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songer_appel1_7_5 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
McWILLIAMS v. BLACKARD.
No. 10677.
Circuit Court of Appeals, Eighth Circuit.
Nov. 13, 1936.
Jesse Reynolds, of Clarksville, Ark., for appellant.
Before GARDNER, SANBORN, and FARIS, Circuit Judges.
GARDNER, Circuit Judge.
This is an appeal from an adjudication of bankruptcy under section 75 (s) of the Bankruptcy Act as amended August 28, 1935 (11 U.S.C.A. § 203 (s), and which embodied a reference to a conciliation commissioner. The record discloses the following pertinent facts:
On February 26, 1930, appellee executed his promissory note to appellant in the sum of $1,000, due one year after date, with interest at the rate of 10 per cent., which he secured by a mortgage on 80 acres of land located in Johnson county, Ark. He paid the interest on this note for 1931 and 1932. On January 5, 1931, he executed another note in the sum of $400, due one year after date, with interest at 10 per cent., to Guy Walton, which he secured by a mortgage on the same land. This note and mortgage in due course were sold and transferred to appellant. One payment of interest was made on this last-named note in 1932. There has been no payment on principal or interest on either of these notes since 1932. Appellant paid insurance on the mortgaged property for the years 1933, 1934, and 1935, in the sum of $87.20, and paid taxes for the years 1932, 1933, and 1934, in the sum of $93.92.
On April 26, 1935, appellant commenced suit to foreclose these mortgages, and on the same date appellee filed petition for composition or extension under section 75 of the Bankruptcy Act (47 Stat. 1470, 48 Stat. 925, 1289) in the District Court of the United States for the Western District of Arkansas, and the cause was referred to the conciliation commissioner. Testimony was taken before the conciliation commissioner. Appellee offered a composition or extension proposal which was rejected, and on January 31, 1936, he filed an amended petition for adjudication under section 75 (s) of the Bankruptcy Act, as amended (11 U.S.C.A. § 203 (s). Appellant filed answer to appellee’s petition, in which he asserted that subsection (s) of section 75 was unconstitutional. The lower court overruled and denied appellant’s contention, and entered the adjudication from which this appeal was taken.
It is the contention of appellant: (1) That subsection (s) of section 75 of the Bankruptcy Act, as amended, is unconstitutional ; and (2) that, if not, there was no probability of rehabilitation of the bankrupt. Appellee has filed no brief in this court.
The decree appealed from was entered by the lower court before the opinion of this court in United States National Bank v. Pamp, 83 F.(2d) 493, was handed down. The facts in this case bring it clearly within the doctrine of the Pamp Case, and, on the authority of that case, the decree appealed from must be and is reversed, and the cause is remanded to the lower court, with directions to dismiss appellee’s petition.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_suffic | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that there was insufficient evidence for conviction?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
ROBINETTE v. COMMISSIONER OF INTERNAL REVENUE.
No. 9473.
Circuit Court of Appeals, Sixth Circuit.
Dec. 8, 1943.
Clark J. Milliron, of Los Angeles, Cal., and T. G. Thompson, of Cleveland, Ohio (T. G. Thompson, of Cleveland, Ohio, on the brief), for petitioner.
Irving Axelrod, of Washington, D. C. (Samuel O. Clark, Jr., Sewall Key, Samuel H. Levy, and Irving Axelrod, all of Washington, D. C., on the brief), Tor respondent.
Before PUCKS, ALLEN, and McALLISTER, Circuit Judges.
HICKS, Circuit Judge.
Petition by Lenore S. Robinette, a transferee of the transferee of the assets of the taxpayer, Charles C. Cohn, deceased. It is to review a decision of the Board of Tax Appeals affirming the action of the Commissioner of Internal Revenue in assessing against petitioner a deficiency in income tax for 1918 due from the original transferor, Cohn, in the sum of $27,914.38, with interest.
The facts as stipulated and as found by the Board are briefly as follows:
Charles C. Cohn, a citizen of the United States, resided in the Philippine Islands from 1903 until 1919. He practiced law in Manila and his income as an attorney was derived from legal services performed in the Islands. He was then a married man and had a minor child.
On February 20, 1919, the taxpayer filed with the Collector of Internal Revenue for the Philippine Islands at Manila, a return of his income from all sources for 1918, and in June of that year he paid in pesos the tax shown to be due thereon in an amount equivalent to $1,667.06. In September 1920 he paid in pesos an additional assessment for 1918 in an amount equivalent to $1,635.63.
He filed no tax return for 1919 except as above stated.
In July 1919 the taxpayer returned to the United States and was a resident of San Francisco until his death in 1931. In 1919 he changed his 'name to Charles C. Cole and the Collector at Baltimore was notified of this change on August 28, 1923.
A son, Creswell C. Cole, received from the taxpayer’s estate assets worth in excess of $30,712.22. Creswell died on September 30, 1935, and his widow, petitioner here, received assets from his estate worth 'in excess of $30,712.22. The deficiencies which respondent assessed against petitioner were never assessed against either Charles C. Cole, Creswell C. Cole or their estates.
Other questions to one side, the taxpayer was liable for both a normal tax and a surtax upon his net income for 1918 under Sections 210 and 211(a), Rev. Act 1918, Ch. 18, 40 Stat. 1057, 1062. Every individual having the requisite income was liable for such taxes. Lawrence v. Wardell, 9 Cir., 273 F. 405, 409; Cotterman v. United States, 62 Ct.Cl. 415, 418. The Commissioner found them to be $31,207.07 and in assessing the deficiency he was given credit by virtue of Sec. 222(a) of the Act of 1918 in the sum of of $3,302.69 paid by him to the Collector at Manila. The taxpayer was not only liable for these taxes but because he had no legal residence or principal place of business in the United States (Sec. 227, Act of 1918) he was required to make return and pay them to the Collector at Baltimore.
Notwithstanding this plain provision, the petitioner contends that the taxpayer was not required to file any return for 1918 other than that filed with the Collector at Manila and that he was not required to pay any tax in addition to that paid to that Collector. Her position stems from her conception of the effect of Sec. 261 of the Act of 1918. The material portion of this section is as follows:
“Sec. 261. That in Porto Rico and the Philippine Islands the income tax shall be levied, assessed, collected, and paid in accordance with the provisions of the Revenue Act of 1916 as amended.
“Returns shall be made and taxes shall be paid under Title I of such Act in Porto Rico or the Philippine Islands, as the case may be, by (1) every individual who is a citizen or resident of Porto Rico or the Philippine Islands or derives income from sources therein * *
Petitioner points out that the taxpayer was a resident of the Philippine Islands in 1918; that he derived his income therein and that he made his return with the Collector at Manila as provided by Sec. 8(b) of the Revenue Act of 1916, 39 Stat. 761, and that the Collector there was the proper officer to receive his taxes as provided by Sec. 23 of the Revenue Act of 1916.
All this is clear enough. The taxpayer did pay the taxes levied and assessed against him in 1918 as a resident of the Philippine Islands in accordance with the provision of the Revenue Act of 1916, Sec. 23 as amended, to the effect that the administration of the law in the collection of the taxes imposed in the Islands should be by the appropriate Internal Revenue officers thereof, and that all revenue collected thereunder should accrue, intact, to the general Government thereof. And although the Act of 1916 was repealed as a general statute by the Revenue Act of 1918, it was continued in force for the assessment and collection of income taxes in Porto Rico and the Philippine Islands “except as may be otherwise provided by their respective legislatures.” Sec. 1400 of the Revenue Act of 1918, 40 Stat. 1149. In other words, it was continued in force for the assessment, levy and collection of taxes against that class of taxpayers of which the taxpayer was one, to wit, residents of the Philippine Islands, and the taxes when collected were appropriated to the governmental administration of the Islands.
But the Revenue Act of 1918 assessed both normal and surtaxes against a larger class of taxpayers than residents of the Philippine Islands and at higher rates and for the general governmental administration of the United States within which under that Act, for tax purposes, the Philippine Islands, in a geographical sense, were not included. It assessed these taxes against “every individual.” As pointed out in Lawrence v. Wardell, supra, 273 F. page 409, the comprehensiveness of the 1918 Act is as great as language can' make it. Although the taxpayer was a resident of the Islands he fell directly within that class of taxpayers, to wit, all individuals, i.e., citizens of the United States where-ever residing against whom the normal and surtaxes were levied and assessed as provided by Sections 210 and 211(a) of the Act of 1918, and because he had no legal residence or place of business in any collection district of the United States, he was required to make return and payment to the Collector at Baltimore. He could not make return and payment to the Collector at Manila, because, as pointed out, the Philippine Islands were not included for tax purposes within the term “United States,” as they had formerly been under the Revenue Act of 1916.
We tbink that it was the clear intention of Congress by the Act of 1918 to provide separate income taxes for the United States and the Philippine Islands and this conclusion has solid support in the provision [Sec. 222(a)] of the Act, that in computing the tax to be paid by a citizen of the United States, he shall be credited with any amount of income, war profits and excess profits taxes paid by him during the taxable year to any possession of the United States. Having failed to file his return with and pay his taxes to the Collector at Baltimore, as required by the Act of 1918, it follows that these taxes are still liable to assessment and collection unless barred by the statute of limitations of five years, found in Sec. 250(d) of the Revenue Act of 1921, Ch. 136, 42 Stat. 227, 265. But the five year period is not a bar because of another provision of the statute that in cases of a failure to file a return, the amount of tax due may be determined, assessed and collected, and a suit or proceeding for the collection thereof may be begun at any time after it becomes due.
Petitioner insists that the statute of limitations began, to run on February 20, 1919, when the taxpayer filed his return with the Collector at Manila, and that this proceeding against her was therefore barred within' five years thereafter, but petitioner’s handicap here is that the taxpayer failed to file a “required return” with the Collector at Baltimore (Rev.Act 1921, Ch. 136, supra) and no statute of limitations protected that failure.
The question with reference to interest arises. The deficiency found to be due from the taxpayer was $27,914.38. He would have been liable for this amount with interest from the date when it became due in 1918. If he had lived and the assets had not been transferred to petitioner he would have been liable for interest only from July 1, 1939, by virtue of Sec. 813(a) of the Revenue Act of 1938, 26 U.S.C.A. Int.Rev.Acts, page 1154. In November 1936 the petitioner received assets of a greater value than the deficiency. If she had paid the amount of the deficiency on July 1, 1939, as she might have done, she would not have been liable for any interest. ' Se did not do this. She retained the assets for her own use, which, to the extent of the deficiency, belonged both in law and equity to the Government. She was therefore chargeable with interest from July 1, 1939, just as a taxpayer would have been so charged. See Sec. 280(a) (1) of the Revenue Act of 1926, 26 U.S.C. A.Int.Rev.Acts, page 212; Buzard v. Helvering, 64 App.D.C. 268, 77 F.2d 391, 396.
Laying to one side the question of whether there is statutory authority for the decision of the Board as to interest, nevertheless we cannot upset its holding. If we proceed upon the theory that the transferee was liable for any unpaid taxes of the transferor with interest only to the extent of the amount received, the burden was upon the Commissioner to show that petitioner was liable as a transferee. See Internal Revenue Code, Sec. 1119(a), 26 U.S.C.A.Int.Rev.Code, § 1119(a). The Commissioner carried this burden by proving that petitioner had received assets as a transferee in excess of $30,712.22. He thus made out a prima facie case and the burden of going further then rested upon petitioner. The value of the excessive assets, which she admitted having, was peculiarly within her knowledge and she should have shown this value if she wished to win on the question of interest. See Commissioner v. Renyx, 2 Cir., 66 F.2d 260; Hutton v. Commissioner, 21 B.T.A. 101, 103.
The decision of the Board of Tax Appeals is affirmed.
Question: Did the court rule that there was insufficient evidence for conviction?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
sc_certreason | L | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
MOORE v. TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS.
No. 208.
Decided October 13, 1958.
Roberts P. Elam for petitioner.
Lyman J. Bishop for respondent.
Per Curiam.
The petition for writ of certiorari is granted. The judgment of the Supreme Court of Missouri is reversed and the case is remanded for proceedings in conformity with this opinion. We hold that the proofs justified with reason the jury’s conclusion that employer negligence played a part in producing the petitioner’s injury. Rogers v. Missouri Pacific R. Co., 352 U. S. 500; Webb v. Illinois Central R. Co., 352 U. S. 512; Shaw v. Atlantic Coast Line R. Co., 353 U. S. 920; Futrelle v. Atlantic Coast Line R. Co., 353 U. S. 920; Deen v. Gulf, C. & S. F. R. Co., 353 U. S. 925; Thomson v. Texas & Pacific R. Co., 353 U. S. 926; Arnold v. Panhandle & S. F. R. Co., 353 U. S. 360; Ringhiser v. Chesapeake & O. R. Co., 354 U. S. 901; McBride v. Toledo Terminal R. Co., 354 U. S. 517; Gibson v. Thompson, 355 U. S. 18; Honeycutt v. Wabash R. Co., 355 U. S. 424; Ferguson v. St. Louis-San Francisco R. Co., 356 U. S. 41.
Mr. Justice Harlan concurs in the result for the reasons given in his memorandum in Gibson v. Thompson, 355 U. S. 18, 19. See also his dissenting opinion in Sinkler v. Missouri Pacific R. Co., 356 U. S. 326, 332.
For the reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U. S. 500, 524, Mr. Justice Frankfurter is of the view that the writ of certiorari was improvidently granted.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
MURPHY v. UNITED STATES.
Circuit Court of Appeals, First Circuit.
August 6, 1925.
No. 1831.
Jury <§=>131 (4) — No abuse of discretion in court’s limiting examination for bias and prejudice.
For trial judge to refuse to allow counsel personally to examine jurors on their voir dire along a line suggested by him, which from its nature might have been extended to great length, and then on counsel suggesting no questions to be submitted by the court, as the judge told counsel he might do, to state to tho jurors the purport of the indictment, and ask if there was any reason why any of them could not fairly and impartially try defendant, and direct that if there was he should stand aside, held, not unwise or arbitrary or abuse of discretion.
In Error to the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.
John A. Murphy was convicted under Cr. Code, § 37, and brings error. Affirmed.
George D. Zahm, of New York City, for plaintiff in error.
George R. Farnum, of Boston, Mass. (Harold P. Williams, of Boston, Mass., on the brief), for defendant in error.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
Certiorari denied 46 S. Ct. 120, 70 L. Ed. —.
JOHNSON, Circuit Judge.
The defendant, one Ryan, and one House were indicted under section 37 of the Criminal Code (Comp. St. § 10201) for conspiring to commit an offense against the United States by fraudulently altering certain registered United States Liberty bonds by erasing the name of the original owner thereon and substituting the name of House, and thereafter negotiating them. House and Ryan pleaded guilty. The defendant was convicted, and sentence imposed.
The case is here upon thirty assignments of error; but only three have been argued. Two of these relate to the refusal of the District Judge to permit counsel for the defendant to examine the jurors upon the voir dire or to interrogate them himself “as to their attitude towards this sort of a case and to .determine whether, if selected as jurors, they would be fair and impartial.”
Defendant filed a motion to set aside the verdict and for a new trial, which was denied, and this is assigned as error. The' grounds for this motion were stated to be “that the verdict is contrary to the weight of evidence, contrary to the law, and upon the further ground that the defendant was deprived of a constitutional right because the court refused to permit counsel for the said defendant to interrogate the prospective jurors on their voir dire,” and refused to interrogate them, as alleged in the other two assignments of error.
There is no merit in the defendant’s contention that the verdict is against the weight of evidence, as the only question before us is whether there was any evidence to support the verdict; but of this there can be no dofcbt. The sole question for our consideration, then, is whether defendant was deprived of any constitutional right because of the alleged refusal of the District Judge to permit counsel to interrogate the jurors on the voir dire or to interrogate them himself, as requested by defendant.
The record discloses that, when the jury was being impaneled, Mr. Zahm, the defendant’s counsel, stated that he desired to interrogate the jurors as they were called, substantially according to the practice which prevails in the state of New York and in the federal courts of that state. The- court explained to Mr. Zahm. the practice which prevails in Massachusetts and the. United States courts in Massachusetts. Mr. Zahm replied that he thought it did not meet the constitutional requirements. The following colloquy then occurred:
“The Court: You may suggest to me any questions that you would like to have put to the jury, and I will consider them.
“Mr. Zahm: We should like to interrogate the jurors as to their attitude towards this sort of case, and to determine whether, if selected as jurors, they would be fair and impartial.
“The Court: No; I should not permit examination along that line, and I will save your exception. Perhaps you had better state more fully what line your examination would follow.
“Mr. Zahm: My line would be whether or not they ever lost any bonds; whether the fact of an indictment would prejudice them against the defendant; whether they felt they could sit as jurors fairly; whether, their attitude is such that, if they were in the position of the defendant, they would select a man of similar mental attitude to pass judgment. I want to examine the prospective jurors upon their voir dire, in order to determine whether their mental attitude is such that, if selected, they can give the defendant a fair and impartial trial under the Constitution of the United States. My questions would follow those general lines.
“The Court: I see no occasion for such a voir dire, and should not permit it. I will adhere to the Massachusetts practice.
“Mr. Zahm: I recognize that the practice here is as the court states; but I say that the defendant has the right to interrogate jurors to determine for himself whether they are fair and impartial to try the case.
“The Court: It is a matter of discretion with the court.
“Mr. Zahm: And I may have an exception to your honor’s ruling?
“The Court: Yes.”
The record contains the following statement :
“After the panel had been called and taken their seats, but while the right of challenge was still open, the court stated to the jurors the purport of the indictment, and inquired specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment. The court directed that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside. Both parties were left free to exercise peremptory challenges in the usual manner. The jury was then sworn and the trial proceeded.”
Under the Massachusetts' practice, an examination of jurors upon their voir dire may be made under the direction of the court, and here, as elsewhere, the ’court, in the exercise of a sound judicial discretion, may determine the extent and character of such examination. By the exercise of sound, judicial discretion it will be understood that the court is not to exercise discretion in an arbitrary or unwise manner; but that such examination shall be permitted as may disclose any prejudice or bias on the part of jurors.
In Connors v. United States, 158 U. S. 408, 413, 15 S. Ct. 951, 953 (39 L. Ed. 1033), the court, speaking through Mr. Justice Harlan, said:
“It is quite true, as suggested by the accused, that he was entitled to bo tried by an impartial jury, that is, by jurors who had no bias or prejudice that would prevent them from returning a verdict according to the law and evidence. It is equally time that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by Mm of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases.”
Although the District Judge did not allow defendant’s counsel, personally, to examine the jurors along the line suggested j>y him, which, from the nature of the inquiry suggested, might have been extended to great length and have led to long delay, he did state that counsel might suggest such questions as he would like to have put to the jurors. Counsel did not propose any questions to be submitted by the court, but insisted upon his right to interrogate them personally, and stated, at some length, what his line of examination would be, insisting that he had the right to conduct such an examination.
The opinion expressed by Justice Harlan, before quoted, has become the guide of all federal courts in the selection and impaneling of juries, and we know of no decision by the Supreme Court, nor has any been called to our attention, which does not place the method in which this shall be done within the sound judicial discretion of the presiding judge.
¥or convenience, and because the method adopted by the-highest court of the state in which the District Court is hold is well known to practitioners, that method has been usually adopted; and in the state of Massachusetts the examination has been conducted under the direction of the presiding judge.
In speaking of this, Judge Holmes, in Commonwealth v. Poisson, 157 Mass. 510, 512, 32 N. E. 906, 907, says:
“It would be unfortunate if all control of such an examination should be taken from the court, and we do not interpret the Statute of 1887, c. 149, as having that effect. On the contrary, the power given by the Statute of 1887 to the parties to make the examination provided for by the public statutes is, in terms, to make it ‘under the direction of the court.’ ”
The record in this case discloses that, while the right to challenge was still open, “the court stated to the jurors the purport of the indictment and inquired 'specially if there was any reason why any of them could not fairly and impartially try the defendant on the indictment,” and directed “that, if such was the fact, the juryman concerned should make it known and stand aside. No juror did stand aside.”
The record also discloses that “both parties were left free to exercise peremptory challenges in the usual maner.”
We think there is no ground for holding that the action of the presiding judge was unwise or arbitrary, but that what he did was within the exercise of a sound judicial discretion.
The judgment of the District Court is affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
sc_issue_8 | 17 | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
HENRY SCHEIN, INC., et al., Petitioners
v.
ARCHER AND WHITE SALES, INC.
No. 17-1272.
Supreme Court of the United States
Argued Oct. 29, 2018.
Decided Jan. 8, 2019.
Kannon K. Shanmugam, Esq., Washington, DC, for Petitioners.
Daniel L. Geyser, Esq., Dallas, TX, for Respondent.
Paul F. Schuster, Cynthia Keely Timms, Locke Lord LLP, Dallas, TX, Richard C. Godfrey, Barack S. Echols, Kirkland & Ellis LLP, Chicago, IL, Kannon K. Shanmugam, Liam J. Montgomery, Charles L. McCloud, William T. Marks, Matthew J. Greer, Williams & Connolly LLP, Washington, DC, for Petitioners.
Daniel L. Geyser, Geyser P.C., Lewis T. LeClair, Charles E. Fowler, Jr., Chelsea A. Priest, McKool Smith, P.C., Dallas, TX, for Respondent.
Justice KAVANAUGH delivered the opinion of the Court.
Under the Federal Arbitration Act, parties to a contract may agree that an arbitrator rather than a court will resolve disputes arising out of the contract. When a dispute arises, the parties sometimes may disagree not only about the merits of the dispute but also about the threshold arbitrability question-that is, whether their arbitration agreement applies to the particular dispute. Who decides that threshold arbitrability question? Under the Act and this Court's cases, the question of who decides arbitrability is itself a question of contract. The Act allows parties to agree by contract that an arbitrator, rather than a court, will resolve threshold arbitrability questions as well as underlying merits disputes. Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68-70, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010) ; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943-944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995).
Even when a contract delegates the arbitrability question to an arbitrator, some federal courts nonetheless will short-circuit the process and decide the arbitrability question themselves if the argument that the arbitration agreement applies to the particular dispute is "wholly groundless." The question presented in this case is whether the "wholly groundless" exception is consistent with the Federal Arbitration Act. We conclude that it is not. The Act does not contain a "wholly groundless" exception, and we are not at liberty to rewrite the statute passed by Congress and signed by the President. When the parties' contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the contract. We vacate the contrary judgment of the Court of Appeals.
I
Archer and White is a small business that distributes dental equipment. Archer and White entered into a contract with Pelton and Crane, a dental equipment manufacturer, to distribute Pelton and Crane's equipment. The relationship eventually soured. As relevant here, Archer and White sued Pelton and Crane's successor-in-interest and Henry Schein, Inc. (collectively, Schein) in Federal District Court in Texas. Archer and White's complaint alleged violations of federal and state antitrust law, and sought both money damages and injunctive relief.
The relevant contract between the parties provided:
"Disputes . This Agreement shall be governed by the laws of the State of North Carolina. Any dispute arising under or related to this Agreement (except for actions seeking injunctive relief and disputes related to trademarks, trade secrets, or other intellectual property of [Schein] ), shall be resolved by binding arbitration in accordance with the arbitration rules of the American Arbitration Association [ (AAA) ]. The place of arbitration shall be in Charlotte, North Carolina." App. to Pet. for Cert. 3a.
After Archer and White sued, Schein invoked the Federal Arbitration Act and asked the District Court to refer the parties' antitrust dispute to arbitration. Archer and White objected, arguing that the dispute was not subject to arbitration because Archer and White's complaint sought injunctive relief, at least in part. According to Archer and White, the parties' contract barred arbitration of disputes when the plaintiff sought injunctive relief, even if only in part.
The question then became: Who decides whether the antitrust dispute is subject to arbitration? The rules of the American Arbitration Association provide that arbitrators have the power to resolve arbitrability questions. Schein contended that the contract's express incorporation of the American Arbitration Association's rules meant that an arbitrator-not the court-had to decide whether the arbitration agreement applied to this particular dispute. Archer and White responded that in cases where the defendant's argument for arbitration is wholly groundless-as Archer and White argued was the case here-the District Court itself may resolve the threshold question of arbitrability.
Relying on Fifth Circuit precedent, the District Court agreed with Archer and White about the existence of a "wholly groundless" exception, and ruled that Schein's argument for arbitration was wholly groundless. The District Court therefore denied Schein's motion to compel arbitration. The Fifth Circuit affirmed.
In light of disagreement in the Courts of Appeals over whether the "wholly groundless" exception is consistent with the Federal Arbitration Act, we granted certiorari, 585 U.S. ----, 138 S.Ct. 2678, 201 L.Ed.2d 1071 (2018). Compare 878 F.3d 488 (C.A.5 2017) (case below); Simply Wireless, Inc.
v. T-Mobile US, Inc., 877 F.3d 522 (C.A.4 2017) ; Douglas v. Regions Bank, 757 F.3d 460 (C.A.5 2014) ; Turi v. Main Street Adoption Servs., LLP, 633 F.3d 496 (C.A.6 2011) ; Qualcomm, Inc. v. Nokia Corp., 466 F.3d 1366 (C.A.Fed.2006), with Belnap v. Iasis Healthcare, 844 F.3d 1272 (C.A.10 2017) ; Jones v. Waffle House, Inc., 866 F.3d 1257 (C.A.11 2017) ; Douglas, 757 F.3d, at 464 (Dennis, J., dissenting).
II
In 1925, Congress passed and President Coolidge signed the Federal Arbitration Act. As relevant here, the Act provides:
"A written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2.
Under the Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. Rent-A-Center, 561 U.S., at 67, 130 S.Ct. 2772. Applying the Act, we have held that parties may agree to have an arbitrator decide not only the merits of a particular dispute but also " 'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy." Id., at 68-69, 130 S.Ct. 2772 ; see also First Options, 514 U.S., at 943, 115 S.Ct. 1920. We have explained that an "agreement to arbitrate a gateway issue is simply an additional, antecedent agreement the party seeking arbitration asks the federal court to enforce, and the FAA operates on this additional arbitration agreement just as it does on any other." Rent-A-Center, 561 U.S., at 70, 130 S.Ct. 2772.
Even when the parties' contract delegates the threshold arbitrability question to an arbitrator, the Fifth Circuit and some other Courts of Appeals have determined that the court rather than an arbitrator should decide the threshold arbitrability question if, under the contract, the argument for arbitration is wholly groundless. Those courts have reasoned that the "wholly groundless" exception enables courts to block frivolous attempts to transfer disputes from the court system to arbitration.
We conclude that the "wholly groundless" exception is inconsistent with the text of the Act and with our precedent.
We must interpret the Act as written, and the Act in turn requires that we interpret the contract as written. When the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.
That conclusion follows not only from the text of the Act but also from precedent. We have held that a court may not "rule on the potential merits of the underlying" claim that is assigned by contract to an arbitrator, "even if it appears to the court to be frivolous." AT & T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649-650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986). A court has " 'no business weighing the merits of the grievance' " because the " 'agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.' " Id., at 650, 106 S.Ct. 1415 (quoting Steelworkers v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960) ).
That AT & T Technologies principle applies with equal force to the threshold issue of arbitrability. Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator.
In an attempt to overcome the statutory text and this Court's cases, Archer and White advances four main arguments. None is persuasive.
First, Archer and White points to §§ 3 and 4 of the Federal Arbitration Act. Section 3 provides that a court must stay litigation "upon being satisfied that the issue" is "referable to arbitration" under the "agreement." Section 4 says that a court, in response to a motion by an aggrieved party, must compel arbitration "in accordance with the terms of the agreement" when the court is "satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue."
Archer and White interprets those provisions to mean, in essence, that a court must always resolve questions of arbitrability and that an arbitrator never may do so. But that ship has sailed. This Court has consistently held that parties may delegate threshold arbitrability questions to the arbitrator, so long as the parties' agreement does so by "clear and unmistakable" evidence. First Options, 514 U.S., at 944, 115 S.Ct. 1920 (alterations omitted); see also Rent-A-Center, 561 U.S., at 69, n. 1, 130 S.Ct. 2772. To be sure, before referring a dispute to an arbitrator, the court determines whether a valid arbitration agreement exists. See 9 U.S.C. § 2. But if a valid agreement exists, and if the agreement delegates the arbitrability issue to an arbitrator, a court may not decide the arbitrability issue.
Second, Archer and White cites § 10 of the Act, which provides for back-end judicial review of an arbitrator's decision if an arbitrator has "exceeded" his or her "powers." § 10(a)(4). According to Archer and White, if a court at the back end can say that the underlying issue was not arbitrable, the court at the front end should also be able to say that the underlying issue is not arbitrable. The dispositive answer to Archer and White's § 10 argument is that Congress designed the Act in a specific way, and it is not our proper role to redesign the statute. Archer and White's § 10 argument would mean, moreover, that courts presumably also should decide frivolous merits questions that have been delegated to an arbitrator. Yet we have already rejected that argument: When the parties' contract assigns a matter to arbitration, a court may not resolve the merits of the dispute even if the court thinks that a party's claim on the merits is frivolous. AT & T Technologies, 475 U.S., at 649-650, 106 S.Ct. 1415. So, too, with arbitrability.
Third, Archer and White says that, as a practical and policy matter, it would be a waste of the parties' time and money to send the arbitrability question to an arbitrator if the argument for arbitration is wholly groundless. In cases like this, as Archer and White sees it, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no "wholly groundless" exception, and we may not engraft our own exceptions onto the statutory text. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 556-557, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005).
In addition, contrary to Archer and White's claim, it is doubtful that the "wholly groundless" exception would save time and money systemically even if it might do so in some individual cases. Archer and White assumes that it is easy to tell when an argument for arbitration of a particular dispute is wholly groundless. We are dubious. The exception would inevitably spark collateral litigation (with briefing, argument, and opinion writing) over whether a seemingly unmeritorious argument for arbitration is wholly groundless, as opposed to groundless. We see no reason to create such a time-consuming sideshow.
Archer and White further assumes that an arbitrator would inevitably reject arbitration in those cases where a judge would conclude that the argument for arbitration is wholly groundless. Not always. After all, an arbitrator might hold a different view of the arbitrability issue than a court does, even if the court finds the answer obvious. It is not unheard-of for one fair-minded adjudicator to think a decision is obvious in one direction but for another fair-minded adjudicator to decide the matter the other way.
Fourth, Archer and White asserts another policy argument: that the "wholly groundless" exception is necessary to deter frivolous motions to compel arbitration. Again, we may not rewrite the statute simply to accommodate that policy concern. In any event, Archer and White overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. And under certain circumstances, arbitrators may be able to respond to frivolous arguments for arbitration by imposing fee-shifting and cost-shifting sanctions, which in turn will help deter and remedy frivolous motions to compel arbitration. We are not aware that frivolous motions to compel arbitration have caused a substantial problem in those Circuits that have not recognized a "wholly groundless" exception.
In sum, we reject the "wholly groundless" exception. The exception is inconsistent with the statutory text and with our precedent. It confuses the question of who decides arbitrability with the separate question of who prevails on arbitrability. When the parties' contract delegates the arbitrability question to an arbitrator, the courts must respect the parties' decision as embodied in the contract.
We express no view about whether the contract at issue in this case in fact delegated the arbitrability question to an arbitrator. The Court of Appeals did not decide that issue. Under our cases, courts "should not assume that the parties agreed to arbitrate arbitrability unless there is clear and unmistakable evidence that they did so." First Options, 514 U.S., at 944, 115 S.Ct. 1920 (alterations omitted). On remand, the Court of Appeals may address that issue in the first instance, as well as other arguments that Archer and White has properly preserved.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: What is the issue of the decision?
01. antitrust (except in the context of mergers and union antitrust)
02. mergers
03. bankruptcy (except in the context of priority of federal fiscal claims)
04. sufficiency of evidence: typically in the context of a jury's determination of compensation for injury or death
05. election of remedies: legal remedies available to injured persons or things
06. liability, governmental: tort or contract actions by or against government or governmental officials other than defense of criminal actions brought under a civil rights action.
07. liability, other than as in sufficiency of evidence, election of remedies, punitive damages
08. liability, punitive damages
09. Employee Retirement Income Security Act (cf. union trust funds)
10. state or local government tax
11. state and territorial land claims
12. state or local government regulation, especially of business (cf. federal pre-emption of state court jurisdiction, federal pre-emption of state legislation or regulation)
13. federal or state regulation of securities
14. natural resources - environmental protection (cf. national supremacy: natural resources, national supremacy: pollution)
15. corruption, governmental or governmental regulation of other than as in campaign spending
16. zoning: constitutionality of such ordinances, or restrictions on owners' or lessors' use of real property
17. arbitration (other than as pertains to labor-management or employer-employee relations (cf. union arbitration)
18. federal or state consumer protection: typically under the Truth in Lending; Food, Drug and Cosmetic; and Consumer Protection Credit Acts
19. patents and copyrights: patent
20. patents and copyrights: copyright
21. patents and copyrights: trademark
22. patents and copyrights: patentability of computer processes
23. federal or state regulation of transportation regulation: railroad
24. federal and some few state regulations of transportation regulation: boat
25. federal and some few state regulation of transportation regulation:truck, or motor carrier
26. federal and some few state regulation of transportation regulation: pipeline (cf. federal public utilities regulation: gas pipeline)
27. federal and some few state regulation of transportation regulation: airline
28. federal and some few state regulation of public utilities regulation: electric power
29. federal and some few state regulation of public utilities regulation: nuclear power
30. federal and some few state regulation of public utilities regulation: oil producer
31. federal and some few state regulation of public utilities regulation: gas producer
32. federal and some few state regulation of public utilities regulation: gas pipeline (cf. federal transportation regulation: pipeline)
33. federal and some few state regulation of public utilities regulation: radio and television (cf. cable television)
34. federal and some few state regulation of public utilities regulation: cable television (cf. radio and television)
35. federal and some few state regulations of public utilities regulation: telephone or telegraph company
36. miscellaneous economic regulation
Answer: |
sc_petitioner | 066 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
FREEMAN v. UNITED STATES
No. 09-10245.
Argued February 23, 2011
Decided June 23, 2011
Frank W. Heft, Jr., argued the cause for petitioner. With him on the briefs was Scott T. Wendelsdorf.
Curtis E. Gannon argued the cause for the United States. With him on the brief were Acting Solicitor General Katyal, Assistant Attorney General Breuer, Deputy Solicitor General Dreeben, and John-Alex Romano.
Justice Kennedy
announced the judgment of the Court and delivered an opinion, in which Justice Ginsburg, Justice Breyer, and Justice Kagan join.
The Sentencing Reform Act of 1984, 18 U. S. C. § 3551 et seq., calls for the creation of Sentencing Guidelines to inform judicial discretion in order to reduce unwarranted disparities in federal sentencing. The Act allows retroactive amendments to the Guidelines for cases where the Guidelines become a cause of inequality, not a bulwark against it. When a retroactive Guidelines amendment is adopted, § 3582(c)(2) permits defendants sentenced based on a sentencing range that has been modified to move for a reduced sentence.
The question here is whether defendants who enter into plea agreements that recommend a particular sentence as a condition of the guilty plea may be eligible for relief under § 3582(c)(2). See Fed. Rule Crim. Proc. 11(c)(1)(C) (authorizing such plea agreements). The Court of Appeals for the Sixth Circuit held that, barring a miscarriage of justice or mutual mistake, defendants who enter into 11(c)(1)(C) agreements cannot benefit from retroactive Guidelines amendments.
Five Members of the Court agree that this judgment must be reversed. The Justices who join this plurality opinion conclude that the categorical bar enacted by the Court of Appeals finds no support in § 3582(c)(2), Rule 11(c)(1)(C), or the relevant Guidelines policy statements. In every case the judge must exercise discretion to impose an appropriate sentence. This discretion, in turn, is framed by the Guidelines. And the Guidelines must be consulted, in the regular course, whether the case is one in which the conviction was after a trial or after a plea, including a plea pursuant to an agreement that recommends a particular sentence. The district judge’s decision to impose a sentence may therefore be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C). Where the decision to impose a sentence is based on a range later subject to retroactive amendment, § 3582(c)(2) permits a sentence reduction.
Section 3582(c)(2) empowers district judges to correct sentences that depend on frameworks that later prove unjustified. There is no reason to deny § 3582(c)(2) relief to defendants who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.
Justice Sotomayor would reverse the judgment on a different ground set out in the opinion concurring in the judgment. That opinion, like the dissent, would hold that sentences following 11(c)(1)(C) agreement are based on the agreement rather than the Guidelines, and therefore that § 3582(c)(2) relief is not available in the typical case. But unlike the dissent she would permit the petitioner here to seek a sentence reduction because his plea agreement in express terms ties the recommended sentence to the Guidelines sentencing range.
The reasons that lead those Members of the Court who join this plurality opinion may be set forth as follows.
I
A
Federal courts are forbidden, as a general matter, to “modify a term of imprisonment once it has been imposed,” 18 U. S. C. § 3582(c); but the rule of finality is subject to a few narrow exceptions. Here, the exception is contained in a statutory provision enacted to permit defendants whose Guidelines sentencing range has been lowered by retroactive amendment to move for a sentence reduction if the terms of the statute are met. The statute provides:
“[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. S. C. 994(o)... the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” § 3582(c)(2).
This case concerns the application of the statute to cases in which defendants enter into plea agreements under Rule 11(c)(1)(C). That Rule permits the parties to “agree that a specific sentence or sentencing range is the appropriate disposition of the ease,... [a request which] binds the court once the court accepts the plea agreement.” The question is whether defendants who enter into 11(c)(1)(C) agreements that specify a particular sentence may be said to have been sentenced “based on” a Guidelines sentencing range, making them eligible for relief under § 3582(c)(2).
B
Petitioner William Freeman was indicted in 2005 for various crimes, including possessing with intent to distribute cocaine base. 21 U. S. C. §§ 841(a)(1), (b)(1)(C). He entered into an agreement under Rule 11(c)(1)(C) in which he agreed to plead guilty to all charges. In return the Government “agree[d] that a sentence of 106 months’ incarceration is the appropriate disposition of this case.” App. 26a. The agreement states that “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case,” and that “[Freeman] agrees to have his sentence determined pursuant to the Sentencing Guidelines.” Id., at 27a-28a. The agreement reflects the parties’ expectation that Freeman would face a Guidelines range of 46 to 57 months, ibid. (Offense Level 19, Criminal History Category IV), along with a consecutive mandatory minimum of 60 months for possessing a firearm in furtherance of a drug-trafficking crime under 18 U. S. C. § 924(c)(1)(A). The recommended sentence of 106 months thus corresponded with the minimum sentence suggested by the Guidelines, in addition to the 60-month § 924(e)(1)(A) sentence.
The District Court accepted the plea agreement. At the sentencing hearing, the court “adopt[ed] the findings of the probation officer disclosed in the probation report and application of the guidelines as set out therein.” App. 47a. “[EQaving considered the advisory guidelines and 18 USC 3553(a),” the court imposed the recommended 106-month sentence, which was “within the guideline ranges” — the 46-to 57-month range the parties had anticipated plus the mandatory 60 months under § 924(c)(1)(A) — and “sufficient to meet the objectives of the law.” Id., at 48a-49a.
Three years later, the Commission issued a retroactive amendment to the Guidelines to remedy the significant disparity between the penalties for cocaine base and powder cocaine offenses. See United States Sentencing Commission, Guidelines Manual Supp. App. C, Arndt. 706 (Nov. 2010) (USSG) (effective Nov. 1, 2007) (adjusting Guidelines); id., Arndt. 713 (effective Mar. 3, 2008) (making Amendment 706 retroactive). Its effect was to reduce Freeman’s applicable sentencing range to 37 to 46 months, again with the consecutive 60-month mandatory minimum. App. 142a-144a (Sealed).
Freeman moved for a sentence reduction under § 3582(c)(2). The District Court, however, denied the motion, and the Court of Appeals for the Sixth Circuit affirmed. United States v. Goins, 355 Fed. Appx. 1 (2009). Adhering to its decision in United States v. Peveler, 359 F. 3d 369 (2004), the Court of Appeals held that defendants sentenced following 11(c)(1)(C) agreements that specify a particular sentence are ineligible for § 3582(c)(2) relief, barring a miscarriage of justice or mutual mistake.
This Court granted certiorari. 561 U. S. 1058 (2010).
II
Federal sentencing law requires the district judge in every case to impose “a sentence sufficient, but not greater than necessary, to comply with” the purposes of federal sentencing, in light of the Guidelines and other § 3553(a) factors. 18 U. S. C. § 3553(a). The Guidelines provide a framework or starting point — a basis, in the commonsense meaning of the term — for the judge’s exercise of discretion. E. g., 1 Oxford English Dictionary 977 (2d ed. 1989), Rule 11(c)(1)(C) permits the defendant and the prosecutor to agree that a specific sentence is appropriate, but that agreement does not discharge the district court’s independent obligation to exercise its discretion. In the usual sentencing, whether following trial or plea, the judge’s reliance on the Guidelines will be apparent, for the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range. Gall v. United States, 552 U. S. 38, 49 (2007). Even where the judge varies from the recommended range, id., at 50, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence.
Rule 11(c)(1)(C) makes the parties’ recommended sentence binding on the court “once the court accepts the plea agreement,” but the governing policy statement confirms that the court’s acceptance is itself based on the Guidelines. See USSG §6B1.2. That policy statement forbids the district judge to accept an 11(c)(1)(C) agreement without first evaluating the recommended sentence in light of the defendant’s applicable sentencing range. The commentary to § 6B1.2 advises that a court may accept an 11(c)(1)(C) agreement “only if the court is satisfied either that such sentence is an appropriate sentence -within the applicable guideline range or, if not, that the sentence departs from the applicable guideline range for justifiable reasons.” Cf. Stinson v. United States, 508 U. S. 36 (1993) (Guidelines commentary is authoritative). Any bargain between the parties is contingent until the court accepts the agreement. The Guidelines require the district judge to give due consideration to the relevant sentencing range, even if the defendant and prosecutor recommend a specific sentence as a, condition of the guilty plea.
This approach finds further support in the policy statement that applies to § 3582(c)(2) motions. See USSG § 1B1.10. It instructs the district court in modifying a sentence to substitute only the retroactive amendment and then leave all original Guidelines determinations in place. § IB 1.10(b)(1). In other words, the policy statement seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence. Working backwards from this purpose, § 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement. This is the only rule consistent with the governing policy statement, a statement that rests on the premise that a Guideline range may be one of many factors that determine the sentence imposed.
Tlius, the text and purpose of the Linee relevant sources— the statute, the Rule, and the governing policy statements— require the conclusion that the district court has authority to entertain § 3582(c)(2) motions when sentences are imposed in light of the Guidelines, even if the defendant enters into an 11(c)(1)(C) agreement.
Ill
The transcript of petitioner’s sentencing hearing reveals that his original sentence was based on the Guidelines. The District Court first calculated the sentencing range, as both § 3553(a)(4) and §6B 1.2(c) require. App. 47a, 49a. It explained that it “considered the advisory guidelines and 18 USC 3553(a),” and that “the sentence imposed . . . fall[s] within the guideline rang[e] and [is] sufficient to meet the objectives of the law.” Id., at 48a-49a. Apart from the defense attorney's initial statement that the ease involved a “(C) plea," id., at 47a, the hearing proceeded as if the agreement did not exist. The court expressed its independent judgment that the sentence was appropriate in light of the applicable Guidelines range, and its decision was therefore “based on” that range.
IV
The Government asks this Court to hold that sentences like petitioner's, which follow an 11(c)(1)(C) agreement, are based only on the agreement and not the Guidelines, and therefore that defendants so sentenced are ineligible for § 3582(c)(2) relief. The Government's position rests in part on the concern that the conclusion reached here will upset the bargain struck between prosecutor and defendant. See Brief for United States 42-43. That, however, has nothing to do with whether a sentence is “based on” the Guidelines under § 3582(c)(2). And in any event, the concern is overstated. Retroactive reductions to sentencing ranges are infrequent, so the problem will not arise often. Klein & Thompson, DOJ’s Attack on Federal Judicial “Leniency,” the Supreme Court’s Response, and the Future of Criminal Sentencing, 44 Tulsa L. Rev. 519, 535 (2009). More important, the district court's authority under § 3582(c)(2) is subject to significant constraints, constraints that can be enforced by appellate review.
The binding policy statement governing § 3582(c)(2) motions places considerable limits on district court discretion. All Guidelines decisions from the original sentencing remain in place, save the sentencing range that was altered by retroactive amendment. USSG § lB1.10(b)(l). In an initial sentencing hearing, a district court can vary below the Guidelines; but, by contrast, below-Guidelines modifications in § 3582(c)(2) proceedings are forbidden, USSG §1B1.10(b) (2)(A), except where the original sentence was itself a downward departure, § IB 1.10(b)(2)(B). And the court must always “consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment.” § IB 1.10, comment., n. l(B)(ii). The district court’s authority is limited; and the courts of appeals, and ultimately this Court, can ensure that district courts do not overhaul plea agreements, thereby abusing their authority under § 3582(c)(2). See Dillon v. United States, 560 U. S. 817 (2010) (reviewing and affirming a § 3582(c)(2) sentence reduction); Gall, 552 U. S., at 49 (all sentences are reviewable for abuse of discretion).
The Government would enact a categorical bar on § 3582(c)(2) relief. But such a bar would prevent district courts from making an inquiry that is within their own special knowledge and expertise. What is at stake in this case is a defendant’s eligibility for relief, not the extent of that relief. Indeed, even where a defendant is permitted to seek a reduction, the district judge may conclude that a reduction would be inappropriate. District judges have a continuing professional commitment, based on scholarship and accumulated experience, to a consistent sentencing policy. They can rely on the frameworks they have devised to determine whether and to what extent a sentence reduction is warranted in any particular ease. They may, when considering a § 3582(c)(2) motion, take into account a defendant’s decision to enter into an 11(c)(1)(C) agreement. If the district court, based on its experience and informed judgment, concludes the agreement led to a more lenient sentence than would otherwise have been imposed, it can deny the motion, for the statute permits but does not require the court to reduce a sentence. This discretion ensures that § 3582(c)(2) does not produce a windfall.
As noted, the opinion concurring in the judgment suggests an intermediate position. That opinion argues that in general defendants sentenced following 11(c)(1)(C) agreements are ineligible for § 3582(c)(2) relief, but relief may be sought where the plea agreement itself contemplates sentence reduction. The statute, however, calls for an inquiry into the reasons for a judge’s sentence, not the reasons that motivated or informed the parties. If, as the Government suggests, the judge’s decision to impose a sentence is based on the agreement, then § 3582(c)(2) .does not apply. The parties cannot by contract upset an otherwise-final sentence. And the consequences of this erroneous rule would be significant. By allowing modification only when the terms of the agreement contemplate it, the proposed rule would permit the very disparities the Sentencing Reform Act seeks to eliminate.
The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences. See 18 U. S. C. § 3553(a)(6); K. Stith & J. Cabranes, Fear of Judging 104-105 (1998). Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes are too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.
The crack-cocaine range here is a prime example of an unwarranted disparity that § 3582(c)(2) is designed to cure. The Commission amended the crack-cocaine Guidelines to effect a “partial remedy” for the “urgent and compelling” problem of crack-cocaine sentences, which, the Commission concluded, “significantly undermines the various congressional objectives set forth in the Sentencing Reform Act.” United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8-10 (May 2007); see also USSG Supp. App. C, Arndt. 706; Kimbrough v. United States, 552 U. S. 85, 99-100 (2007), The Commission determined that those Guidelines were flawed, and therefore that sentences that relied on them ought to be reexamined. There is no good reason to extend the benefit of the Commission’s judgment only to an arbitrary subset of defendants whose agreed sentences were accepted in light of a since-rejected Guidelines range based on whether their plea agreements refer to the Guidelines. Congress enacted § 3582(c)(2) to remedy systemic injustice, and the approach outlined in the opinion concurring in the judgment would undercut a systemic solution.
Even when a defendant enters into an 11(c)(1)(C) agreement, the judge’s decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines; and when it is, the defendant should be eligible to seek § 3582(c)(2) relief. This straightforward analysis would avoid making arbitrary distinctions between similar defendants based on the terms of their plea agreements. And it would also reduce unwarranted disparities in federal sentencing, consistent with the purposes of the Sentencing Reform Act.
* * *
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
It is so ordered.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_const2 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the second most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if fewer than two constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the second greatest number of headnotes. In case of a tie, code the second mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Marcus Wayne CHENAULT, Petitioner-Appellant, v. Leroy N. STYNCHCOMBE, Sheriff of Fulton County, Respondent-Appellee.
No. 77-2501.
United States Court of Appeals, Fifth Circuit.
Oct. 3, 1978.
Randy Bacote, Atlanta, Ga., for petitioner-appellant.
Lewis R. Slaton, Dist. Atty., Carter Goode, Allen Moye, Asst. Dist. Attys., Atlanta, Ga., for respondent-appellee.
Before WISDOM, TJOFLAT and VANCE, Circuit Judges.
WISDOM, Circuit Judge:
Marcus Wayne Chenault appeals a district court order denying certain portions of his habeas corpus petition. We remand to the district court with instructions to dismiss the petition without prejudice so that Chenault may exhaust state remedies.
I.
On Sunday morning, June 30, 1974, Che-nault attended services at Ebenezer Baptist Church in Atlanta,' Georgia. During the service, Chenault shot Mrs. Martin Luther King, Sr., Deacon Edward Boykin, and Mrs. Jimmie Mitchell. Mrs. King and Mr. Boy-kin died from their wounds. On July 9, 1974, a Fulton County grand jury indicted the petitioner on two counts of murder and one count each of aggravated assault, of carrying a pistol without a license, and of carrying a concealed weapon. On September 12, 1974, a jury found the petitioner guilty of all charges. The jury imposed sentences of death on both counts of murder and a sentence of ten-years imprisonment on the aggravated assault count, which was to run consecutively with the death sentences. In addition, the trial judge imposed a one-year concurrent sentence on the count of carrying a pistol without a license and the count of carrying a concealed weapon. Chenault appealed, asserting sixteen errors. The Supreme Court of Georgia affirmed both his conviction and sentence. Chenault v. State, 1975, 234 Ga. 216, 215 S.E.2d 223. Chenault then instituted this federal habeas corpus proceeding, in which he presented the same errors he had asserted on his direct appeal.
The district court denied relief on fourteen alleged errors, and this Court affirmed. Chenault v. Stynchcombe, 5 Cir. 1977, 546 F.2d 1191, cert. denied, 434 U.S. 878, 98 S.Ct. 231, 54 L.Ed.2d 158. The district court stayed consideration of enumerations of error fifteen and sixteen, which attacked the constitutionality of the Georgia death penalty statute and the imposition of the death sentence, pending determination by the Supreme Court on the constitutionality of the death penalty. On May 26,1977, after the Supreme Court decisions in the 1976 death penalty cases, the district court denied relief on enumerations of error fifteen and sixteen.
The petitioner contends that the district court erred in denying relief on enumerations of error fifteen and sixteen. In addition, during oral argument before this Court the petitioner made two new allegations of error. These contentions will be considered in turn.
II.
The district court properly denied relief on enumerations of error fifteen and sixteen. Enumeration of error fifteen contended that the Georgia death penalty statutes violate the constitutional prohibition against cruel and unusual punishment. In Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859, the Supreme Court upheld the constitutionality of these Georgia statutes. Enumeration of error sixteen asserted that the petitioner’s death sentence had been imposed in violation of Ga.Code Ann. § 27-2503, because the prosecutor introduced no evidence on aggravation of punishment at the sentencing stage of the trial, choosing instead to rely only upon evidence heard on the issue of guilt. Whether this statute requires the prosecutor to present additional evidence at the sentencing stage is a question of state law, which is not cognizable in a federal habeas proceeding. Enumeration of error sixteen suggests no colorable federal constitutional claim.
III.
During oral argument before this Court, the petitioner asserted that the trial judge’s instructions to the jury during the sentencing stage of the trial about mitigating circumstances and the option to recommend mercy were constitutionally inadequate. The petitioner did not raise this issue in his appeal to the Supreme Court of Georgia or in his habeas petition in the district court. Furthermore, he has never attempted to raise it by filing a state habeas corpus proceeding under Georgia law. If the state habeas proceeding is available to him, the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. Because it appears that the petitioner can avail himself of the state habeas procedure, this Court determines that the issue of the adequacy of sentencing instructions is not properly before us.
The Georgia courts appear willing to entertain habeas corpus proceedings challenging the imposition of the death penalty on federal constitutional grounds. See, e. g., Ross v. Hopper, 1977, 240 Ga. 369, 240 S.E.2d 850; Wilkes, Postconviction Habeas Corpus Relief in Georgia : A Decade After the Habeas Corpus Act, 12 Ga.L.Rev. 249, 258-59 (1978). Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part) is the habeas provision applicable to persons, like the petitioner, imprisoned by virtue of a sentence imposed by a Georgia court. The statute allows the imprisoned person to assert that he has suffered a “substantial denial” of rights conferred by the United States Constitution. Ga.Code Ann. § 50-127(1). Except when the composition of a grand or traverse jury is challenged, federal constitutional rights are not deemed to have been waived unless it is shown that the habeas petitioner “voluntarily, knowingly, and intelligently” participated in the “intentional relinquishment or abandonment of a known right or privilege”. Id. Under this standard, it appears that the petitioner’s failure to object to the sentencing instructions at trial did not operate as a waiver. Therefore, he may pursue the state habeas remedy if his objection implicates a “substantial denial” of a federal constitutional right.
In view of the two most recent Supreme Court death penalty decisions — Lockett v. Ohio, 1978,- U.S.--, 98 S.Ct. 2954, 57 L.Ed.2d 973, and Bell v. Ohio, 1978, - U.S. -, 98 S.Ct. 2977, 57 L.Ed.2d 1010 — we conclude that the petitioner’s objection does implicate a substantial denial of a federal constitutional right. In Lock-ett the plurality opinion of the Chief Justice, in which Justices Stewart, Powell, and Stevens joined, states that the Eighth and Fourteenth Amendments require that the sentencing judge or jury must be allowed to consider, as a mitigating factor, “any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death”. - U.S. at --, 98 S.Ct. at 2965. See Bell,-U.S. at--, 98 S.Ct. 2977 (applying Lockett). The plurality would apply this requirement in all cases except perhaps where a mandatory death sentence is needed to deter certain kinds of homicide. See Lockett, - U.S. at--& n.ll, 98 S.Ct. 2954. Justice Marshall, although still adhering to his view that capital punishment is always unconstitutional, appears to have suggested that the sentencer must be allowed to consider “the unique individuality of every criminal defendant”. Lockett, - U.S. at -, 98 S.Ct. at 2973 (Marshall, J., concurring in the judgment). Justice Brennan did not participate in either decision. He has, however, consistently maintained that the death penalty is always unconstitutional. See, e. g., Coker v. Georgia, 1977, 433 U.S. 584, 600, 97 S.Ct. 2861, 53 L.Ed.2d 982 (Brennan, J., concurring in the judgment).
It now seems, therefore, that a death sentence imposed by a sentencer barred from considering mitigating circumstances will be vacated by a six-member majority of the Supreme Court — the plurality in Lockett and Bell and Justices Brennan and Marshall. This constitutional requirement to allow consideration of mitigating circumstances would have no importance, of course, if the sentencing jury is unaware of what it may consider in reaching its decision. We read Lockett and Bell, then, to mandate that the judge clearly instruct the jury about mitigating circumstances and the option to recommend against ■ death. Thus, the petitioner’s contention that the sentencing instructions given by the trial judge were not adequate on this point does implicate a substantial denial of a federal constitutional right. Should he file a state habeas petition raising this contention, the state courts would be required, in light of Lockett and Bell, to determine whether the instructions given adequately comport with the United States Constitution.
IV.
Georgia law provides that, in a capital case, a prospective juror who is opposed to the imposition of the death penalty under any circumstances is automatically removed by the trial judge “for cause”. Ga.Code Ann. §§ 59-806(4), 59-807. See Eberheart v. State, 1974, 232 Ga. 247, 250-51, 206 S.E.2d 12, 15-16, vacated on other grounds, 1977, 433 U.S. 917, 97 S.Ct. 2994, 53 L.Ed.2d 1104, modified, 239 Ga. 407, 238 S.E.2d 1. During oral argument before this Court, the petitioner contended that this use of a so-called “death-qualified jury” violated the Georgia Constitution’s guarantee to a “trial by an impartial jury”. Ga.Code Ann. § 2-105 (Const.1945). That is clearly an issue of state law, which is not cognizable in a federal habeas corpus proceeding.
The petitioner can obtain no relief even if his contention were recast as an argument that the death-qualified jury provision violates his right to a jury trial guaranteed by the Sixth and Fourteenth Amendments of the Constitution. First, this issue is not properly before this Court, because the petitioner has failed to exhaust state remedies on this issue, as required by 28 U.S.C. § 2254. He did not present the issue on his appeal to the Supreme Court of Georgia, and he has not raised it by filing a state habeas proceeding under Ga.Code Ann. § 50-127. Second, in the recent case of Spinkellink v. Wainwright, 5 Cir. 1978, 578 F.2d 582, a panel of this Court held that a death-qualified jury procedure does not violate the constitutional right to a jury trial. Thus, this Court would be required to reject the petitioner’s argument if we had jurisdiction over this issue.
V.
In summary, we affirm the decision of the district court that the petitioner’s enumerations of error fifteen and sixteen are without merit. We find that his challenges to the sentencing instructions and to the death-qualified jury are not properly before this Court because he has failed to exhaust state remedies. We remand the case to the district court with instructions to dismiss the petition without prejudice so that the petitioner may pursue state remedies for these contentions.
AFFIRMED and REMANDED.
. Georgia allows a person incarcerated under a sentence imposed by a State court to institute a habeas corpus proceeding. See Ga.Code Ann. § 50-127 (1977 Cum. Pocket Part). The petitioner has never attempted to obtain the writ of habeas corpus for the Georgia courts. In the district court, the respondent argued that the federal habeas corpus petition must be dismissed because the petitioner had failed to exhaust state remedies, as required under 28 U.S.C. § 2254. The district court determined that the petitioner had met the exhaustion requirement because on appeal the Supreme Court of Georgia had ruled upon every enumeration of error contained in the federal petition. The respondent has not renewed this exhaustion argument in this Court.
. Gregg v. Georgia, 1976, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859; Proffitt v. Florida, 1976, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913; Jurek v. Texas, 1976, 428 U.S. 262, 96 S.Ct.. 2950, 49 L.Ed.2d 929; Woodson v. North Carolina, 1976, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944; Roberts v. Louisiana, 1976, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974.
. In the petitioner’s direct appeal, the Supreme Court of Georgia held that the prosecutor was not required to present additional evidence at the sentencing stage of the trial. Chenault v. State, 234 Ga. at 224-25, 215 S.E.2d at 229.
. There are many cases that state that a state prisoner may not pursue federal habeas corpus unless he has raised his issues in a state habeas proceeding. Recent Fifth Circuit cases to this effect are: Mosley v. Smith, 5 Cir. 1973, 470 F.2d 1320, cert. denied, 1973, 412 U.S. 932, 93 S.Ct. 2757, 37 L.Ed.2d 160; Brookins v. Florida, 5 Cir. 1972, 461 F.2d 663; Pebworth v. Henderson, 5 Cir. 1970, 428 F.2d 789; Wheeler v. Beto, 5 Cir. 1969, 407 F.2d 816.
Question: What is the second most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_opinstat | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
REALTY OPERATORS, Inc., v. COMMISSIONER OF INTERNAL REVENUE.
No. 11424.
Circuit Court of Appeals, Fifth Circuit
Feb. 18, 1946.
Rehearing Denied March 15,1946.
C. J. Batter, of Washington, D. C., for petitioner.
' ¡Maryhelen Wigle and Helen R. Carloss, Sp. Assts. to Atty. Gen., Sewall Key, Acting Asst. Atty. Gen., and-J.-P. Wenchel, Chief Counsel, Bureau of Internal Revenue, Raymond F. Brown and R. E. Maiden, Jr.-, Sp. Attys., Bureau of Internal Revenue, all of Washington, \D. C., for respondent.
Before SIBLEY, HOLMES, and Mc-CORD, Circuit Judges.
HOLMES, Circuit Judge.
This is an action against the United States to recover sugar-processing taxes paid by Realty Operators, Incorporated. It was preceded by a timely claim for refund, filed with the Commissioner of Internal Revenue. This claim was disallowed in full. Thereupon, the taxpayer filed its petition for a hearing on the merits with the Board of Review, an administrative agency in the Treasury Department, which pe.tition was. transferred to the Tax Court. Our jurisdiction to review the decision of said court is invoked pursuant to Sections 1141 and 1142 of the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, §§ 1141, 1142.
The Tax Court made no finding of fact as to whether the margin comparisons were favorable or unfavorable to the taxpayer. It first considered the case without resort to statutory presumptions, and determined 'that petitioner, along with the entire sugar ■industry, increased «its price of sugar in the amount of the tax on the very day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or. for the purpose of subtracting the tax from the sales price. The court therefore concluded, without recourse to any presumption, that petitioner shifted the entire burden of the tax through inclusion of the entire amount thereof in the price of the sugar.
The court then resolved all controversies with regard to the margin comparisons in favor of the taxpayer; and assumed, without deciding, that the margin during the tax period was lower than the margin during the period before and after the tax. This raised a presumption in favor of the taxpayer under Section 907 of the Act, which the court held was entirely rebutted by proof that the claimant increased its selling price of sugar by the amount of the tax on the day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or for the purpose of deducting the tax from the selling price. The claimant in turn sought to establish that this increase was caused by changes in factors other than the tax. The court said that, while the record showed that changes occurred .during the tax period in the type of commodity produced by petitioner and in the cost of production, there was no proof that these changes occurred at the time of the price increase, or were reasonably to be anticipated at that time, or in any way caused the price increase in substantially the amount of the tax, which occurred at the time when the tax went into effect.
The evidence in the record supports the findings of the Tax Court that the claimant participated in the nation-wide increase in the price of sugar in the amount of the tax on the very day that the tax went into effect, and that the price was not reduced at any later time by the amount of the tax or for the purpose of subtracting the tax from the selling price. Petitioner contends that the increase in price made by the sugar industry on June 8, 1934, was caused by the quota system, which became effective as of that date, and that the quota-control must be considered a factor under said Section 907(e) (2). The Tax Court found that the quotas placed upon the importation of sugar made the price increase possible, but that the increase was made not only when the tax went into effect but in the approximate amount of the tax, and that this indicated clearly that the petitioner, was shifting the entire burden thereof by the increase in price. The claimant failed to show that this price increase was caused by factors other than the. processing tax.
Conceding, as did the Tax Court, that the presumption here was in favor of the claimant, we think the proof introduced by the Commissioner was sufficient to support a finding that the entire tax was shifted. Evidence that petitioner increased its selling price of sugar in the amount of the tax on the very day that the tax went into effect, and never reduced it during the tax period, was exactly the kind of evidence mentioned in the statute as sufficient to rebut the presumption in favor of the taxpayer. Therefore, upon the authority of Webre Steib v. Commissioner, 324 U.S. 164, 65 S.Ct. 578, the decision of the Tax Court is
Affirmed.
Established by virtue of Section 906 of the Act of June 22, 1936, 49 Stat. 1748, 7 U.S.C.A. § 648(b).
Effective as of the close of business on December 31, 1942, said Board of Review was abolished and its jurisdiction transferred to and vested in the Board of Tax Appeals, now known as The Tax Court, an independent agency in the executive branch of the Government. 56 Stat. 957, 967, 53 Stat. 158, 26 U.S.C.A. Int.Rev. Code, §§ 1100, 1101, 1101 note.
Act of June 22, 1936, 49 Stat 1751, 7 U.S.C.A. | 649(a).
7 U.S.C.A. § 649(e) (2).
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_state | 50 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
LOCAL 879, ALLIED INDUSTRIAL WORKERS of AMERICA, AFL-CIO, and International Union, Allied Industrial Workers of America, AFL-CIO, Plaintiffs-Appellees, v. CHRYSLER MARINE CORPORATION and Chrysler Corporation, Defendants-Appellants.
No. 85-2872.
United States Court of Appeals, Seventh Circuit.
Argued April 17, 1986.
Decided May 20, 1987.
Frederick A. Muth, Jr., Whyte & Hirsch-boeck, S.C., Milwaukee, Wis., for defendants-appellants.
Kenneth R. Loebel, Habush Habush & Davis, Milwaukee, Wis., for plaintiffs-ap-pellees.
Before CUDAHY and COFFEY, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
FAIRCHILD, Senior Circuit Judge.
Appellants Chrysler Marine Corporation and Chrysler Corporation (“Chrysler” or “the Company”) appeal from the district court judgment enforcing an arbitrator’s award and awarding attorney’s fees to ap-pellees International Union, Allied Industrial Workers of America and Local 879 (“the Union”). Jurisdiction was based on § 301 of the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185. For the reasons set forth below, we will Affirm the enforcement of the arbitrator’s award, and Reverse the grant of attorneys’ fees.
FACTS
In May, 1983, Chrysler and the Union began to negotiate a successor agreement to that covering the Company’s Hartford and Beaver Dam, Wisconsin, plants, which was due to expire on June 30, 1983. Because of rumors that. Chrysler was considering closing or selling these plants, the Union twice proposed severance pay plans, both of which Chrysler rejected. In agreeing to a new contract, the Union accepted a company letter of intent stating that “in the event the Company should close all of its Hartford and/or Beaver Dam Plants, the Company will provide the Union six (6) months advance notice of such closing and will negotiate with the Union regarding a Severance Pay Plan.”
In August, 1983, Chrysler began to negotiate with Bayliner Corporation for the sale of the Hartford and Beaver Dam plants. Bayliner agreed to acquire Chrysler’s assets, to operate the Hartford plant for one year, excluding a reasonable transition period, and to operate the Beaver Dam plant for at least two months. The sale was originally scheduled to become effective December 30, 1983. The agreement was reached December 8,1983 and the sale was first made known to the Union and the employees at that time.
On December 12, 1983, the Union filed a grievance alleging that the sale was a closing which violated the June 30 agreement because six months’ notice had not been given. It requested that the closing be delayed for at least six months for negotiation of a severance pay plan. Chrysler denied the grievance, contending that the sale was not a closing, and the issue was ultimately submitted to arbitration.
The Union immediately brought suit to enjoin the sale pending arbitration. The district court granted a preliminary injunction, but on January 9, 1984, this court granted a stay, finding that the risk of irreparable injury weighed most heavily against Chrysler. The preliminary injunction was reversed May 31, 1984, 735 F.2d 1367. Both orders were unpublished.
On January 11, 1984, Chrysler informed all employees at both plants that effective January 13, 1984, they would no longer be employed. Ownership of the Hartford assets was transferred to the buyer on January 13, 1984, but the Beaver Dam assets were never sold, and operations there continued without interruption. Although Bayliner did not guarantee that the Company’s employees would be retained, as of February 6, 1984, 223 of 272 former Chrysler employees were employed at the Hartford plant.
The parties then proceeded with arbitration as provided by their collective bargaining agreement. On May 30, 1984, the arbitrator issued an award. The arbitrator found that the term “close” applied to the sale of the Hartford operation and that Chrysler had therefore obligated itself to give six months’ notice of the sale, and to negotiate a severance pay plan. He ordered several adjustments, affecting groups of employees, consistent with the theory that the sale could not have occurred less than six months after December 8, 1983, the date the employees learned of it. These adjustments are not in issue on this appeal. He also directed the parties to attempt to agree upon a severance pay plan comparable to plans in comparable relationships. He stated his opinion “that had such negotiations occurred prior to the effectuation of the sale in question, the Union would have been in an advantageous bargaining position, since the Company would probably have sought its acquiescence to a waiver of the six months’ notice requirement which would have enabled it to. meet the purchaser’s demands with respect to the timing of the transaction. Based upon these considerations, it is the undersigned’s opinion that the Union would in all likelihood have been able to negotiate a severance pay plan which provided benefits comparable with the more generous of such plans in existence at that time in comparable employee-union relationships.”
The parties were given 90 days in which to negotiate, after which the proceeding would be reconvened at the request of either party. Chrysler brought an action seeking to set aside the award. The parties did not negotiate, and the arbitrator reconvened the proceeding.
A supplemental award was issued on March 15, 1985, including, among other things, a severance pay plan for all former Chrysler employees. The arbitrator reviewed severance pay plans collectively bargained in three plants neighboring Chrysler’s. Based upon them, he termed the plan awarded “a fair and generally comparable severance pay plan.” The arbitrator stated that because it was impossible to determine with any certainty the Union’s and the employees’ damages as a result of Chrysler’s violation of the contract, he had attempted in the first award to provide an incentive for the Company to reach an agreement with the Union. That having failed, imposition of a severance pay plan is “the most viable way of affording the employees whose contractual rights were violated meaningful relief, and of imposing upon the Company obligations which in any way coincide with the obligations it had at the time of the contractual violation.” Supplemental Award at 14. The arbitrator also observed that no lesser or more traditional remedy, such as a cease and desist order or a direction to bargain, could be effective because the parties no longer had a bargaining relationship and Chrysler had no incentive to reach an agreement with the Union. Even employees hired by Bay-liner were to receive severance pay, because when Chrysler ceased operations, its employees had no rights to employment with the buyer. Moreover, while one purpose of severance pay is to provide income between jobs, it also compensates employees for their service and for termination for reasons unrelated to their conduct.
The district court ordered enforcement of both awards. It found that the arbitrator’s construction of the contract did not manifestly ignore the agreement, and that the creation of the severance plan was within the scope of his remedial powers. The court also awarded attorney’s fees incurred by the Union to enforce the award.
ARBITRATION AWARD
This court has repeatedly stressed that review of an arbitration award is extremely limited. See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Local 449 v. Keystone Consolidated Industries, Inc., 782 F.2d 1400, 1402 (7th Cir.1986) and cases cited therein. So long as the arbitrator interpreted the contract in making the award, even if arguably incorrectly, it must be upheld. Ethyl Corp. v. United Steelworkers of America, 768 F.2d 180, 187 (7th Cir.1985).
An award may be overturned only if the arbitrator must have based his. award on his own personal notions of right and wrong, for only then does the award fail “to draw its essence from the collective bargaining agreement” as required by the Supreme Court in United Steelworkers v. Enterprise Wheel,- 363 U.S. 593, 597, 80 S.Ct. 1353, 1361, 4 L.Ed.2d 1424, and by ourselves in Ethyl Corporation, 768 F.2d at 184-85; Jones Dairy Farm v. Local No. P-1236, United Food and Commercial Workers International Union, 760 F.2d 173, 176 (7th Cir.1985), certiorari denied, — U.S.-, 106 S.Ct. 136, 88 L.Ed.2d 112; Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1162 (7th Cir.1984), certiorari denied, 469 U.S. 1160, 105 S.Ct. 912, 83 L.Ed.2d 926....
This low standard of review is essential to prevent a “judicialization” of the arbitration process. Ethyl Corporation, 768 F.2d at 184. Arbitration is an alternative to the judicial resolution of disputes, and an extremely low standard of review is necessary to prevent arbitration from becoming merely an added preliminary step to judicial resolution rather than a true alternative. Id. The parties have bargained ex ante for arbitration as an alternative means of dispute resolution, and ex post they must abide by this bargain. Camacho [v. Ritz-Carlton Water Tower, 786 F.2d 242, 244 (7th Cir.1986)].
E.I. Dupont de Nemours v. Grasselli Employees Independent Ass’n of East Chicago, Inc., 790 F.2d 611, 614 (7th Cir.1986).
Chrysler does not challenge the arbitrator’s construction of the collective bargaining agreement nor his finding of a breach by failing to give the Union six months’ notice of the sale and failing to negotiate regarding a severance pay plan. Instead, it argues that the remedy awarded exceeds the authority granted to the arbitrator by the contract.
The arbitration clause provides that: [t]he decision of the arbitrator shall be final, and binding on all parties. The arbitrator shall have authority only to decide questions as to the meaning and application of the terms of this Agreement, and such arbitrator shall have no authority to change existing rate ranges, incentive base rates or day work rates, for any labor grade or to add, delete or modify any of the terms of this Agreement.
Chrysler contends that by creating the duty “out of whole cloth” to provide severance pay, the arbitrator modified the terms of the agreement by imposing the obligation to come to terms, where only negotiations had been bargained for. It also argues that the arbitrator’s reasoning was faulty, and that the award to employees who were hired by Bayliner exceeds his remedial powers by creating a windfall and contradicting the parties’ bargaining history-
We disagree.
When an arbitrator is commissioned to interpret and apply the collective bargaining agreement, he is to bring his informed judgment to bear in order to reach a fair solution of a problem. This is especially true when it comes to formulating remedies. There is the need for flexibility in meeting a wide variety of situations. The draftsmen may never have thought of what specific remedy should be awarded to meet the particular contingency.
United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960); see Miller Brewing Co. v. Brewery Workers Local Union No. 9, 739 F.2d 1159, 1163 (7th Cir.1984) (“Collective bargaining agreements often say little or nothing about the arbitrator’s remedial powers; yet it cannot be that he has none; and since he derives all his powers from the agreement, the agreement must implicitly grant him remedial powers when there is no explicit grant.”).
Concerning the breadth of such implication, we have said,
In these circumstances we must consider whether it is at all plausible to suppose that the remedy he devised was within the contemplation of the parties and hence implicitly authorized by the agreement. Only if we think it clearly was not may we reverse.
Id. at 1164. See also United Elec., Radio and Mach. Workers of Am., Local 1139 v. Litton Microwave Cooking Products, 728 F.2d 970, 972 (8th Cir.1984) (en banc); Desert Palace, Inc. v. Local Joint Executive Bd. of Las Vegas, 679 F.2d 789, 793 (9th Cir.1982) (as long as solution is within general framework of agreement, arbitrator may decide what parties would have agreed had they foreseen the dispute).
Of course, if Chrysler had given six months’ notice of its sale and had negotiated in good faith, but unsuccessfully, for a severance pay plan, no plan could have been imposed upon it under the collective bargaining agreement. Here, however, Chrysler has made it impossible to determine with certainty what would have been the result of negotiation either if six months’ notice had been given, or, as seems more likely under the circumstances, Chrysler had also sought a Union waiver of the full six months’ notice period. “We cannot say that the arbitrator clearly exceeded his authority or violated the collective-bargaining agreement, when he resolved doubts as to the remedy against the party that had broken its promise.” United Electric, 728 F.2d at 972.
The arbitrator carried out what appears to be a careful and reasonable determination of a plan which would probably have resulted from negotiation under the latter assumption. Expressly conferring on the arbitrator, as the agreement does, the authority to decide the meaning and application of the agreement, necessarily implies the authority to find that there has been a breach of the agreement as interpreted, and, we think, further implies the authority to prescribe a remedy which can be said reasonably to cure the breach. Thus the award was within the range of remedial authority which can reasonably be said to be implied by the contract.
Other remedies did not appear feasible, and Chrysler proposes none; indeed, its position leads to the conclusion that the arbitrator was helpless to provide redress for the Company’s breach, a conclusion not mandated by the agreement or by common sense. Cf. Grigoleit Co. v. United Rubber, Cork, Linoleum and Plastic Workers of Am., Local No. 270, 769 F.2d 434, 440-41 (7th Cir.1985); United Elec. Radio & Machine Workers of Am. v. Honeywell, Inc., 522 F.2d 1221, 1226 (7th Cir.1975) (arbitrators have flexibility in formulating remedies); Mogge v. District 8 Int’l Ass’n of Machinists, 454 F.2d 510, 514 (7th Cir.1971) (where contract is not explicit concerning the proper remedy, arbitrator has wide latitude in fashioning appropriate remedy).
Chrysler challenges the arbitrator’s assumption that the contractual entitlement to six months’ notice of the sale gave the Union bargaining power by withholding consent to a shortening of the notice period. In this challenge, Chrysler relies on this court’s stay and reversal of a preliminary injunction against proceeding with the sale in January, 1984 after only one month’s notice.
This argument rests on an inapt comparison between the premises of the court’s decision and those of the arbitrator’s. This dispute was whether the “sale” was a “closing” under the collective bargaining agreement. That issue had not been resolved when this court decided that Chrysler’s risk of irreparable hardship if it lost the sale opportunity and ultimately won on the merits was much greater than the Union’s risk if the sale occurred and it ultimately won on the merits. Before the arbitrator prescribed the remedy, however, he had reached the merits and determined the Company’s contractual obligation not to sell without six months’ notice.
This court’s two unpublished orders did not, of course, address the merits of the dispute, nor even assess the probability of success. They were plainly based on this court’s evaluation of the respective risks of irreparable injury. The stay order (incorporated also in the final order) suggests that this court perceived an award of (if not agreement on) a severance pay plan as at least a very probable outcome, for it said, at page 5:
Finally, as we previously stated, if Chrysler is not permitted to complete the sale, there is a substantial likelihood that Chrysler will lose large amounts of money greatly in excess of the $1,000 injunction bond filed by the union in this case. After all, in a large commercial transaction such as this, time is sensitive and of the essence. The union members face no such dilemma. If the sale is completed, the Union still has the opportunity to arbitrate severance pay under the collective bargaining agreement against a solvent Chrysler. If the arbitrator finds an award of severance pay to be proper in this instance, then every union member not hired by Bayliner will be entitled to such pay. The arbitrator’s award of severance pay will be in the form of money damages, easily calculable, and within the power of the panel to award. The Union simply cannot complain of irreparable harm if it is remitted to this remedy. Moreover, arbitration may be avoidable since Chrysler has offered to pay in settlement the severance pay proposed by the Union immediately prior to the time the labor contract was signed.
Chrysler further points out that most of the affected employees were hired by Bay-liner, the purchaser of the Hartford plant. Chrysler seems to contend that even if a severance pay plan is an appropriate remedy, it “must be limited to former hourly Chrysler employees who, despite reasonable efforts, have not secured other employment.”
It relies on two decisions which held that pension administrators’ interpretation of employers’ severance pay policies so as not to afford benefits to persons employed by a successor employer did not violate ERISA. Sly v. P.R. Malloy & Co., Inc., 712 F.2d 1209 (7th Cir.1983) and Jung v. FMC Corp., 755 F.2d 708 (9th Cir.1985). These cases involved different situations and have little pertinence here.
ATTORNEY’S FEES
The district court also awarded the Union attorney’s fees incurred to enforce the award, but without any explanation, or finding of bad faith or frivolous litigation. Some courts have held that although § 301 of the LMRA does not provide for the shifting of costs and fees in suits for enforcement of awards, when a challenger refuses to abide by an arbitrator’s decision “without justification,” attorney’s fees and costs may be awarded. See, e.g., Teamsters Local Union No. 764 v. J.H. Merritt & Co., 770 F.2d 40, 43 n. 2 (3rd Cir.1985); Amalgamated Meat Cutters Local Union 540 v. Great Western Food Co., 712 F.2d 122, 125 (5th Cir.1983); Int'l Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428-29 (9th Cir.1983).
This court has stated that normally when no statute authorizes the award of attorney’s fees “the prevailing party is entitled to attorney’s fees only if his opponent’s suit or defense was frivolous, which our cases define to mean brought in bad faith — brought to harass rather than to win.” Miller, 739 F.2d at 1167. More recently, since the amendment of Rule 11, F.R.Civ.P., we have held that the test under present Rule 11 is objective, and that a finding of bad faith is not essential. See Brown v. National Bd. of Medical Examiners, 800 F.2d 168, 171 (7th Cir.1986) (standard under revised Rule 11 is objective reasonableness under the circumstances). Here there was no finding of bad faith, nor do we see evidence thereof. We do not deem Chrysler’s position so devoid of arguable merit as to warrant sanctions under Rule 11.
The award of attorney’s fees is Reversed, and the judgment is Affirmed in all other respects. Costs on appeal are allowed to plaintiffs.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_genresp1 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Bell Atlantic Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. US West, Inc., Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Ameritech, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Pacific Telesis Group, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. BellSouth Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., et al. Southwestern Bell Corporation, Appellant. UNITED STATES of America v. WESTERN ELECTRIC COMPANY, INC., and American Telephone and Telegraph Company NYNEX Corporation, Appellant.
Nos. 90-5333, 90-5335, 90-5337, 90-5351, 90-5365, 90-5367 and 90-5373.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 21, 1992.
Decided July 24, 1992.
Stephen M. Shapiro, with whom Mark I. Levy and Michael K. Kellogg, for Bell Companies, John Thorne, Michael D. Lowe, and Michael E. Glover, for Bell Atlantic Corp., Jeffrey S. Bork, for US WEST, Inc., Richard W. Odgers, Margaret DeB. Brown, and Stanley J. Moore, for Pacific Telesis Group, Walter H. Alford and Mark D. Hal-lenbeck, for BellSouth Corp., Liam S. Coo-nan, Ann Meuleman, and Martin E. Gram-bow, for Southwestern Bell Corp., and Raymond F. Burke, for NYNEX Corp., were on the joint brief, for Bell Co. appellants in all cases.
Nancy C. Garrison, Atty., Dept, of Justice, with whom James F. Rill, Asst. Atty. Gen., and Catherine G. O’Sullivan, Atty., were on the brief, for Federal appellee in all cases.
David W. Carpenter, with whom Mark C. Rosenblum and Howard J. Trienens, were on the brief, for appellee American Tel. & Tel. Co. in all cases.
Michael H. Salsbury, with whom Chester T. Kamin and Carl S. Nadler, were on the brief, for appellee MCI Communications Corp. in all cases. Anthony C. Epstein also entered an appearance, for appellee.
Martin T. McCue entered an appearance, for appellee U.S. Tel. Ass’n in all cases.
Gail L. Polivy entered an appearance, for appellee GTE Corp. in all cases.
John E. Ingle, Deputy Associate Gen. Counsel, and Robert L. Pettit, Gen. Counsel, filed a statement, for amicus curiae F.C.C. in 90-5333, explaining an FCC order.
Before: SILBERMAN, WILLIAMS, and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SILBERMAN.
Dissenting Opinion filed by Circuit Judge STEPHEN F. WILLIAMS.
SILBERMAN, Circuit Judge:
The seven regional Bell Operating Companies (BOCs or Companies) and the United States appeal from the district court’s denial of a waiver of the AT & T consent decree to permit centralized provision of the “signaling” component of long distance telephone calls. The appellants maintain that their motion for a waiver should not be evaluated under the standard set forth in section VIII(C) of the decree — whether the proposal presents no substantial 'possibility of impeding competition — but rather under section VII and the more permissive test for unopposed decree modifications that we applied to the information services portion of the Triennial Review case: whether the requested waiver would be certain to lessen competition. See United States v. Western Elec. Co., 900 F.2d 283, 308 (D.C.Cir.) (Triennial Review Opinion ), cert. denied, — U.S. -, 111 S.Ct. 283, 112 L.Ed.2d 238 (1990).
We think that the section VIII(C) standard applies and that the BOCs failed to demonstrate • that their proposal satisfied that standard. We therefore affirm the judgment of the district court.
I.
The 1982 consent decree settled the government’s antitrust suit against the “Bell System” by first separating the BOCs and their monopolies over local telephone (“exchange”) service from AT & T and its more competitive long distance (“interexchange”) and equipment manufacturing businesses and then — with section II(D)’s “line-of-business” restrictions — prohibiting the BOCs from reentering those and other competitive markets. See generally United States v. American Tel. & Tel. Co., 552 F.Supp. 131 (D.D.C.1982) (Decree Opinion), aff'd mem. sub nom. Maryland v. United States, 460 U.S. 1001, 103 S.Ct. 1240, 75 L.Ed.2d 472 (1983); United States v. Western Elec. Co., 569 F.Supp. 1057 (D.D.C.) (Reorganization Opinion), aff'd mem. sub nom. California v. United States, 464 U.S. 1013, 104 S.Ct. 542, 78 L.Ed.2d 719 (1983).
Section II(D)(1) of the decree, which prohibits the BOCs from providing any “inter-exchange telecommunications services,” was implemented, and the scope of the seven BOCs’ local monopolies defined, by dividing the country geographically into 164 “exchange areas” (better known as “LATAs”). See generally United States v. Western Elec. Co., 569 F.Supp. 990 (D.D.C.1983) (LATA Opinion). Each local operating company (see note 2) encompasses several LATAs but is nevertheless allowed to transmit telecommunications information only between points within a single LATA, providing what is, basically, the traditional local telephone service. When a person in one LATA calls a person in another, the BOC serving the caller’s LATA must transmit the call to an interexchange carrier, such as AT & T or MCI, which then carries the" call on its own network across the LATA boundaries, where it is picked up by the BOC serving the called party’s LATA. (If the caller and called party live in different LATAs within one Company’s region, the same Company both passes and picks up the interexchange call.) Section 11(A) of the decree obliges the BOCs to provide such “exchange access” services to all interexchange carriers, and section IV(F) requires them to do so “at a point or points within [a LATA] designated by [the] interexchange carrier.” These “points of presence” in each LATA are thus the locations where the telecommunications networks of the seven Companies and the numerous interexchange carriers interconnect. See LATA Opinion, 569 F.Supp. at 994 n. 13.
The telephone “call” that a Company-passes to an interexchange carrier consists of two components. One is the actual communication (e.g., the voices) of the calling and called parties. The other is “network control signaling,” which directs the operation of the telecommunications network, telling the switches and circuits how and when to set up and disconnect a call. The signaling indicates that a receiver has been picked up, what digits were dialed, whether the called line is ringing or busy, when the phone is hung up, and so forth. When the decree was approved in 1982, almost all signaling was “in-band,” meaning that the communication and its associated network control signals were transmitted over the same circuit and therefore delivered to the interexchange carrier at the same location — the carrier’s point of presence in each LATA. In-band signaling, however, has significant limitations. Because the signals travel over the same circuit as the callers’ communication, they must precede or follow the communication. In-band signaling is also relatively slow and can carry relatively little information.
In recent years a new signaling technology has emerged. In “out-of-band” or Common Channel Signaling (CCS), the signals are transmitted over a system of switches and circuits separate from that of the communications they control. The CCS and communications networks are not parallel but rather linked only at special CCS switches known as Signal Transfer Points (STPs). Out-of-band signaling is much more efficient than in-band. The CCS network contains only signals, which can be packeted into bursts of information and loaded into a circuit with no gaps; in contrast, a single voice communication takes up an entire circuit, even when the parties are not saying anything. As a result, a single CCS circuit can carry the signaling for over 10,000 calls. Each STP pair, moreover, can be connected to multiple communications switches, allowing a few STP pairs to serve a very large area.
The advantages of CCS are undisputed. Its speed ' markedly reduces call set-up time — the time between dialing on one end and ringing on the other — a benefit of particular value to long distance service. It also frees circuits for communications by not clogging them while callers listen to busy signals or service announcements. And it provides the technological foundation for a variety of new telecommunications services, including some for which the signaling functions as part or all of' the communicated information. For example, CCS enables the telephone number of the calling party to be transmitted to the called party, allowing such caller identification features as distinctive ringing and selective call screening, call waiting, and call forwarding.
The BOCs have begun to deploy CCS networks for use in providing local (intra-LATA) exchange services. The CCS efficiencies and network structure have allowed the Companies to deploy centralized STP pairs, each pair having the capacity to serve several of a Company's LATAs. US WEST’S STP pair in Minneapolis, for example, serves U S WEST switches in six of its LATAs. In 1989, in fact, the BOCs predicted that all 164 LATAs could be served by only 27 STP pairs, although many more pairs have been installed in the last three years. The interexchange carriers have also been deploying CCS networks for use in their interexchange systems. AT & T inherited the Bell System’s nascent CCS network at divestiture, and MCI has also extended signaling facilities to almost every LATA. The smaller carriers have lagged somewhat behind.
This case is brought because the BOCs have not yet installed an STP pair in every LATA and wish to avoid having to do so just to allow the interexchange carriers to connect in every LATA. Instead, they would like authority to provide the carriers access to CCS service only at certain centralized locations. Under their proposal, in other words, there would not be a section IV(B) point of presence — at least for this service — in every LATA. Thé BOCs maintain that meeting the section IV(B) requirement for CCS would be expensive and inefficient for both them and the interexchange carriers, particularly the smaller ones. It is claimed that not all LATAs (especially in less populated areas) have sufficient call volume to cost-justify their own STP and that the smaller carriers also could not afford construction of a CCS link to an STP in every LATA. AT & T and MCI, on the other hand, with significant investment in CCS systems more extensive than their smaller competitors, want interconnections in every LATA so as to benefit from those investments.
In February 1989 US WEST filed a motion in the district court requesting a waiver “of the Decree” to allow centralized signaling interfaces. (Under its proposal, the communications component of interexchange calls would still be provided at the point of presence in each LATA, as would in-band signaling if the carrier so requested.) US WEST purported to act “pursuant to section VII of the Decree,” a provision that authorizes the district court to modify the decree upon application of any party. Section VII does not include any criterion for judging proposed changes, so motions under it are presumed to be governed by the appropriate common law standard. See Triennial Review Opinion, 900 F.2d at 305-07. Changes uncontested by any party to the decree are granted if - “within the reaches of the public interest,” id. at 306 (quotation marks omitted) — that is, unless they are “certain to lessen competition,” id. at 308.
The positions of the decree parties in this case were divided. The other six BOCs supported US WEST’S motion and filed similar motions of their own. The Department of Justice (DOJ) told the Companies to file directly in the district court, claiming that the motions did not involve a modification of the line-of-business provisions and so the DOJ pre-screening procedure, see United States v. Western Elec. Co., 592 F.Supp. 846, 873-74 (D.D.C.1984), appeal dismissed, 777 F.2d 23 (D.C.Cir.1985), was inapplicable. The DOJ then filed a “memorandum” supporting the CCS waiver request.
However, the remaining party to the decree, AT & T, opposed the Companies’ motions, arguing that section IV(F) of the decree expressly obliges the Companies to provide access to network control signaling in every LATA and that the centralization of signaling would allow the BOCs to transmit telecommunications information— the signals — across LATA boundaries in violation of the section II(D)(1) interex-change services ban. AT & T argued that the proposal should therefore be evaluated not under section VII but under the decree’s other provision for modification, section VIII(C). That section was added to the decree to establish an explicit standard governing a particularly important type of modification:, contested changes in the decree’s core line-of-business restrictions. See Triennial Review Opinion, 900 F.2d at 291. Section VIII(C) requires a BOC seeking to waive or remove a section 11(D) restriction to demonstrate that “there is no substantial possibility that it could use its monopoly power [in the local exchange market] to impede competition in the market it seeks to .enter.” The Companies’ blanket, nationwide waiver proposal, AT & T asserted, could not satisfy that test, and the BOCs were unwilling to limit their request to transitional.waivers for the particular LATAs for which a specific showing of low call volume and inefficiency of STP and CCS link installation might be made. MCI, intervening, essentially joined AT & T in these arguments.
The district court, shortly after our Triennial Review Opinion issued, held that the waiver proposal did not satisfy the section VIII(C) test. See United States v. Western Elec. Co., 131 F.R.D. 647, 650-52 (D.D.C.1990) (Waiver Opinion), reconsideration denied, Civ. No. 82-0192 [1990 WL 139788, 1990 U.S.Dist. LEXIS 12153] (D.D.C. Sept. 6, 1990) (Reconsideration Opinion). The BOCs and the Department of Justice appeal.
II.
The dispute between the parties has two main facets. The Companies and the Justice Department contend that the waiver request does not substantially implicate the decree’s line-of-business restrictions and therefore that the standard to determine whether it should be granted is not the potentially demanding section VIII(C) test but- rathér the more relaxed public interest test embodied in section VII. Alternatively, the appellants maintain that the applicability of section VIII(C) turns on the position of the DOJ — the plaintiff and “Prime Mover” in the antitrust ease underlying the decree. Even if section VIII(C) would apply had the government contested the CCS waiver, the argument goes, section VII and the public interest test govern here because the DOJ does support the proposal. AT & T’s opposition to a modification of a line-óf-business restriction, the appellants claim, has no more significance than that of other, non-party interexchange carriers.
The first argument is based on the notion that the centralization of signaling interfaces involves primarily not an entry into the interexchange services' market prohibited by section II(D)(1) but rather a redefinition of the Companies’ obligation under section IV(F) to provide network control signaling in each LATA. The appellants assert that a small adjustment in the definition of the BOCs’ exchange access monopoly is distinguishable from an “entry” into a new and competitive line of business, even though the CCS waiver might “affect” the interexchange market. We think that is a distinction without a difference. By that logic, the decree’s most sensitive restriction placed on the Companies might be eroded merely by redefining the decree’s terms. The Companies could, for example, just as well move to redefine “interexchange telecommunications” as transmission of information from one Company’s region to another’s, rather than from one LATA to another, vastly expanding the Companies’ monopolies. It is therefore plain to us that the CCS waiver would not merely change the details of existing exchange access service, but would allow the BOCs to expand their monopolies over exchange access into a slice of the competitive interexchange services market — maybe a narrow slice, involving (for now) only the transmission of traditional network control signaling between the LATAs in each Company’s region, but a slice nevertheless. Therefore, a modification that requires a change in a line-of-business restriction is, if contested, governed by the section VIII(C) test.
The more serious argument, that the relaxed section VII public interest standard governs waivers supported by the DOJ whether or not opposed by AT & T— i.e., if the DOJ approves a waiver, it is not “contested” — is largely a product of a footnote in our Triennial Review Opinion. See 900 F.2d at 294 n. 12. We affirmed, in that case, the district court’s refusal to lift the decree’s ban on the BOCs’ manufacturing of telephone equipment, see id. at 301-04, but reversed a similar refusal to allow the Companies to provide information services, see id. at 305-09. We drew a distinction between proposed modifications of the line-of-business restrictions that were unopposed by the other two parties to the decree (the government and AT & T), and waivers contested by either or both of them. The latter were governed by the section VIII(C) standard, whereas uncontested proposals were to be judged by the more lenient “within the reaches of the public interest” standard. See id. at 305-07.
We also noted that the decree contemplated that only the Companies could petition under section VIII(C) for modification of the line-of-business restrictions. See id. at 294-95. Therefore, if the DOJ wanted an alteration of those restrictions it would necessarily proceed under section VII, the provision authorizing any party to seek decree modifications. See id. at 294. We then added a footnote raising a question as to what standard would apply to such a motion:
The Government opposed the modification sought in Swift, and therefore it is not at all clear to us that the stringent, so-called “unforeseen conditions” test of Swift would apply to motions brought by the DOJ under section VII. Since the DOJ is, as plaintiff, the “Prime Mover” of this case, it may well be that modifications it seeks should be evaluated under a standard somewhat more akin to the “public interest” test of the Tunney Act. Still, it is true that the line of business restrictions were part of what AT & T bargained for in the original decree, therefore suggesting that the modification requests that AT & T opposes should perhaps be viewed differently from those that all the parties agree to. We need not pass on this issue here since the DOJ brought no motion under section VII.
Id. at 294 n. 12 (emphasis in original deleted; new emphasis added).
Appellants, relying exclusively on the italicized portion of the footnote, assert that by asking the question of what standard applied, we answered it — that we have strongly implied that the government’s support for a waiver causes the public interest test to govern. That is a strained interpretation at best, since we have clearly indicated that if AT & T opposes a line-of-business modification, then DOJ’s support, in whatever1 form, does not relieve the Companies from meeting the section VIII(C) test. Thus, in the Triennial Review Opinion itself we treated the BOCs’ motion to remove the manufacturing line-of-business restriction as contested and subject to the section VIII(C) standard notwithstanding DOJ’s support for the proposal. See id. at 301. And in the subsequent NYNEX Procurement Opinion (United States v. Western Elec. Co., 907 F.2d 1205 (D.C.Cir.1990)), where it was the Justice Department that formally moved for a waiver of a section 11(D) restriction, we said that the Department “bears the same burden that [the BOC] would” and remanded for the district court to determine whether AT & T had properly opposed the waiver. See id. at 1207-09 & n. 3.
Appellants nevertheless, and for the first time in this' series of cases, squarely challenge the proposition that AT & T’s opposition to a proposed change should have such important consequences as to trigger the more stringent section VIII(C) standard. They argue that AT & T’s “rights” under the decree are unaffected by changes in the line-of-business restrictions on the BOCs, and therefore that AT & T’s “legal or equitable status” in relation to the CCS waiver should be thought no different than any other interexchange carrier’s — i.e., not significant enough to affect the standard by which we evaluate the proposal. See Triennial Review Opinion, 900 F.2d at 292, 305-07 (opposition by non-party inter-venors does not make the information services modification “contested” and subject to the section VIII(C) test). Appellants point in particular to the Justice Department’s role as the “principal proponent” of the line-of-business restrictions, Decree Opinion, 552 F.Supp. at 186 n. 227, and to AT & T’s' professed neutrality or opposition to those restrictions during the decree negotiations. As those provisions were not part of the “bargain” AT & T sought, we are told, AT & T’s opposition to their, alteration now should be deemed legally inconsequential.
It is, however, those line-of-business restrictions that prevent the Companies from a full-bore entry into the interexchange market. It seems more than passing strange to suggest that the decree should be interpreted so as not to allow AT & T to contest, under section VIII(C), the BOCs’ complete entry into the interexchange market. After all, the AT & T lawsuit was based on the premise that a corporation that enjoyed a monopoly on local calls would ineluctably leverage that bottleneck control in the interexchange (long distance) market. See id. at 142, 188-89. The Bell System was for that reason broken up; the local monopolies were taken away from AT & T. (Of course, “AT & T” is a different entity after the decree than it was before.) To claim that AT & T has no interest under the decree in challenging one or more of the Company’s “return” to the interexchange market, there to compete against AT & T with the same sort of local monopoly leverage that caused the government to bring suit against AT & T in the first place, has an ironic, even Kafkaesque, quality. By the appellants’ logic, if the BOCs’ proposed entry into the interex-change market was likely to impede competition (which would violate the section VIII(C) test) but not certain to do so (thus surviving section VII’s public interest test), and if the government did not object, the district judge would be obliged to permit the entry. Are we to believe that AT & T had in 1982, and has today, no interest in effectively objecting to such a proposal?
The dissent responds to our question in the negative. Judge Williams argues that AT' & T has no institutional interest in competition in the interexchange market, and thus to read the decree to allow AT & T to object to any sort of BOC entry into that market — including a complete and full-scale entry — is to sanction a broad “allocation” of telecommunications markets in contradiction to the purpose of the antitrust laws. Dissent at 1243-44. That argument, which has the virtue of boldly confronting the core problem with appellants’ case (even if it is an argument that neither appellants nor the government dare make), is nothing less than an attack on the very premise of the consent decree. AT & T today, after all, has the same economic interest vis-a-vis the BOCs’ effort to gain access to the interexchange market that MCI (the company that first sought to'compete against the Bell System in the interex-change market) had at the time the government’s lawsuit was brought against the Bell System. MCI then, and both AT & T and MCI now, seek to confine the BOCs to that portion of the telecommunications market in which they enjoy a historical natural monopoly.
Certainly there is nothing in the language of the decree that suggests that AT & T should be thought unconcerned with the line-of-business restrictions, so that it should be regarded as not a “real” party with respect to those matters. It is not, as our dissenting colleague puts it, that we “assume[] that just because the Department of Justice and AT & T are parties to the same contract, and both have interests in the line-of-business restrictions (one acting for the public, the other for its shareholders), it follows that they must have identical rights in relation to those restrictions.” Dissent at 1245. To the contrary, section III treats AT & T as a formal party to the entire decree, with specific authority under section VII to demand enforcement of any section of the agreement. Indeed, in a 1987 filing in the district court, the government stated that AT & T “ha[s] the right to seek enforcement [of a line-of-business restriction] ... itself at any time,” citing section VII. Nor have we been shown any precedent applying a variable standard to judge a suggested modification of general language of a decree, depending on which party objects.
Appellants have, nevertheless, combed the multitude of documents filed and hearing transcripts generated during the decree approval proceedings and have found numerous examples of Bell System representatives (who now work for AT & T) professing opposition to the line-of-business restrictions or acceptance of them simply as a step towards an overall settlement. Appel-lees in turn point to some statements demonstrating more affirmative interest in the prohibitions. But what are we to make of these offerings? After all, the Bell System (pre-divestiture AT & T) had been defending itself for decades — and presumably would have continued defending itself - if the settlement negotiations failed — on the ground that vertical integration of telecommunications businesses is efficient and pro-competitive. The Bell System representatives also faced a significant inherent conflict of interest: post-divestiture AT & T, as an interexchange carrier and equipment manufacturer,. would obviously favor a complete prohibition on competition from the powerful local monopolies, while the post-divestiture BOCs would undoubtedly desire no such restrictions. The Bell System’s duty at the time was, of course, to maximize the combined future value of AT & T and the BOCs for its (and soon to be their) shareholders. See United States v. Western Elec. Co., 797 F.2d 1082, 1088 (D.C.Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 698 (1987). Perhaps to satisfy that obligation perfectly was psychologically impossible, but we presume that the negotiators fulfilled their duty and thus that the decree, and especially the section 11(D) prohibitions at its core, represents a balanced amalgamation of benefits to and burdens upon both AT & T and the BOCs. For that reason, we think recourse to the decree’s bargaining history to interpret how those who were negotiating for the unified Bell System saw the benefits and burdens distributed between post-divestiture AT & T and the BOCs is of little use today. Cf. Triennial Review Opinion, 900 F.2d at 293 (decree negotiating history may be useful in other contexts).
The Justice Department, although it does not go so far as our dissenting colleague in challenging the consent decree as an anti-competitive division of the telecommunications industry, does caution that we should not “interpret” the decree to give AT & T a “strong incentive to oppose pro-competitive decree modifications in order to protect itself from the very competition such modifications could promote.” This contention is, as the dissent elaborates, sort of a variation on the antitrust injury doctrine. See, e.g., Cargill, Inc. v. Monfort of Colorado, Inc., 479 U.S. 104, 109-13, 107 S.Ct. 484, 488-91, 93 L.Ed.2d 427 (1986). But if, as the dissent suggests, AT & T should not be thought to have “antitrust standing” to assert its apparent rights under the decree because the BOCs’ entry into the interex-change market would come at AT & T’s expense, Dissent at 1247-48, then it follows that MCI should not have had standing to file suit, see MCI Communications Corp. v. American Tel. & Tel. Co., 708 F.2d 1081 (7th Cir.), cert. denied, 464 U.S. 891, 104 S.Ct. 234, 78 L.Ed.2d 226 (1983), or to complain to the Justice Department, concerning the Bell System’s activities in the interex-change market in the first place. That AT & T is now the largest carrier in the inter-exchange market hardly immunizes it against antitrust injury from new competitors who are monopolists in the local exchange markets. The flaw in our colleague’s reasoning, we respectfully suggest, is that he entirely ignores the potential anti-competitive leverage that the BOCs’ monopoly position in the bottleneck local markets affords their entry into the interexchange markets.
Insofar as the government believes that there are pro-competitive aspects of a BOC’s proposed “reentry” into part or all of the interexchange market, it can aid the BOC in seeking to meet the section VIII(C) test by showing that the proposal will enhance rather than impede competition. The government expresses particular concern that AT & T might somehow use its rights under section VIII(C) to handicap its existing interexchange competitors by making it more difficult for the BOCs to provide services to those competitors in the interexchange market. We note, however, that AT & T’s fiercest competitor, MCI, supports AT & T’s construction of the decree, and that although the BOCs claim that AT & T’s smaller competitors would benefit from both the CCS proposal and their construction of the decree, none of those companies appeared before us. It should be remembered that section VIII(C) does not give AT & T the power to veto truly pro-competitive line-of-business modifications, only to block those changes that are quite possibly, though not certainly, anti-competitive.
In any event, as MCI observes, the question before us is not how we would fashion the decree if we were writing on a clean slate. The decree is not ambiguous; it gives AT & T the right, as a party to the decree, to assert its objection to the BOCs’ proposal and thus to invoke section VIII(C). Until this case, the government never even suggested that the decree could be read otherwise.
We are thus persuaded by AT & T’s argument that the CCS waiver must be judged according to section VIII(C)’s standard, for whenever a modification implicates the line-of-business restrictions and is contested by any of the parties to the decree, the section VIII(C) test governs. Even if we had doubts, however, we think our prior decisions in the Triennial Review and NYNEX Procurement cases would deter us from accepting appellants’ argument. It may be, as the BOCs contend, that the premise we here reaffirm — that AT & T’s opposition makes a line-of-business modification “undeniably ‘contested,’ ” Triennial Review Opinion, 900 F.2d at 292, regardless of the government’s position — was not forcefully argued in those cases. The BOCs did assert to the district court in Triennial that AT & T had no interest under the decree in the line-of-business restrictions. On appeal, the Companies referenced that argument but emphasized the converse point — that AT & T’s acquiescence in the removal of the information services ban left that proposal uncontested (notwithstanding the opposition of other interexchange carriers that were not decree parties). We were, therefore, clearly focused on the significance of AT & T’s position, and but for AT & T’s opposition, we would have reversed and remanded the manufacturing portion of Triennial just as we did the information services portion. Indeed, in discussing the latter proposal, we explained that “[f]or purposes of identifying the proper standard of review, the critical point is that neither AT & T nor the DOJ opposed the ... motion.” Id. at 305 n. 27 (emphasis omitted). And in the NYNEX Procurement Opinion we again viewed AT & T’s position as pivotal, directing the district court on remand to apply the section VIII(C) standard if AT & T had properly contested the (government-supported) waiver. See 907 F.2d at 1209.
The proposition that AT & T’s position on a proposed line-of-business modification can be determinative of whether the section VIII(C) test applies has thus been a linchpin of two of our opinions. Although it is true that we cannot be said to have held that AT & T’s opposition makes a requested modification contested — because the point was not directly controverted— we do not think that the Companies can opportunistically, after so much litigation involving the same parties, switch their position and challenge that proposition at this late date. Cf. Northwestern Ind. Tele. Co. v. FCC, 872 F.2d 465, 470 (D.C.Cir.1989), cert. denied, 493 U.S. 1035, 110 S.Ct. 757, 107 L.Ed.2d 773 (1990); Laffey v. Northwest Airlines, Inc., 740 F.2d 1071, 1089-90 (D.C.Cir.1984) (per curiam).
III.
The appellants’ submissions to the district court were not clearly focused on the section VIII(c) test — that is, on demonstrating that the CCS waiver posed no substantial possibility of impeding competition in the interexchange services market. Nor are their appellate briefs primarily directed to this point. We are rather disappointed, particularly in light of our remarks in the Triennial Review Opinion as to the importance of the DOJ’s predictive economic analysis, see 900 F.2d at 297-98; accord NYNEX Procurement Opinion, 907 F.2d at 1209, that the Department’s market analysis in this case was so perfunctory. See Reconsideration Opinion, Mem. at 2. Based on the existing record, we do not see how the district judge’s conclusion that the Companies’ proposed waiver does not meet the section VIII(C) test, see Waiver Opinion, 131 F.R.D. at 652, can be thought erroneous. See Triennial Review Opinion, 900 F.2d at 293-94 (discussing standard of review in section VIII(C) cases).
In the Triennial Review Opinion, we determined that the BOCs cannot “impede competition,” as that phrase is used in section VIII(C), unless they will possess market power—the ability to restrict output and/or raise , prices—in the market they seek to enter via the proposed decree modification. See 900 F.2d at 296. Although neither the parties nor the district court performed a detailed market definition, it appears, as we have noted, see supra note 11, that the CCS waiver would allow the BOCs to enter the interexchange services market. The district court determined that by transmitting network control signals across LATA boundaries, the BOCs would “adversely affect” a “vital” aspect of existing interexchange competition: interexchange carriers can, and apparently do, compete on the basis of being able to provide over the widest area the superior “network architecture, improved billing, new and unique services, faster call setup,” and other advantages of CCS signaling. Waiver Opinion, 131 F.R.D. at 650; see also Reconsideration Opinion, Mem. at 2. The submissions of the DOJ and Ameritech (in a filing signed by the Companies’ appellate counsel) also conceded that signaling can be used in differentiating interexchange service.
The BOCs contend, however, that they merely want to offer an existing exchange access service — the provision of network control signaling — in a very similar (same content and ultimate destination, different interconnection point) but much more efficient manner. This would not “impede competition” in any meaningful way, they claim, because they would still lack market power in the interexchange services market as a whole. There would be no control over output, it is asserted, because the decree requires the Companies to provide signaling with every interexchange call, however many there are. As for' price, appellants suggest that the cost of interex-change calls would in fact decline because the Companies would not be required to install and operate expensive and unnecessary STP pairs in every LATA (and will pass on the savings as lower access charges), nor would interexchange carriers have to invest in CCS links to every LATA. Appellees and the district court simply failed to confront, appellants argue, this absence of market power. Section VIII(C), however, places the burden of proof on the BOCs, see NYNEX Procurement Opinion, 907 F.2d at 1208; Triennial Review Opinion, 900 F.2d at 304, and we think that they (even with the DOJ’s assistance) have not carried that burden.
In our previous cases, the BOCs sought to enter all or part of a section 11(D) market in order to compete with the companies already in that market. See, e.g., NYNEX Procurement Opinion, 907 F.2d at 1209 (observing that NYNEX wanted to compete with the thousands of firms already in the telecommunications equipment distribution market). Here, by contrast, the BOCs hope to take a piece of the interexchange market completely out of competition. If the CCS waiver is granted, the Companies’ putative “competitors” — the interexchange carriers that currently provide inter-LATA signaling services — will be able to obtain CCS signaling only at centralized points, at whatever access charge the Companies demand (subject, as are the Companies’ other monopoly services, to government regulation). And the slice of interexchange competition foreclosed, even if narrow today, could prove difficult to confine. See Waiver Opinion, 131 F.R.D. at 651; see also Triennial Review Opinion, 900 F.2d at 309 n. 29 (noting concern over “the practical difficulty of enforcing a merely partial repeal of [a section II(D)] ban” (emphasis in original)).
Appellants claim that any reduction in interexchange services competition will be insignificant because many small interex-change carriers cannot afford to install CCS links to every LATA, leaving only AT & T and perhaps a couple of other carriers offering CCS services to those areas— which is hardly the basis for vigorous competition. To the extent that appellants contend that the decree should be interpreted to aid the minnows against the trout, such as AT & T and MCI (effectively devaluing the investments those companies have made in extending their CCS networks to more' LATAs), they are simply wrong. See Waiver Opinion, 131 F.R.D. at 652 (citing Triennial Review Opinion, 900 F.2d at 296). To the extent that appellants argue that without centralized STPs no competition over interexchange CCS signaling will exist in some LATAs, their position is undercut by their insistence on a blanket, nationwide waiver rather than transitional waivers for only those particular LATAs— waivers that AT & T has stated it would not oppose and that we too would be likely to view sympathetically, see Gateway Opinion, 907 F.2d at 164-65; see also LATA Opinion, 569 F.Supp. at 996 n. 27, 1004 n. 62 (noting that LATAs were intended to be large enough to cost-justify service by several interexchange carriers and not just AT & T).
We are quite skeptical, moreover, about the principal benefit claimed by the appellants — the costs that the BOCs could avoid if the CCS waiver were granted — because even if the savings were large, they might be entirely irrelevant to the section VIII(C) analysis. Savings passed on to the Companies’ local ratepayers (or shareholders) would not provide any competitive benefit to the market the Companies seek to enter. See Triennial Review Opinion, 900 F.2d at 296. Only if the savings were passed on to the interexchange carriers (and then to their customers) would prices for interexchange calls be affected. Appellants have not demonstrated that any savings from the CCS waiver would necessarily (or even likely) result in lower (or even stable) access charges.
* sk * * * *
Perhaps a stronger case can be made than that which the appellants mounted, but on this record the judgment of the district court is affirmed.
It is so ordered.
. Because the Companies and the United States each seek reversal of the judgment below, we refer to them together as "appellants,” although the government is technically an appellee.
. The seven BOCs—Ameritech, Bell Atlantic Corp., BellSouth Corp., NYNEX Corp., Pacific Telesis Group, Southwestern Bell Corp., and U S WEST, Inc.—are independent Regional Holding Companies, each controlling several of the Bell System’s 22 local operating companies. The Companies are also known as the “RBOCs," "RHCs,” or "Baby Bells.”
. The full text of the consent decree, formally entitled the Modification of Final Judgment, appears in the Decree Opinion. See 552 F.Supp. at 226-32.
. Section IV(F) states, in relevant part:
"Exchange access" means the provision of exchange services for the purpose of originating or terminating interexchange telecommunications. Exchange access services include any activity or function performed by a BOC in connection with the origination or termination of interexchange telecommunications, including but not limited to, the provision of network control signalling_ Such services shall be provided by facilities in an exchange area for the transmission, switching, or routing, within the exchange area, of interex-change traffic originating or terminating within the exchange area, and shall include switching traffic within the exchange area above the end office and delivery and receipt of such traffic at a point or points within an exchange area designated by an interexchange carrier for the connection of its facilities with those of the-BOC.
. That the decree permits the Companies to use centralized STP pairs to support their own intra-LATA services is not in dispute. STPs are deployed in pairs to provide greater reliability. The paired STPs need not be in the same location.
. Section VII states that:
Jurisdiction is retained by this Court for the purpose of enabling any of the parties to this [decree], or, after the reorganization specified in section I, a BOC to apply to this Court at any time for such further orders or directions as may be necessary or appropriate for the construction or carrying out of this [decree], for the modification of any of the provisions hereof, for the enforcement of compliance herewith, and for the punishment of any violation hereof.
. By contrast, changes opposed -by a decree party—at least when that party is the United States, see Triennial Review Opinion, 900 F.2d at 294 n. 12—may be denied unless there is '“a clear showing of grievous wrong evoked by new and unforeseen conditions.’ ” Id. at 305 (quoting United States v. Swift & Co., 286 U.S. 106, 119, 52 S.Ct. 460, 464, 76 L.Ed. 999 (1932)). But cf. Rufo v. Inmates of Suffolk County Jail, — U.S. -, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992) (suggesting a more lenient reading of Swift).
. The BOCs also sought a declaratory judgment that the decree allows them to use centralized CCS interfaces. The government opposed that portion of the motions, the district court flatly denied it, and the Companies have not pursued it on appeal.
. Section VIII(C) states in full:
The restrictions imposed upon the separated BOCs by virtue of section 11(D) shall be removed upon a showing by the petitioning BOC that there is no substantial possibility that it could use its monopoly power to impede competition in the market it seeks to enter.
. Section VIII(C) was added because of a concern that otherwise contested line-of-business modifications would be governed by the stringent Swift "unforeseen conditions” test, see supra note 7, preventing pro-competitive changes in response to new but foreseeable market conditions. See Triennial Review Opinion, 900 F.2d at 291; Decree Opinion, 552 F.Supp. at 194-95 & n. 266.
. At oral argument, counsel for the BOCs did not press the claim that centralization of - signaling interfaces would not violate the section II(D)(1) restriction at all because'the Companies would not transmit "end user communications” across LATA boundaries. Indeed, the Companies propose to transmit signaling information between points in different LATAs for a price (the access charge), and that would appear to make the proposed service “interexcharige telecommunications” and "telecommunications service” as defined in sections IV(K) and (P) of the decree. See United States v. Western Elec. Co., 907 F.2d 160, 163-64 (D.C.Cir.1990) (Gateway Opinion) (discussing interpretation of section II(D)(1)), cert. denied, — U.S. -, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991); see also Reconsideration Opinion, Mem. at 1-2 (“[T]he transport of signaling messages over LATA boundaries is an interexchange function_”); Waiver Opinion, 131 F.R.D. at 650 (same).
. Section III provides in relevant part (with emphasis added):
The provisions of this [decree] applicable to each defendant and each BOC, shall be binding upon said defendants and BOCs, their affiliates, successors and assigns,....
The dissent makes the interesting point that under our reading of the decree, a BOC would be able to contest another BOCs’ effort to relax a line-of-business restriction. See Dissent at 5. That may seem an unlikely occurrence today, but, in any event, we see no reason why that would necessarily be thought undesirable. We will await a concrete case, however, to say any more on that scenario.
. Section VIII(G), which Judge Williams reads as establishing a "clear entitlement ]” for AT & T to move for judicial resolution, Dissent at 1244, speaks of actions by "a party or a BOC"— virtually mirroring the "any of the parties ... [or] a BOC” language of section VII.
. Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 61 S.Ct. 666, 85 L.Ed. 975 (1941), upon which the BOCs rely, seems if anything to cut against their position. There the Supreme Court reversed in relevant part a district court opinion approving a proposed antitrust decree modification (apparently under the public interest test; the decree contained no provision like section VIII(C)) with instructions to "adjust the right which belongs to Panhandle with full regard to that public interest which underlay the original suit.” Id. at 509, 61 S.Ct. at 669 (emphasis added). Panhandle’s opposition to the change was not, therefore, considered irrelevant — as appellants would have us consider AT & T’s — even though Panhandle was merely an intervenor whose rights under the decree were expressly limited.
. Even were we to determine that AT & T must assert a cognizable and unique interest (vis-a-vis other interexchange carriers) in the CCS waiver in order to be entitled to put the BOCs to their proof under section VIII(C), it appears that AT & T would qualify. Pursuant to the reorganization plan implementing the decree, the Bell System’s widespread signaling facilities were allocated to AT & T; these assets would be devalued — and therefore AT & T’s "rights," narrowly expressed, would be infringed — if the BOCs could provide signaling on a centralized basis so that other interexchange carriers were spared the costs of investing in such far-flung facilities. As we have indicated, however, we do not think such a particular examination of AT & T’s rights and interests is called for under the decree in order to conclude that AT & T has every right to force a section VIII(C) examination of the CCS proposal.
. Of course, in this case, ás we discuss further below, the BOCs are not just entering a competitive market, they are expanding the boundaries of their monopolies to render a portion of the interexchange market apparently non-competitive. See infra page 1242.
. It is therefore again unnecessary to decide what standard would govern a contested modification proposal, filed under section VII and either brought by or supported by the government, that does not implicate section II(D). See Triennial Review Opinion, 900 F.2d at 294 n. 12.
. We do not foreclose reexamination of the market definition in future cases, however. It may be that there are relevant submarkets or a developing signaling market, although none has been identified thus far.
. Access charge regulation is also relevant to the concern that a BOC foothold in the interex-change market would create an incentive for exchange access discrimination against certain interexchange carriers. See Waiver Opinion, 131 F.R.D. at 651. The uncertain effectiveness of existing regulation was a principal reason for our denying the Companies’ full-fledged entry into the interexchange. services market in the Triennial Review case. See 900 F.2d at 300-01.
. The district court discounted the significance of the savings. See Waiver Opinion, 131 F.R.D. at 650 & n. 7. And intervening developments appear to support the view that installing STP pairs in every LATA is not cost-prohibitive (if perhaps not most cost-efficient). These include the Companies’ ongoing deployment of additional STP pairs and the FCC’s recent order effectively requiring the Companies to provide CCS interconnection in virtually every LATA by April 1993 to allow “portability” of 800 numbers, see Provision of Access for 800 Service (CC Docket No. 86-10), FCC 91-249 (released Sept. 4, 1991).
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_appel1_1_2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
ORIENTAL IMPORTS AND EXPORTS, INC., a Florida corporation, Plaintiff-Appellee, Cross-Appellant, v. MADURO & CURIEL’S BANK, N.V. a foreign banking corporation, Defendant-Appellant, Cross-Appellee.
No. 81-5717.
United States Court of Appeals, Eleventh Circuit.
March 28, 1983.
Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs, Nancy Schleifer, Miami, Fla., for defendant-appellant, cross-appellee.
Arnold R. Ginsberg, Miami, Fla., for plaintiff-appellee, cross-appellant.
Before RONEY and JOHNSON, Circuit Judges, and DYER, Senior Circuit Judge.
RONEY, Circuit Judge:
In a case of first impression in this Court, we hold that a foreign banking corporation engaged in the normal activity with resident correspondent banks to facilitate the movement of money is not subject to long-arm jurisdiction in Florida, even though it makes certain passive investments in federal funds. We therefore reverse a money judgment against it.
This is a diversity case. Plaintiff Oriental Imports and Exports, a Florida corporation, sold garments to a purchaser in the Netherlands Antilles. When it did not receive payment for the goods, it sued Madu-ro & Curiel’s Bank, a Netherlands Antilles bank which maintains correspondent bank accounts in Miami, Florida, on the ground that Maduro & Curiel’s Bank wrongfully delivered title documents to the purchaser without payment. Finding jurisdiction under the long-arm statute, the district court held the defendant negligent in the handling of this commercial collection item and rendered judgment for $21,104.24. The court denied punitive damages on the ground that the plaintiff had not demonstrated malicious or wanton conduct. The bank appeals the findings of jurisdiction and negligence. The plaintiff cross-appeals the denial of punitive damages. Since the district court was without in personam jurisdiction, we do not reach the merits of the negligence issue or the cross-appeal.
The facts that control the jurisdictional issue are not in dispute. Maduro & Curiel’s Bank is a Netherlands Antilles bank which acts as a correspondent bank for various Miami banks. It received sale documents from Flagship Bank of Miami, along with a sight draft and an airway bill for goods sold by plaintiff. Prior to that, the president of Oriental Imports had gone to Curacao in the Netherlands Antilles and obtained an order from Jose Faerman & Company, a Netherlands Antilles corporation. Oriental Imports had then delivered certain sale documents (invoices, packing lists and a letter of authority) to Flagship Bank which forwarded them to defendant for delivery to the purchaser Jose Faerman & Company upon receipt of payment for the goods. If the transaction had gone as planned, the customer would have made payment to Ma-duro & Curiel’s Bank, which would have notified its correspondent bank in Miami. The Miami bank would have then debited Maduro & Curiel’s account and credited the seller’s account. Although some facts are disputed, it is clear that Jose Faerman & Company eventually received possession of the goods, and that no payment was ever made to Oriental Imports and Exports.
The law is clear that a federal court in a diversity action may exercise personal jurisdiction over a nonresident defendant only to the extent permitted by the long-arm statute of the forum state. Rubaii v. Lakewood Pipe of Texas, Inc., 695 F.2d 541 (11th Cir.1983); Gold Kist, Inc. v. Baskin-Robbins Ice Cream Co., 623 F.2d 375, 377 (5th Cir.1980). Because the reach of the Florida long-arm statute is a question of Florida state law, federal courts are required to construe it as would the Florida Supreme Court. See Moore v. Lindsey, 662 F.2d 354, 357-58 (5th Cir. Unit B 1981); Jetco Electronic Industries, Inc. v. Gardiner, 473 F.2d 1228, 1232 (5th Cir.1973). The Florida long-arm statute is strictly construed, and the person invoking jurisdiction under it has the burden of proving facts which clearly justify the use of this method of service of process. Bank of Wessington v. Winters Government Securities Corporation, 361 So.2d 757, 759 (Fla.Dist.Ct.App.1978); Elmex Corp. v. Atlantic Federal Savings and Loan Association, 325 So.2d 58, 61 (Fla.Dist.Ct.App.1976).
Since the defendant has no office or agency in this state, the key portions of the Florida long-arm statute require that the defendant “engage in” or “carry on” a business or business venture in the state, commit a tortious act in the state, or engage in solicitation or service activities within the state.
Plaintiff argues that first, the normal activities of a foreign correspondent bank constitute doing business in Florida and second, in addition to such activities, the bank here had investments in the United States which either alone, or coupled with its correspondent bank activities, constitute doing business and third, in any event, the defendant committed a tort within the state and is subject to jurisdiction under that section of the Florida statute.
We first examine whether the bank was “doing business” in Florida through its correspondent bank accounts in Miami. Here we are focusing on the normal activities that would probably be carried on by any correspondent bank. A representative of Citizens & Southern International Bank testified that correspondent accounts facilitate the transfer of funds incidental to the conduct of international trade between citizens of different countries. Maduro & Curiel’s Bank has its principal place of business in Curacao. It has no offices, agents, personnel or property in Florida. It is not licensed to do business in Florida, and has no agent to accept service of process in Florida. It maintains correspondent bank accounts with Miami banks, including Southeast First National Bank and Citizens & Southern International Bank of Miami. Plaintiff introduced evidence that Maduro & Curiel’s Bank had passed at least $150,-000,000 through these accounts in deposits and withdrawals. This was essentially money of its customers. The transactions with the Miami banks were handled by mail or courier.
Although there appears to be no Florida authority directly on point, courts in other jurisdictions have held that the maintenance of a correspondent banking relationship alone is not sufficient to confer personal jurisdiction over a foreign bank. See Faravelli v. Bankers Trust Co., 85 A.D.2d 335, 447 N.Y.S.2d 962, 964-65 (N.Y.App.Div.1982); Nemetsky v. Banque de Developpement de la Republique du Niger, 64 A.D.2d 694, 407 N.Y.S.2d 556 (N.Y.App.Div.1978), aff’d, 48 N.Y.2d 962, 425 N.Y.S.2d 277, 401 N.E.2d 388 (N.Y.1979); Amigo Foods Corp. v. Marine Midland Bank—New York, 39 N.Y.2d 391, 384 N.Y.S.2d 124, 127, 348 N.E.2d 581 (N.Y.1976). In E.I.C., Inc. v. Bank of Virginia, 108 Cal.App.3d 148, 166 Cal.Rptr. 317 (Cal.App.1980), the California court held that it lacked jurisdiction over a Virginia bank which maintained balances and had a correspondent banking relationship with two California banks. Although the California statute allowed the court to “exercise jurisdiction on any basis not inconsistent with the Constitution of California or of the United States,” the court concluded that the correspondent bank relationship did not provide the requisite “minimum contacts” with California to satisfy the due process clause:
[M]ost banks of any size maintain correspondents in all major regions of the country and in selected areas overseas. It would be a distortion of due process to hold that a state acquires general personal jurisdiction over an out-of-state bank (as opposed to in rem jurisdiction) merely because the bank has a correspondent relationship with a bank within the state and a balance on deposit with its correspondent bank.
166 Cal.Rptr. at 320, citing Bank of Ameri-ca v. Whitney National Bank, 261 U.S. 171, 173, 43 S.Ct. 311, 312, 67 L.Ed. 594 (1922). In Whitney, decided before the “minimum contacts” standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and without reference to a long-arm statute, the Supreme Court held that a Louisiana bank which maintained six correspondent bank accounts in New York had no “presence” in New York for jurisdictional purposes, and therefore could not be sued in New York.
A Florida case suggests the fact that Miami banks were holding the funds of Maduro & Curiel’s Bank in Florida would not be sufficient for long-arm jurisdiction. In April Industries, Inc. v. Levy, 411 So.2d 303 (Fla.Dist.Ct.App.1982), parties outside of Florida entered into a stock purchase agreement which included an escrow agreement whereby a Miami attorney would hold certain notes in Florida. When the escrow-ee was sued in Florida, the court held that the presence of the corporation’s personal property in Florida pursuant to an escrow agreement entered outside of Florida, and the control of that property by a Florida escrowee, were insufficient contacts to find that the corporation conducted business or had an agency in Florida for the purposes of the long-arm statute.
The reasoning of these cases seems sound. We are persuaded that the Florida long-arm statute, which confers jurisdiction over a nonresident defendant who “operates, conducts, engages in or carries on a business” in Florida, would not be interpreted to permit personal jurisdiction solely on the basis of foreign bank’s correspondent relationship with a Florida bank.
The fact that Maduro & Curiel’s Bank maintained large balances in its Miami accounts, or transferred large amounts of money through these accounts, does not alter this analysis. The inquiry whether a nonresident is conducting business in Florida concerns the nature, not the extent, of the nonresident’s activities in Florida. McLean v. Church of Scientology, 538 F.Supp. 545, 549 (M.D.Fla.1982). The requirement that the defendant have a connection with the forum state substantial enough to make the exercise of jurisdiction reasonable cannot be satisfied by the dollar amount of the transaction, but depends on the facts and circumstances of the case. Elmex Corp. v. Atlantic Federal Savings and Loan Association, 325 So.2d 58, 63 n. 7 (Fla.Dist.Ct.App.1976).
Plaintiff argues that more than an ordinary correspondent banking relationship existed in this case. Focusing upon the agreement between Maduro & Curiel’s Bank and Citizens & Southern International Bank of Miami, which required Citizens & Southern to invest any funds in Maduro & Curiel’s account in excess of $50,000 in the federal funds market, plaintiff argues that by investing in federal funds through a Miami correspondent, Maduro & Curiel’s Bank was conducting business in Florida. A representative of Citizens & Southern International Bank testified that the bank made this opportunity to have excess funds invested available to all of its correspondents.
The cases in which Florida courts have interpreted the long-arm statute do not support the theory that a nonresident’s passive investment of money in Florida provides a basis for jurisdiction. In Klein v. Mega Trading, Ltd., 416 So.2d 866 (Fla.Dist.Ct.App.1982), a New Jersey resident purchased an interest in a Florida limited partnership. Noting that this investment was analogous to the purchase of corporate stock, the court held that the nonresident’s investment was not sufficient contact with Florida to satisfy the long-arm statute. In Compuguide Corp. v. Sachs, 259 So.2d 513 (Fla.Dist.Ct.App.1972), a nonresident corporation’s contract, which was neither entered into nor executed in Florida, to purchase all the stock of a Florida corporation did not constitute doing business in Florida.
MacMillan-Bloedel v. Canada, 391 So.2d 749 (Fla.Dist.Ct.App.1980), held that a nonresident corporation was not “doing business” for jurisdictional purposes even though its wholly owned subsidiary was engaged in business in Florida, because the nonresident corporation was not shown to have “control” over the subsidiary selling its products in Florida. In Volkswagenwerk Atkiengelselischaft v. McCurdy, 340 So.2d 544 (Fla.Dist.Ct.App.1976), cert. denied, 348 So.2d 950 (Fla.1977), the court determined that it lacked jurisdiction over a German corporation which had a wholly owned subsidiary engaged in business in Florida. “Only where there is a showing by plaintiff that the parent corporation exercised such a degree of control over its subsidiary that the activities of the subsidiary were in fact the activities of the parent within the state is substituted service of process permitted.” 340 So.2d at 546.
Although these cases involved Fla. Stat.Ann. § 48.181, the substituted service of process statute which was in effect before the current long-arm statute was enacted, decisions concerning what constituted doing business under Section 48.181 apply to Section 48.193(l)(a). Orange Motors, Inc. v. Reuben H. Donnelly Corp., 415 So.2d 892, 895 n. 3 (Fla.Dist.Ct.App.1982). Under earlier Florida statutes, investment by a nonresident was not a sufficient basis for jurisdiction. See Uible v. Landstreet, 392 F.2d 467 (5th Cir.1968) (no jurisdiction over nonresidents who held stock in Florida corporation as investment for profit); Crockin v. Boston Store, 137 Fla. 853, 188 So. 853, 856 (Fla.1939) (nonresident corporation was not doing business in Florida by owning a controlling interest in a Florida corporation). These cases indicate that Maduro & Curiel’s Bank’s investment in the federal funds market through its agreement with a Miami bank would not suffice for jurisdiction under the Florida long-arm statute.
Neither do Maduro & Curiel’s Bank’s activities in Florida considered collectively show a general course of business activity in the state. Compare Compuguide v. Sachs, 259 So.2d 513 (Fla.Dist.Ct.App.1972) (contract to purchase all of Florida corporation’s stock did not constitute business venture sufficient for jurisdiction) with Anson v. Lemperuer, 390 So.2d 478 (Fla.Dist.Ct.App.1980) (jurisdiction where express object of partnership was to acquire land in Florida and develop condominium units). Instead, the activities show merely a correspondent banking relationship coupled with a passive investment in federal funds. We conclude that these activities of Maduro & Curiel’s Bank do not amount to conducting a business in Florida sufficient for the assertion of long-arm jurisdiction under Fla. Stat.Ann. § 48.193(lXa).
Although Florida courts have occasionally found contacts with banks in Florida to be an adequate basis for jurisdiction, those eases involved nonresident defendants who undertook specific contractual obligations in Florida. In Horace v. American National Bank and Trust Co., 251 So.2d 33 (Fla.Dist.Ct.App.1971), Horace and two others, purchasing 60% of the stock of a Florida corporation, personally appeared at the bank seeking to guarantee the present and future obligations of the corporation. The same day, they opened a commercial checking account, signing the signature card. On the basis of the guarantees, the bank honored the checks of the corporation until the account was overdrawn by $25,000. The court upheld service of process on Horace, a nonresident, stating that by becoming the guarantor of a Florida corporation’s debts he had engaged in business in Florida. In this case, Maduro & Curiel’s Bank has undertaken no agreement on behalf of a business in Florida.
Florida courts upheld jurisdiction over out-of-state banks in two recent cases, where agents of the nonresident banks had allegedly obligated themselves to buy and sell Government National Mortgage Association Contracts. See Bank of Wessingbon v. Winters Government Securities Corporation, 361 So.2d 757 (Fla.Dist.Ct.App.1978); Citizens State Bank v. Winters Government Securities Corp., 361 So.2d 760 (Fla.Dist.Ct.App.1978). These cases make it clear that a nonresident bank need not have a Florida office, agent, or meeting in order for Florida courts to exercise jurisdiction. The banks involved in those cases, however, unlike Maduro & Curiel’s Bank, allegedly made affirmative commitments to purchase particular securities.
Plaintiff contends that jurisdiction may be asserted under Section 48.193(l)(b), which authorizes jurisdiction over one who “commits a tortious act within this state.” The district court found that Maduro & Curiel’s Bank, contrary to the terms of the commercial collection agreements, either obtained the approval and advice of the intended purchaser for payment of a draft prior to release of the documents and then cancelled the intended purchaser’s approval for payment of the draft, or simply released the documents without obtaining payment of the draft as required. If either of these two negligent acts did occur, it occurred in Netherlands Antilles.
This is not a case where the precise location of the alleged tort is difficult to identify. Cf. Rebozo v. Washington Post Co., 515 F.2d 1208 (5th Cir.1975) (out-of-town newspaper published allegedly libelous article circulated in Florida); Bangor Punta Operations v. Universal Marine Co., 543 F.2d 1107 (5th Cir.1976) (foreign corporate defendant advertised and sold trawlers in Florida which were built in violation of plaintiff’s property rights). The negligence alleged here clearly occurred in the Netherlands Antilles, although injury in Florida may have resulted. In Jack Pickard Dodge, Inc. v. Yarbrough, 352 So.2d 130 (Fla.Dist.Ct.App.1977), the court held that a nonresident auto dealer who serviced a car, which was eventually sold to a Florida resident and caused injury in Florida, had not committed a tortious act within the state. “[The dealer] has committed no act in Florida, tortious or otherwise .... [T]he occurrence of the injury alone in the forum state does not satisfy the statutory test.” 352 So.2d at 134. See April Industries, Inc. v. Levy, 411 So.2d 303, 305-06 (Fla.Dist.Ct.App.1982) (no jurisdiction under Section 48.-193(1)(b) where alleged wrong occurred outside Florida). Cf. Watts v. Haun, 393 So.2d 54 (Fla.Dist.Ct.App.1981) (jurisdiction where act essential for tort occurred in Florida). We conclude that jurisdiction under Section 48.193(1)(b) is not appropriate here.
Under Section 48.193(l)(f)(l), Florida courts may exercise jurisdiction over a nonresident defendant who causes injury in Florida by an act outside the state, if at the time of the injury the defendant was engaged in solicitation or service activities within Florida which resulted in the injury. Where a business allegedly breaches a contract outside the state, resulting in damage to plaintiffs in Florida, but does not conduct or solicit business activities in Florida, it does not have the requisite contacts with Florida to sustain jurisdiction under the long-arm statute. Joyce Brothers Storage & Van Co. v. Piechalak, 343 So.2d 97 (Fla.Dist.Ct.App.1977). Maduro & Curiel’s Bank was not engaged in solicitation or service activities within the state of Florida. It did not solicit business or advertise in Florida, and its service activities were locally based in the Netherlands Antilles. Therefore jurisdiction over Maduro & Curiel’s Bank cannot be sustained under Section 48.193(l)(f)(l).
The judgment is reversed and the case is dismissed for lack of personal jurisdiction over the defendant.
REVERSED AND RENDERED.
. Three sections of the Florida long-arm statute, Fla.Stat.Ann. §§ 48.193(l)(a), (b), and (f)(1), are involved.
(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits that person and, if he is a natural person, his personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following:
(a) Operates, conducts, engages in, or carries on a business or business venture in this state or has an office or agency in this state. (b) Commits a tortious act within this state.
(f) Causes injury to persons or property within this state arising out of an act or omission outside of this state by the defendant, provided that at the time of the injury
1. The defendant was engaged in solicitation or service activities within this state which resulted in such injury....
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
sc_threejudgefdc | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
CALIFORNIA STATE BOARD OF EQUALIZATION et al. v. CHEMEHUEVI INDIAN TRIBE
No. 85-130.
Decided November 4, 1985
Per Curiam.
Since 1959 California has imposed an excise tax on the distribution of cigarettes. Respondent Chemehuevi Indian Tribe sells cigarettes on its reservation in southeastern California. The Tribe originally remitted the state tax to petitioner State Board of Equalization (petitioner) insofar as that tax was imposed on the distribution of cigarettes to non-Indian purchasers. But in 1977 the Tribe enacted a cigarette tax of its own that was the equivalent of the California tax, and then ceased collecting and remitting the state tax. When California sought to obtain the unremitted tax from the Tribe, the Tribe brought an action in the United States District Court for the Northern District of California requesting a declaratory judgment that petitioner could not lawfully apply the state tax to cigarettes sold by the Tribe to non-Indian purchasers. Respondent Tribe also sought an injunction preventing petitioner from enforcing the state cigarette tax against it. Petitioner counterclaimed for damages in the amount of back taxes claimed to be owed by respondent Tribe.
The District Court held that petitioner’s counterclaim was barred by sovereign immunity, 492 F. Supp. 55 (1979), but also held that California could lawfully require the Tribe to collect cigarette excise taxes imposed on cigarettes that it sold to non-Indians. On appeal, the Court of Appeals affirmed the first determination, but reversed the second. 757 F. 2d 1047 (CA9 1985).
The Court of Appeals observed that, unlike the Washington statute that we considered in Washington v. Confederated Tribes of Colville Indian Reservation, 447 U. S. 134 (1980), California’s cigarette tax statute “does not contain any . . . explicit ‘pass-through’ language,” 757 F. 2d, at 1056 (emphasis added), and that therefore the question of the legal incidence of the California cigarette tax was not controlled by our decision in that case. Id., at 1055-1056. It went on to observe that a “legislative intent to impose even a collection burden should be explicitly stated.” Id., at 1056, n. 11 (emphasis added). The Court of Appeals concluded that the California excise tax, properly construed, did not impose liability on the ultimate purchaser of cigarettes when the vendor was not a taxable entity. Id., at 1057, and n. 13.
We think that the Court of Appeals applied a mistaken standard in determining whether or not the California tax on cigarettes was sufficiently like the Washington tax involved in Colville so that the result in the latter case should be controlling here. None of our cases has suggested that an express statement that the tax is to be passed on to the ultimate purchaser is necessary before a State may require a tribe to collect cigarette taxes from non-Indian purchasers and remit the amounts of such tax to the State. Nor do our cases suggest that the only test for whether the legal incidence of such a tax falls on purchasers is whether the taxing statute contains an express “pass on and collect” provision. Indeed, the Washington statute in Colville did not contain an express pass-through provision; the conclusion of the District Court in that case, which we accepted, was that the statutory scheme required consumers to pay the tax whenever the vendor was untaxable, and thus the legal incidence of the tax fell on purchasers in such cases. 447 U. S., at 142, and n. 9. The test to be derived from cases such as Colville and Moe v. Confederated Salish and Kootenai Tribes, 425 U. S. 463, 481-483 (1976), is nothing more than a fair interpretation of the taxing statute as written and applied, without any requirement that pass-through provisions or collection requirements be “explicitly stated.” Cf. United States v. Mississippi Tax Comm’n, 421 U. S. 599, 607-608 (1975).
We think the fairest reading of California’s cigarette scheme as a whole is that the legal incidence of the tax falls on consuming purchasers if the vendors are untaxable. California Rev. & Tax Code Ann. §30107 (West 1979) clearly seems to place on consumers the obligation to pay the tax for all previously untaxed cigarettes. The Board’s implementing regulation does not restrict this obligation to the hypotheticals contained in the regulation; it merely indicates that the consumer has a duty to pay any tax directly to the Board when the vendor is the type of entity on which the State cannot impose a collection requirement. See Cal. Admin. Register 72, No. 16, Tit. 18, Art. 16, §4091. The regulation does not address itself to the question of legal incidence. And since both Colville and Moe hold that if the legal incidence of a state excise tax falls on non-Indian purchasers, the State may impose on the tribe the burden of collecting that tax from the purchasers, 447 U. S., at 159; 425 U. S., at 482-483, this particular regulation is inapplicable to purchasers from Indian tribes if the ultimate liability for the tax falls on the purchaser when the vendor is not taxable. We think that in the context of the entire California statutory scheme, interpreted without any of the restrictive requirements which the Court of Appeals employed, Cal. Rev. & Tax Code Ann. § 30108(a) (West 1979) evidences an intent to impose on the Tribe such a “pass on and collect” requirement. We hold that the legal incidence of California’s cigarette tax falls on the non-Indian consumers of cigarettes purchased from respondent’s smoke shop, and that petitioner has the right to require respondent to collect the tax on petitioner’s behalf.
The petition for certiorari is granted on the first three questions it presents. Insofar as the Court of Appeals held that respondent might not be required to collect the cigarette tax imposed by California on non-Indian purchasers at tribal smoke shops, its judgment is
Reversed.
Justice Brennan would deny certiorari.
Justice Marshall dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, 462 U. S. 111, 120-121 (1983) (Marshall, J., dissenting); Wyrick v. Fields, 459 U. S. 42, 51-52 (1982) (Marshall, J., dissenting).
Justice Blackmun would grant certiorari and give the case plenary consideration.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer: |
songer_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Kurt Karl Friedrich HEGERICH, Appellant, v. Albert DEL GUERCIO, District Director, Immigration and Naturalization Service, Los Angeles, California, Appellee.
No. 15577.
United States Court of Appeals Ninth Circuit.
May 12, 1958.
Harry Wolpin, Los Angeles, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Richard A. Lavine, Burton C. Jacobson, Asst. U. S. Attys., Los Angeles, Cal., for ap-pellee.
Before CHAMBERS and BARNES, Circuit Judges, and CHASE A. CLARK, District Judge.
PER CURIAM.
Hegerich is a national and citizen of Germany. He was properly admitted at New York City on February 18, 1956. His permit authorized him to stay until May 20, 1956. With his passport was a visa from the United States consul in Munich, Germany, reciting that he had until May, 1957, to apply for permanent admission to the United States.
On May 23, 1956, he went for the second time to the immigration and naturalization office in Los Angeles to clear up his status, to seek extension of the time of his stay. The office’s reply to his request was to arrest him on the spot. Subsequently, administrative proceedings were held to determine his deportability and to consider his application for voluntary departure. The result was an order directing his deportation and denying his application for voluntary departure.
The administrative proceedings were upheld on review by the district court. This appeal followed.
As to deportability, the facts would seem to positively support the administrative conclusion. However, as tc the ruling on voluntary departure which would affect Hegerich’s right to apply for readmission, this court is of the opinion that there was an abuse of discretion. No suggestion is made that appellant is not a person of good moral character. His overstaying was de minimis in time. Blunderingly, he was trying to comply with the law. It is clear that his conduct was neither slick nor foxy. In this field of voluntary departure, ordinarily action unfavorable to the deportee must be upheld. But the government, as it should, seems to concede that there can be a case where the denial of voluntary departure can be an abuse of administrative discretion. This court holds that this is it.
Reversed for proceedings which will permit appellant’s voluntary departure.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
sc_respondentstate | 20 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state associated with the respondent. If the respondent is a federal court or federal judge, note the "state" as the United States. The same holds for other federal employees or officials.
DAEGELE v. KANSAS.
No. 72,
Misc.
Decided October 14, 1963.
Petitioner pro se.
William M. Ferguson, Attorney General of Kansas, and J. Richard Foth, Assistant Attorney General, for respondent.
Per Curiam.
The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the Supreme Court of Kansas for further consideration in light of Douglas v. California, 372 U. S. 353.
For reasons expressed in his dissenting opinion in No. 16, Misc., Pickelsimer v. Wainwright, post, p. 3, and related cases, Mr. Justice Harlan would set this case for argument of the question whether Douglas v. California, 372 U. S. 353, should be applied retroactively.
Question: What state is associated with the respondent?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer: |
songer_opinstat | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Irving PASTERNAK, Defendant-Appellant, v. PAN AMERICAN PETROLEUM CORPORATION, a Delaware corporation, Plaintiff-Appellee.
No. 203-69.
United States Court of Appeals Tenth Circuit.
Oct. 21, 1969.
Rehearing Denied Dec. 3, 1969.
A. M. Alloway, Denver, Colo. (C. M. Peterson and Poulson, Odell, Peterson & Levine, Denver, Colo., on the brief), for appellant.
Donald C. MeKinlay, Denver, Colo., (Ted P. Stockmar, and Holme, Roberts & Owen, Denver, Colo., on the brief), for appellee.
Before PHILLIPS, BREITENSTEIN and HICKEY, Circuit Judges.
