, integrity, virtue or reputation of the plaintiff.
3. Defendant has complied with the Indiana Retraction Statute, and therefore according to the express provisions of the statute, plaintiff can recover only actual damages. Since the complaint contains no allegations of actual damages, it does not state a cause of action.
4. The complaint does not state a cause of action because statements of opinion are not actionable.
5. The complaint does not state a cause of action because no facts are alleged showing special damages. No facts are set forth showing financial injury to plaintiff.
6. The complaint does not state a cause of action because no facts are alleged showing actual malice or ill will on the part of the defendant.
7. The words referring to plaintiff’s apparent show of friendship for Dillinger, to plaintiff’s being laughed out of office, and to plaintiff as a broken man are fair comment on 'and criticism of a matter of public interest and therefore not actionable.
8. Count II does not state a cause of action for invasion of plaintiff’s right of privacy because no right of plaintiff was violated, and because the complaint shows that plaintiff voluntarily posed for the photograph complained of and thereby waived! any such right; that plaintiff was a public person; that the publication was within the-privilege of the press; and that no privacy of the plaintiff was invaded by this defendant.
Of course, if any of the first seven grounds and the eighth are good, then the ■complaint was properly dismissed even though the court did not indicate on which of them it based its action. The question presented Is whether any of them is sufficient as a matter of law to warrant the dismissal of the cause without hearing.
In this court defendant asserts first that the complaint does not affirmatively show that plaintiff has complied with the Indiana statute concerning actions for libel in newspapers and therefore the complaint was properly dismissed. It refers to § 2-1043, Burns’ Ann.Stat., which provides : “Before any suit shall be brought for the publication of a libel in any newspaper in this state, the aggrieved parties shall, at least three (3) days before filing the complaint in such suit, serve notice in writing on the publisher * * * of such newspaper, * * * specifying the statements in said article which he or they allege to be false and defamatory. If it shall appear upon trial of said action that said article was published in good faith, that its •falsity was due to mistake or misapprehension of the facts, and that a full and fair retraction of any statement therein alleged to be erroneous was published in a regular issue of such newspaper, within three (3) days * * * after such mistake or misapprehension was brought to the knowledge of such publisher * * * then the plaintiff in such case shall recover only actual damage * *
However, as plaintiff points out, this section is a part of Title 2 on Civil Procedure and contemplates limitation of damages to those actually suffered by a plaintiff, provided the various conditions are met by the defendant upon trial. We agree with plaintiff that it was not intended to establish a condition precedent to his substantive right of action. And defendant’s reliance on its compliance with the Indiana Retraction Act as a ground for dismissal is obviously untenable. While retraction may be proved in mitigation, White v. Sun Publishing Co., 164 Ind. 426, 73 N.E. 890, it is matter for affirmative defense, hence is not ground for dismissal of the action.
We agree with defendant that this case is controlled by Indiana law. Mattox v. News Syndicate Co., 2 Cir., 176 F.2d 897 12 A.L.R.2d 988. However, apart from the matter of the statute referred to above, we find nothing in the Indiana cases to indicate the adoption of any different rule of law than the general one, that matter is actionable per se if it subjects the plaintiff to public ridicule, hatred or contempt — if it tends to injure his reputation or throw contumely or reflect shame and disgrace upon him. See Crocker v. Hadley, 102 Ind. 416, 1 N.E. 734; Doan v. Kelley, 121 Ind. 413, 23 N.E. 266; Prosser v. Callis, 117 Ind. 105, 19 N.E. 735. And in considering whether or not the offending matter is libelous per se, it must be considered in its entirety, including the headlines accompanying it and the place and position of the item. 33 Am.Jur. on Libel and Slander, §§ 45 and 87. The matter must be construed in the sense which readers of common and reasonable understanding would ascribe to it, and where language is unambiguous and capable of only one meaning, it presents a question of law to be determined by the court as to whether or not it is libelous per se. Brewer v. Hearst Publishing Co., 7 Cir., 185 F.2d 846. However, where the language used is capable of two meanings, one libelous and the other not, then the question of the meaning to be ascribed to it must be submitted to the jury. Washington Post Co. v. Chalo-ner, 250 U.S. 290, 39 S.Ct. 448, 63 L.Ed. 987; Spanel v. Pegler, 7 Cir., 160 F.2d 619, 171 A.L.R. 699. It is only when the court can say that the words are not reasonably capable of any defamatory meaning and cannot reasonably be understood in any defamatory sense that the court can rule as a matter of law that they are not defamatory. Baker v. Warner, 231 U.S. 588, 34 S.Ct. 175, 58 L.Ed. 384.
Considering the alleged libelous matter in the light of these general principles, we think it cannot be said as a matter of law that the words were not susceptible of a defamatory meaning, hence we cannot agree with defendant’s contention that the complaint was subject to dismissal because the publication was not libelous per se. And of course allegations of special damage or actual malice are not essential where the matter alleged to defame is libelous per se.
Defendant contends here, as in the District Court, that the publication was not actionable because it was fair comment and criticism on a matter of public interest, referring, among other authorities, to the Restatement of Torts, Vol. Ill, § 606. We find the privilege described there as “an expression of the opinion of the commentator or critic on the facts commented upon or criticized. * * * the facts upon which the criticism is based must either be true or, if untrue, the critic must be privileged to state them.”
It may be that the death of one of the so-called “pals” of Dillinger some fifteen years after his spectacular death was a matter of sufficient public interest to warrant reviving the sordid story of his escapades. Even so, the privilege of fair comment and criticism would be available only as to the verified facts of such story, and could not be extended to cover misstatements of fact related therein. Here a question was presented for the jury as to whether the context was to be construed to mean that plaintiff was an associate of a notorious outlaw, one of those led by greed or vanity to serve that outlaw and, for that reason, pursued by the “strange curse” which doomed all his associates. It was in that context that the story went on to say directly of plaintiff that he lived long enough after Dillinger’s escape from the Indiana jail to fee laughed out of office and then, “a broken man, he died.” Ordinarily it is not actionable per se to misstate the fact of a person’s death. However, here defendant not only falsely stated that plaintiff had died, but purported to state the circumstances under which he died, “a broken man.” By his complaint plaintiff alleged that this was injurious to -him personally and in his professional capacity as an attorney, and had done great damage to his earning capacity as such attorney. We cannot agree that he stated no cause of action.
We conclude that none of the seven grounds asserted by defendant for dismissal of the complaint for libel justified the dismissal of that cause of action.
The second paragraph of plainfiff’s complaint alleged the unwarranted invasion of his right of privacy by the same publication. He asserts that the stories complained of did not constitute news but rather “purported to be historical in nature of an event which occurred in the spring of 1934 * * *” By evcnt” we assume that he refers to the taking of the photograph which furnished the basis for bringing plaintiff into the series of feature stories. Regardless of the circumstances under which the picture was taken and whether or not the pose was wholly inádvertent, as plaintiff alleges in 'his complaint, he was at that time a public official and, as such, whether inadvertently or not, he became one of the figures in a story of considerable public interest at that time. That being the case, we think it cannot be said that the republication of that story constitutes any invasion of his private rights. It is the unwarranted publicizing of a person’s private affairs and activities which furnishes the basis for the cause of action. We think the matter here alleged to offend does not fall within that category. We therefore find no error in the dismissal of the second paragraph of the complaint.
The judgment appealed from is reversed as to the first paragraph of the complaint and affirmed as to the second paragraph, and the cause is remanded for further proceedings.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the Court filed by Circuit Judge RANDOLPH.
Dissenting opinion filed by Circuit Judge HENDERSON.
RANDOLPH, Circuit Judge:
This appeal adds to the list of constitutional challenges to federal drug-testing programs established pursuant to Executive Order No. 12,564, 51 Fed.Reg. 32,889 (1986). Since the Supreme Court’s decision in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), which involved a portion of the Customs Service’s program, we have ruled on aspects of the drug-testing programs of the Executive Office of the President (Hartness v. Bush, 919 F.2d 170 (D.C.Cir.1990)); the Department of Agriculture (National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990)); the Department of Transportation (American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990)); the Department of the Army (National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990)); and the Department of Justice (Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990)).
Each of our decisions rendered in the wake of Von Raab concerned federal employees who were, as a condition of employment, required to submit urine specimens for testing without any suspicion they were using drugs, and who were selected for testing on a random basis. This case differs from the rest in several respects, the significance of which is in dispute. The plaintiff here is an applicant for government employment. Rather than being selected at random, every applicant must undergo a urine test before being hired for the position he seeks.
Early in 1990, Carl Willner, an attorney, submitted a résumé to the Antitrust Division of the Department of Justice in Washington, D.C. After several interviews, he received and accepted a conditional offer to join the Antitrust Division as a trial attorney. In connection with his employment application, Mr. Willner completed an extensive form setting forth detailed information about himself. The Federal Bureau of Investigation then conducted an investigation. On the form, Mr. Willner denied having used marijuana, cocaine, narcotics, hallucinogenics or other illegal drugs during the previous five years. He refused, however, to comply with the Department’s request that he provide a urine sample.
The Department of Justice drug-testing plan requires all persons tentatively selected for employment in the Department’s Offices, Boards and Divisions to provide a urine sample for testing. Applicants are notified at least forty-eight hours in advance of the time and place for the test. If they fail to show up or refuse to provide a urine sample, they are disqualified from further consideration for the job. If the chemical test of their sample is positive, they will not be offered the position and may not reapply for six months. The chemical analysis is designed to detect use of cocaine, marijuana, amphetamines, opiates and phencyclidine, and is the same as that described in American Federation of Government Employees, 885 F.2d at 887-88; National Federation of Federal Employees, 884 F.2d at 606; and Harmon, 878 F.2d at 486.
Before applying to the Antitrust Division, Mr. Willner knew of the Department’s drug-testing program and of its requirement that all individuals tentatively selected for employment must undergo urinalysis. While in private practice, Mr. Willner represented the plaintiffs in Harmon v. Thornburgh, the first of our drug-testing decisions issued after Von Raab. Harmon sustained random testing of Department of Justice employees having top secret security clearances, but held that suspicionless urinalysis of other Justice Department personnel violated the Fourth Amendment unless those individuals were engaged in drug prosecutions. In view of Harmon, the Justice Department could not require urine tests of attorneys already holding the position Mr. Willner sought, unless they were suspected of drug use.
The district court framed the question as: “whether, between a current Antitrust Division attorney and an applicant for such a position, there is a constitutional distinction that would render the testing of the latter permissible under the Fourth Amendment” (Memorandum of District Court, May 15, 1990, at 4) 738 F.Supp. 1. The court found no such distinction and concluded that the government’s interests in requiring the test were the same as those Harmon rejected as insufficient. The court therefore permanently enjoined the Department of Justice from testing applicants for positions when employees occupying those positions could not be tested.
I
Von Raab, 109 S.Ct. at 1390, and its companion case, Skinner v. Railway Labor Executives Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989), held that the government’s collection and testing of urine samples from employees according to the procedures outlined in those decisions invaded “reasonable expectations of privacy” and were therefore Fourth Amendment “searches.” Such searches, even if conducted without probable cause or suspicion of drug use, do not necessarily infringe upon the Fourth Amendment’s “right of the people to be secure in their persons ... against unreasonable searches____” Von Raab ruled that “where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual’s privacy expectations against the Government’s interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.” 109 S.Ct. at 1390 (emphasis added).
Von Raab’s balancing test is inherently, and doubtless intentionally, imprecise. The Court did not purport to list all of the factors that should be weighed or to identify which factors should be considered more weighty than others. See Harmon, 878 F.2d at 488-89. Nonetheless, balance we must. The condition making it necessary to do so — that the “Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement” (Von Raab, 109 S.Ct. at 1390) — is satisfied in this case. Railway Labor Executives, 109 S.Ct. at 1414, on which Von Raab relied in formulating the standard just quoted, stated that the government’s interest in the “operation of a government office” — here the Department of Justice — presents such “special needs.” 109 S.Ct. at 1390. Furthermore, the Justice Department does not test applicants for law enforcement purposes; the test results are not distributed and cannot be used as evidence in a criminal trial. Exec.Order No. 12,564, 51 Fed.Reg. at 32,892. See also Von Raab, 109 S.Ct. at 1390-91.
In our other decisions concerning random drug testing of incumbents, the balance we struck turned to a large extent on the nature of the employee’s position. When the job involved drug enforcement or when the employee’s drug use might endanger others, for example, we have recognized that the government’s interests are sufficiently strong to allow random testing. Harmon, 878 F.2d at 490-91; National Treasury Employees Union, 918 F.2d at 972; American Federation of Government Employees, 885 F.2d at 891-92; National Federation of Federal Employees, 884 F.2d at 612, 613. The job Mr. Willner sought fell within neither category. But that is neither the beginning nor the end of our inquiry. The protections of the Fourth Amendment are graduated in proportion to the privacy interests affected. Decreasing levels of intrusiveness require decreasing levels of justification. If the reasonable privacy expectations of applicants are less than those of employees and if the testing procedure for applicants is itself unintrusive, the government is not required to demonstrate as high a degree of justification as it must to conduct random testing of those already employed.
II
We shall deal first with the extent of privacy interests applicants such as Mr. Willner possess with respect to urine testing. In other contexts, when “the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search” (Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967)), the Fourth Amendment does not require a warrant. See Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987); New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985); O’Connor v. Ortega, 480 U.S. 709, 725-26, 107 S.Ct. 1492, 1501-02, 94 L.Ed.2d 714 (1987) (plurality opinion). When the “privacy interests implicated by the search are minimal,” the Court has recognized, as it did in Von Raab and Railway Labor Executives, that a warrantless search may be reasonable even in the absence of suspicion of illegal conduct. T.L.O., 469 U.S. at 342 n. 8, 105 S.Ct. at 743 n. 8.
As we read the Court’s opinions in Von Raab and Railway Labor Executives, even a current employee’s “expectation of privacy,” while “reasonable” enough to make urine testing a Fourth Amendment “search,” can be so “diminished” that the search is not “unreasonable.” See Von Raab, 109 S.Ct. at 1390, 1394. This simply recognizes that Fourth Amendment “searches” vary in their intrusiveness. Taking a person’s fingerprints, for example, and ransacking a person’s dwelling place, while both “searches” (see Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)), may require different degrees of justification to make them “reasonable.” The district court in this case was surely correct that “an applicant has some expectation of privacy; in applying for a job he does not thereby consent to, for example, a warrantless search of his home” (Memorandum of District Court, May 15, 1990, at 8). But urine testing, particularly in view of the procedures followed at the Justice Department, is on a different end of the spectrum.
Railway Labor Executives, 109 S.Ct. at 1413, held that urine testing involves two searches, the first when the sample is collected and the second when it is analyzed. As to the first search — the collection process — Justice Department applicants are subjected to far less of an intrusion than were the employees in Railway Labor Executives and Von Raab. In those cases, a “monitor of the same sex as the employee remain[ed] close at hand to listen for the normal sounds of urination” or to observe directly as the employee produced the sample. Von Raab, 109 S.Ct. at 1388; Railway Labor Executives, 109 S.Ct. at 1413; id. at 1428 (Marshall, J., dissenting); see Harmon, 878 F.2d at 486. This procedure, which Justice Scalia found “offensive to personal dignity,” Von Raab, 109 S.Ct. at 1398 (dissenting opinion), and which the Court relied upon in finding a Fourth Amendment search, Railway Labor Executives, 109 S.Ct. at 1413, is not part of the Justice Department’s program for applicants. There is no purposeful invasion of privacy of the sort involved in Von Raab and Railway Labor Executives. A Justice Department applicant produces the sample, not in a stall or behind a partition, as in Von Raab, but in the privacy of a small room behind a closed door, unless there is reason to suspect tampering. The Program Coordinator of the Department’s drug-testing program, in an undisputed affidavit, stated that the sounds of urination cannot be heard and that the Department “certainly does not expect or require the collection person to hover near the door listening for urination sounds. After the individual is escorted to the enclosure, the collection monitor returns to the waiting room to receive the specimen from the individual.” For these reasons, the collection process at the Department of Justice simulates what is a common medical procedure, an accepted part of a typical physical examination required by athletic teams, colleges, the military, life insurance companies and private employers. See Bratcher v. United States, 149 F.2d 742, 745 (4th Cir.), cert. denied, 325 U.S. 885, 65 S.Ct. 1580, 89 L.Ed. 2000 (1945); see also, McDonell v. Hunter, 612 F.Supp. 1122, 1130 n. 6 (S.D.Iowa 1985), modified, 809 F.2d 1302 (8th Cir.1987).
As to the second search involved in urine testing, the chemical analysis, Railway Labor Executives indicates that this invades privacy because it may reveal “private medical facts about an employee” (109 S.Ct. at 1413). But applicants for employment at the Justice Department cannot reasonably expect to keep such information secret. The only medical facts revealed to the Justice Department are whether the applicant has recently used illegal drugs. By divulging, as Mr. Willner did, whether he uses, or has used within the past five years, marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs, and by consenting to an F.B.I. investigation in which his friends, neighbors, relatives and past and present business associates may be asked if he uses drugs, an applicant relinquishes whatever privacy he might otherwise retain with respect to such information, even when the information is derived from chemical analysis.
We begin then with a comparatively slight disturbance of the applicant’s privacy. The collection process is dignified and discreet and unlike that described in Railway Labor Executives and Von Raab; the later test reveals no information that can, under the circumstances, be considered private. Other considerations further diminish the privacy expectations of job applicants like Mr. Willner. They know they will have to undergo a drug test if they are tentatively selected for employment at the Justice Department. Pre-employment testing is not random. Unlike the incumbents in Harmon, all applicants must provide a urine sample before being hired. The procedure is scheduled ahead of time and the applicant is given advance notice of the date. All of this, Von Raab indicated, reduces “to a minimum” the unsettling effect of unexpected intrusions. Von Raab, 109 S.Ct. at 1394 n. 2; see Harmon, 878 F.2d at 489. We recognize, of course, that the government cannot defeat a person’s “reasonable” expectation of privacy merely by giving notice of the impending intrusion. See Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); United States v. Taborda, 635 F.2d 131, 137 (2d Cir.1980); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 384 (1974). But the applicant’s knowledge of what will be required, and when, affects the strength of his or her interest. We so held in National Federation of Federal Employees v. Weinberger, 818 F.2d 935, 943 (D.C.Cir.1987): “Advance notice of the employer’s condition, however, may be taken into account as one of the factors relevant to the extent of the employees’ legitimate expectations of privacy.”
Similarly, it is significant that the individual has a large measure of control over whether he or she will be subject to urine testing. No one is compelled to seek a job at the Department of Justice. See Wyman v. James, 400 U.S. 309, 324, 91 S.Ct. 381, 389, 27 L.Ed.2d 408 (1971). If individuals view drug testing as an indignity to be avoided, they need only refrain from applying. This too is an important distinction between applicants and incumbents. The choice presented to current employees — undergo random drug testing or lose your job — is not comparable to that facing applicants. In Judge Friendly’s words, “there is a human difference between losing what one has and not getting what one wants.” Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1296 (1975). The plurality opinion in Wygant v. Jackson Board of Education, 476 U.S. 267, 282-83, 106 S.Ct. 1842, 1851, 90 L.Ed.2d 260 (1986), recognized as much: “Denial of a future employment opportunity is not as intrusive as loss of an existing job.” See Harmon, 878 F.2d at 489 n. 6.
We are mindful of the fact that the Customs Department employees in Von Raab became subject to drug testing only because they chose to apply for promotions. To that extent, they also had control over whether they would be tested and they had advance knowledge of the testing. The Supreme Court considered these factors among others that served to diminish their expectation of privacy. 109 S.Ct. at 1394 n.2. We follow the same analysis. Rather than considering a factor separately to determine if it alone would be decisive, we must aggregate the factors on each side in order to strike the balance required by Von Raab. See Hartness, 919 F.2d at 172.
For applicants, still other factors further weaken their privacy expectations with respect to urine testing. As we have mentioned, in order to be considered for a position as an attorney at the Department of Justice, an applicant is required to undergo a thorough and exhaustive background investigation. The applicant is required to complete Standard Form 86 (SF-86), the government “Questionnaire for Sensitive Positions.” The information requested includes the address of each of the applicant’s residences during the past fifteen years; every job the applicant has held for the last fifteen years; and all organizations, domestic and foreign, with the exception of labor unions and political and religious organizations, of which the applicant has been a member during the last fifteen years. The applicant must also disclose all foreign countries he has visited. He must list all his immediate relatives and the names and addresses of four persons who know him well. The applicant is required to disclose any arrests, criminal charges, or convictions; he must reveal whether he, his spouse, or a company controlled by him has ever declared bankruptcy, been declared bankrupt, been subject to a lien, or had a judgment rendered against them for a debt. The applicant is also asked whether he has ever had a nervous breakdown or medical treatment for a mental condition.
The applicant must also provide information about his involvement with alcohol and illegal drugs. Specifically, the applicant is asked: “Do you now use or supply, or within the last 5 years have you used or supplied, marijuana, cocaine, narcotics, hallucinogenics, or other dangerous or illegal drugs?” The instructions accompanying the form remind the applicant that “knowingly falsifying or concealing a material fact is a felony which may result in fines of up to $10,000, or 5 years imprisonment, or both.” The applicant must also sign a release authorizing,
any duly accredited representative of the Federal Government, including those from the U.S. Office of Personnel Management, the Federal Bureau of Investigation, and the Department of Defense, to obtain any information relating to my activities from schools, residential management agents, employers, criminal justice agencies, financial or lending institutions, credit bureaus, consumer reporting agencies, retail business establishments, medical institutions, hospitals or other repositories of medical records, or individuals. This information may include, but is not limited to, my academic, residential, achievement, performance, attendance, personal history, disciplinary, criminal history record, arrest, conviction, medical, psychiatric/psychological, and financial and credit information.
SF-86 at 10.
In addition, applicants for positions at the Justice Department are required to sign a form authorizing the release of their federal income tax returns for the last five years. Joint Appendix (J.A.) 202. The applicant is also fingerprinted for the purposes of checking criminal records. When SF-86 and the tax waiver form have been submitted, the Federal Bureau of Investigation conducts' a background investigation. As described by the Executive Officer of the Antitrust Division of the Justice Department,
The background inquiry is thorough. At a minimum, the FBI will contact all references and close personal associates listed on the SF-86, as well as former spouses, employers and co-workers. The FBI will also conduct neighborhood checks on all residences, interviewing landlords and neighbors____ A regional credit bureau check is also conducted, covering all areas in which the applicant has lived. Military records and police records in all jurisdictions in which the applicant has resided are also examined.
Thus, as a general matter, applicants for Justice Department positions cannot reasonably expect to — and in fact do not— shield their private lives from government scrutiny during the hiring process. The background investigation is an extraordinarily intrusive process designed to uncover a vast array of information about those applying for jobs in the Department of Justice. As the Supreme Court stated in Von Raab, 109 S.Ct. at 1397, this “especially” “may be expected to diminish their expectations of privacy in respect of a urinalysis test.” See American Federation of Government Employees, 885 F.2d at 893; National Federation of Federal Employees, 884 F.2d at 612-13.
Common practice, in the government and in the private sector, is also a measure of the degree of privacy job applicants reasonably can expect. See O’Connor v. Ortega, 480 U.S. 709, 732, 107 S.Ct. 1492, 1505, 94 L.Ed.2d 714 (1987) (Scalia, J., concurring); Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648, 655 (D.D.C.1989). Plagued with increased absenteeism, lower productivity, and workplace disruption connected with employee drug use, private companies have increasingly turned to drug testing as a means of dealing with the problem. A recent study by the Bureau of Labor Statistics found that drug-testing programs have become fairly common in the nation’s largest firms. The study showed that the larger the work force, the more likely the employer would have a drug-testing program. Almost 60 percent of private employers with 5,000 or more employees had such programs and another 11 percent were considering implementing one. Bureau of Labor Statistics, U.S. Department of Labor, Survey of Employer Anti-drug Programs, Report 760, at 6, table 1 (Jan.1989) (J.A. 174).
Overall, “[djrug-testing programs are aimed more towards job applicants than employees.” Id. at 5 (J.A. 173). More than 85 percent of employers with drug-testing programs tested job applicants; of those that tested job applicants, 83 percent tested all applicants while only 16 percent limited testing to selected occupations. Id. at 8, table 4 (J.A. 176). Some of the nation’s largest employers, including American Telephone & Telegraph, DuPont, Exxon, Federal Express, Trans World Airlines, and United Airlines, have drug-testing programs for job applicants. See Adams, Random Drug Testing of Government Employees: A Constitutional Procedure, 54 U.Chi.L.Rev. 1335, 1337 (1987). Such testing has become more common in recent years. Between 1982 and 1985 the number of Fortune 500 corporations having drug-testing programs more than doubled. Rothstein, Drug Testing in the Workplace: The Challenge to Employment Relations and Employment Law, 63 Chi.-Kent L.Rev. 683, 703 (1987).
These statistics are of course quite general. They say nothing, for example, about the hiring processes of large private law firms. It is also true that private employers, unconstrained by the Fourth Amendment, may engage in practices the government as employer cannot. Nonetheless, what is occurring generally outside government is some indication of what expectations of privacy “society is prepared to accept as ‘reasonable’ ” when the government engages in the hiring process. Katz v. United States, 389 U.S. at 361, 88 S.Ct. at 516 (Harlan, J., concurring). See California v. Greenwood, 486 U.S. 35, 40-41 & nn. 3, 4, 108 S.Ct. 1625, 1628-29 & nn. 3, 4, 100 L.Ed.2d 30 (1988), which relied on private practices to determine what was a “reasonable” expectation of privacy.
Ill
On the other side of the scale are the interests of the Justice Department. The purpose of weighing the government’s interests against those of applicants is to determine whether it would be “impractical to require” that before testing a job applicant, the Justice Department obtain a warrant or suspect that the person is using drugs. Von Raab, 109 S.Ct. at 1390. Our focus is on the government in its role as an employer at the hiring stage. The Department of Justice, of course, is not just any employer. It has a legitimate interest in maintaining public confidence and trust. Drug use among its employees would undermine the Department’s credibility as the nation’s leading law enforcement agency. But it has other concerns. To the Justice Department, like any other employer, an applicant is a stranger. The hiring process at the Department of Justice, particularly the interviews and background investigation, is designed to gather information so that a judgment may be made regarding the individual’s suitability for employment. That too is the purpose of pre-employment drug testing. To require a warrant or individualized suspicion at the hiring stage would therefore all but defeat the purpose of testing applicants.
The Justice Department’s interest with respect to applicants is thus not simply promoting a public image of integrity, which Harmon deemed insufficient by itself to overcome the interests of incumbents. 878 F.2d at 490. Any employer, including the Justice Department, makes a considerable investment in terms of time and money whenever it hires someone. The hiring process itself entails substantial costs. Those new to the job must be trained and ordinarily will require some period of time on the job before they reach full productivity. For economic reasons alone, the Department is therefore entitled to compile pertinent information about those who seek positions with it. That is the only sensible way to predict how an applicant would perform and it is why private employers, with increasing frequency, are drug testing applicants. If the practice became even more widespread, if the private sector almost invariably tested for drugs while the public sector did not, individuals with drug problems might tend to migrate toward government employment. Yet the government, no less than private employers, has a very substantial interest in preventing such individuals from entering its work force.
Recent empirical studies have shown that individuals who test positive in pre-employment drug tests have higher rates of absenteeism and involuntary separation. The United States Postal Service, in an ongoing study of the relationship between drug test results and job performance, has found that “[ejmployees who tested positive for drugs were found to have a 47% higher rate of involuntary separation than those who tested negative,” and “the positive group ha[d] a 59% higher absence rate than the negative group.” U.S. Postal Service, An Empirical Evaluation of Preemployment Drug Testing in the United States Postal Service — Second Interim Report of Findings, at II (Sept.1989). Another, more limited study, “found that those with marijuana-positive urine samples have 55% more industrial accidents, 85% more injuries, and a 78% increase in absenteeism. For those with cocaine-positive urine samples, there was a 145% increase in absenteeism and an 85% increase in injuries.” Zwerling, Ryan & Orav, The Efficacy of Preemployment Drug Screening for Marijuana and Cocaine in Predicting Employment Outcome, 264 J.A.M.A. 2689, 2643 (Nov. 28, 1990). These studies and others mentioned in the Postal Service report thus confirm what one would expect — an extremely high correlation between a positive result in a pre-employment drug test and subsequent employment problems. See also, R. De-Cresce, M. Lifshitz, A. Mazura & J. Tilson, Drug Testing in the Workplace (1989); M. De Bernado, Drug Abuse in the Workplace: An Employer’s Guide for Prevention (1987).
The government’s interest in detecting drug use is substantial at the pre-employment stage because, as we have already mentioned, the applicant is an outsider. Background checks and information supplied by the applicant assist the government in making what can, at best, be only a prediction about the individual. The fact remains that the applicant is a person the government, as prospective employer, has had no opportunity to observe in the setting of the workplace. This too differentiates applicants from incumbents. In Harmon we noted that Justice Department “employees ... work in ‘traditional office environments,’ in which drug use is, presumably, more easily detected by means other than urine testing.” 878 F.2d at 489. In regard to incumbents, therefore, direct observation together with the reasonable suspicion test may uncover those employees who ought to be tested. That obviously is not true for applicants and is another factor to be weighed in favor of finding it “impractical” for the Justice Department to obtain warrants or information leading it to suspect drug use before requiring candidates for employment to be tested. See Von Raab, 109 S.Ct. at 1397 (“In assessing the reasonableness of requiring tests of these employees, the court should also consider ... the supervision to which these employees are already subject.”). For these reasons, commentators otherwise opposed to drug testing of incumbents have concluded that the government, without violating the Fourth Amendment, may require job applicants to undergo urine testing. See 3 W. LaFave, Search and Seizure § 10.3, at 123-24 (Supp.1991); Note, Employee Drug Testing — Balancing the Interests in the Workplace: A Reasonable Suspicion Standard, 74 Va.L.Rev. 969, 991-92 (1988); Miller, Mandatory Urinalysis Testing and the Privacy Rights of Subject Employees: Toward a General Theory of Legality Under the Fourth Amendment, 48 U.Pitt.L.Rev. 201, 236-37 (1986).
IV
Our conclusion is that for job applicants like Mr. Willner their privacy expectations in regard to the Justice Department’s urine testing requirement are significantly diminished and are far less than those of incumbents. Unlike current employees, job applicants are routinely required to reveal considerable amounts of information about themselves, information the employer uses to make responsible hiring decisions. The urine testing procedure at the Justice Department minimizes the intrusion and the chemical analysis later performed on the urine sample reveals no information the applicant has a cognizable interest in keeping secret. An applicant may avoid even this minimal invasion of privacy by not seeking employment with the Justice Department. On the other hand, the Justice Department’s interests, as an employer, in requiring applicants to undergo urinalysis are strong. Drug testing in the context of a job application is commonplace. Although an employer may monitor an incumbent’s performance, and thus be required to have individualized suspicion before subjecting the employee to urinalysis, such a requirement for testing applicants would be “impractical.” Von Raab, 109 S.Ct. at 1390.
For these reasons we hold that urine tests of applicants for positions as attorneys at the Justice Department do not constitute “unreasonable searches” under the Fourth Amendment. The district court’s injunction is therefore vacated.
So ordered.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
STEPHENSON, Circuit Judge.
Plaintiff-appellant Michael C. Narez appeals from the trial court’s grant of summary judgment to the defendant-appellees, United States Marine Corps. Inasmuch as the record reveals yet to be resolved issues of material fact, we reverse and remand to the trial court for proceedings not inconsistent with this opinion.
In stating the facts relevant to the appeal, we will adhere to the standards established for summary judgment:
Where several possible inferences can be drawn from the facts contained in the affidavits, attached exhibits, pleadings, depositions, answers to interrogatories, and admissions on file, “[o]n summary judgment the inferences to be drawn from the underlying facts contained in such materials must be viewed in the light most favorable to the party opposing the motion.”
City Nat’l Bank v. Vanderboom, 422 F.2d 221, 223 (8th Cir.) cert. denied, 399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560 (1970), quoting from United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).
Narez enlisted in the Reserve Marine Corps on April 18, 1971, for a period of six years. When he enlisted, he signed an enlistment contract by which he acknowledged his obligation to attend weekend drills and an annual active duty summer camp. As a part of this agreement, Narez also assumed the responsibility of informing the military of his current address.
From the time of his enlistment until March 1975, Narez presumably satisfactorily fulfilled his military obligations. In the weekend drill of March 1975, however, the commanding officer of Narez’ Company, Captain Dudash, designated Narez as an “unsatisfactory” participant in each drill. The apparent reason for the unsatisfactory designation was that Narez’ wig, although allegedly in compliance with Corps standards, did not conform to Dudash’s grooming standards. The unsatisfactory rating continued even after Narez had twice cut the wig (between the Saturday morning and Saturday afternoon drills and prior to the Sunday morning drill) in an attempt to conform to Dudash’s expectations.
Relevant to this appeal is the fact that in November 1973 Narez was a plaintiff in a suit brought to challenge the then-existing policy of the Marine Corps which did not allow reservists to wear short hair wigs to cover their own longer hair. On December 19, 1973, this court affirmed a district court order enjoining the implementation of the no-wig policy insofar as it applied to weekend reservists. Miller v. Ackerman, 488 F.2d 920 (8th Cir. 1973). In particular we said:
[W]e find no rational basis for the proscription of short-hair wigs and [affirm the district court’s order, Klinkhammer v. Richardson, 359 F.Supp. 67 (D.Minn.1973)] enjoining any proscription of the use of short-hair wigs in the reservists’ weekend training program.
Miller v. Ackerman, supra, 488 F.2d at 922.
The Marine Corps consequently changed its policy to conform to the district court’s order and allowed, subject to regulations, the wearing of wigs by reservists on drill weekends.
Narez appeared at the next regularly scheduled drill in April 1975; at that time Dudash allegedly told Narez that unless he got rid of his wig and cut his natural hair, Dudash would “activate” him to involuntary active duty.
Narez also contends that at both the March and April 1975 drills, he requested of Dudash to be allowed to appear for MAST, but was never permitted such. MAST is an internal informal Corps procedure by which an enlisted Marine reservist who wishes to lodge a complaint against a superior officer or non-commissioned officer may request the right to appear before that officer’s or non-commissioned officer’s commanding officer to discuss the complaint.
Narez’ record shows that Narez did not appear for the next seven months of drills, nor did he appear for his required two weeks of active duty in July. In December 1975, Narez finally reappeared at drill and was given credit for the drills on December 5, 6 and 7; the record shows that he was counseled on December 5 concerning mandatory participation and makeup drills. Narez’ makeup drills were scheduled for December 11, 12, 15, 16, 17, 29 and 30. He did not report on the 11th; he reported on the 12th, at which time his performance was rated “unsatisfactory” as he was not in uniform and his hair did not adequately conform to the requirements. Narez was told he could not do his makeup drills unless his appearance was satisfactory; he was also warned that if the makeup drills were not performed, he would be recommended for involuntary active duty.
Narez appeared for the January 1976 drills, wearing a new wig which he contends conformed with Marine Corps standards. Dudash again marked Narez as an “unsatisfactory” participant on the basis that — according to Narez — the wig did not meet “Dudash’s standards.” At that time, Narez decided not to attend any future drills, and he was not present for the February, March and April 1976 drills.
During the next few months, several letters were written by Marine officials and sent to Narez explaining what action the Corps was going to take against him. All but one of these letters failed to reach Narez, however, and the Corps maintains Narez was the cause of this failure inasmuch as he had not kept the Marines advised of his most current address.
The letter that Narez received was sent March 9, 1976, received March 11,1976, and advised Narez of the Marines’ intent to recommend his discharge on the basis of “an established pattern of shirking.” On March 15, pursuant to the choices outlined in the Marines’ letter, Narez wrote back, stating that he did not wish to accept the discharge and requesting to have his case be considered by an administrative discharge board. The Marines never replied to Narez’ March 15 letter and did not pursue the plans to discharge him. Instead, on April 28, 1976, the Corps sent to Narez a notice of its intent to recommend that Narez be ordered to involuntary active duty (for which there is no provision for review by an administrative board); on June 4, 1976, sent to Narez a notice of intent to recommend that he be administratively reduced to the rank of private; and on September 8, 1976, sent to Narez a second letter of intent to recommend that he be recommended for involuntary active duty. None of these letters ever reached Narez, and they were returned, marked “Unclaimed” or “Moved.”
On November 1, 1976, Narez’ order of assignment to involuntary active duty, effective November 30, was issued, and the Corps began a series of efforts to locate Narez by telephone. On November 12, 1976, the Corps located Narez at his place of employment and informed him of the order. Narez said that he wished to contest the order and stated that he would appear for that purpose on November 20, 1976. Narez authorized an attorney to review Narez’ records on November 19, 1976, but Narez did not appear on November 20. On November 29, Narez’ orders to report were personally delivered to him at his place of work, and on November 30, Narez failed to report as ordered.
Narez raises three primary issues on appeal. The only one necessary for us to discuss here is his contention that the pleadings, affidavits and depositions of the parties raise a genuine issue of material fact as to whether Narez was ordered to involuntary active duty, directly or indirectly, as a result of his wearing a regulation wig to weekend drills.
In a summary judgment situation, the court may consider admissions and facts conclusively established but all reasonable doubts touching the existence of a genuine issue as to material fact must be resolved against the movant.
“A summary judgment upon motion therefor by a defendant in an action should never be entered except where the defendant is entitled to its allowance beyond all doubt. To warrant its entry the facts conceded by the plaintiff, or demonstrated beyond reasonable question to exist, should show the right of the defendant to a judgment with such clarity as to leave no room for controversy, and they should show affirmatively that the plaintiff would not be entitled to recover under any discernible circumstances. * * * A summary judgment is an extreme remedy, and, under the rule, should be awarded only when the truth is quite clear. * * * And all reasonable doubts touching the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment.”
United States v. Farmers Mut. Ins., 288 F.2d 560, 562 (8th Cir. 1961), quoting from Traylor v. Black, Sivalls & Bryson, Inc., 189 F.2d 213, 216 (8th Cir. 1951). See Goodman v. Parwatikar, 570 F.2d 801, 803 (8th Cir. 1978); City Nat’l Bank v. Vanderboom, supra, 422 F.2d at 223.
If, by reasonable inference from the facts, it could be concluded that by action of the Corps Narez was denied his constitutionally protected right to govern his personal appearance, directly or indirectly in violation of our decision in Miller v. Ackerman, supra, then the Corps, as the moving party, has failed to sustain its burden, and the order of summary judgment must be reversed.
The issue is a material one in that it goes to the heart of Narez’ pleading; and a review of the record also discloses that there are sufficient facts that give rise to the inference that Narez suggests: (1) Narez’ claim that he was marked unsatisfactory because of his wig, when Narez contends his wig conformed to Corps requirements; (2) the allegations that Dudash told Narez to get rid of his wig or Narez would be activated; (3) the Corps’ change of recommendation from discharge (of which there is a review by an administrative board) to involuntary active duty (for which a review by an administrative board does not exist); (4) the fact that Narez claims he at least twice requested MAST, but did not receive it; and (5) the delay in the orders to activate Narez (Narez was absent from drills in May, June, July, August, September, October and November, 1975, and yet the Corps’ notification to Narez of discharge or involuntary active duty did not come about until after the further dispute Narez had with Dudash over Narez’wig in January 1976). We do not list these factors as a comment upon the strength or weakness of Narez’ case; we only point to these facts to illustrate that a reasonable inference can be drawn from these facts favorably for Narez.
Thus, for the reason that a genuine issue as to a material fact exists in this case, we hold that this case is not an appropriate one for summary judgment. The purpose of summary judgment “is not to cut litigants off from their right of trial * * * if they really have evidence which they will offer on a trial[;] it is to carefully test this out, in advance of trial by inquiring and determining whether such evidence exists.” Whitaker v. Coleman, 115 F.2d 305, 307 (5th Cir. 1940).
We reverse and remand for proceedings not inconsistent with this opinion.
. The Honorable John K. Regan, Senior United States District Judge for the Eastern District of Missouri.
. General L. Wilson and Captain J. J. Dudash are the named defendants in this case. Narez v. Wilson, 449 F.Supp. 141 (E.D.Mo.1977).
. An unsatisfactory rating is essentially equivalent to an absence from the drill.
. Narez states in his affidavit:
During the morning formation at the drill weekend on March 22, 1975, Captain Dudash, the inspecting officer, told me that my wig was not cut satisfactorily, and he gave me an unsatisfactory performance. Although the wig was cut satisfactorily, I had it cut using a ruler to conform to his demands, but at 1:00 that afternoon, I was inspected again, and told that my wig was still unsatisfactory. When I told him that it met Marine Corps standards, he said, “I don’t care what you did to it, it still doesn’t meet my standards.” He gave me another unsatisfactory drill. That gave me two unsatisfactories for the weekend. I took the wig home on Saturday night and cut it again. On Sunday, March 23, 1975, I went back to the next day’s drill. Captain Dudash again told me that my wig cut was unsatisfactory, and he gave me an unsatisfactory rating for the drill. I told him, “I cut the wig as much as I possibly can, the band is almost visible,” and Captain Du-dash then replied, “Yes, I can see that you did, but now it is too messy, even though it is short enough.” When I asked him what I could do to meet his standards, he said, “I’m not telling you anything, it was your problem when you started wearing the wig.”
. Narez missed the Saturday drill because of car trouble; Dudash excused that absence.
. Narez states in his affidavit:
Captain Dudash said, “Narez, you know I was given a choice of either straightening out this company or stepping down. You know I believe in the Reserve program, so instead of stepping down, I’m going to stay. I have been told either to get rid of those people who wear wigs by activating them or by having them take off their wigs and getting their hair cut.” I said, “Sir, I have never heard of an individual being activated for not having a haircut,” and Captain Dudash replied, “I know that it’s never been done, and I don’t know if it can be done, but I will try, which brings me to you. I am going to use you as an example, either get rid of your wig and get a haircut, or I will find some way of activating you.” I said, “Sir, it sounds to me like you are making a scapegoat out of me,” and Captain Dudash replied, “You can call it what you want, but I want you to go out and tell the other troops what I said.” I did as he told me * * *.
. Narez states in his affidavit:
During the January, 1976 drill, I was inspected by Captain Dudash. I was wearing a new wig which I had cut to Marine Corps standards. Captain Dudash gave me three unsatisfactory drills for that weekend, because, according to him, the wig didn’t meet “his standards.” * * * [Ajfter I had received my third unsatisfactory, I went to talk to Captain Dudash. I said, “Captain, I have tried to conform to your grooming standards, but I don’t know what more to do.” Captain Dudash replied, “Narez, I don’t see any way or anything you can do that you can measure up to my standards. Every time you come out here, you’ll be given an unsatisfactory drill.” I said, “Captain, I work at Monsanto, and they do not pay us for weekend drills. I’m losing two days’ pay every weekend from work, and you do not pay me out here because you give me an unsatisfactory performance.” (Reservists are not paid when they are given unsatisfactories for the drills, even though they may spend the full time at the drill). Captain Dudash replied, “That is your tough luck.” At that point, I decided to stop going to drills, because I was afraid that the Marines would write to Monsanto and tell them that I was a troublemaker at the drills, and I would be fired.
. Narez moved approximately four times during his career with the Reserve.
. Narez’ letter states:
I do not wave any rites. I have not ever had the oppertunity to present my case before you. I do not except a undesirable discharge. I desire the rite to discuss my case with the proper officials in this mater. I feel it only nessecary to tell you that I have been a victim of circumstance which was bestowed upon me by Captain J. Dudash Co. of Company I in a drill in April of 1975. Upon when I was verbally harassed. I am sure I can come up with a proper case or witnesses if necesary. I have been a particapant with Co. I for 4‘/2 years of continues service without any blemishes on my record at all. So in last stating I do here by ask you to grant me at least a meeting with the right officialls. In accordance with my case or I will have to write my Congressman.
. The reservist may respond with a statement, however.
. We note that there appear to be other “facts” perhaps not fully aired, i. e., whether the Corps followed its own regulations in its transactions with Narez, and the impact of those possible failures on the immediate situation.
. We specifically refrain from commenting upon the extent of military discretion or the scope of review of military actions by the court. We duly note:
(a) Notwithstanding any other provision of law, the President may order to active duty any member of the Ready Reserve of an armed force who—
(1) is not assigned to, or participating satisfactorily in, a unit of the Ready Reserve;
(2) has not fulfilled his statutory reserve obligation; and
(3) has not served on active duty for a total of 24 months.
(b) A member who is ordered to active duty under this section may be required to serve on active duty until his total service on active duty equals 24 months. If his enlistment or other period of military service would expire before he has served the required period under this section, it may be extended until he has served the required period.
(c) To achieve fair treatment among members of the Ready Reserve who are being considered for active duty under this section, appropriate consideration shall be given to—
(1) family responsibilities; and
(2) employment necessary to maintain the national health, safety, or interest.
10 U.S.C. § 673a.
A case factually similar to the instant case is Baugh v. Bennett, 329 F.Supp. 20 (D.Idaho 1971), and Baugh v. Bennett, 350 F.Supp. 1248 (D.Idaho 1972), affirmed mem., 547 F.2d 1174 (9th Cir. 1976).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
LAY, Circuit Judge.
Summary judgment was granted defendants Central Arkansas Broadcasting Company, Inc., Carl Connerton, a news reporter, and police officers Ronald W. Stobaugh and Jackie Race, in a suit brought by Marvin Holman under 42 U.S.C. § 1983 for alleged invasion of Holman’s right of privacy and other civil rights. Holman also alleged a claim under 18 U.S.C. § 2520. We affirm.
On November 20, 1975, Holman and his wife were stopped on the highway at approximately 3:56 A.M., and taken to the Russellville, Arkansas police station. Holman was charged with the offense of driving while intoxicated, second offense, and using profane and abusive language; Mrs. Holman was charged with public drunkenness. Holman, an attorney, had formerly served as municipal judge. The original complaint alleged the police officers, acting under color of state law, entered into a conspiracy with Connerton to publish an embarrassing news account of Holman’s arrest and subsequent behavior.