ORIE L. PHILLIPS., Circuit Judge.
Pan American Petroleum Corporation entered into a joint operating agreement with Pasternak with respect to a well to be drilled for oil and gas, under which Pan American was to drill and operate the well. Pasternak agreed to pay 37% per cent of the cost of drilling, testing, equipping and operating the well; and if a dry hole, also the cost of plugging it. The well was drilled by Pan American and completed as a dry hole. Pan American billed Pasternak for $59,736.84, being his share of the cost of drilling, testing, and plugging the well. Pasternak denied liability on the alleged grounds that Pan American improperly drilled, tested, fracted, worked over and reworked the well, thereby preventing it from being a producer.
Pan American then brought this diversity action against Pasternak to recover his share of the cost of drilling, testing, and plugging the hole. Trial to a jury resulted in a verdict for Pan American for $66,266.99, which included accrued interest.
From a judgment entered on the verdict for $66,266.99, which included interest from May 1, 1967, Pasternak has appealed.
Colorado Revised Statutes 1963, § 154-1-1, provides in part as follows:
“154-1 — 1. Who may testify — interest. * * * Evidence of a previous conviction of a felony where the witness testifying was convicted five years prior to the time when the witness testifies shall not be admissible in evidence in any civil action.”
It will be observed that such statute is exclusionary in character.
Rule 43(a) of the Federal Rules of Civil Procedure for the United States District Courts in part here pertinent provides:
“Rule 43. Evidence
“(a) Form and Admissibility. * * * All evidence shall be admitted which is admissible under the statutes of the United States, or under the rules of evidence heretofore applied in the courts of the United States on the hearing of suits in equity, or under the rules of evidence applied in the courts of general jurisdiction of the state in which the United States court is held. * * * ”
At the trial Pasternak had testified as a witness on his own behalf. On cross-examination he was asked if he had ever been convicted of a felony. He answered that he had. After the question had been answered, counsel for Pasternak objected to the question, because it did not contain the five-year limitation provided for in the Colorado statute. The objection was overruled. Prior to the •time such question was asked, at a session held in chambers, counsel for Pasternak stated that counsel for Pan American had advised him he was going to interrogate Pasternak respecting such conviction; and counsel for Pasternak, when asked by the court if he had any objection thereto advised the court he objected, unless the question included the phrase “within the immediately preceding five years.”
Pasternak was then asked the approximate date of his conviction. He answered, “July, 1962.” He was then asked if the conviction was for conspiracy to defraud the United States by impeding, obstructing and defeating the functioning of an agency of the United States, to wit, the Securities and Exchange Commission. Counsel for Pasternak objected to that question for the same reasons he had objected to the two previous questions. The court overruled the objection.
The sole question presented on this appeal is whether the admissibility of the evidence of Pasternak’s conviction of a felony is controlled by Rule 43(a) or the Colorado Statute.
Evidence that Pasternak had been convicted of a felony would have been admissible “in the courts of the United States on the hearing of suits in equity,” prior to September 16,1938.
When the fact of a conviction of a felony loses its probative value by reason of the lapse of time after the conviction is not fixed by any rigid rule, but is a matter for the trial court’s determination under the attendant circumstances, in the exercise of a sound discretion.
We hold that the instant case is ruled by the decision of this court in Mutual Life Insurance Company of New York v. Bohlman, 10 Cir., 328 F.2d 289. That was a diversity case, tried in the Western District of Oklahoma, in an action to recover benefits on a life .insurance policy. The question presented was whether a health statement executed by the insured in his application for the insurance policy was admissible. Such evidence was vital to the insurance company’s defense, since it showed “the insured not only failed to disclose the apparent changes in health but actively misrepresented the state of his health up to the time the policy was delivered to him.” The application was not attached to nor made a part of the policy of insurance. The trial court held it was inadmissible under an Oklahoma statute which provided that an application for a life insurance policy was inadmissible unless it was either attached to or made a part of the policy. This court reversed, saying in its opinion that:
“ * * * The fact that certain evidence might be inadmissible under a state exclusionary rule or a state statute, such as is involved here, is not controlling in the federal courts. United States v. Featherston, (10 Cir., 325 F.2d 539); Monarch Insurance Company of Ohio v. Spach, 5 Cir., 281 F.2d 401. ‘ * * * while state rules of admissibility are controlling in the federal courts, state exclusionary rules are not, and evidence admissible under either of the first two tests must be received even though the state courts would hold otherwise. The rule of Erie R. Co. v. Tompkins, [304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188], limited as it is to matters affecting substantive rights, does not compel a different result.’
“We have not been referred to any exclusionary principle laid down by any federal statute or rule of federal equity practice which would make the health statement inadmissible. Accordingly and since admissibility under Rule 43(a) is on the basis of relevancy and materiality, 5 Moore’s Federal Practice, § 43.04, p. 1319, we need only say that it is both relevant and material, and that it should have been admitted into evidence at the trial and may properly be considered a part of the appellant’s evidence here.”
Our decision in Mutual Life Insurance Company of New York v. Bohlman, supra, is supported by Monarch Insurance Company of Ohio v. Spach, 5 Cir., 281 F.2d 401, which was an action to recover on a fire insurance policy in a diversity case. The question presented was whether a federal court, sitting in Florida, should exclude evidence otherwise admissible, because of the provision of a Florida statute, F.S.A. § 92.33. Such statute provided: “Every person who shall take a written statement by any injured person * * * with respect to any injury to person or property shall, at the time of taking such statement, furnish to the person making” it “a true and complete copy thereof” and such statement by the injured person shall not “be admissible in evidence or otherwise used in any manner in any civil action relating to the subject matter thereof unless it shall be made to appear that a true and complete copy thereof was furnished to the person making such statement at the time of the making thereof, or, if it shall be made to appear that thereafter a person having possession of such statement refused, upon request of the person who made” it “or his personal representatives to furnish him a true and complete copy thereof.”
Such statement was made by the president of the insured, under oath. He testified at the trial for the insured. The statement was offered in evidence to impeach his credibility as a witness and as proof of a defense for breach of warranty by false swearing. Objection to its admission was made on the ground that the insurance company, at the time of the taking of the statement and on a request made thereafter, had declined to furnish a draft of the statement to the president of the insured.
After a thorough and exhaustive consideration of the question, the Fifth Circuit Court of Appeals concluded that the statement was admissible under the rules of evidence theretofore applied in courts of the United States in suits in equity, and that Rule 43(a), not the Florida statute, was controlling.
We entertain no doubt that the evidence of Pasternak’s conviction, five and one-half years immediately prior to the date he was testifying, was admissible to impeach his credibility under the second category laid down in Rule 43(a), that is, under rules of evidence applied prior to September 16, 1938, in courts of the United States in suits in equity.
We think a reading of Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8, makes it clear that Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079, and other cases relied on by counsel for Pasternak have no application in the instant case.
The judgment is affirmed.
. Hereinafter called Pan American.
. The conviction was, in fact, on June 5, 1963.
. The court properly instructed the jury that Pasternak’s admission that he had been convicted of a felony could be considered by the jury only on the question of his credibility, and Pasternak’s counsel made no objection to that instruction.
. Wigmore on Evidence (3d Ed. 1940), Vol. 1, § 6e, p. 201; Moore’s Federal Practice, Vol. 5, § 43.04, p. 1328.
. Fire Ass’n of Philadelphia v. Weathered, 5 Cir., 62 F.2d 78, 79; Sinclair Refining Co. v. Southern Coast Corp., 5 Cir., 195 F.2d 626, 629; See also, Lewis v. Owen, 10 Cir., 395 F.2d 537, 541.
. To the same effect, see Mecore’g Federal Practice, Vol. 5, § 43.04, pp. 1327-1328.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
sc_casesource | 028 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
CARLSON et al. v. LANDON, DISTRICT DIRECTOR OF IMMIGRATION AND NATURALIZATION SERVICE.
NO. 35.
Argued November 26, 1951.
Decided March 10, 1952.
John T. McTernan argued the cause and John W. Porter, Ben Margolis, Carol King and A. L. Wirin filed a brief for petitioners in No. 35.
John F. Davis argued the cause for petitioner in No. 136 and respondent in No. 35. With him on the briefs were Solicitor General Perlman, Assistant Attorney General Mclnerney and Beatrice Rosenberg.
Carol King argued the cause for respondent in No. 136. With her on the brief was Alan N. Brown.
Mr. Justice Reed
delivered the opinion of the Court.
These cases present a narrow question with several related issues. May the Attorney General, as the executive head of the Immigration and Naturalization Service, after taking into custody active alien Communists on warrants, charging either membership in a group that advocates the overthrow by force of this Government or inclusion in sny prohibited classes of aliens, continue them in custody without bail, at his discretion pending determination as to their deportability, under § 23 of the Internal Security Act? Differing views of the Courts of Appeals led us to grant certiorari. 342 U. S. 807, 810.
I. Facts. — The four petitioners in case No. 35 were arrested under warrants, issued after the enactment of the Internal Security Act of 1950, charging each with being an alien who was a member of the Communist Party of the United States. The warrants directed that they be held in custody, pending determination of deportability. Petitions for habeas corpus were promptly filed alleging that the detention without bond was in violation of the Due Process Clause of the Fifth Amendment and the Eighth Amendment to the-Constitution of the United States, and that § 20 of the Immigration Act, as amended, was also unconstitutional. See note 5, supra. The allegation appears below.
Respondent filed returns defending his orders of detention on the ground that there was reasonable cause to believe that petitioners’ release would be prejudicial to the public interest and would endanger the welfare and safety of the United States. These returns were countered by petitioners with allégations of their many years’ residence spent in this country without giving basis for fear of action by them inimical to the public'welfare during the pendency of their deportation proceedings, their integration into community life through marriage and family connections, and their meticulous adherence to the terms of previous bail, allowed under a former warrant charging deportability. See note 8, supra. On consideration of these undenied allegations, the trial court determined that the Director had not been shown to have abused his discretion. This order was reversed on the ground that the Director “must state some fact upon which a reasonable person could logically conclude that the denial of bail is required to protect the country or to secure the alleged alien’s presence for deportation should an order to that effect be the result of the hearing.”
On rehearing, the Director made allegation, supported by affidavits, that the Service’s dossier of each petitioner contained evidence, indicating to him that each was at the time of arrest a member of the Communist Party of the United States and had since 1930 participated or was then actively participating in the Party’s indoctrination of others to the prejudice of the public interest. There was no denial of these allegations by any of the petitioners, except Hyun, or any assertion that any of them had completely severed all Communist affiliations or connections. As to Hyun the denial was formal and did not include any affidavit denying the facts státed in the Director’s affidavit. As the allegations are set out by the Court of Appeals in the carefully detailed opinion of Circuit Judge Stephens, we refrain from any further restatement here. The Court of Appeals affirmed the District Court’s determination that there was substantial evidence to support the discretion exercised in denying bail.
Respondent Zydok, in case No. 136, was arrested in August 1949 under a recent warrant charging that he was subject to deportation as an alien with membership in an organization advocating the violent overthrow of the Government. Act of October 16, 1918, as amended, 8 U. S. C. (1946 ed.) § 137. At that time he was released on $2,000 bail. Later a deportation hearing was held by the Immigration and Naturalization Service but this Court’s decision in Wong Yang Sung v. McGrath, 339 U. S. 33, necessitated a second deportation hearing.
After the effective date, September 23, 1950, of the Internal Security Act of 1950, respondent was again taken into custody by petitioner on the 1949 warrant, pursuant to radiogram direction from the Acting Commissioner of Immigration and Naturalization referring to § 20 of the Immigration Act of 1917, as amended by § 23 of the Internal Security Act. The respondent was held without bail by petitioner under an order from the Acting Commissioner of Immigration. The rearrest was based on § 22 of the Internal Security Act of 1950 which provides for the deportation of aliens who are members of or affiliated with the Communist Party. 8 U. S. C. (Supp. IV) § 137.
Thereupon respondent filed a petition for writ of habeas corpus in the United States District Court for the Easteni District of Michigan, challenging the validity of his detention without bail. The District Court found that petitioner was an alien and had been and was on arrest a member of the Communist Party. The court determined that there had been no abuse of administrative discretion in refusing bail and denied the petition for habeas corpus.
The Court of Appeals for the Sixth Circuit reversed the District Court, holding that in determining denial of bail the Attorney General could not rest on membership alone in the Communist Party but was under the duty to consider also the likelihood that the alien would appear when ordered to do so under the circumstances as developed in the habeas corpus hearing. The court thought the failure of the Attorney General to allow bail was an abuse of discretion.
That court agreed that the District Court was correct in finding that Zydok was a member of the Communist Party and had been in 1949 the financial secretary of its Hamtramck Division. The respondent’s testimony justifies thé District Court’s finding set out in the margin. The record shows other information in the files of the Attorney General, such as attendance at closed meetings of the Party and the Michigan State Convention. The opinion succinctly sets out the facts concerning respondent’s integration into American life. We adopt that statement. It was said:
“Discretion does not mean decision upon one particular fact or set of facts. It means rather a just and proper decision in view of all the attending circumstances. The Styria v. Morgan, 186 U. S. 1, 9, 22 S. Ct. 731, 46 L. Ed. 1027. There are many circumstances which involve decision.” 187 F. 2d 802, 803.
The Court of Appeals concluded.:
“We think that a fair consideration of the factors above set out in their aggregate require that appeb. lant should have been granted bail in some reasonable amount. This view is more nearly in accordance with the spirit of our institutions as it relates even to those who seek protection from the laws which they incongruously seek to destroy. See Carlson v. Landon, Dist. Director, 9 Cir., 186 F. 2d 183; United States ex rel. Potash v. Dist. Director, 2 Cir., 169 F. 2d 747, 752.” Id., at 804.
II. The Issues. — Petitioners in No. 35, the Carlson case, and respondent in No. 136, the Zydok case, seek respectively reversal or affirmance principally on the same grounds. It is urged that the denial of bail to each was arbitrary and capricious, a violation of the Fifth Amendment; that where there is no evidence to justify a fear of unavailability for the hearings or for the carrying out of a possible judgment of deportation, denial of bail under the circumstances of these cases is an abuse of discretion and violates a claimed right to reasonable bail secured by the Eighth Amendment to the Constitution. Zydok urges, also, that, there was an abuse .of discretion in rearresting him, when there was no change of circumstances, after his previous release under bond on the same warrant. There are other minor contentions as to irregularities in the proceedings that appear to us immaterial to our cbnsideration of these cases.
The basis for the deportation of presently undesirable aliens resident in. the United States is not questioned and requires no reexamination. When legally admitted, they have come at the Nation’s invitation, as visitors or permanent residents, to share with us the opportunities and satisfactions of our land. As such visitors and foreign nationals they are entitled .in their persons and effects to the protection of our laws. So long, however, as aliens fail to obtain and maintain citizenship by naturalization, they remain subject to the plenary power of Congress to expel them under the sovereign right to determine what noncitizens shall be permitted to remain within our borders.
Changes in world politics and in our internal economy bring legislative adjustments affecting the rights of various. classes of aliens to admission and deportation. The passage of the Internal Security Act of 1950 marked such a change of attitude toward alien members- of the Communist Party of the United States. Theretofore there was a provision for the deportation of alien anarchists and other aliens, who are or were members of organizations devoted to the overthrow by force and violence of .the Government of the United States, but the Internal Security Act made Communist membership alone of aliens a sufficient ground for deportation. The reasons for the exercise of power are summarized in Title I of the Internal Security Act. It is sufficient here to print § 2 (15). We have no doubt that the doctrines and practices of Communism clearly enough teach the use of force to achieve political control to give constitutional basis, according to any theory of reasonableness or arbitrariness, for Congress to éxpel known alien Communists under its power to regulate the exclusion, admission and expulsion. of aliens. Congress had before it evidence of resident aliens' leadership in Communist domestic activities sufficient to furnish reasonable ground for action against alien resident Communists. The bar against the admission of Communists cannot be differentiated as a matter of power from that against anarchists upheld unanimously half a century ago in the exclusion of Turner. Since “[i]t is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful,” the fact that petitioners, and respondent Zydok, were made deportable after entry is immaterial. They are deported for what they are now, not for what they were. Otherwise, when an alien once legally became a denizen of this country he could not be deported for any reason of which he had not been forewarned at the time of entry. Mankind is not vouchsafed sufficient foresight to justify requiring a country to permit its continuous occupation in peace 'or war by legally admitted aliens, even though they never violate the laws in effect at their entry. The protection of citizenship is open to those who qualify for its privileges. The lack of a clause in the Constitution specifically empowering such action has never been held to render Congress impotent to deal as a sovereign with resident aliens.
TIL Constitutionality. — A. Arbitrary, capricious, abuse of discretion. — The power to expel aliens, being essentially a power of the political branches of government, the legislative and executive, may be exercised entirely through executive officers, .“with" such opportunity for judicial review of their action as Congress may see fit to authorize or permit.” This power is, of course, subject to judicial intervention under the “paramount law of the. Constitution.”
Deportation is not a criminal proceeding and has never been held to be punishment. . No jury sits. Ño .judicial review is guaranteed by the Constitution. Since deportation is a particularly drastic remedy where aliens have become absorbed into our community life, Congress has been careful to provide for full hearing by the Immigration and Naturalization Service before deportation. Such legislative provision requires that those charged with that responsibility exercise it in a manner consistent with due process. Detention is necessarily a part of this deportation procedure. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings. Of course purpose to injure could not be imputed generally ■to all aliens subject to deportation, so discretion was placed by the 1950 Act in the Attorney General to detain aliens without bail, as set out in note 5, supra.
The change in language seems to have originated in H. R. 10, 81st Cong., 1st Sess., introduced by Representative Sam Hobbs of Alabama on January 3, 1949. It was intended to clarify the procedure in dealing with deportees and to “expressly authorize the Attorney General, in his discretion, to hold arrested aliens in custody.” The' need for clarification arose from varying interpretations of the authority to grant bail under the former bail provision. Note 31, supra. In Prentis v. Manoogian, 16 F. 2d 422, 424, the Court of Appeals for ’the ’Sixth Circuit had held that by the earlier provision “Congress intended to grant to the alien a right, and that its failure to follow with some such phrase as 'at the discretion' of the com,-missioner’ vests thé discretion to avail himself of the opportunity afforded in the alien, and not the discretion to allow bail in the commissioner or director.” On the other hand in United States ex rel. Zapp v. District Director, 120 F. 2d 762, the Court of. Appeals for the Second Circuit construed the provision to the contrary. It said:
“The natural interpretation of the language used, that the alien 'may be released under a bond,’ would indicate that the release is discretionary with the Attorney General; and that appears to be borne out by other provisions of this section,' as well as other-sections of the immigration laws, where the choice of words appears to have significance.” P. 765.
In the later case of United States ex rel. Potash v. District Director, 169 F. 2d 747, the same court applied its Zapp opinion to explain that the Service’s discretion as to bail was not untrammeled but subject to judicial review. It was in the light of these cases that Congress 'inserted in the bail provisions the phrase “in the discretion of the Attorney General,” the lack of which very phrase the Manoogian case held made bail a right of the detained alien. The present statute does not grant bail as a matter of right.
The Government does not urge that the Attorney General’s discretion is not subject to any judicial review, but merely that his discretion can be overturned only on a showing of clear abuse. We proceed on the basis suggested by the Government. It is first to be observed that the language of the reports is emphatic in explaining Congréss’ intention to make the Attorney General’s exercise of discretion presumptively correct and unassailable except for abuse. We think the discretion reposed in the Attorney General is at least as great as that found by the Second Circuit in the Potash case, supra, to be in him under the former bail provision. It can only be overridden where it is clearly shown that it “was without a reasonable foundation.”
The four petitioners in the Carlson case were active hi Communist work. In the Zydok case the only evidence is membership, in the Party, attendance at closed sessions and the holding of the office of financial secretary of its Hamtramck Division. This evidence goes beyond unexplained membership and shows a degree, minor perhaps in Zydok’s case, of participation in Communist activities. As the purpose of the Internal Security Act to deport all alien Communists as a menace to the security of the United States is established by the Internal Security Act itself, Title I, § 2, we conclude that the discretion as to bail in the Attorney General was certainly broad enough to justify his detention of all these parties without bail as a menace to the public interest. As all alien Communists are deportable, like Anarchists, because of Congress’ understanding of their attitude toward the use of force and violence in such a constitutional democracy as ours to accomplish their political aims, evidence of membership plus personal activity in supporting and extending the Party’s philosophy concerning violence gives adequate' ground for detention. It cannot be expected that the Government should be required in addition to show specific acts of sabotage or incitement to subversive action. Such an exercise of discretion is well within that heretofore approved in Knauff v. Shaughnessy, 338 U. S. 537, 541. There is no evidence or contention that all persons arrested as deport-able under § 22 of the Internal Security Act, note 4, supra, for Communist membership are denied bail. In fact, a report filed with this Court by the Department of Justice •in 'this case at our request shows allowance of bail in the large majority of cases. The refusal of bail in these cases is not arbitrary or capricious or an abuse of power. There is no denial of the due process of the Fifth Amendment under circumstances where there is reasonable apprehension of hurt from aliens charged with a philosophy of violence against this Government.
.B. Delegation of Legislative Power. — This leaves for consideration the constitutionality of this delegation of authority. We consider first the objection to the alleged unbridled delegation of legislative power in that the Attorney General is left without standards to determine when to admit to bail and when to detain. It is familiar law that in such ah examination the entire Act is to be looked at and the meaning of the words determined by their surroundings and connections. Congress can only legislate so far. as is reasonable and practicable, and must leave to executive officers the authority to accomplish its purpose. Congress need not make specific standards for each subsidiary executive action in carrying out'a policy. The bail provision applies to many classes of deportable aliens other than those named in the classes listed in § 22 of the Internal Security Act. See note 4, supra. A wide range of discretion in the Attorney General as to bail is required to meet the varying situations arising from the many • aliens in this country.
The policy and standards as to what aliens are subject to deportation are, in general, clear and definite. 8 U. S. C. §§ 137 and 155. Specifically when dealing with alien Communists, as in these cases, the legislative standard for deportation is definite. See notes 3 and 4, supra. In carrying out that policy the Attorney General is not left with untrammeled discretion as to bail. Courts review his determination. Hearings are had, and he must justify his refusal of bail by reference to the legislative scheme to eradicate the evils of Communist activity. The legislative judgment of evils calling for the 1950 amendments to deportation legislation is set out in the introductory sections of the Subversive Activities Control Act. So far as .pertinent to these proceedings, the. new legislation was designed to eliminate the subversive activities of resident aliens who seek to inculcate the doctrine of force and violence into the political philosophy of the American people. To this end provision was made for the detention and deportation of certain noncitizens, including merpbers of the Communist Party. When in the judgment of the Attorney General an alien Communist may so conduct himself pending deportation hearings as to aid in carrying out the objectives of the world communist movement, that alien may be detained. Compare Yakus v. United States, 321 U. S. 414, and Bowles v. Willingham, 321 U. S. 503, 515. This is a permissible delegation of legislative power because the-executive judgment is limited by adequate standards. The authority to detain without bail is to be exercised within the framework of the Subversive Activities Control Act to guard against Communist activities pending deportation hearings. Cf. Mahler v. Eby, 264 U. S. 32, 40. We do not see that such discretion violates the Due Process Clause of-the Fifth Amendment.
C. Violation of Eighth Amendment. — The contention is álso advanced that the Eighth Amendment to the Constitution, note 9, supra, compels the allowance of bail in a reasonable amount. We have in the preceding sections of .this opinion set out why this'refusal of bail is not an abuse of power; arbitrary or capricious, and why the delegation of discretion to the Attorney General is not unconstitutional. Here we meet the argument that the Constitution requires by the Eighth Amendment, note 9, supra, the same reasonable bail for alien Communists under deportation charges as it accords citizens charged with bailable criminal offenses. Obviously the cases cited by the applicants for habeas corpus fail flatly to Support this argument. We have found none that do.
The bail clause was lifted with slight, changes from the English Bill of Rights Act. In England that clause has never been thought to accord a right to bail in all cases, but merely to provide that bail shall not be excessive in those cases where it is proper to grant bail. When this clause was carried over into our Bill of Rights, nothing was said that indicated any different concept. The Eighth Amendment has not prevented Congress from defining the classes of cases in which bail shall be allowed in this country. Thus in criminal cases bail is not compulsory where the punishment may be death. Indeed, the very language of the Amendment fails to say all arrests must be bailable. We think, clearly, here that the Eighth Amendment does not require that bail be allowed under the circumstances of these cases.
It should be noted that the problem of habeas corpus after unusual delay in deportation hearings is not involved in this case. Cf. United States ex rel. Potash v. District Director, 169 F. 2d 747, 751.
IY. Rearrest. — Finally, respondent Zydok argues that his rearrest on the outstanding warrant, after he had once been released, on bail, was improper. The inquiry on habeas- corpus is limited to the propriety of Zydok’s present detention. McNally v. Hill, 293 U. S. 131, 136. While the Attorney General has made a satisfactory showing that he has good cause for detaining Zydok without bail, no order based on a new warrant has been entered. Zydok did not allow the proceedings to run along but objected promptly by habeas corpus to detention under the warrant. It has been said that the rule in criminal cases is that a warrant once executed is exhausted. This guards against precipitate rearrest. Where, however, the rearrest comes after the discovery of error in release, á new wárrant is not necessarily required. State cases have held that an escaped person or one who secured his release by trick may be rearrested without a new warrant. Although a warrant for rearrest is required by statute, when a convicted person is paroled his status on violation of the parole is the same as that of an escaped prisoner. When a prisoner is out on bond he is still under court control, though the bounds of his confinement are enlarged. His bondsmen are his jailers. While the bailsmen may arrest without warrant, the court proceeds under bench warrant to retake a prisoner. Cf. 18 U. S. C. § 3143.
Although in a civil proceeding for deportation the same branch of government issues and executes the warrant, we think the better practice is to require in those cases also a new warrant.
The judgment of the Court of Appeals in the Zydok case will be vacated and the cause remanded to the District Court for further proceedings in accordance.with this opinion, with directions to order the release of the respondent Zydok unless within a reasonable time in the discretion of the court he is rearrested under a new warrant.
No. 35 is affirmed; No. 136 is vacated.
Reorganization Plan No. V, 54 Stat. 1238.
Sec. 19 of an Act to regulate the immigration of aliens to, and the residence of aliens in, the United States, 39 Stat. 889, February 5, 1917, as amended 8 U. S. C. § 155:
“. . . any alien who shall have entered or who shall be found in the United States in violation of this chapter, or in violation of any other law of the United States; . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. . . .”
Act of October 16, 1918, 40 Stat. 1012, as amended, 8 U. S. C. (1946 ed.) § 137, see note 15, infra:
“(c) Aliens who believe in, advise, advocate, or teach, or who are members of or affiliated with any organization, association, society, or group, that believes in, advises, advocates, or teaches: (1) the overthrow by force or violence of the Government of the United States or of all forms of law. . . .”
Internal Security Act of 1950, September 23, 1950, § 22, subsection 4 (a), amending the Act of October 16, 1918, see 8 U. S. C. § 137:
“Any alien who was at the time of entering the United States, or has been at any time thereafter, a member of any one of the classes of aliens enumerated in section 1 (1) or section 1 (3) of this Act. or ... a member of any one of the classes of aliens enumerated in section 1 (2) of this Act, shall, upon the warrant of the Attorney General, be taken into custody and deported in the manner provided in the Immigration Act of February 5, 1917. The provisions of this section shall be applicable to the classes of aliens mentioned in this Act, irrespective of the time of their entry into the United States.”
Id., § 22:
“That any alien who is a member of any one of the following classes shall be excluded from admission into the United States:
“(1) Aliens who seek to enter the United .States whether solely, principally, or incidentally, to engage in activities which would be prejudicial to the public interest, or would endanger the welfare or safety of the United States;
“ (2) Aliens who, at any time, shall be or shall have been members of any of the following classes:
“(A) Aliens who are anarchists;
“(B) Aliens who advocate or teach, or who are members of or affiliated with any organization that advocates or teaches, opposition to all organized government;
“(C) Aliens who are members of or affiliated with (i) the Communist Party of the United States, (ii) any other totalitarian party of the 'United States, (iii) the Communist Political Association, (iv) the Communist or óther totalitarian party of any State of the United States, of any foreign state; or of any political or geographical subdivision of any foreign state; (v) 'any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (vi) the direct predecessors or successors of any such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt;
“(F) Aliens who advocate or teach or who are members of or affiliated with any organization that advocates or teaches (i) the ■overthrow by force or violence or other unconstitutional means of-the Government of the United States or of all forms of law; ....
- “(3) Aliens with respect to whom there is reason-to believe that such aliens would, after entry, be likely to (A) engage in activities which would be prohibited by the laws of the United States relating to espionage, sabotage, public disorder, or in other activity subversive to the national security; (B) engage in any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unconstitutional means; or (C) organize, join, affiliate with, or participate in the activities of any organization which is registered or required to be registered under section 7 of the Subversive Activities Control Act of 1950.”
Internal Security Act of 1950, § 23:
“. . . Pending final determination of the deportability of any alien taken into custody under warrant of the Attorney General,' such alien may, in the discretion of the Attorney General (1) be continued in custody; or (2) be released under bond in the amount of not less than $500, with security approved by the Attorney General; or (3) be released on conditional parole.
See § 22 (1), Internal Security Act, note 4, supra.
See note 5, supra.
Before the passage of the Internal Security Act the four petitioners had been arrested and admitted. to bail on warrants charging membership in groups advocating the overthrow of the Government by force and violence. In our view of the issues now here, these former happenings are immaterial to our consideration of this writ of certiorari.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
“That section 20 of the Immigration Act of February 5, 1917, as amended by section 23 of Public Law 831, 81st Congress (commonly known as Subversive Activities Control Act of 1950) and section 1 of the Act of October 16, 1918 (8 U. S. C. 137), as amended, are, and each of them is, unconstitutional and void in that they deprive persons, including petitioner, of liberty and property without due process of law, in violation of the Fifth Amendment to the Constitution of the United States in that they abridge the freedom of persons, including petitioner, of speech, the press and assembly and the right to petition the government for redress of grievances, in violation'of the First Amendment to the Constitution of the United States, and in that they purport to authorize indefinite detention of persons, including petitioner, without bond prior to final determination of deportability.”
Carlson v. Landon, 186 F. 2d 183, 186; Stevenson v. Landon, 186 F. 2d 190.
Id., at 189.
28 U. S. C. § 2248:
“The allegations- of a return to the writ of habeas corpus or of an answer to an order to show cause in a habeas corpus proceeding, if not traversed, shall be accepted as true except, to the extent that' the judge finds from the evidence that they are not true.”
Carlson v. Landon, 187 F. 2d 991.
Quite properly, we think, - no question is raised as to the applicability of the Internal Security Act amendments relating to membership in the Communist Party and allowance of bail, notes 4 and 5, supra, to detention under a warrant based on 8 U. S. C. (1946 ed.) § 137 (c), note 3, supra. Cf. Internal Security Act, 64 Stat. 987, Title I, § 2.
“That the petitioner, while under cross-examination by the Chief Assistant United States Attorney, was a consistently evasive witness and his evasive demeanor in testifying in relation to his communistic activities convinces this Court that he is knowingly and wilfully participating in the Communist movement.”
187 F. 2d at 803:
“Appellant was seventeen years.'of age when he arrived in this country from Poland in 1913. Since then he has lived continuously in the State of Michigan. He has been a waiter in an English speaking restaurant in Hamtramck, Mich., for seventeen years and for a great part of that time he was head waiter. He owns his own home in Detroit and has a family consisting of his wife, two sons, a daughter, and five grandchildren. Both sons served in the armed services of the United States in World War II. His children and grandchildren were born in this country and his daughter married here. During World War II while appellant was head waiter in the restaurant he sold about $50,000.00 worth of U. S. War Bonds and during that period he donated blood on seven occasions to the Red Cross for the United States Army.
“Before his second arrest and while he was at large on bail he reported regularly to the Department of Immigration and Naturalization Service. The record'fails to disclose that he has violated any law or that he is engaged or is likely to engage in, any subversive activities.”
Nishimura Ekiu v. United States, 142 U. S. 651, 659; Fong Yue Ting v. United States, 149 U. S. 698, 707; Bugajewitz v. Adams, 228 U. S. 585; Ng Fung Ho v. White, 259 U. S. 276, 280; United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318; Eichenlaub v. Shaughnessy, 338 U. S. 521, 528; III Hackworth’s Digest of international Law 725 (1942).
For example compare Act of December 17, 1943, 57 Stat. 600, with Act of May 6, 1882, 22 Stat. 58.
See note 4, supra. The extension of the proscription of residence to aliens believing in the overthrow of Government by force or violence has been progressive, as can be readily observed by following the successive enactments of laws to regulate the residence of aliens since the Act of February 5, 1917, 39 Stat. 874. See 8 U. S. C. §§ 137 and 155.
“(15) The Communist movement in the United States is an organization numbering thousands of adherents, rigidly and ruthlessly disciplined. Awaiting and seeking to advance a moment when the United States may be so far extended by foreign engagements, so far divided in counsel, or so far in industrial or financial straits, that overthro-y of the Government of the United States by force and violence may seem possible of achievement, it seeks converts far and wide by an extensive system of schooling and indoctrination. Such preparations by Communist organizations in other countries have aided in supplanting existing governments. The Communist organization in the United States, pursuing its stated objectives, the recent successes of Communist methods in other countries, and the nature and control of the world Communist movement itself, present á clear and present danger to the security of the United States and to the existence of free American institutions, and make it necessary that Congress, in order to provide for the common defense, to preserve the sovereignty of the United States as an independent nation, and' to guarantee to each State a republican form of government, enact appropriate legislation recognizing the existence- of such world-wide conspiracy and designed to prevent it from accomplishing its purpose in the United States.”
I Trotsky, History of the Russian Revolution, 106, 120, 141, 144, 151; Lenin, Collected Works (1930), Vol. XVIII, pp. 279-280; Lenin, The State and Revolution, August, 1917, Foreign Languages Publishing House, Moscow (1949), 28, 30, 33. Translations furnished indicate the same attitude on the part of Stalin. Collected Works, Vol. I, pp. 131-137, 185-205, 241-246; Vol. Ill, pp. 367-370. And see Leites, The. Operational Code of the Politburo (1950), c. xiii, “Violence.” See also Immigration and Naturalization Systems of the United States, S. Rep. No. 1515, 81st Cong., 2d Sess., Senate Committee on the Judiciary, Part 3, Subversives, c. I, B, Alien Control; c. II, C, Deportation of Subversive Aliens.
Turner v. Williams, 194 U. S. 279; Schneiderman v. United States, 320 U. S. 118, Mr. Justice Douglas concurring at 165.
Bugajewitz v. Adams, 228 U. S. 585, 591; Ng Fung Ho v. White, 259 U. S. 276, 280.
Mahler v. Eby, 264 U. S. 32, 39:
“[Congress] was, in the exercise of its unquestioned right, only seeking to rid the country of persons who had shown by their career that their continued presence here would not make' for the safety or welfare of society.” See also Eichenlaub v. Shaughnessy, 338 U. S. 521, 530. Compare Harisiades y. Shaughnessy, 342 U. S. 580, decided today.
United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318.
Fong Yue Ting v. United States, 149 U. S. 698, 713-715, 728; Nishimura Ekiu v. United States, 142 U. S. 651, 659; The Japanese Immigrant Case, 189 U. S. 86, 97; Zakonaite v. Wolf, 226 U. S. 272; Wong Wing v. United States, 163 U. S. 228, 231.
A claim of citizenship has protection. Ng Fung Ho v. White, 259 U. S. 276.
Turner v. Williams, 194 U. S. 279, 290-291; Zakonaite v. Wolf, 226 U. S. 272, 275; Bugajewitz v. Adams, 228 U. S. 585, 591; Mahler v. Eby, 264 U. S. 32.
Fong Haw Tan v. Phelan, 333 U. S. 6, 10; Jordan v. De George, 341 U. S. 223, 231.
The Japanese Immigrant Case, 189 U. S. 86; Vajtauer v. Commissioner, 273 U. S. 103.
The former provision read as follows:
“. . . Pending the final disposal of the case of any alien so taken into custody, he may be released under a bond in the penalty of not less than $500 with security approved by the Attorney General, conditioned that such alien shall be produced when required for a hearing or hearings in regard to the charge upon which he has been taken into custody, and for deportation if he shall be found to be unlawfully within'the United States.” 8 U. S. C. (1946 ed.) § 156.
' On December 7,1951, at the request of this Court, the Government furnished us a list of the Bail or Detention Status, as of the period just prior to December 7, of deportation cases, involving subversive charges, pending on the date of the enactment of the Internal Security Act, September 23, 1950. The list indicates that the modest bonds or personal recognizances of the far larger part of the aliens remained unchanged after the bond amendment to the Immigration Act. Of those detained without bond on order of the Service, the courts have released all but a f.ew. It is quite clear from the list that detention without-bond, has been the exception.
H. R. Rep. No. 1192, 81st Cong., 1st Sess., p. 6; S. Rep. No. 2239, 81st Cong., 2d Sess., p. 5.
169 F. 2d at 751:
“The discretion of the Attorney General'which we held to exist in the Zapp case is interpreted as one which is to be reasonably exercised upon a consideration pf such factors, among others, as the probability of the alien being found deportable, the seriousness of the charge against him, if proved, the danger to the public safety of his presence within the community, and the alien’s availability for subsequent ' proceedings if enlarged on bail. However, in any consideration of his denial of bail it should always be borne in mind that the court’s opinion as to whether the alien should be admitted to bail can only override that of the Attorney General where the alien makes a clear and convincing showing that the decision against him was without a reasonable foundation.” See U. S. ex rel. Doyle v. District Director, 169 F. 2d 753; U. S. ex rel. Pirinsky v. Shaughnessy, 177 F. 2d 708; U. S. ex rel. De Geronimi v. Shaughnessy, 187 F. 2d 896. (This is the only case from the Second Circuit Court of Appeals since the Internal Security Act. It leaves open the question of the reviéwability of the Attorney General’s action under that Act.)
The proposed bills at one time contained a provision:
.“(f) No alien detained under-any provision of law relating to the exclusión or expulsion of aliens shall, prior to an unreviewable order discharging-him. from custody, be released by any court, on bond or otherwise, except pursuant to the order of a Federal court composed of three judges.” S. Rep. No. 2239, 81st Cong., 2d Sess., p. 3. This was introduced to allow for possible release from custody pending deportation hearings. Id., at p. 9. The clause did not survive.
Even though we also take into consideration the factor of probable availability for trial, which we do not think is of great significance in cases involving security from. Communist activities of .alien Communists, the past record of these aliens is far from decisive against the Attorney General’s action . The Internal Security Act made membership sufficient for deportation and set up a procedure that could be carried hut. § 22 (2) (C), note 4, supra, and § 23. Deportation became more likely for alien Communists by these amendments.
Buttfield v. Stranahan, 192 U. S. 470; Union Bridge Co. v. United States, 204 U. S. 364, 386; United States v. Grimaud, 220 U. S. 506; Panama Refining Co. v. Ryan, 293 U. S. 388, 421:
“•The Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits and the determination of facts to which the policy as declared by the legislature is to apply.”
Wayman v. Southard, 10 Wheat. 1, 43-48; St. Louis, I. M. & S. R. Co. v. Taylor, 210 U. S. 281, 286; Intermountain Rate Cases, 234 U. S. 476, 486-489; Fahey v. Mallonee, 332 U. S. 245, 249. See Yakus v. United States, 321 U. S. 414, 424r-425:
“The essentials of the legislative function are the determination of the legislative policy and its formulation and promulgation as a defined and binding rule of conduct .... These essentials are preserved when Congress has specified the basic conditions of fact upon whose existence or occurrence, ascertained from relevant' data by a designated administrative agency, it directs that its statutory command shall be effective. It is no objection that the determination of facts and the" inferences to be drawn from them in the light of the statutory standards and declaration of policy call for the exercise of judgment, and for the formulation of subsidiary administrative policy within the prescribed statutory framework.”
Any alien becoming a public charge within five years of entry may be subject to deportation. Likewise any alien sentenced more than once for any crime involving moral turpitude, and certain illegal entrants. See 8 U. S. C. § 155.
Approximately 85,000,000 people, citizens and aliens, are said to have crossed our borders in the 1949 fiscal year. Some many times. Five million- aliens are reported to have registered under .the Alien Registration Act of 1940. S. Rep. No. 1515, pp. 630-631, supra, n. 22.
See for example § 2 (15), quoted above at note 21.
Attention is called to United States ex rel. Potash v. District Director, 169 F. 2d 747, 752:
“If the Eighth Amendment to the Constitution is considered to have any bearing upon the right to bail in deportation proceedings, and this has been denied, it is our opinion that the provisions of that Amendment and any requirement of the due process provisions of the Fifth Amendment will be fully satisfied if the standards of fairness and reasonableness we have set forth regarding the exercise of discretion by the Attorney General are observed.”
United States ex rel. Klig v. Shaughnessy, 94 F. Supp. 157, 160:
“It is not unappropriate to refer here to the Eighth Amendment to the Constitution of the United States, one of that series of amendments collectively known as the Bill of Rights, which prohibits the imposition of excessive bail. Certainly, the principle inherent in that amendment applies to deportation- proceedings, whether or- not' such proceedings technically fair within its scope. That principle cannot be reconciled with the government’s denial of bail to these relators under the, circumstances here set forth.” -
1 Wm. & Mary, Sess. 2, c. II, § I (10).
Petersdorff, on Bail, 483 et seq.
I Annals of Congress 753.
1 Stat. 91, § 33; Federal Rules of Criminal Procedure, 46 (a).
Similarly, on appeal from a conviction by the trial court, a defendant is not entitled to bail if he does not present a substantial question. Fed. Rules Crim. Proc., 46 (a) (2); Bridges v. United States, 184 F. 2d 881, 884; Williamson v. United States, 184 F. 2d 280, 281; Baker v. United States, 139 F. 2d 721.
•In England, there was a series of crimes ana situations where the arrested person could “have no other sureties but the four walls ■ of the prison.” Blackstone’s Commentaries, Book IV, 298.
See United States ex rel. Bilokumsky v. Tod, 263 U. S. 149, 158, and cases there cited; Mahler v. Eby, 264 U. S. 32, 45. These cases had valid orders entered subsequent to an invalid arrest.
See United States ex rel. Heikkinen v. Gordon, 190 F. 2d 16, 19; Doyle v. Russell, 30 Barb. (N. Y.) 300.
People ex rel. Wolfe v. Johnson, 230 N. Y. 256, 130 N. E. 286.
Voll v. Steele, 141 Ohio St. 293, 47 N. E. 2d 991. Cf. Porter v. Garmony, 148 Ga. 261, 96 S. E. 426. Bail once allowed by a' magistrate, pending trial, may not in some instances be refused by a higher court. In re Marshall, 38 Ariz. 424, 300 P. 1011.
Anderson v. Corall, 263 U. S. 193, 196.
Taylor v. Taintor, 16 Wall. 366, 371.
See Dowd v. Cook, 340 U. S. 206; Mahler v. Eby, 264 U. S. 32, 45.
Question: What is the court whose decision the Supreme Court reviewed?
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189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_othadmis | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile, (or did ruling on appropriateness of evidentary hearing benefit the defendant)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
DROHAN et al. v. STANDARD OIL CO. STANDARD OIL CO. v. KEESHIN MOTOR EXP. CO., Inc. et al. NICHOLS v. KEESHIN MOTOR EXP. CO., Inc. et al.
No. 9365.
Circuit Court of Appeals, Seventh Circuit.
June 8, 1948.
Rehearing Denied July 26,1948.
Richard P. Tinkham and John F. Beck-man, Jr., both of Hammond, Ind., and Walter C. Williams, of Michigan City, Ind., for appellant.
Charles A. Boyle, of Chicago, 111., and Harold Hector, A. H. Highland, Edwin H. Friedrich and Bernard A. Petrie, all of Hammond, Ind., (Crumpacker & Fried-rich, of Hammond, Ind., and Boyle, Morrissey & Wagner, of Chicago, 111., of counsel), for appellees.
Before SPARKS and KERNER, Circuit Judges, and LINDLEY, District Judge.
KERNER, Circuit Judge.
Plaintiffs brought this action against Standard Oil Company to recover damages sustained as the result of alleged negligence of defendant’s driver in operating a motor truck which collided with plaintiff’s tractor-trailer. Defendant, in its answer, denied it had been negligent and alleged that plaintiffs’ damages were caused by the negligence of their servant in the operation of the tractor-trailer. Standard also filed a cross-claim against plaintiffs in which it joined C. A. Conklin Truck Line, Inc., and in which it sought to recover damages for loss of its truck and cargo. In its cross-claim it alleged that the collision was caused by the negligent operation of a truck owned and controlled by Conklin, and by the negligent operation of plaintiffs’ tractor-trailer. Martha Nichols, administratrix of the estate of Ferris Nichols, deceased (the driver of Standard’s truck), was permitted to intervene and file her cross-claim against plaintiffs and Conklin. She sought to recover damages for the death of her husband, which she alleged was caused by the negligence of Conklin and plaintiffs’ servant. Upon these issues, the trial judge submitted the case to the jury for a general verdict. The jury rendered a verdict for plaintiffs and against Standard, and verdicts for plaintiffs and Conklin on the cross-claims of Standard and the administratrix, upon which verdicts judgments were entered. These judgments, Standard and Martha Nichols seek to reverse.
The negligence charged was that defendant drove its truck at a speed greater than was reasonable and proper and that defendant negligently maintained and controlled its motor vehicle.
The collision occurred on a paved highway running in an easterly and westerly direction. The highway was divided into four lanes separated by black lines. The two most northerly lanes are reserved for west-bound traffic, and the two southerly lanes for the east-bound traffic. That part of the highway where the collision occurred is in open country. Shortly prior to 6:00 a. m. on February 22, 1945, Conklin’s truck, traveling east, caught fire. He stopped and parked on the outer east-bound lane of the highway, and placed flares or pot torches from 40 to 75 feet to the rear, some along the side, and others in front of the truck. The Conklin driver then disengaged his tractor and drove off to secure help. During his absence, other trucks approached from, the east. The drivers stopped on the north side of the highway, and attempted to put out the fire. At this time the fire was visible for about a mile to persons approaching the scene from the east. At about 6:15 a. m. the Michigan City fire department arrived and proceeded to exinguish the fire and while so engaged, the Keeshin tractor-trailer — 10 to 12 feet in height, 20 feet long and 7 feet wide, .loaded with 15,000 to 20,000 pounds of cargo, fully lighted and equipped in the rear with a bar of three red lights across the top, one red light on each corner, tail lights above the axles, and two reflectors hanging from the body which could be seen from a distance of 800 feet to the rear — slowly approached from the west and came to a stop in the outer east-bound lane. By this time the Conklin truck had been moved forward and practically off of the paved portion of the highway. Within a minute or less after plaintiffs’ tractor-trailer arrived, defendant’s truck (an oil tanker), loaded with 5,000 gallons of gasoline and operated by Ferris Nichols, approached from the west. It was traveling in the outer east-bound lane at a speed of 35 or 40 to 45 miles per hour. Just as the Keeshin tractor-trailer was starting to go, the driver thereof blinked his clearance lights several times, and when he noticed that the driver of defendant’s oil tanker was not slowing down, he took the tractor-trailer out of gear and braced himself for the crash. Defendant’s truck hit the Keeshin tractor-trailer squarely in the rear and pushed it 70 to 90 feet. The impact smashed defendant’s tractor; Nichols was killed; an explosion occurred; and both outfits and their cargoes were destroyed in the fire that followed.
In its brief, in arguing for a reversal, defendant contended that the verdicts were not sustained by the evidence. Upon oral argument, however, counsel for defendant stated that he was not asking this court to reverse on the ground that the trial court had overruled his motion for a directed verdict. We take this to mean that defendant conceded that the evidence was such as to present to the jury a question of fact, i.e., whether defendant was guilty of negligence as charged in the complaint. We shall therefore proceed to consider the remaining claimed errors, the most important of which concern the instructions.
The court, after instructing the jury that an operator of an automobile was required to keep a reasonable lookout for other vehicles and use that degree of care which a reasonable and prudent person would exercise to avoid an accident, told the jury that Nichols was charged with the duty “to regularly and continuously observe the highway ahead of him so as to discover any vehicle or other conveyance on the highway.”
The argument is that all that is required of one who operates a motor vehicle upon a public highway is the exercise of ordinary and reasonable care, and that by this instruction the court imposed upon defendant and Nichols a duty greater than the duty of reasonable care, and Martin v. Lilly, 188 Ind. 139, 121 N.E. 443, and Northwestern Transit v. Wagner, 223 Ind. 447, 61 N.E.2d 591, are cited.
Concerning the Wagner case, supra, it will be enough to say that that case did not involve any question of instructions and hence is not applicable. It is true, however, that in the Lilly case, supra, the court condemned an instruction which told the jury that it was the duty of the driver of an automobile, while driving the same upon a public highway, to be constantly on the lookout for vehicles that might at the time be making use of the highway. But since that case, Indiana has provided that “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.” § 47-2004, Burns’ Ind.Stat.Ann. For that reason we think that case is distinguishable on the facts and hence is not controlling here. We find support for this conclusion by what was said in the case of Pfisterer v. Key, 218 Ind. 521, 33 N.E.2d 330, 335.
In the Pfisterer case, supra, the driver struck a pedestrian. The statute involved was § 47-513, Burns’ Ind.Stat.Ann. By the provisions of that statute it was the duty of a driver of a vehicle on a highway to slow down and give warning upon approaching pedestrians. There was a verdict and judgment for plaintiff. Upon appeal appellant complained of an instruction which told the jury that the driver was bound “to constantly observe the highway in front of him so as to discover other vehicles or pedestrians thereon.” The court said that by the use of the words “constantly observe” the jury was told that appellant must keep his eyes constantly on the roadway while he was driving, and that the phrase “constantly observe the highway” meant to continually or regularly pay attention to the highway, and held that there was no reversible error in the giving of the instruction. It is clear that the language used in the instruction in our case is the equivalent of the language used in the Pfisterer case, supra, and since 'by the provisions of § 47-2004 it was the duty of a driver, having regard to the actual and potential hazards, not to drive his vehicle at a speed greater than was reasonable and prudent, it cannot be said, under the circumstances here appearing, that the court committed reversible error.
The point is next made that when the court told the jury that the driver of the oil tanker was charged with the duty to so restrict the speed of his vehicle as to avoid colliding with any conveyance on the highway, it imposed an extra-legal obstacle in the path of Nichols and defendant, and in effect directed a verdict against them. To be sure, had the court made such a charge, without more, the instruction would have been erroneous, Schlarb v. Henderson, 211 Ind. 1, 4 N.E.2d 205, and Opple v. Ray, 208 Ind. 450, 195 N.E. 81, because the question of negligence, with respect to the speed and the visibility of objects on the road ahead, is a question for the jury, and must be determined from the facts and circumstances of each case. But the instruction in question provided that the speed of every vehicle should be so restricted, “in compliance with legal requirements and with the duty of all persons to use due care,” and concluded that “if you find that the facts and circumstances were such that he should have so restricted his speed in such compliance, then such failure would be negligence as a matter of law.” Thus it is clear that the instruction as given' left the question of fact for the jury. We see no error in the instruction.
The next point urged is that the court erred in instructing the jury on prior or remote causes. The instruction was given at the request of Conklin. The complaint is that the instruction omitted the principal allegation of negligence against Conklin, i.e., that Conklin failed to place proper warning signals on the highway, and that the conduct of Conklin was therefore the legal cause of the collision. The record discloses that flares were placed on the, road and that they remained there up to the time that Nichols crashed into plaintiffs’ tractor-trailer.
We observe that before the trial judge read to the jury the instruction now being considered, he instructed them as to the issues and the contentions of all the parties. We note, too, that in the questioned instruction he charged the jury that if they should find from all of the evidence-that the acts of Conklin in stopping on the highway was a prior or remote cause of the accident, and" if they further found from all the evidence that there intervened a distinct, unrelated cause that proximately produced the injury, then, in that event, the verdict should be for Conklin.
Since the law is (Van Hoorebecke v. Iowa Illinois Gas & Electric Co., 324 Ill.App. 88, 57 N.E.2d 652) that if the negligence charged does nothing more than furnish a condition by which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury when the subsequent act is an intervening efficient cause which breaks the causal connection between the original wrong and the injury, and itself becomes the proximate cause, we cannot, in view of the state of this record, hold that error was committed by the giving of that instruction.
We now consider the contention that the court erred in refusing to charge the jury as requested by Nichols and defendant. By one of the tendered instructions, defendant endeavored to have the court tell the jury that the Keeshin driver was guilty of negligence if he turned into the inner lane of the highway without first ascertaining that any traffic was approaching from the rear. The other requested instruction dealt with the statute requiring flares to be placed on highways.
All that need be said is, that we have read the refused instructions as well as the instructions given by the court covering these questions. The given instruction properly and fully announced the correct propositions of law applicable to the case;- hence no error was committed in refusing to give the tendered instructions. Rea Riggin & Sons v. Scott, 114 Ind.App. 4, 50 N.E.2d 664, and Frick v. Bickel, 115 Ind.App. 114, 54 N.E.2d 436.
The next proposition urged is that the court improperly admitted in evidence photographs of the vehicles involved in the collision. The argument is that these photographs did not tend to prove or disprove any issue in the case, and merely served to prejudice the jury on the speed of defendant’s oil tanker.
The admission or rejection of photographs in evidence is a question that lies within the discretion of the trial court, and its discretion will not be disturbed unless an abuse of such discretion is shown, Haven v. Snyder, 93 Ind.App. 54, 176 N.E. 149.
We have already noted that the Keeshin tractor-trailer was loaded with 15,000 to 20,000 pounds of cargo, and that when the oil tanker crashed into it, the impact hurled the tractor-trailer 70 to 90 feet. The photographs showed that the tractor of defendant’s oil tanker was smashed. These facts, had, in our opinion, some probative weight not only in identifying the type and size of the equipment involved, but were some proof as to the speed at which Nichols approached the place of collision. In such a situation, we do not believe it can be said that the court abused its discretion; rather, we think the judge was acting clearly within the limits of his discretion.
Finally, the point is made that the court erred in including in the amount of damages the claim of Ditto, Inc., an owner and consignor of a portion of the cargo destroyed.
The record discloses that plaintiffs in their complaint had listed certain consignments of cargo which was destroyed in the collision and fire. During the progress of the trial, the parties stipulated that the trial judge would instruct the jury that plaintiffs’ damages amounted to $12,195.60 and that if the jury found for plaintiffs, that would be the amount of the verdict. “If, afterwards, proofs of loss and cancelled checks come in showing , the damages are less, the verdict and judgment will be modified accordingly by agreement of the parties.” The verdict of the jury was for $12,195.60.
It also appears that after the bringing in of the verdict and while the cause was being argued on the motion to set aside the verdict, defendant objected to the amount of the Ditto claim of $1,024.15 on the ground that the Ditto claim had not been listed in the complaint. Thereupon plaintiffs moved to amend the complaint to include the Ditto claim, and the defendant’s objection to the amount of the Ditto claim was overruled. Upon this record, we see no reason to hold that the court erred in including the amount of the Ditto claim.
Affirmed.
Question: Did the court rule that some evidence, other than a confession made by the defendant or illegal search and seizure, was inadmissibile (or did ruling on appropriateness of evidentary hearing benefit the defendant)?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_initiate | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
In the Matter of Ronald COHEN, Debtor. Dale WOOTTON, Trustee For the Estate of Ron Cohen a/k/a Ronald Cohen, Appellee, v. V.W. BARGE, III, Appellant.
No. 88-1722.
United States Court of Appeals, Fifth Circuit.
June 19, 1989.
James L. Schutza, Dallas, Tex., for appellant.
Dale Wootton, Dallas, Tex., for appellee.
Before GARWOOD, JONES and SMITH, Circuit Judges.
EDITH H. JONES, Circuit Judge:
The bankruptcy trustee of an estate created by a Ponzi scheme seeks to recover as preferential payments certain amounts paid by the debtor to appellant V.W. Barge, III within ninety days preceding the bankruptcy. The district court affirmed the bankruptcy court’s judgment in favor of the trustee pursuant to 11 U.S.C. § 547. We hold that although 11 U.S.C. § 548(b) may cover payments made to Barge that exceeded his “investment” with the debtor, § 547 does not. Consequently, we affirm in part and reverse in part.
The facts have been agreed or stipulated. Ron Cohen, the debtor, operated a multimillion dollar sham stock brokerage business in a typical Ponzi scheme. That is, he enticed investors into his web with promises of 17% to 20% returns on their “investments,” or on promissory notes. After he received their money, Cohen would frequently send confirmation slips to the “customers” reflecting what he represented to be purchases or sales of stock on their behalf. Cohen was not, however, a licensed stockbroker, for he had been barred from associating with any member of the National Association of Security Dealers, Inc. Although he did occasionally purchase and sell some shares of stock, those transactions did not correlate to his “confirmations” for his clients in general or for Barge in particular. The continuing success of the scheme depended on Cohen’s ability to attract new investors whose money would be used to pay the earlier ones. Cohen commingled all of the “investors’ ” funds he received.
At the time Cohen voluntarily sought relief under Chapter 7 of the Bankruptcy Code, Barge had invested over $2.3 million with Cohen. He received approximately $2.5 million from Cohen, of which $730,-876.25 was, to Barge’s misfortune, paid within ninety days of the bankruptcy filing.
Dale Wootton, trustee for Ron Cohen’s estate, sued Barge to recover the payments he received within ninety days of bankruptcy as preferential transfers under 11 U.S.C. § 547(b). The bankruptcy court entered judgment for Wootton, and its decision was sustained on appeal by the district court. Barge appeals, contending that (1) he was not a “creditor” of Ron Cohen, (2) there was no “antecedent debt” on account of which Cohen made payments to him, and alternatively (3) the maximum amount recoverable as a preference was the amount Barge invested with Cohen, and not any funds in excess of that “investment.”
DISCUSSION
The preference provision of the Bankruptcy Code enables a trustee to recover for the benefit of all creditors payments that the debtor has made within a short period prior to his bankruptcy. The objectives of this provision are to put creditors on an equal footing with each other by disallowing such preferential payments and to discourage creditors’ race to dismember the debtor in anticipation of bankruptcy. 4 Collier on Bankruptcy ¶ 547.01 at 547-11 (15th Ed.1988) (hereafter, “Collier”). Section 547(b) empowers the trustee to avoid any transfer of property of the debtor:
(1) To or for the benefit of a creditor;
(2) For or on account of an antecedent debt owed by the debtor before such transfer was made;
(3) Made while the debtor was insolvent;
(4) Made — [in pertinent part] on or within ninety days before the date of the filing of the petition; and
(5) That enables such creditor to receive more than it would have received if the transfer had not been made and the debt- or’s estate were liquidated according to the provisions of the Code.
The trustee had the burden to prove that each of these criteria was satisfied as to the challenged payments made by Cohen to Barge. 11 U.S.C. § 547(g). Barge contests the bankruptcy court’s findings only on the first and second elements of the preference statute.
There is no merit in Barge’s initial claim that he was not a “creditor” of Cohen in any way. The Bankruptcy Code defines a creditor as an entity that has a claim against the debtor. 11 U.S.C. § 101(9). A “claim” is defined in the broadest possible terms as a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured,” or a right to an equitable remedy for breach of performance if such breach gives rise to a right to payment. 11 U.S.C. § 101(4). Barge asserts that he entrusted his money to Cohen, gambling on the stock market and assuming the risk whether he could make a profit. This assertion flies in the face of the bankruptcy court’s finding that Cohen defrauded Barge and the other investors by never or rarely purchasing stock for them and having no intention of making money for them in the stock market. Regardless whether Barge’s transactions with Cohen create claims in the nature of contract, based on breach of Cohen’s obligation to invest in stock, or in fraud, they are nevertheless claims as defined by the Bankruptcy Code. See discussion at 4 Collier tf 547.04, at 547-30-31. Barge was thus a creditor of Cohen to the extent of funds he committed to Cohen.
Likewise, Cohen’s repayment of funds to Barge up to the $2.3 million that Barge invested with him were for or on account of an antecedent debt. Barge asserts that as he was not legally entitled to any return on his investment, there was no indebtedness, pre-existing or otherwise, and therefore no claim which would fall in the category of antecedent debt. The Bankruptcy Code defines a debt as liability on a claim. 11 U.S.C. § 101(11). The terms creditor and debt are thus statutorily congruent. Cohen owed a debt to Barge inasmuch as he was liable on Barge’s claims against him. The claims may be characterized in contract or fraud, but they are claims in bankruptcy nevertheless.
The express terms of the Bankruptcy Code foreclose Barge’s defense based on the first two elements of § 547(b). See also In re Bullion Reserve of North America, 836 F.2d 1214 (9th Cir.1988) (party who committed money to a fraudulent gold bullion operation and actually received bullion within ninety days of bankruptcy was a creditor paid on account of antecedent debt). Because Barge has not contested the other statutory prerequisites to an avoidable preference, the bankruptcy court’s judgment must be upheld insofar as it required Barge to repay the payments he received which compensated for the $2.3 million he had invested.
The foregoing reasoning does not, however, justify the bankruptcy court’s treatment as preferential payments of some $211,817.32 in “profits” received by Barge over and above his investment with Cohen. The lower courts and the trustee explain in a conclusory fashion that such excess funds must be part of Barge’s claim on which he is a creditor of Cohen. We disagree. This reasoning perpetuates the theory that the transaction between Barge and Cohen had economic substance and a profit potential. Contrary to this supposition, however, the bankruptcy court had already found that the stock reported as sold for Barge involved fictitious transactions for which Cohen did not actually own sufficient amounts of stock to cover all of his customers’ competing claims. If the transactions are consistently characterized as fraudulent, then Barge’s claim against the estate derives from fraud and would seek no more than restitution of the amount he committed to Cohen. Such a claim would generate no right by Barge to payment of stock sale “profits.” On the other hand, even if Barge’s investment created a contractual relationship with Cohen, Barge was not contractually entitled to receive “profits” on sales of stock that did not occur. We are unable to agree with the lower courts’ conclusion that Barge had a claim, i.e. a right to payment, from Cohen in excess of the amount he invested with him.
No case cited by the parties or located in research has held that fictitious profits paid to an investor in a Ponzi scheme are statutory preferences. The results, rather, have depended on the precise facts of each scheme and the nature of the investor’s claim. For instance, in Bullion Reserve, supra, the investor had paid money to the debtor to purchase gold bullion on an international market. He was ordered to repay the debtor’s estate because he received bullion within the preference period. No issue of “profit” arose. By contrast, the victims of the scheme in In re Western World Funding, Inc., 54 B.R. 470 (Bptcy.Nev.1985), possessed the debtor’s promissory notes and received some payments of principal and interest within the preference period. The claims of those creditors rested on their promissory notes. Here, by contrast, Cohen did not contract to pay Barge interest; his contractual obligation for “profits” arose only if he made a profit selling stock for Barge. Cohen was not personally liable for profit if none resulted.
The trustee contends that in excluding from Barge’s preference liability the fictitious “profit” he received over and above his $2.3 million investment with Cohen, we violate the subsequent advance exception to preference liability codified at 11 U.S.C. § 547(e)(4). This section provides that a creditor is not liable for payments within the ninety days preceding bankruptcy to the extent that it subsequently furnished unsecured credit to the debtor. 4 Collier 11547.12 at 547-51. The subsequent advance exception substantially modified its predecessor provision, Section 60c in the former Bankruptcy Act, which stated a “net result rule” affording broader protection for creditors who dealt on open account with the debtor preceding bankruptcy. According to the trustee, our analysis represents an unauthorized return to the “net result rule”. Again, we disagree. Both Sections 60c and 547(c)(4), as exceptions to the preference provision, assume that a creditor has a claim enforceable against the debtor for the entire amount he receives in payment. These sections are irrelevant to the issue before us.
That there was not a preferential transfer of the $211,817.32 excess funds paid to Barge does not necessarily mean that he will retain a profit from the misfortune of other people duped by Cohen. Such payments may well constitute a fraudulent conveyance avoidable pursuant to 11 U.S.C. § 548. Indeed, courts have ruled for trustees asserting such claims against investors in other Ponzi schemes. Rosenberg v. Collins, 624 F.2d 659 (5th Cir.1980); In re Independent Clearing House Company, 77 B.R. 843 (D.Utah 1987). The trustee here did not predicate his claim on § 548, and we need not analyze its applicability further.
For the foregoing reasons, we conclude that Barge received $519,077.68 in preferential payments from Cohen within ninety days of his bankruptcy, and judgment should be entered against him for that amount. The remaining $211,817.32 represents monies paid to Barge in excess of the amount he invested with Cohen, and such funds were neither part of a claim by Barge against Cohen nor paid on account of an antecedent debt.
The judgments of the bankruptcy and district courts are AFFIRMED in part and REVERSED in part and REMANDED for entry of judgment in accordance herewith.
. The rate of recovery in Ponzi schemes is ordinarily low. Only in rare circumstances does an investor like Barge fortuitously recover more than he put into the scheme. Usually, investors’ defenses against preference actions have unsuccessfully asserted that the debtor held their money in constructive trust and thus returned only what they originally owed. See e.g., Cunningham v. Brown, 265 U.S. 1, 44 S.Ct. 424, 68 L.Ed. 873 (1924) (the original Ponzi case; preferentially paid creditors had received their principal back on Ponzi’s worthless promissory notes); In re Bullion Reserve, supra; In re Independent Clearing House, Co., 77 B.R. 843 (D.Utah 1987); In re Western World Funding, Inc., 54 B.R. 470 (Bptcy.Nev.1985).
. Some creditors argued that payments of interest to them were for interest obligations that accrued contemporaneously and accordingly fell within various exceptions to § 547(b) or were not paid on account of antecedent debt. 54 B.R. 477-80. It was undisputed, however, that their claims arose out of these notes.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_origin | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
SUN OIL COMPANY, Transferee, Sunray DX Oil Company and Subsidiaries, Transferor v. COMMISSIONER OF INTERNAL REVENUE, Appellant.
No. 76-2388.
United States Court of Appeals, Third Circuit.
Argued May 5, 1977.
Decided Sept. 7, 1977.
As Amended Nov. 29,1977.
Myron C. Baum, Acting Asst. Atty. Gen., Gilbert E. Andrews, Gary R. Allen, John A. Dudeck, Jr., Attys., Tax Div., Dept, of Justice, Washington, D. C., for appellant.
Thompson, Knight, Simmons & Bullion, Buford P. Berry, J. David Anders, Emily A. Parker, Dallas, Tex., for appellee.
Before SEITZ, Chief Judge, ROSENN, Circuit Judge, and LORD, Chief Judge.
Joseph S. Lord, III, Chief Judge of the Eastern District of Pennsylvania, sitting by designation.
OPINION OF THE COURT
ROSENN, Circuit Judge.
In the quest to obtain capital, to generate business liquidity, or to minimize taxes, private enterprise often resorts to the sale of property and a simultaneous leaseback to the seller. A recurring question in transactions of this sort is whether after the transfer of title to the property some or all of the critical incidents of ownership still remain with the grantor despite his newly designated status as lessee.
This case concerns conveyances of 320 parcels of unimproved service station sites at cost by Sunray DX Oil Company (“Sun-ray”) to a tax-exempt trust and simultaneous leasebacks to the grantor. The sole question is whether the transaction was a mere financing arrangement between the parties or an authentic sale. The Commissioner disallowed Sunray’s deduction of its rental payments on the ground that the transaction did not constitute a true sale and that the rental payments were not a bona fide business expense deductible under section 162(a)(3) of the Internal Revenue Code of 1954 (“the Code”). In a proceeding for redetermination of the deficiency brought by Sun Oil Co., Sunray’s successor in interest, the United States Tax Court held that the rental payments were deductible. The Commissioner appealed and we reverse.
I.
During the taxable years in issue (1965-1968), Sunray, together with its subsidiaries and predecessors, was an integrated oil company engaged in all phases of the petroleum business, including marketing of petroleum and petroleum products. It was merged on October 25, 1968, into Sun Oil Company, a New Jersey corporation which was subsequently restructured as the Sun Oil Company, the appellee taxpayer herein. During the 1950’s and early 1960’s Sunray was actively involved in acquiring service station sites primarily in seventeen central-states along interstate highways and in certain urban areas. For a variety of business reasons, Sunray concluded that the most preferable means of obtaining working capital would be to convey its service station sites and then simultaneously lease them back rather than to mortgage the properties and incur a debt obligation on its books. After deciding to pursue this course of action, Sunray ascertained that General Electric Pension Trust (the “Trust”) was interested in taking title to the properties, advancing funds to Sunray equal to the cost of the properties, and then entering into lease agreements with Sunray on a long term basis together with options to purchase.
After extensive negotiations concerning terms and conditions of the proposed sale and leasebacks, Sunray and the Trust entered into their first letter agreement, dated October 13, 1964, under the terms of which Sunray agreed to convey by general warranty deed and the Trust agreed to purchase approximately 120 service station sites. The agreed purchase price for the parcels of land, mostly unimproved, was equal to Sunray’s cost of acquisition and in the aggregate was not to exceed six million dollars. Simultaneous with purchase, Sun-ray agreed to lease the properties from the Trust for a primary term of 25 years with quarterly rentals sufficient to enable the Trust to amortize its investment in full over such initial term at an interest return of 4% percent on its investment. The lease contained options exercisable by Sunray to renew the lease for two five-year terms at annual rentals equivalent to 2V2 percent of the purchase price of the land and for an additional eleven five-year terms at annual rentals equivalent to IV2 percent of the purchase price.
On April 24, 1967, Sunray entered into a second letter agreement with the Trust under the terms of which the Trust agreed to purchase and Sunray agreed to sell approximately 200 additional service station sites at a price equal to Sunray’s acquisition costs but not to exceed an aggregate price of eleven million dollars. Sunray again agreed to leaseback the properties for a primary term of 25 years with quarterly rentals sufficient to amortize the Trust’s investment in full over such initial term at an interest return of 5% percent with similar renewal options to Sunray as in the first letter; the annual rentals for the first two five-year terms were equivalent to 3 percent of the purchase price, for five additional five-year terms were equivalent to 2V2 percent of the purchase price, and for six final five-year terms equaled 2 percent of the purchase price.
Sunray consummated the second letter agreement by conveying 213 separate parcels of land each by separate warranty deed. At or about the same time, Sunray leased the properties for rentals under the terms set out in the letter agreement. Sun-ray and the Trust executed master leases at each of the closings, the terms of such leases being essentially the same except for the effective dates, properties described, and the quarter-annual payments. The leases require that the basic rent be payable absolutely net to the Trust throughout the term without deduction or setoff and that Sunray, as lessee, pay all taxes, assessments, or similar charges assessed against the premises.
The major provisions of the leases were capsulized by the Tax Court as follows:
Each lease afforded Sunray an option to purchase any of the leased properties on specified dates, provided Sunray had discontinued or would discontinue the then business use of the property to be purchased. In each instance the price to be paid for the property was to equal its “fair appraised value * * * to Lessor.” The appraisal of the property was to be conducted by three appraisers: one chosen by the lessor, one chosen by the lessee, and one chosen by the other two appraisers. The decision of any two appraisers was to be conclusive.
Sunray required that it be able to terminate its obligations to lease any property that might prove uneconomical to operate as a service station. Each lease was therefore made to provide:
During the Primary Term of this Lease, Lessee may, if Lessee intends to discontinue or has discontinued the use of the Leased Premises for its then business use, make a rejectable offer to purchase the Leased Premises as of any Basic Rent payment date occurring, in the Primary Term at a price in cash equal to the sum of the present values * * * of all quarterly Basic Rent payments to become due on and after the proposed purchase date * * *
plus an amount sufficient to insure the Trust of a return of 5 percent per annum over the term of the investment.
Each lease further provided that if on any one of several specified dates
* * * Lessee, in the sole exercise of its business judgment, determines that the continued leasing of the Leased Premises has become unprofitable or unreasonable or unnecessary in the conduct of its business use, Lessee may make a rejectable offer to purchase * * *.
Offers to purchase made pursuant to this clause were to be identical to those offers that might have been made by Sunray had it discontinued the then business use of the property.
The Trust was given 30 days in which to consider any rejectable offer that might be made and was nowise obligated to accept such an offer. In the event such an offer were rejected, however, Sunray would be released from its obligation to lease the property which it had offered to purchase.
Each lease further provided:
In lieu of making any rejectable offer to purchase the Leased Premises permitted * * * under this Lease, Lessee shall have the right to substitute for the Leased Premises other property (to consist of land only) having a then value at lease equal to the rejectable offer to purchase consideration which otherwise would have been applicable. * * *
(Footnotes deleted.)
As of July 15, 1974, Sunray made over 130 rejectable offers to repurchase properties which it had decided would not be used for business purposes. The Trust accepted each of the offers, reconveyed the properties, and released Sunray from all obligations under the lease.
II.
Relying heavily on Helvering v. Lazarus & Co., 308 U.S. 252, 60 S.Ct. 209, 84 L.Ed. 226 (1939), the Commissioner contends that Sunray retained all of the benefits and burdens of ownership to the 320 service station sites it conveyed to the Trust. He maintains that the purported transfer of title and leaseback agreements were, in substance, nothing more than an elaborate financing device in which the Trust stood essentially in the position of a secured lender. The leaseback agreements, the Commissioner asserts, enabled Sunray to reflect the transactions as a footnote on its balance sheets rather than a liability, minimizing any impact on its credit rating, and, at the same time, enabled Sunray to claim a 100 percent “rental” deduction for its full cost of acquiring non-depreciable land; and that Sunray in fact retained an equity interest in the properties disqualifying the periodic payments under the leases from being deductible under section 162(a) of the Code. The Commissioner asserts that his position is supported by: (1) the “net” lease arrangement; (2) the condemnation and casualty loss provisions of the lease; (3) Sun-ray’s absolute options to repurchase under the terms of the leases; (4) Sunray’s unique right to substitute properties in the event its offers were rejected; and (5) “rental” provisions which served simply to return to the Trust the principal sum advanced with fixed interest. Sunray, however, argues that the periodic quarterly payments made pursuant to its agreements with the Trust constituted consideration for the use for business purposes of the service station sites, that the properties were sold for a fair sales price in an arm’s length transaction, and that the payments were, therefore, deductible as rentals under section 162(a)(3).
The Tax Court concluded that the terms of the leases did not support the Commissioner’s contention that Sunray retained an equity interest in the leased properties after the conveyances. The court believed that the purpose of the provisions for repurchase of the leases was not “to provide Sunray with the means to reacquire the leased properties,” the Trust being under no obligation to accept any offers which might be made, but to insure Sunray’s ability to cancel the leases of any property which might prove uneconomical to operate as a service station site. We disagree.
III.
A threshold problem confronting us is the standard of review. Sunray asserts that the Tax Court based its decision on findings of fact, which included a finding as to the parties’ intent, and that these findings are binding upon us unless clearly erroneous. The record in the instant case, however, rests substantially on an indisputed record, consisting principally of stipulations of the underlying facts and appended exhibits, including the leases at issue. The basic rights, duties, and economic interests of the parties are essentially not in dispute. The dispute centers around the characterization for income tax purposes of the letter and lease agreements. The oral testimony offered by each of the parties was either expert testimony interpreting the documents or background testimony of some of the principals pertaining to the negotiations and their views of the transaction. In ABKCO Industries, Inc., v. Commissioner, 482 F.2d 150, 155 (3d Cir. 1973), we held the “interpretation and construction of a contract is a question of law and that the interpretation by the Tax Court is reviewable by this court.” Of course, the subjective intent of the parties may be a consideration in interpreting an agreement where the documents are ambiguous or incomplete and, in such circumstances, the court’s determination of the unexplained subjective intent is a finding of fact. When, however, the documents embodying the transaction are clear and complete, “the court is called upon to interpret the documents, and from their substance, to characterize the transaction for tax purposes as a matter of law.” Frank Lyon Co. v. United States, 536 F.2d 746, 751 (8th Cir.), cert. granted, 1976, 429 U.S. 1089, 97 S.Ct. 1097, 51 L.Ed.2d 534. Regardless of whether the parties honestly believe the transaction to be a lease, where the documents they have executed fully embody the elements of their bargain it is the documents themselves, not the parties’ conceptions of them, which must govern the legal characterization of the transaction. See Oesterreich v. Commissioner, 226 F.2d 798, 801-02 (9th Cir. 1955). We view the question here as essentially legal, not factual, and fully reviewable by this court. Helvering v. Lazarus & Co., supra; American Realty Trust v. United States, 498 F.2d 1194, 1198 (4th Cir. 1974).
IY.
In the usual mortgage transaction between a debtor and creditor, the funds advanced to the debtor are secured by a lien on his property. The debtor agrees to repay the funds over a fixed term together with specified interest for their use; generally, the ownership of property does not change hands. The usual business bargain between a commercial lessor and lessee is far more complex. Real estate interests between a lessor and lessee normally are divided into a number of parts, each of which represents an ownership interest in property. In order to sort out these interests, the following pragmatic approach has recently been suggested:
If the characterization for federal income tax law purposes of the interests of a lessor and a lessee is to be determined in a manner consistent with business realities, the inquiry must change from “Who is the owner of the property for tax purposes?” to “Are the ownership interests of lessor and lessee as characterized by the parties consistent with traditional substantive business bargains between lessors and lessees?”
Rosenberg & Weinstein, Sale-Leasebacks: An Analysis of These Transactions After The Lyon Decision, 45 J. of Tax, 146, 148 (1976).
In the instant case, the actual conveyance to the Trust of title to the properties and the fair market value of the prices assigned to them does not appear to be an issue. Although Sunray argues that the presence of -fair market value as a consideration for the transfer distinguishes the instant case from Helvering v. Lazarus & Co., supra; and Leeds & Lippincott Co. v. United States, 276 F.2d 927 (3d Cir. 1960), we doubt that this is a controlling consideration. We deem much more significant the relationships of the parties after the transfer of the properties as a result of the burdens, benefits, and risks imposed on each of them by the terms and conditions of their lease agreements. In determining whether the sale-leaseback transactions in the instant case created the traditionally bargained for business relationships between owner and lessee or whether Sunray in fact retained an equity in the real estate despite the conveyances, we look to the economic realities of the leases and not to the labels applied by the parties.
In Lazarus, supra, the taxpayer claimed depreciation on three buildings in which it operated a department store, the legal title to two of which and the assignment of a 99 year lease to the third it had transferred to a bank as trustee for certain land trust-certificate holders. The trustee had at the same time leased all three back to the taxpayer for 99 years with options to renew and purchase. The taxpayer claimed depreciation as a deduction because it bore the capital loss from wear, tear, and exhaustion of the buildings. The Commissioner disallowed the deduction on the ground that the statutory right to depreciation follows legal title. The Court of Tax Appeals, however, allowed the deduction, concluding that the transaction between the taxpayer and the trustee bank was in reality a mortgage loan; that the conveyance of title to the bank was actually given merely as security for a loan and that the “rent” stipulated in the leaseback was intended as a promise to pay an agreed 5 percent interest on the loan. The circuit and Supreme Courts affirmed, the Supreme Court noting that in the field of taxation the courts are “concerned with substance and realities, and formal written documents are not rigidly binding.”
Lazarus, supra, 308 U.S. at 255, 60 S.Ct. at 210.
A. THE RISKS AND RESPONSIBILITIES
As in Lazarus, the lease arrangements between the parties in the case sub judice provide that the lessee, Sunray, pay all taxes and assume the full burden and cost of keeping the premises in good condition. The Trust is relieved of the responsibility to repair, rebuild, or renew any buildings, structures, or improvements “or to make any expenditures whatsoever in connection with this lease . . . .” Moreover, Sunray has agreed to indemnify the Trust and hold it harmless from any and all liabilities arising from the use and occupancy of the premises, including liability for any causes of action, judgments or violations of laws or regulations affecting the premises. Sunray has also obligated itself to pay rent absolutely net throughout the term without deduction or setoff under any circumstances. Diminution of rental even because of casualty or condemnation is not permitted. Thus, it is apparent that the leases impose essentially all burdens, risks, and responsibilities for the properties upon the lessee. Thrusting all of such burdens and risks on the lessee under every condition and circumstance and none on the lessor is hardly consistent with customary substantive bargains in the market place between lessors and lessees.
B. THE BENEFITS OF THE TRANSACTION
1. Bejectable offers upon condemnation or seizure by eminent domain.
In addition to assuming the risks and burdens incident to the ownership of property, Sunray also controls certain important benefits which traditionally are reserved to the owner in the event leased premises are condemned or seized by eminent domain. During the primary term, if all or any part of the leased premises becomes “in the sole and absolute judgment of lessee” undesirable for the lessee’s business or for any use then existing, because of a taking by condemnation or eminent domain, the lessee has the right to make a “rejectable offer” to purchase the property. The Trust has thirty days after receipt of the written offer to accept or reject it and failure to act within the prescribed period constitutes an acceptance. Significantly, the lessee not only has the unilateral right to determine whether the taking is sufficient to make the premises “undesirable” for its further use, but the repurchase price fixed for the offer is equal to the sum of all present values of the quarterly payments to become due after the proposed date of repurchase, plus a pre-determined premium. If Sunray’s offer to repurchase during the primary term is rejected by the Trust, then the condemnation award is payable both to Sunray and the Trust as “their interests may appear” at the time of the taking. During the extended term of the leases, Sunray also has the absolute right to share in any condemnation award as “their interest may appear.” Significantly, if a portion of the premises is taken by condemnation or eminent domain but the lessee elects to occupy the balance, there is no abatement of rent and the entire award for the taking belongs to the lessee. The lessee is also irrevocably empowered to negotiate the terms and price for any taking and to sell and convey the properties without the prior approval or joinder of the Trust. We view the retention of such broad powers by the lessee in the event of condemnation or government seizure of the land, especially the power to negotiate the price for the land, and the absence of rent abatement in the event of a partial taking and continued occupancy of the balance as inconsistent with the traditional role of a lessee.
2. Rejectable offers upon discontinuance of use.
Sunray also enjoys the unique right when, “in the sole exercise of its business judgment,” it decides that the use of a parcel of land is no longer profitable or necessary in conducting its business to make a rejectable offer to purchase it. Again, the price is not dependent upon the fair market value of the land at the time but is fixed in an amount equal to the sum of the present values of all quarterly basic rent payments to become due in the future plus the applicable prepayment premium shown in Schedule “C” attached to the leases.
3. Lessee’s rights of substitution.
Sunray also had the extraordinary and absolute right, in lieu of making any reject-able offer or upon rejection of such an offer, to substitute other land having at least equal value for the leased premises. The value of the land to be substituted “[was to] be determined by the lessee’s book value therefor.” This unilateral right of substitution thus enabled Sunray to reacquire legal title to any parcel of land whenever it made a rejectable offer.
4. Analysis of rejectable offer provisions.
We believe that the substance and reality of the “rejectable offer” provisions, particularly the rights of substitution, enabled Sunray during the taxable years in issue to retain ultimate control over the leased properties subject to repayment with interest of the advances made by the Trust. We cannot accept the Tax Court’s conclusion that the rejectable offer provisions do not vest any equity interest in the lessee because “the trust was under no obligation to accept such offers as might be made.” The Tax Court, failed to analyze the lessee’s rights of substitution, dismissing them with the observation that they were never exercised and were ultimately rescinded on August 9, 1972; we believe these rights of substitution rendered illusory the lessor’s rights to reject an offer.
The limitations of time, distance, and subject matter also erode whatever substance may have existed in the lessor’s rights to reject an offer. The Trust had only thirty days after the receipt of reject-able offers to reject them and the failure to act was deemed to be an acceptance. The offers left the Trust with virtually an impossible task of securing independent appraisals on comparative low unit value properties, securing competent advice, and reaching an intelligent, considered decision within a short time on multiple pieces of diverse properties geographically dispersed over many states. In fact, the Trust initially objected to the thirty-day limitation but ultimately accepted it and agreed to waive an appraisal requirement. Rejecting the offer would have required the Trust, having no employees with background or experience in real estate management, to undertake the heavy burden of managing small real estate parcels and properties scattered over 17 states. The acceptance of such a burden was viewed by trust officials as being inconsistent with the investment goals of this 2V2 billion dollar trust. Furthermore, since Sunray had to certify that the property would no longer be used for its then existing business purposes, the only time the parcels would be repurchased as a practical matter would be for resale. The extreme impracticality of rejecting a rejectable offer is evidenced by the Trust’s acceptance of all 186 of Sunray's “rejectable” offers made during the first few years of the leases. The Trust never took possession of any property described in a rejectable offer.
Thus, Sunray, even though it was the titular lessee of the properties, had the exclusive means of realizing the benefits in appreciation in the market value of the properties by making a rejectable offer which had little likelihood of being rejected; if perchance it were rejected, Sunray had the absolute right to substitute other parcels of property. In addition, as we later discuss, Sunray had also the absolute option to repurchase the properties during the extended terms of the leases for an option price equal to the fair appraised value of the leased premises to the lessor.
In our view, the powers vested in the lessee in the event of condemnation or seizure of property pursuant to the power of eminent domain, including the right to negotiate the sale or settlement price, the right to make rejectable offers, and the extraordinary rights of substitution are significant benefits characteristic of the ownership of property rather than that of a leasehold.
C. THE RENTALS
Rentals in these transactions were apparently geared to return the Trust’s advances plus interest. To achieve such a result, the rentals for the primary term were set at a predetermined figure. According to R. Paul Henry, who negotiated these transactions for Sunray, the rental value was fixed by formula based on a twenty-five year period to enable the Trust to recover the amount of money advanced for the properties plus “a reasonable agreed amount for what would be comparable to interest. And then, should the leases be terminated prior to the end of the twenty-five year primary term, an added amount would be paid to G.E. [the Trust] because this was a rather awkward type transaction.”
Additional evidence in the record indicates that the rentals do not reflect the market value of the properties. We think it significant that the Trust determined the fair rental value for the properties by merely treating the transaction as an “investment alternative,” rather than applying the capitalization of earnings method as an accepted appraisal method. Mr. Pope, the Commissioner’s expert, prepared a valuation report for the properties which is in the record. It reveals that the rentals fixed for the primary term are quite high. A fair rental value for a non-wasting asset such as unimproved land to a lessee with Sunray’s high credit standing would be the cost of money times the investment. Mr. Pope’s valuation report reveals that in October 1964, Government bonds were yielding 4.15 percent, triple A utility bonds were paying 4% percent, and top grade corporate bonds were paying 4.52 percent. Effective mortgage rates ranged from 5.5 percent to 6.1 percent, depending upon the lending institution. Although the annual rate of return due under the transactions with the Trust was 6.79 percent, Mr. Pope revealed that a reasonable rate of return would have been 4% percent, the interest rate specified in the lease agreement, without the amortization of the cost of the land. The amortization of unimproved land as part of the rental, represented by the difference of 2.144 percent, is not a common practice in the marketplace. In short, the rentals were mathematically geared to amortize the moneys advanced by the Trust at the agreed annual rate of 4% percent over the primary 25 year term of the lease or through the exercise of Sunray’s repurchase rights; they bear little resemblance to the true economic value of the properties.
Also supporting the Commissioner’s contention that the rentals do not reflect market value but were merely based on a formula which included the current interest rate plus an amortization factor is the underlying “Schedule of Direct Reduction Loan” attached to the leases which sets forth in typical loan arrangement form the interest rate, the amount of the principal loan, the term of years, the payment number and the apportionment of the quarterly payments between principal and interest. This schedule of payments is identical to the procedures utilized in conventional direct reduction mortgage loans which became popular in this country during the “Great Depression” of the 1930’s. Likewise, in their negotiations, the parties frequently referred to the payment of interest and principal, to “standby fees” and loan “commitment fees,” terms common in mortgage financing and not in the traditional relationships between lessor and lessee.
In the letter dated September 21,1974, to Eastman Dillon, Sunray’s counsel also points out that in the twenty-sixth year of the proposed lease, “the unencumbered appraised value would probably exceed the original investment if present inflationary trends continue.” Notwithstanding his conception of the increased value in the land and his prophetic view of inflationary trends, the rentals payable in the twenty-sixth year and thereafter during the next sixty-four years of the thirteen extended terms do not increase but are sharply reduced. The quarter annual rents drop from $1015.38 to $375.00 for the first two extended terms and then drop again to $225.00 for the next eleven extended terms. Thus, Sunray having paid for the properties in full during the primary term, was entitled to remain in possession for the next sixty-five years at nominal rents. If it exercised all of its options for each of the extended terms, the additional cost therefor, as the Tax Court recognized, was merely to increase the Trust’s return from 4% percent per annum to 5'A percent. It is hardly conceivable that an owner of real estate— especially a large sophisticated trust — concerned with a fair rental on its land rather than a return of its loan and interest, would enter into a lease with sharply declining rentals for sixty-five years following the conclusion of the primary term on December 31, 1989. The extended term features of the lease further indicate to us that the Trust, as a lender, was only looking to a return at a fixed rate on its advances, and not to a reasonable return on the fair market value of property which it held as owner.
D. THE OPTIONS TO REPURCHASE
The repurchase provisions of a sale and leaseback agreement serve the same function as a mortgage loan when the repurchase price is geared to the unamortized principal advanced by the purchaser-lessor. See Frank Lyon Co., supra, 536 F.2d at 752-54. In the instant case, in addition to Sunray’s right to make rejectable offers to repurchase the parcels in certain situations by, in effect, paying off the unpaid principal balance of the Trust’s advance plus the applicable schedule “C” premium payment, Sunray has the absolute right to purchase leased parcels under section 9 of the leases during the first year of each of the thirteen extended terms. This right is subject to the same conditions stipulated in connection with the rejectable offers (1) that Sunray must discontinue the use of the premises “for its then business use” and (2) that the repurchase price be equal to the “fair appraised value of the leased premises to Lessor” as fixed by three appraisers. These provisions give Sunray considerable flexibility despite the requirement that it must discontinue “its then business use” of the property. Since most of the sites were unimproved non-income properties at the time of the lease arrangements, Sunray could improve the properties and resell them to investors whenever it deemed conditions appropriate in the future, as it previously had done on other occasions with similar properties, and such a sale would work a change in the “then business use.” Furthermore, nothing prevented Sunray from diversifying its operations and using the land for other income producing purposes.
The Commissioner contends that the appraisal procedure prescribed for these nonrejectable options gives Sunray another avenue by which to enjoy appreciation and the “equity” built up through its “rental” payments. The contract provides that upon exercise of the option, the lessor and lessee will each appoint an appraiser and the two appraisers thus chosen will select a third. The appraisers are required by majority decision to fix “the fair appraisal value of the leased premises to the Lessor” and the appraisal fees and expenses are to be paid solely by the lessee. The Tax Court disagreed with the Commissioner’s analysis of this provision, reasoning:
Respondent [Commissioner] maintains that the price established by this formula would be the appraised value of the property as encumbered by the Sunray leases — an amount equated by respondent with the present value of future rentals. Thus understood, the provision establishing the option price would preclude the Trust from enjoying appreciation in the value of the property subsequent to the conveyance by Sunray. In our opinion, however, the formula, based as it is upon an appraisal of the property, would secure to the Trust the benefit of such appreciation.
We believe the Tax Court misconstrued the provisions when it read them as requiring the lessee to pay the fair market value for the property upon the exercise of the options. In the absence of a provision to the contrary, the appraisers had to consider all legal obligations encumbering the property in appraising its value and had to recognize the present value of any reversion in the land at the termination of the encumbrance. Plaza Hotel Ass’n v. Wellington Ass’n, 55 Misc.2d 483, 285 N.Y.S.2d 941 (Sup.Ct.), aff’d, 28 A.D.2d 1209, 285 N.Y.S.2d 267 (1967), aff’d, 22 N.Y.2d 846, 293 N.Y.S.2d 108, 239 N.E.2d 736 (1968). Counsel for Sunray recognized that the leases encumbered the properties and adversely affected their appraisal after the primary term. Thus, in assessing the “fair appraised value ... to Lessor,” the appraisers would have to consider the encumbrances of the properties with leases of very low rentals, thereby seriously reducing the present value of future rentals.
The Commissioner also contends that since the option price was equal to the present value of future rents payable under the lease the appraisers must recognize that the reversionary value of the property in the year 2055 is de minimis because of the high discount factor applicable to a sum due sixty-five years in the future. If the fair market value had doubled or quadrupled, Sunray would be able to acquire the property for a fraction of its original cost. Sun-ray argues, on the other hand, that the lease agreements are not totally clear, and that the Commissioner’s interpretation conflicts with the language of the lease, with the interpretation of his own expert, and with that of the trustees of the Trust. Sunray asserts that the Tax Court appropriately found that the option price was not merely equivalent to the present value of future rents but that it would secure to the Trust, upon appraisal, the benefit of any appreciation in value of the properties.
Our review of this holding by the Tax Court is not limited to the clearly erroneous rule, as Sunray argues, since the interpretation of the option provisions is a question of law. We disagree with the Tax Court’s view of these provisions of the leases for the reasons previously expressed and hold that the “then appraised value” to the lessor is essentially equivalent to the present value of the future rents under the lease. Thus, the options to repurchase provide Sunray with a built in latch-string by which it could spring legal title to the properties whenever it served its convenience without obligating Sunray to pay the fair market value. Sunray could thereby acquire the benefits of appreciation in the property by merely paying the present value of future rents payable under the lease.
Finally, Sunray contends that the Trust may, without notice to or consent of Sun-ray, assign or transfer to any party, for any purpose, at any time its rights under the lease, even for purposes of refinancing. It argues that the Trust’s ability to refinance its investment is a significant attribute of real estate ownership. This may be true as a general principle. In the instant case, however, the right to assign or refinance may be hollow since it is subject to the extraordinary low rentals during the lengthy extended terms of the leases. Furthermore, any significance attached to the right to refinance is eroded in the instant case by other significant attributes of ownership retained by the lessee.
V.
In conclusion, we recognize that sale-leaseback arrangements play a useful and accepted role in our economy. We also note that some of the provisions of the leases in the instant case when viewed independently do not brand the transaction as a financing arrangement. A number of other important features, however, “have been employed in the same transaction with the cumulative effect of depriving [the lessor] of any significant ownership interest.” Frank Lyon Company v. United States, supra, 536 F.2d at 754.
As the lessee, Sunray bore the burdens, risks, and responsibilities for the properties, including the obligation to provide the Trust with a fixed guaranteed return under all circumstances and conditions. The lessee also controlled important benefits traditionally reserved to the owner of property: the lessee had the right to negotiate the settlement or accept the condemnation award and receive the payment; in the event of total or partial condemnation the lessee retained the right to terminate the lease whenever in its sole judgment a parcel of land was no longer profitable or necessary in its business and to make a “rejectable offer” which for all practical purposes was unrejectable; the lessee, in any event, enjoyed the right to substitute other land if perchance an offer was rejected or in substitution of a rejectable offer. These risks, burdens, and benefits are strong attributes of ownership, not of a leasehold interest.
The leases also bear marked similarities to debt financing, particularly to direct reductions loans, including the structural and guaranteed interest rate, consistent with the going market interest rate for quality firms of Sunray’s credit standing, the prepayment penalties, the schedule of payments, and the rejectable offer procedures. The rents have no visible connection with the economic value of the property but are evidently related to a fixed interest return on the advances. Finally, the options to acquire the property at the end of the primary term at the value to the lessor is a form of “equity” because the value to lessor is really the present value of future payments for sixty-five years at a specified rate.
We therefore conclude that the sale-leaseback transactions were a financing arrangement. Sunray’s claim under section 162(a)(3) for rental payments made pursuant to the leases will accordingly be disallowed.
The decision of the Tax Court will be reversed and the case remanded for the entry of an appropriate decision not inconsistent with this opinion.
. Section 162(a)(3) of the Internal Revenue Code of 1954 provides in part that,
(a) In general. — There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including — . . . (3) rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.
. The General Electric Pension Trust is a fiduciary trust to which the General Electric Company and its affiliates contribute funds pursuant to plans of deferred compensation which meet the requirements of section 404(a) of the Code and qualify the Trust for exemption from federal income taxes. The Trust had assets of approximately two and one-half billion dollars at the time of the tax court hearing in this case. No relationship whatsoever existed between Sunray and the Trust prior to the sale and leaseback transaction now under consideration.
. Sunray agreed to convey the properties at cost because it believed there would be no substantial difference between the appraised value and Sunray’s actual cost of acquisition, most acquisitions having been made during the preceding 18 months. This also relieved Sun-ray of the necessity for expensive and time consuming appraisals.
. Under the leases executed pursuant to the firm letter agreement, the present value of a rent payment is to be determined by discounting it on the basis of an annual interest rate of 4/s percent from the date on which it is payable to the date on which the present value is to be determined.
. The lessee can be relieved of the premium by certifying that it will discontinue the use of the leased premises for any income producing activity.
. R. Paul Henry, former senior vice-president for Finance and Planning for Sunray, testified that “we put [this provision] in there in the event the tax law changed and the tax consequences of this deal changed for either party, it permitted the deal to be unwound. But, I know we had some discussion of possible changes in tax law and it was decided it would not be wise to identify that as an occasion for rejectable offer and I think this language [in the leases] was adopted to substitute for that.”
. Sunray’s right to substitute other parcels in the event the Trust rejected a rejectable offer was rescinded by the parties 8 years later, after the commencement of an audit by the Commissioner.
. Mr. Henry acknowledged that in this instance the premium was “the factor applied to bring the effective rate up to either 5 percent or 5A percent in the event of premature termination of the leases,” and that prepayment penalties arise in mortgage transactions, debenture financing, or private placement loans.
. The Tax Court in the instant case did not make any findings of fact or conclusions of law regarding the reasonableness of the rent payable by Sunray during either the primary or extended terms of the lease. Compare Leslie Co. v. Commissioner, 539 F.2d 943 (3d Cir. 1976), in which we relied on the Tax Court’s findings as to the fair rental value of the leasehold.
. In his lengthy letter dated September 21, 1964, to Eastman Dillon, chief counsel for Sun-ray understood the essence of the transaction as a loan. He wrote: “A money lender who is being offered at least a return of the principal together with 5 percent interest thereon should have no reason to insist on an appraisal.” Another paragraph of the same letter refers to the unacceptability of the Trust’s proposal because of its adverse effects on “the economics of the financing." (Emphasis supplied.)
. The Tax Court stated that “[i]f Sunray were to exercise all the options to renew, the Trust would realize a return of approximately 5‘A percent per annum on its investment over the terms of the lease as extended.”
. This view is reflected in his letter of September 21, 1964, to Eastman Dillon wherein he writes: “Since, as of the time of the exercise of the option, the land is still burdened with the Lease, the repurchase price is essentially the then present value of future rents under the Lease. . . . Because of the low extended term lease rents (2.5% per annum, of the original investment for 10 years, and 1.5% per annum for the remaining 55 years) the unencumbered appraised value would almost certainly be higher than the encumbered appraised value.”
. Mr. Pope illustrated this point with the following example. Assuming a property cost $60,000 at the outset of the sale in 1965 and it had a market value of $100,000 in 1990. Given a 6 percent factor, Sunray could repurchase the property for about $21,000.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_state | 21 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Appellee, v. Joanne Uline GIDDEN, Appellant.
No. 79-5122.
United States Court of Appeals, Fourth Circuit.
Argued April 2, 1982.
Decided May 17, 1982.
Certiorari Denied Oct. 4, 1982.
See 103 S.Ct. 167.
Joseph A. Miklasz, Glen Bumie, Md. (M. R. Rohrback, Glen Bumie, Md., on brief), for appellant.
Catherine C. Blake, Asst. U. S. Atty., Baltimore, Md. (J. Frederick Motz, U. S. Atty., Jane W. Moscowitz, Asst. U. S. Atty., Baltimore, Md., on brief), for appellee.
Before BUTZNER, RUSSELL and HALL, Circuit Judges.
PER CURIAM:
Joanne Uline Gidden was convicted under 18 U.S.C. § 81 for setting fire to her family’s living quarters at the Annapolis Naval Station. She appeals and we affirm.
One of Gidden’s arguments merits brief attention because of its novelty. She contends that the government destroyed the evidence of the fire by repairing the apartment and, as a consequence, her expert witness was unable to formulate an opinion about the source of the fire. Although the government agents took photographs of the scene and saved bags of evidence which they though would be relevant, Gidden’s expert opined that those pieces of evidence were insufficient to support any conclusions.
We simply cannot agree that the government should have left the burned apartment intact until an indictment issued and the defendant’s expert had an opportunity to see it. Health and safety considerations as well as the practical necessity of utilizing the space available for military housing required that the Giddens’ living quarters be restored to normal without undue delay. Moreover, the categorical imperative is disturbing: if every crime scene were preserved pending an indictment, a substantial part of our country would be in a state of suspended animation.
The other issues raised on appeal are patently without merit. Accordingly, the judgment of the district court is affirmed.
AFFIRMED.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_opinstat | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
JONES v. WATERMAN S. S. CORPORATION (READING CO., Third Party Defendant).
Nos. 8930, 8945.
Circuit Cburt of Appeals, Third Circuit
Argued Nov. 20, 1945.
Decided May 28, 1946.
McLAUGHLIN, Circuit Judge, dissenting in part.
Abraham E. Freedman, of Philadelphia, Pa. (Freedman, Landy & Lorry, all of Philadelphia, Pa., on the brief), for appellant David E. Jones.
George M. Brodhead, of Philadelphia, Pa. (Rawle & Henderson and Joseph W. Henderson, all of Philadelphia, Pa., on the brief), for appellant Waterman Steamship Co.
Henry R. Heebner and Wm. Clarke Mason, both of Philadelphia, Pa. (Morgan, Lewis & Bockius, of Philadelphia, Pa., on the brief), for appellee.
Before BIGGS, McLAUGHLIN and O’CONNELL, Circuit Judges.
BIGGS, Circuit Judge.
The plaintiff, David E. Jones, a seaman employed by the defendant and third-party plaintiff, Waterman Steamship Corporation, brought suit against his employer in a civil action to recover maintenance and cure and wages. Jones had left his ship, the S.S. “Beauregard”, on shore leave and was proceeding across the pier toward the street when all the lights on the pier were extinguished. As a result of the darkness he fell into an open ditch along a railway siding owned and operated by the third-party defendant, Reading Company, and sustained injuries which incapacitated him for some months. Waterman impleaded Reading Company as a third-party defendant for reasons set out hereinafter.
The suit at bar, Civil Action No. 1481 in the District Court, was instituted by Jones on the same day that he brought a civil action against Reading Company in the court below, Civil Action No. 1480, to recover damages for his injuries and expenses in connection therewith. No. 1480 was tried to a jury and a verdict was returned for the plaintiff in the amount of $2,387.50. Thereafter, the court granted a motion made by Reading for a new trial. See Jones v. Reading Company, D.C., 45 F.Supp. 566. Jones then settled his case with Reading for the sum of $750 and executed a general release in the latter’s favor. The release was in the usual form and released and discharged Reading from all claims and demands whatsoever which Jones had against Reading “by reason of any matter, cause or thing whatsoever * * * and particularly, * * * by reason of injuries and losses sustained as a result of * * * ” the fall “to recover for which I brought suit in the U. S. District Court for the Eastern District of Pennsylvania against Reading Company, in Civil Action No. 1480, * *
During the pendency of No. 1481 Waterman filed a motion to dismiss the action against it on the ground that a ship owner was not liable for maintenance and cure for an injury occurring on a pier. The motion was granted by the court below but the judgment was reversed by this court. See 3 Cir., 130 F.2d 797. Our decision was affirmed. Aguilar v. Standard Oil Co., 318 U.S. 724, 63 S.Ct. 930, 87 L.Ed. 1107. After remand Waterman filed an answer setting out the release which Jones had executed to Reading and impleaded Reading asserting that Waterman is entitled to indemnity from Reading for any sum which Jones may recover against Waterman.
The case went to trial. Jones introduced as evidence the testimony received in No. 1480. Other evidence was also received which need not be detailed here. It is enough to state that certain testimony was given by Jones respecting his inability to work following his medical discharge and that shipping articles of the “Beauregard” were introduced in evidence as was the release to Reading. In No. 1480 Jones sought to recover both compensation and consequential damages, the latter including, as the evidence shows, substantially all the items recoverable by Jones as maintenance and cure and wages.
The court below in the instant case concluded that “To permit the plaintiff to successfully prosecute [the action at bar] would be to enable him to obtain two satisfactions for the one injury by resort to two different causes of action.” 60 F.Supp. 30, 32. Judgment was entered in favor of Waterman and against Jones. Judgment also was entered in favor of Reading as third-party defendant and against Waterman as third-party plaintiff on the theory enunciated in The Federal No. 2, 2 Cir., 21 F.2d 313. Both Jones and Waterman have appealed at our Nos. 8930 and 8945, respectively.
If a seaman falls sick or is injured and must be removed or is kept from his vessel he is entitled to maintenance and cure as well as to his wages. Smith v. Lylces Brothers-Ripley S.S. Co., 5 Cir., 105 F.2d 604, 605. Wages, even if they include “keep”, must be restricted to the term of employment as specified by the shipping articles while the duty to provide maintenance and cure lasts as long as the seaman’s need continues. Calmar Steamship Corporation v. Taylor, 303 U.S. 525, 58 S. Ct. 651, 82 L.Ed. 993; Loverich v. Warner Co., 3 Cir., 118 F.2d 690, certiorari denied 313 U.S. 577, 61 S.Ct. 1104, 85 L.Ed. 1535. Jones has a cause of action against Waterman for maintenance and cure and for his wages as set out in his complaint in the suit at bar. This is an action ex contractu. Jones may maintain it by reason of the obligations and duties imposed on Waterman by the shipping articles and by virtue of his status as a member of the crew of the “Beauregard”. Jones also had a cause of action against Reading sounding in tort and arising ex delicto by reason of Reading’s alleged failure properly to maintain its right-of-way. Jones was careful to restrict his complaint in the case at bar to a claim for “wages to the end of the articles and maintenance and cure for the period of his disability * * * He does not seek to recover damages from Waterman.
The distinction between the right to maintenance and cure and wages and the right to damages is made clear by the Supreme Court in Pacific Steamship Co. v. Peterson, 278 U.S. 130, 138, 49 S.Ct. 75, 77, 73 L.Ed. 220, wherein Mr. Justice Sanford stated, “In short, the right to maintenance, cure and wages, implied in law as a contractual obligation arising out of the nature of the employment, is independent of the right to indemnity or compensatory damages for an injury caused by negligence ; and these two rights are consistent and cumulative.” See also Aguilar v. Standard Oil Co., supra, 318 U.S. at pages 730, 731, 63 S.Ct. 930, 87 L.Ed. 1107. Jones could not have recovered maintenance and cure and wages from Reading, nor may he recover damages from Waterman. It follows that Waterman and Reading were not joint tortfeasors. In fact, Waterman committed no tort. It is not alleged that it did. Under no theory of law can Jones’ release to Reading release Waterman. It is unnecessary therefore to discuss the Pennsylvania law of release of joint tortfeasors or to compare it with the federal law. Cf. Thompson v. Fox, 326 Pa. 209, 192 A. 107, 112 A.L.R. 550 and McKenna v. Austin, 77 U.S.App.D.C. 228, 134 F.2d 659, 148 A.L.R. 1253.
Jones has settled his cause of action against Reading but he is free to assert and to recover on his ex contractu cause of action against Waterman. He would be free to do this even if he had obtained a judgment against Reading and had executed it. The circumstances are somewhat analogous to those which would be presented if a person insured against personal liability were injured by an automobile driven by an alleged tortfeasor. He has sued the tortfeasor who drove the automobile which hit him and recovered a verdict. This has been set aside and he, thereafter, makes a settlement with the alleged tortfeasor. He then seeks to collect a sum of money which he alleges is due to him under his insurance policy because of his injuries. The insurance carrier says, “You have made a settlement with and have received money from the tortfeasor, the amount of your claim against us has been satisfied.by that settlement or at the least your recovery against us must be reduced pro tanto.” This contention in substance was dealt with by the court in Dempsey v. Baltimore & O. R. Co., D.C., 219 F. 619 and was refuted. See also Sprinkle v. Davis, 111 F. 2d 925, 128 A.L.R. 1101 and Clune v. Ris-tine, 10 Cir., 94 F. 745. The position taken by Waterman as to Jones is untenable.
In the suit at No. 1480 there was a certain confusion evinced by counsel for both parties as to the nature of the damages which Jones was entitled to prove and this confusion seems to have been carried over into the suit at bar. As we have indicated at an earlier point in this opinion, a seaman is entitled to wages only to the end of the period of time covered by the shipping articles, whereas he is entitled to maintenance and cure as long as he shall have need of them. Two sets of shipping articles were introduced in evidence. We are concerned with only one, those signed by Jones on January 6, 1941, and which were in effect on January 16, 1941, the day of the accident. It has been stipulated by the parties that these shipping articles were “closed out” on February 5, 1941. But the articles state, inter alia, that the seamen should make one or more voyages on the “Beauregard” as the master might direct “for a term of time not exceeding twenty-four calendar months.” We entertain no doubt in the light of such decisions as MCarron v. Dominion Atlantic Railway Company, D.C., 134 F. 762, and Enochasson v. Freeport Sulphur Co., D.C., 7 F.2d 674, that Waterman’s obligation to pay Jones’ wages endured as long as the period for which he claims maintenance and cure. Since this was the fact the District Court at No. 1480 could not have permitted Jones to recover from Reading damages based upon maintenance and cure and wages. Jones was entitled to recover in the suit at No. 1480 only compensatory damages including an amount to be awarded for pain and suffering. Since Jones was not entitled to recover damages for maintenance and cure and wages in the suit at No. 1480, all other considerations aside, these elements may not be deemed to have been included in the settlement of the suit at No. 1480.
We come now to the final phase of the case at bar. The question presented by it may be summed up as follows: May Waterman recover from Reading any sum which it may be required to pay to Jones for maintenance and cure and wages? In other words, if Waterman pays Jones, is Waterman entitled to indemnity from Reading if it be found that Reading negligently caused Jones’ injuries? The third party complaint filed by Waterman does not allege specifically that Reading was negligent or that Jones was injured by reason of Reading’s negligence. It does aver, however, that Reading was in charge of the premises through which Jones walked as an invitee and that when the lights on the pier were extinguished Jones fell into the railroad “ditch” sustaining the injuries which he recites in his complaint. The evidence in No. 1480 was introduced by a stipulation into the case at bar. The court below in the case at bar made no findings of fact or conclusions of law as to Reading s negligence, if any, since it relied on The Federal No. 2, supra. It is suggested by counsel for Jones that this court “as in an action in admiralty” may make findings of fact and conclusions of law. We may not do this. The suit at bar is not in admiralty though Jones’ rights against Waterman are governed by the general maritime law. It is a civil suit and is to be conducted in the court below according to the Rules of Civil Procedure. 28 U.S. C.A. following section 723c. Since it was tried to the court and not to a jury, findings of fact and conclusions of law must be made by the court b'elow as required by Rule 52. For the purpose of expediting the cause we will assume, arguendo, that Jones’ injuries were caused by Reading’s negligence and will endeavor to state the applicable principles of law governing the third-party action.
Whether Waterman may maintain its action against Reading in the present suit depends in part on whether the cause of action set out in the third-party complaint can be fitted into the frame of Rule 14(a). The answer to this question turns in large part on the construction, of the word “claim” as used in the rule. We think it would be difficult to employ a more inclusive term, and, as is stated in Moore’s Federal Practice, Vol. 1, at p. 742, “ * * * it is reasonably certain that Federal Rule 14 sought the same general objectives as * * * Admiralty Rule [56].” Admiralty Rule 56, 28 U.S.C.A. following section 723, is very broad and, if the suit at bar were in admiralty, would permit the defendant to maintain the third-party complaint under the assumption of proof which we have made. Moore states also at p. 740, that “The general purpose of Rule 14 is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence, to obtain consistent results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.” If Waterman will have a claim which it can assert against Reading because compelled to pay Jones money which, absent Reading’s negligence in relation to Jones, it would not have to pay, Waterman may assert that claim in the suit at bar by way of its third-party complaint.
The primary question therefore is whether or not Waterman has a cause of action which it can assert against Reading if Waterman is compelled to pay Jones. We think that Waterman has such a cause of action if it can prove that Reading’s negligence was the cause of Jones’ injuries. If Waterman can recover from Reading it can do so because a cause of action arises under the law of Pennsylvania where the operative facts occurred. and No Pennsylvania case in point has been cited to us and we can find none. The right is one of an employer to recover indemnity for sums of money which he has been compelled to pay to a servant who has been injured by the tortious act of another. This is not the right of an employer to recover against a tortfeasor for an act which has deprived him of the services of a servant but resembles the latter. It is desirable to state some of the precedents of the general law to the end that our reasons for allowing recovery to Waterman under the assumptions hereinbefore stated may be made plain.
At common law an employer could maintain an action against a tortfeasor to recover damages on account of loss of services which he sustained by reason of an injury to his employee. This cause of action included damages measured by the loss of the employee’s services. See 35 American Jurisprudence, Master and Servant, § 530, and the authorities cited therein, and 18 R.C.L., 542, § 58. As to servants infra moenia, some cases held that the master could recover only his out-of-pocket expense due to being deprived of the services. This rule of law persisted to a rather late date in New York. See Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 A.L.R. 1145. These rights in substance were those of indemnification. Some of the early cases permitted indemnification against an intentional tortfeasor and denied it as to a merely negligent tortfeasor. The Supreme Judicial Court of Massachusetts did not make such a distinction in Ames v. Union Railway, 1875, 117 Mass. 541, 19 Am.Rep. 426, but permitted a master to recover for the loss of apprentice’s services, the latter having been injured due to negligent operation of the railway. See Coal Land Development Co. v. Chidister, 86 W.Va. 561, 103 S.E. 923. The American courts seem to have made no distinction between loss of services caused by intentional wrongdoing, such as assault and battery, and those in which the loss of services resulted from mere negligence. See Voss v. Howard, Fed.Cas. No. 17,013. The case of Cain v. Vollmer, 19 Idaho 163, 112 P. 686, 32 L.R.A. N.S., 38, seems typical. In this case a jockey was injured by a dog, negligently permitted to wander at large by its master. The employer of the jockey sued to recover the value of the prizes which the jockey might have won had he been able to ride. The damages, however, were held to be too speculative to permit recovery. The Supreme Court of Idaho, however, clearly found that a cause of action existed. Compare Fluker v. Georgia Railroad & Banking Co., 81 Ga. 461, 8 S.E. 529, 2 L.R.A. 843, 12 Am.St.Rep. 328.
A case which denies the master’s right to recovery is Chelsea Moving & Trucking Co. v. Ross Towboat Co., 280 Mass. 282, 182 N.E. 477. The Supreme Judicial Court of Massachusetts distinguished Ames v. Union Railway, supra, on the ground that the employee in the Ames case was an apprentice and the relationship between master and apprentice was different from that of an ordinary employer and employee, which was purely contractual. The Chelsea Moving & Trucking Co. case is the only decision among the early cases which we have found (though doubtless there are others in the deeps of the law) which holds that an employer cannot recover indemnity for the loss of his employee’s services, whether the loss was caused by intentional wrongdoing or negligence. The English law may have gone off in the direction of permitting recovery only if there had been intentional tortious interference with the employer and employee relationship. Lum-ley v. Gye, 2 El. & Bl. 216, may be said to look in that direction. But the general law in the United States upon this subject seems settled.
This is not to say, however, that the employer or master may necessarily recover the sums expended by him out of his own pocket to cure the servant or employee or to maintain him during the illness resulting from an accident. It would seem to follow, however, as a matter of logic that if the master by virtue of his contract of employment with the servant is compelled to maintain and cure his servant during the latter’s illness the master should be permitted to recover these sums from the wrongdoer as part of the remedy afforded him in his cause of action against the wrongdoer. There are a number of cases arising under the general maritime law where such recovery or indemnification was permitted. In Mystic Terminal Co. v. Thibeault, 1 Cir., 108 F.2d 813, the operator of a car float towed by a tug was held liable for injuries sustained by the mate of the tug when he stepped through the rotted roof of the car float. It was held that the mate was on the roof for a business purpose and that it was the intention of the parties to include within the contract of towage and implied warranty of a safe place to work. In New York & Porto Rico S.S. Co. of New York v. Lee’s Lighters, D.C.E.D.N.Y., 48 F.2d 372, the court held that the steamship company was entitled to indemnity for money paid by it in satisfaction of a judgment obtained against it, plus expenses, arising out of an injury to a stevedore, employed by the steamship company, the accident arising out of the unseaworthiness of a lighter operated by the lighterage company. It was held that there was an implied warranty of seaworthiness in the lighter under the lighterage contract. This case should be viewed in the light of the recent decision of the Supreme Court in Seas Shipping Co., Inc., v. Sieracki, 66 S. Ct. 872. In The No. 34, 2 Cir., 25 F.2d 602, a stevedoring company whose employee was injured by a defective ladder fastened to the side of a lighter and who had recovered a judgment against his employer in the state court, was held to be entitled to indemnification from the owner of the lighter. Again, it was ruled that there was an implied warranty of a safe place to work as an incident of the stevedoring contract. See also The Lewis Luckenbach, 2 Cir.., 207 F. 66. In this case a stevedore had been injured due to a defect in the ship’s machinery. The stevedore sued the owner and the charterer and settled with both. The charterer sued the owner for indemnity and recovered. See also Rederii v. Jarka Corporation, .D.C.S.D.Me., 26 F. Supp. 304. In this case an employee of a stevedoring company was injured in the hull of a vessel under circumstances possibly entitling him to compensation under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C.A. § 901 et seq. He sued the vessel and made a compromise settlement. The owner of the vessel brought a libel in personam against the stevedoring company for indemnity. It was held that the owner of the vessel had a cause of action. The Federal No. 2, supra, is the only decision which we have been able to find which militates against this view. We will discuss that decision at a later point in this opinion.
If the principles of the majority of the decisions cited in the foregoing paragraph are sound it would follow that indemnity or recovery over may be had against a pier owner, or one holding under him, by a ship for sums expended by it for the maintenance and cure of one of its seamen injured because the pier was not maintained in a condition fit for the business purpose for which it was intended. The duty to maintain the pier, or a railroad track running upon it, in a safe condition for the benefit of seamen leaving a ship moored to the pier is a warranty implicit in the contract between the pier owner and the ship and in the contract or arrangement between the pier owner and the railroad whose tracks run upon the pier. But putting this tortious spelling out of contractual obligations and implied warranties aside, it is clear that Reading had a duty so to maintain its tracks on the pier that a seaman leaving the “Beauregard” would not be injured if he exercised due care. Under this concept Reading’s obligation sounds in tort and not in contract but is none the less binding upon it for that reason. Chief Justice Holmes took this position in Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781, 86 Am.St.Rep. 478, declaring that although the cause of action of the injured employee against the third party sounded in tort and the obligations and duties of the employer and the employee sounded in contract, the right of the employer to indemnity against the tortfeasor who had injured the employee was not impaired.
We come finally to such Pennsylvania cases as there are. There is no doubt that under the Pennsylvania law an employer has a right to recover against a tortfeasor for an act deliberately intended to deprive him of the services of his servant. Such a right was recognized by the early Pennsylvania decisions dealing with labor relations. We believe that the law of Pennsylvania follows the general law and will permit the employer to recover from a negligent tortfeasor for the value of the services of his injured employee, though we can find no decision directly in point upon this question. It is the law of Pennsylvania that property owners may recover indemnity from persons whose primary negligence has caused them to pay damages to injured persons. See Orth v. Consumers’ Gas Co., 280 Pa. 118, 124 A. 296, and Wise Shoes, Inc., v. Blatt, 107 Pa. Super. 473, 164 A. 89. Here the duty imposed upon the corporations primarily liable sounds in tort and grows directly out of the failure to maintain premises properly. The Pennsylvania labor relations cases and the two decisions last cited throw some light on the problem of law presented. Moreover, it must be borne in mind that the obligation of Waterman in the instant case grows out of the maritime law. Waterman cannot escape the burden of Jones’ maintenance and cure and it could not escape the loss of his services. Each element of the loss rose out of Reading’s tort, assuming Reading to have been negligent. We think that under these circumstances the law of Pennsylvania will permit Waterman to recover not only for the loss of Jones’ services but for the sums which it will be compelled to expend for his maintenance and cure.
In so holding we are not unmindful of the decision of the Circuit Court of Appeals for the Second Circuit in The Federal No. 2 which held to the contrary under circumstances analogous to those at bar. The substance of that Court’s ruling appears in 21 F.2d at page 314, where, after reference to a “social condition” which permits a father to recover for the loss of the services of a child or a husband for those of his wife, states, “But this social condition does not exist in the relationship of a seaman and his employer. It is a contract obligation, which [the employer] must perform, that imposes this responsibility, even though it be a special damage he suffers from a tortious act. The cause of the responsibility is the contract; the tort is the remote occasion.” In Seas Shipping Co., Inc. v. Sieracki, Mr. Justice Rutledge makes it plain that the obligations of the ship to its seamen do not rest solely in contract ; that a seaman is in effect a ward of the admiralty and that the relationship between owner and seaman, master and seaman, and ship and seaman is in essence a “consensual relationship”. We are of the opinion that the relationship of the ship owner to the seaman is more closely analogous to that of father and child than to that of an employer to a mere employee. We prefer to impose a higher degree of dignity upon the ship-seaman relationship, awarding to it a status or a “social condition” in excess of that given under the ruling in The Federal No. 2. Compare Crab Orchard Imp. Co. v. Chesapeake & O. R. Co., 4 Cir., 115 F.2d 277, 282, 283, where an employer was not permitted to recover indemnity against the tortfeasor who had injured his employee. It should be pointed out that in the cited case the relationship was merely that of employer and employee.
The status of the ship to its seaman bears comparison to that of a soldier in the United States Army to the United States. In United States v. Standard Oil Co., D.C. S.D.Cal., 60 F.Supp. 807, the United States sued the Standard Oil Company for indemnity for the money expended by it to cure an enlisted man of the United States Army who had been struck by the defendant’s truck and for the soldier’s wages during the period of his incapacity. The court permitted the recovery of both items. While the status of an enlisted man in the armed forces of the United States may be described as statutory and the obligation of the ship to grant maintenance and cure to the injured seaman arises under the admiralty law as embodied in decisions, the principle of liability so clearly enunciated in the cited case should be applicable under the facts of the case at bar. While the courts of the Commonwealth of Pennsylvania have not applied the maxim “Ubi jus, ibi remedi-um”, they have been apt in indemnifying injured employers and we conclude that it is no very great innovation to permit Waterman to recover from Reading for maintenance and cure to be paid by it to Jones, if Reading’s negligence is found to be the cause of Jones’ injuries.
It is clear that the release executed by Jones to Reading will not avail Reading in the third-party action for the right of Waterman against Reading is not a derivative right through Jones but is a separate and distinct cause of action which will vest in Waterman when it is ascertained what sum of money is due from Waterman to Jones. Cf. United States v. Standard Oil Co., supra.
The judgment against Jones and in favor of Waterman will be reversed. The judgment in favor of Reading and against Waterman will be reversed. The cause will be remanded with the direction to proceed in accordance with this opinion.
AVkile there was no express waiver of jury trial, the original plaintiff having requested trial by jury on April 17, 1941, as provided by Rule 38(b) and the third party plaintiff haying made no such request, it is apparent from the transcript of the proceedings in the court below on June 5, 1944, the day of the trial, that all the pai'ties waived all rights to trial by jury.
See that portion of Rule 14(a) which provides that a defendant may “serve a summons and complaint upon a person not a party to the action who is or may be liable to him or to the plaintiff for all or part of the plaintiff’s claim against him.”
The dividing line between Admiralty and the common law is set out in Bee. 128 and 128a of Benedict on Admiralty, Knauth’s 6th Ed. Contrast the English and American Rules. See the authorities cited to Knauth’s text. Under the decisions of the American courts there is no doubt that Waterman’s cause of action does not lie within the purview of the maritime law.
It will be observed that the third-party complaint alleges diversity of citizenship and jurisdictional amount and that tlie rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487 must be applied.
The action by husband or parent for loss of services of wife or child is closely analogous. See the Restatement, Torts, Section 703. It will be noted that the husband or parent is entitled to recover reasonable expenses incurred in treating the illness or injury. See h. Damages, under Section 703 of the Restatement. The recovery of such items may be had because the husband or parent is himself legally liable for them.
It is stated as follows in 39 C.J., Master and Servant, § 1604, “A master may maintain an action for all injuries to his servants because of the negligent or wilful acts of third persons wMch result in damage to the master through loss of services; and the rule has been applied where loss of services resulted from an assault and battery upon the servant, or by reason of his false imprisonment, from the negligent shooting of the servant, or from negligently driving or transporting him, or from his being bitten by defendant’s dog.” See the authorities cited to the text, some of which have been referred to in this opinion.
The fact that a husband or father, suing for loss of services of wife or child, may recover for medical expenses supplies a helpful analogy. See note 5 supra.
See O’Neil v. Behanna, 182 Pa. 236, 37 A. 843, 38 L.R.A. 382, 61 Am.St.Rep. 702; Jefferson & Indiana Coal Co. v. Marks, 287 Pa. 171, 134 A. 430, 47 A. L.R. 745; Flaccus v. Smith, 199 Pa. 128, 48 A. 894, 54 L.R.A. 640, 85 Am. St.Rep. 779; Kraemer Hosiery Co. v. American Federation of Full Fashioned Hosiery Workers, 305 Pa. 206, 157 A. 588. Cf. Tugboat Indian Co. v. A/S Ivarans Rederi, 334 Pa. 15, 5 A.2d 153, cited by Reading.
As to the general common law on this subject see 18 R.C.L. p. 542, § 58, and the authority cited to the text.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
sc_lcdispositiondirection | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the decision of the court whose decision the Supreme Court reviewed was itself liberal or conservative. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. The lower court's decision direction is unspecifiable if the manner in which the Supreme Court took jurisdiction is original or certification; or if the direction of the Supreme Court's decision is unspecifiable and the main issue pertains to private law or interstate relations
UNITED STATES v. ALVAREZ-MACHAIN
No. 91-712.
Argued April 1, 1992
Decided June 15, 1992
Rehnquist, C. J., delivered the opinion of the Court, in which White, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Blackmun and O’Connor, JJ., joined, post, p. 670.
Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Michael R. Dreeben, and Kathleen A. Felton.
Paul L. Hoffman argued the cause for respondent. With him on the brief were Ralph G. Steinhardt, Robin S. Toma, Mark D. Rosenbaum, John A. Powell, Steven R. Shapiro, Kate Martin, and Robert Steinberg.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the Government of Canada by Axel Kleiboemer; for the United Mexican States by Bruno A Ristau and Michael Abbell; for the Allard K. Lowenstein International Human Rights Clinic et al. by Harold Hongju Koh, Michael Ratner, Peter Weiss, and David Cole; for the Association of the Bar of the City of New York by Sidney S. Rosdeitcher; for the International Human Rights Law Group by Paul Nielson and Steven M. Schneebaum; for the Lawyers Committee for Human Rights by Ruth Wedgwood; for the Minnesota Lawyers International Human Rights Committee by David S. Weissbrodt; and for Rene Martin Verdugo-Urquidez by Patrick Q. Hall and Charles L. Goldberg.
Kenneth Roth and Stephen M. Kristovich filed a brief for Americas Watch as amicus curiae.
Chief Justice Rehnquist
delivered the opinion of the Court.
The issue in this case is whether a criminal defendant, abducted to the United States from a nation with which it has an extradition treaty, thereby acquires a defense to the jurisdiction of this country’s courts. We hold that he does not, and that he may be tried in federal district court for violations of the criminal law of the United States.
Respondent, Humberto Alvarez-Machain, is a citizen and resident of Mexico. He was indicted for participating in the kidnap and murder of United States Drug Enforcement Administration (DEA) special agent Enrique Camarena-Salazar and a Mexican pilot working with Camarena, Alfredo Zavala-Avelar. The DEA believes that respondent, a medical doctor, participated in the murder by prolonging Agent Camare-na’s life so that others could further torture and interrogate him. On April 2, 1990, respondent was forcibly kidnaped from his medical office in Guadalajara, Mexico, to be flown by private plane to El Paso, Texas, where he was arrested by DEA officials. The District Court concluded that DEA agents were responsible for respondent’s abduction, although they were not personally involved in it. United States v. Caro-Quintero, 745 F. Supp. 599, 602-604, 609 (CD Cal. 1990).
Respondent moved to dismiss the indictment, claiming that his abduction constituted outrageous governmental conduct, and that the District Court lacked jurisdiction to try him because he was abducted in violation of the extradition treaty between the United States and Mexico. Extradition Treaty, May 4, 1978, [1979] United States-United Mexican States, 31 U. S. T. 5059, T. I. A. S. No. 9656 (Extradition Treaty or Treaty). The District Court rejected the outrageous governmental conduct claim, but held that it lacked jurisdiction to try respondent because his abduction violated the Extradition Treaty. The District Court discharged respondent and ordered that he be repatriated to Mexico. 745 F. Supp., at 614.
The Court of Appeals affirmed the dismissal of the indictment and the repatriation of respondent, relying on its decision in United States v. Verdugo-Urquidez, 939 F. 2d 1341 (CA9 1991), cert. pending, No. 91-670. 946 F. 2d 1466 (1991). In Verdugo, the Court of Appeals held that the forcible abduction of a Mexican national with the authorization or participation of the United States violated the Extradition Treaty between the United States and Mexico. Although the Treaty does not expressly prohibit such abductions, the Court of Appeals held that the “purpose” of the Treaty was violated by a forcible abduction, 939 F. 2d, at 1350, which, along with a formal protest by the offended nation, would give a defendant the right to invoke the Treaty violation to defeat jurisdiction of the District Court to try him. The Court of Appeals further held that the proper remedy for such a violation would be dismissal of the indictment and repatriation of the defendant to Mexico.
In the instant case, the Court of Appeals affirmed the District Court’s finding that the United States had authorized the abduction of respondent, and that letters from the Mexican Government to the United States Government served as an official protest of the Treaty violation. Therefore, the Court of Appeals ordered that the indictment against respondent be dismissed and that respondent be repatriated to Mexico. 946 F. 2d, at 1467. We granted certiorari, 502 U. S. 1024 (1992), and now reverse.
Although we have never before addressed the precise issue raised in the present case, we have previously considered proceedings in claimed violation of an extradition treaty and proceedings against a defendant brought before a court by means of a forcible abduction. We addressed the former issue in United States v. Rauscher, 119 U. S. 407 (1886); more precisely, the issue whether the Webster-Ashburton Treaty of 1842, 8 Stat. 576, which governed extraditions between England and the United States, prohibited the prosecution of defendant Rauscher for a crime other than the crime for which he had been extradited. Whether this prohibition, known as the doctrine of specialty, was an intended part of the treaty had been disputed between the two nations for some time. Rauscher, 119 U. S., at 411. Justice Miller delivered the opinion of the Court, which carefully examined the terms and history of the treaty; the practice of nations in regards to extradition treaties; the case law from the States; and the writings of commentators, and reached the following conclusion:
“[A] person who has been brought within the jurisdiction of the court by virtue of proceedings under an extradition treaty, can only be tried for one of the offences described in that treaty, and for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings.” Id., at 430 (emphasis added).
In addition, Justice Miller’s opinion noted that any doubt as to this interpretation was put to rest by two federal statutes which imposed the doctrine of specialty' upon extradition treaties to which the United States was a party. Id., at 423. Unlike the case before us today, the defendant in Rauscher had been brought to the United States by way of an extradition treaty; there was nojssue of a forcible abduction.
In Ker v. Illinois, 119 U. S. 436 (1886), also written by Justice Miller and decided the same day as Rauscher, we addressed the issue of a defendant brought before the court by way of a forcible abduction. Frederick Ker had been, tried and convicted in an Illinois, court for larceny; his presence before the court was procured by means of forcible abduction from Peru. A messenger was sent to Lima with the proper warrant to demand Ker by yirtue of the extradition treaty between Peru and the United States: The messenger, however, disdained reliance on-the treaty processes,, and instead forcibly kidnaped Ker and brought him to the United States. We distinguished Ker’s case from Rauscher, on the basis that Ker was not brought into the United States by virtue of the extradition treaty between the United States and Peru, and rejected Ker’s argument that- he had a right under the extradition treaty to be returned to this country only in accordance with its terms. We rejected Ker’s due process argument more broadly, holding in line with “the highest authorities” that “such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court.” Ker, supra, at 444.
In Frisbie v. Collins, 342 U. S. 519, rehearing denied, 343 U. S. 937 (1952), we applied the rule in Ker to a case in which the defendant had been kidnaped in Chicago by Michigan officers and brought to trial in Michigan. We upheld the conviction over objections based on the Due Process Clause and the federal Kidnaping Act and stated:
“This Court has never departed from the rule announced in [Ker] that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court’s jurisdiction by reason of a ‘forcible abduction.’ No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will.” Frisbie, supra, at 522 (citation and footnote omitted).
The only differences between Ker and the present case are that Ker was decided on the premise that there was no governmental involvement in the abduction, 119 U. S., at 443; and Peru, from which Ker was abducted, did not object to his prosecution. Respondent finds these differences to be dispositive, as did the Court of Appeals in Verdugo, 939 F. 2d, at 1346, contending that they show that respondent’s prosecution, like the prosecution of Rauscher, violates the implied terms of a valid extradition treaty. The Government, on the other hand, argues that Rauscher stands as an “exception” to the rule in Ker only when an extradition treaty is invoked, and the terms of the treaty provide that its breach will limit the jurisdiction of a court. Brief for United States 17. Therefore, our first inquiry must be whether the abduction of respondent from Mexico violated the Extradition Treaty between the United States and Mexico. If we conclude that the Treaty does not prohibit respondent’s abduction, the rule in Ker applies, and the court need not inquire as to how respondent came before it.
In construing a treaty, as in construing a statute, we first look to its terms to determine its meaning. Air France v. Saks, 470 U. S. 392, 397 (1985); Valentine v. United States ex rel. Neidecker, 299 U. S. 5, 11 (1936). The Treaty says nothing about the obligations of the United States and Mexico to refrain from forcible abductions of people from the territory of the other nation, or the consequences under the Treaty if such an abduction occurs. Respondent submits that Article 22(1) of the Treaty, which states that it “shall apply to offenses specified in Article 2 [including murder] committed before and after this Treaty enters into force,” 31 U. S. T., at 5073-5074, evidences an intent to make application of the Treaty mandatory for those offenses. However, the more natural conclusion is that Article 22 was included to ensure that the Treaty was applied to extraditions requested after the Treaty went into force, regardless of when the crime of extradition occurred.
More critical to respondent’s argument is Article 9 of the Treaty, which provides:
“1. Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so.
“2. If extradition is not granted pursuant to paragraph 1 of this Article, the requested Party shall submit the case to its competent authorities for the purpose of prosecution, provided that Party has jurisdiction over the offense.” Id., at 5065.
According to respondent, Article 9 embodies the terms of the bargain which the United States struck: If the United States wishes to prosecute a Mexican national, it may request that individual’s extradition. Upon a request from the United States, Mexico may either extradite the individual or submit the case to the proper authorities for prosecution in Mexico. In this way, respondent reasons, each nation preserved its right to choose whether its nationals would be tried in its own courts or by the courts of the other nation. This preservation of rights would be frustrated if either nation were free to abduct nationals of the other nation for the purposes of prosecution. More broadly, respondent reasons, as did the Court of Appeals, that all the processes and restrictions on the obligation to extradite established by the Treaty would make no sense if either nation were free to resort to forcible kidnaping to gain the presence of an individual for prosecution in a manner not contemplated by the Treaty. Verdugo, supra, at 1350.
We do not read the Treaty in such a fashion. Article 9 does not purport to specify the only way in which one country may gain custody of a national of the other country for the purposes of prosecution. In the absence of an extradition treaty, nations are under no obligation to surrender those in their country to foreign authorities for prosecution. Rauscher, 119 U. S., at 411-412; Factor v. Laubenheimer, 290 U. S. 276, 287 (1933); cf. Valentine v. United States ex rel. Neidecker, supra, at 8-9 (United States may not extradite a citizen in the absence of a statute or treaty obligation). Extradition treaties exist so as to impose mutual obligations to surrender individuals in certain defined sets of circumstances, following established procedures. See 1 J. Moore, A Treatise on Extradition and Interstate Rendition § 72 (1891). The Treaty thus provides a mechanism which would not otherwise exist, requiring, under certain circumstances, the United States and Mexico to extradite individuals to the other country, and establishing the procedures to be followed when the Treaty is invoked.
The history of negotiation and practice under the Treaty also fails to show that abductions outside of the Treaty constitute a violation of the Treaty. As the Solicitor General notes, the Mexican Government was made aware, as early as 1906, of the Ker doctrine, and the United States’ position that it applied to forcible abductions made outside of the terms of the United States-Mexico Extradition Treaty. Nonetheless, the current version of the Treaty, signed in 1978, does not attempt to establish a rule that would in any way curtail the effect of Ker. Moreover, although language which would grant individuals exactly the right sought by respondent had been considered and drafted as early as 1935 by a prominent group of legal scholars sponsored by the faculty of Harvard Law School, no such clause appears in the current Treaty.
Thus, the language of the Treaty, in the context of its history, does not support the proposition that the Treaty prohibits abductions outside of its terms. The remaining question, therefore, is whether the Treaty should be interpreted so as to include an implied term prohibiting prosecution where the defendant’s presence is obtained by means other than those established by the Treaty. See Valentine, 299 U. S., at 17 (“Strictly the question is not whether there had been a uniform practical construction denying the power, but whether the power had been so clearly recognized that the grant should be implied”).
Respondent contends that the Treaty must be interpreted against the backdrop of customary international law, and that international abductions are “so clearly prohibited in international law” that there was no reason to include such a clause in the Treaty itself. Brief for Respondent 11. The international censure of international abductions is further evidenced, according to respondent, by the United Nations Charter and the Charter of the Organization of American States. Id., at 17. Respondent does not argue that these sources of international law provide an independent basis for the right respondent asserts not to be tried in the United States, but rather that they should inform the interpretation of the Treaty terms.
The Court of Appeals deemed it essential, in order for the individual defendant to assert a right under the Treaty, that the affected foreign government had registered a protest. Verdugo, 939 F. 2d, at 1357 (“[I]n the kidnapping case there must be a formal protest from the offended government after the kidnapping”)- Respondent agrees that the right exercised by the individual is derivative of the nation’s right under the Treaty, since nations are authorized, notwithstanding the terms of an extradition treaty, to voluntarily render an individual to the other country on terms completely outside of those provided in the treaty. The formal protest, therefore, ensures that the “offended” nation actually objects to the abduction and has not in some way voluntarily rendered the individual for prosecution. Thus the Extradition Treaty only prohibits gaining the defendant’s presence by means other than those set forth in the Treaty when the nation from which the defendant was abducted objects.
This argument seems to us inconsistent with the remainder of respondent’s argument. The Extradition Treaty has the force of law, and if, as respondent asserts, it is self-executing, it would appear that a court must enforce it on behalf of an individual regardless of the offensiveness of the practice of one nation to the other nation. In Rauscher, the Court noted that Great Britain had taken the position in other cases that the Webster-Ashburton Treaty included the doctrine of specialty, but no importance was attached to whether or not Great Britain had protested the prosecution of Rauscher for the crime of cruel and unusual punishment as opposed to murder.
More fundamentally, the difficulty with the support respondent garners from international law is that none of it relates to the practice of nations in relation to extradition treaties. In Rauscher, we implied a term in the Webster-Ashburton Treaty because of the practice of nations with regard to extradition treaties. In the instant case, respondent would imply terms in the Extradition Treaty from the practice of nations with regards to international law more generally. Respondent would have us find that the Treaty acts as a prohibition against a violation of the general principle of international law that one government may not “exercise its police power in the territory of another state.” Brief for Respondent 16. There are many actions which could be taken by a nation that would violate this principle, including waging war, but it cannot seriously be contended that an invasion of the United States by Mexico would violate the terms of the Extradition Treaty between the two nations.
In sum, to infer from this Treaty and its terms that it prohibits all means of gaining the presence of an individual outside of its terms goes beyond established precedent and practice. In Rauscher, the implication of a doctrine of specialty into the terms of the Webster-Ashburton Treaty, which, by its terms, required the presentation of evidence establishing probable cause of the crime of extradition before extradition was required, was a small step to take. By contrast, to imply from the terms of this Treaty that it prohibits obtaining the presence of an individual by means outside of the procedures the Treaty establishes requires a much larger inferential leap, with only the most general of international law principles to support it. The general principles cited by respondent simply fail to persuade us that we should imply in the . United States-Mexico Extradition Treaty a term prohibiting international abductions.
Respondent and his amici may be correct that respondent’s abduction was “shocking,” Tr. of Oral Arg. 40, and that it may be in violation of general international law principles. Mexico has protested the abduction of respondent through diplomatic notes, App. 33-38, and the decision of whether respondent should be returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive Branch. We conclude, however, that respondent’s abduction was not in violation of the Extradition Treaty between the United States and Mexico, and therefore the rule of Ker v. Illinois is fully applicable to this case. The fact of respondent’s forcible abduction does not therefore prohibit his trial in a court in the United States for violations of the criminal laws of the United States.
The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.'
So ordered.
Respondent is charged in a sixth superseding indictment with: conspiracy to commit violent acts in furtherance of racketeering activity (in violation of 18 U. S. C. §§371, 1959); committing violent acts in furtherance of racketeering activity (in violation of § 1959(a)(2)); conspiracy to kidnap a federal agent (in violation of §§ 1201(a)(5), (c)); kidnap of a federal agent (in violation of § 1201(a)(5)); and felony murder of a federal agent (in violation of §§ 1111(a), 1114). App. 12-32.
Apparently, DEA officials had attempted to gain respondent’s presence in the United States through informal negotiations with Mexican officials, but were unsuccessful. DEA officials then, through a contact in Mexico, offered to pay a reward and expenses in return for the delivery of respondent to the United States. United States v. Caro-Quintero, 745 F. Supp., at 602-604.
Rene Martin Verdugo-Urquidez was also indicted for the murder of Agent Camarena. In an earlier decision, we held that the Fourth Amendment did not apply to a search by United States agents of Verdugo-Urquidez’ home in Mexico. United States v. Verdugo-Urquidez, 494 U. S. 259 (1990).
The Court of Appeals remanded for an evidentiary hearing as to whether Verdugo’s abduction had been authorized by authorities in the United States. United States v. Verdugo-Urquidez, 939 F. 2d, at 1362.
Justice Gray, concurring, would have rested the decision on the basis of these Acts of Congress alone. Rauscher, 119 U. S., at 433. Chief Justice Waite dissented, concluding that the treaty did not forbid trial on a charge other than that on which extradition was granted, and that the Acts of Congress did not change the “effect of the treaty.” Id., at 436.
Although the opinion does not explain why the messenger failed to present the warrant to the proper authorities, commentators have suggested that the seizure of Ker in the aftermath of a revolution in Peru provided the messenger with no “proper authorities” to whom the warrant could be presented. See Kester, Some Myths of United States Extradition Law, 76 Geo. L. J. 1441, 1461 (1988).
In the words of Justice Miller, the “treaty was not called into operation, was not relied upon, was not made the pretext of arrest, and the facts show that it was a clear case of kidnapping within the dominions of Peru, without any pretence of authority under the treaty or from the government of the United States.” Ker v. Illinois, 119 U. S., at 443.
Two cases decided during the Prohibition Era in this country have dealt with seizures claiméd to have been in violation of a treaty entered into between the United States and Great Britain to assist the United States in offshore enforcement of its prohibition laws, and to allow British passenger ships to carry liquor while in the waters of the United States. 43 Stat. 1761 (1924). The history of the negotiations leading to the treaty is set forth in Cook v. United States, 288 U. S. 102, 111-118 (1933). In that case we held that the treaty provision for seizure of British vessels operating beyond the 3-mile limit was intended to be exclusive, and that therefore liquor seized from a British vessel in violation of the treaty could not form the basis of a conviction.
In Ford v. United States, 273 U. S. 593 (1927), the argument as to personal jurisdiction was deemed to have been waived.
We have applied Ker to numerous cases where the presence of the defendant was obtained by an interstate abduction. See, e. g., Mahon v. Justice, 127 U. S. 700 (1888); Cook v. Hart, 146 U. S. 183 (1892); Pettibone v. Nichols, 203 U. S. 192, 215-216 (1906).
Ker also was not a national of Peru, whereas respondent is a national of the country from which he was abducted. Respondent finds this difference to be immaterial. Tr. of Oral Arg. 26.
This interpretation is supported by the second clause of Article 22, which provides that “[r]equests for extradition that are under process on the date of the entry into force of this Treaty, shall be resolved in accordance with the provisions of the Treaty of 22 February, 1899,..." Extradition Treaty, May 4, 1978, [1979] United States-United Mexican States, 31 U. S. T. 5059, 5074, T. I. A. S. No. 9656.