Holman was allowed to privately confer with his retained counsel, Robert Hays Williams, at 4:30 A.M. in a private lounge. Williams later represented Holman at his trial in municipal court. Holman’s young associate, an attorney named Roderick Weaver, came to the jail shortly after 5:30 A.M. to secure the release of Holman and his wife on bond. The police informed him they would not release the Holmans until 9:00 A.M. Upon his return he observed at least two persons who were not police officers, one of whom he later learned was Mr. Connerton, a news reporter. When he went to Holman’s cell he noticed Connerton was in the cell block a short distance behind him and had a tape recorder in his hand. Weaver told Connerton not to record any conversation between himself and Holman. According to Weaver, Connerton appeared to walk away. At this time, Holman’s wife was taken from her cell for fingerprinting and photographing. According to the affidavits of three police officers, Holman was hitting and banging on his cell door, hollering and cursing from the time of his arrest until his release at approximately 9:00 A.M. The police communications operator stated Holman became abusive and refused to cooperate when she tried to give him a gas chromatograph test. When placed in the holding cell, he started hollering, cussing and screaming. Her affidavit states:
He [Holman] began calling the officers present and myself vulgar names. This was going on throughout the morning and was still going on when I left at 8:00 a. m. At approximately 6:00 a. m. on that morning, November 19, 1975, KARV Radio Station called and wanted to know what was going on, that they were hearing a lot of noise. I told them it was just a drunk and I did not give them any names. KARV Radio Station is located about a block east of the police station. Prior to the time I left at 8:00 a. m. no member of any news media had arrived at the police station and to my knowledge no telephone call was made from the police station to any member of the news media.
James L. Guhl, an officer in the detective division, arrived between 8:00 and 8:30 A.M. He stated:
When I arrived I went to my office which is close to the holding cells I could hear quite a commotion going on back around the cells. Someone was hollaring [sic], banging and cursing. When I got to the office Detective Holt was there, and I asked him what was going on. He told me that Marvin Holman had been arrested the night previous for DWI and that this had been going on quite awhile; that is, since he had been arrested he had been banging on the door, etc.
During the time that I was in the police department, I heard the constant banging Mr. Holman was making either with his hands or shoes against the cell door. He was cursing and saying that if they would let him out of the holding cell he would whip several of the officers. When they took his wife out of the holding cell to be processed he shouted that the officers had better not put their hands on his wife, that she did not have to submit to that.
No credible evidence appears in the record that Connerton recorded any confidential information. It is obvious from the affidavits that the words broadcast could be heard by others in the police station. Holman argues the Fourth and Sixth Amendments create a “zone” of privacy which was violated by Connerton’s recording and publishing of Holman’s statements. The simple answer to this contention is that the boisterous complaints which were recorded were not made with the expectation of privacy or confidentiality. Neither Weaver nor Holman asserts confidential legal advice was given. The evidence demonstrates unequivocally that Holman was simply complaining loudly while Weaver tried to quiet him down in order to arrange his release.
Even assuming the police called the news reporter to the station and allowed him to enter the cell block, no right to privacy is invaded when state officials allow or facilitate publication of an official act such as an arrest. See Paul v. Davis, 424 U.S. 693, 712-13, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-93, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975). Although Weaver asked Connerton not to record Holman’s statements, they were made loudly and in such a manner as to attract attention. Connerton could not be prevented from reporting the statements he could so easily overhear aurally; use of a device to record them cannot create a claim for invasion of privacy when one would not otherwise exist.
We recognize the important and vital right to private consultation that is basic to effective representation by counsel flows from the confidential relationship between an accused and his counsel. However, the undisputed facts distinguish this case from those in which that right is protected. Cf. Coplon v. United States, 89 U.S.App.D.C. 103, 191 F.2d 749 (D.C.Cir. 1951), cert. denied, 342 U.S. 926, 72 S.Ct. 363, 96 L.Ed. 690 (1952) (interception of telephone conversations between accused and counsel before and during trial). Here there was no attempt to record or overhear statements made with an expectation of privacy. Holman’s boisterous complaints were obviously not intended for Weaver’s ears alone. The tape demonstrates this.
Holman amended his complaint to allege a second count under 18 U.S.C. §§ 2510, 2520 for unlawful interception of an oral communication. The same reasoning that defeats his section 1983 claim applies to this one. The facts clearly show Holman’s remarks were not uttered with an expectation that his communication would be private, that is, not subject to interception; nor were they uttered under circumstances justifying such an expectation. 18 U.S.C. § 2510(2); United States v. Carroll, 337 F.Supp. 1260, 1262 (D.D.C.1971). Under the circumstances, Holman’s claim for unlawful interception must fall as well.
As Judge Van Sickle, presiding over the district court, wrote in granting summary judgment:
The Plaintiff knew he was being interviewed. He knew the newsman had recording equipment. He yelled and swore at the top of his voice. He slammed the bars and produced loud and attention getting noises. He made no effort to communicate confidentially to his attorney. In fact, his attorney was busy trying to silence him long enough to get him out of the public place.
Judgment affirmed.
. Section 2520 of Title 18 provides civil liability for unlawful interception of an oral communication. See 18 U.S.C. §§ 2510-20.
. The factual allegations of the complaint foreshadowed the shortcomings in Holman’s case:
Mr. Connerton was let into the cell block where is located the cell in which the plaintiff [Holman] was incarcerated, and an area where nonauthorized personnel are excluded (and Mr. Connerton was not an authorized person) for the purpose of recording on tape recording equipment a conversation being carried on between the plaintiff and his attorney, Mr. Rick Weaver. At that time and place the plaintiff was quite exercised because of the treatment which he had received from the police department of the City of Russellville and because of the treatment which his wife at that time was receiving and was in the process of protesting loudly and profanely to his attorney about such treatment. Mr. Connerton recorded that conversation, a conversation in which the plaintiff was obviously emotionally disturbed, and then proceeded to broadcast that recording over radio station KCAB for the purpose of causing embarrassment and humiliation to the plaintiff, and which broadcast achieved its purpose (emphasis added).
. The legislative history of 18 U.S.C. § 2510 discusses the definition of “oral communication” as an utterance made under circumstances justifying an expectation that it is not subject to interception:
The person’s subjective intent or the place where the communication is uttered is not necessarily the controlling factor. Compare Linnell v. Linnell [249 Mass. 51], 143 N.E. 813 (Mass. 1924), with Freeman v. Freeman [238 Mass. 150], 130 N.E. 220 (Mass.1921). Nevertheless, such an expectation would clearly be unjustified in certain areas; for example, a jail cell (Lanza v. New York, 370 U.S. 139, 82 S.Ct. 1218 [8 L.Ed.2d 384] (1962)) or an open field (Hester v. United States, 265 U.S. 57, 44 S.Ct. 445 [68 L.Ed. 898] (1924)). Ordinarily however, a person would be justified in relying on such expectation when he was in his home (Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679 [5 L.Ed.2d 734] (1961)) or office (Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873 [18 L.Ed.2d 1040] (1967)), but even there, his expectation under certain circumstances could be unwarranted, for example, when he speaks too loudly. See State v. Cartwright, [246 Or. 120], 418 P.2d 822 (Ore.1966), certiorari denied 386 U.S. 937, 87 S.Ct. 961 [17 L.Ed.2d 810] (1967).
S.Rep. No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, p. 2178 (emphasis added). Section 802 of the Omnibus Crime Control and Safe Streets Act of 1968 was revived by section 20(c) of the Omnibus Crime Control Act of 1970. See Act Jan. 2, 1975, P.L. 93-609, § 4, 88 Stat. 1973.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
HASTIE, Circuit Judge.
This is an appeal from an order granting the defendant summary judgment in a suit for tortious invasion of privacy. The plaintiffs are the widow and children of David Jenkins who had been kicked to death in September, 1953 by the leader of a gang of teen-aged Pittsburgh youths. Defendant is the publisher of the monthly magazine, “Front Page Detective”. In the January 1954 issue of this magazine there appeared on a single page under the title “Heartbreak House” an accurate 150 word account of this homicide naming the persons concerned, including the plaintiffs. The exact text of this publication is set out in the margin. ******This brief story was illustrated with pictures, among them a group photograph of the plaintiffs identified as the family of the victim.
The gravamen of the claim which plaintiffs have based on this publication is stated in their brief amended complaint as follows:
“4. The defendant is sued for damaging and injuring the plaintiffs by invading the privacy of the plaintiffs by publishing or causing to be published and circulated a picture of the plaintiffs without their permission, and without privilege as hereinafter set forth.
“5. The defendant, Dell Publishing Company, Incorporated, did willfully, wantonly, recklessly, maliciously, and with complete disregard for the interests and rights of the plaintiffs, reproduce, publish and circulate or caused to be reproduced, published and circulated in the state of Pennsylvania, and the United States a picture of the plaintiffs, under the title, ‘Heartbreak House’, in the January, 1954, edition of ‘Front Page Detective’ on page 57.”
On motion for summary judgment the court considered this complaint and a number of depositions, exhibits, admissions, and answers to interrogatories which established several important facts, in addition to those already stated above. The group photograph of which plaintiffs complained had been taken by a newspaper photographer shortly after the homicide, with the consent of the plaintiffs and pursuant to their understanding that the picture was to be used for newspaper publicity in connection with the felonious killing of the head of their family. Thereafter, without the knowledge or consent of the plaintiffs, the newspaper which took and published the picture sold a copy of it to World Wide Photos, Inc., which in turn sold it to the defendant, which used it to illustrate the above described story in Front Page Detective some three months after the homicide. An entire copy of this January issue of Front Page Detective was made a part of a deposition which was before the court on the motion for summary judgment.
All concerned have agreed that the allegedly injurious publication occurred in the state of Pennsylvania where the plaintiffs lived and were known and Front Page Detective was circulated. Therefore, the question whether defendant is entitled to summary judgment has properly been viewed as depending upon the law of privacy as it exists and is developing as part of the tort law of Pennsylvania.
As a legally protected interest of personality, privacy is new in the common law. Concepts and rules for the systematic development and protection of this interest are in the making and not fully developed. In Pennsylvania, as recently as 1954, the highest court of the state would not commit itself beyond “ [assuming, without deciding, that such a right does exist in Pennsylvania”. Nevertheless, we think it adequately established that there is a protected area of privacy under Pennsylvania law, imprecisely defined though it is in the decisions of the Pennsylvania courts.
Moreover, we think the evolving law of privacy, in Pennsylvania as in other states, exhibits a basic conceptual framework which makes for and aids in an orderly and systematic development of this new legal field. As we read them, the decisions of judges and the theoretical discussions of scholars about privacy show concern with two types of harm, one of which is more likely to justify judicial intervention than the other. The first and, in terms of the dictionary meaning of privacy, the most obvious matter of legal concern is some measure of protection for the individual against the embarrassment, humiliation or other injury which may result from public disclosure concerning his personality or experiences, truthful and factual though that disclosure may be. But in this situation, the interest of the public in the free dissemination of the truth and unimpeded access to news is so broad, so difficult to define and so dangerous to circumscribe that courts have been reluctant to make such factually accurate public disclosures tortious, except where the lack of any meritorious public interest in the disclosure is very clear and its offensiveness to ordinary sensibilities is equally clear.
But there is a second type of situation where a publication is harmful and objectionable, not because of what it discloses about the individual, but because of the way it associates his personality with something else. The unauthorized use of one’s story or picture in commercial advertising exemplifies this, branch of the law, although there also» may be objectionable non-commercial uses of one’s likeness or story to promote something else.
The present case belongs in the first and not in the second of the above described general categories. The plaintiffs’ tragedy was published because the publisher thought that the public would be interested in reading about it, and not to advertise, promote or publicize anything else.
This analysis immediately discloses the fallacy of one of the principal arguments made in support of this appeal. In argument this case has been analogized to those in which a “commercial” use or exploitation of an individual’s picture or story has been viewed as a violation of privacy. But we already have pointed out that “commercial” uses are those in which an individual’s picture or story has been associated with something else in commercial advertising. Experience has shown that a person of normal sensitivity is likely to find this type of commercialization of his personality very objectionable. At the same time no social interest is jeopardized in curbing such unauthorized advertising practices.
Quite different are the cases like this one where a story is recounted solely for the reader interest it may evoke. True, such publication is “commercial” in the sense that Front Page Detective is a magazine published for profit. But this in no way distinguishes the magazine from almost all other newspapers and magazines. Thus, the commercial character of newspapers and magazines is not a significant circumstance in this or any other case in our first category. The concern of the law that restrictions on public disclosures of the truth be minimal, is not lessened by the fact that the publication of newspapers and magazines is a business rather than a philanthropy.
There is a second and entirely different basis upon which it is urged that the present publication is actionable and not privileged. Indeed, it seems to be the appellants’ principal contention that this publication is not entitled to the privileged status of ordinary news items because its actual or intended appeal is to satisfy a public craving for “entertainment” rather than to provide “information”. The plaintiffs say they could establish this orientation of the offending story at trial and that this would entitle them to prevail. We do not believe any such distinction is or should be a part of the law of privacy,
For present purposes news need be defined as comprehending no more than relatively current events such as in common experience are likely to be of public interest. In the verbal and graphic publication of news, it is clear that information and entertainment are not mutually exclusive categories. A large part of the matter which appears in newspapers and news magazines today is not published or read for the value or importance of the information it conveys. Some readers are attracted by shocking news. Others are titillated by sex in the news. Still others are entertained by news which has an incongruous or ironic aspect. Much news is in various ways amusing and for that reason of special interest to many people. New newspapers or news magazines would long survive if they did not publish a substantial amount of news on the basis of entertainment value of one kind or another. This may be a disturbing commentary upon our civilization, but it is nonetheless a realistic picture of society which courts shaping new juristic concepts must take into account. In brief, once the character of an item as news is established, it is neither feasible nor desirable for a court to make a distinction between news for information and news for entertainment in determining the extent to which publication is privileged.
In the case at hand the account published in Front Page Detective and relevantly illustrated with a picture of the plaintiffs was a factual and undistorted short account of a recent homicide. On its face the story revealed that one of the assailants had been charged with murder, another with assault, and that others of the “gang” were being held as material witnesses. Thus the story was one of recent homicide and pending prosecution. It is, of course, normal experience, particularly in a large city, that several months elapse between homicide and any subsequent trial for felonious killing. And current interest continues at least until after the accused is tried. However one may look at it, a story of this kind is a normal current news item. Whether such an illustrated story of recent homicide and pending prosecution has informational value or entertainment value or both, it is such a publication of newsworthy occurrence as the privacy cases quite consistently treat as privileged. Any other rule would dangerously and undesirably obstruct the publication of patently newsworthy items by compelling the publisher to speculate as to the value judgments of a judge or a jury with reference to the kind of reader appeal the item offers.
In this case we think that even the appellants would not deny that a January 1954 publication in the Pittsburgh daily papers of the identical story and supporting picture which appeared at that time in Front Page Detective would be a privileged news item. For the purposes of the law of privacy we cannot see how the characters of the item can be affected by the journal in which it appears.
In saying this we do not foreclose the novel question which would arise— whether in defamation or privacy we need not speculate — if it were alleged and shown that a magazine in which an individual’s story and picture appeared was so notoriously scandalous, disgusting or indecent that any featuring therein of one’s name and experience, even in an innocuous or laudatory way, would subject a person of normal sensitivity to embarrassment or humiliation. The mere charge here that the publication was unprivileged is in our view wholly insufficient to put in issue such a special type of wrong as this. Moreover, even if such an allegation appeared, the January 1954 issue of Front Page Detective was before the court. While it is not an intellectual or educational publication and would hardly be characterized as appealing to “elevated tastes”, we find nothing in it. which could fairly be characterized as-disgusting, or indecent, or appealing to “depraved tastes”. A jury should not be permitted to find an otherwise privileged, publication to be tortious because it appears in such an environment as this-magazine provides.
We conclude, as did the district court, that the pictorially illustrated story of which plaintiffs complain is within the-privilege which protects normal news items against claims of tortious invasion of privacy. This conclusion makes it. unnecessary to rule upon appellee’s separate and additional points that the publication was not offensive to normal sensibilities, and that it was protected by plaintiffs’ consent to the taking and original publication of their picture. Of course the judgment below could not be reversed without answering and rejecting all of these arguments.
The judgment will be affirmed.
. “Frank Stevens, a barber who roomed with the Jenkins family in Pittsburgh, Pa., was attacked by a gang of boys one night on his way home. lie broke away from them and told liis landlord what had happened. Jenkins didn’t like the idea of street corner punks beating someone up and he went out to find them. He spoke to some boys standing under a street lamp at the corner. They denied having beaten Stevens. Then they asked Jenkins for a cigaret. When he refused them, they jumped him. Jenkins fell and they kicked viciously at his head and body. Rushed to a hospital, Jenkins, father of six, was reported dead on arrival — brain hemorrhage. Charged with murder was Ronald Abersold. William B. Hindlcy was charged with assault. Four other boys are also being held as material witnesses and on assault charges.”
. See Schnabel v. Meredith, 1954, 378 Pa. 609, 107 A.2d 860, 863.
. Mack Appeal, 1956, 386 Pa. 251, 126 A.2d 679, certiorari denied 352 U.S. 1002, 77 S.Ct. 559, 1 L.Ed.2d 547; Leverton v. Curtis Pub. Co., 3d Cir., 1951, 192 F.2d 974; Hull v. Curtis Pub. Co., 1956, 182 Pa.Super. 86, 125 A.2d 644.
. E. g. denying liability, Schnabel v. Meredith, supra note 2; Sidis v. F-R Pub. Corp., 2 Cir., 1940, 113 F.2d 806, 138 A.L.R. 15, certiorari denied 311 U.S. 711, 61 S.Ct. 393, 85 L.Ed. 462; Elmhurst v. Pearson, D.C.Cir.1946, 153 F.2d 467; Estill v. Hearst Pub. Co., 7 Cir., 1951, 186 F.2d 1017; Berg v. Minneapolis Star & Tribune Co., D.C.D.Minn. 1948, 79 F.Supp. 957; imposing liability, Melvin v. Reid, 1931, 112 Cal.App. 285, 297 P. 91; Cason v. Baskin, 1947, 159 Fla. 31, 30 So.2d 635; Barber v. Time, Inc., 1942, 348 Mo. 1199, 159 S.W.2d 291.
. Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101; Continental Optical Co. v. Reed, 1949, 119 Ind.App. 643, 86 N.E.2d 306, 88 N.E.2d 55, 14 A.L.R.2d 743.
. E. g. Leverton v. Curtis Pub. Co., supra note 3.
. For holdings to this effect, construing the New York statute, see Sidis v. F-R Pub. Corp., supra note 4; Gautier v. Pro-Football, Inc., 1951, 278 App.Div. 431, 106 N.Y.S.2d 553. And see the discussion in Feinberg, Recent Developments in the Law of Privacy, 1948, 48 Col.L.Rev. 713, 719-720.
. “Regretably or not, the misfortunes and frailties of neighbors and ‘public figures’ are subjects of considerable interest and discussion to the rest of the population. And when such are the mores of the community, it would be unwise for a court to bar their expression in the newspapers, books, and magazines of the day.” See Sidis v. F-R Pub. Co., supra note 4, 113 F.2d at page 809.
. See Chaplin v. National Broadcasting Co., D.C.S.D.N.Y.1953, 15 F.R.D. 134, 138-9.
. Cf. Berg v. Minneapolis Star & Tribune Co., D.C.D.Minn.1948, 79 F.Supp. 957; Metter v. Los Angeles Examiner, 1939, 35 Cal.App.2d 304, 95 P.2d 491; Molony v. Boy Comics Publishers, Inc., 1950, 277 App.Div. 166, 98 N.Y.S.2d 119. And see Restatement, Torts, § 867, Comment c.
The courts agree that the privilege of a newsworthy story covers any accompanying photograph reasonably related to it. Abernathy v. Thornton, 1955, 263 Ala. 496, 83 So.2d 235; Metter v. Los Angeles Examiner, 1939, 35 Cal.App.2d 304, 95 P.2d 491; Bremmer v. Journal-Tribune Pub. Co., 1956, 247 Iowa 817, 76 N.W.2d 762; Sarat Lahiri v. Daily Mirror, Inc., 1937, 162 Misc. 776, 295 N.Y.S. 382.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
COFFIN, Chief Judge.
The district court allowed the defendant’s motion to dismiss for failure to state a claim and the plaintiffs appealed. Fed.R.Civ.Pro. 12(b)(6). Given this posture of the case, we accept as true all material allegations in the complaint. Robinson v. Stanley Home Prods. Co., 272 F.2d 601 (1st Cir. 1959); 2A Moore’s Federal Practice ¶ 12.08 (1975). Those facts may be simply stated. The plaintiffs are patrolmen in the Boston Police Department; the defendant is the Police Commissioner. In 1973, the Commissioner ordered the plaintiffs to complete a financial questionnaire, listing all sources of income in 1972 for themselves and their spouses, all significant assets held by them and any members of their households, and, for the years 1966 through 1971, a general estimate of their expenditures and copies of their state and federal income tax returns. The plaintiffs refused to supply this information. The Commissioner held a hearing and suspended them without pay for thirty days. The patrolmen now seek damages, an injunction, and declaratory relief. The gist of their claim is that these events violated “the constitutional and civil rights of the plaintiffs”. They refer specifically to the Fourth, Fifth, Seventh, and Fourteenth Amendments, and to the “right of privacy”.
In evaluating this complaint, the district court relied on one further fact, that the Commissioner demanded this financial information only after he was given cause to suspect the patrolmen’s integrity; their names were apparently found on a list in the possession of a man known to be involved in organized crime. While the reasons behind the Commissioner’s order are relevant, the court erred in considering them, for they are not set out in the complaint, and this was a motion to dismiss for failure to state a claim. See Costen v. Pauline’s Sportswear, Inc., 391 F.2d 81, 85 n. 5 (9th Cir. 1968); Erlich v. Glasner, 374 F.2d 681 (9th Cir. 1967). But the court’s decision should not be set aside if its dismissal of the case can be justified without reference to the Commissioner’s reasons. Cf. O’Brien v. Moriarty, 489 F.2d 941 (1st Cir. 1974).
The plaintiffs attack the financial questionnaire as an invasion of their privacy. In appealing to a broad constitutional “right of privacy”, the plaintiffs seek a shelter of more limited parameters than the commodious label suggests. The Supreme Court in its occasions to deal with the concept of privacy has seemed to refer to autonomy. See, e. g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Henkin, Privacy and Autonomy, 74 Colum.L.Rev. 1410 (1974). And even autonomy has been protected only within a limited sphere: “matters relating to marriage, procreation, contraception, family relationships and child rearing and education.” Paul v. Davis, 424 U.S. 693, 713, 96 S.Ct. 1155, 1166, 47 L.Ed.2d 405 (1976). See also Kelley v. Johnson, 425 U.S. 1440, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); Williams v. Kleppe, 539 F.2d 803 (1st Cir. 1976). Privacy in the sense of freedom to withhold personal financial information from the government or the public has received little constitutional protection. See, e. g., Fritz v. Gorton, 83 Wash.2d 275, 517 P.2d 911 (1974) (rejecting an elected official’s attack on forced financial disclosure), appeal dismissed, 417 U.S. 902, 94 S.Ct. 2596, 41 L.Ed.2d 208 (1974). But cf. California Bankers Ass’n v. Shultz, 416 U.S. 21, 78-79, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (Powell, J., concurring); City of Carmel-by-the-Sea v. Young, 2 Cal.3d 259, 85 Cal.Rptr. 1, 466 P.2d 225 (1970).
This is not to say that there is no constitutional right to guard one’s secrets. But the officers in the instant case do not claim that their financial affairs will be broadcast to the public, or even to other government agencies. There is little doubt that the Internal Revenue Service acted constitutionally in demanding the information supplied on the plaintiffs’ tax returns. And society’s interest in an honest police force is as strong as its interest in a self-reporting tax system. Assuming for argument’s sake that this sort of privacy deserves a special constitutional solicitude, the interests on the Commissioner’s side outbalance a patrolman’s right to withhold financial information. Cf. Kelley v. Johnson, 425 U.S. 1440, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); Williams v. Kleppe, supra, 539 F.2d at 803.
Freedom from disclosure is also protected by more specific guarantees of the constitution. But these plaintiffs do not claim that disclosure is being used to punish or deter their exercise of other constitutional rights. Cf. NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). And even if the Fourth Amendment applies to this sort of intrusion, the Commissioner’s order is not so lacking in justification as to be an “unreasonable” invasion of the patrolmen’s “legitimate expectation of privacy”. See United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Cf. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). See generally Bogomolny, The Right to Nondisclosure, 5 Human Rights 153 (1976). The officers also point to their Fifth Amendment privilege against self-incrimination. This privilege is not infringed when public employees are dismissed for failing to answer questions “specifically, directly, and narrowly relating to the performance of their official duties . .” Uniformed Sanitation Men Ass’n, Inc. v. Commissioner of Sanitation, 392 U.S. 280, 284, 88 S.Ct. 1917, 1920, 20 L.Ed.2d 1089 (1968); Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968). And questions about a policeman’s finances are “specifically, directly, and narrowly” related to his job. Even a hint of police corruption endangers respect for the law. In order to establish an officer’s probity, it may well be necessary to ask, as this questionnaire does, about several years’ income and expenses as well as current assets. Information about other members of the officer’s household must also be revealed if the questionnaire is to have meaning.
Appellants’ second claim is that due process was violated when the Commissioner himself held a hearing to suspend the patrolmen for disobeying his order. This, they believe, was an unlawful combination of functions, conducive to bias. Any per se rule seems foreclosed by Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 43 L.Ed.2d 712 (1975), which declared that claims of this sort must overcome a presumption that state administrators are fair and honest: the court must be convinced of a “risk of actual bias”. Id. at 47, 95 S.Ct. 1456. Appellants argue that Withrow does not control here because the Commissioner, rather than investigating conduct before judging it, “performed conduct which he then adjudged”. Appellants seem to be advancing an unrealistically compartmentalized view of an administrator’s job. See generally Hortonville Joint School Dist. No. 1 v. Hortonville Education Ass’n, 426 U.S. 482, 96 S.Ct. 2308, 49 L.Ed.2d 1 (1976). Without evidence of bias, the Commissioner can constitutionally enforce his own orders by suspending those who disobey them.
Affirmed.
. The questionnaire is attached to, and we treat it as part of, the complaint. See Mengel Co. v. Nashville Paper Prods. & Specialty Workers Union No. 153, 221 F.2d 644, 647 (6th Cir. 1955).
. Undisputed facts outside the complaint may of course be considered if the motion to dismiss is treated as one for summary judgment. 5 Wright & Miller, Federal Practice and Procedure § 1366 (1969). But this route was not followed by the court below, nor was it suggested by the defendants on appeal. Cf. T. M. T. Trailer Ferry, Inc. v. Union de Tronquistas de Puerto Rico, Local 901, 453 F.2d 1171 (1st Cir. 1971).
. The Supreme Court has said that a complaint should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). But when a plaintiff under 42 U.S.C. § 1983 supplies facts to support his claim, we do not think that Conley imposes a duty on the courts to conjure up unpleaded facts-that might turn a frivolous claim of unconstitutional official action into a substantial one. See Hoitt v. Vitek, 497 F.2d 598, 600 n. 1 (1st Cir. 1974); Aubut v. Maine, 431 F.2d 688 (1st Cir. 1970). We are not holding the pleader .to an impossibly high standard; we recognize the policies behind rule 8 and the concept of notice pleading. A plaintiff will not be thrown out of court for failing to plead facts in support of every arcane element of his claim. But when a complaint omits facts that, if they existed, would clearly dominate the case, itseems fair tó assume that those facts do not exist.
. Even in the absence of any basis for suspicion on the part of the Commissioner, a requirement that police officers reveal their finances to the Commissioner serves the public interest in an honest force.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
L. HAND, Circuit Judge.
The plaintiff appeals from a judgment, dismissing his complaint in an action. to recover damages for the violation of the Communications Act of 1934. The complaint was in three counts, of which the judge dismissed the second and third at the conclusion- of the plaintiff’s evidence, but submitted the first to a jury which brought in a verdict for the defendant. The first count was against the defendant, Louis Reitmeister, alone, for “intercepting” and “publishing” a telephone talk between the plaintiff and the defendant, Phillips, and another talk between - the plaintiff and the defendant, Hopp. The second count was for a conspiracy of Reit-meister, Hopp and Phillips, to “goad” the plaintiff into telephone talks with Hopp and Phillips, which they would thereafter “publish”; and the third count was against all the defendants for publicly divulging the two talks in the Surrogate’s Court for Queens County, New York. The plaintiff argues that as to the first count the judge erred in submitting to the jury the issue of his consent to the “publishing” of the two talks; that-he also erred in his rulings as to the admission and exclusion of evidence; and that he was throughout unfair. As to the second count he argues that there was evidence to connect Phillips and Hopp with the “intercepting” and “publishing” of the talks. As to the third count he argues that the “publishing” was not privileged, as the judge held.
The evidence was in substance as follows. The Rcitmeister brothers, Adolph and Louis, had ¡been engaged in business together, but had quarreled and separated; and thereafter had been upon extremely bad terms. The plaintiff’s wife had died a very short time before the events here in question, and the plaintiff professed to believe that Louis had been the cause of her death; but before, as well as alter, his wife’s death, he had been in the habit of calling up Louis on the telephone, threatening his life and assailing him in indecent and intemperate language. He would at times gee a telephonic connection with the defendant, Phillips, an employee in Louis’ office, and be equally offensive. Finally, in the latter part of March, 191-1, Louis became so fearful of his brother that he employed a retired policeman, the defendant Hopp, to serve as a bodyguard in constant attendance. The plaintiff engaged Hopp also upon the telephone in the same vein; and at one time — before April 18th, the. date of the first of the two talks which are the basis of this action- — -Hopp suggested to him that “if somebody listened to these filthy conversations of yours and takes a record of them and brings them into court, then you will have something to think about.” To this Hopp swore that the plaintiff replied: “The hell, use the record, do what you want. I want the world to know about it.” This was the testimony as to the plaintiffs consent to the use of the records on which Louis relied, and which the judge submitted to the jury as a defence.
Some days before April 18th Louis bought a recording machine which would automatically take down what came out of a telephone receiver. He had an extension in his own separate office leading from the main wire, and to the receiver at this extension he could attach the recording machine; his purpose was to get records of the vituperation and threats which almost daily passed to him or his employees from the plaintiff. The first talk which he so recorded was with Phillips, who told Louis that the plaintiff was on the wire, but who swore that Louis had never told her of the recording instrument. The second talk was on April 24th with IIopp. Louis had told Hopp even before the 18th that he was about to buy a recording machine, and, although Hopp’s testimony on cross-examination was somewhat obscure, from it a jury might have found that he knew, when the plaintiff spoke to him on the 24tli, that Louis might be recording the talk.
After obtaining the records Louis played them both to Phillips and PIopp and to his lawyer, Friedman; and he had copies made ■which he lodged with a cousin named Crohn, whom he told to keep them secret. Over a year later, in June, 1942, both records were played in the Surrogate’s Court of Queens County, and it is this “publishing” which is the plaintiff’s chief grievance. It came about as follows. The plaintiff’s wife had made her sister, the defendant Pearl Lippman, executrix of her will, which greatly outraged the, plaintiff, who challenged the executrix’s account. When the case came on before the Surrogate, the plaintiff took the stand and upon his cross-examination, Pearl Lippman’s attorney, the defendant Nachby, asked him whether he had not had the talks with Phillips and Hopp here in question; and upon his denial Nachby offered the records in evidence to establish the falsity of his denials. The Surrogate admitted them and they were read aloud in the court room. Pearl Lippman was a sister-in-law of Louis, and before the trial in Surrogate’s Court came on, Louis had told her of the existence of the records and had given them to Nachby so that they might be used at the trial. It does not appear that either Phillips or Hopp had any part in this “publishing,” but it may be assumed that the defendant, Julius Lippman, the husband of Pearl, shared in it with Louis, Nachby and Pearl. The judge dismissed the second count because he thought that neither Phillips nor Hopp had been privy or confederate to the production of the records, or to any later “publishing.” He dismissed the third count because he held that the “publishing” of the records at the trial in the Surrogate’s Court was privileged. He charged the jury as to the first count that Louis had “intercepted” the talks and would be liable, unless they found that the plaintiff by what he had said to Hopp had consented to the “publishing.”
The first questions are whether the Communications Act of 1934, 47 U.S. C.A. § 151 et seq., imposes a civil, as well as a criminal, liability upon anyone who “publishes” a telephone message, and whether, if so, the District Court had jurisdiction over the action. ' Although the Act does not expressly create any civil liability, we can see no reason. why the situation is not within the doctrine which,_ in the absence of contrary implications, construes a criminal statute, enacted for the protection of a specified class, as creating a civil right in members of the class, although the only express sanctions are criminal. In Newfield v. Ryan, the Fifth Circuit has already implied as much as to § 605; and we too have so suggested ourselves in United States v. Goldstein. That the District Court had jurisdiction, if there was a civil right, is too plain for debate. It is true that in the case at bar the message was not interstate, and verbally the section is limited to interstate and foreign messages; but the Supreme Court has held that the section forbids the “interception” of intrastate messages if sent over interstate wires, and the civil right must be coextensive with the criminal liability. Finally, we think that, when Louis recorded the two talks as he did, he “intercepted” messages within the meaning of the section. In United States v. Polakoff, the message was taken down at the receiver’s office in the same way as here, and we held that -“publishing” it was unlawful. We cannot find that the question has come up again in quite the same form, but the Supreme Court gave our decision at least a limited recognition in Goldstejn v. United States, and unless Goldman v. United States, has .overruled it, we shall accept it as a valid interpretation of the section. We think that Goldman’s case has not done so. The evidence in that case of what Shulman, the sender, had said over a telephone had been recorded upon a “detectaphone” set against a wall in an adjoining room. There was no doubt that the “detectaphone” had “intercepted” Shulman’s message as he spoke it into the receiver in the same sense that an eavesdropper would, who was hidden in a closet; but the court held that the section did not apply to such a situation. The message must be “intercepted” by some mechanical interposition in the transmitting apparatus itself, for the message, though sent over the wire, is not immune from disclosure; but only the interjection of an independent receiving device between the lips of the sender and the ear of the receiver. In the case at bar, Louis recorded the talks which passed along the transmitting wire by means of an instrument, interjected in that wire; and we cannot see why an existing lead off the main circuit was different from a “tap” into the wire, made ad hoc.
The judge charged the jury as to the first cause of action in accord with what we have just said, but left to them the question whether the plaintiff had not consented to the “publishing” of all his messages. The interest protected by the section is the sender’s alone; and the statute expressly recognizes that so far as the sender “authorizes” it, “publishing”' shall be lawful. “Authorization” is equally* valid, though given in advance and in general terms; and it was for the jury to decide what was the scope of the plaintiff’s-consent, as well as whether he consented at all. Indeed one cannot he surprised at the verdict, for the fact that the plaintiff was in general given to indecent and ferocious utterance, betokened a shamelessness which made it not improbable that he was recklessly indifferent to the opinions of others.
The errors which the plaintiff urges as invalidating the verdict, we can very quickly dispose of. The first is that, although the defendants had put in evidence of the plaintiff’s had reputation, the judge refused to allow the testimony of witnesses to his good reputation. If the premise had existed, it would indeed have been an error to refuse; but the premise did not. The evidence of the defendants on which the plaintiff relies was that he had been guilty of equally violent and outrageous outbursts of temper and abuse as well before as after his wife’s death. That was not evidence of reputation and had nothing to do with his reputation as evidencing his character; and he had invited the issue because he had sought to excuse the indecency and intemperance of the recorded talks, on the ground that he was unnerved by the death of his wife. Indeed, as we have said, the second count alleged that Louis, Iiopp and Phillips had combined to “goad” him into language which was not his habit. The defendant’s evidence was highly relevant upon the score of damages, particularly as to the punitive damages which the plaintiff was claiming. As to the plaintiff’s charge, for the most part quite unspecified, that the judge was unfair to him in the conduct of tile trial, we can find not a shred of support for it in the record; on the contrary he exhibited a moderation which must have been indeed difficult in the face of the disclosures of the plaintiff’s shocking habits and his amazing effrontery in asking damages from a jury. The judgment dismissing the first count is affirmed.
As to the second there was no evidence whatever connecting Phillips with the recording of the talks. She denied any knowledge that Louis had bought or installed a recording machine, and Louis denied that he had ever told her of his purchase. Nor was there any antecedent reason for her supposing that he would record the talk of April 18th which was only one of many of the same indecent and scurrilous kind. What we have just said applies to the evidence as it stood at the close of the whole case, although strictly, we should confine our examination to so much only as the plaintiff himself put in, because the judge dismissed the second count at the close of the plaintiff’s case. It makes no difference which time we take in the case of Phillips; but conceivably it might in that of Iiopp, because, as we have already suggested, his cross-examination might perhaps support the conclusion that by April 24lh, he had learned that Louis had a recording machine on which he proposed to record some at any rate of the plaintiff’s talks. Whether, had that been part of the plaintiff’s case, we should have to hold that there was enough to show some concert between Louis and Hopp, we need not say, because at the close of the plaintiff’s evidence there was nothing to connect Hopp with the recording except a passage taken from Louis’ examination before the Surrogate in which he said that he had several times recorded the plaintiff’s talks, and that at times “we could not record it fast enough and Mr. Hopp * * * was talking to him about 15 minutes and we got a record of it and we just wanted to have a sample of the type of language and threatening language he uses.” That was indeed hearsay as to Hopp; but, since it went in without objection we will take it against him. It inculpated him only in case the use of the pronoun “we” necessarily meant Louis and Hopp, which we believe would extend it more than was reasonable. If the plaintiff had meant to rest upon it, he should have gone further.
But even assuming that it was an error for the judge to dismiss the second count at the time he did, we should not reverse the judgment in the posture of the case as it now stands. The second count was for a “conspiracy,” and, for the reasons we have given, the judge was in any event right in dismissing it against Phillips. Thereupon there were at most only two possible conspirators left — Louis and Hopp. However, the judgment upon the first count has now become a good defence to Louis upon the second; for it is either a bar or an estoppel, according to whether we regard the “causes of actions” in the two counts the same or different. This needs no debate if they are for the same “cause of action”; and scarcely more, if they are not, because from the way that the judge left the case to the jury, they must have found that the plaintiff had “authorized” the “publishing” complained of, which would be a good estoppel as to Louis in a new trial upon the second count. Now it is as much a rule governing a civil action for conspiracy as a criminal prosecution, that there must be two conspirators, so that upon a new trial upon the second count, a dismissal would be inevitable. For this reason, even though it were erroneous at the time to dismiss that count, the judgment upon it must now be affirmed.
The third count alleged that all six of the defendants had jointly “published” the “intercepted” messages by playing the records in the Surrogate’s Court. The plaintiff did not connect either Hopp or Phillips with this “publishing” and as to them the dismissal was clearly right. Since the judgment upon the first count was in favor of Louis, as in the case of the second count, upon any new trial that judgment will be a good bar or a good estoppel, so that as to him also the judgment must now be affirmed. So far, my brother Clark and I are in agreement, but he believes for the reasons stated in his opinion that the dismissal of the third count was also right as to the Lippmans and Nachby. Hence it follows that all three of us agree — although for different reasons — that the judgment should be affirmed on the first and second counts and on the third count as to Louis, Hopp and Phillips; and that two of us — Judge Chase and Judge Clark — think that the judgment on the third count should be affirmed as to the Lippmans and Nachby also, although again for different reasons. I am alone in thinking that the judgment on that count should be reversed as to them and for the following reasons. Although at the close of the plaintiff’s case it did not appear how they became acquainted with the “contents” of the records, it was a fair, I might even say an inevitable, inference that they must have become so through Louis, directly or indirectly. How else they could have produced the records themselves in the Surrogate’s Court I do not see; at least they were put to their proof to show the contrary. (In fact, Pearl Lippman later testified that she had got them from Crohn to whom Louis had delivered them.) As I read the statute, any one who becomes “acquainted” with the “contents” of an “intercepted” message, rnay not “publish” it if he knows that it has been “intercepted” ; and the records betrayed on their face that the talks had been “intercepted”; and put upon the Lippmans and Nachby the duty of going forward with the proof that the plaintiff, as “sender,” had consented. Nor can they avail themselves of the judgment in Louis’ favor on the first count, although it protects him individually. They were by hypothesis joint tort-feasors with him and except in exceptional cases joint tort-feasors are not “in privity.” Maybe on a trial they could prove that the case at bar was one of the few situations in which the opposite is true, and I would leave that open; but on this record it was otherwise. The fact that as to Louis, it must be assumed that the plaintiff consented does not mean that he. consented as between himself and the Lippmans and Nachby. (Incidentally, the third count is not for a conspiracy and the rule peculiar to that kind of suit does not apply; indeed, it would make no difference anyway, because certainly Pearl Lippman and Nachby were jointly concerned in the “publication” in the Surrogate’s Court.) Hence it seems to me that these three defendants had to show some privilege to "publish,” if they were to avoid a verdict.
The judge dismissed the third count because he held that all six defendants were absolutely privileged to use the records in the Surrogate’s Court in defense of Pearl Lippman. Whether that was true depends upon whether § 605 made them available as evidence in that court; and that is not a question of state law. Congress within the scope of its powers is paramount; so far as it saw fit to say that telephone messages should not be “published,” the state law must yield. It is true that § 605 excepts from its prohibition “publishing” the message “in response to a subpoena issued by a court of competent jurisdiction, or cm, demand of other lawful authority”; but it may well be true, as Judge Clark says in his opinion, that this applies only to “employes of the carrier.” If so, the statute forbids any one to “publish” an “intercepted” message even under subpoena; and it would have been unlawful for the Lipp-mans or Nachby to introduce the records in evidence in the Surrogate’s Court, no matter what process they used. If on the other hand, we assume that the exception extends to others than employees, still I think that it would not have protected them, even though they were in as strong a position as though they had issued a subpoena to Louis. It is somewhat hard to imagine a situation in which a person interested in “publishing” an “intercepted” message could get the information which made it possible for him to subpoena the “interceptor,” unless he did so through an unlawful “publishing” of the “interceptor” himself; and perhaps for that reason the question is academic whether the exception applies to others than “employees of the carrier.” Be that as it may, in the case at bar the Lippmans and Nachby did in fact get their information, directly or indirectly, from Louis through an unlawful “publishing,” which was independent of, and subsequent to, Louis’ original “interception” ; and, as I read the second opinion in the Nardone prosecution, that made unlawful all evidence so procured. Indeed, here the case was stronger against the competence of the records than it was in the Nardone prosecution against the testimony there held incompetent; for here the production, being a new “publishing,” was itself a wrong unless excused, while there the testimony adduced at the trial was itself innocent, and was held to he incompetent only because it bore the taint of its acquisition. Thus, whether the exception applies generally or not, it seems to me that the judge should have taken a verdict on the third count.
I cannot believe that in such actions a jury may not award damages for “mental suffering.” Tn this respect I should assimilate them to actions for defamation, or for the violation of “privacy,” where that is actionable.
Judgment affirmed.
§ 605, Title 47 U.S.C.A.
Parker v. Barnard, 135 Mass. 116, 46 Am.Rep. 450; Amberg v. Kinley, 214 N. Y. 531, 108 N.E. 830, L.R.A.1915E, 519; Couch v. Steel, 3 E. & B. 402. Restatement of Torts § 286.
91 F.2d 700, 703.
120 F.2d 485, 480.
§ 41 (1), § 41 (S), Title 28 U.S.C.A.
Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298.
2 Cir., 112 F.2d 888.
316 U.S. 114, 121, 62 S.Ct. 1000, 86-L.Ed. 1312.
316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322.
Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465, 41 S.Ct. 172, 65 L.Ed. 349, 16 A.L.R. 196; Lynch v. Mag-navox et al., 9 Cir., 94 F.2d 883, 888, 889.
Nardone v. United States, 302 U.S. 379, 381, 58 S.Ct. 275, 276, 82 R.Ed. 311.
Nardone v. United States, 308 U.S. 838, 60 S.Ct. 266, 84 L.Ed. 307.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
PER CURIAM.
On June 2, 1975 a panel of this court filed an amended opinion holding that the plaintiffs in this civil rights case, which was prosecuted as a class action, were entitled to declaratory and injunctive relief. In addition, the court determined that notwithstanding the holding of the Supreme Court in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), plaintiffs were entitled to an award of an attorney’s fee against the defendant, John H. Poelker, Mayor of the City of St. Louis, Missouri. This court fixed a fee of $3500.00 as compensation for the services of plaintiffs’ counsel at the appellate level, and remanded the case to the district court with directions to fix a fee for the services of counsel in that court. Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975).
With specific regard to the attorney’s fee to be awarded the court said (515 F.2d at 548):
On remand the district court is directed to determine attorneys’ fees and to award them to Doe, together with court costs, against the defendant Poelker for that portion of the case carried on in that court. This should be a fair award based on the guidelines listed in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717-719 (5th Cir. 1974).
Pursuant to the mandate of this court, the district court held an evidentiary hearing. It found that $9317.50 would be a reasonable fee for the district court services of plaintiffs’ counsel, but on the basis of a statement appearing in the opinion in the Johnson case, supra, the district court concluded that no fee should be allowed since the plaintiffs were not contractually obligated to pay any fee, fixed or contingent, to their attorney. An order denying plaintiffs’ application for a fee was entered. Plaintiffs appeal.
Johnson was an individual and class action brought ultimately by two Negroes under Title YII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; they claimed racial discrimination in employment and sought back pay and injunctive relief. The defendant initially objected to the maintenance of the action as a class suit and also demanded a jury trial on the legal issues presented by the complaint. The district court upheld the defendant on both points. Johnson v. Georgia Highway Express, Inc., 47 F.R.D. 327 (N.D.Ga. 1968). The Court of Appeals for the Fifth Circuit reversed. Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122 (5th Cir. 1969). Thereafter, the case was tried on the merits, and the plaintiffs prevailed. They were represented throughout by practicing Georgia lawyers, some of whom at least were connected with the NAACP, and by a New York lawyer also associated with the organization just mentioned. The district court allowed the plaintiffs a substantial attorneys’ fee which plaintiffs deemed insufficient, and they appealed.