In correspondence between the United States and Mexico growing out of the 1905 Martinez incident, in which a Mexican national was abducted from Mexico and brought to the United States for trial, the Mexican Chargé wrote to the Secretary of State protesting that as Martinez’ arrest was made outside of the procedures established in the extradition treaty, “the action pending against the man can not rest [on] any legal foundation.” Letter of Balbino Davalos to Secretary of State, reprinted in Papers Relating to the Foreign Relations of the United States, H. R. Doc. No. 1, 59th Cong., 2d Sess., pt. 2, p. 1121 (1906). The Secretary of State responded that the exact issue raised by the Martinez incident had been decided by Ker, and that the remedy open to the Mexican Government, namely, a request to the United States for extradition of Martinez’ abductor, had been granted by the United States. Letter of Robert Bacon to Mexican Chargé, reprinted in Papers Relating to the Foreign Relations of the United States, H. R. Doc. No. 1, supra, at 1121-1122.
Respondent and the Court of Appeals stress a statement made in 1881 by Secretary of State James Blaine to the Governor of Texas to the effect that the extradition treaty in its form at that time did not authorize unconsented to abductions from Mexico. Verdugo, 939 F. 2d, at 1354; Brief for Respondent 14. This misses the mark, however, for the Government’s argument is not that the Treaty authorizes the abduction of respondent, but that the Treaty does not prohibit the abduction.
The parties did expressly include the doctrine of specialty in Article 17 of the Treaty, notwithstanding the judicial recognition of it in United States v. Rauseher, 119 U. S. 407 (1886). 31 U. S. T., at 5071-6072.
In Article 16 of the Draft Convention on Jurisdiction with Respect to Crime, the Advisory Committee of the Research in International Law proposed:
“In exercising jurisdiction under this Convention, no State shall prosecute or punish any person who has been brought within its territory or a place subject to its authority by recourse to measures in violation of international law or internationál convention without first obtaining the consent of the State or States whose rights have been violated by such measures.” Harvard Research in International Law, 29 Am. J. Int’l L. 442 (Supp. 1935).
Similarly, the Court of Appeals in Verdugo reasoned that international abductions violate the “purpose” of the Treaty, stating that “[t]he requirements extradition treaties impose constitute a means of safeguarding the sovereignty of the signatory nations, as well as ensuring the fair treatment of individuals.” 939 F. 2d, at 1350. The ambitious purpose ascribed to the Treaty by the Court of Appeals, we believe, places a greater burden on its language and history than they can logically bear. In a broad sense, most international agreements have the common purpose of safeguarding the sovereignty of signatory nations, in that they seek to further peaceful relations between nations. This, however, does not mean that the violation of any principle of international law constitutes a violation of this particular treaty.
In the same category are the examples cited by respondent in which, after a forcible international abduction, the offended nation protested the abduction and the abducting nation then returned the individual to the protesting nation. Brief for Respondent 18, citing, inter alia, 1 Bassiouni, International Extradition: United States Law and Practice § 5.4, pp. 235-237 (2d rev. ed. 1987). These may show the practice of nations under customary international law, but they are of little aid in construing the terms of an extradition treaty, or the authority of a court to later try an individual who has been so abducted. More to the point for our purposes are cases such as The Richmond, 9 Cranch 102 (1815), and The Merino, 9 Wheat. 391 (1824), both of which hold that a seizure of a vessel in violation of international law does not affect the jurisdiction of a United States court to adjudicate rights in connection with the vessel . These cases are discussed, and distinguished, in Cook v. United States, 288 U. S., at 122.
The Mexican Government has also requested from the United States the extradition of two individuals it suspects of having abducted respondent in Mexico, on charges of kidnaping. App. 39-66.
The advantage of the diplomatic approach to the resolution of difficulties between two sovereign nations, as opposed to unilateral action by the courts of one nation, is illustrated by the history of the negotiations leading to the treaty discussed in Cook v. United States, supra. The United States was interested in being able to search British vessels that hovered beyond the 3-mile limit and served as supply ships for motor launches, which took intoxicating liquor from them into ports for further distribution in violation of prohibition laws. The United States initially proposed that both nations agree to searches of the other’s vessels beyond the 3-mile limit; Great Britain rejected such an approach, since it had no prohibition laws and therefore no problem with United States vessels hovering just beyond its territorial waters. The parties appeared to be at loggerheads; then this Court decided Cunard S. S. Co. v. Mellon, 262 U. S. 100 (1923), holding that our prohibition laws applied to foreign merchant ves-seis as well as domestic within the territorial waters of the United States, and that therefore the carrying of intoxicating liquors by foreign passenger ships violated those laws. A treaty was then successfully negotiated, giving the United States the right to seizure beyond the 3-mile limit (which it desired), and giving British passenger ships the right to bring liquor into United States waters so long as the liquor supply was sealed while in those waters (which Great Britain desired). Cook v. United States, supra.
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_const1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
In re CARTLIDGE.
(Court of Appeals of District of Columbia.
Submitted May 10, 1026.
Decided June 1, 1926.)
No. 1842.
1. Patents <§=>120 — Patentee of coal-mining machine, having been allowed applications covering two driver methods, held not entitled to allowance of general application covering all possible arrangements for converting machine from one driver method to the other.
Patentee of coal-mining machine capable of being driven by a single chain or by two flexible elements, who has an allowed application covering each method, hold not entitled to allowance of divisional application in general terms, covering all possible arrangements whereby the machine might be converted from one driven by one method to' one driven by the other method.
2. Patents <§=>120.
Patentee is not entitled to general divisional patent covering any means that may be discovered of producing the result accomplished through original patent.
Appeal from Commissioner of Patents.
In the matter of the application of Prank Cartlidge for a patent. Prom a decision denying the application, applicant appeals.
Affirmed.
J. II. Boyden, of Washington, D. C., and L. A. Maxson, of Claremont, N. H., for appellant.
T. A. Hostetler, of Washington, D. C., for Commissioner of Patents.
Before MARTIN, Chief Justice, ROBB, Associate Justice, and SMITH, Judge of the United States Court of Customs Appeals.
ROBB, Associate Justice.
Appeal from a decision of the Patent Office rejecting the claims of an alleged divisional application relating to coalmining machines. The grounds' of the rejection were: First, that the claims are for substantially tbe same invention covered by appellant’s patent No. 1,538,684, of which this application is claimed to be a division; second, that the claims are unpatentable over the prior art; and, third, that they do not adequately define the invention.
Tho above patent, carrying 141 claims, was issued to appellant on May 19,1925. On the same day there was issued to him patent No. 1,538,685, carrying 81 claims, the application being a division of the original. The drawings of tho present application, filed later, are identical with those of the parent application. An examination of the present application discloses that the alleged invention consists in so arranging the machine that it may be driven by either a single driving chain or by two flexible elements. Tbe claims attempt to eovor broadly all possible arrangements whereby the machine may be converted from one driven by two flexible elements into one driven by a single chain, notwithstanding that appellant has an allowed application covering each of these elements. No mechanism for making the substitution is included. This, therefore, is an attempt through the use of general terms to cover any means that may be discovered of producing tbe result accomplished through tbe original patent. But this may not be done. Miller v. Eagle Mfg. Co., 151 U. S. 199, 14 S. Ct. 310, 38 L. Ed. 121; Heidbrink v. McKesson (C. C. A.) 290 F. 665.
For tbe reasons more fully stated by tho tribunals of the Patent Office, tbe decision is affirmed.
Affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer: |
songer_appel1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
WILSON et al. v. UNITED STATES.
No. 8875.
Circuit Court of Appeals, Ninth Circuit
Dec. 23, 1938.
Joseph C. Meyerstein, of San Francisco, Cal., for appellants.
James W. Morris, Asst. U. S. Atty. Gen., Sewall Key, J. Louis Monarch, Morton K. Rothschild, and Louise Foster, Sp. Assts. to the Atty. Gen., and Frank J. Henmessy, U. S. Atty., and Esther B. Phillips, Asst. U. S. Atty., both of San Francisco, Cal., for the United States.
Before WILBUR, GARRECHT, and HANEY, Circuit Judges.
HANEY, Circuit Judge.
The court below decreed that funds transferred by a decedent to appellants constituted a trust fund for the payment of debts owing by decedent including the amounts decedent owed for income taxes, and rendered judgment against appellants for the amount of the taxes.
On March 12, 1919, Henry Wilson, the decedent, filed his income tax return for the year 1918, and paid the tax shown on the return. On March 15, 1920, decedent filed his income tax return for the calendar year 1919, and paid the tax shown on the return. On September 4, 1925, the Commissioner of Internal Revenue, after decedent had executed waivers extending the time for assessment, gave decedent notice of a deficiency for the year 1918 in the sum of $6,591.52, and for the year 1919 in the sum of $2,596.80. On October 26, 1925, decedent petitioned the Board of Tax Appeals for a redetermination of the deficiencies.
On June 1, 1928, decedent, being then over 79 years old, and contemplating his death, transferred to his wife, Mary H. Wilson, and to his son, Francis A. Wilson, a savings account, the principal and interest of which amounted to $430,737.73. On June 5, 1928, decedent died. Subsequently, the wife and son divided the funds they had received, after paying the expenses of decedent’s last illness in the sum of $361.25, the expenses of his funeral and interment in the sum of $4,024.15, and after making a gift to charity. The wife received $270,727.68, and the son and Winfred T. Wilson, another son, each received $67,681.92.
On November 6, 1928, the Board redetermined the deficiencies in tax paid by decedent in the sum of $4,006.61 and $775.74 interest for the year 1918, and in the sum of $1,725.39 and $334.06 interest for the year 1919. Review of the Board’s decision, entered pursuant to the redetermination was not sought, and the decision became final on May 18, 1929.
On December 26, 1934, appellee filed in the court below a bill against the wife and the two sons, hereinafter referred to as appellants, alleging the tax indebtedness of decedent, the transfer of funds, that the transfer “operated as a fraud” on appellee because it left decedent “without property” and with “no estate”, and that the property transferred to, and received by, appellants was “impressed with a trust in equity for the benefit” of appellee.
The trial court found, in addition to the facts related above, that at the time of the transfer decedent owed the following:
Expenses of last illness.........$ 361.25
Income taxes for years 1918, 1919........................ 6,841.80
Income taxes for years 1921— 1924 ........................ 13,102.01
Total .....................$20,305.06
It also found the funeral expenses to be $4,042.15, which, with the above total, makes a grand total of $24,346.21. The court below also found that the only asset in which decedent had an interest at the time of the transfer was a home, which was owned by decedent and his wife as joint tenants with right of survivorship; that the fair market value of the residence was $45,000; that the fair market value of the interest of one joint tenant did not equal $22,500; and that the total of decedent’s debts “at the time of his transfer of said bank account exceeded the fair market value of his interest as joint tenant in said residence.”
The trial court concluded that the transfer of the' bank account was fraudulent as to creditors; that decedent was “rendered insolvent by said transfer” and that the money received by appellants was impressed with a trust for the benefit of creditors. Decree was entered to the effect that the money received by appellants from decedent “constituted a trust fund for the payment of debts owed by said [decedent], including debts owed to the United States”, and judgment was rendered in favor of appellee against appellants for the amount of the deficiencies in the taxes for the years 1918 and 1919, with interest. Appellants have appealed from that decree.
Appellants contend that there is no evidence whatever to support the finding that decedent was rendered insolvent by the transfer of the bank account. This contention is based on three arguments. The first is that the sole evidence shows the value of the residence to be $45,000, and therefore decedent’s interest therein had a value of $22,500; that funeral expenses of decedent, which were $4,042.15, were not incurred at the time of the transfer, and were not a debt owing by decedent, and therefore his debts were only $20,305.06, and thus decedent was not insolvent at the time of, the transfer. The difficulty with this argument is that although all the interests in the residence were worth $45,-000 there is nothing to show that decedent’s interest was worth $22,500. We think it is apparent that a purchaser of a joint tenant’s interest would not pay as much, in comparison with what he would pay for the entire interest.
The second argument is that decedent had another asset consisting of a drawing account which should be added to his interest in the residence. The testimony of one of decedent’s sons, Francis A. Wilson, is the only testimony contained in the record. On direct examination he testified : - '
“ * * * At the date of his death he [decedent] owned the residence * * * in joint tenancy with my mother. That was all that he owned. I do not recall other interests of any kind or sort whatever * * *
“ * * * He was not interested in the lumber business at the time of his death except in so far as he acted as a sort of adviser for Wilson Bros, and Company and drew a salary from the Company * * ”
On cross-examination he testified: “ * * * My father acted in an advisory capacity to Wilson Bros. Company and had a drawing account for his services. For 1927 the drawing account was $12,000.00. It had not been fixed in 1928, but he did have a drawing account of $12,000 a year sfs ?fc :f:
If the foregoing evidence is sufficient to show that decedent was entitled to $12,-000 a year, a fact which is by no means clear, there is nothing to show that decedent had not been paid whatever was due him. Appellee, having the burden, as appellants contend, to show insolvency, presented evidence to that effect. The contrary evidence offered by appellants concerning the drawing account, did not specifically show that there was due decedent any sum, and therefore appellee carried its burden.
Finally, appellants contend that the entire value of the residence must be taken into consideration in determining whether or not appellant was insolvent at the time of the transfer. ‘ The argument is based upon the rule that “as against creditors, where the property taken in joint tenancy by husband and wife is community property, the whole of it, not a half, is liable for the husband’s debts”. While it is true that creditors may show that property, taken by husband and wife as joint tenants, was actually community property (Hulse v. Lawson, 212 Cal. 614, 299 P. 525), it is doubtful whether decedent’s wife could do so. Siberell v. Siberell, 214 Cal. 767, 773, 7 P.2d 1003. However, there appears to be no reason why the two sons could not make such a showing, and we consider the contention on the assumption that they could do so.
Did the evidence disclose that the property was community property? There was introduced in evidence an answer of the wife and one son, to a petition of an official of the State of California, filed in a state court seeking determination of the inheritance tax. due in connection with decedent’s estate. There was also admitted in evidence a claim for refund filed by appellants, regarding the federal estate tax paid in connection with decedent's estate. In each of these documents there was a •statement that the residence was purchased with community funds. An affidavit executed by one of the sons, and used in connection with the claim for refund contained a similar statement.
At the trial there was one witness only ■ — one of the sons. On direct examination he testified: “At the date of his death he [decedent] owned the residence * * * in joint tenancy with my mother.” On cross-examination he testified: “The real property in Piedmont • which was held in joint tenancy had been purchased with community funds.” The deed conveyed-the residence to decedent and wife “as joint tenants and not as tenants in common”. The habendum clause in the deed contained the identical quotation.
The declarations in the documents mentioned, and on cross-examination, make no attempt to disclose the “mode of acquisition” of the property which was asserted to be “community” property and used to purchase the residence. Such declarations fall within the rule stated in Bias v. Reed, 169 Cal. 33, 42, 145 P. 516, 519, that “the character of the ownership of property, whether separate or community, is to be determined by the proof showing the mode of acquisition, rather than by any declaration of one of the parties that the property was or was not community property.” See, also, Potter v. Smith, 48 Cal.App. 162, 191 P. 1023, 1025; In re Allan’s Estate, Cal.App., 82 P.2d 190, 193.
In these circumstances, the following quotation from Chamberlain v. Chamberlain, 2 Cal.App.2d 684, 687, 38 P.2d 790, 791, is pertinent: “* * * Appellant’s testimony was introduced to rebut the legal effect of the documentary evidence produced by plaintiff. However, the trial court was not obliged to accept the explanation offered by appellant and to decide that it overcame the legal effect of the áeeds and of the agreement for the sale of the property. Respondent’s documentary evidence created a presumption that the legal title to the property was in respondent and appellant as joint tenants in accordance with the plain language of the deeds. Appellant sought to overcome this presumption by the testimony which he himself offered. It remained for the trier of facts to decide whether the proof offered by appellant was sufficient to overthrow the presumption. * * * It is obvious that the principle which is here applicable is the very common principle which requires that a finding of a trial court attacked for lack of evidentiary support must be upheld if the evidence respecting the facts specified in the finding is conflicting. * * * ”
We think the trial court’s finding that decedent and his wife owned the property “as joint tenants with the right of survivor-ship” is not clearly erroneous.
Affirmed.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_r_state | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
SPAUGH et al. v. UNITED STATES.
No. 7650.
Circuit Court of Appeals, Ninth Circuit.
May 20, 1935.
Frank P. Doherty and William R. Gallagher, both of Los Angeles, Cal., for appellant Spaugh.
Ames Peterson, of Los Angeles, Cal., for appellant Curry.
Peirson M. Hall, U. S. Atty., and Ernest R. Utley, Asst. U. S. Atty., both of Los Angeles, Cal.
Before WILBUR and GARRECHT, Circuit Judges.
GARRECHT, Circuit Judge.
Appellant J. V. Spaugh, together with appellant Harry M. Curry and eleven others, was indicted on a charge of conspiracy to make, forge, and counterfeit certain orders and writings, to wit, United States Liberty Loan bonds. This indictment, for convenience, will be hereafter referred to as the “conspiracy indictment.” Six other indictments were returned against several groups of defendants named in the conspiracy indictment. The indictments contained various counts charging different groups of defendants therein named with the substantive offenses of forging Liberty bonds and uttering the same, but in none of which was appellant Spaugh named as defendant. The conspiracy indictment was consolidated for- trial with the six other indictments in which appellant Spaugh was not mentioned.
This action of the court was objected to by appellant Spaugh and exception saved and the ruling made assigned as error. As appellant Curry is not concerned with this contention, and as the judgment of conviction must be reversed on other grounds, and because we have before us none of the evidence adduced at the trial, we refrain from expressing any opinion on this assignment of error.
After the jury had been deliberating for forty-six hours, the court recalled the jury. Thereupon the following took place:
“The Court: The Court desires to address itself to the jury, through the Foreman, and will ask the Foreman to be careful not to report the nature of any verdict, if any, which thus far may have been agreed upon, but rather to confine the answers to the specific matters mentioned in the questions.
“There are a number of cases in which the jury is considering the rendition of separate verdicts and, in addition, in all but one of the cases there are several counts or separate and distinct charges involved.
“We will ask the foreman to indicate whether the jury has finished balloting.
“Foreman Person: Not in all cases.
“The Court: Then, we will ask counsel whether there is any objection to inquiring as to which cases balloting is still being taken on.
“Mr. Doherty: I have no objection, your Honor, of inquiring of the jury as to which cases they are still considering and upon which they have not as yet reached a verdict.
“Mr. Ray: No objection on the part of defendant Clough, your Honor.”
After the court had ascertained as to which indictments the jury had finished balloting and those in which the jury had not agreed, the court proceeded to instruct the jury as follows:
“The Court: In view of the fact that the trial of this case has occupied approximately three weeks, and also inasmuch as the instructions given by the Court to the jury have occupied approximately two hours or more in delivering the same, and having in mind also the fact that the jury was in court Saturday night, in the presence of the defendants and counsel, and propounded a number of questions, which at that time I answered, and likewise some additions made to the instructions, we decided to ascertain whether the Court can be of any assistance to the jurors by way of any further instructions such as explaining some particular point of law, the meaning of any particular question of law, the application of any of the evidence to any particular question of law? And in the same connection the court will give the jury this further instruction:
“The only mode, provided by our constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor, and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; that you are selected in the same manner, and from the same source, from which any future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And with this view, it is your duty to decide the case, if you can conscientiously do so. In order to make a decision more practicable, the law imposes the burden of proof on one party or the other, in all cases. In the present case, the burden of proof is upon the United States to establish every part of it, beyond a reasonable doubt; and if, in any part of it, you are left a reasonable doubt, the defendant is entitled to the benefit of such doubt. And, in conferring together, you ought to pay proper respect to each other’s opinions, and listen, with a disposition to be convinced, to each other’s arguments. And, on the one hand, if a majority are for acquittal, the minority ought seriously to ask themselves, whether they may not reasonably, and ought not to doubt the correctness of a judgment, which is not concurred in by most of those with whom they are associated; and possibly distrust the weight or sufficiency of that evidence which fails to carry conviction to the minds of their fellows. And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which malees no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”
Defendants J. V. Spaugh and Harry M. Curry duly excepted to the following portion of the foregoing instruction: “And, on the other hand, if much the larger number of your panel are for a conviction, a dissenting juror should likewise consider whether a doubt in his own mind is a reasonable one, which makes no impression upon the minds of so many men, equally honest, equally intelligent with himself, who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth, and under the sanction of the same oath.”
Thereafter, and while the jury were still deliberating as to the guilt or innocence of the defendants Harry M. Curry and J. V. Spaugh and before the jury had reached a verdict as to said defendants, the court made .the following inquiry of the jury :
“Without indicating just how many ballots have been for one way and how many ballots the opposite way, that is to say, without indicating just how many stand in any particular way, either for acquittal or otherwise, but merely giving the numbers voting one way as against the other way; for example, if in one case stands 6 to 6, without indicating anything further, or if another case the vote stand's 8 to 4, without indicating how many stand for acquittal and how many for conviction, may we ask you to indicate first of all, how many ballots have been taken in 11,752, which is the so-called conspiracy charge.
“Foreman Person: Your Honor, the different number of ballots have been taken separately against the different defendants.
“The Court: Well, then, coming now to the last balloting, will you indicate the numerical division, without indicating how many voted for acquittal and how many .voted otherwise.”
The defendants J. V. Spaugh and Harry M. Curry thereupon obj ected to' the said inquiry of the court, in which the court asked the jury to indicate the numeri■cal division of the jury and how the jury was divided on the balloting. Said objection was overruled, and defendants J.-V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.
The court then made further inquiry of the jury as follows: “The Court: Now, turning to case No. 11,752, may we inquire as to any balloting that still remains to be done, without indicating as to which defendant, but as to any balloting that still remains to be done — the numerical division with respect to such ballot.”
The defendants J. V. Spaugh'and Harry M. Curry thereupon objected to the said inquiry of the court, in which #the court asked the jury to indicate the numerical division of the jury and how'the jury was divided on the balloting. Said objection was overruled, and defendants J. V. Spaugh and Harry M. Curry thereupon duly excepted to said ruling.
“Foreman Person: In the case of one defendant, the ballot is ten to two; in the case of another defendant it is eleven to one.
“The Court: Coming now to case No. 11,757, will you tell us the numerical division as to count 1 ?
“Foreman Person: Eleven to one.
“The Court: Count 2?
“Foreman Person: Eleven to one.
“The Court: Count 3?
“Foreman Person: Eleven to one.
“The Court: Count 4?
“Foreman Person: Eleven to one.
“The Court: Count 5?
“Foreman Person: Eleven to one.
“The Court: That is all to which balloting is still in progress.”
The defendants J. V. Spaugh and Harry M. Curry then and there objected to each and every inquiry made by the court as to how the jury wfere divided, which said objection was overruled, and to which ruling the defendants J. V. Spaugh and Harry M. Curry then and there duly excepted.
The verdicts are all dated, and the dates clearly disclosed that at the time the court made the inquiry of the jury as to the numerical division verdicts had not been arrived at as to these appellants. The action of the court was error. In Brasfield et al. v. U. S., 272 U. S. 448, 47 S. Ct. 135, 71 L. Ed. 345, and Burton v. U. S., 196 U. S. 283, 25 S. Ct. 243, 49 L. Ed. 482, which were followed by this court in Jordan v. U. S., 22 F.(2d) 966, 967, and Peterson v. U. S., 213 F. 920, the holding was that such inquiry itself should be regarded as ground for reversal.
Judge Rudkin, in the opinion in Jordan v. U. S., supra, quoting from Brasfield v. U. S., supra, said: “ * * * Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly he known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful, and is generally harmful, is not to be sanctioned.”
The judgment against appellant Curry in cause No. 11,757-H and the judgment against both appellants in cause No. 11,-752-H are reversed and cases remanded for new trial.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer: |
sc_issuearea | E | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
AYOTTE, ATTORNEY GENERAL OF NEW HAMPSHIRE v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND et al.
No. 04-1144.
Argued November 30, 2005
Decided January 18, 2006
O’Connor, J., delivered the opinion for a unanimous Court.
Kelly A. Ayotte, Attorney General of New Hampshire, petitioner, argued the cause pro se. With her on the briefs were Michael A. Delaney, Deputy Attorney General, Daniel J. Mullen, Associate Attorney General, and Laura E. B. Lombardi and Anthony I. Blenkinsop, Assistant Attorneys General.
Solicitor General Clement argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Keisler, Kan-non K. Shanmugam, and Marleigh D. Dover.
Jennifer Dalven argued the cause for respondents. With her on the briefs were Steven R. Shapiro, Louise Melting, Talcott Camp, Corinne Schiff, Brigitte Amiri, Diana Kas-dan, Lawrence A. Vogelman, and Dara Klassel.
Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Greg Abbott, Attorney Genéral of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Bwrbach, Deputy Attorney General, R. Ted Cruz, Solicitor General, and Joel L. Thollander, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Mike Beebe of Arkansas, John W Sutlers of Colorado, M. Jane Brady of Delaware, Charles J. Crist, Jr., of Florida, Lawrence G. Wasden of Idaho, Phill Kline of Kansas, Michael A Cox of Michigan, Jim Hood of Mississippi, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Lawrence E. Long of South Dakota, Paul G. Summers of Tennessee, Mark L. Shurtleff of Utah, Judith Williams Jagdmann of Virginia, and Patrick J. Crank of Wyoming; for the American Association of Pro Life Obstetricians and Gynecologists et al. by Steven H. Aden; for the American Center for Law and Justice by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, and Walter M. Weber; for the Association of American Physicians & Surgeons et al. by Dorinda C. Bordlee, Nikolas T. Nikas, and James L. Hirsen; for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Family Research Council, Inc., et al. by Robert P. George; for the National'Legal Foundation by Barry C. Hodge; for New Hampshire Legislators by Teresa Stanton Collett; for the Rutherford Institute by John W. Whitehead and James J. Knicely; for the Thomas More Society by Paul Benjamin Linton and Thomas Brejcha; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Michael F. Moses; for University Faculty for Life by Richard G. Wilkins; for Alaska Lieutenant Governor Loren Leman et al. by Kevin Gilbert Clark-son; for Minnesota Governor Tim Pawlenty et al. by Ms. Collett; for Har-lon Reeves by Kelly Shackelford; for Margie Riley et al. by James Joseph Lynch, Jr.; for New Hampshire State Representative Kathleen Souza et al. by Clarke D. Forsythe and Denise M. Burke; and for James P. Weiers et al. by Len L. Munsil.
Briefs of amici curiae urging affirmance were filed for the American College of Obstetricians and Gynecologists et al. by A Stephen Hut, Jr., and Kimberly A. Parker; for the Center for Adolescent Health & the Law et al. by Elizabeth B. McCallum, Susan Frietsche, and David S. Cohen; for the Center for Reproductive Rights et al. by Sanford M. Cohen, Simon Heller, and Priscilla Smith; for the National Coalition Against Domestic Violence et al. by Maria T. Vullo and Julie Goldscheid; for Organizations Committed to Women’s Equality by Jennifer K Brown; for the Religious Coalition for Reproductive Choice et al. by Caroline M. Brown; for New Hampshire Governor John H. Lynch by Katherine M. Hanna; and for New Hampshire State Representative Terie Norelli et al. by Kenneth J. Barnes.
Briefs of amici curiae were filed for the Horatio R. Storer Foundation, Inc., by James Bopp, Jr., and Thomas J. Marzen; for the Legal Defense for Unborn Children by Alan Ernest; for Liberty Counsel by Mathew D. Staver, Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister; for NARAL Pro-Choice America Foundation et al. by Elizabeth A Cavendish, James P. Joseph, and Leslie M. Hill; and for Maureen L. Curley et al. by Philip D. Moran.
Justice O’Connor
delivered the opinion of the Court.
We do not revisit our abortion precedents today, but rather address a question of remedy: If enforcing a statute that regulates access to abortion would be unconstitutional in medical emergencies, what is the appropriate judicial response? We hold that invalidating the statute entirely is not always necessary or justified, for lower courts may be able to render narrower declaratory and injunctive relief.
I
A
In 2003, New Hampshire enacted the Parental Notification Prior to Abortion Act. N. H. Rev. Stat. Ann. §§ 132:24-132:28 (2005). The Act prohibits physicians from performing an abortion on a pregnant minor (or a woman for whom a guardian or conservator has been appointed) until 48 hours after written notice of the pending abortion is delivered to her parent or guardian. § 132:25(1). Notice may be delivered personally or by certified mail. §§ 132:25(11), (III). Violations of the Act are subject to criminal and civil penalties. § 132:27.
The Act allows for three circumstances in which a physician may perform an abortion without notifying the minor’s parent. First, notice is not required if “[t]he attending abortion provider certifies in the pregnant minor’s record that the abortion is necessary to prevent the minor’s death and there is insufficient time to provide the required notice/’ § 132:26(I)(a). Second, a person entitled to receive notice may -certify that he or she has already been notified. § 132:26(I)(b). Finally, a minor may petition a judge to authorize her physician to perform an abortion without parental notification. The judge must so authorize if he or she finds that the minor is mature and capable of giving informed consent, or that an abortion without notification is in the minor’s best interests. §132:26(11). These judicial bypass proceedings “shall be confidential and shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay,” and access to the courts “shall be afforded [to the] pregnant minor 24 hours a day, 7 days a week.” §§ 132:26(II)(b), (c). The trial and appellate courts must each rule on bypass petitions within seven days. Ibid.
The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification.
B
Respondents are Dr. Wayne Goldner, an obstetrician and gynecologist who has a private practice in Manchester, and three clinics that offer reproductive health services. All provide abortions for pregnant minors, and each anticipates having to provide emergency abortions for minors in the future. Before the Act took effect, respondents brought suit under 42 U. S. C. § 1983, alleging that the Act is unconstitutional because it fails “to allow a physician to provide a prompt abortion to a minor whose health would be endangered” by delays inherent in the Act. App. 10 (Complaint, ¶ 24). Respondents also challenged the adequacy of the Act’s life exception and of the judicial bypass’ confidentiality provision.
The District Court declared the Act unconstitutional, see 28 U. S. C. § 2201(a), and permanently enjoined its enforcement. It held, first, that the Act was invalid for failure “on its face [to] comply with the constitutional requirement that laws restricting a woman’s access to abortion must provide a health exception.” Planned Parenthood of Northern New Eng. v. Heed, 296 F. Supp. 2d 59, 65 (NH 2003). It also found that the Act’s judicial bypass would not operate expeditiously enough in medical emergencies. In the alternative, the District Court held the Act’s life exception unconstitutional because it requires physicians to certify with impossible precision that an abortion is “necessary” to avoid death, and fails to protect their good faith medical judgment.
The Court of Appeals for the First Circuit affirmed. Citing our decisions in Stenberg v. Carkart, 530 U. S. 914, 929-930 (2000), Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 879 (1992) (plurality opinion), and Roe v. Wade, 410 U. S. 113, 164-165 (1973), it observed: “Complementing the general undue burden standard [for reviewing abortion regulations], the Supreme Court has also identified a specific and independent constitutional requirement that an abortion regulation must contain an exception for the preservation of the pregnant woman’s health.” Planned Parenthood of Northern New Eng. v. Heed, 390 F. 3d 53, 58 (2004). It went on to conclude that the Act is unconstitutional because it does not contain an explicit health exception, and its judicial bypass, along with other provisions of state law, is no substitute. The Court of Appeals further found the Act unconstitutional because, in its view, the life exception forces physicians to gamble with their patients’ lives by prohibiting them from performing an abortion without notification until they are certain that death is imminent, and is intolerably vague. Because the district and appellate courts permanently enjoined the Act’s enforcement on the basis of the above infirmities, neither reached respondents’ objection to the judicial bypass’ confidentiality provision.
We granted certiorari, 544 U. S. 1048 (2005), to decide whether the courts below erred in invalidating the Act in its entirety because it lacks an exception for the preservation of pregnant minors’ health. We now vacate and remand for the Court of Appeals to reconsider its choice of remedy.
M H-1
As the case comes to us, three propositions — two legal and one factual — are established. First, States unquestionably have the right to require parental involvement when a minor considers terminating her pregnancy, because of their “strong and legitimate interest in the welfare of [their] young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely.” Hodgson v. Minnesota, 497 U. S. 417, 444-445 (1990) (opinion of Stevens, J.). Accordingly, we have long upheld state parental involvement statutes like the Act before us, and we cast no doubt on those holdings today. See, e. g., Lambert v. Wicklund, 520 U. S. 292 (1997) (per curiam); Casey, supra, at 899 (joint opinion); Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 510-519 (1990); Hodgson, 497 U. S., at 461 (O’Connor, J., concurring in part and concurring in judgment in part); id., at 497-501 (Kennedy, J., concurring in judgment in part and dissenting in part).
.Second, New Hampshire does not dispute, and our precedents hold, that a State may not restrict access to abortions that are “'necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.’ ” Casey, 505 U. S., at 879 (plurality opinion) (quoting Roe, 410 U. S., at 164-165); see also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 768-769 (1986); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476, 482-486 (1983) (opinion of Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 79 (1976).
Third, New Hampshire has not taken real issue with the factual basis of this litigation: In some very small percentage of cases, pregnant minors, like adult women, need immediate abortions to avert serious and often irreversible damage to their health. See 296 F. Supp. 2d, at 65, n. 4.
New Hampshire has maintained that in most if not all cases, the Act’s judicial bypass and the State’s “competing harms” statutes should protect both physician and patient when a minor needs an immediate abortion. See N. H. Rev. Stat. Ann. §627:3(1) (1996) (for criminal liability, “[cjonduct which the actor believes to be necessary to avoid harm to ... another is justifiable if the desirability and urgency of avoiding such harm outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the statute defining the offense charged”); §627:1 (similar for civil liability). But the District Court and Court of Appeals found neither of these provisions to protect minors’ health reliably in all emergencies. 296 F. Supp. 2d, at 65-66; 390 F. 3d, at 61-62. And New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks. See Reply Brief for Petitioner 2, 8, 11; Tr. of Oral Arg. 6, 14.
III
We turn to the question of remedy: When a statute restricting access to abortion may be applied in a manner that harms women’s health, what is the appropriate relief? Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem. We prefer, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force, see United States v. Raines, 362 U. S. 17, 20-22 (1960), or to sever its problematic portions while leaving the remainder intact, United States v. Booker, 543 U. S. 220, 227-229 (2005).
Three interrelated principles inform our approach to remedies. First, we try not to nullify more of a legislature’s work than is necessary, for we know that “[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.” Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion). It is axiomatic that a “statute may be invalid as applied to one state of facts and yet valid as applied to another.” Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the “normal rule” is that “partial, rather than facial, invalidation is the required course,” such that a “statute may ... be declared invalid to the extent that it reaches too far, but otherwise left intact.” Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S. 1 (1985); United States v. Grace, 461 U. S. 171, 180-183 (1983).
Second, mindful that our constitutional mandate and institutional competence are limited, we restrain ourselves from “rewriting] state law to conform it to constitutional requirements” even as we strive to salvage it. Virginia v. American Booksellers Assn., Inc., 484 U. S. 383, 397 (1988). Our ability to devise a judicial remedy that does not entail quintessentially legislative work often depends on how clearly we have already articulated the background constitutional rules at issue and how easily we can articulate the remedy. In United States v. Grace, supra, at 180-183, for example, we crafted a narrow remedy much like the one we contemplate today, striking down a statute banning expressive displays only as it applied to public sidewalks near the Supreme Court but not as it applied to the Supreme Court Building itself. We later explained that the remedy in Grace was a “relatively simple matter” because we had previously distinguished between sidewalks and buildings in our First Amendment jurisprudence. United States v. Treasury Employees, 513 U. S. 454, 479, n. 26 (1995). But making distinctions in a murky constitutional context, or where line-drawing is inherently complex, may call for a “far more serious invasion of the legislative domain” than we ought to undertake. Ibid.
Third, the touchstone for any decision about remedy is legislative intent, for a court cannot “use its remedial powers to circumvent the intent of the legislature.” Califano v. Westcott, 443 U. S. 76, 94 (1979) (Powell, J., concurring in part and dissenting in part); see also Dorchy v. Kansas, 264 U. S. 286, 289-290 (1924) (opinion for the Court by Brandéis, J.). After finding an application or portion of a statute unconstitutional, we must next ask: Would the legislature have preferred what is left of its statute to no statute at all? See generally Booker, supra, at 227; Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172, 191 (1999); Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 684 (1987); Champlin Refining Co. v. Corporation Comm’n of Okla., 286 U. S. 210, 234. (1932); The Employers’ Liability Cases, 207 U. S. 463, 501 (1908); Allen v. Louisiana, 103 U. S. 80, 83-84 (1881); Trade-Mark Cases, 100 U. S. 82, 97-98 (1879). All the while, we are wary of legislatures who would rely on our intervention, for “[i]t would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside” to announce to whom the statute may be applied. United States v. Reese, 92 U. S. 214, 221 (1876). “This would, to some extent, substitute the judicial for the legislative department of the government.” Ibid.
In this case, the courts below chose the most blunt remedy — permanently enjoining the enforcement of New Hampshire’s parental notification law and thereby invalidating it entirely. That is understandable, for we, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw. In Stenberg, we addressed a Nebraska law banning so-called “partial birth abortion” unless the procedure was necessary to save the pregnant woman’s life. We held Nebraska’s law unconstitutional because it lacked a health exception. 530 U. S., at 930 (lack of a health exception was an “independent reaso[n]” for finding the ban unconstitutional). But the parties in Stenberg did not ask for, and we did not contemplate, relief more finely drawn.
In the case that is before us, however, we agree with New Hampshire that the lower courts need not have invalidated the law wholesale. Respondents, too, recognize the possibility of a modest remedy: They pleaded for any relief “just and proper,” App. 13 (Complaint), and conceded at oral argument that carefully crafted injunctive relief may resolve this case, Tr. of Oral Arg. 38, 40. Only a few applications of New Hampshire’s parental notification statute would present a constitutional problem. So long as they are faithful to legislative intent, then, in this case the lower courts can issue a declaratory judgment and an injunction prohibiting the statute’s unconstitutional application.
There is some dispute as to whether New Hampshire’s legislature intended the statute to be susceptible to such a remedy. . New Hampshire notes that the Act contains a severability clause providing that “[i]f any provision of this subdivision or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the provisions or applications of this subdivision which can be given effect without the invalid provisions or applications.” § 132:28. Respondents, on the other hand, contend that New Hampshire legislators preferred no statute at all to a statute enjoined in the way we have described. Because this is an open question, we remand for the lower courts to determine legislative intent in the first instance.
> t — i
Either an injunction prohibiting unconstitutional applications or a holding that consistency with legislative intent requires invalidating the statute in toto should obviate any concern about the Act’s life exception. We therefore need not pass on the lower courts’ alternative holding. Finally, if the Act does survive in part on remand, the Court of Appeals should address respondents’ separate objection to the judicial bypass’ confidentiality provision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Forty-four States, including New Hampshire, have parental involvement (that is, consent or notification) laws. Thirty-eight of those laws have explicit exceptions for health or medical emergencies. Ala Code §26-21-5 (1992); Alaska Stat. § 18.16.060 (2004); Ariz. Rev. Stat. Ann. §36-2152(G)(2) (West 2003); Ark. Code Ann. §§20-16-802(2), 20-16-805(1) (2005 Supp.); Cal. Health & Safety Code Ann. § 123450 (West 1996); Colo. Rev. Stat. §12-37.5-103(5) (2004); Del. Code Ann., Tit. 24, §§ 1782(d), 1787 (1997); Fla Stat. Ann. §§390.01114(2)(d), (3)(b) (West Supp. 2006); Ga Code Ann. §15-11-116 (2005); Idaho Code § 18-609A(1)(a)(v) (Lexis Cum. Supp. 2005); Ill. Comp. Stat., eh. 750, §70/10 (West 2004); Ind. Code § 16-34-2-4 (West 2004); Iowa Code §135L.3 (2005); Kan. Stat. Ann. § 65-6705(j)(1)(B) (2002); Ky. Rev. Stat. Ann. §§311.720, 311.732 (West Supp. 2005); La. Stat. Ann. §40:1299.35.12 (West Supp. 2005); Mass. Gen. Laws, ch. 112, §12S (West 2004); Mich. Comp. Laws Ann. §§ 722.902(b), 722.905 (West 2002); Miss. Code Ann. §41-41-57 (2005); Mont. Code Ann. §§50-20-203(5), 50-20-208 (2005); Neb. Rev. Stat. §71-6906(1) (2003); Nev. Rev. Stat. §442.255(1) (2003); N. J. Stat. Ann. §§9:17A-1.3, 9:17A-1.6 (West 2002); N. M. Stat. Ann. §30-5-1 (2004); N. C. Gen. Stat. Ann. §90-21.9 (Lexis 2003); N. D. Cent. Code Ann. §§14-02.1-03(1), 14-02.1-03.1(2) (Lexis 2004); Ohio Rev. Code Ann. § 2919.121(D) (Lexis 2003); Okla. Stat., Tit. 63, §1-740.2(B) (West Cum. Supp. 2006); 18 Pa. Cons. Stat. §§3203, 3206 (2002); R. I. Gen. Laws §23-4.7-4 (1996); S. C. Code Ann. §44-41-30(0(1) (2002); 2005 S. D. Laws p. 189; Tenn. Code Ann. § 37-10-305 (2005); Tex. Occ. Code Ann. § 164.052(a)(19) (West Cum. Supp. 2005), Tex. S. B. 419, § 1.42(a)(19) (2005) (enrolled); Utah Code Ann. §§76-7-301(2), 76-7-305 (Lexis Supp. 2005); Va. Code Ann. § 18.2-76 (2004); W. Va. Code § 16-2F-5 (Lexis 2001); Wis. Stat. §48.375 (2003-2004). Two States give physicians sufficient discretion to perform an abortion to protect minors’ health. Me. Rev. Stat. Ann., Tit. 22, §1597-A (2004); Md. Health Code Ann. §20-103 (2005). Four, including New Hampshire, make no exception for minors’ health in an emergency. N. H. Stat. § 132:26 (2005); Minn. Stat. § 144.343 (2004); Mo. Rev. Stat. §188.028 (2000); Wyo. Stat. Ann. §35-6-118 (2003).
It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” Hodgson, 497 U. S., at 444 (opinion of Stevens, J.); see id., at 450-451, and n. 36 (opinion of the Court) (holding unconstitutional a statute requiring notification of both parents, and observing that “the most common reason” young women did not notify a second parent was that the second parent “was a child- or spouse-batterer, and notification would have provoked further abuse” (citation omitted)).- See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer: |
sc_certreason | L | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
UNITED STATES v. GAGNON et al.
No. 84-690.
Decided March 18, 1985
Per Curiam.
The four respondents were indicted on various counts and tried together in Federal District Court for participation in a large-scale cocaine distribution conspiracy. During the afternoon recess on the first day of trial the District Judge was discussing matters of law in open court with the respondents, their respective counsel, and the Assistant United States Attorney, outside the presence of the jury. The bailiff entered the courtroom and informed the judge that one of the jurors, Garold Graham, had expressed concern because he had noticed respondent Gagnon sketching portraits of the jury. Gagnon’s attorney admitted that Gagnon had been sketching jury members during the trial. The District Judge ordered that the practice cease immediately. Gagnon’s lawyer suggested that the judge question the juror to ascertain whether the sketching had prejudiced the juror against Gagnon. The judge then stated, still in open court in the presence of each respondent and his counsel; “I will talk to the juror in my chambers and make a determination. We’ll stand at recess.” No objections were made by any respondent and no respondent requested to be present at the discussion in chambers.
The District Judge then went into the chambers and called for juror Graham. The judge also requested the bailiff to bring Gagnon’s counsel to chambers. There the judge, in the company of Gagnon’s counsel, discussed the sketching with the juror. The juror stated:
“. . . I just thought that perhaps because of the seriousness of the trial, and because of — whichever way the deliberations go, it kind of — it upset me, because — of what could happen afterwards.”
The judge then explained that Gagnon was an artist, meant no harm, and the sketchings had been confiscated. The juror was assured that Gagnon would sketch no more. Graham stated that another juror had seen the sketching and made a comment to him about it but no one else seemed to have noticed, and no other jurors had discussed the matter. The judge then elicited from Graham his willingness to continue as an impartial juror. Gagnon’s counsel asked two questions of the juror and then stated that he was satisfied. The in camera meeting broke up, and the trial resumed. A transcript of the in camera proceeding was available to all of the parties; at no time did any respondent mention or object to the in camera interview of the juror. No motions were made to disqualify Graham or the other juror who witnessed the sketching, nor did any respondent request that cautionary instructions be given to the jury. After the jury returned guilty verdicts no post-trial motions concerning the incident were filed with the District Court.
On the consolidated appeal, however, each respondent claimed that the District Court’s discussion with the juror in chambers violated respondents’ Sixth Amendment rights to an impartial jury and their rights under Federal Rule of Criminal Procedure 43 to be present at all stages of the trial. A divided panel of the Court of Appeals for the Ninth Circuit reversed the convictions of all respondents, holding that the in camera discussion with the juror violated respondents’ rights under Rule 43 and the Due Process Clause of the Fifth Amendment. 721 F. 2d 672 (1983).
The Court of Appeals held that all four respondents had due process and Rule 43 rights to be personally present at the in camera discussion, and these rights were substantial enough to be noticed as plain error on appeal under Federal Rule of Criminal Procedure 52(b), notwithstanding respondents’ failure to preserve the issue by raising it in the District Court. Although the juror was only worried about Gagnon’s conduct, the Court of Appeals held that the juror’s potential prejudice against Gagnon might harm all respondents because they were joint actors charged and tried together for conspiracy.
The court stated that it could find nothing in the record to “conclusively determine” that respondents waived their Rule 43 rights. The Court of Appeals found “no indication of whether Gagnon or the other defendants expressly or impliedly implicated their willingness to be absent from the conference.” 721 F. 2d, at 677. That no objection was made to holding the conference without respondents was, to the court, irrelevant on the question of voluntary absence under Rule 43. Because the court found no waiver of the Rule 43 right to be present, it stated that a fortiori it could not conclude that respondents had made an intentional and knowing relinquishment of their due process right to be present. Ibid., citing Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Finally, the court held that the harmless-error rule did not excuse the errors committed by the District Court.
We think it clear that respondents’ rights under the Fifth Amendment Due Process Clause were not violated by the in camera discussion with the juror. “[T]he mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right. The defense has no constitutional right to be present at every interaction between a judge and a juror, nor is there a constitutional right to have a court reporter transcribe every such communication.” Rushen v. Spain, 464 U. S. 114, 125-126 (1983) (Stevens, J., concurring in judgment).
The constitutional right to presence is rooted to a large extent in the Confrontation Clause of the Sixth Amendment, e. g., Illinois v. Allen, 397 U. S. 337 (1970), but we have recognized that this right is protected by the Due Process Clause in some situations where the defendant is not actually confronting witnesses or evidence against him. In Snyder v. Massachusetts, 291 U. S. 97 (1934), the Court explained that a defendant has a due process right to be present at a proceeding “whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge. . . . [T]he presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id., at 105-106, 108; see also Faretta v. California, 422 U. S. 806, 819, n. 15 (1975). The Court also cautioned in Snyder that the exclusion of a defendant from a trial proceeding should be considered in light of the whole record. 291 U. S., at 115.
In this case the presence of the four respondents and their four trial counsel at the in camera discussion was not required to ensure fundamental fairness or a “reasonably substantial . . . opportunity to defend against the charge.” See Snyder, supra. The encounter between the judge, the juror, and Gagnon’s lawyer was a short interlude in a complex trial; the conference was not the sort of event which every defendant had a right personally to attend under the Fifth Amendment. Respondents could have done nothing had they been at the conference, nor would they have gained anything by attending. Id., at 108. Indeed, the presence of Gagnon and the other respondents, their four counsel, and the prosecutor could have been counterproductive. Juror Graham had quietly expressed some concern about the purposes of Gagnon’s sketching, and the District Judge sought to explain the situation to the juror. The Fifth Amendment does not require that all the parties be present when the judge inquires into such a minor occurrence.
The Court of Appeals also held that the conference with the juror was a “stage of the trial” at which Gagnon’s presence was guaranteed by Federal Rule of Criminal Procedure 43. We assume for the purposes of this opinion that the Court of Appeals was correct in this regard. We hold, however, that the court erred in concluding that respondents had not waived their rights under Rule 43 to be present at the conference with the juror.
The Court of Appeals found the record insufficient to show a valid waiver of respondents’ rights under Rule 43 because there was no proof that respondents expressly or impliedly indicated their willingness to be absent from the conference. The record shows, however, that the District Judge, in open court, announced her intention to speak with the juror in chambers, and then called a recess. The in camera discussion took place during the recess, and trial resumed shortly thereafter with no change in the jury. Respondents neither then nor later in the course of the trial asserted any Rule 43 rights they may have had to attend this conference. Respondents did not request to attend the conference at any time. No objections of any sort were lodged, either before or after the conference. Respondents did not even make any post-trial motions, although post-trial hearings may often resolve this sort of claim. See Fed. Rule Crim. Proc. 33; Rushen, supra, at 119-120, citing Smith v. Phillips, 455 U. S. 209, 218-219 (1982); Remmer v. United States, 347 U. S. 227, 230 (1954). We disagree with the Court of Appeals that failure to object is irrelevant to whether a defendant has voluntarily absented himself under Rule 43 from an in camera conference of which he is aware. The district court need not get an express “on the record” waiver from the defendant for every trial conference which a defendant may have a right to attend. As we have noted previously, “[t]here is scarcely a lengthy trial in which one or more jurors does not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial.” Rushen, supra, at 118. A defendant knowing of such a discussion must assert whatever right he may have under Rule 43 to be present.
Our holding today is in accord with our prior cases and is also consistent with the approach taken by many Courts of Appeals. In Taylor v. United States, 414 U. S. 17 (1973), the defendant did not return to the courthouse after the first morning of trial. The trial continued in his absence, resulting in guilty verdicts. After his later arrest and sentencing the defendant claimed that he was denied a right to be present at trial under Rule 43 because mere voluntary absence was not an effective waiver of that right. We rejected this claim, id., at 19-20, and held that the defendant need not be expressly warned of rights under Rule 43. Nor did we require any type of waiver to exist on the record; the defendant’s failure to assert his right was an adequate waiver. Similarly, respondents’ total failure to assert their rights to attend the conference with the juror sufficed to waive their rights under Rule 43.
This analysis comports both with the language of Rule 43 and with the everyday practicalities of conducting a trial. If a defendant is entitled under Rule 43 to attend certain “stages of the trial” which do not take place in open court, the defendant or his counsel must assert that right at the time; they may not claim it for the first time on appeal from a sentence entered on a jury’s verdict of “guilty.” Rule 43(b) states that “the defendant shall be considered to have waived his right to be present whenever a defendant, initially present.. . voluntarily absents himself. . . .” See also Advisory Committee Notes on Fed. Rule Crim. Proc. 43, 18 U. S. C. App., p. 646. Respondents knew the District Judge was holding a conference with the juror and with Gagnon’s attorney, yet neither they nor their attorney made any effort to attend. Timely invocation of a Rule 43 right could at least have apprised the District Court of the claim, and very likely enabled it to accommodate a meritorious claim in whole or in part. Unlike the Court of Appeals, we find nothing in Rule 43 which requires that latter-day protests of the District Court’s action with respect to a relatively minor incident be sustained, and the case tried anew. We hold that failure by a criminal defendant to invoke his right to be present under Federal Rule of Criminal Procedure 43 at a conference which he knows is taking place between the judge and a juror in chambers constitutes a valid waiver of that right. The petition for certiorari and respondents’ motion to supplement the record are granted, and the judgment of the Court of Appeals is
Reversed.
Justice Powell took no part in the consideration or decision of this case.
Rule 43 provides:
“(a) Presence Required. The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
“(b) Continued Presence Not Required. The further progress of the trial to and including the return of the verdict shall not be prevented and the defendant shall be considered to have waived his right to be present whenever a defendant, initially present,
“(1) voluntarily absents himself after the trial has commenced (whether or not he has been informed by the court of his obligation to remain during the trial), or
“(2) after being warned by the court that disruptive conduct will cause him to be removed from the courtroom, persists in conduct which is such as to justify his being excluded from the courtroom.
“(c) Presence Not Required. A defendant need not be present in the following situations:
“(1) A corporation may appear by counsel for all purposes.
“(2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant’s absence.
“(3) At a conference or argument upon a question of law.
“(4) At a reduction of sentence under Rule 35.”
See, e. g., United States v. Washington, 227 U. S. App. D. C. 184, 191-193, 705 F. 2d 489, 496-498 (1983); United States v. Provenzano, 620 F. 2d 985, 997-998 (CA3), cert. denied, 449 U. S. 899 (1980); United States v. Bufalino, 576 F. 2d 446, 450-451 (CA2), cert. denied, 439 U. S. 928 (1978); United States v. Brown, 571 F. 2d 980, 987 (CA6 1978).
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer: |
sc_casesource | 031 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
SECURITIES AND EXCHANGE COMMISSION v. UNITED BENEFIT LIFE INSURANCE CO.
No. 428.
Argued April 10, 1967.
Decided May 22, 1967.
Solicitor General Marshall argued the cause for petitioner. With him on the brief were Robert S. Rif kind, Philip A. Loomis, Jr., Solomon Freedman, Walter P. North and Jacob H. Stillmcm.
Daniel J. McCauley, Jr., argued the cause for respondent. With him on the brief were Morris L. Weisberg and Donald F. Evans.
Joseph B. Levin, Robert L. Augenblick and Marc A. White filed a brief for the Investment Company Institute et alv as amici curiae, urging reversal.
Mr. Justice Harlan
delivered the opinion of the Court.
This action was initiated by the Securities and Exchange Commission to enjoin respondent (United) from offering its “Flexible Fund Annuity” contract without undertaking the registration required by § 5 of the Securities Act of 1933, and to compel United to register the “Flexible Fund” itself as an “investment company” pursuant to § 8 of the Investment Company Act of 1940.
The “Flexible Fund Annuity” is a deferred, or optional, annuity plan having characteristics somewhat similar to those of the variable annuities this Court held, in S. E. C. v. Variable Annuity Life Insurance Co., 359 U. S. 65 (VALIC), to be subject to the Securities Act. Like the variable annuity, it is a recent effort to meet the challenge of inflation by allowing the purchaser to reap the benefits of a professional investment program while at the same time gaining the security of an insurance annuity. There are, however, significant differences between the “Flexible Fund” contract and the variable annuity, and it is claimed that these differences suffice to bring the “Flexible Fund” contract within the “optional annuity contract” exemption of § 3 (a)(8) of the Securities Act and to bring the “Flexible Fund” itself within the “insurance company” exemption of § 3 (c) (3) of the Investment Company Act, 54 Stat. 798, 15 U. S. C. § 80a-3(c)(3).
The purchaser of a “Flexible Fund” annuity agrees to pay a fixed monthly premium for a number of years before a specified maturity date. That premium, less a deduction for expenses (the net premium), is placed in a “Flexible Fund” account which United maintains separately from its other funds, pursuant to Nebraska law. Neb. Rev. Stat. § 44-310.06 (1963 Cum. Supp.). United undertakes to invest the “Flexible Fund” with the object of producing capital gains as well as an interest return, and the major part of the fund is invested in common stocks. The purchaser, at all times before maturity, is entitled to his proportionate share of the total fund and may withdraw all or part of this interest. The purchaser is also entitled to an alternative cash value measured by a percentage of his net premiums which gradually increases from 50% of that sum in the first year to 100% after 10 years. Other features, common to conventional annuity contracts, are also incorporated in United’s plan.
At maturity, the purchaser may elect to receive the cash value of his policy, measured either by his interest in the fund or by the net premium guarantee, whichever is larger. He may also choose to convert his interest into a life annuity under conditions specified in the “Flexible Fund” contract. These conditions relate future benefits to dollars available at maturity so the dollar benefits to be received will vary with the cash value at maturity. However, the net premium guarantee is, because of this conversion system, also a guarantee that a certain amount of fixed-amount payment life annuity will be available at maturity.
After maturity the policyholder has no further interest in the “Flexible Fund.” He has either received the value of his interest in cash, or converted to a fixed-payment annuity in which case his interest has been transferred from the “Flexible Fund” to the general reserves of the company, and mingled, on equal terms per dollar of cash value, with the interests of holders of conventional deferred annuities.
Because of the termination of interest in the “Flexible Fund” at maturity, the SEC contended that the portion of the “Flexible Fund” contract which dealt with the pre-maturity period was separable and a “security,” within the meaning of the Securities Act. It was agreed that the provisions dealing with the operation of the fixed-payment annuity were purely conventional insurance provisions, and thus beyond the purview of the SEC. The District Court held that the guarantee of a fixed-payment annuity of a substantial amount gave the entire contract the character of insurance. The Court of Appeals for the District of Columbia Circuit affirmed. 123 U. S. App. D. C. 305, 359 F. 2d 619. That court rejected “the SEC’s basic premise that the contract should be fragmented and the risk during the deferred period only should be considered.” Considering the contract as a whole, it found, as the SEC had urged, that this Court’s decision in VALIC, supra, was controlling. But it read that decision to hold only “that a company must bear a substantial part of the investment risk associated with the contract ... in order to qualify its products as ‘insurance.’ ” 123 U. S. App. D. C., at 308, 359 F. 2d, at 622. Because of the net premium guarantee and the conversion to payments which included an interest element during the fixed-payment period, the court concluded that the “Flexible Fund” met this test. Because of the importance of the issue, and the need for clarifying the implications of the VALIC decision, we granted certiorari, 385 U. S. 918. We now reverse for reasons given below.
First, we do not agree with the Court of Appeals that the “Flexible Fund” contract must be characterized in its entirety. Two entirely distinct promises are included in the contract and their operation is separated at a fixed point in time. In selling a deferred annuity contract of any type, United must first decide what amount of annuity payment is to be allowed for each dollar paid into the annuity fund at maturity. In making that calculation United must analyze expected mortality, interest, and expenses of administration. The outcome of that calculation is shown in the conversion table which is included in the “Flexible Fund” contract.
The second problem United must face in a deferred annuity is to determine what amount will be available for the annuity fund at maturity. In a conventional annuity where a fixed amount of benefits is stipulated it is essential that the premiums both cover expenses and produce a fund sufficient to support the promised benefits. In fixing the necessary premium mortality experience is a subordinate factor and the planning problem is to decide what interest and expense rates may be expected. There is some shifting of risk from policyholder to insurer, but no pooling of risks among policyholders. In other words, the insurer is acting, in a role similar to that of a savings institution, and state regulation is adjusted to this role. The policyholder has no direct interest in the fund and the insurer has a dollar target to meet.
The “Flexible Fund” program completely reverses the role of the insurer during the accumulation period. Instead of promising to the policyholder an accumulation to a fixed amount of savings at interest, the insurer promises to serve as an investment agency and allow the policyholder to share in its investment experience. The insurer is obligated to produce no more than the guaranteed minimum at maturity, and this amount is substantially less than that guaranteed by the same premiums in a conventional deferred annuity contract. The fixed-payment benefits are adjusted to reflect the number of dollars available, as opposed to the conventional annuity where the amount available is planned to reflect the promised benefits.
The insurer may plan to meet the minimum guarantee by split funding — that is, treating part of the net premium as it would a premium under a conventional deferred annuity contract with a cash value at maturity equal to the minimum guarantee and investing only the remainder — or by setting the minimum low enough that the risk of not being able to meet it through investment is insignificant. The latter is the course United seems to have pursued. In either case the guarantee cannot be said to integrate the pre-maturity operation into the post-maturity benefit scheme. United could as easily attach a “Flexible Fund” option to a deferred life insurance contract or any other benefit which could otherwise be provided by a single payment. And the annuity portion of the contract could be offered independently of the “Flexible Fund.” We therefore conclude that we must assess independently the operation of the “Flexible Fund” contract during the deferred period to determine whether that separable portion of the contract falls within the class of those exempted by Congress from the requirements of the Securities Act, and, if not, whether the contract constitutes a “security” within § 2 of that Act, 48 Stat. 74, 15 U. S. C. § 77b.
The provisions to be examined are less difficult of classification than the ones presented to us in VALIC. There it was held that the entire plan under which benefits continued to fluctuate with the fortunes of the. fund after maturity, was not a contract of insurance within the § 3 (a) exemption. A pooling of mortality risk was operative during the payment period, and the contract was one of insurance under state law, but a majority of this Court held that “the meaning of 'insurance’. . . under these Federal Acts is a federal question,” 359 U. S., at 69, and “that the concept of 'insurance’ involves some investment risk-taking on the part of the company.” Id., at 71. The argument “that the existence of adequate state regulation was the basis for the exemption [the position taken by four dissenting Justices] . . . was conclusively rejected ... in YALIC for the reason that variable annuities are ‘securities’ and involve considerations of investment not present in the conventional contract of insurance.” Prudential Insurance Co. v. S. E. C., 326 F. 2d 383, 388. It was implied in the majority opinion in YALIC and made explicit by the two concurring Justices, that the exemption was to be considered a congressional declaration “that there then was a form of ‘investment’ known as insurance (including ‘annuity contracts’) which did not present very squarely the sort of problems that the Securities Act . . . [was] devised to deal with, and which were, in many details, subject to a form of state regulation of a sort which made the federal regulation even less relevant.” VALIC, at 75 (opinion of Brennan, J.). In considering YALIC to have turned solely on the absence of any substantial investment risk-taking on the part of the insurer there, we think that the Court of Appeals in the present case viewed that decision too narrowly.
Approaching the accumulation portion of this contract, in this light, we have little difficulty in concluding that it does not fall within the insurance exemption of § 3 (a) of the Securities Act. “Flexible Fund” arrangements require special modifications of state law, and are considered to appeal to the purchaser not on the usual insurance basis of stability and security but on the prospect of “growth” through sound investment management. And while the guarantee of cash value based on net premiums reduces substantially the investment risk of the contract holder, the assumption of an investment risk cannot by itself create an insurance provision under the federal definition. Helvering v. Le Gierse, 312 U. S. 531, 542. The basic difference between a contract which to some degree is insured and a contract of insurance must be recognized.
We find it equally clear that the accumulation provisions constitute an “investment contract” within the terms of § 2 of the Securities Act. As the Court said in S. E. C. v. Joiner Leasing Corp., 320 U. S. 344, 352-353, “The test ... is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect. In the enforcement of an act such as this it is not inappropriate that promoters’ offerings be judged as being what they were represented to be.” Contracts such as the “Flexible Fund” offer important competition to mutual funds, see Johnson, The Variable Annuity— Insurance, Investment, or Both?, 48 Geo. L. J. 641, and are pitched to the same consumer interest in growth through professionally managed investment. It seems eminently fair that a purchaser of such a plan be afforded the same advantages of disclosure which inure to a mutual fund purchaser under § 5 of the Securities Act. “At the state level the Uniform Securities Act makes explicit what seems to be the view of the great majority of blue sky administrators to the effect that variable annuities are securities . . . 1 Loss, Securities Regulation 499. Given VALIC, we hold that for the purposes of the Securities Act these contracts are also to be considered nonexempt securities and cannot be offered to the public without conformity to the registration requirements of § 5.
Because the courts below considered the contract itself to be exempt, they did not reach the question whether the “Flexible Fund” was an “investment company” under the Investment Company Act of 1940. In VALIC the sole business of the insurer was the issuance of the contracts held to be securities, and thus the Court held the insurer to be an investment company. It is clear, however, that United in the main is an insurance company exempt from the requirements of the Investment Company Act. Moreover, the provisions of that Act are substantive and go well beyond the disclosure requirements of the Securities Act. Thus the question whether the. fund may be separated from United's other activities and considered an investment company is a difficult one. See Comment, 61 Mich. L. Rev. 1374; Note, Regulation of Variable Annuity Sales: The Aftermath of SEC v. VALIC, 1959 Wash. U. L. Q. 206. An investigation into the relationship between the “Flexible Fund” and United’s insurance business, as well as an investigation of the possible conflicts between state and federal regulation, is required for a proper resolution. The SEC has requested us to remand the case for further consideration of this issue, and in view of its complexity, we deem this the wisest course.
The judgment of the Court of Appeals for the District of Columbia Circuit is reversed and the case is remanded to that court for further proceedings consistent with this opinion.
/f is so ordered.
48 Stat. 77, 15 U. S. C. § 77e.
54 Stat. 803, 15 U. S. C. § 80a-8.
United’s sales brochure describes the plan as featuring “a method of accumulation modernized to keep pace with today’s living . . . and a chance to share in the growth of the country’s economy.” At the same time it is claimed that the plan “combines this new method of accumulation with the time-tested advantages of a lifetime annuity ... a savings and accumulation plan that guarantees a lifetime income at maturity.”
48 Stat. 76, 15 U. S. C. § 77c (a) (8) exempts from the operation of the Securities Act “Any insurance or endowment policy or annuity contract or optional annuity contract, issued by a corporation subject to the supervision of the insurance commissioner, bank commissioner, or any agency or officer performing like functions, of any State or Territory of the United States or the District of Columbia.”
For example a refund of premiums is provided in case of death before maturity. Deferred periods of varying duration may be chosen, and the purchaser may elect to turn his cash value into an annuity at a date before specified maturity. Standard incontestability clauses and assignment clauses are incorporated into the contract. The contract at issue in S. E. C. v. Variable Annuity Life Insurance Co., 359 U. S. 65, also had some ancillary features common to all standard annuity contracts. The Court did not find them determinative. Id., at 73, n. 15.
Annuities may indeed be purchased for a single premium, and it is the basic single-premium calculation which controls the benefits of all deferred plans. See Johnson, The Variable Annuity— Insurance, Investment, or Both?, 48 Geo. L. J. 641, 655; Mehr & Osier, Modem Life Insurance 79-102 (3d ed. 1961).
For such a calculation the retum-of-premium provision can be considered to be a form of term insurance provided by the company and included within the expense arrangements.
See Huebner & Black, Life Insurance 518-524 (5th ed. 1958).
See Johnson, supra, n. 6, at 673.
The table below compares the cash values of the “Flexible Fund” contracts with those of United’s standard deferred annuities:
Respondent’s Flexible Fund standard deferred Years Paid in guarantee annuity
1. 1,200 300 624
5. 6,000 3,461 5,460
10. 12,000 10,374 12,504
20. 24,000 21,774 30,792
30. 36,000 33,174 54,828
40 . 48,000 44,574 87,156
See O’Brien, Static Dollars? Dynamic Dollars? Why Not Have Both!, Apr. 25, 1960 Investment Dealers’ Digest (Mutual Fund Supplement) 56. Cf. Spellacy v. American Life Ins. Assn., 144 Conn. 346, 131 A. 2d 834.
The record shows that United set its guarantee by analyzing the performance of common stocks during the first half of the 20th century and adjusting the guarantee so that it would not have become operable under any prior conditions.
Advisers Fund, Inc., a mutual fund, sells shares on an installment plan and simultaneously guarantees that an affiliated insurance company will allow the proceeds on redemption to be applied to the purchase of an annuity at specified conversion rates.
Mr. Justice BrennaN and Mr. Justice Stewart joined in a concurring opinion written by Mr. Justice BrennaN and also joined in the opinion of the Court.
United’s primary advertisement for the “Flexible Fund” was headed “New Opportunity for Financial Growth.” United’s sales aid kit included displays emphasizing the possibility of investment return and the experience of United’s management in professional investing.
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156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_appfiduc | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee, v. D. D. HARRINGTON et al., Appellees and Appellants. D. D. HARRINGTON et al., Appellees and Appellants, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee.
No. 16206.
United States Court of Appeals Fifth Circuit.
July 9, 1957.
Clarence H. Ross, Chicago, 111., D. H. Culton, Amarillo, Tex., Warren T. Spies, Chicago, 111., Ross & O’Keefe, Chicago, 111., Culton, Morgan, Britain & White, Amarillo, Tex., of counsel, for appellants.
David T. Searls, Gene M. Woodfin, Houston, Tex., Hugh L. Umphres, Jr., Amarillo, Tex., J. Evans Attwell, Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., of counsel, for appellee.
Before BORAH, RIVES and BROWN, Circuit Judges.
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: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
songer_genresp2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Haldane M. PLUNKETT, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 71-1084.
United States Court of Appeals, Seventh Circuit.
July 10, 1972.
Argued Dec. 3, 1971.
Decided July 10, 1972.
Raymond J. Smith, Chicago, Ill., for petitioner-appellant; Arthur N. Nasser, Chicago, Ill., of counsel.
Fred B. Ugast, Acting Asst. Atty. Gen., Bruce I. Kogan, Gilbert E. Andrews, Elmer J. Kelsey, Attys., Tax Division, Dept, of Justice, Washington, D. C., for respondent-appellee.
Before KERNER, PELL, and SPRECHER, Circuit Judges.
Judge Kerner heard oral argument but did not participate in the adoption of this opinion.
PELL, Circuit Judge.
In 1968, taxpayer Haldane M. Plunkett filed two petitions in the Tax Court challenging the Commissioner’s determinations regarding deficiencies in income tax, additions to tax, and alleged over-payments. The two petitions, one involving the years 1957 through 1959 and the other 1960 through 1963, were consolidated for trial and decision. On October 2, 1970, the Tax Court entered its decisions sustaining a deficiency of $9,-504.96 for the taxable year 1957 and additions to tax under 26 U.S.C. § 6653(b) of $35,141.10 for the years 1957 through 1963. After the Tax Court denied his petition for reconsideration, Plunkett appealed to this court.
During the years in question, the taxpayer ran a food catering business with the assistance of Mrs. Plunkett. Both Plunkett, who has had little formal education, and his wife are allegedly untutored in the intricacies of bookkeeping and accounting. The taxpayer did not maintain any formal records for his business nor did he retain a bookkeeper or accountant to do so for him. He did, however, keep a customer order book which reflected each catering event and, in most instances, the amount charged therefor. He also separated paid bills from unpaid bills and retained them in different drawers.
Plunkett timely filed original individual income tax returns for the years 1957 through 1959 and original joint returns for the years 1960 through 1963. The original returns for 1957, 1958 and 1959 were prepared by others on the basis of information supplied by Plunkett. To compute the net income shown on those returns, the taxpayer had estimated his total expenses and deducted that amount from his estimated gross receipts or else he had deducted the total estimated expenses from the amount that he had deposited in his bank account.
During this period, Plunkett engaged in transactions in the stock market and in the commodity futures market. He subscribed to a security advisory service and maintained a margin account with a brokerage house, which periodically sent him information concerning his account and periodically credited cash dividends to the account.
Although Plunkett knew that dividends were taxable income, he failed to report such income for the taxable years 1957, 1958 and 1959. In his testimony in the Tax Court, he attributed this omission to his claimed belief at the time that dividends credited to an account need be reported only if they are withdrawn from the account. Plunkett did not withdraw any dividends during 1957, 1958 or 1959.
In about December 1963, the taxpayer became concerned with the manner in which he was handling his tax matters, and in early 1964, he consulted an aider-man who helped him find an attorney to advise him. Shortly after Plunkett began working with the attorney, a revenue officer conferred with Plunkett, his wife, and one of his employees about the employee’s tax affairs. At this time, late June 1964, the IRS had not assigned an agent to examine Plunkett’s income tax returns.
On the advice of his attorney, Plunkett decided to file amended returns for the years 1958 through 1963. (Counsel recommended that no amended return be prepared for 1957.) With the help of a CPA, Plunkett completed this task by the end of July. The returns were based on information that had been available to the taxpayer when he had filed originally. On August 6, 1964, Plunkett filed the amended returns and paid the additional taxes shown on them, plus interest. The Commissioner generally accepted the new returns as reflecting accurately Plunkett’s income, expenses and deductions for 1958 through 1963.
Subsequent to August 11, 1964, IRS agents conducted a criminal investigation of Plunkett’s original and amended returns. On the basis that the amended returns “spoke for themselves,” Plunkett and his represenatives declined any cooperation during the course of the criminal investigation. In December 1966, a four-count indictment was returned against Plunkett and his wife for violating 26 U.S.C. § 7201 with respect to their joint income tax returns for the years 1960 through 1963. The defendants entered pleas of not guilty. Plunkett later changed his pleas to nolo contendere upon his counsel’s understanding that the Government would then move to dismiss the indictment as to Mrs. Plunkett. However, the Government objected to the tendered pleas and stated that it would not move to dismiss. Plunkett, by his attorney, thereupon withdrew his tender of the nolo contendere pleas and pleaded guilty. Following a colloquy between Plunkett and the district court, the court entered the guilty pleas and granted the Government’s motion to dismiss Mrs. Plunkett.
Plunkett was sentenced to three years’ probation on each count of the indictment, the sentences to run concurrently on the condition that he serve 90 days of the probation in a “jail type” institution. He was also fined $20,000. Before the commencement of the jail term, Plunkett, then aged 73, suffered a stroke, and the court vacated the imposition of the 90 days’ imprisonment. Plunkett has never appealed from the conviction or sentence in the criminal case.
In the civil suit in the Tax Court below, the Commissioner introduced evidence as to the years 1957, 1958 and 1959 to meet his burden of proving fraud on the part of the taxpayer. However, to sustain the fraud penalties for the years 1960 through 1963 he relied entirely on the original and amended returns and the doctrine of collateral estoppel, based on Plunkett’s criminal conviction.
Plunkett’s first contention is that the Tax Court erred in finding that a part of his underpayments of income tax for the years 1957, 1958 and 1959 was due to fraud with intent to evade tax within the meaning of 26 U.S.C. § 6653(b) so as to render the petitioner liable for the “fraud penalty” addition to tax. More particularly, Plunkett argues that the court improperly ignored his defense of voluntary disclosure and that the Commissioner failed to satisfy the “clear and convincing evidence” standard.
Contrary to the Commissioner’s assertion, we think that the record supports Plunkett’s claim that his disclosure of the inaccuracies in his original returns was voluntary. He had filed amended returns for the years 1958 through 1963 before the criminal investigation of his tax affairs was initiated. The conferences between the Plunketts and Internal Revenue Service agents pri- or to the time the amended returns were filed concerned the tax returns of one of Plunkett’s employees; that is,, the petitioner was involved only as the employer of a person being investigated.
We cannot therefore conclude, however, that the United States Attorney was foreclosed from prosecuting Plunkett or that the Commissioner of Internal Revenue was precluded from pursuing civil remedies, including the imposition of fraud penalties, against a taxpayer whom he believed evidence showed to have filed false and fraudulent original returns. The IRS may have an informal policy of sometimes not seeking full sanctions against an errant taxpayer who voluntarily and prior to the initiation of an IRS investigation files amended returns and pays the additional taxes due, but it is not required to follow that policy of leniency. Cf. United States v. Shotwell Mfg. Co., 225 F.2d 394, 397-398 (7th Cir. 1955), cert. denied on the cross petition, 352 U.S. 998, 77 S.Ct. 552, 1 L.Ed.2d 544, and the decision vacated on other grounds, 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234 (1957).
Although we find that such admissions create no legal bar, we appreciate the irony that — as Plunkett points out — a taxpayer may thereby become the unintended victim of his own defensive maneuvers. An objective observer might well come to the conclusion that the combination of criminal and civil penalties visited upon Plunkett was unduly harsh under the circumstances here involved. Nevertheless, it is apparent that one of the calculated risks of tax evasion, as well as of the violation of any criminal law, is that the full measure of the law’s retribution may be asserted by way of demonstrating its irrefragability.
We turn then to the second prong of the petitioner’s challenge.
It is well established that whether an underpayment of income is due to fraud is a question of fact. “[Although . . . this is a fact which the Commissioner is required to prove by clear and convincing evidence, it, like other findings of fact, will not be upset unless clearly erroneous. . . . ” Archer v. Commissioner of Internal Revenue, 227 F.2d 270, 274 (5th Cir. 1955). See also Commissioner of Internal Revenue v. Duberstein, 363 U.S. 278, 291, 80 S.Ct. 1190, 4 L.Ed.2d 1218 (1960). To meet his burden of proof, the Commissioner need not prove the precise amount of the underpayment resulting from fraud, but only that “any part” of the underpayment is attributable to fraud. See Estate of W. Y. Brame v. Commissioner of Internal Revenue, 25 T.C. 824 (1956), aff’d per curiam, 256 F.2d 343 (5th Cir. 1958). We are also mindful that fraud may be established by circumstantial evidence and that the taxpayer’s background and the context of the events in question may be considered, e. g., Gano v. Commissioner, 19 B.T.A. 518, 532 (1930).
Applying these principles to the present case, we hold that the Tax Court’s finding was not clearly erroneous. The court had a sufficient basis for sustaining the Commissioner’s determination that Plunkett filed false and fraudulent income tax returns for 1957, 1958 and 1959 within the purview of section 6653(b).
The factors that the court cited adequately support its finding that Plunkett “was more than grossly negligent. . . .”29 C.C.H. Tax Ct.Mem. at 1246. Among the factors considered were: Plunkett’s being a person of at least average intelligence and average business understanding; his success as a businessman; his long experience in investing in the stock market; his failure to maintain proper books and records of his business receipts; his further failure to utilize fully what information he did have at the time the original returns were prepared so as to facilitate the accurate reconstruction of his taxable income ; and his consistent and substantial understatement of income on his original tax returns.
Plunkett calls to our attention the fact, which the Commissioner does not contest, that his estimates of his business expenses on the original returns were much lower than his actual expenses. He argues that this belies his supposed fraudulent intent.
We agree that this circumstance is not without significance. However, because Plunkett understated his receipts by $35,649.76 more than he understated his expenses — resulting in a concealed net profit — we cannot fault the Tax Court for finding that that element of the misreporting was insufficient to counteract the combined force of all the other factors listed above.
Our resolution of the first issue raised by Plunkett controls our disposition of the second issue: whether the Tax Court erred in finding that the statute of limitations did not bar the assessment and collection of a deficiency in income tax for 1957, where no assessment for 1957 had been made within three years from the filing of the return for that year.
It is true that, as a general rule, the amount of any deficiency in income tax must be assessed within three years after the return was filed. 26 U.S.C. § 6501. But in the case of a false or fraudulent return with the intent to evade tax, the tax deficiency may be assessed at any time. 26 U.S.C. § 6501(c) (1). The Tax Court was therefore correct in holding that the statute of limitations had not run against the Commissioner.
The taxpayer next urges that he was entitled to receive credit for or a refund of overpayments of tax he made for 1958 and 1959 resulting from carrying forward to those years a capital loss incurred in 1957. This carry-forward loss was not reflected in the original or the amended returns filed by Plunkett for 1958 and 1959. The Commissioner contends that, because the taxpayer did not timely file a claim for refund, the statute of limitations bars him from receiving any credit or refund of the overpayments of tax. In rebuttal, Plunkett asserts that he should not be barred from recovering by any statutory limitations period because the Commissioner, having proven fraud for the years 1958 and 1959, is not restricted by any time limitation in the assessment of deficiencies and penalties for those years. “[T]he years should be open for all purposes including refunds.”
The Tax Court did not pass on Plunk-ett’s claim for a refund because it erroneously believed that the Commissioner had given the petitioner full credit for the overassessments in his recomputation of taxes and penalties for the years in question. Rather than remanding the case to the Tax Court, we have decided to settle the dispute since it involves a matter of law only.
Although Plunkett’s proposition that “the government should not have any greater advantage than the [taxpayer]” sounds appealingly evenhanded, unfortunately it has no support in the cases or in the existing statutes. Claims for credit or refund of an overpayment of tax are required to be filed within three years from the time the return respecting the overpaid tax was filed or within two years from the time the tax was paid, whichever expires the later. 26 U.S.C. § 6511(a). Generally, after the expiration of those time periods, the taxpayer is barred from receiving credit or refund unless he had timely filed his claim. 26 U.S.C. § 6511(b) (1). Plunkett cannot meet these requirements. He also cannot satisfy the conditions set out in 26 U.S.C. § 6511(c) and 26 U.S.C. § 6512.
Finally, Plunkettt argues that the Tax Court erred in determining that his conviction in 1967 for income tax evasion for the years 1960 through 1963 collaterally estopped him in the subsequent civil proceedings from denying that the returns for those years were fraudulent. The Commissioner introduced no affirmative evidence of fraud in the Tax Court but relied on the returns and Plunkett’s plea of guilty and his criminal conviction to sustain the imposition of the 50 percent “fraud penalty,” 26 U.S.C. § 6653(b).
Most courts faced with the question have held that a prior conviction for tax evasion after a trial on the merits operates as a collateral estoppel on the issue of civil fraud in a fraud penalty proceeding. The criminal conviction necessarily carries with it the ultimate factual determination that the underpayments of tax were “due to fraud” within the meaning of section 6653(b). E. g., Moore v. United States, 360 F.2d 353 (4th Cir. 1965), cert. denied, 385 U.S. 1001, 87 S.Ct. 704, 17 L.Ed.2d 541 (1967); Armstrong v. United States, 354 F.2d 274, 173 Ct.Cl. 944 (1965); Tomlinson v. Lefkowitz, 334 F.2d 262 (5th Cir. 1964), cert. denied, 379 U.S. 962, 85 S.Ct. 650, 13 L.Ed.2d 556 (1965); Amos v. Commissioner of Internal Revenue, 43 T.C. 50 (1964), aff’d, 360 F.2d 358 (4th Cir. 1965). Two recent decisions of the Tax Court reiterate this principle, C.B.C. Super Markets, Inc. v. Commissioner of Internal Revenue, 54 T.C. 882 (1970), and Rodney v. Commissioner of Internal Revenue, 53 T.C. 287 (1969).
Plunkett does not contest the validity of this rule, but he does maintain that it is inapplicable under the special circumstances of his guilty plea.
We note that there is strong authority holding that a guilty plea is an admission of all the elements of a formal criminal charge. McCarthy v. United States, 394 U. S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
In Arctic Ice Cream Co. v. Commissioner of Internal Revenue, 43 T.C. 68 (1964), a corporate taxpayer was held to be collaterally estopped from denying fraud in a civil proceeding by its previous conviction for tax evasion based upon a guilty plea. In upholding the imposition of a civil fraud penalty, the court declared :
“It is not material that Arctic’s conviction was based upon a guilty plea, because for purposes of applying the doctrine of collateral estoppel, as well as for other purposes, there is no difference between a judgment of conviction based upon such a plea and a judgment of conviction rendered after a trial on the merits. . . . Arctic’s plea of guilty to this indictment was therefore a conclusive judicial admission that its return for 1946 was false and fraudulent and that the deficiency in tax which was the necessary result of its being filed was due to fraud with intent to evade tax.” 43 T.C. at 75.
See also Otsuki v. Commissioner of Internal Revenue, 53 T.C. 96 (1969) (dicta).
In oral argument before this court, Plunkett conceded that perhaps there may be convictions based on pleas of guilty that should operate as estoppels. He stoutly contended, though, that his conviction requires different treatment. He urges us “to look behind [his] conviction” and to conclude that “where the circumstances of the plea, such as coercion induced by his wife’s indictment and failure by the trial court to inquire as to whether, in fact, he evaded taxes, indicate that the plea might have been involuntary, the government should not be allowed to use that plea to collaterally es-top the appellant in a civil case.” Cf. Worcester v. Commissioner of Internal Revenue, 370 F.2d 713 (1st Cir. 1966).
The judge presiding at the criminal proceeding informed Plunkett of the offenses charged against him in the indictment and of the consequences of his pleading guilty. Plunkett then acknowledged that he was fully aware of the charges against him and of the consequences of his plea. When the court inquired, “[Have] there been any representations of any kind made to you as to what disposition of your case would be, in view of your plea of guilty here, Mr. Plunkett?,” he answered, “No, your Hon- or.” This colloquy does not substantiate the appellant’s claim that his guilty plea was coerced as a matter of law.
We concur in the opinion of the court below that
“[t]he stated understanding of counsel, that the government would move to dismiss charges against Mrs. Plunk-ett if petitioner would plead guilty to the charges against him, does not vitiate petitioner’s otherwise voluntary plea of guilty where the agreement was fully performed in conformity with the petitioner’s expectations. Petitioner did not misunderstand the terms or the immediate consequences of the agreement and his plea of guilty. Hence, the existence of the agreement does not affect the volun-tariness of his plea.” 29 CCH Tax Ct.Mem. at 1247.
We find ample support for this holding in United States ex rel. Cunningham v. Follette, 397 F.2d 143 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 699, 21 L.Ed.2d 699 (1969); Cortez v. United States, 337 F.2d 699 (9th Cir. 1964), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965); and Kent v. United States, 272 F.2d 795 (1st Cir. 1959). See also United States v. Carlino, 400 F.2d 56 (2d Cir. 1968), cert. denied, 394 U.S. 1013, 89 S.Ct. 1630, 23 L.Ed.2d 39 (1969).
Plunkett also complains that the judge who accepted his guilty plea was not informed of any evidentiary foundation to support the criminal charge. Consequently, the provision of Rule 11 of the Federal Rules of Criminal Procedure that “[t]he court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea” was allegedly violated.
Plunkett relies heavily on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), where the Supreme Court admonished federal district courts to adhere rigorously to Rule 11. It held that if a district court does not comply fully with the rule, the defendant’s guilty plea must be set aside and his case remanded for another hearing at which he may plead anew. The Court carefully noted that its holding was not based upon constitutional grounds. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), the Court decided that McCarthy should be applied only to guilty pleas accepted after the date of that decision, April 2, 1969.
The alleged defect in the proceedings against Plunkett was not of constitutional dimensions. The petitioner took no appeal directly attacking his conviction or sentence, and he has paid the fine imposed upon him. In light of these circumstances and the restrictions placed on McCarthy by Halliday, we can see no justification for sustaining Plunkett’s collateral attack on the conviction and for voiding the consequences of that conviction in the present case.
In sum, we agree with the Tax Court below that “petitioner’s conviction for tax evasion in the years 1960, 1961, 1962 and 1963, pursuant to a plea of guilty, collaterally estops the petitioner from denying fraud for those years.” 29 CCH Tax Ct.Mem. at 1247.
We conclude that the decision of the Tax Court (as supplemented herein as to the point not reached by that court) should be and is
Affirmed.
. A petition filed by the appellant’s wife, Dorothy Plunkett, for a redetermination of deficiencies and additions to tax was also consolidated for the trial. The results of that redetermination are not involved in the appeal before us.
. Subsection (b) of 26 U.S.C. § 6653, “Failure to pay tax,” provides in part:
“(b) Fraud.
If any part of any underpayment (as defined in subsection (c)) of tax required to be shown on a return is due to fraud, there shall be added to the tax an amount equal to 50 percent of the underpayment. In the case of income taxes . . . , this amount shall be in lieu of any amount determined under subsection (a) . . . . ”
. Judge Quealy’s memorandum findings of fact and opinion of Sept. 29, 1970, are unofficially reported at 29 CCH Tax Ct. Mem. 1237 [CCH Dec. 30,349 (M)].
. The original and amended returns for each of the years 1957 through 1963 reported taxable income and net tax due (including self-employment tax) as follows:
According to the statutory notice for 1957-1959, Plunkett’s taxable income for 1957 was $26,792.88, and his income tax due was $10,862.47.
. For the years 1957, 1958 and 1959, Plunkett understated his business expenses by a total of $326,294.78.
. The record shows that the sizable understatements of income resulted from taxpayer’s total failure to report his dividend income as well as from his understating the receipts and profits of his catering business. From 1957 through 1959, Plunkett received $37,203.60 in cash dividends which were credited to his margin account and of which he was notified by his stockbrokers. Although the Tax Court decided that it did not need to consider whether petitioner’s omission of this dividend income was due to fraud with intent to evade taxes, the Commissioner argued in his appellate brief that the omission of such income was further evidence of Plunkett’s fraudulent intent, citing Irolla v. United States, 390 F.2d 951, 954, 82 Ct.Cl. 775 (1968), and Lusk v. Commissioner of Internal Revenue, 250 F.2d 591, 594-595 (7th Cir. 1957), cert. denied, 357 U.S. 932, 78 S.Ct. 1376, 2 L.Ed.2d 1375 (1958).
. In its investigation of Plunkett’s returns for the years 1957 through 1959, the Internal Revenue Service had determined that Plunkett had incurred capital losses that were not reflected in the returns. It advised him of this in the notice of deficiency dated July 11, 1968.
. The Commissioner did in reality carry forward the 1957 capital losses in arriving at the figure to which the 50 percent penalty under 26 U.S.C. § 6653(b) would be applicable. Thus, the amended return for 1958 showed income tax of $19,512.43, which was paid. In effect, this figure, however, was reduced by (a) the amount paid in the original return and (b) the amount of the 1957 carryover applicable to 1958. The penalty was based on the remaining balance of $13,117.80 and not on the tax actually paid. The same procedure was followed for 1959.
It is also to be noted that while the Tax Court referred to “recomputation of taxes and penalties” for 1958 and 1959, no deficiency of tax was assessed for those years ; the recomputation was only for the purpose of determining the correct income tax liability to which the penalty would be applicable. The determination here was not whether the taxpayer owed more or less tax for 1958 and 1959 but involved the amount of the penalty for those years.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_respond1_1_2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
M. W. LOVELESS, dba Loveless Manufacturing Company, a sole proprietorship, Appellant, v. UNIVERSAL CARLOADING & DISTRIBUTING COMPANY, Inc., a corporation, Appellee.
No. 5075.
United States Court of Appeals Tenth Circuit.
July 29, 1955.
John M. Wheeler, Tulsa, Okl. (Wheeler & Wheeler, John Wheeler, Jr. and Robert L. Wheeler, Tulsa, Okl., were with him on the brief), for appellant.
William J. Treadgill, Tulsa, Okl. (Joseph N. Shidler, Tulsa, Okl., was with him on the brief), for appellee.
Before BRATTON and MURRAH, Circuit Judges, and WALLACE, District Judge.
MURRAH, Circuit Judge.
M. W. Loveless, dba Loveless Manufacturing Company, sued Universal Car-loading & Distributing Company, Inc. as the- terminating carrier, for damages to machinery shipped under a bill of lading in interstate commerce. The case was removed from the state court to the federal court on requisite diversity of citizenship and amount in controversy and as one arising under the laws of the United States.
The undisputed facts are that Loveless orally notified Universal’s local manager, Gillam, on May 5, 1952, that he would not accept delivery of the damaged goods. One of Universal’s ware-housemen then inspected the machinery, noting upon the consignment memo the extent of apparent damage and signing his name thereto. After extensive negotiations between Loveless and Gillam, Loveless agreed to accept the machinery and install it, with the understanding that a formal claim for ultimately ascertained damages could be filed at any time within two years. And on the same date Gillam wrote Loveless enclosing the consignment memo, stating:
“You will note this freight bill carries notation as to damage noted on arrival.
“Inasmuch as this does not nor is intended to cover probable damage that might exist due to apparent rough handling on the part of the carriers, we have notified both the Prisco and the New York Central that the shipment had shifted approximately five feet and that the lags holding the machine to the skids had been pulled away from the machine, indicating that the car had been terrifically humped somewhere along the line.
“This will protect you in the event claim will be filed, for a period of up to two years. As you explained it will be possible to determine the damage, if any, long before that time, but just to make sure, we have notified the carriers that claim will be filed, undetermined amount at some future date * * * ”
The machine did not function properly from the time of installation, but Loveless did not present a formal claim for the damages until December, 1953, 19 months after delivery. Universal denied the claim solely on the ground that not having been filed within 9 months of the delivery date, it was barred by Sec. 2(b) of the bill of lading, which provides in presently material part that:
“As a condition precedent to recovery, claims must be filed in writ-' ing with the * * * carrier * * * within nine months after delivery of the property * * * ” and “ * * * Where claims are not filed * * * in accordance with the foregoing provisions, no carrier hereunder shall be liable, and such claims will not be paid.”
The decisive question is whether the writings between the parties can be said to be a claim “in writing” within the meaning of Sec. 2(b) as judicially construed and applied.
Loveless contends that the notation by Appellee’s warehouseman on the consignment memo together with the letter from Appellee’s local manager to him, constitute a substantial compliance with the notice requirements of Sec. 2(b) of the bill of lading; and that in any event actual knowledge of the damages by Universal served as timely notice to initiate the necessary investigation by the carrier and thus excused the filing of a claim. Loveless also pleads estop-pel to assert non-compliance with Sec. 2(b) having acted to his prejudice upon representations of the local manager that he had two years within which to file a claim.
While the trial court was impressed with the equities of Loveless’ contentions, it was nevertheless constrained to deny the claim on the grounds that neither the notation on the consignment memo nor the letter written by. Gillam, separately or together, constituted a sufficient claim “in writing” as required by Sec. 2(b) of the bill of lading; and that the facts did not justify the imposition of equitable estoppel.
The Carmack Amendment to the Interstate Commerce Act, Title 49 U.S.C. A. § 20(11), specifically requires the carrier to issue a bill of lading for property received for transportation in interstate commerce. And it also forbids the carrier from contracting for the filing of claims within a shorter period than nine months. While the statute does not specifically provide that notice of claim shall be in writing, or for that matter in any other particular form, Sec. 2(b) has historically been incorporated in the uniform bill of lading as a safeguard against tariff abuses and discriminations. The requirement in 2(b) that the notice of claim shall be “in writing” has come to be an integral part of the uniform published tariffs and regulations which the carrier may not waive or be estopped to assert. Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190, 36 S.Ct. 541, 60 L.Ed. 948; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209, 21 S.Ct. 453, 75 L.Ed. 983; Insurance Co. of North America v. Newtowne Mfg. Co., 1 Cir., 187 F.2d 675; Burns v. Chicago, M., St. P. & P. R. Co., 8 Cir., 192 F.2d 472; Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., 6 Cir., 188 F.2d 343.
To satisfy the requirements of Sec. 2(b) the writing need not be in any particular form. It is sufficient if it apprises the carrier that damages have occurred for which reparations are expected, so that the carrier may make a prompt investigation consistent with the “practical exigencies of the situation.” Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; Thompson v. James G. McCarrick Co., 5 Cir., 205 F.2d 897; Insurance Co. of North America v. Newtowne Mfg. Co., supra; Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., D.C., 65 F.Supp. 293. Thus the practical construction of Sec. 2(b) has been satisfied by an exchange of telegrams between the shipper and the carrier the last of which claimed damages for the total loss, Georgia, Fla. & Ala. Ry. Co. v. Blish, supra; by a timely informal letter from the shipper’s agent to the carrier stating that a claim “will be filed against you” on a specified shipment, Minot Beverage Co. v. Minneapolis & St. Louis Ry. Co., supra; and by writings entitled “statements of protest” and “placement notices" filed with the carrier's agent stating damages, identifying the shipment, and containing the notation “this is consignee’s claim”, Thompson v. James G. McCarrick Co., supra.
Formal written notice was deemed unnecessary in Hopper Paper Co. v. Baltimore & O. R. Co., 7 Cir., 178 F.2d 179, 182, where the carrier had actual knowledge of the damage and had notified the shipper thereof. “In such a situation a formal notice by plaintiff to the defendant could not have accomplished anything more. * * * ” and “ * * * the carrier may not use the provisions of the bill of lading to shield itself from the liability imposed upon it by the statute and the common law for its negligent destruction of the shipper’s property. To hold otherwise would not be construing the bill of lading ‘in a practical way.’ ” As against the contention that dispensation with the requirements of the formal written notice would open the door to widespread discrimination, hence frustration of the purpose of the Interstate Commerce Act, the court took the view that actual knowledge in lieu of written notice was neither discriminatory nor a preference in favor of one particular shipper at the expense of another but rather a mode of proof “applicable alike to all railroads and in favor of all shippers.”
While the Hopper case was deemed “perhaps out of line with * * * other cases” in Insurance Co. of North America v. Newtowne Mfg. Co., supra [187 F.2d 681], the court was at pains to point out that in the Hopper case the carrier at least “knew that the loss had occurred during the transportation on its line and had so advised the shipper by telegram.” Whereas in the Newtowne case the carrier had no record of having accepted any shipment, had no knowledge of the loss, and denied responsibility for it. Notice or knowledge of the loss was in issue. In these circumstances the court refused to open the door to possible abuses by admitting oral proof of actual notice or knowledge.
The Hopper case was again distinguished in Delphi Frosted Foods Corp. v. Illinois Cent. R. Co., supra, where the shipper’s customers who had contracted to purchase portions of the shipment gave notice of the damage to the delivering carrier. The case went off on the theory that the person damaged, not having filed the claim, the notice given did not substantially comply with the requirements of the bill of lading.
The Hopper case was also distinguished in the light of its “unusual circumstances” in Northern Pac. Ry. Co. v. Mackie, 9 Cir., 195 F.2d 641, where the carrier’s written report noted the damages and that the consignee would call for final inspection, but specifically denied that it was an acknowledgment of liability. And in the language of Sec. 2(b) the report stated that a claim must be filed in writing with the carrier within nine months after the delivery of the property. Neither the consignee nor the shipper called for final inspection and no formal claim was submitted within nine months of the delivery. The trial court rejected the carrier’s plea of untimeliness, but the case was reversed on the grounds that to disregard the condition precedent to recovery incorporated in the bill of lading would “under the circumstances shown, open the door to evasions of the spirit and purpose of the Act * * * ” See also Louda v. Prague Assurance-National Corp., 1952, 347 Ill.App. 211, 106 N.E.2d 757 and Cf. Public Service Electric & Gas Co. v. Reading Co., 1951, 13 N.J.Super. 383, 80 A.2d 473.
Loveless leans heavily upon the holding and philosophy of the Hopper case, as indeed he may, for we think his facts outweigh the considerations which prompted the court’s decision in the Hopper case. In both cases the carrier acknowledged the damages and the cause thereof. In the Hopper case, however, the extent of the damages was immediately known and nothing prevented the immediate filing of a formal claim for the complete loss. In our case the extent of the damages was not at once ascertainable, the parties agreeing that when they were the shipper would file a claim “at some future date.” Universal so notified the originating and intermediate carriers. After the damages were ascertained, a formal written claim for the amount thereof was filed, and the carrier does not now contend that it was in any manner prejudiced by the failure to receive the formal claim within the nine-month period.
In the Hopper case actual knowledge without more constituted the written claim. Here, however, we have not only a notation of the fact of damages written upon the face of the freight bill, but more important, we have an acknowledgment in writing by the carrier that damages were sustained by carelessness in transit, and that a formal claim would be filed at some future date when the damages were ascertained. Such writing is nonetheless a claim “in writing” within the purposes of Sec. 2(b) simply because it takes the form of an acknowledgment of the damages and the cause thereof in the hand of him who is to be held liable when the extent thereof is determined. Certainly it is no perversion of public policy to denominate the carrier’s acknowledgment of damages and liability a claim “in writing” to be formalized when the extent of damages is determinable. To so construe the writing leaves no doors open for abuses and discriminations which the stipulation in Sec. 2(b) was intended to prevent. And we therefore hold the written acknowledgment of damages to be a claim in writing within the meaning and purposes of Sec. 2(b) of the bill of lading. The judgment is accordingly reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
In re AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS, ON MAY 25, 1979. Appeal of AMERICAN AIRLINES, INC., and In re AIR CRASH DISASTER NEAR CHICAGO, ILLINOIS, ON MAY 25, 1979. Appeal of McDONNELL DOUGLAS CORPORATION.
Nos. 80-1975, 80-1976.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 8, 1980.
Decided Feb. 17, 1981.
Thomas D. Allen, Robert E. Haley, Ruth E. Van Demark, Kathy P. Saxton, Wild-man, Harrold, Allen & Dixon, Chicago, Ill., for American Airlines, Inc.,
Norman J. Barry, Christopher G. Walsh, Jr., Rothschild, Barry & Myers, Chicago, Ill., for McDonnell Douglas,
James C. Kellogg, Dennis J. Kellogg, Chicago, Ill., for plaintiff-appellee.
John J. Kennedy, Kevin M. Forde, Chicago, Ill., for plaintiffs.
George F. Archer, Chicago, Ill., for Plesa plaintiffs.
Fred A. York, Mount Clemons, Mich., James F. Graves, East Lansing, Mich., Denis R. Leduc, Mount Clemons, Mich., for Michigan plaintiffs.
Before SPRECHER and WOOD, Circuit Judges, and BROWN, Senior District Judge.
Honorable Wesley E. Brown, Senior District Judge for the District of Kansas, is sitting by designation.
SPRECHER, Circuit Judge.
The questions before us are whether Illinois law allows a court to instruct a jury to award prejudgment interest in an action under the Illinois Wrongful Death Act, Ill. Rev.Stat. ch. 70, §§ 1, 2, and whether the award of $27,500 given here, supposedly representing prejudgment interest, can be interpreted as being part of the “fair and just compensation” for plaintiff’s pecuniary injuries.
I
This action arises out of the crash of a DC-10 jet manufactured by defendant McDonnell-Douglas Corp. (“MDC”) and operated by defendant American Airlines (“American”). The plane, which was scheduled to fly to Los Angeles as American Airlines Flight 191, crashed shortly after takeoff from O’Hare International Airport on May 25, 1979. Plaintiff’s decedent, Craig Valladares, was one of the passengers aboard the plane who died as a result of the crash.
This action was brought by Jewel Valla-dares in her capacity as widow and personal representative of the decedent and as parent and next friend of the decedent’s surviving child, Michelle Valladares. The action originally was filed in the Circuit Court of Cook County, Illinois, but was removed to the United States District Court for the Northern District of Illinois on the basis of diversity of citizenship of the parties. The action later was consolidated for pretrial purposes with other actions arising out of the same crash by order of the Judicial Panel on Multidistrict Litigation. In re Air Crash Disaster Near Chicago, 476 F.Supp. 445 (Jud.Pan.Mult.Lit.1979).
In the course of the pretrial proceeding in MDL No. 391, one of the plaintiffs moved . for a partial summary judgment order requiring the defendants to pay prejudgment interest from the date of the deaths. In_ turn, American moved to dismiss all plaintiffs’ claims for prejudgment interest for failure to state a claim for relief.
The district court issued a memorandum opinion denying both the plaintiff’s motion for summary judgment and American’s motion to dismiss. In re Air Crash Disaster Near Chicago, 480 F.Supp. 1280 (N.D.Ill.1979). The district court concluded that prejudgment interest was recoverable as a matter of law, but that the entry of summary judgment was inappropriate prior to a final determination of the damages to which the plaintiffs were entitled. The court stated, however, that it would “include prejudgment interest as an element of damages in all instructions to juries or in calculating damages in any bench trials.” 480 F.Supp. at 1288.
American and MDC filed motions to vacate the prejudgment interest order. After further briefing of the issue by the parties, the district court issued an order denying the motions to vacate.
On December 19, 1979, plaintiff Jewel Valladares entered a stipulation with American and MDC whereby plaintiff waived any claim for punitive damages in exchange for defendants’ waiver of their right to contest liability for compensatory damages, exclusive of prejudgment interest. Following the completion of pretrial discovery, a three-day trial was held before an eight-person jury. Over the defendants’ objection, the district court instructed the jury that the plaintiff was entitled to prejudgment interest from the date of death to the date of verdict on the entire amount of damages the jury calculated to be the present value of the pecuniary loss Jewel and Michelle Valladares suffered as the result of the death of Craig Valladares.
The court’s instructions required the jury to determine present cash value as of the date of death. Defendants originally had argued that Illinois law requires that present cash value be determined as of the date of trial. Defendants then waived that issue and allowed present cash value to be computed as of the date of death in order “to frame as clearly as we can the issue of prejudgment interest.”
On June 23, 1980, the jury returned the following verdict:
We, the Jury, assess the Plaintiffs’ damages for the death of decedent against the Defendants, American Airlines, Inc. and McDonnell Douglas, Inc. in the sum of $250,000.00.
We, the Jury, assess Prejudgment Interest for the period May 26, 1979 to date in the sum of $27,500.00.
Judgment was entered on the verdict. Defendants paid plaintiff $250,000 in satisfaction of that portion of the judgment awarding $250,000 in compensatory damages. None of the parties have appealed from that portion of the judgment. Defendants MDC and American appeal from the portion of the judgment allowing $27,500 in prejudgment interest.
For the reasons stated below, we agree with defendants that prejudgment interest, as such, is not allowed in Illinois unless provided by statute, and the Illinois Wrongful Death Act does not explicitly allow prejudgment interest. However, we find that, in this particular case, there actually was no prejudgment interest awarded. Rather, the district court merely allowed a proper adjustment to arrive at the “present value” of plaintiff’s loss, which is the correct measure of damages under Illinois law. Therefore, we affirm the entry of judgment on the jury’s verdict.
II
Preliminarily, we find that Illinois law applies. As the district court observed in its opinion on the subject of prejudgment interest, the availability of prejudgment interest must be determined by reference to state law. In re Air Crash Disaster Near Chicago, 480 F.Supp. 1280, 1282 (N.D.Ill.1979). In this case, the only applicable state law is that of Illinois, since the accident occurred in Illinois, and both plaintiff and decedent are and were Illinois domicili-aries.
Because we are bound to follow Illinois law, we are not free to devise a different measure of damages pursuant to our “general equitable powers,” as suggested by the district court. 480 F.Supp. at 1286-88. Plaintiffs have argued convincingly that a uniform federal law would be desirable in air crash cases involving citizens and laws of several states. But as we stated very recently in another facet of this case, In re Chicago Air Crash, 644 F.2d 594, 632 (7th Cir. 1981), achievement of uniform treatment of plaintiffs and defendants through federal law is a task for Congress, not a federal court in a diversity action. Therefore, we decline to hold that a federal rule of damages in wrongful death cases applies.
Plaintiffs also argue that other courts construing wrongful death statutes similar to Illinois’ have concluded that prejudgment interest was an essential part of plaintiff’s compensatory damages. The district court apparently was influenced by the fact that “courts in other jurisdictions faced with substantially the same language in their wrongful death statutes have concluded that prejudgment interest is an essential part of ‘fair and just compensation.’ ” 480 F.Supp. at 1286. We agree with defendants that neither another state’s interpretation of its wrongful death statute, nor a federal court’s interpretation of a federal statute, can be the sole basis of our decision here. We must decide within the bounds of Illinois law. In part IV of this opinion, however, we will use cases from other jurisdictions where useful to illustrate the types of formulas used to compute “present value” and “fair and just compensation” in wrongful death cases.
Ill
In Illinois, the general rule is that prejudgment interest cannot be awarded unless provided by statute or agreement of the parties. Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 167 N.E.2d 236, 240-41 (1960); Geohegan v. Union Elevated R.R. Co., 266 Ill. 482, 107 N.E. 786, 791 (1915). Here, there certainly was no agreement to provide prejudgment interest, so we must examine the statutes involved which possibly could justify prejudgment interest. Defendants argue that neither the Illinois interest statute, Ill.Rev.Stat. ch. 74, § 2, nor the Illinois Wrongful Death Act, Ill.Rev. Stat. ch. 70, § 2, authorizes prejudgment interest here, and that, therefore, the district court erred in allowing the jury to add the $27,500 prejudgment interest award to the $250,000 damage award.
A
First, Illinois has a prejudgment interest statute that allows prejudgment interest on bonds, bills, promissory notes or other written instruments; on money due on liquidated settlements of accounts; on money wrongfully taken; and on money withheld by “unreasonable and vexatious delay” of payment. Ill.Rev.Stat. ch. 74, § 2. The district court indicated that plaintiffs here might become entitled to prejudgment interest under the “unreasonable and vexatious delay” provision. 480 F.Supp. at 1285. But the district court made no finding of unreasonable and vexatious delay, nor did the district court’s instructions to the jury require such a finding in order to assess prejudgment interest.
In fact, it is clear that the prejudgment interest statute cited above was not the basis of the decision to allow prejudgment interest. The jury was not instructed to apply the statutory rate for prejudgment interest. Rather, the decision to allow prejudgment interest and the relevant jury instructions were based on the Illinois Wrongful Death Act, Ill.Rev.Stat. ch. 70, § 2, which provides for “fair and just compensation with reference to the pecuniary injuries resulting from such death.... ” Indeed, at oral argument plaintiffs specifically disavowed any reliance on the interest statute to support the award. Thus, the central issue here is whether the Illinois Wrongful Death Act allows an award of prejudgment interest, and, specifically, if the award here is supported by the Act.
B
The Illinois Wrongful Death Act, Ill.Rev. Stat. ch. 70, § 2, provides in relevant part:
[T]he jury may give such damages as they shall deem a fair and just compensation with reference to the pecuniary injuries resulting from such death, to the surviving spouse and next of kin of such deceased person.
There is no specific statutory provision detailing how the pecuniary injuries to the surviving spouse and next of kin are to be calculated. Defendants argue that in light of the Illinois presumption against prejudgment interest,. unless specifically provided by statute, prejudgment interest cannot be treated as an essential element of “fair and just compensation.”
Defendants cite only one case where an Illinois court has addressed the issue of prejudgment interest in a wrongful death case, Klepser v. Standard Service Refuse Disposal Co., No. 75 L 23749 (Circuit Court of Cook County May 8, 1980). In Klepser, the presumption of no prejudgment interest in the absence of a statute was applied in a wrongful death case. The Circuit Court of Cook County stated:
There is nothing in the Wrongful Death Statute that authorizes judicial imposition of prejudgment interest.
The statute is silent on the subject. When no claim of bad faith is made, statutory silence on the question of interest is held in this state to “disclose a legislative intent to deny it.” Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 423 [167 N.E.2d 236] (1960); People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975). Also see Russell v. Klein, 46 Ill.App.3d 660 [5 Ill.Dec. 65, 361 N.E.2d 65] (1st Dist. 1977).
This is not a case where interest has been running on a liquidated sum rightfully belonging to the plaintiff. See Morton Grove Park District v. American National Bank, 78 Ill.2d 353 [35 Ill.Dec. 767, 399 N.E.2d 1295] (1980).
Id., slip op. at 2. The court concluded that “[i]f prejudgment interest is to be awarded under circumstances such as these, the legislative branch must speak on the subject. It would be neither appropriate nor legally supportable for me to create a new element of damages in this case.” Id., slip op. at 3.
Because of several important distinctions between Klepser and the case at bar, we are unwilling to view Klepser as a definitive statement of Illinois law on prejudgment interest in wrongful death cases. First, in Klepser, the decedent lived for several days after the accident and the jury awarded damages for the decedent’s pain and suffering during this period. The jury verdict did not separate damages for the decedent’s pain and suffering from the compensation for pecuniary loss to plaintiff. Therefore, it was uncertain what the pecuniary losses were for the purpose of applying interest. Second, the claim for prejudgment interest was raised for the first time. at the post-trial stage. While the judge assumed, for purposes of that opinion, that the issue could be raised without prior pleading or contention, we cannot be sure that the result would have been the same if the issue had been raised in time to instruct the jury appropriately. Finally, we do not have the necessary information, such as jury instructions and a record of trial testimony, to determine how the $500,000 jury verdict was calculated. As discussed in part IY of this opinion, the method of damage calculation determines the appropriateness of the adjustment that has been referred to here as prejudgment interest.
Defendants have cited no cases other than Klepser that squarely hold that prejudgment interest is unavailable as an element of compensation in wrongful death actions. Rather, defendants rely on the rule, discussed above, that silence on the question of interest in the Illinois Wrongful Death Act discloses a legislative intent to deny it.
Plaintiffs’ construction of the Wrongful Death Act, like defendants’, presents no cases directly on point. Plaintiffs argue that the Wrongful Death Act has been broadly construed by Illinois courts to achieve just results, and that an Illinois court would do so here. But plaintiffs’ argument is based on cases which were not brought under the Wrongful Death Act. Illinois courts have been liberal in expanding the common law right to recover pecuniary losses not explicitly recoverable under the Wrongful Death Act. See Graul v. Adrian, 32 Ill.2d 345, 205 N.E.2d 444 (1965); Saunders v. Schultz, 20 Ill.2d 301, 170 N.E.2d 163 (1960) (funeral expenses). But damages under the Wrongful Death Act itself have been strictly limited to pecuniary, as opposed to punitive, damages. Consequently, we are not free to award damages that cannot be characterized as pecuniary. See In re Chicago Air Crash, 644 F.2d 594, 605-606 (7th Cir. 1981).
As discussed in Part II of this opinion, our holding here must be based on Illinois law. Despite plaintiffs’ exhaustive argument, we do not find that an Illinois court would award prejudgment interest as a separate element of damages in a wrongful death case. But, if the so-called “prejudgment interest” awarded here was not truly prejudgment interest, but was actually an element of “fair and just compensation” specifically allowed under the Wrongful Death Act, then the award here is consistent with Illinois law. Thus, before reaching any conclusion under the Wrongful Death Act, we must examine the precise nature of the damages in issue in this case and in cases which follow the general rule against prejudgment interest.
C
In cases reciting the rule against prejudgment interest, the measurement of compensatory damages does not involve a “present value” calculation. Therefore, the compensatory damages could not have included the type of interest awarded here. For example, in North Shore Marine, Inc. v. Engel, 81 Ill.App.3d 530, 36 Ill.Dec. 548, 401 N.E.2d 269 (1980), an action for wrongful conversion of a boat, the parties conceded that the proper measure of damages was “fair market value of the goods at the time of the conversion.” 36 Ill.Dec. at 552, 401 N.E.2d at 273. The court held that an award which exceeded that amount could not be supported by calling the excess prejudgment interest. This case implies only that if the correct measure of damages in a wrongful death case were present value at date of death rather than trial, any amount more than present value at date of death would have to be considered interest, rather than compensation, and therefore should not be allowed.
In addition, we find that the Illinois rule against prejudgment interest is not an absolute bar to adjustment of damages awards where appropriate. The Illinois Supreme Court recently held that despite the absence of a specific interest provision in the Eminent Domain Act, when a condemnation award is deposited with the county treasurer during the pendency of the condemnee’s appeal, and the county treasurer deposits the award in an interest bearing account, the condemnee must receive the full amount of money earned on the sum deposited with the county treasurer. Morton Grove Park District v. American National Bank, 78 Ill.2d 353, 399 N.E.2d 1295 (1980). The court distinguished Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 167 N.E.2d 236 (1960), and similar cases stating the rule against prejudgment interest as “cases in which the county had a legitimate claim to money that had been paid by the claimants, who were not entitled to a refund of the same until an adjudication of their claims had been made and a refund order entered.” 399 N.E.2d at 1300. A condemnation award is the property of the condemnee even while deposited with the county treasurer pending appeal, so the county treasurer’s keeping the interest earned constituted a taking of private property for public use. Id. Morton Grove is relevant to the case at bar because it demonstrates that the Illinois Supreme Court is willing to interpret a damage statute in order to provide fair and just compensation, even if a portion of that compensation can be labeled as “prejudgment interest,” and the statute does not specifically provide for interest.
In summary, we have concluded that Illinois law generally does not allow prejudgment interest unless provided by statute. The interest statute does not apply to .this case because it, as a general rule, provides for interest only on liquidated amounts. The Wrongful Death Act does not explicitly provide for prejudgment interest. But only one unreported and distinguishable lower state court case holds that prejudgment interest is not allowed in a wrongful death action. Other cases where prejudgment interest was not allowed give no guidance as to whether an adjustment for past losses may be included in the compensatory portion of a wrongful death award.
IV
Despite the foregoing discussion rejecting prejudgment interest as a separate element of damages, the measure of compensatory damages in wrongful death cases unquestionably does involve some form of interest in the determination of “present value.” Prejudgment interest per se is not allowable as a separate element of a wrongful death damages award, but use of interest is implicit in the calculation of the present value of plaintiff’s pecuniary loss as of the date of trial.
The question here, then, is how plaintiff’s damages ought to be calculated. If the calculation is properly computed, it is possible to resolve both plaintiff’s and defendants’ objections. Plaintiff argues that she would be harmed by delay between the accident and trial if prejudgment interest is not allowed. Defendants claim that they would be punished for asserting their right to a trial on damages if prejudgment interest is allowed. But neither plaintiffs nor defendants will be unjustly enriched if the correct formula is used to calculate wrongful death damages.
The measure of damages in a wrongful death action is set out in the Illinois Pattern Jury Instructions 2d (“IPI 2d”). The relevant IPI 2d instructions given by the court here were essentially 31.04, “Measure of Damages — Wrongful Death — Adult—Lineal Next of Kin Surviving”; 31.07, “Measure of Damages — Wrongful Death — Factors Excluded”; 34.03, “Death Case — Discount of Future Damages”; and 34.05, “Mortality Tables as Evidence of Damages — Death Case.”
Instruction 31.04 of the IPI 2d provides in part:
If you decide for the plaintiff on the question of liability you must then fix the amount of money which will reasonably and fairly compensate the [widow and lineal next of kin, e. g., daughter] of the decedent, for the pecuniary loss proved by the evidence to have resulted to [him] [her] [them] from the death of the decedent.
Instruction 34.03 tells the jury how to calculate the pecuniary loss so as to fairly compensate the plaintiff for the loss recognized in 31.04:
If you find for the plaintiff, then in assessing damages you may consider how long the [widow] [and] [next of kin] would be likely to have received pecuniary benefits from the decedent, considering how long he was likely to have lived and how long [she] [they] are likely to live.
In calculating the amount of these pecuniary benefits you must not simply multiply the life expectancies by the annual benefits. Instead, you must determine their present cash value. “Present cash value" means the sum of money needed now, which, together with what that sum will earn in the future, will equal the amounts of the pecuniary benefits at the times in the future when they would have been received.
(emphasis added) Instruction 34.05 contains the identical definition of “present cash value.”
Calculation of “present value” involves discounting future income to the date of trial. A typical explanation of this discounting is found in Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill.2d 463, 349 N.E.2d 413 (1976), where the Illinois Supreme Court approved the admission of the testimony of an economist, who testified as an expert for plaintiffs on the subject of damages for the deaths of two teenagers. The expert testified that:
we’re not going to wait, as the circumstances clearly reflect, for someone to earn these dollars each year for the next forty years. We are going to try to have to ascertain what those earnings would have been, then discount them, or bring them back to the present and say what they would be worth now, if there was going to be a cash or a lump sum payment. loss, past and future, sustained by them on account of his death.
349 N.E.2d at 415 (emphasis added).
Similarly, in Allendorf v. Elgin, Joliet & Eastern Ry. Co., 8 Ill.2d 164, 133 N.E.2d 288 (1956), cert. denied, 352 U.S. 833, 77 S.Ct. 49, 1 L.Ed.2d 53 (1956), another case dealing with an Illinois wrongful death award, the court cited with approval instructions given by the trial court concerning damages. The instructions included the following:
“The jury is instructed that if you find the.plaintiff is entitled to recover from the defendant in this action, that then the plaintiff is entitled to recover such damages as will justly and adequately compensate her and the surviving dependent children of the deceased for the pecuniary
In determining the amount of damages, if any, to be awarded for loss of future financial contribution to the widow and children, you are instructed that you are to determine the present cash value of such future lost contributions.
The present cash value of the benefits of which the widow and children have been deprived on account of the death of deceased, making adequate allowance for the earning power of money, is the proper measure of recovery.”
133 N.E.2d at 293.
These cases and instructions indicate that present cash value is to be calculated at the date of trial. But in this case, the jury was instructed to calculate present value as of the date of Craig Valladares’ death. The parties agreed to use the date of death, rather than date of trial, to calculate present value because the evidence in the trial gave life expectancy and income estimates based on the date of death. It is not surprising that the defendants readily agreed to the date of death instruction, since it gave them an extra thirteen months of discount on the decedent’s future income stream. This formulation is equivalent to actually subtracting interest from what the total award would have been if future income had been discounted to trial instead of death.
To explain this critical point, we use a simple example, where only future damages are at issue. Assume that a passenger’s life expectancy was only two years at the date of the crash and that this person was expected to contribute $10,000 to his family in each of those two years. Assume also that the trial takes place one year after death and that the interest rate is 10%, compounded annually. Furthermore, assume that the family would receive the decedent’s contribution at the end of the year in which he earned it.
If the award is discounted to the date of death, the decedent’s family should receive an amount which, had they received it on the date of death, would yield (assuming interest was earned on it from the date of death) the two yearly $10,000 contributions which decedent would have made. This amount, using a discount rate of 10%, would be $17,356. If the award is discounted to the date of the trial, the family will receive $19,091. Ten thousand dollars of that award is for the year of income that would have been received at that time (one year after death) had decedent lived. The remaining $9,091 would earn one year’s interest and yield the projected contribution of $10,000 for the second year after decedent’s death.
The way the award was calculated in the Valladares case was as if $17,356, present value at the date of death, was given to the family in our example at the date of trial. Obviously, if the family withdraws $10,000 at the trial date (for the previous year’s contribution), they will not have another $10,000 at the end of the next year if the $7,356 balance is invested at 10%. Thus, they are not adequately compensated for their loss.
The question then becomes how to adjust an award that represents “present value at date of death” when it is actually received at the date of judgment. The answer in our example is to add one year of “interest” to “present value at death” in order to reverse the extra year of discounting (assuming, as we do, that the “interest rate” and “discount rate” are the same). Adding one year of interest at 10% to $17,356 gives $19,092 — exactly the amount of the present value at the date of trial. (The $1 difference is caused by rounding.)
Of course, in this example we have made some simplifying assumptions, such as a 10% interest rate compounded annually and a 10% discount rate. But regardless of the numbers used, the end result is that in order to adequately compensate plaintiffs, the decedent’s projected stream of future earnings must be either (1) discounted to trial or (2) discounted to death, with an adjustment to bring the “death value” to “present value.”
By assuming that the family would receive decedent’s contribution at the end of each year he would have lived and by assuming trial one year after death, we have demonstrated the effect of varying the date of the “present value” calculation. We eliminated the issue of prejudgment interest on past losses by assuming that decedent would not have made any contributions until the time of trial, one year after his death. But in most cases, a decedent’s contribution to his family for the first year would have been a flow of income during the period from the crash date to the trial. Assuming such a flow of income presents the question of whether interest is due on past losses — on the amounts of decedent’s probable contributions that were not recovered between death and trial. We find that the reasons for augmenting these “past losses” are exactly the same as those for discounting “future losses.” As stated in Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 526 (1962), an action under the Death on the High Seas Act (“DOHSA”), 46 U.S.C. §§ 761-768, “[i]f it be only fair to discount sums paid now on account of future loss which would not be due until some years in the future, . .., it is, by the same token, inequitable not to make appropriate compensation for delay in discharging the obligation.” 295 F.2d at 594. In Moore-McCormack the future damages had been discounted to the trial date. Consequently, the allowance of “interest” was just a symmetrical treatment of past and future losses in order to calculate present value.
The court in Moore-McCormack explained why this type of “prejudgment interest” usually is not explicitly provided for in the jury instructions for calculation of the present value of plaintiff’s loss. The reason for this silence is that juries make allowance for delay in compensation awards:
In any event, no one would be so naive as to suppose that juries do not throw into the scales the years that a plaintiff may have had to wait before his case can be heard by a jury. The practical reason why the courts in jury cases have refused to grant moratory interest may therefore be found in the judicial recognition that a jury usually makes some allowance for loss caused by delay. Likewise judges doubtless make some allowance for loss because of the law’s delay. It would seem to us to be better to recognize this and have the computation made on a basis which is known and understood.
495 F.2d at 594 (footnote omitted).
In this case, if the jury had been instructed only to discount future losses, it might have made allowance for delay in receiving past losses. But, the jury was instructed to discount plaintiff's entire loss to date of death. We must assume that the jury followed the court’s instruction. Scully v. Otis Elevator Co., 2 Ill.App.3d 185, 275 N.E.2d 905, 913 (1971); Danile v. Oak Park Arms Hotel, Inc., 55 Ill.App.2d 2, 8, 203 N.E.2d 706, 709 (1965). Thus, we must assume that the unadjusted jury award of $250,000 contained no allowance for delay.
The formula used in this case is the same as the formula used in National Airlines v. Stiles, 268 F.2d 400 (5th Cir. 1959), cert. denied, 361 U.S. 885, 80 S.Ct. 157, 4 L.Ed.2d 121 (1959), another DOHSA case. In Stiles, as in this case, the unadjusted award was based on decedent’s life and earnings expectancy at his death and was discounted to death, so there was no chance to make an implicit adjustment for delay. The court stated:
It is quite clear that with as many uncertain factors as there are for consideration by the court in arriving at the fair value of plaintiff’s pecuniary loss the length of time to the date of judgment may sometimes be taken into consideration by the court in determining the amount of its award. In such a case the court should not, of course, allow interest on such amount. Here, however, the court made plain its finding that the award was a fair measure of Mrs. Stiles’s pecuniary loss as of the date of her husband’s death, and interest on the amount was awarded to make her recovery complete.
268 F.2d at 405 (emphasis added).
The Stiles court explicitly found the “interest” given to be part of plaintiff’s “fair and just compensation,” and not an addition to that amount:
[T]he language of the statute here for construction clearly allows interest from the date of death as an element necessary to provide “fair and just compensation for the pecuniary loss sustained,” where the trial court clearly showed that no such increment was included in the principal award.
268 F.2d at 406. In this case, the “present value at death” calculation of $250,000 can be considered the unadjusted, “principal” award, and the total of $277,500 can be considered the adjusted award, compensating plaintiff in the amount of the present value of her pecuniary losses, both past and future, as contemplated by the Illinois Wrongful Death Act.
We realize that the district court characterized the adjustment award as interest rather than an adjustment of the “present value at death” calculation. But it seems clear from the instructions themselves that full compensation was what was intended. The instructions emphasized the fact that the 39V2 year figure used by the parties was an estimate of Craig Valladares’ life expectancy at the time of his death. The jury was instructed to determine “how much interest should be paid over and above the present value as of the date of his death of the compensation of which Jewel Valla-dares and her daughter were deprived by virtue of his death.” In other words, the $250,000 represents the “present value at death” of plaintiff’s compensation, and the total award of $277,500 represents the “present value at trial.” As we have discussed, this “present value at trial” represents the true compensatory damages figure. The so-called “prejudgment interest” is just an element of the formula for calculation of the compensatory damages.
Here, the “interest” adjustment was made on the entire amount calculated to be the present value of plaintiff’s loss at Craig Valladares’ death. As discussed above, the parties agreed to the use of date of death to conform to the evidence and, supposedly, to frame the issue of prejudgment interest for this court. Neither party appealed the unadjusted award of $250,000. Defendants contend that since plaintiff did not file a conditional cross appeal asking for recalculation of the unadjusted award in the event that the prejudgment interest was struck, we must strike the award of $27,500, since it was mislabeled. But under the present value instructions given by the court, it appears the proper compensatory award found by the jury was the total of $277,500. To strike the award because of a mere technical mislabeling would ignore the actual damage calculation formula used by the court. Such a decision would award plaintiff less than she would have received if the jury had been instructed to calculate the present value of damages as of the trial, which is the correct measure under Illinois law. In other words, the outcome here, after discounting to the date of death and adding prejudgment interest, is substantially the same outcome as if damages had been correctly computed by calculating present value at the date of trial.
V
Finally, the parties claim that this case is a test case on the issue of prejudgment interest for the other cases under the Illinois Wrongful Death Act arising out of this DC-10 crash. But, because the damages here were discounted to death, rather than trial, we emphasize that the instructions by the trial court in this case cannot be the model for future wrongful death actions.
In future actions, the court should instruct the jury to calculate the damages for future losses according to the IPI 2d instructions discussed in part IV. Future losses should be discounted to the date of trial. The jury should also be instructed to calculate the present value of the amounts that plaintiff would have received from decedent between death and trial. Augmenting the amount of income flow lost between death and trial is part of “fair and just compensation” just as discounting the income flow after trial is part of “fair and just compensation,” although neither calculation is mentioned in the Wrongful Death Act. The mechanism of the adjustment to present value is simply common sense and some mathematics. The difficulty comes in supplying appropriate dollar amounts for the lost income flow and an appropriate adjustment factor. This task, of course, is left to the jury, which can be guided by the testimony of experts. But the formula should be clearly spelled out by the court in terms of present value, not prejudgment interest. Once this calculation is done for present value at trial of both past and future losses, plaintiffs’ arguments for prejudgment interest as a separate element of damages disappear.
For the reasons detailed above, the judgment is
AFFIRMED.
. The jury instructions regarding the calculation of damages were, in relevant part, as follows:
In calculating the amount of these pecuniary benefits you must not simply multiply the life expectancy by the annual benefit. In other words, assuming the figure is X dollars and it is 39V2 years, you just cannot multiply 39‘/2 times X and arrive at that as the figure. Instead, you must determine their present cash value.
Present cash value means the sum of the money that is needed at the present time, which together with what that sum will earn in the future, would equal the amount of pecuniary benefits received at the times in the future when they would have been received. In other words, the calculations that you saw here were calculations of what it would have taken on the date of Mr. Valla-dares’ death, not today, but Mr. Valladares’ death, what would have been necessary at that time to provide a level of contribution to Mrs. Valladares and Michelle over a period of years comparable to the $10,000 which the experts were asked to assume, increased as they calculated there would be an increase based on inflation, and interest rates over the life of the 39‘A years that they were talking about.
The figures that you have here were' present value figures. Nobody just multi-' plied X by 39‘/2. They did that and then they did the annuity calculation. They discounted to present value how much would be required now to have to produce an adequate compensation based on the assumptions that were made to Mrs. Valladares and Michelle over the 39‘/2 years that was estimated for Mr. Valladares’ life expectancy.
Now, the determination as to how much he would have contributed each year and for how long, and the present value of that contribution you are going to have to make. You have had experts give you figures with respect thereto, and you have had arguments by counsel as to which figures you should accept. In addition to determining the present value as of the date of Mr. Valla-dares’ death, which was May 25, 1979, we are now June 23, 1980, and the plaintiffs have not had the use of the present value on the date of Mr. Valladares’ death of the money for the last thirteen months. So, they are entitled to be compensated in the amount of interest which what you determine was the present value as of the date of his death would have earned had they been paid that on the date he died, up to the present time, which is thirteen months.
You will have to determine first the present valué and will have to decide what the rate of interest that that money would have earned over the past thirteen months is, and then you are going to make a separate determination as to how much interest should be paid over and above the present value as of the date of his death of the compensation of which Mrs. Valladares and her daughter were deprived by virtue of his death.
That is reflected in the verdict form which you will have, because the verdict form has two separate findings. One says, “We, the jury, find for the plaintiffs and against the Defendant American Airlines, Inc., McDonnell Douglas, Inc. in the amount of dollars, blank.” That is the present cash value figure you are going to have to determine. The second one says, “We, the jury, assess prejudgment interest for the period, May 26, 1979 to date, in the sum of dollars, blank.” That is the second calculation which you are going to have to make by deciding what the rate of interest is for 13 months to be applied to the present value calculation that you make as of the date of his death, simply to compensate them for the loss of the use of that money for the last 13 months which they have not had and the defendants have had the use of during that period of time.
Finally, when you get all through having determined the real value you have to make an additional calculation as to how much interest the plaintiffs lost by virtue of the fact they were not compensated on the day he died, and their not being compensated until some later date, and that figure you will have to decide what the rate of interest would have been for the past thirteen months and how much the present value was, and you compute that rate of interest on the present value which you have determined. You write that down as a separate figure on the verdict.
Tr. of June 23, 1980 at 404-406, 410-411 (emphasis added).
. As noted in part IV of this opinion, this stipulation, rather than focusing the issue for our review, completely obscures the issue of prejudgment interest.
. Briefs were submitted by the Plaintiffs’ Committee and other intervenors in support of the district court’s allowance of the $27,500 award. We refer to “plaintiffs” as a group as well as plaintiff Jewel Valladares in this opinion.
. That opinion and thé submissions of the parties in that proceeding regarding prejudgment interest were made a part of the record in this case by request of the defendants with the approval of the district court. References herein to “the district court opinion” mean the opinion at 480 F.Supp. 1280.
. Since this case was brought in Illinois, we look to Illinois law to resolve any conflict of law. Klaxon Co. v. Stentor Elec. Mfg. Co., Inc., 313 U.S. 487, 496, 61 S.Ct. 1020, 1021, 85 L.Ed. 1477 (1941). As noted by the district court:.
Under Illinois conflicts law, the issue of damages in a wrongful death action is governed by the law of the state where the injury occurred unless some other state has a more significant relationship to the parties and the occurrence, in which case the law of the other state applies. Ingersoll v. Klein, 46 Ill.2d 42, 48, 262 N.E.2d 593, 596 (1970); Semmelroth v. American Airlines, 448 F.Supp. 730, 732 (E.D.Ill.1978).
480 F.Supp. at 1282-83. The court correctly concluded that in cases where the administrators or executors of the estates of air crash victims are citizens of Illinois, and the estates are being administered in Illinois, no other state could have a more significant relation to the occurrence or the parties.
. This court applied a federal rule of contribution and indemnity to an air crash case in Kohr v. Allegheny Airlines, Inc., 504 F.2d 400 (7th Cir. 1974), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975). But, this court later refused to extend Kohr. In Bowen v. United States, 570 F.2d 1311, 1316-17 (7th Cir. 1978), we held that state law governed an action arising out of an air crash and brought under the Federal Tort Claims Act. Recent Supreme Court cases also suggest that we are not free to depart from state law in air crash cases. See Miree v. De Kalb County, 433 U.S. 25, 97 S.Ct. 2490, 55 L.Ed.2d 557 (1977); Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 273-74, 93 S.Ct. 493, 506-07, 34 L.Ed.2d 454 (1972).
. Cases cited by plaintiffs include MooreMcCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961), cert. denied, 368 U.S. 989, 82 S.Ct. 606, 7 L.Ed.2d 596 (1962); National Airlines v. Stiles, 268 F.2d 400 (5th Cir. 1959), cert. denied, 361 U.S. 885, 80 S.Ct. 157, 4 L.Ed.2d 121 (1959); Lemrick v. Grinnell Mutual Reinsurance Co., 263 N.W.2d 714 (Iowa 1978); Wetz v. Thorpe, 215 N.W.2d 350 (Iowa 1974); State v. Philips, 470 P.2d 266 (Alaska 1970).
In Moore-McCormack and Stiles, the courts allowed awards for prejudgment interest in death actions under the Death on the High Seas Act, 46 U.S.C. §§ 761-768. These cases illustrate two different approaches to calculating prejudgment interest. In Moore-McCormack, the future losses were discounted to the date of trial, and interest was allowed on past losses, at the same rate as the discount, from the time they accrued until trial. 295 F.2d at 595. In Stiles, the entire award was discounted to the date of death and interest added to the entire amount for the period from date of death to judgment. 268 F.2d at 405-406. Similarly, in Wetz, the award was calculated as of death and interest allowed on the entire amount. 215 N.W.2d at 357-358. The .'Stiles and Wetz formula is the way that interest was calculated in this case.
. The continuing vitality of this rule is indicated by recent cases in the Illinois Appellate Court. See, e. g., North Shore Marine, Inc. v. Engel, 81 Ill.App.3d 530, 36 Ill.Dec. 588, 592-93, 401 N.E.2d 269, 273-74 (1980); Stevenson v. ITT Harper, Inc., 51 Ill.App.3d 568, 9 Ill.Dec. 304, 313-14, 366 N.E.2d 561, 570-71 (1977); Hamilton v. American Gage & Machine Corp., 35 Ill.App.3d 845, 342 N.E.2d 758, 764 (1976); Gonzalez v. Danaher, 30 Ill.App.3d 992, 332 N.E.2d 603, 604 (1975). But these cases are all distinguishable from the case at bar, as discussed in part III(C).
. Ill.Rev.Stat. ch. 74, § 2, provides:
Creditors shall be allowed to receive at the rate of five (5) per centum per annum for all moneys after they become due on any bond, bill, promissory note, or other instrument of writing; on money due on the settlement of account from the day of liquidating accounts between the parties and ascertaining the balance; on money received to the use of another and retained without the owner’s knowledge; and on money withheld by an unreasonable and vexatious delay of payment.
. Several cases cited by plaintiffs as allowing prejudgment interest, despite the absence of a statute providing interest, actually were decided under the interest statute. In addition, those cases involved liquidated amounts. For example, in First Nat’l Bank Co. of Clinton v. Ins. Co. of North America, 606 F.2d 760 (7th Cir. 1979), this court, applying Illinois law, found that in an action on a bankers blanket bond, interest was allowable since the damages suffered by plaintiff were liquidated. We stated the Illinois rule as follows:
[I]f the amount of a claim can be ascertained, or is capable of ascertainment by mere calculation or computation, it is liquidated; if judgment, discretion, or opinion, as distinguished from calculation or computation is required to determine the amount of the claim, it is unliquidated.
600 F.2d at 769-770.
Even if we concede that wrongful death damages are capable of ascertainment at the date of death, that ascertainment cannot be accomplished by “mere calculation or computation.” See, e. g., Dooley v. Darling, 26 Ill.App.3d 342, 324 N.E.2d 684, 696 (1975) (“the award of damages in a wrongful death action is not subject to scientific computation and, consequently, is held to be a matter for jury determination”).
. In other cases cited by defendants where prejudgment interest was not allowed, the statutes fixing compensation similarly did not provide for a “present value” calculation. For example, taxpayers are not entitled to interest on tax refunds in the absence of an interest provision in Illinois tax statutes. Lakefront Realty Corp. v. Lorenz, 19 Ill.2d 415, 167 N.E.2d 236, 240-241 (1960); Newport v. Foxworthy, 71 Ill.App.3d 438, 389 N.E.2d 898, 900-901 (1979). See also Gonzalez v. Danaher, 30 Ill.App.3d 992, 332 N.E.2d 603 (1975) (no interest on money deposited to secure bail bond); People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975) (no interest on refund of fines and costs paid as a result of voided convictions).
In some cases cited by defendants, disallowance of prejudgment interest depended on the nonapplicability of the interest statute, and not upon the calculation of damages under a separate damages statute. Stevenson v. ITT Harper, Inc., 51 Ill.App.3d 568, 366 N.E.2d 561, 570-71 (1977); Russell v. Klein, 46 Ill.App.3d 660, 5 Ill.Dec. 65, 69, 361 N.E.2d 65, 69 (1977); Hamilton v. American Gage & Machine Corp., 35 Ill.App.3d 845, 342 N.E.2d 758, 764-66 (1976). We already have held that the interest statute does not apply here.
. In Locasio v. Rosewell, 50 Ill.App.3d 704, 8 Ill.Dec. 563, 365 N.E.2d 949 (1977), cited by defendants, the Illinois Appellate Court reached the opposite result than that of the Illinois Supreme Court in the later Morton Grove case. Thus, Locasio is no longer good law.
. See note 1, supra, for that portion of the charge dealing with discounting to present value and with prejudgment interest.
. Allendorf was a wrongful death case brought under the Federal Employers’ Liability Act, but the court’s discussion of wrongful death damages does not depend on that fact. Allendorf is cited by Illinois courts as giving the correct measure of damages in Illinois wrongful death actions. See Baird v. Chicago, Burlington & Quincy R.R. Co., 63 Ill.2d 463, 349 N.E.2d 413, 416 (1976).
. See note 1, supra. The italicized portions of the instructions set out there show that the jury was instructed to use the date of death in calculating present value.
. On June 23, 1980, without the jury present, MDC’s counsel made the following statement:
MR. BARRY: Your Honor, on behalf of McDonnell Douglas and Mr. Allen on behalf of American Airlines, we are willing for the purpose of this case to let the evidence stand as it is, to submit an instruction which will instruct the jury on the basis of the evidence; namely, that you are to compute these figures as of the date of death. We will not urge that portion of the damage instruction as error on the instruction, nor will we urge with respect to prejudgment interest any error by the Court with respect to that one issue.
We intend, as this Court knows, to frame as clearly as we can the issue of prejudgment interest.
Now, that has nothing to do with this instruction nor the position we are taking. We are waiving, for the purpose of the appeal in this case, that issue as to what date will be applied with respect to the discounting of future earnings by substituting a date that conforms with the evidence, namely, the date of death.
Tr. of June 23, 1980 at 274-75.
. If $17,356 is received on the date of the crash, after one year at 10% interest the lump sum will be $19,092. The family will then withdraw $10,000 as the first year’s contribution. The remaining $9,092 will earn another year’s interest, and $10,001 will remain at the end. '(The extra $1 is just the effect of rounding off our figures here.)
. The Death on the High Seas Act, 46 U.S.C. §§ 761-768, covers wrongful death resulting from accidents (including air crashes) on the high seas. Like the Illinois Wrongful Death Act, DOHSA does not explicitly provide for prejudgment interest, but calls for “fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought.” 46 U.S.C. § 762.
. The court in Moore-McCormack explained the proper adjustment for past loss (which it refers to as “interest”) in terms of the discount rate:
Since the allowance for loss of future benefits to the dependents of the four deceased men are discounted at 4%, it would seem appropriate for the district judge also to compute interest at a 4% rate on the allowances for pecuniary losses sustained prior to decree. Of course interest on sums past due will not run from the date of death, but from the several dates at which the sums would have accrued.
295 F.2d at 595.
. See note 1, supra.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_respond2_1_2 | C | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
RUSSELL, State Treasurer of Nevada, et al. v. DETRICK, Insurance Commissioner of California, et al.
Circuit Court of Appeals, Ninth Circuit.
December 5, 1927.
No. 5236.
1. Courts <§=493 (3) — Pending suit in state court held not to exclude jurisdiction of federal court of suit by others, not parties to state suit, relating to same subject-matter, but not affecting possession.
Makers of notes and mortgages to corporation brought suit in state court against said corporation and another, to which they had been assigned for cancellation of the securities for fraud. The assignee had deposited the instruments with the state treasurer, as required by law in its business of insurance. The state court appointed receivers for the corporations witii power to exercise control over “Their rights” in the instruments, but leaving possession in the state treasurer until further order. Held, that such suit did not exclude jurisdiction of a federal court to entertain a suit by others, not parties to the state suit, but claiming an interest in the securities, to determine their lights.
2. Courts <§=508(2) — Federal court held without jurisdiction to enjoin further prosecution of pending suit to cancel securities in state court (Jud. Code, § 265 [28 USCA § 379]).
A federal court held prohibited by Judicial Code, § 265 (28 USCA § 379), from enjoining further prosecution of a pending suit in a state court for cancellation of securities.
Appeal from the District Court- of the United States for the District of Nevada; Edward S. Barrington, Judge.
Suit in equity by Charles S." Detrick, as Insurance Commissioner of the State of California, and others, against George B. Russell, as State Treasurer of the State of Nevada, and others.. Defendants appeal from an order granting a preliminary injunction.
Reversed.
This is an appeal from an order of the court below granting a temporary injunction. The effect of the injunction was to. stay proceedings which had been begun in a state court of the state of Nevada. On November 4, 1926, the appellants, Matzdorf and wife, brought a suit in that court against the National Land Valley Guaranty Company, the National' Land Insurance Company, and the Title & Trust Company of Nevada, all corporations of that state, apd also against the state treasurer of the state of Nevada, for the cancellation of a note for $20,000, of date December 19, 1925, and the trust deed securing the same, made by the Matzdórfs in 'favor of the National Land Valley Guaranty Company, and by the latter assigned to the National Land Insurance Company, on the ground that the note and trust deed were procured through fraudulent misrepresentations made by certain . agents of the National. Land' Valley Guaranty Company. 'Upon the commencement of the suit, the state court appointed a receiver. of the property of the two lastripmed corporations. On November 18,1926, the .receiver, under order of said court, took over the custody and control of all the assets in the state of Nevada belonging to said two ebrporations, but 'the : order provided in terms that the authority of the receiver was to “include the exercise and control of .any arid all • rights 'which -said defendants may have under,' by virtue o'f, or relative to the contract, note/'mortgage, or trust deed involved in the,, action. Said .'note, mortgage, or trust deed, however, being subject, until the final determination of the action, to the custody of the state treasurer of the state of Nevada.” On 'January 11, .1927, 19 similar actions were commenced .in-said state court against the same defendants, by others’ of the appellants herein, whose notes and securities given to the National Land Valley Guaranty Company had been assigned to the insurance company.
In' the present suit, which was brought in the eou£t below, the appellees sought .to enjoin each of The appellants, who were plaintiffs ..in .the .said actions in the state court, from taking any steps or proceedings looking tó "the ‘ eariéellatiori ’ of ' said np,tes. ’ or trust deeds, and soúght tó restrain th’é strife treasurer, both as an individual and as an officer of the state of Nevada, from surrendering any of said securities to any of his eodefendants until the further order of the court.
The insurance commissioner of California, with whom joined two policy holders, were the plaintiffs. The complaint alleged that the National Land Insurance Company of Nevada was organized with authority to issue policies on land values and. receive premiums therefor; that it applied to the insurance commissioner of California for a license to issue its policies of insurance in that state, and represented to said commissioner that it had complied with the laws of Nevada by depositing securities with the secretary of state of that state, the same being the securities which are the subject of the present litigation; that, relying on such representation, the insurance commissioner granted such license to do business in and to issue policies in ’the state of California, and in pursuance thereof the said insurance company issued, various policies on land values in California -to the amount of $1,000,-000; and that in conducting said business it incurred in California a debt of $25,000, which is still unpaid. '
The complaint further alleged that the notes and securities issued by the individual appellants herein, Matzdorf and others; while they amounted in the aggregate to $205,000, had an actual value of not more than $115,000, and that the makers of said instruments now threaten to take steps to cancel all said notes and securities, and to require the state treasurer of Nevada to surrender the same for cancellation, although they were all well aware at the time thereof that the application of the insurance company to do business in California was based upon its representation to the insurance commissioner of that state that it had said securities on deposit in the office of the state treasurer of Nevada. The temporary injunction enjoined and restrained all the appellants herein from canceling any of the notes, mortgages, or securities described in the bill, and from taking any steps or proceedings looking to a cancellation of the same, until.the further order of said district court. Subsequently the appellant Russell, as state treasurer of Nevada, was substituted for Malley, who held that office at the commencement of the proceedings.
M. A. Diskin, Atty. Gen., of Nevada, for appellant Russell.
Charlés-Lee Horsey, of-Las Vegas, Nev. and Brown & Belford, and George S. Brown, all1-of - Reno; 'Nev.'j -for -other-appellants,'
U. S. Webb, Atty. Gen. of California, and. John II. Riordan, Asst. Atty. Gen. of California (Lyon, Fleming & Robbins and David R. Rubin, all of Los Angeles, Cal., of counsel), for appellees.
Before GILBERT, RUDKIN, and DIE-. TRICH, Circuit Judges.
GILBERT, Circuit Judge
(after stating the facts as above). The appellants contend that the injunction order is violative of the settled rule that the tribunal ■where jurisdiction first attaches holds it to the exclusion of all other courts until its duty is fully performed and the jurisdiction involved is exhausted, and that, where a court of competent jurisdiction has taken property into its possession through its officers, the property is withdrawn from the jurisdiction of all other ■ courts, and the latter are without power to render any judgment which invades or disturbs the possession of the property while it is in the custody of the court which has seized it. The situation presented to the court below was this: The appellants here had suits pending in the state court, the purpose of which was to cancel notes and securities held by the insurance company, and which presented controversies wholly between the plaintiffs therein, who were the makers of those instruments, and the defendants therein, who were the payees and owners thereof. Subsequently the appellees brought a suit in the court below to assert the rights which they had in those notes and securities and to prevent the cancellation thereof. They had the right to bring an original suit for that purpose, for they were not parties to the suits in the state court, nor were their rights in litigation or represented therein.
It is clear, we think, that the pendency of the suits in the state court to determine the validity of the securities and the rights of the parties in those controversies did not deprive the court below of jurisdiction to entertain a suit against those who were the parties plaintiff in those suits to determine the appellees’ rights in and to the same securities, the latter suit not being one that disturbed the custody of property of which the state court had acquired jurisdiction. It would seem from the record that the securities were not in the actual custody of the state court. They had been deposited with the state treasurer, as required by law, to qualify the holder thereof to issue policies of insurance upon land values. The corporation defendants in the suits in the state court had thereby parted' with possession and control over the same, and the order appointing the receiver, while it directed him to take possession and control of the properties of the two corporations, and gave him the exercise and control of any and all rights which they had in those instruments, ordered that, until the final determination of the suit, they should remain in the custody of the state treasurer.
“The rule that where the same matter is brought before courts of concurrent jurisdiction, the one first obtaining jurisdiction will retain it until the controversy is determined, to the entire exclusion of the other, and will maintain and protect its jurisdiction by an appropriate injunction, is confined in its operation to instances where both suits are substantially the same, that is to say, where there is substantial identity in the interests represented, in the rights asserted and in the purposes sought.” Pacific Live Stock Co. v. Oregon Water Bd., 241 U. S. 440, 447, 36 S. Ct. 637, 641 (60 L. Ed. 1084).
But, if it were conceded that the state court acquired, by its receivership, jurisdiction over the property, so as to withdraw it from the jurisdiction of a federal court in the same territory (Palmer v. Texas, 212 U. S. 118, 29 S. Ct. 230, 53 L. Ed. 435), it does not follow that the relief which the appellees seek in the court below is beyond the" jurisdiction of that court, or, will necessarily invade or disturb the jurisdiction of the state court. The court below had no right to abdicate its own jurisdiction. It had the power to hear and determine any question and grant any relief concerning interests in the property not conflicting with the possession, so long as the state court should retain possession. The objection on account of the receivership cannot prevail to prevent proceedings in the court below, so far as it can go without interfering with the receivership. Watson v. Jones, 15 Wall. 679, 20 L. Ed. 666; Mercantile Trust Co. v. Lamoille Val. R. Co., 16 Blatchf. 324, Fed. Cas. No. 9432.
The question remains whether the injunction was forbidden by section 265 of the Judicial Code (28 USCA § 379), which, prohibits the issuance of a writ of injunction by any court of the United States to stay proceedings in any court of a state, except in bankruptcy eases. The appellees ■contend that the present case is not governed by that section- for the reason that the injunction runs not against the state court, = but. against the plaintiffs-iii the actions in that court. But violation of the section is not thus avoided. Essanay Film Co. v. Kane, 258 U. S. 358, 42 S. Ct. 318, 66 L. Ed. 658; Peck v. Jenness, 7 How. 612, 625, 12 L. Ed. 841. It is true that the prohibition of injunction is not universal in its scope. It does not forbid a federal court to enjoin attempts to impair its own jurisdiction by proceedings in a state court (French v. Hay, 22 Wall. 250, note, 22 L. Ed. 857), or to issue injunction where there is an entire lack of jurisdiction in the state court (Simon v. Southern Railway Co., 236 U. S. 115, 35 S. Ct. 255, 59 L. Ed. 492), or to enjoin the enforcement of a judgment subject to attack as having been obtained through fraud (Marshall v. Holmes, 141 U. S. 589, 12 S. Ct. 62, 35 L. Ed. 870), or a judgment, the enforcement of which would be contrary to recognized principles of equity and the standards of good conscience (Wells Fargo & Co. v. Taylor, 254 U. S. 175, 183, 41 S. Ct. 93, 65 L. Ed. 205); or to enforce an unconscionable judgment fraudulently obtained (Ex parte Simon, 208 U. S. 144, 28 S. Ct. 238, 52 L. Ed. 429).
But the present case does not belong in the class of any of the recognized exceptions. It is an injunction against the plaintiffs in a state court, enjoining them against taking further steps in the prosecution of suits to cancel securities, and it is issued on behalf of plaintiffs in a federal court, not parties to the suits in the state court, to defeat cancellation of the securities and protect their own interest therein. We think the injunction comes clearly within the prohibition of section 265. Essanay Eilm Co. v. Kane, supra.
The argument that, if the suits in the state court are permitted to be prosecuted to judgment before the suit in the federal court can be adjudicated, the latter adjudication will be made futile, is answered in Kline v. Burke Const. Co., 260 U. S. 226, 233, 43 S. Ct. 79, 67 L. Ed. 226, 24 A. L. R. 1077, where it. is pointed out that the jurisdiction of a federal court, having been conferred by act of Congress, may be taken away in whole or in part hy a later act of Congress, such as the prohibition of injunction expressed in section 265. But that section does not deprive a District Court of jurisdiction otherwise conferred by the federal statutes. It merely goes to the question of equity in the particular ease presented, leaving the eourt to determine whether the ease is one in which injunctive relief is prohibited. ' Woodmen of the World v. O’Neill, 266 U. S. 292, 298, 45 S. Ct. 49, 69 L. Ed. 293; Smith v. Apple, 264 U. S. 274, 277, 44 S. Ct. 311, 68 L. Ed. 678.
We hold that it is prohibited here. The injunction order is reversed.
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer: |
songer_genresp2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
LAMB’S CHAPEL and John Steigerwald, Plaintiffs-Appellants, v. CENTER MORICHES UNION FREE SCHOOL DISTRICT and Louise Tramontano, in her official capacity as president of the Board of Education for Center Moriches Schools, Defendants-Appellees, New York State Attorney General’s Office, Intervenor.
No. 470, Docket 91-7718.
United States Court of Appeals, Second Circuit.
Argued Nov. 4, 1991.
Decided March 18, 1992.
Mark N. Troobnick, Washington, D.C. (Jordan W. Lorence, Concerned Women for America Legal Foundation, Jay A. Seku-low, Walter M. Weber, Free Speech Advocates, of counsel), for plaintiffs-appellants.
Harold G. Trabold, Patchogue, N.Y. (Dranitzke, Lechtrecker & Trabold, Pat-chogue, N.Y., August H. Englert, Fiedel-man & Hoefling, Jericho, N.Y., of counsel) for defendants-appellees Center Moriches Union Free School Dist. and Louise Tra-montano.
Jeffrey I. Slonim, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., Lawrence S. Kahn, Deputy Sol. Gen., Atty. Gem’s Office, State of N.Y., of counsel), for intervenor New York State Atty. Gen.
Jay Worona, Albany, N.Y. (Cynthia P. Fletcher, New York State School Boards Ass’n, Inc., of counsel) for amicus curiae New York State School Boards Ass’n, Inc.
Before CARDAMONE, PIERCE and MINER, Circuit Judges.
MINER, Circuit Judge:
Plaintiffs-appellants Lamb’s Chapel and John Steigerwald appeal from a summary judgment entered in the United States District Court for the Eastern District of New York (Wexler, J.) in favor of defendants-appellees Center Moriches Union Free School District and Louise Tramontano, as President of the Board of Education of the School District. Lamb’s Chapel is an Evangelical Christian church, incorporated under the New York not-for-profit corporation law, located at Center Moriches, Suffolk County, New York. John Steigerwald is the Pastor of Lamb’s Chapel. The School District is a subdivision of the State of New York duly organized to provide public education in Suffolk County. This action was brought to secure declaratory and injunctive relief as redress for the refusal of the School District to allow the use of School District facilities, during non-school hours, for the showing of a series of religious films. The School District relied on a New York statute as well as a local rule in denying use of the facilities.
In granting summary judgment, the district court determined that the School District’s facilities were “limited public forums,” which had not been opened to religious groups by policy or practice. Accordingly, the court concluded that the facilities properly were barred to the plaintiffs in accordance with the New York Education Law and the School District’s own Local Rules.
On appeal, appellants contend that the School District, having created public forums by policy and practice, has excluded speech from the forum on the basis of content. This, they urge, is violative of the First Amendment. Appellants also contend that the denial to them of equal access to the School District’s facilities, based on the religious content of their speech, is a violation of the Establishment Clause. Finally, they contend that a prior decision of this Court upholding the New York statute that allows the exclusion of religious groups from school district facilities in the absence of a practice of opening the facilities to other religious organizations is erroneous and should not be followed. Finding no merit in any of these contentions, we affirm the judgment of the district court.
BACKGROUND
By application dated November 19, 1988, Pastor Steigerwald sought the use of rooms in the Center Moriches High School for Lamb’s Chapel Sunday morning services and for Sunday School. The hours specified were 9:00 A.M. to 1:00 P.M., and the time period indicated was one year, beginning in December of 1988. The application was made on a form provided by the School District and entitled “Application For Use of School District Facilities.” Attached to the application form was a sheet entitled “Rules and Regulations for Community Use of School Facilities.” Rule No. 7 was set out as follows: “The school premises shall not be used by any group for religious purposes.” Above his signature on the application form, Pastor Steigerwald indicated that he had read the Rules and Regulations and agreed to comply fully with them “excluding #7.”
Accompanying the application, and dated November 21, 1988, was a letter to Alice Schoener, School District Clerk, from the Pastor. In the letter, Pastor Steigerwald introduced himself and his Church and noted that their “paramount objective [was] to share the love of Christ in very real and practical ways.” He also indicated that he had taken a tour of the Center Moriches High School to “see if the school had adequate facilities for a movie series on the family that will be free of charge and open for the community to attend.” Pastor Steigerwald stated in his letter that he had met with the high school principal, who was concerned that the content of the film be nonsectarian in view of the constitutional requirement for the “separation of church and state.” The letter continued: “Those who espouse such a ... view are seriously misinformed. Enclosed you will find several articles that correctly interpret the law that is presently being upheld by the Supreme Court of the United States of America.”
By letter dated November 23, 1988 on behalf of the School District, Ms. Schoener advised Pastor Steigerwald that the application “requesting the use of the high school for your Sunday services” was denied, citing Local Rule No. 7 as well as the State Education law. Referring to scheduling problems, Ms. Schoener further advised that she was “very much afraid that, even without the prohibited religious activity aspect, your request would have to be denied.” Undeterred, Pastor Steigerwald pressed forward on December 16, 1988 with another application for use of the high school facilities, the second application being limited to one evening per week for five weeks. The hours designated were 7:00 P.M. to 10:00 P.M. and the activity specified was “Family emphasis & Movie presentation by Dr. James Dobson.” The purpose set forth was “To open up the film to share some pracital [sic] insights about the family.” The facilities requested were the auditorium or gymnasium.
In response to the second application Ms. Schoener wrote to Pastor Steigerwald on January 18, 1989 to request “a more detailed description of your proposed use (including a brochure describing the film),” noting that she was “hard pressed to determine from your description, what the five-part movie would represent” but “suspected] that it would certainly have religious connotations.” In the letter requesting additional information, Ms. Schoener observed that “[t]he district has not, in the past, allowed the high school auditorium to be used by any group primarily for its own purposes.”
A brochure describing the film, “Turn Your Heart Toward Home,” was forwarded by Pastor Steigerwald to Ms. Schoener on February 2, 1989. According to the brochure, the film comes in a 6-part series “every parent should see.” In the film, Dr. James Dobson, said to be an expert on family life, “reminds parents of society’s slide toward humanism — the undermining influences of radio, television, films and the press — which can only be counterbalanced by a loving home where Christian values are instilled from an early age.” In her response dated February 8, 1989, Ms. Schoener advised Pastor Steigerwald as follows: “This film does appear to be church related and therefore your request must be refused.” Additionally, Ms. Schoener denied a request made by Pastor Steigerwald on February 2,1989, for use of the elementary or high school on Friday or Saturday evenings “for ‘non-religious purposes’ such as volley ball.” The reason given was: “We do not schedule outside organizations to use the facilities on Fridays and Saturdays.”
Pastor Steigerwald continued to press his petition. On October 11, 1989, he submitted yet another application for the use of Center Moriches School District facilities to show the same film series, described in this application as a “Family oriented movie from a Christian perspective.” The stated purpose of Lamb’s Chapel was “To invite community of Center Moriches to view this very practical movie for family raising.” Once again, the use of an auditorium for five week days over a five-week period was sought. This last application met with a terse response by Ms. Schoener: “This film does appear to be church related and therefore your request must be refused.”
The complaint in this action was filed on February 9, 1990 and includes four causes of action: violation of the Freedom of Speech and Assembly Clauses; violation of the Equal Protection Clause; violation of the Free Exercise Clause; and violation of the Establishment Clause. As to each cause, the plaintiffs allege that the defendants’ actions were taken under color of state law and in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1983. The injunctive relief sought was an order permitting plaintiffs the use of the auditorium of the high school or elementary school to show the film series and to allow religious groups use of the facilities without discrimination because of the religious content of their speech. Also sought was a judgment declaratory of plaintiffs’ rights to use the facilities in question in accordance with constitutional protections guaranteed by the First and Fourteenth Amendments, including the Free Speech, Freedom of Assembly, Free Exercise, Establishment and Equal Protection Clauses of the Constitution. Plaintiffs also sought a declaration of the unconstitutionality of section 414 of the New York Education Law to the extent it bars the use of school district facilities for purposes of religious speech.
Plaintiffs’ motion for a preliminary injunction to compel the School District to allow the use of the District’s facilities was denied by the district court in a Memorandum and Order dated May 16, 1990. The court reviewed the facts presented on the motion as well as the applicable legal and constitutional principles and concluded that plaintiffs had “not shown either a substantial likelihood of success on the merits or sufficiently serious questions going to the merits.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 736 F.Supp. 1247, 1254 (E.D.N.Y.1990). An appeal to this Court from the Order denying the preliminary injunction was withdrawn, and the matter was returned to the district court for further proceedings. Thereafter, the plaintiffs moved for summary judgment and the School District cross-moved for the same relief. After hearing testimony as well as considering exhibits and affidavits, the district court granted the School District’s motion and denied the plaintiffs’ motion in a Memorandum and Order dated July 15, 1991, giving rise to this appeal.
In granting summary judgment, the district court found “that if the intended use of school facilities is not required or authorized by statute, there is no constitutional right to such use where a school district has not, by policy or practice, permitted a similar use in the past.” Lamb’s Chapel v. Center Moriches Union Free School Dist., 770 F.Supp. 91, 98 (E.D.N.Y.1991). Although it determined that the Center Mo-riches School District facilities are limited public forums, the court concluded that the “District ha[d] not, by policy or practice, opened its doors to groups akin to Lamb’s Chapel,” and therefore held “that the School District’s denial of plaintiffs’ applications to show the film series [was] viewpoint-neutral and, hence, constitutional.” Id. at 99. We agree with the conclusion reached by the district court.
DISCUSSION
According to the Supreme Court, the extent of permissible governmental regulation of expressive activity on publicly owned property is dependent upon the character of the public property in question. See Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The Court has identified three categories of publicly owned property and has defined what regulatory power, consistent with the First Amendment, may be exercised in each category. See Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 802, 105 S.Ct. 3439, 3448, 87 L.Ed.2d 567 (1985).
The power of the State to regulate expression is most limited in regard to the category of public property designated “traditional public forum.” Streets, parks and similar locales, said to “have immemorially been held in trust for the use of the public and [which], time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (1939), fall within this classification. In such a forum, a regulation providing a content-based exclusion may be enforced only when “necessary to serve a compelling state interest” and must be “narrowly drawn” to serve that purpose. Perry, 460 U.S. at 45, 103 S.Ct. at 955. Also, narrowly tailored, content-neutral regulations pertaining to the time, place and manner of expression in a traditional public forum may be enforced, if they “serve a significant government interest, and leave open ample alternative channels of communication.” Id. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989).
The second category of public property pertinent to this analysis is made up of property purposefully opened for use by the public for expressive activity. Although government is not required to open this sort of forum or to keep it open indefinitely, the regulation of expression in a locale encompassed within the second category must meet the same standards as are applicable to a traditional public forum. Perry, 460 U.S. at 46, 103 S.Ct. at 955. Places opened specifically for the use of certain speakers or for the discussion of certain subjects are referred to as “limited” or “designated” fora. See Longo v. U.S. Postal Service, 953 F.2d 790, 793-94 (2d Cir.1992); Travis v. Owego-Apalachin School Dist., 927 F.2d 688, 692 (2d Cir.1991). As to these fora, “the first amendment protections provided to traditional public forums only apply to entities of a character similar to those the government admits to the forum.” Calash v. City of Bridgeport, 788 F.2d 80, 82 (2d Cir.1986).
Least restricted is the power of government to regulate expression in the third category of public property — the nonpublic forum. Included in this category is property that is not open for communicative purposes either by tradition or designation. Perry, 460 U.S. at 46, 103 S.Ct. at 955. With respect to such property, where governmental control is analogous to that of a private owner, see United States Postal Service v. Council of Greenburgh, 453 U.S. 114, 129-30, 101 S.Ct. 2676, 2685, 69 L.Ed.2d 517 (1981), a reasonableness standard prevails, see International Soc’y For Krishna Consciousness v. Lee, 925 F.2d 576, 580 (2d Cir.1991), cert. granted, — U.S. -, 112 S.Ct. 855, 116 L.Ed.2d 764 (1992). The standard is met when the applicable restrictions “reflect a legitimate government concern and do not suppress expression merely because public officials oppose the speaker’s view.” See Paulsen v. County of Nassau, 925 F.2d 65, 69 (2d Cir.1991).
The Center Moriches School District facilities appellants sought to use do not fall within the categories of “traditional public forum” or “non-public forum,” and appellants do not contend that they do. What appellants do contend is that the school authorities in the Center Moriches School District by policy and practice have opened the facilities for the use of the general public and that the exclusion of religious speech is prohibited under the standards governing the second category. See Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 267, 108 S.Ct. 562, 567, 98 L.Ed.2d 592 (1988). An examination of pertinent policy and actual practices, however, convinces us that the school property in question falls within the subcategory of “limited public forum,” the classification that allows it to remain non-public except as to specified uses. See Deeper Life Christian Fellowship v. Board of Educ., 852 F.2d 676, 679 (2d Cir.1988) (Deeper Life I).
In the matter of School District policy, the District is governed by section 414 of the New York Education Law and its own Local Rule No. 7. Section 414 sets out ten purposes for which the use of schoolhouse facilities may be granted throughout the State of New York: instruction; public library purposes; social, civic and recreational meetings; events for which admission fees are charged, if the fees are to be applied to educational and charitable (but not religious) purposes; elections and political meetings; civic forums and community centers; classes for mentally retarded minors; recreation and athletics; child care services during non-school hours; and graduation exercisés held by not-for-profit elementary and secondary schools, provided no religious service is performed. N.Y.Educ.Law § 414[l](a)-(j) (McKinney 1988 & Supp.1992). Religious uses are nowhere permitted in this enumeration. All the uses specified are subject to such regulations as may be adopted by boards of education in the various school districts of the state, but the regulations must not conflict with the state law. See id. As previously noted, the Board of Education of the Center Moriches Union Free School District has provided in its Local Rule No. 7 that “[t]he school premises shall not be used by any group for religious purposes.”
In Deeper Life I we adopted a state court interpretation of section 414 that the use of New York school facilities is confined to nonreligious purposes, see Trietley v. Board of Educ., 65 A.D.2d 1, 5-6, 409 N.Y.S.2d 912, 915 (4th Dep’t 1978), and thereby ascertained the state’s intent to create a limited public forum from which religious uses would be excluded. See Deeper Life I, 852 F.2d at 680. We determined in that case that under the statute and applicable New York City Board of Education regulations, the School Board had no discretion with respect to the granting of use permits to religious groups. See Deeper Life Christian Fellowship v. Sobol, 948 F.2d 79, 83 (2d Cir.1991) (Deeper Life II).
Appellants argue, in effect, that once the school district facilities are opened as a public forum for one purpose, they are opened for all purposes. They take issue with our view that “property remains a nonpublic forum as to all unspecified uses ..., and exclusion of uses — even if based upon subject matter or the speaker’s identity — need only be reasonable and viewpoint-neutral to pass constitutional muster,” Deeper Life I, 852 F.2d at 679-80 (citations omitted), and contend that our view does not represent a proper interpretation of Supreme Court precedent. That challenge is barred by the rule of stare decisis, not only as a consequence of the Deeper Life cases but also as a consequence of our decision in Travis, where we held that “in a limited public forum, government is free to impose a blanket exclusion on certain types of speech, but once it allows expressive activities of a certain genre, it may not selectively deny access for other activities of that genre.” 927 F.2d at 692.
In Travis, the school district was constrained to open its facilities to a religiously-oriented, fund-raising entertainment event benefitting a pregnancy counselling organization affiliated with an organization that promoted Christian gospel evangelism, having previously opened the facilities to a religious Christmas program involving the collection of toys for needy children. “The Christmas program .., created at least a limited public forum for fund-raisers with religious themes.” Id. at 693. In Deeper Ufe I, we sustained a preliminary injunction in a case in which a church sought the temporary use of an elementary school building, finding as a fair ground for litigation that “the School Board ha[d] opened this forum to [the church] through a practice of granting permits to use public school facilities to other religious organizations.” 852 F.2d at 680. Whether Center Moriches has opened its facilities to religious uses and purposes presents a close question here.
On appeal, appellants principally rely upon three prior uses of school district facilities to demonstrate a prior practice of opening Center Moriches public schools to outside of school religious uses: a Salvation Army Band Benefit Concert; a Gospel Music Concert; and a lecture series entitled “Psychology and the Unknown,” given by Jerry Huck. The Band Benefit Concert involved performances by the Center Mo-riches High School Band as well as the Salvation Army Greater New York Youth Band. The money raised at this concert was used to provide a scholarship for a high school band member and to provide funds for children to go to summer camp. The only religious connotations found in the Joint Band Program were the invocation, the performance of a piece called “Jericho Revisited” and the finale, “God Bless America.” Although appellants adduced evidence that “the Salvation Army is a church or a quasi-church,” the Joint Band Program hardly can be described as any kind of a religious use of school district property. The theme of the Program was not religious and any reference to religion was incidental at best.
The Gospel Music Concert was performed by a group called the “Southern Harmonizers Gospel Singers.” The purpose of the program was to raise money for the school’s black student scholarship fund. The program consisted in the main of gospel and spiritual music. The business manager of the Singers defined gospel music as “the good news of God.” Included in the program were such well-known religious songs as “Amazing Grace!” and “The Lord is my Shepherd” from the Twenty-Third Psalm of the Old Testament. The business manager responded in the affirmative when asked if the concert could be enjoyed for the music itself. Obviously, this is so. Much of the world’s greatest music has some religious connotation but can be enjoyed by people of all religious beliefs as well as people of no religious beliefs. The performance by the Southern Harmonizers was not a religious service or event but a musical and cultural one. It took place in a non-religious context and had a non-religious purpose.
The lecture series, “Psychology and The Unknown,” by Jerry Huck, was sponsored by the Center Moriches Free Public Library. The library’s newsletter characterized Mr. Huck as a psychotherapist who would discuss such topics as parapsychology, transpersonal psychology, physics and metaphysics in his 4-night series of lectures. Mr. Huck testified that he lectured principally on parapsychology, which he defined by “reference to the human unconscious, the mind, the unconscious emotional system or the body system.” When asked whether his lecture involved matters of both a spiritual and a scientific nature, Mr. Huck responded: “It was all science. Anything I speak on based on parapsychology, analytic, quantum physicists [sic].” Although some incidental reference to religious matters apparently was made in the lectures, Mr. Huck himself characterized such matters as “a fascinating sideline” and “not the purpose of the [lecture].”
As is apparent from the foregoing, none of the prior uses pointed to by the appellants were for religious purposes. Nor are we able to discern any previous uses of any school district property for religious purposes upon an examination of the record. Incidental references to religion or religious figures, the occasional use of religious terms, and the performance of music with religious overtones do not convert a secular program into a religious one. The programs cited as examples did not carry out religious themes nor were they presented in a religious context. We simply have not been able to identify any prior use of Center Moriches School District facilities for purposes that are religious in any meaningful way. We therefore conclude that the facilities were limited forums not opened to religious uses by policy or practice and that there was no constitutional violation in the failure of the School District to afford access to appellants.
Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) and Board of Educ. of the Westside Community Schs. v. Mergens, 496 U.S. 226, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990), relied upon appellants, do not dictate a contrary result. In Widmar, the Court held that a state university could not deny access to university facilities to students who wished to conduct religious meetings on campus. Widmar, 454 U.S. at 273, 102 S.Ct. at 276. The Court found in that case that “[t]hrough its policy of accommodating their meetings, the University has created a forum generally open for use by student groups,” noting that “the campus of a public university, at least for its students, possesses many of the characteristics of a public forum.” Id. at 267 & n. 5, 102 S.Ct. at 273 & n. 5. In Mergens, the Court held that the Equal Access Act, 20 U.S.C. § 4071(b) prohibited a high school from “discriminating, based on the content of the students’ speech, against students who wish to meet on school premises during noninstructional time.” 496 U.S. at 247, 110 S.Ct. at 2370. The high school had created a limited open forum- by allowing noncurriculum-related student groups to use the school facilities. The denial of a request to form a Christian club, under the circumstances revealed, constituted a denial of equal access under- the Equal Access Act.
Although appellants contend that our Deeper Life opinions are incompatible with these Supreme Court decisions and that the decisions compel a reversal of the district court in the case at bar, the contention is baseless. Widmar involved the use of university property by student groups in a situation where a number of such groups had been afforded access, to the point where, as to the students, a “generally open forum” was created. 454 U.S. at 267, 102 S.Ct. at 273. Similarly, in Mergens, the religious use of school property was sought by students, who have a greater claim on the use of school property than outsiders, especially when the property generally is open to student groups. The Supreme Court decided Mergens purely on statutory grounds, noting that it did not need to decide whether the First Amendment requires the same result. In the Deeper Life cases, as in the case at bar, we are presented with outside organizations seeking access where access has been limited and all religious use has been barred by policy and practice.
The appellants argue that denial of access somehow violated the Establishment Clause of the First Amendment as well as the Freedom of Speech Clause. It is difficult to see how this is so. If anything, a claim of a violation of the Free Exercise Clause would be expected. Nevertheless, there is no basis for any claim of First Amendment violation here. We have considered all of the arguments advanced by the appellants and find them meritless.
CONCLUSION
The judgment of the district court is affirmed in all respects.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_weightev | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
JOHN BLUE COMPANY, Incorporated, Appellant, v. DEMPSTER MILL MFG. CO., Appellee.
No. 16179.
United States Court of Appeals Eighth Circuit.
March 15, 1960.
David E. Varner, Washington, D. C. (C. Willard Hayes, Washington, D. C., E. G. Garvey, Omaha, Neb., and Cushman Darby & Cushman, Washington, D. C., and Crawford, Garvey, Comstock & Nye, Omaha, Neb., on the brief) for appellant.
Ferd Bing and Thomas F. McWilliams, Chicago, Ill. (Mann, Brown & McWilliams, Chicago, Ill., on the brief), for appellee.
Before GARDNER and VOGEL, Circuit Judges, and MICKELSON, District Judge.
MICKELSON, District Judge.
This is a patent infringement action brought by the plaintiff, John Blue Company, Inc., an Alabama Corporation, against the defendant, Dempster Mill Mfg. Co., a Nebraska Corporation, alleging the infringement of Patents No. 2,696,785 and No. 2,771,846. The trial court held both patents invalid but no appeal was taken from the trial court’s ruling regarding Patent No. 2,771,846. This appeal is from the judgment and findings of the trial court that plaintiff’s Patent No. 2,696,785 (hereinafter called the Blue and Johnston Patent) is invalid on two grounds: (1) That the joinder of Johnston as a joint inventor after the original issue of the patent here in question was not proper under Title 35 U.S. C.A. § 256; and, (2) That the Blue and Johnston Patent did not involve invention. The trial court’s memorandum opinion is reported in D.C.Neb.1958, 172 F. Supp. 23. The parties will be referred to as they were designated in the trial court. The question of infringement is not involved in this appeal because of the findings and judgment of the trial court that the Blue and Johnston Patent was invalid. The Blue and Johnston Patent relates to a device for the metering and regulation of the flow of anhydrous (liquefied gas) ammonia as it is applied to the soil for fertilizing purposes.
The findings of the trial court will not be set aside unless clearly erroneous, and due regard will be given to the opportunity of the trial court to judge of the credibility of the witnesses. Rule 52(a) F.R.Civ.P. 28 U.S.C.A. A finding of fact by a district court is not “clearly erroneous” so as to justify this court in setting it aside unless it is unsupported by substantial evidence, contrary to the clear weight of the evidence, or induced by an erroneous view of the law. Sbicca-Del Mac, Inc. v. Milius Shoe Co., 8 Cir., 1944, 145 F.2d 389; Sears, Roebuck & Co. v. Talge, 8 Cir., 1944, 140 F.2d 395; Gasifier Mfg. Co. v. General Motors Corp., 8 Cir., 1943, 138 F.2d 197.
The facts as found by the trial court and as supported by substantial evidence in the record, insofar as they are pertinent to this appeal, are as follows:
Prior to the year 1948, plaintiff was a well established manufacturer of wheel-driven distributors for dry or solid fertilizers. This machinery could be pulled by tractor or animals, and plaintiff found most of its business in the cotton fields.
During 1947 and the early part of 1948, interest in the use of anhydrous ammonia as a fertilizer was running high due to a shortage of solid fertilizers. Early experimentation in the use of anhydrous ammonia as a fertilizer and particularly on how to apply it to the soil in known and accurate amounts was carried on by Mississippi State College at its Delta Experimental Station.
In February of 1948, John Blue, president of the plaintiff company, together with his son, James, and W. D. Tucker, Jr., general manager of plaintiff, made a trip to the experiment station, and on this trip Blue conceived a metering apparatus for applying anhydrous ammonia to the soil as a fertilizer. This original conception resulted in Patent No. 2,594,-284, application filed December 21, 1948, issued April 29, 1952 (hereinafter referred to as the Blue Patent). The Blue Patent is not involved in this action except as defense material upon the basis of which lack of invention in the Blue and Johnston Patent is urged. On the occasion of this trip to the experiment station, Blue made sketches showing his conception of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter the anhydrous ammonia and to feed the same to ground tools for application to the soil. Upon his return to plaintiff’s plant at Huntsville, Alabama, Blue turned the sketches over to his son, who made drawings thereof, and these drawings formed a good representation of the Blue concept. No pump was ever built in conformity with these drawings; however, the concept was subsequently used as the basis for the Blue and Johnston Patent here in suit. The Blue concept therefore established the threshold upon which the work of Blue and Johnston began.
After Blue and Tucker returned from the experiment station, it was decided that plaintiff would make an attempt to build a mechanical metering device for anhydrous ammonia. Plaintiff then had no skilled engineers in its employ and did not possess any precision manufacturing equipment necessary for the development and production of an accurate pump-type metering device for anhydrous ammonia.
There existed in Huntsville, Alabama, at that time the General Fluid Machinery Corporation (hereinafter referred to as General Fluid), which had been organized in 1945 for the manufacture of domestic water pumping systems for deep wells, and they had also gone into the manufacture of hydraulic jacks and related equipment. Douglas Johnston, a highly educated engineer of wide experience in high pressure hydraulic work, and in the design and manufacture of pumps, was the president and chief engineer of this corporation. The corporation was equipped with both engineering and precision manufacturing facilities, but due to serious financial difficulties was looking for contract or job work.
It was decided that the plaintiff would secure the services of General Fluid to do further design work on a metering device for anhydrous ammonia. Blue, Tucker and Johnston made another trip to the experiment station primarily to enable Johnston to become acquainted with the problems involved in the handling and use of anhydrous ammonia. As a result of this trip and by agreement between Johnston and Tucker, as general manager of the plaintiff, the design work that was to be done by General Fluid was undertaken. Work progressed rapidly, and after preparation of certain drawings under the supervision of Johnston, a pump was made and subsequently tested at the experiment station in August of 1948. It was found that the pump “had some bugs” and changes were thereafter made. The rebuilt pump was demonstrated at the experiment station the following month. In this rebuilt pump, jointly designed and built by Blue and Johnston during the spring and summer of 1948, the original Blue concept of a wheel-driven, adjustable stroke metering pump had been changed in the following respects; (1) A pressure balanced valve had been substituted as the outlet valve in place of the spring-biased type of valve usually employed in pumps; (2) A vent had been added for discharging the accumulated ammonia from the pump cylinder to allow the pump cylinder to fill with liquid ammonia; and (3) A heat exchanger had been added to cool the incoming liquid ammonia and minimize the possibilities of flashing or bubbling. This was essentially the pump described in plaintiff’s Patent No. 2,696,-785, the Blue and Johnston Patent.
The application for a patent on the Blue and Johnston built pump was originally prepared by plaintiff’s attorneys naming Blue and Johnston as joint inventors. The name of Johnston was stricken from the patent application by Mr. Tucker, and the application submitted to The United States Patent Office on March 11, 1949, by Blue as the sole inventor. Letters Patent No. 2,696,785 were issued on December 14, 1954, to plaintiff, Blue having assigned his rights therein shortly after the application was filed.
After the patent was issued, and after the defendant had been charged with infringement, but before this case was filed, application was made under the provisions of Title 35 U.S.C.A. § 256 to the Commissioner of Patents, and a certificate was issued adding the name of Johnston as a joint inventor with Blue. At the same time Johnston assigned all of his rights in the patent to plaintiff.
Plaintiff’s first assignment of error on this appeal is the finding and conclusion by the trial court that the omission of Johnston’s name as a joint inventor was not such an error as could be corrected under the provisions of Title 35 U.S.C.A. § 256. In view of our conclusion hereinafter expressed that the judgment of the trial court should be affirmed on the ground that the Blue and Johnston Patent did not involve invention and was therefore invalid, we do not deem it necessary to decide this point.
We therefore pass to the second point involved on this appeal, namely, the decision of the trial court that the Blue and Johnston Patent in suit is invalid because it lacked patentable invention. As hereinbefore stated, the original concept of a tractor-mounted adjustable stroke metering pump driven from the wheel of a tractor, acting to meter anhydrous ammonia and to feed the same through ground tools for application to the soil as a fertilizer, was that of Blue. Johnston had no part in this original conception, and the conception was reduced to drawings before Johnston became associated with Blue. The trial court found that the Blue and Johnston Patent was merely the basic pump conceived solely by Blue modified by the addition of three components, namely, (1) a pressure balanced valve, (2) a venting device, and (3) a heat exchanger. The court concluded that the assembly of these well known components to “iron out the bugs” in the pump described in Blue’s earlier Patent was not a patentable invention; that Blue and Johnston had merely brought together segments of prior art; that nothing had been added to the stock of knowledge, and to allow a monopoly on this aggregation would diminish the resources available to skillful men.
In applying 35 U.S.C.A. § 103, this court follows the standards of patentability set out by the United States Supreme Court in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 71 S.Ct. 127, 95 L.Ed. 162. There, 340 U.S. at pages 152, 153, 71 S.Ct. at page 130, the Court said:
“Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly.”
If a trial court has failed to apply proper legal standards in determining the presence or absence of invention, its finding upon that issue will be reversed on appeal as clearly erroneous. Caldwell v. Kirk Mfg. Co., 8 Cir., 1959, 269 F.2d 506; Koochook Co. v. Barrett, 8 Cir., 1946, 158 F.2d 463, 465; Frank Adam Electric Co. v. Colt’s Patent Fire Arms Mfg. Co., 8 Cir., 1945, 148 F.2d 497, 502-503. We do not find error in the trial court’s findings or application of legal standards.
We next discuss the utility of the three components and the prior knowledge of their respective arts.
The Pressure Balanced Valve
This valve is a bypass line from the pumping chamber to a chamber behind the outlet valve. Thus, the pressure from the ammonia is the same on both sides of the outlet valve. With the pressure equalized, a relatively light spring holds the valve shut until hit by the piston. If a balanced valve were not used, a much more powerful spring would be necessary to hold the valve shut when the ammonia pressure built up, and a much more powerful piston thrust would be needed to open the valve. A spring, without this equalized pressure, was contemplated in the Blue concept, and it appears undisputed that it was a substitute for the spring-biased outlet valve of the Blue Patent. Johnston was familiar with a balanced valve and its operation (Johnston’s own Patent No. 2,508,609), and using it for the first time as an outlet valve does not involve invention. An explanation of a pressure balanced valve appears in a 1941 engineering encyclopedia, and in a mechanical dictionary published in 1882, which dealt with steam pressure. We agree with the finding of the trial court that the utilization of this valve involved nothing more than the ordinary skill in the art.
The Venting Device
The venting device is merely a device to let the air or gaseous ammonia out of the pump chamber, to avoid the problem of vapor lock or gas lock. It also serves to prime the pump with liquid and starts the cooling action of the heat exchanger, so that the pump will meter accurately at the beginning of a fertilizer run. We agree with the findings of the trial court that there was nothing new or novel in this venting device, either in the principle or its application.
The Heat Exchanger
The idea of a heat exchanger was not new when Blue and Johnston began their work together. A heat exchanger on an anhydrous ammonia applicator was known as early as 1948 and was on the device manufactured by the New Holland Company, Baggette Patent, et al., No. 2,612,760, application filed December 9, 1948. The Kniskern Patent, No. 2,007,-251, application dated April 14,1934, had a heat exchanger. Other patents are cited by the defendant showing prior knowledge and art, but we see no reason for prolonging this opinion with a discussion of them. The heat exchanger was not new to Blue and Johnston and there was no inventive genius in the application they made of it. Nothing was added to the total stock of knowledge by them either in its use or by its construction. See, Boston Metals Co. v. Air Products, Inc., 4 Cir., 1951, 193 F.2d 535, holding Anderson Patent, No. 2,480,093 cited here as prior art invalid for lack of invention.
The plaintiff argues that the trial court erred in considering the Blue Patent as an anticipation of the Blue and Johnston Patent and as prior art, because the Blue Patent was not issued until subsequent to the filing of the application for the Blue and Johnston Patent. These two applications were co-pending. It is true that the application for the Blue Patent cannot be considered as prior art in the technical sense, but it is a widely recognized rule that the application for such patent can nevertheless be used as defense material to prove that Blue and Johnston were not the original and first inventors or discoverers of the metering pump described in their patent. Permo, Inc. v. Hudson-Ross, Inc., 7 Cir., 1950, 179 F.2d 386; Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197. And such appears to be the way the trial court considered it.
The plaintiff further contends that the Blue and Johnston pump was reduced to practice prior to the filing of the application for the Blue Patent and that therefore the Blue application cannot be considered as defense material against the Blue and Johnston Patent. We think it can be stated, based upon the findings and conclusions of the trial court, and upon our review of the record in this case, that the pump described in the Blue Patent and the pump described in the Blue and Johnston Patent were reduced to practice simultaneously. The Blue and Johnston pump was nothing more than the original Blue pump modified by the addition of the three components hereinbefore discussed, and this modification did not constitute patentable invention. The mere aggregation of these components which in the aggregation perform or produce no new or different function or operation than that theretofore performed or produced by them is not patentable invention. Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Corp., 1950, 340 U.S. 147, 151, 71 S.Ct. 127, 95 L.Ed. 162.
The trial court had before it a large volume of documentary and expert evidence introduced by the defendant to show prior knowledge and art, which we do not deem necessary to refer to in detail. Suffice it to say that such evidence constituted a sufficient evidentiary basis for the findings that the Blue and Johnston Patent was invalid for lack of invention. The credibility of expert witnesses and the weight of expert testimony is ordinarily for the trier of the facts to determine. Gasifier Mfg. Co. v. General Motors Corporation, 8 Cir., 1943, 138 F.2d 197.
The judgment of the trial court is affirmed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appel1_7_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
UNITED STATES of America, Plaintiff-Appellee, v. Brian Patrick Spenser PERCEVAL, Defendant-Appellant.
No. 85-2690.
United States Court of Appeals, Tenth Circuit.
Oct. 17, 1986.
Robert E. Mydans (William S. Price, U.S. Atty., with him on brief), Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.
Kenneth C. Watson, Oklahoma City, Okl., for defendant-appellant.
Before BARRETT, SETH and ANDERSON, Circuit Judges.
BARRETT, Circuit Judge.
Brian Patrick Spenser Perceval (Perceval), appeals his conviction of possessing a weapon or object that could be used as a weapon while a federal inmate in violation of 18 U.S.C. § 1791(a)(2).
On July 9, 1985, Perceval, who is incarcerated at the Federal Correctional Institution in El Reno, Oklahoma, was working in the machine shop of the prison where he had been assigned the position of welder. The machine shop supervisor stepped out of the shop for a moment and when he returned he observed Perceval sawing an unauthorized piece of steel on the band saw. Perceval noticed the supervisor looking at him, and he attempted to hide the piece of steel in a slot in the saw table. The supervisor approached the table and removed the object, which was eight inches long, had a four inch blade, and was sharpened to a point.
Perceval admitted that he made the object and that it looked like a knife, but contended that it was to be used as a tool to assist him in the shop. In spite of Perceval’s assertions, there were standard tools in the shop that could have been used for the same purposes for which he claimed he was sharpening the steel. He did not attempt to use any of these other tools, however. Perceval knew that making or possessing such an object was forbidden by prison regulations. Under the regulations, Perceval was permitted to make use of only, a limited number of tools unless he was granted special authorization. He had no special authorization to make this “tool.”
On appeal, Perceval raises the following issues: (1) the trial court erred in refusing to grant his motion to dismiss because the evidence was insufficient to sustain a conviction on the grounds that there was no intent; (2) what intent, if any, is required by one violating 18 U.S.C. § 1791; (3) the jury must be instructed that it must find beyond a reasonable doubt that the object in question was made by the appellant with the purpose of being used as a weapon or as a means of facilitating escape; and (4) whether the statute is vague and overly broad because there is no requirement of intent.
I.
All of Perceval’s arguments are variations on the question of intent. Perceval first contends that a purpose to use an object as a weapon is a required element of a § 1791(a)(2) violation. He argues he never intended to use the object he was sawing as a weapon and therefore he did not violate the statute which provides in pertinent part:
(a) Offense. —A person commits an offense if, in violation of a statute, or a regulation, rule, or order issued pursuant thereto—
(1) he provides, or attempts to provide, to an inmate of a federal penal or correctional facility—
******
(B) any other weapon or object that may be used as a weapon or as a means of facilitating escape;
******
(2) being an inmate of a Federal penal or correctional facility, he makes, possesses, procures, or otherwise provides himself with, or attempts to make, possess, procure, or otherwise provide himself with, anything described in paragraph (1).
18 U.S.C. § 1791 (as amended Oct. 12,1984, Pub.L. 98-473, Title II, § 1109(a), 98 Stat. 2147).
Perceval argues that the Government must prove beyond a reasonable doubt that he intended to use the object he was sharpening as a weapon. The statute itself requires less. It requires that Perceval possess or provide himself with an object that may be used as a weapon. “[B]eing an inmate of a Federal penal or correctional facility, he makes, possesses, procures, or otherwise provides himself with, or attempts to make, possess, procure, or otherwise provide himself with, anything described in paragraph (1).” 18 U.S.C. § 1791(a)(2) (emphasis added).
Perceval did admit to possessing and making an object that resembled a knife which, of course, may be used as a weapon. There was sufficient evidence presented by the Government at trial to prove that Perceval’s conduct violated the statute.
II.
In the alternative to his contention that intent is required by the statute, Perceval argues that it is unclear whether any intent must be shown because the statute is silent with respect to an intent requirement. Perceval is correct that the statute does not expressly contain an intent requirement. However, criminal statutes are generally to be construed to include an intent element. In the seminal case of Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249-50, 96 L.Ed. 288 (1952), the Court held “mere omission [from the statute] of any mention of intent will not be construed as eliminating that element from the crimes denounced.” See also, Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985) (“the failure of Congress explicitly and unambiguously to indicate whether mens rea is required does not signal a departure from this background assumption of our criminal law”). Supportive of the general proposition that the intent element has not been eliminated even though the statute is silent, are the legislative history of the statute and the legal precedents established under section 1791’s statutory predecessor.
Congress enacted the present version of section 1791 in 1984. The former statute and the present statute are not identical, but the provisions are essentially directed at the same conduct. Section 1791’s predecessor prohibited:
[Conveying] into such [federal penal or correctional] institution or from place to place therein, any firearm, weapon, explosive, or any lethal or poisonous gas or any other substance or thing designed to kill, injure, or disable any officer, agent, employee, inmate thereof, or [conspiring] so to do____ (18 U.S.C. § 1792 (current version at 18 U.S.C. § 1791).)
Although it was not expressly required, the previous statute had been construed to include an intent element. See e.g., United States v. Swindler, 476 F.2d 167, 169 (10th Cir.), cert. denied, 414 U.S. 837, 94 S.Ct. 183, 38 L.Ed.2d 72 (1973), (“The statute is silent on intent, but obviously criminal intent is an essential element.”). It is presumed that Congress was aware of and adopted prior case law upholding the mental state element that had been read into the statute by reviewing courts, when it enacted the new version of the statute. Lorillard v. Pons, 434 U.S. 575, 581, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978), (“where ... Congress adopts a new law incorporating sections of a prior law, Congress normally can be presumed to have had knowledge of the interpretation given to the incorporated law, at least insofar as it affects the new statute.”).
Even though Perceval professes confusion about an intent requirement, he acknowledges that some type of intent must be required under the statute when he argues that intent can only be established if his purpose in making the object was to use it as a weapon. Other than pointing out that there can be no such thing as a weapon per se and that the Model Penal Code suggests purpose as one of several general levels of intent, (in substitution for the old concepts of general and specific intent), Perceval provides no support as to why this court should hold that the “purpose standard” was the standard intended by Congress. He makes no attempt to refute the evidence indicating that Congress contemplated a “knowing standard”.
The “knowing standard” is clearly identified in the legislative history. Thus, we conclude that this was the standard Congress intended to be applied. Old section 1792 was revised and became the current section 1791. The legislative history indicates that Congress adopted the committee’s report on proposed section 1791. 130 Cong.Rec. No. 4, S. 264-65 (daily ed. Jan. 26, 1984) (statement of Sen. Laxalt). That report explains that a knowing state of mind requirement will be read into the statute. “[T]he conduct, [provides, introduces, makes, possesses, procures, or otherwise provides] must, at a minimum, be committed knowingly.72” Criminal Code Reform Act of 1981, Senate Report No. 97-307, 1st Sess., p. 332. Footnote 72 elaborates, “No state of mind is specified in the section with respect to these elements [of the crime]. Accordingly, under the rule of construction in section 303(b), the state of mind read into the statute for the conduct elements is ‘knowing.’ ” Id. p. 332 n. 72.
In reliance on prior case law and the legislative history, we conclude that a violation of section 1791 must be committed “knowingly.” The trial court instructed the jury on the applicable definition of that term. Perceval admitted that he made the object, that it resembled a knife, and that he had possessed it for two weeks prior to being caught by the shop supervisor. The jury properly found that he knowingly possessed this weapon-like piece of steel.
III.
Perceval challenges 18 U.S.C. § 1791 as unconstitutionally vague and overbroad because there is no requirement of intent in the statute. We have held that a knowing standard of intent is a statutory element. Under Perceval’s reasoning, criminal statutes without an express requirement of intent are per se unconstitutional. This is inconsistent with our system of criminal law in which many codifications of common-law crimes do not mention an intent requirement but have been construed to include intent. Morissette, supra. Moreover, Perceval may not challenge the statute when his conduct is clearly covered by it. Parker v. Levy, 417 U.S. 733, 756, 94 S.Ct. 2547, 2561-62, 41 L.Ed.2d 439 (1974).
AFFIRMED.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_appnatpr | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Stanley Mills STANERT, Defendant-Appellant.
No. 84-5128.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 4, 1984.
Decided June 5, 1985.
Roger W. Haines, Jr., Maria T. Arroryo-Tabin, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Craig E. Weinerman, San Diego, Cal., for defendant-appellant.
Before GOODWIN, POOLE, and BOOCHEVER, Circuit Judges.
POOLE, Circuit Judge:
Stanley Mills Stanert appeals his conviction for conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. He contends that the district court improperly denied his pretrial motion to suppress evidence found at his residence and challenges the sufficiency and accuracy of the affidavit used to obtain the search warrant. We agree with appellant that he is entitled to an evidentiary hearing to challenge the validity of the search warrant.
I. Facts
On 7 December 1983, a California Municipal Court Judge issued a telephonic search warrant permitting police to search Stanert’s residence in Cardiff-by-the-Sea, California. In her oral affidavit in support of the warrant, Agent Hanlon, a San Diego Sheriffs officer assigned to the Narcotics Task Force, stated that she believed there to be a clandestine laboratory in the residence. Her information was largely based on information received by Drug Enforcement Administration (DEA) Agent Black-lock. Blacklock was standing next to Hanlon when she delivered her oral affidavit, and the affidavit related the following facts.
The day before, an anonymous male had phoned Blacklock to inform him that the occupants of 2476 Newcastle Drive were using ether either to free-base cocaine or to manufacture some type of drug. The caller stated that he was a biochemist familiar with the smell of ether and that this smell was very strong in the evening hours throughout the neighborhood. The next day a different anonymous male phoned Blacklock also to complain of a strong ether smell emanating from the residence. The second caller stated that he had walked by the residence and observed the doors on each side of the house open as if ventilating the residence. In addition, the caller informed Blacklock that the occupant of the house drove a white Mercedes Benz automobile with California license plates ORZ 572 and had identified himself to the caller as “Stan.” Blacklock checked with the California Department of Motor Vehicles and discovered that the license number was listed to a 1964 Mercedes Benz registered to defendant at the residence in question. He also checked DEA records and discovered that Stanert was suspected of being involved in marijuana and cocaine smuggling and that in 1980, Stanert had been arrested in Panama with approximately 14 pounds,of cocaine.
Blacklock then contacted Agent Nielsen of the Internal Revenue Service (IRS). Nielsen informed Blacklock that as part of a continuing investigation being conducted by the IRS, a confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. Black-lock knew the informant, and from his own personal participation in several investigations, knew the informant to be reliable. Blacklock advised Hanlon that he had never known the informant to give false or misleading information.
Based on the complaints by the anonymous callers of the strong ether smell, Hanlon and another agent went to the vicinity of Stanert’s residence whereupon they also detected the overwhelming odor of ether. When the agents arrived at the residence, the doors to the house were closed, and the officers observed a vehicle that appeared to be a Mercedes Benz. The previous year, Hanlon had investigated a clandestine laboratory at the residence which had blown up due to the ignition of ether fumes.
Hanlon set forth the foregoing facts in an oral affidavit to a judge of the Municipal Court of San Diego County. The judge of that court thereupon issued a search warrant for Stanert’s residence. Agents executed the warrant and seized cocaine, scales, $3,650 in cash and drug paraphernalia. Neither laboratory equipment nor ether was found on the premises. Stanert was arrested, and soon after, a federal grand jury returned a one-count indictment charging him with a violation of 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute).
Stanert sought suppression of all items seized during the search of the residence. He challenged both the sufficiency and veracity of Hanlon’s affidavit. Stanert requested an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), claiming that the affidavit contained the following material misrepresentations and omissions: (1) Hanlon misrepresented the information given by the 6 December 1983 anonymous caller because that caller never stated that the occupants of the house were using ether to manufacture some type of drug and only told Blacklock that it was the caller’s opinion that the occupants were probably free-basing cocaine; (2) Hanlon’s representations concerning the smell of ether were fabricated and untrue; (3) Hanlon misrepresented by omission Stanert’s Panama arrest by failing to inform the judge that the government’s records indicated that Stanert apparently had not been convicted of any offense; (4) Hanlon misrepresented the earlier explosion at Stanert’s residence by failing to tell the judge that Stanert had purchased and moved onto the property some time after this explosion; and (5) Hanlon neglected to advise the judge that the agents had unsuccessfully sought a search warrant from another judge. Stanert also contended that the confidential informant was Louis Villar and that Villar could not have told Nielsen that defendant was involved in the manufacturing of synthetic cocaine because such a substance does not exist. Stanert asked the court to conduct an in camera hearing on the informant’s identity pursuant to United States v. Kiser, 716 F.2d 1268 (9th Cir.1983).
The district court found that Stanert had not established “enough of a position in order to suppress the warrant.” Thus, Stanert’s motion for an evidentiary hearing was denied because Stanert had failed to present evidence sufficient to justify suppression. Stanert was convicted on stipulated facts of a new charge of violating 21 U.S.C. § 846 (conspiracy to possess with intent to distribute a controlled substance) brought in a superceding information. The district court sentenced him to a three-year term. This appeal followed.
II. Sufficiency of the Affidavit.
A search warrant, to be valid, must be supported by an affidavit establishing probable cause. In reviewing the validity of a search warrant, a court is limited to the information and circumstances contained within the four corners of the underlying affidavit. United States v. Taylor, 716 F.2d 701 (9th Cir.1983). Stanert argues that the Hanlon affidavit failed to support the necessary determination of probable cause to believe that his residence housed an illicit laboratory. We disagree.
Probable cause determinations are to be made by viewing the “totality of the circumstances” set forth in the affidavit. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Because probable cause is a fluid concept not readily, or even usefully, reduced to a neat set of legal rules,
[t]he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
Id. 462 U.S. at 238, 103 S.Ct. at 2332.
We apply a narrow standard of review to a magistrate’s decision to issue a search warrant. United States v. Estrada, 733 F.2d 683, 684 (9th Cir.1984). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.” Gates, 462 U.S. at 238,103 S.Ct. at 2332. We may not reverse such a conclusion unless the magistrate’s decision is clearly erroneous. United States v. Estrada, 733 F.2d at 684; United States v. Seybold, 726 F.2d 502, 503 (9th Cir.1984).
The judge in this case issued the search warrant on the basis of the Hanlon oral affidavit. We find that the totality of circumstances as set forth in the affidavit provided the judge with a substantial basis for concluding that probable cause existed to search Stanert’s residence.
A confidential informant had identified Stanert as an individual who was allegedly manufacturing cocaine. “To credit a confidential source’s information in making a probable cause determination, the affidavit should support an inference that the source was trustworthy and that the source’s accusation of criminal activity was made on the basis of information obtained in a reliable way.” United States v. Landis, 726 F.2d 540, 543 (9th Cir.), cert. denied, — U.S. -, 104 S.Ct. 2688, 81 L.Ed.2d 882 (1984). Although the tip in this case came from an informant who had demonstrated reliability, the information reported represents a bare conclusión which fails to reveal the informant’s basis of knowledge, i.e., whether the informant was relying on something more substantial than casual rumor. In addition, the statement does not purport to reveal the location of the alleged laboratory and certainly does not locate it at 2476 Newcastle Drive.
These deficiencies, however, do not foreclose a finding of probable cause. Under a totality of the circumstances analysis, “a deficiency in one [area] may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Gates, 462 U.S. at 233, 103 S.Ct. at 2329. In this case, the judge was presented with other information which, when combined with the tip of the confidential informant, enabled him to conclude that there was “a fair probability that contraband or evidence of crime” would be found in Stanert’s house. Id. at 238, 103 S.Ct. at 2332.
Two citizens had phoned Blacklock to report that Stanert’s residence emitted a strong odor of ether, and this odor was corroborated by Hanlon and another agent. One of the callers had advised Blacklock that the occupants of the house were using the ether to free-base cocaine or manufacture drugs. Hanlon informed the judge that she had received instruction that ether is a solvent used in the preparation of several illicit substances, including cocaine. See United States v. Willis, 633 F.2d 930 (10th Cir.1980), cert. denied, 449 U.S. 1129, 101 S.Ct. 950, 67 L.Ed.2d 117 (1981) (affiant stated that based on his personal experiences of seven and a half years as a drug agent, he knew ether was a necessary precursor in the manufacture of amphetamines); United States v. Park, 531 F.2d 754 (5th Cir.1976) (smell of ether supported probable cause to believe that suspect was illegally manufacturing drugs).
Moreover, Hanlon had investigated an illicit lab at the residence that had exploded the year before due to the ignition of ether fumes. This explosion indicates that Stanert had previously been engaged in the illegal manufacture of controlled substances. See United States v. Harris, 403 U.S. 573, 581, 91 S.Ct. 2075, 2080, 29 L.Ed.2d 723 (1971) (prior seizure of a sizable stash of illicit whiskey in an abandoned house under the defendant’s control indicated that the defendant had previously trafficked in this contraband). Such prior behavior “made the charge against [Stanert] much less subject to scepticism than would be such a charge against one without such a history.” Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960). Besides the laboratory explosion at the residence, Stanert’s “history” also included a 1980 arrest in Panama for possession of approximately 14 pounds of cocaine. The large amount of cocaine involved in this arrest suggests that Stanert was close to the source of the drug, thereby giving added weight to the present charge that Stanert was in fact manufacturing the drug.
Although no single piece of evidence by itself is conclusive, viewed together the “totality of the circumstances” was sufficient to establish probable cause to believe that evidence of drug-related activity would be found at Stanert’s residence.
III. Omissions or misrepresentations
Stanert argues that the warrant affidavit contains material omissions and false statements that negate its facial showing of probable cause. See Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).
In Franks, the Supreme Court held that a defendant could challenge a facially valid affidavit by making a substantial preliminary showing that “(1) the affidavit contains intentionally or recklessly false statements, and (2) the affidavit purged of its falsities would not be sufficient to support a finding of probable cause.” United States v. Lefkowitz, 618 F.2d 1313, 1317 (9th Cir.), cert. denied, 449 U.S. 824, 101 S.Ct. 86, 66 L.Ed.2d 27 (1980). Where the defendant makes such a showing, the Fourth Amendment requires that a hearing be held at the defendant’s request. Franks, 438 U.S. at 155-56, 98 S.Ct. at 2676. If after the limited evidentiary hearing the court concludes that the magistrate or judge in issuing the warrant was misled by information in the affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, then suppression is an appropriate remedy. United States v. Leon, — U.S.-, 104 S.Ct. 3405, 3421, 82 L.Ed.2d 677 (1984).
In his motion for an evidentiary hearing before the district judge, Stanert raised six alleged misrepresentations or omissions. The court denied the motion. Because we find that Stanert has made a sufficient showing with respect to four inaccuracies or omissions which were material to the finding of probable cause, we reverse and remand for a limited evidentiary hearing.
In her affidavit, Hanlon informed the judge that one of the callers reported to Blacklock that the occupants of 2476 Newcastle Drive were using ether either to free-base cocaine or to manufacture drugs. Stanert contends that this statement is inaccurate in two respects and points to Blacklock’s investigative report for support. In that report which appellant submitted to the district court, Blacklock writes that the caller “opined that the resident of 2476 Newcastle was probably free basing cocaine.” Thus, according to the report, the caller never suggested that appellant was operating a clandestine laboratory, and furthermore, his statement concerning appellant’s alleged cocaine use was but an opinion apparently based on speculation. The misstatement by Hanlon in the affidavit, however, implies that the caller had personally observed drug activity at the residence.
Second, Hanlon failed to inform the judge that while appellant had been arrested in Panama back in 1980, it appeared that he had not been convicted of any offense. The Government, however, contends that Hanlon’s failure to inform the judge of the apparent disposition of appellant’s Panamanian arrest was not intentional or reckless. It argues that Hanlon did not know whether appellant had been convicted of possessing cocaine, and that since the affidavit spoke only in terms of an arrest, the reasonable reader would conclude that no disposition was known.
In Lefkowitz, 618 F.2d at 1317 n. 3, this court assumed without deciding, that the Franks rationale permits an attack on search warrants obtained by affidavits marred by omissions of facts. Today, we expressly hold that the Fourth Amendment mandates that a defendant be permitted to challenge a warrant affidavit valid on its face when it contains deliberate or reckless omissions of facts that tend to mislead. See United States v. Williams, 737 F.2d 594, 604 (7th Cir.1984).
The Supreme Court in Franks noted that the Warrant Clause of the Fourth Amendment takes the affiant’s good faith as its premise. 438 U.S. at 164, 98 S.Ct. at 2680. Moreover, “[b]ecause it is the magistrate who must determine independently whether there is probable cause, ... it would be an unthinkable imposition upon his authority if a warrant affidavit, revealed after the fact to contain a deliberately or recklessly false statement, were to stand beyond impeachment.” Id. at 165, 98 S.Ct. at 2681. The use of deliberately falsified information is not the only way by which police officers can mislead a magistrate when making a probable cause determination. By reporting less than the total story, an affiant can manipulate the inferences a magistrate will draw. To allow a magistrate to be misled in such a manner could denude the probable cause requirement of all real meaning. See id. at 168, 98 S.Ct. at 2682.
Clear proof of deliberate or reckless omission is not required. See United States v. Chesher, 678 F.2d 1353, 1362 (9th Cir.1982). Such proof is reserved for the evidentiary hearing. Id. At this stage, all that is required is that the defendant make a substantial showing that the affiant intentionally or recklessly omitted facts required to prevent technically true statements in the affidavit from being misleading-
Although Hanlon might not have known precisely what the disposition of Stanert’s 1980 arrest was, it appears that she was aware that DEA records suggested that Stanert had not been convicted of any charge. Blacklock’s investigative report clearly states that according to DEA records it appeared that Stanert had not been convicted. As Stanert points out, Blackloek was the agent who informed Hanlon of the Panamanian arrest, and he was standing next to Hanlon when she submitted her oral affidavit to the judge via telephone. It is therefore reasonable to conclude that Hanlon was informed of the fact that Stanert had apparently not been convicted of any charge stemming from his 1980 arrest in Panama. Moreover, the mere fact that the affidavit spoke only in terms of an arrest does not mean that failure to inform the judge of the apparent disposition of the charge was not misleading. Inclusion of the information serves to weaken the significance of Stanert’s arrest for possession of 14 pounds of cocaine because the apparent absence of a conviction would raise doubts as to whether Stanert had any connection with the cocaine which was seized.
Finally, Stanert contends that Hanlon misrepresented the earlier explosion at Stanert’s residence by failing to tell the judge that Stanert purchased and moved onto the property after the explosion. The Government argues that the omission was not intentional or reckless because Hanlon reported the explosion for the limited purpose of illustrating the danger which ether fumes pose. We find this argument untenable.
The fact that Hanlon reported the site of the explosion to be Stanert’s address would clearly leave a judge reviewing the affidavit with the impression that Stanert was residing at the house when the explosion occurred. When this impression is coupled with the fact that the cause of the explosion was the ignition of ether fumes escaping from an illicit laboratory, the logical and reasonable inference is that Stanert was the operator of the lab. Such an inference is quite damaging considering the current suspicion being leveled at the defendant. Thus, we conclude that Stanert has made a sufficient showing that Hanlon’s nondisclosure of the previous ownership of the residence caused the information actually reported to be misleading, and that this nondisclosure was at least reckless.
Standing alone, Stanert’s substantial preliminary showing that the affidavit contained reckless or deliberate falsities and omissions is insufficient to warrant a Franks hearing. A defendant challenging an affidavit must also show that the affidavit purged of those falsities and supplemented by the omissions would not be sufficient to support a finding of probable cause. See Franks, 438 U.S. at 171-72, 98 S.Ct. at 2684. The effect of the misrepresentations and omissions on the existence of probable cause is considered cumulatively. United States v. Esparza, 546 F.2d 841, 844 (9th Cir.1976). We must determine, therefore, whether the affidavit, once corrected and supplemented, would provide a, magistrate with a substantial basis for concluding that probable cause existed.
The confidential informant had identified Stanert as an individual allegedly manufacturing cocaine. As we have previously stated, this tip standing alone does not provide the basis for a magistrate’s determination that there was probable cause to search Stanert’s residence. The only additional material in the affidavit suggesting criminal activity at the residence was (1) the reports of two anonymous citizens that.-Stanert’s residence was emitting ether fumes, (2) the corroboration of the odor by Hanlon and another agent, and (3) the statement by Hanlon that ether is a solvent used in the preparation of several illicit substances, including cocaine. Ether, however, is a noncontraband substance having a number of legitimate uses. United States v. Tate, 694 F.2d 1217, 1221 (9th Cir.1982), vacated on other grounds, — U.S. -, 104 S.Ct. 3575, 82 L.Ed.2d 873 (1984). It is a very common solvent, and is also used to start engines. Id.
The confidential informant did state that Stanert was manufacturing cocaine; however, we have no indication of the basis for the informant’s conclusion. The informant could very well have been reporting a casual rumor generated from the neighbors’ olfactory perception that Stanert’s residence was emitting a strong ether smell. In fact, one of the anonymous citizens speculated that Stanert was probably using the ether not to manufacture drugs but to free-base cocaine.
Although we are mindful that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause,” Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 590, 21 L.Ed.2d 637 (1969), we also recognize that “[s]ufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.” Gates, 462 U.S. at 239, 103 S.Ct. at 2332. “In order to ensure that such an abdication of the magistrate’s duty does not occur, courts must continue to conscientiously review the sufficiency of affidavits on which warrants are issued.” Id. Upon reviewing the sufficiency of the modified affidavit, we conclude that it fails to provide a substantial basis for concluding that probable cause existed to search defendant’s residence. Thus, Stanert has met the second prong of the Franks test and is entitled to an evidentiary hearing on his allegations.
IV. In Camera hearing
Stanert also contends that he is entitled to either an in camera or evidentiary hearing, or both, since he made a sufficient showing that the affidavit misrepresented or invented information supplied by a confidential informant. See United States v. Kiser, 716 F.2d 1268 (9th Cir.1983). Stanert’s offer of proof, however, falls short of the substantial preliminary showing required by Kiser.
In Kiser, this court held that a defendant who claims a warrant affidavit misrepresents or invents information supplied by a confidential informant is, in some instances, entitled to a Franks hearing. Id. at 1271. We noted, however, that the public interest imposes unique procedural requirements and evidentiary burdens on a defendant who advances such a claim. Id.
In Kiser, the defendant’s offer of proof consisted primarily of the affidavit of one Ericson who the defendant alleged was in fact the confidential informant. Ericson’s affidavit was factually similar to the warrant affidavit thus providing preliminary evidence that Ericson was indeed the affiant’s informant. However, Ericson’s affidavit also differed in significant respects with the warrant affidavit so as to cast doubt on the affiant’s veracity. The court found that because defendant’s offer of proof constituted a substantial preliminary showing that Ericson was the informant and that the warrant affidavit misstated important facts reported by Ericson, an ex parte, in camera hearing was called for to determine whether the defendant’s suspicion was, in fact, correct. Id. at 1273. If during the hearing, the court concluded that Kiser had correctly identified the informant, the hearing would be extended for the purpose of determining if the defendant is entitled to a Franks hearing under the traditional test. 716 F.2d at 1273.
Here, Stanert has alleged that Louis Villar is the confidential informant. Unlike Kiser, however, Stanert does not offer any proof to support his claim. Furthermore, Stanert claims that the affiant must have misrepresented or invented the information from Villar because the substance synthetic cocaine does not exist and has never been manufactured. Even assuming that Stanert is correct about the nonexistence of synthetic cocaine, his assertion does not in any way constitute a showing that (1) the informant did not in fact tell the agents that Stanert was manufacturing such a substance, or (2) the affiant knowing this information to be an impossibility reported it to the judge in an effort to mislead him.
Stanert has not supplied any evidence that Louis Villar, the alleged informant, knew or believed that synthetic cocaine does not exist. Neither has he supplied any evidence that it is generally known or believed by the public that there is no such thing as synthetic cocaine. Furthermore, even if the informant knew that synthetic cocaine did not exist and made up the story to the police, this would not warrant suppression. “The deliberate falsity or reckless disregard whose impeachment is permitted today is only that of the affiant, not of any nongovernmental informant.” Franks, 438 U.S. at 171, 98 S.Ct. at 2684.
In addition, Stanert has not shown that the agents misled the judge by reporting information that they knew was false. As defense counsel admits in his affidavit, two of the five defense attorneys he contacted and who regularly handle cases involving controlled substances have heard of the term synthetic cocaine as it relates to theory. During the hearing before the district court, counsel for the Government stated that she has heard of cases involving synthetic cocaine and that it is something that exists. Thus, it is quite reasonable that the affiant in this case reported the informant’s tip in good faith without any reckless disregard.
V. Conclusion
We vacate Stanert’s conviction and remand to the district court for a limited evidentiary hearing on the warrant affidavit. The district court should determine whether the affidavit was tainted with false or recklessly inaccurate information from the officer and, if so, whether the affidavit can be purged without destroying the foundation for the warrant.
AFFIRMED IN PART, AND VACATED AND REMANDED IN PART.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_method | I | What follows is an opinion from a United States Court of Appeals. Your task is to determine the nature of the proceeding in the court of appeals for the case, that is, the legal history of the case, indicating whether there had been prior appellate court proceeding on the same case prior to the decision currently coded. Assume that the case had been decided by the panel for the first time if there was no indication to the contrary in the opinion. The opinion usually, but not always, explicitly indicates when a decision was made "en banc" (though the spelling of "en banc" varies). However, if more than 3 judges were listed as participating in the decision, code the decision as enbanc even if there was no explicit description of the proceeding as en banc.
NIAGARA FIRE INS. CO. OF NEW YORK, N. Y., v. RALEIGH HARDWARE CO., Inc., and nine other cases.
Nos. 3326-3335.
Circuit Court of Appeals, Fourth Circuit.
Jan. 10, 1933.
Stanley C. Morris, of Charleston, W. Va. (Steptoe & Johnson, ¡lames, M. Guiher, and J. Homer Davis, 2d, all of Clarksburg, W. Va., on the brief), for appellants.
James H. McGinnis and Ben H. Ash-worth, both of Beekley, W. Va. (David D. Ashworth, of Beekley, W. Va., on the brief), for appellee.
Before PARKER, NORTH’COTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
These are appeals in ten actions at law instituted to recover on fire insurance policies and heard together in the court below. The plaintiff was the Raleigh Hardware Company and the defendants were insurance companies that had issued policies on the store building of plaintiff, which was destroyed by fire on April 9, 1931. ' In each ease there was verdict and judgment for the plaintiff, and the defendants have appealed. The appeals present four points: (1) Whether the court below erred in holding as a matter of law that plaintiff was not barred of recovery for failure to file proofs of loss within the time limited by the policies; (2) whether the court erred in instructing the jury that it might return a verdict for the full amount of the policies if it found that there was a total loss within the meaning of the valued policy statute of West Virginia; (3) whether there was prejudicial error in the admission and rejection of testimony; and (4) whether there was error in refusing to set aside the verdict and grant a new trial.
The policies, which are in the form prescribed by the statute of West Virginia (Acts of 1923, ch. 18, § 68), require that “the insured shall, within sixty days after the fire, unless such time is extended in writing by this Company, render to this Company a proof of loss, signed and sworn to by the insured, stating,” ete. A subsequent clause provides that, “No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the fire.” The fire occurred, as stated above, on April 9th. The proofs of loss were not filed until June 13th, more than sixty days thereafter. There is uneontradicted evidence, however, that the fire continued to bum in the basement of the building for a week or more after it began. And, following prompt notice by plaintiff that the fixe had occurred, the companies sent adjusters, who as late as the latter part of May were negotiating with plaintiff in an attempt to arrive at an adjustment of the loss.
We agree with plaintiff that under no interpretation of the policy would the sixty-day period for furnishing proofs of loss begin to run until after the fire had sufficiently abated to allow a full inspection of the property for the purpose of determining the extent of the loss. National Wall Paper Co. v. Associated Manufacturers’ Mutual Fire Ins. Co., 175 N. Y. 226, 67 N. E. 440; Slocum v. Saratoga & Washington Fire Ins. Co., 149 App. Div. 867, 869, 134 N. Y. S. 72. Such inspection was of particular importance in this ease; for a close view of the basement, where the fire was burning, and of the foundations of the walls left standing was necessary to determine whether the loss was total within the meaning of the valued policy law of West Virginia. The evidence- as to the length of time the fire was burning was sufficient to warrant the eobclusion that the proofs of loss were furnished within the time limited by the policy; but this would he a question for the jury. The faitee to submit it to the jury is immaterial, however, in the view that we take of the West Virginia law which we shall presently discuss.
And wo agree, also, that the defendants would he held to have waived the condition requiring that proofs of loss be furnished within sixty days, if failure to comply with such condition resulted in a forfeiture under the laws of West Virginia. They entered into neg'otiations with plaintiff looking to an adjustment of the loss. In the course of the negotiations they were furnished by plaintiff with plans and specifications of the burned building and other information usually contained in proofs of loss. By their investigation of the fire and through their dealings with plaintiff, they secured all the information which the proofs were designed to furnish; and the negotiations for an adjustment were, in the absence of notice to the contrary, sufficient ground for plaintiff’s assuming that no further or moro formal proofs of loss were necessary. Plaintiff’s delay in furnishing the proofs of loss was in a very real sense, therefore, tho result of the conduct of the defendants, and it would he unconscionable to allow defendants to take advantage of tho delay. If the provision of the policy requiring proofs of loss within sixty days were a condition of recovery, defendants would be held to have waived it by their conduct, or, what is the same thing, would he estopped to assert it. Concordia Ins. Co. v. School District, 282 U. S. 545, 550, 51 S. Ct. 275, 75 L. Ed. 528; Id. (C. C. A. 10th) 40 F.(2d) 379; Firemen’s Ins. Co. v. Brooks (C. C. A. 6th) 32 F.(2d) 451, 65 A. L. R. 909; Continental Ins. Co. v. Fortner (C. C. A. 6th) 25 F.(2d) 398; Lusk v. American Cent. Ins. Co., 80 W. Va. 39, 91 S. E. 1078; American Ins. Co. v. Dannehower, 89 Ark. 111, 115 S. W. 950; Helvetia Swiss F. Ins. Co. v. Edward P. Allis Co., 11 Colo. App. 264, 53 P. 242; Teasdale v. City of New York Ins. Co., 163 Iowa, 596, 145 N. W. 284, Ann. Cas. 1916A, 591 and note; 26 C. J. 403; 14 R. C. L. 1348.
But the determination of the question as to whether tho proofs of loss were furnished in accordance with the terms of the policy does not depend upon the question of waiver or nice inquiries into the duration of the fire; for under tho law of West Virginia failure to file proofs of loss within the sixty days limited by the policy merely delays and does not bar action. Raleigh Hardware Co. v. Williams, 106 W. Va. 85, 144 S. E. 879, 880; Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W. Va. 129, 71 S. E. 194; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672, 20 S. E. 670. The provision of the statutory form relating to proofs of loss was construed in the recent case of Raleigh Hardware Co. v. Williams, supra; and in the light of what was said in that ease there can be no question as to tho rule applicable in West Virginia. The court, speaking through Judge Maxwell, said: “It is not provided in the policy that it shall be void, if proofs are not filed within the stipulated period; but there is a general provision that no suit shall be brought on tho policy unless all the requirements of the policy have been complied with, and unless such suit he instituted within twelve months next after tho fire. The only effect of noncompliance with the requirement for proof of loss is to postpone the right of action of the insured. ‘Although a policy of fire insurance requires that proof of loss shall he furnished within 60 days after the fire oceurs, unless the time he extended hy .the company, but there is no provision therein forfeiting the poliey for failure to comply with this requirement, the effect of such provision is to postpone right of action until such proof be furnished, hut not to wholly destroy all right of recovery’thereon.’ Smith Insurance Agency v. Hamilton Fire Insurance Co., 69 W. Va. 129, 71 S. E. 194, pt. 6, syl. Proofs of loss merely fix the time when a loss becomes payable and when an action, may be maintained to enforce a liability. Rheims v. Standard Fire Insurance Co., 39 W. Va. 672, 20 S. E. 670. See, also, Munson v. German Insurance Co., 55 W. Va. 423, 47 S. E. 160, and Adkins v. Globe Fire Insurance Co., 45 W. Va. 384, 32 S. E. 194. These cases go no further in this phase than to hold that the filing of proofs of loss is a condition precedent- to action on the poliey. This holding is in conformity with general authority.”
It is true that in matters of general insurance law, we are not bound by state decisions. Fountain & Herrington v. Mutual Life Ins. Co. (C. C. A. 4th) 55 F.(2d) 120; Washburn & Moen Mfg. Co. v. Reliance Marine Ins. Co., 179 U. S. 1, 21 S. Ct. 1, 45 L. Ed. 49; Swift v. Tyson, 16 Pet. 1, 10 L. Ed. 865. But this is not a question of general insurance law. It is a question of the interpretation of language embodied in a statute of West Virginia; for the policies of insurance, by express provision of the statute, embody language which the statute prescribes. An interpretation of the language of the policies, therefore, is an interpretation of the language of-the statute itself; and it is well settled that we are bound by the interpretation which the courts of a state place upon the language of its statutes. Elmendorf v. Taylor, 10 Wheat. 152, 6 L. Ed. 289; Burgess v. Seligman, 107 U. S. 20, 2 S. Ct. 10, 27 L. Ed. 359; Savings Bank of Richmond v. National Bank of Goldsboro (C. C. A. 4th) 3 F.(2d) 970, 39 A. L. R. 1374.
The duty of the federal courts to follow state decisions in the interpretation of stata statutes is too well settled to admit of serious discussion. The rule has been followed, not only with respect to statutes dealing with loeal matters, but also- with respect to those affecting general commercial law, such as the Negotiable Instrument Law, which was dealt with in the case of Savings Bank of Richmond v. National Bank of Goldsboro, supra. And the rule is followed as to state statutes dealing with insurance. Iowa Life Ins. Co. v. Lewis, 187 U. S. 335, 355, 23 S. Ct. 126, 47 L. Ed. 204; Concordia Ins. Co. v. School District, supra, 282 U. S. 545, 552, 51 S. Ct. 275, 75 L. Ed. 528; Union Indemnity Co. v. Dodd (C. C. A. 4th) 21 F.(2d) 709, 55 A. L. R. 735; Parr v. Ins. Co. (D. C.) 44 F.(2d) 567; and see Sun Ins. Office v. Scott, 284 U. S. 177, 182, 52 S. Ct. 72, 76 L. Ed. 229. Defendants point to decisions in which federal courts have followed the general law instead .of loeal decisions in construing policies, in states where the form of poliey is prescribed by loeal statute. See Niagara Fire Ins. Co. v. Pospisil (C. C. A. 8th) 52 F.(2d) 709, 79 A. L. R. 404, and Bank of South Jacksonville v. Hartford Fire Ins. Co. (D. C.) 1 F.(2d) 43. In none of these, however, was there express decision of the point which is raised here, viz., whether a decision by a state court on the meaning- of a provision of a statutory form of poliey must be followed as an interpretation of the statute. As indicated above, we think that this question must be answered in the affirmative. When the Legislature of a state prescribes the language which a poliey must contain, judicial interpretation of that language is in effect judicial interpretation of the statute itself, and becomes a part of the statute. Not to follow such interpretation by the Supreme Court of the state, therefore, would be to ignore the statute and to enforce a contract different in terms'from that which the Legislature of the state has prescribed.
We come then to the second question, i. e., whether the court erred in instructing the jui-y that it might return a verdict for the full amount of the policies upon a finding that there was a total loss within the meaning of the valued poliey statute of West Virginia. Defendants do not controvert the fact that there is evidence to show a total loss within the meaning of that statute, but they contend that the statute was repealed by implication by the enactment of the uniform policy law of 1923 and was not re-enacted until the adoption of the Code of West Virginia in 1931.
The valued poliey statute was enacted by the Legislature of West Virginia in 1899. Its apparent purpose was to avoid litigation over the amount of damages sustained by an) insured and to prevent the evils arising from overinsurance. It was carried forward in the Code of 1923 as section 40a of chapter 34, and is as follows: “§ 40a. Liability of fire insurance company in case of total or partial loss.—All fire insurance companies doing business in this state shall be liable, in ease of total loss by fire or otherwise, as stated in the policy' on any real estate insured, for the whole amount of insurance stated in the policy of insurance upon said real estate; and in case of partial loss by fire or otherwise, as aforesaid, of the real estate insured, the basis upon which said loss shall be computed, shall be the amount stated in the policy of insurance effected upon said real estate, and the insured shall have the right to enforce his claim for said loss in any court having jurisdiction. (Acts 1899, e. 33.)”
The statute upon which defendants rely as repealing this provision is section 68 of chapter 18 of tho Acts of 1923, which prescribes the uniform fire insurance policy for use in the state. The provision of the statutory policy upon which they rely is as follows : “ * * ' Does insure ......and legal representatives, to tho extent of the actual cash value (ascertained with proper deductions for depreciation) of the property at the time of loss or damage, but not exceeding the amount which it would cost to repair or replace the same with material of like kind and quality within a reasonable time after such loss or damage.”
Even if there were nothing before us except the valued policy statute and the uniform policy statute of 1923, we would not think that the former had been repealed by the latter. It is elementary that statutes are to be construed together when possible, and that repeals by implication are not favored. 25 R. C. L. 918, 939; Beck v. Cox, 77 W. Va. 442, 87 S. E. 492. The valued policy statute has relation to a specific matter; insurance on real estate. The language of the uniform policy has relation to insurance generally. Both will be given effect if the general language of the uniform policy he construed as applying generally, and the valued policy statute be construed as creating an exception to its general application. The rule is well settled that “where there are two statutes upon the same subject, the earlier being special and the later general, the presumption is, in the absence of an express repeal, or an absolute incompatibility, that the special is intended to remain in force as an exception to the general.” Washington v. Miller, 235 U. S. 422, 428, 35 S. Ct. 119, 59 L. Ed. 295; Rodgers v. U. S., 185 U. S. 83, 87-89, 22 S. Ct. 582, 584, 46 L. Ed. 816; Townsend v. Little, 109 U. S. 504, 512, 3 S. Ct. 357, 27 L. Ed. 1012.
The rule stated in Sedgwick on the Construction of Statutory and Constitutional Law, p. 98, quoted with approval in Rodgers v. U. S., supra, is as follows: “The reason and philosophy of tho rule is, that when the mind of the legislator has been turned to tho details of a subject, and he has acted upon it, a subsequent statute in general terms or treating the subject in a general manner, and not expressly contradicting the original act, shall not be considered as intended to affect the more particular or positive previous provisions, unless it is absolutely necessary to give tho latter act such a construction, in order that its words shall have any meaning at all.”
But in addition to this well-settled rule of interpretation, we have the decisions in West Virginia, the opinion of the Code revisers and the opinion of the Legislature all supporting the conclusion to which it leads. Eight years after the valued policy statute was enacted, the Legislature of West Virginia, by section 68 of chapter 77 of the Laws of 1907, provided that no fire insurance policy should he issued on property within the state except in the form used by fire insurance companies incorporated under tho laws of the state of New York, with such changes and additions as the Insurance Commissioner might deem proper. This New York standard form used the same language as is used in the form incorporated in the statute by the aet of 1923; and in Hinkle v. North River Insurance Company, 76 W. Va. 681, 75 S. E. 54, the position was taken that the effect of the aet of 3967 in adopting a form of insurance policy containing this language was to effect a repeal by implication of the valued policy law. The Supreme Court of Appeals of West Virginia, however, took the opposite view, holding that the Legislature by adopting a general form of fire insurance policy did not intend to repeal the valued policy act which dealt with a special matter. The same reasoning applies to the act of 1923. There can be no difference, so far as a question of this nature is concerned, between setting- forth a form of policy in a statute and providing by statute that policies shall boissued in a certain well-known form.
This was tho view taken by the revisers of tho Code of 3931, and it was evidently the-view taken by tho Legislature in adopting the-Code with both, the valued policy statute and' the uniform policy statute included therein. The revisers, in a note to the valued policy-section of the 393L Code (33-4-9), said: “Revisers’ Note—The portion of this section coming between the semicolons is a redraft. In Hinkle v. North River Insurance Co., 76 W. Va. 681 [75 S. E. 54], the court decided that this section was not repealed by § 68, e. 77, Acts 1967 (Code 1923, e. 34, § 68), although the latter section prescribed the New York. form of policy limiting the liability to the actual cash value of the property insured. Said § 68 was amended and reenacted by Acts 1923, e. 18, § 68, by way of incorporating a literal form of the policy, bu,t since the amended section seems to'do no more by way of literal incorporation than the original section did by way of reference, it is believed that § 40a, e. 34, Code 1923, was not affected by the amendment made in 1923 and it is therefore retained.”
We have considered the eases from other jurisdictions to which our attention is called by defendants; but we feel bound by the decision in the' case of Hinkle v. North River Ins. Co. And, even if the question were an open one, we do not think that under the authorities which we have cited we would be justified in holding that there had been a repeal by implication of the valued policy statute.
We can deal briefly with the third point. The following question was asked the witness J. 0, Freeman:. “In your opinion, would a reasonably prudent man use any portion of these walls, either the brick and tile walls or the basement walls, in rebuilding a building of like kind and character?” He answered : “I would tear out what is there and rebuild it of new material all the way through if it were mine.” The record shows that a motion was .made to strike out the answer, but does not show the ground of the motion. It is suggested here that the question was objectionable because, it did not include as an hypothesis that the reasonably prudent man be uninsured,’'and that the answer was not responsive because ¡fche witnéss answered as to what he would do and did not confine his answer to the conduct of the reasonably prudent man. But before defendants ¿an rely upon these points here, they must have made ¡them in the court below, not by. general objection or motion to strike out, but in a man-_ ner specifically calling the attention of the trial judge to the point made. But the exception, if properly taken, would not justify the granting of a new trial. The testimony objected to, when considered with the other testimony of the witness and a great mass of other testirb'ony bearing upon the question of total loss, could not have misled the jury or affected the' hesult of the case in any way.
Another group of exceptions relates to the examination of one Cooper. He had made an estimate of damage and cost of replacement, and on cross-examination, being asked what valuation he plaeed on the damage to a certain party wall, plaeed it at $6,-000. Defendants then offered in evidence a report of arbitrators signed by the witness, in which the damage of an adjoining owner in this party wall had been fixed at a very much smaller amount. The court excluded the report of the arbitrators on the ground that it would unnecessarily incumber the record, but ruled that defendants might cross-examine the witness with regard thereto. The witness was then questioned as to his valuation of the party wall, and admitted that he had valued it in the arbitration at $3,615. On redirect examination he testified that, in the arbitration, he had included only the wall to the line of the adjoining owner, and that the $6,000' valuation included its entire length. Defendants then asked to cross-examine the witness further on this matter, and the court refused to permit it.
We do not think that either of these rulings constitutes reversible error. When the court permitted cross-examination on the arbitrators’ report and the witness admitted the valuations plaeed on the wall therein, there was no reason for incumbering the record with the report. The matter of further cross-examination was a matter resting in the sound discretion of the trial judge, and while we think that, under the circumstances, he might well have permitted further cross-examination, we are not prepared to hold that he was guilty of an abuse of discretion in not doing so. In addition to this, any contradictory statement with relation to the value of the party wall was a matter, going merely to the weight of the witness’ testimony; and, even if his entire testimony as to the value of the wall were disregarded, the remaining items to which he testified would exceed the total of the insurance policies by a considerable amount. We have considered the ease of Patriotic Ins. Co. v. Franciscus (C. C. A. 8th) 55 F.(2d) 844, but the situation in that ease was very different from the situation here.
We need not discuss the fourth point. Nothing is better settled in the federal practice than that the setting aside of a verdict and the granting of a new trial is a matter resting in the sound discretion of the trial judge, and that we will not interfere with this discretion in the absence of abuse. There was no abuse in this case. Parties cannot .obtain from an appellate court a review of the facts or a ruling on the weight of evidence by assigning error with respect to a ruling on a motion for a new trial.
There was no error, and the judgments below will be affirmed.
Affirmed.
Question: What is the nature of the proceeding in the court of appeals for this case?
A. decided by panel for first time (no indication of re-hearing or remand)
B. decided by panel after re-hearing (second time this case has been heard by this same panel)
C. decided by panel after remand from Supreme Court
D. decided by court en banc, after single panel decision
E. decided by court en banc, after multiple panel decisions
F. decided by court en banc, no prior panel decisions
G. decided by panel after remand to lower court
H. other
I. not ascertained
Answer: |
songer_treat | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
EUSTER, Eugene H.; Fieramosca, Samuel; Lopez, Daniel; Hasbany, David; and Fallon, Martin J. Jr., Appellants, v. EAGLE DOWNS RACING ASSOCIATION, a Pennsylvania Corporation; Pennsylvania Horse Racing Commission; Johnson, Andrew R., Chairman of Pennsylvania Horse Racing Commission; and A. Marlyn Moyer and William D. Gross, Commissioners of the Pennsylvania Horse Racing Commission, Appellees.
No. 81-2432.
United States Court of Appeals, Third Circuit.
Argued March 2, 1982.
Decided May 17, 1982.
Rehearing and Rehearing In Banc Denied June 24,1982.
James J. Rodgers (Argued), Richard P. Brown, Jr., Joseph B. G. Fay, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants.
David H. Allshouse (Argued), Deputy Atty. Gen., Leroy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Civil Litigation, Harrisburg, Pa., for appellees.
Jon A. Baughman (Argued), Thomas B. Schmidt, III, Nancy J. Gellman, Richard M. Bernstein, Pepper, Hamilton & Scheetz, Philadelphia, Pa., for amicus curiae Jockeys’ Guild, Inc.
Before HUNTER, WEIS and HIGGIN-BOTHAM, Circuit Judges.
OPINION OF THE COURT
JAMES HUNTER, III, Circuit Judge.
This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania granting defendants’ motion for summary judgment. Plaintiffs-Appellants are owners and trainers of thoroughbred race horses in Pennsylvania. They brought this antitrust action against the Pennsylvania Horse Racing Commission (the “Commission”) and its members challenging the Commission’s rule which sets the fees to be paid to jockeys who ride at racetracks in the Commonwealth. Specifically, plaintiffs allege that the rule violates Section 1 of the Sherman Act, 15 U.S.C. § l. Defendants moved for summary judgment in the district court, pursuant to Fed.R.Civ.P. 56, on the ground that the “state action” exception to the antitrust laws enunciated in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943) precludes Commission liability. The district court entered an order and judgment, supported by a memorandum opinion, granting the motion for summary judgment. We will affirm.
FACTS AND PROCEDURAL HISTORY
The Pennsylvania legislature enacted the Pennsylvania Horse Racing Act in 1967. 15 P.S. §§ 2651-2675 (1980). The Pennsylvania Horse Racing Commission was established pursuant to this Act and was given broad authority over horse racing and betting:
Pursuant to the provisions of this act, the State Horse Racing Commission shall have power to supervise generally all thoroughbred horse race meetings in this State at which pari-mutuel betting is conducted. The commission may adopt rules and regulations not inconsistent with this act to carry into effect its purposes and provisions and to prevent circumvention or evasion thereof.
15 P.S. § 2652(a) (1980). The present appeal focuses on one such rule, Rule of Racing 9.15 (“Rule 9.15”). Rule 9.15 contains a jockey fee scale which was initially promulgated by the Commission in 1968 and was amended in 1978 to increase the schedule of fee payments. Appendix at A — 22.
Shortly before this action was filed in the district court, the Pennsylvania Division of the Horseman’s Benevolent and Protective Association, which represents owners-trainers of racing horses at various tracks in Pennsylvania, and three other individuals filed a lawsuit in the Commonwealth Court of Pennsylvania challenging the authority of the Commission to promulgate a rule setting the fees to be paid to jockeys. The Commonwealth Court held that the Commission exceeded its legislative authority and could not regulate the amount of compensation paid to jockeys. Gilligan v. Pennsylvania Horse Racing Commission, 46 Pa. Commw.Ct. 595, 407 A.2d 466 (1979). After the Commonwealth Court’s decision, the district court rejected the defendants’ argument that the state action exemption of Parker applied, relying on the decision of the Commonwealth Court in the Gilligan case.
The Commission then appealed the Commonwealth Court’s decision to the Supreme Court of Pennsylvania. In September 1980, the Supreme Court reversed the Commonwealth Court, holding that the Commission was authorized by the legislature to promulgate a jockey fee schedule. Gilligan v. Pennsylvania Horse Racing Comm’n, 492 Pa. 90, 422 A.2d 487 (1980). In light of the decision of the Pennsylvania Supreme Court, holding unambiguously that the Commission had authority to set jockey’s fees, the district court held that the defendants were immune from antitrust liability under the Parker doctrine.
DISCUSSION
In Parker, the United States Supreme Court held that the Sherman Act was inapplicable to certain state action. A raisin packer sued the California State Agricultural Commission to enjoin enforcement of the State’s Agricultural Prorate Act. That Act authorized the State Director of Agriculture and the Agriculture Commission to adopt marketing programs regulating the sale of certain produce. The plaintiff attacked the program as violative of the Sherman Act. The Supreme Court held that state regulatory programs were immune from the proscriptions of the Sherman Act. The Court found no language or legislative history of the Sherman Act indicating congressional intent to proscribe the behavior of a sovereign state. The Court held that state regulatory programs could not violate the Sherman Act because the Act is directed against “individual and not state action.” Id. 317 U.S. at 352, 63 S.Ct. at 314.
The Parker doctrine was recently discussed and reaffirmed in California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980). In Midcal, the Supreme Court set forth the appropriate standards for the state action exception as follows:
First, the challenged restraint must be “one clearly articulated and affirmatively expressed as state policy”; second, the policy must be “actively supervised” by the State itself.
445 U.S. at 105, 100 S.Ct. at 943. If these two standards are satisfied, the challenged restraint is immunized from antitrust liability.
The Midcal requirements are satisfied in the case before us. The ruling of the district court is amply justified by the Pennsylvania Supreme Court’s decision in Gilligan. In Gilligan, the court held that the Commission was authorized by the Horse Racing Act to promulgate the jockey fee scale at issue in this case. The court stated explicitly that the Act reflected a “clear legislative policy” to vest the Commission with broad supervisory powers over the “previously unlawful activity of thoroughbred horse racing.” 422 A.2d at 489. The court stated:
A pervasive system of regulation and supervision of the otherwise criminal activity was thus contemplated by the Commission’s broad legislative mandate, and a general rule making power was clearly and unmistakably conferred.
422 A.2d at 490 (emphasis in original).
Furthermore, the court observed that the rulemaking powers of the Commission should be construed liberally in light of the broad supervisory task necessary to accomplish the express legislative purpose:
The breadth of the Commission’s powers is required for the prevention of corruption and the maintenance of high standards and public confidence in racing. The imposition of a jockey fee schedule is simply part of a comprehensive scheme of regulation consistent with — indeed, necessary to accomplish these legislative goals.
422 A.2d at 490-91 (emphasis added).
The Pennsylvania Supreme Court also attached importance to the fact that when the legislature amended the Horse Racing Act in 1976, including the section enumerating the powers of the Commission, there was no attempt by the legislature to curtail the Commission’s authority to set jockey fees, authority which it had been exercising since 1968. Thus, the court concluded that “the legislature’s acquiescence in the Commission’s exercise of its rule-making power to set jockeys’ fees manifests approval thereof.” 422 A.2d at 491.
In Princeton Community Phone Book, Inc. v. Bate, 582 F.2d 706, 717 (3d Cir.), cert. denied, 439 U.S. 966, 99 S.Ct. 454, 58 L.Ed.2d 424 (1978) we discussed the problem of discerning when state authority to restrain competition exists. We noted that: As the Gilligan decision demonstrates, the action complained of in this case was clearly contemplated by the legislation in question. Indeed, in this regard Gilligan could not have been more explicit.
[T]he state need not have contemplated the precise action complained of as long as it contemplated the kind of action to which objection was made.
It is also clear that the jockey fee scale is “actively supervised” by the Commonwealth, within the meaning of that term as set forth in Midcal. In Midcal, the Supreme Court struck down the California wine-pricing system because the state neither established the prices, reviewed their reasonableness, regulated the terms of the fair trade contracts, monitored market conditions, nor engaged in any “pointed reexamination” of the program in question. 445 U.S. at 105-06, 100 S.Ct. at 943. The Mid-cal Court stressed that the state simply authorized price-setting and enforced the prices established by private parties. The Court made clear its concern: “The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement.” Id. 445 U.S. at 106, 100 S.Ct. at 943.
In the instant case, however, there is no question about the Commonwealth’s involvement in the challenged activity. The state Commission sets the jockey fees, pursuant to formal notice and hearing procedures. Appendix at 22. Furthermore, the Complaint does not allege a need for more state supervision; it alleges that the present supervision is biased in favor of the jockeys and that the Commission did not exercise sufficient independent judgment over the level of the fee scale. Complaint §§ 19 and 26. Appendix at A — 10, A — 11, A-12. The record does not support such an assertion. However, even if this averment were true, the promulgation of a jockey fee scale by means of Rule 9.15 differs from the scheme which the Supreme Court struck down in Midcal. In Midcal, private parties were authorized to set prices by themselves, without the further involvement of the state. Here, the regulation promulgated by the Commission itself contains the fees. There is no such abdication of price-fixing activity to private parties by the Horse Racing Commission. It is the state Commission itself which sets the fees.
The authorities relied upon by appellants are not persuasive in the present context. In many of these cases, the challenged restraint had not been clearly articulated as state policy. For example, in Cantor v. Detroit Edison Co. 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), defendant Detroit Edison gave its customers light bulbs as part of their electric service, and thereby, plaintiffs argued, restrained trade in the sale of light bulbs. The Supreme Court held that Detroit Edison was not exempt from the antitrust laws under the state action doctrine. The plurality attached great significance to the fact that the defendant was a private party, not a state agency or official. 428 U.S. at 591, 96 S.Ct. at 3117. The plurality also ruled that the decision to provide light bulbs was primarily that of the defendant, and not of the Michigan Public Service Commission, and that the state had no regulatory interest in distributing light bulbs. Id. at 584 — 85, 96 S.Ct. at 3114 — 15. The Michigan statute gave the state Public Service Commission “complete power and jurisdiction to regulate all public utilities in the state,” but the statute did not say whether a utility should or should not engage in the challenged conduct, i.e., the free distribution of light bulbs, and did not otherwise manifest a regulatory interest in the light bulb market. Id. at 584-85, 96 S.Ct. at 3114-15. These facts are clearly distinguishable from the case before us. Here, the precise challenged restraint, setting the jockey fee scale, falls within a “general rule making power . . . clearly and unmistakably conferred” by the legislature and which the Commonwealth’s highest court has deemed “necessary to accomplish” the goals identified by the legislature in passing the Horse Racing Act. Gilligan, 422 A.2d at 490-91.
Stauffer v. Town of Grand Lake 1981-1 Trade Cases ¶64,029 (D.Colo.1980), also relied upon by appellants, is inapposite as well. In Stauffer, the court noted that while a zoning board had broad statutory authority to regulate land use “for the purpose of monitoring health, safety, morals or the general welfare of the community,” the Colorado legislature “did not foresee, contemplate or intend” that zoning officials would engage in the conduct complained of in that case: use of their zoning authorization to promote their own interests and economic benefit. Id. at 76,330. In the present case there is no allegation to the effect that the Commission defendants used their authorization to promote their own personal and economic interests.
Appellants also argue that there are factual disputes in this case which should have prevented the district court from entering summary judgment and that they should have been given an opportunity for discovery. Both claims are without merit.
First, the state action exemption cases clearly indicate that this issue involves a question of law, generally an issue of statutory construction. Thus, the question of whether a governmental entity is subject to Sherman Act liability has generally been resolved on a motion to dismiss or a summary judgment motion. See, e.g., Princeton Community Phone Book, 582 F.2d 706. In the present case, any factual disputes that exist are on matters which are irrelevant to the issue before us: the applicability of the Parker doctrine. Second, it is important to note that this case had been pending in the district court for over two years before the summary judgment motion was filed. Plaintiffs chose, however, not to take any discovery in over two years of litigation; rather, they chose to rest on the allegations of the complaint in responding to the summary judgment motion.
Finally, appellants argue that the decision in the Gilligan case lacks an adequate factual basis and that the Commission never properly explained how its fee schedule deters criminal influence on thoroughbred horse racing. The state action doctrine was developed to avoid this sort of inquiry by federal courts into state legislative wisdom. In Parker itself, for example, the Supreme Court did not inquire into the necessity for, or wisdom of, the California marketing programs regulating the sale of certain produce, holding simply that these programs were immune from attack under the antitrust laws. Again, in Bates v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court held that the policy of restricting lawyer advertising was affirmatively expressed and actively supervised by the state and thus not subject to antitrust attack. However, the Court did not inquire into the wisdom of this policy. In Bates, the Court considered the necessity of the policy; but it did so only to determine whether the state had a compelling interest which could not be advanced by some other means which were less intrusive into the first amendment rights involved in that case. Id. at 363-79, 97 S.Ct. at 2698-2706.
The application of the Parker doctrine requires a federal court to make only the two determinations articulated in the Midcal decision: whether the scheme in question is a clearly articulated state policy and whether it is actively supervised. The district court would not be justified in looking into the wisdom or efficiency of using the regulation in question as a means of accomplishing the intended objectives.
CONCLUSION
19. For the foregoing reasons, the judgment of the district court will be affirmed.
. 15 U.S.C. § 1 states in relevant part:
Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony. . . .
. Defendants also premised their summary judgment motion on the ground that the injunctive and monetary relief sought against the Commission and its members was barred by the Eleventh Amendment. Because the district court granted summary judgment on the basis of the Parker doctrine, it did not reach the question of whether the Eleventh Amendment barred the lawsuit. Neither do we.
. For a discussion of the historical background and origins of Parker, see Handler, “The Current Attack on the Parker v. Brown State Action Doctrine,” 76 Colum.L.Rev. (1976). See also P. Areeda & D. Turner, 1 Antitrust Law 67-69 (1978); L. Sullivan, Antitrust 732-34 (1977).
. The Supreme Court has repeatedly held that the highest court of a state is the ultimate interpreter of the state’s statutes and that a federal court is bound by its construction. Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 1885, 44 L.Ed.2d 508 (1975); American Railway Express Co. v. Kentucky, 273 U.S. 269, 272, 47 S.Ct. 353, 354, 71 L.Ed. 639 (1927). State decisions are also controlling with respect to the interpretation of state administrative orders. Sutter Butte Canal Co. v. Railroad Comm’n, 279 U.S. 125, 139, 49 S.Ct. 325, 328, 73 L.Ed. 637 (1929). We are therefore bound by the Pennsylvania Supreme Court’s holding that the Horse Racing Commission was authorized by the legislature to fix jockey fees.
. The degree of articulation and expression by the legislature that is necessary was also stated in City of Lafayette v. Louisiana Power & Light Co., 532 F.2d 431, 434-35 (5th Cir. 1976), aff’d, 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978):
[l]t is not necessary to point to an express statutory mandate for each act which is alleged to violate the antitrust laws. It will suffice if the challenged activity was clearly within the legislative intent. Thus, a trial judge may ascertain, from the authority given a governmental entity to act in a particular area, that the legislature contemplated the kind of action complained of.
Cited in Community Communications Co., Inc. v. City of Boulder, - U.S. -, 102 S.Ct. 835, 70 L.Ed.2d 810 (1982) (footnote omitted). In Lafayette, the Court considered an antitrust counterclaim against two Louisiana cities that allegedly pursued various anticompetitive activities in their operation of electric power companies. The Court agreed that Congress did not intend to exempt local governments per se from antitrust scrutiny. Justice Brennan noted that municipal decisions might express only “purely parochial interests” rather than state policy. 435 U.S. at 416, 98 S.Ct. 1138. That concern is not presented in the case of a state agency responsible for articulating statewide policy. See, e.g.. Metropolitan Edison Co. v. Public Service Comm’n, 127 Pa.Super.Ct. 11, 191 A. 678 (1937). For a general analysis of the Lafayette decision, see Areeda, “Antitrust Immunity For ‘State Action’ After Lafayette," 95 Harv.L.Rev. 435 (1981).
. The recent Supreme Court decision in Boulder is not controlling here. In Boulder, the Court held that an ordinance of the City of Boulder, a “home rule” municipality with extensive powers of self-government in local and municipal matters, which restricted the expansion of a cable television business for three months, was not exempt from antitrust scrutiny under the state action exemption of Parker. In this case, we are faced with the question of whether a state agency, not a municipality, is entitled to the Parker exemption when it acts within its authority under state law. Here, the Pennsylvania Supreme Court has expressly held that the action of the Horse Racing Commission in promulgating a fee schedule for jockeys is within the sovereign authority of the Commission under state law. The importance of such a distinction was implicitly recognized by the Court in Boulder in its discussion of the two situations in which the state action exemption applies:
Our precedents thus reveal that Boulder’s moratorium ordinance cannot be exempt from antitrust scrutiny unless it constitutes the action of the State of Colorado itself in its sovereign capacity, see Parker, or unless it constitutes municipal action in furtherance or implementation of clearly articulated and affirmatively expressed state policy, see City of Lafayette, Orrin W. Fox Co., and Midcal. -U.S. at-, 102 S.Ct. at 839-841 (emphasis added).
Thus, the Court in Boulder noted that the Parker exemption reflects Congress’ intention to embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under the federal Constitution. The Court noted that this principle is inherently limited in that “we are a nation of States, a principle that makes no accommodation for sovereign subdivisions of states.” - U.S. at-, 102 S.Ct. at 839 (emphasis in the original). Boulder is instructive in this case insofar as it supports the proposition that interpretation of legislative intent is a matter of state law and that federal antitrust courts should defer to state court interpretations of such questions. -U.S. at- nn.15 & 16, 102 S.Ct. at 841 nn. 15 & 16.
. Appellants also argue the existence of disputed issues of material fact respecting the motivation behind the Commission’s amendment of Rule 9.15 in 1978. Again, discovery on this issue would serve no purpose. The Supreme Court has never held that motivation is a factor in the “state action” analysis, apart from the standards outlined in Midcal. Furthermore, this theory was not alleged in the Complaint. Appendix at 5-20.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_numappel | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellee, v. STATE OF MISSISSIPPI, et al., Defendant-Appellant.
No. 87-4214.
United States Court of Appeals, Fifth Circuit.
Feb. 26, 1988.
John T. Kitchens, Sp. Asst. Atty. Gen., Edwin Lloyd Pittman, Atty. Gen., Amelia Y. Smith, Asst. Atty. Gen., Jackson, Miss., for defendant-appellant.
L. Lawrence Ashe, Jr., Kelly J. Koelker, Atlanta, Ga., amicus curiae.
Peggy R. Mastroianni, Washington, D.C., Jerome C. Rose, E.E.O.C., Mildred Byrd, Brenda Montgomery, G. William Davenport, Birmingham, Ala., Karen H. Baker, E.E.O.C., Washington, D.C., for plaintiff-appellee.
Before CLARK, Chief Judge, GEE and RUBIN, Circuit Judges.
GEE, Circuit Judge:
Conflict of Laws
The State of Mississippi appeals a finding by the district court, 654 F.Supp. 1168, that a compulsory retirement statute for game wardens violates federal anti-age discrimination law and thus is unenforceable. The state statute retires conservation officers of the Department of Wildlife Conservation at age 60 (as of July 1, 1986; age 62 from July 1, 1985 to June 30, 1986) and sets a maximum hiring age of 35. The Age Discrimination in Employment Act of 1967 (ADEA), on the other hand, provides that it is “unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” 29 U.S.C. § 623(a)(1). The ADEA does have an “escape clause” which allows employers some limited flexibility in using age as a factor in business decisions. It provides that it is not unlawful for “an employer ... to take any action otherwise prohibited under subsection[s] (a) [age as an employment criteria] ... where age is a bona fide occupational qualification reasonably necessary to the normal operation of a particular business_” 29 U.S.C. § 623(f)(1). Apart from this “escape clause,” the command of the ADEA against the use of age as a criterion to discriminate among employees collides with the policy preference of the Mississippi legislature. Because the Supreme Court has read the ADEA to preempt the field with respect to age discrimination, see EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983), unless Mississippi can show — and the district court believed that it did not — that its policy preference reflected a bona fide occupational criterion, its statute is not valid. It is, however, Mississippi’s continued argument that age is a “bona fide occupational qualification reasonably necessary to the normal operation of a particular business” — that of conservation officer — that constitutes the essence of this appeal (emphasis added).
The Boundaries of “Reasonably Necessary” .
The Supreme Court has shaped decision-making guidelines for determining when age should be considered reasonably necessary as a job qualification. EEOC v. Wyoming, 460 U.S. 226, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) provides the basic interpretation of the ADEA as it applies to state and local governments. In EEOC v. Wyoming, a Wyoming statute providing for the retirement of game wardens at age 55 (unless further employment was approved by the employer) was held to violate the ADEA. The extension of the ADEA was said not to “ ‘directly impair’ the State’s ability to ‘structure integral operations in areas of traditional governmental functions.’ ” 460 U.S. 226, 239, 103 S.Ct. 1054, 1062, 75 L.Ed.2d 18 (1983). Thus the Court maintained that Wyoming remained free to set its retirement policy if it could demonstrate a BFOQ. See id. at 240, 103 S.Ct. at 1062.
The extension of the ADEA to the states was intended, said the Court, to decrease the motivation to engage in age discrimination based “on stereotypes unsupported by objective fact.” Id. at 231, 103 S.Ct. at 1057 (emphasis added). The dissent in Wyoming, however, disagreed with the cost-benefit calculation, contending that the extension intruded too far into the governance of local affairs in that Congress “lacked the means to analyze the factors that bear on the decision, such as the diversity of occupational risks, climate, geography, and demography.” Id. at 264, 103 S.Ct. at 1075 (Burger C.J., Powell J., Rehnquist J. and O’Connor J., dissenting). The dissent noted that the “authority and responsibility for making employment decisions should be in the hands of local governments, subject only to those restrictions unmistakably contemplated by the Fourteenth Amendment.” Id. Responding to these concerns about federalism, Congress clarified its position: 1986 amendments to the ADEA permit States to “fail or refuse to hire or to discharge any individual because of such individual’s age ... with respect to the employment of ... a firefighter or as a law enforcement officer ... in effect under applicable State or local law on March 3, 1983 [for a seven-year period] and pursuant to a bona fide hiring or retirement plan_” 29 U.S.C. § 623(i)(l) & (2). Congress, however, voiced its continuing concern about stereotypes unsupported by objective fact by conditioning this deference to state decision-making on a requirement that the state plan not be “a subterfuge to evade the purposes of the chapter.” 29 U.S.C. § 623(i)(2).
Western Air Lines v. Criswell, 472 U.S. 400, 105 S.Ct. 2743, 86 L.Ed.2d 321 (1985), further refined the Supreme Court’s application of the ADEA to the states by offering standards by which to limit the boundary between federal and state powers. The case evaluated the content of jury instructions on a BFOQ defense against an airline that had an age-60 retirement for flight engineers. The Court noted that the legislative history of the ADEA indicated that the BFOQ “escape clause” was, meant to be “extremely narrow.” 472 U.S. at 412, 105 S.Ct. at 2751.
The Court crafted a two-pronged inquiry to set the width of the “extremely narrow” BFOQ exception. First, in order to establish a BFOQ defense to such an age-based qualification, it is relevant to ascertain whether “ ‘the job qualifications which the employer invokes to justify his discrimination [are] reasonably necessary to the essence of his business_” (472 U.S. at 413, 105 S.Ct. at 2751, quoting Tamiami). Second, since age qualifications must be more than merely convenient to the employer, he must demonstrate that he “is compelled to rely on age as a proxy for the [essential] job qualification validated in the first inquiry.” 472 U.S. at 414, 105 S.Ct. at 2751. This second prong can be satisfied by “establishing either (a) that it [the employer] had reasonable cause to believe that all or substantially all persons over the age qualification would be unable to perform safely the duties of the job, or (b) that it is highly impractical to deal with the older employees on an individualized basis.” Id. These two prongs are derived from and closely resemble similar guidelines set forth by our Court in Usery v. Tamiami Trail Tours, 531 F.2d 224 (5th Cir.1976), which focused on a company’s policy of refusing to hire persons over age-40 as inter-city bus drivers.
Each of the two prongs serves a different purpose in relating the specific circumstances of a case to the purposes of the ADEA. In Criswell, the Court explains the significance of the first prong which it drew from Tamiami. Proof is needed that a job qualification is “reasonably necessary” to the normal operation of the particular business because some qualifications may be “so peripheral to the central mission of the employer’s business that no age discrimination can be ‘reasonably neces-sary_’” See, Western Air Lines v. Criswell, 472 U.S. at 413, 105 S.Ct. at 2751. In this way, the “reasonably necessary” criterion serves as a basic check against qualifications so peripheral as to be, in light of the 1986 congressional amendments, non-essential to the job.
Employers are entitled to articulate the qualifications they consider essential to their businesses and to exercise substantial discretion in judging the reasonableness of safety-related job qualifications. Yet such decisions must be supported by objective fact in order to comply with the ADEA. As recognized by the 1986 congressional amendments to the ADEA, such employment decisions by a state are at the heart of federalism.
The second prong inquires whether age is a necessary proxy for the essential— in the cases of bus companies and airlines, safety-related — job qualification being sought. An employer must show either that all or substantially all persons over the age limit would be unable to perform the job safely and efficiently or that it was “impossible or highly impractical to deal with older employees on a individualized basis.” 472 U.S. at 414, 105 S.Ct. at 2752 (footnote omitted). The employer could establish that “some members of the discriminated-against class possess a trait precluding safe and efficient job performance that cannot be ascertained by means other than knowledge of the applicant’s membership in the class.” Id. Thus the first prong of the test inquires whether an essential job qualification is at stake, the second whether age is a necessary proxy for that qualification.
Legislative Discretion as to the Boundaries of “Reasonably Necessary”
Although we held, in Tamiami, that employers are entitled to substantial discretion in judging the reasonableness of qualifications, the Supreme Court has left undefined the boundaries of employers’ discretion — in this case a state legislature’s — in weighing the three considerations it has identified.
Eecent circuit court decisions have sought to fill in the remaining gap left by the Supreme Court’s analysis in balancing the competing values of antidiscrimination and federalism. In reversing a district court’s invalidation of a mandatory retirement age, the Eighth Circuit pointed out that the Missouri General Assembly had made a “legislative judgment that the age restrictions ... [were] in the best interest of the Patrol and the people the Patrol serve[d] throughout the state ... [and that the court] should accord some deference to the state legislative declaration.” Equal Employment Opportunity Commission v. Missouri State Highway Patrol, 748 F.2d 447, 450 (8th Cir.1984). The court cautioned, however, that while concern for federalism was a consideration, it did not “relieve the Patrol from the burden of showing that each of these restrictions is a BFOQ.” Id. In this circumscribed way, the court set an outside limit on discretion by the legislature as to what was reasonably necessary.
Equal Employment Opportunity Commission v. Commonwealth of Pennsylvania, 829 F.2d 392 (3rd Cir.1987) more precisely identified the burden that the employer was required to meet in demonstrating a BFOQ reasonably necessary for a job. The court held that Pennsylvania could not justify its mandatory retirement age for state troopers because it had not “developed, implemented and enforced” minimum standards of health and fitness that would justify the BFOQ. The court distinguished a recent case, EEOC v. New Jersey, 631 F.Supp. 1506 (D.N.J.1986), aff'd, 815 F.2d 694 (3rd Cir.1987), in which New Jersey’s mandatory requirement law for state police officers was upheld against an ADEA challenge 829 F.2d at 396. In that case, the district court found that all members of the New Jersey State Police, whatever their ages, were subject to minimum fitness standards and that all or substantially all officers over age 55 could not meet those standards. It is the finding of minimum standards that are “developed, implemented and enforced” that provides the threshold limiting an employer’s discretion in establishing a BFOQ defense. Not only would a finding of minimum standards limit an employer’s discretion, but also it would satisfy the Supreme Court’s concern to decrease stereotypes unsupported by objective fact and would ensure both that a good faith decision on required qualifications was made by a competent authority and that the use of age as a proxy was proper.
Despite this minimum standards limitation on an employer’s discretion to articulate what is reasonably necessary, a court must be especially cautious when dealing with legislatures for the “task is admittedly a most difficult and often impossible one, since legislatures are not known for providing clear guidance to those interpreting their works”. See Aguillard v. Edwards, 778 F.2d 225, 227 (5th Cir.1985) (dissent from denial of Petition for Rehearing En Banc) (scrutinizing legislative motivation for secular purpose in an establishment of religion case). For this reason, a court examining the discretion available to an employer must exercise special care when the employer is a legislature.
Mississippi’s Legislative Determination
It is likely that Mississippi’s age qualifications for game wardens would have passed muster had the Mississippi legislature “developed, implemented and enforced” minimum standards of health and fitness and shown that nearly all conservation officers over age sixty could not meet those standards or that individual determinations were impossible. Since the Supreme Court’s concerns would have been satisfied, our task would have been simply to defer to a decision by a competent authority. That did not take place, however; and because it did not, there is no essential job qualification in this case that age can stand as a proxy for.
The district court has made factual findings, which we do not find to be clearly erroneous, that: (a) no legislative history existed for the enactment, 654 F.Supp. at 1172; (b) “the mandatory retirement age for conservation officers was sold to the legislature ... without first instituting health and fitness policies within the Department,” id.; (c) “no standards [were] presented to the family physician to guide him in his determination that the candidate [was] healthy,” id. at 1174; (d) there were no physical fitness or health standards that were used for retention of supervisors, lake and area managers, and conservation officers in the Fisheries and Wildlife Department, id. at 1175. There being no such standards, age cannot serve as their proxy.
This being so, the district court correctly reasoned that Mississippi failed the first prong of the Criswell test. The court, however, went further in its analysis and examined “arguendo ” whether the Mississippi enactment would have passed the second prong of the Criswell test. Such an analysis was unnecessary, and we express no opinion on its validity. It will be time to consider such matter when and if Mississippi sets qualifications, such as health and fitness, that are circumscribed by minimum standards. In that event, proper deference, especially since the decision-maker is a legislature, must be afforded with respect to the social choices that it makes.
Because Mississippi failed to establish health and fitness qualifications reasonably necessary for the job of conservation officer and for which age may be a valid proxy, the BFOQ “escape clause” of the ADEA is not available. Miss.Code Ann. § 49-1-15 (Supp.1985) thus plainly violates the ADEA, and it is unenforceable. This district court order is therefore AFFIRMED.
_
. Miss.Code Ann. § 49-1-15 (Supp.1985).
. In Tamiami, Judge Brown had offered a "plain meaning" reading of "reasonably necessary”: “Typically statutory, the words ‘reasonably necessary to the normal operation of its business,' are not normally of the variety that suggest hand-wringing, earth-shaking, heartrending decisions of great moment.” Usery v. Tamiami Trail Tours, 531 F.2d 224, 226 (5th Cir.1976).
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_district | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ILLINOIS STATE JOURNAL-REGISTER, INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 16979.
United States Court of Appeals Seventh Circuit.
June 10, 1969.
R. Theodore Clark, Jr., Richard D. Ostrow, Chicago, Ill., for petitioner, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., of counsel.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Nancy M. Sherman, Atty., N. L. R. B., Washington, D. C., Arnold Ord-man. Gen. Counsel, Dominick L. Manoli, Assoc. Gen. Counsel, Michael F. Rosen-blum, Atty., N. L. R. B., for respondent.
Before HASTINGS, Senior Circuit Judge, KILEY and KERNER, Circuit Judges.
HASTINGS, Senior Circuit Judge.
Illinois State Journal-Register, Inc. (Company) petitions this court, pursuant to Section 10(f) of the National Labor Relations Act (Act), as amended, 29 U.S.C.A. § 160(f), to review and set aside an order of the National Labor Relations Board (Board), issued against the petitioning-Company on June 3, 1968. The Board found the Company had engaged in unfair labor practices within the meaning of Section 8(a) (1) and 8(a) (5) of the Act, as amended, 29 U.S.C.A. § 158(a) (1) and (a) (5), by refusing to bargain collectively with the International Mailers Union (Union), exclusive bargaining representative for the Company’s 14 city and country district circulation managers working out of Company’s Springfield, Illinois plant.
The Board, pursuant to Section 10(e) of the Act, as amended, 29 U.S.C.A. § 160(e), cross-petitions for enforcement of its order.
The record reveals that the Company is an Illinois corporation engaged in the business of publishing daily newspapers in Springfield, Illinois. It further shows that on August 30, 1967, the Union filed a petition with the Board seeking to represent for purposes of collective bargaining the Company’s city and country district managers.
Subsequent to a hearing ordered by the Thirteenth Regional Director of the Board to consider, inter alia, whether the district men whom the Union sought to represent were supervisory or managerial employees, the Regional Director issued a decision finding that such district managers were not supervisory or managerial employees and that they constituted a unit appropriate for the purposes of collective bargaining pursuant to Section 9(b) of the Act, as amended, 29 U.S.C.A. § 159(b). The Board denied the Company’s request for review of the Regional Director’s unit decision in case No. 38-RC-419.
Pursuant to the Regional Director’s direction, a representation election was conducted on January 17, 1968 in which a majority of the district managers designated the Union as their collective bargaining representative. On January 25,1968, the Union was so certified.
It is undisputed that subsequent to the certification the Union requested, and continues to request, the Company to bargain collectively and that the Company has refused, and continues to refuse, to bargain with the Union.
With the Company’s refusal to bargain, the Union filed a charge, and the Board’s General Counsel, by the officer-in-charge of Subregion 38, issued a complaint and notice of hearing on March 19, 1968 against the Company alleging violations of Section 8(a) (5) and 8(a) (1). In answer to the complaint, the Company admitted its refusal to bargain and alleged that the certification of the Union was invalid on the grounds that the district managers are not employees within the meaning of Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3). Specifically, the Company’s answer contends that the 14 district managers are supervisors within the meaning of Section 2(11), as amended, 29 U.S.C.A. § 152(11). The Company contends, therefore, that its refusal to bargain is not violative of the Act since the certification of the Union was invalid as such district men do not constitute an appropriate bargaining unit.
Thereafter, on March 27, 1968, General Counsel filed with the Board a motion for summary judgment. The motion was premised upon the Board’s “rule against relitigation.” Under such procedure, the Board will not relitigate in a subsequent refusal-to-bargain proceeding matters which have been considered and disposed of in a prior related representation case. Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 61 S.Ct. 908, 85 L.Ed. 1251 (1941); N. L. R. B. v. National Survey Service, Inc., 7 Cir., 361 F.2d 199, 204 (1966).
By the motion, General Counsel asserted that since the Company admits its continuing refusal to bargain and that since the sole issue raised by the Company’s answer related to the question of the unit’s propriety, which had been previously determined in Case No. 38-RC-419, a hearing with respect to the alleged unfair labor practice was unnecessary under the rule against relitigation.
In substance, the Board granted the motion on the basis of the reasoning embraced in General Counsel’s motion for summary judgment.
In this case, the Company’s petition for review of the Board’s order in effect represents a petition for review of the Regional Director’s finding and decision that the 14 district managers are employees, rather than “supervisors and/or managerial employees”, and constitute a unit appropriate for the purposes of collective bargaining. This is true since the validity of the Board’s order hinges on the propriety of the Regional Director’s finding with respect to the issue of whether the district managers were employees within the meaning of the Act.
It is axiomatic that the Board is accorded wide discretion in establishing the correct limits of a bargaining unit and is not subject to reversal unless it is arbitrary and capricious in the exercise of its discretion. N. L. R. B. v. Waukesha Lime & Stone Co., 7 Cir., 343 F.2d 504, 507 (1965); N. L. R. B. v. Weyerhaeuser Company, 7 Cir., 276 F.2d 865, 869 (1960), and cases cited therein, cert. denied, 364 U.S. 879, 81 S.Ct. 168, 5 L.Ed.2d 102. The finding reached in the instant case with respect to the question of whether the district managers were employees and constituted an appropriate bargaining unit “must be sustained if it is supported by substantial evidence on the record considered as a whole.” Trailmobile Division, Pullman Incorporated v. N. L. R. B., 5 Cir., 379 F.2d 419, 422 (1967); N. L. R. B. v. Security Guard Service, Inc., 5 Cir., 384 F.2d 143 (1967).
After examining the record, we are satisfied that the evidence substantially supports the conclusion that the Company’s district managers are employees within the meaning of the Act and constitute an appropriate bargaining unit. Such a determination was reasonable and cannot be characterized as being arbitrary or capricious in nature. It necessarily follows that the Board’s petition for enforcement of its order should be granted.
The record shows that the Company’s circulation department has 14 district men or managers. Each manager is assigned to a geographical area known as a district; there are five country and nine city districts. Though the manager’s functions and responsibilities within his district are multifarious and the subject of some disagreement, it is undeniable that his paramount concern is with the newspaper carriers of which there are approximately sixty to seventy in each district.
With respect to the Company’s contention that the district men are managerial employees, we are in accord with the Regional Director’s analysis that “the discretion and initiative which these men [the district managers] are expected to exercise fall within relatively unimportant areas * * * ” and “ * * * make them sufficiently removed from managerial policy-making so they may not be considered employees who formulate, determine and effectuate managerial policy.”
Though the Board has established a policy of excluding “managerial employees” from bargaining units, it has not developed clear guidelines for determining whether particular individuals are “managerial employees.” In Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., 125 U.S.App.D.C. 63, 366 F.2d 642, 644-645 (1966), cert. denied, 386 U.S. 1017, 87 S.Ct. 1373, 18 L.Ed.2d 455, the court notes that there seem to be two fundamental tests for determining whether an employee is a managerial employee and therefore excludable under Board policy from bargaining units.
The first test is to determine whether an employee is so closely related to or aligned with management as to place the employee in a position of potential conflict of interest between his employer on the one hand and his fellow workers on the other. If an employee is found to be in such a position, he is not, under Board policy, entitled to be represented in the collective process.
The second managerial employee test is to determine whether the employee is formulating, determining and effectuating his employer’s policies or has discretion, independent of an employer’s established policy, in the performance of his duties. If an employer cloaks an individual with such authority or such discretion, that individual would be a managerial employee and would be deprived of the right of representation by a bargaining unit.
The alignment between the 14 district men in question and the upper management echelon of the Company is not of such degree or character as to place these employees in a position of potential conflict. The alignment test is essentially a narrow one in the sense that unless an employee is substantially involved in his employer’s labor policies his relationship with management is not one of a managerial employee. The rationale behind this is succinctly set forth in Westinghouse Electric Corporation v. N. L. R. B., 6 Cir., 398 F.2d 669, 670-671 (1968). In that case the court stated:
“The Board strictly adheres to its definition of a ‘confidential employee’ since a broader rule would, in the Board’s opinion, needlessly deprive many employees of their right under Section 7 of the Act to bargain collectively through representatives of their choosing. * * * The Board thus attempts to strike a balance between the right of employees to be represented in the collective bargaining process with the right of the employer to formulate, determine and effectuate its labor policies with the assistance of employees not represented by the union with which it deals.”
In the instant case, the record is devoid of substantial evidence showing that the 14 district men were concerned with or involved in the Company’s labor policies to such an extent that a potentially meaningful conflict of interest problem might arise. We find that the district men were not managerial employees under the first test.
Nor do we find upon consideration of the record as a whole that the district men were managerial employees within the meaning of the second test as set forth in Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., supra.
The record shows that the district men have similar duties within their respective districts. The paramount responsibilities of these men are: overseeing the distribution of the Company’s newspapers; working with the newspaper carriers, including the hiring and the training of the carriers; handling complaints which relate to delivery; adjusting and remitting sales receipts to the Company; participating in Company circulation campaigns, primarily by encouraging carriers to promote new subscriptions ; attending sales meetings; recommending discounts for delivery routes; organizing and determining delivery routes within their district; contracting news dealers on behalf of the Company; leasing space to serve as a substation within the district; and making various small purchases.
While the district man has various responsibilities, they are minor in nature and not tantamount to those of an employee who formulates, determines and effectuates his employer’s policies. The scope of his authority in the area of significant management policy is limited in nature and as the Regional Director aptly notes “the discretion and initiative which these man are expected to exercise fall within relatively unimportant areas.” The record contains evidence indicating that in the few areas where the district man appears to have some discretion in the performance of his job and to have some semblance of policy authority the Company effectively circumscribes such discretion and limits such authority.
The Company maintains that one indi-cia of the district manager’s discretion and authority rests in the fact that these men are “initiating discount policies.” The record reveals that the district man may recommend, instituting a discount on a particular delivery route, but it does not show they have the discretion or authority to make the ultimate determination, independent of Company consideration and approval, of whether a discount policy should be adopted.
A similar indication of the limited range of the district man’s discretion and influence on policy can be discerned by reviewing the extent to which he participates in circulation campaigns. While the district man may suggest and participate in setting up these campaigns, it does not appear he may independently initiate a major campaign. His primary function in such a campaign is seemingly confined to executing within his district those campaign plans formulated by his superiors. This amounts to encouraging his carriers “to promote and sell and canvass and get new subscriptions for our newspaper.”
A further manifestation of the limited discretion and authority can be discovered in the uncontroverted testimony of the Company’s assistant circulation director, Umberto A. Natale. He testified that the district man “can recommend that his district be redivided * * *” but that someone else, presumably someone at a higher level, determines whether the recommended subdivision would be provident.
In this case, the extent of the district man’s relation to and influence on major company policies is limited to making recommendations to the Company with respect to its policies and future plans. The Board has held that the power to make recommendations does not warrant precluding one from representation as a managerial employee. Puget Sound Power & Light Company, 117 NLRB 1825, 1827 (1957). The other areas in which the district man has apparent discretion and policy authority are relatively unimportant in scope or effectively circumscribed by Company policy or review.
As an additional proposition, the Company further contends the Board erred in holding that the 14 district men were not supervisors within the meaning of Section 2(11) of the Act, as amended, 29 U.S.C.A. § 152(11), which provides in relevant part:
“The term ‘supervisor’ means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees * * *.” (Emphasis supplied.)
Also relevant is Section 2(3) of the Act, as amended, 29 U.S.C.A. § 152(3), which reads in material part:
“The term ‘employee’ shall include any employee, * * *, unless this subchapter explicitly states otherwise, * * *, but shall not include any individual * * * having the status of an independent contractor, or any individual employed as a supervisor, * * (Emphasis supplied.)
The Company urges that the Board erred in deciding whether the 14 district men were supervisors within the meaning of Section 2(11) by referring to Section 2(3) of the Act to determine whether the individuals they supervised were employees. The Company asserts that relevant legislative history and the wording of Section 2(11) do not “invite reference” to the definition of the term employee in Section 2(3). Thus, the gravamen of the Company’s ingenious argument rests on the contention that “any individual who exercised supervisory authority on behalf of an employer, regardless of whether the individuals supervised were ‘employees’ within the meaning of Section 2(3)”, is a supervisor. To bolster its contention, the Company reasons that to hold that the term “employees” in Section 2(11) is to be defined by Section 2(3) would render the word “other” in Section 2(11) superfluous. We are not persuaded by the Company’s position on what appears to be a question of first impression.
With regard to the superfluousness argument, we agree with the view expressed in International Ladies’ Garment Workers’ Union, A.F.L.-C.I.O. v. N. L. R. B., 2 Cir., 339 F.2d 116, 121-122 (1964),that:
“The natural inference to be drawn from the language of section 2(11), especially if attention is paid to the words ‘other employees’, is that the employer referred to is the employer of those being supervised. * * *”
By looking to Section 2(3) for the definition of employee to determine whether an individual is a supervisor does not render the term “other” in Section 2(11) superfluous, but rather the term functions to limit the statutory definition of a supervisor to those individuals who are given by their employer supervisory authority over other employees of that same employer. To so view the function of the term “other” does not appear to thwart the Congressional intent behind Section 2(11) and related sections and is in accord with both judicial and Board precedent. Retail Clerks International Ass’n, A.F.L.-C.I.O. v. N. L. R. B., supra at 644, n. 2, of 366 F.2d; Eureka Newspapers, Inc., 154 NLRB 1181, 1185 (1965).
Study of the legislative history behind the 1947 Taft-Hartley enactment of Sections 2(3) and 2(11) sheds scant light on the specific issue of whether the term “other employees” in Section 2(11) is to be defined by reference to Section 2(3). The legislative history does not contain a statement of intent to bar such reference.
We are persuaded by the logic of the Board’s reasoning that it is difficult to imagine that Congress, in redefining and narrowing the scope of the term “employee” by excluding supervisors and independent contractors, did not intend for the Board and courts to look to the revised definition of the term “employee”, as set forth in Section 2(3), in construing the definition of “supervisor”, as defined in Section 2(11).
In view of this reasoning and the absence of precedent and clear legislative history to the contrary, we find that unless an individual is granted by his employer supervisory authority over fellow employees, as defined in Section 2(3), of that same employer, he is not a supervisor within the meaning of Section 2(11).
In the instant case, it would be anomalous to hold that these 14 district men are truly supervisors. The parties have stipulated the carriers and dealers are independent contractors. Since independent contractors are not employees within the meaning of the Act and are excluded from the coverage of the Act by Section 2(3), we affirm the Regional Director’s conclusion that “* * * these managers cannot be their supervisors within the meaning of the Act.”
Finally, we find no merit in the Company’s contention that the district men were supervisors with respect to the Company’s agents and solicitors. We find ample support in the record to sustain the Regional Director’s conclusion that the supervisory authority of the district men over these employees is “too sporadic and too routine” to warrant classifying them as supervisors. We have held that “ [p] erformance of isolated, infrequent duties of a supervisory nature does not transform a rank and file employee into a supervisor.” Plastic Workers Union Local 18, I. U., D. & T. W., A.F.L.-C.I.O. v. N. L. R. B., 7 Cir., 369 F.2d 226, 230 (1966).
The petition to set aside the order under review is denied and the cross-petition for enforcement is granted.
Review denied.
Enforcement granted.
. The decision and order of the Board are reported at 171 NLRB No. 130, 1968-1 COH NLRB ¶22,531.
. This case is not published,
. The recent well-reasoned decision of Pepsi-Cola Buffalo Bottling Company and Squirt-Vernors of Buffalo, Inc. v. National Labor Relations Board, 2 Cir., 409 F.2d 676, March 25, 1969, seemingly opens to question the validity and vitality of the rule against relitigation. In the instant case, neither party to the dispute sought to invoke argument with respect to the soundness of the principle of no re-litigation in response to our invitation to consider such a move.
. Among other points, the Company urges that the district men exercise “independent judgment” in adjusting customer complaints, pledging Company credit, and establishing delivery routes. The record shows that: the adjustments made are minor in amount, routine and under a general Company policy which attempts to hold the carrier responsible for losses he has caused; the pledges of credit are small in amount and routine in nature; and the establishment of delivery routes is subject to policy “suggestions” by the Company.
It is also of interest to note that while a district man has discretionary authority to terminate a news carrier, the circulation manager Merle Williamson could not recall a ease of a district man exercising such authority and stated that any termination decision is subject to being overruled “by someone higher up in the Circulation Department.”
. At the hearing before the Regional Director, the parties stipulated that the “carrier boys, news dealers, and motor route dealers * * * were independent contractors working under the jurisdiction of the district managers.” See joint appendix, p. 59.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
TYRRELL v. UNITED STATES.
No. 12991.
United States Court of Appeals Ninth Circuit.
Sept. 17, 1951.
See also, 9 Cir., 191 F.2d 154.
Philander Brooks Beadle, Morton L. Silvers, San Francisco, Cal., for appellant.
Chauncey Tramutolo, U. S. Atty., Joseph Karesh, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, and MATHEWS and STEPHENS, Circuit Judges.
PER CURIAM.
The issue here for bail is whether there is a substantial question of error in the failure of the local board to incorporate in the appeal record Tyrrell’s statement of the religious character of his unpaid services on a ranch owned and operated by Christ’s Church of the Golden Rule. The pertinent regulation is: “Sec, 1626.13(a) Immediately upon an appeal being taken to the appeal board by a person entitled to appeal, the local board shall prepare the Individual Appeal Record * * * in duplicate, attaching the original to the inside of the registrant’s Cover Sheet * * * and placing the duplicate copy in the local board files. The local board shall carefully check the registrant’s file to make certain that all steps required by the regulations have been taken and that the record is complete. If any facts considered by the local board do not appear in the written information in the file, the local board shall prepare and place the file a written summary of such facts.” (Emphasis supplied.)
We think that the failure of the local board to summarize in writing Tyrrell’s testimony regarding the religious character of his ranch work and to place it in the file to be used by the appeal board, presents a substantial question of error within the decisions of the Supreme Court in Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Cox v. United States, 332 U.S. 442, 68 S.Ct. 115, 92 L.Ed. 59, and of the Courts of Appeals in United States v. Zieber, 3 Cir., 161 F.2d 90; Niznik v. United States, 6 Cir., 173 F.2d 328; Smith v. United States, 4 Cir., 157 F.2d 176.
The motion for bail is granted and bail is set at $2,000.
MATHEWS, Circuit Judge, dissents.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Grady HAMRICK, Appellant, v. AEROJET-GENERAL CORPORATION, INDUSTRIAL SYSTEMS DIVISION, an Ohio Corporation, Appellees.
No. 73-1053.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 13, 1975.
Decided Nov. 12, 1975.
Martin C. Bowles, Charleston, W. Va., and Bennett R. Burgess, St. Albans, W. Va., for appellant.
John S. Haight, Charleston, W. Va., for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
PER CURIAM:
Plaintiff-appellant seeks reversal of the decision of the District Court denying him relief for personal injuries which he allegedly suffered as the result of defendant-appellee’s negligence. The complaint was filed in the Court of Common Pleas of Kanawha County, West Virginia, and was removed by the defendant to the United States District Court for the Southern District of West Virginia on the basis of diversity of citizenship. The trial court, sitting without jury, found that the defendant was not negligent, and that the plaintiff himself was guilty of contributory negligence and assumption of risk.
Defendant, Aerojet, was a general contractor which had undertaken a construction project for Union Carbide Corporation. The plaintiff was instructed by his employer, Dougherty Company, Inc., one of defendant’s subcontractors, to report to the Union Carbide construction site. Upon arrival, finding it necessary to ascend to the third floor of the project, he chose to utilize the “man-lift” instead of a staircase which was equally accessible. The “man-lift” is a conveyor belt which stands perpendicular to the ground, has footholds and handles which allow persons to secure themselves, and serves as a crude mode of elevator. Having mounted the lift, the plaintiff failed to realize that he had gone beyond floor level of the top floor, and was approaching the point at which the belt would make a 180 degree turn and begin its descent. As a consequence, he was forced to jump off the lift. Upon impact with the floor, appellant sustained serious damage to his ankle.
Appellant alleged in the District Court that Aerojet was negligent in several regards, most notably in that they failed to mark the floors adjacent to the path of the man-lift. In support of his claim, he cited West Virginia Code Chapter 21, Article 3, §§ 1-3, which requires that employers take certain precautionary measures to protect employees from injury from mechanical apparatus.
Although West Virginia treats the violation of such a statute as prima facie negligence if it is the proximate cause of injury, Tarr v. Keller Lumber and Construction Co., 106 W.Va. 99; 144 S.E. 881 (1928), the District Court properly noted that the Supreme Court of West Virginia has held the above-mentioned statutory provision to be applicable only to the employer-employee situation. See Chenoweth v. Settle Engineers, Inc., 151 W.Va. 830, 838, 156 S.E.2d 297, 302 (1967). There is no dispute as to the fact that appellant and Aerojet did not stand in the relationship of employer and employee. Additionally, the District Court reasoned that the statutory language indicated a legislative intent to make the safety requirements applicable to operational industrial facilities, not to those which are merely under construction. Since the statute speaks to owners of places of employment “now or hereafter constructed,” W.Va. Code, c. 21, art 3, § 1, we feel that such an interpretation is proper. Although not unambiguous, the West Virginia Supreme Court seemed to concur in this construction. See Chenoweth v. Settle Engineers, Inc., supra at 838, 156 S.E.2d at 302.
The trial judge thus examined the duty owed to the plaintiff in accordance with the common law of West Virginia. Appellant urges that through the doctrines of “reasonable convenience” or “mutual advantage” he was owed the duty of reasonable care, rather than the lesser duty of refraining from willful and wanton conduct. On the authority of Perkins v. Henry J. Kaiser Company, 236 F.Supp. 484, (S.D.W.Va.1964), aff’d, 339 F.2d 703, the District Judge found neither theory to be applicable to the instant case. “Mutual advantage” requires that the owner of the apparatus receive advantage from the permitted use by another of that particular piece of equipment. Id. at 487. It is clear from the record that plaintiff could have chosen just as easily to use the stairs for his two-story ascent, and that no benefit accrued to Aero as a result of his decision to use the “man-lift.” “Reasonable convenience” is pertinent where it is foreseeable that use of the mechanism would be reasonably necessary for the subcontractor to perform the functions owed his general contractor. Id.; See also Pettyjohn v. Basham, 126 Va. 72, 100 S.E. 813 (1919). The existence of the equally accessible stairway negates the applicability of this doctrine as well.
The trial court found that Aero violated no duty owed the plaintiff-appellant. Additionally, it was found that plaintiff was contributorily negligent in his failure to observe that the “man-lift” had reached the top floor.
We cannot say that these findings are clearly erroneous. See Rule 52, F.R.Civ.P. Nor do we find any error of law. Since the findings of an absence of defendant’s negligence and appellant’s contributory negligence adequately dispose of the instant case, we express no opinion as to the propriety of the trial court’s decision that appellant’s action also constituted assumption of risk.
Accordingly, the judgment of the District Court is affirmed.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_direct1 | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Frank P. SALISBURY, Appellant, v. Arnold TIBBETTS and George Sanford, Appellees.
No. 5809.
United States Court of Appeals Tenth Circuit.
Aug. 15, 1958.
Edward W. Clyde, Salt Lake City, Utah (J. Grant Iverson, Salt Lake City, Utah, on the brief), for appellant.
Eli A. Weston, Boise, Idaho (Fabian, Clendenin, Moffat & Mabey, Salt Lake City, Utah, on the brief), for appellees.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
Salisbury has appealed from a judgment decreeing that Tibbetts and Sanford were each entitled to acquire by purchase 600 shares of the voting stock of the Reliance National Life Insurance Company; ordering Salisbury to forthwith deposit with the clerk of the court such 1,200 shares of stock; ordering that Tibbetts and Sanford might purchase such stock upon the payment of the purchase price within 30 days from the delivery thereof to the clerk; and further decreeing that in the event of the failure of Salisbury to deposit such stock with the clerk, he should pay Tibbetts and Sanford $200,000, with interest from the date of judgment.
The controversy between the parties had its genesis in the circumstances which surrounded the promotion and organization of the Reliance Company. Salisbury, immediately prior to September, 1953, was employed by the Professional & Business Men’s Insurance Company as an agency supervisor and he was a member of the board of directors of the Professional Company. In September, 1953, he was discharged as agency supervisor. At the time of such discharge Sanford was employed by the Professional Company and was working under Salisbury’s supervision. Sanford testified that in a conversation he had shortly after such discharge, he suggested that they should organize a new life insurance company of their own and that Salisbury approved the idea. Sanford admitted there was no definite plan agreed upon, or any decision reached as to who would organize the company. Thereafter, at the request of Salisbury, Sanford contacted various insurance men in the western states in an effort to interest them in organizing a new insurance company, but with no definitive results.
Salisbury owned 550 shares of the Professional Company stock when he was discharged by that company, a portion of which he desired to sell. An arrangement was entered into between Salisbury and Sanford, whereby the latter was to sell a portion of such stock and from the proceeds realized from such sales, Salisbury was to receive $35 per share and Sanford was to retain any excess over that amount which he obtained. Sanford went to the State of Washington, where he enlisted the aid of Tib-betts in selling such stock. They sold a large portion of the stock within approximately a two-month period, at an average price of $70 per share, out of which they received $12,000. Other shares of such stock were sold through other agents, under a similar arrangement.