The court of appeals was of the opinion that the district court had not spelled out with sufficient clarity the factors which it took into consideration in fixing the fee and remanded the case for reconsideration in the light of twelve specific factors which the appellate court mentioned.
One of those factors was whether counsel were representing the plaintiffs on a contingent rather than a fixed fee basis if, in fact, the parties had made any agreement as to a fee. After quoting from Clark v. American Marine Corp., 320 F.Supp. 709, 711 (E.D.La. 1970), aff’d 437 F.2d 959 (5th Cir. 1971), the court said (488 F.2d at 718):
In no event, however, should the litigant be awarded a fee greater than he is contractually bound to pay, if indeed the attorneys have contracted as to amount.
On the basis of that language the district court reasoned in the instant case that the obligation of a losing defendant to pay a judicially imposed attorney’s fee to a successful plaintiff does not exceed in amount the fee that the plaintiff would be obligated contractually to pay to his lawyer in the absence of any judicial award, and that where the plaintiff’s contractual obligation to his lawyer is zero, the defendant’s obligation with respect to the court imposed fee is also zero.
We do not think that the language from Johnson, quoted above, when read in context and in connection with the opinion of the district court in Clark v. American Marine Corp., supra, is fairly susceptible to the construction that the court below evidently placed upon it.
The district court wisely entered his evidentiary findings with respect to a reasonable fee notwithstanding his conclusion that such fees could not be awarded. We accept the district court’s determination that in the light of the Johnson factors the sum of $9317.50 would be a reasonable fee for the services of plaintiff’s counsel in the district court, and we remand the case with directions to the district court to enter an order awarding that amount against the defendant Poelker.
Counsel for plaintiffs asks that we award an additional fee for his services in connection with this appeal. We decline to do so.
Reversed and remanded.
. See also Doe v. Poelker, 497 F.2d 1063 (8th Cir. 1974).
. Senior Circuit Judge Van Oosterhout, a member of the panel, dissented from so much of the holding as allowed an attorney’s fee at either the appellate or the district court level without a prior finding of bad faith by the district court.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | A | songer_casetyp1_5-3 |
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 "privacy".
FREDERICK van PELT BRYAN, District Judge:
Appellants here are the Commissioner of Welfare of the State of Connecticut and two other officials of the Connecticut Welfare Department charged with the administration of the State Medical Assistance Program. They appeal from a judgment of the United States District Court for the District of Connecticut (Jon O. Newman, J.) which declared invalid and enjoined the enforcement of a Connecticut Welfare Department regulation on the ground that the regulation was contrary to Title XIX (the Medicaid provisions) of the Social Security Act, 42 U.S.C. § 1396 et seq.
The challenged regulation, Connecticut Welfare Department, Public Assistance Program Manual, Vol. 3, Ch. Ill, Section 275, required that as a pre-condition to coverage of abortion services for women in Connecticut eligible for Medicaid, the abortion must be a therapeutic one, recommended by the attending physician and the Chief of Obstetrics and Gynecology in the accredited hospital as “medically or psychiatrically necessary”. Under the regulation, a prior authorization request is required which must include a “statement indicating the medical or psychiatric need for the abortion” and also a form which certifies that in the opinion of the attending physician the abortion “is medically necessary for the patient’s health”, signed by the physician and attested by the Chief of Obstetrics and Gynecology.
The judgment appealed from was entered in a class action brought by two indigent women eligible for Medicaid payments and recipients of Aid to Dependent Children from the State of Connecticut. The suit challenged Section 275 as both contrary to Title XIX of the Social Security Act and in violation of several provisions of the United States Constitution, including the equal protection and due process clauses of the Fourteenth Amendment.
Plaintiff Susan Roe, 26 years old and the unmarried mother of three small children, was seven weeks pregnant at the time suit was instituted. She desired an abortion to avoid further family burdens and complications. Her attending physician believed the abortion to be a medically appropriate procedure and was willing to perform it. However, in his opinion it was not medically necessary in the sense that the patient’s life or health would be threatened if the abortion was not performed. Roe was therefore unable to obtain the certification required by Section 275 that the abortion was recommended “as medically or psychiatrically necessary”. She was thus not entitled to reimbursement from the state for the cost of the abortion and she was unable to pay for the abortion herself. She sued on behalf of herself and a class consisting of all pregnant women eligible for medical assistance from the State of Connecticut who had been refused such assistance for the performance of a requested abortion authorized by a physician.
Plaintiff Mary Poe, a 16-year-old high school student, suing by her mother and next friend, had had an elective abortion at a Bridgeport, Connecticut hospital. She did not obtain the certification required by Section 275. The Connecticut Welfare Department therefore refused to pay her hospital bill. Poe sued on behalf of herself and all women eligible for Connecticut medical assistance who had undergone abortions for which Medicaid payment had been refused by the State.
The action was brought under 42 U.S.C. § 1983 and jurisdiction was based on 28 U.S.C. § 1343(3). Judgment was sought declaring that Section 275 was invalid and enjoining its enforcement.
Plaintiffs moved before Judge Newman for a class action determination under Rule 23, F.R.Civ.P.; for the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284; and for summary judgment.
Defendant welfare officials acknowledged that under the decisions of the Supreme Court in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973) and Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973); and of the three-judge court in Abele v. Markle, 369 F.Supp. 807 (D.Conn.1973), pregnant women in Connecticut, at least in the first trimester of pregnancy, were free to have an abortion on the advice of their own physicians. However, defendants’ position was that the Medicaid provisions of the Social Security Act (Title XIX) prohibited federal reimbursement for the costs of an abortion unless the abortion was medically necessary for the woman’s physical or psychiatric health. They asserted that Section 275 had been adopted only because the restrictions it imposed were required by Title XIX and would not otherwise have been in force. Connecticut has consistently adhered to that position, both in the district court and on this appeal.
Judge Newman found the action was properly maintainable as a class action under Rule 23(b)(2) and that plaintiffs’ claim that Section 275 violated the Constitution was substantial enough to confer jurisdiction on the district court pursuant to 28 U.S.C. § 1343(3) in an action under 42 U.S.C. § 1983. Roe v. Norton, 380 F.Supp. 726, 728 (D.Conn.1974). The determination of the constitutional question would ordinarily have required the convening of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284. However, Judge Newman found, 380 F.Supp. at 728, that plaintiffs’ contention that Section 275 was contrary to Title XIX of the Social Security Act presented a statutory claim pendent to the constitutional claim which could be determined by a single judge without convening a three-judge court. Hagans v. Lavine, 415 U.S. 528, 543-545, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
Judge Newman therefore proceeded to pass only on the pendent statutory claim that Section 275 was invalid as contrary to Title XIX of the Social Security Act. He analyzed the relevant provisions of Title XIX in the context of federal reimbursement for abortion services and gave weight to the views of the Department of Health, Education and Welfare (H.E.W.) that “under Title XIX, federal financial participation is available for any abortions for which the state welfare agency provides payment.” Finally, he expressed the view that there were substantial doubts as to the constitutionality of Title XIX in the light of Roe v. Wade, supra and Doe v. Bolton, supra, and that the statute must be construed so as to avoid such doubts. 380 F.Supp. at 730.
Judge Newman concluded (1) that Title XIX did not limit Medicaid reimbursement for abortions under a state medical assistance program to those medically necessary for the health of the patient, but permitted payment for elective abortions as well; and (2) that Title XIX prohibited state regulations that “impair a woman’s exercise of her right, in consultation only with her physician, to have an abortion,” whether medically necessary or elective. He therefore held that Section 275 was invalid as contrary to Title XIX and that its enforcement should be enjoined, and entered judgment to that effect. 380 F.Supp. at 730.
Three different points of view concerning the meaning and effect of Title XIX as to coverage for abortion services are presented on this appeal.
In an amicus curiae memorandum submitted at the request of this Court subsequent to argument, H.E.W. elaborates on the views expressed on its behalf in the court below. H.E.W. takes the position (1) that Title XIX does not preclude a state Medicaid program from paying for abortions which are not “medically necessary”; but (2) that Title XIX does not require a state to make Medicaid payments for abortions which are not “medically necessary.” In effect, H.E.W. disagrees with the holding of the court below that Title XIX prohibits state regulations denying Medicaid payments for abortions which are not “medically necessary.”
The Connecticut appellants, on the other hand, contend that Title XIX not only does not require a state to include under its Medicaid plan coverage of an abortion which is not “medically necessary,” but prohibits coverage of such an abortion. They insist, as they did below, that the Section 275 restrictions on coverage of abortions are mandated by Title XIX. They therefore seek reversal of the judgment below in all respects.
The appellee-plaintiffs, in turn, take the position that Title XIX both permits state Medicaid payments for elective abortions and prohibits regulations which deny payments for elective abortions. They urge that the district court was correct in holding that Section 275 was invalid as contrary to Title XIX and that the judgment below should be affirmed in all respects.
At the outset, clarification of the meaning and effect of Section 275 is in order. Despite the apparent reluctance of the Connecticut appellants to say so, it is clear from a reading of Section 275 that abortions which are deemed “medically necessary” under the regulation are therapeutic abortions, necessary for the health of the patient, as distinguished from elective abortions requested by a woman after consultation with her physician merely because, for whatever reasons, she does not wish to bear the child. Thus, the question as to whether Section 275 is contrary to Title XIX is not, as appellants seem to suggest, whether a physician’s certificate approving the abortion may be required before reimbursement is made for abortion service. The questions here are (1) whether Title XIX permits state Medicaid payments for elective abortions or, as Connecticut urges, requires a state to limit abortion coverage to non-elective abortions as provided in Section 275; and (2) whether Title XIX prohibits a state from limiting Medicaid payments for abortions to those therapeutic abortions specified in Section 275 and from denying payments for elective abortions.
I.
We have little difficulty in agreeing with the holding of the court below and the first position of H.E.W. that Title XIX permits state Medicaid coverage for nontherapeutic, elective abortions. We find nothing in the statute which precludes or limits such coverage.
The Medicaid program established by Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., provides a comprehensive scheme of federal financial assistance to enable states electing to participate to furnish medical assistance to indigent families with dependent children and aged, blind and disabled persons. The program is administered by the participating states and jointly funded by federal grants-in-aid and participating states.
In order to qualify for federal funding, a state medical assistance program must meet the requirements of 42 U.S.C. § 1396a. These requirements relate principally to the standards, quality and scope of medical, institutional, nursing and other services provided. For the four basic classes of eligible indigents a state must, at a minimum, provide the following five categories of services: (1) in-patient hospital services; (2) out-patient hospital services; (3) other laboratory and x-ray services; (4) skilled nursing facility services; early and periodic screening; diagnosis and treatment of children; family planning services and supplies; and (5) physicians’ services. 42 U.S.C. §§ 1396a(a)(13)(B), 1396d(a)(l)-(5). As to these five categories of services, all that is required is that the state plan include “reasonable standards * * for determining eligibility for and the extent of medical assistance * * * consistent with the objectives of [Chapter XIX].” 42 U.S.C. § 1396a(a)(17). Medical assistance must be provided “with reasonable promptness to all eligible individuals.” 42 U.S.C. § 1396a(a)(8).
Beyond the minimal requirements for qualification, the states have wide latitude to determine the scope of coverage and to institute wide-ranging and comprehensive medical programs under their medical assistance plans. Section 1396d(a) defines the term “medical assistance” to mean payment for 17 different authorized types of care and services. In addition to the five types required for qualification (subsections 1 — 5), among the 12 other authorized types within that definition are: (6) “medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice as defined by State law”; (13) “other diagnostic, screening, preventive, and rehabilitative services”; and (17) “any other medical care, and any other type of remedial care recognized under State law, specified by the Secretary”. As H.E.W. points out, “* * * the programs are characterized by a high degree of diversity from state to state, reflecting each state’s own determination of its medical and social priorities.”
Nowhere in this long and complicated statute do we find any limitation on Medicaid payments for abortions. Indeed, the statute is devoid of any reference at all to abortions or abortion services. In our view, payments for all abortion services, whether the abortion be therapeutic or elective, are well within the definition of medical assistance which the states are authorized to furnish, as spelled out in Section 1396d(a).
The contention of the Connecticut appellants, that Title XIX forbids Medicaid payments for elective abortions, is based on two premises. The first is that under Title XIX Medicaid payments are authorized only for services which are “medically necessary” and for no others. The second is that under Title XIX abortion services are “medically necessary” only when the abortion is therapeutic and not when it is elective.
To support their first premise, appellants rely on the use of the phrase “medically necessary services” in two places in the statute. In each place the phrase is used to describe persons eligible for “medical assistance” as those who are “unable to meet the costs of necessary medical * * * services.” Sections 1396 and 1396a(10)(C)(i). As the opinion below points out, 380 F.Supp. at 728 — 729, the phrase appears in Title XIX
“only as a limitation on persons eligible for Medicaid payments. * * * [T]he assistance to be made available to those who are eligible is always described simply as ‘medical assistance’ without the adjective ‘necessary’. See, e. g., 42 U.S.C. §§ 1396, 1396a(a), 1396a(a)(10). In particular, the detailed statutory definition of ‘medical assistance,’ 42 U.S.C. § 1396d, contains no reference to medical necessity * * *
The broad classifications of the types of care and services authorized by § 1396d do not include a “medical necessity” requirement. See p. 933, supra. We find no such requirement elsewhere in the statute.
Appellants’ second premise is also faulty. Even if the statute limited Medicaid payments to medical services which are “necessary”, there is nothing in Title XIX, expressed or implied, from which it can be concluded that elective abortion services are to be considered not “medically necessary”. Nor has anything come to our attention, by way of legislative history or otherwise, which would indicate that Congress intended such a result.
Pregnancy is plainly a physical condition which requires medical attention. The nature of the services to be rendered is a matter between patient and doctor. If the woman carries the pregnancy to term, such services will normally include prenatal care, obstetrical services and post partum care. If, on the other hand, the woman elects to ter-' mínate her pregnancy by having an abortion permitted by law (in the first trimester, or otherwise), the medical services required are those in performing the abortion and in appropriate care thereafter. The care and services rendered in either of these circumstances would be equally “necessary” if such a showing were required by Title XIX.
Whether or not a showing of “necessity” • is required, Title XIX clearly does not bar state Medicaid payments for elective abortions or federal grants-in-aid to a state for such purposes. Medicaid payments for elective abortions are, at the least, permissible under the federal statute. We so hold.
It will be recalled that the Connecticut appellants have taken the position throughout this litigation that the restrictions on Medicaid payments for elective abortions in Section 275 of the Connecticut regulations were adopted only for the reason that they were thought to be required by Title XIX and would not otherwise be in effect. Our holding that Title XIX imposes no such requirement eliminates what Connecticut thought to be the necessity for adopting Section 275 and opens the door for Connecticut to rescind the restrictions which Section 275 imposes. Presumably, Connecticut took its position in good faith and thus rescission of Section 275 might be expected. In such event, the holding thus far made would be dispositive of this litigation.
However, the Connecticut appellants also contend on this appeal that even if Title XIX does not require a state to impose the restrictions on reimbursement ‘for abortion services imposed by Section 275, the statute nevertheless permits a state, at its option, to impose such restrictions, and urges reversal of the judgment below insofar as it holds to the contrary. H.E.W. is of the same view. We therefore proceed to a discussion of that issue.
II.
\Ve disagree with the court below insofar as it held that Title XIX prohibits state regulations such as Section 275 which deny Medicaid coverage for elective abortions. In our view, while Title XIX permits federal reimbursement for elective abortions, it does not forbid state regulations limiting Medicaid payments for abortions to those which are therapeutically necessary for the health of the pregnant woman. This construction of the statute is in accord with the view expressed by H.E.W. on this appeal.
When Congress enacted Title XIX in 1965, abortions which are not therapeutically necessary, either for the life or health of the pregnant woman, were unlawful in most states. As late as 1973, 31 states had statutes on the books forbidding the performance of elective abortions. Roe v. Wade, supra, 410 U.S. at 118, n. 2, 93 S.Ct. 705. It was not until some eight years after the passage of Title XIX that Roe v. Wade, supra and Doe v. Bolton, supra, held that such state legislation, at least in the first trimester of pregnancy, was unconstitutional. During those eight years the abortion question in its various aspects was highly controversial.
The court below did not point to any provision of Title XIX which prohibits state regulations denying Medicaid coverage for elective abortions. There is certainly no mention of abortion or abortion services in Title XIX. A thorough combing of the statute does not lead us to any language which directly or inferentially can be construed as prohibiting state regulations such as Section 275.
Moreover, no intention to prohibit state regulations of that nature can be ascribed to Congress. There is no legislative history to support the view that by enacting Title XIX Congress intended to prohibit states from denying Medicaid coverage for elective abortions.
A statute must be construed with reference to the circumstances existing at the time of its passage and in the light of the conditions under which Congress acted at the time. Moor v. County of Alameda, 411 U.S. 693, 709, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); United States v. Wise, 370 U.S. 405, 411, 82 S.Ct. 1354, 8 L.Ed.2d 590 (1962); United States v. Rothberg, 480 F.2d 534, 535 (2d Cir.), cert. denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973); Ries v. Lynskey, 452 F.2d 172, 175 (7th Cir. 1971). Cf. Department of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973); Hamar Theatres, Inc. v. Cryan, 365 F.Supp. 1312 (D.N.J.1973) (three-judge court), vacated and remanded for consideration of mootness, 419 U.S. 1085, 95 S.Ct. 670, 42 L.Ed.2d 675 (1974). In the light of the circumstances and conditions at the time the statute was enacted, the absence of any language in the statute regarding the subject, and the lack of legislative history indicating a contrary position, it cannot be supposed that Congress, in 1965, intended to or did impose a requirement that states must provide coverage for elective abortions when the criminal statutes of the majority of the states forbade the performance of such abortions.
The construction given to the statute by the court below rests solely on the premise that Title XIX “must be” so construed “to avoid doubts as to [its] constitutionality” since to construe it otherwise “would raise substantial constitutional questions in light of the Supreme Court’s decisions in Roe v. Wade, supra, and Doe v. Bolton, supra.” 380 F.Supp. at 730. The construction of the statute based on this reasoning allowed the court below to decide the case on the purely statutory ground that Section 275 was invalid as contrary to Title XIX, a question that could be determined by a single district judge. It avoided the requirement of convening a three-judge district court pursuant to 28 U.S.C. § 2281 to hear and determine the question of the constitutionality of Section 275.
We disagree with the reasoning on which the court below based its construction of the statute. As has been indicated, Roe v. Wade, supra and Doe v. Bolton, supra, were decided some eight years after Title XIX was enacted. Their holdings were, at the least, unpredictable at the time the statute was enacted and for some time thereafter. We think that this statute should not be construed to include a requirement which is not contained in its language and which Congress did not intend it to contain, merely on the ground that doubts as to its constitutionality have been raised by cases decided after its enactment.
Moreover, here the plaintiffs’ challenge is not to the constitutionality of Title XIX in the abortion context, but to the constitutionality of Section 275 of the Connecticut regulations. This is the basic constitutional question involved, the answer to which will dispose of the litigation.
The cases in which restrictive state Medicaid abortion policies have been challenged on both statutory and constitutional grounds are in accord with our view that Title XIX does not forbid state regulations denying Medicaid payments for elective abortions.
In Roe v. Ferguson, 515 F.2d 279 (6th Cir. 1975), the Court of Appeals for the Sixth Circuit in a well-reasoned opinion recently reached the same conclusion with respect to the construction of Title XIX as we have reached here. An Ohio statute and administrative rulings thereunder prohibited state Medicaid payments for abortions unless the abortion was necessary to preserve the physical and mental health of the pregnant woman. An action was brought by pregnant indigent women challenging the Ohio statute and rulings as being both contrary to Title XIX of the Social Security Act and in violation of the due process and equal protection clauses of the Fourteenth Amendment. The district court construed Title XIX as prohibiting states participating in the Medicaid program from denying payments for elective abortions and entered judgment enjoining enforcement of the Ohio statute and rulings solely on that ground. The single district judge thus avoided the constitutional questions raised by the plaintiffs and the necessity for convening a three-judge district court to hear and determine such questions.
The Sixth Circuit reversed, holding, among other things, that the construction given to the Medicaid statute by the court below was wrong and that Title XIX itself did not require states participating in the Medicaid program to pay for elective abortions.
In Doe v. Wohlgemuth, 376 F.Supp. 173 (W.D.Pa.1970) (three-judge court), vacated and remanded on other grounds, Nos. 74-1726, 74-1727 (3d Cir. Dec. 10, 1974), rehearing en banc pending, a state statute, and in Doe v. Rose, 499 F.2d 1112 (10th Cir. 1974), a state policy, which, in effect, excluded Medicaid coverage for elective abortions, were challenged on both statutory and constitutional grounds. In each case, the court refused to find that the state policy was in conflict with Title XIX and proceeded to decide the cases on constitutional grounds. Both of these cases are thoroughly discussed in Roe v. Ferguson, supra, at 282-283, and there is no need to repeat that discussion here.
In Klein v. Nassau County Medical Center, 347 F.Supp. 496 (E.D.N.Y.1972) (three-judge court), vacated and remanded in light of Roe v. Wade and Doe v. Bolton, 412 U.S. 925, 93 S.Ct. 2747, 37 L.Ed.2d 151 (1973), the first of the cases in which restrictive state abortion policies were challenged on statutory and constitutional grounds, the three-judge district court refused to decide the case on the statutory ground and held the state policy invalid on constitutional grounds. See also Doe v. Westby, 383 F.Supp. 1143 (D.S.D.1974) (three-judge court), vacated and remanded in light of Hagans v. Lavine, 415 U.S. 528, 543—545, 94 S.Ct. 1372, 1382-1383, 39 L.Ed.2d 577 (1974); 420 U.S. 968, 95 S.Ct. 1385, 43 L.Ed.2d 648 (1975).
We hold that Title XIX of the Social Security Act does not prohibit state regulations denying Medicaid coverage for elective abortions, and that Section 275 of the Connecticut regulations is not invalid as in conflict with Title XIX. We reverse the holding of the court below to the contrary.
III.
In holding that Section 275 is not invalid as contrary to Title XIX of the Social Security Act, we do so only upon statutory grounds. We do not reach or attempt to pass on the questions raised by the appellee-plaintiffs as to the constitutionality of Section 275. Those questions remain open.
The appellee-plaintiffs have urged that if we reverse on the statutory grounds, this court should not remand the case to the district court for further proceedings but should determine the constitutional questions presented. We decline to do so.
The question of whether or not Section 275 is unconstitutional has quite properly been held by the district court to be “plainly substantial enough” to invoke the jurisdiction of the federal court. 380 F.Supp. at 728. The unconstitutionality of Section 275 is not, as the appellee-plaintiffs urge, so obvious and patent as to make any claim to the contrary wholly insubstantial or no longer open to discussion. See Hagans v. Lavine, supra, 415 U.S. at 536-538, 94 S.Ct. 1372, 39 L.Ed.2d 577, and cases there cited. Nor are the decisions of the Supreme Court in Roe v. Wade, supra, and Doe v. Bolton, supra, so controlling as to make frivolous any claim that Section 275 is not constitutional. See Bailey v. Patterson, 369 U.S. 31, 33, 82 S.Ct. 549, 7 L.Ed. 512 (1962); Maggett v. Norton, 519 F.2d 599, 601 (2d Cir. 1975). In Roe v. Wade, supra, and Doe v. Bolton, supra, the Supreme Court invalidated state criminal statutes prohibiting nontherapeutic abortions, at least in the first trimester of pregnancy, on constitutional grounds. The question of the right of a state to restrict payments for abortions under social welfare programs such as Medicaid was not before the Supreme Court in those cases and has not been passed on by the Court. Despite lower court decisions holding such restrictions unconstitutional, it cannot be said that this issue has been put to rest by the Supreme Court.
We agree with the Sixth Circuit in Roe v. Ferguson, supra, that the question of whether state restrictions of Medicaid payments for elective abortions are constitutionally impermissible comes within the three-judge court requirement of 28 U.S.C. § 2281 and should properly be determined by such a court, as Congress has directed.
We emphasize again, however, that we express no views whatever on the merits of the constitutional issues raised here.
Plaintiffs cite Wisdom v. Norton, 507 F.2d 750 (2d Cir. 1974), petition for rehearing pending; Seergy v. Kings County Republican Committee, 459 F.2d 308 (2d Cir. 1972); and Astro Cinema Corp., Inc. v. Mackell, 422 F.2d 293 (2d Cir. 1970), as authority for this court to decide the constitutional question rather than remand to the district court. In these cases the Court of Appeals passed on questions determined by a single district judge where a request had been made to convene a three-judge district court pursuant to 28 U.S.C. § 2281 to hear and determine constitutional questions. Each of these cases was quite different from the case at bar.
In Wisdom, the result before a three-judge district court was “foreordained” by the determination of the statutory issues by the Court of Appeals. 507 F.2d at 758. In Seergy, the Court of Appeals refused to remand for purposes of convening a three-judge court because plaintiffs had abandoned their prayer for injunctive relief and thus a three-judge district court pursuant to 28 U.S.C. § 2281 was no longer required. 459 F.2d at 312.
In Astro Cinema, the Court refused to reverse a denial by the district court of an application to convene a three-judge court pursuant to Section 2281 because in view of the holding of the Court of Appeals as to the other questions before it “to do so would be futile”. 422 F.2d at 298.
These cases are not apposite to the case at bar. Our holding on the statutory issues presented has no effect on the constitutional issue, which stands on its own feet. An injunction is sought restraining the enforcement of a regulation of the State of Connecticut on the. ground of unconstitutionality which must be “heard and determined by a district court of three judges” pursuant to 28 U.S.C. § 2281. Remand is not only appropriate but required. See Hagans v. Lavine, supra, 415 U.S. at 543-545, 94 S.Ct. 1372, 39 L.Ed.2d 577; Maggett v. Norton, supra, 519 F.2d at 602.
There is an additional compelling reason for remand to the district court in this case.
As we have pointed out, supra 931,934 the position of the Con-necticut appellants throughout this litigation has been that Section 275 was adopted and kept in force only because of the belief that it was required by Title XIX, and that the Section would not be enforced otherwise. Since we have decided that Title XIX contains no such requirement, Connecticut’s reason for having Section 275 in force no longer exists and, to be consistent, Connecticut should eliminate Section 275 and its restrictions. Connecticut will have the opportunity to do so before the district court on remand and thus there may be no need to pass on the constitutional questions raised by the appellee-plaintiffs.
We reverse the judgment appealed from and remand to the district court for further proceedings consistent with this opinion.
. Section 275 provides, in relevant part:
275 Abortion Services
An abortion may be performed on a patient only when medically necessary and after the legal consent to such procedure has been obtained.
Therapeutic abortion services within the State are covered under Title XIX when all the following conditions are met:
1. The abortion is recommended as medically necessary by the attending physician and the Chief of Obstetrics and Gynecology in accredited hospitals.
2. The written consent for the abortion is secured from the patient or her conservator, and in the case of a minor from the parent or guardian.
3. Prior authorization for the abortion is secured from the Division of Health Services, Welfare Department.
Procedures
1. Legal Consent
The hospital in which the requested abortion is to be performed will submit Form W-217, “Letter Requesting Certification for Reimbursement — Abortion”, to Health Services in Central Office, certifying that the patient, conservator, parent or guardian has requested the performance of an abortion. This is signed by the attending physician and the Chief of Obstetrics and Gynecology in the hospital.
2. Authorization for Payment
In addition, Form W-601, “Request for Authorization for Professional Services”, must accompany Form W-217 and should include a statement indicating the medical or psychiatric need for the abortion.
. A temporary restraining order was obtained on consent of the parties prohibiting defendant welfare officials from refusing to pay the cost of an abortion for Roe.
. Abele v. Markle, supra, held unconstitutional a Connecticut statute prohibiting all abortions except those “necessary to preserve the physical life of the mother”.
. These views were contained in a letter to plaintiffs counsel from the Associate Commissioner of H.E.W.’s Social and Rehabilitation Service, which was presented to the district court.
. Our brother Mulligan’s concurring and dissenting opinion indicates that the legislative history of Public Law 89-97 (entitled Social Security Amendments, 1965) and particularly the report of the Senate Committee supports the view that the so-called medical necessity requirements of Title XVIII, the Medicare statute, apply to Title XIX, the Medicaid statute, which is involved here. We express no opinion on whether such a “medical necessity” requirement exists for Title XVIII. But assuming that it does, the argument overlooks the fact that Title XVIII and Title XIX are discussed and treated separately in the Senate Report which points out significant differences between the two. Thus, while the Senate Report states that Title XVIII “would require that payment could be made only if a physician certifies to the medical necessity of the services furnished”, 1 U.S.C.Cong. and Admin. News (1965), at 1986, as to Title XIX the Report states, in contrast, that with the exception of certain required coverages “coverage of other items of medical service would be optional with the States.” Id., at 1951. Furthermore, the Senate Report points out that “[a]mong the items of medical services which the States may include is medical care, or any other type of remedial care recognized under State law, furnished by licensed practitioners within the scope of their practice, as defined by State law.” Id., at 2021. This is quite understandable in view of the fact that Title XVIII (Medicare) is a federally administered program, whereas Title XIX (Medicaid) is administered by the states, which are given wide latitude as to the coverage they elect to furnish.
The concurrence and dissent also suggests that our holding that Title XIX does not prescribe what our brother characterizes as the medical necessity test of Title XVIII would compel Medicaid assistance for such services as “cosmetic surgery, e. g., to uplift the face, inflate the breasts, or remodel the nose.” Our holding does not compel Medicaid assistance for any particular medical service. Coverage which is not required by the statute is optional with the states.
It may be noted that, as the Senate Report points out, under Title XVIII expenses for cosmetic surgery would not be covered “except where incurred in connection with the prompt repair of an accidental injury or to improve the functioning of a malformed body member.” Id., at 1990. There is no specific limitation on such coverage in Title XIX, presumably because coverage is optional with the states.
. See also the discussion of Title XIX in Doe v. Wohlgemuth, 376 F.Supp. 173, 182-185 (W.D.Pa.1974) (three-judge court), vacated and remanded on other grounds, Nos. 74-1726, 74-1727 (3d Cir. Dec. 10, 1974), rehearing en banc pending, and the statement in Doe v. Rose, 499 F.2d 1112, 1114, (10th Cir. 1974), concerning the lack of “specific guidance as to whether Congress intended that abortions be covered by Medicaid and, if so, more critically, which abortions were to be covered by Medicaid benefits.”
. This accords with the views of H.E.W., the agency charged with administering the statute, which are entitled to considerable weight. See, e. g., Saxbe v. Bustos, 419 U.S. 65, 74, 95 S.Ct. 272, 42 L.Ed.2d 231 (1974); Investment Company Institute v. Camp, 401 U.S. 617, 626-627, 91 S.Ct. 1091, 28 L.Ed.2d 367 (1971); Lewis v. Martin, 397 U.S. 552, 559, 90 S.Ct. 1282, 25 L.Ed.2d 561 (1970); Red Lion Broadcasting Co., Inc. v. F.C.C., 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969).
. While the view of H.E.W. that Title XIX permitted state Medicaid payments for nontherapeutic, elective abortions was before the court below, its view that Title XIX did not forbid state regulations denying such payments was not presented there.
. Public Law 89-97; 79 Statutes 343 et seq.
. Accordingly, we express no view on
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | A | songer_casetyp1_5-3 |
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 "privacy".
BRIGHT, Senior Circuit Judge.
The United States (Government) appeals the order of the district court vacating a previous order which prohibited a financial institution in the Western District of Arkansas from notifying its customers of a grand jury subpoena of the customers’ financial records. For the reasons set forth below, we affirm but remand the matter to the district court for such further proceedings as that court may deem appropriate in light of this opinion.
I. BACKGROUND.
On January 15, 1986, a federal grand jury sitting in the Western District of Arkansas issued a subpoena to a financial institution in that district requesting production of bank records of two of its customers, their business partnerships or firms, and the records of a related business entity. These customers of the financial institution are targets of an ongoing investigation of suspected murders, labor racketeering, and drug and explosives trafficking. The subpoena included a request that the financial institution “not disclose the existence of the request for 90 days [because] [a]ny such disclosure could impede the investigation being conducted and thereby interfere with the enforcement of the law.” The financial institution informed the Government that it would notify these customers of the subpoena. The Government then sought and received a district court order directing the financial institution to delay notification of these customers for ninety days.
The financial institution moved for reconsideration of the order, and the district court held a hearing on the matter. Thereafter, the district court vacated its previous order, asserting: (1) that it lacked authority to command the financial institution not to notify its customers of the subpoena pursuant to the provisions of Fed.R.Crim.P. 6(e)(2); and (2) that even if the district court possessed the power to issue the order requested by the Government, the Government had failed to make an adequate showing to warrant the issuance of the order. In re Grand Jury Subpoena, 628 F.Supp. 580 (W.D.Ark.1986).
At the hearing, the Government asserted that the court possessed inherent power to issue the order, or that either the Right to Financial Privacy Act, 12 U.S.C. §§ 3401-22 or the All Writs Act, 28 U.S.C. § 1651, empowered the court to issue the order. In rejecting these contentions, the district court noted that no provision of the Right to Financial Privacy Act authorizes issuance of the order, and that section 3413(i) specifically excepts grand jury subpoenas from the ambit of that Act. Id. at 580-81. The district court further concluded that neither the general grant of power under the All Writs Act nor the court’s inherent power authorize the court to issue the protective order in light of the specific command of Fed.R.Crim.P. 6(e)(2) and the accompanying advisory committee notes. Id. at 581.
While recognizing that a number of district courts have indicated the power to issue such an order exists upon adequate factual showing by the Government, the district court stated that, even if it were inclined to follow this rationale, it would not issue the requested order in the present case because the Government failed to make an adequate showing to justify overturning the policy of Rule 6(e)(2) which bans orders of non-disclosure to grand jury witnesses. Id. The Government thereupon brought this appeal.
While we disagree with the court’s first proposition, we do agree and the Government seems to concede that it did not make a sufficient showing to justify the issuance of the order. The Government, however, contends that it has new and additional information which it wishes to present to the district court as a basis for the imposition of a secrecy order on the financial institution.
II. DISCUSSION.
A. Jurisdiction
Before reaching the merits of the dispute, we address the question of whether this court has jurisdiction of the appeal. Although the order appealed from does not constitute a final judgment, it conclusively determines a disputed question (whether the financial institution may disclose the existence of the subpoena to the grand jury targets); resolves an important issue completely separate from the merits (as yet, no indictment has issued); and, is effectively unreviewable on appeal from a final judgment. Richardson-Merrell, Inc. v. Koller, — U.S. -, 105 S.Ct. 2757, 2761, 86 L.Ed.2d 340 (1985); In re 1985 Grand Jury Proceedings, 785 F.2d 593, 595 (8th Cir.1985). As such, the order falls within the collateral order exception to the final judgment rule.
B. Authority to Issue a Secrecy Order to Witnesses
We first address the district court’s ruling that it lacked authority to issue the requested order because Fed.R.Crim.P. 6(e)(2) prohibits the imposition of an order of secrecy on grand jury witnesses. The issue is one of first impression for this court and one of first impression in the United States Courts of Appeal so far as we can ascertain.
Congress designed Rule 6(e) to prevent disclosure of matters occurring before the grand jury, thereby implementing the “long-established policy that maintains the secrecy of the grand jury proceedings in the federal courts.” United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958) (citations omitted). Quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir.1954), the Supreme Court summarized the reasons for the policy of grand jury secrecy as follows:
(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.
United States v. Procter & Gamble Co., 356 U.S. at 681 n. 6, 78 S.Ct. at 986 n. 6.
To these ends, Rule 6(e)(2), in part, recites a general rule of secrecy: “No obligation of secrecy may be imposed on any person except in accordance with this rule. A knowing violation of Rule 6 may be punished as a contempt of court.” In addition, Rule 6(e)(4) permits indictment to be kept secret until a defendant is in custody or released pending trial; Rule 6(e)(5) requires grand jury hearings to be closed to the extent necessary to prevent disclosure; and Rule 6(e)(6) requires “[r]ecords, orders and subpoenas relating to grand jury proceedings [to] be kept under seal to the extent and for such time as is necessary to prevent disclosure of matters occurring before the grand jury.”
Congress also created narrow exceptions to the general rule of secrecy. See Rule 6(e)(2) and (3). In listing those persons on whom an order of secrecy may be imposed, Rule 6(e)(2) makes no mention of witnesses. The notes of the advisory committee observe that while subdivision (e)(1) of Rule 6 preserves the traditional practice of secrecy on grand jurors and others unless a court permits disclosure, subdivision (e)(2) “does not impose any obligation of secrecy on witnesses.” The comment further states that “[t]he existing practice on this point varies among the districts. The seal of secrecy on witnesses seems an unnecessary hardship and may lead to injustice if a witness is not permitted to make a disclosure to counsel or to an associate.” Thus, the Rule permits a grand jury witness to disclose the fact or the content of his testimony without first obtaining an order of the court. However, we emphasize that the comments specify that this “veil of secrecy” was lifted to permit grand jury witnesses to make disclosures to counsel or to associates; while in this case, the witness intends to notify the targets of the grand jury investigation.
As the district court noted, a number of courts have stated that, notwithstanding the prohibition of Rule 6(e)(2), “[circumstances may exist * * * which would justify some restrictions on disclosure by [grand jury] witnesses.” In re Grand Jury Witness Subpoenas, 370 F.Supp. 1282, 1285 n. 5 (S.D.Fla.1974). See also In re Grand Jury Subpoena Duces Tecum, 575 F.Supp. 93, 94 (S.D.N.Y.1983); Beacon Journal Publishing Co. v. Unger, 532 F.Supp. 55, 59 (N.D.Ohio 1982). We are aware of only one court that has actually issued an order prohibiting certain financial institutions, served with grand jury subpoenas, from disclosing the fact of service of the subpoenas, the nature of the documents subpoenaed, and the extent of compliance with the subpoenas. In re Swearingen Aviation Corp., 486 F.Supp. 9, 11 (D.Md.1979), mandamus to vacate secrecy order denied for lack of standing, 605 F.2d 125 (4th Cir.1979) (hereinafter Swearingen ). In denying the writ of mandamus to vacate the secrecy order, the Fourth Circuit noted that the prohibition against imposing an obligation of secrecy on witnesses was intended to benefit the witnesses and not the targets of the grand jury investigation. Swearingen, 605 F.2d at 127.
Again, in this case, the Government seeks only to prevent the witness from disclosing what has occurred to the targets of the investigation. The financial institution is perfectly free to communicate with counsel or personnel within its organization about the subpoena or testimony before the grand jury. The question raised is whether the district court has the power to bar the financial institution from communicating the existence of the grand jury subpoena and investigation to the targets.
We do not believe that, in approving the Federal Rules of Criminal Procedure, Congress intended to completely bar the district courts from imposing a reasonable obligation of secrecy on grand jury witnesses in an appropriate case. To construe the provisions of Rule 6(e) to give a grand jury witness unrestricted freedom to communicate the existence of the subpoena and the investigation or the content of testimony to targets could completely undercut the entire purpose of grand jury secrecy. For example, in this case, such disclosure to targets could enable the targets (1) to escape; (2) to exert pressure on grand jury members; or (3) to influence (or attempt to influence) witnesses appearing before the grand jury, thus discouraging free and untrammeled disclosures by witnesses. Thus, just as the general rule of grand jury secrecy may be set aside by a district court in an appropriate case pursuant to the provisions of Rule 6(e), so too should the prohibition against secrecy orders be subject to some control by the district judge. We therefore conclude that, upon a proper showing in an appropriate case, the district court may direct a grand jury witness to keep secret from targets of the investigation the existence of a subpoena, the nature of documents subpoenaed, or testimony before the grand jury, for an appropriate period of time.
C. Proper Showing to Impose a Secrecy Order
In this appeal, the Government does not question that part of the district court’s order denying issuance of a Secrecy order because the Government failed to make an ' adequate showing. The district court stated:
Even if it were conceded that a court might be empowered to order a bank to remain silent in some circumstances, a proposition not obviously right for the reasons outlined above, we are not inclined to believe that the government has in this case made a sufficiently specific showing. The agent who testified named no names, and he gave no detailed reasons for his beliefs. The showing was vague, and the risks claimed were not differentiated from those that would obtain if an indictment is eventually handed down against the customer.
628 F.Supp. at 581.
The Government does not dispute the district court’s finding in this regard, but contends that it has further information to present for the district court’s consideration, should we rule that the district court possesses the power to issue such an order. We are therefore bound to affirm because the Government has not contested the district court’s determination that it failed to make a sufficient showing to justify issuance of the order.
Although we are not presented with the issue of what kind of showing by the Government warrants issuance of such an order, we observe that the policy of non-secrecy as to grand jury witnesses embodied in Rule 6(e)(2) should not be set aside except in situations where the need for secrecy outweighs the countervailing policy, and that this need must be shown with particularity. In so observing, we draw upon the language of United States v. Procter & Gamble Co., supra, in which the Supreme Court outlined the circumstances in which the policy of secrecy embodied in Rule 6(e) may be set aside by a federal court. We believe the policy of openness as to grand jury witnesses dictated by Rule 6(e)(2) requires similar considerations. To impose an order of secrecy upon a grand jury witness, there must be a “compelling necessity * * * shown with particularity.” See United States v. Procter & Gamble Co., 356 U.S. at 682, 78 S.Ct. at 986.
Accordingly, while affirming the district court, we remand the case for the district court to consider any Government motion for reconsideration based on additional evidence.
III. CONCLUSION
Affirmed and remanded.
. 12 U.S.C. § 3413(i) provides: "Nothing in this chapter * * * shall apply to any subpoena or court order issued in connection with proceedings before a grand jury.”
. The Fourth Circuit commented on the rule in In re Swearingen Aviation Corp., 605 F.2d 125, 127 (4th Cir.1979), but denied the targets of the investigation standing to contest an order imposing certain secrecy requirements on a bank called as a witness before the grand jury. However, in the exercise of its supervisory power, the court authorized the targets to contact the financial institutions to obtain records and other information which the district court had not directed the financial institutions to keep secret. We emphasize that the targets’ limited right to obtain this information did not include the right to obtain any information which the district court had ordered the witnesses to keep secret.
. In United States v. Procter & Gamble Co., supra, the Supreme Court considered a problem converse to the one before us. There, the Court considered the circumstances in which a trial court under Fed.R.Civ.P. 34 might require the disclosure of otherwise secret transcripts of grand jury witnesses’ testimony.
. It is axiomatic that the grand jury derives its power from the district court and therefore acts under the inherent supervision of the court. Levine v. United States, 362 U.S. 610, 617, 80 S.Ct. 1038, 1043, 4 L.Ed.2d 989 (1960); In re Long Visitor, 523 F.2d 443, 446-47 (8th Cir. 1975); In re Gopman, 531 F.2d 262, 266 (5th Cir.1976).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.
Opinion concurring in part and dissenting in part filed by Circuit Judge BORK.
J. SKELLY WRIGHT, Circuit Judge:
At issue in this case is the validity of regulations recently issued by the Secretary of the Department of Health and Human Services (HHS) requiring all providers of family planning services which receive funds under Title X of the Public Health Service Act (Title X) : (1) to notify parents or guardians within ten working days of prescribing contraceptives to unemancipated minors; (2) to comply with state laws requiring parental notice of, or consent to, the provision of any family planning services to minors; and (3) to consider minors who wish to receive services on the basis of their parents’ financial resources, rather than their own. Numerous organizations and individuals joined in a consolidated action in the District Court to enjoin the Secretary from enforcing these regulations. The lower court entered a preliminary, and then a final, injunction prohibiting enforcement of the new regulations on the ground that they constitute invalid agency action in excess of statutory authority. Because we agree that the regulations are fundamentally inconsistent with Congress’ intent and purpose in enacting Title X and are therefore beyond the limits of the Secretary’s delegated authority, we affirm the decision below.
I. Background
A. The Statute and Regulations
In 1970 Congress enacted Title X of the Public Health Service Act to establish a nationwide program with the express purpose of making “comprehensive family planning services readily available to all persons desiring such services.” Congress authorized the Department of Health, Education and Welfare (HEW) to make grants and enter into contracts with public or nonprofit entities to assist in the establishment of family planning projects that offer a broad range of family planning methods, including the provision of prescription and nonprescription contraceptive drugs and devices. See 42 U.S.C. § 300(a) (as amended). The Title X program was originally funded for three years, but has since been reauthorized and refunded continuously.
In light of the breadth of the statutory language and clear congressional intent that all persons receive such services, Title X grantees have served the teenage population from the inception of the program. Following enactment of Title X, however, Congress frequently expressed its increasing concern about the still unmet family planning needs of sexually active teenagers in this country. See, e.g., H.R.Rep. No. 1161, 93d Cong., 2d Sess. 14 (1974) (“certain population groups requiring these services are not being reached * * * includpng] teenagers”); S.Rep. No. 29, 94th Cong., 1st Sess. 55 (1975). Ultimately, Congress in 1978 amended the statute itself to require that Title X projects offer “a broad range of acceptable and effective family planning methods and services (including * * * services for adolescents).” See 42 U.S.C. § 300(a) (emphasis added). While this amendment simply codified accepted past practice, the added language clearly reflected Congress’ intent to place “a special emphasis on preventing unwanted pregnancies among sexually active adolescents.” S.Rep. No. 822, 95th Cong., 2d Sess. 24 (1978).
The Committee is committed to addressing the increased needs of adolescents and young adults. According to DHEW, approximately one million women under 20 years of age (10 percent of all teenage women) become pregnant annually. * * * Such pregnancies are often unwanted, and are likely to have adverse health, social, and economic consequences for the individuals involved. Clearly, the problems of teenage pregnancy have become critical.
In 1981 Congress again amended Title X, this time to require by statute that grantees encourage family participation in their Title X programs. With this additional language, Section 300(a) of the Act now reads:
The Secretary is authorized to make grants to and enter into contracts with public or nonprofit private entities to assist in the establishment and operation of voluntary family planning projects which shall offer a broad range of acceptable and effective family planning methods and services (including natural family planning methods, infertility services, and services for adolescents). To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection.