After further informal discussion among Salisbury, Sanford and other prospective promoters, a plan was evolved for the organization of an insurance company, with an organizational structure patterned after the Professional Company. However, no agreement was reached as to who should participate in the promotion and organization of the company.
In January, 1954, Salisbury established an office in Salt Lake City. He obtained legal counsel, arranged for reinsurance contracts with other insurance companies, and began the formation of an insurance company office staff. On January 26, 1954, Salisbury proceeded to effectuate the incorporation of the Reliance Company, with authority to issue two classes of stock, namely, 2,500 shares of voting common stock and 15,000 shares of non-voting preferred stock.
It was contemplated that the non-voting stock would be sold to the public and Salisbury obtained the necessary permits for the sale of the non-voting stock to the public in Utah, Nevada and Idaho.
On February 17, 1954, Sanford and Tibbetts arrived in Salt Lake City and went to Salisbury’s office. Salisbury showed them the Reliance Company’s offering circular and they became cognizant of its contents. The circular recited that of the authorized 2,500 shares of voting stock, 1,900 shares had been subscribed ; that 600 shares had been issued to Salisbury; 600 shares to Edith G. Amos, Salisbury’s sister; 100 shares to Ella S. Salisbury, Salisbury’s wife; 200 shares each to Robert H. Petersen, Mark A. Stokes and Ray Smith, and that 600 shares remained in the treasury.
Sanford testified that he objected to the distribution which had been made of the voting stock and inquired, “ * * * Where do I come in?” and Salisbury said, “Well, you don’t have to worry about that. The law required me to have all the voting stock sold or I couldn’t get a solicitation permit. Now, there is your solicitation permit. You don’t have to worry about that. Our agreement is on. We will go out and get this job done and get the stock sold, and when we get our charter and we hold our first board of directors meeting you will be put on as the officer according to our agreement, and on the board of directors and then you can buy your stock.” Sanford admitted, however, that there was no agreement as to the amount of stock that he and Tibbetts would be permitted to buy.
Sanford testified that shortly thereafter Salisbury learned that certain persons with whom he had been negotiating had decided not to join with him in developing the Reliance Company and that in the presence of Petersen and Tibbetts Salisbury stated: “Well, * * *, the four of us can do the job. The four of us will do the job and the four of us will own and run this company.” Tibbetts testified to substantially the same effect. Sanford further testified it was then “I knew that it was a four-way proposition, or I thought it would be a four-way proposition.” Here again, it will be observed, there was no agreement as to the amount of the voting stock each might acquire. Salisbury denied the testimony-of Sanford and Tibbetts, upon which they predicate their claim, that there was an agreement between them and Salisbury for the purchase by them of voting stock. Petersen testified that he never heard either Sanford or Tibbetts make any protest or objection to the amount of stock purchased by Salisbury or his family and in other respects Petersen fully corroborated Salisbury’s testimony.
Sanford and Tibbetts engaged in the sale of the non-voting stock. They received a commission of 12% per cent on all sales. Sanford testified that they sold '60 to 70 per cent of the non-voting stock. When the Reliance Company received $125,000 from the sale of non-voting stock, it became authorized to commence the writing of insurance.
On August 30, 1954, Sanford and Tib-betts met with Salisbury in his office in Salt Lake City. Sanford and Tibbetts demanded that Salisbury sell to each of them 600 shares of the voting stock. Salisbury refused, telling them that such a demand was ridiculous. The dispute became heated and Sanford and Tibbetts left Salisbury’s office. Tljey returned again and after further discussion Salisbury offered to sell each of them 100 shares of the voting stock at $10 per ■share. Sanford and Tibbetts accepted the offer. Sanford testified that Salisbury made it clear that so far as he was concerned, that was the most that either of them would receive. Sanford and Tibbetts gave promissory notes to Salisbury for the purchase price, plus some other debts that they owed Salisbury. The notes were later paid and Sanford and Tibbetts each received 100 shares of the voting stock.
Sanford and Tibbetts continued selling insurance for the Reliance Company. Further disagreements developed and in September, 1956, Salisbury discharged them as agents of the Reliance Company. They commenced the instant action February 15, 1957.
The trial court found that two oral agreements were entered into between the parties; one, to organize and incorporate an insurance company; and two, a later agreement that Salisbury would be president of the corporation; that Petersen, Sanford and Tibbetts would be on the board of directors; that “the division and ownership of the property was to be on a one-fourth basis with one-fourth interest in the voting and controlling stock of the company to be in each of the individuals present at the meeting: Tibbetts, Sanford, Salisbury and Petersen;” that contrary “to the terms of the agreement and in an effort to def"aud” Sanford and Tibbetts, Salisbury “obtained control of the majority of the voting stock” and refused to comply with the terms of the agreement. The trial court then concluded, as a matter of law, that Salisbury, “contrary to the provisions of said agreement, purchased approximately 1,900 shares * * * in his own or his family’s name, thereby establishing a constructive trust under which the Defendant [Salisbury] became trustee for the benefit of the Plaintiffs [Sanford and Tibbetts] for the one-fourth share each * * * ”; that one-fourth interest was to be 600 shares of the voting stock; and, accordingly, entered judgment as above stated.
We are of the opinion that the evidence and the inferences that may fairly be drawn therefrom, viewed in the light most favorable to Sanford and Tibbetts, do not support the finding of the trial court as to the second oral agreement with respect to the division of the voting stock among Sanford, Tibbetts, Petersen and Salisbury. Certainly, the evidence wholly failed to establish any understanding or agreement at any time as to any amount of the voting stock which Sanford and Tibbetts would be permitted to purchase. Therefore, one term essential to a definite and complete contract was lacking. A contract that is incomplete or indefinite in its material terms will not be specifically enforced in equity.
Salisbury provided all of the initial capital. He looked after all the details of the organization and incorporation of the Reliance Company; organized an office staff; arranged for reinsurance agreements; secured necessary selling permits; and took care of the initial expenses. It is true that the services of Sanford and Tibbetts in selling a portion of Salisbury’s stock in the Professional Company and a portion of the non-voting stock of the Reliance Company were important, but they were fully compensated for those services. Under the circumstances, it would seem exceedingly doubtful that Salisbury would surrender a controlling interest in the voting stock of the corporation to third persons.
A constructive trust must he established by evidence which is clear, definite, ' unequivocal, and satisfactory; which leaves no reasonable doubt as to the existence of the trust. The evidence on the present record, far from meeting those standards, is at best slight, contradictory, and loosely circumstantial, consisting of the uncorroborated testimony of two interested parties, indefinite as to substance, imaginative as to fact and precatory as to meaning.
A careful examination of the entire evidence leaves us with the definite and firm conviction that there is no substantial basis for the court’s finding that Sanford, Tibbetts and Petersen entered into an agreement on September 17, 1954, or at any time, whereby Sanford, Tibbetts and Petersen were each to receive 600 shares, or any number of shares of the voting stock, and that such finding is clearly erroneous.
Moreover, we are of the opinion that Sanford and Tibbetts are foreclosed as to their alleged claim against Salisbury by an accord and satisfaction, or a compromise of a disputed claim.
The general rule established by many of the adjudicated cases and followed in Utah is that a discharge by accord and satisfaction must rest upon a contract, express or implied, and the essentials to a valid contract generally must be present, that is, “(1) A proper subject matter, (2) competent parties, (3) an assent or meeting of the minds of the parties, and (4) a consideration.”
In Sullivan v. Beneficial Life Ins. Co., 91 Utah 405, 64 P.2d 351, 362, the court defined accord and satisfaction as follows:
“The definition of an ‘accord and satisfaction’ is: ‘An accord is an agreement whereby one of the parties undertakes to give or perform, and the other to accept in satisfaction of a claim, liquidated or in dispute and arising either from contract or from tort, something other than or different from what he is or considers himself entitled to. And a satisfaction is the execution of such agreement.’ ”
The evidence clearly established that Sanford and Tibbetts asserted that they were entitled to receive and demanded 1,200 shares of the voting stock. Salisbury denied that they were so entitled and stated that their demand was ridiculous. Even if we assume, although we have decided otherwise, that the inferences which the trial court drew from the conversations between the parties were permissible, there can be no doubt that such conversations fully warranted a good faith denial by Salisbury of the claims asserted by Sanford and Tibbetts. The evidence established a bona fide dispute between the parties. Salisbury made an unequivocal offer to settle the dispute by selling to Sanford and Tib-betts 100 shares each of the voting stock at $10 per share. Sanford and Tibbetts unequivocally accepted such offer. The compromise agreement was carried out and thereupon there was an accord and satisfaction.
Sanford and Tibbetts assert that the principles of accord and satisfaction are inapplicable where the relationship of the parties is trustee and beneficiary. They cite no authority in support of that proposition.
We express no opinion as to whether the contention would have validity if an express trust were present. We entertain no doubt that where one party asserts a claim predicated on facts, which, if true, would give rise to a constructive trust and the other party disputes the facts and denies the claim and a bona fide dispute is present, that the parties may enter into a valid and binding accord and satisfaction or compromise agreement.
A constructive trust must never be confused with a real or express trust, which, in itself, contains a fiduciary relationship. The constructive trust lacks the attributes of a true trust and is only a fiction imposed as an equitable device to prevent injustice. It, unlike the express or true trust, is not a fiduciary relationship, although the circumstances which give rise to it may or may not involve a fiduciary relation.
Such being the character of a constructive trust, we perceive no reason why a bona fide dispute with respect to a claim, which, if established, would give rise to a constructive trust, should not be settled and discharged by an agreement of accord and satisfaction.
The judgment is reversed and the cause remanded, with instructions to enter judgment in favor of Salisbury.
. Hereinafter called Reliance Company.
. Hereinafter called Professional Company.
. Van Dyke v. Norfolk Southern R. Co., 112 Va. 835, 72 S.E. 659, 664; Pomeroy, Specific Performance of Contracts, 3d Ed., § 159.
. Jacoby v. Shell Oil Co., 7 Cir., 196 F. 2d 855, 858; National Waste Co. v. Spring Packing Corp., 7 Cir., 200 F.2d 14, 16, certiorari denied 345 U.S. 909, 73 S.Ct. 649, 97 L.Ed. 1344 ; 89 C.J.S. Trusts § 158, pp. 1079-1083.
. Jacoby v. Shell Oil Co., supra; Marshall v. Amos, Okl., 300 P.2d 990; Collins v. Shive, Mo., 261 S.W.2d 58; 89 C.J.S. Trusts § 158, p. 3081. See also, Kitt v. Kitt, 4 Utah 2d 384, 294 P.2d 791, 792.
. See United States v. Neel, 10 Cir., 235 F.2d 395, 399; United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746; Wilcox Oil & Gas Co. v. Diffie, 10 Cir., 186 F.2d 683, 696.
. Badger & Co. v. Fidelity Building & Loan Association, 94 Utah 97, 75 P.2d 669, 676.
. See also, Nevada Half Moon Mining Co. v. Combined Metals Reduction Co., 10 Cir., 176 F.2d 73, 76.
. Healy v. Commissioner of Internal Revenue, 345 U.S. 278, 282-283, 73 S.Ct. 671, 97 L.Ed. 1007; Scott on Trusts, Vol. 3, § 462.1; 89 C.J.S. Trusts § 139 p. 1015.
. Gendler v. Sibley State Bank, D.C.Iowa, 62 F.Supp. 805; In re Farmers State Bank of Amherst, 67 S.D. 51, 289 N.W. 75, 126 A.L.R. 619; Restatement of the Law of Restitution, § 160, Comment (a); Scott on Trusts, Vol. 3, § 462.1, p. 2316; 89 C.J.S. Trusts § 139 pp. 1018-1019.
. See Scott on Trusts, Vol. 3, § 481.3.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_opinstat | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
The FIDELITY AND CASUALTY COMPANY OF NEW YORK, a corporation, Appellant, v. BANK OF ALTENBURG, Appellee.
No. 15052.
United States Court of Appeals Eighth Circuit.
Oct. 27, 1954.
Gerald B. Rowan and Allen L. Oliver, Cape Girardeau, Mo. (Oliver & Oliver, Cape Girardeau, Mo., with them on the brief), for appellant.
Rush H. Limbaugh, Cape Girardeau, Mo. (Limbaugh & Limbaugh, Cape Girardeau, Mo., on the brief), for appellee.
Before GARDNER, Chief Judge, and THOMAS and COLLET, Circuit Judges.
COLLET, Circuit Judge.
This action is brought by the plaintiff, a small bank, to recover on a bond executed by defendant insuring it against losses caused by “false pretenses”. The loss resulted from a “check kiting” scheme conceived and carried out by one William J. Schneier. Usually there are two banking institutions involved in such a scheme. In this instance they were the plaintiff and the Brazeau Bank. Both were small banks in rural communities only a few miles apart. Both incurred losses in substantial amounts. The Brazeau Bank closed as a result. It was taken over by the Federal Deposit Insurance Corporation, which instituted an action on a bond substantially similar to the one involved herein for its loss. That case was determined by this court on appeal in Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933. The factual details in this case are amply stated in the trial court’s memorandum opinion, Bank of Altenburg v. Fidelity & Casualty Co., D.C., 118 F.Supp. 529, 530:
“This case is a sequel to Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933.
“William J. Schneier obtained money by false pretenses, from the Brazeau Bank, by depositing checks in his personal account in the Brazeau Bank, drawn on his partnership account in the name of H & F Truck Service in the plaintiff bank. Schneier, as an integral part of the fraud perpetrated on the Brazeau Bank, was drawing checks on his personal account in the Brazeau Bank and depositing them in the H & F Truck Service account in plaintiff bank, to cover checks deposited in the Brazeau Bank. Schneier was engaged in ‘check kiting’ and on a large scale.
“The plaintiff bank apparently first broke the chain when it refused payment on a check, drawn on it and deposited in the Brazeau Bank, for ‘insufficient funds.’ Thereafter, and within a period of days, each of the banks named returned all outstanding checks drawn by Schneier.
“Schneier’s relations with plaintiff bank extend from February to late December, 1950. The Brazeau Bank lost $18,490 and the loss forced it to close. Suit was brought and recovery had by the Brazeau Bank on a bond of the Hartford Accident & Indemnity Co., v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, protecting against loss resulting from false pretense. In this case the Bank of Altenburg seeks recovery of $15,338.71, plus interest, damages and attorney’s fees, on the same basis. Jury was waived. We now have the case for ruling on its merits.
“The principal issue now turns on defendant’s claim that plaintiff did not rely on Sehneier’s representation that checks deposited in it would be paid on presentation and Schneier did not deceive the plaintiff, and that the transactions between plaintiff and Schneier were in fact granting of loans and plaintiff’s loss results from nonpayment of the loans.
“The terms in the policy relied on for recovery are:
“‘(B) Any loss of Property through robbery, larceny (whether common-law or statutory), burglary, theft, false pretenses, hold-up, misplacement, mysterious unexplainable disappearance, damage thereto or destruction thereof, whether effected with or without violence or with or without negligence on the part of any of the Employees, * * *.’
“The record shows that at the very time Schneier opened his account with plaintiff in February, 1950, he initiated his check kiting scheme and that it continued regularly thereafter until December 30, 1950. On December 26th Schneier deposited in the H & F Truck Service account in plaintiff bank a check in the sum of $6,963.14 drawn on the Brazeau Bank. On December 28th he made a deposit of a like check for $6,894.70. On December 30th he made a deposit of a like check for $6,930.42. On December 30, 1950, a check was presented to plaintiff bank drawn by Schneier on the H & F Truck Service account which had been deposited in the Brazeau Bank. There were not sufficient funds in the account to pay it and the check was returned to the Brazeau Bank. In due course (three, four or five days), clearing through a St. Louis bank, the three checks drawn on the Brazeau Bank described above were returned to plaintiff marked ‘insufficient funds’ by the Brazeau Bank. Prior to the return of these three checks plaintiff had permitted Schneier to check out most of the money purported to be represented by the three checks. Plaintiff was able to reduce its loss from a balance in the account and by other means, from $20,788.26 to $15,338.-71. After notice to defendant of such loss, payment on the bond was refused. This suit followed. There is no controversy as to the physical manner in which Schneier operated to obtain the funds from the two banks, or the amount of plaintiff’s loss on the three checks.
“Defendant charges, and plaintiff concedes, before recovery can be had in this suit, plaintiff must establish that the essential elements of obtaining money by false pretenses existed at the time it paid out funds on the three checks which caused its loss. One essential element of a case based on false pretense, and which is brought into issue, is that ‘the representation must be believed by the person allegedly defrauded and must be relied on and be the effective cause in inducing the party to whom it was made, to part with his property.’ (Defendant’s brief.) By brief, defendant reduces its defense to a charge that plaintiff ‘was in fact simply loaning Schneier the money represented by the checks for the three, four or five days it took them to clear through the St. Louis Clearing House.’
“The details of Schneier’s fraudulent operations are more fully developed in this case than in the Brazeau Bank case. To reach a conclusion as to whether plaintiff did or did not believe and rely upon Schneier’s representations that the three checks involved would be paid on presentation to the Brazeau Bank, we must view the case as the situation was presented to those in charge of plaintiff bank on the occasions and at the time under inquiry. Objectively, the issue before the court is not a simple one. This results in part from a record that reveals at once all the facts of Schneier’s transactions with the plaintiff, from the inception of his account until the fraud was stripped of all pretense, rather than as Schneier’s operations were presented from day to day to those in charge of plaintiff bank’s operations.
“The deposit slips and the records of the H & F Truck Service account in plaintiff bank shed light on the question as to how the situation developed to those in charge of plaintiff bank, at the time the deposits were made. From the inception of the account on February 14th until December 30th, the deposit slips are uniform in some particulars. Excepting one on April 20, 1950, for $22.50, all deposits are for large sums. They vary from $6,000 to $8,000. With the exception of two deposits they were always made up of one large check and a number of small items, and in some cases currency was included. The large check in each deposit was, according to the undisputed testimony, drawn on the Brazeau Bank. The large check in each deposit did not change significantly in the account throughout the whole period. They were for odd sums and varied between $6,000 and $7,000. The one included in the initial deposit was for $6,361.69, in a total deposit of $6,431.43. The last one was for $6,930.42, included in a total deposit of $7,064.11. The deposit slips show deposits made with substantial regularity, generally from two to three to four days apart.
“The ledger sheets are also material on the issue. They show the account, opening on February 14, 1950, was first overdrawn on April 14th in the sum of $4,026.80. This overdraft was taken up the following day by a deposit of $6,546.33, including a check on the Brazeau Bank for $6,352.25. Thereafter the overdrafts were as follows: On May 24, $122.34; May 26, $4.78; May 29, $97.76; June 12, $766.62; June 16, $1,101.95; June 19, $926.50; June 23, $1,140.02. There were no more overdrafts until October 13 when there was one for $5,398.32. On October 30 there was an overdraft of $103.07; November 3,, $521.93; November 6, $10.28; November 10, $264.19; November 13, $232.40; November 29, $46.88; December 15, $313.09; December 16, $827.55; December 18, $919.88. In every instance of overdraft it was taken up the day following by a substantial deposit which always included a check drawn by defendant on his personal account in the Brazeau Bank. The average daily balance was in excess of $3,400.
“The large checks included in Schneier’s deposits drawn on the Brazeau Bank eventually gave concern to the employees in charge of plaintiff bank. After the November board meeting Mr. Poppitz, the cashier, told Mr. Mueller, a member of the Board of Directors, of the large cheeks being deposited by Schneier. Mueller lived in the same village as Schneier and was acquainted with him. Poppitz asked Mueller to see Schneier ‘and find out why he was writing such big checks.’ Mueller talked to Schneier with the result:
“ ‘Mr. Schneier told me that he was buying a lot of poultry and eggs and livestock, that he was selling that here in St. Louis, collecting the money in his name, taking it to Brazeau and depositing it in his account, and then he would write a check to the H. & F. Truck Line to settle it, trucking and all/
“The regularity of the inclusion by Schneier in his deposits in plaintiff bank of large checks drawn by him on the Brazeau Bank raised a question, among those who were in charge of plaintiff bank, as to Schneier’s method of financial operations. The subject was discussed among the employees. Mr. Preusser, assistant cashier of plaintiff bank, testified to this. He summed up the conversations among the employees as follows:
“ ‘We discussed the matter, and whenever we discussed it, we always ended in the same conclusion, that the H. & F. Truck Service met their obligations, and just a few times it happened that they did not have enough there, and we called them by telephone and they brought a deposit so we could pay their checks.’
“On cross-examination he gave the following testimony:
“‘Q. * * * if you had not permitted the drawing against an account until a check had time to clear and be collected, then Mr. - the H. & F. Truck Service account in that sense, during all the period of 1950, would never have had a balance in it, would it? A. Could be.
******
“ ‘Q. It was obvious to you during your conversations with Mr. Poppitz and Mr. Meyr that what Mr. Schneier was doing was covering a check drawn against the H. & F. Truck Service account by a check drawn against his personal account in the Bank of Brazeau? A. That is the way it seemed.
“ ‘Q. Yes. And that is what you discussed with each other, is it not? A. Yes.’
“Under examination by the Court the witness testified:
“ ‘Q. You never did think he had enough money to cover those checks? A. No, mostly likely not.
“ ‘Q. Did you think then that he was using the funds of the two banks to finance his business with? A. Well, that is the way it seemed.'
“The above testimony was qualified on re-examination as follows:
“ <q_ * * * Now, did you say that that was obvious to you then or that it is obvious to you now? A. No, toward the last. It wasn’t about every one of the checks.’
“This testimony reflects the attitude and reasoning with respect to care and judgment of those in charge of plaintiff bank at the time the transactions were taking place that eventually led to plaintiff’s loss. We quote further:
“ ‘Q. * * * when you were discussing the matter with the other employes of the bank, did you ever take the account and compare the deposits of checks on the Bank of Brazeau with checks drawn on your bank and deposited with the Bank of Brazeau, how they seemed to correspond, did you ever do that? A. No, we did not do that.
******
“ ‘A. We noticed the big checks.
“ ‘Q. You noticed they were substantial, in like amounts ? A. That is right.
“ ‘Q. What conclusion did you draw from that? A. Well, we just did not know what he was doing.
“ ‘Q. * * * did you have any question whether he was transacting a legitimate business or not, so far as the two banks were concerned ?
******
“ ‘A. Well, we discussed that, too, and the conclusion we always got or the point we always arrived at was that he did meet his obligations.
“ ‘Q. That he did? A. That he did meet his obligations at the bank and did not overdraw.
“ ‘Q. As long as that was the situation, you would let the matter ride, is that right? A. That is right.’
“On October 28, 1950, the cashier of the Brazeau Bank wrote to plaintiff bank regarding the activities of Schneier. In this letter it was indicated that the Brazeau Bank was suspicious about the large checks which were coming through for deposit drawn on the H & F Truck Service and the large checks being drawn on Schneier’s personal account in the Brazeau Bank. This letter mentioned that these transactions happened about three times a week. The letter of the Brazeau Bank was not answered. Several weeks later a member of the board and another officer from plaintiff bank visited the Brazeau Bank. Only generalities were discussed. No examination was made of the personal account of Schneier.
“About December 15th Mr. Vogel, who was the partner of Schneier in the H & F Truck Service, showed Mueller the H & F Truck Service bank statement. The partner was without knowledge why Schneier was writing the large checks.
“Mr. Mueller again saw Schneier about December 15th. This time Schneier volunteered a statement about getting working capital in St. Louis. Again the discussion was general, surrounded with uncertainty.
“ ‘Questions by the Court:
“ ‘Q. * * * You say when you went to see Mr. Schneier, about December 15, 1950, is that correct? A. Yes.
“ ‘Q. That he said after the first of January he was going to get some working capital from St. Louis? A. Yes.
“ ‘Q. And he said he would not write any more big checks? A. That is right.
“ ‘Q. How did you associate the getting of capital with ceasing to write big checks? A. I just did not understand it. I did not know how he really was operating.
“ ‘Q. You did not put any significance in the connection of those two? A. No.’
“Mueller was asked if he had ever heard of the term ‘check kiting.’ It was a new word to him. T always figured the bank account, there is enough money there to cover it, alt your checks, and there is a balance over, there couldn’t be anything wrong with the bank account.’
“The assistant cashier’s lack of knowledge of kiting checks is typical of the other employees of the bank. He had never had any experience with the fraudulent process. It had never happened before in the experience of the Bank of Altenburg.
“A Judge, over the years, hears detailed various schemes used by cunning and resourceful criminals to defraud. This does not aid in understanding the viewpoint of the operators of small banks in isolated communities, such as the plaintiff bank and the Brazeau Bank. It will not do to use the norm of urban bankers, lawyers or businessmen. We must not forget the customers of these two banks are the neighbors of the directors and employees of the banks. Small town and isolated residents are just as inclined to suspect strangers as they are prone to trust their neighbors. There is. very little in the life of the individual, business or otherwise, that is not common knowledge in the small community. Belief in the integrity of their neighbors is seldom disappointed. How long plaintiff bank has operated we do not know, but until Schneier disrupted the quiet complacency of the community, apparently no one in it had ever heard of check kiting. The record reveals the employees of plaintiff bank first had a question about Schneier’s account and eventually the question became a suspicion, but to reach a conclusion that Schneier was engaged in a fraudulent enterprise was a thought they resisted as though it were the plague. That this attitude is real we think is evidenced by the bank’s action when at last they were compelled to face the reality of Schneier’s fraud. A number of checks given by Schneier for small sums, but in their total several hundred dollars, came to the bank for payment. Apparently they were in payment to small farmers for livestock that Schneier had purchased. These checks were paid with full knowledge on the part of the bank that the act of paying them was increasing the bank’s loss. When the Court asked the official, while on the stand, why the bank would do such a thing, his face took on a pained expression and without any hesitancy or apparent feeling of lack of business judgment, he replied that the bank did not want to disappoint the holders of the checks, or words to that effect. The naiveness of the operators of plaintiff bank, in their belief in the common honesty of a man they knew, would be refreshing did it not at the same time represent, in its use, such utter incompetence for the work of handling other people’s money. But defendant wrote the bond in issue with full knowledge of the bank’s location.
“There is direct evidence that the employees in charge of plaintiff bank, believed Schneier’s checks, constituting the loss in suit, would be honored on presentation to the Bank of Brazeau. There is circum-; stantial evidence of such belief in the payment of the amount of the checks, excepting a small sum, out of the bank’s funds before the checks cleared. Additional facts presented by this record support the contention of plaintiff that they relied upon Schneier’s representation that the checks would be paid on presentation to the Brazeau Bank. Plaintiff was dealing with Schneier as a resident of the community of long standing, a man of supposed honor and good reputation. Schneier was in a business of large operations involving substantial sums of money for the purchase of livestock and its transportation- to St. Louis. The plaintiff bank and the Brazeau Bank were competitors. Schneier’s account on paper was a valuable account with its daily balance in excess of $3,400 and neither bank was willing to reveal its records to the other bank or do anything to lose Schneier’s account except as a last resort. Schneier had always taken care of overdrafts promptly. The Brazeau Bank, with as much knowledge apparently as plaintiff bank, permitted itself to be used by Schneier with the same apparent lack of grasp of the true situation as did plaintiff, to its loss and destruction.
“We find plaintiff has carried the burden of proof by showing, by the greater weight of the credible evidence, that the losses sued for come within the provisions of the bond.
“The plaintiff bank was negligent in handling the Schneier account in that it failed to use that degree of care to protect itself from loss which an ordinarily prudent person would use under the same or like circumstances. Loss by false representation, incurred as the result of negligence, is not a defense.
“The deposit of the three checks sued on did not constitute a loan by the plaintiff bank to Schneier. When the loan theory of defense is rejected, we must find that the plaintiff either was the victim of Schneier’s false pretenses, or hold that plaintiff bank deliberately gave away' its funds in an amount equal to almost one-third of its capital. To hold plaintiff did not rely on Schneier’s representations, and did not believe the checks would be paid on presentation can lead to no other conclusion. The latter conclusion we cannot accept. It would be an act of such character as to be dishonest. We think plaintiff bank’s officers and employees were grossly negligent, but not dishonest.
“Other issues raised by the answer are determined by the law as declared by the Court of Appeals in the Brazeau Bank case.”
The defenses relied upon, which are preserved on this appeal are (1) “that the evidence does not establish the essential elements to make a case of obtaining money or property by false pretenses,” (2) that the case is controlled by the law of Missouri, that the offense of false pretense has been defined by Missouri Statute, and under that law the facts do not make out the Missouri statutory crime of obtaining money by false pretenses, (3) that the loss sustained by plaintiff was not covered by the bond because it was not a loss from plaintiff’s premises, and (4) that the loss resulted from a transaction in the nature of a loan which was specifically excluded from coverage in the bond.
Concerning the first assignment, it is asserted that two essential elements of the offense of obtaining money by false pretense are lacking — that there must be a representation of a past or existing (but not future) fact, and the representation must be believed by the person defrauded and must be relied upon and be the effective cause in inducing the party to whom it was made to part with his property. (We have stated those elements in the language used by defendant in its brief.)
Defendant says that Schneier’s representation to plaintiff bank was in effect that the checks he deposited with it drawn on the Brazeau Bank would be paid when presented to that bank. It says that was a representation of a promissory nature of a future, not an existing fact. But that is not the manner in which the plaintiff’s officials construed Schneier’s conduct in presenting the checks to it for deposit. The representation implied was that sufficient funds were on deposit to meet the checks. That was a representation of a present existing fact.
The second element said to be lacking, that the bank officers must have believed the implied representation of Schneier that the checks were good, either existed or was absent, dependent upon the facts developed at the trial. The charge that this element was not established amounts to an assertion that the evidence did not sustain the trial court’s conclusion to the contrary. The case was tried without a jury. The trial court developed this question in some detail in the memorandum opinion heretofore quoted. Our examination of the record discloses no justification for rejecting that finding. The further contention made in connection with the foregoing argument, that if plaintiff’s officials did not actually know the implied representation was false they should have known, was properly answered by the trial court that negligence of those officials is not, under the bond, a defense to a loss from false representations.
The second assignment that under the law of Missouri the established facts did not make out a case of false pretenses but at most only constituted the misdemeanor of uttering a check with knowledge that there were insufficient funds in the bank upon which it was drawn for its payment, is based upon the premise that the term “false pretenses” used in the bond must be given the same technical meaning in which the term is used in the Missouri statute defining that criminal offense. We do not explore that question further than the authorities cited by both parties. Those authorities are not decisive of the question either way. For present purposes we will assume that defendant’s statement of the law of Missouri is correct. We do not recommend that assumption when the correctness thereof is decisive. It is not decisive here, because the scheme practiced did fall within the Missouri statutory definition of false pretenses.
Defendant assumes that all that was involved in the false pretenses practiced was the presentation of a check and obtaining money or something of value therefor, knowing at the time that there were insufficient funds in the bank upon which it was drawn. Such conduct is characterized by § 561.460, RSMo 1949, V.A.M.S., as a misdemeanor and does not use the term false pretense in defining the offense. In that respect the definition of the misdemeanor differs from the definition of other offenses which do include in their definition the term false pretenses. Statutes defining offenses in which the term false pretenses is used are § 561.370 and § 561.-450 RSMo 1949, V.A.M.S. Section 561.-370 uses the following language:
“561.370. Obtaining money, goods, by false pretenses. — Every person who, with intent to cheat or defraud another, shall designedly, by color of any false token or writing or by any other false pretense, * * * obtain from any person any money, personal property, right in action or other valuable thing or effects whatsoever, * * * shall upon conviction thereof be punished in the same manner and to the same extent as for feloniously stealing the money, property or thing so obtained.”
The pertinent language of § 561.450 is:
“561.450. Confidence game or fraudulent checks — penalties.—Every person who, with the intent to cheat and defraud, shall obtain or attempt to obtain, from any other person, or persons, any money, property or valuable thing whatever by means or by use of any trick or deception, or false and fraudulent representation, or statement or pretense, or by any other means or instrument or device, commonly called ‘the confidence game,’ or by means or by use, of any false or bogus check or by means of a cheek drawn, with intent to cheat and defraud, on a bank in which the drawer of the check knows he has no funds or by means or by use, of any corporation stock or bonds or by any other written or printed or engraved instrument or spurious coin or metal, shall be deemed guilty of a felony and upon conviction thereof be punished by imprisonment in the state penitentiary for a term not exceeding seven years.” (Italics supplied.)
Check kiting, as practiced here, involves more than the mere use of a check with insufficient funds in the bank to meet it. It involves a series of acts which together constitute a scheme, a studied device, false pretenses
built upon a series of false representations designed to lull the banks involved into a feeling of confidence and security. The bad check is given. Money or credit is received from a bank other than the one on which the check is drawn. If credit is taken, that credit is usually drawn on immediately. The check kiter then deposits a check in the bank upon which the first check is drawn before the first check arrives there. The second check is drawn on the bank from which the first money or credit is received. Credit is taken for it and that credit covers the first check when it comes in and possibly additional credit. Then the process is carried on, back and forth, until the scheme is discovered. In this instance it went on from February, 1950, until late in December, 1950. The practice is a false pretense under § 561.370, if not a “trick” or “deception” involving a false and fradulent representation, or a “confidence game” under § 561.450. See State v. Whitledge, Mo., 269 S.W.2d 748, 751 The mere fact that the giving of a check with insufficient funds in the bank to meet it is one of the series of acts constituting the false pretense or the trick, device, or game, does not take the practice of “check kiting” out of the definition of the offenses defined by § 561.370 or § 561.450. Neither State v. Richman, 347 Mo. 595, 148 S.W.2d 796, nor State v. Griggs, Mo., 236 S.W.2d 588, relied on by the defendant, so holds. In each of those cases (which were criminal prosecutions) the act constituting the offense charged was the giving of a worthless check, in the Richman case a check with insufficient funds in the bank to meet it, in the Griggs case with no funds in the bank upon which it was drawn. No such scheme, device, game or false pretenses involved in check kiting was involved in those cases. We held in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933, 937:
“We think the District Court correctly concluded that the loss sustained by the Brazeau Bank was directly caused by false pretenses and was within the coverage of the bond.”
(See also Federal Deposit Ins. Corp. v. Hartford Ace. & Indem. Co., D.C., 106 F.Supp. 602.) While the question was not presented in the Brazeau Bank case in the way it is now presented, we adhere to the opinion there expressed and supplement our former expression by now further holding that the conduct practiced on plaintiff herein not only constituted false pretenses under the ordinary meaning of the term but also constituted false pretenses under the Missouri statutory definition of the criminal offense.
The third assignment is based upon the following premises. It is said that “Property”, as defined in the bond, refers to tangible property, that the insuring clause requires that a loss of such tangible property must occur through false pretenses and that the loss must be of tangible property from defendant’s premises as a result of false pretenses practiced on defendant’s premises. From those premises it is argued that the loss in this instance was not covered by the bond. The argument is both resourceful and ingenious. It was presented to the trial court in the Brazeau Bank case, Federal Deposit Ins. Corp. v. Hartford Acc. & Indem. Co., supra, and overruled, it was not presented to us on the appeal of that case. See Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., 8 Cir., 204 F.2d 933.
We are unable to agree with the argument that the bond contemplated reimbursement only in the event tangible or physical property was taken from the bank by means of false pretenses. The bond was to cover banking operations. The losses covered were very broad. The term “Property” was defined to include a multitude of types of assets of the bank, including “money, currency, coin * * * securities, evidences of debt, * * * certificates of deposit * * * rights, transfers, coupons, drafts, bills of exchange, acceptances, promissory notes, checks, money orders, * * * and all other instruments similar to or in the nature of the foregoing * * * and chattels which are not hereinbefore enumerated and for which the Insured is legally liable.” Applying the language used in the Brazeau Bank case, Hartford Accident & Indemnity Co. v. Federal Deposit Ins. Corp., supra, in construing another provision of a similar bond, “it is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe” this bond as not covering assets of the bank lost through a “check kiting” scheme practiced upon it.
The fourth and last assignment that the loss resulted from a transaction in the nature of a loan is based upon an exclusion clause of the bond that it did not cover: “Any loss the result of the complete or partial nonpayment of or default upon any loan made by or obtained frpm the Insured, whether procured in good faith or through trick, artifice, fraud or false pretenses, except *
The facts were developed in more detail in this case than in the Brazeau Bank case, but the essential elements of the scheme practiced in both cases were the same. In fact, as heretofore shown, the series of events and practices which resulted in the loss by the Brazeau Bank constituted the identical scheme, device and false pretenses which brought about the loss in this case. In the former case we said:
“ ‘Contracts of insurance, like other contracts, must be construed according to the terms which the parties have used, to be taken and understood, in the absence of ambiguity, in their plain, ordinary, and popular sense.’ Bergholm v. Peoria Life Ins. Co., 284 U.S. 489, 492, 52 S.Ct. 230, 231, 76 L.Ed. 416 ; State ex rel. Prudential Ins. Co. of America v. Shain, 344 Mo. 623, 627, 127 S.W.2d 675, 677.
“It is not conceivable to us that any disinterested banker, insurance underwriter, or lawyer would construe the word ‘loan’, as used in the exclusion clause of this indemnity bond, to cover the obligation [of Schneier] imposed by law to reimburse a bank for money or credit obtained through the use of worthless checks.”
The same reasoning applies here. Finding no reversible error, the judgment appealed from is affirmed.
. From the insuring clause: “ ‘Any loss of property * * * whether effected with or without violence or with or without negligence on the part of any of the Employees * * ”
. “561.460. Checks or drafts drawn when funds insufficient. Any person who, to procure any article or thing of value or for the payment of any past due debt or other obligation of whatsoever form or nature or who, for any other purpose shall make or draw or utter or deliver, with intent to defraud any check, draft or order, for the payment of money, upon any bank or other depositary, knowing at the time of such making, drawing, uttering or delivering, that the maker or drawer, has not sufficient funds in or credit with, such bank or other depositary, for the payment of such check, draft, or order, in full, upon its presentation, shall be guilty of misdemeanor, and punishable by imprisonment for not more than one year, or a fine of not more than one thousand dollars, or by both fine and imprisonment.”
. Decided July 12, 1954, reported August 24, 1954, subsequent to the filing of briefs in this case.
. It is interesting to note that in State v. Evelyn Hartman, Mo., 272 S.W.2d 276, the Griggs case was overruled in certain important respects. The Hartman case was transferred from Division Two to the Missouri Supreme Court en banc and there argued and submitted on October 7, 1954. The opinion in the Hartman case by Division Two has not, of course, under these circumstances, been reported. Having examined the Division opinion in the Hartman case, and reaching the conclusion that its outcome in the court en banc will not be decisive in this case, we do not await the final determination of the Hartman case.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_usc1 | 28 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Earle R. ROBINSON, Petitioner-Appellant, v. Louis BERMAN, Respondent-Appellee.
No. 78-1367.
United States Court of Appeals, First Circuit.
Submitted Jan. 5, 1979.
Decided March 23, 1979.
Willie J. Davis, Boston, Mass, by appointment of the Court, on brief for petitioner-appellant.
Robert S. Potters, Asst. Atty. Gen., Criminal Division, Francis X. Bellotti, Atty. Gen., and Stephen R. Delinsky, Asst. Atty. Gen., Chief, Criminal Bureau, Boston, Mass., on brief, for respondent-appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
BOWNES, Circuit Judge.
On November 10, 1975, petitioner-appellant, Earle R. Robinson, forced a fifteen year old male hitchhiker to commit fellatio at knifepoint and was sentenced to state prison for violating Mass.Gen.Laws ch. 265, § 22A, which prohibits “sexual intercourse or unnatural sexual intercourse with a child under sixteen ... by force and against his will or . . .by threat of bodily injury.” He brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254, asserting that the statutory term “unnatural sexual intercourse” is unconstitutionally vague. The district court ruled that judicial decisions of the Massachusetts courts had put petitioner on notice that his conduct was illegal and granted a motion to dismiss. We affirm.
Several general principles govern our determination as to whether Mass.Gen. Laws ch. 265, § 22A is unconstitutionally vague. A state may not hold an individual “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). See also Rose v. Locke, 423 U.S. 48, 49, 96 S.Ct. 243, 46 L.Ed.2d 185 (1975). Criminal statutes must, therefore, be sufficiently specific to give fair notice of what conduct is forbidden. Id. at 49-50, 96 S.Ct. 243; Colten v. Kentucky, 407 U.S. 104, 110, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972). Unless a statute impinges upon the exercise of first amendment rights, it will usually be appraised “in light of the facts of the case at hand,” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975), and will not be held void for vagueness if the person challenging it had sufficient warning that his own conduct was unlawful. Id. at 553. See also United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975). A statute whose terms have a commonly understood meaning or have been clarified by judicial explanation or by application to particular conduct is not unconstitutionally vague. See Rose v. Locke, supra, 423 U.S. at 50 — 52, 96 S.Ct. 243.
We recently discussed and applied these principles in Balthazar v. Superior Court, 573 F.2d 698 (1st Cir. 1978). There, we held that Mass.Gen.Laws ch. 272, § 35, which proscribes “unnatural and lascivious acts,” was unconstitutionally vague as applied to a person who committed fellatio and oral-anal contact. Id. at 699. Although ruling that at the time Balthazar committed his acts, the statute lacked a well understood meaning and had not been sufficiently defined or applied to Balthazar’s conduct, we noted that subsequent Massachusetts decisions, e. g., Commonwealth v. Balthazar, 366 Mass. 298, 318 N.E.2d 478 (1974); Commonwealth v. Deschamps, 1 Mass.App. 1, 294 N.E.2d 426 (1972), had narrowed the statute and had applied it to fellatio. Balthazar v. Superior Court, supra, 573 F.2d at 702.
Robinson contends that our decision in Balthazar compels the conclusion that ch. 265, § 22A is unconstitutionally vague. He misreads our opinion. The term “unnatural sexual intercourse,” standing alone, could well be found to have no more commonly understood meaning than “unnatural and lascivious act,” the terms found constitutionally infirm in Balthazar. However, the Massachusetts Supreme Judicial Court had given a clear warning in 1974 that forced fellatio was illegal. Commonwealth v. Bal thazar, supra, 366 Mass. at 302, 318 N.E.2d at 481. See also Commonwealth v. Deschamps, supra, 1 Mass.App. 1, 294 N.E.2d 426. Petitioner is, therefore, in a poor position to argue that he had no notice that his 1975 conduct was prohibited.
Robinson protests, however, that the Balthazar case concerned ch. 272, § 35, a different statute from the one under which he was convicted. We think this is immaterial. The essence of the fair warning requirement embodied in the due process clause is that a person should not be punished for an act he could not know was criminal. We agree with the Massachusetts Supreme Judicial Court that a person who forces another to commit fellatio on him while on notice that it is an “unnatural and lascivious act” within the meaning of one criminal statute had no cause to complain that he had no notice his conduct violated another statute prohibiting “unnatural sexual intercourse.” Commonwealth v. Gallant, Mass.Adv.Sh. (1977) 2254, 2266, 2272, 369 N.E.2d 707, 713 (1977). The petitioner cites no authority to the contrary.
The petitioner, since he received a fifteen to eighteen year sentence, understandably expresses concern that the maximum life penalty under ch. 265, § 22A is much greater than the maximum five year penalty under ch. 272, § 35. Nonetheless, an argument premised on the unconstitutionality of a statute for vagueness does not address the issue of differing potential punishments. Unless prosecutorial abuse of discretion in charging petitioner under the harsher statute is alleged — and none is here — we see no due process violation. See generally Commonwealth v. Gallant, supra, Mass.Adv.Sh. at 2267 n.11, 369 N.E.2d at 713 n.11; Commonwealth v. Gonzales, Mass. App.Adv.Sh. (1977) 1211, 1214-15, 369 N.E.2d 1038, 1039 (1977).
Although the district court did not base its decision on procedural grounds, the Commonwealth argues on appeal that dismissal of the petition was warranted because (1) the record does not show that Robinson properly raised his claim in state court, as required by Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976), and (2) by failing to appeal to the highest state court, he failed to exhaust state remedies, as required by 28 U.S.C. § 2254(b). We address these contentions in order.
The Commonwealth failed to raise the first issue in the district court and, hence, will be barred from raising it here for the first time. With regard to the second issue, we have recognized a limited exception to the exhaustion requirement when the question raised by petitioner has recently been decided by the highest state court. Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973); Belbin v. Picard, 454 F.2d 202, 204 (1st Cir. 1972); Walsh v. Picard, 446 F.2d 1209, 1210 n.2 (1st Cir. 1971), cert. denied, 407 U.S. 921, 92 S.Ct. 2465, 32 L.Ed.2d 807 (1972).
When the highest state court has addressed itself to the issues raised, and there are no intervening Supreme Court decisions on point, nor any indication that the state court intends to depart from its former decisions, the exhaustion doctrine does not require a petitioner to present his claims in state court.
Sarzen, supra, at 1082. In other words, a petitioner need not exhaust state remedies if it would be futile to do so.
Petitioner argues that he should not have to exhaust the state appellate procedure since the Massachusetts Supreme Judicial Court recently construed “unnatural sexual intercourse” under a separate statute, Mass. Gen.Laws ch. 265, § 23, as including fellatio, Commonwealth v. Gallant, supra, Mass. Adv.Sh. (1977) 2254, 369 N.E.2d 707, and there is no reason to believe it would not likewise construe the same language in ch. 265, § 22A, the statute under which Robinson was convicted.
In Gallant, the Massachusetts Supreme Judicial Court rejected an argument that Mass.Gen.Laws ch. 265, § 23, which prohibits “unnatural sexual intercourse” with a child under sixteen, was unconstitutionally vague as applied to a person who had a child commit fellatio. Id. at 2256, 369 N.E.2d at 709. The petitioner in this case was convicted under ch. 265, § 22A, a closely related statute which also prohibits “unnatural sexual intercourse” with a child under sixteen, but requires an additional showing of force or threat of bodily injury. The words “unnatural sexual intercourse” were inserted in both statutes by the same 1974 amendment redefining rape and related offenses, 1974 Mass.Acts, ch. 474, and were presumably intended to have the same meaning in both statutes. Commonwealth v. Mamay, Mass.App.Ct.Adv.Sh. (1977) 1216, 1218, 369 N.E.2d 1036, 1037; Commonwealth v. Gonzales, supra, Mass.App.Ct.Adv.Sh. at 1213, 369 N.E.2d at 1039.
Since the highest state court recently construed the identical language in a similar statute as extending to the behavior here complained of, we think that the narrow exception to the exhaustion requirement is aptly invoked. Because a prior decision by the Massachusetts Supreme Judicial Court had put petitioner on fair notice that his conduct was illegal, Commonwealth v. Balthazar, supra, 366 Mass. at 302, 318 N.E.2d at 481, no due process violation can be premised on his conviction under Mass.Gen.Laws ch. 265, § 22A.
The order of the district court denying the petition for a writ of habeas corpus is affirmed.
. In Balthazar, we noted that a precursor statute to Mass.Gen.Laws ch. 272, § 35 had been construed by the Massachusetts Supreme Judicial Court in Commonwealth v. Dill, 160 Mass. 536, 537, 36 N.E. 472, 473 (1894), to include “any mode of unnatural copulation,” but that the term “unnatural copulation” was itself vague. 573 F.2d at 700-01.
. In his petition for a writ of habeas corpus, the petitioner says that, prior to trial, the Superior Court reported the following question: “Should the Court allow the defendant’s motion to dismiss an indictment . . . under . General Laws, Chapter 265, Section 22A . where the evidence [before the grand jury] shows that the defendant compelled the victim to commit fellatio upon the defendant?” The Supreme Judicial Court ruled that the motion should be denied because the adequacy of the evidence before the grand jury could not be tested by a motion to dismiss; it refused to address the argument that the statute involved was unconstitutionally vague because the motion to dismiss did not pose that question. Commonwealth v. Robinson, Mass.Adv.Sh. (1977) 2273, 2276-77, 368 N.E.2d 1210, 1212. The habeas petition does not state and the record is silent as to whether the petitioner then made a motion to dismiss on vagueness grounds in the trial court.
. The district court granted a summary dismissal of the petition rendering the record sparse. Notwithstanding this, the Commonwealth’s sole grounds for moving to dismiss were that the petition failed to state a claim upon which relief may be granted and petitioner’s failure to exhaust. We are not inclined to read the first ground more broadly than a general allegation that petitioner was lawfully convicted under a constitutional statute. We do not read it so expansively as to encompass an allegation that petitioner failed to raise his constitutional claim in state courts.
. The 1974 amendment changed the language of the following Massachusetts provisions: ch. 265, § 22 (forcible rape), ch. 265, § 22A (forcible rape of a minor), ch. 265, § 23 (consensual intercourse with a minor), ch. 265, § 24 (assault with intent to rape), ch. 265, § 24B (assault on a minor with intent to rape), and ch. 277, § 39 (definitions for indictment). It protected both males and females from sexual assaults and assessed the same penalties for unlawful sexual intercourse and unnatural sexual intercourse.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_usc2sect | 607 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
ITT LAMP DIVISION of the INTERNATIONAL TELEPHONE AND TELEGRAPH CORPORATION, Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee. MAURICE CONCRETE PRODUCTS, INC., Plaintiff, Appellant, v. Stephen A. MINTER, Commissioner of the Massachusetts Department of Public Welfare, Defendant, Appellee.
Nos. 7720, 7749.
United States Court of Appeals, First Circuit.
Dec. 14, 1970.
See also D.C., 318 F.Supp. 364.
Jerome H. Somers, Boston, Mass., with whom Louis Chandler, Stoneman & Chandler, Boston, Mass., Matthew E. Murray, Andrew M. Kramer,. and Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., were on the brief, for appellants.
William E. Searson, III, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., was on the brief, for appellee.
Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
These two cases, combined for purposes of appeal, present the question whether the defendant Commissioner of the Massachusetts Department of Public Welfare is wrongfully intruding in a labor dispute by making available welfare benefits to strikers who otherwise qualify under Massachusetts statutes providing for General Welfare and Aid to Families with Dependent Children, Mass.G.L. cc. 117 and 118. Plaintiffs claim that such state action alters the relative economic strength of the parties, thus entering a field preempted by the national policy guaranteeing free collective bargaining, in violation of the Supremacy Clause of the Constitution. Plaintiffs’ motions for injunctive relief were denied, the district court finding no evidence of irreparable injury and no reasonable probability of success on the merits. Although the strike against ITT was subsequently settled, the issue, we know from our own experience, has earlier vainly sought appellate review in this circuit and is likely again to be raised, bringing it close to the “recurring question” category, where significant public rights are involved and court review ought not, if possible, be avoided. See So. Pac. Terminal Co. v. I.C.C., 219 U.S. 498, 515-516, 31 S.Ct. 279, 55 L.Ed. 310 (1911) and Marchand v. Director, U. S. Probation Office, 421 F.2d 331 (1st Cir.1970). In any event, however, the appeal of Maurice Concrete presents the identical question.
Plaintiffs have not contended in their brief that the district court erred in finding that there was “no evidence to show to what extent the receipt of welfare payments will affect the continuation of the strike” but have based their claim of irreparable injury on the alleged interference with collective bargaining constituted by the present and prospective payments of welfare benefits. Since at least one of the appeals presents a case where a substantial number of strikers might possibly have qualified for welfare, we prefer to accept plaintiffs’ assumption that the issue of irreparable harm merges into and becomes indistinguishable from the issue of probable success on the merits. That is to say that if indeed it is probable that the present and prospective provision of welfare to indigent strikers would be held to frustrate the collective bargaining process, it is equally probable that irreparable injury would be suffered.
We therefore move to the question whether plaintiffs have demonstrated sufficient probability of prevailing on the merits. Automatic Radio Mfg. Co. v. Ford Motor Co., 390 F.2d 113, 115-116 (1st Cir.), cert. denied, 391 U.S. 914, 88 S.Ct. 1807, 20 L.Ed.2d 653 (1968). So far as our research indicates, this is the first occasion on which a federal court has considered a confrontation between the national policy of free collective bargaining and the administration of a state’s welfare laws. For nearly four decades the preemptive sweep of this national policy has, from Allen-Bradley Local 1111, UEW v. Wisconsin Emp. Rel. Bd., 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154 (1942) to Local 100, United Association of Journeymen & Apprentices v. Borden, 373 U.S. 690, 83 S.Ct. 1423, 10 L.Ed.2d 638 (1963), been interpreted by the Supreme Court in the context of real or potential conflict between federal and state tribunals in deciding issues arising out of activities protected or proscribed by sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157; 158, with occasional favorable consideration bestowed on state law invoked to prevent or compensate for acts of violence or for verbal excesses. All of the commentaries that have come to our attention have carried on the labor policy preemption debate in terms of these lines of cases with no mention of the problem posed by these appeals. While we do not know how long the challenged application of the Massachusetts Welfare Laws has existed, we know that New York has so administered its laws for eighteen years, Lascaris v. Wyman, 61 Misc.2d 212, 305 N.Y.S.2d 212, 216 (1969), and Illinois for twenty years, Strat-O-Seal Mfg. Co. v. Scott, 72 Ill.App.2d 480, 218 N.E.2d 227 (1966). This vacuum of case and comment on the issue at hand, while perhaps to be explained by the mooting of cases by strike settlements before the issue is reached, makes us pause before declaring probable the preemptive bar of federal labor policy as applied to the his-' toric state preserve of welfare.
The very novelty of the issue posed by the appeals places it outside of the focus of San Diego Building Trades v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1958), its ancestors and progeny. For Garmon, a deliberate effort by the Court to clarify standards relating to preemption in the labor-management field, was concerned with the specific subject matter of sections 7 and 8 of the National Labor Relations Act, 29 U.S.C. §§ 157, 158 — the protection of concerted activities and the proscription of unfair labor practices — both responsibilities having been vested in a single tribunal, the National Labor Relations Board. The bar against state action in Garmon, therefore, covers state regulation of conduct or activities which are clearly or arguably “within the compass” of sections 7 and 8 and therefore within the sole jurisdiction of the Board. Garmon, supra at 245, 79 S.Ct. 773. The administration of state welfare programs so as to render eligible individual strikers who otherwise qualify does not even arguably fall within the zone delineated in Garmon.
What we therefore confront is the question of applying the Supremacy Clause to a non -Garmon situation, where the asserted conflict is not an invasion by the state into an area of conduct regulated by a national instrumentality but a tangential frustration of the national policy objective of unfettered collective bargaining by state economic sustenance of some of the individuals who participate in federally protected, concerted activity. In such a situation, a balancing process seems called for under the general approach to preemption followed by the Supreme Court, in which both the degree of conflict and the relative importance of the federal and state interests are assessed. Note, Federal Preemption: Governmental Interests and the Role of the Supreme Court, Duke L.J. 484, 510, 511 (1966). Where Congress has not clearly manifested its purpose to exclude state action which takes the form of exercise of its historic police powers, such state action will not be invalidated under the Supremacy Clause, “in the absence of persuasive reasons”, Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963), or unless the administration of the state law “palpably infringes” upon the federal policy. Southern Pac. Co. v. Arizona ex rel. Sullivan, 325 U.S. 761, 766, 65 S.Ct. 1515, 89 L.Ed. 1915 (1945). See also Head v. New Mexico Bd. of Examiners, 374 U.S. 424, 83 S.Ct. 1759, 10 L.Ed.2d 983 (1963); Buck v. California, 343 U.S. 99, 72 S.Ct. 502, 96 L.Ed. 775 (1952).
On neither count — the issue of extent of conflict or the relative strength of the federal and state interests — would we feel confident in any a priori judgment. A court would first have to determine the quantum of impact on collective bargaining stemming from the granting of welfare benefits' to strikers. If this is found substantial a court would then have to weigh the impact on the state of declaring needy strikers and their families ineligible for welfare against the extent to which making them eligible stripped state government of its neutrality in a labor-management dispute.
Such weighing exércises could not be restricted to an ad hoe exploration of the microcosm of these particular disputes. A court must deal with “classes of situations” and not “judgments on the impact of * * * ' particular conflicts on the entire scheme of federal labor policy and administration”, Garmon, supra, 359 U.S. at 242, 79 S.Ct. at 778. Under such an approach, a court would be interested in how many states permit strikers to receive welfare; whether or not strikes tend to be of longer duration where welfare is received; any studies or expert testimony evaluating the impact of eligibility for benefits on the strikers’ resolve; a comparison between strike benefits and welfare benefits; the impact of the requirement that welfare recipients accept suitable employment; how many strikers actually do receive welfare benefits; and a host of other factors. In addition, the state’s legitimate interests must also be considered: its interests in minimizing hardship to families of strikers who have no other resources than the weekly pay check, its concern in avoiding conditions that could lead to violence, its interest in forestalling economic stagnation in local communities, etc.
This very catalogue of data relevant to a macrocosmie weighing, which a court, if called upon would have to undertake, indicates the preferable forum to be the Congress. Congress would be particularly appropriate in resolving this issue. The activity allegedly intruding into federal labor policy is not solely a state activity but rather a joint state-federal program. Congress has established the minimal requirements with which participating state welfare plans must comply. 42 U.S.C. § 602, et seq. We do not attribute heavy weight to Congressional silence, but we would doubt that, if striker eligibility for welfare had a significant impact on labor-management relations, Congress would be unaware of that impact. Moreover, if the issue proves to be finely balanced, after weighing all the evidence, it may be a sufficient justification for upholding the state action that Congress is always free to provide specifically for preemption. See Penn Dairies v. Milk Control Comm., 318 U.S. 261, 275, 63 S.Ct. 617, 87 L.Ed. 748 (1943).
In sum, wholly apart from the inadequacy of the evidence before the district court, we have substantial doubt that a significant frustration of federal collective bargaining policy is effected by the granting of welfare benefits to indigent strikers or that, even so, the state interest is so insubstantial compared to the federal interest that Congress must be supposed to have deprived the state of such power to serve that interest. We accordingly hold that the district court did not err in concluding that plaintiffs’ case did not have a sufficient probability of prevailing on the merits.
There remains for our consideration plaintiffs’ contention that the granting of welfare benefits to strikers violates the provisions of the Massachusetts Welfare Statutes and its federal counterpart, in that strikers, having voluntarily left their jobs, are persons who have “without good cause * * * refused a bona fide offer of employment. * * *” 42 U.S.C. § 607(b) (l). Plaintiffs tend in their argument to assume the very point in issue by equating a refusal to work with “fault” and absence of “good cause”. But this is no less circular or more persuasive than the contrary assumption of the defendant, accepted by the district court, that exercising one’s federally protected right to strike constitutes “good cause” to refuse employment. And the federal scheme, as plaintiffs’ reference to the Senate Finance Committee’s Report makes clear, allows the state, without of course deciding the merits of a particular controversy, to make the determination of what is covered by “good cause”, and what constitutes a “bona fide” offer of employment. Senate Committee on Finance, Rep.No. 165, 87th Cong., 1st Sess. p. 3 (1961), U.S.Code Cong. & Admin.News, pp. 1716, 1718.
The fact that the Massachusetts legislature has specifically made unemployment compensation unavailable to workers on strike, Mass.G.L. c. 151A, § 25, does not cast doubt on the Commissioner’s determination. We observe first that welfare programs, supplying unmet subsistence needs to families without time limitation, address a more basic social need than does unemployment compensation, which attempts to cushion the shock of seasonal, cyclical, or technological unemployment by making available time limited benefits to individual workers, varying in relation to their prior earnings and without reference to demonstrated need. Secondly, we would not lightly expand the legislature’s expressed negative in one piece of legislation to constitute an unexpressed proviso in another. Indeed silence on an issue where a legislature has shown its capacity to speak is all the more significant.
Plaintiffs’ further reference to the legislative history behind the federal enactment is not particularly helpful. The passages they quote do support the proposition, which the court accepts, that welfare programs were not designed to aid those who do not seek employment. But strikers who receive benefits fully conform to this legislative intention, since, as we noted above, all recipients, strikers included, must register and accept available alternate work under Mass.G.L. c. 117, § IB. Furthermore, the legislative history neither states, nor can be read to imply that strikers, as a group, are to be held ineligible for welfare benefits if they meet all qualifications set by the state.
In sum, therefore, we cannot say, as a matter of probability, that the Commissioner’s administrative determination of striker eligibility for welfare is precluded by the relevant state or federal statutes.
Affirmed.
. Brought separately by the ITT Lamp Division of the International Telephone and Telegraph Corporation and Maurice Concrete Products, Inc.
. The action of the court, though in response to a motion for temporary restraining order, was taken after a full presentation by both parties, Austin v. Altman, 332 F.2d 273, 275 (2d Cir. 1964), and had the effect of a denial of an injunction, see United States v. Cities Service Co., 410 F.2d 662, 663 n. 1 (1st Cir. 1969), and is therefore appealable.
. If plaintiffs’ approach is not correct, they, in any case, have surely not established irreparable injury. Our record is almost bereft of any indication of significant impact on either plaintiff. In the ITT case, apparently 175 or about 25% of 660 striking employees had applied for welfare. In the Maurice Concrete ease we have only the contrary assertions of counsel at argument that (1) a majority of 25 workers were receiving welfare and (2) only one worker was on welfare, and he because he was hit by a truck. There is no evidence of any relationship between the availability of welfare benefits to present or prospective striker recipients and the likelihood of prolongation of either strike.
. Of the same genus was our own case, General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962), in which state legislation authorized a state tribunal to investigate a labor dispute and publicly report its findings as to the blameworthiness of the parties.
. United Construction Workers v. Laburnum, 347 U.S. 656, 74 S.Ct. 833, 98 L.Ed. 1025 (1954) ; International Union, UAW v. Russell, 356 U.S. 634, 78 S.Ct. 932, 2 L.E'd.2d 1030 (1958).
. Linn v. United Plant Guard Workers Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966).
. See, e. g., Labor Decisions of the Supreme Court at the October Term, 1957, 44 Va.L.Rev. 1057 (1958) ; Wellington, Labor and the Federal System, 26 U. of Chic.L.Rev. 542 (1959) ; Michelman, State Power to Govern Concerted Employee Activities, 74 Harv.L.Rev. 641 (1962) ; Meltzer, The Supreme Court, Congress and State Jurisdiction over Labor Relations, 59 Col.L.Rev. 6 (1959); Note, Preemption of State Labor Regulations Collaterally in Conflict with the National Labor Relations Act, 37 Geo. Wash.L.Rev. 132 (1968) ; Note, Federal Preemption in Labor Relations, 63 Northwestern L.Rev. 128 (1968).
. Garmon itself applies, within its area, the general approach, recognizing that on any issue of arguable conflict with sections 7 and 8, state action would nevertheless be tolerated where “the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act”, 359 U.S. at 243, 79 S.Ct. at 779 “[o]r where the regulated conduct touche [s] interests so deeply rooted in local feeling and responsibility that, in the absence of compelling congressional direction, we could not infer that Congress had deprived the States of the power to act.” 359 U.S. at 244, 79 S.Ct. at 779.
. We note that there may arise non-Garmon labor relations situations where the conflict between federal and state interests and their relative importance would be so clear as to render such an extended empirical exploration unnecessary. The Massachusetts Supreme Judicial Court considered such to be the case in John Hancock Life Ins. Co. v. Com’r. of Insurance, 349 Mass. 390, 208 N.E.2d 516 (1965). In that decision the court invalidated a state statute protecting insurance policy holders by declaring a moratorium on the obligation to prepay premiums during a strike and a 31-day period following its termination. The court found, on the one hand, that this law “tips the balance in favor of the [striking] agents in any labor dispute” with an insurance company, 349 Mass, at 403, 208 N.E.2d at 525, by depriving the employer of assets and actuarial data vital to its business, and by effectively frustrating the employer’s right to replace workers who have struck. Moreover, the statute denies to nonstriking agents their right to refrain from concerted activities. On the other hand, the court noted that the “harm sought to be averted by this exercise of the police power does not clearly appear.” 349 Mass, at 404, 208 N.E.2d at 525.
. The complementary Massachusetts statute likewise renders a person ineligible if he “willfully fails without good cause, as determined by the [welfare] department, to maintain his registration for work * * * or to accept a referral to or offer of suitable employment”, Mass.G.L. c. 117, § 1B.
. The middle ground, qualifying for welfare on a case-by-case basis only those strikers who aro engaged in a “reasonable” strike, is almost unthinkable, necessarily requiring the Commissioner of Welfare to take sides in every labor dispute, an activity which we held impermissible in General Electric Co. v. Callahan, 294 F.2d 60 (1st Cir. 1961), appeal dismissed, 369 U.S. 832, 82 S.Ct. 851, 7 L.Ed.2d 840 (1962).
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 42? Answer with a number.
Answer: |
songer_treat | C | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
UNITED STATES of America, Appellee, v. Wilton CHATMAN, Appellant.
No. 77-1297.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 14, 1978.
Decided Oct. 17, 1978.
Kenneth L. Foran, Alexandria, Va., for appellant.
Daniel J. Hurson, Asst. U. S. Atty., Baltimore, Md. (Jervis S. Finney, U. S. Atty., Baltimore, Md., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and PHILLIPS, Circuit Judges.
WINTER, Circuit Judge:
Wilton “Willie” Chatman, a prisoner in a Maryland institution under a Maryland conviction, wrote a letter to a district judge about a pending case in which he threatened to kill the judge. For sending the letter, he was convicted of obstruction of justice and of mailing a threatening communication in violation of 18 U.S.C. §§ 1503 and 876, respectively. The defendant declined the assistance of counsel at his trial and he attacks the validity of his conviction on the ground he was denied access to a prison library in order to prepare his defense. He also questions the sufficiency of the proof to sustain his conviction for mailing a threatening communication, because he asserts that, being already in prison, he could not have had any real intent to harm the district judge.
We see no merit in defendant’s contentions. But we are constrained to reverse his convictions and award him a new trial, nonetheless, because of information furnished us by the government about the presence of a superfluous alternate juror in the jury room during a large part of the jury’s deliberations.
I.
In October 1976, defendant was an inmate of the Maryland Penitentiary in Baltimore. He was without prospect of parole or release. The Honorable C. Stanley Blair was a United States District Judge for the District of Maryland to whom had been assigned a civil rights action dealing with overcrowded conditions at the penitentiary in which defendant was one of many plaintiffs.
On October 18,1976, Judge Blair received a letter from the defendant complaining about the manner in which Judge Blair was handling the case — essentially that relief with respect to overcrowding, inadequate diet, etc. was being unduly delayed. Defendant asserted in the letter that his patience was exhausted, that he had been subjected to inhuman conditions of confinement, and that he would “reimburse all persons” who played any part in the continuation of his durance vile. The letter continued, “the person I’m gonna begin with, is you!! YES, Judge Blair first opportunity I get, I’m going to KILL YOU, that’s what I said; quote; ‘I’M GOING TO KILL YOU.’ ” In closing, the letter added, “YOU GONNA PAY FOR THIS JUDGE BLAIR, I PROMISE YOU THAT .... I HAVE NOTHING TO LOSE.”
At trial the proof showed that .defendant’s fingerprint was on the letter and that the signature was his. Indeed, later in the trial defendant acknowledged that he had sent the letter.
When arraigned, and again later at a hearing on pretrial motions, defendant declined to have an attorney appointed to represent him and firmly articulated his desire to represent himself without the aid of counsel. He does not now claim that his waiver of counsel was involuntary or uninformed. But at trial he asserted that he could not proceed because he had not been permitted access to the penitentiary library to prepare his defense. Apparently he was denied access because he was in segregated confinement for having sent the threatening letter in violation of the institution’s rules and for two later assaults on prison guards. He moved the district court for a continuance of his trial until he had had library access and he moved for an order directing that he be given library access. Both motions were denied; the trial proceeded; and defendant was convicted on both charges.
II.
Unquestionably defendant had a right to represent himself without the aid of counsel if he elected to do so with knowledge of his rights and the consequences of his election. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Defendant made that election and he does not question that it was made voluntarily and with knowledge of his rights. But he argues, on the authority of Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), that, having refused the assistance of counsel, he had a right to access to legal matters to prepare his defense and the government had an obligation to provide such access.
We do not read Bounds to support that conclusion. Bounds was concerned with the rights to equal protection and to access to the courts of prisoners who sought to invoke post-conviction relief. It held that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. at 828, .97 S.Ct. at 1498. Bounds, of course, has no direct application to defendant. He was accused of crime and had an absolute right to counsel, which he validly waived; he had no present thought of pursuing post-conviction relief. But, even so, we do not read Bounds to give an option to the prisoner as to the form in which he elects to obtain legal assistance. The option rests with the government which has the obligation to provide assistance as to the form which that assistance will take. Thus, to the extent that it may be said that Bounds has any application to the instant case, the United States satisfied its obligation under the sixth amendment when it offered defendant the assistance of counsel which he declined. We so hold. Cf. United States v. West, 557 F.2d 151 (8 Cir. 1977).
In arriving at this holding, we note the absence of any evident unfairness in the treatment that defendant received. It was not unreasonable to place him in segregated confinement, after an administrative hearing, for having sent the letter. Prison authorities could properly conclude that greater security was needed in the case of a prisoner who made a death threat, lest he escape and carry out his threat. And defendant was not singled out for the prohibition against use of the prison library. It is not disputed that at the Maryland Penitentiary this restriction is applied to all prisoners in segregated confinement.
III.
We see no merit in defendant’s argument that the proof of his intent was legally insufficient to support his conviction for mailing a threatening communication. The argument springs from the faulty premise that proof of intent to carry out the threat is required. The only proof of specific intent required to support a conviction under 18 U.S.C. § 876 is that the defendant knowingly deposits a threatening letter in the mails, not that he intended or was able to carry out the threat. See United States v. Sirhan, 504 F.2d 818, 819 (9 Cir. 1974); Petschl v. United States, 369 F.2d 769 (8 Cir. 1966). The specific intent to mail the letter in question in the instant case was amply proved.
IV.
With commendable candor, the government advised us in oral argument that when the jury retired to consider its verdict, a thirteenth juror (an alternate who had not been excused) retired with the regular jurors. The alternate remained in the jury room for the first forty-five minutes of the jury’s deliberations. The presence of the alternate was noticed when the jury returned to the courtroom to obtain a copy of the indictment which the jury had requested. At that time the alternate was excused, but there was neither objection to her having initially retired with the jury nor a motion for a mistrial. There was also no evidentiary inquiry to determine the extent, if at all, that the alternate had participated in the jury’s deliberations. After the alternate was excused, the jury returned its verdicts of guilty within fifteen minutes.
Reluctantly (because we think that the case against defendant was so strong and his defense so frivolous), we think that we must notice the presence of the alternate in the jury room during part of the jury’s deliberations as plain error, reverse the convictions and award defendant a new trial. United States v. Virginia Erection Corporation, 335 F.2d 868 (4 Cir. 1964), requires this result.
Virginia Erection was a criminal prosecution. The district court, with the apparent consent of counsel for the government and the defendants, permitted an alternate jur- or to retire with the jury when it began its deliberations, It appears that a regular juror gave evidence of being ill before the jury retired, and the district court was seeking to prevent another mistrial should that juror be unable to continue her service until a verdict was reached. The alternate was admonished not to participate in the deliberations unless a regular juror became ill or disqualified. In fact, the services of the alternate were never required.
Notwithstanding the consent of counsel an 1 the admonition to the alternate, we held that the guilty verdicts could not be perr ;+ted to stand. We found, first, that the personal consent of the defendants to the procedure followed was not obtained as required by Patton v. United States, 281 U.S. 276 (1930); second, that the presence of the alternate in the jury room while the entire complement of regular jurors was deliberating was in violation of F.R.Crim.P. 23(b) and 24(c); and, third, that the admonition to the alternate did not cure the error because her mere presence in the jury room, even if she remained mute, might have affected the verdict and did violate the privacy and secrecy of the jury.
As we read Virginia Erection, it establishes a per se rule of plain error. It has been followed in United States v. Beasley, 464 F.2d 468 (10 Cir. 1972), and impliedly approved in United States v. Hayutin, 398 F.2d 944 (2 Cir.), cert. denied, 393 U.S. 961, 89 S.Ct. 400, 21 L.Ed.2d 374 (1968); United States v. Nash, 414 F.2d 234 (2 Cir.), cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (1969); and Leser v. United States, 358 F.2d 313 (9 Cir.), cert. denied, 385 U.S. 802, 87 S.Ct. 10, 17 L.Ed.2d 49 (1966). In 2 C. Wright, Federal Practice and Procedure § 388 at 52 (1969), it is stated, “it is reversible error, even though defendant may have consented, to permit an alternate to stay with the jury after they have retired to deliberate.” Only the Fifth Circuit has taken a different course, see La-Tex Supply Co. v. Fruehauf Corp., 444 F.2d 1366 (5 Cir.), cert. denied, 404 U.S. 942, 92 S.Ct. 287, 30 L.Ed.2d 256 (1971); United States v. Allison, 481 F.2d 468 (5 Cir. 1973), aff’d after remand, 487 F.2d 339 (5 Cir. 1973), cert. denied, 416 U.S. 982, 94 S.Ct. 2383, 40 L.Ed.2d 759 (1974), but Virginia Erection is the law of this circuit and binding on this panel.
The instant case is indistinguishable from Virginia Erection. Here, no consent was given; and although there was neither objection nor motion for a mistrial, we read Virginia Erection to require neither. On its authority, we must reverse and grant a new trial.
REVERSED; NEW TRIAL GRANTED.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_district | G | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Lee Clark PHILLIPS, Plaintiff-Appellant, v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY, Defendant-Appellee.
No. 79-4044.
United States Court of Appeals, Fifth Circuit. Unit B
July 13, 1981.
James L. Ford, Atlanta, Ga., for plaintiff-appellant.
Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Thomas C. Shelton, Edmund M. Kneisel, Vincent L. Sgrosso, Atlanta, Ga., for defendant-appellee.
Before MILLER, Judge, FRANK M. JOHNSON, Jr. and HENDERSON, Circuit Judges.
Judge of the United States Court of Customs and Patent Appeals, sitting by designation.
MILLER, Judge:
This appeal is from the judgment of the district court in an Age Discrimination in Employment Act (“ADEA”) case following a jury verdict in favor of defendant-appellee (“Southern Bell”). The court ordered—
that the Plaintiff take nothing, that the action be dismissed on the merits, and that the defendant, SOUTHERN BELL TELEPHONE & TELEGRAPH CO., recover of the Plaintiff, LEE CLARK PHILLIPS, its costs of action.
We affirm.
BACKGROUND
Appellant Phillips instituted this action on April 21, 1975, alleging violations of the ADEA in terms of promotion and pay. Although claiming violations as early as January of 1972, it was not until July 31, 1974, that he filed a notice of intent to sue, required by the ADEA to be filed within one hundred and eighty days after an alleged violation.
Phillips was first employed by Southern Bell in 1931 and progressed through various nonsupervisory and supervisory positions until his promotion to the division or fourth level of management in 1960. During the 1960’s, he was first stationed in Atlanta as a division commercial supervisor, responsible for the commercial operations in the North Georgia division of Southern Bell and with four district managers reporting to him. In 1962, he became general commercial supervisor for the entire state, but in 1967 he was transferred to Macon as a division commercial manager — a position similar to the one he held during 1960-62. In 1969, he was transferred back to Atlanta where he headed the Business Information System having to do with the flow of information within Southern Bell and between it and its customers. While he was at the division level, he received “B” ratings, the lowest acceptable (“A plus,” “A,” “A minus” being the others). In 1971, an assistant vice president, James Land, advised Phillips that unless he immediately chose to retire, he would be demoted and would receive a salary cut. The vice president for Georgia operations, Jasper Dorsey, urged Phillips to retire immediately to avoid a salary cut that would affect his pension. Nevertheless, he was not forced to retire. In late 1971 Dorsey made the decision to demote Phillips to a district or third level position after he and Land tried to find another division level position for him.
Phillips protested the decision and had a detailed discussion about it with N. R. Johnson, Southern Bell’s Vice President for Personnel. During the discussion, he mentioned the possibility of age discrimination, but was assured that was not involved.
On February 1,1972, Phillips was demoted to a third level staff position under one D. B. Daves. His salary of $24,200 was not reduced, although this meant that he was paid considerably more than other district level employees. Daves first rated his performance unsatisfactory and found him “less than promotable.” In the fall of 1973, his rating was raised to “B” or “minimum satisfactory,” which enabled him to be transferred to a line district job, where his performance continued to improve. At his next annual salary review, his rating was raised from “B” to “A,” and on November 1, 1974, he was made district manager of the South Fulton District, where he continued until his retirement in 1979. In this position, he was not rated a “promotable” employee, but received the highest rating obtainable and regular salary increases.
OPINION
During the jury’s deliberations, it asked the court whether its understanding was correct — that an act of discrimination under the ADEA has to occur within the 180-day period (prior to filing notice of intent to sue). The court responded affirmatively. This was not error, as alleged by Phillips, but followed clear precedent established by this court. Templeton v. Western Union Telegraph Co., 607 F.2d 89 (5th Cir. 1979), and cases cited therein.
Appellant has not provided any evidence of any act by Southern Bell constituting what might be considered age discrimination affecting him during the 180-day period from February 1, 1974, to July 31, 1974 (the date of the notice of intent to sue). The act closest to that period that might be considered discriminatory was February 1, 1972, the date of Phillips’ demotion, which was long before the beginning of the 180-day period. Accordingly, what the Supreme Court said in United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977), in an analogous sex discrimination case under Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), is on point:
A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.
See Delaware State College v. Ricks, - U.S. -, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980).
Phillips argues that the district court erred in its instruction to the jury because, he says, the issue is not “whether a discrete act of discrimination” took place within the 180-day period, but “whether there was evidence upon which the trier of fact could conclude that the defendant, appellee herein, did have and maintain during that period, a present policy of age discrimination against the plaintiff.” He points to the record showing that he “never received a raise, a bonus, or any increase in his earnings, until November 1, 1974, after he had notified Southern Bell that he was going to sue it for age discrimination.” However, Southern Bell has shown that Phillips’ salary was not reduced when he was demoted to the third or district level, so he was ineligible for a pay increase until the salary scale for “A” rated district managers exceeded $24,200; from that time until his retirement he received substantial increases in salary, as related earlier. Phillips points out that he was not eligible for promotion back to the fourth or division level during the 180-day period, but there is no evidence showing that any younger employee who had been demoted was treated more favorably or assigned better ratings than Phillips; nor is there any evidence that, during the 180-day period, there was any fourth level vacancy for which he was qualified.
We note that Phillips has not argued the point of equitable tolling of the 180-day period for filing a notice of intent to sue, which this court has said would be warranted where, for example, a defendant through misleading conduct has induced a plaintiff to delay filing suit until the limitations period has been run. Coke v. General Adjustment Bureau, Inc., 616 F.2d 785 (5th Cir.1980). No evidence of such conduct on the part of Southern Bell has brought to our attention.
In view of the foregoing, the judgment of the district court is AFFIRMED.
. 29 U.S.C. § 621 et seq.
. 29 U.S.C. § 626(d) provided in pertinent part:
No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed—
(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
(2) in a case to which section 633(b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
This section was modified slightly by § 4(b)(1) of Pub.L. 95-256, 92 Stat. 190, 191 (1978). 29 U.S.C. § 633(b) provides in pertinent part:
In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated ....
. As part of a reorganization, some fourth level positions, including Phillips’ position, were eliminated.
. Phillips points to Southern Bell’s Management Development and Evaluation Plan of January 1974 which lists “superannuation” as one of several factors in rating an employee’s performance less than acceptable. The term is not defined in the plan, but a witness for plaintiff who was an employee in Southern Bell’s personnel department gave the following as an example:
We went to a new mechanized procedure in repair service where you now call 611, and the repair clerks were previously in test centers aÜ over the state of Georgia, and the new procedures were somewhat mechanized and required a higher level really of capability, and some of these people just could not do the work, and we had to remove them from the job and find jobs elsewhere, and we called that pretty much superannuation.
We do not regard such a factor so described as falling within the scope of the ADEA.
. Phillips’ salary increases were as follows:
11/1/74 to $25,900 (from $24,200)
1/1/75 to 27,300
12/1/75 to 28,700
12/1/76 to 31,500
12/1/77 to 34,500
4/1/78 to 37,100
4/1/79 to 40,900
. “Because Title VII shares with ADEA a common purpose, i. e., elimination of discrimination in the workplace, because the statutory schemes are similar, and because both statutes require an almost identical filing with the appropriate agency within 180 days after the alleged discriminatory act, both this circuit and the Supreme Court have considered cases arising under one statute to have value as precedent for cases arising under the other.” (Footnotes omitted.) Coke v. General Adjustment Bureau, Inc., 640 F.2d 584, 587 (5th Cir.1981).
. This issue was the subject of motions for summary judgment and directed verdict by Southern Bell which the district court denied. Denial of motion for directed verdict is the subject of Southern Bell’s cross-appeal here. Because we affirm the judgment of the district court, it is unnecessary to decide the propriety of the court’s denial of that motion. In its instructions to the jury, the district court appeared to bend over backwards to accommodate Phillips by stating that Phillips could make out a prima facie case by establishing, among other things, the Phillips had the ability to dó a job or jobs which Southern Bell had available or made available to younger persons and that Southern Bell gave salary increases to persons younger than he for the position he sought or provided statistical evidence of discriminatory intent.
. Phillips argues that the district court erred in refusing to allow into evidence various summary charts prepared from computer printouts of Southern Bell’s work force. However, Southern Bell properly points out that, while the data showed that among persons promoted and demoted, proportionately more younger than older employees were promoted and proportionately more older than younger employees were demoted, Phillips failed to show the percentages of third level employees, by age, who might have been candidates for promotion but were not promoted, or the percentages of fourth level employees, by age, who might have been subject to demotion but were not demoted. Thus, there was no error or abuse of discretion by the district court.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_usc1sect | 442 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 31. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
BOST v. UNITED STATES.
No. 8768.
Circuit Court of Appeals, Ninth Circuit.
April 27, 1939.
James M. Hanley, of San Francisco, Cal., and Ray T. Coughlin, of Sacramento, Cal., for appellant.
Frank J. Hennessy, U. S. Atty., and Robert L. McWilliams and Sydney P. Murman, Asst. U. S. Attys., all of San Francisco, Cal.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
GARRECHT, Circuit Judge.
Ben A. Bost, the appellant, in an indictment consisting of five counts, filed March 30, 1937, was charged with violation of the Act of June 18, 1934, tried, found guilty on all five counts, sentenced to five years imprisonment under each count, sentences to run concurrently, and fined the sum of $5,000 under the first count. He appeals from said judgment.
April 6, 1934, the appellant presented one bar of gold bullion at the United States Mint in San Francisco for sale to the United States Government, together with an affidavit on Form TG-19, required by the regulations promulgated by the Treasury Department under the Gold Reserve Act of 1934. This affidavit recited the 'affiant, Ben A. Bost, of Nevada City,.Calif., to he the owner of the Lucky Gravel Claim, located in “Cougher Canypn,” Eldorado County, Calif.; that the source of the gold was in said claim, “mostly small nuggets”; that the gold was recovered from “200 cubic yards” of gravel or ore, in the period from October 1, 1933, to March 31, 1934; that the date' upon which the gold was first melted into crude metallic gold suitable for refining was April 5, 1934. The affidavit went on to state:
“The gold referred to herein was recovered by this depositor by mining or panning and no part thereof has been held hy this depositor or to the best of my knowledge, information and belief, by any other person at any time in noncompliance with the Act of March 9, 1933, any executive order or orders of the Secretary of the Treasury issued thereunder, or in noncompliance with any regulations prescribed under such order or license issued pursuant thereto, or in noncompliance with the Gold Reserve Act of 1934, or any regulations or license issued thereunder. No part of such gold has ever entered into monetary or industrial use.
“I make this affidavit for the purpose of inducing the purchase by a United States Mint or assay Office of gold described herein under and in accordance with the provisions of the Gold Reserve Act of 1934 .and the regulations issued thereunder.”
The appellant offered gold at the United States Mint in San Francisco for sale to the United States on four other occasions and in each instance accompanied the gold with a similar affidavit. The indictment was drawn in five counts, each offer and accompanying affidavit being treated in a separate count.
Acting under instructions of his superior to make an investigation of persons suspected of handling and dealing in stolen high grade gold ore, R. C. Lynn, a special .agent of the Bureau of Internal Revenue, made a search of the records of the United States Mint at San Francisco for the names of licensed gold buyers or former licensed gold buyers in Nevada County, Calif. Among the names was that of Ben A. Bost, upon whom Lynn called in Nevada City, Calif., August 8, 1936. Bost told Lynn the gold sold by him to the Mint in 1935 was produced from the Lucky Gravel mining claim of which he owned the mineral rights and that the mine was located approximately 40 miles north of Georgetown, Calif., possibly in Eldorado County, Calif.
Lynn next saw Bost on August 24, 1936, at which time he told Bost that he had made a search to find the Lucky Gravel mining claim, without success, and offer•ed to furnish transportation if Bost would show him the mine. Bost informed Lynn that he would be unable to do so for the reason that he had seen the mine on but one occasion, five or six years before, and -did not recall the route he had taken.
On September 18, 1936, Lynn again called upon Bost, this time accompanied "by William Malloy, a deputy collector of Internal Revenue. Lynn told Bost on this occasion that he was unsuccessful in his .-search for the mine, had not been able to find anyone who had ever heard of it, and wanted to question Bost further. He then placed Bost under path, and Bost related a story describing how he became financially interested in the Lucky Gravel, how he journeyed there at night, spent a day there and returned next morning to his home.
Lynn further testified that he had made extensive searches and inquiries throughout the vicinity described by Bost but failed to find the Lucky Gravel Claim or Cougar Canyon, or the asserted lessees of Bost, namely Swissler, Larsen and Hensen, and that he failed to find anyone who had heard of any of them.
Other witnesses were produced by the Government, residents of the neighborhood, who testified that they had never heard of Lucky Gravel claim, Cougar Canyon, or of Swissler, Larsen or Hensen. One witness said that he had heard of a Cougar Canyon when he was a boy, 48 or 50 years before, and again, about 2 years before the trial, when he was asked whether he knew of such a place, but he had never been there and had no more than a vague idea of where such a canyon might be located.
In addition, the County Assessor of Eldorado County was called as a witness and testified that he was familiar with the assessment rolls of the county; that such -records were kept under his supervision; that there had not been any tax assessment on any claim known as the Lucky Gravel claim in Eldorado County nor had there been any tax assessment in said county against any individual named Hans Hensen, G. A. Swissler or Larry Larsen or Ben Bos't. The County Surveyor of Eldorado County testified that in all his 40 years of residence in Eldorado County he had never heard of Cougar Canyon or any claim known as Lucky Gravel, or of miners named Hans Hensen, G. A. Swissler or Larry Larsen. The County Surveyor of Placer County, which adjoins Eldorado County testified in like vein.
There was testimony from other witnesses for the Government also indicating that the canyon, mine and miners were wholly fictitious.
- The defendant produced four character witnesses, each of whom testified that the defendant bore a good reputation in his community.
The defendant had lived in Nevada City, Calif., ever since his birth and operated a general assay office there from 1907 to March, 1934. He testified that a man named Swissler, whom he had known in 1886 in the town of Deadwood, Trinity County, Calif., and whom he had not seen since, called at his office in 1928, told him that he (Swissler) was prospecting and wanted Bost to advance him $250 to proceed with his work; that Swissler said he thought he would strike pay gravel; that Bost advanced the $250 and occasionally thereafter Swissler came in with small amounts of gold; that Swissler had not named the mine and Bost called it the “Lucky Gravel”; that Swissler told Bost it was located in Cougar Canyon, in Eldorado County. Bost further gave téstimony that Swissler called upon him late in October, 1930, and wanted more money and when Bost said that he wanted to see the mine, Swissler offered to show him; that they went by automobile to Rattlesnake Bar bridge, about 7 miles below Auburn on the Middle Fork of the American River; that they started from there at 6 :30 p. m. on burros, traveling from 30 to 40 miles over a trail; that they arrived at the mine at 3:30 a. m. and stayed all that day; that there was a 900 foot tunnel and a small stream of water on the claim; that the tunnel ran 800 feet through lava formation before striking gravel; that he examined the • tunnel ' and panned some of the gravel; that he rested all that afternoon and night; that Swissler and he left there at 5:30 'a. m. for Auburn, starting toward Georgetown on an abandoned road, meeting a camper on the way who took Bost into Auburn, while Swissler presumably returned to the mine; that Bost arrived in Auburn at approximately 1:30 p. m. Bost said that he became half owner of the mine when he paid Swissler $250 on the occasion of the first visit of Swissler to his office in 1928, and full owner on the visit to the claim in 1930 upon payment of $245. According to Bost’s testimony, Hensen was at the mine when Bost arrived; Hensen brought gold to Bost six times; Bost last saw him in Nevada City, September, 1935, at which time Hensen is alleged to .have told him the gravel had all been worked out and that more money would be needed to prospect further. Bost -also testified that he was sure the claim had not been recorded because he had named the claim and because Swissler. said he (Swissler) owned the ground.
Cross examination of the defendant disclosed that the mine was old and had theretofore been abandoned — “worked in early days;” that Swissler had given his receipt to Bost for the $250 payment in 1928, but it had been destroyed; that at one time Swissler brought in a lot of gold of 40 ounces; that Bost had no recollection of the number of deposits or shipments of gold turned over to Bost by Swissler between 1928 and 1930, because he kept no “record of those things.” In January, 1932, according to Bost, Swissler, Hensen and Larsen appeared at his office and stated that they wanted a lease on the Lucky Gravel claim, and a typewritten page was offered in evidence purporting to be such lease signed by Bost, Swissler, Hensen and Larsen, and granting 10% of the profits of the mine to Bost.
The appellant contends: “I. The indictment wholly fails to state any Federal offense by appellant. II. The evidence is insufficient to warrant or sustain appellant’s conviction under all five counts. III. The District Court committed various prejudicial errors in the admission and rejection of evidence at the trial of the case.”
The appellant urges, under the first contention, raised through the medium of a demurrer to the indictment, (a) that the indictment fails to set out with definiteness just where the affidavit of Bost was false; (b) that it does not allege that the type of gold deposited by Bost required the affidavit in question; and (c) that the indictment uses the words “material matter” rather than the statutory words “material fact.” All five counts of the indictment are couched in the same terms, save that each relates to a separate offer by Bost to sell gold to the mint, and, therefore,- need not be discussed separately. Points (a) and (b) are wholly lacking in merit and are answered by a reading of the indictment. As to point (c), this court has heretofore discussed and passed upon the problem, stating the law as follows: “The first paragraph of the count attempts to charge in the language of the statute, but states only that appellant wilfully falsified ‘a material matter.’ The words ‘a material fact’ are omitted. Obviously, it is the falsification and concealment of facts leading to the sale, and not of the whole of the ‘matter’ of the purchase under the statute, in which the government is engaged, which constitutes the offense. This deficiency in the first paragraph would be cured were there alleged elsewhere in the count facts inducing the purchase which were falsified or concealed. We are unable to discover their presence.” Hills v. United States, 9 Cir., 97 F.2d 710, 712.
The indictment here specifically alleges the facts as required by the Hills case, supra, in the following language: “That he was the owner of a mining claim called the ‘Lucky Gravel’ claim, and that the source of said gold so tendered and deposited was ‘Lucky Gravel claim, mostly small nuggets’, and that said gold had been recovered from said claim, which claim it was stated in said affidavit was located in Cougar Canyon, Eldorado County, California, whereas in truth and in fact as said defendant then and there well knew, he was not the owner of any mining claim in said County and State, known as or called the Lucky Gravel claim, and said gold had not been recovered from said alleged claim, which facts said defendant at all times well knew.”
We conclude, therefore, the indictment was sufficient in form and substance.
The appellant next argues the insufficiency of the evidence, contending that where the facts are as consistent with innocence as with guilt, the conviction cannot be sustained. But the facts here, if believed by the jury, are not as consistent' with innocence as with guilt, even if we should assume that this test of the evidence may be made by us which we do not do. The appellant brought gold to the United States Mint and, to induce purchase by the mint, made an affidavit as prescribed by the regulations. The agents of the Government were not obliged to believe the averments and attempted verification met with failure. Testimony was introduced tending to show that the Government agents made diligent search for the mining claim, but were unable to locate either the claim or the canyon in which it was supposed to be found and Bost was of no assistance. These facts, if believed, prove that Bost’s affidavit was false and he failed to substantiate it; his story was so inherently improbable as to be utterly unworthy of belief. The case was made out under 18 U.S.C.A. § 80, if the jury chose to disbelieve the defendant.
The final phase of the case relates to asserted errors in the admission of evidence, the first question thereunder concerning the introduction in evidence, over objection of defendant, of a map of Eldorado National Forest, and certain topographical maps of the vicinity. The maps were offered, as was explained by Government counsel, “for the purpose of showing that on none of them, notwithstanding the detail with which they were prepared, did Cougar Canyon appear, though many other canyons and other topographic features were shown.” The map of Eldorado National Forest was marked: “U. S. Department of Agriculture Forest Service,” and was introduced during the testimony of H. C. Sedelmeyer, a civil engineer with the United States Forest Service, who identified it as an official map. Harry D. Mc-Glasham, an assistant geological engineer for the United States identified official maps of tjie United States Geological Survey, covering Eldorado County, which were received in evidence as Exhibit 3. Counsel for defendant objected to the introduction of both exhibits on the ground of hearsay.
It is apparent from these printed maps, brought up as exhibits, that they are, to all intents and purposes, official maps of the departments of the United States Government which prepared them. The appellant in United States v. Romaine, 9 Cir., 255 F. 253, 254, 255, introduced in evidence certain hydrographic maps made by the United States Coast and Geodetic Survey, which the trial court ’disregarded. This court said, “We think the maps should be given full credence, and should be taken as absolutely establishing the truth of all that they purport to show. * * * the court might properly take judicial notice, of the accuracy of the official plats of the United States Coast and Geodetic Survey.”
These maps, being originally prepared by trained and competent employees of the United States Government in pursuance of their official duties, and in general use, are clearly within the same exception to the hearsay rule as Judge Parker had in mind in Long v. United States, 4 Cir., 59 F.2d 602, 603; “ * * * ft falls clearly within the principles under which exceptions to the hearsay rule are admitted; i. e., necessity and circumstantial guaranty of trustworthiness. Wigmore on Evidence, vol. 2, § 1420 et seq. and vol. 3, §§ 1630-1636. As to trustworthiness, it is made by an official of the government in the regular course of duty, who presumably has no motive to state anything but the truth, and it is made to be acted upon, and is acted upon, in matters of importance by officials of the government in the discharge of their duties.” Compare 22 C.J. § 1114, pp. 910-913; 22 C.J. § 1430, pp. 1085, 1086; Chesapeake & Delaware Canal Co. v. United States, 3 Cir., 240 F. 903, 901.
Next brought to our consideration are the assignments of error relating to .the admission of testimony in certain instances, over objection of defense counsel. These assignments afford no basis upon which this court may find error in the conduct of the trial below, being vague and indefinite, failing to place the instances, and not disclosing the name of the witness whose testimony is asserted to be objectionable. Furthermore, our study of the record convinces us the assignments are without merit.
The judgment is affirmed.
Section 35 of the Criminal Code of the •United States, 48 Stat. 996, 18 U.S.C.A. § 80 (quoted): “Whoever shall make or cause to be made or present or cause to be presented, for payment or approval, to or by any person or officer in the civil, military, or naval service of the United States, or any department thereof, * * * any claim upon or against the Government of the United States, or any department or officer thereof, * * * knowing such claim to be false, fictitious, or fraudulent; or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or .device a material fact, or, make .or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or’ deposition, knowing the same to contain any fraudulent or fictitious statement or entry in any matter within the jurisdiction of any department or agency of the United States '* * * shall be fined not more than $10,000 or imprisoned not more than ten years, or both.”
Gold Reserve Act of 1934, 48 Stat. 337, 340, 31 U.S.C.A. § 442: Sec. 3. “The Secretary of the Treasury shall, by regulations issued hereunder, with the approval of the President, prescribe the conditions under which gold may be acquired and held, transported, melted or treated, imported, exported, or earmarked: (a) for industrial,, professional, and artistic use; (b) by the Federal Reserve banks for the purpose of settling international balances; and, (c) for such other purposes as in his' judgment are not inconsistent with the purposes of this Act [section 441 of this section]. Gold in any form may be acquired, transported, melted or treated, imported, exported, or. earmarked or held in custody for foreign or domestic account (except on behalf of the United States) only to the extent permitted by, and subject to the conditions prescribed in, or pursuant to, such regulations. Such regulations may exempt from the provisions of this section, in whole or in part, gold situated in the Philippine Islands or other places beyond the limits of the continental United States.” ,
Provisional Regulations issued under the Gold Reserve Act of 1934 by the Secretary of the Treasury and approved by the President of the United States:
“Sec. 35. The mints, subject to the conditions specified in these regulations, and the general regulations governing the mints, are authorized to purchase:
“(a) Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof, and which shall not have entered into monetary or industrial use; * * *
“Sec. 38. Gold recovered from natural deposits in the United States or any place subject to the jurisdiction thereof.—
“(1) The mints shall not’ purchase any gold under clause (a) of section 35 unless the deposit of such gold is accompanied by a properly executed affidavit as follows:
“An affidavit- on form TG-19 shall be filed with each delivery of gold by persons who have recovered such gold by mining or panning in the Unit.ed States or any place subject to the jurisdiction thereof: Provided, however, That such persons delivering gold in the form of nuggets or dust having an aggregate weight of not more than 5 ounces, which they have recovered from mining or panning in the United States or any place subject to the jurisdiction thereof, may accompany such delivery with full and complete information on form TG-19 without the requirement of an oath.”
Question: What is the number of the section from the title of the most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 31? Answer with a number.
Answer: |
songer_casetyp1_1-3-2 | F | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - state offense".
Kenneth Alvis PIERCE, Appellant, v. Ray H. PAGE, Warden, and the State of Oklahoma, Appellees.
No. 8609.
United States Court of Appeals Tenth Circuit.
June 24, 1966.
Rehearing Denied Aug. 1, 1966.
James R. Schmitt, Wichita, Kan., for appellant.
Charles L. Owens, Tulsa, Okl. (Charles Nesbitt, Atty. Gen. of Oklahoma, on brief), for appellees.
Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.
PER CURIAM.
Petitioner Pierce appeals from an order dismissing his application for writ of habeas corpus. He was tried and convicted by a jury and sentenced to ten years in the Oklahoma State Penitentiary for burglary second degree after former conviction of a felony. The conviction and sentence were affirmed on appeal and two petitions for rehearing denied. Pierce v. State, Okl.Cr.App., 383 P.2d 699. After petition for writ of habeas corpus was denied in the state court, Pierce filed this application alleging that he was not afforded a constitutionally guaranteed fair trial.
Complaint is made of the exclusion from the evidence of six documents which petitioner contends went to the basic defense of insanity. He also complains of the instructions of the court on the penalty to be assessed and of numerous incidents during the trial which he says demonstrates that it was conducted in an air of prejudice and partiality. The federal trial court denied the writ without a hearing based upon a reading of the opinion of the Oklahoma Court of Criminal Appeals and a review of the case-made in that court.
It seems redundant to say again that habeas corpus is not available to review errors in criminal cases. “The function of the great writ * * * ‘is to test by way of an original civil proceeding, independent of the normal channels of review of criminal judgments, the very gravest allegations. State prisoners are entitled to relief on federal habeas corpus only upon proving that their detention violates the fundamental liberties of the person, safeguarded against state action by the Federal Constitution.’ ” See Hickock v. Crouse, 10 Cir., 334 F.2d 95, 100, cert. denied 379 U.S. 982, 85 S.Ct. 689, 13 L.Ed.2d 572, reh. denied 380 U.S. 928, 85 S.Ct. 908, 13 L.Ed.2d 817, quoting Townsend v. Sain, 372 U.S. 293, 311-312, 83 S.Ct. 745, 9 L.Ed.2d 770; see also Poulson v. Turner, 10 Cir., 359 F.2d 588.
It is strenuously argued on appeal, as in the trial court, that any one of the errors complained of is of sufficient gravity to deprive petitioner of his fundamental right to a fair trial, but in any event, when all of the errors are compounded, the deprivation of due process is manifest.
Our review of the proceedings in the state court and of the casemade convinces us that petitioner was not denied the rudimentary requirements of fair trial and federal habeas corpus is, therefore, unavailable.
The judgment is affirmed.
Question: What is the specific issue in the case within the general category of "criminal - state offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other state crimes
R. state offense, but specific crime not ascertained
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
The MORNING PIONEER, INC., Appellant, v. The BISMARCK TRIBUNE COMPANY, a corporation, Appellee and Cross Appellant.
Nos. 73-1036, 73-1049.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 11, 1973.
Decided March 12, 1974.
Bruce B. Bair, Mandan, N. D., for appellant.
Daniel J. Chapman, Bismarck, N. D., for appellee.
Before HEANEY, STEPHENSON and WEBSTER, Circuit Judges.
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: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer: |
songer_procedur | D | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
SIMUNOV v. UNITED STATES.
No. 10433.
Circuit Court of Appeals, Sixth Circuit.
June 5, 1947.
Benjamin C. Sfanczyk, of Detroit, Mich., for appellant.
John C. Lehr, of Detroit, Mich., for ap-pellee.
Before SIMONS, ALLEN and MARTIN, Circuit Judges.
PER CURIAM.
Upon appeal from an order denying a motion for the vacation or correction of a sentence, it appears that the appellant was convicted and sentenced for bank robbery under Title 12 U.S.C.A. Section 588b (a) and Section 588c. The indictment contained four counts charging the appellant with entering a bank with intent to commit a felony, stealing from the bank, putting the life of a bank officer in jeopardy by the use of a dangerous weapon and attempting to avoid apprehension by forcing a bank officer to accompany him without the consent of such officer.
Notwithstanding our numerous admonitions that sentences be specific both as to counts and as to the beginning and ending of the term of sentence, the district judge, now retired, imposed upon the appellant in respect to all of the counts of ihc indictment, a blanket sentence of 65 years, but added “25 years for kidnapping”, and the sentence was in such terms recorded by the clerk of the court in the short-hook. It is now settled that the statute dealing with the offense of bank robbery creates but a single offense with various degrees of aggravation permitting sentences of increasing severity. It is also clear that under the authority of Section 588c the court would have been empowered to impose a maximum penalty of 65 years because that section provides for a minimum and is silent as to the maximum of imprisonment that might, have been imposed. However, the observation that 25 years was for kidnapping imparts ambiguity to the sentence. On behalf of the appellant it is urged that having been sentenced to 25 years for kidnapping the court was without power to cumulate an additional 40 years under the first three counts of the indictment because they became merged with the fourth count. On behalf of the government it is contended that the court indicated an intention of sentencing the appellant to a term of 65 years but that 25 years were added to what the court had in mind because the defendant, was found guilty of the kidnapping, and the court so decided in overruling the motion for correction.
The latter argument is not persuasive because without the element of kidnapping the court could not have sentenced the defendant to a term of 40 years. More important, however, is the fact that the convict should know with certainty what his punishment is to be, and that a reviewing court should not be called upon to speculate as to what was in the mind of the sentencing judge at the time of the imposition of the penalty. It is imperative in maintaining respect for the judgments of courts that sentences in criminal cases should not be equivocal. This is more vital than the interests of a particular defendant in a criminal case.
The order of denial is reversed and the cause remanded to the district court for the correction of sentence by the imposition of a sentence upon the appellant of not more than 25 years.
It is so ordered.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genresp1 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
UNITED STATES ex rel. SAMMAN v. RAGEN, Warden.
No. 9494.
Circuit Court of Appeals, Seventh Circuit.
April 19, 1948.
Michael A. Romano and Milton M. Ruben, both of Chicago, Ill., for appellant.
George F. Barrett, Atty. Gen., and William C. Wines, Asst. Atty. Gen. (Raymond S. Sarnow and James C. Murray, Asst. Attys. Gen., of counsel), for appellee.
Before SPARKS, MAJOR, and KERNER, Circuit Judges.
SPARKS, Circuit Judge.
Appellant appeals from the denial of his ■application for discharge on writ of habeas ■corpus. He is held in the custody of the Warden of the Illinois State Penitentiary on account of violation of a parole from a 1931 sentence for armed robbery, and a second sentence for armed robbery following his conviction therefor in 1945.
The sole issue presented by the petition and appeal from the denial thereof is whether the fact that appellant had been adjudicated insane by a California court and committed to an, asylum in 1931 and never thereafter legally restored to sanity ipso facto renders the subsequent convictions and sentences by the Illinois courts null and void, entitling* appellant to release from the custody of the Warden. Appellant was represented by counsel in both criminal proceedings. It does not appear that the fact of his adjudication of insanity was called to the attention of the court at any time during the 1931 proceedings, and it was not called to its attention until after a plea of guilty and discharge of the jury in the 1945 trial, during the course of a hearing in mitigation in which appellant testified at length to the court as to his earlier history.
The transcript of appellant’s testimony on the hearing in mitigation in 1945 was introduced in evidence in the District Court hearing on habeas corpus. He was born in California and attended school there, including two years in college. During .the first World War he was in the United States Army, from 1916 to 1919. .After his discharge he returned to California and went to work as an automobile salesman for a short time, but was committed to a hospital for the insane about 1921. He testified as to the natiire of his illness, schizophrenia and psychoneurosis, for which he was given shock treatments. He was released at the end of a year but soon recommitted for a few months and again released, after which he was sentenced to San Quentin Penitentiary for eighteen months for forgery. A few months after his release from prison he was again committed for about nine months. In June 1931, he was arrested for another crime, found insane by a jury and committed to the Norwalk State Hospital in California. He remained there only about a month and a half and then came to Illinois. He testified that he committed the crime of armed robbery in Gales-burg and was sentenced to prison for that crime in November, 1931.
The record shows that he was received at the penitentiary November 24, 1931, and that in September, 1932, he was transferred to the Asylum for Insane Criminals upon due certificate of insanity which recited that he was undoubtedly insane when convicted. In November, 1943, he was transferred back to the penitentiary on order of the Department of Public Safety, reciting the recommendation of the Classification Board under the general direction of the State Criminologist and pursuant to the power vested in the Department of Public Safety. In September, 1944, he was paroled. In November he was arrested for armed robbery. On trial in January 1945, he first pleaded not guilty, but after the introduction of much of the State’s evidence, he decided to change his plea, whereupon his counsel told the court of the change, the jury was discharged, and the court heard him.
Appellant’s contention is that instead of the lengthy hearing by the court, it should have impaneled a jury to determine the question of his sanity, and that as soon as the court was put on notice of his adjudication of insanity, it was without jurisdiction over his person until a determination of such a jury that he was sane. The attack in this habeas corpus proceeding is directed principally to the conviction in 1945 where the question was raised, after plea and discharge of the jury, but before sentence. Appellant does not, however, concede the validity of the 1931 conviction.
The District Court denied a motion to dismiss the application for habeas corpus and held a full hearing on the merits of the petition. There was introduced in evidence the complete transcript of the hearing in mitigation after plea of guilty in the Cook County Court, and the court also heard the evidence of appellant himself, the attorney who represented him on the trial, a police officer, an F.B.I. agent, an attorney for the Veteran’s Administration, and the attorney who prosecuted appellant in the 1945 trial. From all of this evidence, the court concluded that appellant was sane, and that if he ever had been insane, he certainly had lucid intervals. He inferred from the evidence that appellant had tried to get a not guilty verdict in the case, but that when the overwhelming character of the State’s evidence became apparent to him and his counsel, he changed his plea to guilty, and not until after that plea did he bring forward the fact that he had been adjudged insane some fourteen years earlier.
Appellant contends that the question of his sanity at the time of the habeas corpus hearing was not in issue, but that the sole question was whether appellant who had been adjudged insane by a court of competent jurisdiction in 1931, could enter a plea of guilty to an indictment charging him with a crime until the issue of whether he was restored to sanity or continued insane was determined in some manner prescribed by Illinois statutes; that at common law, until the adjudication of insanity had been superseded by a judicial finding that the accused had been restored to sanity he was without legal capacity to plead to the indictment, and the court without jurisdiction to accept a plea of guilty and sentence him on such plea, hence the sentence of the court was void and the detention thereunder violates due process under the Fourteenth Amendment. Again, he states, “(Appellant’s) status, when he appeared in the Criminal Court of Cook County, was that of an insane person and by common law, which has never been abrogated by statute, he was under a legal disability, which prevented him from pleading to the indictment. When the Judge * * * was put on notice of Petitioner’s disability by reason of mental incompetence, he was without power to assume jurisdiction over the person of the Petitioner until the issue of the Petitioner’s sanity had been determined by a jury impaneled to try same.” He contends that the California adjudication is entitled to full faith and credit until superseded by decree of a court of competent jurisdiction.
We cannot agree with appellant as to the binding and conclusive effect of an adjudication of insanity. We have found no case, even at common law, holding that an adjudication of insanity in some other court, at some earlier time, could be set up by collateral proceeding where the earlier adjudication was not even called to the attention of the court. Nor do we find any case where such a prior adjudication was relied upon as conclusive proof of insanity either as of the time of the commission of the crime or of the trial thereof. In fact, the rule appears to be that a prior adjudication is only prima facie, and not conclusive evidence of criminal irresponsibility. See 7 A. L.R. Annotation, 568; 68 A.L.R. Annotation, 1310.
Illinois has, by statute, provided adequate means for safeguarding the rights of insane persons charged with crime. The portion of the statute here applicable provides:
“An insane person, without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged: Provided, the act so charged as criminal shall have been committed in the condition of insanity. If, upon the trial of a person charged with crime, it shall appear from the evidence that the act was committed as charged, but that, at the time of committing the same, the person so charged was insane, the jury shall so find by their verdict, and by their verdict shall further find whether such person has or has not entirely and permanently recovered from such insanity; and in case the jury shall find such person has not entirely and permanently recovered from such insanity, the court shall commit such person to the Department of Public Welfare. * * *” Smith-Hurd Ann. St. Ch. 38, section 592.
This means that the sanity or insanity of a person charged with the commission of a crime shall be determined by a jury in the court where the cause is pending. People v. Howe, 375 Ill. 130, 30 N.E. 2d 733. Illinois courts have uniformly held that the duty and responsibility of raising the question rests upon the accused and his counsel. People v. Haupris, 396 Ill. 208, 71 N.E.2d 68; People v. Wagner, 390 Ill. 384, 61 N.E.2d 354; People v. Hart, 333 Ill. 169, 164 N.E. 156. This follows from the fact, stated in People v. Bacon, 293 Ill. 210, 127 N.E. 386, 388, that “It has long been the law in this State that every man is presumed to be sane until the contrary is shown. In order to entitle the accused to an acquittal on the ground of insanity, this legal presumption must be overcome by evidence tending to prove insanity which is sufficient to raise a reasonable doubt of the sanity of the accused at the time of the commission of the act for which he is sought to be held accountable.” The courts have also indicated that to rely on prior adjudication, it must be shown that the insanity was of a permanent or continuing type. People v. Varecha, 353 Ill. 52, 186 N.E. 607. People v. Maynard, 347 Ill. 422, 179 N.E. 833, 836. In the latter case the Illinois court said, “Whether the presumption arising out of an adjudication of insanity * * * has been overcome was a question of fact requiring evidence.”
From all of this it follows that, even though the conviction and sentence of appellant in 1931 did occur within a few months after his adjudication of insanity by a California court, that fact may not be availed of by collateral attack on the judgment. Accordingly, it cannot be held in this proceeding that appellant was not properly in the custody of appellee under the 1931 sentence, and it is therefore unnecessary for us to consider the somewhat different questions presented by the attack on the 1945 judgment and sentence. Further, under the circumstances of this case, and in the light of the cases of White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348, and Marino v. Ragen, 332 U.S. 561, 68 S.Ct. 240, we have preferred to rest our decision on this ground rather than examine into the vexed question of whether or not appellant’s various applications for relief in the state courts exhausted his state remedies therein.
We are indebted to counsel appearing in appellant’s behalf on appointment by the District Court and this court for a very able and conscientious presentation of the difficult issues involved in this case.
Judgment affirmed.
Cf. Srygley v. Sanford, 5 Cir., 148 F. 2d 264; Byrd v. Pescor, D.C., 68 F.Supp. 889, and cases there cited for a criticism of the use of habeas corpus to raise the issue of insanity.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
UNITED STATES of America, for the Use and Benefit of CARTER EQUIPMENT COMPANY, INC., Plaintiff-Appellee, v. H. R. MORGAN, INC. and National Indemnity Company, Defendants-Appellants.
No. 75-2362.
United States Court of Appeals, Fifth Circuit.
June 16, 1977.
Thomas W. Tyner, Hattiesburg, Miss., for H. R. Morgan & Nat’l Indemnity.
Francis T. Zachary, Hattiesburg, Miss., for H. R.. Morgan.
Wm. H. Cox, Jr., Jackson, Miss., D. Gary Sutherland, Hattiesburg, Miss., for plaintiff-appellee.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion January 10, 1977, 5 Cir., 1977, 544 F.2d 1271).
Before COLEMAN, GODBOLD and HILL, Circuit Judges.
PER CURIAM:
The Petition for Rehearing is GRANTED. No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED. The appellee, Carter Equipment Co., Inc. (Carter), suggests in its petition for rehearing that our decision disallowing the recovery of attorney’s fees in this Miller Act suit was erroneous. We agree and the following is to be substituted for the last paragraph of our prior opinion:
Finally, appellants insist that the district court erred in awarding attorney’s fees to Carter. The issue is whether a contractual provision for attorney’s fees between a subcontractor and its supplier is enforceable against the general contractor and its surety under the Miller Act. Carter asserts that since the equipment rentals provided for the recovery of attorney’s fees, this award is recoverable under the general terms of the payment bond, interpreted with a view toward the liberal purpose of the Miller Act.
The relevant statutory language provides that “[ejvery person who has furnished labor or material in the prosecution of the work provided for in such contract . who has not been paid in full therefor . shall have the right to sue on such payment bond . . . for the sum or sums justly due him”. 40 U.S.C.A. § 270b(a). It is important to note that the statute does not differentiate between the scope of coverage for the liabilities of subcontractors as opposed to the scope of coverage for the liabilities of general contractors. While the statute does impose some additional notice requirements on persons having no direct contractual relationship with the general contractor, insofar as financial coverage of the bond is concerned, a supplier of the subcontractor is equally as entitled to be “paid in full” for “the sums justly due him.”
The Supreme Court allowed the recovery of attorney’s fees in United States ex rel. Sherman v. Garter, 353 U.S. 210, 77 S.Ct. 793, 1 L.Ed.2d 776 (1957). A provision for the award of attorney’s fees was contained in a contract between the general contractor and the trustees of an employees’ welfare fund. The Supreme Court held that the attorney’s fees were “sums justly due” under the Miller Act. Since there appears to be no statutory basis for distinguishing between the recovery allowed to the supplier of a subcontractor and that of a person dealing directly with the general contractor, we conclude that attorney’s fees are a recoverable item under this Miller Act bond. At least two other circuits have reached this same conclusion. Travelers Indemnity Co. v. United States ex rel. Western Steel Co., 362 F.2d 896 (9th Cir. 1966); D & L Construction Co. v. Triangle Electric Supply Co., Inc., 332 F.2d 1009 (8th Cir. 1964).
There is some authority in this circuit which would support a contrary conclusion. The court in United States ex rel. Mississippi Road Supply Co. v. Morgan, 542 F.2d 262 (5th Cir. 1976), posited that “[e]ven under the more liberal rules of construction applicable in Miller Act eases, precedent indicates that the terms of this bond would not support an award of attorney’s fees.” Id. at 269. However, the Mississippi Road Supply court was concerned with a hybrid bond that was neither fish nor fowl. The court merely recited this circuit’s position with regard to Miller Act bonds as reflected in Transamerica Insurance Co. v. Red Top Metal Inc., 384 F.2d 752 (5th Cir. 1967). The Supreme Court subsequent to Red Top Metal disapproved of our practice of looking to state law for resolution of the attorney’s fee issue. F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 94 S.Ct. 2157, 40 L.Ed.2d 703 (1974). Of course, we are bound to apply the decision in F. D. Rich to the instant suit and upon application of purely federal law we conclude that the contractual provision for attorney’s fees in this case is enforceable under the Miller Act bond.
REVERSED and REMANDED.
. ATTORNEY’S FEES. Should it become necessary that Lessor employ an attorney to enforce any of the provosions (sic) of this Agreement, to take possession of the equipment covered hereby or any part thereof, or to recover any sum of money due hereunder, Lessor shall be entitled to recover such reasonable attorney’s fees and expenses as shall be incurred in connection therewith.
. The language relied upon provides:
“NOW THEREFORE, if the Principal shall promptly make payment to all persons supplying labor and material in the prosecution of the work provided for in said contract, . .
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_usc2 | 26 | What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 49. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
Ezra Taft BENSON, Secretary of Agriculture of the United States, and Commodity Credit Corporation, Appellants, v. UNITED STATES of America et al., Appellees. J. G. BOSWELL AND COMPANY et al., Appellants, v. UNITED STATES of America et al., Appellees.
Nos. 15359, 15360.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 24, 1960.
Decided June 10, 1960.
Petition for Rehearing Denied July 19, 1960.
Mr. Donald A. Campbell, Atty., Dept, of Agriculture, with whom Messrs. Oliver Gasch, U. S. Atty., and Neil Brooks, Asst. Gen. Counsel, Dept, of Agriculture, were on the brief, for appellants in No. 15,359.
Mr. Walter D. Matson, Washington, D. C., with whom Mr. James K. Knudson, Washington, D. C., was on the brief, for appellants in No. 15,360.
Mr. C. H. Johns, Jr., Associate General Counsel, Interstate Commerce Commission, for appellee Interstate Commerce Commission.
Mr. Frederick G. Pfrommer, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave of court, with whom Mr. John Guandolo, Washington, D. C., was on the brief, for appellees Railroad Companies. Messrs. Lawrence Cake and Raymond A. Negus also entered appearances for appellees Railroad Companies.
Mr. Samuel D. Slade, Chief, Appellate Section, Civil Division, Dept, of Justice, entered an appearance for appellee United States of America.
Before Mr. Justice Reed, retired, and Fahy, and Burger, Circuit Judges.
Sitting by designation pursuant to Sec. 294(a), Title 28 U.S.C.
Mr. Justice REED,
sitting by designation.
These are appeals from an order of the United States District Court for the District of Columbia granting a motion for summary judgment by the Interstate Commerce Commission and the intervening railroad carriers, and dismissing a complaint. Judge Sirica held that the action of the Commission in approving certain railroad tariffs on cotton as hereinafter described was based on substantial evidence, and reasonable. The complaint in the present proceeding was filed January 3, 1958, in the United States District Court for the Southern District of New York by Mr. Benson as Secretary of Agriculture under the authority of the Agricultural Adjustment Act of 1938. Many shippers of cotton from the Southwest United States to Gulf and Pacific ports, and Eastern states, joined as plaintiffs. Many carriers intervened as defendants. The case was later transferred for the convenience of the parties to the District Court for the District of Columbia.
The complaint sought to annul and set aside actions of the Interstate Commerce Commission in denying reparations in an administrative proceeding brought under 49 U.S.C.A. § 9 against numerous railroad companies that had carried baled cotton at rates alleged inapplicable because they were higher than those authorized.by the Commission. The District Court’s judgment left the ruling of the Commission intact.
The rates challenged in the reparations proceeding and here were the final result of a ruling by the Interstate Commerce Commission in proposed general increases of tariffs which became effective February 25, 1956. An additional six percent rate increase over several former percentage increases was there allowed because of actual increases in the cost of performing transportation services. All increases were directed to be made on the “basic freight rates and charges of the railroads.” The quoted words have been the standard direction for applying raises in the Increased Freight Rate Cases.
The heart of the controversy is the method that is to be applied in calculating the increases in the existing tariffs ■ for the cotton shipments. Freight charges on cotton have always been calculated upon the hundred pounds. Since cotton weighs lightly but bulks large, the shippers and carriers found it mutually profitable to compress cotton for transportation. The development of the powered compress in the nineteenth century made a contribution in simplifying the handling of cotton comparable to that made by Whitney’s invention of the gin to remove the seed from the lint in the eighteenth century, or the development of the mechanical picker in the twentieth century. To encourage compression the railroads many years ago introduced into their tariffs as an item an allowance for compression frequently limited to “not to exceed twenty-five cents per hundred pounds.” Compression ordinarily costs the shipper more than this allowance. The cost varies according to the charge at the particular compress. Tariffs were developed called compression-in-transit tariffs, abridged to “c.i.t.” Whatever their precise form, there was a freight rate or charge to the shipper of so much per hundred pounds for the carriage of the cotton, and an allowance to the shipper of not to exceed so many cents per cwt for compression, whether the cotton was compressed prior to or in the course of shipment.
As stated above, when subsequent increases of rates were approved, the Commission always directed that the increases were to be applied to “the basic freight rates and charges of the railroads.” The railroads carried out the order by adding the allowed percentage increase each time to their freight charge, continuing to deduct on their freight bills the unincreased compression allowance. The shippers urged that the allowance for compression should be deducted before the allowed percentage increase is calculated. Following is an example of the difference in result. This is drawn from an exhibit and brief for appellants J. G. Boswell and Company, et al., shippers of cotton. It is:
“a shipment of 100 bales of cotton from Bakersfield to the port of Long Beach, California. In making out this freight bill the railroad agent made the following entries:
(Freight Bill No. 005, as rendered)
Weight Rate Prepaid
53575 40 214.30
IC 15% 32.14
246.44
Less O85! CWT comp Allowance 42.86
203.58 Tax 6.11
209.69
The rate of 40 cents per 100 pounds is the gross c.i.t. rate from Bakersfield to Long Beach. The c.i.t. rate minus the stated compression allowance of 8 cents per 100 pounds was applicable to a shipment of cotton which “originated” at the Bakersfield compress. Since it was “compressed in transit at point of origin,” the railroad did not advance the compression charges to the compress company. It will be observed that the railroad agent added the 15-percent Ex Parte 175 surcharge before he deducted the 8 cents per 100 pounds compression allowance, but that the 3-percent transportation excise tax was computed after the deduction of the compression allowance. The shippers contend that the freight bill entries, in accordance with the above quoted governing rules in the general increase tariffs, should have been as follows:
(Freight Bill No. 005, as revised by shippers)
Weight Rate Prepaid
(c.i.t) 40
Less comp, allowance 08 /
53575 (net) 32 171.44
Ex Parte 175 surcharge 15%' 25.72
197.16
Tax 3% 5.91
203.07
On this shipment the Southern Pacific Company collected and retained for transportation services $203.58. The shippers contend the amount paid should have been $197.16 and that they were overcharged in this instance $6.42.
The validity of the claim for reparations turns on the meaning of the terms “basic freight rates and charges.” The shippers assert that the basic rate is the net amount paid by the shipper to the carrier after deduction of the carrier’s allowance to the shipper for compression. That is the c.i.t. rate, less the compression allowance times the weight. The railroads say the basic rate is the c.i.t. rate and the compression allowance is a charge against that basic rate. The method urged by the shippers has been called by the litigants the net rate method ; that urged by the railroads the gross rate method for calculating the allowed rate increase.
In the reparation cases, the Commission, which granted the increase, construed its language as the railroads interpret it. “We believe .that the defendants’ [the railroads] method of applying the general increases was proper and produced the legal rates.” “The c.i.t. rate is a specifically published freight rate to which the findings in the ex parte proceedings contemplated that the authorized increases would be applied.” Following each one of the Increased Freight Rate series of decisions, after the cost rises subsequent to World War II, the railroads have of necessity amended their tariffs to show the addi-
tional percentage allowed them by the then current increase. Under the Interstate Commerce Act, 49 U.S.C.A. § 15(7), the Commission had the duty in supervising the tariffs to satisfy itself of the “lawfulness” of such rate. The method of calculation here under attack was accepted by the Commission. In the Allenberg case, the Commission said, “The assailed rates * * * called c.i.t. rates, are the basic rates in effect on June 30, 1946, subject to subsequent general increases.” Revenue adjustments are normally superimposed on existing rate structures.
The Commission was conscious, at the time the rate increases were being considered, of this very problem of applying the general increases to cotton tariffs subject to a compression allowance. Their opinion in the rate increase proceeding involved here considers the question and decides on a method other than that pressed by appellants to alleviate any inequities. The method selected by the Commission was a rate increase hold-down setting an upper limit on the amount of increase possible by application of the percentage increase. Appellants do not attack the reasonableness of the overall rate and there is no indication, therefore, that the hold-down method of preventing inequality has proven inadequate.
This consideration and approval by the Commission lends impressive weight to the railroads’ contention that they followed the purpose and direction of the Commission in filing their tariffs. The Commission had power, legislative in character, to choose any reasonable method to calculate the proposed increase. In dealing with the interpretation by the Commission, courts accept its factual findings with reasonable support in the record. Even if not a fine question of fact, the meaning of “basic freight rates and charges” is one that depends upon the Commission’s intention in employing the term, seemingly devised by it for use in this very situation. Therefore courts will be slow to adopt any other meaning than the gloss put upon the phrase by the Commission, its author.
The Commission’s interpretation of the proper means of applying the rate increase was confirmed by it after the in-, crease was granted at the time the carriers submitted their revised tariffs to the Commission for approval. The purpose of the increases was to compensate the railroads for rising operating expenses. The new tariffs, after application of the increases showed the rate in terms of the charge per cwt subject to deduction for the unincreased carrier’s allowance for compression under the following note covering transit compression:
“Note 1. — When the shipper has paid the compression charges direct to the compress plant on a shipment of compressed cotton tendered at a compress, such compression charges not to exceed 25 cents per 100 lbs. may be deducted from the total freight charges computed on' the total weight at the CIT rate upon evidence of payment of such compression charges to the compress plant where the shipment was loaded.”
A tariff defined “CIT rate” as follows:
“The term ‘CIT rate’ refers to a commodity rate on cotton, in bales, which rate includes the cost of compression or any proportion thereof or which includes an allowance for the cost of compression.”
The increased tariffs took the “existing rates in cents per 100 lbs” and added to that figure the percentage of increase allowed. In Item No. 10 of such a tariff in Ex Parte 175, 284 I.C.C. 589, these directions appear:
“Item No. 10. — Application of Increased Rates and Charges — Section 1. All charges for line-haul transportation services, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, as provided in tariffs making reference to this tariff, * * * are increased 15 percent, * * *.
“In determining the applicable charge, first ascertain without reference to this tariff the amount of the line-haul transportation charges, also charges for out-of-line, indirect or back-haul services, special freight train service, rental charges for use of special equipment or other line-haul services, and then increase the amount so ascertained 15 percent, * * * >>
It will be noted that Item 10 does not refer in any way to the compression charge. Thus they applied the percentage increases to the rate which had been used for the gross cost to the shipper for transportation. These tariffs were approved by the Commission.
The Commission deemed the compression charge a part of the line-haul rate but a non-carrier service. The line-haul rate is the charge for furnishing the line-haul transportation services, that is, those services or allowances that are considered a normal incident to the uninterrupted carriage of the goods from the origin to the destination. This is the transportation rate for carriage-and is to be distinguished from “accessorial” or “terminal” services, for which additional charges are made. The Commission is clearly empowered to determine what is embraced within the line-haul rate.
It is true, as pointed out by Commissioner Murphy, the single dissenter in the Allenberg case, 289 I.C.C. at 587, that when the shipper himself pays for compression before loading or ships c.i.t., he deducts the allowable compress charges from the gross rate, but that does not make the net result the basic freight rate or charge.
The Commission’s • interpretation of the words “basic rates and charges” is consonant with the Commission's purpose in granting the increase. Additional revenue was sought for the carriers. Only the tariff items that brought profit were increased, not the disbursement items.
“As a basis for their contention that only the net rate was increased by the general-increase tariffs, the complainants refer to the following statement in J. G. Boswell Co. v. Alabama G. S. R. Co., 276 I.C.C. 761, concerning such tariffs: ‘It is obvious that the tariffs contemplated only increases in rates and charges from which the carriers were to derive revenue.’ There is nothing in the later finding which requires application of the general increases to the net rate. This is true because the word ‘revenue’ as used in that finding is not synonymous with profit or net income. In other words, the defendants derive revenue from the gross rate as published in their rate tariff, and the disbursement of such revenue, through allowances or otherwise, can have no retroactive effect on the applicability of the general increases. The complainants also refer to decisions wherein a rate is defined as the net cost to the shipper of the transportation of his property. Such decisions were made concerning violations of the Elkins Act. Thus, while the net cost to the shipper is of primary importance in determining if a rebate has been given, it is of no moment in determining an applicable rate under section 6 of the act.”
It is suggested by the appellants that, as is shown in the freight bills set out above, at page 37 of 281 F.2d, the fact that the transportation tax is paid in these bills on the “net” sum is significant in showing that the “basic rate” is the “net” rate. Section 4271 of the Internal Revenue Code, 26 U.S.C.A. § 4271, puts the tax “upon the amount paid * * * for the transportation of property * * * by rail.” Federal Tax Regulations 1955, Part 143, § 13, applies the tax “to any payment, not specifically exempted, for the transportation of property.” But the basic freight rate is not determined by what the Government uses to calculate taxes. Nor is there any indication that the method used in the freight bills is a proper interpretation by the railroads making out the bills of the pertinent tax regulations. In any event, the definition of terms for purposes of taxation is irrelevant to the problem of defining the basic freight rate for purposes of the Interstate Commerce Act.
In view of our agreement with the District Judge’s determination as to the correctness of the railroads’ application of the rate increases, we do not reach the additional question presented below as to whether the Commission was correct in its view that § 16(3) of the Interstate Commerce Act barred the award of reparations on claims of the Commodities Credit Corporation relating to shipments delivered or tendered for delivery more than two years prior to the date of filing of the petition to intervene.
After the argument the court requested counsel to comment on the significance of a change in the method of stating tariff rates on cotton made by the carriers, effective in 1957. The effect is to state a rate for cotton by using the net rate. This eliminates the compression allowance as a factor in the basic freight rate. We think the change shows a simpler method for calculating the payments due the carriers, but we do not see that it affects the problem of what the Commission meant by the basic freight rate or charges.
The basic freight, we conclude, was, as the Commission ruled, the gross amount that was placed in the tariff for the line-haul transportation. The allowance was a charge against that rate. The Commission ruling upon that question is not only within its power to determine rate increases but seems to us to be a reasonable method of separating basic rates or line-haul rates from charges assumed by railroads that are, like compression, incidental to their services but beyond the carrier’s power to control as to cost or method of operation. Where the assailed rate is the result of the application of internally consistent definitions and general criteria and the overall result reached is not unreasonable, there is no basis for disturbing the Commission’s result.
Affirmed.
No. 15,360, J. G. Boswell and Co., et al. v. United States, is an appeal by the private shippers of cotton, affected by the increased rate orders, from the same order of dismissal. As the errors alleged are substantially the same, no separate opinion is necessary.
. Benson et al. v. United States, D.C.D.C. 1959, 175 F.Supp. 264.
. 52 Stat. 36, 7 U.S.C.A. § 1291; Administrative Procedure Act, 5 U.S.C.A. § 1009; Interstate Commerce Act, 49 U.S.C.A. § 17(9).
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71; 298 I.C.C. 577.
. Ex Parte No. 196, Increased Freight Rates 1956, 298 I.C.C. 279, 283.
. 298 I.C.C. at 347. In the orders there were limitations of a maximum of 9 cents per hundred pounds increase on cotton rates. This maximum is not involved in this controversy. Id., at 319. It was used to relieve any undue burden on the shippers. See Ex Parte 206, 299 I.C.C. at 444.
. No. 168 (1948), 272 I.C.C. 695, 717; 276 I.C.C. 9, 113; No. 175 (1951), 280 I.C.C. 179. 189; 281 I.C.C. 557. 639.
Recovery of the extra 20 cents in transportation excise tax (3 percent of the $6.42) is beyond the scope of this action.”
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 298 I.C.C. 577, 584. Cf. A. Levy & J. Zentner Co. v. Southern Pacific Co., 293 I.C.C. 279, for a determination involving a similar problem in the shipment of bananas.
. Allenberg Cotton Co. v. Alabama Great Southern R. Co., 289 I.C.C. 71, 77.
. This method was necessitated by the complications incident to the republication of new general tariffs. See The Fifteen Per Cent Case (1917) Ex Parte No. 57, 45 I.C.C. 303.
. 298 I.C.C. at 579. See also id., at 316-319. State of New York v. United States, 331 U.S. 284, 350, 67 S.Ct. 1207, 91 L.Ed. 1492.
. 298 I.C.C. at 317-319:
“These interests also assail the lawfulness of the proposed application of the percentage increase on compressed-in-transit (c.i.t) rates on cotton in carloads originating in California and Arizona. * * * The gist of the protest is that the percentage increases in these c.i.t. rates now proposed would be based on the full amount of the rates without regard for the fact that they include these allowances, which are not permanently retained by the carriers. The net result of the proposal is to increase these c.i.t. rates by amounts which are more than 7 percent of the revenues actually retained. * * *
* * * * *
“We believe that there is some merit to the contentions of these protestants, but the suggested remedy of requiring the carriers to eliminate the amounts which they assume for compression from the rates before applying the increases would not be practicable or reasonable for general application in this proceeding. A much more practical and reasonable solution would be to fix a maximum increase on cotton which would accord the same treatment to all cotton in bales, in carloads.”
. “When * * * the Commission declares a specific rate to be the reasonable and lawful rate for the future, it speaks as the legislature, and its pronouncement has the force of a statute.” Arizona Grocery Co. v. Atchison, T. & S. F. R. Co., 284 U.S. 370, 386, 52 S.Ct. 183, 185, 76 L.Ed. 348:
. Cf. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456; Gray v. Powell, 314 U.S. 402, 411, 62 S.Ct. 326, 86 L.Ed. 301; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 180, 187, 59 S.Ct. 160, 83 L.Ed. 111; Levinson v. Spector Motor Service, 330 U.S. 649, 662, 672, 67 S.Ct. 931, 91 L.Ed. 1158.
. Pacific Southcoast Freight Bureau Circular No. 14-W, Agent J. P. Haynes, I.C.C. No. 1529, Effective December 22, 1951, Item 50.
. Id., Item 20.
. Supplement 2, Condensed Tariff of Increased Rates and Charges, No. X-175 A, I.C.C. Docket 30937.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 289 I.C.C. 71, 73, 75. See definition of CIT, supra, note 15.
. Whether as to particular situations a specific service is part of the line haul, or is accessorial or terminal is a frequently litigated issue. Cf. United States v. I.C.C., 352 U.S. 158, 77 S.Ct. 241, 1 L.Ed.2d 211; Secretary of Agriculture of United States v. United States, 347 U.S. 645, 74 S.Ct. 826, 98 L.Ed. 1015; United States ex rel. Arlington & F. Auto R. Co. v. Elgen, 1938, 68 App.D.C. 393, 98 F.2d 264.
. United States v. American Sheet & Tin Plate Co., 301 U.S. 402, 408, 57 S.Ct. 804, 81 L.Ed. 1186; United States v. Wabash R. Co., 321 U.S. 403, 408, 64 S.Ct. 752, 88 L.Ed. 827; United States v. United States Smelting, Refining & Min. Co., 339 U.S. 186, 189-190, 70 S.Ct. 537, 94 L.Ed. 750.
. Allenberg Cotton Co. v. Alabama G. S. R. Co., 298 I.C.C. at 583.
. Cf. Armour & Co. v. United States, Ct.Cl.1959, 169 F.Supp. 521.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 49. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
sc_authoritydecision | D | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
UNITED STATES v. RODRIQUEZ
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 06-1646.
Argued January 15, 2008
Decided May 19, 2008
Kannon K. Shanmugam argued the cause for the United States. With him on the briefs were Solicitor General Clement, Assistant Attorney General Fisher, Deputy Solicitor General Dreeben, and Daniel S. Goodman.
Charles A. Rothfeld argued the cause for respondent. With him on the brief were Andrew J. Pincus, Dan M. Kahan, and L. Cece Glenn.
Briefs of amici curiae urging affirmance were filed for the National Association of Criminal Defense Lawyers by Jeffrey L. Fisher and Thomas W. Hillier II; and for Professors of Criminal Law by Meir Feeler, Donald B. Ayer, and Samuel Estreicher.
Justice Alito
delivered the opinion of the Court.
Under the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e)(2)(A)(ii), a state drug-trafficking conviction qualifies as “a serious drug offense” if “a maximum term of imprisonment of ten years or more is prescribed by law” for the “offense.” The Court of Appeals for the Ninth Circuit held that “the maximum term of imprisonment . . . prescribed by law” must be determined without taking recidivist enhancements into account. 464 F. 3d 1072,1082 (2006). We reverse.
I
At issue in this case is respondent’s sentence on his 2004 conviction in the United States District Court for the Eastern District of Washington for possession of a firearm by a convicted felon, in violation of 18 U. S. C. § 922(g)(1). Respondent had two prior state convictions in California for residential burglary and three state convictions in Washington for delivery of a controlled substance, in violation of Wash. Rev. Code §§69.50.401(a)(l)(ii)-(iv) (1994). Respondent’s three Washington drug convictions occurred on the same day but were based on deliveries that took place on three separate dates. Sentencing Order in No. CR-03-142RHW (ED Wash., Sept. 3, 2004), p. 5, App. 245, 250 (hereinafter Sentencing Order). At the time of respondent’s drug offenses, the Washington statute that respondent was convicted of violating stated that, upon conviction, a defendant could be “imprisoned for not more than five years,” §§ 69.50.401(a)(l)(ii)-(iv), but another provision specified that “[a]ny person convicted of a second or subsequent offense” could “be imprisoned for a term up to twice the term otherwise authorized,” § 69.50.408(a). Thus, by virtue of this latter, recidivist, provision respondent faced a maximum penalty of imprisonment for 10 years. The judgment of conviction for each of the drug-delivery charges listed the maximum term of imprisonment for the offense as “ten years,” App. 16, 42, 93, but the state court sentenced respondent to concurrent sentences of 48 months’ imprisonment on each count, id., at 21, 47, 98.
In the federal felon-in-possession case, the Government asked the District Court to sentence respondent under ACC A, which sets a 15-year minimum sentence “[i]n the case of a person who violates section 922(g) of [Title 18] and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another . . . .” 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). The Government argued that respondent’s two prior California burglary convictions were for “ Violent felonies.’” Pet. for Cert. 4. See § 924(e)(2)(B)(ii) (2000 ed.) (listing “burglary” as a “violent felony”). The District Court agreed, and that ruling is not at issue here.
The Government also argued that at least two of respondent’s Washington drug convictions were for “serious drug offense[s].” Under ACC A, a “serious drug offense” includes:
“an offense under State law, involving manufacturing, distributing, or possessing with intent to distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U. S. C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law.” § 924(e)(2)(A)(ii) (emphasis added).
Because the maximum term that respondent faced on at least two of the Washington charges was 10 years, the Government contended that these convictions had to be counted under ACCA. The District Court disagreed, holding that respondent’s drug-trafficking convictions were not convictions for “serious drug offense[s]” under ACCA because the “maximum term of imprisonment” for the purposes of § 924(e)(2)(A)(ii) is determined without reference to recidivist enhancements. Sentencing Order, at 9, App. 254.
The Court of Appeals for the Ninth Circuit, applying its prior precedent in United States v. Corona-Sanchez, 291 F. 3d 1201 (2002) (en banc), affirmed. 464 F. 3d 1072. The court recognized that its decision conflicted with the Seventh Circuit’s decision in United States v. Henton, 374 F. 3d 467, 469-470, cert. denied, 543 U. S. 967 (2004), and was “in tension” with decisions of the Fourth and Fifth Circuits. 464 F. 3d, at 1082, n. 6; see Mutascu v. Gonzales, 444 F. 3d 710, 712 (CA5 2006) (per curiam); United States v. Williams, 326 F. 3d 535, 539 (CA4 2003). We granted the Government’s petition for a writ of certiorari, 551 U. S. 1191 (2007).
II
The question that we must decide is whether the “maximum term of imprisonment prescribed by law” in this case is, as respondent maintains and the Ninth Circuit held, the 5-year ceiling for first offenses or, as the Government contends, the 10-year ceiling for second or subsequent offenses. See Wash. Rev. Code §§ 69.50.401(a)(1)(ii)-(iv), 69.50.408(a).
The Government’s reading is compelled by the language of ACCA. For present purposes, there are three key statutory terms: “offense,” “law,” and “maximum term.” The “offense” in each of the drug-delivery cases was a violation of §§ 69.50.401(a)(l)(ii)-(iv). The relevant “law” is set out in both that provision, which prescribes a “maximum term” of 5 years for a first “offense,” and § 69.50.408(a), which prescribes a “maximum term” of 10 years for a second or subsequent “offense.” Thus, in this case, the maximum term prescribed by Washington law for at least two of respondent’s state drug offenses was 10 years.
The Ninth Circuit’s holding that the maximum term was five years contorts ACCA’s plain terms. Although the Washington state court sentenced respondent to 48 months’ imprisonment, there is no dispute that § 69.50.408(a) permitted a sentence of up to 10 years. On the Ninth Circuit’s reading of ACCA, even if respondent had been sentenced to, say, six years’ imprisonment, “the maximum term of imprisonment” prescribed by law still would have been five years. It is hard to accept the proposition that a defendant may lawfully be sentenced to a term of imprisonment that exceeds the “maximum term of imprisonment . . . prescribed by law,” but that is where the Ninth Circuit’s reading of the statute leads.
The Ninth Circuit’s interpretation is also inconsistent with the way in which the concept of the “maximum term of imprisonment” is customarily understood by participants in the criminal justice process. Suppose that a defendant who indisputably had more than three prior convictions for “violent felon[ies]” or “serious drug offense[s]” was charged in federal court with violating the felon-in-possession statute. Under ACCA, this defendant would face a sentence of “not less than 15 years.” 18 U. S. C. § 924(e)(1) (2000 ed., Supp. V). Suppose that the defendant asked his or her attorney, “What’s the maximum term I face for the new offense?” An attorney aware of ACCA would surely not respond, “10 years,” even though 10 years is the maximum sentence without the ACCA enhancement. See § 924(a)(2) (2000 ed.).
Suppose that the defendant then pleaded guilty to the felon-in-possession charge. Under Federal Rule of Criminal Procedure 11(b)(1)(H), the trial judge would be required to advise the defendant of the “maximum possible penalty.” If the judge told the defendant that the maximum possible sentence was 10 years and then imposed a sentence of 15 years based on ACCA, the defendant would have been sorely misled and would have a ground for moving to withdraw the plea. See United States v. Gonzalez, 420 F. 3d 111, 132 (CA2 2005); United States v. Harrington, 354 F. 3d 178, 185-186 (CA2 2004). In sum, a straightforward application of the language of ACCA leads to the conclusion that the “maximum term of imprisonment prescribed by law” in this case was 10 years.
Ill
A
In an effort to defend the Ninth Circuit’s decision, respondent offers both a textual argument and a related argument based on the “manifest purpose” of ACCA. Brief for Respondent 8.
Respondent’s textual argument is as follows. The term “offense” “generally is understood to describe the elements constituting the crime.” Id., at 10. Because prior convictions required for recidivist enhancements are not typically offense elements, they should not be considered part of the “offense” under ACCA. Thus, the “maximum term of imprisonment prescribed by law” for the drug convictions at issue was the maximum term prescribed for simply committing the elements of the drug offense and was therefore five years. Id., at 10-11.
Respondent’s argument is not faithful to the statutory text. Respondent reads ACCA as referring to “the maximum term of imprisonment prescribed by law” for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to “the maximum term of imprisonment prescribed by law” for “an offense,” and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years.
Respondent’s argument based on ACCA’s “manifest purpose” must also be rejected. Respondent argues that ACCA uses “the maximum penalty specified for the offense by state law as a short-hand means of identifying conduct deemed sufficiently ‘serious’ to trigger [the] mandatory penalty.” Id., at 9. According to respondent, “[t]he nature of [a defendant’s] conduct, the elements of the offense, and the impact of the crime ... are the characteristics that typically are used to gauge the ‘seriousness’ of an offense,” and a defendant’s “status as a recidivist has no connection to whether the offense committed by the defendant was a ‘serious’ one.” Id., at 11.
This argument rests on the erroneous proposition that a defendant’s prior record of convictions has no bearing on the seriousness of an offense. On the contrary, however, an offense committed by a repeat offender is often thought to reflect greater culpability and thus to merit greater punishment. Similarly, a second or subsequent offense is often regarded as more serious because it portends greater future danger and therefore warrants an increased sentence for purposes of deterrence and incapacitation. See Witte v. United States, 515 U. S. 389, 403 (1995); Spencer v. Texas, 385 U. S. 554, 570 (1967) (Warren, C. J., dissenting in two judgments and concurring in one).
If respondent were correct that a defendant’s record of prior convictions has no bearing on the seriousness of an offense, then it would follow that any increased punishment imposed under a recidivist provision would not be based on the offense of conviction but on something else — presumably the defendant’s prior crimes or the defendant’s “status as a recidivist,” Brief for Respondent 11. But we have squarely rejected this understanding of recidivism statutes. In Nichols v. United States, 511 U. S. 738 (1994), we explained that “ ‘[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant.’” Id., at 747 (quoting Baldasar v. Illinois, 446 U. S. 222, 232 (1980) (Powell, J., dissenting)). When a defendant is given a higher sentence under a recidivism statute — or for that matter, when a sentencing judge, under a guidelines regime or a discretionary sentencing system, increases a sentence based on the defendant’s criminal history — 100% of the punishment is for the offense of conviction. None is for the prior convictions or the defendant’s “status as a recidivist.” The sentence “is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it is] a repetitive one.” Gryger v. Burke, 334 U. S. 728, 732 (1948).
B
Respondent argues that our interpretation of ACCA produces “a sort of perverse bootstrapping” under which a defendant is “punished under federal law for being treated as a recidivist under state law,” Brief for Respondent 20 (emphasis deleted), but the fact that ACCA is itself a recidivist statute bolsters our reading. Since ACCA is a recidivist statute, Congress must have had such provisions in mind and must have understood that the “maximum penalty prescribed by [state] law” in some cases would be increased by state recidivism provisions.
Contrary to respondent’s suggestion, United States v. LaBonte, 520 U. S. 751 (1997), supports our interpretation of ACCA. The statute at issue in LaBonte, a provision of the Sentencing Reform Act of 1984, as amended, 28 U. S. C. § 994(h), directed the United States Sentencing Commission to “assure” that the Sentencing Guidelines specify a prison sentence “at or near the maximum term authorized for categories of” adult offenders who commit their third felony drug offense or violent crime. We held that the phrase “maximum term authorized” “refers to all applicable statutes,” including recidivist enhancements. 520 U. S., at 758, n. 4.
Respondent claims that LaBonte supports his position because ACCA, unlike 28 U. S. C. § 994(h), does not refer to “categories of” offenders. Respondent suggests that Congress’ failure to include such language in ACCA means that Congress intended to refer to a “maximum term” that does not depend on whether a defendant falls into the first-time-offender or recidivist “category.” Respondent does not explain how 18 U. S. C. § 924(e)(2)(A) could have easily been reworded to mirror 28 U. S. C. § 994(h). But in any event, the language used in ACCA, for the reasons explained above, is more than clear enough.
Respondent argues that the Ninth Circuit’s decision is supported by the so-called “categorical” approach that we used in Taylor v. United States, 495 U. S. 575 (1990), in determining which offenses qualify as “violent felon[ies]” under 18 U. S. C. § 924(e)(2)(B)(ii). Section 924(e)(2)(B)(ii) provides that four enumerated crimes — burglary, arson, extortion, and offenses involving the use of explosives — are “violent felonies]” for ACCA purposes. In Taylor, we held that Congress intended for these crimes to have a “uniform definition” that was “independent of the labels employed by the various States’ criminal codes.” 495 U. S., at 592. According to respondent, “[t]he categorical approach rests on the congressional intent — reflected in the statutory language— to focus the ACCA inquiry on the offense of conviction, rather than on collateral matters unrelated to the definition of the crime.” Brief for Respondent 12.
We see no connection, however, between the issue in Taylor (the meaning of the term “burglary” in § 924(e)(2)(B)(ii)) and the issue here (the meaning of the phrase “maximum term of imprisonment . . . prescribed by law” under § 924(e)(2)(A)(ii)). Taylor held that the meaning of “burglary” for purposes of ACCA does not depend on the label attached by the law of a particular State, 495 U. S., at 600-601, but the “maximum penalty prescribed by law” for a state offense necessarily depends on state law.
For a similar reason, we reject respondent’s argument that, under our interpretation, offenses that are not really serious will be included as “serious drug offense[s]” because of recidivist enhancements. In § 924(e)(2)(A)(ii), Congress chose to rely on the “maximum term of imprisonment . . . prescribed” by state law as the measure of the seriousness of state offenses involving the manufacture, distribution, or possession of illegal drugs. Congress presumably thought — not without reason — that if state lawmakers provide that a crime is punishable by 10 years’ imprisonment, the lawmakers must regard the crime as “serious,” and Congress chose to defer to the state lawmakers’ judgment. Therefore, our interpretation poses no risk that a drug-trafficking offense will be treated as “serious” without satisfying the standard that Congress prescribed.
C
Respondent argues that it will often be difficult to determine whether a defendant faced the possibility of a recidivist enhancement in connection with a past state drug conviction and that therefore our interpretation of ACCA will require the federal courts to “engage in difficult inquiries regarding novel questions of state law and complex factual determinations about long-past proceedings in state courts.” Brief for Respondent 21. Respondent greatly exaggerates the problems to which he refers.
First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, see App. 16, 42, 93, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. See Brief for Respondent 33. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements. Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.
D
Respondent’s last argument is that if recidivist enhancements can increase the “maximum term” of imprisonment under ACCA, it must follow that mandatory guidelines systems that cap sentences can decrease the “maximum term” of imprisonment. Brief for Respondent 38. In each situation, respondent argues, the “maximum term” of imprisonment is the term to which the state court could actually have sentenced the defendant. Respondent concedes that he has waived this argument with respect to his own specific state-court convictions. See Brief in Opposition 15, n. 7. He argues, however, that Congress cannot have wanted to make the “maximum term” of imprisonment for ACCA purposes dependent on the complexities of state sentencing guidelines. We conclude, however, that the phrase “maximum term of imprisonment . . . prescribed by law” for the “offense” was not meant to apply to the top sentence in a guidelines range.
First, the top sentence in a guidelines range is generally not really the “maximum term . . . prescribed by law” for the “offense” because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances. The United States Sentencing Guidelines, for example, permit “upward departures,” see United States Sentencing Commission, Guidelines Manual § 5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines systems in existence at the time of the enactment of the ACCA provision at issue in this case. (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could “impose a sentence outside the standard sentence range” upon a finding “that there [were] substantial and compelling reasons justifying an exceptional sentence.” Wash. Rev. Code § 9.94A.120(2) (1994).)
Second, the concept of the “maximum” term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, Pub. L. 98-473, §211, 98 Stat. 1987, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of a sentencing guidelines range. See, e. g., 18 U. S. C. § 3 (1982 ed.) (“[A]n accessory after the fact shall be imprisoned not more than one-half the maximum term of imprisonment ... for the punishment of the principal”); § 3575(b) (allowing for an increased sentence for dangerous special offenders “not disproportionate in severity to the maximum term otherwise authorized by law for” the underlying felony); see also §371 (the punishment for conspiracy to commit a misdemeanor “shall not exceed the maximum punishment provided for such misdemeanor”); §3651 (allowing for confinement and suspension of sentence upon conviction of an offense not punishable by death or life imprisonment “if the maximum sentence for such offense is more than six months”); § 3653 (referring to the “maximum probation period”).
It is instructive that, even in the Sentencing Reform Act, the concept of the “maximum term of imprisonment” prescribed for an offense was used in this sense. See § 212, 98 Stat. 1991-1992 (new 18 U. S. C. § 3559 classifying offenses based on “the maximum term of imprisonment authorized... by the statute describing the offense”); § 235(b)(1)(F), 98 Stat. 2032 (“The maximum term of imprisonment in effect on the effective date [of the Sentencing Reform Act]” remains in effect for five years after the effective date “for an offense committed before the effective date”); § 1003(a), id., at 2138 (solicitation to commit a crime of violence punishable by “one-half the maximum term of imprisonment... prescribed for the punishment of the crime solicited”). In light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant for the concept of the “maximum term of imprisonment” prescribed by law for an “offense” to have the same meaning in ACCA.
Our decision in United States v. R. L. C., 503 U. S. 291 (1992), is not to the contrary. The statutory provision there, 18 U. S. C. § 5037(c) (2000 ed.), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, see § 214, 98 Stat. 2013, and then amended again two years later, see §§21(a)(2)-(4), 100 Stat. 3596. As thus amended, the provision did not refer to the “maximum term of imprisonment” prescribed for an “offense.” Rather, the provision focused on the particular juvenile being sentenced. It provided that, “fin the case of a juvenile who is less than eighteen years old,’” official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or “‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’” United States v. R. L. C., supra, at 295-296, n. 1 (quoting 18 U. S. C. § 5037(c)). Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, 503 U. S., at 299, it is not analogous to the ACCA provision that is before us in this case.
* * *
For these reasons, we hold that the “maximum term of imprisonment... prescribed by law” for the state drug convictions at issue in this case was the 10-year maximum set by the applicable recidivist provision. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and Justice Ginsburg join, dissenting.
The Court chooses one reading of the Armed Career Criminal Act (ACCA), 18 U. S. C. § 924(e) (2000 ed. and Supp. V), over another that would make at least as much sense of the statute’s ambiguous text and would follow the counsel of a tradition of lenity in construing perplexing criminal laws. The Court’s choice, moreover, promises hard times for the trial courts that will have to make the complex sentencing calculations this decision demands. I respectfully dissent.
I
The ACCA mandates a 15-year minimum sentence for anyone convicted of violating § 922(g) (2000 ed.) who “has three previous convictions [for] a serious drug offense” among his prior crimes. § 924(e)(1) (2000 ed., Supp. V). Section 924(e)(2)(A) (2000 ed.) defines “serious drug offense” as an offense under state or federal drug laws, “for which a maximum term of imprisonment of ten years or more is prescribed by law.” This limitation leaves open the question whether a given conviction qualifies as “serious” by reference to the penalty for the acts making up the basic offense, regardless of who commits it, or whether account must also be taken of further facts (such as an offender’s criminal record that qualified him for an enhanced penalty at the time of that earlier conviction). If the first alternative is the reading Congress intended, a sentencing judge needs to look only to the penalty specified for the basic offense committed by a first-time offender. But if the second is the intended one, a judge may have to consider sentencing variations (for using a gun, say, or for repeating the offense) set out in other provisions.
It all turns on the meaning of the word “offense,” to which the “maximum term” is tied. One can naturally read “an offense” at a general level as synonymous with “a crime,” which would tend to rule out reference to máximums adjusted for other facts; we do not usually speak of a crime of “burglary while having a criminal record and while out on bail.” Those details would come up only if we were speaking about a specific instance, described as a burglary “committed by someone with a record while out on bail,” in which case the other facts may “enhance” his sentence beyond what would have been the maximum term for burglary. The trouble is that “offense” could easily refer to a specific occurrence, too; looking at it that way would make it less jarring to suggest that the circumstances around an event that authorize higher penalty ranges (such as the use of a gun) or the defendant’s history (like a prior conviction) ought to count in identifying the maximum penalty for the offense committed on the given day, at the given place, by the particular offender, in a given way. Either reading seems to offer a plausible take on the “offense” for which the ACCA court will have to identify or calculate “maximum” penalties, under state law.
We get no help from imagining the circumstances in which a sentencing court would ask which reading to adopt. The choice of answer would be easy if the question arose in the mind of a lawyer whose client is thinking about a guilty plea and asks what maximum term he faces. See ante, at 383. His lawyer knows that he means the maximum term for him in his case. When a repeat offender wants to know, counsel understands that the penalty prescribed for the basic crime without the recidivist add-on is not the baseline for comparison that may make or break the potential plea agreement. And if the repeat offender faces a further statutory enhancement for carrying a gun during the offense, or for being out on bail, his lawyer would not tell him the maximum term for repeat offenders without guns or bail restrictions. By the same token, if the offender faced (as Rodriquez did) a lower sentence ceiling than what the statute says, by grace of mandatory sentencing guidelines, his lawyer would know enough to tell him that his maximum was capped in this way.
When the issue comes up not in a particular client’s questions about his own prospects, however, but in a trial judge’s mind wondering about the meaning of the general statute, context gives no ready answer. Nor does it break the tie to say, as the Court does, that taking “maximum” to refer to the basic offense would mean that a recidivist with add-ons could be sentenced above the ACCA “maximum,” see ante, at 383 (“[E]ven if respondent had been sentenced to, say, six years’ imprisonment, ‘the maximum term of imprisonment’ prescribed by law still would have been five years”). That description, after all, might be just a verbal quirk showing the statutory design in proper working order: if Congress meant an offense to be viewed generically and apart from offender characteristics, a gap between the maximum for ACCA purposes, and a heavier, actual sentence accounting for a defendant’s history is to be expected.
The text does not point to any likelier interpretive choices, and as between these alternatives, it is simply ambiguous. Because I do not believe its ambiguity is fairly resolved in the Government’s favor, I would affirm.
II
A
None of the Court’s three principal points or ripostes solves the puzzle. To begin with, there is something arbitrary about trying to resolve the ambiguity by rejecting the maximum-for-basic-offense option while declining to consider an entire class of offender-based sentencing adjustments. If offender characteristics are going to count in identifying the relevant maximum penalty, it would seem to follow that in jurisdictions with mandatory sentencing guidelines, the maximum “prescribed by law” would be what the guidelines determine. The original Federal Guidelines, and the mandatory state guidelines I am aware of, were established under statutory authority that invests a guideline with the same legal status as a customary penalty provision. Cf. United States v. R. L. C., 503 U. S. 291, 297 (1992) (“The answer to any suggestion that the statutory character of a specific penalty provision gives it primacy over administrative sentencing guidelines is that the mandate to apply the Guidelines is itself statutory”).
The Court tries to deflect the implication of its position by denying that state sentencing guidelines really do set maximum penalties, since typically they allow a judge to depart from them, up or down, when specified conditions are met. See ante, at 390-391. But while this is true, the objection stands. However a particular mandatory guideline scheme works, it sets a maximum somewhere; if it includes conditions affecting what would otherwise be a guideline maximum, the top of the range as affected should be the relevant maximum on the Court’s reading of the statute. Indeed, the factual conditions involved are usually offender characteristics, and if the ACCA is going to count them under offense-defining statutes or freestanding recidivism laws, those same facts ought to count under a guideline rule (whether setting, or authorizing a departure from, a particular limit). There is no practical difference whether máximums are adjusted by a statute, a statutorily mandated guideline, or a guideline-specified departure; wherever a “prescription] by law” resides, it ought to be honored by the ACCA court.
If we were to follow the Court’s lights, then, I think we would have to accept the complication that guidelines schemes present, and face the difficulty of calculating enhanced máximums in guidelines jurisdictions. What we cannot do is resolve statutory ambiguity by looking to the sentencing range for an imaginary offender who meets statutory conditions for altering the basic sentence, but is artificially stripped of any characteristic that triggers a guideline rule also “prescribed by law.”
B
The more fundamental objection, though, goes to the Court’s basic conclusion that it makes the better sense to read the ACCA as resting the federal treatment of recidivists on the maximum sentence authorized by state recidivist schemes, in cases where state law must be considered. The Court says it would have been natural for Congress to think in terms of state judgments about repeat criminals when thinking about what to do at the national level, and the Court is quite possibly right about this; the fact that the federal penalty may turn on a state felony classification at all shows that Congress was thinking about state law. But the chances are at least equally good that the Court is wrong; it is odd to think that Congress would have piggybacked the federal system on state repeat-offender schemes, given the extraordinary and irreconcilable variations among state policies on the subject.
For one thing, the States’ recidivism schemes vary in their methods for augmenting sentences. Iowa’s law, for example, subjects repeat drug offenders to triple penalties, Iowa Code § 124.411(1) (2005); but in Wisconsin a repeat drug distributor will see his maximum term increased by a fixed number of years, whatever the starting point, see, e. g., Wis. Stat. § 961.48(l)(b) (2003-2004) (4-year increase for Class H felony such as selling one kilogram of marijuana).
More striking than differing structures, though, are the vast disparities in severity from State to State: under Massachusetts drug laws, a third conviction for selling a small amount of marijuana carries a maximum of 2.5 years. Mass. Gen. Laws, ch. 94C, §32C(b) (West 2006). In Delaware, a third conviction means a mandatory sentence of life in prison without parole. See Del. Code Aun., Tit. 11, § 4214(b) (2007) (third-felony penalty of life without parole for violations of nonnarcotic controlled substances law, Tit. 16, § 4752 (2003)). That Congress might have chosen to defer to state-law judgments about “seriousness” that vary so widely for the same conduct is at least open to doubt. And that doubt only gets worse when we notice that even where two States have similar maximum penalties for a base-level offense, their recidivist enhancements may lead the same conduct to trigger the ACCA sanction in one State but not the other: on the Court’s view, an offender’s second conviction for selling, say, just over two pounds of marijuana will qualify as an ACCA predicate crime if the conviction occurred in Arizona (maximum of 13 years), Iowa (15 years), Utah (15 years), and the District of Columbia (10 years), for example; but it will fall short of the mark in California (8 years), Michigan (8 years), and New York (8 years). Yet in each of these States, the base-level offense has a maximum term falling within a much narrower range (between 3.5 and 5.5 years). With this backdrop of state law, the Government can hardly be heard to say that there would be something “incongruous” about a federal law targeting offenses flagged by the penalties assigned only to bare conduct, without regard to recidivism or other offender facts. Brief for United States 17.
Nor does it show what the ACCA means by “maximum” or “offense” when the Court points to language from our prior cases saying that enhanced recidivist penalties are not to be viewed as retroactive punishment for past crimes, for purposes of double-jeopardy and right-to-counsel enquiries. See ante, at 385-386 (citing Nichols v. United States, 511 U. S. 738, 747 (1994), and Gryger v. Burke, 334 U. S. 728, 732 (1948)). The quotations show that a separate offense is identified by an enhanced penalty, the Court says, because from them we can draw the conclusion that “[w]hen a defendant is given a higher sentence under a recidivism statute,” nonetheless “100% of the punishment is for the offense of conviction,” leaving nothing to be attributed to “prior convictions or the defendant’s ‘status as a recidivist,’ ” ante, at 386.
Still, the fact is that state-law máximums for repeat offenders sometimes bear hardly any relation to the gravity of the triggering offense, as “three-strikes” laws (not to mention the Delaware example, above) often show. See, e. g., Ill. Comp. Stat., ch. 720, §5/33B-l (2004) (mandatory life sentence for third “Class X” felony, such as dealing heroin, without regard to the specific penalty gradation for the latest Class X felony or to any similarity with prior offenses); W. Va. Code Ann. § 61-ll-18(c) (2005) (if offender was “twice before convicted in the United States of a crime punishable by confinement in a penitentiary,” third such conviction incurs a mandatory life sentence). Cf. Ewing v. California, 538 U. S. 11,30, n. 2 (2003) (plurality opinion) (the “California Legislature therefore made a deliberate policy decision . . . that the gravity of the new felony should not be a determinative factor in triggering the application of the Three Strikes Law” (internal quotation marks omitted)). And there is no denying that the fact of prior convictions (or a defendant’s recidivist status) is necessary for the “ ‘stiffened penalty’ ” to be imposed for “ ‘the latest crime,’ ” ante, at 386, the necessary fact being specific to the offender, and falling outside the definition of the offense. This is, after all, what it means to apply an “enhancement.”
The upshot is that it may have been natural for Congress to think of state recidivism schemes, but it may well not have been. If there is anything strange about ignoring enhanced penalties, there is something at least as strange about a federal recidivist statute that piles enhancement on enhancement, magnifying the severity of state laws severe to begin with.
C
Whatever may be the plausibility of the offender-based reading of the statute as the Court describes it, the Court’s description avoids a source of serious doubt by glossing over the practical problems its take on the statute portends. The Court is unmoved by the argument that Congress probably did not expect federal courts applying the ACCA to master the countless complications of state sentencing schemes; because all jurisdictions provide for enhanced sentencing some way or another, the Court thinks there is nothing threatening in the subject, which it tries to simplify by offering a few practical pointers. It notes that there will be cases with a qualifying enhancement “evident from the length of the sentence imposed” by the state court; sometimes, it says, a court’s “judgment of conviction will . . . list the maximum possible sentence”; or the state prosecutor will have “submit[ted] a formal charging document in order to obtain a recidivist enhancement.” Ante, at 389. And in cases involving pleas, the Court notes, “the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty.” Ibid. Even when there are no pointers to help, says the Court, and “the records that may properly be consulted” yield no clear answer, the worst that can happen will be the Government’s inability to show that a prior conviction qualifies. Ante, at 389.
But it is not that easy, and the Court’s pointers are not much comfort. To start with, even where a “maximum” sentence is mentioned in state records, how will the ACCA court be supposed to know that the “maximum” written down there is what the Court today holds that “maximum” means? A State’s number below 10 years may refer to the base-level offense, or it may be the reduced maximum required by mandatory guidelines; and a number over 10 years may be the product of other enhancements (as for weapons use or being out on bail at the time of commission). Having to enquire into just what imposed sentences or what trial documents really mean would seem to leave plenty of sorting out for the federal courts to do (or at least, for federal prosecutors, if they end up with the job).
Another example: state laws are not written to coordinate with the ACCA, and if a State’s specific repeat drug-offender provisions, say, are supposed to be read together with its general habitual-offender statutes, the resulting “maximum” may not be the Court’s “maximum.” Indeed, a federal court may have to figure out just how those state statutes may be read together to avoid conflict between them, when the way to avoid conflict is not clear cut even for the state courts, see, e. g., Goldberg v. State, 282 Ga. 542, 651 S. E. 2d 667 (2007) (general recidivist statute trumps more specific one; overruling same court’s decision in Mikell v. State, 270 Ga. 467,510 S. E. 2d 523 (1999)); State v. Keith, 102 N. M. 462,697 P. 2d 145 (App. 1985) (specific trumps general). Cf. Clines v. State, 912 So. 2d 550 (Fla. 2005) (relying on rule of lenity to resolve whether multiple recidivist categories in same habitual-offender law could apply to a single sentence).
And there is more: as Rodriquez reminds us, just deciding what counts as a “prior” offense under state law is not always an easy thing. See People v. Wiley, 9 Cal. 4th 580, 583, 889 P. 2d 541, 542 (1995). (noting difficulty of applying requirement that “prior” charges have been “brought and tried separately,” where defendant had been convicted in trials occurring one day apart and sentenced at the same court session; in the end, drawing the needed inference from docket numbers revealed on documents requested from the municipal trial court); id., at 595,889 P. 2d, at 550 (Werdegar, J., dissenting) (protesting the court’s solicitation and use of extrarecord documents). Nor would that sort of enquiry get any easier, or be more likely to benefit from well-settled state law, when a given State’s law takes account of prior offenses in other States, see Timothy v. State, 90 P. 3d 177 (Alaska App. 2004) (holding Oklahoma burglary not to be analogous to one in Alaska, for purposes of Alaska’s recidivism enhancements, thus overruling its own 2-year-old decision, Butts v. State, 53 P. 3d 609 (2002)); or, to take a specific example, when what qualifies a prior offense under one State’s recidivism scheme is the length of the sentence authorized by another State’s law (raising the question whether that first State would see recidivist enhancements the same way the Court does today). See, e.g., N. J. Stat. Ann. § 2C:44-4(c) (West 2005) (“A conviction in another jurisdiction shall constitute a prior conviction of a crime if a sentence of imprisonment in excess of 6 months was authorized under the law of the other jurisdiction”); N. M. Stat. Ann. §31-18-17(D)(2)(b) (2007 Supp.) (defining “prior felony conviction” as, inter alia, a felony “punishable [by] a maximum term of imprisonment of more than one year”).
A still thornier problem is how federal courts are supposed to treat a State’s procedural safeguards for using prior convictions at sentencing. Saying that congressional deference to the States’ judgments about the severity of crimes also extends to their judgments about recidivism raises, but does not answer, the question whether such deference goes only as far as the state courts themselves could go in raising penalties. (The Court’s disregard of mandatory sentencing guidelines would seem to suggest that the answer is no.) In those States that require notice before the prosecutor can seek a recidivism enhancement, for example, how will a federal court decide whether the ACCA counts a prior conviction that would have qualified for recidivism enhancement if the state prosecutor had not failed to give timely notice? See, e. g., Commonwealth v. Fernandes, 430 Mass. 517, 522, 722 N. E. 2d 406, 409 (1999) (noting longstanding rule that the indictment must give notice of prior convictions “that may subject the defendant to enhanced punishment”).
I could go on, but this is enough to show that the Court’s interpretation promises that ACCA courts will face highly complicated enquiries into every State’s or Territory’s collection of ancillary sentencing laws. That is an unconvincing answer to the ambiguity.
Ill
At the end of the day, a plainly superior reading may well be elusive; one favoring the Government certainly is. It does not defy common English or common sense, after all, to look at a statute with one penalty range for the basic crime and a higher one for a repeat offender and say that the former sets the maximum penalty for the “offense”; but neither is it foolish to see the “offense” as defined by its penalty, however that is computed. What I have said so far suggests that I think the basic-crime view of “offense” is the better one, but I will concede that the competing positions are pretty close to evenly matched. And on that assumption, there is a ready tiebreaker.
The interpretation adopted by both the District Court and the Court of Appeals is the one counseled by the rule of lenity, which applies where (as here) we have “ ‘seiz[ed] every thing from which aid can be derived,’” but are “left with an ambiguous statute,” United States v. Bass, 404 U. S. 336, 347 (1971) (quoting United States v. Fisher, 2 Cranch 358, 386 (1805) (opinion for the Court by Marshall, C. J.)). The rule is grounded in “ ‘the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should/” Bass, supra, at 348 (quoting H. Friendly, Benchmarks 209 (1967)), and we have used it to resolve questions both about metes and bounds of criminal conduct and about the severity of sentencing, see Bifulco v. United States, 447 U. S. 381, 387 (1980) (collecting cases). “This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.” Ladner v. United States, 358 U. S. 169, 178 (1958).
This is why lenity should control here. Even recognizing the best that can be said for the Government’s side, its position rests on debatable guesswork to send a man to prison for 180 months, as against 92 months on the basic-crime view. And the District Courts will be imposing higher sentences more than doubling the length of the alternative in a good many other cases, as well.
The “fair warning” that motivates the lenity rule, McBoyle v. United States, 283 U. S. 25,27 (1931) (opinion for the Court by Holmes, J.), may sometimes be a benign fiction, see R. L. C., 503 U. S., at 309 (SCALIA, J., concurring in part and concurring in judgment), but there is only one reading of this statute with any realistic chance of giving fair notice of how the ACCA will apply, and that is the reading the District Court and the Court of Appeals each chose. Their choice should be ours, too.
“Except as authorized by this chapter, it is unlawful for any person to manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance.” Wash. Rev. Code § 69.50.401(a) (1994).
In any event, the only “minor drug crime” that respondent identifies as potentially constituting an ACCA predicate based on recidivist enhancement is distribution of a 21 U. S. C. §812, Schedule III narcotic in violation of Mich. Comp. Laws Ann. §333.7401(2)(b)(ii) (West Supp. 2007). Given that Schedule III substances include anabolic steroids and painkillers with specified amounts of certain narcotics like opium, see 21 U. S. C. § 812, one might debate respondent’s assertion that distribution of these narcotics is not “serious” in the generic sense of the word. However, Congress chose to defer to the Michigan Legislature’s judgment that the offense was “serious” enough to warrant punishment of first offenses by up to seven years’ imprisonment, and certain repeat offenses by a maximum term of life imprisonment. See Mich. Comp. Laws Ann. §§ 333.7401(2)(b)(ra), 333.769.12(1).
See, e. g., Kan. Stat. Ann. §22-3210(a)(2) (2007); N. C. Gen. Stat. Ann. § 15A-1022(a)(6) (Lexis 2007); Tex. Code Crim. Proc. Ann., Art. 26.13(a)(1), (d) (Vernon Supp. 2007); Ala. Rule Crim. Proc. 14.4(a)(l)(ii) (Lexis 2007); Fla. Rules Crim. Proc. 3.172(b), (c)(1) (West 2007); Ga. Uniform Super. Ct. Rule 33.8(C)(3) (Lexis 2008); Ill. Sup. Ct. Rule 402(a)(2) (West 2007); Pa. Rule Crim. Proc. 590, comment (West 2008); Ohio Rule Crim. Proc. 11(C)(2)(a) (West 2008); Mich. Rule Crim. Proc. 6.302(B)(2) (West 2007); Alexander v. State, 605 So. 2d 1170,1172 (Miss. 1992); Bunnell v. Superior Court, 13 Cal. 3d 592, 604-605, 531 P. 2d 1086,1094 (1975).
By 1986, when Congress added the relevant statutory language, see Pub. L. 99-570, § 1402,100 Stat. 3207-39, eight States had guidelines systems in effect. See Frase, State Sentencing Guidelines: Diversity, Consensus, and Unresolved Policy Issues, 105 Colum. L. Rev. 1190,1196, Table 1 (2005). Two of those States (Utah and Maryland) had voluntary guidelines, id., at 1198, and the other six States had guidelines systems that allowed for sentences in excess of the recommended range in various circumstances, see People v. Miles, 156 Mich. App. 431, 437,402 N. W. 2d 34, 37 (1986) (remanding for the trial court to state reasons for upward departure); Stoats v. State, 717 P. 2d 413, 422 (Alaska App. 1986) (affirming upward departure); State v. Armstrong, 106 Wash. 2d 547, 549-550, 723 P. 2d 1111,1113-1114 (1986) (en banc) (same); State v. Mortland, 395 N. W. 2d 469, 474 (Minn. App. 1986) (same); Walker v. State, 496 So. 2d 220 (Fla. App. 1986) (per curiam) (same); Commonwealth v. Mills, 344 Pa. Super. 200, 204, 496 A. 2d 752, 754 (1985) (same).
While Washington law provided a list of “illustrative factors which the court [could] consider in the exercise of its discretion to impose an exceptional sentence,” the list was “not intended to be exclusive” of other potential reasons for departing. § 9.94A.390.
Indeed, if today’s decision is read to mean that enhancements only for recidivism need to be counted, then it too permits a defendant’s actual sentence for a predicate conviction to be higher than what a federal court identifies as an offense’s “maximum term” for ACCA purposes: actual sentences can outstrip the maximum term for recidivists if nonrecidivism factors such as weapons enhancements can also raise a given defendant’s statutory ceiling. The Government seems to accept this possibility, noting that “if a statute is as a formal matter structured in such a way as to create broad tiers of punishment for categories of offenders” based on factors other than recidivism, “then certainly that would seem to be an alternative maximum term of imprisonment.” Tr. of Oral Arg. 21. The Court, however, does not address this prospect, despite having seen the same kind of result as a dealbreaker for Rodriquez’s view.
Even adopting the “alternative” of accounting for an offender’s circumstances and record does not resolve the ambiguity, for this rubric actually comprises multiple possibilities under its generic umbrella. Most simply, it might be thought to refer to the actual offender’s sentencing range as applied by the state court. At the other extreme, it might mean the maximum for a, purely hypothetical “worst” offender who incurs all possible add-ons. Or perhaps it means a fictional version of the actual offender, say, one qualifying for some statutory add-ons but not for any guidelines rules (as the Court would have it); or maybe one who qualifies for both the statutory and the guidelines departures for which the actual offender was eligible, even though not all of those departures were applied by the state court. This menagerie of options would be multiplied, if a court directly confronted the choice whether to count enhancements for offender-based factors other than recidivism, and if so, which.
In this case, doing so would likely result in affirmance, because as the Government admits, Rodriquez’s guidelines ceiling was just shy of five years. Brief for United States 28.
See Ariz. Rev. Stat. Ann. § 13-604(B) (West Supp. 2007) (maximum set at 13 years); Iowa Code §§ 124.401(1)(<Z), 902.9(5), 124.411 (2005) (basic-offense maximum is tripled to 15 years); Utah Code Ann. §§58-37-8(l)(b)(ii) (Lexis 2007 Supp. Pamphlet), 76-3-203(2) (Lexis 2003) (15 years); D. C. Code §§48-904.01(a)(2)(B) (2007 Supp. Pamphlet), 48-904.08(a) (2001) (basic-offense maximum is doubled to 10 years).
See Cal. Health & Safety Code Ann. §11360 (West 2007); Cal. Penal Code Ann. § 1170.12(c)(1) (West 2004) (basic-offense maximum is doubled to 8 years); Mich. Comp. Laws Ann. §§333.7401(2)(d)(m) (West Supp. 2008), 333.7413(2) (2001) (basic-offense maximum is doubled to 8 years); N. Y. Penal Law Ann. §§221.55 (West 2001), 70.70(3)(b)(ii) (West Supp. 2008) (maximum set at 8 years).
See Ariz. Rev. Stat. Ann. §§ 13-3405(B)(5), 13-701(0 (West 2001) (maximum set at 3.5 years); Cal. Health & Safety Code Ann. § 11360 (4 years); D. C. Code § 48-904.01(a)(2)(B) (5 years); Iowa Code §§ 124.401(l)(d), 902.9(5) (5 years); Mich. Comp. Laws Ann. §333.7401(2)(d)(m) (4 years); N. Y. Penal Law Ann. §§221.55, 70.70(2)(a)(ii) (5.5 years); Utah Code Ann. §§ 58 — 37—8(l)(b)(ii), 76-3-203(3) (5 years).
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer: |
sc_petitioner | 001 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
GONZALES, ATTORNEY GENERAL v. CARHART et al.
No. 05-380.
Argued November 8, 2006
Decided April 18, 2007
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and & alia, Thomas, and Alito, JJ., joined. Thomas, J., filed a concurring opinion, in which Scaua, J., joined, post, p. 168. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined, post, p. 169.
Solicitor General Clement argued the cause for petitioner in both cases. With him on the briefs were Assistant Attorney General Keisler, Deputy Solicitor General Garre, Deputy Assistant Attorney General Katsas, Kannon K. Shanmugam, Marleigh D. Dover, and Catherine Y. Hancock.
Priscilla J. Smith argued the cause for respondents in No. 05-380. With her on the brief were Janet Crepps, Nan E. Strauss, Sanford M. Cohen, and Jerry M. Hug. Eve C. Gartner argued the cause for Planned Parenthood respondents in No. 05-1382. With her on the brief were Roger K. Evans, Helene T. Krasnoff, and Beth H. Parker. Dennis J. Herrera, Therese M. Stewart, and Kathleen S. Morris filed a brief for respondent City and County of San Francisco in No. 05-1382.
Together with No. 05-1382, Gonzales, Attorney General v. Planned Parenthood Federation of America, Inc., et al., on certiorari to the United States Court of Appeals for the Ninth Circuit.
Briefs of amici curiae urging reversal in both cases were filed for the American Association of Pro Life Obstetricians and Gynecologists et al. by Clarke D. Forsythe and Denise M. Burke; for the American Center for Law and Justice et al. by Jay Alan Sekulow, Stuart J. Roth, Walter M. Weber, Thomas R Monaghan, John P. Tuskey, Laura B. Hernandez, and Shannon D. Woodruff; for the National Legal Foundation by Barry C. Hodge; for the Right to Life Advocates, Inc., by Richard W Schmude; for the Thomas More Society, Inc., by Paul Benjamin Linton and Thomas Brejcha; and for Jill Stanek et al. by Mathew D. Staver, Anita L. Staver, Erik W. Stanley, Rena M. Lindevaldsen, and Mary E. McAlister.
Briefs of amici curiae urging reversal in No. 05-380 were filed for the State of Texas et al. by Greg Abbott, Attorney General of Texas, Barry R. McBee, First Assistant Attorney General, Edward D. Burbach, Deputy Attorney General, R. Ted Cruz, Solicitor General, and Joel L. Thailander, Assistant Solicitor General, and by the Attorneys General for their respective States as follows: Troy King of Alabama, Mike Beebe of Arkansas, Charles J. Crist, Jr., of Florida, Steve Carter of Indiana, Jeremiah W (Jay) Nixon of Missouri, Wayne Stenehjem of North Dakota, Jim Petro of Ohio, Thomas W. Corbett, Jr., of Pennsylvania, Henry McMaster of South Carolina, Lawrence E. Long of South Dakota, Mark L. Shurtleff of Utah, and Robert F. McDonnell of Virginia; for the Family Research Council et al. by William L. Saunders; for the Foundation for Moral Law, Inc., by Benjamin D. DuPré and Gregory M. Jones; for the Horatio R. Storer Foundation, Inc., by James Bopp, Jr., Thomas J. Marzen, and Richard E. Coleson; for Judicial Watch, Inc., by Meredith L. Di Liberto; for the Pro-Life Legal Defense Fund et al. by Dwight G. Duncan, Philip D. Moran, Gregory S. Baylor, and Steven H. Aden; for the Thomas More Law Center et al. by Edward L. White III; for the United States Conference of Catholic Bishops et al. by Mark E. Chopko and Michael F. Moses; for the United States Justice Foundation et al. by D. Colette Wilson and Gary G. Kreep; for Gianna Jessen et al. by Kelly Shackelford; for Congressman Ron Paul et al. by Teresa Stanton Collett; for Margie Riley et al. by James Joseph Lynch, Jr.; and for John M. Thorp, Jr., M. D., et al. by Nikolas T. Nikas and James L. Hirsen.
Briefs of amici curiae urging reversal in No. 05-1382 were filed for the Christian Legal Society et al. by Richard W Garnett, Gregory S. Baylor, and Steven H. Aden; for the Christian Medical and Dental Associations et al. by Ms. Collett; for Matercare International et al. by Mr. Nikas, Dorinda C. Bordlee, and Mr. Hirsen; and for Professor Hadley Arkes et al. by John C. Eastman and Edwin Meese III.
Briefs of amici curiae urging affirmance in both cases were filed for the American College of Obstetricians and Gynecologists by Caroline M. Brown; for the Institute for Reproductive Health Access et al. by J. Peter Coll, Jr., and Linda A. Rosenthal; for the National Women’s Law Center et al. by Elizabeth B. McCallum, Marcia D. Greenberger, Dina R. Lassow, and Gretchen Borchelt; for the Religious Coalition for Reproductive Choice et al. by Karen L. Hagberg; for 52 Members of Congress by Claude G. Szyfer; and for Former Federal Prosecutors by Maria T. Vullo.
Briefs of amici curiae urging affirmance in No. 05-380 were filed for the Cato Institute by Jonathan D. Hacker; and for Stephen Chasen, M. D., et al. by Talcott Camp, Brigitte Amiri, Elisabeth Ryden Benjamin, A. Stephen Hut, Kimberly Parker, and Lorie A. Chaiten.
Briefs of amici curiae urging affirmance in No. 05-1382 were filed for the American Civil Liberties Union et al. by Mr. Camp, Steven R. Shapiro, Louise Melting, Ms. Amiri, and Ms. Benjamin; for the American Medical Women’s Association et al. by Ms. Chaiten, Carter G. Phillips, Eamon P. Joyce, and Robert N. Hochman; for the California Medical Association by Alan B. Morrison, Pamela S. Karlan, Jejfrey L. Fisher, Amy Howe, and Kevin K Russell; and for the NARAL Pro-Choice America Foundation et al. by Andrew T. Karron and Cathleen M. Mahoney.
Briefs of amici curiae were filed in both cases for Constitutional Law Professors by Kathryn M. Davis; and for Statisticians by Molly S. Boast and Christian R. Everdell.
Briefs of amici curiae were filed in No. 05-380 for the Eagle Forum Education & Legal Defense Fund by Andrew L. Schlafly; for the Rutherford Institute by John W. Whitehead; and for Sandra Cano et al. by Linda Boston Schlueter, Allan E. Parker, Jr., and Richard Clayton Trotter.
Briefs of amici curiae were filed in No. 05-1382 for Faith and Action et al. by Bernard P. Reese, Jr.; and for Legal Defense for Unborn Children by Alan Ernest.
Justice Kennedy
delivered the opinion of the Court.
These cases require us to consider the validity of the Partial-Birth Abortion Ban Act of 2003 (Act), 18 U. S. C. § 1531 (2000 ed., Supp. IV), a federal statute regulating abortion procedures. In recitations preceding its operative provisions the Act refers to the Court’s opinion in Stenberg v. Carhart, 530 U. S. 914 (2000), which also addressed the subject of abortion procedures used in the later stages of pregnancy. Compared to the state statute at issue in Stenberg, the Act is more specific concerning the instances to which it applies and in this respect more precise in its coverage. We conclude the Act should be sustained against the objections lodged by the broad, facial attack brought against it.
In No. 05-380 (Carhart) respondents are LeRoy Carhart, William G. Fitzhugh, William H. Knorr, and Jill L. Vibhakar, doctors who perform second-trimester abortions. These doctors filed their complaint against the Attorney General of the United States in the United States District Court for the District of Nebraska. They challenged the constitutionality of the Act and sought a permanent injunction against its enforcement. Carhart v. Ashcroft, 331 F. Supp. 2d 805 (2004). In 2004, after a 2-week trial, the District Court granted a permanent injunction that prohibited the Attorney General from enforcing the Act in all cases but those in which there was no dispute the fetus was viable. Id., at 1048. The Court of Appeals for the Eighth Circuit affirmed. 413 F. 3d 791 (2005). We granted certiorari. 546 U. S. 1169 (2006).
In No. 05-1382 (Planned Parenthood) respondents are Planned Parenthood Federation of America, Inc., Planned Parenthood Golden Gate, and the City and County of San Francisco. The Planned Parenthood entities sought to enjoin enforcement of the Act in a suit filed in the United States District Court for the Northern District of California. Planned Parenthood Federation of Am. v. Ashcroft, 320 F. Supp. 2d 957 (2004). The City and County of San Francisco intervened as a plaintiff. In 2004, the District Court held a trial spanning a period just short of three weeks, and it, too, enjoined the Attorney General from enforcing the Act. Id., at 1035. The Court of Appeals for the Ninth Circuit affirmed. 435 F. 3d 1163 (2006). We granted certiorari. 547 U. S. 1205 (2006).
I
A
The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail. Three United States District Courts heard extensive evidence describing the procedures. In addition to the two courts involved in the instant cases the District Court for the Southern District of New York also considered the constitutionality of the Act. National Abortion Federation v. Ashcroft, 330 F. Supp. 2d 436 (2004). It found the Act unconstitutional, id., at 493, and the Court of Appeals for the Second Circuit affirmed, National Abortion Federation v. Gonzales, 437 F. 3d 278 (2006). The three District Courts relied on similar medical evidence; indeed, much of the evidence submitted to the Carhart court previously had been submitted to the other two courts. 331 F. Supp. 2d, at 809-810. We refer to the District Courts’ exhaustive opinions in our own discussion of abortion procedures.
Abortion methods vary depending to some extent on the preferences of the physician and, of course, on the term of the pregnancy and the resulting stage of the unborn child’s development. Between 85 and 90 percent of the approximately 1.3 million abortions performed each year in the United States take place in the first three months of pregnancy, which is to say in the first trimester. Planned Parenthood, supra, at 960, and n. 4; App. in No. 05-1382, pp. 45-48. The most common first-trimester abortion method is vacuum aspiration (otherwise known as suction curettage) in which the physician vacuums out the embryonic tissue. Early in this trimester an alternative is to use medication, such as mifepristone (commonly known as RU-486), to terminate the pregnancy. National Abortion Federation, supra, at 464, n. 20. The Act does not regulate these procedures.
Of the remaining abortions that take place each year, most occur in the second trimester. The surgical procedure referred to as “dilation and evacuation” or “D&E” is the usual abortion method in this trimester. Planned Parenthood, supra, at 960-961. Although individual techniques for performing D&E differ, the general steps are the same.
A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. National Abortion Federation, supra, at 465; App. in No. 05-1382, at 61. The steps taken to cause dilation differ by physician and gestational age of the fetus. See, e. g., Carhart, supra, at 852, 856, 859, 862-865, 868, 870, 873-874, 876-877, 880, 883, 886. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less. National Abortion Federation, supra, at 464-465; Planned Parenthood, supra, at 961.
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman’s cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed. See, e. g., National Abortion Federation, supra, at 465; Planned Parenthood, 320 F. Supp. 2d, at 962.
Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus’ body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit. Carhart, supra, at 907-912; National Abortion Federation, supra, at 474-475.
The abortion procedure that was the impetus for the numerous bans on “partial-birth abortion,” including the Act, is a variation of this standard D&E. See M. Haskell, Dilation and Extraction for Late Second Trimester Abortion (1992), 1 Appellant’s App. in No. 04-3379 (CA8), p. 109 (hereinafter Dilation and Extraction). The medical community has not reached unanimity on the appropriate name for this D&E variation. It has been referred to as “intact D&E,” “dilation and extraction” (D&X), and “intact D&X.” National Abortion Federation, supra, at 440, n. 2; see also F. Cunningham et al., Williams Obstetrics 243 (22d ed. 2005) (identifying the procedure as D&X); Danforth’s Obstetrics and Gynecology 567 (J. Scott, R. Gibbs, B. Karlan, & A. Haney eds. 9th ed. 2003) (identifying the procedure as intact D&X); M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield, A Clinician’s Guide to Medical and Surgical Abortion 136 (1999) (identifying the procedure as intact D&E). For discussion purposes this D&E variation will be referred to as intact D&E. The main difference between the two procedures is that in intact D&E a doctor extracts the fetus intact or largely intact with only a few passes. There are no comprehensive statistics indicating what percentage of all D&Es are performed in this manner.
Intact D&E, like regular D&E, begins with dilation of the cervix. Sufficient dilation is essential for the procedure. To achieve intact extraction some doctors thus may attempt to dilate the cervix to a greater degree. This approach has been called “serial” dilation. Carhart, 331 F. Supp. 2d, at 856, 870, 873; Planned Parenthood, supra, at 965. Doctors who attempt at the outset to perform intact D&E may dilate for two full days or use up to 25 osmotic dilators. See, e. g., Dilation and Extraction 110; Carhart, supra, at 865, 868, 876, 886.
In an intact D&E procedure the doctor extracts the fetus in a way conducive to pulling out its entire body, instead of ripping it apart. One doctor, for example, testified:
“If I know I have good dilation and I reach in and the fetus starts to come out and I think I can accomplish it, the abortion with an intact delivery, then I use my forceps a little bit differently. I don’t close them quite so much, and I just gently draw the tissue out attempting to have an intact delivery, if possible.” App. in No. 05-1382, at 74.
Rotating the fetus as it is being pulled decreases the odds of dismemberment. Carhart, supra, at 868-869; App. in No. 05-380, pp. 40-41; 5 Appellant’s App. in No. 04-3379 (CA8), at 1469. A doctor also “may use forceps to grasp a fetal part, pull it down, and re-grasp the fetus at a higher level — sometimes using both his hand and a forceps — to exert traction to retrieve the fetus intact until the head is lodged in the [cervix].” Carhart, supra, at 886-887.
Intact D&E gained public notoriety when, in 1992, Dr. Martin Haskell gave a presentation describing his method of performing the operation. Dilation and Extraction 110-111. In the usual intact D&E the fetus’ head lodges in the cervix, and dilation is insufficient to allow it to pass. See, e. g., ibid,.; App. in No. 05-380, at 577; App. in No. 05-1382, at 74, 282. Haskell explained the next step as follows:
“ At this point, the right-handed surgeon slides the fingers of the left [hand] along the back of the fetus and “hooks” the shoulders of the fetus with the index and ring fingers (palm down).
“ ‘While maintaining this tension, lifting the cervix and applying traction to the shoulders with the fingers of the left hand, the surgeon takes a pair of blunt curved Metzenbaum scissors in the right hand. He carefully advances the tip, curved down, along the spine and under his middle finger until he feels it contact the base of the skull under the tip of his middle finger.
“ ‘[T]he surgeon then forces the scissors into the base of the skull or into the foramen magnum. Having safely entered the skull, he spreads the scissors to enlarge the opening.
“‘The surgeon removes the scissors and introduces a suction catheter into this hole and evacuates the skull contents. With the catheter still in place, he applies traction to the fetus, removing it completely from the patient.’ ” H. R. Rep. No. 108-58, p. 3 (2003).
This is an abortion doctor’s clinical description. Here is another description from a nurse who witnessed the same method performed on a 26-week fetus and who testified before the Senate Judiciary Committee:
“‘Dr. Haskell went in with forceps and grabbed the baby’s legs and pulled them down into the birth canal. Then he delivered the baby’s body and the arms — everything but the head. The doctor kept the head right inside the uterus....
“ ‘The baby’s little fingers were clasping and unclasping, and his little feet were kicking. Then the doctor stuck the scissors in the back of his head, and the baby’s arms jerked out, like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall.
“‘The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out. Now the baby went completely limp....
“ ‘He cut the umbilical cord and delivered the placenta. He threw the baby in a pan, along with the placenta and the instruments he had just used.’” Ibid.
Dr. Haskell's approach is not the only method of killing the fetus once its head lodges in the cervix, and “the process has evolved” since his presentation. Planned Parenthood, 320 F. Supp. 2d, at 965. Another doctor, for example, squeezes the skull after it has been pierced “so that enough brain tissue exudes to allow the head to pass through.” App. in No. 05-380, at 41; see also Carhart, 331 F. Supp. 2d, at 866-867, 874. Still other physicians reach into the cervix with their forceps and crush the fetus’ skull. Id., at 858, 881. Others continue to pull the fetus out of the woman until it disarticulates at the neck, in effect decapitating it. These doctors then grasp the head with forceps, crush it, and remove it. Id., at 864, 878; see also Planned Parenthood, supra, at 965.
Some doctors performing an intact D&E attempt to remove the fetus without collapsing the skull. See Carhart, supra, at 866, 869. Yet one doctor would not allow delivery of a live fetus younger than 24 weeks because “the objective of [his] procedure is to perform an abortion,” not a birth. App. in No. 05-1382, at 408-409. The doctor thus answered in the affirmative when asked whether he would “hold the fetus’ head on the internal side of the [cervix] in order to collapse the skull” and kill the fetus before it is born. Id., at 409; see also Carhart, supra, at 862, 878. Another doctor testified he crushes a fetus’ skull not only to reduce its size but also to ensure the fetus is dead before it is removed. For the staff to have to deal with a fetus that has “some viability to it, some movement of limbs,” according to this doctor, “[is] always a difficult situation.” App. in No. 05-380, at 94; see Carhart, supra, at 858.
D&E and intact D&E are not the only second-trimester abortion methods. Doctors also may abort a fetus through medical induction. The doctor medicates the woman to induce labor, and contractions occur to deliver the fetus. Induction, which unlike D&E should occur in a hospital, can last as little as 6 hours but can take longer than 48. It accounts for about 5 percent of second-trimester abortions before 20 weeks of gestation and 15 percent of those after 20 weeks. Doctors turn to two other methods of second-trimester abortion, hysterotomy and hysterectomy, only in emergency situations because they carry increased risk of complications. In a hysterotomy, as in a cesarean section, the doctor removes the fetus by making an incision through the abdomen and uterine wall to gain access to the uterine cavity. A hysterectomy requires the removal of the entire uterus. These two procedures represent about 0.07 percent of second-trimester abortions. National Abortion Federation, 330 F. Supp. 2d, at 467; Planned Parenthood, supra, at 962-963.
B
After Dr. Haskell’s procedure received public attention, with ensuing and increasing public concern, bans on “ ‘partial birth abortion’ ” proliferated. By the time of the Stenberg decision, about 30 States had enacted bans designed to prohibit the procedure. 530 U. S., at 995-996, and nn. 12-13 (Thomas, J., dissenting); see also H. R. Rep. No. 108-58, at 4-5. In 1996, Congress also acted to ban partial-birth abortion. President Clinton vetoed the congressional legislation, and the Senate failed to override the veto. Congress approved another bill banning the procedure in 1997, but President Clinton again vetoed it. In 2003, after this Court’s decision in Stenberg, Congress passed the Act at issue here. H. R. Rep. No. 108-58, at 12-14. On November 5, 2003, President Bush signed the Act into law. It was to take effect the following day. 18 U. S. C. § 1531(a) (2000 ed., Supp. IV).
The Act responded to Stenberg in two ways. First, Congress made factual findings. Congress determined that this Court in Stenberg “was required to accept the very questionable findings issued by the district court judge,” §2(7), 117 Stat. 1202, notes following 18 U. S. C. § 1531 (2000 ed., Supp. IV), p. 768, ¶ (7) (hereinafter Congressional Findings), but that Congress was “not bound to accept the same factual findings,” id., ¶ (8). Congress found, among other things, that “[a] moral, medical, and ethical consensus exists that the practice of performing a partial-birth abortion... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited.” Id., ¶ (1).
Second, and more relevant here, the Act’s language differs from that of the Nebraska statute struck down in Stenberg. See 530 U. S., at 921-922 (quoting Neb. Rev. Stat. Ann. §§28-328(1), 28-326(9) (Supp. 1999)). The operative provisions of the Act provide in relevant part:
“(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment.
“(b) As used in this section—
“(1) the term ‘partial-birth abortion’ means an abortion in which the person performing the abortion—
“(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and
“(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus; and
“(2) the term ‘physician’ means a doctor of medicine or osteopathy legally authorized to practice medicine and surgery by the State in which the doctor performs such activity, or any other individual legally authorized by the State to perform abortions: Provided, however, That any individual who is not a physician or not otherwise legally authorized by the State to perform abortions, but who nevertheless directly performs a partial-birth abortion, shall be subject to the provisions of this section.
“(d)(1) A defendant accused of an offense under this section may seek a hearing before the State Medical Board on whether the physician’s conduct was necessary to save the life of the mother whose life was endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.
“(2) The findings on that issue are admissible on that issue at the trial of the defendant. Upon a motion of the defendant, the court shall delay the beginning of the trial for not more than 30 days to permit such a hearing to take place.
“(e) A woman upon whom a partial-birth abortion is performed may not be prosecuted under this section, for a conspiracy to violate this section, or for an offense under section 2, 3, or 4 of this title based on a violation of this section.” 18 U. S. C. § 1531 (2000 ed., Supp. IV).
The Act also includes a provision authorizing civil actions that is not of relevance here. § 1531(c).
C
The District Court in Carhart concluded the Act was unconstitutional for two reasons. First, it determined the Act was unconstitutional because it lacked an exception allowing the procedure where necessary for the health of the mother. 331 F. Supp. 2d, at 1004-1030. Second, the District Court found the Act deficient because it covered not merely intact D&E but also certain other D&Es. Id., at 1030-1037.
The Court of Appeals for the Eighth Circuit addressed only the lack of a health exception. 413 F. 3d, at 803-804. The court began its analysis with what it saw as the appropriate question — “whether ‘substantial medical authority’ supports the medical necessity of the banned procedure.” Id., at 796 (quoting Stenberg, supra, at 938). This was the proper framework, according to the Court of Appeals, because “when a lack of consensus exists in the medical community, the Constitution requires legislatures to err on the side of protecting women’s health by including a health exception.” 413 F. 3d, at 796. The court rejected the Attorney General’s attempt to demonstrate changed evidentiary circumstances since Stenberg and considered itself bound by Stenberg’s conclusion that a health exception was required. 413 F. 3d, at 803 (explaining “[t]he record in [the] case and the record in Stenberg [were] similar in all significant respects”). It invalidated the Act. Ibid.
D
The District Court in Planned Parenthood concluded the Act was unconstitutional “because it (1) pose[d] an undue burden on a woman’s ability to choose a second trimester abortion; (2) [was] unconstitutionally vague; and (3) required] a health exception as set forth by... Stenberg.” 320 F. Supp. 2d, at 1034-1035.
The Court of Appeals for the Ninth Circuit agreed. Like the Court of Appeals for the Eighth Circuit, it concluded the absence of a health exception rendered the Act unconstitutional. The court interpreted Stenberg to require a health exception unless “there is consensus in the medical community that the banned procedure is never medically necessary to preserve the health of women.” 435 F. 3d, at 1173. Even after applying a deferential standard of review to Congress’ factual findings, the Court of Appeals determined “substantial disagreement exists in the medical community regarding whether” the procedures prohibited by the Act are ever necessary to preserve a woman’s health. Id., at 1175-1176.
The Court of Appeals concluded further that the Act placed an undue burden on a woman’s ability to obtain a second-trimester abortion. The court found the textual differences between the Act and the Nebraska statute struck down in Stenberg insufficient to distinguish D&E and intact D&E. 435 F. 3d, at 1178-1180. As a result, according to the Court of Appeals, the Act imposed an undue burden because it prohibited D&E. Id., at 1180-1181.
Finally, the Court of Appeals found the Act void for vagueness. Id., at 1181. Abortion doctors testified they were uncertain which procedures the Act made criminal. The court thus concluded the Act did not offer physicians clear warning of its regulatory reach. Id., at 1181-1184. Resting on its understanding of the remedial framework established by this Court in Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320, 328-330 (2006), the Court of Appeals held the Act was unconstitutional on its face and should be permanently enjoined. 435 F. 3d, at 1184-1191.
II
The principles set forth in the joint opinion in Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), did not find support from all those who join the instant opinion. See id., at 979-1002 (Scalia, J., joined by Thomas, J., inter alios, concurring in judgment in part and dissenting in part). Whatever one’s views concerning the Casey joint opinion, it is evident a premise central to its conclusion — that the government has a legitimate and substantial interest in preserving and promoting fetal life — would be repudiated were the Court now to affirm the judgments of the Courts of Appeals.
Casey involved a challenge to Roe v. Wade, 410 U. S. 113 (1973). The opinion contains this summary:
“It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure. Second is a confirmation of the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another; and we adhere to each.” 505 U. S., at 846 (opinion of the Court).
Though all three holdings are implicated in the instant cases, it is the third that requires the most extended discussion; for we must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.
To implement its holding, Casey rejected both Roe’s rigid trimester framework and the interpretation of Roe that considered all previability regulations of abortion unwarranted. 505 U. S., at 875-876, 878 (plurality opinion). On this point Casey overruled the holdings in two cases because they undervalued the State’s interest in potential life. See id., at 881-883 (joint opinion) (overruling Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747 (1986), and Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983)).
We assume the following principles for the purposes of this opinion. Before viability, a State “may not prohibit any woman from making the ultimate decision to terminate her pregnancy.” 505 U. S., at 879 (plurality opinion). It also may not impose upon this right an undue burden, which exists if a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Id., at 878. On the other hand, “[regulations which do no more than create a structural mechanism by which the State, or the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.” Id., at 877. Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the cases at bar.
Ill
We begin with a determination of the Act’s operation and effect. A straightforward reading of the Act’s text demonstrates its purpose and the scope of its provisions: It regulates and proscribes, with exceptions or qualifications to be discussed, performing the intact D&E procedure.
Respondents agree the Act encompasses intact D&E, but they contend its additional reach is both unclear and excessive.. Respondents assert that, at the least, the Act is void for vagueness because its scope is indefinite. In the alternative, respondents argue the Act’s text proscribes all D&Es. Because D&E is the most common second-trimester abortion method, respondents suggest the Act imposes an undue burden. In this litigation the Attorney General does not dispute that the Act would impose an undue burden if it covered standard D&E.
We conclude that the Act is not void for vagueness, does not impose an undue burden from any overbreadth, and is not invalid on its face.
A
The Act punishes “knowingly performing] ” a “partial-birth abortion.” § 1531(a) (2000 ed., Supp. IV). It defines the unlawful abortion in explicit terms. § 1531(b)(1).
First, the person performing the abortion must “vaginally delivejr] a living fetus.” § 1531(b)(1)(A). The Act does not restrict an abortion procedure involving the delivery of an expired fetus. The Act, furthermore, is inapplicable to abortions that do not involve vaginal delivery (for instance, hysterotomy or hysterectomy). The Act does apply both previability and postviability because, by common understanding and scientific terminology, a fetus is a living organism while within the womb, whether or not it is viable outside the womb. See, e. g., Planned Parenthood, 320 F. Supp. 2d, at 971-972. We do not understand this point to be contested by the parties.
Second, the Act’s definition of partial-birth abortion requires the fetus to be delivered “until, in the case of a headfirst presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother.” § 1531(b)(1)(A). The Attorney General concedes, and we agree, that if an abortion procedure does not involve the delivery of a living fetus to one of these “anatomical ‘landmarks’” — where, depending on the presentation, either the fetal head or the fetal trunk past the navel is outside the body of the mother — the prohibitions of the Act do not apply. Brief for Petitioner in No. 05-380, p. 46.
Third, to fall within the Act, a doctor must perform an “overt act, other than completion of delivery, that kills the partially delivered living fetus.” § 1531(b)(1)(B). For purposes of criminal liability, the overt act causing the fetus’ death must be separate from delivery. And the overt act must occur after the delivery to an anatomical landmark. This is because the Act proscribes killing “the partially delivered” fetus, which, when read in context, refers to a fetus that has been delivered to an anatomical landmark. Ibid.
Fourth, the Act contains scienter requirements concerning all the actions involved in the prohibited abortion. To begin with, the physician must have “deliberately and intentionally” delivered the fetus to one of the Act’s anatomical landmarks. § 1531(b)(1)(A). If a living fetus is delivered past the critical point by accident or inadvertence, the Act is inapplicable. In addition, the fetus must have been delivered “for the purpose of performing an overt act that the [doctor] knows will kill [it].” Ibid. If either intent is absent, no crime has occurred. This follows from the general principle that where scienter is required no crime is committed absent the requisite state of mind. See generally 1 W. LaFave, Substantive Criminal Law § 5.1 (2d ed. 2003) (hereinafter La-Fave); 1 C. Torcía, Wharton’s Criminal Law §27 (15th ed. 1993).
B
Respondents contend the language described above is indeterminate, and they thus argue the Act is unconstitutionally vague on its face. “As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Kolender v. Lawson, 461 U. S. 352, 357 (1983); Posters ‘N’ Things, Ltd. v. United States, 511 U. S. 513, 525 (1994). The Act satisfies both requirements.
The Act provides doctors “of ordinary intelligence a reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U. S. 104,108 (1972). Indeed, it sets forth “relatively clear guidelines as to prohibited conduct” and provides “objective criteria” to evaluate whether a doctor has performed a prohibited procedure. Posters ‘N’ Things, supra, at 525-526. Unlike the statutory language in Stenberg that prohibited the delivery of a “‘substantial portion’ ” of the fetus — where a doctor might question how much of the fetus is a substantial portion — the Act defines the line between potentially criminal conduct on the one hand and lawful abortion on the other. Stenberg, 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999)). Doctors performing D&E will know that if they do not deliver a living fetus to an anatomical landmark they will not face criminal liability.
This conclusion is buttressed by the intent that must be proved to impose liability. The Court has made clear that scienter requirements alleviate vagueness concerns. Posters ‘N’ Things, supra, at 526; see also Colautti v. Franklin, 439 U. S. 379, 395 (1979) (“This Court has long recognized that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea”). The Act requires the doctor deliberately to have delivered the fetus to an anatomical landmark. 18 U.S.C. § 1531(b)(1)(A) (2000 ed., Supp. IV). Because a doctor performing a D&E will not face criminal liability if he or she delivers a fetus beyond the prohibited point by mistake, the Act cannot be described as “a trap for those who act in good faith.” Colautti, supra, at 395 (internal quotation marks omitted).
Respondents likewise have failed to show that the Act should be invalidated on its face because it encourages arbitrary or discriminatory enforcement. Kolender, supra, at 357. Just as the Act’s anatomical landmarks provide doctors with objective standards, they also “establish minimal guidelines to govern law enforcement.” Smith v. Goguen, 415 U. S. 566, 574 (1974). The scienter requirements narrow the scope of the Act’s prohibition and limit prosecutorial discretion. It cannot be said that the Act “vests virtually complete discretion in the hands of [law enforcement] to determine whether the [doctor] has satisfied [its provisions].” Kolender, supra, at 358 (invalidating a statute regulating loitering). Respondents’ arguments concerning arbitrary enforcement, furthermore, are somewhat speculative. This is a preenforcement challenge, where “no evidence has been, or could be, introduced to indicate whether the [Act] has been enforced in a discriminatory manner or with the aim of inhibiting [constitutionally protected conduct].” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 503 (1982). The Act is not vague.
C
We next determine whether the Act imposes an undue burden, as a facial matter, because its restrictions on second-trimester abortions are too broad. A review of the statutory text discloses the limits of its reach. The Act prohibits intact D&E; and, notwithstanding respondents’ arguments, it does not prohibit the D&E procedure in which the fetus is removed in parts.
1
The Act prohibits a doctor from intentionally performing an intact D&E. The dual prohibitions of the Act, both of which are necessary for criminal liability, correspond with the steps generally undertaken during this type of procedure. First, a doctor delivers the fetus until its head lodges in the cervix, which is usually past the anatomical landmark for a breech presentation. See 18 U. S. C. § 1531(b)(1)(A) (2000 ed., Supp. IV). Second, the doctor proceeds to pierce the fetal skull with scissors or crush it with forceps. This step satisfies the overt-act requirement because it kills the fetus and is distinct from delivery. See § 1531(b)(1)(B). The Act’s intent requirements, however, limit its reach to those physicians who carry out the intact D&E after intending to undertake both steps at the outset.
The Act excludes most D&Es in which the fetus is removed in pieces, not intact. If the doctor intends to remove the fetus in parts from the outset, the doctor will not have the requisite intent to incur criminal liability. A doctor performing a standard D&E procedure can often “tak[e] about 10-15 ‘passes’ through the uterus to remove the entire fetus.” Planned Parenthood, 320 F. Supp. 2d, at 962. Removing the fetus in this manner does not violate the Act because the doctor will not have delivered the living fetus to one of the anatomical landmarks or committed an additional overt act that kills the fetus after partial delivery. § 1531(b)(1).
A comparison of the Act with the Nebraska statute struck down in Stenberg confirms this point. The statute in Stenberg prohibited “‘deliberately and intentionally delivering into the vagina a living unborn child, or a substantial portion thereof, for the purpose of performing a procedure that the person performing such procedure knows will kill the unborn child and does kill the unborn child.’” 530 U. S., at 922 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999)). The Court concluded that this statute encompassed D&E because “D&E will often involve a physician pulling a ‘substantial portion’ of a still living fetus, say, an arm or leg, into the vagina prior to the death of the fetus.” 530 U. S., at 939. The Court also rejected the limiting interpretation urged by Nebraska’s Attorney General that the statute’s reference to a “procedure” that “ ‘kill[s] the unborn child’ ” was to a distinct procedure, not to the abortion procedure as a whole. Id., at 948.
Congress, it is apparent, responded to these concerns because the Act departs in material ways from the statute in Stenberg. It adopts the phrase “delivers a living fetus,” § 1531(b)(1)(A), instead of “ ‘delivering... a living unborn child, or a substantial portion thereof,’ ” 530 U. S., at 938 (quoting Neb. Rev. Stat. Ann. § 28-326(9) (Supp. 1999)). The Act’s language, unlike the statute in Stenberg, expresses the usual meaning of “deliver” when used in connection with “fetus,” namely, extraction of an entire fetus rather than removal of fetal pieces. See Stedman’s Medical Dictionary 470 (27th ed. 2000) (defining deliver as “[t]o assist a woman in childbirth” and “[t]o extract from an enclosed place, as the fetus from the womb, an object or foreign body”); see also I. Dox, B. Melloni, G. Eisner, & J. Melloni, The HarperCollins Illustrated Medical Dictionary 160 (4th ed. 2001); Merriam-Webster’s Collegiate Dictionary 306 (10th ed. 1997). The Act thus displaces the interpretation of “delivering” dictated by the Nebraska statute’s reference to a “substantial portion” of the fetus. Stenberg, supra, at 944 (indicating that the Nebraska “statute itself specifies that it applies both to delivering ‘an intact unborn child’ or ‘a substantial portion thereof’”). In interpreting statutory texts courts use the ordinary meaning of terms unless context requires a different result. See, e. g., 2A N. Singer, Sutherland on Statutes and Statutory Construction § 47:28 (rev. 6th ed. 2000). Here, unlike in Stenberg, the language does not require a departure from the ordinary meaning. D&E does not involve the delivery of a fetus because it requires the removal of fetal parts that are ripped from the fetus as they are pulled through the cervix.
The identification of specific anatomical landmarks to which the fetus must be partially delivered also differentiates the Act from the statute at issue in Stenberg. § 1531(b)(1)(A). The Court in Stenberg interpreted “‘substantial portion’ ” of the fetus to include an arm or a leg. 530 U. S., at 939. The Act’s anatomical landmarks, by contrast, clarify that the removal of a small portion of the fetus is not prohibited. The landmarks also require the fetus to be delivered so that it is partially “outside the body of the mother.” § 1531(b)(1)(A). To come within the ambit of the Nebraska statute, on the other hand, a substantial portion of the fetus only had to be delivered into the vagina; no part of the fetus had to be outside the body of the mother before a doctor could face criminal sanctions. Id., at 938-939.
By adding an overt-act requirement Congress sought further to meet the Court’s objections to the state statute considered in Stenberg. Compare 18 U. S. C. § 1531(b)(1) (2000 ed., Supp. IV) with Neb. Rev. Stat. Ann. §28-326(9) (Supp. 1999). The Act makes the distinction the Nebraska statute failed to draw (but the Nebraska Attorney General advanced) by differentiating between the overall partial-birth abortion and the distinct overt act that kills the fetus. See Stenberg, supra, at 943-944. The fatal overt act must occur after delivery to an anatomical landmark, and it must be something “other than [the] completion of delivery.” § 1531(b)(1)(B). This distinction matters because, unlike intact D&E, standard D&E does not involve a delivery followed by a fatal act.
The canon of constitutional avoidance, finally, extinguishes any lingering doubt as to whether the Act covers the prototypical D&E procedure. “‘[T]he elementary rule is that every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.’ ” Edward J. De-Bartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988) (quoting Hooper v. California, 155 U. S. 648, 657 (1895)). It is true this longstanding maxim of statutory interpretation has, in the past, fallen by the wayside when the Court confronted a statute regulating abortion. The Court at times employed an antagonistic “ ‘canon of construction under which in cases involving abortion, a permissible reading of a statute [was] to be avoided at all costs.’” Stenberg, supra, at 977 (Kennedy, J., dissenting) (quoting Thornburgh, 476 U. S., at 829 (O’Connor, J., dissenting); some internal quotation marks omitted). Casey put this novel statutory approach to rest. Stenberg, supra, at 977 (Kennedy, J., dissenting). Stenberg need not be interpreted to have revived it. We read that decision instead to stand for the uncontroversial proposition that the canon of constitutional avoidance does not apply if a statute is not “genuinely susceptible to two constructions.” Almendarez-Torres v. United States, 523 U. S. 224, 238 (1998); see also Clark v. Martinez, 543 U. S. 371, 385 (2005). In Stenberg the Court found the statute covered D&E. 530 U. S., at 938-945. Here, by contrast, interpreting the Act so that it does not prohibit standard D&E is the most reasonable reading and understanding of its terms.
2
Contrary arguments by respondents are unavailing. Respondents look to situations that might arise during D&E, situations not examined in Stenberg. They contend — relying on the testimony of numerous abortion doctors — that D&E may result in the delivery of a living fetus beyond the Act’s anatomical landmarks in a significant fraction of cases. This is so, respondents say, because doctors cannot predict the amount the cervix will dilate before the abortion procedure. It might dilate to a degree that the fetus will be removed largely intact. To complete the abortion, doctors will commit an overt act that kills the partially delivered fetus. Respondents thus posit that any D&E has the potential to violate the Act, and that a physician will not know beforehand whether the abortion will proceed in a prohibited manner. Brief for Respondent Planned Parenthood et al. in No. 05-1382, p. 38.
This reasoning, however, does not take account of the Act’s intent requirements, which preclude liability from attaching to an accidental intact D&E. If a doctor’s intent at the outset is to perform a D&E in which the fetus would not be delivered to either of the Act’s anatomical landmarks, but the fetus nonetheless is delivered past one of those points, the requisite and prohibited scienter is not present. 18 U. S. C. § 1531(b)(1)(A) (2000 ed., Supp. IV). When a doctor in that situation completes an abortion by performing an intact D&E, the doctor does not violate the Act. It is true that intent to cause a result may sometimes be inferred if a person “knows that that result is practically certain to follow from his conduct.” 1 LaFave § 5.2(a), at 341. Yet abortion doctors intending at the outset to perform a standard D&E procedure will not know that a prohibited abortion “is practically certain to follow from” their conduct. Ibid. A fetus is only delivered largely intact in a small fraction of the overall number of D&E abortions. Planned Parenthood, 320 F. Supp. 2d, at 965.
The evidence also supports a legislative determination that an intact delivery is almost always a conscious choice rather than a happenstance. Doctors, for example, may remove the fetus in a manner that will increase the chances of an intact delivery. See, e. g., App. in No. 05-1382, at 74, 452. And intact D&E is usually described as involving some manner of serial dilation. See, e. g., Dilation and Extraction 110. Doctors who do not seek to obtain this serial dilation perform an intact D&E on far fewer occasions. See, e. g., Carhart, 331 F. Supp. 2d, at 857-858 (“In order for intact removal to occur on a regular basis, Dr. Fitzhugh would have to dilate his patients with a second round of laminaria”). This evidence belies any claim that a standard D&E cannot be performed without intending or foreseeing an intact D&E.
Many doctors who testified on behalf of respondents, and who objected to the Act, do not perform an intact D&E by accident. On the contrary, they begin every D&E abortion with the objective of removing the fetus as intact as possible. See, e.g., id., at 869 (“Since Dr. Chasen believes that the intact D & E is safer than the dismemberment D & E, Dr. Chasen’s goal is to perform an intact D&E every time”); see also id., at 873,886. This does not prove, as respondents suggest, that every D&E might violate the Act and that the Act therefore imposes an undue burden. It demonstrates only that those doctors who intend to perform a D&E that would involve delivery of a living fetus to one of the Act’s anatomical landmarks must adjust their conduct to the law by not attempting to deliver the fetus to either of those points. Respondents have not shown that requiring doctors to intend dismemberment before delivery to an anatomical landmark will prohibit the vast majority of D&E abortions. The Act, then, cannot be held invalid on its face on these grounds.
IV
Under the principles accepted as controlling here, the Act, as we have interpreted it, would be unconstitutional “if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Casey, 505 U. S., at 878 (plurality opinion). The abortions affected by the Act’s regulations take place both previability and postviability; so the quoted language and the undue burden analysis it relies upon are applicable. The question is whether the Act, measured by its text in this facial attack, imposes a substantial obstacle to late-term, but previability, abortions. The Act does not on its face impose a substantial obstacle, and we reject this further facial challenge to its validity.
A
The Act’s purposes are set forth in recitals preceding its operative provisions. A description of the prohibited abortion procedure demonstrates the rationale for the congressional enactment. The Act proscribes a method of abortion in which a fetus is killed just inches before completion of the birth process. Congress stated as follows: “Implicitly approving such a brutal and inhumane procedure by choosing not to prohibit it will further coarsen society to the humanity of not only newborns, but all vulnerable and innocent human life, making it increasingly difficult to protect such life.” Congressional Findings ¶ (14)(N). The Act expresses respect for the dignity of human life.
Congress was concerned, furthermore, with the effects on the medical community and on its reputation caused by the practice of partial-birth abortion. The findings in the Act explain:
“Partial-birth abortion... confuses the medical, legal, and ethical duties of physicians to preserve and promote life, as the physician acts directly against the physical life of a child, whom he or she had just delivered, all but the head, out of the womb, in order to end that life.” Id., ¶ (14)(J).
There can be no doubt the government “has an interest in protecting the integrity and ethics of the medical profession.” Washington v. Glucksberg, 521 U. S. 702, 731 (1997); see also Barsky v. Board of Regents of Univ. of N. Y, 347 U. S. 442, 451 (1954) (indicating the State has “legitimate concern for maintaining high standards of professional conduct” in the practice of medicine). Under our precedents it is clear the State has a significant role to play in regulating the medical profession.
Casey reaffirmed these governmental objectives. The government may use its voice and its regulatory authority to show its profound respect for the life within the woman. A central premise of the opinion was that the Court’s precedents after Roe had “undervalue^] the State’s interest in potential life.” 505 U. S., at 873 (plurality opinion); see also id., at 871. The plurality opinion indicated “[t]he fact that a law which serves a valid purpose, one not designed to strike at the right itself, has the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate it.” Id., at 874. This was not an idle assertion. The three premises of Casey must coexist. See id., at 846 (opinion of the Court). The third premise, that the State, from the inception of the pregnancy, maintains its own regulatory interest in protecting the life of the fetus that may become a child, cannot be set at naught by interpreting Casey’s requirement of a health exception so it becomes tantamount to allowing a doctor to choose the abortion method he or she might prefer. Where it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_geniss | G | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
CORPORATION OF CHARLES TOWN v. LIGON et al.
No. 3440.
Circuit Court of Appeals, Fourth Circuit.
Oct. 20, 1933.
James M. Mason, Jr., of Charles Town, W. Va., and Harry H. Byrer, of Martinsburg, W. Va., for appellant.
Clarence E. Martin, of Martinsburg, W. Va. (Martin & Seibert, of Martinsburg, W. Va., on the brief), for -appellees.
Before PARKER and NORTHCOTT, Circuit Judges, and ERNEST P. COCHRAN, District Judge.
PARKER, Circuit Judge.
In 1926 .the town of Charles Town, W. Va*, hereafter referred to as defendant, entered into a contract with Ligón & Ligón, hereafter referred to as plaintiffs, for the construction of sewer lines and an outfall sewer and disposal plant. The contract embraced two projects, one covering the outfall sewer and disposal plant, referred to by the parties as project A, and the other covering the sewer lines, referred to as project B. Various changes yrere made by the town engineer in the work as .covered by the two pro j eets; but both were eventually completed, claims of the contractors for changes in and additions to the work were submitted to and passed upon by the engineer, and the balance due under his estimate was tendered by the town and accepted by the plaintiffs. It is admitted that in this estimate there was an error of $113.08, but defendant consented that judgment be entered against it for this amount and same is not involved in the appeal.
After accepting the amounts tendered by the town as the balance due under the estimate and award of the engineer, the plaintiffs instituted this action to recover on a quantum meruit additional compensation for the work done, claiming that the changes in the work weré so radical as to take it out of the contract and that for like reason they were not bound by the award of the engineer. The court below submitted the case to a jury; and as to most of the claims for additional compensation, the verdict was for the defendant. On three items, however, the jury found for plaintiffs, awarding $1,42.7.85 as additional compensation for constructing the outfall sewer, $1,200 as a return of liquidated damages for delay in project A, and $2,060 as a return of liquidated damages deducted for delay in project B. There was judgment on this verdict in favor of plaintiffs, and defendant has appealed, assigning as error the refusal of the court to direct a verdict in its favor on these items, as well as alleged error in various parts of the charge and in refusal to give requested instructions. As we are of opinion that defendant was entitled to a directed verdict, as to all the matters in dispute except the $1,200 item, we need consider only this feature of the case.
The conclusion that defendant was entitled to a directed verdict as to all matters in dispute except the $1,200 item is based on the fact that the engineer in charge of the work passed upon all disputed matters, and under the terms of the contract his award was made binding upon the parties. The position of plaintiffs is (1) that, because of departure from its terms, the contract is not binding upon them and the award of the engineer has no binding effect; and (2) that, so far as the matter of liquidated damages is concerned, this was not covered by the submission clause of the contract. We think, however, that there was no such departure from the contract as relieved the parties from its terms; that under the contract they were bound by the decisions of the engineer as to liquidated damages as well as to other matters; and that all matters covered by the verdict of the jury except the $1,200 item were concluded by his award.
The written contract, applicable to both projects, provided, among other things, that the engineer might make alterations in the line, grade, plan, form, dimensions, or materials of the work; that the contractors should bear all losses resulting on account of amount or character of the work, or because the nature of the land in or on which the work was to be done should be different from what was estimated or expected; that the contractors should do extra work when requested by the engineer, receiving cost plus 15 per cent, for such extra work; and that the decision of the engineer should be final upon all questions as to the amount and value of the extra work. It provided also that, for failure of the contractors to complete the work by the time stipulated, the town should deduct $10 per day as liquidated damages; that the engineer should make monthly estimates which should be paid by the town to the contractors, after deducting certain percentages authorized to be retained; that after the completion of the contract the engineer should make a final estimate of the amount due and the town should pay the entire sum so found less amounts previously paid and an authorized retainage; and that the acceptance by the contractors of the last payment thus made should operate to release the town from all claims of and liability to the contractors. The engineer was made arbitrator of all questions which might arise under the contract; and it was provided that his estimate and decision upon any question which might arise “touching the contract” should be a condition precedent to the right of the contractors to receive any money under same. The exact language of this provision is as follows:
“Art. 2. To prevent dispute and litigation, the engineer shall in all eases determine the amount, quality, acceptability and fitness of the several kinds of work and materials which are to be paid for under this contract, shall determine all questions in relation to said work and the construction thereof, and shall in all eases decide every question which may arise relative to the fulfillment of this contract on the part of the contractor. His estimate and decision shall be final and conclusive upon both parties to this contract, and in case any question shall arise between the parties hereto, touching this contract such estimate and decision shall be a condition precedent to the right of the contractor, to receive any money under the contract.”
Shortly after the contract was awarded* but before work under it had commenced, the engineer changed the course of the 2,800-foot outfall sewer line of project A for a distance of about 1,800 feet, so that instead of running ova* a meadow on a concrete cradle it ran around & hillside under the ground. This eliminated some of the concrete work upon which bids had been submitted, but changed the character of excavation only to the extent that, whereas the original bid contemplated approximately 1,900 feet of the 15-inch pipe placed at a depth of 0 to 3 feet, 1,100 feet at a depth of 3 to 5 feet, and 200 feet at a depth of 5 to 7 feet, the line as constructed involved the placing of only 1,477 feet at a depth of 3 feet or less, 936 feet at a depth of 3 to 5 feet, and 380 feet at a depth of 5 to 7 feet. On project B it was found necessary to place the sanitary sewer line at a depth greater than originally contemplated and to make certain other minor changes, and these were ordered by the engineer. Plaintiffs proceeded under the contract, and at the conclusion of the work filed claims with the engineer for additional work done and additional expense incurred because of the changes. The engineer rejected some of the items of the claim and allowed others. On project A, plaintiffs asked $1,425 additional compensation for excavation for the disposal plant and were awarded $1,389. For change in the course of the outfall sewer they asked $3,728 and were allowed $637. On various claims under project B $1,421.55 was allowed. All of these amounts were carried into the final estimate for which payment was made to and accepted by plaintiffs. With respect to the claim for change in the outfall sewer, which is the only one of the claims for extra compensation involved in this appeal, the engineer in passing upon the claim of plaintiffs, said:
“Item No. 2. The location of the 15-ineh outfall sewer through the Perry property was shifted from its location at the time that the bids were submitted. The shifting of the line caused the contractor to excavate a good deal more rock than he would have had to move had the line not been shifted. On the other hand by shifting the line the town saved about $400.00 in the cost of construction and damaged the property through which the line was constructed considerably less than if it had been left on the original location, as the original location contemplated for the line being out of the ground for a large part of the way. According to his strict interpretation of the specifications, the contractor has no basis for his claim for this item, as article 18 provides as follows:
“ ‘Art. 18. The engineer may make alterations in the line, grade, plan, form, dimensions or materials of the work, or any part thereof, either before or after the commencement of construction; if such alterations diminish the quantity of work to be done, they shall not warrant any claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the amount of work such increase shall be paid for according to the quantity actually done and at the price stipulated for such work under this contract.’
“However, I feel that we made the work more difficult than was contemplated at the time the work was bid on, and that regardless of article 18, the town is morally bound. By examining carefully the contractor’s unit bids we find that he figured his excavation at $2.97 per cu. yd., and I recommend that he be allowed the difference in price between $2.97 per cu. yd. and $5.00 per cu. yd., for that excavation between 3 feet and 7 feet which would make a total allowance of $637.42.”
Upon failure of plaintiffs to complete the work as provided by contract by December 31, 1926, the engineer began deducting the liquidated damages provided by contract from the estimates, deducting $10 per day for delay in the estimate on each project, on the theory that there was a separate contract as to each. On project A, $590 was deducted in estimate No. 4, covering January and February, and $610 on estimate No. 5, covering March and April. On project B, deduction was made on account of liquidated damages totaling $2,060 in estimates 6 to 12, inclusive. On February 17,1927, plaintiffs in a letter to the engineer called attention to the fact that liquidated damages had been deducted from one of the current estimates and protested against the deduction, both on the ground that it was usual to postpone such matters until the end of the job and also on the ground that the progress of the work had been delayed by the defendant’s change in plans. The engineer in a letter of February 22d, in answer to the protesting letter of plaintiffs, called attention to the provisions of the contract regarding liquidated damages and to those requiring the engineer to arbitrate matters in dispute. He stated that, at the time of preparing the estimate, he liad heard of no reason why liquidated damages should not be retained and that the provisions of the contract had been carried out accordingly, but expressed willingness to rule on any question with regard to liquidated damages which might be raised. Plaintiffs in a letter to the engineer of February 23d, stated that later they would submit their claims with regard to the matter; but there is no evidence of their having done so, even at the time of presenting their claims in preparation for the final estimate, although the liquidated damages had been regularly deducted from current estimates, and although, as we have seen, the contract provided that a decision by the engineer should be a condition precedent to the right of the contractor to receive any money under the contract in case a question “touching” same should arise.
Check was issued to plaintiffs in accordance with final estimate of the engineer and accepted and cashed by them, but it appears that they wrote defendant at the time that they were not waiving any claim by so doing, but were accepting the check as payment on account in accordance with an understanding with defendant, and that if this did not accord with defendant’s understanding, they would return the cheek. After some intervening correspondence, with respect to the arbitration of certain matters in difference, defendant wrote plaintiffs on October 24, 1928, that it would not arbitrate further but would adhere to the provisions of the contract which designated the engineer as final arbiter. The plaintiffs retained the moneys which they had collected, and something over two years later instituted this action for the purpose of recovering additional compensation.
Upon these facts, we think that there is no ground for the contention that plaintiffs were absolved from tbe provisions of the contract. In the first place, there was no such radical change in the nature of the work as to take it from under the provisions of the contract. The changes made in the sewer lines in project B and the change of course in the outfall sewer in project A were changes of the character frequently made in construction contracts, and such changes were provided for in the terms of the contract itself, article 18 thereof providing for alteration in line, grade, plan, etc., and article 22 providing for extra work. They were not changes radically altering the nature and cost of the work, as in Henderson Bridge Co. v. McGrath, 134 U. S. 260, 10 S. Ct. 730, 33 L: Ed. 934, and Salt Lake City v. Smith (C. C. A. 8th) 104 F. 457; nor were they made under a separate and independent contract as in Teer v. George A. Fuller Co. (C. C. A. 4th) 30 F.(2d) 30. The project as originally contemplated was substantially carried out, the changes made not adding greatly to the cost or changing to any considerable extent the character of work to be done. The case clearly falls within the principle of such cases as Coal & Iron R. Co. v. Reherd (C. C. A. 4th) 204 F; 859, RajotteWinters, Inc., v. Whitney Co. (C. C. A. 9th) 2 F.(2d) 801, and City of Mobile v. Shea (C. C. A. 5th) 127 F. 521.
In the second place, the parties proceeded under the contract throughout; and plaintiffs, having accepted its benefits, are not in position to repudiate its terms. The most radical change of which they complain is the change in the course of the outfall sewer, which was made before work was begun. They did not refuse to proceed with the work, nor did they treat this change as in any sense the requirement of work outside the contract; but they proceeded under a promise that their claim for additional compensation would be “ironed out” when the job was completed, and accepted payment of current estimates under the terms of the contract. When the work was finished, they filed claims with the engineer asking additional compensation under the contract and obtained thereby an award on their claims of several thousand dollars, which they accepted. They cannot approbate and reprobate in the same breath. Having accepted benefits under the contract, they will not be heard to contend that it is not binding upon them. See 10 R. C. L. 694; 21 C. J. 1209' and eases there cited.
Since, therefore, the plaintiffs are bound by the terms of the contract, they are bound by the award of the engineer made pursuant to its terms. As we said in City of Lexington v. Pratt (C. C. A. 4th) 31 F.(2d) 820, 821, where, as in the ease at bar, the contract made the decision of the city- engineer binding as to questions which might arise thereunder: “The rule is well settled in the federal courts that, where parties to a construction contract' provide, as- in this case, that the estimates and decisions of an architect or engineer as to questions arising in the execution of the contract shall be final and conclusive, such estimates and decisions have the effect of the award of an arbitrator. In the absence of fraud or such gross mistakes as imply bad faith' or failure to exercise an honest judgment, they are conclusive and binding upon the parties. U. S. v. Gleason, 175 U. S. 588, 20 S. Ct. 228, 44 L. Ed. 284; Chicago, S. F. & C. R. Co. v. Price, 138 U. S. 185, 11 S. Ct. 290, 34 L. Ed. 917; Martinsburg & P. R. Co. v. March, 114 U. S. 549, 5 S. Ct. 1035, 29 L. Ed. 255; Omaha v. Hammond, 94 U. S. 98, 24 L. Ed. 70; Penn Bridge Co. v. Kershaw County (C. C. A. 4th) 226 F. 728; Cook v. Foley (C. C. A. 8th) 152 F. 41, 51; Elliott v. Missouri, K. & T. R. Co. (C. C. A. 8th) 74 F. 707; Ogden v. U. S. (C. C. A. 5th) 60 F. 725. And this is also the general rule. 9 C. J. 772 and eases cited; note 56 Am. St. Rep. 314 et seq.”
There was no evidence in the ease of fraud on the part of the engineer or of such gross mistakes as would imply bad faith or failure to exercise an honest judgment. And there is no room for serious controversy as to the binding effect of his award on the claim of additional compensation for the construction of the outfall sewer. This was a question with relation to the work, it was submitted to him by the plaintiffs themselves, and we know of no principle upon which they can be relieved of the binding effect of his decision.
And we think that the parties are bound also by the decision gf the engineer regarding liquidated damages. Whether or not there was delay in the completion of the work for which the town was entitled to liquidated damages, was certainly a question “in relation to the work” and a question which arose “relative to the fulfillment of the contract on the part of the contractor.” Not only did article 2 of the contract make his decision final and conclusive on such questions, but it provided also that such decision, on any question “touching” the contract, should be a condition precedent to the right of the contractor to receive money under- the contract. In other words, the contractor could not, under this, provision, be paid the current or final estimates until questions affecting his right to be paid for the work performed had been determined by the engineer. One of the questions affecting his right to be paid was whether damages for delay were not deductible under the terms of the contract from any sums payable.
It is to be borne in mind that under article 10 of the contract it was provided that, if the contractor should fail to complete satisfactorily the entire work on or before the date stipulated, the town should deduct from payments due him the sum of $10 per day as liquidated damages, and that, if he should complete the work in advance of that date, he should be paid additional compensation of $10 per day for the time saved. The contract thus fixed the amount to be deducted from the contract price or added to it, all depending upon the completion.of the work, which was essentially a question relative to the fulfillment of the contract which it was necessary to decide before the stipulated amount could be deducted from or added to payments made the contractor, as the contract provided should be done. Not only, therefore, does the submission of the question as to such matters fall within the express language used, as. a question touching the contract and relating to its fulfillment, but it appears also that such submission was within the clear intendment of the parties, as without a determination of such matters it would be impossible to make the deductions or additional payments contemplated by the contract.
The purpose of providing for arbitration by the engineer in construction contracts of this character is to avoid the expense and uncertainty of a very difficult sort of litigation. The engineer who supervises the work is better qualified than any judge or jury can possibly be to determine such questions as whether the contractor has fulfilled the contract, what is the value of extra work ordered, or what extensions of time are proper for the completion of the work. And for the same reason, he is better qualified than any one else to determine when the work under the contract should be completed 'and the provision as to damages for delay applied. It is well settled that questions as to damages arising from delay in the performance of such contracts or the right to liquidated damages on account of such delay may be referred to arbitration by a clause in the contracts themselves; and that in such ease the award of the arbitrator so named is binding upon the parties. Roberts, Johnson So Rand Shoe Co. v. Westinghouse Electric So Mfg. Co. (C. C. A. 8th) 143 F. 218; Weld v. First Nat. Bank of Englewood, 255 Ill. 43, 99 N. E. 72; Jonathan Clark So Sons Co. v. City of Pittsburgh, 217 Pa. 46, 66 A. 154, 156; Conneaut Lake Agr. Ass’n v. Pittsburg Surety Co., 225 Pa. 592, 74 A. 620; Ruch v. York City, 233 Pa. 36, 81 A. 891. As was well said by the Supreme Court of Pennsylvania in the Jonathan Clark So Sons Case, supra, which involved the binding effect of an award denying liquidated damages:
“Another complaint of the appellant is that the director had no authority to pass upon the claim of the city for $100 per day for delay in completing the work. One of the provisions of the contract was that the city might retain from the contractor, as liquidated damages for the noneompletion of the work within the time stipulated for its completion, the sum of $100 per day for each day’s delay. The arbitrator found that neither Jonathan Clark So Sons Company nor the Mercantile Trust Company had unduly delayed the construction of the reservoir, and that neither of the said parties should be charged the sum of $100 per day, nor any sum whatsoever, as liquidated damages for delay in completing the work. The delay may have been caused by the extra work required by the city;' but, be this as it may, this claim was disputed by the appellee, and its settlement came within the very broad powers conferred upon the director, authorizing him to pass upon ‘any question or dispute * * * respecting any matter pertaining to’ the contract.”
In some cases it has been held that, because of the wording of the arbitration clause involved, a submission of the question of damages arising from delay was not authorized. See Ruch v. York City, supra; Somerset Borough v. Ott, 207 Pa. 539, 56 A. 1079; Young v. Crescent Development Co., 240 N. Y. 244, 148 N. E. 510; Smith Fireproof Construction Co. v. Thompson-Starrett Co., 247 N. Y. 277, 160 N. E. 369. But for the reasons above stated, we think that the contract here clearly contemplated and required such submission.
And we,think it equally clear.that the right of the defendant to liquidated damages was passed upon by the engineer. As shown above, he determined the question in passing upon the estimates; and, upon protest by the plaintiffs, he notified them that he was acting under the contract in doing so and expressed his willingness to pass upon any questions which they might raise in regard thereto. So far as the record shows, they raised no such question either then or in filing their claim at the completion of the work in preparation for the passing of the final estimate, but accepted payment of the estimates, although deductions had been made from them on account of the liquidated damages, and raised no question with regal'd thereto when the engineer was determining the final amount to which they were entitled.
As to the $1,200' item, the right of defendant to deduct this depends upon whether as a matter of law $10 per day was deductible as to each project on account of delay or only $10 per day for delay in the entire work covered by the contract. Without deciding whether this is a matter which falls within the provisions of the arbitration clause, we think that the parties did not invoke the decision of the engineer with regard to it and that consequently the court below was not precluded from considering the claim of plaintiffs with regard thereto by reason of his award. We think, also, that the court correctly held that only $10 per day was properly deductible under the contract for delay in the entire work and not $10 for delay as to each project.
It follows that the court was in error in not directing a verdict for defendant on the $1,427.85 and $2,060 items covered by the judgment, and that only as it relates to the $1,200 item should the verdict and judgment against defendant be allowed to stand. The judgment below will accordingly be reversed and the case remanded for a new trial in accordance with this opinion, unless the plaintiffs shall remit in writing on the judgment in the District Court all of that judgment in excess of $1,200. If the plaintiffs shall make such remittitur within sixty days, the judgment of the District Court shall stand as affirmed. The costs of this appeal shall be taxed against the plaintiffs, the appellees herein.
Reversed nisi.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_amicus | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine or not there was any amicus participation before the court of appeals.
In re LOWRY. C. I. T. CORPORATION v. MACHEN.
No. 2936.
Circuit Court of Appeals, Fourth Circuit.
April 8, 1930.
Fred E. Martin, of Norfolk, Va., for appellant.
H. M. Woodward, of Norfolk, Va., for appellee.
Before PARKER and N0RTHC0TT, Circuit Judges, and HAYES, District Judge.
NORTHCOTT, Circuit Judge.
One William Lowry filed a voluntary petition in bankruptcy in the District Court of the United States for the Eastern District of Virginia, on the 10th day of June, 1929, and he was, on the same day, duly adjudicated a bankrupt. In the schedules filed by him, he listed a Hudson automobile as subject to the lien of appellant company. Appellee was duly appointed and qualified as trustee for the bankrupt estate. In July, 1929, appellant filed a reclamation petition setting up its lien on the automobile. The trustee opposed the petition, and, after a hearing in August, 1929, the referee entered an order directing the trustee to surrender said Hudson automobile to appellant. On a petition for review, the •judge of the District Court, afteí a hearing, entered an order in September, 1929, setting aside the order of the referee and dismissing the reclamation petition. From which action this appeal was taken.
There is no dispute as to the facts, and the agreed statement of facts shows that the Hudson automobile in possession of the bankrupt at the time of his adjudication had been purchased by him from C. E. Wright & Co. as a used car. The ear when new had been purchased by one Calkins. At some time during the Calkins ownership, the original motor No. 475476, having become defective, was replaced by a motor which was numbered 497577, and was later turned back to the Wright Company on a trade, and sold to the bankrupt on January 18, 1929.
At the time of the latter sale, Wright & Co. made application to the Motor Vehicle Commissioner of Virginia for transfer of title to the bankrupt, and failed to make note of the change of the motor number on the original certificate of title. A title certificate (No. B 477639) showing motor No. 475476 instead of motor No. 497577, was issued to the bankrupt with the lien of appellant indorsed thereon. Wright & Co., in January, 1929, sold and transferred said lien to the appellant corporation.
The pertinent part of the Virginia Motor Vehicle Registration Act reads as follows: Section 2154 (39) j, See. 9:
“(b) Every application for a certificate of title shall contain a statement of the applicant’s title and of all liens or encumbrances upon said vehicle and the names and addresses of all persons having any interest therein and the nature of every such interest.
“(c) Every application for a certificate of title shall contain a brief description of the vehicle to be registered, including the name of the maker, the engine or serial number * * *
“(d) In the event the vehicle for which the registration of the certificate of title is applied is specially constructed, reconstructed or foreign vehicle, such fact shall be stated in the application.”
Section 2154 (39) L of Code of Virginia (1926) reads in part as follows:
“Said certificate of title when issued by the Motor Vehicle Commissioner showing a lien or encumbrance, shall be deemed adequate notice to the Commonwealth, creditors and purchasers that a lien against the motor vehicle exists, and the recording of such reservation of title, lien or encumbrance in the county or city where the purchaser or debtor resides or elsewhere, is not necessary and shall not be required. * * *
“Liens or encumbrances placed on motor vehicle * * * must be shown on said certificate of title * * * Said certificate of title of such motor vehicle shall be delivered to the person or corporation holding the first lien or encumbrance upon said motor vehicle and retained by him or them until the entire amount of his or their lien is fully paid by the owner of said vehicle.”
It would seem that where the lien of the vendor or his assignee is recorded in the Motor Vehicle Commissioner’s Office and on the face of the title certificate, the recording of the conditional sale contract shall not be necessary. And the conditional sale contract, though not recorded, is an essential and integral part of the whole transaction. The contract contained the correct motor and serial numbers of said automobile.
The title certificate B477639, issued to the bankrupt, and in possession of appellant at the time of the bankruptcy, showed on its face that the said automobile was a Hudson brougham, 1928 model; that the owner was William M. Lowry, 427 Wilson Road, Norfolk, Va.; that the said Lowry states on oath that the said motor vehicle is subject to the following lien: $530.28 on conditional sale contract, dated January 18,1929, in favor of C. I. T. Corporation, Norfolk, Va.
The conditional sale contract signed by the bankrupt shows on its face that a Hudson brougham, 1928 model, motor number 497577, serial number 784296, was sold to William M. Lowry, 427 Wilson Road, Norfolk, Va.; that there was a balance due of $530.28; that the contract was dated January 18, 1929, and that said chattel will be kept at 427 Wilson Road, Norfolk, Va.
The sole question in the case is whether the fact that an erroneous number was given in the title certificate as the engine number would invalidate the lien of appellant, and, in considering this question, we must bear in mind that the bankruptcy court is in effect a court of equity, and endeavors, where possible, to do equity. Seottsville Nat. Bank v. Gilmer, 37 E.(2d) 227, decided by this court, January 14, 1930. This being true, it seems to us inequitable to hold that a certificate of title, under the Virginia law, that had an erroneous engine number but that referred to a conditional sale contract that gave the correct engine and serial numbers, correctly described the automobile, the place where it could be found and the person who owned and had possession of it, would not be sufficient to maintain the lien as against the trustee in bankruptcy.
Under the circumstances here to' take that which in all equity and justice is the property of appellant for the benefit of general creditors would not be doing equity. The certificate of title, defective as it was, was sufficient to pass title to the bankrupt, and upon the bankrupt’s title and possession of the automobile the trustee bases his claim. The question at once arises that if the certificate was sufficient for the one purpose why then is it not sufficient for the purpose of maintaining the lien?
Certainly the statement of the lien in the certificate of title would be sufficient to put a purchaser for value upon notice as to the lien. MacCallum-Donahoe Finance Co. v. Warren et al,, 122 Wash. 176, 210 P. 368.
It has also been held that a wrong registration number inserted in an application for insurance did not invalidate the insurance where there was evidence identifying the car as the one intended to be insured, and when the car was the only one owned by the insured. White v. Home Mut. Ins. Ass’n, 189 Iowa, 1051, 179 N. W. 315. See, also, Moore v. North River Ins. Co., 111 Kan. 420, 207 P. 760; Northwestern Nat. Ins. Co. v. Chambers, 24 Ariz. 86, 206 P. 1081.
The same rule that applies to the description of an article in a chattel mortgage or conditional sale contract would apply here, and this court has held in Tilton v. H. W. Wade Mfg. Co. (C. C. A.) 2F.(2d) 358, 359, that a description not more specific or detailed than the one here was sufficient. “The general rule upon this subject as stated by the text-writers, and which seems to be sustained by the weight of decided eases, is, that a deed of trust or mortgage conveying chattels, when recorded, is constructive notice to third persons, if the description in the deed or mortgage is such as will enable them to identify the property, aided by the inquiries which the deed or mortgage itself indicates and directs.” Tilton v. H. W. Wade Mfg. Co., supra. See, also. Florence v. Morien, 98 Va. 26, 34 S. E. 890.
In National Cash Register Co. v. Marks, 13 F.(2d) 628, the opinion of the Circuit Court of Appeals of the Sixth Circuit is also- to the same effect.
Appellee relies upon a number of cases from other states on the question of the faulty description, but a study of these eases shows that point to have been settled under statutes different from the Virginia statute, which latter only requires a “brief description” of a vehicle, and we therefore do not think the cases relied upon are controlling here. Certainly the greater equity is to allow appellant’s claim, and the order of the court below is accordingly reversed, and this cause is remanded.
Reversed.
Question: Was there any amicus participation before the court of appeals?
A. no amicus participation on either side
B. 1 separate amicus brief was filed
C. 2 separate amicus briefs were filed
D. 3 separate amicus briefs were filed
E. 4 separate amicus briefs were filed
F. 5 separate amicus briefs were filed
G. 6 separate amicus briefs were filed
H. 7 separate amicus briefs were filed
I. 8 or more separate amicus briefs were filed
J. not ascertained
Answer: |
songer_r_state | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Robert HARRIS, Plaintiff-Appellant, v. Frank J. PATE, Warden, Defendant-Appellee.
No. 18718.
United States Court of Appeals, Seventh Circuit.
March 12, 1971.
Hastings, Senior Circuit Judge, dissented and filed opinion.
Robert Harris, pro se.
William J. Scott, Chicago, Ill., Joel Flaum, Warren K. Smoot, Asst. Attys. Gen., Kerry R. Cordis, Asst. Atty. Gen., of counsel, for appellee.
Before HASTINGS, Senior Circuit Judge, and KERNER and STEVENS, Circuit Judges.
STEVENS, Circuit Judge.
This appeal raises three questions: (1) whether the complaint states a cause of action; (2) whether the district court properly refused to lend its assistance to plaintiff, a prison inmate, in obtaining affidavits in opposition to defendant’s motion for summary judgment; and (3) whether the court erred in refusing to grant plaintiff additional time which he required to obtain such affidavits before ruling on the motion. We think appellant’s first and third contentions have merit, but reject the second.
I.
Appellant is a prison inmate without funds to employ counsel. Accordingly, as we have consistently held, his complaint should be accorded a liberal construction. Sigafus v. Brown, 416 F.2d 105, 106 (7th Cir. 1969); United States ex rel. Campbell v. Pate, 401 F.2d 55, 57 (7th Cir. 1968).
Construing the complaint liberally, and accepting its allegations as true for the purpose of testing its sufficiency, it alleges that defendant’s interference with his mail and visiting rights prevented him from preparing an adequate defense to a state criminal charge to which, as a result, he pleaded guilty on December 8, 1969; and, further, that the continued interference with plaintiff’s access to outsiders has impeded his ability to prosecute an appeal in the state courts. This court has recognized that the judgment of prison administrators with regard to prison practices, including limitations on mail and visiting privileges, is entitled to deference. Cooper v. Pate, 382 F.2d 518, 521-522 (7th Cir. 1967). However, we have also held that a prisoner’s complaint based on interference with his access to the courts states a claim for relief under the Civil Rights Act. Sigafus v. Brown, 416 F.2d 105 (7th Cir. 1969); Spires v. Bottorff, 317 F.2d 273 (7th Cir. 1963). It may be that Harris will not be able to prove his allegations, but his pleading is sufficient.
II.
Plaintiff’s complaint was filed on April 8, 1970. On May 28, 1970, defendant filed a motion to dismiss or for summary judgment, with a supporting memorandum, exhibits, and affidavits executed by defendant and other prison officers. On June 18, 1970, plaintiff filed a “cross-motion to dismiss defendant’s motion,” in which he asserted that he had been unable to obtain affidavits to support his allegations because of his difficulty in communicating with outsiders. On July 2, 1970, plaintiff filed a second motion in response to the motion for summary judgment. This motion called attention to the fact that Harris is without legal counsel and reiterated his claim that he cannot effectively communicate with outsiders. It indicated that, after filing his cross-motion, Harris had unsuccessfully attempted to mail affidavit forms to a friend, Maggie Byndum, and to certain other persons. The forms which are appended to the motion and, therefore, a part of the record on appeal, call for affirmative or negative responses to various statements which tend to substantiate Harris’s allegations concerning interference with his mail, receipt of funds, and visitors privileges. The prayer of the motion was that the trial court grant Harris a continuance and allow time for the forms to be executed and returned for consideration on the motion for summary judgment. Additionally, the motion asked the court’s assistance to ensure that the forms are mailed to the persons designated by plaintiff. There is nothing in the record to indicate that defendant ever responded to this motion.
By an order dated July 10, 1970, the trial court denied plaintiff’s motion concerning the affidavit forms. On the same day the court granted defendant’s motion and dismissed the complaint.
On the record before us, we are satisfied that it was not an abuse of discretion for the court to decline to lend its assistance to plaintiff in trying to obtain affidavits in support of his allegations. Relevant portions of plaintiff’s motion papers were unsworn. With one exception, as far as we can .determine from the record, his proposed affiants were unidentified. The record demonstrates that plaintiff was, in fact, able to communicate with the court through the mails; accordingly, the court could consider the improbability of the unsworn charges that he was unable to communicate with others in exercising its discretion not to interfere with the institutional procedures for processing plaintiff’s mail. The district court did not err in denying this aspect of plaintiff’s second motion.
III.
The denial of plaintiff’s request for a continuance to enable him to obtain affidavits in opposition to defendant’s motion presents a different question. Rule 12(b) of the Federal Rules of Civil Procedure provides, in part:
“If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
The drafters of Rule 56 anticipated the possibility that an opposing party might require additional time in order to obtain counteraffidavits and expressly provided for the granting of a continuance upon a proper showing. Of course, in the first instance the decision to permit a continuance is within the sound discretion of the trial court. Given the circumstances of this case, however, the trial court’s refusal to grant a continuance was an abuse of its discretion. Plaintiff was not represented by counsel and, because of his incarceration, he was less able than an ordinary party to obtain affidavits effectively and expeditiously. Furthermore, the pleadings which he sought to support complained of special disabilities affecting his communication with outsiders. The failure to grant Harris’s motion deprived him of a “reasonable opportunity to present all material made pertinent to such a motion by Rule 56.” In effect, it deprived him of an adequate opportunity to be heard. Cf., Georgia Southern & F. Ry. Co. v. Atlantic Coast Line R. Co., 373 F.2d 493, 497-498 (5th Cir. 1967) cert. denied 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120.
The Federal Rules are explicit in their requirement that a party opposing a motion to dismiss for failure to state a claim for relief, accompanied by exhibits and affidavits, must be afforded a full opportunity to respond pursuant to Rule 56. The right to respond by affidavit or otherwise cannot be denied merely because the trial judge believes that plaintiff’s claim is insubstantial or frivolous. Cohen v. Cahill, 281 F.2d 879 (9th Cir. 1960); see, also, Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968) (per curiam), cert. denied 400 U.S. 866, 91 S.Ct. 108, 27 L.Ed.2d 105. We hold that the denial of a continuance improperly deprived plaintiff of an important procedural right.
The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion.
. Of course, defendant’s affaidavits and exhibits cannot be considered on this question.
. Plaintiff sought injunctive relief and damages against Warden Pate and other unnamed officials of the Joliet state prison, where he was incarcerated at the time. Harris purported to allege a conspiracy to deny him due process and equal protection of the law in violation of the Fourteenth Amendment and the Federal Civil Rights Act. He further alleged that the purpose of the conspiracy was to injure him legally and personally. The misconduct charged in the complaint can be summarized as follows: (1) at various times in 1968, 1969, and continuing to the time of the filing of the complaint in 1970, defendant interfered with or stopped Harris’s legal and personal mail and denied him the use of funds sent by friends; (2) on or after April 11, 1968, defendant stopped visitors and advised them not to assist Harris ; (3) at various times certain prison officers made the contents of Harris’s personal letters available to other inmates; (4) one Bernyce Paschal was permitted access to Harris’s legal and personal letters and allowed and encouraged to use information in those letters to injure and ridicule him; (5) defendant caused a false report concerning Harris to be prepared by the Behavioral Clinic of the Circuit Court of Cook County; and (6) defendant spread a false rumor that Harris was a police informer.
Certain letters which are part of the record on appeal suggest that Harris was attempting to obtain a transfer from Joliet to the Menard state prison while this action was pending in the district court. However, even if plaintiff is no longer incarcerated at Joliet, his claim for damages is not moot, nor is his claim for injunctive relief necessarily moot. Pierce v. LaVallee, 293 F.2d 233, 234 (2d Cir. 1961).
. In Sigafus we determined that a claim for damages was stated under 42 U.S.C. § 1983 when plaintiff alleged destruction by jail guards of legal papers necessary for his appeal of a state conviction. We do not deem plaintiff’s imperfect attempt to plead a conspiracy to preclude a determination that a § 1983 claim has been stated. See Jennings v. Nester, 217 F.2d 153, 154 (7th Cir. 1954) ; Huey v. Barloga, 277 F.Supp. 864, 873 (N.D.Ill.1967).
. We shall refer to only one defendant, Warden Pate. He is the only party identified by name in the complaint and, according to the record, the only party served. Plaintiff, however, consistently refers in his complaint to “defendants” and to a “conspiracy among defendants.” The other defendants are alleged to be prison officials at Joliet.
. While plaintiff’s cross-motion, like his complaint, lacks the precise attention to legal requirements that one would expect from a lawyer, it does clarify allegations in the complaint, including the identity of at least some of the prison officials who allegedly participated in the conspiracy and who presumably are the unnamed defendants. Furthermore, the cross-motion to some extent controverts defendant’s affidavits in their denial of interference with Harris’s mail, and his use of funds.
. The court’s reason for denying the motion was:
“ * * * this court will not interfere with the administration of internal affairs of a penal institution, unless there is an abuse of discretion in the administration of such affairs.”
. Fed.R.Civ.P. 56(f). The Advisory Committee Note accompanying the 1963 amendment to Rule 56 re-emphasizes the force of subdivision (f) :
“ * * * Where the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented. And summary judgment may be inappropriate where the party opposing it shows under subdivision (£) that he cannot at the time present facts essential to justify his opposition.”
. Local rules for the Northern District of Illinois provide for oral argument on a motion only when requested and then in the court’s discretion. Local Rule 13(d). This rule may have the salutary effect of expediting the business of the court and conserving in-court time for more serious matters. However, its existence requires that the parties be afforded every reasonable opportunity to submit written argument and supporting material to the court prior to a decision.
Question: What is the total number of respondents in the case that fall into the category "state governments, their agencies, and officials"? Answer with a number.
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America v. Calvin L. RANDOLPH, Appellant.
No. 23222.
United States Court of Appeals, District of Columbia Circuit.
Argued April 27, 1970.
Decided Dec. 22, 1970.
Bazelon, Chief Judge, concurred in part and dissented in part and filed opinion.
Mr. Grant Stetter, Washington, D.C. (appointed by this court), for appellant.
Mr. John O’B. Clarke, Jr., Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.
Before BAZELON, Chief Judge, and TAMM and MacKINNON, Circuit Judges.
MacKINNON, Circuit Judge:
The office of Lea’s Green Meadows, Inc. (Lea’s), a wholesale food enterprise, was held up and robbed at about 11 A. M. on November 8, 1968 by two men. Appellant Calvin Randolph was subsequently convicted by a jury on two counts and sentenced to a term of imprisonment for robbery and assault with a dangerous weapon. He appeals and we affirm.
I
At trial, the single contested issue was the identification of the accused and the Government presented an abundance of proof that Randolph was the robber in the dark raincoat who participated in the holdup using a sawed-off shotgun.
Otis Davis, a truck driver for Lea’s, testified that he had known Randolph for about one or two years, had seen him quite a few times, had been in games with him, they had loaned each other money, and he identified Randolph as the defendant. He further testified that between 10:30 A.M. and 11 A.M. on the day of the robbery he saw Randolph with Anthony McDonald (also later identified as one of the robbers) about two blocks away from Lea’s Green Meadows; that Randolph was wearing a dark green or black coat; that Randolph asked him where he was going and he told him he was going back to the plant (Lea’s Green Meadows), whereupon Randolph asked if he had any money and Davis said no and they parted going in opposite directions, Davis toward the plant.
Mr. Lea, the proprietor of Lea’s Green Meadows, testified he and others in his plant were held up at about 11 A.M. on November 8, 1968, that Randolph was one of the robbers, that the lighting was good in the plant at the time of the robbery, that Randolph first engaged him in conversation from a distance of about two feet before he held him up, that he had a good opportunity to view Randolph at that time and once or twice later in the holdup and that Randolph was not disguised. Later in the day of the robbery, Mr. Lea looked at several albums of pictures of possible suspects shown him by the Robbery Squad but did not identify any of the photographs and also did not identify any of the suspects he saw at Randolph’s apartment that same day. Within about a week of the crime, without any assistance, Lea identified a photograph of Randolph from nine or ten photographs shown to him at that time. He also made a lineup identification of Randolph and Me- ‘ Donald on December 10, 1968 and an in-eourt identification of Randolph at trial. Mr. Lea further testified that Randolph wore a (a) dark raincoat at the time of the robbery, that he held him up with a (b) sawed-off shotgun and carried away the proceeds of the robbery (over $500) in an (c) El Producto cigar box. These details assumed particular significance as the trial progressed.
Rogers, the shipping clerk at the plant, who was also held up corroborated Mr. Lea’s testimony of the circumstances of the robbery, the time of the holdup, the use by one robber of the sawed-off shotgun and that one of the robbers wore a black or dark green raincoat. Rogers, also without any assistance, from about 15 or 20 photographs shown him within the week after the robbery, made a photographic identification of Randolph (“[T]his is him.”) as being the robber in the dark raincoat who used the sawed-off shotgun (about two feet long) and made an in-court identification of Randolph. However, Rogers did not attend the lineup on December 10, 1968 when Mr. Lea testified he identified Randolph and McDonald.
Further significant evidence supporting the conclusion that Randolph was one of the robbers was adduced through the testimony of Officer Charles A. Mussomele (a 7-year veteran police officer) who testified that he knew Randolph previously, that on the day of the robbery at about 10:55 A.M. he was cruising in a police car about two blocks away from Lea’s Green Meadows when he saw two men walking very hurriedly on the side of the street; they appeared nervous as they kept looking around, their manner aroused his suspicions and he decided to stop them; he cruised to within about 14 feet of them and called to appellant “Calvin” [Randolph] by name to stop but both suspects ran away. He had observed Randolph carrying (a) something black under his arm (it looked about the way a black raincoat looks rolled up), and a (b) sawed-off shotgun under the light trench coat he was wearing at that time. Randolph was in the company of the other man who was carrying an (c) El Producto cigar box. Mussomele testified further that he chased the two men but was not able to apprehend them at that time. He made an in-court identification of Randolph and testified that the other man with him was about 21 years old, about 6 feet tall and had a mustache, goatee and light skin. The description fit that of McDonald.
There was thus ample evidence, both direct and circumstantial, that Randolph committed the offenses of which he stands convicted.
II
The principal issue on this appeal concerns the introduction in evidence of Lea’s identification of appellant at the lineup held on December 10, 1968. Specifically, appellant argues that he was not represented by counsel at the lineup and that the introduction of the identification at trial therefore violates the rules enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
On December 10, Lillian Havenner, a bookkeeper at Lea’s Green Meadows, and Lea viewed a lineup in which both appellant and McDonald appeared. At the time of the lineup, appellant had not been arrested for the instant robbery and consequently did not have counsel in this case. However, he had been arrested previously on another robbery charge and counsel had been appointed to represent him on that charge. Appellant had been ordered to appear in the December 10 lineup in connection with the second robbery charge and his counsel on the other charge had been notified of the lineup and invited to attend. This he did not do. A lawyer for the Legal Aid Agency, Mr. Christensen, was present at the lineup, however, and testified that he
was a general representative lawyer there to represent those defendants who were unrepresented by counsel for purposes of that line-up.
Appellant does not contest the fact that Mr. Christensen was present at the lineup but argues instead that Christensen was not representing him for purposes of the lineup. On this issue, the evidence was somewhat ambiguous. Christensen testified twice on the matter, first, at the pretrial hearing held on appellant’s motion to suppress Lea’s lineup identification and, secondly, at the trial which followed. At the pretrial hearing, his testimony was that he attended a great many lineups, that he had no independent recollection of the instant one and that such testimony as he could give was based exclusively on the notes he had contemporaneously written on the separate cards he used to record the circumstances surrounding each lineup. He further testified that he had attended 14 lineups on the night of December 10, that his notes reflected that appellant was present on the stage but that he interpreted his notes to indicate that he “did not conduct a line-up” with appellant and that he “never had [appellant] particularly in mind as the defendant [he] represented.” He did, however, represent other persons suspected of participation in the same robbery who were present in the lineup, and made no objection to the lineup itself.
At trial the next day, Christensen modified his pretrial suppression hearing testimony somewhat to indicate that, although his attention was focused on another person in the lineup, he was representing appellant in a “general” way. On his cross-examination, it was also elicited that among the notes he made of the lineups he attended on December 10th was one which had appellant’s name at the top of the card relating to lineup 19. He further testified that it was his general practice to place the name of the person whom he was representing at the top of the card on which he wrote his notes concerning the lineup in which that person was involved.
Both at the pretrial hearing and at trial, Christensen testified that his lineup notes indicated that Lea did identify McDonald at the lineup. There was no indication on his notes that Lea had identified appellant, however, and from the absence of such indication, Christensen concluded that Lea had not identified appellant. However, Lea and two detectives who were present at the lineup testified that Lea did identify appellant and the police records of the lineup, which were admitted in evidence, indicated that he had.
Based on the foregoing, we are of the opinion that it was not erroneous for the trial court to conclude that appellant was represented by counsel at the lineup and therefore it was not error for testimony to be admitted concerning Lea’s lineup identification of appellant. Since Christensen had no independent recollection of the circumstances surrounding the lineup, great weight must be placed on his contemporaneous notes which recorded certain facts. See generally Zassenhaus v. Evening Star Newspaper Co., 131 U.S.App.D.C. 384, 387 n.18, 404 F.2d 1361, 1364 n.18 (1968); United States v. Riccardi, 174 F.2d 883 (3d Cir.), cert. denied, 337 U.S. 941, 69 S.Ct. 1519, 93 L.Ed. 1746 (1949). The notes themselves were admitted into evidence without objection and, when Christensen’s testimony concerning his function at lineups is added to them, we think that it was permissible for the trial court to rely upon them and to conclude that he was representing appellant at the lineup.
The fact that Christensen’s notes do not indicate whether or not Lea identified appellant does not alter this conclusion. Obviously it would have been better if Christensen’s recollection of the circumstances surrounding the lineup were such that he could made a definite statement as to whether Lea did or did not identify appellant. See United States v. Wade, 388 U.S. 218, 230, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Clemons v. United States, 133 U.S.App.D.C. 27, 31, 408 F.2d 1230, 1234, cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969). However, Christensen could have missed hearing Lea’s identification in the general atmosphere surrounding the lineup. Even if his testimony is taken as indicating that Lea did not identify appellant, this testimony would be for the jury to evaluate in determining how much weight should be given to the identification in reaching its ultimate conclusion. Cf. United States v. Williams, 137 U.S.App.D.C. 231, 232-233, 421 F.2d 1166, 1167-1168 (1970).
Assuming, however, that appellant was not represented by Christensen, and that the admission of Lea’s lineup identification was error, we conclude that the error was harmless.
To summarize the testimony, Randolph was observed, by a person who knew him, near Lea’s Green Meadows shortly before it was robbed and was observed, again by a person who knew him, minutes after the crime, about two blocks from the scene of the crime, carrying a sawed-off shotgun, in the company of a person who was carrying an El Producto cigar box, the same brand of cigar box which was taken in the robbery. Mr. Rogers, an employee at Lea’s identified Randolph from photographs as being one of the men who robbed him and was able also to identify Randolph in court even though he had not viewed the lineup. In addition, there was testimony of three witnesses that Randolph was wearing a dark raincoat at the time and one testified he was carrying what could have been such a raincoat; the same three witnesses testified that the man with Randolph at the time was McDonald or at least a man who met McDonald’s description. The five identifications of appellant (excluding Lea’s lineup and in-court identifications) were unequivocal. Finally, Lea had an excellent opportunity to observe appellant under good lighting conditions at the time of the crime and without any assistance selected appellant’s photograph from a group of photographs shortly after the robbery. We are of the opinion that his in-court identification of appellant had a source independent of the lineup and was therefore admissible on its own. United States v. Wade, supra, 388 U.S. at 240, 87 S.Ct. 1926; Clemons v. United States, supra, 133 U.S.App.D.C. at 34, 408 F.2d at 1237.
There was thus strong uncontroverted testimony (appellant did not testify) connecting appellant with the crime and the admission of Lea’s lineup identification was cumulative. If the admission of the lineup identification constituted error, based on our evaluation of its impact on the minds of the jury, we conclude that it did not contribute to their verdict and was thus harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Gilbert v. California, supra, 388 U.S. at 274, 87 S.Ct. 1951; Chapman v. California, 386 U.S. 18 at 24, 87 S.Ct. 824, 17 L.Ed. 2d 705; Willard v. United States, 421 F.2d 59, 60 (9th Cir. 1969), cert. denied, 399 U.S. 914, 90 S.Ct. 2217, 26 L.Ed.2d 572 (1970); see Long v. United States, 137 U.S.App.D.C. 311, 316-317, 424 F.2d 799, 804-805 (1969); Taylor v. United States, 134 U.S.App.D.C. 246, 248-249, 414 F.2d 1142, 1144-1145 (1969); Solomon v. United States, 133 U.S.App.D.C. 103, 106, 408 F.2d 1306, 1309 (1969).
We have carefully examined appellant’s other contention and find no error.
Affirmed.
. There was conflicting testimony on this point. See pp. 731-732, infra.
. Mrs. Havenner worked in the back room in Lea’s Green Meadows and saw only one of the robbers. She testified at trial that the robber she saw had a pistol (not the sawed-off shotgun which the testimony of other witnesses indicated that appellant was carrying), that he wore a brown scarf over his face from his nose down and that one of the men she saw at appellant’s apartment shortly after the robbery “looked like the one [she] saw” during the robbery. At the suppression hearing, there was testimony that she identified a person other than appellant or McDonald at the lineup. She made no in-eourt identification and no testimony was elicited concerning her participation in the lineup.
. Appellant was exhibited to witnesses in the instant case pursuant to an “Adams” order issued by the Court of General Sessions. See Adams v. United States, 130 U.S.App.D.C. 203, 399 F.2d 574 (1968).
. Christensen was thus a “substitute” counsel. See United States v. Wade, 388 U.S. 218, 219, 237 n. 27, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Russell v. United States, 133 U.S.App.D.C. 77, 80, 408 F.2d 1280, 1283, cert. denied, 395 U.S. 928, 89 S.Ct. 1786, 23 L.Ed.2d 245 (1969). We have indicated that the right to counsel extends to pre-indictment lineups, such as the one here and have discussed substitute counsel in that context. Mason v. United States, 134 U.S.App.D.C. 280, 282, 414 F.2d 1176, 1178 (1969). See also, United States v. Kirby, 138 U.S.App.D.C. 340, 427 F.2d 610 (1970).
. Transcript, Vol. I, at 24:
Q. You have no independent recollection who the officer was?
A. I have no independent recollection of the line-up.
Q. No independent recollection of the line-up at all?
A. Correct.
Q. Everything you told us came from these notes?
A. That is correct.
. In Christensen’s terms, however, a “lineup * * * [is] when a witness comes in the line-up room and looks at the line-up men.” His testimony that he attended 14 lineups does not mean that he attended 14 separate arrays of suspects but merely that 14 separate witnesses looked at the lineups.
. Prom the pictures of the lineup, it does not appear to have been suggestive in any way and appellant does not contend here that it was.
. We express no view on the question of whether, in a different case, a substitute counsel’s inability to recall more of the circumstances surrounding a lineup than Mr. Christensen recalled here would meet the constitutional requirement of effective assistance of counsel. In such a case, the questions posed by Judge Bazelon may well be crucial. See page 734 infra. Here, however, the only issue raised concerning the events which took place at the lineup was whether Lea did or did not identify appellant. At its strongest, Mr. Christensen’s testimony indicates that he did not, thus presenting a jury question.
. Davis, Lea and Rogers indicated that appellant was wearing the coat and Mussomele said he had it rolled under his arm. Davis and Mussomele knew appellant previously.
. Davis as to his presence on the street two blocks away from Lea’s Green Meadows prior to the robbery; Rogers as to his photographic and in-court identifications; Lea as to his photographic identification; and Mussomele as to his identification two blocks away from Lea’s Green Meadows on the street after the robbery.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
WASHINGTON CAPITOLS BASKETBALL CLUB, INC., a District of Columbia corporation, Appellee, v. Richard F. BARRY, III, also known as Rick Barry; Lemat Corporation, a Delaware corporation and the general partner of a limited partnership doing business under the name of San Francisco Warriors; and San Francisco Warriors, a limited partnership, Appellants.
No. 24921.
United States Court of Appeals Ninth Circuit.
Nov. 28, 1969.
Robert M. Ruben (argued) and Robert A. Holtzman, of Loeb & Loeb, Los Ange-les, Cal., Morrison, Foerster, Holloway, Clinton & Clark, San Francisco, Cal., for appellants.
Frederick P. Furth (argued), San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and TRASK, Circuit Judges.
TRASK, Circuit Judge:
This is an appeal from an order of The United States District Court for the Northern District of California which granted a preliminary injunction to the plaintiff, Washington Capitols Basketball Club, Inc., (1) enjoining the defendant, Richard F. (Rick) Barry III from playing basketball for any professional team other than the Washington “Caps” and (2) enjoining the San Francisco Warriors and Lemat Corporation from attempting to enforce a five year playing contract signed on August 26, 1969 between Rick Barry and the Warriors.
Barry and the Warriors appeal to this court pursuant to 28 U.S.C. § 1292. Jurisdiction is based upon diversity of citizenship. 28 U.S.C. § 1332.
The basic controversy is whether Rick Barry will play professional basketball pending final determination of this action as a member of the Washington “Caps” of the American Basketball Association or the San Francisco Warriors of the National Basketball Association. The District Court on Sept. 26, 1969, on the basis of the facts and the law then presented, ruled in favor of the Washington “Caps”. 304 F.Supp. 1193. We affirm.
All parties agree that the playing ability of Rick Barry on a basketball court is such that he is a legally “unique” party to a player’s contract. After an outstanding collegiate career at The University of Miami, he signed and played with the Warriors during the 1965-66 basketball season and was named the league’s “Rookie of the Year”. On August 29, 1966, he signed a second contract with the Warriors for one year beginning October Í, 1966 and executed a National Basketball Association Uniform Player Contract containing a “reserve” or “option clause”. Such a clause gives the club the right to contract with the player for an additional year. This option was exercised on or about June 22, 1967 by the Warriors for the playing year 1967-1968.
In the meantime, on June 19, 1967, Barry signed an option agreement with Pat Boone and Kenneth Davidson giving the optionees or their assigns the right on or before October 2, 1967, to contract with him for three years beginning 1967-1968, or if he were to be enjoined, to begin at a later date and in the meantime reserved the right to play with the Warriors. On October 31, 1967, Barry signed the contract in question here with Oakland Basketball, Inc. a corporation, to play for Oakland for three years commencing on October 2, 1968.
This contract likewise contained a reserve clause for an additional year. In addition to his salary, Barry also received an annual bonus plus a 15% stock interest in the corporation which owned the Oakland franchise.
The dispute resulting from Barry’s action in signing the allegedly conflicting contracts caused the Warriors to file suit against him to determine their contract rights under their 1966 contract. They asserted claims for both damages and equitable relief by way of injunction. The Court of Appeal of California determined that the Warriors were entitled to enjoin Barry from playing for anyone else until September 30, 1968. The Court further held that the Warriors were not entitled to injunctive relief beyond that date and that they could not recover damages from Barry in addition to the equitable relief granted. Lemat Corporation v. Barry, Cal.App., 80 Cal.Rptr. 240 (1969). That decision settled all issues as between the Warriors and Barry arising out of the August 29, 1966 contract. Neither the Oakland Club nor its franchise owners were parties to that litigation. Barry did not play during the 1967-1968 playing season. However, he played for Oakland during the 1968-1969 season pursuant to the terms of the contract with Oakland signed on October 31, 1967. No question was apparently raised by the Warriors against either Barry or the Oaks as to the legality of this performance under the contract.
On August 28, 1969, the Oaks, having lost substantial sums of money during their two years’ existence,, entered into an agreement of sale with the Washington Capitols Basketball Club, Inc. in which Washington contracted to purchase all property and assets of the Oaks including the contracts of basketball players under contract to the Oaks. A specific amount of the purchase price was allocated to the contract between Oakland and Barry which was being assigned. Subsequently a Bill of Sale was executed by Oakland transferring the assets to Washington.
Although his Oakland contract would remain in effect until October 1, 1971, upon the day following the Oakland-Washington purchase agreement, Barry entered into a new contract to play professional basketball with the San Francisco Warriors for a term of five years beginning October 2, 1969 and ending October 1, 1974.
Promptly upon learning of Barry’s contract with the Warriors, the plaintiff, Washington Capitols Basketball Club, Inc., brought this action against Barry, Lemat Corporation and the Warriors. The action sought to enjoin Barry from playing basketball with any club other than the Caps during the remainder of the term of the contract which Washington had acquired. It further sought to enjoin the Warriors from asserting any contract with Barry or interfering with the performance of the Caps contract. It also sought damages both compensatory and punitive. A temporary restraining order was issued on September 15, 1969, the date the action was filed.
A hearing was held on September 23, 1969 on the application for a preliminary injunction. The Honorable Gerald S. Levin issued an opinion and judgment on September 26, 1969, granting the injunction against both Barry and the Warriors pending final determination. Barry and the Warriors appeal from that order. The court required a bond in the sum of $100,000 from the plaintiff to secure the payment of all costs and damages and that bond was filed on September 29, 1969. Because of the urgency involved, this court agreed to expedite the appeal and heard the matter on oral argument on October 28, 1969.
The grant of an order for a preliminary injunction is not a final determination of the case. It evidences the exercise of the discretion of the trial court to maintain the status quo between the litigants until final judgment may be rendered. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738 (2 Cir. 1953).
“The decision to grant or to refuse a preliminary injunction lies within the District Court’s sound exercise of its discretion. In an appeal from the grant of a preliminary injunction, the question before this court is, did the District Court abuse its discretion in granting a preliminary injunction?” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 194 (9th Cir. 1953).
On an appeal from such an order it is the responsibility of this court to decide only the question as to whether or not the grant of the order was an abuse of discretion. An abuse of discretion has been defined as “a plain error, discretion exercised to an end not justified by the evidence, a judgment that is clearly against the logic and effect of the facts as are found.” Bowles v. Quon, 154 F.2d 72, 73 (9th Cir. 1946). We consider that the District Court did not abuse its discretion and that pending a decision on the merits the order granting a preliminary injunction should stand. The discussion which follows, however, and any conclusions drawn therefrom should be read as preliminary and “are not to be construed as foreclosing any findings and conclusions to the contrary based upon evidence which may be received at the trial on the merits.” Ross Whitney Corp. v. Smith Kline & French Labs., 207 F.2d 190, 199 (9th Cir. 1953).
THE STATUS QUO
The function of a preliminary injunction is to maintain the status quo ante litem pending a determination of the action on the merits. The status quo is the last, uncontested status preceding the commencement of the controversy. Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808-809 (9th Cir. 1963), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963). It is therefore necessary to examine what constituted the last, uncontested status of the parties.
The plaintiff, Washington Caps, purchased the Oakland Oaks by agreement dated August 28, 1969. The action by Washington against the Warriors was commenced September 15, 1969. The status quo on these dates appears to have been as follows:
1. All rights under the Warriors’ contract with Barry, dated August 29, 1966, had been litigated and the judgment of the court had been performed. Lemat Corporation v. Barry, swpra. Neither Barry nor the Warriors had further rights or obligations under it due each other after September 30, 1968.
2. The Oakland contract, which Washington acquired and upon which this action was brought, was signed October 31, 1967 for Barry to play for three years beginning October 2, 1968 with an option for one year more.
3. Barry had played one year — the playing season of 1968-1969 — under his contract with Oakland — without legal interruption. This contract, by its terms, was to commence October 2, 1968 and to continue until 1972.
4. Washington had acquired the Oakland franchise, assets and player contracts on August 28,1969.
5. Barry signed a contract with the Warriors on August 29, 1969 for five years commencing August 2, 1969 and had announced his intention to play with the Warriors during the 69-70 season.
Thus, at this point in time there were no continuing obligations by Barry to play for Warriors under the 1966 contract. Barry had played for Oakland during 1968-1969 or during the first year of the three year term of the 1967 Oakland contract with the remainder of the term having been assigned to Washington; and the Warriors and Barry had signed a contract on the day following the Washington sale, for Barry to play for Warriors for five years for a greatly increased salary, beginning in 1969 and in direct conflict with the remainder of the Washington contract period. This action was begun on September 15, 1969 or prior to the .date of the beginning of the 1969-1970 playing season.
We hold that, under these facts, the preliminary injunction served to maintain the status quo ante litem.
ALLEGED ILLEGALITY
The legality of the Oakland contract which is under attack by the Warriors must be determined by the substantive law of California, the place of making of the contract. Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Hutchinson v. Hutchinson, 48 Cal.App.2d 12, 119 P.2d 214, 217 (1941).
As no illegality of the contract is disclosed by plaintiff’s complaint or the contract itself, illegality is an affirmative defense and defendants-appellants have the burden of pleading and proof. Eaton v. Brooks, 124 Cal.App.2d 10, 268 P.2d 58, 60 (1954).
The District Court did find that “ [defendants have not shown that the contract between Oaks and Barry, which was assigned by Oaks to Washington, is itself unconscionable, unenforcible or otherwise void.” 304 F.Supp. at 1197. We agree with this finding. Appellants have not cited to us, nor have we found, any constitutional provision or civil or criminal statute which this contract violates. Nor do we think the contract is contrary to public policy. Appellants rely upon the Restatement of Contracts, § 576, which reads: “A bargain, the making or performance of which involves breach of a contract of a third person is illegal.” The comment to this Restatement section, however, reveals that the section is inapplicable to the facts of this case. The comment states: “a. Since breach of contract is a legal wrong, a bargain that requires for its performance breach of a contract with another is opposed to public policy.” (Emphasis supplied.) Barry’s performance under his Oakland contract to begin October 2, 1968, did not require breach of his Warrior contract which expired September 30, 1968. The Warrior contract, entered into on August 29, 1966, had a duration of one year beginning October 1, 1966. On or before September 1, 1967, the Warriors had a right to tender to Barry a contract for the 1967-1968 season. They exercised this right and, as Barry failed to sign and return the proffered contract by October 1, the contract was “deemed renewed and extended for the period of one year.” Barry was not obligated to perform for the Warriors during that year but was obligated, by the original contract, to refrain from playing for any other team until the contract terminated on September 30, 1968. This interpretation of the contract has been upheld in Lemat Corp. v. Barry, supra, 80 Cal.Rptr. 240 (1969).
Barry signed his contract with Oakland while still under contract to the Warriors, who claim that this act was a breach of Barry’s contract to them. The Oakland contract, however, was a contract for future services “for a term of three (3) years commencing on October 2, 1968, or such earlier date as [Barry’s] services as a basketball player are not enjoined.” Performance and consideration therefor were to begin only upon the termination of the Warrior contract.
Neither Barry’s signing nor Oakland’s inducement of him to sign was an illegal act rendering the Oakland contract illegal. Associate Justice Hufstedler of the California Court of Appeal, now Judge Hufstedler of this Court, stated in Diodes, Inc. v. Franzen, 260 Cal.App.2d 244, 67 Cal.Rptr. 19, 25-26 (1968):
“Even though the relationship between an employer and his employee is an advantageous one, no actionable wrong is committed by a competitor who solicits his competitor’s employees or who hires away one or more of his competitor’s employees who are not under contract, so long as the inducement to leave is not accompanied by unlawful action.”
See also, Sarkes Tarzian, Inc. v. Audio Devices, Inc., 166 F.Supp. 250, 264 (S.D.Cal.1958), aff’d, 283 F.2d 695 (2 Cir. 1960), cert. denied, 365 U.S. 869, 81 S.Ct. 903, 5 L.Ed.2d 859 (1961). In each of these cases, the hired-away employee was not under contract to his employer. Barry was under contract to the Warriors at the time he signed with Oakland but his performance under the Oakland contract was not to begin until after his obligations to the Warriors ceased on October 1, 1968. This fact distinguishes cases in which courts have found an actionable wrong where an employee was encouraged to terminate his contract prior to its termination date. See, e. g., Buxbom v. Smith, 23 Cal.2d 535, 145 P.2d 305 (1944). '
As Judge Learned Hand said a long time ago:
“Nobody has ever thought, so far as we can find, that in the absence of some monopolistic purpose every one had not the right to offer better terms to another’s employé so long as the latter is free to leave.” Triangle Film Corp. v. Artcraft Pictures Corp., 250 F. 981, 982 (2d Cir. 1918).
The language of the Oakland contract and amendment thereto dated October 31, 1967 indicate that the drafters were aware of Barry’s contractual obligations to the Warriors. It may be presumed that they drafted the Oakland contract with the intent of making it legal and binding. Calif.Code Civ.Proc. § 1963, Subds. 1, 33; Sweeney v. KANS, Inc., 247 Cal.App.2d 475, 55 Cal.Rptr. 673, 676 (1966). Parties to a contract are deemed to have intended a lawful rather than an unlawful act. Duntley v. Tutt, 48 Cal.App.2d 367, 119 P.2d 804, 806 (1941).
We believe the trial court was correct on the record before it in ruling that this contract was not illegal under general contract principles and neither was it violative of the provisions of the Sherman Anti-Trust Act. 15 U.S.C. § 1. See Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 47 (Tex.Civ. App.1961).
UNCLEAN HANDS
Appellant’s unclean hands argument arises because Boone and Davidson persuaded Barry to give them an option to play for the 1967-1968 season during which Barry was already under contract with the Warriors. But the playing contract which Washington seeks to enforce is not a contract with Oakland Basketball, Inc., a corporation. It was for playing rights for the period after the Warriors’ rights had terminated. There is thus the very serious question whether any inequity exists in the performance of this contract even as against the Oakland corporation. When carried one step beyond to the Washington corporation, the attempted attainder is even more remote.
To add to the doubt surrounding the validity of applying the clean hands doctrine against Washington it must be remembered that both Warriors and Barry have had their day in court in this alleged wrongdoing. Lemat Corp. v. Barry, supra. The issues have been resolved and the judgment performed.
The application or rejection of the clean hands doctrine in a given case is equitable in nature and within the discretion of the trial court. Johnson v. Yellow Cab Transit Co., 321 U.S. 383, 64 S.Ct. 622, 88 L.Ed. 814 (1943); Houston Oilers, Inc. v. Neely, 361 F.2d 36 (10th Cir. 1966); cert. denied, 385 U.S. 840, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., 324 U.S. 806, 65 S.Ct. 993, 89 L.Ed. 1381 (1945).
Moreover, the bad conduct must pertain to the subject matter involved and affect the equitable relations between the litigants.
As was said in. Fibreboard Paper Prod. Corp. v. East Bay Union, 227 Cal. App.2d 675, 39 Cal.Rptr. 64, 97 (1964).
“[I]t is not every wrongful act nor even every fraud which prevents a suitor in equity from obtaining relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i. e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Accordingly, relief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court. (Bradley Co. v. Bradley, 165 Cal. 237, 242, 131 P. 750; Germo Mfg. Co. of Missouri v. McClellan, 107 Cal. App. 532, 541-543, 290 P. 534; Carman v. Athearn, 77 Cal.App.2d 585, 598, 175 P.2d 926; Treager v. Friedman, 79 Cal.App.2d 151, 173, 179 P.2d 387; Sheppard v. Wilcox, 210 Cal. App.2d 53, 61-62, 26 Cal.Rptr. 412.) As was said in Moriarty v. Carlson, supra 184 Cal.App.2d 51, 7 Cal.Rptr. 282: ‘The misconduct must infect the cause of action before the court. * * * A party may have relief in connection with a transaction itself untainted although his original title may have been tainted by improper conduct. * * *’ (184 Cal.App.2d p. 57, 7 Cal.Rptr. p. 285.).”
The contract which Washington seeks to enforce is one which the Warriors assert was negotiated while Barry’s 1966 Warriors contract was still uncompleted. Washington did not participate in this activity. Neither did the Oakland Club as an entity. It was Boone and Davidson who later organized the Oakland corporation. The contract when finally completed on October 31, 1967 was after the option held by Boone and Davidson had expired according to its terms. It was also for performance at a date to commence after the date (October 2, 1968) upon which the California Court of Appeal decided the Warriors contract terminated, i. e., September 30, 1968.
With respect to the attempted invocation of the clean hands doctrine by Barry against Washington, it is interesting to note the lack of consistency in the Barry position. For the purpose of entering into a contract with Oakland for more money than he was then getting from the Warriors, his attorney wrote the Oakland president on October 29, 1968 saying:
“Since Rick became free to play for Oakland commencing October 1, 1968 •X- -X -X-”
In this action, brought for the purpose of restraining Barry from jumping back to the Warriors for still more money, he asserts as against Washington, Oakland’s transferee, that he was not free to play for Oakland commencing October 1, 1968, and thus Washington is possessed of unclean hands. Any misconduct arising out of an interference with the 1966 Warriors contract is remote, as the trial court points out, and affects the present litigation only indirectly. The hands of this appellee are not unclean. The rights between Barry and Warriors under the old contract have been litigated and performed. The rights as between Warriors and Boone and Davidson for damages are being litigated in another jurisdiction.
What we have said here disposes of questions with respect to the assignment of the contract from Oakland to Washington. The entire history of this sorry series of events indicates that irreparable injury is involved and equitable jurisdiction justified.
Finally, appellant argues that the oral representations alleged to have been made by Boone and Davidson about keeping the franchise in Oakland constitute a breach of the contract and are a bar to relief. The express terms of the contract are to the contrary and must take precedence over alleged prior oral agreements. See Cal.Civ.Code § 1698. Moreover, we have difficulty being persuaded that a professional athlete who has signed as many conflicting contracts as Barry, is naive enough to believe (1) that he takes no risk of being traded or sold, or (2) that the franchise might not be transferred or (3) that the embryonic club for which he was playing incurred no risk of becoming a financial failure.
The record here supports the action taken by the trial court and it is affirmed.
. Lemat Corporation is the sole general partner of the San Francisco Warriors, a limited partnership. The two entities will be referred to hereafter as “San Francisco Warriors” or “Warriors”.
. This “option clause” reads as follows:
“24. On or before September first next following the last playing season covered by this contract and renewals and extensions thereof, the Club may tender to the Player a contract for the next succeeding season by mailing the same to the Player at his address shown below, or if one is not shown, then at his address last known to the Club. If the Player fails, neglects, or omits to sign and return such contract to the Club so that the Club receives it on or before October first next succeeding, then this contract would be deemed renewed and extended for the period of one year upon the same terms and conditions in all respects as are providéd herein, except that the compensation payable to the Player would be the same provided in the contract tendered to the Player pursuant to the provisions hereof, which compensation would in no event be less than 75% of the compensation payable to the Player for the last playing season covered by this contract and renewals and extensions thereof.