42 U.S.C. § 300(a) (amendment emphasized).
On February 22, 1982 the Secretary published for public comment modifications of certain regulations governing Title X grants. Proposed as a means of implementing Congress’ 1981 amendment to Title X, the new regulations seek to mandate the encouragement of family participation in three basic ways. First, and most significantly, they require Title X grantees to notify a parent or guardian within 10 working days of initially prescribing contraceptives to an unemancipated minor. Without verification that such notice was received, no further prescriptions may be provided to the minor.
Second, the regulations require Title X recipients to comply with any state law that mandates notification or consent of parent or guardian upon provision of family planning services to a minor. Finally, the new regulations redefine the statutory phrase “low-income family” so as to require Title X grantees to consider the economic eligibility of minors on the basis of their parents’, rather than their own, financial resources.
As the Department itself acknowledged, public response to the proposed regulations was “overwhelming.” Over 120,000 individuals and organizations contributed to the public comment. Among those opposing the proposed regulations were 19 major medical associations, including the American Medical Association and the American Psychiatric Association, 40 states, and the District of Columbia. On January 26, 1983 HHS nevertheless promulgated the final regulations, virtually unchanged. They were accompanied by a 15-page preamble that generally discussed the comments submitted and the reasons for the new rules. The regulations were to take effect on February 25, 1983.
B. The Proceedings and Decisions Below
Even before the final regulations were published, however, two separate actions were brought in the District Court to enjoin the Secretary and the Department from enforcing the regulations. Plaintiffs in one action were the Planned Parenthood Federation of America, Inc., a national organization concerned with family planning, and three of its member affiliates who receive Title X grants to provide family planning services and are therefore subject to the new regulations. The second suit was brought by the National Family Planning and Reproductive Health Association, Inc. (NFPRHA), a national nonprofit organization whose members are predominantly family planning clinics receiving Title X funding, and numerous other organizations and individuals affected by the regulations. The District Court consolidated the two actions.
On February 18, 1983 the District Court granted plaintiffs’ consolidated motions for preliminary injunction, ordering the Secretary and the Department to cease enforcement of the challenged regulations pending further order of the court. See Planned Parenthood Federation of America, Inc. v. Schweiker, 559 F.Supp. 658 (D.D.C.1983) (hereinafter cited as Planned Parenthood). In addressing plaintiffs’ likelihood of success on the merits, the court reviewed the statutory language of the 1981 amendment to Title X, its legislative history, and the general structure of Title X. The court concluded that the regulations requiring parental notification “are outside the scope of the agency’s authorizing legislation, and are therefore invalid.” Id. at 669. The court also held that the other two requirements— compliance with state parental notification and consent laws and redefinition of adolescent financial eligibility — are similarly invalid for violating the intent of Title X. Id. Since the court found that the regulations were promulgated in excess of statutory authority, it did not rule on plaintiffs’ allegations that the regulations are arbitrary and capricious and abridge the constitutional privacy rights of mature minors. See id. at 669 n. 19. On March 2, 1983 the court found that plaintiffs were entitled to judgment as a matter of law and so filed a final order in the case, making its injunction permanent. See id. at 670 (final judgment on cross-motions for summary judgment).
III. Analysis
This appeal presents a straightforward issue of statutory construction. Urging reversal of the decision below, appellants, the Secretary and HHS, argue that the new regulations are perfectly consistent with the language and intent of the 1981 amendment to Title X and are therefore not in excess of statutory authority. Before addressing the merits of this assertion, we outline briefly this court’s scope of review.
A. Standard of Review
An essential function of the reviewing court is to guard against bureaucratic excesses by ensuring that administrative agencies remain within the bounds of their delegated authority. To that end, it falls within the province of this court to interpret the proper limits of Congress’ delegation of authority in Title X and to determine whether the challenged regulations traverse those limits. As appellants duly point out, the rulemaking authority that Congress has delegated to the Secretary is broad indeed:
Grants and contracts made under this subchapter [42 U.S.C. § 300 et seq.] shall be made in accordance with such regulations as the Secretary may promulgate. * * *
42 U.S.C. § 300a-4(a).
Yet, however sweeping this delegation of authority, it is not unlimited. We will declare regulations in excess of statutory authority if they “bear[ ] no relationship to any recognized concept of” the particular statutory terms at issue. Batterton v. Francis, 432 U.S. 416, 428, 97 S.Ct. 2399, 2407, 53 L.Ed.2d 448 (1977). Agency action must be found to be consistent with the congressional purposes underlying the authorizing statute. See id.; Morton v. Ruiz, 415 U.S. 199, 237, 94 S.Ct. 1055, 1075, 39 L.Ed.2d 270 (1974); Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 381, 89 S.Ct. 1794, 1802, 23 L.Ed.2d 371 (1966). In short, these regulations can be sustained only if this “reviewing court [is] reasonably able to conclude that the grant of authority contemplates the regulations issued.” Chrysler Corp. v. Brown, 441 U.S. 281, 308, 99 S.Ct. 1705, 1721, 60 L.Ed.2d 208 (1979).
Appellants further contend that, in construing the reaches of Title X, we must give great deference to the Secretary’s own interpretation of the statute. While courts frequently do give substantial deference to the administering agency’s interpretation of its statute, the deference accorded does vary from case to case and under certain circumstances can dissipate altogether:
[D]eference must have limits where, as here, application of the [agency’s statutory interpretation] would be inconsistent with an obvious congressional intent * *. Courts need not defer to an administrative construction of a statute where there are “compelling indications that it is wrong.”
Espinoza v. Farah Manufacturing Co., 414 U.S. 86, 94-95, 94 S.Ct. 334, 339-340, 38 L.Ed.2d 287 (1974) (quoting Red Lion Broadcasting Co. v. FCC, supra, 395 U.S. at 381, 89 S.Ct. at 1802).
In the present case there are indeed “compelling indications” that the Secretary has misconstrued Congress’ intent in enacting the 1981 amendment to Title X. Our own careful review of the language of the statute and its legislative history makes it clear that these regulations not only violate Congress’ specific intent as to the issue of parental notification, but also undermine the fundamental purposes of the Title X program. It is to this statutory analysis we now turn.
B. The 1981 Amendment to Title X and Parental Notification
1. Statutory language.
“[T]he starting point for interpreting a statute is the language of the statute itself.” CPSC v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct 2051, 2056, 64 L.Ed.2d 766 (1980). The 1981 amendment to Title X consists of just one simple sentence:
To the extent practical, entities which receive grants or contracts under this subsection shall encourage family participation in projects assisted under this subsection.
42 U.S.C. § 300(a) (Supp. Y 1981).
According to the Secretary, the statute’s use of the word “shall” imposes a nondiscretionary duty upon Title X grantees to communicate with the teenager’s parents so as to involve them in their child’s contraceptive decisions. We cannot agree. Certainly the use of the word “shall” presumptively implies some type of mandatory obligation on grantees. But the nature of that obligation is defined by the word “encourage.” As the District Court noted, Congress’ choice of this permissive and nonobligatory term is in itself revealing. Had Congress intended to mandate parental involvement, it could easily have done so with more appropriate and less ambiguous language such as “shall require family participation” or “shall notify the family.” Indeed, the very concept of encouragement is further weakened by the use of a qualifier “to the extent practical.” While no specific content may be given that phrase from the face of the statute, its use indicates Congress’ intent that the goal of encouraging family participation may well have to give way to other, more practical considerations. Contrary to appellant’s assertions, then, the express language of the statute certainly does not lend support to the Secretary’s interpretation of the amendment as “reasonably contemplating]” a parental notification requirement.
2. The legislative history.
Our inquiry into the congressional intent behind the 1981 amendment need not end with a simple parsing of the express terms of the statute. Although we find that the “plain meaning” of the statute is clear from its terms, we note that the legislative history is equally illuminating in this case. In particular, because appellants attach meaning to the fact that the statute- does not expressly indicate precisely how Title X entities “shall encourage” family participation, reference to the legislative history is essential.
a. The 1981 Conference Committee report.
The Conference Committee report accompanying the 1981 amendment specifically addressed the new sentence:
The conferees believe that, while family involvement is not mandated, it is important that families participate in the activities authorized by this title as much as possible. It is the intent of the conferees that grantees will encourage participants in Title X programs to include their families in counseling and involve them in decisions about services.
H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess. 799 (1981) (emphasis added).
We find this Conference Report statement to be a crystal-clear and unequivocal expression of congressional intent — an intent that controls the Secretary in the exercise of her or his rulemaking authority. Several points emerge from the Conference Committee’s explanation of the amendment. In enacting the amendment to encourage family participation, Congress most definitely did not intend to mandate family involvement. It is impossible to conceive of a more intelligible way to convey that meaning than the comment made by the committee. Thus, to the extent that the parental notification requirement of the new regulations operates to require family involvement, it is inconsistent with Congress’ intent.
Furthermore, the conferees quite plainly explicate the manner by which they intend the Title X grantees to fulfill their statutory obligation to encourage family participation: “grantees will encourage participants * * * to include their families.” The Title X family planning projects are thereby directed to communicate with and encourage those seeking services to make their contraceptive choices with the assistance of their families. There is simply no way, in light of the conferees’ explanation, that the statute can be read as intending to permit the Title X projects to communicate directly with the parents as a means of fulfilling the statute’s “family participation” directive.
Yet this is precisely the reading of the statute and the Conference Committee report that the Secretary would urge upon this court. Appellants seek to avoid the clear import of the Conference Committee report by arjguing that enactment of the 1981 amendment represented a great change in Congress’ existing policy vis-á-vis parental notification and family involvement — a change in policy that would be furthered by the new regulations. They contend that the 1981 amendment “showed a clear shift in Congress’ thinking. * * * Congress indicated that grantees, themselves, were henceforth to encourage family involvement, and not simply to rely on their teenage clientele to involve their parents.” According to appellants, Congress’ shift in intent is supposedly manifest, not only in the express language of the statute, but in the Conference Committee report’s introductory statement about Title X:
Three changes were made in Title X by the conferees. The first was a statement added to section 1001 that “To the extent practical, recipients of grants shall encourage family participation.” * * *
H.R.Conf.Rep. No. 208, 97th Cong., 1st Sess. 799 (1981) (emphasis added).
Appellants’ argument simply does not withstand close scrutiny. The conferees’ use of this word “changes” certainly cannot stand alone as definitive proof of a fundamental shift in congressional intent. Assuredly, there was a “change” in Title X — an entirely new sentence was added to the section of the Act. Whether this change of statutory language evidences a change of congressional purpose, however, depends upon Congress’ prior expressions of policy as to the issues of family involvement and parental notification.
b. Congressional policy of encouraging family involvement.
Our detailed examination of Title X’s pre-1981 legislative history indicates that, far from signifying a shift in congressional opinion, the 1981 amendment simply raised to the statutory level pre-existing policy on this issue. For years earlier Congress had evinced its strong interest in encouraging family involvement in a teenager’s family planning decisions; the legislative history is replete with references to this goal. What is particularly striking is the extent to which the various committee report references to this policy track, almost verbatim, the language of the 1981 Conference Committee report.
In 1975, for example, the Senate report accompanying the Title X reauthorization bill stated:
[T]he Committee believes that unmarried teenagers, where feasible, should be encouraged to involve their family [sic] in their decision about use of contraceptives.
S.Rep. No. 29, 94th Cong., 1st Sess. 55 (1975) (emphasis added). The Senate report accompanying that chamber’s version of the 1978 Title X reauthorization bill also emphasized the encouragement of family involvement:
This policy * * * has been stressed in prior committee reports and is a re assertion of existing Federal policy. It is not intended to restrict or discourage the provision of voluntary family planning services to those adolescents who want them, but only to try to enhance communication within the family unit.
S.Rep. No. 822, 95th Cong., 2d Sess. 40 (1978) (emphasis added). Finally, the House report accompanying its version of the bill subsequently enacted as the 1981 amendment noted “past Committee concern that in the process of contraceptive counseling, unmarried teenagers, where feasible, should be encouraged to involve their families in their decision about use of contraceptives.” H.R.Rep. No. 158, 97th Cong., 1st Sess. 82 (1981) (emphasis added; footnote omitted).
In light of this consistent legislative history, we believe that the reasonable and correct interpretation of the 1981 amendment is that offered by appellees: the added statutory language merely served to emphasize existing congressional policy and thus provides no basis for the Secretary’s radical departure in the means by which such family involvement is to be effectuated.
c. Congressional policy of protecting confidentiality.
Congress, however, has long recognized not only the importance of family involvement, but the crucial importance as well of preserving patient confidentiality in the Title X program. In 1972 the Secretary first promulgated a regulation to ensure doctor-patient confidentiality in Title X programs. These regulations remain in effect unchanged. See 42 C.F.R. § 59.11 (1982). Congress was fully aware of this consistent administrative practice and in particular recognized the critical role played by the assurance of confidentiality in attracting adolescents to the clinics. For example, the Senate report accompanying the 1977 reauthorization of Title X expressly acknowledged that teenagers more readily seek family planning services at Title X facilities precisely because of the policy of patient confidentiality:
[T]he Committee believes HEW must not overlook the preference of many individuals, particularly the teenage target group, for family planning clinics as the initial entry point to family planning information and services. This preference is due partially to the greater degree of teenage confidence in the confidentiality which can be assured by a family planning clinic and in the proficiency of the family planning services provided in a clinic specializing in those and related services.^!
Thus Congress made clear that confidentiality was essential to attract adolescents to the Title X clinics; without such assurances, one of the primary purposes of Title X — to make family planning services readily available to teenagers — would be severely undermined.
Particularly noteworthy in the legislative history is the 1978 defeat in the House of Representatives of an amendment to Title X offered by Representative Harold L. Volkmer. The proposal would have expressly required Title X grantees to notify parents prior to prescribing contraceptives, thereby abandoning the policy of preserving teenagers’ confidences. In the debate on the Volkmer amendment, several congressmen expressed their belief that parental notification would sacrifice the policy of providing confidential services, deter teenagers from coming to Title X clinics, and so result in an increased number of teenage pregnancies. The Acting Secretary of HEW at that time echoed these concerns: “[Ejnactment of * * * [the Volkmer amendment] would undermine the national effort to alleviate the growing problem of teenage pregnancy in this country * *
It is beyond dispute that courts must be cautious in attributing great significance to legislative intent as expressed by legislative inaction. Nevertheless, we find that Congress’ obvious awareness of the administrative practice as to confidentiality as well as its failure to change this practice when presented with the opportunity provide sufficient support for the conclusion that Congress — at least prior to 1981 — had embraced the policy of maintaining teenage confidentiality in the Title X program.
As for the 1981 amendment, we see no evidence whatever that Congress intended to change its longstanding belief that confidentiality was a crucial factor in attracting teenagers to Title X clinics and thereby in stemming the epidemic increase in teenage pregnancies. In fact, we firmly believe that the express language of the statute, requiring Title X grantees to encourage family participation “to the extent practical,” refers to just such realistic concerns about deterring teenagers from seeking contraception if their confidences are not respected. Were the Secretary’s regulations permitted to stand, the goal of family involvement would undermine both Congress’ specific policy of confidentiality and its overriding concern about the escalating teenage pregnancy rate. In the absence of a clearly expressed intent to the contrary, we will not construe the 1981 amendment in a manner which would undermine Congress’ broad purposes for enacting Title X in the first place.
C. Title XX
Appellants seek support for their strained interpretation of the 1981 amendment to Title X in yet another, separate statute. Title XX of the Act, 42 U.S.C. § 300z et seq. (Supp. V 1981), was enacted as part of the same legislative package as the Title X amendment. It established a new grant program for demonstration projects to provide services and research related to adolescent sexuality and pregnancy. Title XX expressly requires family involvement by mandating parental notification and consent, 42 U.S.C. § 300z-5(a)(22)(A)(i), as well as by determining eligibility for the program on the basis of family income, id. § 300z-3(c). Indeed, Congress’ intent in Title XX is to make family involvement the centerpiece of this program designed explicitly to discourage adolescent sexual relations. See id. § 300z(a)(9).
Appellants contend that Congress’ philosophical intent in Title XX can and should be used to inform any interpretation of Title X. More specifically, Title XX’s explicit requirement of parental notification “demonstrated that [Congress] believed parental notification to be important policy in and of itself.” See brief for appellants at 22. On this view, if Congress approved of parental notification in one context, it should be presumed to intend its use in a related context as well.
This argument totally ignores the very different nature of the two programs. Title X is the largest of the Federal Government’s family planning programs, designed to serve the family planning needs of all persons in need of such services. Title XX, by contrast, is a limited and experimental program; it provides for “demonstration projects” with a special emphasis on serving the needs of already pregnant adolescents and the prevention of adolescent sexual relations, see 42 U.S.C. § 300z-l(a)(7) & (8). While some traditional family planning services may be provided under limited circumstances, see id. § 300z-3(b)(l), the primary thrust of Title XX clearly lies elsewhere.
The distinct differences in the scope and purposes of the two programs necessarily dictate different approaches to striking an appropriate balance between the need for confidentiality and the goal of parental involvement. The Senate report accompanying Title XX clearly delineated these differences and their consequences:
It must be stressed, however, that this [Title XX] program is to be a demonstration project in which the Federal Government attempts to promote family-centered approaches to serious social problems. Unlike contraceptive services or venereal disease treatments, adolescent pregnancy cannot be an indefinitely confidential affair. Furthermore, it should be noted that this [Title XX] program is a Federal demonstration project and not a far-ranging Government entitlement program. These requirements [e.g., parental notification and consent] are an attempt to determine the effect that such parental involvement requirements might have on a small scale!!
As an experimental demonstration project, then, Title XX provides a useful, but limited, context in which Congress may experiment and then evaluate the impact on teenagers of mandating family notification and involvement without irrevocably undermining its large-scale family planning program. Congress has, in fact, since indicated its intent to “monitor the progress of the projects involved very carefully” and to hold hearings to assess “the implementation and impact of the parental involvement requirement under this experimental program.”
It would therefore be both illogical and contrary to legislative intent to follow appedants’ suggestion and “import” the strong family involvement component of Title XX into Title X. In point of fact, one senator feared just such an inappropriate amalgamation of the two programs. To clarify the limited nature of Title XX’s requirements, Senator Mark Hatfield, chairman of the Appropriations Committee, raised the issue during the debate over HHS’s appropriations for 1982:
Mr. President, while we are in Labor-HHS matters, may I ask the Senator from New Mexico, the chairman of the Labor, Health and Human Services and Education Subcommittee, about language in the committee report concerning adolescent family life program? There has been some concern expressed that the report language could somehow be interpreted to apply the “parental consent and notification” provisions of the adloescent [sic] family life program to other programs under the jurisdiction of the Department of Health and Human Services. Can the Senator tell me whether the language does apply to Health and Human Services programs other than adolescent family life?
Whereupon Senator Schmitt, chairman of the Subcommittee on Labor, Health and Human Services, and Education, responded, “It does not.” See 128 Cong.Rec. S10067 (daily ed. Aug. 10, 1982).
Notwithstanding this insurmountable evidence that Title XX’s parental notification requirements were not intended to apply to Title X, appellants argue that the Secretary was properly guided by the philosophy of Title XX. They point to a review provision of Title XX as strong evidence of Congress’ intent to apply the family-centered philosophy of Title XX outside the narrow confines of its specified programs. Section 300z-6(a)(3) calls on the Secretary to:
review all programs administered by the Department of Health and Human Services which provide prevention services or care services to determine if the policies of such programs are consistent with the policies of this subchapter * * *.”
42 U.S.C. § 300z-6(a)(3). This language, however, merely calls for review of existing federal family programs to identify any inconsistencies in policy. It does not authorize the Secretary, on her own, to remedy any such inconsistencies by regulation. In fact, the Senate report accompanying Title XX makes clear the limits of the Secretary’s authority to act:
Remedial legislation or regulations to alter any Federal programs that the Secretary may identify as duplicative or inconsistent with the new Federal policy contained in this legislation should be formulated as quickly as possible.
S.Rep. No. 161, 97th Cong., 1st Sess. 16 (1981) (emphasis added). The use of the words “remedial legislation” clearly concedes that the Secretary may not be able to alter by regulation alone every program deemed “inconsistent” with Title XX. Given Congress’ express intent to limit Title XX’s parental notification and consent requirements to the confines of that experimental program, the Secretary has no authority deriving from this provision in Title XX to graft comparable parental notification requirements onto the structure of the completely separate Title X program.
D. State' Notification and Consent Requirement
Having determined that the new regulations’ parental notification requirement is inconsistent with Congress’ intent in Title X and finds no support in Title XX, we need not tarry long in disposing of appellants’ arguments as to the other two requirements.
The Secretary’s requirement that Title X grantees comply with prevailing state law as to parental notification or consent constitutes an invalid delegation of authority to the states. As the District Court found:
Although Congress is free to permit the states to establish eligibility requirements for recipients of Title X funds, Congress has not delegated that power to the states. Title X does not provide, or suggest, that states are permitted to determine eligibility criteria for participants in Title X programs. * * *
In the absence of Congress’ express authorization to HHS to in turn empower the states to set eligibility criteria, the Secretary has no power to do so. Therefore, in enacting such a regulation in this case the Secretary has exceeded the limits of Congress’ delegated authority. See Chrysler Corp. v. Brown, supra, 441 U.S. at 308, 99 S.Ct. at 1720.
Furthermore, even if Congress had authorized the Secretary to delegate to the states the power to set eligibility standards, the state laws would still have to conform with the existing requirements of Title X and its regulations.. It is elementary that under the Supremacy Clause of the Constitution states are not permitted to establish eligibility standards for federal assistance programs that conflict with the existing federal statutory or regulatory scheme. See Jones v. T.H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976), aff’g mem. only on statutory grounds sub nom. T_H_v. Jones, 425 F.Supp. 873 (D.Utah 1975). See also Lascaris v. Shirley, 420 U.S. 730, 95 S.Ct. 1190, 43 L.Ed.2d 583 (1975); Carleson v. Remillard, 406 U.S. 598, 600-601, 92 S.Ct. 1932, 1934, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, 92 S.Ct. 502, 505,30 L.Ed.2d 448 (1971); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968).
The only court to consider this issue in the context of Title X squarely concluded that West Virginia’s attempt to require parental consent as a condition to the provision of family planning services constituted the imposition of an additional eligibility requirement that clearly thwarted the goals of Title X. See Doe v. Pickett, 480 F.Supp. 1218, 1220-1221 (D.W.Va.1979). Since we have concluded that, even after the 1981 amendment, the continuing policies of Title X prohibit the Secretary from requiring parental notification, the states would likewise be precluded from imposing similar conditions.
E. Financial Eligibility Requirement
The elimination of the current regulation as to teenagers’ financial eligibility is clearly entailed by the Secretary’s imposition of the parental notification requirement. The new regulation deletes the following: “[U]nemancipated minors who wish to receive services on a confidential basis must be considered on the basis of their own resources.” If the confidentiality of adolescents is no longer to be respected, then the above requirement is logically unnecessary.
However, since the parental notification requirement is invalid, then so too is this change in determining financial eligibility. We thus agree with the reasoning of the District Court: the regulation requiring that an adolescent’s eligibility for services be based on her parents’, rather than her own, income is invalid “because it has the same effect as the parental notification requirement.” Planned Parenthood, supra, 559 F.Supp. at 669. Clearly, if a minor must obtain financial information from her parents to determine her own eligibility for family planning services, the regulation denies her the requisite confidentiality and operates as a de facto parental notification requirement. Indeed, if the parents do not meet the eligibility standards and the minor has no funds of her own, the regulation may operate as a de facto parental consent rule; by withholding funds, the parents can prevent the teenager from receiving any contraceptive services at Title X clinics. Either way, the regulation operates as a deterrent to teenage access to contraceptive services, thereby undermining Title X’s goal of reducing the teenage pregnancy rate.
Moreover, the regulation also conflicts with Title X’s specific admonition that the Secretary define “low-income” families in such a way as to insure that “economic status shall not be a deterrent to participation in the programs assisted under [Title X].” 42 U.S.C. § 300a-4(c). Reflecting its general concern about the problems of adolescent pregnancy, Congress clearly intended to include all adolescents — not just those from low-income families — among the groups benefited by Title X. See, e.g., H.R. Rep. No. 158,97th. Cong., 2d Sess. 79 (1981); H.R.Rep. No. 1191, 95th Cong., 2d Sess. 30 (1978). In short, the new financial eligibility requirement conflicts with the basic purpose and express provisions of Title X, finds no basis elsewhere in the Act, and is therefore invalid.
IY. Conclusion
This court is, of course, fully aware that these Title X regulations are at the center of a great whirlwind of public controversy. No doubt the moral and political wisdom of the Secretary’s actions will remain in dispute for some time to come. The legality of those actions, however, should not. Our review of Title X and its legislative history leads to the inescapable conclusion that the Secretary exceeded the bounds of statutory authority by promulgating regulations that contravene congressional intent.
We hold that the challenged regulations are unlawful. The judgment of the District Court enjoining enforcement of the regulations is therefore
Affirmed
. 42 U.S.C. § 300 et seq. (1976 & Supp. V 1981).
. The final regulations are published at Parental Notification Requirements Applicable to Projects for Family Planning Services, 48 Fed. Reg. 3600, 3614 (Jan. 26, 1983) (hereinafter Final Rules), and are to be codified at 42 C.F.R. §§ 59.5(a)(12)(i), (ii) and 59.2.
. Pub.L. No. 91-572, § 2, 84 Stat. 1506 (1970) (statement of the “purpose of this Act”). Title X was entitled the “Family Planning Services and Population Research Act” and has been codified as amended at 42 U.S.C. § 300 et seq. (1976 & Supp. V 1981).
. See Pub.L. No. 93-45, § 111(a), 87 Stat. 93 (1973); Pub.L. No. 94-63, § 202(b), 89 Stat. 304, 306 (1975); Pub.L. No. 95-83, § 305(b), 91 Stat. 389 (1977); Pub.L. No. 95-613, § 1(b), 92 Stat. 3093 (1978); Pub.L. No. 97-35, § 931(a), 95 Stat. 357 (1981).
. See Pub.L. No. 91-572, § 2, 84 Stat. 1506 (1970); S.Rep. No. 1004, 91st Cong., 2d Sess. 3 (1970).
. See also H.R.Rep. No. 1191, 95th Cong., 2d Sess. 31 (1978):
. See Requirements Applicable to Projects for Family Planning Services, 47 Fed.Reg. 7699 (Feb. 22, 1982).
. The final version of the regulation provides:
When prescription drugs or prescription devices are initially provided by the project to an unemancipated minor, notify a parent or guardian that they were provided, within 10 working days following their provision. The project must tell the minor prior to the provision of services about this notification requirement. As used in this subsection, the phrase “parent or guardian” shall refer to a parent or guardian
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | C | songer_casetyp1_5-3 |
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 "privacy".
J. SKELLY WRIGHT, Circuit Judge:
Appellants in this case challenge on both constitutional and statutory grounds the Metropolitan Police Department’s policy of routinely transmitting to the Federal Bureau of Investigation the fingerprint cards and accompanying identification data of individuals who are arrested in the District of Columbia. Although we believe there is substantial merit to appellants’ constitutional contentions, we do not premise our holding on those grounds, for we believe there are narrower statutory grounds on which we must interdict this indiscriminate dissemination of arrest records in the absence of a specific FBI request for particular data to be used by the FBI or other law enforcement officials for strictly law enforcement purposes.
I
On January 7, 1971, shortly before the effective date of the District of Columbia Court Reform and Criminal Procedure Act of 1970, appellants — four individuals arrested for and charged with local criminal offenses — brought a class action for injunctive and declaratory relief to enjoin appellees — the Chief of Police and the Director of the Central Records Division of the Washington, D.C., Metropolitan Police Department— from transmitting appellants’ arrest records to the FBI and to request the return of those records already transmitted. Plaintiffs-appellants asserted that the Metropolitan Police lacked a statutory basis for engaging in this practice, which was also allegedly specifically prohibited by the “Duncan Ordinance,” a regulation promulgated by the District’s Board of Commissioners to govern the distribution of arrest records in this jurisdiction. Plaintiffs-appellants further asserted that the preconviction or post-exoneration dissemination of their arrest records abridged their constitutional rights to due process, privacy, and the presumption of innocence.
Appellant Utz was arrested on January 7, 1971 and was charged with possession of marijuana. Her case was subsequently “no papered” by the United States Attorney, and she allegedly represents the class of individuals ultimately exonerated of the charges lodged against them. Appellant Boyd was arrested on January 6, 1971 and was charged with petit larceny. At the time the complaint in this case was filed he had been released on a personal bond and was awaiting trial in the Court of General Sessions; although a nolle prosequi was entered on this charge before the District Court’s ruling in this case, he allegedly represents the class of individuals who have not yet been brought to trial and who are thus presumed to be innocent of charges pending against them. Appellant Leon M., a juvenile who brought his action by his mother and next friend, Jean M., was arrested on October 27, 1970 for unauthorized use of a motor vehicle, and he allegedly represents the class of juveniles charged in the Juvenile Branch of the Family Division of the Superior Court for the District of Columbia. The charge against Leon M. was dismissed on December 14, 1970, when he entered a plea of guilty to another traffic offense and he was sentenced to 60 days of court supervision and traffic school. Appellant Bolling was arrested on November 20, 1970 and charged with possession of numbers slips. He entered a plea of guilty to this charge on December 30, 1970 and was sentenced to one year of probation; he allegedly represents those individuals who are actually found guilty of the offenses for which they were arrested, and premises his challenge to the Metropolitan Police Department’s practices solely on statutory grounds.
Before the arrests which formed the predicate for this case, none of the named plaintiffs-appellants had a criminal record. Although they do not allege that their arrests were made without probable cause and thus do not seek ex-pungement of their arrest records, appellants contend that the dissemination of those records to the FBI, and inevitable nationwide redissemination by the FBI, will cause them irreparable injury. More particularly, appellants in their complaint maintain that fingerprint cards (containing data identifying the person arrested and information concerning the arrest) of all persons arrested and fingerprinted by the Metropolitan Police Department are routinely transmitted to the FBI, regardless of whether the charges are dismissed, “no papered,” “nollied,” reduced, or terminated through an acquittal, and that this dissemination normally transpires before a court disposes of the case. These data submitted to the FBI are allegedly added to the FBI’s Computerized Criminal History File (part of the FBI’s National Crime Information Center), from which a master “rap” sheet is prepared listing each person’s name, his identifying data, the date of the arrest, and the offense or offenses for which he was arrested; the “rap” sheet is allegedly disseminated upon request to over 14,500 public and private agencies including the United States Civil Service Commission, the Armed Services, banks, and state and local governments, which allegedly utilize that information adversely for employment and promotion purposes to the detriment of appellants and other individuals listed in the FBI’s criminal data bank.
Both plaintiffs-appellants and defendants-appellees moved for summary judgment and submitted the same affidavit of the Director of the Central Records Division of the Metropolitan Police Department describing the practice of that Department with respect to the dissemination of arrest records to the FBI. The Director averred that the Metropolitan Police Department “routinely” forwarded to the FBI the arrest records of all adults who are “charged with a felony or violation of laws against the United States” or “who because of the type of offense committed and/or records of arrest are likely to be wanted by other local or federal law enforcement agencies” or who are arrested for “participating in mass demonstrations,” as well as the arrest records of all juveniles “16 years or older who have been charged with a felony.” He also reported that as of October 1971, “all appropriate records forwarded to the FBI are subsequently supplemented with entries that reflect Court disposition.” The parties amplified on this affidavit by stipulating that the fingerprint cards of these arrestees are sent to the FBI “within several days of the arrest and generally before trial,” as are the arrest records of “most misdemeanants, excepting traffic violators], charged with violations of the D.C. Code and arrested by the Metropolitan Police.” It was also stipulated that the arrest records of appellants Leon M. and Bolling had already been submitted to the FBI, that the records of appellants Utz and Boyd would have been routinely sent to the FBI but for an agreement between counsel not to do so pending the outcome of this case, and that although the FBI will return these records to the Metropolitan Police Department at the latter’s request, the FBI will continue to keep and disseminate all records, regardless of court disposition, unless such a return of the records is requested by the Metropolitan Police.
With the case in this posture District Judge Gesell granted appellees’ motion for summary judgment, reasoning in an oral opinion that appellants’ constitutional arguments lacked “substantiality” and that the “Duncan Ordinance” was inapplicable to the relationship between the Chief of Police and the FBI.
II
In framing the constitutional question which appellants present, it is important to state with specificity what is and what is not involved in this case. First, appellants do not seek expunge-meat of the arrest records maintained by the Metropolitan Police Department. Since they do not contend that their arrests were constitutionally invalid, they admit that the mere maintenance of a record of that fact does not violate their right to due process or allow the Police Department to retain the tainted product of a Fourth Amendment violation. Indeed, appellants recognize that there are situations in which the fact of prior arrests — even those which did not culminate in a conviction — -may be legitimately employed in the criminal justice process, whether by police investigators, judicial officers, or probation or other law enforcement officials. In such situations, there are substantial procedural safeguards and significant judicial oversight which may check any potentially improper use of the information.
Second, appellants do not challenge the constitutional propriety of disseminating particular arrest records to the FBI when there is a specific law enforcement need for those data. They recognize that the constitutional interests of privacy and due process which they assert must be protected may nevertheless be balanced against legitimate and weighty state interests, and that there will likely be situations in which the latter will override an individual’s interest in preventing dissemination.
Finally, appellants do not suggest that the Metropolitan Police Department is prohibited from routinely disseminating more limited categories of data to the FBI. For example, routinely transmitting to the FBI the fingerprints or names (without identifying data) of individuals apprehended in this jurisdiction may subserve a legitimate state interest in that it might disclose whether the individual is a fugitive from or sought as a suspect in other jurisdictions on other crimes, and thus might facilitate a determination as to whether the individual should be held while that jurisdiction undertakes proceedings to effectuate a return of the arrestee.
Thus, appellants are interjecting a relatively narrow constitutional claim: that the routine preconviction or post-exoneration dissemination to the FBI of their arrest records- — including not only their fingerprints, but also data identifying the person arrested and information concerning the details and surrounding circumstances of the arrest — violates their constitutional rights to due process, privacy, and the presumption of innocence, at least as long as the FBI continues to redisseminate that data for other than law enforcement — and particularly for employment and licensing — purposes.
Nevertheless, in granting summary judgment for appellees in this case, the District Court dismissed appellants’ constitutional claims as “makeweight” which lacked “constitutional substantiality.” This view of the merits of the constitutional contentions was apparently expressed with the District Judge’s then-recent decision of Menard v. Mitchell, 328 F.Supp. 718 (1971), in mind. In Menard, Judge Gesell, exhibiting considerable sensitivity to the constitutional questions presented by the dissemination of information to non-federal and non-law enforcement recipients by the federal government, nevertheless refused to order the FBI to expunge Menard’s arrest record. Judge Gesell believed that those constitutional questions could be avoided by construing 28 U.S.C. § 534 (1970), the statute under which the FBI conducts its reciprocal exchange of criminal records, not to “authorize dissemination of arrest records to any state or local agency for purposes of employment or licensing.” Thus, Judge Gesell cast the constitutional question in the present case as one involving the power of the Chief of Police to disseminate arrest records to the FBI for law enforcement purposes, when the FBI might subsequently make that data available only to the District of Columbia or Federal government for employment purposes. Judge Gesell found himself
unable to see any constitutional substantiality to this contention. The period is limited. The law-enforcing needs appear to the Court to greatly transcend the inconvenience if any to individuals seeking jobs from the Federal Government while they are under indictment.
As I have indicated in Menard, I feel that there is substantial authority for the Federal Executive Branch, through the President, as he has by appropriate Executive Orders, to take action to regulate and examine into the qualifications of individuals seeking Federal employment.
* * * * * *
It is also clear that the concern in the complaint that indirectly through the FBI arrest record information would be disseminated to private employers in this city or elsewhere is mistaken inasmuch as the Bureau is operating consistent with the Court’s observation in Menard. The Court takes judicial notice of the fact that the Bureau is not disseminating information to private employers and is taking appropriate steps, as it has in the past, to police any inappropriate action by police departments who obtain information in the name of law enforcement and who may be tempted to pass it on to private employers.
Although we disagree with the District Court’s pronouncement that utilization, pursuant to presidential order in the name of national security, of unexpurgated arrest information by the Federal government for employment purposes raises no substantial constitutional questions, we are not faced with that comparatively limited constitutional inquiry. Rather, we note that Congress has legislatively overruled the limitations which Judge Gesell had found on the FBI’s power to disseminate information outside of law enforcement channels. Although the FBI, shortly after the District Court’s decision in Menard, issued a directive stating that. it would comply with that decision, Congress immediately responded with Pub.L. No. 92-184, 85 Stat. 627, 642 (1971), which provides that
[t]he funds provided in the Department of Justice Appropriation Act, 1972, for Salaries and Expenses, Federal Bureau of Investigation, may be used, in addition to those uses authorized thereunder, for the exchange of identification records with officials of federally chartered or insured banking institutions to promote or maintain the security of those institutions, and, if authorized by State statute and approved by the Attorney General, to officials of State and local governments for purposes of employment and licensing, any such exchange to be made only for the official use of any such official and subject to the same restriction with respect to dissemination as that provided for under the aforementioned Act.
The FBI, pursuant to this authorization, announced that it would resume its prior practice of disseminating arrest records to banks and state and local governments for employment and licensing purposes if permissible under state law and approved by the Attorney General. See Federal Bureau of Investigation, Letter to All Fingerprint Contributors, Jan. 20, 1972. Indeed, the Justice Department has now promulgated regulations which provide that
(a) Criminal history record information contained in any Department of Justice criminal history record information system will be made available:
* * * * * *
(3) Pursuant to Public Law 92-544 (86 Stat. 115) for use in connection with licensing or local/state employment or for other uses only if such dissemination is authorized by Federal or state statutes and approved by the Attorney General of the United States. When no active prosecution of the charge is known to be pending arrest data more than one year old will not be disseminated pursuant to this subsection unless accompanied by information relating to the disposition of that arrest.
Moreover, as we previously noted in Menard v. Saxbe, 162 U.S.App.D.C. 284, 498 F.2d 1017 (1974), which reversed Judge Gesell’s decision denying Mr. Menard’s attempt to have his records with the FBI expunged, the FBI does not, in fact, enforce its statutory mandate to exercise supervision and control over the propriety of the uses to which contributing agencies put the reciprocal information they receive from the FBI.
Appellants thus contend that they are irreparably injured when their preconviction or post-exoneration arrest records are disseminated to the FBI for nationwide redistribution for both law enforcement and employment and licensing purposes. We agree that there is a substantial bundle of constitutional rights which may be unnecessarily infringed when such arrest records are transmitted to the FBI with the knowledge that they will be retransmitted to a multitude of organizations for a multitude of purposes, all of which are susceptible of abuse.
In our constitutional scheme, we operate under the salutary principle that an individual is presumed innocent of the charges of which he stands accused unless he is found guilty via a process replete with substantial procedural safeguards. An arrest record, without more, is a fact which is absolutely irrelevant to the question of an individual’s guilt. As the Supreme Court has cautioned:
The mere fact that a man has been arrested has very little, if any, probative value in showing that he has engaged in any misconduct. An arrest shows nothing more than that someone probably suspected the person apprehended of an offense. When formal charges are not filed against the arrested person and he is released without trial, whatever probative force the arrest may have had is normally dissipated.
Schware v. Board of Bar Examiners, 353 U.S. 232, 241, 77 S.Ct. 752, 757, 1 L.Ed.2d 796 (1957). And as one district court has eloquently observed:
Unresolved arrest records generally may well have significance for law enforcement purposes. They provide legitimate leads and questionable background information and may properly assist in resolving criminal actions. But charges resulting in acquittal clearly have no legitimate significance. Likewise, other charges which the government fails or refuses to press or which it withdraws are entitled to no greater legitimacy. They lose any tendency to show probable cause and should not be bootstrapped into any unearned and undeserved significance. Actually, a collection of dismissed, abandoned or withdrawn arrest records are no more than gutter rumors when measured against any standards of constitutional fairness to an individual and, along with records resulting in an acquittal are not entitled to any legitimate law enforcement credibility whatsoever.
Although the value of arrest records for law enforcement purposes has been generally, but not invariably, assumed despite the apparent conflict of this assumption with this constitutional presumption of innocence, here we are confronted with the government dissemination of arrest records in a situation in which it is known they will be utilized for employment and licensing purposes. Even if such records, as disseminated, were to include the actual disposition of the charges — and such dispositions frequently are not, in fact, included — the government knows that a derogatory inference will often nevertheless be drawn that the person who was arrested is also guilty of the crime charged. The mere fact of an arrest may impair or cloud a person’s reputation, and “[e]ven to be acquitted may damage one’s good name if the community receives the verdict with a wink and chooses to remember defendant as one who ought to be convicted.” Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). Recent decisions by this court have acknowledged the considerable barriers that an arrest record interposes to employment, educational, and professional licensing opportunities, and the regrettable fact that “so long as there exists an employable pool of persons who have not been arrested, employers will find it cheaper to make an arrest an automatic disqualification for employment”; available evidence suggests that “employers cannot or will not distinguish between arrests resulting in conviction and arrests which do not.” Indeed, appellees themselves imply that the fact of arrest should generally be taken as indicative of guilt:
There are myriad factors that may result in termination of the criminal process in a manner which in no way detracts from the proper use of the record of an arrest by law enforcement agencies. For example, witnesses may be incapacitated or unavailable, charges may be dismissed because of plea bargaining or considerations of leniency, and the government may have failed to preserve its evidence in a manner conducive to effective prosecution.
Of course, it is not inconceivable that the individual may also be absolutely innocent of any wrongdoing whatsoever. The problem is that the constitutionally improper inference of guilt will be the one frequently drawn. And even if, as the government contends, all such arrest records are nevertheless useful for law enforcement purposes, that does not necessarily justify their dissemination for employment or licensing purposes. Due process obligates the government to accord an individual the opportunity to disprove potentially damaging allegations before it disseminates information that might be used to his detriment. The proper forum for definitively adjudicating an individual’s guilt or innocence is a trial that conforms to constitutional strictures; if the government aborts that procedure or if the individual is otherwise vindicated at trial, the Constitution requires that he be treated as though he engaged in no criminal activity. For the government to disseminate an arrest record pertaining to the allegedly criminal episode, when it knows that employers may infer that the individual was guilty rather than innocent of the crime, effectively permits the government to inflict punishment despite the fact that guilt was not constitutionally established. And although it would be naive to proclaim that all individuals who are not found guilty are in fact innocent of wrongdoing, many — particularly those like appellants with no prior criminal record — will fall into the category of individuals erroneously caught up in the criminal process. “[T]here is [a] limit beyond which the government may not tread in devising classifications that lump the innocent with the guilty.” Yet in disseminating arrest records for use by banks and state and local governments for employment and licensing purposes, and in using them for its own employment purposes, the federal government would appear to be in effect lumping the innocent and guilty together, for all those arrested are likely to be denied opportunities open to individuals who have never run afoul of the law. “A government agency may not escape responsibility for improper use of material disseminated by it simply because the improper use is not mandatory and is in fact made by a third party”.
Whatever compelling interest the government might have in disseminating preconviction or post-exoneration arrest records for law enforcement purposes, it is difficult to divine any substantive interest — whether compelling or merely rational — that the government might have in disseminating such records to private or other government employers where there is no indication that the individual is in fact guilty of criminal conduct yet where it is likely that the prospective employer will utilize the mere fact of arrest to disqualify the individual from employment for which he is otherwise absolutely qualified. Indeed, one court, holding that a private employer’s practice of denying employment to individuals with arrest records violates Title VII of the Civil Rights Act of 1964 because “any policy that disqualifies prospective employees because, of having been arrested once, or more than once, discriminates in fact against [NJegro applicants,” Gregory v. Litton Systems, Inc., 316 F.Supp. 401, 403 (C.D.Cal.1970), modified on other grounds and affirmed as modified, 472 F.2d 631 (9th Cir. 1972), found as a matter of fact that
[t]here is no evidence to support a claim that persons who have suffered no criminal convictions but have been arrested on a number of occasions can be expected, when employed, to perform less efficiently or less honestly than other employees. In fact, the evidence in the case was overwhelmingly to the contrary. Thus, information concerning a prospective employee’s record of arrests without convictions, is irrelevant to his suitability or qualification for employment.
Id. at 402-403. If it is illegal for employers (including state and local government employers who are within the ambit of Title VII) to utilize arrest records not culminating in convictions to deny an individual opportunities open to those with no such records, it would appear to be just as illegal for the government to furnish the employer with the information on which such illegal actions may be based, at least when there is no legitimate law enforcement justification for providing the employer with the data.
However, to hold that appellees’ routine dissemination of preconviction and post-exoneration arrest records to the FBI, even when supplemented by disposition notations as they occur, transgresses appellants’ constitutional rights if the dissemination occurs with full knowledge that the FBI will redisseminate that information for other than law enforcement purposes, would in effect be to hold that Congress’ recent statute authorizing that practice of the FBI and the Justice Department’s implementing regulations are also unconstitutional. Thus, despite our severe doubts about the constitutionality of this practice, we are reluctant to base our decision on those grounds, particularly in the absence of the FBI as a party defendant and full briefing on the question from the Attorney General. However, appellants are also challenging the Metropolitan Police Department’s actions on statutory grounds, and there is a well-established judicial tenet that cases should be decided on available nonconstitutional grounds, as well as a sound principle that statutes should be construed, where possible, to avoid constitutional questions. Since the next section of this opinion will elaborate on the fact that the statute involved in this case — the District of Columbia’s “Duncan Ordinance” — may be construed, especially against this constitutional backdrop, to avoid these substantial questions, it is on those alternative statutory grounds that we therefore base our opinion.
Ill
On October 31, 1967, the “Duncan Ordinance,” which had been drafted by the select Committee to Investigate The Effect of Police Arrest Records on Employment Opportunities in the District of Columbia, was adopted by the District of Columbia Board of Commissioners. The Duncan Ordinance specifies:
1. That no record, copy, extract, compilation or statement concerning any record relating to any juvenile offender or relating to any juvenile with respect to whom the Metropolitan Police Department retains any record or writing, shall be released to any person for any purpose except as may be provided under D.C. Code, Section 11-1586; provided, that the release of such information to members of the Metropolitan Police Department, and the dissemination of such information by the Metropolitan Police Department to the police departments of other jurisdictions wherein juveniles apprehended in the District of Columbia may reside, shall be authorized; provided further, that the release of such information to individuals to whom the information may relate or to the parents or guardians or duly authorized attorneys of such individuals, shall be authorized in those cases in which applicants therefor present documents of apparent authenticity indicating need for such information for reasons other than employment. The term “employment”, in the context of this paragraph, shall not include military service.
2. That unexpurgated adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released to law enforcement agents upon request, without cost and without the authorization of the persons to whom such records relate and without any other prerequisite, provided that such law enforcement agents represent that such records are to be used for law enforcement purposes. The term “law enforcement agent” is limited in this context to persons having cognizance of criminal investigations or of criminal proceedings, directly involving the individuals to whom the requested records relate. The term includes judges, prosecutors, defense attorneys (with respect to the records of their client defendants), police officers, Federal agents having the power of arrest, clerks of courts, penal and probation officers and the like. It does not include private detectives and investigators; personnel investigators, directors and officers; private security agents or others who do not ordinarily participate in the process involving the detection, apprehension, trial or punishment of criminal offenders.
3. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses which have resulted in convictions or forfeitures of collateral.
4. That, subject to the foregoing, adult arrest records, as provided under D.C. Code, Section 4-134a, shall be released in a form which reveals only entries relating to offenses committed not more than 10 years prior to the date upon which such records are requested; except that, where an offender has been imprisoned during all or part of the preceding 10-year period, the record shall include entries relating to such earlier conviction.
5. That, subject to the foregoing, copies or extracts of adult arrest records, as provided under D.C. Code, Section 4-134a, or statements of the non-existence of such records shall be released to applicants therefor upon the payment of fees to be based upon the cost of editing and producing such copies, extracts or statements; provided, that applicants who are not the persons to whom such records may relate must, in addition to the required fees, present releases in appropriate form executed by the persons to whom the records may relate; provided further, that no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose.
6. That Article 47 of the Police Regulations of the District of Columbia be amended to provide that it shall be an offense punishable by a fine not to exceed $50.00, for any person to require as a condition of employment the production of any arrest record or copy, extract or statement thereof at the expense of any employee or applicant for
employment to whom such record may relate.
As has been recognized in the past, the Duncan Ordinance establishes the guidelines which' control the dissemination of arrest records in this jurisdiction; as applied to the issue before us, it is clear that the Ordinance prohibits the practice to which appellants object.
Appellant Leon M. asserts that Section 1 of the Duncan Ordinance, which except for three narrow and explicit qualifications commands that juvenile arrest records shall not be released “to any person for any purpose,” prevents the routine dissemination of such records to the FBI. Since we believe that intervening developments have mooted appellant Leon M.’s ability to challenge the Metropolitan Police Department’s actions we need not address the contours of this provision or its interaction with D.C. Code § 16-2333(a) (1973).
Although the Duncan Ordinance appears on its face to accord adults less protection than it accords juveniles, it nevertheless prevents the routine dissemination of adult arrest records to the FBI. Section 2 of the Duncan Ordinance mandates that such records shall be released to “law enforcement officers” without any prerequisite such as "paying the costs of producing and editing the records or securing authorization from the individuals to whom the records relate. However, such release is only to be made “upon request.” The FBI does not request the records which it is provided by contributing agencies; indeed, when asked whether the federal government desired to protect through intervention any interest it might have in this proceeding, the United States Attorney stated:
The United States has no interest which it seeks to protect which would - require its intervention in to Utz v. Wilson * * *.
* * * [I]t is the position of the United States of America that whether the Metropolitan Police Department or any other law enforcement agency submits arrest fingerprints to the Federal Bureau of Investigation is a matter solely within the jurisdiction of the arresting agency. Submission of such records to the Federal Bureau of Investigation is a voluntary action on the part of the law enforcement agency and the Federal Bureau of Investigation does not request the submission of such records. * * * In short, adherence by the Metropolitan Police Department to the Duncan Ordinance is consistent with the position of the Federal Bureau of Investigation.
Moreover, when a law enforcement official requests unexpurgated adult arrest records, the Duncan Ordinance specifies that he must “represent that such records are to be used for law enforcement purposes.” However, it is clear that records disseminated to the FBI will also be used by state and local governments and federally insured banks, as well as by the federal government, for employment and licensing purposes in addition to any law enforcement purposes to which the records would be put.
Finally, even if the FBFs reciprocal data exchange program could be shoehorned into the term “request,” and the representation which must be made to receive the data were interpreted only to require that some law enforcement use be made of the data rather than that such utilization be exclusive, the FBI would not be a “law enforcement agent” within the narrow definition of Section 2 of the Duncan Ordinance. That term is explicitly “limited * * * to persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate.’’ Thus, although transfer of an arrest record to the FBI would not contravene the Ordinance if that agency requested information possessed by the Metropolitan Police pertaining to individuals wanted in other jurisdictions or sought data that might be currently used in prosecutions or for sentencing recommendations, the FBI does not stand in that law enforcement role when it merely receives arrest data to store in its master “rap” sheet for potential use in such investigations or prosecutions, to say nothing of the employment' and licensing purposes for which those records are obtained.
Absent a specific law enforcement request that would satisfy Section 2 of the Duncan Ordinance, adult arrest records may only be disseminated pursuant to Sections 3 to 5 of the Ordinance. Section 3 limits disclosure of records to those offenses which have resulted in either a conviction or a forfeiture of collateral, and even those records, according to Section 5, may only be released to applicants who “present releases in appropriate form executed by the persons to whom the records may relate.” Thus, the routine and unconsented transmittal of the arrest records of all plaintiffs-appellants — including appellant Boyd, who was convicted of the crime for which he was arrested but who did not consent to dissemination of his arrest record for employment purposes — was accomplished in derogation of the apparently specific constraints of the Duncan Ordinance.
Nevertheless, despite this apparent clarity in the language of the Duncan Ordinance, the District Court held that the Ordinance did not extend to the relationship between the FBI and the Metropolitan Police Department:
The Court has examined with great care and frequently the report of the Committee to Investigate the Effect of Police Arrest Records on Employment Opportunities in the' District of Columbia, which is the so-called Duncan report that led to the enactment of the Duncan regulation. The Court is totally satisfied that the Duncan ordinance or Duncan regulation has as its essential and key purpose an effort to prevent the availability of arrest records locally to local private employers.
There is next to no discussion of the continuing necessary intimate relations between the Chief of Police and the FBI in this jurisdiction; and a host of extremely important and practical questions would be raised if the literal language of the Duncan ordinance were to be taken as a prohibition against the Chief of Police communicating on arrest record matters with the FBI.
There is such a lack of cognizance of this problem, such a lack of any precision in the ordinance, and so many uncertainties created by attempting to read the ordinance in that broad fashion that the Court has concluded as a matter of law that the Duncan regulation does not have anything to do whatsoever with the relations between the Chief of Police and the FBI with respect to the dissemination of arrest records and reliance on it by the Plaintiffs is erroneous.
In a similar vein, appellees assert that a “fair reading of the Duncan Ordinance will disclose that it is essentially designed to place limitations on the giving of arrest record data to specific private individuals requesting such data.”
We are unpersuaded by the argument that the Duncan Ordinance was not intended to have any impact whatsoever on the Metropolitan Police Department’s routine transmission of unexpurgated arrest data to the FBI. The language of the Ordinance is itself clear in limiting the dissemination of unexpurgated adult arrest records to “law enforcement agents” — defined as “persons having cognizance of criminal investigations or of criminal proceedings directly involving the individuals to whom the requested records relate” — who “request” the data and who “represent that such records are to be used for law enforcement purposes.” Routine dissemination to the FBI, which then acts as a “step-up transformer” to redisseminate the records widely to both law enforcement agencies and public and private employers, cannot be reconciled with this clear mandate.
Moreover, even if one looks to the Duncan Ordinance’s scant “legislative history” in an effort to determine whether the transmission of unexpurgated arrest records to the FBI was to continue unabated, there is no indication that this practice was to be exempted from the apparently comprehensive scope of the Ordinance. To be sure, the Committee which drafted the Duncan Ordinance was acutely concerned with the abuse of those records for employment purposes. However, it is also clear that the District Court is incorrect in stating that the Committee’s efforts were directed solely at preventing such abuse by local private employers. Section 5 of the Ordinance, in specifying that “no fee shall be required with respect to any record solicited by any agent of the Federal or District of Columbia Government for a governmental purpose,” indicates that such agents are subject to the other limitations of Section 5, including the necessity of obtaining approval from the individual to whom the records relate and the restriction of dissemination to those records where the arrest culminated in a conviction or forfeiture of collateral. Indeed, the language of the “Duncan Report” which accompanied the recommendations which eventually became the Ordinance was even more explicit that the Committee was concerned with governmental as well as private use of these records, and abuse in both employment and licensing areas. Furthermore, the Committee was cognizant of considerable testimony concerning the government’s improper use of arrest records for employment and licensing purposes. And although the most critical files of the Duncan Committee have apparently been misplaced by the Corporation Counsel, those which are still extant reveal a concern for governmental as well as private abuse of arrest data.
Appellees do not contend that the Duncan Ordinance would permit direct, routine and unconsented transmission of arrest records — even those arrest records which result in convictions — to federal or state and local government agencies for employment and licensing purposes. Yet they suggest that the Ordinance was intended to permit such transmission knowingly though indirectly through the FBI. In light of the substantial constitutional questions which we would be forced to decide if the Ordinance were to be construed in this matter, we would require more evidence than is currently available to attribute that intent to the draftsmen of the Ordinance or to the members of the District’s Board of Commissioners.
The District of Columbia sought to protect its own citizens through passage of the Duncan Ordinance. In light of the considerable obstacles which an arrest record poses to an individual’s pursuit of happiness and enjoyment of freedom and liberty, and the particularly heavy toll which such records have had on minorities in this country and in this city, such action was eminently reasonable. Of course, should the current City Council decide that “extremely important and practical questions” or any new policy considerations suggest that the literal language of the Duncan Ordinance was not or should no longer be intended to prevent the routine dissemination of arrest records to the FBI, it is free to act accordingly. Indeed, since recently promulgated Justice Department regulations concerning the dissemination of criminal history records mandate that compliance plans be submitted within 180 days after the effective date of the regulations, the City Council will have the occasion to reevaluate the proper scope of dissemination and the proper weight to be accorded individual privacy and other constitutional interests in this jurisdiction. At least until such changes are effectuated, however, we are constrained to enforce the language of the Duncan Ordinance as we believe it was intended to be enforced.
Reversed and remanded with directions to grant summary judgment for plaintiffs-appellants Utz, Boyd, and Bolling, and to enter appropriate relief.
. 84 Stat. 473 et seq. The relevant provisions of the statute took effect on February 1, 1971. See also note 9, infra.
. Although the District Court had not ruled on the appropriateness of this case for class action treatment at the time summary judgment was granted, our analysis would appear to apply to all individuals arrested in this jurisdiction after October 31, 1967. See generally, 172 U.S.App.D.C. pp. ---, 520 F.2d pp. 483-491 infra. However, we leave it to the District Court on remand to identify any certifiable classes and to fashion any relief considered necessary in light of the holding of this court.
. See 172 U.S.App
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the Court filed by Circuit Judge SILBERMAN.
Concurring Opinion filed by Circuit Judge MIKVA.
Dissenting Opinion filed by Circuit Judge HARRY T. EDWARDS.
SILBERMAN, Circuit Judge:
This appeal challenges a preliminary injunction that, as modified by the district court, forbids a number of agencies in the Executive Office of the President (“EOP”) from conducting random urinalysis drug-testing of employees with “secret” national security clearances. 712 F.Supp. 986. We hold -that the prior decisions of the Supreme Court and of this court establish the validity of random drug testing of such personnel and, therefore, reverse the district court’s decision.
I.
In 1986, President Reagan promulgated Executive Order No. 12,564, the goal of which was to create a “drug-free Federal workplace.” 51 Fed.Reg. 32,889 (Sept. 17, 1986). Pursuant to the order, in July 1988 the EOP issued its own Drug-Free Workplace Plan covering its constituent agencies. Each agency designates employees whose position requires random urinalysis testing. The actual procedures for choosing the individuals to be tested, obtaining urine specimens, and testing the specimens for drugs are substantially identical to the procedures this court upheld with respect to personnel holding “Top Secret” security clearances in Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). These procedures “significantly minimize” intrusion on the employees’ privacy expectations. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1394 n. 2, 103 L.Ed.2d 685 (1989).
On May 19, 1989, the district court entered a preliminary injunction barring the government from random drug testing of plaintiffs in the top secret and secret categories. After our decision in Harmon, the district court modified the injunction by excluding from its scope the personnel holding top secret clearances. The government now appeals the temporary injunction forbidding the testing of the personnel holding secret clearances.
II.
We are guided of course by those decisions of the Supreme Court and of this court that bear on the question. The framework of the analysis of challenges to drug testing is provided by Von Raab and Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). Von Raab and Skinner establish the following propositions: urinalysis testing is a significant intrusion into the privacy interests of employees and as such is a search within the Fourth Amendment, see Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1412-13, and it does not require a warrant, a probable cause, or any level of individualized suspicion, see Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1416-17, but is instead governed by the balancing process weighing the interests of the government qua employer against the privacy interests of the employees, see Von Raab, 109 S.Ct. at 1390; Skinner, 109 S.Ct. at 1413-14. Those governmental interests powerful enough to justify urinalysis testing include the public security interests that can be endangered by employees with access to national security information, see Von Raab, 109 S.Ct. at 1396-97, by personnel who carry firearms in the course of their employment, see National Fed’n of Federal Employees v. Cheney, 884 F.2d 603, 612-13 (D.C.Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990); by personnel with access to drugs or who prosecute drug cases, see Harmon, 878 F.2d at 490; and by employees who control or have access to dangerous instru-mentalities, see Cheney, 884 F.2d at 610-11; American Fed’n of Gov’t Employees v. Skinner, 885 F.2d 884, 891-92 (D.C.Cir. 1989), cert. denied, — U.S.-, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990). All of these propositions are now part of settled Fourth Amendment law.
Von Raab further recognized that the government has a compelling interest in the discovery of drug use to protect "truly sensitive information.” But the Court in that case used both the terms “sensitive” and “classified” in such a fashion as to suggest that it was unsure of the strength of the government’s interest in protecting the information to which some of the employees involved — such as “animal caretaker^],” “baggage clerk[s],” and “co-op students]” — had access. Von Raab, 109 S.Ct. at 1396-97. Indeed, it was not clear that those employees had security clearances of any kind.
Subsequently, in Harmon we were faced with the question of the strength of the government’s interest in the protection of top secret information. The court (unanimous on this point) was unequivocal in its assessment of this interest: “[w]hatever ‘truly sensitive’ information includes, we agree that it encompasses top secret national security information.” 878 F.2d at 491 (footnote omitted). We therefore held that a person with a top secret clearance generates sufficiently grave potential risk to national security to make the decision to conduct random urinalysis testing reasonable regardless of any other attendant circumstances. Appellees argue that Harmon short-circuited the Von Raab/Skinner balancing test by disregarding the employees’ privacy interest and by not examining the degree of supervision to which the employees were subject. Just so — in any balancing test, certain factors may be decisive whenever they are present. Implicitly, but necessarily, Harmon assumed that the degree of supervision of a holder of top secret clearance was irrelevant and that he or she had diminished privacy expectations. The government’s primary concern with regard to material classified as top secret (or secret) is that an employee could be induced, perhaps by a blackmailer who is aware of employee’s illegal drug use, to disclose the information. See Department of Navy v. Egan, 484 U.S. 518, 528, 108 S.Ct. 818, 824, 98 L.Ed.2d 918 (1988). If an employee using illegal drugs has access to the information because of his clearance, the degree of his supervision presumably would not reduce the risk of disclosure. As for the privacy interest, a number of cases, besides Harmon, have recognized that holders of security clearances have less of an expectation of privacy. See Von Raab, 109 S.Ct. at 1397 (background investigations “may be expected to dimmish [the employees’] expectations of privacy in respect of a urinalysis test”); Thomson v. Marsh, 884 F.2d 113, 115 (4th Cir.1989).
Harmon's, insight that, at its peripheries, a balancing test may be presumed always to yield one result is hardly novel. The Supreme Court has preserved the overall balancing test of “reasonableness” required by the Fourth Amendment while articulating several per se rules of specialized application which automatically allow searches of pre-determined scope under specified circumstances. See, e.g., United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982) (all containers within an automobile are subject to a search if there is cause to search the automobile itself); New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (the entire inside area of the automobile can be presumed to be within the reach of the arrestee and is subject to a search incidental to a lawful arrest); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (search incident to a lawful arrest may extend to any area “ ‘within [ar-restee’s] immediate control,’ ” id. at 763, 89 S.Ct. at 2040). Indeed, a number of drug-testing cases in this court are premised on the assumption that the commands of Von Raab can be fulfilled by drawing clear demarcation lines. We consistently assumed that some jobs performed by the federal employees create sufficiently grave risks as to make random drug testing reasonable in all circumstances. Thus, we did not place great weight on the precise type of weapons carried by the guards when we approved random urinalysis testing of them, Cheney, 884 F.2d at 612-13, and we did not base our decision that bus drivers can be tested on the precise number of people they transport, AFGE, 885 F.2d at 893.
Appellees argue, nevertheless, that the change of the threat from “exceptionally grave damage to national security” (top secret) to “serious damage to national security” (secret) is of constitutional magnitude and that we are, therefore, required to apply a different analysis than we did in Harmon — particularly because appellees imply that Harmon was itself a dubious interpretation of Von Raab and should not, therefore, be extended. We do not see, however, how the constitutional permissibility of drug testing can depend on whether the employees tested have access to information the disclosure of which causes “only” serious damage as opposed to exceptionally grave damage to national security. Nothing in Fourth Amendment jurisprudence suggests that a distinction of constitutional principle can be drawn between the two categories. That is why the dissent’s effort to draw a constitutional “line in the sand” between top secret and secret (interpreting the word “reasonable” in the Fourth Amendment) seems so labored.
And none of the claimed distinctions raised by appellees between this case and Harmon are determinative. The privacy interests of employees holding top secret and secret clearances are not significantly different: in both eases the employees know that their conduct on- and off-work is of significant concern to the federal government and that at periodic intervals the government will conduct further inquiries into their behavior and associations. See, e.g., 32 C.F.R. Part 154.19 (1989). The frequency of exposure to secret documents (or lack of it) is not crucial; in Harmon, this court held that for employees with top secret clearances, random urinalysis tests are permissible regardless of the fact that some employees may be rarely, if ever, exposed to such materials. “The whole point of granting top secret security clearances in advance is to provide flexibility, to ensure that employees can be given access to top secret materials as soon as the need arises.” Harmon, 878 F.2d at 492. Similarly, the closeness of supervision is non-dispositive in this context. Harmon rejected the argument that employees in a “traditional office environment” (one of the factors mentioned in Von Raab, 109 S.Ct. at 1397, as lessening the need for testing) are necessarily immune under the Fourth Amendment from random testing. Harmon, 878 F.2d at 492. We cannot imagine, for instance, the permissibility of testing a holder of a secret clearance turning on whether he normally worked next door to a supervisor or on the floor below.
* * * * * *
The order of the district court is reversed.
. Pursuant to the Executive Order 12356, there are three levels of national security classification: top secret, secret and confidential. "Top Secret" information is information "the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security." Id. § 1.1(a)(1). "Secret” information is information "the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security.” Id. § 1.1(a)(2). “Confidential” information is information “the unauthorized disclosure of which reasonably could be expected to cause damage to the national security.” Id. § 1.1(a)(3).
. Even if we thought Harmon was in error in presuming the results of the balancing test, we are not free to reexamine its holding other than en banc.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
NATHANIEL R. JONES, Circuit Judge.
Nell Aspero appeals from the district court’s order compelling arbitration in this tort suit against Shearson American Express, the brokerage firm with which she was formerly employed. This appeal requires interpretation of New York Stock Exchange Rule 347, which provides for settlement by arbitration of “[a]ny controversy ... arising out of the employment or termination of employment” of a registered broker. We hold that the present controversy arose out of Aspero’s employment and termination of employment as a registered broker and, therefore, we affirm the district court.
Aspero joined Shearson’s Memphis office as a broker in April, 1982 and was promoted to Second Vice-President of Investments in June, 1982. Her employment contract states:
I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the Rules, Constitutions, or ByLaws of the organizations with which I register____
One organization with which Aspero registered was the New York Stock Exchange (NYSE), whose board has promulgated Rule 347:
Any controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration____
(emphasis added).
Shearson disputes the following allegations, on which there have been no findings of fact, but maintains that all of the alleged facts arise out of Aspero’s employment and termination. Aspero contends that the actionable events were tortious acts which Shearson committed subsequent to her resignation and which did not arise out of her employment with Shearson.
In August 1982, Aspero opened a discretionary trading account on behalf of Timothy Heath. In December 1982, after Heath apparently complained about substantial losses in the account, its management was taken over by James Siegfried, the Vice-President and Resident Manager of Shear-son’s Memphis office. On March 2, 1983, Siegfried demanded that Aspero sign a $20,000 promissory note representing the losses in the Heath account to that date. Siegfried also asked for Aspero’s resignation. Aspero alleges that Siegfried threatened to fire her for making unauthorized trades in the Heath account. She alleges that she then requested meetings with Heath and with upper level Shearson management, and sought arbitration. On March 4, 1983, Aspero submitted her resignation. According to the complaint, Siegfried both promised to treat the departure as a resignation rather than as a termination and promised to give Aspero a good reference for future employment. Thereafter, Siegfried allegedly told several potential employers that Aspero was terminated for unauthorized trading rules violations. Siegfried also allegedly submitted false Uniform Termination Notice for Securities Industry Registration (“U-5”) forms to various exchanges and state offices stating that Aspero was discharged due to compliance problems.
On these alleged facts, Aspero’s claims for defamation, invasion of privacy, and intentional infliction of emotional distress by her former employer Shearson arise out of her employment with Shearson and termination of her employment with Shearson, so that the district court properly applied NYSE Rule 347 to require arbitration. Our analysis begins by recognizing that any duty to arbitrate is founded on a contractual obligation. Thus, a party may not be compelled to arbitrate unless the party has agreed to submit the dispute to arbitration. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1352, 4 L.Ed.2d 1409 (1960). A court must determine the intent of the parties as evidenced by the contract language. Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1165 (8th Cir.1984). Yet, federal policy favors arbitration. See 9 U.S.C. §§ 1-14 (1982). Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 941-42, 74 L.Ed.2d 765 (1983). “[A]s a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Id.
Aspero first claims that this action does not arise out of her employment or termination because the acts by Shearson of which she complains occurred after her contractual relationship with Shearson had been severed. Although it is created by contract, the duty to arbitrate does not necessarily end when the contract is terminated. In John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Supreme Court concluded that the parties’ obligations under an arbitration clause that was part of a collective bargaining agreement “survived contract termination when the dispute was over an obligation arguably created by the expired agreement.” Nolde Brothers, Inc. v. Local No. 358, Bakery & Confectionary Workers Union, 430 U.S. 243, 252, 97 S.Ct. 1067, 1072, 51 L.Ed.2d 300 (1977) (discussing John Wiley) (emphasis added). In Nolde, the Supreme Court determined that an employer had a continuing duty to arbitrate a severance-pay dispute.
[I]n the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract.
Nolde, 430 U.S. at 253, 97 S.Ct. at 1073. In a dispute concerning the scope of NYSE Rule 347, the arbitration clause presently under scrutiny, this Court considered the suit of two former brokers against their former employer for amounts allegedly due under a profit-sharing plan. Although the plaintiffs alleged that their profit-sharing units became payable upon severance of employment, the Court found that “the controversy clearly arises out of the ‘employment or termination of employment’ of plaintiffs,” and required the employer to arbitrate. Stokes v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 523 F.2d 433, 434, 437 (6th Cir.1975). The present controversy may arise out of Aspero’s employment or termination of employment although Shearson’s challenged acts occurred after its employment contract with Aspero had ended.
Aspero maintains further, however, that the time when the underlying contract has been terminated continues to be an important factor when a suit does not seek to enforce contractual rights created by the agreement. In Coudert v. Paine Webber Jackson & Curtis, 705 F.2d 78 (2d Cir.1983), a split panel of the Second Circuit held that, under NYSE Rule 347, “only grievances based on conditions arising ‘during the term of the agreement to arbitrate’ are arbitrable after the term has ended.” Id. at 81 (quoting Proctor & Gamble Independent Union v. Proctor & Gamble Manufacturing Co., 312 F.2d 181, 186 (2d Cir.1962)). Coudert involved a tort suit by a broker who claimed that after she voluntarily resigned her former employer libeled her to other employees and her clients, and falsely filed termination forms with several exchanges which stated that she was fired for cause. Id. at 80. The Second Circuit held that the plaintiff was not required to arbitrate her claim because “the dispute itself does not pertain to employment or termination of employment; the tortious acts are all claimed to have occurred after such termination.” Id. at 82. If this Court were to follow Coudert, Aspero’s claim would not be subject to arbitration; she advances nearly identical tort actions based on similar behavior by her former employer, and her employment was governed by the same NYSE rule.
The Eighth Circuit, however, has severely criticized Coudert’s failure to understand that “the plain language of Rule 347 does not limit arbitration to contractual disputes.” Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1167 (8th Cir.1984). The Eighth Circuit in Morgan looked neither to the timing of the action nor to the legal basis of the action as tort or contract, but instead evaluated whether the lawsuit involved “significant aspects of the employment relationship, including but not limited to explicit contractual terms.” Id. at 1167. When the employee’s role as a broker or the brokerage house’s role as an employer of brokers is the “specific source” from which a controversy arises, even a controversy that is not based upon contractual rights or duties will be subject to arbitration under Rule 347.
Morgan was a broker who alleged that his former superiors at Smith Barney “scrounged up” complaints from his former customers and communicated them to several securities enforcement agencies. He also alleged that Smith Barney personnel deliberately and falsely told customers that Morgan’s broker’s license had been suspended. The court found that these claims implicated Morgan’s brokerage customers, his status as a broker, his handling of customer accounts, and that in general the findings necessary to resolve these issues bore a “significant relationship” with “his employment at Smith Barney.” Id. at 1167. Therefore, although the challenged acts occurred after Morgan left Smith Barney, the related controversy arose out of his employment as a broker and was subject to arbitration under NYSE Rule 347. By contrast, the court found that Morgan’s allegations that Smith Barney personnel told his former coworkers that he had stolen items from their desks at night did not arise out of his employment or termination of employment as a broker. The court stated:
No customers or securities agencies are implicated, and no significant issue of Morgan’s job performance qua broker is implicated.
Id. at 1168.
Morgan is well-reasoned. We hold that when a party subject to NYSE Rule 347 seeks to compel arbitration of a claim which is brought after the termination of the employment relationship, and which is not based upon a contractual right or duty created by the employment agreement (for example by a severance pay clause or a non-solicitation agreement, which are both intended to operate following termination), the proper question is whether resolution of the claim depends upon evaluation of a party’s performance either as a broker or as an employer of brokers during the time of the contractual relationship.
When this test is applied to the underlying facts of Aspero’s claims, it is clear that her claims arise out of her employment and termination as a broker and are properly subject to arbitration. Each claim depends upon a determination of Aspero’s performance as a broker while employed by Shearson. The brokerage house’s claim that Aspero engaged in unauthorized trading goes to the core of her role as a broker. If Shearson proves its case, Aspero was properly terminated. The factual essence of this lawsuit arises out of both Aspero’s employment by Shearson and her alleged termination by Shearson. That Shearson’s actions occurred following Aspero’s allegedly voluntary resignation is relevant but in no way dispositive of this case. Whether she was fired or freely resigned is a fact yet to be determined.
For the foregoing reasons, the district court’s order compelling arbitration is Affirmed.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
CHAPMAN, Circuit Judge:
This lawsuit arises out of an “ad parody” that appeared in the November 1983 and March 1984 issues of Hustler, which is published by defendants Larry Flynt and Hustler Magazine, Inc. (Hustler), and is distributed by defendant Flynt Distributing Company (FDC). The subject of this parody was the Reverend Jerry Falwell, a well-known pastor and commentator on political issues. Falwell sued the defendants for libel, invasion of privacy, and intentional infliction of emotional distress. At the close of evidence, the district court dismissed Falwell’s claim for invasion of privacy and sent the other two claims to the jury. The jury found against Flynt and Hustler on the emotional distress claim and against Falwell on the libel claim.
These defendants have appealed, and Falwell has filed a cross appeal. The issues before this court can be grouped into four categories: the constitutional issues, the common law tort issues related to intentional infliction of emotional distress, the evidentiary issues, and finally, Falwell’s cross appeal, which claims that the district court erred in dismissing his claim for invasion of privacy.
I
The “ad parody” which gives rise to the instant litigation attempts to satirize an advertising campaign for Campari Liqueur. In the real Campari advertisement celebrities talk about their “first time.” They mean, their first encounter with Campari Liqueur, but there is double entendre with a sexual connotation. In the Hustler parody, Falwell is the celebrity in the advertisement. It contains his photograph and the text of an interview which is attributed to him. In this interview Falwell allegedly details an incestuous rendezvous with his mother in an outhouse in Lynchburg, Virginia. Falwell’s mother is portrayed as a drunken and immoral woman and Falwell appears as a hypocrite and habitual drunkard. At the bottom of the page is a disclaimer which states “ad parody — not to be taken seriously.” The parody is listed in the table of contents as “Fiction; Ad and Personality Parody.”
Falwell was first shown the ad parody by a reporter in the fall of 1983. Shortly thereafter, he filed suit against Flynt, Hustler and FDC in the United States District Court for the Western District of Virginia. Falwell alleged three theories of liability: libel, invasion of privacy under Va. Code § 8.01-40 (1984), and intentional infliction of emotional distress. Hustler then republished the parody in its March 1984 issue.
In June 1984, Falwell’s counsel took Larry Flynt’s deposition, which was recorded on video tape. During the deposition Flynt identified himself as Christopher Columbus Cornwallis I.P.Q. Harvey H. Apache Pugh and testified that the parody was written by rock stars Yoko Ono and Billy Idol. It also contained the following colloquy concerning the parody:
Q. Did you want to upset Reverend Falwell?
A. Yes....
Q. Do you recognize that in having published what you did in this ad, you were attempting to convey to the people who read it that Reverend Falwell was just as you characterized him, a liar?
A. He’s a glutton.
Q. How about a liar?
A. Yeah. He's a liar, too.
Q. How about a hypocrite?
A. Yeah.
Q. That’s what you wanted to convey? A. Yeah.
Q. And didn’t it occur to you that if it wasn’t true, you were attacking a man in his profession?
A. Yes.
Q. Did you appreciate, at the time that you wrote “okay” or approved this publication, that for Reverend Falwell to function in his livelihood, and in his commitment and career, he has to have an integrity that people believe in? Did you not appreciate that?
A. Yeah.
Q. And wasn’t one of your objectives to destroy that integrity, or harm it, if you could?
A. To assassinate it.
[J.A. 901-902].
Trial began in December 1984. While the district court had initially granted the defendant’s pretrial motion to suppress the deposition on the grounds that Flynt could not comprehend the obligation of the oath or give a correct account of events, the district court reversed itself on the first day of trial and permitted Falwell to introduce an edited version containing only those portions relevant to the instant lawsuit. The defendants then showed the jury the entire deposition, stating that the edited deposition was misleading. In spite of the defendants’ strenuous objections, the district court also permitted the introduction of the two Hustler issues containing the parody and excerpts from prior issues that had lampooned Falwell.
At the close of evidence, the district court dismissed Falwell’s invasion of privacy claim brought under Va.Code 8.01-40 (1984), which creates a cause of action for damages arising from the use of a person’s name or likeness for purposes of trade or advertising without his consent. The district court ruled that although the parody used FalwelPs name and likeness, the use was not for purposes of trade within the meaning of the statute.
The jury returned a verdict for the defendants on the libel claim, finding that no reasonable man would believe that the parody was describing actual facts about Falwell. On the emotional distress claim, the jury returned a verdict against Flynt and Hustler, but not F.D.C. The jury awarded $100,000 in actual damages, $50,000 in punitive damages against Flynt, and $50,000 in punitive damages against Hustler.
II
The defendants make two constitutional arguments. First, they assert that since Falwell is admittedly a public figure the actual malice standard of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) must be met before Falwell can recover for emotional distress. They argue that the actual malice standard has not been met. Second, the defendants contend that since the jury found that the parody was not reasonably believable, the statements contained therein cannot be statements of fact but must be opinion and are, therefore, completely shielded by the first amendment.
The defendants maintain initially that since Falwell is a public figure, they are entitled to the same level of first amendment protection in an action for intentional infliction of emotional distress that they would receive in an action for libel. We agree. Once an action for libel was a plaintiff's sole remedy for a defamatory publication in a news medium. The last century has, however, seen the acceptance of the new emotional distress and invasion of privacy torts which may arise from the same underlying facts. Thus, while a tortious publication once gave rise only to an action for libel, it may now support the additional claims. There has been, of late, a growing trend toward pleading libel, invasion of privacy and intentional infliction of emotional distress in lawsuits arising from a tortious publication. Mead, Suing the Media for Emotional Distress: A Multi-Method Analysis of Tort Law Evolution, 23 Wash. L.J. 24 (1983). The instant case typifies this trend; Falwell asserted all three theories of liability.
In New York Times, the Supreme Court determined that libel actions brought by public officials against the press can have a chilling effect on the press inconsistent with the first amendment. Therefore, when a public official sues for libel based upon a tortious publication, the defendant is entitled to a degree of first amendment protection. This protection has been extended to cases in which the plaintiff is a public figure, Curtis Publishing Company v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and to actions of invasion of privacy for casting the plaintiff in a false light, Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967), but not to cases in which the plaintiff is a private figure. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). It is not the theory of liability advanced, but the status of the plaintiff, as a public figure or official and the gravamen of a tortious publication which give rise to the first amendment protection prescribed by New York Times.
In the case at bar, Falwell is a public figure, and the gravamen of the suit is a tortious publication. The defendants are, therefore, entitled to the same level of first amendment protection in the claim for intentional infliction of emotional distress that they received in Falwell’s claim for libel. To hold otherwise would frustrate the intent of New York Times and encourage the type of self censorship which it sought to abolish.
The issue then becomes what form the first amendment protection should take in an action for intentional infliction of emotional distress. The defendants argue that Falwell must prove that the parody was published with knowing falsity or reckless disregard for the truth. This is the actual malice standard of New York Times v. Sullivan. While we agree that the same level of protection is due the defendants, we do not believe that the literal application of the actual malice standard which they seek is appropriate in an action for intentional infliction of emotional distress.
The actual malice standard originated as a remedy for the first amendment problem that arises under common law defamation. Historically, the individual’s interest in a good reputation has been regarded as so significant that the law has held one who intentionally published defamatory material to a standard of strict liability. But recognizing that people in a free society must have ready access to information and ideas if that society is to endure, the established common law attempted to reconcile these divergent interests by holding a publisher strictly liable for his publication unless he could prove that the publication was either true or subject to a conditional privilege. There was no privilege for a good faith mistake of fact. Owens v. Scott Publishing, 46 Wash.2d 666, 284 P.2d 296 (1955), cert. denied 350 U.S. 968, 76 S.Ct. 437, 100 L.Ed. 840 (1956); Peck v. Tribune Company, 214 U.S. 185, 29 S.Ct. 554, 53 L.Ed. 960 (1909).
The Supreme Court changed the law in New York Times v. Sullivan. The court held that defendants could be held liable for defamation of public officials only if the defamatory falsehood was published with actual malice. The effect of New York Times and its progeny is to increase the level of fault necessary for a public figure to prevail in an action for defamation. Where the defendant was once held strictly liable for a false publication, he is now held liable only for his knowing or reckless misconduct. New York Times gives the press protection from honest mistakes, but it is not a license to lie.
The use of calculated falsehood, however, would put a different cast on the constitutional question. Although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity---- Hence the knowingly false statement and the false statement made with reckless disregard of the truth, do not enjoy constitutional protection.
Garrison v. Louisiana, 379 U.S. 64, 75, 85 S.Ct. 209, 216, 13 L.Ed.2d 125 (1964).
When applied to a defamation action, the actual malice standard alters none of the elements of the tort; it merely increases the level of fault the plaintiff must prove in order to recover in an action based upon a publication. Requiring a plaintiff to prove knowledge of falsity or reckless disregard of the truth in an action for intentional infliction of emotional distress would add a new element to this tort, and alter its nature. The defendants argue that New York Times dictates such a result. But their argument emphasizes the language “falsity or ... disregard for the truth,” and thus misreads New York Times. Properly read, New York Times focuses on culpability. The emphasis of the actual malice standard is “knowing ... or reckless.”
The first of the four elements of intentional infliction of emotional distress under Virginia law requires that the defendant’s misconduct be intentional or reckless. This is precisely the level of fault that New York Times requires in an action for defamation. The first amendment will not shield intentional or reckless misconduct resulting in damage to reputation, and neither will it shield such misconduct which results in severe emotional distress. We, therefore, hold that when the first amendment requires application of the actual malice standard, the standard is met when the jury finds that the defendant’s intentional or reckless misconduct has proximately caused the injury complained of. The jury made such a finding here, and thus the constitutional standard is satisfied.
The defendants also argue that since the jury found that a reader could not reasonably believe that the parody was describing actual facts about Falwell, it must be an opinion and therefore is protected by the first amendment. At common law the dichotomy between statements of fact and opinion was often dispositive in actions for defamation. An action for intentional infliction of emotional distress concerns itself with intentional or reckless conduct which is outrageous and proximately causes severe emotional distress, not with statements per se. We need not consider whether the statements in question constituted opinion, as the issue is whether their publication was sufficiently outrageous to constitute intentional infliction of emotional distress. The defendants’ argument on this point is, therefore, irrelevant in the context of this tort.
Ill
The defendants argue that since Falwell was unable to recover for libel, he cannot recover for emotional distress. It is the defendant’s theory that emotional distress is intended to provide tort remedies to plaintiffs who have none, but that intentional infliction of emotional distress is not available when the conduct complained of falls well within the ambit of other traditional tort liability. While there is some support for the defendant’s position in at least one jurisdiction, see Fischer v. Maloney, 43 N.Y.2d 553, 373 N.E.2d 1215, 402 N.Y.S.2d 991 (1978), we believe the law of Virginia to be otherwise. Raftery v. Scott, 756 F.2d 335 (4th Cir.1985). The elements of libel and intentional infliction of emotional distress are different and the facts in the instant case will independently support the latter tort. We are convinced, therefore, that Falwell’s failure to recover for libel does not, as a matter of law, prevent him from recovering for intentional infliction of emotional distress. Cf. Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3rd Cir.1979) (en banc).
The defendants also argue that Falwell presented insufficient evidence to sustain any of the elements of intentional infliction of emotional distress. We may reverse a jury verdict only when there is a complete absence of facts to support the conclusions reached by the jury. Sherril White Construction, Inc. v. South Carolina National Bank, 713 F.2d 1047 (4th Cir.1983). The four elements which must be shown in order to recover for intentional infliction of emotional distress in Virginia have been set forth in footnote 4.
In his deposition, Flynt testified that he intended to cause Falwell emotional distress. If the jury found his testimony on this point to be credible, then it could have found that Falwell satisfied the first element. Evidence of the second element, outrageousness, is quite obvious from the language in the parody and in the fact that Flynt republished the parody after this lawsuit was filed. The final elements require the plaintiff to prove that the defendant’s conduct proximately caused severe emotional distress. At trial, when Falwell was asked about his reaction to the parody, he testified as follows:
A. I think I have never been as angry as I was at that moment____ My anger became a more rational and deep hurt. I somehow felt that in all of my life I had never believed that human beings could do something like this. I really felt like weeping. I am not a deeply emotional person; I don’t show it. I think I felt like weeping.
Q. How long did this sense of anger last?
A. To this present moment.
Q. You say that it almost brought you to tears. In your whole life, Mr. Falwell, had you ever had a personal experience of such intensity that could compare with the feeling that you had when you saw this ad?
A. Never had. Since I have been a Christian I don’t think I have ever intentionally hurt anybody. I am sure I have hurt people but not with intent. I certainly have never physically attacked anyone in my life. I really think that at that moment if Larry Flynt had been nearby I might have physically reacted.
A colleague of Falwell s, Dr. Ron Godwin, testified that Falwell’s enthusiasm and optimism visibly suffered as a result of the parody. Godwin also stated that Falwell’s ability to concentrate on the myriad details of running his extensive ministry was diminished. This testimony would enable a jury to find that Falwell’s distress was severe and that it was proximately caused by defendant’s publication of the parody. We find, therefore, that the evidence is sufficient to sustain the jury’s verdict against the defendants for intentional infliction of emotional distress.
IV
The defendants appeal several evidentiary rulings made by the district court during the course of trial. The primary issue involves the district court’s decision to admit Flynt’s videotaped deposition. The defendants argue that Flynt was mentally incapable of telling the truth at the time he was deposed. At common law a charge of mental incapacity could be used to challenge a witness’ competency to testify, but under the Federal Rules of Evidence this objection excludes testimony only in the rare case in which the judge finds that because of the witness’ infirmities, the proffered testimony fails to meet the relevancy requirements of Rules 104(b), 401 and 403. Consequently, in cases in which lawyers would have once argued to the judge that a witness should not be heard, they now argue to the jury that the witness should not be believed. J. Weinstein & M. Berger, 3 Weinstein’s Evidence, § 607[04] (1985). The Notes of Advisory Committee on Proposed Rules for Rule 601 offer the following instruction:
No mental or moral qualifications for testifying as a witness are specified. Standards of mental capacity have proved elusive in actual application. A leading commentator observes that few witnesses are disqualified on that ground. Discretion is regularly exercised in favor of allowing the testimony. A witness wholly without capacity is difficult to imagine. The question is one particularly suited to the jury as one of weight and credibility, subject to judicial authority to review the sufficiency of the evidence. (Citations omitted)
We agree with these authorities. The relevant question posed by Flynt’s deposition testimony was not one of competency but rather of credibility. The district court did not abuse its discretion in admitting that evidence.
The defendants argue that the district court erred in admitting derogatory statements about Falwell that had been published in prior issues of Hustler. The defendants admit that these statements might be indicative of hatred or ill will toward Falwell, but they argue such evidence is not relevant to the actual malice inquiry necessitated by Falwell’s libel claim. It is, however, well established that the jury may infer from the totality of the defendant’s conduct toward a plaintiff “a predetermined and preconceived plan to malign [plaintiff’s] character” and cause him injury which is, of course, a functional definition of actual malice. Goldwater v. Ginzburg, 414 F.2d 324 (2d Cir.1969), cert. denied 396 U.S. 1049, 90 S.Ct. 701, 24 L.Ed.2d 695 (1970). This evidence was properly admitted.
The defendants also objected to the introduction of those issues of Hustler in which the parody had appeared. They maintained that the magazines were irrelevant in the first place and more prejudicial than probative in the second place. The context in which the parody was published is relevant to Falwell’s libel claim on the issue of the credibility of the statements made about Falwell and on the issue of damages. The defendants’ objection that these magazines were more prejudicial than probative must also fail, since it was necessary for the jury to see the parody in context in order to decide these issues. See Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir.1985).
V
At the close of evidence, the district court dismissed Falwell’s action for invasion of privacy pursuant to Va.Code § 8.01-40 (1985) on the grounds that the ad parody which appeared in Hustler did not constitute a use of Falwell’s name and likeness “for purposes of trade” within the meaning of the statute. Falwell has filed a cross appeal alleging that the district court erred in this ruling. We disagree.
The Virginia statute reads, in pertinent part:
Any person whose name, portrait, or picture is used without having first obtained the written consent of such person ... for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person’s name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant shall have knowingly used such person’s name, portrait or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award exemplary damages.
There are no decisions of the Virginia courts which construe this statute. This statute is, however, substantially similar to § 51 of the New York Civil Rights Law. This court has looked to the New York courts for guidance in construing the Virginia privacy statute. Brown v. American Broadcasting Co., 704 F.2d 1296 (4th Cir. 1983).
In order to further the legitimate dissemination of news and information, the New York courts have routinely held that use of a public figure’s name or likeness cannot constitute a use for purposes of trade. See Humiston v. Universal Film Mfg. Co., 189 App.Div. 467, 178 N.Y.S. 752 (1st Dep’t 1919) and Gautier v. Pro-Football, Inc., 304 N.Y. 354, 107 N.E.2d 485 (1952). There is an exception to this general rule which holds that if the use of a public figure’s name or likeness is infected with substantial and material falsification, and if it is published with knowledge of such falsification or with reckless disregard for the truth, then it is a use for purposes of trade and the public figure can recover. Spahn v. Julian Messner, Inc., 21 N.Y.2d 124, 233 N.E.2d 840, 286 N.Y.S.2d 832 (1967), appeal dismissed 393 U.S. 1046, 89 S.Ct. 676, 21 L.Ed.2d 600 (1969). This exception has been further refined in the case of Hicks v. Casablanca Records, 464 F.Supp. 426 (S.D.N.Y.1978) in which the court held that in addition to containing substantial and material falsification, the use of the public figure’s name or likeness must take such a form that the reader would reasonably believe the falsification. Thus, in Spahn where the use took the form of biography, there was a use for purposes of trade, but in Hicks where the use took the form of a novel, there was no use for purposes of trade.
Because the jury found that the parody in the instant case was not reasonably believable and because it contained a disclaimer, publication of the parody did not constitute a use of Falwell’s name and likeness for purposes of trade. The district court properly dismissed this claim. For these reasons, the decision of the district court is affirmed.
AFFIRMED.
. Defendants argue that the more vile and outrageous the statement about a public figure, the greater the protection to the publisher because the public is not apt to believe such a statement.