The Club’s right to renew this contract, as herein provided, and the promise of the Player not to play otherwise than for the Club and its assignees, have been taken into consideration in determining the amount of compensation payable under paragraph two hereof.”
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_usc2sect | 1718 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
NATIONAL CUSTOMS BROKERS & FORWARDERS ASSOCIATION OF AMERICA, INC., Petitioner, v. UNITED STATES of America and the Federal Maritime Commission, Respondents, ‘8900’ Lines, U.S. Atlantic-North Europe Conference, et al., Atlantic & Gulf/West Coast of South America Conference, et al., Pacific Coast/Australia-New Zealand Tariff Bureau, et al., Intervenors.
No. 87-1754.
United States Court of Appeals, District of Columbia Circuit.
Argued May 4, 1989.
Decided June 30, 1989.
Gerald H. Ullman, New York City, with whom Olga Boikess, Washington, D.C., was on the brief, for petitioner.
Gordon M. Shaw, Atty., Federal Maritime Com’n, with whom Robert D. Bour-goin, General Counsel, Federal Maritime Com’n, John J. Powers, III and Robert J. Wiggers, Attys., Dept, of Justice, Washington, D.C., were on the brief, for respondent.
Howard A. Levy, with whom Marc J. Fink, F. Conger Fawcett, David C. Nolan, Eliot J. Halperin, Washington, D.C., Nathan J. Bayer, and Kevin Keelan, New York City, were on the brief, for inter-venors.
William Karas, Washington, D.C., also entered an appearance for intervenor.
Before WALD, Chief Judge, RUTH BADER GINSBURG and BUCKLEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge RUTH B. GINSBURG.
RUTH BADER GINSBURG, Circuit Judge.
The National Customs Brokers & Forwarders Association of America, Inc. (NCBFAA) seeks review of a Federal Maritime Commission (FMC or Commission) order dismissing the NCBFAA’s petition to initiate a rulemaking proceeding. Petitioner NCBFAA sought Commission repeal of certain regulations governing ocean freight forwarding; the challenged regulations, the NCBFAA contends, are not authorized by the Shipping Act of 1984, 46 U.S.C. App. sections 1701-1720 (Supp. Ill 1985) (1984 Act), or are otherwise unreasonable. The NCBFAA also proposed rules to check particular practices of ocean common carriers. We hold that the FMC reasonably interpreted the Shipping Act of 1984 to authorize the challenged regulations and adequately explained its denial of the NCBFAA’s rulemaking petition. Given the extraordinary deference due an agency when it declines to undertake a rulemak-ing, parties should hesitate to bring challenges unless they have far stronger grounds than those offered by petitioner in this case.
I. BACKGROUND
Ocean freight forwarders arrange for exportation and transportation of merchandise via ocean carriers. As defined in the Shipping Act of 1984, “ocean freight forwarder” means:
a person in the United States that
(A) dispatches shipments from the United States via common carriers and books or otherwise arranges space for those shipments on behalf of shippers; and
(B) processes the documentation or performs related activities incident to those shipments.
Id. section 1702(19). A forwarder secures cargo space with a shipping line (books the cargo), coordinates the movement of cargo to shipside, arranges for the payment of ocean freight charges, and prepares and processes the ocean bills of lading, export declarations, and other documentation. Forwarders often perform ac-cessorial services for the exporter, such as arranging insurance, trucking, and warehousing.
A forwarder receives compensation for its services both from its customer (the exporter or consignee) and from the ocean carrier. Customers pay a fee for accessorial services charged as a “markup” over the forwarder’s actual disbursements. Carriers pay forwarders “brokerage,” compensation in the form of a percentage of the ocean freight, but
only when the ocean freight forwarder has certified in writing that it holds a valid license and has performed the following services:
(A) Engaged, booked, secured, reserved, or contracted directly with the carrier or its agent for space aboard a vessel or confirmed the availability of that space.
(B) Prepared and processed the ocean bill of lading, dock receipt, or other similar document with respect to the shipment.
Id. Section 1718(d).
Section 19 of the Shipping Act of 1984, id. section 1718, contains specific limitations not only on the compensation of forwarders by carriers, but also on entry into the business of ocean freight forwarding. The forwarder is the only entity regulated by the FMC that is required to obtain a license before it can operate lawfully. To obtain a forwarder’s license, an applicant must demonstrate experience and character qualifications and furnish a bond to insure financial responsibility. Id. section 1718(a).
Comprehensive forwarder regulation had its inception in 1946 when the Supreme Court held in United States v. American Union Transport, Inc., 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772 (1946), that independent ocean freight forwarders were subject to the regulatory provisions of the Shipping Act of 1916, 46 U.S.C.App. sections 801-842 (1982) (1916 Act). Following extensive investigation in the late 1940s, regulations issued in 1950 governing forwarder billing practices and carrier payments to forwarders. In 1954, the Federal Maritime Board (FMB) launched a second industry-wide investigation, culminating in 1961 in the publication of additional regulations. Investigation of Practices, Operations, Actions & Agreements of Ocean Freight Forwarders, 6 F.M.B. 327 (1961) (Ocean Freight Forwarders). The 1961 regulations declared “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of the 1916 Act. Id. at 359, 366-67.
That same year, 1961, Congress provided for the licensing of ocean freight forwarders and confined payment of forwarder compensation by carriers to licensed forwarders that had performed specified services on behalf of the carrier and had so certified. Pub.L. No. 87-254, 75 Stat. 522 (codified as amended at 46 U.S.C.App. section 801; 46 U.S.C. section 841b). Pursuant to statutory direction to prescribe ‘reasonable rules and regulations’ governing forwarders, 46 U.S.C. section 841b(c), the FMC promulgated comprehensive rules, including one that required a forwarder to itemize on its bill its actual expenditures on the shipper’s behalf, as well as the charges or fees assessed for its own services. These rules were affirmed in New York Foreign Freight Forwarders & Brokers Association v. FMC, 337 F.2d 289 (2d Cir.1964), cert. denied, 380 U.S. 910, 85 S.Ct. 893, 13 L.Ed.2d 797 (1965).
The FMC subsequently promulgated or considered further rules on which this case centers. In 1963, the Commission permitted carriers by water to perform forwarding services with respect to cargo they transport under their own bills of lading. 28 Fed.Reg. 4300, 4301 (1963). The legality of this rule remained unchallenged until now. In 1980, the FMC considered regulatory revisions designed to: (1) prohibit carriers from compelling forwarders to guarantee payment of freight before shippers had advanced funds for this purpose; (2) require carriers to compensate forwarders within thirty days of payment of ocean freight; and (3) permit forwarders to deduct their compensation when making freight payments for shipments under a prepaid bill of lading. 45 Fed.Reg. 17,029, 17,031-32, 17,040-41 (1980) (proposed rules). In 1981, after evaluating all comments received, the Commission determined not to promulgate these rules. 46 Fed.Reg. 24,565, 24,567-68, 24,574 (1981) (final rule).
Upon enactment of the Shipping Act of 1984, the FMC revised its rules to implement that legislation. These revisions included a prescription allowing a forwarder to provide a lump-sum invoice, but requiring the forwarder, upon request of its principal, to break out the items in the invoice. 49 Fed.Reg. 36,296, 36,297, 36,302 (1984) (final rules). The Commission rejected an alternative that would have deleted invoicing regulation entirely. 49 Fed.Reg. 18,-839, 18,841 (1984) (interim rules).
On April 3,1986, the NCBFAA requested a rulemaking to delete the regulations, currently codified in 46 C.F.R. Part 510 (1988), that: (1) require prior FMC approval of one licensee’s acquisition of another licensee, id. section 510.19(a)(5); (2) prohibit a forwarder’s provision of forwarding services free of charge or at a reduced fee, id. section 510.22Q; (3) require the forwarder to provide a detailed breakout of the components of its charges at the request of its shipper-customer, id. section 510.22(g); and (4) permit carriers to perform forwarding services, without a forwarder’s license, with respect to cargo carried under the carrier’s own bill of lading, id. section 510.4(c). The NCBFAA also sought two new regulations similar in content to rules proposed in 1980 and rejected by the Commission in 1981. First, to protect forwarders from payment defaults by carriers, the NCBFAA proposed that (1) when a forwarder pays the carrier freight charge due on behalf of the shipper, the forwarder may deduct its brokerage, and (2) when the shipper pays the carrier directly, or the freight is collected at destination, the carrier must pay brokerage within sixty days of the date of vessel sailing. Petition for Rulemaking at 5. Second, the NCBFAA proposed a rule that would stop a carrier from requiring a forwarder to assume liability for freight charges owed by the forwarder’s principal. Id. at 6-7.
The FMC refused to institute rulemaking proceedings, In re Petition for Rulemaking of the Nat’l Customs Brokers & Forwarders Ass’n of Am., 24 Shipping Reg. (P & F) 116 (F.M.C. Apr. 27, 1987) (Order Denying Petition), and thereafter rejected the NCBFAA’s petition for reconsideration, 24 Shipping Reg. (P & F) 581 (F.M.C. Oct. 16, 1987) (Order Rejecting Petition for Reconsideration). The NCBFAA seeks review of the Commission’s orders denying its petitions and asks this court to instruct the FMC to renew consideration of the rule-making request.
II. DISCUSSION
A. Standard of Review
While Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), teaches that nonenforcement decisions are presumptively unreviewable, we recently clarified that refusals to institute rulemak-ing proceedings remain outside Chaney’s core and are subject to a judicial check. American Horse Protection Ass’n v. Lyng, 812 F.2d 1 (D.C.Cir.1987) (AHPA). At the same time, we underscored the extremely limited, highly deferential scope of that review. Id. at 4-5. We will overturn an agency’s decision not to initiate a rule-making only for compelling cause, such as plain error of law or a fundamental change in the factual premises previously considered by the agency. Id. at 5. Furthermore, under the instruction furnished in Chevron U.S.A. 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), to the extent that the intent of Congress is not clear, we must accept an agency’s reasonable interpretation of the substantive terms of a statute it is charged to administer.
Before turning to petitioner NCBFAA’s specific complaints, we note some salient differences between this case and the one on which the NCBFAA relied so heavily, AHPA. At issue in AHPA was “the practice [called soring] of deliberately injuring show horses to improve their performance in the ring.” 812 F.2d at 1. In the Horse Protection Act, 15 U.S.C. sections 1821-1824 (1982), “Congress sought to end this practice.” 812 F.2d at 2. The regulations originally promulgated by the Secretary of Agriculture proved inadequate to the task, yet the agency stood still, apparently believing “that the Act was a sort of compromise between industry proponents of sor-ing and persons who regarded the practice as barbarous.” Id. at 6. Stressing that the Act was not ambiguous — it “was clearly designed to end soring,” id. — we held that the Secretary must further consider the matter and then either institute a new rule-making or account satisfactorily for his decision not to do so. Id. at 7.
AHPA involved cruelty to certain animals and a clear congressional design to end it. In contrast, this case involves no similarly crystalline congressional objective and the interests at stake are “primarily economic.” See WWHT, Inc. v. FCC, 656 F.2d 807, 819 (D.C.Cir.1981). Such interests, “without more, do [ ] not present the unusual or compelling circumstances that are required in order to justify a judgment by this court overturning a decision of the Commission not to proceed with rulemak-ing.” Id.
B. Prior Approval of Acquisitions
Petitioner NCBFAA requested that the FMC delete 46 C.F.R. 510.19(a)(5), which requires prior Commission approval of the acquisition of one forwarder by another. The NCBFAA claims that, in 1984, Congress deliberately eliminated the FMC’s authority to approve “ ‘acquisitions in the maritime area’ ” so as to bring such agreements under ‘“normal antitrust oversight’” Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 20 [hereinafter Brief of Petitioner] (quoting S.Rep. No. 3, 98th Cong., 1st Sess. 24 (1983)). Section 4(c) of the 1984 Act, as codified at 46 U.S.C.App. section 1703(c), states: “This chapter does not apply to an acquisition by any person, directly or indirectly, of any voting security or assets of any other person.”
The Commission recognizes that it does not have acquisition permission authority that displaces normal antitrust oversight by executive branch agencies. The regulation in question, according to the FMC, does not purport to exercise agreement approval authority in an antitrust law context, but is simply an accoutrement of the Commission’s licensing authority. See Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119. Acquisition of additional licensees appears in 46 C.F.R. section 510.-19(a) as the fifth item in a list of seven “changes in an existing licensee’s organization” requiring Commission approval; other listed items include: license transfer; change in individual proprietorship ownership; and addition of partners to a licensed partnership. The Commission maintains control over these changes in a licensee’s organization, the FMC states, simply and solely to insure that only qualified entities operate as forwarders: “The prior approval procedure ... allows the Commission the opportunity to ensure that all regulatory requirements are met before a licensee begins operating under circumstances different from those under which it was licensed.” Order Denying Petition at 5, 24 Shipping Reg. (P & F) at 119.
We cannot say that the Commission’s licensing and ample rulemaking authority under sections 19 and 17 of the 1984 Act, 46 U.S.C.App. sections 1718, 1716, are of insufficient breadth to accommodate the regulation requiring FMC approval of acquisitions by licensed forwarders. The NCBFAA asserts that there is no risk of an unqualified entity when two forwarders, already licensed, merge, and that other FMC regulations adequately guard against commencement of forwarder operations without meeting regulatory requirements. Brief of Petitioner at 21. It is not our function, however, to judge whether the FMC’s regulations are necessary; so long as they are proper exercises of the Commission’s statutory authority, their maintenance may not be disturbed by this court.
C. Forwarders ’ Billing Practices
Petitioner NCBFAA asked the FMC to delete 46 C.F.R. section 510.22(g), which requires a forwarder to itemize its charges upon request, and 46 C.F.R. section 510.-22(i), which forbids free or reduced-rate services. The legal authority for these rules, the NCBFAA maintains, was section 16, First, of the 1916 Act, 46 U.S.C.App. section 815, which prohibited “any ... person subject to this chapter” from discriminating among shippers. See Brief of Petitioner at 24. In 1984, Congress eliminated broad-scale prohibitions of the 1916 Act, including section 16, First. Now, under section 10(b)(6), (10)-(12) of the 1984 Act, 46 U.S.C.App. section 1709(b)(6), (10)-(12), the NCBFAA emphasizes, it is unlawful only for common carriers (no longer “any person”) to engage in discriminatory practices.
The Commission, however, relies on section 10(d)(1) of the 1984 Act, id. section 1709(d)(1), which states: “No common carrier, ocean freight forwarder, or marine terminal operator may fail to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property.” Section 10(d)(1) was derived from section 17 of the 1916 Act, 46 U.S.C.App. section 816. The NCBFAA counters that the FMC had long applied section 17 only to physical services performed at the terminal. Brief of Petitioner at 28-29. Although some forwarder activities, petitioner thus maintains, are subject to the Commission’s “reasonable practice” jurisdiction, those activities do not include fee arrangements for forwarding services preliminary to an actual shipment. Reply Brief of Petitioner National Customs Brokers & Forwarders Association of America, Inc. at 15-16 [hereinafter Reply Brief].
In American Union Transport, 327 U.S. 437, 66 S.Ct. 644, 90 L.Ed. 772, the Supreme Court recognized broad Commission authority to regulate forwarders, stating: “By the nature of their business, independent forwarders are intimately connected with” the activities listed under section 17, that is, “the receiving, handling, storing or delivering of property.” Id. at 449, 66 S.Ct. at 650. To confine “reasonable practice” jurisdiction to physical cargo handling services performed at the terminal, the FMC indicates, would be inconsistent with American Union Transport; such an interpretation, in large measure, would place freight forwarders outside the statute because forwarders (unlike carriers and terminal operators-the other entities covered by section 10(d)) traditionally do not operate at terminals. Brief of Respondents at 33. We are satisfied that the Commission has fairly and reasonably construed section 10(d)(l)’s scope and now turn to the specific regulations the NCBFAA challenges.
1. Disclosure of Forwarders'Markups
The FMC, in 1984, rejected arguments challenging the markup disclosure rule, and again retained the rule in 1987, noting its intention that the marketplace govern forwarder/customer relations to the maximum extent possible: “By providing the means to determine the level and reasonableness of forwarders’ charges, the marketplace can regulate the relationship between forwarders and their principals. Petitioner has not offered any new facts or arguments to warrant overruling this prior determination.” Order Denying Petition at 8, 24 Shipping Reg. (P & F) at 120. The NCBFAA complains that the Commission did not acknowledge that section 16, First, the statutory basis for the rule, had been repealed. Brief of Petitioner at 25-26 & n. 61. The Commission, however, hardly announced a novel position in recognizing that section 10(d)(1) of the 1984 Act, or section 17 of the 1916 Act, provides a basis for the markup disclosure requirement. See Ocean Freight Forwarders, 6 F.M.B. at 359, 366-67 (finding both “disguised markups” and free or reduced-rate forwarder services to be “unreasonable practices” in violation of section 17).
Petitioner complains next that the FMC did not cite evidence of arbitrary and unreasonable markups or explain why no similar disclosure requirement is imposed on other business with which an exporter deals; furthermore, the NCBFAA objects, the Commission did not address petitioner’s claims that industry customers, through ordinary business negotiations, are well able to determine the reasonableness of forwarding fees and that strong competition among forwarders protects exporters against overcharging. Brief of Petitioner at 26-27. In sum, petitioner asserts that the FMC has not said enough to assure a reviewing court that the Commission’s refusal to delete the disclosure rule was the product of reasoned decisionmaking. These arguments, however, show neither legal error nor removal of a significant factual predicate for the FMC’s prior ruling. See WWHT, 656 F.2d at 818-19 (discussing Geller v. FCC, 610 F.2d 973, 979 (D.C.Cir.1979)). To retain its rule, the FMC need not produce evidence showing that abuses are currently prevalent or that an unregulated market would fail to control such abuses. The Commission initiated regulation in response to abusive practices in an unregulated market; one would not expect the abuses to persist once checked by FMC rule. The Commission thus appropriately cited and adhered to its “prior determination.”
2. Free or Reduced-Rate Services
The Commission also adhered to the following proscription: “No licensee shall render ... any freight forwarding service free of charge or at a reduced fee in consideration of receiving compensation from a common carrier or for any other reason.” 46 C.F.R. section 510.22(i). Here too, the NCBFAA points out that the agency initially adopted the prohibition pursuant to section 16, First, Brief of Petitioner at 27; furthermore, petitioner stresses, section 10(b)(2) of the 1984 Act, 46 U.S.C.App. section 1709(b)(2), prohibits rebates by common carriers but not by forwarders. Rejecting the NCBFAA’s claim that the rule lacks statutory authority under the 1984 Act, the FMC again relied on section 10(d)(1), which “prohibits a freight forwarder from failing to establish, observe, and enforce just and reasonable regulations and practices related to or connected with receiving, handling, storing, or delivering property.” Order Denying Petition at 9, 24 Shipping Reg. (P & F) at 120.
The FMC defends its rule as aimed primarily at forwarder practices abetting carrier discrimination among shippers through indirect rebates. Brief of Respondents at 38. To assist carrier discrimination banned by section 10(b), the Commission maintains, would constitute an “unreasonable practice" barred by section 10(d)(1). Id. at 39. But the FMC’s forwarder-directed rule goes further: it bars not only fees reduced “in consideration of receiving compensation from a common carrier,” but also those reduced “for any other reason.”
More broadly, therefore, the FMC urges that a forwarder’s discrimination in charges among its customers reflects a misallocation that constitutes an unreasonable practice in itself. Ocean Freight Forwarders, 6 F.M.B. at 366-67, relied on this alternative section 17 rationale, as well as the “indirect rebate” rationale, in declaring such discrimination unlawful. We uphold the FMC’s constant rule on the ground that the Commission, in the reasonable exercise of its rulemaking authority, may interpret section 10(d)(1) to prohibit forwarder discrimination in the charges billed to customers. See Volkswagenwerk Aktiengesellschaft v. FMC, 390 U.S. 261, 281-82, 88 S.Ct. 929, 940-41, 19 L.Ed.2d 1090 (1968) (holding that “a relatively large charge ... unequally imposed” by an association of shipping industry employers on its members, for a fund to mitigate the impact upon stevedoring employees of technological unemployment, would violate section 17 unless “the charge levied is reasonably related to the service rendered”); California v. United States, 320 U.S. 577, 583, 64 S.Ct. 352, 355, 88 L.Ed. 322 (1944) (holding that the United States Maritime Commission could determine that “unreasonably long free time” and below-cost charges for wharf storage violated both sections 16 and 17).
D. Unlicensed Forwarding by Carriers
“No person may act an an ocean freight forwarder unless that person holds a license” from the FMC. 46 U.S.C.App. section 1718(a). This licensing provision includes only one express exception: “A person whose primary business is the sale of merchandise may forward shipments of the merchandise for its own account without a license.” Id. section 1718(c). The 1984 Act thus continued the licensing requirements of 46 U.S.C. section 841b. FMC regulations, however, permit a common carrier to perform forwarding services without a license on shipments carried under its own bill of lading and pursuant to its published tariff. The provision in question, 46 C.F.R. section 510.4(c), states:
Common Carrier. A common carrier, or agent thereof, may perform ocean freight forwarding services without a license only with respect to cargo carried under such carrier’s own bill of lading. Charges for such forwarding shall be assessed in conformance with the carrier’s published tariffs on file with the Commission.
Petitioner seeks the repeal of section 510.4(c), pointing in particular to the dramatic growth in operations by “non-vessel operating common carriers” (NVOCCs), and the attendant NVOCC competition with licensees in providing forwarding services. NVOCCs, typically, are small firms that do not own or operate transportation equipment, but instead lease facilities and services from other firms, and have a small workforce of primarily managerial and clerical employees. NVOCCs consolidate and load small shipments from multiple shippers into a single large reusable metal container obtained from a steamship company, and ship the container by vessel under a single bill of lading in the NVOCC’s name; NVOCCs charge rates within the margin between the steamship line’s (the vessel operator’s) rates applicable to loose, “break-bulk” shipments, and special lower rates applicable to consolidated container loads.
The Shipping Act of 1984 recognized the NVOCC as a legal entity with the status of “a shipper in its relationship with an ocean common carrier” but the status of a carrier in its relationship with exporter customers. 46 U.S.C.App. section 1702(17). An NVOCC assumes common carrier responsibilities for transportation even though it “does not operate the vessels by which the ocean transportation is provided.” Id. The NVOCC is compensated only by the shipper.
Petitioner asserts that incompetent and irresponsible NVOCCs have created severe problems. Brief of Petitioner at 31. An NVOCC operates as a carrier solely by virtue of filing a tariff with the FMC. There are no formal entry requirements. Yet section 510.4(c) allows NVOCCs to offer the full gamut of forwarding services, including preparing and processing export declarations, sight drafts, insurance documentation, and letter-of-credit documents, on cargoes carried under their own bills of lading. Id. at 14-15. In short, the NCBFAA charges that in allowing unlicensed operations by NVOCCs, the Commission has dishonored Congress’ “flat prohibition” against forwarding without a license. Id. at 33.
“Historically,” the FMC said in its response to the NCBFAA’s charge, “carriers have performed their own documentation and made arrangements to facilitate the movement of cargo to vessels.” Order Denying Petition at 3-4, 24 Shipping Reg. (P & F) at 118. The Commission further observed that its rule “provides the shipping public protection by requiring carriers to publish any charges for performance of these functions in their tariffs.” Id. at 4, 24 Shipping Reg. (P & F) at 118. The FMC discerned no legislative command “that carriers obtain a license in order to continue to perform these functions.” Id. On the contrary, Congress did not approve language in H.R. 5068, 86th Cong., 2d Sess. (1960), an early draft of the licensing provision enacted in 1961, that would have required every person including carriers, to be licensed to engage in the business of dispatching shipments on behalf of other persons. Id.
The 1984 Act defines “ocean freight forwarder” as “a person in the United States that ... dispatches shipments from the United States via common carrier and books or otherwise arranges space for those shipments on behalf of shippers.” 46 U.S.C.App. section 1702(19). It defines “common carrier” as “a person holding itself out to the general public to provide transportation by water of ... cargo.” Id. section 1702(6). The FMC maintains that a common carrier, by engaging in booking or space arrangement activity, does not thereby acquire dual status; it remains a common carrier, and does not become a freight forwarder as well. The Commission cites legislative history in support: “It is not intended that booking or space arrangement activity by an ocean common carrier or its steamship agent would make either an ‘ocean freight forwarder’ as well.” S.Rep. No. 3, supra, at 20, cited in Brief of Respondents at 19. In other words, a carrier does not become a forwarder merely by furnishing services to its own customers that a forwarder may provide. Brief of Respondents at 25-26; see Puerto Rico Ports Auth. v. FMC, 642 F.2d 471, 483-85 (D.C.Cir.1980) (holding that a common carrier that provided terminal services for cargo that it carried did not thereby become a terminal operator).
On the other hand, as petitioner points out, nothing in the text of the statute indicates that an entity cannot be both a carrier and an ocean freight forwarder, for both terms are defined functionally. Congress defined ‘forwarder’ simply by reference to the work forwarders perform. Petitioner infers from the passage quoted from S.Rep. No. 3, supra, that a carrier would be subject to licensing when it performs the usual forwarding activities in addition to booking or space activity. Reply Brief at 8. Petitioner’s argument, however, does not proceed far enough. It establishes no more than that the phrase “act as an ocean freight forwarder” in the licensing provision, 46 U.S.C. App. section 1718(a), is ambiguous with respect to carriers offering forwarding service only in conjunction with shipments carried under their own bills of lading. Again, therefore, we have no warrant to reject the FMC’s reasonable interpretation.
E. Proposed Rules Regarding Carrier Practices
“It is only in the rarest and most compelling of circumstances that this court has acted to overturn an agency judgment not to institute rulemaking.” WWHT, 656 F.2d at 818. This is not such a rare case. It contrasts with Farmworker Justice Fund, Inc. v. Brock, 811 F.2d 613, 633, vacated as moot, 817 F.2d 890 (D.C.Cir. 1987); American Horse Protection Association, Inc. v. Lyng, 681 F.Supp. 949, 958 (D.D.C.1988); and Public Citizen v. Heckler, 653 F.Supp. 1229, 1241 (D.D.C.1986), each involving grave health and safety problems for the intended beneficiaries of the statutory scheme, each presenting facts urgently warranting remedial rules. Here, there is no similar risk or need, the issue are economic in nature, they entail policy determinations on which agency rulemak-ing discretion is respected. See WWHT, 656 F.2d at 819. Petitioner’s arguments reveal no legal error on the Commission’s part or compelling change in a factual predicate for the FMC’s previous refusal to adopt the rules requested.
1. Prompt Payment of Brokerage
The FMC proposed rules in 1980 to require carriers to pay forwarders promptly, 45 Fed.Reg. 17,029, 17,032 (1980) (proposed rules), but ultimately rejected the proposal, 46 Fed.Reg. 24,565, 24,568 (1981) (final rule). In 1986, when the NCBFAA renewed the proposal, the Commission reiterated its opinion that “this is a matter that should be resolved commercially and not through governmental intervention.” Order Denying Petition at 11, 24 Shipping Reg. (P & F) at 121.
Petitioner claims that the FMC did not give a reasoned response to its 1986 request because:
The record made it clear that the FMC’s deferral to marketplace forces does not work. Forwarders are often small concerns with insufficient bargaining leverage to sway powerful carriers. Reliance on the courts is not practical given the small amount of many individual brokerage claims. The FMC is assigned responsibility under the Shipping Act to protect a forwarder from carrier conduct that subjects it to an undue or unreasonable prejudice or disadvantage. 46 U.S.C.App. 1709(b)(12).
Brief of Petitioner at 41. None of these contentions, however, reveals any fundamental change in the circumstances existing at the time of the FMC’s 1981 decision. Although petitioner alleges “it was evident from the unprecedented wave of carrier bankruptcies that the situation was far worse,” Reply Brief at 18, this allegation indicates at most a better case than the one earlier made. The current contentions largely underscore those previously advanced and are not so extraordinary as to justify our interference with the agency’s judgment.
2. Liability for Freight Charges
In 1980, the Commission proposed to forbid carriers from requiring forwarders to assume liability for freight bills, unless the freight charges have been advanced to the forwarder by the shipper, “to protect the forwarder as well as to place the obligation for payment of freight on the real party in interest, i.e., the shipper.” 45 Fed.Reg. 17, 031-32 (1980) (proposed rules). The FMC rejected this proposal in 46 Fed.Reg. 24,568 (1981) (final rule). In 1987, the FMC rejected the NCBFAA’s similar proposal as “neither necessary nor appropriate”; again, the Commission restated that “this appears to be a commercial matter best left to be resolved in the marketplace by the carrier, the forwarder, and the shipper.” Order Denying Petition at 12, 24 Shipping Reg. (P & F) at 121. “Petitioner has not adequately supported its claim that carriers have unreasonably refused to release prepaid bills of lading, nor has the Commission received any other specific complaints about this practice.” Id. Petitioner asserts that the FMC turned away its request without taking a “hard look” at the problem, Brief of Petitioner at 43, but the depth of the inquiry, under the circumstances presented, was within the domain of Commission discretion. See supra p. 95.
CONCLUSION
For the reasons stated, we affirm the FMC’s orders. The NCBFAA’s petition for review is therefore denied.
It is so ordered.
. The petition for reconsideration was not considered on its merits. The Commission, instead, rejected it under 46 C.F.R. section 502.261 (1988) because the petition did not, as that rule requires: (1) specify a change in fact or law since the initial order; (2) identify a substantive error in material fact in the initial order; or (3) address a matter upon which the petitioner had not previously had the opportunity to comment. Because the NCBFAA does not independently challenge the reconsideration rejection, this opinion focuses on the Commission's grounds for denying the rulemaking petition.
. Agreements covered by 46 U.S.C.App. section 1703 are subject to review by the Commission, id. sections 1704-1705, and if made effective, become exempt from the antitrust laws. Id. section 1706(a) (“The antitrust laws do not apply to ... any agreement that has been filed under section 1704 of this Appendix and is effective under section 1704(d) or section 1705 of this Appendix-”). Section 1703(c) thus limits only the FMC’s power to grant antitrust immunity, not its power to make certain that merged forwarding firms are properly licensed.
. Petitioner also asked the FMC to delete 46 C.F.R. section 510.19(a)(6), which requires prior approval of any change in a licensee's name. The FMC continued the requirement because otherwise there would be an "inherent time lag between when a licensee changes its name and when it submits its notification to the Commission, [so that] the Commission's list of licensees would not always be accurate.” Order Denying Petition at 6, 24 Shipping Reg. (P & F) at 119. As acknowledged at oral argument, petitioner does not pursue the name change approval issue before this court.
. Petitioner cites Johnson Products Co. v. M/V La Molinera, 619 F.Supp. 764 (S.D.N.Y.1985); Bethlehem Steel Corp. v. FMC, 642 F.2d 1215 (D.C.Cir.1980); and Puerto Rico Ports Authority v. FMC, 642 F.2d 471 (D.C.Cir.1980). All three cases are inapposite.
Johnson merely held that the forwarding contract was not a "maritime contract” within the admiralty jurisdiction of the federal courts, and that the particular “fraud” and "negligence” alleged in the complaint did not “come within the ambit" of section 10(d)(1) of the 1984 Act, or section 17 of the 1916 Act. 619 F.Supp. at 766-67. Petitioner cites no cases declaring any forwarding services, by their very nature, beyond the FMC’s section 17 jurisdiction.
Bethlehem Steel involved a harbor entry charge levied by a port commission on all commercial vessels. The commission imposed the charge in order to recover its investment in the construction of the harbor. This court held, simply and solely, that such a navigational (harbor construction) toll was not an impost "relating to or connected with the receiving, handling, storing, or delivering of property," and therefore was not subject to section 17 of the 1916 Act, 46 U.S.C.App. section 816.
Puerto Rico Ports held that the party in question, a public shipping authority, was not covered by section 17 because it was neither a common carrier in foreign commerce nor an “other person subject to this chapter,” 46 U.S.C.App. section 816, i.e., any noncarrier "carrying on the business of forwarding or furnishing wharfage, dock, warehouse, or other terminal facilities in connection with a common carrier by water,” id. section 801. The shipping authority, which was not a forwarder, furnished no terminal facilities, and thus was not an “other person” within the section 801 definition. Puerto Rico Ports, 642 F.2d at 484. The NCBFAA’s blending or confusion of persons who furnish "terminal facilities” and persons in "the business of forwarding” is unavailing. These are discrete categories. Section 801 plainly included forwarders without limitation to their activity at a terminal.
. When the mark-up rule was challenged on appeal, it was affirmed under section 16, First. The court did not consider whether the rule was "necessary to eliminate purported violations of Section 17.” New York Foreign Freight Forwarders, 337 F.2d at 299. We regard it as at least proper for the FMC to justify the rule as an exercise of its "reasonable practice" jurisdiction.
. The NCBFAA complains that the FMC (1) did not respond to its argument that the prohibition inhibits competition between forwarders and (2) ignored petitioner's showing that major customers, including federal agencies, insist on obtaining free services or heavily reduced fees. Brief of Petitioner at 30. Again, however, petitioner fails to indicate facts the Commission assumed did not exist when it promulgated the rule.
. Petitioner asserts that this section 10(d)(1) argument rests on the very section 16 “indirect rebate” theory that was rejected in Norman G. Jensen, Inc. v. FMC, 497 F.2d 1053, 1059 (8th Cir.1974) (rejecting the "rebate” argument made in that case as implying "a violation of section 16 any time a shipper employs an ocean forwarder because it is more economical than maintaining its own forwarding staff”). Brief of Petitioner at 28. Jensen, however, does not sweep as broadly as the NCBFAA suggests; it merely rejected the "rebate" argument, in the particular circumstances presented, as based on too tenuous a connection: the forwarder "subsidized” an agent that acted on behalf of shippers because of the forwarder’s corporate relationship with the agent. 497 F.2d at 1055, 1058-59.
. Petitioner argues that these two cases, cited by the FMC in Brief of Respondents at 39-40, involve practices at the pier, stevedoring and wharf storage, which may be distinguished from a forwarder's fee arrangements with shippers. Reply Brief at 16. For the reasons stated supra p. 98, however, this distinction does not bring the billing practices here in question outside section 10(d)(1).
. Since the 1960s, operations by NVOCCs have multiplied as a result of the containerization of ocean cargo and the growth of intermodal transportation, i.e., the movement of containers over several transportation modes, such as truck and rail. See New York Shipping Ass’n v. FMC, 854 F.2d 1338, 1344-45 (D.C.Cir.1988), cert. denied, — U.S. —, 109 S.Ct. 866, 102 L.Ed.2d 990 (1989); Council of N. Atl. Shipping Ass'ns v. FMC, 672 F.2d 171, 173-74 (D.C.Cir.) cert. denied, 459 U.S. 830, 103 S.Ct. 69, 74 L.Ed.2d 69 (1982).
. Although there is no explicit indication why Congress failed to adopt H.R. 5068, the FMC stresses that the legislature left unadopted the definitive resolution petitioner espouses.
. The FMC promulgated a rule relating to carrier operations, virtually identical to the one challenged here, in 28 Fed.Reg. 4300, 4301 (1963). The Commission argues that its "long and consistent practice ... may be presumed to have been adopted by Congress in passing the 1984 Act.” Brief of Respondents at 25; accord id. at 18 (citing Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 381-82 & n. 66, 102 S.Ct. 1825, 1840-41, n. 66, 72 L.Ed.2d 182 (1982); Lorillard, a Div. of Loew's Theatres, Inc. v. Pons, 434 U.S. 575, 580-81, 98 S.Ct. 866, 869-70, 55 L.Ed.2d 40 (1978)). On the other hand: “This court has ... consistently required express congressional approval of an administrative interpretation if it is to be viewed as statutorily mandated." AFL-CIO v. Brock, 835 F.2d 912, 915 (D.C.Cir.1987). Although we cannot infer a congressional design to adopt the FMC’s interpretation, the longevity of the Commission's stance and congressional inaction suggests the absence of contrary legislative intent, and the propriety of deferring to the agency’s considered judgment.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 46? Answer with a number.
Answer: |
songer_appbus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
John David HAY, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
No. 72-2712
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Oct. 10, 1972.
John David Hay, pro se.
Crawford Martin, Atty. Gen., Howard Fender, Asst. Atty. Gen., Austin, Tex., for respondent-appellee.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York, et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM.
The district court denied the appellant’s petition for a writ of habeas corpus on the grounds that he had failed to exhaust available state remedies. We vacate and remand.
Appellant Hay was convicted of burglary and sentenced to four years in the state penitentiary on September 19, 1967. This is the judgment of conviction which Hay is attacking in these proceedings.
In his habeas corpus petition the appellant alleges that he was illegally arrested without a warrant, that the police conducted illegal searches and seizures and that tainted evidence recovered as a result of the illegal searches and seizures was introduced at his trial.
The appellant presented these allegations, subsequent to his conviction, by motion for new trial filed in the sentencing court, and on direct appeal. The Texas Court of Criminal Appeals affirmed the appellant’s conviction on December 18, 1968. Hay v. State, Tex.Cr.App.1968, 436 S.W.2d 153.
It is well settled that a prisoner who petitions for federal habeas corpus relief need not further exhaust his state remedies if he has previously had his contentions ruled on by the state’s highest court on direct appeal. Thomas v. Beto, 5th Cir. 1972, 461 F.2d 244; McCluster v. Wainwright, 5th Cir. 1972, 453 F.2d 162; Bartz v. Wainwright, 5th Cir. 1971, 451 F.2d 663.
Accordingly, we conclude that the district court erred in dismissing the appellant’s petition on grounds of failure to exhaust state remedies. The judgment below is vacated and the case is remanded so that the district court may adjudicate Hay’s claims on their merits.
Vacated and remanded.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellee, v. Gregory MURDOCK, a/k/a Prentice Parker, Appellant.
No. 90-5178.
United States Court of Appeals, Eighth Circuit.
Submitted Nov. 12, 1990.
Decided March 20, 1991.
Rehearing and Rehearing En Banc Denied May 9, 1991.
Andrea George, Minneapolis, Minn., for appellant.
Christopher J. Bebel, Minneapolis, Minn., for appellee.
Before ARNOLD and MAGILL, Circuit Judges, and BATTEY, District Judge.
THE HONORABLE RICHARD H. BATTEY, United States District Judge for the District of South Dakota, sitting by designation.
MAGILL, Circuit Judge.
Gregory Murdock appeals his conviction for two counts of bank robbery, one count of armed bank robbery, and two counts of using a firearm during the commission of a bank robbery. Murdock claims that the identification procedures and evidence violated his fifth amendment rights; that the district court’s refusal to sever the counts forced him to incriminate himself; that his fourth amendment rights were violated when the police requested and received bags which Murdock kept at an acquaintance’s apartment; and that the police lacked reasonable articulable suspicion when they stopped his car. We reject these arguments and affirm the convictions. Murdock also claims that he received ineffective assistance of counsel. Because only an incomplete record has been developed on this issue, we dismiss this claim without prejudice.
I.
On September 20, 1989, Murdock was charged with two counts of bank robbery, two counts of armed bank robbery, and two counts of using a gun during the commission of a bank robbery. All four robberies took place between August 16, 1989, and September 6, 1989.
On August 16, 1989, an undisguised man entered the First Star Metrobank in Minneapolis, Minnesota, and demanded money from the senior teller, Thomas Faust. Faust described the robber as a light-skinned, clean-shaven, black man, 28 to 30 years old, with salt and pepper hair and a high hairline. The robber was wearing a black and white striped shirt with short sleeves. Faust testified that the robber was approximately one to two feet away from him and that he looked into the robber’s eyes at least three times. On the same day, only three hours after the Minneapolis First Star bank was robbed, the First Wisconsin National Bank of Milwaukee, located in Milwaukee, Wisconsin, was robbed. The teller identified Murdock as the robber when she was shown a stack of nine photographs.
On August 22, 1989, an undisguised man entered the First Minnesota Bank in St. Paul, Minnesota, and demanded money from a bank teller, Julia Asuncion. She described the robber as a slim, tall, black man with short hair and a thin mustache, who was wearing a dark, short-sleeved shirt of velour or sweatshirt-like material. Asuncion testified that the robber stood a couple of feet away from her and that she looked into the robber’s eyes at least two or three times. Three other First Minnesota employees witnessed the robbery: Diane Conney, Gary Chatlain and Todd Peterson. Neither Asuncion, Conney, nor Chatlain was able to identify Murdock in a lineup held on September 14, 1989. Peterson did not attend the lineup, but did identify Mur-dock in the courtroom during Murdock’s trial.
On August 28, 1989, an undisguised man entered the Twin City Federal Bank in Minneapolis, Minnesota, pointed a two-barreled derringer at the teller, Carol Dudley-Trask, and demanded money. Dudley-Trask described the robber as an unshaven black man, 25 to 30 years old, with a large, pointy nose, and a high forehead, who was wearing a blue dress shirt with a white collar. She testified that she looked at the robber three or four times. Nancy Tate, another teller, described the robber as a lean, clean-shaven black man, approximately 5' 8" to 5' 10" and weighing 147 to 160 pounds. The bank camera photographed the robbery as it happened, producing a picture that was admitted as evidence in Murdock’s trial. Neither Dudley-Trask nor Tate attended a lineup, but both positively identified Murdock in court.
On September 5, 1989, an undisguised individual entered Norwest Midland Bank in Minneapolis, pointed a two-barreled derringer at the teller, Mary Schaefer, and demanded money. Schaefer described the robber as a black man with a short, flat-top hair cut, 6' tall, weighing 150 to 175 pounds, and about 30 years old. Schaefer did not attend a lineup nor was she shown a photo array, but she did identify Murdock in court.
Later that day, Special Agent John Fos-sum of the Minnesota Bureau of Criminal Apprehension (BCA) saw a black male passenger in a brown Lincoln Continental counting a large sum of money. Fossum believed the money was drug-related and radioed a description of the ear to the Minneapolis Police Department when heavy traffic prevented him from following the car.
The next day, September 6, Officers Shoua Cha and Michael Simmons of the St. Paul Police Department saw the same Lincoln Continental that Fossum had reported. Cha recognized Murdock, who was riding in the Lincoln, as the robber in the photograph obtained during the Twin City Federal Bank robbery. He pulled the vehicle over and called for backup. When the backup arrived, the officers approached the car and questioned the occupants. The officers then arrested Murdock and Richardson, the driver of the car. During the post-arrest search, the officers discovered a two-barreled derringer on Murdock.
The police then went to the apartment of one of Murdock’s friends, Glenn King. Because Murdock had spent three nights at King’s apartment, Murdock had left some of his belongings there. Murdock had both a key to the apartment and a key to the security door of the apartment building. However, Murdock was not authorized to enter the apartment without King’s presence and permission. King testified that he gave Murdock a set of keys because he did not want to “run up and down to check the door.” King also testified that Mur-dock had only used the key to the apartment when he had King’s express, contemporaneous approval.
After the police arrested Murdock, several officers went to the Kings’ residence. Mrs. King invited the police into the apartment. The police requested and received permission from the Kings to take Mur-dock’s possessions. Mrs. King had washed Murdock’s clothing and stored it alongside their own clothing. Mr. King later testified that he and his wife consented to the police request because they did not believe they had a choice. He also testified that the police did not threaten either of them in any way, nor did police indicate that they would retaliate against the Kings if they did not comply. Among the possessions taken into custody was a blue dress shirt with a white collar. This shirt fit the description of the shirt worn by the robber in the August 28 robbery.
At trial, Murdock attempted to sever the counts claiming that he would be prejudiced by the cumulative effect of the evidence presented by the government. Furthermore, Murdock claimed that failure to sever would violate his fifth amendment rights. Murdock failed to make a specific allegation about how these rights would be violated. Murdock also attempted to suppress the evidence obtained by the police pursuant to his arrest and pursuant to their visit to the Kings’ apartment. All of these motions were denied.
Murdock was convicted of all but the August 22 robbery. The court sentenced him to a total of 420 months. Murdock filed a motion for a new trial under Rule 33 and a petition for habeas corpus relief under 28 U.S.C. § 2255. The court denied his motion for a new trial and dismissed the habeas petition as premature.
II.
On appeal, Murdock raises six issues. He claims that the overly suggestive identification procedures violated his due process rights; that the court’s refusal to sever the counts forced him to incriminate himself; that the court’s failure to scrutinize the reliability of the eyewitness identifications violated his due process rights; that he received ineffective assistance of counsel since his attorney failed to adequately investigate the underlying facts; that the police violated the fourth amendment when they took his clothing from the Kings’ apartment; and that the police violated the fourth amendment when they detained him without reasonable articulable suspicion.
A.
Murdock first claims that the government’s identification procedures violated his due process rights because they were impermissibly suggestive and unreliable. In addressing these claims we must apply the two-part test the Supreme Court adopted in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also Graham v. Solem, 728 F.2d 1533 (8th Cir.1984); United States v. Manko, 694 F.2d 1125 (8th Cir.1982). First, we must decide whether the challenged confrontation was impermissibly suggestive. If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created “a very substantial likelihood of irreparable misidentification.” Manson, 432 U.S. at 116, 97 S.Ct. at 2254. In making this second determination, reviewing courts must consider: “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the time between the crime and the confrontation.” Manson, 432 U.S. at 114, 97 S.Ct. at 2253 (citing Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-83, 34 L.Ed.2d 401 (1972)).
Murdock’s first identification claim arises out of the fact that three of the four witnesses who positively identified him did so for the first time in court. Murdock argues that this testimony was tainted by the fact that he was sitting at the defense table and was the only African-American in the room. Since this court does not require in-trial identifications to be preceded by pretrial lineups, see United States v. Wade, 740 F.2d 625, 628 (8th Cir.1984), the only issue is whether Murdock’s presence at the defense table, combined with his being the only African-American in the courtroom at the time of the identification, constituted impermissibly suggestive procedures. It is significant to note that Murdock did not request special seating or object to the ethnic composition of the courtroom at the time of the identification. Furthermore, the witnesses’ identifications were open to attack on cross-examination. Therefore, while the procedure may have been suggestive, it was not im-permissibly suggestive. Even if the procedure was impermissibly suggestive, under the totality of the circumstances, there was no substantial likelihood of misidentification. All four witnesses had a substantial amount of time to view the robber at the time of the crime; each was fairly attentive during the crime; each was very certain about Murdock’s identity; and each identification took place within a reasonable period after the crime. Therefore, even though some of the witnesses’ descriptions of the robber were not extremely detailed or accurate, their in-trial identifications were reliable under the totality of the circumstances. See Ford v. Armontrout, 916 F.2d 457 (8th Cir.1990) (impermissibly suggestive pretrial identification did not make in-court identification unreliable where victim had ample opportunity to view defendant, and where victim’s description of her assailants was accurate and where she did not hesitate in her identification of defendant).
Murdock also claims that his constitutional rights were violated when the police used impermissibly suggestive identification procedures when obtaining Faust’s identification. The police showed Faust a single photograph of an individual, taken during the robbery of Twin City Federal, and informed Faust that this man had robbed at least one other bank. Murdock correctly points out that single photograph arrays are considered impermissibly suggestive in the Eighth Circuit. Ruff v. Wyrick, 709 F.2d 1219, 1220 (8th Cir.1983). However, since we have already determined that Faust’s identification was reliable under the totality of the circumstances, Murdock’s constitutional rights were not violated by this procedure.
B.
Murdock next argues that the district court’s refusal to grant him a separate trial for the different robbery counts forced him to incriminate himself in violation of the fifth amendment. Murdock claims that by not severing the counts, he was required to present evidence of the Wisconsin robbery to defend himself against the Minneapolis First Star robbery. As a threshold matter, we note that the Eighth Circuit grants district courts wide discretion in ruling on motions for severance. See United States v. Mendoza, 876 F.2d 639 (8th Cir.1989). Consequently, we review the district court’s refusal to sever Murdock’s counts under an abuse of discretion standard. Since the separate counts of Murdock’s indictment covered robberies carried out over a short period of time and since all five robberies were performed using a similar modus operandi, it was not unreasonable for the district court to refuse to sever the counts. Furthermore, since Murdock had options available to him other than presenting evidence of the Wisconsin robbery charge, he was not forced to incriminate himself.
C.
Murdock raises a claim of prosecutorial misconduct based on an alleged pretrial “dress rehearsal" held by the prosecutor to ensure favorable testimony from the eyewitnesses. Murdock refers to a pretrial meeting held by the prosecutor and an FBI agent to interview potential witnesses. Murdock argues that since the witnesses were presented with evidence that was ultimately shown to them at trial, the prosecutor was required to inform him of the details of this meeting, including what was shown and what the witnesses’ initial reactions to the evidence were. See United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1984). Murdock claims that he could have used such information to impeach the eyewitnesses on cross-examination. However, Bagley does not require the prosecution to reveal such information. Under Bagley, constitutional error only occurs when information withheld by the prosecutor results in an unfair trial. Bagley, 473 U.S. at 678, 105 S.Ct. at 3381-82. In this case, Murdock attempted to impeach the eyewitnesses by asking them about the “dress rehearsal” on cross-examination. Therefore, since the jury heard about Murdock’s “dress rehearsal” theory and since Murdock did not show that he had an unfair trial, this claim fails.
D.
We refuse to address Murdock’s ineffective assistance of counsel claim since it is more properly raised in a petition for habeas corpus. See United States v. Schmidt, 922 F.2d 1365, 1369 (8th Cir.1991) (per curiam). Even though the district court dismissed this claim in Murdock’s Rule 33 motion, we still believe that it would be better for the district court to develop a more complete record on this issue and, therefore, we dismiss this claim without prejudice.
E.
Murdock further claims that the police violated the fourth amendment when they searched and seized his belongings which were kept at the apartment of acquaintances. The government argues that Murdock did not have a reasonable expectation of privacy in the Kings’ apartment and that therefore Murdock does not have standing to raise a fourth amendment claim. Furthermore, the government argues that no fourth amendment violation occurred because the police asked for and received consent from the Kings to search the apartment and to take the items they found.
However, even if we assume that Murdock had a reasonable expectation of privacy, the police obtained the Kings’ consent to take Murdock’s clothing. While Murdock’s control over his possessions in the Kings’ apartment may be questionable, there is no doubt that the Kings had, at a minimum, common authority over these possessions and that they were capable of giving consent to the police to take them into custody. See United States v. Matlock, 415 U.S. 164, 170-71, 94 S.Ct. 988, 992-93, 39 L.Ed.2d 242 (1974) (“consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared”).
P.
Finally, Murdock claims that the police violated the fourth amendment in their initial encounter with him because they seized him without reasonable suspicion. The government argues that the initial encounter was justified by probable cause and was therefore well within the bounds of the fourth amendment.
Shortly after the robbery of Norwest Midland Bank on September 5, Special Agent Fossum of the BCA saw Murdock riding in a Lincoln Continental. The car caught Fossum’s attention because of its erratic driving pattern. When Fossum approached the car, he saw Murdock counting a considerable amount of ten and twenty dollar bills. Fossum made note of the car’s vanity license plates (“DAVID 0”) and tried to follow the car. Because of the traffic, Fossum lost sight of the car. Fos-sum then reported the incident to the FBI, stating that he believed that the car had been used in the robbery of the Norwest Midland Bank. Approximately fourteen hours later, Officer Cha sighted the Lincoln Continental described by Fossum. In addition to Fossum’s description of the car, Officer Cha had a surveillance photo from the Norwest Midland Bank robbery. He compared the robber in the photo with the passenger in the Lincoln Continental and concluded that they were the same person. Based on this information, Officer Cha had probable cause to stop the Lincoln Continental and take Murdock into custody. See United States v. Marin-Gifuentes, 866 F.2d 988 (8th Cir.1989). Therefore, Mur-dock’s fourth amendment claim fails.
III.
For the foregoing reasons, Murdock’s conviction on all counts is affirmed.
. The Honorable Edward J. Devitt, Senior United States District Judge for the District of Minnesota.
. Ms. Asuncion testified that she thought Mur-dock "might be" the robber, but could not "positively say.”
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_genapel2 | I | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
MITCHELL v. NELSON et al. (two cases). In re LOUCKES.
(Circuit Court of Appeals, Fourth Circuit.
January 11, 1927.)
Nos. 2532, 2543.
1. Chattel mortgages <©=>196 — In Maryland unrecorded chattel mortgages were void against subsequent creditor without notice, and he could acquire superior lien.
Under law of Maryland, where bankrupt’s creditor had no knowledge of prior chattel mortgages having legal status of unrecorded incumbrances because recorded in wrong counties, they w.ere void as to him, and he could by judgment and execution or by attachment acquire lien superior to mortgage liens, though he knew of mortgages when he began legal proceedings.
2. Chattel mortgages <©==153 — Holders of prior unrecorded' chattel mortgages and subsequent creditor without notice, who took mortgage with notice, held entitled to share ratably.
Where ■ bankrupt’s creditor, when he became such, had no knowledge of two prior chattel mortgages having status of unrecorded incumbrances because recorded in wrong counties, but learned thereof before he took chattel mortgage, held that, as all three mortgagees were simple contract creditors, they were, as between themselves, entitled to share ratably in proceeds of mortgaged property.
3. Bankruptcy <©=>440 — Adjudication awarding proceeds of property to prior unrecorded incumbrancers to exclusion of subsequent creditor without notice held reviewable by appeal, and not petition to revise.
Adjudication awarding proceeds on sale of property to holders of prior unrecorded chattel mortgages to exclusion of subsequent creditor without notice, who took chattel mortgage with notice, held reviewable by appeal, and not by petition to revise, where review proceedings were commenced by such creditor before amendatory Bankruptcy Act of 1926 (44 Stat. 662) became effective.
On Petition to Superintend and Revise, in Matter of Law, Proceedings of the District Court of the United States for the District of Maryland, at Baltimore, in Bankruptcy; Morris A. Soper, Judge.
Appeal from the District Court of the United States for the District of Maryland, at Baltimore, in bankruptcy'; Morris A. Soper, Judge.
In the matter of Frank I. Louekes, bankrupt, in which Norman T. Nelson was appointed trustee in bankruptcy. On petition of Guy K. Mitchell, executor of Annie W. Mitchell, deceased, to superintend and revise in matter of law, and on appeal from, proceedings of the District Court awarding proceeds of sale of propex*ty to West Baltimore Bank and another to the exclusion of petitioner.
Petition to revise dismissed. Decree reversed and remanded.
Charles S. Hayden, of Baltimore, Md., for petitioner and appellant.
Clarence A. Tucker, of Baltimore, Md. (Knapp, Tucker & Thomas, Jacob F. Mux*bach, and Wendell D. Allen, all of Baltimore, Md., on the brief), for respondents and appellees.
Before WADDILL, ROSE, and PARKER, Circuit Judges.
ROSE, Circuit Judge.
Upon a petition filed February 16,1925, Frank I. Louekes was on that date adjudicated a bankrupt. Among his assets were a crane and a steam shovel, both covered by a duly executed and recorded chattel mortgage to one Mitchell. This mortgage dated and recorded on September 18, 1924, secured a debt of $1,760.40 contracted between February 29 and May 14, 1924. On the 16th of March, 1923, the bankrupt had mortgaged the crane and other property to the West Baltimore Bank, and on the 28th. of February 1924, in like fashion he mortgaged the shovel to the Fidelity Trust Compaq ny. These last two mortgages were recorded in the wrong county and had the legal status of unrecorded incumbrances. When Mitchell became a creditor of the bankrupt, he was in entire ignorance of these instruments, but he-learned of their existence just before he took his own mortgage.
By agreement the crane and shovel were sold by the trustee in bankruptcy. Neither of them brought enough to satisfy the unrecorded mortgage upon it and the net proceeds of' both together did not equal the balance due-on that to Mitchell. The referee and the District Court held that the trustee in bankruptcy was not entitled to any of the money-coming from either of them because the mortgage to Mitchell had been made and recorded more than four months before the filing of the petition in bankruptcy. He was awarded the proceeds of .such property as was covered by either of the unrecorded mortgages but was not mentioned in that to Mitchell because, as he represented creditors who had trusted the bankrupt, without having any notice of the unrecorded instruments, his rights were not affected by them. It was, however, adjudged that the mortgagees in them should be preferred to Mitchell because when he took his mortgage, he knew of the existence of the other two. In substance, it was ruled that while the mortgage to Mitchell gave him nothing, it was effectual to take from the trustee money which would otherwise have gone to him.
It was thought that this somewhat peculiar result was required by the Maryland decisions and especially by the comparatively recent ease of Roberts v. Robinson, 141 Md. 37, 118 A. 198. In it a bankrupt had entered into an unrecorded agreement with Robinson. This agreement the court construed to be at once a conditional sale of cans with reservation of title to them and the creation of a lien upon whatever the bankrupt put into them. In either aspect, it was held to be altogether ineffectual as against the trustee in bankruptcy representing subsequent creditors. The proceeds of the sale of the cans and their contents amounting to some $9,000, would therefore have gone to him had there been nothing in the case other than this unrecorded agreement. It so happened, however, that after its execution, and with the knowledge of its existence, and before the bankruptcy, Roberts actually advanced some $8,500 to the bankrupt and took actual possession of the cans and their contents ás security therefor. As the loan was for present consideration, it was said it was good as against the trustee in bankruptcy, but that, as Roberts knew of the prior agreement when he made it, he would not be allowed to profit by what the law said was his fraudulent act. It was consequently ruled that, while his advance of $8,500 was to that amount effectual to defeat the claim of the trustee, it profited him nothing as against Robinson.
In point of fact, the Roberts advance of $8,500 was treated as having, so far as it went, made good against the world Robinson’s otherwise void lien, and the latter was held entitled to the proceeds of the canned goods in which, but for it, he would have had the rights of an unsecured creditor only. The sum of less than $500, which represented the difference between the value of the cans and their contents and the advance of Roberts, was all that was allotted to the trustee.
In the instant ease, not only has the trustee refrained from appealing, but he has expressly disclaimed all interest in the controversy. We intimate no opinion as to whether he was or was not well advised in so doing, or as to what we should have held his rights to have been had he here challenged the decree below. Under the circumstances our review is limited to the relative pretensions of Mitchell and of the holders of the unrecorded instruments. The position of Mitchell differs from that of Roberts in the case referred to, in that, when Roberts made his advance, he knew of Robinson’s prior equitable lien. When the bankrupt became indebted to the former, he knew nothing of these prior papers, and under the law of Maryland they were void as to him. Nelson v. Hagerstown Bank, 27 Md. 52; Carson v. Phelps, 40 Md. 73; Sixth Ward Building Association v. Willson, 41 Md. 506; Dyson v. Simmons, 48 Md. 209; Pfeaff v. Jones, 50 Md. 263; Stanhope v. Dodge, 52 Md. 485; Brown v. Maryland Mining & Manufac. Co., 55 Md. 547; Nally v. Long, 56 Md. 567; Hoffman v. Gosnell, 75 Md. 577, 24 A. 28; Textor v. Orr, 86 Md. 392, 38 A. 939; Davis v. Harlow, 130 Md. 165, 100 A. 102; Roberts v. Robinson, supra. By judgment and execution thereon, or by process of mesne attachment, if circumstances justified, he could have acquired a lien upon the property covered by the prior mortgages, superior to any which their holders could assert, although at the time he began legal proceedings he knew of them. Pfeaff v. Jones, supra; Brown v. Maryland M. & M. Co., supra.
Why, then, might he not secure by mortgage rights which the courts would have given him for the asking ? Because he could not get a mortgage unless the bankrupt gave him one, and that was something which both he and the bankrupt then knew the latter had no moral right to give. However ineffective the prior mortgages were as against Mitchell, they were binding on the conscience of the man who had executed and delivered them, and Mitchell could not profit by the bankrupt’s breach of faith. 2 Pomeroy’s Equity Jurisprudence, § 688. Does it follow that the decree below was right? We think not. Mitchell, it is true, took nothing by his mortgage, but we do not see that he lost anything by it. Before it was given him, the unrecorded mortgages were void as to him. As far as he was concerned their holders, like himself, were simple contract creditors, and, if he was the only other person entitled to share in the proceeds of the mortgaged property, as the trustee concedes he is, such proceeds would have been distributed among the mortgagees and Mitchell in proportion to their respective claims. We see no reason why the same rule should not now apply. To hold otherwise would be, not only to set aside the mortgage to Mitchell as we do, but to forfeit that to which, but for it, he was entitled.
It follows that Mitchell, to the extent of his claim, after crediting upon it whatever he has received from the property mortgaged to him and not covered by either of the prior mortgages, should participate ratably with the prior mortgagees in the net avails of the crane and the shovel. The sum going to him should be deducted proportionately from the net proceeds of the crane and the shovel respectively. The balance remaining of each should be paid to the holder of the unrecorded mortgage upon the article from which it was derived.
The proceedings to secure a review were begun before the going into effect of the amendatory Bankruptcy Act of 1926 (44 Stat. 662). Mitchell has brought his ease before us both by petition to superintend and revise and by appeal. The latter appears to us to be the proper remedy. It follows that the petition to superintend and revise, in case No. 2532 on our docket, will be dismissed, with costs, and in No. 2543 the decree below will be reversed, with costs, and the cause remanded for further proceedings in accordance with this opinion.
Case No. 2532, dismissed.
Case No. 2543, reversed.
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_state | 54 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
TOBIN v. PENNSYLVANIA R. CO.
No. 7028.
United States Court of Appeals for the District of Columbia.
Decided Oct. 24, 1938.
Rossa F. Downing, Thomas F. Gowen, and Hilda M. Jackson, all of Washington, D. C., for appellant.
F. D. McKenney, J. S. Flannery, G. B. Craighill, and R. A. Bogley, all of Washington, D. C., for appellee.
Before GRONER, Chief Justice, and MILLER and VINSON, Associate Justices.
Writ of certiorari denied 59 S.Ct. 488, 83 L.Ed. —.
MILLER, Associate Justice.
Annie L. Tobin, appellant herein, declared against the Pennsylvania Railroad Company for an injury suffered by stepping into a space between the station platform and the platform of a car'on a train operated by appellee out of the Thirtieth Street Pennsylvania Station in Philadelphia. 'The theory of her case, as set out in two counts, is that appellee negligently constructed and maintained its station by permitting to exist a space which was unusual and unnecessary, and that appellee was guilty of negligence in creating and maintaining a dangerous condition without providing a “guard, sign, warning or suggestion of any kind” that such condition existed. The lower court directed a verdict for appellee upon the conclusion of appellant’s evidence, and this appeal is from the judgment on the directed verdict.
The law applicable to the case, so far as it concerns the standard of conduct required of the parties, is the law of the place of injury, hence, the law'of Pennsylvania; but the application of the standard must be made according to the law of the forum for that is a procedural matter. Consequently, the question whether there is sufficient evidence to take' the case to the jury must be determined according to the law of the District of Columbia.
The rule applicable in the District of Columbia on a motion for a directed verdict in an action founded upon negligence, is that the; evidence must be construed most favorably to the plaintiff; to this end he is entitled to the full effect of every legitimate inference therefrom; if upon the evidence, so considered, reasonable men might differ, the case should go to the jury; if, on the other hand, no reasonable man could reach a verdict in favor of the plaintiff, the motion should be granted; a mere scintilla of evidence is not sufficient; the question is not whether thére is any evidence, but whether there is any upon which a jury can-properly proceed to find a verdict for the party upon whom the onus of proof is imposed ; the burden being upon the- plaintiff to establish the negligence and injury alleged, if the evidence fails adequately to. support either element, the motion should be granted.
The evidence, most favorably construed in favor of appellant, was that she was a woman sixty-four years of age, in good health prior to the accident, weighing in the neighborhood of 175 pounds; she had ridden on a train only once before in her life and was unfamiliar with the Thirtieth Street Station of appellee railroad company in Philadelphia, where the accident occurred ; she was much excited by the experience ; she was accompanied on this occasion by four companions, two of whom preceded her onto the train; the floor of the platform station was on a level with the platform of the train, permitting passengers to step directly from the floor of the station to the floor of the car vestibule; the station was crowded at the time of the accident, the Democratic National Convention then being in session at Philadelphia; appellant’s view of the space between the station platform and the vestibule platform may have been obstructed by those who were preceding her onto the train; the space between the station platform and the train was from five to twelve inches in width; it was large enough to permit her foot to go into the aperture, though she was wearing a shoe ten inches in length, and it was large enough so that she fell clear to her hip, her other leg being outstretched on the station platform and the upper part of her body thrust forward into the vestibule of the car over her suitcase; she was seriously injured, probably permanently, as a result of the accident; the scene of the accident was in a subway, three flights of stairs down from the street level; there was no daylight, the only illumination being from a few electric lights near the ceiling; there were no lights along the place where the passengers entered the coaches; there was only one representative of the railroad company near at the time of the accident and he did not see it happen; several minutes elapsed before the representative of the railroad company saw appellant in the hole and helped her out; no warning of any kind was given by any representative of the railroad company. It should be noted also as regards the matter of warning that the following allegation appears in appellee’s plea filed by it as defendant in the lower court:
“ . . . defendant admits that there was no guard or sign calling attention to the space between said floor and platform, but denies that there was any duty on its part to provide a guard, sign, warning or suggestion with respect thereto and further says that the attention of plaintiff and of other passengers was directed to the existence of such space by defendant’s employees admonishing them to watch their step; . . . ”
This affirmative allegation suggests a recognition by appellee of a dangerous condition, and voluntary assumption of a duty to protect its passengers therefrom. The testimony of appellant’s witnesses challenged the allegation and the only evidence upon the point contradicted it flatly. See Altemus v. Talmadge, 61 App.D.C. 148, 151, 58 F.2d 874, 877, certiorari denied, 287 U.S. 614, 53 S.Ct. 16, 77 L.Ed. 533.
The standard of care applicable in cases arising out of alleged negligence of railroad companies has been stated by the Supreme Court of Pennsylvania in Palmer v. Warren Street Ry. Co., 206 Pa. 574, 581, 56 A. 49, 51, 52, 63 L.R.A. 507, as follows:
“ * * * More is required of a common carrier than mere reasonable precaution against injuries to passengers and care that its cars and appliances are to be measured by those ‘in known general use.’ While the law does not require the utmost degree of care which the human mind is capable of imagining, it does require that the highest degree of practical care and diligence shall be observed that is consistent with the mode of transportation adopted ; and cars and appliances are to be measured by those which have proved by experience to be the most efficacious in known use in the same business. The rule upon this subject, as laid down in Meier v. Pennsylvania R. Co., supra [64 Pa. 225, 3 Am.Rep. 581], and which should have been followed by the court in answering the point, is: ‘The utmost care and vigilance is required on the part of the carrier. This rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted. Railway passenger carriers are bound to use all reasonable precautions against injury of passengers; and these precautions are to be measured by those in known use in the same business, which have been proved by experience to be efficacious. The company is bound to use the best precautions in known practical use. That is the rule; the best precautions in known practical use to secure the safety of the passengers; but not every possible preventive which the highest scientific skill might suggest.’ ”
The rule as applied in the District of Columbia has been stated by this court in a number of cases; of which the following are examples: Capital Traction Co. v. Copland, 47 App.D.C. 152, 159:
“* * * Common carriers of passengers, like the defendant, are bound-to exercise extraordinary vigilance added by the highest skill for the purpose of protecting their passengers against injury resulting from defects in ways or instrumentalities used by the carriers. (Pennsylvania Co. v. Roy, 102 U.S. 451, 26 L.Ed. 141, 10 Am.Neg.Cas. 593.) They are bound to anticipate what passengers would naturally do under circumstances such as those in which tViP nlnintiff iri-prl ”
Great Falls & Old Dominion R. Co. v. Hill, 34 App.D.C. 304, 312, certiorari denied 216 U.S. 619, 30 S.Ct. 574, 54 L.Ed 640:
“ * * * It is the duty of a carrier, as stated in another instruction given at the request of plaintiff, to exercise the highest practicable degree of care for the safety of its passengers, not_ only in the matter of carriage, but also in respect of means for getting on and off its cars. Washington & G. R. Co. v. Harmon’s Adm’r (Washington & G. R. Co. v. Tobriner), 147 U.S. 571-580, 13 S.Ct. 557, 37 L.Ed. 284-288; Warner v. Baltimore & O. R. Co., 168 U.S. 339-348, 18 S.Ct. 68, 42 L.Ed. 491-497; * * *»
If the aperture into which appellant fell was larger than necessary; if the appellee should have maintained a guard at the point to warn passengers and failed to do so; if the station at that point was inadequately lighted; if a crowd of people present added to the situation an element of unusual danger; and if all these elements existed in combination, a jury composed of reasonable men could properly have found that appellee was negligent in that it failed to measure up to the standard of care required of it under the circumstances.
In its charge to the jury the lower court stated that no negligence, on the part of appellee had been shown and upon that ground granted appellees motion for a directed verdict, which motion was predicate,d not onl7 on the contention that no negligence on the part of appellee had been s,hown’ that the evidence showed that *e accident and injury resulted solely f.,rom, her own negligence. The refusal of the lower court * char£e on the Iatter point was proper. Under the circumstances °f the Presel7t case, the whole question of due <:are and conti lbutory negligence was one for the jury and we think that the evidence upon that question — most favorably construed in favor of appellant under the rule — was susceptible of different conelusions by reasonable men. In the case of Bloomer v. Snellenburg, 221 Pa. 25, 28, 69 A. 1124, 21 L.R.A.,N.S., 464, 466, the Pennsylvania Supreme Court said:
“* * * It may be that the plaintiff, while looking at the goods around her rather than at the floor at her feet in search of obstacles, was not using the caution which reasonably prudent persons would be expected to use under the circumstances, but that was a question of fact for the jury, and not of law for the court.”
r„ „ , , [9,10] Appellee contends that the question, whether the existence of a space between the station platform and passenger cars constitutes negligence on the part of the carrier, is a matter of law and not a question of fact for the jury, and cites a number of New York cases in support of that proposition. Appellant cites a number of cases from the courts of Illinois and Missouri to the contrary. Our attention has been called to no legislative enactment or decision which determines the question either for the District of Columbia or the State of Pennsylvania. The American Law Institute Restatement of the Law of Torts states the applicable rule as follows (§ 285): “The standard of conduct of a reasonable man . . . (b) may be applied to the facts of the case by the trial judge or the jury, if there be no such legislative enactment or judicial decision” and in the Comment which follows the Section quoted it is said:
“e. Function of trial court. If there is no legislative enactment covering the circumstances of a particular case and there is no decision of an appellate court which establishes whether particular conduct is or is not negligent, a trial judge may withdraw a case from a jury whenever the jury could not reasonably find the defendant’s conduct to be negligent.”
As this is a question of procedure it should be determined according to the law of the forum in any event, The. rule stated in the Restatement of the Law of Torts is almost identical in terms with the general rule oFthe District of Columbia concerning motions for directed verdicts. See Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380. While it is true that there must be some lateral space between station platforms and cars, because of the oscillation of the cars, whether the size of such a space under all the circumstances of the present case constituted negligence on the part of appellee was a question upon which reasonable men could differ. In our opinion, therefore, this question was one which should have gone to the jury.
Appellant assigned as error the exclusion, by the lower court, of evidence concerning the propriety of providing a bridge or an apron across the space into which she fell. Objection to appellant’s questions on this point were sustained on the theory that it was improper for her to introduce such evidence unless she first proved the existence of a general practice of providing such bridges or aprons. The ruling of the lower court upon this question was correct. See Kilbride v. Carbon Dioxide & Magnesia Co., 201 Pa. 552, 556, 557, 51 A. 347, 348, 88 Am.St.Rep. 829.
Reversed.
Paxson v. Davis, 62 App.D.C. 146, 65 F.2d 492, certiorari denied, 290 U.S. 643, 54 S.Ct. 61, 78 L.Ed. 558; Rubenstein v. Williams, 61 App.D.C. 266, 61 F.2d 575; Restatement, Conflict of Laws (1934) §§ 378, 379, 595. See, also, Cuba R. Co. v. Crosby, 222 U.S. 473, 32 S.Ct. 132, 56 L.Ed. 274, 38 L.R.A., N.S., 40; Young v. Masci, 289 U.S. 253, 258, 53 S.Ct. 599, 77 L.Ed. 1158, 88 A.L.R. 170; Benton v. Safe Dep. Bank of Pottsville, 255 N.Y. 260, 265, 174 N.E. 648, 649.
Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271; Savannah, Florida & Western Ry. Co. v. Evans, 115 Ga. 315, 41 S.E. 631, 90 Am.St.Rep. 116; Restatement, Conflict of Laws (1934) § 585.
Restatement, Conflict of Laws (1934) §§ 380, 594, 595. Of. § 380(2).
See Jackson v. Capital Transit Co., 69 App.D.C. 147, 99 F.2d 380, and authorities there cited.
If the law of the forum makes it a condition of maintaining an action that the party bringing the action show himself free from fault, the condition must be fulfilled, although there is no such requirement in the state where the cause of action arose. Restatement, Conflict of Laws (1934) § 601. However, the law of the District of Columbia does not require either allegation or proof of absence of fault. That is a matter of defense. Atchison v. Wills, 21 App.D.C. 548. See Rule 8(c), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.
Pennsylvania R. Co. v. Rogers, 3 Cir., 244 F. 76; Davis v. Olson, 8 Cir., 298 F. 921.
Mosheuvel v. District of Columbia, 191 U.S. 247, 24 S.Ct. 57, 48 L.Ed. 170; Walker v. Dante, 61 App.D.C. 175, 177, 58 F.2d 1076, 1078; Bloomer v. Snellenburg, 221 Pa. 25, 69 A. 1124, 21 L.R.A., N.S., 464.
Cf. Twersky v. Pennsylvania R. Co., 261 Pa. 6, 104 A. 63.
Singer v. Messina, 312 Pa. 129, 167 A. 583, 89 A.L.R. 1271; Rastede v. Chicago, St. P., M. & O. Ry. Co., 203 Iowa 430, 212 N.W. 751; Ferguson v. Harder, 141 Misc. 466, 252 N.Y.S. 783.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
sc_certreason | L | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
ADAMS et al. v. FLORIDA POWER CORP. et al.
No. 01-584.
Argued March 20, 2002 —
Decided April 1, 2002
John G. Crabtree argued the cause for petitioners. With him on the briefs was Edward L. Scott.
Glen D. Nager argued the cause for respondents. With him on the brief were Daniel H. Bromberg, Rodney E. Gaddy, and Nancy F. Reynolds.
Briefs of amici curiae urging reversal were filed for AARP et al. by Laurie A. McCann, Daniel B. Kohrman, Thomas W Osborne, and Melvin Radowitz; for the Cornell University Chapter of the American Association of University Professors et al. by Michael Evan Gold; and for the National Employment Lawyers Association by Cathy Ventrell-Monsees.
Briefs of amici curiae urging affirmance were filed for the Atlantic Legal Foundation by Martin S. Kaufman; for the Chamber of Commerce of the United States by Mark S. Dichter, Stephen A Bokat, and Joshua A. Ulman; for the Equal Employment Advisory Council by Ann Elizabeth Reesman and Rae T. Vann; and for the Pacific Legal Foundation by John H. Findley.
Alfred W. Blumrosen, Ruth G. Blumrosen, Archibald J. Thomas III, and Russell S. Bohn filed a brief for the Academy of Florida Trial Lawyers as amicus curiae.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
It is so ordered.
Question: What reason, if any, does the court give for granting the petition for certiorari?
A. case did not arise on cert or cert not granted
B. federal court conflict
C. federal court conflict and to resolve important or significant question
D. putative conflict
E. conflict between federal court and state court
F. state court conflict
G. federal court confusion or uncertainty
H. state court confusion or uncertainty
I. federal court and state court confusion or uncertainty
J. to resolve important or significant question
K. to resolve question presented
L. no reason given
M. other reason
Answer: |
songer_treat | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Charles E. HUBBARD, Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.
No. 88-1390.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 7, 1988.
Decided April 12, 1989.
Geoffrey J. O’Conner argued, Garden City, N.Y., for petitioner-appellee.
Gary R. Allen, Acting Chief, U.S. Dept, of Justice, Appellate Section Tax Div., Janet S. Kimball argued, William S. Rose, Jr., Jane S. Kimball, David English Carmack, U.S. Dept, of Justice, Tax Div. Appellate Section, Joseph T. Chalhoub, Washington, D.C., for respondent-appellant.
Before KRUPANSKY and WELLFORD, Circuit Judges, and JOINER , Senior District Judge.
The Honorable Charles W. Joiner, United States District Judge for the Eastern District of Michigan, sitting by designation.
PER CURIAM.
During each of the years 1976, 1977, 1978, and 1979, Charles Hubbard filed federal income tax returns in which he held a partnership interest in a tax shelter. He claimed loss deductions and investment credits with respect to the shelter on each return. After the returns were filed with the Internal Revenue Service (IRS), they were audited by the District Director in Detroit, Michigan.
Section 6501(a) of the I.R.C. generally requires the IRS to assess any deficiency in tax within three years after the return for the year in question has been filed. The limitations period may be extended, however, by agreement. In connection with the audit of his 1976, 1977, 1978, and 1979 federal income tax returns, Hubbard executed Form 872-A agreements (Special Consents to Extend the Time for Assessment of Tax) for each of the returns in question. These forms, described as “open-ended” waivers, were effective to extend the statute of limitations indefinitely until revoked by either the taxpayer or the IRS. On each form, Hubbard listed his address as “950 N. Cass Lake Road, Suite 109, Pontiac, Michigan 48054.” The Form 872-A agreements were limited in scope, providing for an extension of the time for assessing only those tax deficiencies resulting from adjustments to items related to partnership income and loss.
The forms covering Hubbard’s 1976 and 1977 taxable years provided that any such additional taxes
may be assessed on or before the 90th (ninetieth) day after: (a) the Internal Revenue Service office considering the case receives Form 872-T, Notice of Termination of Special Consent to Extend the Time to Assess Tax, from the taxpayers); or (b) the Internal Revenue Service mails Form 872-T to the taxpayer(s); or (c) the Internal Revenue Service mails a Notice of Deficiency for such period(s). However, if a notice of Deficiency is sent to the taxpayer(s), the time for assessing the tax for the period(s) stated in the Notice of Deficiency will be further extended by the number of days the assessment was previously prohibited, plus 60 days.
The forms covering Hubbard’s 1978 and 1979 taxable years contained slightly revised language, and provided that any such additional taxes:
may be assessed on or before the 90th (ninetieth) day after: (a) the Internal Revenue Service office considering the case receives Form 872-T ... from the taxpayer(s), or (b) the Internal Revenue Service mails Form 872-T to the tax-paers(s); or (c) the Internal Revenue Service mails a Notice of Deficiency for such period(s), except that if a Notice of Deficiency is sent to the taxpayer(s), the time for assessing the tax for the period(s) stated in the Notice of Deficiency will end 60 days after the period during which the making of an assessment was prohibited.
Each of the forms also stated that “[t]his agreement ends on the earlier of the above expiration date or the assessment date of an increase in the above tax” and that “[t]his agreement will not reduce the period of time otherwise provided by law for making an assessment.” Neither Hubbard nor the IRS executed a Form 872-T termination notice with respect to any of the waivers in question.
On November 13, 1985, the IRS mailed a notice of deficiency of a total of more than $31,000 to the taxpayer covering his 1976 through 1979 returns. By inadvertence, the IRS sent the notice to the taxpayer’s Cass Lake Road address, the same address that had been listed on all of the Form 872-A agreements which Hubbard had executed. By November 1985, however, Hubbard had moved and had changed his address to “P.O. Box 809, Pontiac, Michigan 48056,” the address used on his 1983, 1984, and 1985 income tax returns, and “his last known address.”
The taxpayer never received the original of the November 1985 notice of deficiency. Accordingly, he failed to file a timely petition in the Tax Court contesting the deficiencies; the IRS then assessed the taxes and penalties imposed, and sought to collect them in April 1986. It was only then that Hubbard became aware that an assessment had been made and contacted the Detroit District Director’s office where he spoke with Agent Clink who informed him about the issuance of the November 1985 notice of deficiency.
Clink then forwarded a copy of the deficiency notice to the taxpayer’s correct post office box address, “his last known address.” Hubbard received this copy several days later, and on June 26, 1986, he filed a petition with the Tax Court requesting a redetermination of these tax deficiencies. At the same time, he moved to dismiss the suit for lack of jurisdiction, claiming that the November 1985 notice had been invalid.
The Commissioner subsequently agreed that there could be no subject matter jurisdiction because the November 1985 deficiency notice was not a valid notice of deficiency under I.R.C. § 6212(b)(1), having neither been mailed to Hubbard’s “last known address” nor actually received by him in time to file a timely petition to contest the deficiencies in the Tax Court.
After the case was dismissed, the Commissioner mailed a new notice of deficiency to Hubbard at his correct address, dated March 31, 1987. The taypayer then filed a timely petition with the Tax Court, contesting the deficiencies asserted in the March, 1987 notice of deficiency, and also claimed that the Tax Court’s recent decision in Roszkos v. Commissioner, 87 T.C. 1255 (1986), was controlling, and that the statute of limitations barred assessment by IRS of the deficiencies. Specifically, Hubbard claimed that the Form 872-A agreements had terminated in May 1986 when he first became aware of the purported November 1985 deficiency notice, and that the statute of limitations expired 90 days later, prior to the issuance of the March 31, 1987 notice of deficiency now in controversy.
The Commissioner opposed this motion, taking the position that when a notice of deficiency is mailed to the wrong address and is not actually received in time to permit the taxpayer to file a timely petition with the Tax Court, it is considered to be void and to impose no obligation on the taxpayer, regardless of whether or not he subsequently becomes aware of it. The Commissioner also argues that in executing the Form 872-A agreements, the parties must be deemed to have intended that only a valid notice of deficiency would operate to terminate the agreed upon period for assessment. Because the November 1985 notice of deficiency was not valid, the Commissioner concluded that the notice which had been mailed to the taxpayer’s correct address on March 81, 1987 was issued within the limitations period as extended by the Form 872-A agreements.
On November 23, 1987, the Tax Court issued a memorandum decision, Hubbard v. Commissioner, 54 T.C.M. (CCH) 1121 (1987), which agreed with Hubbard that the construction of the Form 872-A agreements was controlled by its decision in Roszkos. It therefore held that the November 1985 deficiency notice was effective to terminate the taxpayer’s open-ended consents or waivers, and that the limitations period expired 90 days thereafter. Accordingly, the Tax Court held that the limitations period had run by the time the IRS mailed the second, valid notice of deficiency in March 1987. The Tax Court entered a decision granting the taxpayer’s motion for summary judgment and determining that no deficiencies in his tax existed for the years 1976 through 1979. This decision is the subject of this appeal by the Commissioner.
The Tax Court’s interpretation of the Form 872-A agreements presents a question of law subject to de novo review by this court. See Policy v. Powell Pressed Steel Co., 770 F.2d 609, 612 (6th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986). The instant case is very similar to Roszkos v. Commissioner, 87 T.C. 1255 (1986), rev’d, 850 F.2d 514 (9th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1121, 103 L.Ed.2d 183 (1989). The Court of Appeals for the Ninth Circuit, however, rejected the conclusion of the Tax Court in 1988.
In Roszkos, the court discussed the case of Mulvania v. Commissioner, 769 F.2d 1376 (9th Cir.1985), which addressed the question of whether the notice requirement of § 6212 was satisfied when a taxpayer learned of, but did not receive, a misaddressed notice of deficiency. The Mulvania court held that a misaddressed notice of deficiency, which is returned to the IRS undelivered, is “null and void.” The only exception was a situation in which the taxpayer acknowledges the notice by timely petitioning the Tax Court for redetermination of the deficiency, thereby rendering harmless the IRS's mailing error. Id. at 1379-81.
In Roszkos, and in the instant case, the IRS’s error in sending a misaddressed notice was not harmless because the taxpayers did not timely petition the Tax Court for redetermination of the deficiency asserted in that notice. There is nothing in either record to indicate that either taxpayer discovered, within 90 days, see I.R.C. § 6213, that notices of deficiency had been mailed to their former addresses. In Rosz-kos, the court held this lack of knowledge nullified the original notice. The Ninth Circuit concluded that “ ‘[RJegardless of the coincidence by which [the taxpayer] later came to know of its existence, the taxpayer’s actual knowledge did not transform the void notice into a valid one.’ ” Roszkos, 850 F.2d at 517 (quoting Mulvania, 769 F.2d at 1380-81).
The Ninth Circuit in Roszkos saw no reason to conclude that the Form 872-A reference to mailing a notice of deficiency was intended to include a misaddressed, undelivered, and unacknowledged letter which would not qualify as a notice of deficiency in any other context. Roszkos, 850 F.2d at 517-18.
We therefore hold that a notice of deficiency must comply with § 6212 in order to terminate a Form 872-A waiver. The [taxpayers’] contention that such a holding will deny them due process of law is both unfathomable and without merit. Because the notices mailed on December 31, 1981 did not comply with § 6212, the May 24,1982 assessment was invalid, the Form 872-A waiver did not terminate, and the statute of limitations for assessing the deficiency for the [taxpayers’] 1973 and 1974 tax years did not expire.
Id. at 518.
We agree with the rationale of the Ninth Circuit Court of Appeals in Roszkos. That court considered the basic function of a notice of deficiency — “to serve as a vehicle of notification” — and concluded that one “which does not satisfy the minimum statutory requirement for notice cannot reasonably be considered a notice of deficiency.” Id. at 517. The Form 872-A reference to mailing a notice of deficiency was intended to include only a notice that satisfies the statutory requirements and not “a misaddressed, undelivered, and unacknowledged letter which would not qualify as a notice of deficiency in any other context.” Id. at 518.
The Ninth Circuit held that since the mailing standard for a notice of deficiency is founded on the principle of actual notice and the reference to a notice of deficiency in Form 872-A was intended to adopt this standard, “a notice of deficiency must comply with § 6212 in order to terminate a Form 872-A waiver.” Id. We can find no principled basis for distinguishing Roszkos from the present case insofar as the notice of deficiency to terminate a Form 872-A consent should not depend on the fortuitous circumstance that the intended addressee may have learned of the mailing of a notice never received.
We accordingly REVERSE the decision of the Tax Court and REMAND for determination of the deficiency and interest.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
John H. NEWMAN and Claudia C. Newman, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
No. 551, Docket 89-4051.
United States Court of Appeals, Second Circuit.
Argued Dec. 11, 1989.
Decided Jan. 23, 1990.
R. Donald Turlington, New York City (Steven W. Laird, Stuart B. Katz, and Brown & Wood, New York City, on the brief) for appellants John H. Newman and Claudia C. Newman.
Pamela C. Berry, Atty., Dept, of Justice, Tax Div., Washington, D.C. (Shirley D. Peterson, Asst. Atty. Gen., Gary R. Allen and Ann B. Durney, Attorneys, on the brief) for appellee C.I.R.
Before TIMBERS, PIERCE and MINER, Circuit Judges.
TIMBERS, Circuit Judge:
Appellants John H. Newman and Claudia C. Newman (collectively “Newman”) appeal from a decision filed November 30, 1988, and entered January 17, 1989, in the United States Tax Court, Mary Ann Cohen, Judge, which determined a deficiency totaling $5,556 for the tax year 1982 in Newman’s federal income taxes. 56 T.C.M. (CCH) 748 (1988).
The appeal arises from an investment tax credit (“ITC”) that Newman claimed for his purchase of a tractor-trailer truck in 1982. The Commissioner of Internal Revenue (“Commissioner”) disallowed the credit. The Tax Court upheld the Commissioner’s determination, ruling that Newman leased the truck to a third party, Schultz Transit, Inc. (“Schultz Transit”), after he purchased it, and therefore was not entitled to claim the ITC. On appeal, Newman claims that the agreement in question was not a lease but an employment agreement between Newman as employer and Schultz Transit as independent contractor. The parties agree that the determination of tax liability turns on that question.
For the reasons which follow, we vacate the decision of the Tax Court and remand the case with instructions to enter a decision for appellants.
I.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
Schultz Transit is a corporation engaged in the trucking business. Prior to 1980, its business was limited to operating trucks it owned or leased. That year, it developed a plan that would allow it to expand operations without incurring the risks associated with ownership or leasing. The plan contemplated inviting investors to purchase trucks specified by Schultz Transit (Peter-bilt Model 362 cabover tractors and dual-axle Pine trailers). The investors would then agree to have Schultz Transit operate the trucks.
The plan called for Schultz Transit to collect the gross revenues for the trucks’ operation and subtract 21% of those revenues as compensation. That amount was to be subtracted whether or not the trucks turned a profit. In return, Schultz Transit was to operate the trucks to maximize profits in good faith, subject to its discretion to use them in a commercially reasonable manner. The investor-owners were to pay all operating expenses (fuel, maintenance and the like). Schultz Transit was to advance those costs and collect reimbursement from the gross revenues. If the revenues did not cover Schultz Transit’s compensation and the operating costs it laid out, the owners were to be personally liable for the deficit. The owners bore the risk of injury to third parties and their property. Schultz Transit bore the risk of injury to cargo carried on the trucks. The plan called for the owners to receive a monthly accounting of revenues and expenses.
Schultz Transit asked S-NY Management Corp. to draft the operating agreement and to act as managing agent for the investor-owners. S-NY was controlled by one Tom Beener (an attorney with whom the officers of Schultz Transit were familiar) and others. S-NY drafted the operating agreement and also drafted a management agreement. The parties to the latter were to be S-NY and the investor-owners. In exchange for managing the investments, the agreement called for S-NY to receive a fee. One significant feature of the management agreement was a pooling arrangement (eight investor-owners were necessary to make the plan operative), whereby gross revenues on the one hand and operating expenses on the other would be pooled and divided. Schultz Transit was not a party to that agreement.
Newman, an attorney (Claudia Newman is a party to this appeal only because she was a co-signer of the joint tax return), was attracted by S-NY’s private placement memorandum, dated October 14, 1982, which outlined the foregoing facts in greater detail. One of the elements of the agreement that he found attractive was that, according to S-NY, as an owner of a truck he would qualify for an ITC. While the law is clear that a non-corporate lessor of a truck would not be entitled to the credit under these circumstances, 26 U.S.C. § 46(e)(3) (1982), S-NY believed that the agreement between Newman and Schultz Transit would be one of owner-independent contractor, and therefore would allow Newman to claim the credit. The Tax Court found, and Newman concedes, that he was a full-time practicing attorney at all times relevant to this appeal, and that Schultz Transit exercised total day-to-day control of the truck throughout the life of the agreement.
Relying on the private placement memorandum, Newman signed the operating agreement with Schultz Transit and the corresponding management agreement with S-NY in December 1982. The term of the agreements was five years. Newman, however, was permitted to cancel them if he did not realize at least $5,037 in net profits in any three consecutive calendar months.
S-NY arranged financing on the truck, which cost about $80,000, through an unrelated party. The financing agreement, contained in a pre-printed form, referred to the parties as “lessor” and “lessee” and to the agreement as a “lease.” Schultz Transit was to pay the debt service out of Newman’s profits, and receive reimbursement for any shortfall.
The agreement did not result in the hoped-for profits. Newman, however, chose not to terminate the agreement immediately. He allowed a deficit totaling $7,500 to accrue until September 1985. At that point, he decided to exercise his option to terminate. Newman and Schultz Transit then decided to convert the agreement into a traditional lease. The debt Newman owed Schultz Transit was satisfied out of the lease fees.
Newman claimed an ITC on the truck, pursuant to the operating agreement, of $5,556 on his 1982 tax return. The Commissioner, believing that the credit was not applicable’ because of the nature of the agreement (i.e., a lease), issued a Notice of Deficiency. The Tax Court found that the Commissioner had correctly characterized the operating agreement as a lease, and confirmed the deficiency. Newman v. Commissioner, 56 T.C.M. (CCH) 748 (1988). This appeal followed.
The sole issue on appeal is whether the operating agreement is a lease or a contract between an employer and independent contractor. The parties concede that the issue of tax liability will turn on that determination.
II.
We turn first to the standard under which we review the decision of the Tax Court.
The Supreme Court has stated that “[t]he general characterization of a transaction for tax purposes is a question of law subject to review. The particular facts from which the characterization is to be made are not so subject.” Frank Lyon Co. v. United States, 435 U.S. 561, 581 n. 16 (1978). In other words, we review de novo the Tax Court’s ultimate determination, as a matter of law, that the agreement was a lease, and we review the factual findings underlying that determination under the “clearly erroneous” standard. Commissioner v. Duberstein, 363 U.S. 278, 291 (1960).
Since interpretation of the operating agreement is integral to the ultimate determination of liability, we reject the Commissioner’s contention that we may overturn the Tax Court’s interpretation only if it is clearly erroneous. We are led to that conclusion by the familiar principle that “ ‘the construction of written contracts ... is a question of law for the court and not one of fact for the jury.’ ” Meyers v. Selznick Co., 373 F.2d 218, 223 (2 Cir.1966) (Friendly, J.) (citation omitted); see also Eddy v. Prudence Bonds Corp., 165 F.2d 157, 163 (2 Cir.1947) (L. Hand, J.) (“appellate courts have untrammelled power to interpret written documents”), cert. denied, 333 U.S. 845 (1948).
III.
This brings us to a consideration of the merits.
(A)
The Tax Court correctly held that the form of the operating agreement was a contract between Newman as owner and Schultz Transit as independent contractor. Newman, supra, 56 T.C.M. at 757. The Tax Court went on to hold, however, that the form of the agreement should be disregarded and, further, that the agreement was in substance a lease. The Tax Court relied primarily on its findings that Schultz Transit exercised day-to-day control of the truck and that, while Newman would be responsible for losses, his risk was lessened by the pooling arrangement.
Like the Tax Court, we believe that, in reviewing a transaction for tax consequences, the substance of the agreement takes precedence over its form. Helverinq. v. Lazarus & Co., 308 U.S. 252, 255 (1939); DeMartino v. Commissioner, 862 F.2d 400, 406 (2 Cir.1988). That is only the beginning of the analysis. We have held in a tax-related context that “when a taxpayer chooses to conduct his business in a certain form, ‘the tax collector may not deprive him of the incidental tax benefits flowing therefrom, unless it first be found to be but a fiction or a sham.’ ” W. Braun Co. v. Commis sioner, 396 F.2d 264, 267 (2 Cir.1968) (citation omitted); see also Rosenfeld v. Commissioner, 706 F.2d 1277, 1282 (2 Cir.1983); Helvering v. Gregory, 69 F.2d 809, 810 (2 Cir.1934) (L. Hand, J.), aff'd, 293 U.S. 465 (1935).
While we exalt substance over form, we do not ignore the form. The touchstone in determining whether the form of an agreement should govern is the opinion of the Supreme Court in Frank Lyon, which held that agreements which were intended to have economic substance, as opposed to mere tax avoidance, should be given effect for tax purposes. 435 U.S. at 583-84. That opinion set forth several factors which are relevant to the present analysis.
The first factor inquires whether there is a legitimate non-tax business reason for the form; in other words, were the parties motivated at least in part by reasons unrelated to taxes? Id.; Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1549 (9 Cir.1987); Estate of Baron v. Commissioner, 798 F.2d 65, 72 (2 Cir.1986); Rice’s Toyota World, Inc. v. Commissioner, 752 F.2d 89, 91-92 (4 Cir.1985).
Applying Frank Lyon, the Tax Court held that, since Newman failed to prove that he was motivated by non-tax reasons, it was not bound to follow the form of the operating agreement. 56 T.C.M. at 759. As indicated above, we need not determine whether the Tax Court’s finding was clearly erroneous in order to reject its legal conclusion. In Frank Lyon, the party equivalent to Schultz Transit was a bank that sought to build an office building. For various reasons unrelated to taxes, the bank chose not to enter into a conventional mortgage. Instead, it entered into a sale leaseback agreement with Frank Lyon Co., with the latter acting as owner/lessor. Lyon clearly was motivated, at least in part, by tax considerations. 435 U.S. at 571-72. In view of these facts, the Court held that, as long as one party is motivated by non-tax considerations, even if it is not the taxpayer, the form of the agreement will satisfy this factor. Id. at 576.
There is ample evidence that Schultz Transit’s motivation was unrelated to tax purposes. For example, Eugene Schultz, the president of Schultz Transit, testified at trial that
“we decided to — what was the best decision for our company.... if we went to a straight lease, we’d have to put it on our balance sheet, which, in effect, is the same thing as owning it ... [the operating agreement] was the best decision for us to do for financial reasons for our company.”
The Tax Court failed to address the other Frank Lyon factors. Normally, we would remand the case to the Tax Court so that it could make findings of fact on them, but we need not do so where, as here, “the record permits only one resolution of the factual issue.” Pullman-Standard v. Swint, 456 U.S. 273, 292 (1982).
The second Frank Lyon factor requires that the agreement have non-tax “economic substance”. 435 U.S. at 583. We have construed that factor to require a “change in the economic interests of the relevant parties.” Rosenfeld, supra, 706 F.2d at 1282. For Newman, the primary substance was his liability for operating costs and his burden of the risk of operating losses — features absent in leases. Schultz Transit, in turn, was assured of at least recovering costs as a result of the agreement; the absence of a lease guaranteed that it would not lose money.
The remaining factors were not expressly stated as such in Frank Lyon, but were relied upon by the Court in reaching its decision. The Court found it relevant that the parties were independent of each other. 435 U.S. at 580. There is no question that Schultz Transit and Newman dealt at arm’s length. We find especially persuasive the fact that the parties could not have colluded for tax purposes. Only one ITC was available for the truck. If the agreement was a lease, the ITC belonged to Schultz Transit; if it was an employment arrangement, the ITC belonged to Newman. In effect, Newman bargained for the right to the ITC by assuming the risk of operating losses.
The final Frank Lyon factor requires that the parties not disregard the form of the arrangement. Id. at 582-83. The Commissioner placed great emphasis on Eugene Schultz’s testimony that he thought of the agreement as a type of lease. That testimony, however, is not dispositive of the issue. Mr. Schultz explained that he regarded the agreement as a lease only because the Interstate Commerce Commission regards all operating agreements concerning trucks as leases, 49 C.F.R. § 1057.2(e) (1988), and that he was uncertain of the proper characterization for tax purposes. Mr. Schultz admitted that he carried out his part of the bargain in compliance with the form of the operating agreement.
In view of the foregoing, we conclude that the form of the operating agreement chosen by the parties — a contract between an employer and an independent trucking contractor — is valid for tax purposes.
(B)
Our reading of § 46(e)(3) of the Internal Revenue Code of 19.54 (“IRC 1954”) (codified in 26 U.S.C. § 46(e)(3) (1982)), further supports the conclusion stated above. Section 46(e)(3) in relevant part provides that the ITC would be allowed to a non-corporate lessor like Newman only if:
“(A) the property subject to the lease has been manufactured or produced by the lessor, or
(B) the term of the lease (taking into account options to renew) is less than 50 percent of the useful life of the property, and for the period consisting of the first 12 months after the date on which the property is transferred to the lessee the sum of the deductions with respect to such property which are allowable to the lessor solely by reason of section 162 (other than rents and reimbursed amounts with respect to such property) exceeds 15 percent of the rental income produced by- such property.”
By its terms, this provision applies directly only when the non-corporate party already has been determined to be a lessor. On the instant appeal, the issue is whether Newman is a lessor or an employer. He concedes that, if the operating agreement is a lease, § 46(e)(3) would preclude him from claiming the ITC.
Since the text of § 46(e)(3) offers no direct guidance on the question whether Newman is entitled to the ITC, we turn to the legislative history for an indication of the factors entitling lessors or lessees to the ITC. The factor common to the usual § 46(e)(3) inquiry and to this appeal is risk of loss.
The legislative history is not a model of clarity on the subject. The relevant portion of the Report of the House Ways and Means Committee states that the ITC should be available if it applies to “a normal business transaction of the lessor rather than a passive investment entered into for the purpose of sheltering other income.” H.R.Rep. No. 92-533, 92d Cong., 1st Sess. 29 (1971), reprinted in 1971 U.S. Code Cong. & Admin.News 1825, 1844. That statement can be read in one of two ways. First, it can apply only to those parties engaged in their normal business. Second, it can apply to parties who shoulder the burden of risk of loss, rather than to those who merely seek to shelter income passively.
We conclude that the better reasoned approach is to focus on the risk of loss, which, in this case, rested with Newman. McNamara v. Commissioner, 827 F.2d 168, 170 (7 Cir.1987) (stressing “entrepreneurial risk”) (citing Freesen v. Commissioner, 798 F.2d 195, 199 (7 Cir.1986) (per curiam)). But see Owen v. Commissioner, 881 F.2d 832, 834 (9 Cir.1989) (rejecting McNamara analysis), cert. denied, 110 S.Ct. 1113 (1990); Connor v. Commissioner, 847 F.2d 985, 987-89 (1 Cir.1988) (same). This, we believe, is the only way, as a practical matter, to allow non-corporate (i.e., individual) taxpayers like Newman to take advantage of the ITC provision. Such investors may hardly be asked to change careers merely to claim an ITC. Moreover, we are mindful that Congress created the ITC in order to “stimulate the economy by encouraging the modernization and expanded use of capital equipment and machinery.” Yellow Freight System, Inc. v. United States, 538 F.2d 790, 794 (8 Cir.1976). Many opportunities for investment might be lost if the Commissioner’s inquiry were to turn on whether the claimant is “in the business” rather than on whether the claimant is genuinely risking his capital.
The Tax Court discounted Newman’s risk due to the pooling arrangement. True, the pooling arrangement eased Newman’s risk somewhat, but it did so only in relation to the other investors. As between Newman and Schultz Transit, Newman continued to bear the full risk of operating losses. Cf. Meagher v. Commissioner, 36 T.C.M. (CCH) 1091, 1094 (1977) (pooling arrangement does not shift risk under § 46(e)(3)).
• The Tax Court also relied heavily on Amerco v. Commissioner, 82 T.C. 654 (1984). In Amerco, the taxpayer (the parent company of U-Haul) rented trucks to the public. The trucks were purchased by third parties and leased to the taxpayer, who claimed the ITC on the trucks as a “pass-through” lessee. Id. at 679-82. While Amerco is superficially similar to the instant case, several key elements are distinguishable. First, the taxpayer in Amerco, not the Commissioner, claimed that the agreement was a lease, and the Tax Court explicitly gave “great weight to the intent of the parties.” Id. at 684. Second, the lessee truck company, not the lessor owners, bore the risk that operating expenses would exceed gross revenues. Id. at 680-81.
Finally, we reject the Tax Court’s reliance on the ICC’s definition of all operating agreements as leases. 49 C.F.R. § 1057.2(e) (1988). There is no indication whatsoever that the ICC considered the tax implications of its choice of label. Its choice therefore is not entitled to deference in this context. We also reject the Tax Court’s reliance on the fact that the pre-printed loan forms used the term “lease” rather than “employment agreement”. “Purely formal appellations do not matter, whether they cut for or against the Commissioner.” Freesen, supra, 798 F.2d at 200.
IV.
To summarize:
We vacate the decision of the Tax Court denying Newman the ITC of $5,556. The Supreme Court’s holding in Frank Lyon requires us to defer to the decision of the parties to enter into an employer-independent contractor relationship. Moreover, we hold that the congressional intent behind IRC 1954 § 46(e)(3) was to foster the sort of investment activity in which Newman engaged.
Vacated and remanded with instructions to enter a recision for appellants.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
sc_adminaction_is | B | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
WILSON et al. v. OMAHA INDIAN TRIBE et al.
No. 78-160.
Argued March 21, 1979 —
Decided June 20, 1979
White, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the cases. BlackmuN, J., filed a concurring opinon, in which Burger, C. J., joined, post, p. 679.
Edson Smith argued the cause for petitioners in No. 78-160. With him on the briefs were Robert H. Berkshire, Thomas R. Burke, Lyman L. Larsen, Francis M. Gregory, Jr., and Maurice B. Nieland. Bennett Cullison, Jr., argued the cause for petitioners in No. 78-161. With him on the brief were Richard C. Turner, Attorney General of Iowa, and' James C. Davis, Assistant Attorney General.
William H. Veeder argued the cause and filed a brief for respondent Omaha Indian Tribe in both cases. Sara Sun Beale argued the cause for the United States in both cases. With her on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Barnett, Robert L. Klarquist, and Edward J. Shawaker.
Together with No. 78-161, Iowa et al. v. Omaha Indian Tribe et al., also on certiorari to the same court.
Edgar B. Washburn filed a brief for Title Insurance and Trust Co. et al. as amici curiae urging reversal in both cases.
A brief of amici curiae urging reversal in No. 78-161 was filed for their respective States by Theodore L. Sendak, Attorney General of Indiana, Jane Gootee, Deputy Attorney General, and Donald Bogará; William J. Baxley, Attorney General of Alabama; Avrum Gross, Attorney General of Alaska; John A.t LaSota, Jr., Acting Attorney General of Arizona; William J. Clinton, Attorney General of Arkansas; Carl B. Afelio, Attorney General of Connecticut; Richard B. Wier, Jr., Attorney General of Delaware; Robert L. Shevin, Attorney General of Florida; Ronald Y. Amemiya, Attorney General of Hawaii; Wayne L. Kidwell, Attorney General of Idaho; William J. Scott, Attorney General of Illinois; Curt T. Schneider, Attorney General of Kansas; Robert F. Stephens, Attorney General of Kentucky; William J. Guste, Jr., Attorney General of Louisiana; Joseph E. Brennan, Attorney General of Maine; Francis B. Burch, Attorney General of Maryland; Francis X. Bellotti, Attorney General of Massachusetts; Frank J. Kelley, Attorney General of Michigan; A. F. Summer, Attorney General of Mississippi; John D. Ashcroft, Attorney General of Missouri; Paul L. Douglas, Attorney General of Nebraska; Robert List, Attorney General of Nevada; Thomas D. Rath, Attorney General of New Hampshire; Toney Anaya, Attorney General of New Mexico; Louis J. Lefkowitz, Attorney General of New York; Rufus L. Edmisten, Attorney General of North Carolina; Allen I. Olson, Attorney General of North Dakota; William J. Brown, Attorney General of Ohio; James A. Redden, Attorney General of Oregon; Daniel R. McLeod, Attorney General of South Carolina; William Janklow, Attorney General of South Dakota; William M. Leech, Jr., Attorney General of Tennessee; Robert B. Hansen, Attorney General of Utah; M. Jerome Diamond, Attorney General of Vermont; J. Marshall Coleman, Attorney General of Virginia; Slade Gorton, Attorney General of Washington; Chauncey H. Browning, Jr., Attorney General of West Virginia; Bronson C. La Follette, Attorney General of Wisconsin; John J. Rooney, Acting Attorney General of Wyoming, and Jack D. Palma II, Senior Assistant Attorney General.
Robert S. Pelcyger, Richard B. Collins, and Arthur Lazarus, Jr., filed a brief for the Native American Rights Fund et al. as amici curiae urging affirmance in both cases.
John C. Christie, Jr., Charles T. Martin, and Stephen J. Landes filed a brief for the American Land Title Assn, as amicus curiae in both cases.
A brief of amici curiae was filed in No. 78-161 for their respective States by Evelle J. Younger, Attorney General of California, N. Gregory Taylor, Assistant Attorney General, and John Briscoe and Bruce S. Flushman, Deputy Attorneys General; John L. Hill, Attorney General of Texas; Mike Greely, Attorney General of Montana; Warren Spannaus, Attorney General of Minnesota; Gerald Gornish, Attorney General of Pennsylvania; and J. D. MacFarlane, Attorney General of Colorado, and David W. Bobbins, Deputy Attorney General.
Mr. Justice White
delivered the opinion of the Court.
At issue here is the ownership of a tract of land on the east bank of the Missouri River in Iowa. Respondent Omaha Indian Tribe, supported by the United States as trustee of the Tribe’s reservation lands, claims the tract as part of reservation lands created for it under an 1854 treaty. Petitioners, including the State of Iowa and several individuals, argue that past movements of the Missouri River washed away part of the reservation and the soil accreted to the Iowa side of the river, vesting title in them as riparian landowners.
Two principal issues are presented. First, we are faced with novel questions regarding the interpretation and scope of Rev. Stat. § 2126, as set forth in 25 U. S. C. § 194, a 145-year-old, but seldom used, statute that provides:
“In all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.”
Second, we must decide whether federal or state law determines whether the critical changes in the course of the Missouri River in this case were accretive or avulsive.
I
In 1854, the Omaha Indian Tribe ceded most of its aboriginal lands by treaty to the United States in exchange for money and assistance to enable the Tribe to cultivate its retained lands. Treaty of Mar. 16, 1854, 10 Stat. 1043; see United States v. Omaha Indians, 253 U. S. 275, 277-278 (1920). The retained lands proved unsatisfactory to the Tribe, and it exercised its option under the treaty to exchange those lands for a tract of 300,000 acres to be designated by the President and acceptable to the Tribe. The Blackbird Hills area, on the west bank of the Missouri, all of which was then part of the Territory of Nebraska, was selected. The eastern boundary of the reservation was fixed as the center of the main channel of the Missouri River, the thalweg. That land, as modified by a subsequent treaty and statutes, has remained the home of the Omaha Indian Tribe.
In 1867, a survey by T. H. Barrett of the General Land Office established that the reservation included a large peninsula jutting east toward the opposite, Iowa, side of the river, around which the river flowed in an oxbow curve known as Blackbird Bend. Over the next few decades, the river changed course several times, sometimes moving east, sometimes west. Since 1927, the river has been west of its 1867 position, leaving most of the Barrett survey area on the Iowa side of the river, separated from the rest of the reservation.
As the area, now on the Iowa side, dried out, Iowa residents settled on, improved, and farmed it. These non-Indian owners and their successors in title occupied the land for many years prior to April 2, 1975, when they were dispossessed by the Tribe, with the assistance of the Bureau of Indian Affairs.
Four lawsuits followed the seizure, three in federal court and one in state court. The Federal District Court for the Northern District of Iowa consolidated the three federal actions, severed claims to damages and lands outside the Barrett survey area, and issued a temporary injunction that permitted the Tribe to continue possession. The court then tried the case without a jury. At trial, the Government and the Tribe argued that the river’s movement had been avul-sive, and therefore the change in location of the river had not affected the boundary of the reservation. Petitioners argued that the river had gradually eroded the reservation lands on the west bank of the river, and that the disputed land on the east bank, in Iowa, had been formed by gradual accretion and belonged to the east-bank riparian owners. Both sides sought to quiet title in their names.
The District Court concluded that state rather than federal law should be the basis of decision. United States v. Wilson, 433 F. Supp. 57 (1977). The court interpreted the Rules of Decision Act, 28 U. S. C. § 1652, as not requiring the application of federal law in land disputes, even though the United States and an Indian tribe were claimants, unless the Constitution, a treaty, or an Act of Congress specifically supplanted state law. The court found no indication in those sources that federal law was to govern. It then went on to conclude that 25 U. S. C. § 194 was not applicable to the case because it was impossible for the Tribe to make out a prima facie case that it possessed the disputed lands in the past without proving its case on the merits. Thus, § 194 had no significance because it was “inextricably entwined with the merits.” 433 F. Supp., at 66.
Applying Nebraska law, which places the burden of proof on the party seeking to quiet title, the court concluded that the key changes in the river had been accretive, and that the east-bank riparians, the petitioners, were thus the owners of the disputed area. 433 F. Supp. 67 (1977).
The Court of Appeals reversed. 575 F. 2d 620 (CA8 1978). It began by ruling that the District Court should have applied federal rather than state law for two distinct reasons. First, the boundary of the reservation was coincidental with an interstate boundary at the time the river moved. Therefore, under Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363, 375 (1977), and other cases of this Court, the governing law is federal because
“[t]he rendering of a decision in a private dispute which would ‘press back’ an interstate boundary sufficiently implicates the interests of the states to require the application of federal common law.” 575 F. 2d, at 628.
Second, the Court of Appeals construed our decision in Oneida Indian Nation v. County of Oneida, 414 U. S. 661, 677 (1974), as requiring the application of federal law because the Tribe asserted a right to reservation land based directly on the 1854 treaty and therefore arising under and protected by federal law.
The Court of Appeals also ruled that the District Court had erred by refusing to apply 25 U. S. C. § 194. Because the Tribe had proved that the 1854 treaty included the land area within the Barrett survey, it had made a sufficient showing of “previous possession or ownership” to invoke the statute and place the burden of proof on petitioners. Adopting the District Court’s construction “would negate the application of the § 194 statutory burden upon a pleading that simply recites Indian land had been destroyed by the erosive action of a river.” 575 F. 2d, at 631.
Reviewing what it perceived to be the federal common law of accretion and avulsion and with no more than passing reference to Nebraska law on the issue, the Court of Appeals concluded that the District Court had based its ruling on a too narrow definition of avulsion. The court then applied the law to the evidence and found that the evidence was in equipoise. Because § 194 placed the burden of proof on the non-Indians, however, the court ruled that judgment must be entered for the Tribe.
We granted separate petitions for certiorari filed by the State of Iowa and its Conservation Commission in No. 78-161 and by the individual petitioners in No. 78-160, but limited to the questions whether 25 U. S. C. § 194 is applicable in the circumstances of this litigation, in particular with respect to the State of Iowa, and whether federal or state law governs the substantive aspects of these cases. 439 U. S. 963 (1978). We are in partial, but serious, disagreement with the Court of Appeals, and vacate its judgment.
II
Petitioners challenge on several grounds the Court of Appeals’ construction and application of § 194 to these cases. First, they argue that by its plain language the section does not apply when an Indian tribe, rather than one or more individual Indians, is the litigant. We think the argument is untenable. The provision first appeared in slightly different form in 1822, Act of May 6, 1822, 3 Stat. 683, as part of an Act amending the 1802 Indian Trade and Intercourse Act, Act of Mar. 30, 1802, 2 Stat. 139, which was one of a series of Acts originating in 1790 and designed to regulate trade and other forms of intercourse between the North American Indian tribes and non-Indians. Because of recurring trespass upon and illegal occupancy of Indian territory, a major purpose of these Acts as they developed was to protect the rights of Indians to their properties. Among other things, non-Indians were prohibited from settling on tribal properties, and the use of force was authorized to remove persons who violated these restrictions. The 1822 provision was part of this design ; and with only slight change in wording, it was incorporated in the 1834 consolidation of the various statutes dealing with Indian affairs. Act of June 30, 1834, 4 Stat. 729. Section 22 of that Act is now 25 U. S. C. § 194, already set out in this opinion. Although the word “Indian” in the second line of § 22 of the 1834 Act replaced the word “Indians” in the 1822 provision, there is no indication that any change in meaning was intended; and none should be implied at this late date, particularly in light of 1 U. S. C. § 1, which provides that unless the context indicates otherwise, “words importing the singular include and apply to several persons, parties, or things.”
Even construed as including the plural, however, it is urged that the word “Indians” does not literally include an Indian tribe, and that it is plain from other provisions of the Act that Congress intended to distinguish between Indian tribes and individual Indians. But as we see it, this proves too much. At the time of the enactment of the predecessors of § 194, Indian land ownership was primarily tribal ownership; aboriginal title, a possessory right, was recognized and was extinguishable only by agreement with the tribes with the consent of the United States. Oneida Indian Nation v. County of Oneida, 414 U. S., at 669-670. Typically, this was accomplished by treaty between the United States and the tribe, and typically the land reserved or otherwise set aside was held in trust by the United States for the tribe itself. “ 'Whatever title the Indians have is in the tribe, and not in the individuals, although held by the tribe for the common use and equal benefit of all the members.’ ” United States v. Jim, 409 U. S. 80, 82 (1972), quoting Cherokee Nation v. Hitchcock, 187 U. S. 294, 307 (1902). It is clear enough that, when enacted, Congress intended the 1822 and 1834 provisions to protect Indians from claims made by non-Indian squatters on their lands. To limit the force of these provisions to lands held by individual Indians would be to drain them of all significance, given the historical fact that at the time of the enactment virtually all Indian land was tribally held. Legislation dealing with Indian affairs “cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted [it].” Oliphant v. Suquamish Indian Tribe, 435 U. S. 191, 206 (1978). Furthermore, “ 'statutes passed for the benefit of dependent Indian tribes . . . are to be liberally construed, doubtful expressions being resolved in favor of the Indians.' ” Bryan v. Itasca County, 426 U. S. 373, 392 (1976), quoting Alaska Pacific Fisheries v. United States, 248 U. S. 78, 89 (1918).
The second argument, presented in its most acute form by the State of Iowa, is that § 194 applies only where the Indians' antagonist is an individual white person and has no force at all where the adverse claimant is an artificial entity. We cannot accept this broad submission. The word “person” for purposes of statutory construction, unless the context indicates to the contrary, is normally construed to include “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” 1 U. S. C. § 1. And in terms of the protective purposes of the Acts of which § 194 and its predecessors were a part, it would make little sense to construe the provision so that individuals, otherwise subject to its burdens, could escape its reach merely by incorporating and carrying on business as usual. As we said in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 687 (1978), “by 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.” It stands to reason that in re-enacting this provision in the Revised Statutes, now codified in the United States Code, Congress was fully aware that it would be interpreted to cover artificial entities as well as individuals.
It nevertheless does not follow that the “white persons” to whom will be shifted the burden of proof in title litigation with Indians also include the sovereign States of the Union. “[I]n common usage, the term 'person’ does not include the sovereign, [and] statutes employing the phrase are ordinarily construed to exclude it.” United States v. Cooper Corp., 312 U. S. 600, 604 (1941); accord, United States v. Mine Workers, 330 U. S. 258, 275 (1947). Particularly is this true where the statute imposes a burden or limitation, as distinguished from conferring a benefit or advantage. United States v. Knight, 14 Pet. 301, 315 (1840). There is nevertheless “no hard and fast rule of exclusion,” United States v. Cooper Corp., supra, at 604-605; and much depends on the context, the subject matter, legislative history, and executive interpretation. The legislative history here is uninformative, and executive interpretation is unhelpful with respect to this dormant statute. But in terms of the purpose of the provision — that of preventing and providing remedies against non-Indian squatters on Indian lands — it is doubtful that Congress anticipated such threats from the States themselves or intended to handicap the States so as to offset the likelihood of unfair advantage. Indeed, the 1834 Act, which included § 22, the provision identical to the present § 194, was “intended to apply to the whole Indian country, as defined in the first section.” H. R. Rep. No. 474, 23d Cong., 1st Sess., 10 (1834). Section 1 defined Indian country as being “all that part of the United States west of the Mississippi, and not within the states of Missouri and Louisiana, or the territory of Arkansas, and, also, that part of the United States east of the Mississippi River, and not within any state to which the Indian title has not been extinguished . . . 4 Stat. 729. Although this definition was discarded in the Revised Statutes, see Rev. Stat. § 5596, it is apparent that in adopting § 22 Congress had in mind only disputes arising in Indian country, disputes that would not arise in or involve any of the States.
Nor have we discovered anything since its passage or in connection with the definition of Indian country now contained in the Criminal Code, 18 U. S. C. § 1151, indicating that Congress intended the words “white person” in § 194 to include any of the original or any of the newly admitted States of the Union. We hesitate, therefore, to hold that the State of Iowa must necessarily be disadvantaged by § 194 when litigating title to the property to which it claims ownership, particularly where its opposition is an organized Indian tribe litigating with the help of the United States of America. It may well be that a State, like other litigants and like the State of Iowa did in this case, will often bear the burden of proof on various issues in litigating the title to real estate. But § 194 operates regardless of the circumstances once the Tribe or its champion, the United States, has demonstrated that the Tribe was once in possession of or had title to the area under dispute.
Petitioners also defend the refusal of the District Court to apply § 194 on the grounds that a precondition to applying it is proof of prior possession or title in the Indians and that this involves the merits of the issue on which this case turns— whether the changes in the river were avulsive or accretive. We think the Court of Appeals had the better view of the statute in this regard. Section 194 is triggered once the Tribe makes out a prima facie case of prior possession or title to the particular area under dispute. The usual way of describing real property is by identifying an area on the surface of the earth through the use of natural or artificial monuments. There seems to be no question here that the area within the Barrett survey was once riparian land lying on the west bank of the Missouri River and was long occupied by the Tribe as part of the reservation set apart for it in consequence of the treaty of 1854. This was enough, it seems to us, to bring § 194 into play. Of course, that would not foreclose the State of Iowa from offering sufficient evidence to prove its own title or from prevailing on any affirmative defenses it may have.
Petitioners also assert that even if § 194 is operative and even if the Tribe has made out its prima facie case, only the burden of going forward with the evidence, and not the burden of persuasion, is shifted to the State. Therefore they, the petitioners, should prevail if the evidence is in equipoise. The term “burden of proof” may well be an ambiguous term connoting either the burden of going forward with the evidence, the burden of persuasion, or both. But in view of the evident purpose of the statute and its use of the term “presumption” which the “white man” must overcome, we are in agreement with the two courts below that § 194 contemplates the non-Indian’s shouldering the burden of persuasion as well as the burden of producing evidence once the tribe has made out its prima facie case of prior title or possession.
Ill
A
In Oregon ex rel. State Land Board v. Corvallis Sand & Gravel Co., 429 U. S. 363 (1977), this Court held that, absent an overriding federal interest, the laws of the several States determine the ownership of the banks and shores of waterways. This was expressive of the general rule with respect to the incidents of federal land grants:
“ 'We hold the true principle to be this, that whenever the question in any Court, state or federal, is, whether a title to land which had once been the property of the United States has passed, that question must be resolved by the laws of the United States; but that whenever, according to those laws, the title shall have passed, then that property, like all other property in the state, is subject to state legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.' ” Id., at 377, quoting Wilcox v. Jackson, 13 Pet. 498, 517 (1839) (emphasis added by the Corvallis Court).
The Court’s conclusion in the particular dispute before it in Corvallis was that state law governed the rights of the riparian owner because there was no claim of an applicable federal right other than the equal-footing origin of the State’s title.
As the Court of Appeals held, however, the general rule recognized by Corvallis does not oust federal law in this case. Here, we are not dealing with land titles merely derived from a federal grant, but with land with respect to which the United States has never yielded title or terminated its interest. The area within the survey was part of land to which the Omahas had held aboriginal title and which was reserved by the Tribe and designated by the United States as a reservation and the Tribe’s permanent home. The United States continues to hold the reservation lands in trust for the Tribe and to recognize the Tribe pursuant to the Indian Reorganization Act of 1934, 48 Stat. 984, 25 U. S. C. § 461 et se.q.
In these circumstances, where the Government has never parted with title and its interest in the property continues, the Indians’ right to the property depends on federal law, “wholly apart from the application of state law principles which normally and separately protect a valid right of possession.” Oneida Indian Nation v. County of Oneida, 414 U. S., at 677. It is rudimentary that “Indian title is a matter of federal law and can be extinguished only with federal consent” and that the termination of the protection that federal law, treaties, and statutes extend to Indian occupancy is “exclusively the province of federal law.” Id,., at 670. Insofar as the applicable law is concerned, therefore, the claims of the Omahas are “clearly distinguishable from the claims of land grantees for whom the Federal Government has taken no such responsibility.” Id., at 684 (RehNQUIst, J., concurring). This is not a case where the United States has patented or otherwise granted lands to private owners in a manner that terminates its interest and subjects the grantees’ incidents of ownership to determination by the applicable state law. The issue here is whether the Tribe is no longer entitled to possession of an area that in the past was con-cededly part of the reservation as originally established. That question, under Oneida, is a matter for the federal law to decide.
B
Although we have determined that federal law ultimately controls the issue in this case, it is still true that “[c]ontro-versies . . . governed by federal law, do not inevitably require resort to uniform federal rules. . . . Whether to adopt state law or to fashion a nationwide federal rule is a matter of judicial policy 'dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law.' ” United States v. Kimbell Foods, Inc., 440 U. S. 715, 727-728 (1979), quoting United States v. Standard Oil Co., 332 U. S. 301, 310 (1947). The Court of Appeals, noting the existence of a body of federal law necessarily developed by this Court in the course of adjudicating boundary disputes between States having their common border on a navigable stream, purported to find in those doctrines the legal standards to apply in deciding whether the changes in the course of the Missouri River involved in this case had been avulsive or ac-cretive in nature.
The federal law applied in boundary cases, however, does not necessarily furnish the appropriate rules to govern this case. No dispute between Iowa and Nebraska as to their common border on or near the Missouri River is involved here. The location of that border on the ground was settled by Compact in 1943 and by further litigation in this Court, Nebraska v. Iowa, 406 U. S. 117 (1972). The federal interest in this respect has thus been satisfied, except to the extent that the Compact itself may bear upon a dispute such as this. United States v. Kimbell Foods, Inc., supra, advises that at this juncture we should consider whether there is need for a nationally uniform body of law to apply in situations comparable to this, whether application of state law would frustrate federal policy or functions, and the impact a federal rule might have on existing relationships under state law. An application of these factors suggests to us that state law should be borrowed as the federal rule of decision here.
First, we perceive no need for a uniform national rule to determine whether changes in the course of a river affecting riparian land owned or possessed by the United States or by an Indian tribe have been avulsive or accretive. For this purpose, we see little reason why federal interests should not be treated under the same rules of property that apply to private persons holding property in the same area by virtue of state, rather than federal, law. It is true that States may differ among themselves with respect to the rules that will identify and distinguish between avulsions and accretions, but as long as the applicable standard is applied evenhandedly to particular disputes, we discern no imperative need to develop a general body of federal common law to decide cases such as this, where an interstate boundary is not in dispute. We should not accept “generalized pleas for uniformity as substitutes for concrete evidence that adopting state law would adversely affect [federal interests].” United States v. Kimbell Foods, Inc., supra, at 730.
Furthermore, given equitable application of state law, there is little likelihood of injury to federal trust responsibilities or to tribal possessory interests. On some occasions, Indian tribes may lose some land because of the application of a particular state rule of accretion and avulsion, but it is as likely on other occasions that the tribe will stand to gain. The same would be the case under a federal rule, including the rule that the Court of Appeals announced in this case. The United States fears a hostile and unfavorable treatment at the hands of state law, but, as we have said, the legal issues are federal and the federal courts will have jurisdiction to hear them. Oneida Indian Nation v. County of Oneida, 414 U. S. 661 (1974). Adequate means are thus available to insure fair treatment of tribal and federal interests.
This is also an area in which the States have substantial interest in having their own law resolve controversies such as these. Private landowners rely on state real property law when purchasing real property, whether riparian land or not. There is considerable merit in not having the reasonable expectations of these private landowners upset by the vagaries of being located adjacent to or across from Indian reservations or other property in which the United States has a substantial interest. Borrowing state law will also avoid arriving at one answer to the avulsive-accretion riddle in disputes involving Indians on one side and possibly quite different answers with respect to neighboring land where non-Indians are the disputants. Indeed, in this case several hundred acres of land within the Barrett survey are held in fee, and concededly are not Indian property. These tracts would not be governed by the federal rule announced by the Court of Appeals.
We have borrowed state law in Indian cases before. In Board of Comm’rs v. United States, 308 U. S. 343 (1939), the question was what law, federal or state, would apply in a claim to recover taxes improperly levied by a political subdivision of a State upon Indians’ trust lands. The Court observed that “[s]ince the origin of the right to be enforced is the Treaty, plainly whatever rule we fashion is ultimately attributable to the Constitution, treaties or statutes of the United States, and does not owe its authority to the law-making agencies of Kansas.” Id., at 349-350. The Court, nevertheless, elected to adopt state law as the federal rule of decision. There was no reason in the circumstances of the case for the beneficiaries of federal rights to have a privileged position over other aggrieved taxpayers, and “[t]o respect the law of interest prevailing in Kansas in no wise impinges upon the exemption which the Treaty of 1861 has commanded Kansas to respect and the federal courts to vindicate.”
The importance of attending to state law, once an interstate boundary has been determined, is underlined by Arkansas v. Tennessee, 246 U. S. 158 (1918). In that case, because the disputed boundary between Arkansas and Tennessee had been determined, the question of title to riparian land and to the river bottom was a matter to be determined by local law:
“How the land that emerges on either side of an interstate boundary stream shall be disposed of as between public and private ownership is a matter to be determined according to the law of each State, under the familiar doctrine that it is for the States to establish for themselves such rules of property as they deem expedient with respect to the navigable waters within their borders and the riparian lands adajacent to them. . . . But these dispositions are in each case limited by the interstate boundary, and cannot be permitted to press back the boundary line from where otherwise it should be located.” Id., at 175-176.
Likewise, in the present case, the Compact of 1943 settled the location of the interstate boundary, within and without the river; and the question of land ownership within or adjacent to the river is best settled by reference to local law even where Indian trust land, a creature of the federal law, is involved.
C
The passage quoted above from Arkansas v. Tennessee was quoted with approval in Nebraska v. Iowa, 406 U. S., at 126-127, where the central question was the interpretation of the Interstate Compact determining the location of the entire border between Nebraska and Iowa. Our opinion in Nebraska v. Iowa is also instructive with respect to which state law, Iowa or Nebraska, the federal court should refer to in determining the federal standard applicable to this case.
Under § 2 of the Compact, each State ceded to the other and relinquished jurisdiction over all lands within the Compact boundary of the other State. Under § 3, “Titles, mortgages, and other liens” affecting such lands that are “good in” the ceding State “shall be good in” the other State. Thus, ceded lands east of the Compact line came under Iowa jurisdiction; but Iowa was obligated to respect title to any-ceded land east of the new boundary if that title was “good in” Nebraska. Accepting the Special Master’s recommendations in this respect, the Court ruled that one claiming a Nebraska title to land east of the Compact line need show only “good title” under Nebraska law and need not also prove either the location of the original boundary between the two States or that the land at issue was on the Nebraska side of that original boundary. The Court further ruled, in agreement with the Special Master, that in litigating with private claimants seeking to prove good Nebraska title to land east of the Compact line, the State of Iowa was disentitled to rely on certain doctrines of Iowa common law bearing on riparian land ownership.
In this case, the District Court ruled that even though the United States and an Indian tribe rather than private parties were plaintiffs, title to the Barrett survey land, which was once in Nebraska but is now unquestionably in Iowa, should be governed by Nebraska law in accordance with the terms of the Compact. Proceeding to adjudicate the case in accordance with Nebraska law, the District Judge found that the Tribe and the Government, respondents here, had failed to prove that the Blackbird Bend area had been separated from the rest of the reservation by avulsive changes in the Missouri River and that the defendants, petitioners here, without the aid of any presumption of accretion available under Iowa law if applicable, had instead proved that the river changes had been by accretion. In the course of arriving at this conclusion, the District Court, relying on Nebraska cases, rejected the Government’s definition of avulsion, later embraced by the Court of Appeals, as contrary to the common law of Nebraska. The defendants, petitioners here, having carried the burden of proving their good title to the land at issue, were entitled to a decree quieting title in them.
Although we have already held that the District Court erred in concluding that determination of titles to reservations lands is not a matter for the federal law, we have also indicated that the federal law should incorporate the applicable state property'law to resolve the dispute. Therefore, it seems to us that the District Court reached the correct result in ruling that under the construction of the Compact in Nebraska v. Iowa, Nebraska law should be applied in determining whether the changes in the river that moved the Blackbird Bend area from Nebraska to Iowa had been avulsive or accretive. It should also be noted that the District Court, although wrong in wholly rejecting the applicability of § 194, concluded as a matter of fact and law that the defendants, petitioners here, had carried the burden of persuasion normally incumbent upon a plaintiff in a quiet-title action, and had proved by a preponderance of the evidence that the reservation lands had eroded and had accreted to the Iowa shoreline. Apparently for this reason, the trial judge observed at the end of his memorandum opinion that were he wrong in refusing to apply § 194, his findings and conclusions “would not be altered by any different allocation of the burden of persuasion.” 433 F. Supp., at 67.
IV
In sum, the Court of Appeals was partially correct in ruling that § 194 was applicable in this case. By its terms, § 194 applies to the private petitioners but not to petitioner State of Iowa. We also agree with the Court of Appeals’ conclusion that federal law governed the substantive aspects of the dispute, but find it in error for arriving at a federal standard, independent of state law, to determine whether there had been an avulsion or an accretion. Instead, the court should have incorporated the law of the State that otherwise would have been applicable which, as we have said, is the law of Nebraska. Of course, because of its view of the controlling law, the Court of Appeals did not consider whether'the District Court had correctly interpreted Nebraska law and had properly applied it to the facts of this case. These tasks are still to be performed, and we vacate the Court of Appeals’ judgment and remand the case for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Powell took no part in the consideration or decision of these cases.
In Heckman v. United States, 224 U. S. 413 (1912), the Court explained the source and nature of this trust relationship. In the exercise of its plenary authority over Indian affairs, Congress has the power to place restrictions on the alienation of Indian lands. Where it does so, it continues guardianship over Indian lands and “[d]uring the continuance of this guardianship, the right and duty of the Nation to enforce by all appropriate means the restrictions designed for the security of the Indians cannot be gainsaid. ... A transfer of the [Indian land] is not simply a violation of the proprietary rights of the Indian. It violates the governmental rights of the United States.” Id., at 437-438. Accordingly, the United States is entitled to go into court as trustee to enforce Indian land rights. “It [is] not essential that it should have a pecuniary interest in the controversy.” Id., at 439. See also Morrison v. Work, 266 U. S. 481, 485 (1925); Choate v. Trapp, 224 U. S. 665, 678 (1912); F. Cohen, Handbook of Federal Indian Law 94-96 (1942).
The State of Iowa claims title to certain lands deeded to it by quitclaim and to the bed of the Missouri between the thalweg (see n. 3, infra) and the ordinary high-water mark, any islands formed in that portion of the river, and any abandoned channels. The latter claims are based upon the equal-footing doctrine, see Pollard’s Lessee v. Hagan, 3 How. 212 (1845), and the 1943 Boundary Compact between Iowa and Nebraska, see n. 6, infra.
The term is commonplace in boundary disputes between riparian States. See, e. g., Minnesota v. Wisconsin, 252 U. S. 273, 282 (1920) :
“The doctrine of Thalweg, a modification of the more ancient principle which required equal division of territory, was adopted in order to preserve to each State equality of right in the beneficial use of the stream as a means of communication. Accordingly, the middle of the principal channel of navigation is commonly accepted as the boundary. Equality in the beneficial use often would be defeated, rather than promoted, by fixing the boundary on a given line merely because it connects points of greatest depth. Deepest water and the principal navigable channel are not necessarily the same. The rule has direct reference to actual or probable use in the ordinary course, and common experience shows that vessels do not follow a narrow crooked channel close to shore, however deep, when they can proceed on a safer and more direct one with sufficient water.”
Treaty of Mar. 6, 1865, 14 Stat. 667; Act of June 22, 1874, 18 Stat. 146, 170; Act of Aug. 7, 1882, 22 Stat. 341; see also Act of Mar. 3, 1885, 23 Stat. 362, 370, as amended by Act of Jan. 7, 1925, ch. 34, 43 Stat. 726.
There is some dispute over whether the Barrett survey actually marked the reservation boundary because several years had passed since the Tribe began occupying the reservation and the Missouri may have changed its course during that period. See United States v. Wilson, 433 F. Supp. 67, 69, 74 (ND Iowa 1977). This does not appear to be of significance in this litigation. Id., at 75.
In Nebraska v. Iowa, 143 U. S. 359 (1892), the Court decided a boundary dispute between the States of Nebraska and Iowa caused by the wanderings of the Missouri. “[T]he fickle Missouri River,” however, “refused to be bound by the . . . decree,” Eriksson, The Boundaries of Iowa, 25 Iowa J. of Hist, and Pol. 163, 234 (1927); and in 1943 Nebraska and Iowa entered into a Compact fixing the boundary between the States independent of the river’s location. Congress ratified the Compact in the Act of July 12, 1943, ch. 220, 57 Stat. 494. Since the time of the Compact, the Army Corps of Engineers has been largely successful in taming the river. See Nebraska v. Iowa, 406 U. S. 117, 119 (1972).
The District Court stated the common-law rule, 433 F. Supp. 57, 62 (1977):
“Simply stated, when a river which forms a boundary between two parcels of land moves by processes of erosion and accretion, the boundary follows the movements of the river. Independent Stock Farm v. Stevens, 128 Neb. 619, 259 N. W. 647 (1935). On the other hand, when a river which forms a boundary between two parcels of land abruptly moves from its old channel to a new channel through an event known as avulsion, the boundary remains defined by the old river channel. Iowa Railroad Land Co. v. Coulthard, 96 Neb. 607, 148 N. W. 328 (1914). The jurisdiction of Nebraska applies these principles to the movements of the Missouri River. DeLong v. Olsen, 63 Neb. 327, 88 N. W. 512 (1901).”
This Court has followed the same principles resolving boundary disputes between States bordering on navigable streams. Arkansas v. Tennessee, 246 U. S. 158, 173 (1918); Missouri v. Nebraska, 196 U. S. 23, 34-36 (1904); Nebraska v. Iowa, 143 U. S., at 360-361, 370.
The District Court relied on Mason v. United States, 260 U. S. 545 (1923); Francis v. Francis, 203 U. S. 233 (1906); and Fontenelle v. Omaha Tribe of Nebraska, 298 F. Supp. 855 (Neb. 1969), aff’d, 430 F. 2d 143 (CA8 1970).
Tbo District Court also suggested that the possessory interest of the Tribe was not of sufficient quality to trigger the burden shifting contemplated by 25 U. S. C. § 194.
The District Court construed the Court’s decision in Nebraska v. Iowa, 406 U. S. 117 (1972), as requiring the application of Nebraska law with respect to changes in the river that occurred before 1943, the date of the Iowa-Nebraska Compact that permanently fixed the boundary between the States, because the land at issue here was indisputably part of Nebraska before the river changed its course. 433 F. Supp., at 60, and n. 2.
Although tho District Court hewed closely to Nebraska caso law, it also observed that insofar as the relevant definitions of avulsion and accretion were concerned, there was no significant difference between Iowa and Nebraska law, except that under Iowa law accretion was presumed, which was not the case under Nebraska law. Because Nebraska law would not aid tho defendants by a presumption of accretion, the Tribe was favored by tho application of Nebraska law. The District Court was also of the view that tho federal accretion-avulsion law was not substantially different. As we shall see, the Court of Appeals differed with the District Court in this respect.
The Court of Appeals relied on two cases, Veatch v. White, 23 F. 2d 69 (CA9 1927), and Uhlhorn v. United States Gypsum Co., 366 F. 2d 211 (CA8 1966), cert. denied, 385 U. S. 1026 (1967), in concluding that, under federal law, “the sudden, perceptible change of the channel, whether within or without the river’s original bed, is a critical factor in defining an avulsion.” 575 F. 2d 620, 637 (CA8 1978). This definition was broader than the Nebraska rule as understood and applied by the District Court, which the Court of Appeals described as follows: “an avulsion occurs only where a sudden shift in a channel cuts off land 'so that after the shift it remains identifiable as land which existed before the change of the channel and which never became a part of the river bed.’ ” Id., at 634, quoting 433 F. Supp., at 73. As is evident, the definition employed by the Court of Appeals permits a finding of avulsion even where the river is still largely within its original bed.
In No. 78-161, filed by the State of Iowa and its Conservation Commission, the questions on which certiorari was granted were stated as follows:
“Whether the State of Iowa is 'a white person’, and the Omaha Indian Tribe is 'an Indian’ within the meaning of 25 U. S. C. § 194.
“Whether federal law requires divestiture of Iowa’s apparent good title to real property located within its boundaries.”
In No. 78-160, we granted certiorari on the following questions:
“Whether the Eighth Circuit erroneously construed Title 25 U. S. Code § 194 to make it applicable in this case.
“Whether the Eighth Circuit erred in holding that Federal and not state common law with regard to accretion and avulsion is applicable in this case.”
Of these various arguments, only the single ground relied on by the District Court in refusing to apply § 194 was discussed and rejected by the Court of Appeals. The other grounds for holding § 194 inapplicable to this case were presented by petitioners either in their briefs on the merits before the Court of Appeals or their petition for rehearing before that court after it reversed the District Court.
The background, history, and development of these laws and Acts are explored exhaustively in F. Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts 1790-1834 (1962). See also Cohen, supra n. 1, at 68-75.
Petitioners cite United States v. Perryman, 100 U. S. 235 (1880), as support for their position that § 194 must be construed literally to apply only to a “white person,” or individual Caucasian. But that ease dealt with another provision of the 1834 Nonintercourse Act, § 16, and there were distinct grounds in the legislative history indicating that the term “white person” as used in § 16 did not include a Negro. Whether Perryman would be followed today is a question we need not decide.
Thero wero two corporate defendants among the parties in the District Court. They filed a separate petition for certiorari, No. 78-162, RGP, Inc. v. Omaha Indian Tribe, but no action has yet been taken on it. Under our Rules, however, the two corporations are party-respondents in the cases in which we havo granted certiorari. Rule 21 (4).
Petitioners claim that Oklahoma v. Texas, 258 U. S. 574 (1922), mandates the applicability of state rather than federal law in this case. But there the United States issued patents granting former reservation lands. The Court merely held that, absent contrary evidence, when the United States conveyed and completely parted with its territory, even though Indian land, it intended the incidents of the resulting ownership to be determined by state law. This is no more than the general rule that Oneida recognized. In the present case, of course, the area at issue was never conveyed away by the United States or by the Tribe and is claimed by the United States and the Tribe to remain as part of the reservation established as the result of the treaty of 1854. Neither do we find that United States v. Oklahoma Gas & Electric Co., 318 U. S. 206 (1943), presents a contrary holding. There, the Court refused to construe a federal statute permitting the Secretary of the Interior to grant permission for the opening of highways over Indian land “in accordance with the laws of the state” as prohibiting the establishment of a power line in the highway right-of-way without further federal consent. Id., at 208. As we understand that case, the Court held only that the consent authorized by the federal statute included the uses which such consent would authorize under state law.
Compare P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart & Wechsler’s The Federal Courts and the Federal System 768 (2d ed. 1973):
“The federal 'command’ to incorporate state law may be a judicial rather than a legislative command; that is, it may be determined as a matter of choice of law, even in the absence of statutory command or implication, that, although federal law should 'govern’ a given question, state law furnishes an appropriate and convenient measure of the content of this federal law.”
See Board of Comm’rs v. United States, 308 U. S., at 351-352:
“Having left the matter at large for judicial determination within the framework of familiar remedies equitable in their nature, see Stone v. White, 301 U. S. 532, 534, Congress has left us free to take into account appropriate considerations of ‘public convenience.’ Cf. Virginian Ry. Co. v. Federation, 300 U. S. 515, 552. Nothing seems to us more appropriate than due regard for local institutions and local interests. We are concerned with the interplay between the rights of Indians under federal guardianship and the local repercussion of those rights. Congress has not been heedless of the interests of the states in which Indian lands were situated, as reflected by their local laws. See, e. g., § 5 of the General Allotment Act of 1887, 24 Stat. 388, 389. With reference, to other federal rights, the state law has been absorbed, as it were, as the governing federal rule not because state law was the source of the right but because recognition of state interests was not deemed inconsistent with federal policy. See Brown v. United States, 263 U. S. 78; Seaboard Air Line R. Co. v. United States, 261 U. S. 299. In the absence of explicit legislative policy cutting across state interests, we draw upon a general principle that the beneficiaries of federal rights are not to have a privileged position over other aggrieved tax-payers in their relation with the states or their political subdivisions. To respect the law of interest prevailing in Kansas in no wise impinges upon the exemption which the Treaty of 1861 has commanded Kansas to respect and the federal courts to vindicate.”
The Special Master in that ease observed that, although it would be difficult, the location of the agreed-upon boundary in the Compact could be determined with reasonable accuracy. Report of Special Master in Nebraska v. Iowa, O. T. 1964, No. 17 Orig., p. 50.
See 1943 Iowa Acts, ch. 306, as ratified by Act of July 12, 1943, ch. 220, 57 Stat. 494:
“Sec. 2. The State of Iowa hereby cedes to the State of Nebraska and relinquishes jurisdiction over all lands now in Iowa but lying westerly of said boundary line and contiguous to lands in Nebraska.
“Sec. 3. Titles, mortgages, and other hens good in Nebraska shall be good in Iowa as to any lands Nebraska may cede to Iowa and any pending suits or actions concerning said lands may be prosecuted to final judgment in Nebraska and such judgments shall be accorded full force and effect in Iowa.”
Under this ruling, Iowa was disentitled, either as plaintiff or defendant, from invoking its presumption that changes in the Missouri had been accretive rather than avulsive, and could not rely on its rule that no person can claim adversely against the sovereign State of Iowa. Thus, a title based on adverse possession good under Nebraska law would be good in Iowa. Report of Special Master, supra, at 17A-175.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer: |
sc_caseoriginstate | 06 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
UNITED STATES v. SPECTOR.
No. 443.
Argued March 6, 1952.
Decided April 7, 1952.
Robert L. Stern argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Mclnerney, Beatrice Rosenberg and Kenneth C. Shelver.
John W. Porter and A. L. Wirin argued the cause and filed a brief for appellee.
Mr. Justice Douglas
delivered the opinion of the Court.