. "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”
376 U.S. at 279-80, 84 S.Ct. at 726.
. Actual malice under New York Times is different from common law malice, which is the intentional doing of a wrongful act without just cause or excuse, with an intent to inflict an injury or under circumstances that the law will imply an evil intent. New York Times' actual malice might be better understood if designated as "constitutional malice” or "publication malice.”
. In Virginia, the essential elements to be proved in an action for intentional infliction of emotional distress are that the wrongdoer’s conduct (1) is intentional or reckless; (2) offends generally accepted standards of decency or morality; (3) is causally connected with plaintiffs emotional distress; and (4) caused emotional distress that was severe. Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145, 148 (1974).
. He had recently suffered a broken leg and was on medication.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | D | songer_casetyp1_5-3 |
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 "privacy".
ARNOLD, Circuit Judge.
This case involves policies of the Iowa Department of Corrections which permit strip searches, urinalyses, and blood tests of correctional officers and searches of the officers’ cars. The District Court granted a preliminary injunction preventing the Department from conducting these searches except under specified conditions. We hold that the District Court did not abuse its discretion in granting this preliminary relief and therefore affirm its order.
I.
Plaintiff McDonell began work as a correctional officer at the Iowa Men’s Reformatory in 1979. Upon starting his employment at this facility, McDonell signed a consent-to-search form. On January 17, 1984, prison officials informed McDonell that they had received information that he was seen the previous weekend with persons suspected of trafficking in illegal drugs. They asked him to take a urinalysis test. McDonell eventually refused to take the test and was fired on January 19. After this lawsuit was initiated, McDonell was reinstated but transferred to a different institution and lost ten days’ pay.
The plaintiffs Sally Phipps and M. Lee Curran are correctional officers at Iowa Correctional Institution for Women. On August 2, 1983, they were told by prison officials that the Department planned to conduct strip searches, blood tests, and urinalyses on Department employees and were asked to sign a form consenting to such searches. Both women refused to sign the consent form, and they were told that they would be subject to compelled urinalyses, blood tests, strip searches, and searches of their vehicles, despite their refusal to sign the form.
The plaintiffs filed this lawsuit on Janu-, ary 31, 1984. After a hearing at which all ; parties participated, the District Court is-: sued a temporary restraining order and j then a preliminary injunction prohibiting the Department from conducting strip 1 searches, blood tests, and urinalyses unless the searching officials have a reasonable suspicion, based on specific objective facts and reasonable inferences, that the employee is smuggling contraband or under the influence of alcohol or a controlled substance. The court also enjoined the warrantless search of employees’ automobiles parked outside the confines of a prison facility.
II.
On appeal, the defendants urge that the District Court erred in several respects: (1) in requiring a “reasonable suspicion” rather than a “mere suspicion” as the basis for conducting the strip searches and tests in question; (2) in holding that the consent form was not a valid waiver of Fourth Amendment rights; (3) in requiring a valid warrant or consent for searches of automobiles parked outside of the prison walls; and (4) in concluding that plaintiffs were under a threat of irreparable harm.
On review of the grant or denial of a preliminary injunction, our inquiry is limited to determining whether the District Court abused its discretion. Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 n. 8 (8th Cir.1981) (en banc). In making this determination, we must specifically consider four factors: (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest.
After considering these four factors, we are not convinced that the District Court abused its discretion in granting the preliminary relief described above. The violation of privacy in being subjected to the searches and tests in question is an irreparable harm that could reasonably be found to outweigh whatever increase in security the enforcement of the Department’s policies might produce. The District Court’s assessment of the parties’ likelihood of success on the merits, when viewed against the background of the other Dataphase factors, is not so unreasonable as to deserve condemnation as an abuse of discretion. See Hunter v. Auger, 672 F.2d 668, 674-75 (8th Cir.1982).
Although we uphold the preliminary injunction which the District Court issued, this holding does not reach the merits of this dispute, since it is based upon an abuse-of-discretion standard of review. Hence, our holding does not in any way affect the defendants’ right to litigate the constitutionality of the disputed policies at the trial on the merits or before this Court on a subsequent appeal from the District Court’s final judgment.
Affirmed.
. The Hon. Harold D. Vietor, United States District Judge for the Southern District of Iowa.
. At oral argument we were informed that some new evidence, not now in the record, will be offered at the trial on the merits.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | E | songer_casetyp1_5-3 |
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 "privacy".
BARRETT, Circuit Judge.
This appeal is from the district court’s dismissal of appellants’ complaint for failure to state a claim upon which relief can be granted. The appellants are the Denver Policemen’s Protective Association and individual officers of the Denver police force, hereinafter collectively referred to as the Association.
The alleged cause of action arose from an order compelling discovery of police investigative files issued by Judge Lichtenstein of the Second Judicial District Court in and for the City and County of Denver. This order was entered following a hearing on a pretrial motion filed in the case of People v. Cole, Criminal Action No. 79CR0664.
The defendant in that case, Michael Cole, who is an appellee here, was arrested for assaulting a police officer. In preparation of his defense, Mr. Cole filed a motion to compel discovery of personnel and staff inspection bureau (SIB) files of each police officer present at his arrest. His purpose in requesting the files was discovery of potentially exculpatory material.
Judge Lichtenstein granted Cole’s motion with the understanding that the court would review the requested material in camera to ascertain if it included exculpatory material. The People sought a writ of mandamus in the Colorado Supreme Court to have Judge Lichtenstein’s order vacated. The Colorado Supreme Court dismissed the petition without prejudice.
At a subsequent hearing on the motion, Judge Lichtenstein ordered Mr. Cole to issue a subpoena duces tecum to Police Chief Arthur Dill. The People, joined by the Association, filed a motion to quash the subpoena or for protective orders. At the hearing on this motion, Judge Lichtenstein indicated he had reviewed the requested files in camera. He found, after applying a balancing test, that Michael Cole was not entitled to the personnel files but that some of the material in the SIB files was exculpatory. He then ordered in camera inspection of the SIB filed by counsel for the parties. This order was stayed to allow the Association to petition the Colorado Supreme Court for rehearing on the writ of mandamus. The Colorado Supreme Court again denied the petition.
The Association then brought an action, from which the instant appeal has been taken, in the United States District Court for the District of Colorado based upon 42 U.S.C.A. § 1983. The Association sought a preliminary injunction and a permanent injunction against defense counsel’s discovery of SIB files in the case of People v. Cole. It also sought a permanent injunction against future discovery orders for SIB files by Judge Lichtenstein and the District Court of the Second Judicial District. Defendants, Judge Lictenstein and Michael Cole, filed a motion to dismiss for lack of jurisdiction and failure to state a claim. The District Court conducted an evidentiary hearing on the plaintiffs’ motion for preliminary injunction. Plaintiffs presented testimony of some five police personnel and certain documentary evidence. The defendants offered in evidence a copy of the Colorado Open Records statute. These matters were before the court and properly considered in relation to the defendants’ motion to dismiss.
The District Court dismissed the case for failure to state a claim in light of the Colorado Supreme Court decision in Martinelli v. District Court in and for the City and County of Denver, 612 P.2d 1083 (Colo. 1980) [hereinafter referred to as Martinelli]. The Martinelli decision was handed down in the interim of filing this suit and the District Court’s dismissal order.
.The Association contends that the District Court erred in dismissing its complaint in that Judge Lichtenstein’s order compelling discovery, (1) violated the police officers’ right to privacy in the SIB files, (2) violated a governmental-executive privilege in the files, and (3) denied the police officers equal protection in regard to their right to privacy and privilege against self-incrimination.
I.
To establish a cause of action under 42 U.S.C.A. § 1983, a party must show that the defendant acted under color of state law and, in so doing, deprived the plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Parralt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Smart v. Villar, 547 F.2d 112 (10th Cir. 1976). Thus, in effect, we are asked to decide if the District Court was implicitly correct in finding that Judge Lichtenstein did not deprive the Association of its rights by ordering discovery of the SIB files. More specifically, the issue is whether or not police investigative files are subject to discovery and if so, under what circumstances.
The Association contends that the officers and citizens who make statements in the course of an investigation have a right to privacy in the SIB files. The Association defines this right to privacy as a right to confidentiality. It is, specifically, a right to prevent disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The United States Supreme Court again identified this right in Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977), wherein the Court said,
We may agree with appellant that, at least when government intervention is at stake, public officials, including the President, are not wholly without constitutionally protected privacy rights in matters of personal life unrelated to any acts done by them in their public capacity. [Emphasis added].
Id. at 457, 97 S.Ct. at 2797.
While the SIB files at issue here may have some personal data in them, the documents subject to Judge Lichtenstein’s order did not contain personal data. Those documents related simply to the officers’ work as police officers. [Testimony of Captain Pennel, R., Vol. II, p. 45],
In Martinelli, the Colorado Supreme Court recognized that personal data which is not of a highly personal or sensitive nature may not fall within the zone of confidentiality. Martinelli at p. 1092.
In some circumstances the SIB files may contain personal data which could give rise to a right to confidentiality. However, the Association concedes that a right to confidentiality in the files is not absolute. The Association acknowledges the balancing test as set out in Martinelli. In applying this test the court must consider, (1) if the party asserting the right has a legitimate expectation of privacy, (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner. Martinelli at 1091.
The expectation of privacy is found in the fact that statements by officers taken in the course of investigation are made with the understanding that they are confidential and will not be used for other purposes. The Association attempts, however, to bolster the right to privacy with a Fifth Amendment privilege. The attempt must fail. The connection between the Fifth Amendment privilege against self-incrimination and the right to privacy was discounted in Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).
Assuming that the police officers have a legitimate expectation of privacy, the right may be overridden by a compelling state interest. The compelling state interest involved here is ascertainment of the truth.
We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.
United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974).
Wood v. Breier, 54 F.R.D. 7 (E.D.Wis. 1972), involved a § 1983 action by a citizen against police, wherein the court found that the police chief was not entitled to a protective order preventing discovery of police investigative files. The court said:
Thus, it is of special import that suits brought under this statute be resolved by a determination of the truth rather than by a determination that the truth shall remain hidden.
54 F.R.D. at p. 11.
Inasmuch as the instant case involves a “swearing match” between the accused and police officers, ascertainment of the truth is of particular importance.
Another compelling state interest in discovery of the SIB files is the defendant’s right to exculpatory material. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) teaches us that discovery of exculpatory material is a compelling state interest and is, indeed, an integral part of the right to a fair trial. Judge Lichtenstein and Judge Matsch both pertinently observed that when the only prosecution witnesses are the police officers involved, anything that goes to their credibility may be exculpatory. At any rate, Judge Lichtenstein balanced this right to exculpatory material against the officers’ right to privacy and determined that the defendant’s right to exculpatory material prevailed. In our view this decision was not erroneous.
Finally, in discussing the right to privacy, we find that Judge Lichtenstein permitted disclosure of the SIB files in a manner least intrusive on any right to confidentiality the officers may have had. After in camera review, Judge Lichtenstein deleted all materials concerning personal data. In camera inspection has been sanctioned as an appropriate means of disclosure. Nixon v. Administrator of General Services, supra; United States v. Reynolds, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727 (1953); United States v. O’Neill, 619 F.2d 222 (3d Cir. 1980); Martinelli, supra.
It is our view that Judge Lichtenstein correctly applied the balancing test and took every precaution to protect any right to privacy the police officers may have had in the SIB files. There was not “such a gross abuse of privacy as to amount to an abridgement of fundamental constitutional guarantees ...” Baker v. Howard, 419 F.2d 376, 377 (9th Cir. 1969). The District Court implicitly so found in granting the motion to dismiss.
The Association claims that it is not being afforded equal protection of its right to privacy. We find no merit in this argument. It is ironic, we believe, that the Association asserts that its right to privacy is the same as a citizen’s, no greater or no less, while at the same time asserting that SIB files should be afforded greater protection than citizens’ “rap” sheets, which it concedes are routinely discoverable. For purposes of the right to privacy, we fail to discern any distinction between “rap” sheets and SIB files. Both involve investigative materials concerning a person, whether that person be an ordinary citizen or a police officer.
II.
The Association contends that disclosure of SIB files would violate their executive or governmental privilege. We recognize that the distinction between “rap” sheets and SIB files may have some importance relative to the issue of executive privilege.
The executive privilege allows governmental department heads to prevent disclosure of documents within their control, if nondisclosure would serve the public interest. The privilege is not absolute. The government’s interest in maintaining confidentiality must be weighed against the interest of those who seek discovery of the material. Nixon v. Administrator of General Services, supra; United States v. Reynolds, supra; United States v. O’Neill, supra.
The Association asserts that the government interest in confidentiality is of paramount importance because if they cannot guarantee confidentiality, citizens and police officers alike will be reluctant to make statements or likely fail to be completely candid in their statements. They further assert that lack of such statements will impede future investigations and ultimately interfere with the proper functioning of the police department.
Judge Lichtenstein’s discovery order did not mandate wholesale disclosure of SIB files in every case. The balancing test as applied here and the rules of evidence concerning relevancy and materiality provide safeguards against unlimited review. A trial judge is adequately equipped with the rules of criminal procedure to protect the confidentiality of a witness who fears reprisals. This factor is one to consider in applying the balancing test on a case-to-case basis. Thus, a complete ban on disclosure of SIB files is not necessary to protect the government’s or the public’s interest. Moreover, it is doubtful that citizens and police officers will absolutely refuse to cooperate in investigations because of a few isolated instances of disclosure. This is evidenced by the fact that, in the past, other Denver police department SIB files have been turned over pursuant to subpoenas. The argument that governmental processes would be frustrated has been rejected by the Supreme Court in United States v. Nixon, supra, at 712, 94 S.Ct. at 3109. In Wood v. Breier, supra, the court rejected the same argument made by the defendant Milwaukee Police Department. The court said:
The danger of doing harm to the Milwaukee Police Department by allowing discovery of this file is not nearly so great as the harm that would surely result to the efficacy of our entire legal structure, including the Milwaukee Police Department, if a case such as this were won because the truth was hidden.
54 F.R.D. at p. 3.
We are not unmindful that the Association has an interest in keeping its files confidential. However, this interest is outweighed by Mr. Cole’s interest in and necessity for the materials. In the case of In re Irving, 600 F.2d 1027, 1036 (2d Cir. 1979), cert. denied, 444 U.S. 866, 100 S.Ct. 137, 62 L.Ed.2d 89 (1979) the court discussed the balancing test when a governmental privilege was asserted, and stated:
Indeed, the considerations supporting disclosure in the case at bar are even stronger than those in Nixon in that the rights of defendants are at stake rather than the interests of the prosecution.
Judge Lichtenstein was careful to limit disclosure of the SIB files so as not to unduly interfere with governmental processes. He specifically instructed counsel that any opinions or policy decisions of investigative officers were exempt from discovery. He personally reviewed counsel’s notes to make sure that they so limited their discovery.
In further support of their executive privilege claim, the Association asserts that the Colorado Legislature recognized a public interest in maintaining confidentiality by carving out exceptions for police investigative records in the Colorado Open Records Laws, C.R.S. 24-72-101 et seq. (1973), as amended, and the Colorado Criminal Justice Act, C.R.S. 24-72-301 et seq., (1973), as amended.
The applicability of these statutes in a similar situation was discussed in Martinelli. As to the legislative intent, the Martinelli court found:
We construe this limiting language, in the context of this case, as a reference to the rules of civil procedure and as expressive of the legislative intent that a court should consider and weigh whether disclosure would be contrary to public interest. 612 P.2d at p. 1093.
Even though Judge Lichtenstein did not have the benefit of the Martinelli opinion at the time of his order, his actions were in accordance with Martinelli.
In the interest of comity, we shall defer to the Colorado State Supreme Court’s interpretation of Colorado statutory law. Federal courts are directed to give full faith and credit to state court proceedings to the same extent they are afforded full faith and credit in the courts of that state. 28 U.S.C.A. § 1738 (1976). See also: Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66 L.Ed. 2d 308 (1980).
Nevertheless, the Association contends that § 1983 is an appropriate vehicle for statutory interpretation when federal constitutional issues are involved. In Allen v. McCurry, supra, the court said:
[N]othing in the language or legislative history of § 1983 proves any congressional intent to deny binding effect to a state court judgment or decision when the state court, acting within its proper jurisdiction, has given the parties a full and fair opportunity to litigate federal claims, and thereby has shown itself willing and able to protect federal rights.
449 U.S. at p. 90, 101 S.Ct. at 413.
See also: Spence v. Latting, 512 F.2d 93 (10th Cir. 1975), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975).
Consequently, we hold that the Association’s executive privilege was not denied to the extent necessary to raise a claim under § 1983.
III.
The Association further asserts a § 1983 claim on the contention that they are being denied equal protection in that they are not being accorded the same privilege against self-incrimination as other witnesses.
The privilege against self-incrimination allows any witness or party in a civil, criminal or administrative hearing to refuse to answer a question if he believes the answer may provide evidence of a crime or may lead to evidence of a crime he has committed. Testimony from the record in the instant case reveals that officers are compelled by threat of suspension to give a statement when a complaint is filed against them. However, if the investigators believe that criminal charges may result from the investigation, the officer is advised of his rights and if he refuses, he is not required to give a statement. We recognize that there may be cases where the investigators are mistaken in their belief that no criminal charges will result and an incriminating statement will be compelled. In such circumstances, the Fifth Amendment privileges could still be asserted when disclosure is sought. Such a situation does not exist here. There is no evidence of any pending or potential criminal charges against any of the officers. Thus, we must conclude that the statements made by these officers and contained in their SIB files are not of an incriminating nature. Therefore the officers do not have a valid Fifth Amendment claim. See Fisher v. United States, supra; United States v. Cotton, 567 F.2d 958 (10th Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978); Bradt v. Smith, 634 F.2d 796 (5th Cir. 1981), petition for cert. filed 50 U.S. L.W. 3026 (U.S. May 19, 1981) (No. 80 2042).
Further, it does not appear that any of the officers specifically claimed a Fifth Amendment privilege in the proceedings before Judge Lichtenstein. Consequently, the officers cannot now claim that Judge Lichtenstein violated their Fifth Amendment right.
In summary, we do not find any error in the District Court’s dismissal of the complaint.
WE AFFIRM.
. The Association does not have standing to assert the privacy rights of citizens. Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).
. Judge Lichtenstein found that the defendant Mr. Cole had made a showing that the requested materials were relevant and material. Absent an abuse of discretion, it is for the trial judge to decide if material is relevant. No abuse of discretion is apparent here. Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979), cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (1979); New Mexico Savings & Loan Assoc. v. U.S. Fidelity & Guaranty Co., 454 F.2d 328 (10th Cir. 1972).
. Although the Federal District Court did not decide this case on principles of res judicata, it should be noted that there was an identity of parties in Martinelli and the case at bar. The plaintiff in Martinelli was the Denver Police Department which necessarily entails the individual police officers. The plaintiff herein is the Denver Police Department Protective Association which is composed of and represents officers of the Denver Police Department. Also, the defendants in Martinelli were a judge of the Second Judicial District Court in and for the City and County of Denver and the court itself. The defendant court in Martinelli necessarily entails Judge Lichtenstein.
. Q [By Mr. Jon Holm, Counsel for Plaintiffs-Appellants]
And Exhibit No. 17?
A [By Captain Lawrence Pennel]
Exhibit No. 17 is the form statement that is read by every officer before he makes a statement to the Staff Inspection Bureau investigator. It is signed by him, and it says in effect the statement ordering him that he must make a statement regarding this incident that occurred while he was a member of the Denver Police Department, telling him that if he does not make a statement he is subject to immediate suspension and further disciplinary action.
In it it says that the purpose is not to be used anywhere outside the disciplinary action in the Department, and he specifically says he keeps his right to self-discrimination [sic] with the 14th Amendment.
Q Is there a present regulation of the Denver Police Department relating to the making of these statements, that is, is a police officer required to make a statement to your bureau upon request?
A We divide into two different categories. If it is a possible criminal action the officer is advised of his rights.
Q Miranda rights?
A Right. Of course, at that time he can get a lawyer and go from there. If he refuses to make a statement he will not be asked, but on a case we feel is not criminal in nature we order him to make a statement regarding his activities in that complaint.
Q And is he, in fact, subject to disciplinary action if he does not follow that order?
A Yes. Subject to immediate suspension and the hearing the next day in Division Chief’s office.
Q Is it true that any time an officer is required to make a statement that he is advised of both rights as record in Exhibit 17, and is required to sign that form prior to making a statement?
A Yes, sir, he is. Every statement he does sign this.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.
RUTH BADER GINSBURG, Circuit Judge:
Kathleen Strang is a foreign affairs officer at the United States Arms Control and Disarmament Agency (ACDA). In June 1985, ACDA security officer Berne M. In-dahl began an internal investigation into allegations that Strang had breached security procedures by improperly storing, transporting, and disclosing classified documents. On the basis of Indahl’s findings and the report of a special security panel, Strang was suspended in December 1986 for six months without pay and deprived of her clearance to view Sensitive Compart-mented Information, or “codeword” documents. Strang has since been restored to her position with Top Secret, but not “codeword,” security clearance.
In this civil action, Strang seeks, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 & Supp. IV 1986), and the Privacy Act, id. § 552a, the following relief: release of nine memoran-da generated during Indahl’s investigation and withheld in their entirety by ACDA; amendment of twelve other allegedly inaccurate memoranda in ACDA’s records; and damages for her suspension and loss of codeword clearance, which she claims are the result of ACDA’s intentional or willful maintenance of inaccurate records. The district court, on February 25, 1988, granted summary judgment to ACDA on all counts and Strang now appeals. For the reasons stated herein, we affirm the district court’s grant of summary judgment except as to Strang’s request for the amendment of records concerning her alleged transmission, without proper clearance, of classified information to Japanese officials; we remand that issue for further proceedings in the district court.
I.
Strang first contends that summary judgment was inappropriate because she was not afforded an adequate opportunity to conduct discovery. Strang, however, did not state with sufficient particularity to the district court—or, for that matter, to this court—why discovery was necessary. We therefore reject this opening argument.
Federal Rule of Civil Procedure 56(f) provides that a court may deny a motion for summary judgment or order a continuance to permit discovery if the party opposing the motion adequately explains why, at that timepoint, it cannot present by affidavit facts needed to defeat the motion. See, e.g., Londrigan v. FBI, 670 F.2d 1164, 1175 (D.C.Cir. 1981); see generally 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil 2d § 2740, at 530-31 (1983). Strang never offered the requisite explanation. She did state generally that discovery “would be invaluable in this case” and would give her “an opportunity to test and elaborate the affidavit testimony already entered.” Joint Appendix (J.A.) at 76. But she never stated concretely why she could not, absent discovery, present by affidavit facts essential to justify her opposition to ACDA’s summary judgment motion. Without some reason to question the veracity of affiants such as Indahl, whom Strang sought to depose in May 1986, Strang’s desire to “test and elaborate” affiants’ testimony falls short; her plea is too vague to require the district court to defer or deny dispositive action. In sum, Strang offered no specific reasons demonstrating the necessity and utility of discovery to enable her to fend off summary judgment; the district court, therefore, acted within the bounds of its discretion in not granting a continuance for Strang to conduct discovery.
Strang also objects on appeal to ACDA’s inclusion of two additional affidavits in the agency’s district court reply brief in support of summary judgment; those affidavits, she now maintains, should be regarded as a separate or supplemental motion. Because the affidavits were served on the day of the hearing, she contends, their introduction violates Rule 56(c), which provides that a motion shall be served ten days prior to the hearing. This claim is insubstantial. First, the affidavits merely supported the existing motion and did not constitute a new motion for summary judgment on additional issues or grounds. Cf. Laningham v. United States Navy, 813 F.2d 1236, 1240-41 (D.C.Cir.1987). Second, by her silence in the district court, Strang waived any valid objection she may have had to the late introduction of additional affidavits. She neither objected to the district court’s consideration of the additional affidavits, nor asked for time to respond to them. See Woods v. Allied Concord Financial Corp., 373 F.2d 733, 734 (5th Cir.1967); cf CIA. Petrolera Car-ibe, Inc. v. Arco Caribbean, Inc., 754 F.2d 404, 409-10 (1st Cir.1985).
II.
Strang next argues that the district court should not have granted summary judgment to ACDA on her claim for the release of nine memoranda because there are genuine issues of material fact regarding whether the sources of information in those memoranda were promised confidentiality. We reject Strang’s contention, and affirm the district court’s decision, because Indahl’s affidavit provides adequate assurance that the sources were expressly promised confidentiality.
FOIA and the Privacy Act both provide for the fullest possible disclosure of agency records to the public, subject to certain exceptions. ACDA asserts that the memo-randa sought by Strang are exempt from the disclosure requirements by FOIA section (b)(7)(D) and Privacy Act sections (k)(2) and (k)(5). FOIA section (b)(7)(D) exempts
records or information compiled for law enforcement purposes, but only to the extent that the production of such records or information ... could reasonably be expected to disclose the identity of a confidential source, ... and, in the case of a record or information compiled by ... an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source.
5 U.S.C. § 552(b)(7)(D). Section (k)(2) of the Privacy Act provides that an agency may promulgate rules exempting from the disclosure requirements
investigatory material compiled for law enforcement purposes, ... Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
Id. § 552a(k)(2). Privacy Act section (k)(5) allows the agency to establish rules exempting
investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment ... or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
Id. § 552a(k)(5). ACDA’s implementing regulations mirror the terms of the statutory exemptions. See 22 C.F.R. §§ 602.-31(g)(4), 603.8(a)(2H3) (1988).
As a preliminary matter, we reject Strang’s assertion that the memoranda were not “compiled for law enforcement purposes” within the meaning of section (k)(2). First, Strang did not dispute the applicability of section (k)(2) before the district court. It is firmly established that “issues and legal theories not asserted at the District Court level ordinarily will not be heard on appeal.” District of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1084 (D.C.Cir.1984); see also id. at 1078. Second, even if this issue were properly preserved for appellate consideration, we do not interpret “law enforcement” as limited to criminal law enforcement, as Strang would have us do; rather, we read the term as encompassing the enforcement of national security laws as well. Although Strang has not been subject to criminal prosecution, her suspension and loss of codeword security clearance resulted from her undisputed breach of national security regulations. See J.A. at 49-53 (letters to Strang from ACDA Director Kenneth Adelman and Administrative Director William Montgomery); id. at 106-09 (memorandum of ACDA special security panel).
Because all three exemptions are applicable, the real bone of contention is whether the sources of the information in the nine withheld memoranda were expressly promised confidentiality. ACDA relies on Indahl’s affidavit, which describes the procedures Indahl followed when interviewing individuals about Strang:
In each case, at the outset, either I asked whether the source desired confidentiality or I received requests that I understood to be requests for confidentiality. In some instances, the requests were made specifically in terms of “confidentiality.” In others, the requests were cast in such terms as: “this is just between you and me” or “this is not for attribution.” In all cases, I responded with words of agreement such as “this will be treated as confidential” or “O.K.” or “your name will not be used.” The foregoing applies to all sources whose identities have been protected by withholding in whole or in part the particular documents .... I can positively assert that with respect to each source identified in these documents, express promises of confidentiality were given by me under the circumstances just described. In all cases, the requests for and promises of confidentiality were made prior to the origin of the communications that have been withheld in whole or in part.... I have re-examined each of the documents withheld in whole or in part with a view to releasing more information. I have concluded, however, that release of more information would run the risk of disclosing the identities of those to whom express promises of confidentiality were given.... [TJhis is largely because ACDA is such a small organization and several of the sources are or were co-workers.
Id. at 44-46.
Strang offers no evidence that effectively contradicts this affidavit; the district court did not err, we conclude, in counting it sufficient to support summary judgment. Although the affidavit does not recite a precise verbal formula used in each case, or refer to tangible evidence such as Indahl’s notes, see Brief for Appellant at 24; Reply of Appellant at 5-7, the affidavit is definite enough to assure the court that Indahl expressly promised confidentiality to each individual.
This court’s decision in Londrigan v. FBI (Londrigan II), 722 F.2d 840 (D.C.Cir.1983), supports our conclusion. In that case, this court directed the district court to grant summary judgment to the FBI on a section (k)(5) claim. Two kinds of submissions presented in the district court prompted this court’s direction: first, affidavits from six agents, each of whom “affirmed that he conducted all interviews with the understanding that the information furnished and the identity of the interviewee would remain confidential,” even though none of the agents specifically recalled the twenty-year-old investigation at issue; second, “several contemporaneous official communications stating the [FBI]’s confidentiality policy.” Id. at 843. Because Londrigan II involved an investigation that antedated the Privacy Act, the FBI needed to prove only that sources were given an implied promise of confidentiality, a “less strict” standard. Id. In-dahl’s affidavit, however, in contrast to the ones in Londrigan II, recounts the Strang investigation itself and specifically states that Indahl expressly promised confidentiality to all of the sources of information in the withheld documents. It thus satisfies the stricter standard, which calls for proof of an express promise. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s claim for release of the nine withheld memoran-da.
III.
Strang also seeks amendment of three sets of memoranda that she alleges violate section (e)(5) of the Privacy Act; that provision requires an agency to “maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination.” 5 U.S.C. § 552a(e)(5). We conclude that the district court properly granted summary judgment with regard to two sets of memoranda, but that summary judgment was premature with respect to the third set.
Two memoranda in the investigative file state that Strang “compromised” classified material by leaving her office safe open overnight. J.A. at 12, 17. Strang questions the use of the word “compromise.” She contends that the references to “compromise” present a genuine issue of material fact whether the memoranda are sufficiently accurate to assure fairness. She bases this claim on her assertion that the meaning of the term is not uniform in the record. In some parts of the record, she argues, “compromise” seems to refer to the actual viewing of classified information by unauthorized personnel, see, e.g., id. at 108 (special security panel memorandum stating that “ ‘compromise’ ... can occur where persons not authorized access ... view sensitive information for which they are not cleared”), whereas in other parts the term refers to the exposure of classified information to possible unauthorized access, see id. at 12, 17. Strang then states, without explanation, that the former definition is the “best.” Brief for Appellant at 27. Use of “compromise” therefore violates section (e)(5), she concludes, because ACDA has offered no evidence that any unauthorized person actually viewed the classified information in Strang’s safe.
We agree with the district court that in the context of the two memoranda Strang seeks to amend, “compromise” clearly refers to the potential for unauthorized access; i.e., any document that is exposed to possible viewing by unauthorized persons is, for security reasons, presumptively considered compromised:
Four co-workers ... and her former supervisor ... stated [that Strang] repeatedly left her safe open overnight in a nonsecure area. This placed codeword material within easy access for compromise _ Consequently she compromised extremely sensitive classified information.
Id. at 12.
Security violations resulting from open safes where the material was not secured for a short period of time after the close of business until discovery by a guard can result in a finding of remote compromise. However sources disclosed that Ms. Strang had numerous open safe violations over a long period.
Id. at 17. Because “compromise” in the context of the relevant memoranda clearly refers to potential unauthorized access to classified information, and because Strang does not dispute the memoranda’s account of her leaving classified documents in an open safe overnight, the memoranda are sufficiently accurate to assure fairness to Strang.
Strang’s second amendment request concerns eight undated memoranda in the investigative file compiled by Indahl. Id. at 12-13, 16-22. As the district court pointed out, Indahl has supplied approximate dates for the memoranda and ACDA has made those dates part of the investigative file. See id. at 115. Although Indahl did not recall the precise day he composed each memorandum, his list does provide a close approximation for each, e.g., “early August 1985.” Id. These dates are sufficiently accurate and timely to satisfy section (e)(5).
Strang’s third amendment request is more substantial. It involves two memo-randa charging that she transmitted to foreign officials a document containing information not properly cleared for dissemination. Id. at 21, 22. The memoranda refer to Korean officials, but ACDA later found, upon notification from Strang, id. at 89 (Strang affidavit), that the incident in question actually involved Japanese officials. Id. at 73 (note amending memoranda); id. at 135-36 (affidavit of Mary Elizabeth Hoinkes, ACDA Deputy General Counsel). Strang disputes that the document at issue contained uncleared information and argues that there was insufficient evidence of the lack of clearance to support summary judgment for ACDA. In her affidavit, moreover, Strang avers specifically that the information had been cleared for release by five named government officials. Id. at 90.
The only proof ACDA presented to the district court that the information was uncleared was the affidavit of Mary Elizabeth Hoinkes, ACDA’s Deputy General Counsel, id. at 131-37, and a letter from ACDA Director Adelman to Strang responding to Strang’s amendment requests, id. at 140-41. Both the Hoinkes affidavit and the Adelman letter merely state the investigation’s conclusion that the information was uncleared; neither submission presents any evidence to support that conclusion. Id. at 136, 140-41. Moreover, neither Hoinkes nor Adelman reveals exactly what information in the document was uncleared: Hoinkes states generally that the document Strang passed to the Japanese officials “contained material which had not been cleared for use in diplomatic channels,” id. at 136, while Adelman claims that “three items in the document” had not been cleared, without specifying what those three items were, id. at 140.
The Privacy Act requires that a court consider de novo an agency’s refusal to amend its records. 5 U.S.C. § 552a(g)(2)(A). The lack of evidence before the district court supporting ACDA’s conclusion that some information was uncleared and the court’s Memorandum Opinion make it evident that the court failed to consider this matter de novo:
[Defendant concluded after a lengthy investigation that although plaintiff had good and sufficient reason to assume that she was authorized to transmit a properly cleared document, the document that she did transmit had not been properly cleared. Defendant decided to retain this material in the file because it concluded that plaintiff was careless in failing to ensure the necessary clearances.
J.A. at 144.
ACDA argues that the Act does not require the agency or the court, in its de novo review, to determine whose view is correct, as long as the records generally assure fairness to the individual. Brief for Appellees [sic] at 12. ACDA cites as support for this proposition Doe v. United States, 821 F.2d 694 (D.C.Cir.1987) (en banc). In Doe, the district court had held that the State Department had assured fairness to the plaintiff by including in its records conflicting reports of what she had said in an interview, without stating whose account — Doe’s or the interviewing agent’s —the Department believed. On appeal, this court affirmed, but emphasized that the case was “atypical.” Id. at 699. The presence of only Doe and the agent at the interview made what occurred “unknowable” to third persons. Id. at 700. Under those special circumstances, we held, the agency and the district court, on de novo review, were not required to “find and record ‘truth’ ”; instead, it sufficed to “adjust [the] file equitably to reveal actual uncertainty.” Id. at 701.
Doe was thus a narrow decision. See id. at 701-02 n. 20. It surely does not support the broad proposition advanced by ACDA that the district court need not determine definitively the accuracy of the agency’s records, as long as the agency somehow can be said to have acted fairly. The Doe court stated that “ ‘de novo’ ... has no different, diminished meaning in the context” of section (e)(5), but requires “here, as it ordinarily does, a fresh, independent determination of ‘the matter’ at stake; the court’s inquiry is not limited to or constricted by the administrative record, nor is any deference due the agency’s conclusion.” Id. at 697-98. “In the typical Privacy Act case,” the court continued, “it is feasible, necessary, and proper for the agency and, in turn, the district court to determine whether each filed item of information is accurate.” Id. at 699 (emphasis added).
This case fits the “typical” mold; it differs from Doe in two key respects. First, the records of the Strang investigation are not ambivalent about what happened; they conclude that Strang passed uncleared information to foreign officials. The agency thus made a final judgment about the occurrence. The court, in turn, must review the evidence de novo to ensure that the agency’s judgment is sufficiently accurate to ensure fairness.
Second, the facts at issue here are susceptible of proof. The court can determine what information in the document is actually in question by reviewing the document itself and asking ACDA to point out the items it claims were not cleared. The court can then receive evidence from both sides to determine whether those items were properly cleared. The court might, for example, entertain affidavits from the five individuals Strang claims cleared the document, and receive evidence from ACDA showing what individuals’ clearances were required for the information at issue. If, after reviewing the parties’ submissions, the court determines that a genuine issue of material fact exists as to whether the information received the requisite clearance, the court should deny ACDA’s motion for summary judgment on that issue.
In light of the record’s erroneous original assertions that Strang passed information to Korean officials, see supra p. 865, the need for independent, undeferential judicial review is apparent. If, as the Hoinkes affidavit claims, the supporting evidence contains extremely sensitive information, J.A. at 136, the district court can take up Ms. Hoinkes’ offer to present a detailed, classified declaration for in camera review. Id.
IV.
Finally, Strang asserts a claim for monetary damages under sections (g)(1)(C) and (g)(4) of the Privacy Act; these sections provide that an agency shall be liable for actual damages or no less than $1,000 plus costs and attorneys fees where the agency intentionally or willfully
fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual.
5 U.S.C. § 552a(g)(1)(C), (g)(4). Thus, Strang must show, to qualify for damages, that ACDA’s determination to suspend her and revoke her codeword clearance was caused by its intentional or willful failure to maintain accurate records. The district court granted summary judgment on this claim because “there is no suggestion that [ACDA] acted ‘without grounds for believing [its actions] lawful’ or that it flagrantly disregarded the rights guaranteed under the Privacy Act,” J.A. at 145 (quoting Laningham v. United States Navy, 813 F.2d at 1242 (citations omitted)), and because Strang admitted to numerous security violations. Id.
We affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim. The only records whose accuracy is still in question are the memo-randa that deal with the transmission of information to Japanese officials. Even if these memoranda are inaccurate, and even if we indulge the assumption that the agency acted intentionally or willfully, there is ample evidence in the record that the mem-oranda played no part in Adelman’s suspension of Strang and revocation of her codeword clearance. In his December 29, 1986 letter to Strang, Adelman stated that the “suspension is based upon your uncontested violations of security regulations .... This suspension is not based on any information which you have challenged as being inaccurate or incomplete or on any information which has not been fully disclosed to you.” J.A. at 52. Adelman was more specific in his May 6, 1987 letter responding to Strang’s appeal:
The matter of transmittal of a document to officials of a foreign government on the occasion of the trip to Seoul and Tokyo in 1984 did not come to our attention until after the August “cutoff” date we had agreed upon with respect to the investigation then being undertaken. In light of this fact, it formed no part of my decision regarding your clearance or suspension from ACDA for six months.
Id. at 60.
Finally, a note attached to the two memo-randa stating that the alleged incident occurred in Tokyo, not Seoul, and involved Japanese, not Korean, officials repeated another portion of the May 6, 1987 letter:
I find no excuse for the carelessness with which the matter was handled. However, after reviewing this matter and after consultation with other interested agencies and taking into consideration the sanctions which have been imposed as a result of the prior investigation, I have decided to take no further action with respect to the document transmitted in Tokyo.
Id. at 73; see also id. at 72 (Dec. 10, 1987 letter repeating Adelman’s decision to retain the two memoranda in the record “but to take no further action”).
In light of Adelman’s numerous statements that his decision to suspend Strang and revoke her codeword clearance was unrelated to the only two memoranda still at issue, there is no basis on which a reasonable trier could find that the sanctions were causally connected to the memoranda. We therefore affirm the district court’s grant of summary judgment to ACDA on Strang’s damage claim.
CONCLUSION
For the reasons stated in this opinion, we reverse the district court’s grant of summary judgment to ACDA on Strang’s request to amend the records concerning her transmission of allegedly uncleared information to foreign officials; we remand that issue for de novo review of the parties’ evidence, in camera if and to the extent necessary. In all other respects, we affirm the district court’s grant of summary judgment to ACDA.
IT IS SO ORDERED.
. On December 16, 1986, the district court had denied ACDA’s summary judgment motion on Strang’s claim for release of documents because there then appeared to be a genuine issue of material fact as to whether the sources of the information in the documents were given express promises of confidentiality; the district court simultaneously had denied ACDA's motion to dismiss Strang’s record amendment claims for failure to exhaust administrative remedies. Following that decision, ACDA granted some of Strang’s amendment requests and supplemented the record with Indahl’s affidavit attesting that he expressly promised confidentiality to the sources. See Joint Appendix (J.A.) at 142 (Feb. 25, 1988 Memorandum Opinion).
. Vymetalik v. FBI, 785 F.2d 1090 (D.C.Cir.1986), does not contradict our interpretation of section (k)(2). In that case, this court held that section (k)(2) did not apply to records compiled during an investigation of an FBI job applicant. The court stated that such records fell clearly within the scope of section (k)(5) because they were gathered for the purpose of determining the applicant’s ‘"suitability, eligibility, or qualifications for Federal'" employment. Id. at 1095 (quoting 5 U.S.C. § 552a(k)(5)). “To hold that all employment investigation records fall within the law enforcement records exemption,” the court reasoned, "would read subsection (k)(5) ... out of the statute.” Id. at 1096. Unlike Vymetalik, this case involves not a job applicant undergoing a routine check of his background and his ability to perform the job, but an existing agency employee investigated for violating national security regulations. Thus, sections (k)(2) and (k)(5) are both by their terms fully applicable.
. Although FOIA section (b)(7)(D) refers to “confidential source” rather than express promises of confidentiality per se, we see no reason— and neither party offers any—to treat that section’s reference to confidentiality differently from Privacy Act sections (k)(2) and (k)(5) in this case.
. We are not persuaded by Strang’s attempts to show that Indahl had a “clear bias” against her. See Brief for Appellant at 25. Moreover, we fail to see how her allegations show that Indahl did not promise confidentiality. Strang features statements made by ACDA Director Adelman in a letter to Administrative Director Montgomery that ”[t]he investigation ... was conducted with insufficient attention given to the employee’s side of the case” and "[tjhere was an effort by some co-workers to cast Ms. Strang in the worst possible light.” J.A. at 85. These observations, however, do not materially support Strang’s claim that Indahl did not promise confidentiality to his sources. See Brief for Appellant at 24. The fact that Indahl contacted the sources after the investigation to ask whether they still desired confidentiality, see J.A. at 45, does not prove that Indahl did not promise confidentiality to the sources before they provided information. See Brief for Appellant at 24. Finally, Indahl’s initial failure to date other disclosed memoranda containing negative statements from unidentified sources in no way proves that Indahl did not promise confidentiality to the sources of the withheld memoranda. See id. at 25.
. In Londrigan v. FBI (Londrigan I), 670 F.2d 1164 (D.C.Cir.1981), an earlier consideration of the same case, this court held that something more was necessary than the affidavit of an FBI FOIA-Privacy Act administrator who was not involved in the investigation at issue and had not even sought information from ,the investigating agents, and who averred merely that "all information compiled by the agency [during the period of the investigation] was acquired pursuant to implied pledges of [confidentiality].” Id. at 1173; see also Nemetz v. Department of Treasury, 446 F.Supp. 102, 105 (N.D.Ill.1978) (holding that general allegations of agency’s policy of promising confidentiality were insufficient to trigger (k)(5) exemption). Upon remand, the FBI offered the affidavits of agents involved in the Londrigan investigation and the agency’s routine instructions, operative during the investigation, concerning confidentiality. See Londrigan II, 722 F.2d at 843.
. In her brief, Strang presses the additional argument that the district court should have examined the withheld documents in camera to determine de novo whether ACDA could release any portions without disclosing the identity of confidential sources. Brief for Appellant at 37-38. As Strang's counsel made evident at oral argument, however, and as our review of the transcript of the district court hearing shows, see J.A. at 147-78, Strang did not raise this issue below and therefore did not properly preserve it for appeal. See District of Columbia v. Air Florida, 750 F.2d 1077, 1078, 1084 (D.C.Cir.1984).
. In her brief, Strang also requests that the names of the sources of unattributed statements be added to the file. Brief for Appellant at 19, 31. Yet again, however, Strang did not properly preserve this issue for appeal because she never raised it before the district court.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
PER CURIAM:
On August 14, 1975, appellant Meadowbrook Hospital, Inc., through its president, appellant Dr. Evers, was required pursuant to a subpoena duces tecum to produce certain medical records before the United States Grand Jury for the Eastern District of Louisiana. Appellants filed with the district court a motion to quash the subpoena, arguing that the required production would contravene doctor-patient privileges and the fifth amendment privilege against self-incrimination. After a hearing, the district court denied the motion to quash. Appellants then petitioned this court for a writ of mandamus, asking inter alia for an order suppressing all evidence required to be delivered under the subpoena. This Court denied the petition and denied the motion for the suppression order “without prejudice to petitioners’ right to move for suppression of evidence, should the petitioners be indicted.” Appellants produced the documents before the grand jury and now seek appellate review of the district court’s denial of the motion to quash.
Although the parties have not considered it, we are bound to ask as a threshold question
whether an order denying a motion to quash a subpoena duces tecum directing a witness to appear before a grand jury is included within those “final decisions” in the district court which alone the circuit courts of appeal are authorized to review [under 28 U.S.C. § 1291],
Cobbledick v. United States, 1940, 309 U.S. 323, 324, 60 S.Ct. 540, 541, 84 L.Ed. 783, 784. Cobblediek answered that question in the negative, and that case is controlling precedent. The Cobblediek holding has been reaffirmed in United States v. Ryan, 1971, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85. The general rule, then, is that the denial of a motion to quash a grand jury subpoena duces tecum is not an appealable order.
This rule is subject to certain narrow exceptions, chiefly in the “limited class of cases where denial of immediate review would render impossible any review whatsoever of an individual’s claims,” United States v. Ryan, supra, 402 U.S. at 533, 91 S.Ct. at 1582, distinguishing Perlman v. United States, 1918, 247 U.S. 7, 38 S.Ct. 417, 62 L.Ed. 950. In the case before us, it appears that the Perlman exception is inapplicable. Like Ryan, and unlike Perlman (where the subpoenaed exhibits were in the custody of a third party), this case presents a situation in which the unsuccessful movants had the option of refusing to comply with the subpoena, thus preserving the right to litigate the lawfulness of the subpoena in contempt proceedings, if such were brought. As noted in our order denying the petition for a writ of mandamus, these claims might also be reviewed through a motion to suppress in the event the petitioners were indicted. The appellate briefs from both sides indicate that the Government will seek no criminal indictment in this case, and that all the original records have been returned to the appellants, but that the Government intends to proceed with a civil fraud suit. Should such a civil suit be instituted, and should the Government seek to use these records as evidence, appellants will be free to move to suppress the evidence on the grounds urged before us now. We express no opinion on the merits of these claims: we hold only that the district court’s denial of the motion to quash in this case is not an appealable order. The appeal is dismissed for want of jurisdiction.
Appeal dismissed.
. See also United States v. Nixon, 1974, 418 U.S. 683, 690-92, 94 S.Ct. 3090, 3098, 41 L.Ed.2d 1039, 1053-55. The Nixon Court found another limited exception to the general rule in order to avoid an extended constitutional confrontation between two branches of government. With due respect to Dr. Evers, his troubles do not rise to this magnitude.
. The return of the documents renders inapposite the following language from Ryan:
We have thus indicated that review is available immediately of a denial of a motion for the return of seized property, where there is no criminal prosecution pending against the movant. See DiBella v. United States [1962, 369 U.S. 121, 82 S.Ct. 654, 7 L.Ed.2d 614], 402 U.S. at 533, 91 S.Ct. at 1582. See also VonderAhe v. Howland, 9 Cir. 1975, 508 F.2d 364, 368.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
BEAM, Circuit Judge.
Whitfield and other appellants, black voters in Phillips County, Arkansas, challenge the district court’s dismissal of their complaint. Whitfield sued the Democratic Party of Arkansas and others, alleging that a state statute which requires a general (runoff) primary election if one candidate does not receive a majority of the vote is both unconstitutional and in violation of section 2 et seq. of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1982). We affirm in part and reverse in part.
I. BACKGROUND
A. Facts
The population of Arkansas is approximately 16.3 percent black. Approximately 47 of the 75 counties in Arkansas have black populations below this statewide percentage, and twenty-one counties are less than one percent black. Twenty-two counties have a black population over twenty-five percent.
The state has a history of official discrimination in its electoral process. Arkansas has used racially discriminatory voting practices such as statutory restrictions on the rights of blacks to vote, discriminatory literacy tests, poll taxes, a “whites only” Democratic primary, segregated polling places, and at-large elections. Perkins v. City of West Helena, Arkansas, 675 F.2d 201, 211 (8th Cir.), aff'd mem., 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982). See also Smith v. Clinton, 687 F.Supp. 1310, 1317 (E.D.Ark.) (taking judicial notice of the history of electoral racial discrimination in Arkansas), aff'd mem., — U.S. -, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988).
The focus here is not only on the State of Arkansas, but also on Phillips County. While over fifty percent of the residents of Phillips County are black, black residents of legal voting age number less than fifty percent. Statistics on education and income, indicators closely correlated with political participation, see Perkins, 675 F.2d at 211, reveal that blacks in Phillips County are on the average much less educated and far poorer than whites.
No black candidate has been nominated for or elected to a county-wide or city-wide office or to a state legislative position from Phillips County since the turn of the century. In the past two years, four black candidates have come in first in preferential primary elections in Phillips County, yet all four were subsequently unable to obtain the Democratic nomination because they were defeated by white candidates in general (runoff) primaries.
Racially polarized (bloc) voting is the norm in Phillips County. Whitfield’s expert, who performed both extreme case analyses and bivariate ecological regression analyses on the fifteen county-wide, city-wide, and state legislative elections since 1984, testified that in all fifteen elections, voting was racially polarized as shown by the fact that black candidates were supported by an average of over ninety-four percent of black voters and, in most county-wide races, virtually no white voters supported black candidates.
B. The Primary Election Runoff Requirement
The Arkansas Code sets forth the procedures for primary elections, Ark.Code Ann. §§ 7-7-201 to -311 (1987), pursuant to amendment 29 of the Arkansas Constitution. Amendment 29 states:
Only the names of candidates for office nominated by an organized political party at a convention of delegates, or by a majority of all the votes cast for candidates for the office in a primary election, or by petition of electors as provided by law, shall be placed on the ballots in any election.
Ark. Const, amend. 29, § 5 (emphasis added).
Whitfield is challenging section 7-7-202, which states:
(a) Whenever any political party shall, by primary election, select party nominees as candidates at any general election for any United States, state, district, county, township, or municipal office, the party shall hold a preferential primary election and a general primary election on the respective dates provided in § 7-7-203(a) and (b).
(b) A general primary election shall not be held if there are no races where three (3) or more candidates qualify for the same office or position as provided in subsection (c) of this section, unless a general primary election is necessary to break a tie vote for the same office or position at the preferential primary.
(c) If there are no races where three (3) or more candidates qualify for the same office or position, only the preferential primary election shall be held. If all nominations have been determined at the preferential primary election, or by withdrawal of candidates as provided in § 7-7-304(a) and (b), the general primary election shall not be held.
Ark.Code Ann. § 7-7-202 (1987).
Under the current system, candidates for a particular party nomination run in preferential party primary elections. If three or more candidates run in the preferential primary, and none receives a majority of the votes, the top two candidates are required to run in a subsequent general (runoff) primary election. Both appellants and ap-pellees acknowledge that, in Arkansas, the Democratic nomination is tantamount to election for most local and state offices.
C. The District Court Holding
The district court dismissed Whitfield’s constitutional challenge to section 7-7-202 because the court found no racially discriminatory purpose or intent underlying the primary runoff enactments. The court also rejected Whitfield’s argument that the runoff had been maintained for racially discriminatory purposes. Whitfield, 686 F.Supp. at 1370.
The district court denied relief under the Voting Rights Act, stating that the plaintiffs failed to convince the court that section 2 applies to runoff provisions such as those found in section 7-7-202, given the demographics of the area and the manner in which the runoffs operate. The court also concluded that, even if section 2 does apply, the plaintiffs failed to sustain their burden of proof that section 7-7-202 results in blacks having less opportunity than whites to participate in the political process or to elect candidates of their choice. Id. at 1387.
II. DISCUSSION
A. Constitutional Violation
Whitfield argues that section 7-7-202 was enacted and has been maintained with discriminatory intent and thus violates the Equal Protection Clause of the fourteenth amendment. “[I]n order for the Equal Protection Clause to be violated, ‘the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose.’ ” Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982) (quoting Washington v. Davis, 426 U.S. 229, 240, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976)). “The ultimate issue in a case alleging unconstitutional dilution of the votes of a racial group is whether the [voting scheme] under attack exists because it was intended to diminish or dilute the political efficacy of that group.” Rogers, 458 U.S. at 621, 102 S.Ct. at 3277-78 (quoting Nevett v. Sides, 571 F.2d 209, 226 (5th Cir.1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980)).
A plaintiff challenging the constitutionality of a discriminatory electoral system must prove, by a preponderance of the evidence, that the defendant had racially motivated discriminatory intent in enacting or maintaining a voting practice. Perkins, 675 F.2d at 207; Nevett, 571 F.2d at 219. See also City of Carrollton Branch of the NAACP v. Stallings, 829 F.2d 1547, 1549 (11th Cir.1987), cert. denied sub nom. Duncan v. City of Carrollton, Georgia, Branch of the NAACP, 485 U.S. 936, 108 S.Ct. 1111, 99 L.Ed.2d 272 (1988); Wesley v. Collins, 791 F.2d 1255, 1262 (6th Cir.1986) (citations omitted). The trial court must consider “the totality of the circumstances” surrounding the alleged discriminatory practice in order to “determine whether the [challenged voting practice] was created or maintained to accord the members of the allegedly injured group less opportunity than other voters to participate meaningfully in the political process and elect [candidates] of their choice.” Perkins, 675 F.2d at 209. “Because a finding of intentional discrimination is a finding of fact, the standard governing appellate review of a district court’s finding of discrimination is [the clearly erroneous standard].” Anderson v. Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985).
Whitfield provided the following evidence of racially discriminatory purpose. First, in 1939, at the time the primary runoff statute was adopted in its original form, Arkansas was a one-party state and the Democratic white primary was the only election that mattered. At the same time, an amendment to repeal a poll tax, which effectively disenfranchised blacks, failed. Second, after the white primary was held unconstitutional by the Supreme Court in the 1940s, the majority runoff system was retained to diminish black electoral influence. Third, the recodification of the Election Code in 1969 maintained the use of runoffs in primary elections. Fourth, in 1975 and 1983, attempts were made to also impose general election runoffs in response to the presence of black candidates in mul-ti-candidate municipal contests. Finally, the current version of the statute was passed in 1983; two members of the legislature who served that year testified that the statute was intended to prevent blacks from winning further elections due to splits in the white community.
Based on a detailed review of the evidence surrounding the enactment of section 7-7-202 and the adoption of amendment 29 of the Arkansas Constitution, the district court held that Whitfield failed to establish his constitutional challenge to the Arkansas primary runoff requirement. Whitfield, 686 F.Supp. at 1374. The court noted that the majority vote requirement set forth in the state constitution was initiated through petitions (not by the legislature) and adopted by a vote of the people of the State of Arkansas at a time when blacks in Arkansas could not vote in the Democratic primary. The requirement could not have been maintained by the General Assembly with discriminatory intent because nothing in the record indicates that the legislature had the power to repeal amendment 29. In fact, in 1940, the Arkansas legislature proposed an amendment to repeal amendment 29, but that effort was soundly defeated by the popular vote. Id. at 1371. The court determined that “the issue is beyond direct legislative reach” and thus concluded that the actual purpose behind the enactment of section 7-7-202 was the stated purpose: “to insure that no one was nominated as a candidate of the Democratic Party who had not received a majority of the votes cast.” Id. at 1370-71.
We agree that discriminatory legislative intent has not been adequately established, given the time frame and political background of amendment 29. While the legislators may have enacted more recent statutes which continue to advocate primary runoffs, they were mandated to continue the use of runoffs by the state constitution and voter tendencies present in Arkansas. The district court’s conclusion that discriminatory intent was not proved is not clearly erroneous. Thus, we affirm that portion of the district court opinion.
B. Violation of the Voting Rights Act
Section 2 of the Voting Rights Act provides:
Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, * * * as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
42 U.S.C. § 1973 (1982).
1. Applicability of the Act
The Democratic Party urges us to affirm the district court’s holding that section 2 of the Voting Rights Act does not apply to section 7-7-202. The Party notes that virtually all of the cases decided under section 2 deal with at-large elections or legislative districting matters. We conclude, however, that section 2 was not meant to apply only to cases challenging at-large election schemes and districting matters, although it is true that most of the previous section 2 cases concern these types of discriminatory voting practices.
The Senate Report emphasizes that section 2 is the “major statutory prohibition of all voting rights discrimination,” prohibiting practices which “result in the denial of equal access to any phase of the electoral process for minority group members.” S.Rep. No. 417, 97th Cong., 2d Sess. 30 reprinted in 1982 U.S.Code Cong. & Admin.News 177, 207 (emphasis added). Nowhere in the language of the statute did Congress limit the application of section 2 cases to those involving at-large elections or redistricting; in fact, the Senate Report specifically identifies “majority runoffs [which] prevent victories under a prior plurality system” as a “dilution scheme[] * * * employed to cancel the impact of the * * * black vote.” Id. at 6, 1982 U.S.Code Cong. & Admin.News at 183.
The district court stressed that majority rule is one of the underlying concepts of our democratic system. However, we agree with the Fifth Circuit that “[t]he fact that majority vote requirements may be commonplace does not alter the fact that Congress clearly did conclude that such provisions could serve to * * * dilute the voting strength of minorities.” Westwego Citizens for Better Government v. City of Westwego, 872 F.2d 1201, 1212 (5th Cir.1989) (citing Thornburg v. Gingles, 478 U.S. 30, 56, 106 S.Ct. 2752, 2769, 92 L.Ed.2d 25 (1986)).
Furthermore, the Supreme Court has explicitly stated that “[sjubsection 2(a) prohibits all States and political subdivisions from imposing any voting qualifications or prerequisites to voting, or any standards, practices, or procedures which result in the denial or abridgement of the right to vote of any citizen who is a member of a protected class of racial and language minorities.” Gingles, 478 U.S. at 43, 106 S.Ct. at 2762 (emphasis in original). The Court has specifically recognized majority vote requirements as “potentially dilutive electoral devices.” Id. at 56, 106 S.Ct. at 2769. Here, that potential has been realized.
The district court held, “as a matter of law, that the undisputed population figures here are not such as will permit the plaintiffs to challenge the primary runoff law of the state of Arkansas as a violation of Section 2 of the 1965 Voting Rights Act, as amended.” Whitfield, 686 F.Supp. at 1381. The court based this premise on “the circumstance that the voting age populations of blacks and whites in Phillips County is equal for practical purposes.” Id. The court rejected the idea that “even where black voting populations equal or exceed white voting populations, blacks should nevertheless be considered a ‘minority’ because of the evidence that they have not participated in the past in the political processes of the county in as large a proportion as have whites.” Id.
We disagree with the district court's analysis of this issue. The inquiry does not stop with bare statistics. Section 2 is not restricted to numerical minorities but is violated whenever the voting strength of a traditionally disadvantaged racial group is diluted. “[Hjistorically disadvantaged minorities require more than a simple majority in a voting district in order to have * * * a practical opportunity to elect candidates of their choice.” Smith v. Clinton, 687 F.Supp. 1361, 1362 (E.D.Ark.), aff'd mem., - U.S. -, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988). We conclude, as a matter of law, that a numerical analysis of the voting age population in a particular geographic area does not automatically preclude application of section 2 to a challenged voting practice used in that area.
Furthermore, the parties stipulated to census figures showing that blacks do constitute a minority of the voting age population in Phillips County (47%). In addition, at every election studied by Whitfield’s expert, blacks turned out at a lower rate than whites. Thus, although theoretically a black candidate may be able to muster a majority of the votes in Phillips County, the practical reality is that there simply are not enough blacks voting in each election to allow a victory for a black candidate.
While the district court believes that the registration level of voting age blacks is equal, or nearly equal, to that of voting age whites in some of the challenged geographic areas, we find that conclusion to be speculative. Whitfield points out that the census data in the record contains no references whatsoever to registration rates, and indeed, Arkansas apparently does not keep such data by race. Appellants’ Brief at 12 n. 12. The district court also supports its conclusion by relying on the fact that efforts to register blacks have greatly increased in recent years and black citizens no longer face harassment and intimidation in registering and voting. However, if we were also permitted to speculate, we would probably conclude that even with these changes in Arkansas politics, the voting statistics show that black registration numbers are still significantly lower than white voter levels. Blacks could not vote at all in the State of Arkansas until 1940, and as such blacks have had less than fifty years to increase their voter numbers. Their registration level could hardly be equal to that of the white community, which has been able to recruit and assemble voters since the creation of the state.
2. Discriminatory Results
The district court also concluded that, even if section 2 did apply to majority runoff requirements in Phillips County, Whitfield failed to prove that, based on a totality of the evidence, section 7-7-202 results in discrimination against blacks in Phillips County. We disagree.
Although the district court apparently recognized that “plaintiffs need not show that the challenged voting practice or procedure was the product of purposeful discrimination,” Whitfield, 686 F.Supp. at 1374, we believe the court failed to properly analyze the runoff requirement in light of the results-oriented test articulated in the Senate Report. Rather, it appears that the district court made a combined analysis of the discriminatory intent underlying section 7-7-202 and the cause and effect relationship between the runoff requirement and election results in Phillips County. This analysis circumvents the true issue: whether the challenged voting practice, a primary election runoff requirement, results in blacks in Phillips County having less of an opportunity to participate in the political process and elect representatives of their choice.
Throughout the legislative history of the 1982 amendment to section 2, Congress emphasizes that a violation of this portion of the Voting Rights Act may be ascertained through a results-oriented analysis. The Senate Report states that one of the objectives of the 1982 amendment was “to amend the language of Section 2 in order to clearly establish the standards intended by Congress for proving a violation of that section.” S.Rep. No. 417 at 2, 1982 U.S. Code Cong. & Admin.News at 178. The Report then elaborates on this stated purpose:
This amendment is designed to make clear that proof of discriminatory intent is not required to establish a violation of Section 2. * * * The amendment also adds a new subsection to Section 2 which delineates the legal standards under the results test * * *.
This new subsection provides that the issue to be decided under the results test is whether the political processes are equally open to minority voters.
Id. at 2, 1982 U.S.Code Cong. & Admin. News at 179. The Report reiterates that the legal standard set forth by the amendment to section 2 does not require proof of discriminatory purpose and thus a minority plaintiff may establish a section 2 violation by showing that the challenged electoral practice results in denial of equal access to the political process. Id. at 15-17, 27, 1982 U.S.Code Cong. & Admin.News at 192-94, 205.
The Supreme Court has recognized Congress’s intent to establish a results test, stating:
The Senate Report which accompanied the 1982 amendments elaborates on the nature of § 2 violations and on the proof required to establish these violations. First and foremost, the Report disposi-tively rejects the position of the plurality in Mobile v. Bolden, 446 U.S. 55 [100 S.Ct. 1490, 64 L.Ed.2d 47] (1980), which required proof that the contested electoral practice or mechanism was adopted or maintained with the intent to discriminate against minority voters. The intent test was repudiated for three principal reasons — it is “unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities,” it places an “inordinately difficult” burden of proof on plaintiffs, and it “asks the wrong question.” The “right” question, as the Report emphasizes repeatedly, is whether “as a result of the challenged practice or structure plaintiffs do not have an equal opportunity to participate in the political processes and to elect candidates of their choice.”
Gingles, 478 U.S. at 43-44, 106 S.Ct. at 2762-63 (quoting S.Rep. No. 417 at 2, 15-16, 27, 28, 36) (footnotes omitted).
Based on the clear language of the Senate Report and the Supreme Court’s subsequent verification of the results test, we reject the inferences made by the district court that Whitfield’s failure to prove discriminatory intent under section 2 results in a dismissal of his claim. While proof of intent may be used to show a violation of section 2, S.Rep. No. 417 at 27 & n. 108, 1982 U.S.Code Cong. & Admin. News at 205, such proof is not required of a plaintiff under the statutory language.
The Gingles Court explained • that “a court must assess the impact of the contested structure or practice on minority electoral opportunities” on the basis of the plaintiff’s proof as to a variety of factors, as set forth in the Senate Report. Gingles, 478 U.S. at 44-45, 106 S.Ct. at 2763-64. “Typical factors” include (1) the extent of any history of official voting discrimination, (2) the extent of racially polarized voting, (3) the extent to which the state or political subdivision has used other voting practices or procedures which may enhance the opportunity for discrimination, (4) whether minority group members have been denied access to the candidate slating process, (5) the extent to which minority group members suffer the effects of discrimination “in such areas as education, employment and health, which hinder their ability to participate effectively in the political process,” (6) whether political campaigning has been typified by racial appeals, and (7) the extent to which minority group members have been elected to public office. S.Rep. No. 417 at 28-29, 1982 U.S. Code Cong. & Admin.News at 206-07.
The district court reviewed the evidence presented by Whitfield as it related to the factors set forth in the Senate Report. For five of the seven factors, the court made factual findings which favored the conclusion that section 2 had been violated in Phillips County. Specifically, the court found that (1) Arkansas has a long history of racial discrimination which has touched the rights of blacks to participate in the democratic process; (2) Phillips County has experienced “extreme racial polarization in voting” in recent years; (3) other than majority vote requirements, Phillips County has not used any other “discrimination-enhancing” voting practices in the recent past; (4) no evidence was submitted on this point; (5) Phillips County has experienced “devastating” effects of discrimination in the areas of education, employment, and health, because of “dire economic circumstances”; (6) although no evidence was presented of significant, overt or subtle racial appeals, race does play “a central role” in Phillips County politics and has “frequently dominated over qualifications and issues”; and (7) no black candidate has ever been elected to county-wide or state legislative office in Phillips County. Whitfield, 686 F.Supp. at 1383-85.
After adopting these findings, the district court reasoned that “the Senate Report factors more logically support proof relating to ‘intent’ issues than ‘cause and effects’ issues.” Id. at 1382. However, this conclusion is contradicted by the language of the Senate Report. After noting that plaintiffs who choose to establish a section 2 violation on the basis of intent may do so through direct or indirect circumstantial evidence, the Report states, “If the plaintiff proceeds under the ‘results test,’ then the court would assess the impact of the challenged structure or practice on the basis of objective factors, rather than making a determination about the motivations which lay [sic] behind its adoption or maintenance.” S.Rep. No. 417 at 27, 1982 U.S.Code Cong. & Admin.News at 205. Contrary to the district court’s opinion, we conclude that the factors set forth by the Senate Report are to be used primarily as proof of a section 2 violation under the results test. See id. at 28, 1982 U.S.Code Cong. & Admin.News at 206.
The district court also held that Whitfield did not meet his burden of proof of showing a causal connection between the runoff requirement and the lack of minority electoral success. We again disagree. During the past four years, but for the runoff primary elections, four black candidates would have been the Democratic Party’s nominee. The court infers that the actual cause of lack of success by black candidates was the lack of motivation on the part of black voters — apathy—and if black voters would turn out at the polls in high numbers, their candidates would not be defeated because forty-seven percent of the voting population is black and some crossover voting does occur. It seems to us, however, that these conclusions are based on two erroneous premises: (1) that plaintiffs must actually prove a causal link between the lack of black electoral success and the discriminatory system being implemented against them, and (2) as noted above, that the Senate factors do not apply to the cause and effect analysis.
We agree that a causal connection between the challenged practice, as it occurs within the political climate of the geographic area, and the diluted voting power of the minority must be established. Here, the proof is two-fold. First, the plaintiffs have proved that the majority vote requirement has impaired their ability to elect a candidate because blacks of voting age, although they are numerous in Phillips County, fail to turn out at the polls in numbers sufficient to meet a majority vote requirement. Second, the plaintiffs have established, through proof of Senate factors, that the political climate of Phillips County has caused the low voter participation, because “[ojnce lower socio-economic status of blacks has been shown, there is no need to show the causal link of this lower status on political participation.” United States v. Dallas County Comm’n, 739 F.2d 1529, 1537 (11th Cir.1984). The Senate Report states:
[Djisproportionate educational, employment, income level and living conditions arising from past discrimination tend to depress minority political participation. Where these conditions are shown, and where the level of black participation in polities is depressed, plaintiffs need not prove any further causal nexus between their disparate socio-economic status and the depressed level of political participation.
S.Rep. No. 417 at 29 n. 114, 1982 U.S.Code Cong. & Admin.News at 207 (citations omitted).
The evidence adduced, the stipulated facts, and the district court opinion all confirm that blacks in Phillips County suffer from less education, less employment, lower income levels, and disparate living conditions as compared to whites. Blacks also suffer from the remnants of official discrimination in Arkansas.
[Pjast discrimination can severely impair the present-day ability of minorities to participate on an equal footing in the political process[,] * * * may cause blacks to register or vote in lower numbers than whites * * * [and] may * * * lead to present socioeconomic disadvantages, which in turn can reduce participation and influence in political affairs.
United States v. Marengo County Comm’n, 731 F.2d 1546, 1567 (11th Cir.), appeal dismissed, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984).
Here, the district court required an improper burden of proof of causal relationships by holding, in effect, that the socioeconomic factors and the effects of discrimination did not hinder blacks’ ability to participate in any legally significant way. See Dallas County Comm’n, 739 F.2d at 1537. “It is not necessary in any case that a minority prove such a causal link. Inequality of access is an inference which flows from the existence of economic and educational inequalities.” Id. (citations omitted). See also Marengo County Comm’n, 731 F.2d at 1569 (holding that “when there is clear evidence of present socioeconomic or political disadvantage resulting from past discrimination, * * * the burden is not on the plaintiffs to prove that this disadvantage is causing reduced political participation, but rather is on those who deny the causal nexus to show that the cause is something else”).
Furthermore, the district court improperly assumed that lack of motivation caused lower turnout at the Phillips County polls. See Gomez v. City of Watsonville, 863 F.2d 1407, 1416 (9th Cir.1988) (stating that the district court should have focused only on actual voting patterns rather than speculating on reasons why minority voters were apathetic), cert. denied, — U.S. -, 109 S.Ct. 1534, 103 L.Ed.2d 839 (1989); Dallas County Comm’n, 739 F.2d at 1536 (concluding that “[t]he existence of apathy is not a matter for judicial notice”); Marengo County Comm’n, 731 F.2d at 1568-69 (noting that “[b]oth Congress and the courts have rejected efforts to blame reduced black participation on ‘apathy’ ”). Also, the internal documents in this case simply do not support such an assumption. While, as the district court recognized, blacks are working strenuously in Phillips County to register black voters and to encourage black voter participation, voter turnout is still low. Yet, black turnout at some of the general primary (runoff) elections did not drop as significantly as did white voter turnout, when compared with the preceding preferential primary. These factors indicate to us that black voters are not apathetic. We believe that other factors contribute to a lack of political participation which nonparticipation is significant enough to make a runoff election victory an impossibility for a black candidate.
The plaintiffs presented statistical and expert evidence on the lower social, educational, and employment conditions in Phillips County. Contrary to the district court’s determination, we conclude that such evidence is relevant to prove cause and effect. Thus, without more, the plaintiffs adequately carried their burden of proof that the majority runoff requirement, as it operates in the political system of Phillips County, has caused blacks in that county to have less opportunity than whites to elect the candidate of their choice.
The Senate Report states that the factors enumerated “will often be the most relevant ones,” though in certain cases other factors may also be used to show vote dilution. S.Rep. No. 417 at 29, 1982 U.S. Code Cong. & Admin.News at 207. Here, a majority of the factors have been found by the district court to exist in Phillips County. Furthermore, the findings relating to the third and fourth factors do not weigh against the plaintiffs’ proof. However, the final determination “of whether the voting strength of minority voters is * * * ‘canceled out’ ” demands the court’s “overall judgment, based on the totality of the circumstances and guided by those relevant factors in the particular case.” Id. at 29 n. 118, 1982 U.S.Code Cong. & Admin.News at 207. We conclude that, based on the proof set forth by Whitfield and the totality of the circumstances in Phillips County, a section 2 violation has been established under the results test.
C. Remedy
We are well aware of the difficulty of fashioning a remedy for Phillips County alone, while allowing the other counties of Arkansas to continue implementing a majority vote runoff requirement for primary elections. However, the evidence requires just such a remedy, and courts have created remedial orders which affect only one legislative district, while affecting no other portion of the Arkansas state legislative structure. See Smith v. Clinton, 687 F.Supp. at 1311; Smith v. Clinton, 687 F.Supp. at 1362 (rejecting the argument that any plan affecting only a single legislative district would interfere with the state-wide scheme of apportionment).
Where, as here, a violation of the Voting Rights Act has been established, “courts should make an affirmative effort to fashion an appropriate remedy for that violation.” Monroe v. City of Woodville, Mississippi, 819 F.2d 507, 511 n. 2 (5th Cir.1987) (per curiam), cert. denied, 484 U.S. 1042, 108 S.Ct. 774, 98 L.Ed.2d 860 (1988). The legislative history of the Act states:
The basic principle of equity that the remedy fashioned must be commensurate with the right that has been violated provides adequate assurance, without disturbing the prior case law or prescribing in the statute mechanistic rules for formulating remedies in cases which necessarily depend upon widely varied proof and local circumstances. The court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice.
S.Rep. No. 417 at 31, 1982 U.S.Code Cong. & Admin.News at 208 (footnote omitted). In sum, “ ‘the [district] court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.’ ” Ketchum v. Byrne, 740 F.2d 1398, 1412 (7th Cir.1984) (quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965)), cert. denied sub nom. City Council v. Ketchum, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985).
We agree with the Seventh Circuit that it is not the proper role of an appeals court to formulate its own remedial plan “or to dictate to a district court minute details of how such a plan should be devised.” Ketchum, 740 F.2d at 1412. Therefore, we remand this case to the district court with directions to formulate an appropriate remedy for violation of the Voting Rights Act in Phillips County. We instruct the district court to limit its remedy to within the borders of Phillips County, since the evidence requires such a limitation.
We are well aware of the district court’s concerns that elimination of the primary runoff requirement may not provide a total solution to the problem of the inability of black candidates to be elected in Phillips County and, indeed, may perpetuate racially polarized voting there. However, the majority vote requirement has, up to this point, prevented blacks from electing the candidates of their choice, and so, the elimination of that requirement is mandated by section 2. While the duties of a district judge are multitudinous, accurately forecasting the future is not one of them. Legislators are responsible for the results stemming from their decision-making. Thus, these potential problems are for Congress, not the courts, to solve. If the remedy fashioned for Phillips County serves to intensify the problem, as the district court anticipates, then the Congress will have to reevaluate section 2 as it is applied to
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | C | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge:
For more than two years, from 1983 to 1985, the Federal Bureau of Investigation investigated the Committee in Solidarity with the People of El Salvador (CISPES), several of its members, and individuals and groups associated with the organization. An informant, later found to be untrustworthy, had alleged that CISPES was involved in terrorist activities. No links to terrorism were ever uncovered. After determining that it had been acting on unreliable information, the FBI terminated the inquiry. By then the Bureau had collected a considerable amount of data about CISPES and its members.
In testimony before congressional committees, the Director of the FBI, William F. Sessions, said the investigation should never have been initiated, but denied that the Bureau had acted illegally in conducting the inquiry. Director Sessions notified the committees that several agents had been disciplined and that internal procedures had been revised to insure that such errors would not recur.
Thereafter, in 1988, CISPES, four other organizations, and eight individuals brought this action against Director Sessions and the FBI. The complaint, as amended, alleged that the FBI conducted the investigation for the purpose of deterring plaintiffs from exercising their First Amendment right to protest the government’s policy in Central America, that the investigation had this effect, that CISPES’s membership declined during the investigation, and that plaintiffs were suffering irreparable harm as a result of the FBI’s possession of information about them and its dissemination of such information to others. Plaintiffs claimed that defendants were violating their First Amendment rights to freedom of speech and association, as well as the Privacy Act of 1974, 5 U.S.C. § 552a. They sought a declaratory judgment and a “mandatory injunction” requiring the FBI to collect all FBI files and any “other federal agency files” relating to the CISPES investigation and to deposit these files in the National Archives “upon terms and conditions to be determined by the Court.”
After the district court denied plaintiffs’ motion for a preliminary injunction (705 F.Supp. 25 (D.D.C.1989)), defendants filed a motion to dismiss the case for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1). While the motion was pending, the FBI entered into a written agreement with the National Archives transferring all of its CISPES files, including those held by its field offices and those resulting from “spin-off” investigations, to the Archives. The district court took note of the agreement and dismissed the complaint on the grounds that the case was moot and that plaintiffs lacked standing. 738 F.Supp. 544, 547-48 (D.D.C.1990).
The first question on appeal is whether, in light of the FBI’s transfer of its files to the Archives, this continued to be a “case or controversy” under Article III of the Constitution. Plaintiffs’ challenge to the constitutionality of the FBI’s investigation could not alone satisfy the requirement. The investigation ended years ago. To pass judgment on its legality would be to render an advisory opinion unless there were current consequences. In injunction suits, plaintiffs usually must establish that the allegedly illegal actions of the past are causing or threatening to cause them present injuries. E.g., O’Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 (1974); cf. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); North Carolina v. Rice, 404 U.S. 244, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971). Current or future harm serves to keep the controversy alive. If the possibility of continuing injury disappears while the lawsuit is pending, the complaint ordinarily should be dismissed as moot.
We shall assume the complaint presented a live controversy when plaintiffs filed it in 1988. But the alleged harm resulting from the FBI’s possession of the information necessarily ceased when the FBI relinquished the files. It is of no consequence that the FBI, rather than destroying the files, turned them over to the Archives. That is the relief plaintiffs requested. Their complaint sought an order directing the FBI to deposit its CISPES files with the Archives under such “terms and conditions” as the court saw fit. Although the court did not impose the terms governing the transfer, the court did review the agreement and indicated that it would have granted no further relief if plaintiffs had prevailed on the merits.
It is therefore appropriate to presume that the agreement provided a sufficient remedy for the harm plaintiffs alleged. However, because the FBI acted voluntarily, without judicial compulsion, mootness also depended on there being little likelihood that the agreement would be undone. United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968); see United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897-98, 97 L.Ed. 1303 (1953); City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n. 10, 102 S.Ct. 1070, 1074-75 & n. 10, 71 L.Ed.2d 152 (1982). Assessing that probability was “a matter for the trial judge,” Concentrated Phosphate Export Ass’n, 393 U.S. at 204, 89 S.Ct. at 364, who determined that there was no basis for doubting that the FBI would honor the agreement and that all CISPES files, including those in the FBI’s computer banks, were covered. Plaintiffs object that the court relied on representations made by the FBI and its Director to the court (and to Congress), rather than on facts established in an adversary proceeding. But “it has been the settled practice” to accept such representations in determining whether a case presents a live controversy. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974); Ehlert v. United States, 402 U.S. 99, 107, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). The district court thus properly found this aspect of the ease to be moot.
This still leaves plaintiffs’ claim about information in the hands of other federal agencies, information plaintiffs wanted the FBI to retrieve and turn over to the Archives pursuant to court order. The district court dismissed this claim on the defendants’ Rule 12(b)(1) motion, citing “mootness” and lack of standing, both of which it regarded as jurisdictional. Plaintiffs argue that the court’s ruling, a portion of which is quoted in the margin, actually was on the merits. They say this makes a procedural difference because a dismissal for failure to state a claim is improper if matters outside the pleadings “are presented to and not excluded by” the court. Rule 12(b), Fed.R.Civ.P. In that event, Rule 12(b) requires the court to treat the proceeding as one for summary judgment under Rule 56 and to give the parties an opportunity to present opposing material. Plaintiffs contend they were deprived of this opportunity.
Even if plaintiffs are right that the court, in effect, dismissed their claim on the merits — that is, pursuant to Rule 12(b)(6)— their conclusion would not follow. The only materials outside the pleadings presented by the defendants were the agreement between the FBI and the Archives and a letter from Director Sessions to Senator Boren announcing the decision to transfer the records. These items had nothing to do with files in the possession of other agencies, which is the concern of this portion of plaintiffs’ complaint. Rule 12(b) therefore did not require the court to convert this into a Rule 56 summary judgment proceeding. Once we pass that point, it makes little difference whether the court’s dismissal of this claim is viewed as resting on lack of jurisdiction, the merits or a combination of the two. See Sacks v. Reynolds Securities, Inc., 593 F.2d 1234, 1239 (D.C.Cir.1978); Chiplin Enterprises, Inc. v. City of Lebanon, 712 F.2d 1524, 1528-29 (1st Cir.1983). Equitable considerations and justiciability often tend to merge as the district court decides “whether the controversy is sufficiently live and concrete to be adjudicated and whether it is an appropriate case for equitable relief.” American Foreign Service Ass’n v. Garfinkel, 490 U.S. 153, 161, 109 S.Ct. 1693, 1698, 104 L.Ed.2d 139 (1989) (per curiam).
Procedural considerations aside, we think the district court reached the correct result. Plaintiffs’ supposed continuing injury was far too speculative to support the sort of extraordinary injunction they sought. They alleged that if other government agencies kept the information the FBI had supplied to them, the individual plaintiffs would have less of a chance to obtain government employment. Yet no plaintiff expressed any desire to engage in government employment. The district court therefore found the allegation of continuing harm far-fetched and we agree. O’Shea v. Littleton, 414 U.S. at 497-99, 94 S.Ct. at 676-78. “Injunctions ... will not issue to prevent injuries neither extant nor presently threatened, but only merely ‘feared.’ ” Exxon Corp. v. FTC, 589 F.2d 582, 594 (D.C.Cir.1978) (quoting Connecticut v. Massachusetts, 282 U.S. 660, 51 S.Ct. 286, 75 L.Ed. 602 (1931)), cert. denied, 441 U.S. 943, 99 S.Ct. 2160, 60 L.Ed.2d 1044 (1979); Newhouse v. Probert, 608 F.Supp. 978, 984 (W.D.Mich.1985).
Similar considerations warranted dismissal of this portion of the complaint under Rule 12(b)(6) for failure to state a claim upon which injunctive relief could be granted. Injunctions issue to prevent irreparable harm. Beacon Theatres v. Westover, 359 U.S. 500, 506-07, 79 S.Ct. 948, 954-55, 3 L.Ed.2d 988 (1959); Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C.Cir.1985). When there appears to be no real harm to prevent, a court is justified in refusing to provide such relief. Moreover, whether the mandatory injunction plaintiffs sought would accomplish anything was itself speculative. Other federal agencies, not the FBI, controlled the records. An injunction compelling them to turn over their files would have been improper since they were not parties to the lawsuit. See Rule 65(d), Fed.R.Civ.P.; Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112, 89 S.Ct. 1562, 1570, 23 L.Ed.2d 129 (1969). The district court therefore properly dismissed this claim on the grounds that, “as a practical matter,” the FBI controls only files in its possession and that, in any event, plaintiffs’ asserted injury from the existence of these other files was too remote.
At oral argument, CISPES suggested that we should order the FBI to request (since it cannot compel) other agencies to return the relevant files. Yet the prospect of a court-ordered memorandum from the FBI asking a favor of other agencies seems an odd basis for launching a lawsuit. The chances that such “relief” would produce the ultimate result that CISPES seeks (transferral of all copies of the files to the Archives) is wholly speculative. At any rate, CISPES did not clearly argue for this relief in its appellate brief, so the issue is not properly before us. See Carducci v. Regan, 714 F.2d 171, 177 (D.C.Cir.1983).
Affirmed.
. Plaintiffs sought to bring the suit as a class action on behalf of "178 individuals and organizations" but the class was never certified.
. Plaintiffs' claims under the Privacy Act were also rendered moot by the FBI’s disposal of the records in its possession, which is the maximum injunctive relief to which plaintiffs would be entitled under the Act. Reuber v. United States, 829 F.2d 133, 147 (D.C.Cir.1987); Metadure Corp. v. United States, 490 F.Supp. 1368, 1375 (S.D.N.Y.1980).
. As a practical matter, however, the defendants can only dispose of records over which they have custody or control. Information and records that the defendants have already disseminated, i.e., to other federal agencies or foreign governments, are beyond the disposal power of the defendants. Moreover, although other entities may have copies of the records, possession by these entities is not sufficiently related to plaintiffs’ asserted injury to establish an actual case or controversy.
738 F.Supp. at 546.
.There is no such constraint on the court when it is considering a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). Haase v. Sessions, 835 F.2d 902, 906 (D.C.Cir.1987).
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
Opinion for the Court filed by Senior Circuit Judge MacKINNON.
MacKINNON,
Senior Circuit Judge:
In 1973, appellants Sinclair, Plamondon and Forrest sued two Attorney Generals, the Director and three unnamed agents of the FBI, and the President of the United States claiming damages for alleged violation of their constitutional and statutory rights arising out of certain electronic telephone surveillance of the Black Panther Party in California in the year 1969. Over the years, decisions of the district court and this court have resulted in the dismissal of all claims against the original defendants. However, during the pendency of those proceedings, a second set of electronic surveil-lances involving the White Panther Party in Ann Arbor, Michigan during 1970 and 1971 was discovered. As a result of such discovery plaintiffs moved to amend their complaint and add claims against the three special agents of the FBI who allegedly participated in the White Panther Party electronic surveillances. The district court denied plaintiffs’ motions to amend the complaint. This court reversed that decision and remanded the case with instructions that plaintiffs be allowed to amend their complaint to name the three special agents as defendants and to include claims relating to the White Panther Party surveillance. Sinclair v. Kleindienst, 645 F.2d 1080, 1085-86 (D.C.Cir.1981).
Following the amendment to the complaint, the three FBI agents moved to dismiss the action on various grounds. The plaintiffs opposed the motions for dismissal and, pursuant to 28 U.S.C. § 1406(a) (1976), moved to have all three cases transferred to the United States District Court for the Eastern District of Michigan. The district court dismissed the Plamondon and Forrest actions for, inter alia, failure to state a claim upon which relief could be granted, ruled that transfer of the Sinclair cause to Michigan was not in the interest of justice, and dismissed the Sinclair claim. Sinclair v. Kleindienst, No. 610-73 (D.D.C. June 4, 1982); JA 21-22. Plaintiffs Plamondon and Forrest appeal the court’s dismissal of their action and each plaintiff appeals the denial of his § 1406(a) motion to transfer.
The court dismissed the cause of action by Plamondon and Forrest for failure to state claim. Fed.R.Civ.P. 12(b)(6). Our examination of the amended complaint reveals that there are general allegations sufficient to give adequate notice of the alleged unlawful acts which form the basis of each plaintiffs’ claims. We accordingly decide that the amended complaint does state a cause of action and that the dismissal should be reversed.
By way of support for this disposition, we rely upon Supreme Court authority which holds that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). The rule that the allegations of the complaint must be construed liberally and most favorably to the pleader is so well recognized that no authority need be cited. The claim by the government that the complaint does not contain specific allegations of the incidents involving the individual defendants and the precise violations claimed falls short of asserting supportable grounds for dismissal. The Federal Rules of Civil Procedure do not require a claimant to set out the precise facts on which the claim is based. All that is required is “a short and plain statement of the claim” that will give the defendant fair notice of the plaintiff’s claim and the grounds upon which it rests. Fed.R.Civ.P. 8(a)(2). “Notice pleading” is sufficient. Conley v. Gibson, supra, 355 U.S. at 47-48, 78 S.Ct. at 102-103. We find that Forrest and Plamondon have set forth sufficient allegations to give the defendants notice of potentially viable claims of constitutional and statutory violations arising from allegedly illegal wiretaps conducted by the three defendants. We do not consider the complaint to be a model for the future but we do find it to be sufficient.
The trial court also denied Sinclair’s motion to transfer which was based on 28 U.S.C. § 1406(a). This statute provides:
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
The court refused to transfer because, it stated, this was an “old case” and the new defendants were not added until five years after the complaint was filed. We do not consider that these factors justify denying the motion to transfer. While the original case involving the Black Panther Party was filed in 1973, the case involving the White Panther Party was not discovered until later. Upon discovery of the new claims, plaintiffs moved to amend the complaint within a reasonable amount of time. By order of this court, the three FBI agents were added as defendants in 1981. The lapse of time between the filing of the original action, the discovery of the current defendants, and the actual amendment of the complaint is not entirely attributable to the plaintiffs and is not a reason to deny the motion to transfer.
In our opinion the requested transfer of the cause of action would be “in the interest of justice.” Refusal to transfer spells the end to the action, while transfer would not prejudice the defendants’ position on merits. The Supreme Court has inferred a congressional purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles “impede an expeditious and orderly adjudication ... on the merits.” Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 915-16, 8 L.Ed.2d 39 (1962). The procedural obstacles which may be removed by a transfer include the lack of personal jurisdiction, improper venue and statute of limitations bars. Dubin v. United States, 380 F.2d 813, 816 (5th Cir.1967) (footnote omitted) (“[Section] 1406 operates when there is an obstacle — either incorrect venue, absence of personal jurisdiction, or both — to a prompt adjudication on the merits in the forum where originally brought.”)
Transfer is particularly appropriate where, as here, without a transfer the cause of action would be barred by the running of the applicable statute of limitations. Burnett v. New York Central Railroad Co., 380 U.S. 424,430, 85 S.Ct. 1050,1055,13 L.Ed.2d 941 (1965) (It is in “the interests of justice” to transfer a case rather than dismiss when refiling of the action in the proper venue would be barred by applicable statutes of limitations.). It is clear that regardless of the exact date upon which this action would be deemed to have accrued, it is now too late for plaintiff to institute a new cause of action in Michigan based upon the White Panther Party surveillances.
In addition, it appears that transfer would enable the plaintiff to obtain personal jurisdiction over the three FBI agents. Overby v. Johnson, 418 F.Supp. 471 (E.D. Mich.1976) (the Michigan long-arm statute provides for limited personal jurisdiction over- non-resident defendants whose acts within the state result “in an action for tort.” M.C.L. § 600.705(2) (1976). Federal statutory claims are torts within the meaning of the state long-arm statute.). Cf. Black v. Rasile, 113 Mich.App. 601, 318 N.W.2d 475, 476 (Mich.App.1980) (“[T]he phrase ‘action for tort’ in M.C.L. § 600.-705(2) ... should be construed as including statutory causes of action .... ”). While this district court does not have personal jurisdiction over the defendants, it appears likely that personal jurisdiction could be obtained in Michigan. Transfer would, therefore, make an adjudication on the merits of plaintiff’s claims possible.
Because the alleged illegal wiretapping occurred in Michigan, it may also be easier to find evidence and witnesses in that area. Moreover, venue would be proper in Michigan. See 28 U.S.C. § 1391(e) (1976). Applying the traditional factors considered when ruling on a motion to transfer, we conclude that the Sinclair case should be transferred. In our judgment both venue and jurisdiction are proper in Michigan and the matter can be more efficiently litigated in that jurisdiction.
Since we have found that the dismissal of the Plamondon and Forrest causes of action was improper, and both of those appellants have also moved for transfer to the Eastern District of Michigan, we find that the same factors that dictate transfer of Sinclair’s action apply also to the actions by Plamon-don and Forrest. Thus, we order the transfer of all three cases to the Eastern District of Michigan.
Conclusion
For reasons set forth above it is hereby:
ORDERED and ADJUDGED, that the dismissal of the causes of action by appellants Plamondon and Forrest for failure to state a claim upon which relief could be granted is reversed and the district court is instructed to reinstate the causes of action; and it is further
ORDERED and ADJUDGED that the dismissal of the Sinclair cause of action is hereby reversed, and it is further
ORDERED and ADJUDGED that the district court is hereby instructed to transfer the Sinclair, Plamondon and Forrest causes of action to the United States District Court for the Eastern District of Michigan.
It is FURTHER ORDERED that the Clerk shall issue the mandate forthwith.
Judgment accordingly.
. The district court stated at the outset of its memorandum accompanying the order of dismissal that it lacked personal jurisdiction over the defendants. In the absence of personal jurisdiction, however, the district court could not properly consider any further action in the case, with the exception of ruling upon the motion to transfer under 28 U.S.C. § 1406(a). Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 915, 8 L.Ed.2d 39 (1962).
. The defendants would not be barred from raising any defense or submitting any motions in the transferee court which would have been proper in the transferor court. While the three FBI agents may move for summary judgment on the basis of qualified immunity, they have not done so yet and therefore that issue is not before this court.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
DUNIWAY, Circuit Judge:
Hayflick and Cell Associates brought suit under the Privacy Act of 1974, 5 U.S.C. § 552a (1976), seeking to enjoin the government from releasing two investigative reports prepared by the National Institutes of Health (NIH). The district court denied a motion for a preliminary injunction and this appeal followed. We have jurisdiction under 28 U.S.C. § 1292(a)(1). We affirm the order as to Hayflick and remand with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing.
I.
FACTS
The two reports which are the subject of this appeal summarize the results of an investigation conducted by NIH into Hay-flick’s activities as a biological researcher working under contract with NIH at Stanford University between 1968 and 1975. The reports, which were completed and presented to the Director of NIH on January 30, 1976, are entitled “Investigation of Activities Relating to the Storage, Distribution and Sale of Human Diploid Cell Strains, WI-38 and WI-26” (“Cell Report”) and “Investigation of Activities Relating to the Charging of Test Fees Under Contracts Awarded to Stanford University by the National Cancer Institute” (“Mycoplasma Report").
The Cell Report charges Hayflick with committing serious improprieties in his role as principal investigator under an NIH contract providing for the production and distribution of certain human cell cultures which are widely used in vaccine manufacture and medical research. Specifically, the report alleges that Hayflick (1) sold cell cultures developed and produced at government expense for personal gain; (2) violated an agreement with the government by transferring cell cultures from Philadelphia’s Wistar Institute to Stanford University without authorization; (3) distributed cell cultures which he knew to be contaminated; (4) intentionally mislabelled cell cultures; (5) maintained inadequate records; and (6) lost, stole or squandered cell cultures which were in his possession when he commenced research at Stanford in 1968. The Cell Report concludes with recommendations that “a claim be established against Dr. Hayflick for the proceeds from the sales of Government property” and that “consideration be given to removing Dr. Hayflick as principal investigator or other key participant in NIH supported projects.”
The Mycoplasma Report deals with Hay-flick’s activities as principal investigator under a separate NIH contract providing for the establishment and operation of a mycoplasma diagnostic laboratory at Stanford. It alleges that Hayflick improperly charged fees for mycoplasma testing conducted at government expense and then deposited the proceeds in personal accounts and accounts maintained by Stanford University or by Cell Associates, a corporation wholly owned by the Hayflick family. The Mycoplasma Report concludes with recommendations that all such fees, plus interest, be recovered by NIH and that “the practice of charging fees for mycoplasma tests and charging the costs to NIH research agreements ... be discontinued.”
Hayflick received copies of the reports shortly after their completion in January, 1976. He asked for and was given an opportunity to respond to the allegations in writing with a deadline of April 1 within which to do so. On March 17, before Hay-flick had submitted his rebuttal, NIH received two requests for the reports under the Freedom of Information Act. Eventually five requests were received, four from publications, including the New York Times, and one from an individual who used the cells produced in Hayflick’s laboratory in his research. NIH concluded that it was required under the Freedom of Information Act to release the reports. Before doing so, however, it told Hayflick of the requests and that it intended to honor them on March 25 unless a court order prohibiting disclosure were issued by that date.
On the morning of March 25, Hayflick and Cell Associates brought this action under the Privacy Act, seeking (1) preliminary and permanent injunctions barring release of the reports; (2) a temporary restraining order; (3) a declaration that Hayflick was entitled to “all proceeds collected to date . for the sale of human diploid cell material and the sale of mycoplasma testing services;” and (4) damages.
The district court denied the application for a temporary stay on the afternoon of March 25. NIH released the reports to the press that same evening. Through the New York Times Service and various scientific publications, summaries of the reports were widely disseminated. NIH is continuing to release the reports to anyone who asks for them and continues to maintain that it is required to do so.
On April 30 the district court denied the motion for an injunction against disclosure, stating:
I have extreme doubts about the jurisdiction of the Court to issue such an injunction.
If I do have jurisdiction to do so, I find no basis in the record to compel or suggest that the Court should do so. On the balancing of the equities, I would find that the interests of the public and the medical community as a whole is far better served by a free distribution of information that raises questions about the validity of materials that have been put into the scientific community and in general I have extreme doubts about the likelihood of the plaintiffs prevailing in this action and for those reasons, the preliminary injunction will be denied.
II.
STANDING
Subsection (g)(1), “Civil remedies,” of the Privacy Act, 5 U.S.C. § 552a(g)(l) (1976), creates federal claims for relief for enumerated violations of the Act’s substantive provisions and refers throughout only to actions brought by an “individual.” Subsection (a)(2) defines an “individual” as “a citizen of the United States or an alien lawfully admitted for permanent residence.” It is clear that Cell Associates, a corporation formed in 1974, is not an “individual” within the meaning of the statute. We therefore remand, with directions to dismiss Cell Associates, Inc., as a plaintiff for lack of standing under the Privacy Act.
III.
MOOTNESS
The parties do not argue the question of whether the case is moot, but we feel obliged to consider it. It could be argued that because the reports have been distributed to the four newspapers and to some individuals, and widely commented upon in the press, the horse is out of the barn and nothing can be accomplished now by locking the door. However, we reject this argument. NIH still has the reports, and is still willing to permit anyone who asks for them to see and obtain copies of them. Each time that this happens can add to Hayflick’s damages. Under these circumstances, the action is not moot.
IV.
JURISDICTION TO ENJOIN DISCLOSURES
A. The Statutory Scheme.
The “Civil remedies” section of the Privacy Act, subsection (g) of 5 U.S.C. § 552a, links particular violations of the Act to particular remedies in a specific and detailed manner. It lists four types of agency misconduct that give rise to civil remedies
VIOLATIONS
(g)(1) Civil remedies
Whenever any agency
(A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;
(subsection (d)(3) reads:
Each agency that maintains a system of records shall—
******
(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and . . . complete such review and make final determination . . . and if . . . the reviewing official also refuses to amend the record, . . permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement . . . and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;”)
(g)(1)
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(subsection (d)(1) reads:
“Each agency that maintains a system of records shall—
******
(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in'a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence;”) and it then states the civil remedies applicable to each. The scheme can best be seen if the violations and remedies are set out side by side:
REMEDIES
(g)(2)(A)
In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual’s record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.
(g)
(3)(A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case, the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.
VIOLATIONS
(g)(1)
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual, the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.
(Subsection (b) prohibits disclosure of “any record which is contained in a system of records . . except pursuant to a written request by, or with the prior written consent of the individual to whom the record pertains . . ” subject to 11 enumerated exceptions.)
REMEDIES
(g)
(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.
Hayflick claims that NIH has failed to comply with subsection (b). Thus his claim for relief arises under subsection (g)(1)(D) and the applicable civil enforcement action is the one authorized in subsection (g)(4). It provides for damages, costs, and attorney fees, where the agency acted in a manner that was intentional or willful. It does not provide for an injunction. There is a further remedy for willfully disclosing material, knowing that disclosure of it is prohibited, a criminal penalty prescribed in subsection (i)(l).
It thus appears on the face of the Act that Congress carefully described particular violations and provided particular procedures and remedies for each of them. In two instances, it provided for injunctive types of relief. See subsections (g)(1)(A) and (2) and (g)(1)(B) and (3), supra. In the other two instances, it provided for damages, but not for injunctive relief. See subsections (g)(1)(C) and (D) and (g)(4), supra.
Presumably, Congress intended to do what it did. This points to a conclusion that Congress did not intend to authorize the issuance of injunctions prohibiting disclosures of protected materials.
[W]hen legislation expressly provides a particular remedy or remedies, courts should not expand the coverage of the statute to subsume other remedies. “When a statute limits a thing to be done in a particular mode, it includes the negative of any other mode.” Botany Mills v. United States, 278 U.S. 282, 289, 49 S.Ct. 129, 73 L.Ed. 379 (1929). This principle of statutory construction reflects an ancient maxim — expressio unius est exclusio alter; us.
National Railroad Passenger Corp. v. National Association of Railroad Passengers, 1974, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646. See also Switchmen’s Union v. National Mediation Board, 1943, 320 U.S. 297, 301, 64 S.Ct. 95, 88 L.Ed. 61; United States v. Babcock, 1919, 250 U.S. 328, 330, 39 S.Ct. 464, 63 L.Ed. 1011. Were Hayflick correct in his contention that injunctive relief is available for violation of any of the Act’s provisions, the detailed remedial scheme adopted by Congress would make little sense. We think it unlikely that Congress would have gone to the trouble of authorizing equitable relief for two forms of agency misconduct and monetary relief for all other forms if it had intended to make injunctions available across the board.
While it is true that equitable jurisdiction conferred by statute “is not to be denied or limited in the absence of a clear and valid legislative command,” Porter v. Warner Co., 1946, 328 U.S. 395, 398, 66 S.Ct. 1086, 1089, 90 L.Ed. 1332 a statute may “in so many words or by a necessary and inescapable inference” restrict the availability of injunctive relief. Id. at 398, 66 S.Ct. at 1089. “Congress knows how to deprive a court of broad equitable power when it chooses to do so.” Renegotiation Board v. Bannercraft Co., 1974, 415 U.S. 1, 19, 94 S.Ct. 1028, 1038, 39 L.Ed.2d 123. It appears from the face of the statute that injunctive relief to prevent a violation of subsection (b) is like the snakes in Ireland, because the Act makes no provision for it as part of the remedies that it does provide.
B. The Legislative History.
Our examination of the legislative history of the Privacy Act confirms our view that Congress did not intend to authorize the issuance of injunctions prohibiting the disclosure of protected materials. S. 3418, the original version of the Act passed by the Senate, granted broad equitable jurisdiction to the district courts, much like that conferred by the statute involved in Porter v. Warner Co., supra. It provided:
The Attorney General of the United States, ... or any aggrieved person, may bring an action in the appropriate United States district court against any person who has engaged, is engaged, or is about to engage in any acts or practices in violation of the provisions of this Act ... to enjoin such acts or practices.
S. 3418, at § 304(a).
In contrast, H.R. 16373, the House version of the Act, authorized the district courts to enjoin agencies from wrongfully withholding records, as in subsection (g)(1)(B) and (3) of the Act, supra, but provided only monetary relief for other forms of agency misconduct, as in subsections (g)(1)(C) and (D) and (4) of the Act, supra.
Ordinarily, the differences between the two bills would have been resolved by a conference committee. However, “the lateness of the session and the pressures on Members of both bodies due to other pressing legislative business” dictated use of a more expedient procedure. Remarks of Congressman Moorhead, reprinted from the Congressional Record in Committee on Government Operations, United States Senate and Committee on Government Operations, House of Representatives, Legislative History of the Privacy Act of 1974, 94th Cong., 2d Sess. 985-86 (Joint Comm.Print 1976) (“Legislative History"). Accordingly, members of the House and Senate Government Operations Committees met informally and hammered out the compromise bill ultimately enacted into law as the Privacy Act of 1974. (Legislative History at 873, remarks of Senator Percy.)
The two houses adopted, in large measure, the civil remedies section contained in the original House bill. They modified the House bill in one significant respect, however, adding a right to injunctive relief for an agency’s wrongful refusal to correct an individual’s records. (See subsections (g)(1)(A) and (2), supra.) This course of action suggests that Congress deliberately opted for the limited right to injunctive relief provided by the House Bill. In amending the House bill Congress chose to add an agency’s wrongful refusal to amend an individual’s record to the list of violations for which injunctive relief is available. However, it did not add wrongful disclosure of protected materials to that brief list. The addition of a right to injunctive relief for one type of violation, coupled with the failure to provide injunctive relief for another type of violation, suggests that Congress knew what it was about and intended the remedies specified in the Act to be exclusive.
While the right to damages might seem an inadequate safeguard against unwarranted disclosures of agency records, we think it plain that Congress limited injunc-tive relief to the situations described in 5 U.S.C. § 552a(g)(l)(A) and (2) and (1)(B) and (3).
Congress for reasons of its own decided upon the method for the protection of the “right” which it created. If selected the precise machinery and fashioned the tool which it deemed suited to that end. . [I]t is for Congress to determine how the rights which it creates shall be enforced. . In such a case the specification of one remedy normally excludes another. Switchmen’s Union v. National Mediation Board, supra, 320 U.S. at 301, 64 S.Ct. at 97 (citations omitted). See also Santa Clara Pueblo v. Martinez, 1978, U.S. - at — , 98 S.Ct. 1670, at 56 L.Ed.2d 106.
None of the decisions on which Hayflick relies involves a statute comparable to the one before us. In some, the statute, while obviously creating a right, said nothing about a remedy, and the court implied one. Jones v. Mayor Co., 1968, 392 U.S. 409, 414 n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189, construing 42 U.S.C. § 1982; Sullivan v. Little Hunting Park, Inc., 1969, 396 U.S. 229, 238, 90 S.Ct. 400, 24 L.Ed.2d 386, construing 42 U.S.C. § 1982; Bell v. Hood, 1946, 327 U.S. 678, 684, 66 S.Ct. 773, 90 L.Ed. 939, construing the Fourth and Fifth Amendments and 28 U.S.C. § 41(1).
The so called reverse Freedom of Information Act (FOIA) cases are of this type. They deal with the exceptions to FOIA set out in subsection (b) of FOIA, 5 U.S.C. § 552 as amended. That subsection simply provides: “This section does not apply to matters that are — ” and then lists 9 categories of matters. Section 552 does not expressly prohibit disclosure of any such matters; it merely provides that FOIA does not apply to them. Under these circumstances, we have great difficulty in accepting the notion that FOIA can be the basis for granting an injunction against disclosure of excepted matters when an agency elects to disclose them, especially when subsection (c) provides:
(c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information from Congress.
Nevertheless, courts have held that FOIA is a basis for issuing an injunction against disclosure of excepted matters. See, e. g., Planning Research Corp. v. Federal Power Commission, 1977, 181 U.S.App.D.C. 33, 39-40, 555 F.2d 970, 976-77; Sears, Roebuck & Co. v. General Services Administration, 1977, 180 U.S.App.D.C. 202, 204-205, 553 F.2d 1378, 1380 -81; Westinghouse Electric Corp. v. Schlesinger, 4 Cir., 1976, 542 F.2d 1190, 1210 13; but see Sears, Roebuck and Co. v. Eckerd, et al, 7 Cir., 1978, 575 F.2d 1197, 1202-03. The right to an injunction is implied; the Act nowhere provides for any remedy against disclosure. This is a far cry from the Privacy Act which, as we have seen, contains detailed prohibitions and detailed remedies, but omits the equitable remedy against disclosure which was contained in the Senate version of the bill.
In some cases the statute involved conferred equitable powers in broad terms, and the court construed the language broadly. Mitchell v. Robert De Mario Jewelry, 1960, 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323, construing 29 U.S.C. § 217; Reich v. Webb, 9 Cir., 1964, 336 F.2d 153, 158, construing 12 U.S.C. § 1464(d)(1); Los Angeles Tr. D. & Mtge. Exch. v. Securities and Exch. Comm., 9 Cir., 1960, 285 F.2d 162, 181-82, construing the Securities Act of 1933, 15 U.S.C. § 77v(a) and the Securities Exchange Act of 1934, 15 U.S.C. § 78aa; Culpepper v. Reynolds Metals Co., 5 Cir., 1970, 421 F.2d 888, 893-94, construing 42 U.S.C. § 2000e-5(g); United States v. Republic Steel Corp., 1960, 362 U.S. 482, 491-92, 80 S.Ct. 884, 4 L.Ed.2d 903, construing 33 U.S.C. §§ 403, 405. Part III of the opinion in Renegotiation Board v. Bannercraft Co., supra, 415 U.S. at 16-20, 94 S.Ct. 1028, appears to be dictum,-in light of the holding in part IV, at pp. 20-26, 94 S.Ct. 1028. Moreover, the statute there involved, 5 U.S.C. § 552(a)(3), is far less specific and detailed than the provisions of 5 U.S.C. § 552a(g). The case is another one in which the court gives a broad construction to equity powers expressly conferred by the statute.
In some cases the statute provided for damages but said nothing about equitable relief. The court granted such relief, finding it necessary to make the Act effective. Bateman v. Ford Motor Co., 3 Cir., 1962, 302 F.2d 63, 66, construing 15 U.S.C. §§ 1221-1225; Semmes Motors, Inc. v. Ford Motor Co., 2 Cir., 1970, 429 F.2d 1197, 1206, similar (dictum); Action v. Gannon, 8 Cir., 1971, 450 F.2d 1227, 1237-38, construing 42 U.S.C. § 1985(3). The Privacy Act is not such a statute. It provides for some equitable relief, but not in this type of case.
One case is not remotely in point, and is cited only for a bit of obiter dictum that appellants’ counsel seems to like. Stringer v. United States, 5 Cir., 1973, 471 F.2d 381.
C. Conclusion.
We conclude that the district court was not authorized under the Privacy Act to enjoin disclosure of the Cell and Mycoplasma Reports and correctly so held. In light of our decision, we need not consider the government’s arguments that the reports do not fall within the coverage of the Privacy Act and that the district court did not abuse its discretion in concluding that the public interest in dissemination of the reports outweighed Hayflick’s interest in preventing their disclosure.
As to the appellant Hayflick, the order is affirmed. As to the appellant Cell Associates, Inc., we remand to the district court with directions to dismiss the action as to Cell Associates, Inc.
. During t.he debates over the proposed compromises, Senator Ervin placed a document entitled “Analysis of House and Senate Compromise Amendments to the Federal Privacy Act” in the Congressional Record. The analysis spells out the intent of the House and Senate legislation and explains the nature of the compromises effected. The House bill, it notes, would have permitted an individual to seek an injunction “only to produce his record upon a failure of an agency to comply with his request.” Under the Senate bill, by contrast, “injunctive relief would be available to an individual to enforce any right granted to him.” The final bill represents a compromise between the two positions, expanding the House bill to permit an individual “to seek injunctive relief to correct or amend a record maintained by an agency.” Legislative History at 861-62. A similar analysis was placed in the Record by Congressman Moorhead during House consideration. Legislative History at 987, 989-90.
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |
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 "privacy".
CORNELIA G. KENNEDY, Circuit Judge.
This case requires us to decide whether under the principles first articulated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), the District Court was obliged to abstain from deciding a class action challenge to certain aspects of state juvenile court procedures, and further, whether there exists a constitutional right of privacy which is violated by disclosure of juvenile court records. The District Court ruled that abstention was inappropriate. It reached the merits of all of the issues raised by appellant class, in the process finding a constitutional right to nondisclosure. We reverse.
This action was brought by appellants, the class of juveniles who have appeared in the past or may appear in the future before the Juvenile Court of Cuyahoga County, Ohio, on complaints of delinquency, unruliness, neglect, dependency and abuse. Appellees/cross-appellants (appellees) are those employees of the juvenile court responsible for compiling social histories of juveniles, submitting them to the judges, and maintaining custody of the social histories after disposition of a juvenile’s case.
When a young person is brought before the Juvenile Court of Cuyahoga County, Ohio, it is the practice of the court’s probation officers to compile a social history of the juvenile. Social histories contain information from a number of sources, including the complaining parties, the juveniles themselves, their parents, school records, and their past records in the juvenile court. They also include any information on record pertaining to other members of the family, and any other information that the probation officer thinks is relevant to the disposition of a case before the juvenile court. Receipt of written consent from juveniles or their families is not a prerequisite to compilation of social histories, and although access to social histories is available to juveniles’ lawyers, access is not available to juveniles or their families.
Ohio R.Juv.P. 32 authorizes submission of a social history to the juvenile court judge for certain limited purposes prior to adjudication of a juvenile’s case on the merits. The District Court found that the practice in Cuyahoga County is to make the social history available to the court before the adjudicatory hearing as a matter of course, although the juvenile court judges did not consult the social history prior to adjudication or an admission by the juvenile. The District Court also found that juvenile court referees frequently discuss a juvenile’s case ex parte with probation officers before an adjudicatory hearing. At the conclusion of a case the social history is kept on file at the juvenile court, where, upon request, it is available to 55 different government, social and religious agencies that belong to a “social services clearinghouse.”
Appellants brought this action under 42 U.S.C. § 1983 to enjoin the juvenile court’s use of social histories as unconstitutional. Appellants further asserted that insofar as Ohio R.Juv.P. 32 authorizes the pre-adjudication use of social histories, it, too, is unconstitutional. In addition, two named members of appellant class demanded $25,-000 damages for violation of their constitutional right to privacy.
Appellees moved the District Court to abstain on the basis of Younger v. Harris. The District Court denied the motion and proceeded to enjoin all ex parte communications between juvenile court judges and probation officers before a juvenile’s adjudicatory hearing. It made receipt of written consent from juveniles or their parents a prerequisite to compilation of the social history, but did not require that juveniles receive an exhaustive list of the consequences of consenting. It ruled that juveniles and their families must be afforded pre-adjudication access to the social histories. The District Court held that Rule 32 is constitutional insofar as it provides for limited pre-adjudication use of social histories, but it enjoined the Cuyahoga County Juvenile Court from any pre-adjudication use not specified in Rule 32. The District Judge denied the claim for damages, but found that the post-adjudication dissemination of social histories violated appellants’ constitutional right to privacy. He limited post-adjudication dissemination of social histories to employees of the juvenile court, and established detailed procedures under which those employees could obtain access.
I ABSTENTION
In Younger v. Harris the Supreme Court held that absent extraordinary circumstances a federal court should not enjoin a pending state criminal proceeding. Subsequent decisions have made clear that the policy of equitable restraint expressed in Younger was not based on factors unique to a criminal trial:
[Younger] reflects a strong policy against federal intervention in state judicial processes in the absence of great and irreparable injury to the federal plaintiff.... The basic concern — that threat to our federal system posed by displacement of state courts by those of the National Government — is also fully applicable to civil proceedings in which important state interests are involved.
Moore v. Sims, 442 U.S. 415, 423, 99 S.Ct. 2371, 2377, 60 L.Ed.2d 994 (1979). See also, Trainor v. Hernandez, 431 U.S. 434, 444, 97 S.Ct. 1911, 1918, 52 L.Ed.2d 486 (1977).
Appellants’ suit challenges the methods by which an Ohio juvenile court administers complaints involving Ohio youth. This is a matter in which the State of Ohio unquestionably has important interests. Thus, Younger principles of abstention are called into play if there existed a pending or ongoing juvenile proceeding.
The District Court’s first ground for denying appellees’ motion to abstain was that “[t]he principles of Younger are inapplicable to the instant action, inasmuch as the Juvenile Court proceeding against [a named class member] has been resolved.” In reaching this conclusion the District Judge did not have the benefit of our decision in Parker v. Turner, 626 F.2d 1 (6th Cir. 1980). In that case a class of plaintiffs consisting of indigent fathers who were under a state court order to pay child support sought to guarantee that the juvenile court would observe due process of law when citing them for contempt for nonpayment. We held that Younger barred the federal suit, although there was no showing that any member of the class was currently the subject of a state contempt proceeding. Judge Merritt, concurring, noted that the “pending state proceeding” hurdle had been cleared because the relief sought on behalf of the class would affect all pending state contempt proceedings for nonpayment. 626 F.2d at 10.
The same reasoning applies with even more force here. Appellant class consists of
those juveniles appearing before the juvenile court on complaints of delinquency, unruliness, neglect, dependency, and abuse who are adversely affected by the preparation and use of “social histories” prior to an adjudicatory hearing of the outstanding charges and retention and dissemination of those- “social histories” or information therefrom subsequent to the final disposition of the pending charges.
In its order certifying the class the District Court relied on the fact that the proposed class consisted of approximately 11,000 juveniles per year who appear before the juvenile court and are subject to the complained of practices. It is a certainty that there are always juvenile court proceedings pending with respect to some class members. Thus, Younger required the District Court to abstain unless some exception to the doctrine applied.
The District Court’s alternative ground for declining to abstain was that the use of social histories by juvenile court referees and judges “is merely collateral to the adjudicatory proceedings conducted by the Juvenile Court, and the declaratory and injunctive relief demanded by the plaintiff will therefore not substantially interfere with the administration of the Juvenile Court.” (Emphasis added) Hence, the court concluded, the rationale for abstention did not apply. In so holding, the District Judge relied on Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), and Conover v. Montemuro, 477 F.2d 1073 (3d Cir. 1973).
The Supreme Court held in Gerstein v. Pugh that Younger did not bar a federal suit by a state defendant in pretrial custody who sought a probable cause hearing before he could be further detained. The Court reasoned that since the federal issue could not be raised as a defense to the criminal prosecution, and federal resolution of the pretrial detention issue “could not prejudice the conduct of the trial on the merits,” the federal court could grant relief. 420 U.S. at 108 n.9, 95 S.Ct. at 860 n.9. The Supreme Court reviewed Gerstein as follows in Moore v. Sims, supra: “[Gerstein] held that the District Court properly found that the action was not barred by Younger because the injunction was not addressed to a state proceeding and therefore would not interfere with the criminal prosecutions themselves.” 442 U.S. at 431, 99 S.Ct. at 2381. Because the relief granted in Ger-stein caused some interference with Florida's handling of its criminal prosecution, the Court’s statements in Gerstein and Moore can be read to imply that abstention is not called for where the interference with state proceedings is of a magnitude less than or equal to that at issue in Gerstein. However, as the Court in Moore went on to say: “This Court has addressed the Younger doctrine on a number of occasions since Gerstein.” 442 U.S. at 431-432, 99 S.Ct. at 2381 — 2382. In light of those subsequent cases we do not think the Supreme Court intends that Younger abstention will be triggered only by “substantial” interference with a proceeding involving important state interests. Indeed, we think the Court’s cases require abstention if federal intervention would cause even minimal interference with such a state proceeding and the federal issue can be raised in the state proceeding.
In Trainor v. Hernandez, supra, the federal plaintiffs were charged in a state action with fraud against the state. In conjunction with the fraud action the state attached the federal plaintiffs’ property. The federal plaintiffs sought only to enjoin the attachment in the federal suit, arguing on the strength of Gerstein that Younger did not bar the injunction because granting it would not interfere with the underlying fraud action. The Supreme Court found that the attachment was sufficiently related to the fraud action to require abstention. 431 U.S. at 446 n.9, 97 S.Ct. at 1919 n.9.
We do not perceive any significant distinction between the level of interference that triggered abstention in Trainor v. Hernandez and that at issue in Gerstein. Rather, it is the federal plaintiffs’ opportunity to raise their claim in the state proceedings that distinguishes the cases. The Supreme Court explicitly found that no such opportunity existed in Gerstein, 420 U.S. at 106, 95 S.Ct. at 859, and remanded for consideration of this issue in Trainor. 431 U.S. at 447, 97 S.Ct. at 1919. Once again we find support in Moore v. Sims: “In Juidice v. Vail, 430 U.S., [327] at 336-337, [97 S.Ct. 1211 at 1217-1218, 51 L.Ed.2d 376], we noted that the teaching of Gerstein was that the federal plaintiff must have an opportunity to press his claim in the state courts.... ” 442 U.S. at 432, 99 S.Ct. at 2381.
Thus, the collateral issue exception to abstention relied on by the District Court is overbroad. Federal courts may hear those issues that can be raised in a state proceeding only if their resolution will not cause even minimal interference with a pending state proceeding that implicates important state interests. The federal suit by appellant class clearly interfered with Cuyahoga County juvenile proceedings. The challenged practice — the juvenile court’s predisposition use of social histories — is an integral part of the juvenile court’s handling of cases. The relief granted entails ongoing federal court interference with the daily operation of the juvenile court. Alleged violations of the injunction against ex parte communication concerning a juvenile’s case, or questions about whether a juvenile was fully informed as to the consequences of consenting to compilation of the social history, would have to be heard in the first instance in the federal district court.
Appellant class argues that Ohio law afforded it no opportunity to challenge the use of social histories in the juvenile court. Appellants have not established this claim, cf. Moore v. Sims, 442 U.S. at 432, 99 S.Ct. at 2381, and our review of Ohio law indicates the contrary. Ohio Rev. Code § 2151.23, the statutory grant of jurisdiction to the juvenile courts, does not limit the juvenile court to deciding only particular aspects of a juvenile’s case, or in any way restrict its jurisdiction, other than by limiting the court to dealing with juveniles. Section 2151.01 states that juvenile court jurisdiction is to be “construed liberally to assure the parties a fair hearing in which their constitutional and other legal rights are recognized and enforced.” Ohio R.Juv.P. 22(A) provides that a party may move to dismiss the complaint in a juvenile action “or for other appropriate relief,” which on its face certainly affords appellant class an opportunity to enjoin the juvenile court’s use of social histories before and during the adjudication. If it does not, Ohio R.Juv.P. 45 states that “[i]f no procedure is specifically prescribed by [the Rules of Juvenile Procedure] the court shall proceed in any lawful manner not inconsistent therewith.”
Appellant class also argues that to require it to challenge the use of social histories in the first instance in the state court will subject it to irreparable harm, in that there is an invasion of privacy as soon as a social history is compiled, and by the time the adjudicatory hearing is held it is far too late to correct this violation of a constitutional right. Appellants misperceive the nature of the irreparable harm that justifies ignoring the principles of the Younger abstention doctrine. As the Supreme Court stated in Huffman v. Pursue, Ltd., 420 U.S. 592, 603, 95 S.Ct. 1200, 1208, 43 L.Ed.2d 482 (1975),
[t]he seriousness of federal judicial interference with state civil functions has long been recognized by this Court. We have consistently required that when federal courts are confronted with requests for such relief, they should abide by standards of restraint that go well beyond those of private equity jurisprudence.
Younger counsels abstention unless the threatened injury is “great, immediate, and irreparable”; unless “ ‘extraordinary circumstances’ render the state court incapable of fairly and fully adjudicating the federal issue before it.... ” Moore v. Sims, 442 U.S. at 433, 99 S.Ct. at 2382 (citation omitted). The minimal invasion of appellants’ privacy that occurs through compiling a social history is not of such a magnitude to justify our otherwise inappropriate intervention in state affairs. In fact, plaintiffs in Moore v. Sims raised a very similar concern in their claim that they would be irreparably harmed by an anonymous report that they were child abusers under Texas law, since that report would be filed in a national registry. Sims v. State Dep’t of Public Welfare, 438 F.Supp. 1179 at 1187. The Supreme Court did not find sufficiently great and irreparable injury to justify federal court intervention.
The District Court should therefore have abstained from deciding those claims that pertained to the compilation and use of social histories prior to or during the adjudicatory hearing.
II POST-ADJUDICATION DISSEMINATION OF SOCIAL HISTORIES
Unlike appellants’ challenges to the juvenile court’s use of social histories before and during an adjudication, their challenge to post-adjudication use of the social histories could not be raised in any pending state judicial proceedings. Moreover, adjudication of this claim does not interfere in any manner with ongoing juvenile court proceedings. This aspect of appellants’ claim is logically and legally unrelated to their other claims for relief. Thus it falls into that class of claims so collateral that abstention is not appropriate.
Appellant class alleged that the post-adjudication dissemination of juveniles’ social histories to 55 governmental, social, and religious agencies that were members of a “social services clearing-house” violated their constitutional right of privacy. The class sought to enjoin access to social histories by anyone except juvenile court personnel. Two named members of the class sought damages of $25,000.
The District Judge held that dissemination beyond juvenile court employees was a violation of Ohio Rev.Code § 2151.14, which provides that “the reports and records of the probation department shall be considered confidential information and shall not be made public.” He also found, apparently on a constitutional basis, that the disclosure “violates the right of juveniles and their family members ‘to have intimate biographical details protected from exposure by the government.’ ” He enjoined the continued dissemination of social histories to any but juvenile court employees and established specific procedures under which those employees could obtain access, but denied appellants’ claim for damages. Appellees appeal the conclusion that their practices violate either state law or the Federal Constitution.
Our initial inquiry is whether the District Court properly exercised jurisdiction over the state law issue. The question of state law was properly before the District Court, if at all, only pendent to the federal claim. The federal courts have the power to hear state law claims if one would ordinarily be expected to raise them with one’s federal claims in a single judicial proceeding, and if the federal claim is of sufficient substance to confer subject matter jurisdiction on the court. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). In this case, the conduct that is alleged to violate the Federal Constitution is the same conduct which the District Court found to violate Ohio law. If appellants were interested in raising the state law issue, they would have done so in this federal proceeding. Appellants’ claim that their constitutional right to privacy has been violated is at least colorable. Thus, under Gibbs the District Court had the power to decide whether the post-adjudication dissemination violated Ohio Rev.Code § 2151.14.
However, the Supreme Court in Gibbs went on to draw a distinction between the power to decide a state law claim under the doctrine of pendent jurisdiction and the exercise of that power:
That power need not be exercised in every case in which it is found to exist. It has consistently been recognized that pendent jurisdiction is a doctrine of discretion, not of plaintiff’s right. Its justification lies in considerations of judicial economy, convenience and fairness to litigants; if these are not present a federal court should hesitate to exercise jurisdiction over state claims, even though bound to apply state law to them. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law.
Id. at 726, 86 S.Ct. at 1139 (footnotes omitted). The state law issue involved here, raising as it does questions of state intrusion into individual privacy, is a matter in which Ohio has substantial interest. Thus, considerations of comity loom large.
Appellants did not raise the question whether post-adjudication dissemination of social histories violated Ohio law. Neither did appellees. There is no mention of Ohio Rev.Code § 2151.14 in the entire record on appeal other than in the opinion of the District Court. From the record it appears that the District Court struck out on its own in search of state law relevant to appellants’ suit. The case for exercising pendent jurisdiction is substantially weakened when it is the District Court that raises the state law question.
The exercise of pendent jurisdiction is further questionable where the record is not sufficient to permit a well-considered decision. A proper interpretation of section 2151.14 rests on whether releasing juvenile court records to members of a social services clearinghouse is the same as making them “public,” or is a breach of “confidentiality.” Resolution of these questions depends on the nature of the organizations that have access to the juvenile court records through the social services clearinghouse, and the use they make of such records. However, because neither appellant class nor appellees addressed this issue, the record on appeal is silent as to the purpose of disclosing juvenile court records to those agencies or even the nature of the agencies, beyond what is apparent from their names.
Nor is Ohio law at all clear on the proper resolution of this important question of state law. The cases that the District Court cites do not support, or even relate to, its conclusion that the post-adjudication dissemination in this case violated section 2151.14. State v. Hale, 21 Ohio App.2d 207, 256 N.E.2d 239 (1969), held only that there was no violation of section 2151.14 where a probation officer testified as to the existence of juvenile court records in a criminal proceeding against a former juvenile, but did not testify as to the content of any records. State v. Sherow, 101 Ohio App. 169, 138 N.E.2d 444 (1956), held that section 2151.14 did not give a juvenile court judge the power to enjoin publication of the names of juvenile delinquents.
There are situations where it is nonetheless desirable to decide a question of state law to avoid deciding unnecessarily a hard question of federal constitutional law. However, this policy does not support the exercise of pendent jurisdiction here. The two named appellants sought damages for the invasion of their constitutional right of privacy by dissemination of juvenile court records. As a result, the District Court was required to decide the constitutional claim, the resolution of which does not depend on state law.
For the above reasons we hold that the District Judge abused his discretion by exercising jurisdiction to interpret section 2151.14.
The District Court made no attempt to tie the constitutional right “to have intimate biographical details protected from exposure by the government” to any particular provision of the Constitution. The Constitution does not explicitly mention a right of privacy. Nor has the Supreme Court recognized the existence of a general right to privacy.
At various times the Court has found a concern for privacy underlying some of the provisions of the Bill of Rights. See, e. g., Stanley v. Georgia, 394 U.S. 557, 565, 89 S.Ct. 1243, 1248, 22 L.Ed.2d 542 (1969) (the first amendment protects the right to read and observe what one pleases in the privacy of one’s home); Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1872-1874, 20 L.Ed.2d 889 (1968) (the fourth amendment protects areas in which one has a reasonable expectation of privacy from unreasonable searches and seizures); Katz v. United States, 389 U.S. 347, 350 n.5, 88 S.Ct. 507, 510 n.5, 19 L.Ed.2d 576 (1967) (the third amendment’s prohibition against the peacetime quartering of soldiers protects an aspect of privacy from governmental intrusion); Griswold v. Connecticut, 381 U.S. 479, 484, 85 S.Ct. 1678, 1681, 14 L.Ed.2d 510 (1965) (several of the provisions of the Bill of Rights create “zones of privacy,” including the fifth amendment, which creates a zone of privacy that an individual cannot be forced to surrender to his detriment). The Supreme Court has also held in a line of cases that the Constitution protects an individual’s interest in independence in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876-877, 51 L.Ed.2d 64 (1977). Thus, Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), and progeny have established a woman’s right to choose for herself whether to carry a pregnancy to term, at least until the fetus is viable. As the Court recognized in Roe, id. at 152-153, 93 S.Ct. at 726-727, this right to independence has also been found for certain decisions relating to marriage, Loving v. Virginia, 388 U.S. 1, 12, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967); procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542, 62 S.Ct. 1110, 1113-1114, 86 L.Ed. 1655 (1942); contraception, Eisenstadt v. Baird, 405 U.S. 438, 453 — 454, 92 S.Ct. 1029, 1038-1039, 31 L.Ed.2d 349 (1972); family relationships, Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944); and child rearing and education, Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925).
However, the fact that the Constitution protects several specific aspects of individual privacy does not mean that it protects all aspects of individual privacy. Nor is there indication in any of the above decisions of a constitutional right to nondisclosure of juvenile court records. Rather, such disclosure is indistinguishable from that permitted in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). There the respondent alleged that circulation to merchants by police of the fact of his arrest for shoplifting (he had not been convicted) violated his constitutional right to privacy. The Court recognized that “zones of privacy may be created by more specific constitutional guarantees.... ” Id. at 712-713, 96 S.Ct. at 1165-1166. However, the Court held, “personal rights found in [the] guarantee of personal privacy must be limited to those which are ‘fundamental’ or ‘implicit in the concept of ordered liberty’.... Respondent’s claim is far afield from [the privacy] line of decisions.” Id. at 713, 96 S.Ct. at 1166.
The otherwise dispositive effect of Paul v. Davis is somewhat clouded by two subsequent Supreme Court decisions and their construction by the courts of appeal. In Whalen v. Roe, supra, the Court was asked to declare unconstitutional as an invasion of privacy New York’s requirement that the names and addresses of all persons who obtained certain drugs be recorded in a central computer file. In the course of its discussion the Court stated:
the cases sometimes characterized as protecting ‘privacy’ have in fact involved at least two different kinds of interests. One is the individual interest in avoiding disclosure of personal matters, and another is the interest in independence in making certain kinds of important decisions.
429 U.S. at 598-600, 97 S.Ct. at 875-877 (footnotes omitted). The language from Whalen v. Roe respecting the right to nondisclosure was repeated in Nixon v. Administrator of General Services, 433 U.S. 425, 457, 97 S.Ct. 2777, 2797, 53 L.Ed.2d 867 (1977).
Some courts have uncritically picked up that part of Whalen pertaining to nondisclosure and have created a rule that the courts must balance a governmental intrusion on this “right” of privacy against the government’s interest in the intrusion. Thus, in United States v. Westinghouse Electric Corp., 638 F.2d 570, 577-580 (3d Cir. 1980), the court relied on Whalen to hold that there was a constitutional right of privacy in employee medical records kept by an employer, but that the government’s interest in investigating dangers to the safety of the employees was sufficient reason to compel disclosure of the records to permit their examination by the National Institute of Occupational Safety and Health. Similarly, in Fadjo v. Coon, 633 F.2d 1172,1175-1176 (5th Cir. 1981), the court relied largely on the above-cited language from Whalen to find that an allegation that a state divulged to private parties material that it uncovered in a criminal investigation stated a cause of action under 42 U.S.C. § 1983, and that on remand the district court would have to balance the intrusion into privacy against the government’s need for the disclosure. See also, Plante v. Gonzalez, 575 F.2d 1119, 1132, 1134 (5th Cir. 1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979) (Whalen v. Roe identified a strand of privacy called the “right to confidentiality.” A balancing standard is appropriate in weighing intrusions on this right).
We do not view the discussion of confidentiality in Whalen v. Roe as overruling Paul v. Davis and creating a constitutional right to have all government action weighed against the resulting breach of confidentiality. The Supreme Court’s discussion makes reference to only two opinions — Griswold v. Connecticut, supra, in which the Court found that several of the amendments have a privacy penumbra, and Stanley v. Georgia, supra, a first amendment case — neither of which support the proposition that there is a general right to non-disclosure. Whalen v. Roe, 429 U.S. at 599 n.25, 97 S.Ct. at 876 n.25; see id. at 607 — 609, 97 S.Ct. at 880 — 881 (Stewart, J., concurring). On the facts before it in Whalen the Court held that recording the names of persons who obtained certain drugs did not violate any possible constitutional right to have information kept private. The Court explicitly refused to address the existence of such a right: “We... need not, and do not, decide any question which might be presented by the unwarranted disclosure of accumulated private data — whether intentional or unintentional.... ” Id. at 605-606, 97 S.Ct. at 879-880. To assure that there would be no misunderstanding, Justice Stewart wrote separately to note that the Court’s opinion did not support the proposition that broad dissemination of the information collected by New York would violate the Constitution. Id. at 608-609, 97 S.Ct. at 881.
Nixon v. Administrator of General Services, supra, is the only other case in which the Supreme Court has explicitly mentioned a general right to nondisclosure. The former president challenged on constitutional grounds the Presidential Recordings and Materials Preservation Act, 58 Stat. 1695, note following 44 U.S.C. § 2107, which directed the Administrator of General Services to take custody of presidential tapes and other materials that accumulated during Mr. Nixon’s presidency, to separate the private from the public, and to retain the public. In the course of its opinion rejecting Mr. Nixon’s challenge the Court stated that “one element of privacy has been characterized as the individual interest in avoiding disclosure of personal matters.” 433 U.S. at 457, 97 S.Ct. at 2797.
Like Whalen, Nixon does not overrule Paul v. Davis and create a general constitutional right of nondisclosure against which government action must be weighed. The Court’s cite to Whalen was for the apparent purpose of establishing that Mr. Nixon had an expectation of privacy in his papers that entitled him to fourth amendment protection. The Court did not purport to establish a constitutional right to nondisclosure. Lest there be any doubt about the Court’s analysis, Justice Stewart concurred with the understanding he expressed in Whalen —that the Court was not establishing a general right to nondisclosure of private information. 433 U.S. at 455 n.18, 97 S.Ct. at 2796 n.18.
Absent a clear indication from the Supreme Court we will not construe isolated statements in Whalen and Nixon more broadly than their context allows to recognize a general constitutional right to have disclosure of private information measured against the need for disclosure. Analytically we are unable to see how such a constitutional right of privacy can be restricted to anything less than the general “right to be let alone” that Justice Brandéis called for in Olmstead v. United States, 277 U.S. 438, 478, 48 S.Ct. 564, 572, 72 L.Ed. 944 (1928) (Brandéis, J., dissenting). “Virtually every governmental action interferes with personal privacy to some degree.” Katz v. United States, 389 U.S. at 350 n.5, 88 S.Ct. at 510 n.5. Courts called upon to balance virtually every government action against the corresponding intrusion on individual privacy may be able to give all privacy interests only cursory protection. The Framers rejected a provision in the Constitution under which the Supreme Court would have reviewed all legislation for its constitutionality. They cannot have intended that the federal courts become involved in an inquiry nearly as broad — balancing almost every act of government, both state and federal, against its intrusion on a concept so vague, undefinable, and all-encompassing as individual privacy.
Inferring very broad “constitutional” rights where the Constitution itself does not express them is an activity not appropriate to the judiciary. In this context, we note that of the cases cited holding that there is a constitutional right to nondisclosure of private information, none cites a constitutional provision in support of its holding. It is understandable, though rare, to fail to cite a supporting provision of the Constitution when one is dealing with such well-established rights as those in the first or fourth amendments. It is quite a telling failure when the constitutional right at issue is not well-established.
For all of the foregoing reasons we conclude that the Constitution does not encompass a general right to nondisclosure of private information. We agree with those courts that have restricted the right of privacy to its boundaries as established in Paul v. Davis, supra, and Roe v. Wade, 410 U.S. at 152, 93 S.Ct. at 726 — those personal rights that can be deemed “fundamental” or “implicit in the concept of ordered liberty.” See, e. g., McElrath v. Califano, 615 F.2d 434, 441 (7th Cir. 1980); United States v. Choate, 576 F.2d 165, 181 (9th Cir.), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1978) (“rights under the ninth amendment are only those ‘so basic and fundamental and so deeprooted in our society’ to be truly ‘essential rights,’ and which nevertheless, cannot find direct support elsewhere in the Constitution”) (citation omitted). The interest asserted by appellant class in nondisclosure of juvenile court records, like the interest in nondisclosure at issue in Paul v. Davis, is “far afield” from those privacy rights that are “fundamental” or “implicit in the concept of ordered liberty.” The.District Court erred in finding that disclosure of juvenile court records to 55 governmental and social agencies violates the Constitution.
Our opinion does not mean that we attach little significance to the right of privacy, or that there is no constitutional right to nondisclosure of private information.
[A] controlling principle for the governance of society [is] that “there are frontiers not artificially drawn, within which men should be inviolable, these frontiers being defined in terms of rules so long and widely accepted that their observance has entered into the very conception of what is a human being.” And it is the idea of the uniqueness of the human quality that makes the concept of privacy so important.
The University of Chicago Magazine, supra, at 12. We agree that “the very notion of the national Constitution is that there are aspects of individual behavior that no government, federal or state, could subject to control.” Id. We recognize the problem that in today’s society
liberty is no longer limited by laws alone, but far more frequently by executive orders, by administrative regulations, by bureaucratic guidelines, by simple exercise of discretion at the lowest level of the governmental pyramid — and even by judicial actions forging major policy determinations for society without constitutional or legislative authority.
Id. at 35. Like the Supreme Court,
[w]e are not unaware of the threat to personal privacy implicit in the accumulation of vast amounts of personal information in computerized data banks or other massive government files. The collection of taxes, the distribution of welfare and social security benefits, the supervision of public health, the direction of our Armed Forces, and
Question: What is the specific issue in the case within the general category of "privacy"?
A. abortion rights
B. homosexual rights where privacy claim raised
C. contraception and other privacy claims related to marital relations or sexual behavior (not in 501 or 502)
D. suits demanding compensation for violation of privacy rights (e.g., 1983 suits)
E. mandatory testing (for drugs, AIDs, etc)
F. mandatory sterilization
G. right to die or right to refuse medical help
H. other
Answer: | H | songer_casetyp1_5-3 |