Section 20 of the Immigration Act of 1917, as amended, 39 Stat. 890, 57 Stat. 553, 64 Stat. 1010, 8 U. S. C. (Supp. IV) § 156, contains provisions designed to expedite the deportation of aliens. Section 20 (a) provides that the Attorney General shall direct the deportation “to the country specified by the alien, if it is willing to accept him into its territory.” Otherwise the Attorney General shall direct the deportation to any one of a series of specified countries or if deportation to any of them is impracticable, inadvisable, or impossible, then to any country which is willing to accept the alien. Section 20 (b) grants the Attorney General powers of supervision over aliens against whom deportation orders have been outstanding for more than six months and fixes penalties for violations of the regulations which the Attorney General has prescribed. Section 20 (c) provides that any alien against whom a specified order of deportation is outstanding “who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, . . . shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years . . . .” (Italics added.)
The latter (the italicized) provision of § 20 (c) is involved here. Appellee is an alien who came to this country from Russia in 1913. An order of deportation was entered against him in 1930 by reason of his advocacy of the overthrow of the Government by force and violence. An indictment was returned against him, two counts of which charged him with willfully failing and refusing to make timely application in good faith for travel or other documents necessary to his departure from the United States. The District Court sustained a motion to dismiss these two counts. It held that the statute in question was unconstitutionally vague and indefinite, because it did not specify the nature of the travel documents necessary for departure nor indicate to which country or to how many countries the alien should make application. 99 F. Supp. 778. The case is here on appeal. 18 U. S. C. (Supp. IV) § 3731.
While a statute, plain and unambiguous on its face, may be given an application that violates due process of law, we are not concerned with that problem in the present case. The question here is whether the statute on its face meets the constitutional test of certainty and definiteness. We think it does when viewed in its statutory setting.
The statutory scheme seems clear and unambiguous. The choice of a country willing to receive the alien is left first to the alien himself and then to the Attorney General. Once the country willing to receive the alien is identified, the mechanism for effecting his departure remains. The six-month period specified in § 20 (c) makes clear what a “timely” application is. The statutory words “travel or other documents necessary to his departure” will, of course, have different meanings in reference to various countries. The forms to be filled out, the deposits to be made, the number of photographs to be furnished, and the information to be supplied will vary from country to country. But when the country to which the alien is to be deported is known, any mystery concerning the documents necessary to his departure vanishes. The words “necessary to his departure” when applied to deportations would normally refer to a lawful departure from this country and a lawful entrance into another. The alien satisfies the statute by making timely application for such documents as the country in question requires for his admission.
The statute might well be a trap if, for example, it required the alien to know the visa requirements of one or more countries. But the emphasis of the present statute is on a “timely application in good faith” for such documents as the country in question may require. Though the visa requirements for entrance into a particular country are in constant change, the command of the statute remains simple and intelligible. We conclude that the warning contained in the statute is sufficiently definite to free it of any constitutional infirmity of vagueness. Cf. United States v. Petrillo, 332 U. S. 1; Jordan v. De George, 341 U. S. 223.
Another question of constitutional law is pressed upon us. It is that the statute must be declared unconstitutional because it affords a defendant no opportunity to have the court which tries him pass on the validity of the order of deportation. That question was neither raised by the appellee nor briefed nor argued here. If it had been, we might consider it. See United States v. Curtiss-Wright Corp., 299 U. S. 304, 330. But when a single, naked question of constitutionality is presented, we do not search for new and different constitutional questions. Rather we refrain from passing on the constitutionality of a phase of a statute until a stage has been reached where the decision of the precise constitutional issue is necessary. See United States v. Petrillo, supra.
It will be time to consider whether the validity of the order of deportation may be tried in the criminal trial either by the court or by the jury (cf. Yakus v. United States, 321 U. S. 414; Cox v. United States, 332 U. S. 442) when and if the appellee seeks to have it tried. That question is not foreclosed by this opinion. We reserve decision on it.
Reversed.
Mr. Justice Clark took no part in the consideration or decision of this case.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer: |
songer_circuit | D | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
NORFOLK SOUTHERN BUS CORPORATION v. COMMISSIONER OF INTERNAL REVENUE.
No. 4531.
Circuit Court of Appeals, Fourth Circuit.
Nov. 6, 1939.
O. R. Folsom-Jones, of Washington, D. C. (S. Burnell Bragg and W. B. Rodman, both of Norfolk, Va., on the brief), for petitioner.
Berryman Green, Sp. Asst. to Atty. Gen. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key, Sp. Asst. to Atty. Gen., on the brief), for respondent.
PARKER, SOPER, and NORTHCOTT, Circuit Judges.
PARKER, Circuit Judge.
This is a petition to review a decision of the Board of Tax Appeals which denied to the petitioner, Norfolk Southern Bus Corporation, the right to file a consolidated tax return with the Norfolk-Southern Railroad Company under section 141 of the Revenue Act of 1934. It is admitted that all of the stock of petitioner is owned by the railroad company and that the principal business of that company is that of common carrier by railroad. The only question in the case is whether the principal business of petitioner is “that of a common carrier by railroad”. The nature of that business was thus correctly described by the Board in its findings:
“Prior to and during 1934 the railroad company had lines running from Norfolk, Virginia, east to Virginia Beach, north to Cape Henry, and back to Norfolk, referred to as the Virginia Beach ‘Loop’, and generally south from Norfolk, Virginia, to Elizabeth City, Edenton, Plymouth, Washington, and New Bern, and westerly from Washington to Raleigh and Charlotte, with connecting lines to Fayetteville, Durham, Ellerbe, and Asheboro, all in North Carolina, and several other branch lines serving this general territory.
“The Virginia Beach ‘Loop’ of the railroad served all villages and towns between Norfolk, Virginia Beach, and Cape Henry. Prior to 1924 the principal mode of travel in the locality was on the railroad line, the roads being in poor condition. In or about 1924 the State of Virginia started building concrete roads paralleling the ‘Loop’ railroad. The railroad, faced with a possible loss of passenger business to independently organized and operated bus companies, organized the petitioner bus company in 1926 for the purpose of transporting passengers by bus and freight by trucks over the new highways paralleling the railroad. On the Virginia Beach ‘Loop’ the busses supplemented the railroad passenger service and during the winter months were substituted for the railroad service. Trucks operated by petitioner provided pick-up and delivery freight service in this area. The same fares were charged and the same tickets used from Norfolk to Virginia Beach, Cape Henry, and return. Likewise the same fares were charged and the same tickets used when a person traveled from Virginia Beach to Norfolk, such fares being published with the State Corporation Commission and with the Interstate Commerce Commission and approved by them. The dispatching of both trains and busses was done by officers or employees of the railroad. Schedules were staggered and the ticket purchased entitled the purchaser to travel either by railroad or by bus. Passengers, after purchasing tickets, generally used the transportation, either bus or rail, which left first in point of time.
“In 1931 on the branch from Norfolk to Munden, Virginia, there was one round-trip passenger and one round-trip freight train a day. Bus service replaced the railroad passenger service in 1932 or 1933. Truck service was substituted for freight rail service, the freight train being run twice a week, except during the potato season in the month of June, when it was run daily. *
“Service by bus and truck was instituted, generally paralleling the railroad from Norfolk south into North Carolina. Because of the fact that there was no highway across Albemarle Sound, the busses ran west from Edenton to Windsor and south from Williamston to Washington, North Carolina. They also ran from Williamston east to Plymouth along the Atlantic Coast Line Railroad and then east to Columbia, paralleling a branch line of the Norfolk-Southern Railroad Co. to Columbia and from Williamston west to Raleigh, under a contract with the Carolina Coach Co., which owned the franchise. Approximately one year after the bus service was instituted between Norfolk and New Bern, which generally parallels the railroad, the railroad company took off one of its trains which had been making the round trip daily.
“Interline tickets purchased and used on Pennsylvania Railroad lines were accepted on the busses as well as on the trains which the railroad company ran over the same route as its bus lines. The Columbia branch of the railroad from Williamston to Columbia, North Carolina, maintained a passenger service from Plymouth to Columbia which was unproductive. This was replaced by bus service, so that by 1934 petitioner operated under franchises busses and some truck lines on public highways parallel to the railroad over a large portion of the territory served by the railroad, with the exception of a comparatively short distance from Edenton west to Windsor and south from Williamston to Washington and from Williamston east to Plymouth.
“In 1934 one of the receivers of the railroad was president of the bus company. The general superintendent of the electric lines of the railroad was vice president and general manager of the bus company. The assistant secretary of the railroad was secretary of the bus company. Both companies had the same treasurer and general auditor. All the directors of the bus company were officers of the railroad. All officers of the bus company were on the railroad pay roll and their salaries were paid in the first instance by the railroad. The employees, except the bus drivers and trainmen, were the same for both the railroad and the bus company and the dispatching of both trains and busses was done by officers or employees of the railroad. The railroad in the first instance paid the administrative expenses of the bus company and, inasmuch as the administrative staff served both the railroad and the bus company, this expense was allocated to the bus company in the amount of approximatley $1,000 per month.”
Upon request of petitioner for additional findings, the Board supplemented the findings quoted by the following:
“Petitioner contends that the findings do not show why it was formed, why it was set up as a separate corporation, who furnished the capital and who has actually operated the buses. Notwithstanding the fact that the Division feels sufficient findings have been made to disclose these facts, it is now specifically found as a fact that petitioner was organized and operated for the purpose of transporting passengers by bus and freight by truck; that the legal department of the Norfolk-Southern Railroad Company advised its officers it could not own and operate such buses and trucks except through a separately incorporated company; that the railroad company furnished the original capital and it, or its receivers, own all of its capital stock; and that the petitioner, in the manner set out in the findings heretofore made, operated said buses and trucks in conjunction with said railroad company,”
Petitioner contends that, 'although it is not a railroad carrier, its principal business is that of a carrier by railroad in that its business is an integral part of the railroad’s carrier service, and that the bus and truck service maintained by it are intended to and do preserve, supplement and feed such railroad service. In other words, petitioner contends that it is a bus company engaged in the railroad business. We think, however, that what the evidence shows is not a bus company engaged in the business of a railroad company, but a railroad company through its subsidiary engaged in the business of a bus company. Whatever the purpose behind petitioner’s organization and operation, the fact is inescapable that its principal business is not that of common carrier by railroad but of common carrier by bus or truck. That this business is conducted in close cooperation with the business of the railroad company does not change its essential character.
Petitioner relies upon the decision of Interstate Commerce Commission in Scott Bros., Inc., Collection and Delivery Service, I. C. C. No. MC-2744; but we find nothing in that decision which in any way supports petitioner’s contention. In that case Scott Brothers, Inc., sought a permit under the Motor Carrier Act of 1935 (Part II of the Interstate Commerce Act, 49 U.S.C.A. § 301 et seq.) authorizing it to engage in local collection and delivery service for the Pennsylvania and Long Island Railroad Companies in the City of New York and vicinity. The application was denied on the ground that the service in which applicant proposed to engage was railroad common carrier service subject to Part I of the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The Commission distinguished such service from that of the sort here involved, quoting the definition of “common carrier by motor vehicle” from the Motor Carrier Act of 1935 followed by the following quotation from the decision of the Commission in Pick-Up and Delivery in Official Territory, 218 I. C. C. 441, viz.:
“In the foregoing language there is clearly expressed an intention to exclude the motor-vehicle operations of rail carriers from the definition of a common carrier by motor vehicle to the extent that these operations are subject to the provisions of the Interstate Commerce Act. In making this exception Congress may be presumed to have legislated with knowledge of the court decisions previously mentioned, holding that pick-up and delivery service is within the meaning of ‘transportation’ as defined in section 1(3) of the Interstate Commerce Act, as well as with knowledge of our own administrative findings to the effect that, while railroad terminal service by motor truck was subject to regulation under the Interstate Commerce Act, the use of motor trucks by railroads in line-haul service was not subject to that act. United States v. Bailey, 9 Pet. 238, 255 [9 L.Ed. 113]; National Lead Co. v. United States, 252 U.S. 140, 147 [40 S.Ct. 237, 64 L.Ed. 496].”
The Commission also quoted with approval the following passage from American Trucking Association v. United States, D.C., 17 F.Supp. 655, 657:
“And therefore we think that in the exception Congress intended to include under the provisions of part 2 intercity motor vehicle operations of railroads but at the same time to exclude, from that part, motor vehicle operations within terminal districts.”
As the principal business of petitioner was that of intercity motor vehicle operations and not local pick-up and delivery service, it is clear that it falls within Part II of the Interstate Commerce Act (the Motor Carrier Act of 1935) and not within Part I of the act covering railroad carrier service.
Petitioner contends that, in the light of its history, Section 141 of the Revenue Act of 1934, 26 U.S.C.A. § 141, should be construed to permit the filing of consolidated returns by a railroad company and a bus company occupying towards each other the relationship disclosed in this case. The language of the statute is unambiguous, however, and there Js no reason for resorting to the canons of interpretation to ascertain its meaning. These, as has been often said, are to be looked to for the purpose of resolving ambiguity, not for the purpose of creating it. If, however, we look to the history of the act, we find no intention on the part of Congress in conflict with the clear meaning of the language employed. Section 141 as originally drafted permitted the filing of consolidated returns by affiliated corporations, the report of the committee stating that, if consolidated returns were abolished, it “would be especially burdensome to many corporations such as railroads which are frequently obliged to maintain separate corporate structures in the several states in which they operate, although for all ordinary business and accounting purposes the subsidiaries form a single operating system”. In the course of the passage of the bill, Section 141 as reported was stricken out and the present section was substituted for it, the debates showing that the permission to file consolidated returns was retained to the limited extent permitted by the substituted section to provide for the case of railroads having separate corporate structures but forming a single operating system. There is no indication of any intention to accord the privilege to bus companies merely because they are affiliated with railroads and operated in connection with them.
For the reasons stated, the decision of the Board will be affirmed.
Affirmed.
The pertinent portion of Sec. 141, which is entitled “Consolidated Returns of Railroad Corporations”, is as follows:
“(d) Definition of ‘affiliated group.’ As used in this section an ‘affiliated group’ means one or more chains of corporations connected through stock ownership with a common parent corporation if—
“(1) At least 95 per centum of the stock of each of the corporations (except the common parent corporation) is- owned directly by one or more of the other corporations ; and
“(2) The common parent corporation owns directly at least 95 per centum of the stock of at least one of the other corporations; and
“(3) Each of the corporations is either (A) a corporation whose principal business is that of a common carrier by railroad or (B) a corporation the assets of which consist principally of stock in such corporations and which does not itself operate a business other than that of a common carrier by railroad. For the purpose of determining whether the principal business of a corporation is that of a common carrier by railroad, if a common carrier by railroad has leased its railroad properties and such properties are operated as such by another common carrier by railroad, the business of receiving rents for such railroad properties shall be considered as the business of a common carrier by railroad.” 26 U.S.C.A. § 141(d) (1-3).
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_constit | B | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the constitutionality of a law or administrative action, and if so, whether the resolution of the issue by the court favored the appellant.
UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plainitff-Appellant, v. Parley PROBST and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendants-Appellees. UTE INDIAN TRIBE OF the UINTAH AND OURAY RESERVATION, a body politic and corporate of the United States of America, Plaintiff-Appellee, v. Parley PROBST, Defendant-Appellant, and Oranna B. Moosman, Administratrix of the Estate of Elizabeth C. Bumgarner Poowegup, Deceased, Defendant-Appellee.
Nos. 125-69, 126-69.
United States Court of Appeals, Tenth Circuit.
April 20, 1970.
Rehearing Denied June 5, 1970.
John S. Boyden, Salt Lake City, Utah (Stephen G. Boyden, Salt Lake City, Utah, on the brief), for Ute Indian Tribe, appellant in No. 125-69 and appellee in No. 126-69.
Wayne L. Black, Salt Lake City, Utah (Robert D. Moore, Salt Lake City, Utah, on the brief), for Parley Probst, appellee in No. 125-69 and appellant in No. 126-69.
James J. Smedley, Heber, Utah (David Sam, Duchesne, Utah, on the brief), for Oranna B. Moosman, appellee in both Nos. 125-69 and 126-69.
Before MURRAH, Chief Judge, and BREITENSTEIN and HICKEY, Circuit Judges.
BREITENSTEIN, Circuit Judge.
We have here a three-way fight over Indian land. Plaintiff-appellant Ute Indian Tribe sued for certain equitable relief and for cancellation of a deed given by defendant-appellee Oranna Moosman as administratrix of the estate of Elizabeth Bumgarner Poowegup to defendant-appellant Parley Probst. Jurisdiction lies under 28 U.S.C. § 1362 because the matter in controversy arises under the Act of August 27, 1954, 25 U.S.C. § 677 et seq. The answer of Probst asserts the validity of the deed and counterclaims for damages. The administratrix denies that the Tribe has any right to the land and, by way of cross-claim against Probst, asserts that the deed to him is void. The district court held that the administratrix was entitled to the land. Both the Tribe and Probst appeal.
The Act provides for the division of the assets of the Tribe between the full-blood and mixed-blood groups, the termination of federal supervision over the latter, and the development of a program for such termination over the former. After the division of the assets between the two groups, the mixed-bloods were to devise a plan for the distribution of its assets among its members. 25 U.S.C. § 6771. If a majority of the mixed-blood group decided that partition of any land was impracticable and, if the Secretary of the Interior approved, the land could be sold and the proceeds divided among members of the group. 25 U.S.C. § 6771 (5). Before the termination of federal supervision, a mixed-blood could dispose of his interest in acquired tribal property only with the approval of the Secretary. See 25 U.S.C. § 677n and 25 CFR § 243.3 (1966 ed.). Federal supervision over tribal land terminated when a patent issued thereto. 25 CFR § 243.2(h). Until August 27, 1964, a patent conveying any tribal land to a mixed-blood had to provide that until that date members of the Tribe had the right of first refusal of an offer to sell. 25 U.S.C. § 677n and 25 CFR § 243.4.
In the division between the groups, the mixed-bloods received the 3,200 acres of land in question. They decided that partition was impracticable and that the land should be sold. It was appraised at $26,600. Secretarial approval is conceded.
Elizabeth, a mixed-blood, submitted the high bid of $26,016 for the land. She did not have the necessary money and interested Probst, a non-Indian, in the land. A written contract was prepared and executed on October 28, 1959, whereby Elizabeth sold to Probst for $35,000 and Probst went into immediate possession. The contract recognized that no patent had been issued and that Elizabeth would have to comply with the first-refusal provision of the statute. Elizabeth gave Probst a $35,000 mortgage on the land to assure compliance with the contract terms. The mortgage was duly recorded. Neither the contract nor the mortgage was submitted to the Secretary for his approval.
On August 11, 1960, the Secretary promulgated regulations as authorized by the Act. 25 U.S.C. § 677z. See 25 CFR §§ 243.1-243.12 (1966 ed.). A patent was issued to Elizabeth on September 20, 1960. It contained the first-refusal provisions required by the statute and regulations. On November 11, 1960, Elizabeth and Probst executed an amendment to the October 28, 1959, contract. It provided that certain escrowed funds be released to Elizabeth; that the required offering should not be made “until such time as the Party of the First Part [Probst] requests that the same be made”; and that if such offering was made at Probst’s request certain conditions for his protection should be included within the offer.
Elizabeth was killed in an accident on November 27, 1963, without making the offer and without conveying to Probst. Oranna was appointed administratrix of Elizabeth’s estate. Probst filed a creditor’s claim against the estate on the basis of the 1959 sale contract and mortgage. Pursuant to court order, the administratrix conveyed the land to Probst by a September 21,1964, deed which was recorded on October 5, 1964. The pending suit was brought by the Tribe on September 20, 1967.
The trial court held that Probst was guilty of fraud; that Elizabeth was not in pari delicto; that the first-refusal provisions “were as much or more for the protecton of the Indian owner as for the protection of the members of the Tribe”; that public policy favored the Indian owner; that the impossibility of reconstructing what would have occurred had there been an offering by Elizabeth and the increase in value of the property supported the award of the land to the administratrix; and that she was not barred by any statute of limitations, by laches, or by estoppel.
The construction and application of § 677n is decisive. The land was a tribal asset. It was real property as that term is used in the section because it was acquired by a mixed-blood. See definition of “real property” in 25 CFR § 243.2 (g). The patent to Elizabeth contained the first-refusal provision. Neither she nor her administratrix made the required offer. The question is the effect of such non-action.
The arguments of the parties lead us into many by-paths which need not be traveled. The Act was intended to distribute tribal property and terminate federal supervision over the mixed-bloods. See § 677 and House Report No. 2493, 2 U.S.Code Cong. & Admin.News ’54, pp. 3355-3359. We are aware of no legislative history which illuminates the intent of the first-refusal provisions. The reliance of the Tribe and the administratrix on the provision of § 677i that a contract made in violation of that section shall be null and void is misplaced. As we read that section it applies to undivided interests and not to real property which a mixed-blood has acquired by purchase. Our concern is whether the statute confers upon the Tribe the unconditional right to meet the price at which the selling mixed-blood offers land acquired from tribal assets.
Contrary to the trial court, we believe that Congress, by incorporating § 677n into the Act, had in mind primarily the protection of the Tribe and only secondarily, if at all, the protection of the selling mixed-blood. The first-refusal provision gave the Tribe, for a ten-year period, the opportunity to recover land which it had lost by the division of assets between the two groups. The language of § 677n means that Congress believed it preferable that tribal land acquired by a mixed-blood, who determined to sell before 1964, return to the Tribe if the Tribe wanted it and could match the offering price. This procedure does not assure a higher price to the mixed-blood, because the Tribe is required only to meet the offering price. Only in the event two or more members of the Tribe compete for acquisition of the land does bidding take place. 25 CFR § 243.7.
The statute must be construed and applied to effectuate the congressional intent. United States v. American Trucking Associations, Inc., 310 U.S. 534, 542, 60 S.Ct. 1059, 84 L.Ed. 1345; see also Federal Trade Commission v. Fred Meyer, Inc., 390 U.S. 341, 348-352, 88 S.Ct. 904, 19 L.Ed.2d 1222. We believe that when a mixed-blood determined within the ten-year period to dispose of his acquired interest, the Tribe had the right to have the property offered to it in accordance with the statute and regulations. Elizabeth determined to sell the land at or before the time when she entered into the first contract with Probst. She did not offer the land to the Tribe. Her administratrix in turn did not offer it, but instead waited until the expiration of the ten-year period and then gave Probst a deed. The Tribe was thus deprived of its statutory right. It makes no difference whether this result was intentional or unintentional or whether it was the upshot of a fraudulent scheme, good-faith ignorance, or ineptness. Whatever the reason, the inescapable fact is that the Tribe was not given the opportunity to reacquire the land.
Probst argues that the assertion of this right is barred by the Utah statute of limitations, Utah Code Ann. 1953, § 78-12-26(3), which provides that a fraud action must be brought within three years after the discovery by the aggrieved party of the fraudulent act. Holmberg v. Armbrecht, 327 U.S. 392, 395-397, 66 S.Ct. 582, 90 L.Ed. 743, holds that a suit in a federal court to enforce in equity a federally created right is not controlled by the forum statute of limitations. The Tribe seeks in federal court equitable relief from the denial of a federal statutory right. There is no applicable federal statute of limitations. Under Holmberg the state statute does not apply and the question is whether the Tribe is chargeable with laches.
The essence of the defense of laches is prejudice to a defendant through unconscionable delay by a plaintiff in the assertion of his claim. Costello v. United States, 365 U.S. 265, 282, 81 S.Ct. 534, 5 L.Ed.2d 551, and Potash Co. of America v. International Minerals & Chemical Corp., 10 Cir., 213 F.2d 153, 154. Unconscionable delay can occur only after a party discovers, or by the exercise of reasonable diligence could have discovered, the wrong of which he complains. Here the wrong was the denial to the Tribe of its right of first refusal. To sustain his claim of knowledge on the part of the Tribe, Probst relies on November 18, 1959, minutes of a tribal meeting stating that Elizabeth was contemplating the sale of the land, the recording of the mortgage, the payment by Probst of taxes on the land, a 1960 telephone call between the lawyers for the Tribe and Probst, a conversation after Elizabeth’s death among Probst, his lawyer, and a tribe official, and the records of the Bureau of Indian Affairs showing that Probst advanced the purchase price to Elizabeth. These facts, considered separately or together, do not show any action by Probst or Elizabeth to deny to the Tribe its statutory right of first refusal. The denial of that right first occurred in the November 11, 1960, amendment to the October 28, 1959, sale agreement. In that document Elizabeth agreed not to offer the land to the Tribe without a request from Probst. The Tribe did not have knowledge of the amendment until the summer of 1966. Even if the Tribe is charged with constructive notice of the recorded deed from the administratrix to Probst, we believe that the delay of less than three years in the institution of the suit was not unconscionable. In any event, Probst has shown no prejudice resulting from the delay. He has been in possession of the land since 1959 and has enjoyed the benefits of its use. In our opinion laches is no bar to the claim of the Tribe.
The question remains of what relief the court should fashion to remedy the wrong. When federally secured rights are invaded, federal courts must adjust their remedies to grant the appropriate relief. J. I. Case Co. v. Borak, 377 U.S. 426, 433, 84 S.Ct. 1555, 12 L.Ed.2d 423; see also Jones v. Alfred H. Mayer Co., 392 U.S. 409, 414, n. 13, 88 S.Ct. 2186, 20 L.Ed.2d 1189. It is impossible to reconstruct what would have occurred if Elizabeth had made the required offering. In addition, the ten-year period fixed by the statute has passed.
To do equity a decree should put the parties in the position where they would have been if the required offer had been made. From our review of the record we are convinced that this should be done without regard to all the charges and countercharges of fraud, misconduct, and bad faith. When everything else is put aside, the fact remains that Probst, Elizabeth, and the administratrix by their actions deprived the Tribe of a federally created right and that right must be vindicated by affording the Tribe an opportunity to acquire the land.
The administratrix points out that the offer required by § 677n must be made “to the members of the tribe” and argues that the Tribe itself may not be the purchaser of the land. We are not persuaded. Under the regulations, 25 CFR § 243.6, the superintendent was required to notify the Tribe of any offers to sell. As found by the trial court in an unchallenged finding of fact, the Tribe had on occasion purchased property offered by mixed-bloods between 1960 and 1964 and these purchases had been approved by the Secretary. Two letters from Assistant Secretaries of the Interior state that the offering required by the Act ran to the Tribe as well as to its members. Construction of an act by the agency charged with its administration should be followed unless there are compelling indications that it is wrong. Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367, 381, 89 S.Ct. 1794, 23 L.Ed.2d 371. Here there are no such indications. What the members of the Tribe can do individually they can do collectively as a tribe.
The administratrix argues that to permit the Tribe to purchase will deprive her of the advantage which might be secured through competitive bidding. The argument comes too late. If either she or Elizabeth desired competitive bidding, they each had time to make the offer which the statute requires; and they chose not to do so. In any event, the first-refusal provision is primarily for the benefit of the Tribe and its full-blood members and only incidently for the benefit of the selling mixed-blood. We see no reason why the Tribe should not have an opportunity to buy the land without putting it up for bidding.
A decree should be entered permitting the Tribe to purchase the land within a reasonable time by the payment to Probst of his purchase price, $35,000, plus interest thereon from October 28, 1959, to November 11, 1960. We cut off the interest on the latter date because then Probst and Elizabeth made the amendment to the contract which circumvented the statute. The payment by Probst of taxes on the land an^d the minor improvements which he made thereon are set off by the fact that he has had the use of the land for over ten years. The decree should make appropriate provisions for investiture of title to the land in the Tribe upon the payment by it of the required amount to Probst.
Reversed and remanded for further proceedings consistent with this opinion.
. Section 677n provides:
“Any member of the mixed-blood group may dispose of his interest in the tribal assets prior to termination of Federal supervision, ’ subject to the approval of the Secretary. In the event a member of the mixed-blood group determines to dispose of his interest in any of said real property at any time within ten years from August 27, 1954, he shall first offer it to the members of the tribe, and no sale of any interest, prior to termination of Federal supervision, shall be authorized without such offer to said members of the tribe in such form as may be approved by the Secretary. After termination of Federal supervision the requirement of such offer, in form to be approved by the Secretary, shall be a covenant to run with the land for said ten-year period, and shall be expressly provided in any patent or deed issued prior to the expiration of said period.”
Question: Did the court's conclusion about the constitutionality of a law or administrative action favor the appellant?
A. Issue not discussed
B. The issue was discussed in the opinion and the resolution of the issue by the court favored the respondent
C. The issue was discussed in the opinion and the resolution of the issue by the court favored the appellant
D. The resolution of the issue had mixed results for the appellant and respondent
Answer: |
songer_casetyp1_7-2 | F | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
McGRATH, Attorney General, et al. v. ZANDER.
No. 10107.
United States Court of Appeals District of Columbia Circuit.
Argued April 15, 1949.
Decided Oct. 10, 1949.
Mr. J. Roger Wollenberg, Washington, D. C., pro hac vice, by special leave of Court, with whom Mr. James L. Morris-son, Attorney, Department of Justice, Washington, D. C., was on the brief, for appellants.
Mr. Joseph W. Bishop, Jr., Attorney,' Department of Justice, Washington, D. C., also entered an appearance for appellants.
Mr. Michael J. Keane, Jr., Washington, D. C., with whom Mr. Karl Michelet, Washington, D. C., was on the brief, for appellee.
Messrs. Donald Hiss and Clifton J. Stratton, Jr., Washington, D. C., filed a brief for Emily Pavenstedt Fritze and Ellen Biddle Stackelberg as amici curiae, urging affirmance.
Before CLARK and PROCTOR, Circuit Judges, and ARTHUR F. LEDERLE, District Judge, sitting by designation.
PROCTOR, Circuit Judge.
Appellee, a native born adult citizen of the United States, with home and domicile in New Orleans, went to Germany in June, 1939, for a visit, with her return passage booked for September 9, 1939. A train of fortuitous circumstances, starting with the sudden invasion of Poland, delayed and finally prevented her return. While so detained, she fell in love with and married Dieter Zander, a German citizen. According to German law the marriage “bestowed” upon her the citizenship of her husband. Yet, she rejected all theories of German citizenship as an incident of her marriage, which was planned with Zander upon the condition and understanding that their matrimonial domicile should be established permanently in New Orleans, where she had lived for many years, and that the marriage would in no way affect her status as an American citizen. Upon announcing their engagement Zander was drafted into the German Army, but while on a leave ox absence they were married. It was understood that she should return to New Orleans whenever possible, and the fortunes of war permitting—he would join hef there. During hostilities between Germany and the United States, Mrs. Zander was registered and treated as an alien by German authorities and kept under constant surveillance. She avoided all acts in aid of the German war effort, even resorting to connivance with a friendly German physician to simulate physical illness when examined for such work. She did nothing inconsistent with loyalty to the United States and did all things within her power to maintain American citizenship and alle^giance. In the spring of 1945, disguised as a refugee, she fled some two hundred miles to the American Army, to which she rendered service for many months. Finally, in May, 1946, with assistance of American officials, she returned to the United States. Finding that her Aunt, with whom she lived in New Orleans, had died, she settled in New Jersey with her cousin, a daughter of the Aunt, bringing all her belongings from the home in New Orleans.
While serving with the German Army in Africa, Zander was taken prisoner and sent to the United States. There he ingratiated himself with American authorities by assisting in indoctrinating his fellow prisoners with the principles of democracy. Finally in 1947 he was sent to Germany and discharged; whereupon he returned to the United States upon an immigration visa and joined his wife at her home in New Jersey, where they now live “as American citizens.” We infer, therefore, that he is permanently settled there and seeking American citizenship.
When Mrs. Zander, appellee, departed for Europe she held a remainder interest in a trust estate created by her grandfather, an American citizen. This interest matured while she was in Germany. The estate was held by a national bank in Kansas, as Trustee, subject to the supervision of a Kansas Court. None of the principal or income was ever paid to Mrs. Zander. In fact, while in Germany, she was dependent upon funds coming from German sources. The foregoing facts are gathered from a lengthy stipulation, upon which by agreement the case was heard by the trial court. The stipulation was also adopted by the Judge for his findings of fact.
The interest of appellee in said estate, $112,391.40 in cash, was seized and vested in the Alien Property Custodian under authority of the Trading With the Enemy Act, as amended, 50 U.S.C.A. War Appendix, § 1 et seq., hereafter sometimes referred to as the Act. The present controversy arises out of Mrs. Zander’s suit in the District Court to recover that fund.
The claim is laid in two alternative counts. The first rests upon Section 9(a) et seq., of the Act and the allegation that Mrs. Zander was not an “enemy or ally of enemy” within the meaning of Section 2(a), not being “resident within the territory” of Germany. The second rests upon the amendment of December 18, 1941, Section 32(a), and allegations that appellee had filed a claim with the Alien Property Custodian for return of the seized funds and although entitled thereto the claim had been refused.
Without passing upon the claim as stated in count one, the court entered judgment in Mrs. Zander’s favor upon count two, holding that her status as a citizen of the United States remained unaltered by her marriage to a German citizen. In reaching this conclusion the court assumed jurisdiction under Section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1009 (a), to review the proceedings before the Custodian, and treated the action taken by him as a final determination and refusal of the claim. Accordingly judgment was entered upon count two for return of the funds. This appeal followed.
In attacking the judgment appellants contend: (1) Section 9(a) of the Act provides the only judicial remedy for a return, all others being precluded by Section 7(c) ; (2) the claim before the Custodian, under Section 32(a), rested within his discretion, especially so in view of the statutory requirement for certain findings by the President, or his representative (the Custodian), including a determination that return is “in the interest of the United States”; (3) assuming authority in the court to review proceedings under Section 32(a), there yet was no final refusal of the claim, no determination thereof, and no findings thereunder,—at most only suspension of action to await anticipated legislation; (4) there was no exhaustion of the administrative remedy. For these reasons appellants insist that the court lacked jurisdiction to grant any relief itnder Section 32(a), upon which count two is based. We agree with these contentions.
Section 32(a) is an integral pan. of the Trading With the Enemy Act. Section 7(c) limits the means of reclaiming seized property to the “relief or remedy” provided by the Act itself. Section 9(a) provides the only judicial remedy for reclaiming vested property. Uebersee Finanz-Korporation v. Markham, 1946, 81 U.S. App.D.C. 284, 285, 158 F.2d 313, affirmed 1947, 332 U.S. 480, 68 S.Ct. 174, 92 L.Ed. 88; Cummings v. Hardee, 1939, 70 App.D.C. 18, 23, 102 F.2d 622. Yet, notwithstanding this positive limitation the District Court assumed authority to review the proceedings before the Custodian by virtue of the Administrative Procedure Act, 5 U.S.C.A. §§ 1001-1011. This, we think, was error. Section 10 of that Act, 5 U.S. C.A. 1009, excepts from review administrative rulings where “(1) statutes preclude judicial review or (2) agency action is by law committed to agency discretion.” Here both exceptions stand as bars. Section 7 (c) of the Trading With the Enemy Act precludes it. The discretionary nature of the action granted the Custodian by Section 32(a) precludes it. We gather also from the legislative history that judicial review was not intended by Congress. See Hearings before House Committee on the Judiciary (Sub-committee 1) on H.R. 3750, 79th Cong., 1st Sess., pp. 14, 35, 52; H.R.Rep. 1269, 79th Cong., 1st Sess.; S.Rep. 920, 79th Cong., 2d Sess. We may also add, without extending this opinion by any detailed reference to the record, that in our judgment there was no final determination or refusal of the claim by the Custodian, and no action that can properly be so construed. Hence, at all events, there was no exhaustion of the administrative remedy, an essential condition to judicial review. Myers v. Bethlehem Corp., 1938, 303 U.S. 41, 51, 58 S.Ct. 459, 82 L.Ed. 638; Aircraft & Diesel Corp v. Hirsch, 1947, 331 U.S. 752, 757, 67 S.Ct. 1493, 91 L.Ed. 1796.
It follows that we must hold the court was without jurisdiction to review the administrative proceedings or grant any relief under Section 32(a), upon which count two of the complaint is based. The judgment, as it now stands, must be vacated. However, this does not dispose of the matter, for we are of the opinion that the conceded facts stated in the stipulation and adopted as the court’s findings, establish a case entitling appellee to recover upon count one, grounded upon section 9 (a) of the Act. " That section authorizes suit in the District Court after filing of a notice of claim with the Custodian, where no application has been made to the President. In those circumstances this suit was filed. Count one is grounded upon the allegation that Mrs. Zander was not “an enemy or ally of enemy” of the United States. Although the allegation is denied, conceded facts leave only the legal question whether she was “resident within” Germany. Citizenship is not directly involved. True it is that mere presence within enemy territory of an enemy national during hostilities is usually a prohibitive factor against the discretionary power of return granted the President or his delegate by Section 32(a). However, a court is required to return under Section 9(a) if the claimant be not an “enemy or ally of enemy,” which as defined by Section 2 includes “Any individual * * * of any nationality, resident within the territory * * * of any nation with which the United States is at war * * The two sections 9(a) and 32(a) are independent and exclusive of each other. The latter, we think, was added to serve the limited purpose of affording speedy administrative relief (when found by the Executive in the interest of the United States) to certain classes technically banned under Section 9(a), such as nationals of countries overrun by the enemy who remained loyal to the Allied Cause. Although, with certain exceptions, citizenship and presence within the territory of an enemy country bar relief under the discretionary Executive authority granted by Section 32(a), they, of themselves, do not bar recovery under Section 9(a). Vowinckel v. First Federal Trust Co., 9 Cir., 1926, 10 F.2d 19; Stadtmuller v. Miller, 2 Cir., 1926, 11 F.2d 732, 734, 45 A.L.R. 895. The provisions of that section, as concern the courts’ jurisdiction, remain unaffected by Section 32(a). In dealing with the Trading With the Enemy Act we must, as the Supreme Court says, endeavor to give all of it the most harmonious, comprehensive meaning possible. Clark v. Uebersee Finanz-Korp., 1947, 332 U.S. 480, 488, 68 S.Ct. 174, 92 L.Ed. 88.
We recur then to the decisive question. Was appellee “resident within” Germany? If so, she became an enemy under Section 9(a) and would not be entitled to recover. The crucial term “resident within” has been interpreted in Josephberg v. Markham, 2 Cir., 1945, 152 F.2d 644, 648-649; Vowinckel v. First Federal Trust Co., supra, 10 F.2d at pages 20, 21; Stadtmuller v. Miller, supra, 11 F.2d at pages 737-739, 45 A.L.R. 895, and Sarthou v. Clark, D.C.S.D.Cal.1948, 78 F.Supp. 139, 142. This last case epitomizes the several rulings in these words: ll * * * ‘resident within the territory’ as employed in the Act connotes something different from and more than living within the specified areas. It is rather indicative of a settled and permanent place of abode, volitionally acquired and voluntarily assumed. It is a habitation having domiciliary properties.”
We agree with those- decisions. Adopting them as correctly interpreting the critical words before us, we find nothing in the facts to bring appellee within the statutory category of "resident within”' Germany, unless it be that marriage technically imposed upon her the residence or domicile of her husband. Otherwise the conclusion is irresistible that Mrs. Zander left the United States for a short stay in Germany with the definite intention of returning to her home in New Orleans, became an unwilling sojourner in Berlin, and was forced by the hard realities of war to remain there, contrary to her unfaltering desire and intention to get away and return to her home and domicile in the United States, as soon as she could do so. We are mindful of the rule that the domicile of a wife usually follows that of her husband. Yet, we think, in the unusual circumstances of this case, such a result could not fairly or justly be considered to have followed the marriage of appellee. The rule is not unyielding. It amounts to no more than a prima facie presumption. Commonwealth v. Rutherfoord, 1933, 160 Va. 524, 169 S.E. 909, 90 A.L.R. 348. As the Supreme Court long ago declared, a wife “may acquire a separate domicil whenever it is necessary or proper that she should do so. The right springs from the necessity for its exercise, and endures as long as the necessity continues.” Cheever v. Wilson, 1869, 9 Wall. 124, 19 L.Ed. 604. And the court adds, the law “is so well settled that it would be idle to discuss it.” See also Williams v. North Carolina, 1942, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273, and Oxley v. Oxley, 1946, 81 U.S.App.D.C. 346, 159 F.2d 10.
Accepting the proposition that a married couple may by mutual understanding or individual action establish separate domiciles, we can see no just ground to question the legal propriety of Mr. and Mrs. Zander’s agreeing before marriage to keep their separate domiciles until the restraints and vicissitudes of war were ended, when with good fortune they could join each other at her home in America. See Commonwealth v. Rutherfoord, supra. We find nothing in the German law to conflict with these views. Even if that were so, we think that the law of this country should govern the case, involving, as it does, the construction and application of an Act of Congress concerning an American citizen in respect to property within the United States.
In planning her marriage to a German it was natural that this lady, with undiminished love and loyalty to her own land and a determination to return there as soon as possible, should seék to preserve unaffected her American citizenship and domicile. Indeed it was to the interest of the United States that she do so. Her citizenship was preserved by the Cable Act. Act of September 22, 1922, Sec. 3, 42 Stat. 1022. We think, under the conditions confronting her, it was entirely proper that she should insist upon maintaining her domicile in New Orleans, to which we see no legal barrier, in view of Mr. Zander’s consent, especially when backed by his own determination to make America his future home. And the good faith of this understanding is .proven by the persistency with which both pursued it to a final consummation.
We hold, therefore, that Mrs. Zander never lost her domicile in America; that she was never “resident within” Germany and not an “enemy” within the purview of Section 9(a). Accordingly we hold that she is entitled to recover under count one of the complaint. To hold otherwise would be, in the language of the Court in the Stadtmuller case, 11 F.2d at page 739, 45 A.L.R. 895, “to impute to Congress an intention which the act does not, in our opinion, warrant, and which is so repugnant to our ideas of justice and equity that we cannot believe that Congress ever intended such a result.”
We think it unnecessary to send the case back to the District Court to adjudicate, appellee’s rights trader Section 9(a), as suggested by appellants. The facts are conceded and without conflict. As stated in the stipulation they constitute the findings of the trial court. They admit of hut one conclusion. Nothing is left but a proper application of the law. Therefore, we remand the case with direction to vacate the present judgment on the second count and enter a judgment in favor of appellee for the sum claimed in the first count.
So ordered.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
songer_applfrom | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
H. B. GOLDSMITH, next friend of Byron Lance Goldsmith, a minor, et al., Plaintiffs-Appellees, v. QUITMAN INDEPENDENT SCHOOL DISTRICT et al., Defendants-Appellants.
No. 72-1255
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
June 12, 1972.
Welby K. Parish, Gilmer, Tex., for defendants-appellants.
Ken T. Miller, Jr., Tyler, Tex., for plaintiffs-appellees.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
Rule 18, 5th Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.
PER CURIAM:
This appeal involves the “Boy’s Dress and Hair Code” of the Quitman Independent School District. The District Court enjoined the enforcement of the Regulation.
The judgment of the District Court is vacated and the cause is remanded for further proceedings not inconsistent with Karr v. Schmidt, 5 Cir., 1972, 460 F.2d 609 (En Banc).
Vacated and remanded with direction.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
George WILLIAMS, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 16793.
United States Court of Appeals District of Columbia Circuit.
Argued March 8, 1962.
Decided May 4, 1962.
Mr. Alvin Friedman, Washington, D. C., with whom Mr. Nestor S. Foley, Washington, D. C. (both appointed by this court), was on the brief for appellant.
Mr. William H. Collins, Jr., Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Nathan J. Paulson, and Joseph A. Lowther, Asst. U. S. Attys., were on the brief, for appellee. Mr. Judah Best, Asst. U. S. Atty., also entered an appearance for appellee.
Before Edgerton, Danaher and Burger, Circuit Judges.
DANAHER, Circuit Judge.
A jury found appellant guilty of assault with a dangerous weapon, larceny and assault with intent to kill, but acquitted him on two other counts not now material. It is urged on this appeal that certain statements by the appellant to the police were improperly received in evidence against him because they had been made during a period of unreasonable delay before preliminary examination by the Commissioner. For like reason, appellant also contends that a statement to a store owner made by the accused after he had been taken to the scene of the crime should not have been admitted.
The burglar alarm at National Coin Company sounded during the early morning hours of March 6, 1961 just as Detective Perkoski was driving by. He testified that he saw the appellant come from behind a screen door at the premises and thereupon arrested him. The officer marched the prisoner to a call box from which he sent for the police patrol. Appellant thereupon attacked the officer, struck him in the eye and knocked him down. The prisoner seized the officer’s service revolver, pointed it at the prone officer, and said “Come on if you want it; come on and get it.”
Perceiving the approach of Sgt. Young, Detective Perkoski warned Young that the prisoner had Perkoski’s revolver, whereupon Williams commenced to run, pursued by Sgt. Young. Williams pointed the revolver at Sgt. Young and fired one shot. Young returned the fire, but Williams escaped.
Within a few minutes after service of a warrant for the arrest of Williams, he was brought to the Safe Squad at police headquarters about 10:30 A.M., March 6, 1961. Detective Hudlow warned Williams that anything he might say could be used against him. Without objection, it was testified that Williams told the detective, during the next thirty minutes, that he had gone to the National Coin Company’s place of business for the purpose of breaking in; while he was attempting to do so, a plate glass window was broken, the burglar alarm was sounded and he was apprehended as he attempted to leave the scene. Officer Hudlow testified further that Williams said he saw he had a chance to strike the officer, that he did so and thereupon seized the police revolver. Williams stated that he had been drinking and had no knowledge that he had fired at Sgt. Young, but he was sobered up as he realized that he had been shot at. He turned into a hallway in a house where his sister lived, ran out on a balcony, dropped to the ground, and then made his way to another house where he hid under the porch. He threw the gun away and went to the home of another sister.
The various police officer witnesses were not cross-examined.
Taking the stand in his own behalf, appellant denied all charges, denied that he had made any inculpatory statements to the police, and offered by way of alibi, that he had not been in the neighborhood as described by the police.
He testified that when he was placed under arrest he told the officers that they had the wrong man, but they took him to police headquarters. He testified that when confronted by Sgt. Young he said “No, Man, if I had the gun, why I want to try to shoot you when I can run just as good ?”; that the police “been beating on me”; that they had several confessions drawn up but that he would not put his name on a paper for something he did not do. Williams admitted to various prior criminal convictions for armed robbery, petty larceny and unlawful entry.
Vvffien Officer Hudlow was testifying as a rebuttal witness, it developed that Williams had been taken back to the premises of the National Coin Company and that he had there told the man in charge “I tried to break into your company last night.”
Trial counsel, asked if he had prayers to submit, replied in the negative. The Government requested an instruction on the “voluntariness” of the statement by the accused, but upon objection by defense counsel, the Government’s suggestion was withdrawn. Counsel took no exception to the charge as given, but after the verdict had been received, he moved for a judgment of acquittal n. o. v. For the first time it was urged that the jury’s verdict had been based upon “a supposed confession which was obtained from the jury [sic] while [the prisoner] was being illegally detained.”
The trial judge noted that the appellant’s statements had been taken at police headquarters within a brief period of time following the arrest. He pointed out that he had earlier called attention “to the fact that no objection whatever was made to this confession at the time that the testimony was put in during the trial. It only comes in now, and there was no motion of any kind to suppress the confession. Why is it made at this late date?” Counsel replied that as he saw the case, “The only damaging information in the case was this supposed confession.” The judge asked “What about the direct testimony of the police officers?” to which counsel replied “That was with a person who has not—who was not sufficiently described as far as that night is concerned.” The judge replied that “Perkoski arrested him, carried him down to the patrol box, held him there at the patrol box for awhile and then after he was knocked down, looked up; in his face was a pistol pointing down his gullet. Gracious sakes alive, I don’t know anybody who would be in a better position to identify him than Perkoski.” Then the judge ruled:
“Well, in any event, as I see it:
“1. The confession was made within an hour of arrest.
“2. No objection is made until after the verdict. And I will deny the motion.”
Had there been timely and adequate objection at the trial, we could agree with the argument advanced by counsel appointed by this court that the trial judge should have excluded the statement attributed to Williams when he was brought back to the store of the National Coin Company. By that time, the police already were possessed of ample evidence of probable cause upon which they could and should have brought Williams before the Commissioner. Instead, they took the appellant to the scene of the crime. The statement then made could be said to have been elicited during a period of unreasonable delay, and hence to have been erroneously received in evidence. Defense counsel, however, did not object on Mallory grounds, but on the ground that such testimony was outside the scope of “direct examination.”
As matters stand, we do not find sufficient prejudice to justify reversal for plain error in light of the record as a whole. There is ample evidence otherwise predicating the conviction. The direct testimony of the officers alone was sufficient entirely apart from any statements made by the accused shortly after his arrest.
Under all the circumstances, we find no adequate basis upon which to disturb the judgment of the trial court.
Affirmed.
. Trilling v. United States, 104 U.S.App.D.C. 159, 260 F.2d 677 (1958); Watson v. United States, 101 U.S.App.D.C. 350, 249 F.2d 106 (1957); Ginoza v. United States, 279 F.2d 616 (9 Cir. 1960).
. Ruffin v. United States, 106 U.S.App.D.C. 97, 269 F.2d 544, cert. denied, 361 U.S. 865, 80 S.Ct. 129, 4 L.Ed.2d 107 (1959); Gilliam v. United States, 103 U.S.App.D.C. 181, 257 F.2d 185 (1958), cert. denied, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959); Blackshear v. United States, 102 U.S.App.D.C. 289, 252 F.2d 853 (1958), cert. denied, 359 U.S. 1004, 79 S.Ct. 1144, 3 L.Ed.2d 1033 (1959); Lawson v. United States, 101 U.S.App.D.C. 332, 248 F.2d 654 (1957), cert. denied, 355 U.S. 963, 78 S.Ct. 552, 2 L.Ed.2d 537 (1958).
. Johnson v. United States, 110 U.S.App.D.C. 187, 290 F.2d 378 (1961); Perry v. United States, 102 U.S.App.D.C. 315, 316 n. 2, 253 F.2d 337, 338 n. 2 (1957), cert. denied, 356 U.S. 941, 78 S.Ct. 785, 2 L.Ed.2d 816 (1958); Lawson v. United States, supra note 2; Mumforde v. United States, 76 U.S.App.D.C. 107, 110, 130 F.2d 411, 414, cert. denied, 317 U.S. 656, 63 S.Ct. 53, 87 L.Ed. 527 (1942); Thomas v. United States, 287 F.2d 527, 530 (5 Cir.), cert. denied, 366 U.S. 961, 81 S.Ct. 1923, 6 L.Ed.2d 1254 (1961).
. There was no objection to the statements when offered, see Thomas v. United States, 106 U.S.App.D.C. 5, 268 F.2d 581 (1959); Ruffin v. United States, supra note 2.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
songer_bank_r2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether or not the second listed respondent is bankrupt. If there is no indication of whether or not the respondent is bankrupt, the respondent is presumed to be not bankrupt.
Patricia Ann LEVIN, Appellant, v. WEAR-EVER ALUMINUM, INC. and Edmond Kennedy, Jr.
No. 18796.
United States Court of Appeals, Third Circuit.
Argued May 4, 1970.
Decided June 1, 1970.
Robert M. Ross, Richter, Syken, Ross, Binder & O’Neill, Philadelphia, Pa., for appellant.
Richard M. Shusterman, White & Williams, Philadelphia, Pa., for appellee Wear-Ever Aluminum, Inc.
Before HASTIE, Chief Judge, and MARIS and FREEDMAN, Circuit Judges.
OPINION OF THE COURT
MARIS, Circuit Judge.
In this case the plaintiff, Patricia Ann Levin, brought suit against the defendants, Wear-Ever Aluminum, Inc., and Edmond Kennedy, Jr., in the District Court for the Eastern District of Pennsylvania to recover damages for injuries suffered by her in an automobile accident. Defendant Kennedy was the driver of the automobile which struck her and she alleged that defendant Wear-Ever Aluminum, Inc., was his employer or principal.
At the first trial of the case, defendant Wear-Ever Aluminum, Inc., made a motion at the close of the plaintiff’s case, and again at the close of all the evidence, for a directed verdict in its favor. Treating this as a motion to dismiss as to that defendant, the trial judge orally granted the motion and a notation to that effect was entered on the docket on April 29, 1968. However, no written order was filed. The trial proceeded as to the defendant Kennedy and the jury, being unable to agree upon a verdict, was discharged. Thereafter, following certain proceedings not here necessary to recite, the case came on for a second trial as to the defendant Kennedy at which trial the jury rendered a verdict of $35,000.00 in favor of the plaintiff and against that defendant on January 9, 1970. The present appeal by the plaintiff followed. See, 306 F.Supp. 511.
We have before us a motion by the plaintiff to remand the record to the district court for the entry of a final appealable judgment in favor of Wear-Ever Aluminum, Inc., in accordance with the oral decision dismissing the complaint as to it to which we have referred, and a counter motion by the defendant Wear-Ever Aluminum, Inc., to dismiss the present appeal. The appeal must be dismissed because the record does not disclose the existence and entry on the docket of the district court of a final appealable judgment terminating the litigation.
Rule 58, F.R.Civ.P., as amended effective July 1, 1963, provides:
“Subject to the provisions of Rule 54(b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for the taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.”
Rule 79(a), F.R.Civ.P., in pertinent part provides:
“ * * * all appearances, orders, verdicts, and judgments shall be entered chronologically in the civil docket on the folio assigned to the action and shall be marked with its file number. These entries shall be brief but shall show * * * the substance of each order or judgment of the court * * *. The entry of an order or judgment shall show the date the entry is made. * * * ”
The decision noted on the docket on April 29, 1968 was not an appealable jixdgment. In the first place it terminated the litigation as to only one of the two defendants named in the complaint and did not contain a determination that there was no just reason for delay or an express direction for the entry of judgment as required by Rule 54(b), F.R.Civ.P., to make it final and appeal-able. And in the second place, it does not appear that the decision was committed to writing, let alone being set forth on a separate document which is, as we have seen, specifically required by Rule 58, F.R.Civ.P.
Nor was an appealable judgment prepared and entered upon the verdict which was rendered against defendant Kennedy on January 9, 1970. It appears that upon a memorandum prepared in part by counsel and in part by the courtroom deputy clerk, the deputy clerk wrote the following words: “Judgment accordingly” following the typed entry “Jurors returned Special Verdict by answering interrogatories: Verdict in favor of Plaintiff in the amount of $35,000.00 and against the defendant, Edmond Kennedy, Jr.” On the docket of the district court there appears under date of January 9, 1970 the following entry: “Minute order verdict in favor of Plff. in sum of $35,-000 against deft., filed.” No final appealable judgment conforming to the Federal Rules of Civil Procedure resulted from these proceedings for two reasons. The first is that no judgment set forth on a separate document as required by Rule 58, F.R.Civ.P., was prepared and signed. And the second is that no notation of a judgment was entered on the docket of the district court as required by Rules 58 and 79(a), F.R.Civ.P.
The provisions of Rule 58 that “Every judgment shall be set forth on a separate document” and “is effective only when so set forth and when entered as provided in Rule 79(a)” in the docket were designed to eliminate just such uncertainty as has arisen in this case as to whether and when a judgment has been rendered and entered which is effective to start the time running for appeal. See Advisory Committee Note to Rule 58, F.R.Civ.P., as amended January 21, 1963, 28 U.S.C.A., Rule 58, Cumulative Annual Pocket Part. These provisions are mandatory in all cases. Jenkins v. United States, 3 Cir. 1963, 325 F.2d 942; Pure Oil Company v. Boyne, 5 Cir. 1966, 370 F.2d 121; Home Federal Sav. & L. Ass’n of Chicago v. Republic Ins. Co., 7 Cir. 1968, 405 F.2d 18, 25. Accordingly, upon the return of the record following the dismissal of the present appeal it will be the duty of the clerk of the district court, by himself or a deputy clerk, to proceed forthwith, as directed by clause (1) of Rule 58 to prepare on a separate document, sign and enter on the docket of the court, a judgment dismissing the complaint as against defendant Wear-Ever Aluminum, Inc., and awarding the plaintiff the sum of $35,000.00 with interest and costs as against the defendant Edmond Kennedy, Jr., thus providing an effective judgment from which the parties may appeal if they desire to do so.
The present appeal will be dismissed.
. As to an appropriate form for such a judgment see Forms 31 and 32 in the Appendix of Forms to the Federal Rules of Civil Procedure.
Question: Is the second listed respondent bankrupt?
A. Yes
B. No
Answer: |
songer_appsubst | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Florence SHAW, Administratrix of the Estate of Charles Edward Gilbert, Deceased, Appellant, v. Gary F. BOTENS, by his Guardian ad litem, Donald Botens, Defendant, and Nationwide Mutual Insurance Company, Garnishee-Appellee.
No. 17185.
United States Court of Appeals Third Circuit.
Argued Oct. 11, 1968.
Decided Nov. 19, 1968.
Milford J. Meyer, Meyer, Lasch, Hankin & Poul, Philadelphia, Pa. (Louis A. Fine, Honesdale, Pa., on the brief), for appellant.
Hugh J. McMenamin, Warren, Hill, Henkelman & McMenamin, Scranton, Pa. (Walter L. Hill, Jr., Scranton, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This appeal seeks reversal of a District Court (1) judgment dated January 16, 1968, for plaintiff against the garnishee (Nationwide Mutual Insurance Company) in the amount of $731.09 (representing interest on $25,000. previously paid by the garnishee on account of plaintiff’s June 30, 1966, judgment against defendant of $33,485.08), and (2) order dated December 19, 1967, sustaining objections of the garnishee to most of plaintiff’s garnishment claim. Plaintiff contends that she was entitled to proceed in the garnishment action to recover $8,485.08, with interest thereon, in addition to the above $731.09.
After trial of this automobile accident persona] injury action, claiming damages under the Pennsylvania Wrongful Death and Survival Acts for the death of a passenger, the judgment of June 30, 1966, for plaintiff was entered. The garnishment proceedings were instituted on December 12, 1966. The background facts and the conclusion of the District Court are summarized in the able District Court opinion, Shaw v. Botens, 278 F.Supp. 226 (M.D.Pa.1968), where the following language appears;
“Pursuant to the insurance contract, defendant was represented by counsel of Nationwide’s choice who was entrusted with all phases of the case from investigation through the post trial motions. Defendant did not have private counsel. Plaintiff offered to settle for the policy limits of $25,000, but Nationwide refused. After denial of the post trial motions, Nationwide paid plaintiff the $25,000.
“Plaintiff then filed a praecipe for writ of execution against defendant. The writ directed the Marshal to attach the property of the defendant in the possession of Nationwide as garnishee. * * *
“Plaintiff contends that Nationwide breached its duty of fair representation by rejecting plaintiff’s offer of settlement thereby subjecting defendant to liability for the deficiency between the judgment and the policy limits; that a claim for the breach lies against an insurer; that the claim is assignable and that the attachment worked an assignment; and that the garnishment and interrogatories under Pennsylvania procedure constitute a pleading which states the cause of action of breach of duty of fair representation. Nationwide contends that there is no debt in the present posture of this lawsuit which is attachable through garnishment; and that in effect plaintiff is attempting to set herself up as a third party beneficiary under the insurance contract, which was not intended by either Nationwide or defendant.
“In Gray v. Nationwide Mut. Ins. Co., 1966, 422 Pa. 500, 223 A.2d 8, the Pennsylvania Supreme Court clearly held that an insured has a cause of action in assumpsit against an insurer which subjects the former to liability by virtue of a breach of the fiduciary duty of good faith representation. In Gray, there was an actual assignment to the injured party of the insured’s rights against the insurer, which the court held to be a proper assignment. The question presented here is whether under the doctrine of equitable assignment and by means of garnishment proceedings, plaintiff is permitted to pursue the same course without an actual assignment.
“Plaintiff has cited no Pennsylvania authorities for her contention and this court has found none. The question which is basic to all others is whether there existed, either actually or potentially, a right or debt of defendant capable of being enforced by plaintiff. This court believes the answer must be that the claim, if it exists, has not matured to the point where it is enforceable through garnishment proceedings.” (278 F.Supp. 227-28)
This is not a case where the plaintiff is making a mere general contention that the insurer has not acted in good faith and with due care, since the record contains, in affidavit form, the following detailed statement of the plaintiff’s principal claim in the execution proceeding:
“4. Upon institution of this action said Insurance Company retained Hugh J. McMenamin, Esquire, to represent both it and the defendant in the action and said attorney did in fact so represent both in the defense of this action;
“5. During the pendency of the primary action and prior to and during the trial thereof offers were made by plaintiff’s attorneys to Mr. Mc-Menamin to compromise and settle the same for an amount within the coverage of the said policy;
“6. At all times aforesaid Mr. McMenamin refused said offers and failed or refused to disclose the amount of insurance coverage under the said policy;
“7. On June 30, 1966, after the trial of the primary action, judgment was entered in favor of the plaintiff and against the defendant in the sum of $33,485.08;
“8. An attachment execution naming the said Insurance Company as garnishee has been issued on the said judgment and served upon it;
“9. By reason of the failure of garnishee to act in good faith in the defense and settlement of the primary action, the defendant therein has incurred a judgment which is in excess of the limits of coverage in the said policy and a cause of action has accrued to the defendant against the garnishee for the amount in which the judgment exceeds the policy coverage;
“10. Plaintiff’s attachment has effected an assignment of the said cause of action from defendant to plaintiff;”
The Pennsylvania Supreme Court has held that the failure of an insurer to comply with its obligation to act in good faith and with due care in representing the interests of the insured constitutes a breach of a contractual obligation “for which an action in assumpsit will lie.” See Gray v. Nationwide Mutual Insurance Company, 422 Pa. 500, 223 A.2d 8, 11 (1966). The Gray case held, further, that this contractual obligation was assignable by the insured to a plaintiff having secured a judgment in a personal injury action against the insured.
The Pennsylvania Procedural Rules provide that a writ of execution is available to attach a debt owed by the garnishee to the defendant. See Rules 3101(b) (1) and 3102, 12 P.S.Appendix. As stated in paragraph 6 of the comments to these execution rules, they “provide a method for the attachment of the debt itself” and “The scope of attachment is also enlarged to include tangible or intangible property of the defendant in the custody, possession or control of a garnishee.” Rule 3148(a) provides: “A judgment entered against the garnishee * * * shall (1) be in the form of a money judgment if the garnishee owes a debt to the defendant.”
The Pennsylvania Supreme Court has held that attachment works “an assignment to the plaintiff of the debt due to the defendant from the garnishee.” See In re Boyd’s Estate, 394 Pa. 225, 242-243, 146 A.2d 816, 825 (1958), and cases there cited. The Supreme Court of Pennsylvania has permitted attachment of amounts due under the terms of an insurance policy to a judgment debtor by the plaintiff who holds such judgment. See Boyle v. Franklin Fire Insurance Company, 7 W. & S. 76 (1844); Girard Fire & Marine Insurance Co. v. Field, 45 Pa. 129 (1863) ; Fritchie v. Miller’s Pa. Extract Co., 197 Pa. 401, 47 A. 351 (1900). In the Fritchie case, judgment was recovered by the representative of a minor child of a decedent against his employer. An attachment execution was issued against an insurance company which had insured the employer against all liability for damages on account of injuries suffered by its employees up to the amount of $1500. and which had contested its liability under the policy. The court used this language at page 404 of 197 Pa., 47 A. at page 351, in affirming judgment of liability against the insurance company garnishee:
“The only defense of the insurance company to the case at bar is, (1) that it has not consented to an assignment of any interests of the insured to the plaintiff, and (2) that the insured has not suffered any loss, and therefore cannot give to the plaintiff any better right against the insurer than it would have. The defense, however, is not an answer to the judgment against the insured, nor an obstruction to the issuance of an attachment execution, and a service of the same upon the insurer as garnishee. There is nothing in the policy which would justify a denial to the plaintiff of any rights secured to her, for the use of Maria Fritchie, or in the judgment entered by the court below; nor is there anything in the attachment execution and the service thereof upon the insurer as garnishee, which furnishes any just cause for complaint.”
The District Court’s conclusion that the claim had not matured sufficiently to make garnishment proceedings available because the insured defendant had not taken any steps to assert a claim and the garnishee insurance company had not conceded that it had violated its obligation to act in good faith and with due care in representing the interests of the insured does not appear to be consistent with the foregoing decision in the Fritchie case. The claim became definite and liquidated by the refusal of the insurer to settle prior to the entry of the June 30, 1966, judgment and the entry of that judgment in a definite amount, provided that plaintiff can establish its allegations that such insurer-garnishee failed “to act in good faith in the defense and settlement of the primary action” (par. 9, supra, at page 152).
Furthermore, the Pennsylvania appellate courts have consistently determined the validity of alleged claims against an insurer-garnishee in garnishment proceedings in which such a garnishee has contested (as does the garnishee in this case) its liability under the policy. See, e. g., Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963); Dariano v. Blacksom, 389 Pa. 96, 132 A.2d 186 (1957) ; Vrabel v. Scholler, 369 Pa. 235, 85 A.2d 858 (1952).
In making the difficult determination of what ruling the Pennsylvania appellate courts would make in this situation (where there are no cases precisely in point), we agree with appellant that the use of garnishment proceedings in this case is consistent with this language in the Gray case, supra, at page 12 of 223 A.2d:
“If we permit the assignment in eases such as the one at bar, bankruptcy proceedings would be unnecessary; the insured, after a judgment has been rendered against him, can follow the more simple and less expensive procedure of assigning the cause of action against the insurer, directly, to his judgment creditor.”
Also, the following language from the Gray case (page 13 of 223 A.2d) negatives appellee’s contention that the use of the garnishee process to determine the validity of this alleged claim under the policy would defeat “the express purposes of Gray” (page 9 of appellee’s brief):
“As Judge Hoffman so ably reasoned in his dissenting opinion: ‘The fears of the lower court are unwarranted. The possibility of collusion between a judgment holder and an insured is no way increased by an assignment. If the insured’s liability on the judgment is not affected by the assignment, the interests of the parties are similarly unaffected. Whether the action would be brought in the name of the policyholder or in the name of the assignee, the policyholder would be intent upon relieving himself of the excess judgment, and the assignee would be seeking to secure the balance due him. If the insured’s liability is terminated by the assignment, as in the present case, the possibility of collusion is more remote. Having been relieved of the judgment, the insured no longer has any pecuniary interest in the outcome of the litigation.’ Gray v. Nationwide Mutual Insurance Co., 207 Pa.Super. at 10, 11, 214 A.2d at 639. (Dissenting opinion by Hoffman, J., in which Ervin, P. J., and Watkins, J., joined.)
“Permitting an insured to assign his claim to the injured claimant would put the claimant on more of an equal footing with the insured’s insurance company in settlement negotiations without tipping the balance against an insurer who could still refuse to settle in good faith. ‘This result may seem anomalous in that the plaintiff, who previously offered to settle his claim for $5,000, has now acquired the right to maintain against defendant insurer an action which arose by reason of that offer to settle. But it must be borne in mind that plaintiff merely stands in the shoes of the insured; it is the insured who has allegedly suffered the wrong at the hands of the insurer. It might be said that the result reached herein will cause more injured claimants to propose settlement for the policy limit when the insurance company is defending the action against an insured who is apparently judgment-proof. Yet the insurer has nothing to fear so long as its refusal to settle is made in good faith. And it is fundamental that the law favors settlements’. Brown v. Guarantee Insurance Company, [155 Cal.App.2d 679] 319 P.2d 69, 79, [66 A.L.R.2d 1202] (Emphasis added.)”
We conclude that the Pennsylvania garnishment proceeding is available to determine the validity of the alleged claim of the judgment debtor against the garnishee-insurer. The judgment of January 16, 1968, and the order of December 19, 1967, will be vacated and the case remanded to the District Court for further proceedings consistent with this opinion.
. The insurance policy issued by the insurer-garnishee includes virtually identical language to that in the policy before the court in Gray supra (see footnote 2 at 223 A.2d 9), as follows (V (2) at pp. 4-5 of policy attached to Document 27):
“ * * * the Company shall:
“(a) defend with counsel of its choice any suit against a person entitled to protection alleging such injury, sickness, disease or destruction and seeking damages on account thereof. Such suit shall be defended even if groundless, false or fraudulent. The Company may make any investigation, negotiation and settlement of any claim or suit as it deems expedient; sis * * * *
“(d) pay all interest on the entire judgment accruing after entry of judgment until the Company has paid, tendered or deposited in court such part of such judgment as does not exceed the limit of the Company’s liability thereon; * * * * *
“Payments under this insuring agreement, except settlement of claims and suits, are in addition to the applicable policy limits.”
. Rules 3144 and 3145 of the Pennsylvania Rules of Civil Procedure make clear that the Interrogatories filed by plaintiff, together with the Answers to them, if ordered by the District Court, will constitute the pleadings in the contract action between plaintiff and the garnishee-insurer. The Pennsylvania Rules give ample protection to the defendant as well as the garnishee (Rules 3119, 3121, 3123, 3140, 3143(f), 3147, and 3149) and the Pennsylvania cases make clear that the judgment of June 30, 1966, against the defendant will be satisfied if the garnishee pays the balance due or settles the claim with the plaintiff. See Gretz v. Esslingers, Inc., 428 Pa. 90, 236 A.2d 508 (1967).
. In this case the court used this language at pp. 131-133:
“The same question is presented in each of these cases, and it is whether an unadjusted and unliquidated claim for a loss upon a policy of insurance against fire, is subject to attachment in the hands of the insurance company. * * * The District Court held the claim attachable, and the company brought these writs of error.
“The objection to a recovery for such a reason seems technical in these cases, for there was no difference or dispute about the amount of the loss. It was settled on the proofs presented by the insured, without reference to the arbitrament provided for in the regulations attached to the policy in the case of dispute, or to the jury at the trial. It was settled by calculation, but notwithstanding this, it was insisted here that the claim was in the class of unliquidated damages when the writ was issued, and being so, was not subject to be attached.
“We agree with the District Court in their judgment on the point that it was attachable.
$ * * $ $
“When a loss by fire has taken place, can we doubt but that the sum agreed to be paid by the insurers, in consideration of the premium paid, is prima facie ‘goods and effects,’ and is parcel of the ‘personal estate’ of the defendant? Because it is a chose in action, it is not therefore outside of the meaning of these terms. * * * But the difficulty is not this under the attachment process. It is that the amount is unliquidated, and for this reason it is supposed not to be within the meaning of the act. But this will not hold; otherwise debts due for goods sold and delivered, or work, labour, and services done and performed without the price being fixed, might not be attachable. Barge debts on book-account might escape the process, which I do not believe has ever been considered to be the law.
“ * * * but I think what was said in Fisher v. Consequa, 2 W.C.C.Rep. 382, in defining the foundation of the process, very well defines also to what it may be applied; that is, to ‘a demand arising ex contractu, the amount of which was ascertained, or which was susceptible of ascertainment by some standard referrable to the contract itself, sufficiently certain to enable the plaintiff by affidavit to aver, or a jury to find it, might be the foundation of a proceeding by way of foreign attachment, without reference to the form of action, or the technical definition of debt, the expression used in the law.’ ”
. Neither the District Court nor appellee has referred to any provision in the policy precluding garnishment of this alleged claim. In Gray v. Nationwide Mutual Insurance Company, 207 Pa.Super. 1, 214 A.2d 634, 639 (1965), the Pennsylvania Superior Court cited in its dissenting opinion, which was approved by the Pennsylvania Supreme Court, the many Pennsylvania cases holding that policy provisions against its transfer without the insurer’s consent do not preclude assignment of claims for damages after the loss has occurred and rights under the policy have accrued.
. Estate of Warren L. Loose, Opinion of 1/29/68 (#51,115, O. C. Berks, Pa.), reaches this conclusion. Cases from other jurisdictions on this issue, which have differed in their results, are cited in Meyer, “Gray v. Nationwide and Beyond,” 71 Dick.L.Rev. 257, 260-65 (1967); see, also, Seider v. Roth, 17 N.Y.2d 111, 269 N.Y.S.2d 99, 216 N.E.2d 312 (1966); General Guaranty Insurance Co. of Fla. v. DaCosta, Fla.App., 190 So.2d 211 (1966). It is noted that the Pennsylvania Supreme Court has not been impressed by decisions from other states on the subject of attachment. See Girard Fire & Marine Insurance Co. v. Field, supra, where the court said at page 134:
“Authorities in other states were cited on argument, but we derive little light from them, as the attachment laws of the several states differ essentially amongst themselves and from, ours, # * $ ff
Question: What is the total number of appellants in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer: |
songer_appfed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. The SCAM INSTRUMENT CORPORATION, Respondent.
No. 16599.
United States Court of Appeals Seventh Circuit.
May 15, 1968.
Rehearing Denied June 26, 1968.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Allison W. Brown, Jr., Burton L. Raimi, Attorneys, N. L. R. B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, for petitioner.
George L. Plumb, Chicago, Ill., Peer Pedersen, Chicago, Ill., for respondent; Pedersen & Houpt, Chicago, Ill., of counsel.
Before KNOCH, Senior Circuit Judge, and CASTLE and KILEY, Circuit Judges.
CASTLE, Circuit Judge.
This case is before the Court upon the petition of the National Labor Relations Board to enforce an order of the Board issued on May 8, 1967, against the respondent, The Scam Instrument Corporation. The Board’s decision and order are reported at 163 NLRB No. 39.
The Board found and concluded that Scam violated Section 8(a) (5) and (1) of the National Labor Relations Act, as amended, by unilaterally modifying the benefit payment schedule of a group health insurance policy which Scam was required to carry for its employees under its collective bargaining agreement with the Union representing the production and maintenance employees in Seam’s Skokie, Illinois plant. The Board further concluded that the change in insurance benefits so effected constituted a modification of the collective bargaining agreement in violation of the requirements of Section 8(d) of the Act. The Board’s order requires Seam to cease and desist from unilaterally modifying the existing terms and conditions of employment and from unilaterally modifying the collective bargaining agreement without complying with the provisions of Section 8(d). Affirmatively, the order requires Scam to remove, retroactively, the rider modifying the insurance benefits, to make its employees whole for any loss suffered, and to post designated notices.
The record discloses that the collective bargaining agreement between Scam and the Union covering the two year period ending September 1, 1966, contained a provision obligating Scam to maintain during such contract period certain insurance coverage for the employees represented by the Union. The particular coverages and the benefits payable were set forth in an attached schedule. The employee coverage was furnished at Scam’s expense, but the monthly cost to an employee for medical and hospital services coverage for dependents was $9.-82 for an employee with one family member, and $15.78 for an employee with two or more family members. Except in the case of the “major medical” coverage neither the bargaining agreement nor the insurance policy contained a “nondupli-cating” provision allowing the benefits to be reduced by amounts the employee received from coinsurance obtained from other sources. Neither the agreement nor the policy reserved to Scam or its insurance carrier a right to modify the insurance coverage or benefits during the contract period.
In February 1965, without notification to or consultation with the Union, Seam and its insurance carrier agreed to the addition of a rider to the insurance policy. The rider issued in late February. It added a “nonduplieating” provision to the policy applicable to the medical and hospital services benefits. The rider provided for a reduction in the scheduled benefit payment in event a benefit was payable (or the item of hospital or medical service was furnished) because of like coverage of the employee or his dependent under some other group insurance or group benefit system involving participation by an employer in the form of contributions or payroll deductions. It provided like reduction in the scheduled benefit where the other benefit was due' to coverage afforded by any statute.
The Union first became aware of the policy change in early May 1965, when a Scam employee reported receiving a reduced insurance payment, and upon investigation a Union representative discovered that the rider had been added to the policy. Scam’s personnel manager when questioned about the change promised to investigate and assured that Scam would make restitution if shortages existed and that it was unnecessary to file a grievance. On May 18, Scam asked its insurance carrier to remove the rider retroactively from the policy. The carrier complied. This action, however, was not conveyed to the Union at the time, and on June 3, the rider was reinstated at Scam’s request.
On June 30, pending differences concerning insurance benefits payable to two of Scam’s employees remained unresolved and a grievance was filed under the grievance and arbitration provision of the contract. The grievance procedures culminated in the appointment of an arbitrator. The hearing before the arbitrator was postponed at the joint request of the parties pending disposition of the Board proceeding initiated by the July 14, 1965, charge filed by the Union.
Substantial evidence, on the record considered as a whole, establishes that the effect of the rider was to reduce substantially, in some instances, the insurance benefits otherwise receivable by employees where other insurance coverage existed in addition to that provided by Scam.
In support of its position in opposition to enforcement of the Board’s order Scam states that the reason for the addition of the rider arose because of the increasing number of employed women who are covered by union negotiated insurance while at the same time being covered as a dependent under their husbands’ union negotiated insurance and that an unintended dollar profit results from this double coverage which can in no way be considered as a bargained for employee benefit since it affects only a small number of employees and its payment does not flow from any of the traditional concerns that are normally an express subject of discussion between an employer and its employees. And on this basis, and the lack of disclosure by the record of any history of bargaining between the Union and Scam expressly directed to the factor of whether the employee insurance benefits should be either duplicating or nonduplicating, Scam argues that this particular phase of the employee insurance program does not fall within the scope of “other terms or conditions of employment” as that language has been construed and applied in cases such as Inland Steel Co. v. N. L. R. B., 7 Cir., 170 F.2d 247, 250-251, 12 A.L.R.2d 240 and W. W. Cross & Co. v. N. L. R. B. 1 Cir., 174 F.2d 875, 878. Scam contends that “there is a vast difference between an employer’s duty to bargain concerning the existence or the extent of benefits to be provided by an insurance plan and an employer’s duty to bargain concerning the dollar profit that may be received by an employee over and above the actual cost of the medical treatment received by the employee”.
But here the issue presented does not concern mandatory duty to bargain. In its collective bargaining agreement with the Union Scam had agreed to the employee insurance program incorporating the specific benefit payments set forth in the schedule. The “basic” benefit payments so scheduled were not made subject to a qualification that duplicating insur-anee coverage would serve to effect a reduction in the amounts otherwise allowable. And once the maintenance of that insurance program and the specific benefits payable thereunder became an obligation of Scam under its collective bargaining agreement that program and those benefits constituted a part of the terms and conditions of employment for the contract period involved.
Whatever merit or intrinsic equity a “nonduplicating” feature may possess, insofar as insurance programs maintained by different employers are concerned, is beside the point. The benefits here payable were frozen as a term or condition of employment for the contract period involved absent mutual consent of the contracting parties to their alteration or qualification, or compliance with the provisions of Section 8(d). They were not subject to the unilateral reduction Scam effected, without notice to or consultation with the Union, by means of the rider it requested of its insurance carrier. The reductions so effected were not without substantial impact although they affected only those of the employees who were the beneficiaries of additional employer-participating coverage and who happened to incur medical or hospital expenses covered by both of the insurance programs. We are of the opinion that the Board was correct in concluding that the unilateral change in benefits effected by Scam constituted an unfair labor practice violative of Section 8(a) (5) and (1) and of Section 8(d) of the Act.
And, the Board’s power to entertain the charges and to afford a remedy for the unfair labor practice found to exist was not precluded by the availability or the invocation of the contract’s grievance and arbitration provisions. Carey v. Westinghouse, 375 U.S. 261, 84 S.Ct. 401, 11 L.Ed.2d 320; N. L. R. B. v. Acme Industrial Co., 385 U.S. 432, 87 S.Ct. 565, 17 L.Ed.2d 495.
Accordingly, it is ordered that the order of the Board be enforced.
Enforcement ordered.
. Local 1031, International Brotherhood of Electrical Workers, AFL-CIO.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
sc_casedisposition | C | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
VACCO, ATTORNEY GENERAL OF NEW YORK, et al. v. QUILL et al.
No. 95-1858.
Argued January 8, 1997
Decided June 26, 1997
Rehnquist, C. J., delivered the opinion of the Court, in which O’Con-nor, Scalia, Kennedy, and Thomas, JJ., joined. O’Connor, J, filed a concurring opinion, in which Ginsburg and Breyer, JJ., joined in part, ante, p. 736. Stevens, J., ante, p. 738, Souter, J., post, p. 809, Ginsburg, J., ante, p. 789, and Breyer, J., ante, p. 789, filed opinions concurring in the judgment.
Dennis C. Vacco, Attorney General of New York, pro se, argued the cause for petitioners. With him on the briefs were Barbara Gott Billet, Solicitor General, and Daniel Smir-lock and Michael S. Popkin, Assistant Attorneys General.
Acting Solicitor General Dellinger argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Hunger, Deputy Solicitor General Waxman, Deputy Assistant Attorney General Preston, Barbara C. Biddle, and Ann Hubbard.
Laurence H. Tribe argued the cause for respondents. With him on the brief were Peter J. Rubin, Kathryn L. Tucker, David J. Burman, Kari Anne Smith, and Carla A. Kerr.
Briefs of amici curiae urging reversal were filed for the State of California et al. by Daniel E. Lungren, Attorney General of California, Robert L. Mukai, Chief Assistant Attorney General, Alvin J. Korobkin, Senior Assistant Attorney General, and Thomas S. Lazar, Deputy Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, James E. Ryan of Illinois, Thomas J. Miller of Iowa, Richard R Ieyoub of Louisiana, J. Joseph Curran, Jr., of Maryland, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Jeffrey R. Howard of New Hampshire, Drew Edmondson of Oklahoma, Pedro R. Pierluisi of Puerto Rico, Charles Molony Condon of South Carolina, Mark W. Barnett of South Dakota, Charles W. Burson of Tennessee, James S. Gilmore III of Virginia, and Christine 0. Gregoire of Washington; for Wayne County, Michigan, by John D. O’Hair and Timothy A. Baughman; for Agudath Israel of America by David Zwiebel and Morton M. Avigdor; for the American Association of Homes and Services for the Aging et al. by Joel G. Chefitz and Robert K. Niewijk; for the American Center for Law and Justice by Jay Alan Sekulow, James M. Henderson, Sr., Walter M. Weber, Keith A. Fournier, John G. Stepanovich, and Thomas P. Monaghan; for the American Geriatrics Society by John H. Pickering and Joseph E. Schmitz; for the American Hospital Association by Michael K. Kellogg and Margaret J. Hardy; for the American Medical Association et al. by Carter G. Phillips, Mark E. Haddad, Paul E. Kalb, Katherine L. Adams, Newton N. Minow, Jack R. Bierig, Kirk B. Johnson, and Michael L. lie; for the Catholic Health Association of the United States by James A. Serritella, James C. Geoly, Kevin R. Gustafson, Thomas C. Shields, Peter M. Leibold, and Charles S. Gilham; for the Catholic Medical Association by Joseph J. Frank, Sergio Alvarez-Mena III, and Peter Buscemi; for the Christian Legal Society et al. by Edward J. Larson, Kimberlee Wood Colby, and Steven T. McFarland; for the Clarendon Foundation by Ronald D. Maines; for the Evangelical Lutheran Church in America by Edward McGlynn Gaffney, Jr., Susan D. Reece Martyn, Henry J. Bourguignon, and Phillip H. Harris; for the Family Research Council by Cathleen A. Cleaver, Mark A. Rothe, and Edward R. Grant; for the Institute for Public Affairs of the Union of Orthodox Jewish Congregations of America et al. by Richard B. Stone; for the Medical Society of New Jersey by Paul W. Armstrong and R. Bruce Cretin; for the National Association of Prolife Nurses et al. by Jacqulyn Kay Hall; for the National Catholic Office for Persons with Disabilities et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the National Hospice Organization by E. Barrett Prettyman, Jr.; for the National Legal Center for the Medically Dependent & Disabled, Inc., et al. by James Bopp, Jr., Thomas J. Marzen, Daniel Avila, and Jane E. T. Brockmann; for the Project on Death in America et al. by Robert A. Burt; for the United States Catholic Conference et al. by Mark E. Chopko; for Senator Orrin Hatch et al. by Michael W. McConnell; for Members of the New York and Washington State Legislatures by Paul Benjamin Linton and Clarke D. Forsythe; for Bioethics Professors by George J. Annas; for Jerome J. De Cosse et al. by Michael P. Tierney; for Gary Lee, M. D., et al. by James Bopp, Jr., Bary A. Bostrom, and Richard E. Coleson; and for Richard Thompson by Mr. Thompson, pro se, and Richard H. Browne.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Cameron Clark, Karen E. Boxx, and Steven R. Shapiro; for Americans for Death with Dignity et al. by John R. Reese and Page R. Barnes; for the American Medical Student Association et al. by John H. Hall; for the Coalition of Hospice Professionals by Gerald A. Rosenberg and Frances Kulka Browne; for Gay Men’s Health Crisis et al. by Andrew I. Batavia; for the National Women’s Health Network et al. by Sylvia A. Law; for 36 Religious Organizations, Leaders, and Scholars by Barbara McDowell and Gregory A. Castanias; for the Washington State Psychological Association et al. by Edward C. DuMont; for Bioethi-cists by Martin R. Gold and Robert P. Mulvey; for Law Professors by Charles H. Baron, David A. Hoffman, and Joshua M. Davis; for State Legislators by Sherry F. Colb; and for Julian M. Whitaker, M. D., by Jonathan W. Emord.
Briefs of amici curiae were filed for the American College of Legal Medicine by Miles J. Zaremski, Bruce C. Nelson, and I la S. Rothschild; for the American Life League, Inc., by Charles E. Rice; for Choice in Dying, Inc., by Henry Putzel IIP, for the International Anti-Euthanasia Task Force by Wesley J. Smith; for Not Dead Yet et al. by Stephen F. Gold; for Surviving Family Members in Support of Physician-Assisted Dying by Katrin E. Frank, Robert A. Free, and Kathleen Wareham; and for Ronald Dworkin et al. by Mr. Dworkin, pro se, Peter L. Zimroth, Philip H. Curtis, Kent A. Yalowitz, Ananá Agneshwar, and Abe Krash.
Chief Justice Rehnquist
delivered the opinion of the Court.
In New York, as in most States, it is a crime to aid another to commit or attempt suicide, but patients may refuse even lifesaving medical treatment. The question presented by this case is whether New York’s prohibition on assisting suicide therefore violates the Equal Protection Clause of the Fourteenth Amendment. We hold that it does not.
Petitioners are various New York public officials. Respondents Timothy E. Quill, Samuel C. Klagsbrun, and Howard A. Grossman are physicians who practice in New York. They assert that although it would be “consistent with the standards of [their] medical practice^]” to prescribe lethal medication for “mentally competent, terminally ill patients” who are suffering great pain and desire a doctor’s help in taking their own lives, they are deterred from doing so by New York’s ban on assisting suicide. App. 25-26. Respondents, and three gravely ill patients who have since died, sued the State’s Attorney General in the United States District Court. They urged that because New York permits a competent person to refuse life-sustaining medical treatment, and because the refusal of such treatment is “essentially the same thing” as physician-assisted suicide, New York's assisted-suicide ban violates the Equal Protection Clause. Quill v. Koppell, 870 F. Supp. 78, 84-85 (SDNY 1994).
The District Court disagreed: “[I]t is hardly unreasonable or irrational for the State to recognize a difference between allowing nature to take its course, even in the most severe situations, and intentionally using an artificial death-producing device.” Id., at 84. The court noted New York’s “obvious legitimate interests in preserving life, and in protecting vulnerable persons,” and concluded that “[ujnder the United States Constitution and the federal system it establishes, the resolution of this issue is left to the normal democratic processes within the State.” Id., at 84-85.
The Court of Appeals for the Second Circuit reversed. 80 F. 3d 716 (1996). The court determined that, despite the assisted-suicide ban’s apparent general applicability, “New York law does not treat equally all competent persons who are in the final stages of fatal illness and wish to hasten their deaths,” because “those in the final stages of terminal illness who are on life-support systems are allowed to hasten their deaths by directing the removal of such systems; but those who are similarly situated, except for the previous attachment of life-sustaining equipment, are not allowed to hasten death by self-administering prescribed drugs.” Id., at 727, 729. In the court’s view, “[t]he ending of life by [the withdrawal of life-support systems] is nothing more nor less than assisted suicide.” Id., at 729 (emphasis added). The Court of Appeals then examined whether this supposed unequal treatment was rationally related to any legitimate state interests, and concluded that “to the extent that [New York’s statutes] prohibit a physician from prescribing medications to be self-administered by a mentally competent, terminally-ill person in the final stages of his terminal illness, they are not rationally related to any legitimate state interest.” Id,., at 731. We granted certiorari, 518 U. S. 1055 (1996), and now reverse.
The Equal Protection Clause commands that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” This provision creates no substantive rights. San Antonio Independent School Dist. v. Rodriguez, 411 U. S. 1, 33 (1973); id., at 59 (Stewart, J., concurring). Instead, it embodies a general rule that States must treat like cases, alike but may treat unlike cases accordingly. Plyler v. Doe, 457 U. S. 202, 216 (1982) (“ ‘[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same’ ”) (quoting Tigner v. Texas, 310 U. S. 141, 147 (1940)). If a legislative classification or distinction “neither burdens a fundamental right nor targets a' suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 U. S. 620, 631 (1996).
New York’s statutes outlawing assisting suicide affect and address matters of profound significance to all New Yorkers alike. They neither infringe fundamental rights nor involve suspect classifications. Washington v. Glucksberg, ante, at 719-728; see 80 F. 3d, at 726; San Antonio School Dist., 411 U. S., at 28 (“The system of alleged discrimination and the class it defines have none of the traditional indicia of suspectness”); id., at 33-35 (courts must look to the Constitution, not the “importance” of the asserted right, when deciding whether an asserted right is “fundamental”). These laws are therefore entitled to a “strong presumption of validity.” Heller v. Doe, 509 U. S. 312, 319 (1993).
On their faces, neither New York’s ban on assisting suicide nor its statutes permitting patients to refuse medical treatment treat anyone differently from anyone else or draw any distinctions between persons. Everyone, regardless of physical condition, is entitled, if competent, to refuse unwanted lifesaving medical treatment; no one is permitted to assist a suicide. Generally speaking, laws that apply evenhandedly to all “unquestionably comply” with the Equal Protection Clause. New York City Transit Authority v. Beazer, 440 U. S. 568, 587 (1979); see Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 271-273 (1979) (“[M]any [laws] affect certain groups unevenly, even though the law itself treats them no differently from all other members of the class described by the law”).
The Court of Appeals, however, concluded that some terminally ill people — those who are on life-support systems— are treated differently from those who are not, in that the former may “hasten death” by ending treatment, but the latter may not “hasten death” through physician-assisted suicide. 80 F. 3d, at 729. This conclusion depends on the submission that ending or refusing lifesaving medical treatment “is nothing more nor less than assisted suicide.” Ibid. Unlike the Court of Appeals, we think the distinction between assisting suicide and withdrawing life-sustaining treatment, a distinction widely recognized and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational. See Feeney, supra, at 272 (“When the basic classification is rationally based, uneven effects upon particular groups within a class are ordinarily of no constitutional concern”).
The distinction comports with fundamental legal principles of causation and intent. First, when a patient refuses life-sustaining medical treatment, he dies from an underlying fatal disease or pathology; but if a patient ingests lethal medication prescribed by a physician, he is killed by that medication. See, e. g., People v. Kevorkian, 447 Mich. 436, 470-472, 527 N. W. 2d 714, 728 (1994), cert. denied, 514 U. S. 1083 (1995); Matter of Conroy, 98 N. J. 321, 355, 486 A. 2d 1209, 1226 (1985) (when feeding tube is removed, death “result[sj .. . from [the patient’s] underlying medical condition”); In re Colyer, 99 Wash. 2d 114, 123, 660 P. 2d 738, 743 (1983) (“[D]eath which occurs after the removal of life sustaining systems is from natural causes”); American Medical Association, Council on Ethical and Judicial Affairs, Physician-Assisted Suicide, 10 Issues in Law & Medicine 91, 93 (1994) (“When a life-sustaining treatment is declined, the patient dies primarily because of an underlying disease”).
Furthermore, a physician who withdraws, or honors a patient’s refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes and “to cease doing useless and futile or degrading things to the patient when [the patient] no longer stands to benefit from them.” Assisted Suicide in the United States, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 104th Cong., 2d Sess., 368 (1996) (testimony of Dr. Leon R. Kass). The same is true when a doctor provides aggressive palliative care; in some cases, painkilling drugs may hasten a patient’s death, but the physician’s purpose and intent is, or may be, only to ease his patient’s pain. A doctor who assists a suicide, however, “must, necessarily and indubitably, intend primarily that the patient be made dead.” Id., at 367. Similarly, a patient who commits suicide with a doctor’s aid necessarily has the specific intent to end his or her own life, while a patient who refuses or discontinues treatment might not. See, e. g., Matter of Conroy, supra, at 351, 486 A. 2d, at 1224 (patients who refuse life-sustaining treatment “may not harbor a specific intent to die” and may instead “fervently wish to live, but to do so free of unwanted medical technology, surgery, or drugs”); Superintendent of Belchertown State School v. Saikewicz, 373 Mass. 728, 743, n. 11, 370 N. E. 2d 417, 426, n. 11 (1977) (“[I]n refusing treatment the patient may not have the specific intent to die”).
The law has long used actors’ intent or purpose to distinguish between two acts that may have the same result. See, e. g., United States v. Bailey, 444 U. S. 394, 403-406 (1980) (“[T]he . . . common law of homicide often distinguishes . . . between a person who knows that another person will be killed as the result of his conduct and a person who acts with the specific purpose of taking another’s life”); Morissette v. United States, 342 U. S. 246, 250 (1952) (distinctions based on intent are “universal and persistent in mature systems of law”); M. Hale, 1 Pleas of the Crown 412 (1847) (“If A. with an intent to prevent a gangrene beginning in his hand doth without any advice cut off his hand, by which he dies, he is not thereby felo de se for tho it was a voluntary act, yet it was not with an intent to kill himself”). Put differently, the law distinguishes actions taken “because of” a given end from actions taken “in spite of” their unintended but foreseen consequences. Feeney, 442 U. S., at 279; Compassion in Dying v. Washington, 79 F. 3d 790, 858 (CA9 1996) (Klein-feld, J., dissenting) (“When General Eisenhower ordered American soldiers onto the beaches of Normandy, he knew that he was sending many American soldiers to certain death .... His purpose, though, was to .. . liberate Europe from the Nazis”).
Given these general principles, it is not surprising that many courts, including New York courts, have carefully distinguished refusing life-sustaining treatment from suicide. See, e. g., Fosmire v. Nicoleau, 75 N. Y. 2d 218, 227, and n. 2, 551 N. E. 2d 77, 82, and n. 2 (1990) (“[Mjerely declining medical care ... is not considered a suicidal act”). In fact, the first state-court decision explicitly to authorize withdrawing lifesaving treatment noted the “real distinction between the self-infliction of deadly harm and a self-determination against artificial life support.” In re Quinlan, 70 N. J. 10, 43, 52, and n. 9, 355 A. 2d 647, 665, 670, and n. 9, cert. denied sub nom. Garger v. New Jersey, 429 U. S. 922 (1976). And recently, the Michigan Supreme Court also rejected the argument that the distinction “between acts that artificially sustain life and acts that artificially curtail life” is merely a “distinction without constitutional significance — a meaningless exercise in semantic gymnastics,” insisting that “the Cruzan majority disagreed and so do we.” Kevorkian, 447 Mich., at 471, 527 N. W. 2d, at 728.
Similarly, the overwhelming majority of state legislatures have drawn a clear line between assisting suicide and withdrawing or permitting the refusal of unwanted lifesaving medical treatment by prohibiting the former and permitting the latter. Glucksberg, ante, at 710-711, 716-719. And “nearly all states expressly disapprove of suicide and assisted suicide either in statutes dealing with durable powers of attorney in health-care situations, or in ‘living will’ statutes.” Kevorkian, supra, at 478-479, and nn. 53-54, 527 N. W. 2d, at 731-732, and nn. 53-54. Thus, even as the States move to protect and promote patients’ dignity at the end of life, they remain opposed to physician-assisted suicide.
New York is a case in point. The State enacted its current assisted-suicide statutes in 1965. Since then, New York has acted several times to protect patients’ common-law right to refuse treatment. Act of Aug. 7, 1987, ch. 818, § 1, 1987 N. Y. Laws 3140 (“Do Not Resuscitate Orders”) (codified as amended at N. Y. Pub. Health Law §§ 2960-2979 (McKinney 1993 and Supp. 1997)); Act of July 22, 1990, ch. 752, § 2, 1990 N. Y. Laws 3547 (“Health Care Agents and Proxies”) (codified as amended at N. Y. Pub. Health Law §§2980-2994 (McKinney 1993 and Supp. 1997)). In so doing, however, the State has neither endorsed a general right to “hasten death” nor approved physician-assisted suicide. Quite the opposite: The State has reaffirmed the line between “killing” and “letting die.” See N. Y. Pub. Health Law § 2989(3) (McKinney 1993) (“This article is not intended to permit or promote suicide, assisted suicide, or euthanasia”); New York State Task Force on Life and the Law, Life-Sustaining Treatment: Making Decisions and Appointing a Health Care Agent 36-42 (July 1987); Do Not Resuscitate Orders: The Proposed Legislation and Report of the New York State Task Force on Life and the Law 15 (Apr. 1986). More recently, the New York State Task Force on Life and the Law studied assisted suicide and euthanasia and, in 1994, unanimously recommended against legalization. When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context vii (1994). In the Task Force’s view, “allowing decisions to forgo life-sustaining treatment and allowing assisted suicide or euthanasia have radically different consequences and meanings for public policy.” Id., at 146.
This Court has also recognized, at least implicitly, the distinction between letting a patient die and making that patient die. In Cruzan v. Director, Mo. Dept. of Health, 497 U. S. 261, 278 (1990), we concluded that “[t]he principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions,” and we assumed the existence of such a right for purposes of that case, id., at 279. But our assumption of a right to refuse treatment was grounded not, as the Court of Appeals supposed, on the proposition that patients have a general and abstract “right to hasten death,” 80 F. 3d, at 727-728, but on well-established, traditional rights to bodily integrity and freedom from unwanted touching, Cruzan, 497 U. S., at 278-279; id., at 287-288 (O’Connor, J., concurring). In fact, we observed that “the majority of States in this country have laws imposing criminal penalties on one who assists another to commit suicide.” Id., at 280. Cruzan therefore provides no support for the notion that refusing life-sustaining medical treatment is “nothing more nor less than suicide.”
For all these reasons, we disagree with respondents’ claim that the distinction between refusing lifesaving medical treatment and assisted suicide is “arbitrary” and “irrational.” Brief for Respondents 44. Granted, in some cases, the line between the two may not be clear, but certainty is not required, even were it possible. Logic and contemporary practice support New York’s judgment that the two acts are different, and New York may therefore, consistent with the Constitution, treat them differently. By permitting everyone to refuse unwanted medical treatment while prohibiting anyone from assisting a suicide, New York law follows a longstanding and rational distinction.
New York’s reasons for recognizing and acting on this distinction — including prohibiting intentional killing and preserving life; preventing suicide; maintaining physicians’ role as their patients’ healers; protecting vulnerable people from indifference, prejudice, and psychological and financial pressure to end their lives; and avoiding a possible slide towards euthanasia — are discussed in greater detail in our opinion in Glucksberg, ante. These valid and important public interests easily satisfy the constitutional requirement that a legislative classification bear a rational relation to some legitimate end.
The judgment of the Court of Appeals is reversed.
It is so ordered.
[For concurring opinion of Justice O’Connor, see ante, p. 736; for opinions concurring in the judgments of Justice Stevens, see ante, p. 738, Justice Ginsburg, see ante, p. 789, and Justice Breyer, see ante, p. 789.]
New York Penal Law § 125.15 (McKinney 1987) (“Manslaughter in the second degree”) provides: “A person is guilty of manslaughter in the second degree when ... (3) He intentionally causes or aids another person to commit suicide. Manslaughter in the second degree is a class C felony.” Section 120.30 (“Promoting a suicide attempt”) states: “A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide. Promoting a suicide attempt is a class E felony.” See generally Washington v. Glucksberg, ante, at 710-719.
“It is established under New York law that a competent person may refuse medical treatment, even if the withdrawal of such treatment will result in death.” Quill v. Koppell, 870 F. Supp. 78, 84 (SDNY 1994); see N. Y. Pub. Health Law, §§ 2960-2979 (McKinney 1993 and Supp. 1997) (“Orders Not to Resuscitate”) (regulating right of “adult with capacity” to direct issuance of orders not to resuscitate); id., §§ 2980-2994 (“Health Care Agents and Proxies”) (allowing appointment of agents “to make . . . health care decisions on the principal’s behalf,” including decisions to refuse lifesaving treatment). ,
Declaration of Timothy E. Quill, M. D., App. 42-49; Declaration of Samuel C. Klagsbrun, M. D., id., at 68-74; Declaration of Howard A. Grossman, M. D., id., at 84-89; 80 F. 3d 716, 719 (CA2 1996).
These three patients stated that they had no chance of recovery, faced the “prospect of progressive loss of bodily function and integrity and increasing pain and suffering,” and desired medical assistance in ending their lives. App. 25-26; Declaration of William A. Barth, id., at 96-98; Declaration of George A. Kingsley, id., at 99-102; Declaration of Jane Doe, id., at 105-109.
The court acknowledged that because New York’s assisted-suieide statutes “do not impinge on any fundamental rights [or] involve suspect classifications,” they were subject only to rational-basis judicial scrutiny. 80 F. 3d, at 726-727.
The American Medical Association emphasizes the “fundamental difference between refusing life-sustaining treatment and demanding a life-ending treatment.” American Medical Association, Council on Ethical and Judicial Affairs, Physician-Assisted Suicide, 10 Issues in Law & Medicine 91, 93 (1994); see also American Medical Association, Council on Ethical and Judicial Affairs, Decisions Near the End of Life, 267 JAMA 2229, 2230-2231, 2233 (1992) (“The withdrawing or withholding of life-sustaining treatment is not inherently contrary to the principles of beneficence and nonmaleficence,” but assisted suicide “is contrary to the prohibition against using the tools of medicine to cause a patient’s death”); New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context 108 (1994) (“[Professional organizations] consistently distinguish assisted suicide and euthanasia from the withdrawing or withholding of treatment, and from the provision of palliative treatments or other medical care that risk fatal side effects”); Brief for American Medical Association et al. as Amici Curiae 18-25. Of course, as respondents’ lawsuit demonstrates, there are differences of opinion within the medical profession on this question. See New York Task Force, supra, at 104-109.
Thus, the Second Circuit erred in reading New York law as creating a “right to hasten death”; instead, the authorities cited by the court recognize a right to refuse treatment, and nowhere equate the exercise of this right with suicide. Schloendorff v. Society of New York Hospital, 211 N. Y. 125, 129-130, 105 N. E. 92,93 (1914), which contains Justice Cardozo’s famous statement that “[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body,” was simply an informed-consent case. See also Rivers v. Katz, 67 N. Y. 2d 485, 495, 495 N. E. 2d 337, 343 (1986) (right to refuse antipsychotic medication is not absolute, and may be limited when “the patient presents a danger to himself”); Matter of Storar, 52 N. Y. 2d 363, 377, n. 6, 420 N. E. 2d 64, 71, n. 6, cert. denied, 454 U. S. 858 (1981).
Many courts have recognized this distinction. See, e. g., Kevorkian v. Thompson, 947 F. Supp. 1152, 1178, and nn. 20-21 (ED Mich. 1997); In re Fiori, 543 Pa. 592, 602, 673 A. 2d 905, 910 (1996); Singletary v. Costello, 665 So. 2d 1099, 1106 (Fla. App. 1996); Laurie v. Senecal, 666 A. 2d 806, 808-809 (R. I. 1995); State ex rel. Schuetzle v. Vogel, 537 N. W. 2d 358, 360 (N. D. 1995); Thor v. Superior Court, 5 Cal. 4th 725, 741-742, 855 P. 2d 375, 385-386 (1993); DeGrella v. Elston, 858 S. W. 2d 698, 707 (Ky. 1993); People v. Adams, 216 Cal. App. 3d 1431, 1440, 265 Cal. Rptr. 568, 573-574 (1990); Guardianship of Jane Doe, 411 Mass. 512, 522-523, 583 N. E. 2d 1263, 1270, cert. denied sub nom. Doe v. Gross, 503 U. S. 950 (1992); In re L. W., 167 Wis. 2d 53, 83, 482 N. W. 2d 60, 71 (1992); In re Rosebush, 195 Mich. App. 675, 681, n. 2, 491 N. W. 2d 633, 636, n. 2 (1992); Donaldson v. Van de Kamp, 2 Cal. App. 4th 1614, 1619-1625, 4 Cal. Rptr. 2d 59, 61-64 (1992); In re Lawrance, 579 N. E. 2d 32, 40, n. 4 (Ind. 1991); McKay v. Bergstedt, 106 Nev. 808, 822-823, 801 P. 2d 617, 626-627 (1990); In re Browning, 568 So. 2d 4, 14 (Fla. 1990); McConnell v. Beverly Enterprises-Connecticut, Inc., 209 Conn. 692, 710, 553 A. 2d 596, 605 (1989); State v. McAfee, 259 Ga. 579, 581, 385 S. E. 2d 651, 652 (1989); In re Grant, 109 Wash. 2d 545, 563, 747 P. 2d 445, 454-455 (1987); In re Gardner, 534 A. 2d 947, 955-956 (Me. 1987); Matter of Farrell, 108 N. J. 335, 349-350, 529 A. 2d 404, 411 (1987); Rasmussen v. Fleming, 154 Ariz. 207, 218, 741 P. 2d 674, 685 (1987); Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 1144-1145, 225 Cal. Rptr. 297, 306 (1986); Von Holden v. Chapman, 87 App. Div. 2d 66, 70, 450 N. Y. S. 2d 623, 627 (1982); Bartling v. Superior Court, 163 Cal. App. 3d 186, 196-197, 209 Cal. Rptr. 220, 225-226 (1984); Foody v. Manchester Memorial Hospital, 40 Conn. Supp. 127, 137, 482 A. 2d 713, 720 (1984); In re P. V. W., 424 So. 2d 1015, 1022 (La. 1982); Leach v. Akron General Medical Center, 68 Ohio Misc. 1, 10, 426 N. E. 2d 809, 815 (Ohio Comm. Pleas 1980); In re Severns, 425 A. 2d 156, 161 (Del. Ch. 1980); Satz v. Perlmutter, 362 So. 2d 160, 162-163 (Fla. App. 1978); Application of the President and Directors of Georgetown College, 331 F 2d 1000, 1009 (CADC), cert. denied, 377 U. S. 978 (1964); Brophy v. New England Sinai Hospital, 398 Mass. 417, 439, 497 N. E. 2d 626, 638 (1986). The British House of Lords has also recognized the distinction. Airedale N. H. S. Trust v. Bland, 2 W. L. R. 316, 368 (1993).
See Ala. Code §22-8A-10 (1990); Alaska Stat. Ann. §§ 18.12.080(a), (f) (1996); Ariz. Rev. Stat. Ann. § 36-3210 (Supp. 1996); Ark. Code Ann. §§ 20-13-905(a), (f), 20-17-210(a), (g) (1991 and Supp. 1995); Cal. Health & Safety Code Ann. §§ 7191.5(a), (g) (West Supp. 1997); Cal. Prob. Code Ann. § 4723 (West Supp. 1997); Colo. Rev. Stat. §§ 15-14-504(4), 15-18-112(1), 15-18.5-101(3), 15-18.6-108 (1987 and Supp. 1996); Conn. Gen. Stat. § 19a-575 (Supp. 1996); Del. Code Ann., Tit. 16, § 2512 (Supp. 1996); D. C. Code Ann. §§ 6-2430, 21-2212 (1995 and Supp. 1996); Fla. Stat. §§ 765.309(1), (2) (Supp. 1997); Ga. Code Ann. §§ 31-32-11(b), 31-36-2(b) (1996); Haw. Rev. Stat. § 327D-13 (1996); Idaho Code § 39-152 (Supp. 1996); Ill. Comp. Stat., ch. 755, §§ 35/9(f), 40/5, 40/50, 45/2-1 (1992); Ind. Code §§ 16-36-1-13, 16-36-4-19, 30-5-5-17 (1994 and Supp. 1996); Iowa Code §§ 144A.11.1-144A.11.6, 144B.12.2 (1989 and Supp. 1997); Kan. Stat. Ann. § 65-28,109 (1985); Ky. Rev. Stat. Ann. § 311.638 (Baldwin Supp. 1992); La. Rev. Stat. Ann. §§ 40:1299.58.10(A), (B) (West 1992); Me. Rev. Stat. Ann., Tit. 18-A, §§ 5-813(b), (e) (Supp. 1996); Md. Health Code Ann. § 5—611(c) (1994); Mass. Gen. Laws 201D, § 12 (Supp. 1997); Mich. Comp. Laws Ann. § 700.496(20) (West 1995); Minn. Stat. §§ 145B.14, 145C.14 (Supp. 1997); Miss. Code Ann. §§ 41-41-117(2), 41-41-119(1) (Supp. 1992); Mo. Rev. Stat. §§ 459.015.3, 459.055(5) (1992); Mont. Code Ann. §§50-9-205(1), (7), 50-10-104(1), (6) (1995); Neb. Rev. Stat. §§ 20-412(1), (7), 30-3401(3) (1995); Nev. Rev. Stat. § 449.670(2) (1996); N. H. Rev. Stat. Ann. §§ 137-H:10, 137-H:13, 137-J:1 (1996); N. J. Stat. Ann. §§ 26:2H-54(d), (e), 26:2H-77 (West 1996); N. M. Stat. Ann. §§ 24-7A-13(B)(1), (C) (Supp. 1995); N. Y. Pub. Health Law § 2989(3) (McKinney 1993); N. C. Gen. Stat. §§ 90-320(b), 90-321(f) (1993); N. D. Cent. Code §§ 23-06.4-01, 23-06.5-01 (1991); Ohio Rev. Code Ann. §§ 2133.12(A), (D) (Supp. 1996); Okla. Stat., Tit. 63, §§ 3101.2(C), 3101.12(A), (G) (1997); 20 Pa. Cons. Stat. § 5402(b) (Supp. 1996); R. I. Gen. Laws §§ 23-4.10-9(a), (f), 23-4.11-10(a), (f) (1996); S. C. Code Ann. §§ 44-77-130, 44-78-50(A), (C), 62-5-504(0) (Supp. 1996); S. D. Codified Laws §§ 34-12D-14, 34-12D-20 (1994); Tenn. Code Ann. §§ 32-11-110(a), 39-13-216 (Supp. 1996); Tex. Health & Safety Code Ann. §§ 672.017, 672.020, 672.021 (1992); Utah Code Ann. §§ 75-2-1116, 75-2-1118 (1993); Vt. Stat. Ann., Tit. 18, § 5260 (1987); Va. Code Ann. § 54.1-2990 (1994); V. I. Code Ann., Tit. 19, §§ 198(a), (g) (1995); Wash. Rev. Code §§ 70.122.070(1), 70.122.100 (Supp. 1997); W. Va. Code §§ 16-30-10, 16-30A-16(a), 16-30B-2(b), 16-30B-13, 16-30C-14 (1995); Wis. Stat. §§ 154.11(1), (6), 154.25(7), 155.70(7) (Supp. 1996); Wyo. Stat. §§ 3-5-211, 35-22-109, 35-22-208 (1994 and Supp. 1996). See also 42 U.S.C. §§ 14402(b)(1), (2), (4) (1994 ed., Supp. Ill) (“Assisted Suicide Funding Restriction Act of 1997”).
It has always been a crime, either by statute or under the common law, to assist a suicide in New York. See Marzen, O’Dowd, Crone, & Balch, Suicide: A Constitutional Right?, 24 Duquesne L. Rev. 1, 205-210 (1985) (App.).
Respondents also argue that the State irrationally distinguishes between physician-assisted suicide and “terminal sedation,” a process respondents characterize as “inducting] barbiturate coma and then starving] the person to death.” Brief for Respondents 48-50; see 80 F. 3d, at 729. Petitioners insist, however, that “‘[although proponents of physician-assisted suicide and euthanasia contend that terminal sedation is covert physician-assisted suicide or euthanasia, the concept of sedating pharmacotherapy is based on informed consent and the principle of double effect.’” Reply Brief for Petitioners 12 (quoting P. Rousseau, Terminal Sedation in the Care of Dying Patients, 156 Archives Internal Med. 1785, 1785-1786 (1996)). Just as a State may prohibit assisting suicide while permitting patients to refuse unwanted lifesaving treatment, it may permit palliative care related to that refusal, which may have the foreseen but unintended “double effect” of hastening the patient’s death. See New York Task Force, When Death is Sought, supra n. 6, at 163 (“It is widely recognized that the provision of pain medication is ethically and professionally acceptable even when the treatment may hasten the patient’s death, if the medication is intended to alleviate pain and severe discomfort, not to cause death”).
We do not insist, as Justice Stevens suggests, ante, at 750 (opinion concurring in judgments), that “in all cases there will in fact be a significant difference between the intent of the physicians, the patients, or the families [in withdrawal-of-treatment and physician-assisted-suicide cases].” See supra, at 801-802 (“[A] physician who withdraws, or honors a patient’s refusal to begin, life-sustaining medical treatment purposefully intends, or may so intend, only to respect his patient’s wishes .... The same is true when a doctor provides aggressive palliative care;... the physician’s purpose and intent is, or may be, only to ease his patient’s pain” (emphasis added)). In the absence of omniscience, however, the State is entitled to act on the reasonableness of the distinction.
Justice Stevens observes that our holding today “does not foreclose the possibility that some applications of the New York statute may impose an intolerable intrusion on the patient’s freedom.” Ante, at 751-752 (opinion concurring in judgments). This is true, but, as we observe in Glucksberg, ante, at 735, n. 24, a particular plaintiff hoping to show that New York’s assisted-suieide ban was unconstitutional in his particular case would need to present different and considerably stronger arguments than those advanced by respondents here.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer: |
songer_source | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
SINCLAIR REFINING CO. v. REFINERS OIL CO.
No. 6571.
Circuit Court of Appeals, Sixth Circuit.
March 11, 1935
H. H. Altick and W. M. Matthews, both of Dayton, Ohio (Matthews & Matthews, of Dayton, Ohio, and W. R. Allen, of Chicago, 111., on the brief), for appellant.
Samuel S. Markham, of Dayton, Ohio (Irvin G. Bieser and McMahon, Corwin, Landis & Markham, all of Dayton, Ohio, on the brief), for appellee.
Before HICKS, SIMONS, and ALLEN, Circuit Judges.
ALLEN, Circuit Judge.
Action by appellant for money claimed to be due for gasoline purchased under a written contract. Two defenses were interposed: First, payment in full; second, accord and satisfaction. The case was tried to a jury which returned a verdict for ap-pellee.
The pertinent terms of the contract are as follows:
“Price based on the official tank wagon market price of the Standard Oil Company of Ohio of 17$ per gallon on gasoline as prevailing in Dayton, Ohio, as of October 22nd, 1923, and is to take full advance or decline of such tank wagon market price. Such advance or decline to be applied only when effective in the majority of said Standard Oil Company of Ohio stations in Ohio.”
Appellant contends that under this provision, during the period from June 24, 1924, to July 22, 1924, inclusive, the official tank wagon market price of the Standard Oil Company of Ohio was 19 cents per gallon. Appellee contends that it was 19 cents per gallon on all deliveries under 500 gallons in amount; that over that amount the price was 17 cents per gallon; that appellee was a quantity consumer, and hence required' to pay only the wholesale price. It is conceded that during this period both a wholesale and a retail price were charged by the Standard Oil Company of Ohio. If appel-lee’s contention is correct, and if the wholesale price falls within the terms of the contract above-given, appellant has been paid in full. ■ -
Two principal errors are urged:
(1) That the court erred in refusing to instruct the jury to return a verdict in favor of appellant upon its motion made at the close of all the evidence.
(2) That the court erred in refusing to dismiss the second defense.
The construction of an unambiguous contract is for the court. Empire Fuel Co. v. Lyons, 257 F. 890 (C. C. A. 6); Hurin v. Electric Vacuum Cleaner Co., Inc., 298 F. 76 (C. C. A. 6); Standard Oil Co. v. Wright Oil Service Co., 26 F.(2d) 895 (C. C. A. 4). However, when such construction depends not merely upon the language used, but upon collateral facts and the inference to be drawn therefrom, the question becomes one of fact or a mixed question of law and fact.Rankin v. Fidelity Trust Co., 189 U. S. 242, 252, 253, 23 S. Ct. 553, 47 L. Ed. 792; Canadian National Ry. Co. v. George M. Jones Co., 27 F.(2d) 240 (C. C. A. 6); Hettrick Mfg. Co. v. James A. Shepherd & Co., 295 F. 10 (C. C. A. 6).
Here it was competent to show, and it was shown, that in the particular trade the words “official tank wagon market price of the Standard Oil Company of Ohio” had a peculiar and special trade meaning, and that the parties being members of that trade must have understood the words in that special sense. Western Petroleum Co. v. Tidal Gasoline Co., 284 F. 82 (C. C. A. 7).
In accordance with these rules, both parties introduced testimony as to the meaning of the phrase. Two witnesses for appellant defined the term respectively as “the official price set by the proper authorities," and “the published price as announced by the Standard Oil Company of Ohio from time to :time as the price changed.” ■ Another witness for appellant said that “the best evidence of the official tank wagon price of the Standard Oil of Ohio at any given time was the Standard Oil Company of Ohio itself.”
On behalf of appellee, the manager of the bulk station sales department of the Standard Oil Company of Ohio defined the phrase as the “price at our bulk plant * * * the delivered price to the filling station or service station, to the dealer.” He identified and read an official letter authorized by the board of directors of the Standard Oil Company of Ohio and sent out by the marketing committee on June 17, 1924, placing in effect- as of June 23, 1924, two official tank wagon market prices, one a wholesale price of 17 cents for all purchases over 500 gallons, the other a price of 19 cents for purchases of less than that amount, effective in all bulk stations in Ohio for the period in controversy, which prices were announced to the division managers throughout the state. This evidence was not ■controverted, and was corroborated in material points by two other officials of the Standard Oil Company. Statements made that the tank wagon market price as published in trade journals during this time was 19 cents without any different wholesale rate are not conclusive, as against this testimony coming from witnesses for both parties.
It is urged that prior to June 23, 1924, a wholesale tank wagon market price had never been placed in effect by the Standard Oil Company of Ohio. Since the parties chose to contract for a price to be fixed in the future by the authorities of the Standard Oil Company of Ohio, they contemplated whatever price or prices, wholesale or retail, these authorities might fix.
The court did not err in submitting the •case to the jury.
Upon the second point, we do not consider the question of accord and satisfaction. The record does not contain the charge of the court, and hence does not disclose that the second defense of the amended answer was submitted to the jury.
The judgment of the District Court is affirmed.
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer: |
sc_caseorigin | 021 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
SECURITIES AND EXCHANGE COMMISSION v. SLOAN
No. 76-1607.
Argued March 27-28, 1978
Decided May 15, 1978
Rehnqtjist, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Powell, and Stevens, JJ., joined. BrennaN, J., filed an opinion concurring in the judgment, in which Marshall, J., joined, post, p. 123. Blackmiun, J., filed an opinion concurring in the judgment, post, p. 126.
Harvey L. Pitt argued the cause for petitioner. With him on the brief were Solicitor General McCree, Deputy Solicitor General Jones, Howard E. Shapiro, and Frederick B. Wade.
Samuel H. Sloan, respondent, argued the cause and filed a brief pro se.
Reginald Leo Duff filed a brief for Canadian Javelin, Ltd., as amicus curiae urging affirmance.
Mr. Justice Rehnquist
delivered the opinion of the Court.
Under the Securities Exchange Act of 1934, ch. 404, 48 Stat. 881, the Securities and Exchange Commission has the authority “summarily to suspend trading in any security ... for a period not exceeding ten days” if “in its opinion the public interest and the protection of investors so require.” Acting pursuant to this authority the Commission issued a series of consecutive orders suspending trading in the common stock of Canadian Javelin, Ltd. (CJL), for over a year. The Court of Appeals for the Second Circuit held that such a series of suspensions was beyond the scope of the Commission's statutory authority. 547 F. 2d 152, 157-158 (1976). We granted certiorari to consider this important question, 434 U. S. 901 (1977), and, finding ourselves in basic agreement with the Court of Appeals, we affirm. We hold that even though there be a periodic redetermination of whether such action is required by “the public interest” and for “the protection of investors,” the Commission is not empowered to issue, based upon a single set of circumstances, a series of summary orders which would suspend trading beyond the initial 10-day period.
I
On November 29, 1973, apparently because CJL had disseminated allegedly false and misleading press releases concerning certain of its business activities, the Commission issued the first of what was to become a series of summary 10-day suspension orders continuously suspending trading in CJL common stock from that date until January 26, 1975. App. 109. During this series of suspensions respondent Sloan, who owned 13 shares of CJL stock and had engaged in substantial purchases and short sales of shares of that stock, filed a petition in the United States Court of Appeals for the Second Circuit challenging the orders on a variety of grounds. On October 15, 1975, the court dismissed as frivolous all respondent’s claims, except his allegation that the “tacking” of 10-day summary suspension orders for an indefinite period was an abuse of the agency’s authority and a deprivation of due process. It further concluded, however, that in light of two events which had occurred prior to argument, it could not address this question at that time. The first event of significance was the resumption of trading on January 26, 1975. The second was the commencement of a second series of summary 10-day suspension orders, which was still in effect on October 15. This series had begun on April 29, 1975, when the Commission issued a 10-day order based on the fact that the Royal Canadian Mounted Police had launched an extensive investigation into alleged manipulation of CJL common stock on the American Stock Exchange and several Canadian stock exchanges. App. 11-12. This time 37 separate orders were issued, suspending trading continuously from April 29, 1975, to May 2, 1976. The court thought the record before it on October 15 inadequate in light of these events and dismissed respondent’s appeal “without prejudice to his repleading after an administrative hearing before the SEC . . . ,” which hearing, though apparently not required by statute or regulation, had been offered by the Commission at oral argument. 527 F. 2d 11, 12 (1975), cert. denied, 426 U. S. 935 (1976).
Thereafter respondent immediately petitioned the Commission for the promised hearing. The hearing was not forthcoming, however, so on April 23, 1976, during the period when the second series of orders was still in effect, respondent brought the present action pursuant to § 25 (a) (1) of the Act, 15 U. S. C. § 78y (a)(1) (1976 ed.), challenging the second series of suspension orders. He argued, among other things, that there was no rational basis for the suspension orders, that they were not supported by substantial evidence in any event, and that the “tacking” of 10-day summary suspension orders was beyond the Commission’s authority because the statute specifically authorized suspension “for a period not exceeding ten days.” The court held in respondent’s favor on this latter point. It first concluded that despite the fact that there had been no 10-day suspension order in effect since May 2, 1976, and the Commission had asserted that it had no plans to consider or issue an order against CJL in the foreseeable future, the case was not moot because it was “ 'capable of repetition, yet evading review.’ ” 547 F. 2d, at 158, quoting from Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911).
The court then decided that the statutes which authorized summary suspensions — § 12 (k) and its predecessors — did not empower the Commission to issue successive orders to curtail trading in a security for a period beyond the initial 10-day period. 547 F. 2d, at 157-158. We granted certiorari, specifically directing the attention of the parties to the question of mootness, 434 U. S. 901 (1977), to which we now turn.
II
Respondent argues that this case is not moot because, as the Court of Appeals observed, it is “capable of repetition, yet evading review.” The Commission, on the other hand, does not urge that the case is demonstrably moot, but rather that there simply are not enough facts on the record to allow a proper determination of mootness. It argues that there is no “reasonable expectation” that respondent will be harmed by further suspensions because, “ ‘the investing public now ha[ving] been apprised of the relevant facts, the concealment of which had threatened to disrupt the market in CJL stock, there is no reason to believe that it will be necessary to suspend trading again.’ ” Brief for Petitioner 15, quoting from Pet. for Cert. 12 n. 7. Cf. Weinstein v. Bradford, 423 U. S. 147, 149 (1975). The Commission concedes, however, that respondent, in his capacity as a diversified investor, might be harmed in the future by the suspension of some other security which he owns. But it further contends that respondent has not provided enough data about the number or type of securities in his portfolio to enable the Court to determine whether there is a “reasonable” likelihood that any of those securities will be subjected to consecutive summary suspension orders.
Contrary to the Commission’s contention, we think even on the record presently before us this case falls squarely within the general principle first enunciated in Southern Pacific Terminal Co. v. ICC, supra, and further clarified in Weinstein v. Bradford, supra, that even in the absence of a class action a case is not moot when “(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.” Weinstein v. Bradford, supra, at 147 (emphasis added). That the first prong of this test is satisfied is not in dispute. A series of consecutive suspension orders may last no more than 20 days, making effective judicial review impossible during the life of the orders. We likewise have no doubt that the second part of the test also has been met here. CJL has, to put it mildly, a history of sailing close to the wind. Thus, the Commission’s protestations to the contrary notwithstanding, there is a reasonable expectation, within the meaning of Weinstein v. Bradford, supra, that CJL stock will again be subjected to consecutive summary suspension orders and that respondent, who apparently still owns CJL stock, will suffer the same type of injury he suffered before. This is.sufficient in and of itself to satisfy this part of the test. But in addition, respondent owns other securities, the trading of which may also be summarily suspended. As even the Commission admits, this fact can only increase the probability that respondent will again suffer the type of harm of which he is presently complaining. It thus can only buttress our conclusion that there is a reasonable expectation of recurring injury to the same complaining party.
Ill
A
Turning to the merits, we note that this is not a case where the Commission, discovering the existence of a manipulative scheme affecting CJL stock, suspended trading for 10 days and then, upon the discovery of a second manipulative scheme or other improper activity unrelated to the first scheme, ordered a second 10-day suspension. Instead it is a case in which the Commission issued a series of summary suspension orders lasting over a year on the basis of evidence revealing a single, though likely sizable, manipulative scheme. Thus, the only question confronting us is whether, even upon a periodic redetermination of “necessity,” the Commission is statutorily authorized to issue a series of summary suspension orders based upon a single set of events or circumstances which threaten an orderly market. This question must, in our opinion, be answered in the negative.
The first and most salient point leading us to this conclusion is the language of the statute. Section 12 (k) authorizes the Commission “summarily to suspend trading in any security . . . for a period not exceeding ten days . . . 15 U. S. C. § 78l(k) (1976 ed.) (emphasis added). The Commission would have us read the underscored phrase as a limitation only upon the duration of a single suspension order. So read, the Commission could indefinitely suspend trading in a security without any hearing or other procedural safeguards as long as it redetermined every 10 days that suspension was required by the public interest and for the protection of investors. While perhaps not an impossible reading of the statute, we are persuaded it is not the most natural or logical one. The duration limitation rather appears on its face to be just that — a maximum time period for which trading can be suspended for any single set of circumstances.
Apart from the language of the statute, which we find persuasive in and of itself, there are other reasons to adopt this construction of the statute. In the first place, the power to summarily suspend trading in a security even for 10 days, without any notice, opportunity to be heard, or findings based upon a record, is an awesome power with a potentially devastating impact on the issuer, its shareholders, and other investors. A clear mandate from Congress, such as that found in § 12 (k), is necessary to confer this power. No less clear a mandate can be expected from Congress to authorize the Commission to extend, virtually without limit, these periods of suspension. But we find no such unmistakable mandate in § 12 (k). Indeed, if anything, that section points in the opposite direction.
Other sections of the statute reinforce the conclusion that in this area Congress considered summary restrictions to be somewhat drastic and properly used only for very brief periods of time. When explicitly longer term, though perhaps temporary, measures are to be taken against some person, company, or security, Congress invariably requires the Commission to give some sort of notice and opportunity to be heard. For example, § 12 (j) of the Act authorizes the Commission, as it deems necessary for the protection of investors, to suspend the registration of a security for a period not exceeding 12 months if it makes certain findings “on the record after notice and opportunity for hearing . . . 15 U. S. C. § 78l (j) (1976 ed.) (emphasis added). Another section of the Act empowers the Commission to suspend broker-dealer registration for a period not exceeding 12 months upon certain findings made only “on the record after notice and opportunity for hearing.” § 78o (b)(4) (1976 ed.) (emphasis added). Still another section allows the Commission, pending final determination whether a broker-dealer’s registration should be revoked, to temporarily suspend that registration, but only “after notice and opportunity for hearing.” § 78o (b)(5) (1976 ed.) (emphasis added). Former §15 (b)(6), which dealt with the registration of broker-dealers, also lends support to the notion that as a general matter Congress meant to allow the Commission to take summary action only for the period specified in the statute when that action is based upon any single set of circumstances. That section allowed the Commission to summarily postpone the effective date of registration for 15 days, and then, after appropriate notice and opportunity for hearing, to continue that postponement pending final resolution of the matter. The section which replaced § 15 (b)(6) even further underscores this general pattern. It requires the Commission to take some action — either granting the registration or instituting proceedings to determine whether registration should be denied — within 45 days. 15 U. S. C. § 78o (b) (1) (1976 ed.). In light of the explicit congressional recognition in other sections of the Act, both past and present, that any long-term sanctions or any continuation of summary restrictions must be accompanied by notice and an opportunity for a hearing, it is difficult to read the silence in § 12 (k) as an authorization for an extension of summary restrictions without such a hearing, as the Commission contends. The more plausible interpretation is that Congress did not intend the Commission to have the power to extend the length of suspensions under § 12 (k) at all, much less to repeatedly extend such suspensions without any hearing.
B
The Commission advances four arguments in support of its position, none of which we find persuasive. It first argues that only its interpretation makes sense out of the statute. That is, if the Commission discovers a manipulative scheme and suspends trading for 10 days, surely it can suspend trading 30 days later upon the discovery of a second manipulative scheme. But if trading may be suspended a second time 30 days later upon the discovery of another manipulative scheme, it surely could be suspended only 10 days later if the discovery of the second scheme were made on the eve of the expiration of the first order. And, continues the Commission, since nothing on the face of the statute requires it to consider only evidence of new manipulative schemes when evaluating the public interest and the needs of investors, it must have the power to issue consecutive suspension orders even in the absence of a new or different manipulative scheme, as long as the public interest requires it.
This argument is unpersuasive, however, because the conclusion simply does not follow from the various premises. Even assuming the Commission can again suspend trading upon learning of another event which threatens the stability of the market, it simply does not follow that the Commission therefore must necessarily have the power to do so even in the absence of such a discovery. On its face and in the context of this statutory pattern, § 12 (k) is more properly viewed as a device to allow the Commission to take emergency action for 10 days while it prepares to deploy its other remedies, such as a temporary restraining order, a preliminary or permanent injunction, or a suspension or revocation of the registration of a security. The Commission's argument would render unnecessary to a greater or lesser extent all of these other admittedly more cumbersome remedies which Congress has given to it.
Closely related to the Commission's first argument is its second — its construction furthers the statute's remedial purposes. Here the Commission merely asserts that it “has found that the remedial purposes of the statute require successive suspension of trading in particular securities, in order to maintain orderly and fair capital markets.” Brief for Petitioner 37. Other powers granted the Commission are, in its opinion, simply insufficient to accomplish its purposes.
We likewise reject this argument. In the first place, the Commission has not made a very persuasive showing that other remedies are ineffective. It argues that injunctions and temporary restraining orders are insufficient because they take time and evidence to obtain and because they can be obtained only against wrongdoers and not necessarily as a stopgap measure in order to suspend trading simply until more information can be disseminated into the marketplace. The first of these alleged insufficiencies is no more than a reiteration of the familiar claim of many Government agencies that any semblance of an adversary proceeding will delay the imposition of the result which they believe desirable. It seems to us that Congress, in weighing the public interest against the burden imposed upon private parties, has concluded that 10 days is sufficient for gathering necessary evidence.
This very case belies the Commission's argument that injunctions cannot be sought in appropriate cases. At exactly the same time the Commission commenced the first series of suspension orders it also sought a civil injunction against CJL and certain of its principals, alleging violations of the registration and antifraud provisions of the Securities Act of 1933, violations of the antifraud and reporting provisions of the Securities Exchange Act of 1934, and various other improper practices, including the filing of false reports with the Commission and the dissemination of a series of press releases containing false and misleading information. App. 109. And during the second series of suspension orders, the Commission approved the filing of an action seeking an injunction against those in the management of CJL to prohibit them from engaging in further violations of the Acts. Id., at 101.
The second of these alleged insufficiencies is likewise less than overwhelming. Even assuming that it is proper to suspend trading simply in order to enhance the information in the marketplace, there is nothing to indicate that the Commission cannot simply reveal to the investing public at the end of 10 days the reasons which it thought justified the initial summary suspension and then let the investors make their own judgments.
Even assuming, however, that a totally satisfactory remedy-— at least from the Commission’s viewpoint — is not available in every instance in which the Commission would like such a remedy, we would not be inclined to read § 12 (k) more broadly than its language and the statutory scheme reasonably permit. Indeed, the Commission’s argument amounts to little more than the notion that § 12 (k) ought to be a panacea for every type of problem which may beset the marketplace. This does not appear to be the first time the Commission has adopted this construction of the statute. As early as 1961 a recognized authority in this area of the law called attention to the fact that the Commission was gradually carrying over the summary suspension power granted in the predecessors of § 12 (k) into other areas of its statutory authority and using it as a pendente lite power to keep in effect a suspension of trading pending final disposition of delisting proceedings. 2 L. Loss, Securities Regulation 854-855 (2d ed. 1961).
The author then questioned the propriety of extending the summary suspension power in that manner, id., at 854, and we think those same questions arise when the Commission argues that the summary suspension power should be available not only for the purposes clearly contemplated by § 12 (k), but also as a solution to virtually any other problem which might occur in the marketplace. We do not think § 12 (k) was meant to be such a cure-all. It provides the Commission with a powerful weapon for dealing with certain problems. But its time limit is clearly and precisely defined. It cannot be judicially or administratively extended simply by doubtful arguments as to the need for a greater duration of suspension orders than it allows. If extension of the summary suspension power is desirable, the proper source of that power is Congress. Cf. FMC v. Seatrain Lines, Inc., 411 U. S. 726, 744-745 (1973).
The Commission next argues that its interpretation of the statute — that the statute authorizes successive suspension orders — has been both consistent and longstanding, dating from 1944. It is thus entitled to great deference. See United States v. National Assn. of Securities Dealers, 422 U. S. 694, 719 (1975); Saxbe v. Bustos, 419 U. S. 65, 74 (1974).
While this undoubtedly is true as a general principle of law, it is not an argument of sufficient force in this case to overcome the clear contrary indications of the statute itself. In the first place it is not apparent from the record that on any of the occasions when a series of consecutive summary suspension orders was issued the Commission actually addressed in any detail the statutory authorization under which it took that action. As we said just this Term in Adamo Wrecking Co. v. United States, 434 U. S. 275, 287 n. 5 (1978):
“This lack of specific attention to the statutory authorization is especially important in light of this Court’s pronouncement in Skidmore v. Swift & Co., 323 U. S. 134, 140 (1944), that one factor to be considered in giving weight to an administrative ruling is 'the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.’ ”
To further paraphrase that opinion, since this Court can only speculate as to the Commission’s reasons for reaching the conclusion that it did, the mere issuance of consecutive summary suspension orders, without a concomitant exegesis of the statutory authority for doing so, obviously lacks “power to persuade” as to the existence of such authority. Ibid. Nor does the existence of a prior administrative practice, even a well-explained one, relieve us of our responsibility to determine whether that practice is consistent with the agency’s statutory authority.
“The construction put on a statute by the agency charged with administering it is entitled to deference by the courts, and ordinarily that construction will be affirmed if it has a 'reasonable basis in law.’ NLRB v. Hearst Publications, 322 U. S. 111, 131; Unemployment Commission v. Aragon, 329 U. S. 143, 153-154. But the courts are the final authorities on issues of statutory construction, FTC v. Colgate-Palmolive Co., 380 U. S. 374, 385, and 'are not obliged to stand aside and rubber-stamp their affirmance of administrative decisions that they deem inconsistent with a statutory mandate or that frustrate the congressional policy underlying a statute.’ NLRB v. Brown, 380 U. S. 278, 291.” Volkswagenwerk v. FMC, 390 U. S. 261, 272 (1968).
And this is just such a case — the construction placed on the statute by the Commission, though of long standing, is, for the reasons given in Part III-A of this opinion, inconsistent with the statutory mandate. We explicitly contemplated just this situation in FMC v. Seatrain Lines, Inc., supra, at 745, where we said:
“But the Commission contends that since it is charged with administration of the statutory scheme, its construction of the statute over an extended period should be given great weight. . . . This proposition may, as a general matter, be conceded, although it must be tempered with the caveat that an agency may not bootstrap itself into an area in which it has no jurisdiction by repeatedly violating its statutory mandate.”
And our clear duty in such a situation is to reject the administrative interpretation of the statute.
Finally, the Commission argues that for a variety of reasons Congress should be considered to have approved the Commission’s construction of the statute as correct. Not only has Congress re-enacted the summary suspension power without disapproving the Commission’s construction, but the Commission participated in the drafting of much of this legislation and on at least one occasion made its views known to Congress in Committee hearings. Furthermore, at least one Committee indicated on one occasion that it understood and approved of the Commission's practice. See Zuber v. Allen, 396 U. S. 168, 192 (1969); United States v. Correll, 389 U. S. 299, 305-306 (1967); Fribourg Navigation Co. v. Commissioner, 383 U. S. 272, 283 (1966).
While we of course recognize the validity of the general principle illustrated by the cases upon which the Commission relies, we do not believe it to be applicable here. In Zuber v. Allen, supra, at 192, the Court stated that a contemporaneous administrative construction of an agency’s own enabling legislation “is only one input in the interpretational equation. Its impact carries most weight when the administrators participated in drafting and directly made known their views to Congress in committee hearings.” Here the administrators, so far as we are advised, made no reference at all to their present construction of § 12 (k) to the Congress which drafted the “enabling legislation” here in question — the Securities Exchange Act of 1934. They made known to at least one Committee their subsequent construction of that section 29 years later, at a time when the attention of the Committee and of the Congress was focused on issues not directly related to the one presently before the Court. Although the section in question was re-enacted in 1964, and while it appears that the Committee Report did recognize and approve of the Commission’s practice, this is scarcely the sort of congressional approval referred to in Zuber, supra.
We are extremely hesitant to presume general congressional awareness of the Commission’s construction based only upon a few isolated statements in the thousands of pages of legislative documents. That language in a Committee Report, without additional indication of more widespread congressional awareness, is simply not sufficient to invoke the presumption in a case such as this. For here its invocation would result in a construction of the statute which not only is at odds with the language of the section in question and the pattern of the statute taken as a whole, but also is extremely far reaching in terms of the virtually untrammeled and unreviewable power it would vest in a regulatory agency.
Even if we were willing to presume such general awareness on the part of Congress, we are not at all sure that such awareness at the time of re-enactment would be tantamount to amendment of what we conceive to be the rather plain meaning of the language of § 12 (k). On this point the present case differs significantly from United States v. Correll, supra, at 304, where the Court took pains to point out in relying on a construction of a tax statute by the Commissioner of Internal Revenue that “to the extent that the words chosen by Congress cut in either direction, they tend to support rather than defeat the Commissioner’s position . . . .”
Subsequent congressional pronouncements also cast doubt on whether the prior statements called to our attention can be taken at face value. When consolidating the former §§15 (c) (5) and 19 (a) (4) in 1975, see n. 1, supra, Congress also enacted § 12 (j), which allows the Commission “to suspend for a period not exceeding twelve months, or to revoke the registration of a security, if the Commission finds, on the record after notice and opportunity for hearing, that the issuer of such security has failed to comply with any provision of this chapter or the rules and regulations thereunder.” 15 U. S. C. § 781 (j) (1976 ed.). While this particular power is not new, see 15 U. S. C. § 78s (a)(2), the effect of its exercise was expanded to include a suspension of trading. “With this change,” stated the Senate Committee on Banking, Housing and Urban Affairs, “the Commission is expected to use this section rather than its ten-day suspension power, in cases of extended duration.” S. Rep. No. 94-75, p. 106 (1975) (emphasis added). Thus, even assuming, arguendo, that the 1963 statements have more force than we are willing to attribute to them, and that, as ,the Commission argues, § 12 (j) does not cover quite as broad a range of situations as § 12 (k), the 1975 congressional statements would still have to be read as seriously undermining the continued validity of the 1963 statements as a basis upon which to adopt the Commission’s construction of the statute.
In sum, had Congress intended the Commission to have the power to summarily suspend trading virtually indefinitely we expect that it could and would have authorized it more clearly than it did in § 12 (k). The sweeping nature of that power supports this expectation. The absence of any truly persuasive legislative history to support the Commission’s view, and the entire statutory scheme suggesting that in fact the Commission is not so empowered, reinforce our conclusion that the Court of Appeals was correct in concluding no such power exists. Accordingly, its judgment is
Affirmed.
This authority is presently found in § 12 (k) of the Act, which was added by amendment in 1975 by Pub. L. 94-29 § 9, 89 Stat. 118. It provides in pertinent part:
“If in its opinion the public interest and the protection of investors so require, the Commission is authorized summarily to suspend trading in any security (other than an exempted security) for a period not exceeding ten days .... No member of a national securities exchange, broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security in which trading is so suspended.” 15 U. S. C. § 781 (k) (1976 ed.).
This power was previously found in §§ 15 (c) (5) and 19 (a) (4) of the Act, which for all purposes relevant to this case were substantially identical to the current statute, § 12 (k), except that § 15 (c)(5) authorized summary suspension of trading in securities which were traded in the over-the-counter market, while § 19 (a) (4) permitted summary suspension of trading in securities which were traded on the national exchanges. 15 U. S. C. §§ 78o (c) (5) and 78s (a) (4). Congress consolidated those powers in § 12 (k).
Respondent also argued that the orders violated his due process rights because he was never given notice and an opportunity for a hearing and that § 12 (k) was an unconstitutional delegation of legislative power. The court found it unnecessary to address these issues.
Respondent also contends that he has suffered collateral legal consequences from the series of suspension orders, and thus the case is not moot. Cf. Sibron v. New York, 392 U. S. 40, 57 (1968). We find it unnecessary to address this further contention.
The Commission contends that to determine the mathematical probability that at least one of the securities held by respondent will be subjected to consecutive suspension orders it is necessary to know, in addition to other information admittedly available in the Commission’s own records, the number of publicly traded corporations of which respondent is a shareholder. This datum cannot be ascertained with any accuracy on this record, however, claims the Commission, because respondent has made various representations regarding that number at various stages of the litigation. Compare App. 153 with Brief in Response 18. The Commission adds that the probability could be determined with even greater accuracy if respondent revealed the nature of his portfolio because certain securities— those listed on the New York Stock Exchange, for example — are seldom summarily suspended.
Within the last five years the Commission has twice issued a series of orders, each of which suspended trading in CJL stock for over a year. In the various staff reports given to the Commission in connection with and attached to the second series of orders, the Division of Enforcement indicates in no less than six separate reports that either the Commission or the various stock exchanges view CJL as a “chronic violator.” App. 20, 22, 24, 26, 28, 31. And reference is made to “the continuous [CJL] problems.” Id., at 61. Furthermore, counsel for the Commission represented at oral argument that there were in fact three separate bases for the second series of suspensions — alleged market manipulation, a change in management of the company, and a failure to file current reports. Tr. of Oral Arg. 17-18.
Neither does the first series of orders appear to be of this type. Rather, like the second series, it appears to be predicated mainly on one major impropriety on the part of CJL and its personnel, which impropriety required the Commission, in its opinion, to issue a year-long series of summary suspension orders to protect investors and for the public interest.
As previously indicated, see n. 5, swpra, the Commission advances three separate reasons for the suspensions, thus implicitly suggesting that perhaps this is a case where the Commission discovered independent reasons to suspend trading after the initial suspension. We note first that there are doubts whether these “reasons” independently would have justified suspension. For example, we doubt the Commission regularly suspends trading because of a “change in management.” A suspension might be justified if management steps down under suspicious circumstances, but the suspicious circumstance here is the initial reason advanced for suspension — the manipulative scheme — and thus the change in management can hardly be considered an independent justification for suspension. More importantly, however, even assuming the existence of three independent reasons for suspension, that leaves 34 suspension orders that were not based on independent reasons and thus the question still remains-. Does the statute empower the Commission to continue to “roll over” suspension orders for the same allegedly improper activity simply upon a redetermination that the continued suspension is “required” by the public interest and for the protection of investors?
The former § 15 (b) (6) provided in pertinent part:
“Pending final determination whether any registration under this subsection shall be denied, the Commission may by order postpone the effective date of such registration for a period not to exceed fifteen days, but if, after appropriate notice and opportunity for hearing (which may consist solely of affidavits and oral arguments), it shall appear to the Commission to be necessary or appropriate in the public interest or for the protection of investors to postpone the effective date of such registration until final determination, the Commission shall so order. Pending final determination whether any such registration shall be revoked, the Commission shall by order suspend such registration if, after appropriate notice and opportunity for hearing, such suspension shall appear to the Commission to be necessary or appropriate in the public interest or for the protection of investors. . . .” 15 U. S. C. § 78o (b) (6).
In 1963, when Congress was considering the former § 15 (c) (5), which extended the Commission’s summary suspension power to securities traded in the over-the-counter market, the Commission informed a Subcommittee of the House Committee on Interstate and Foreign Commerce of its current administrative practice. One paragraph in the Commission’s 30-page report to the Subcommittee reads as follows:
“Under section 19 (a)(4), the Commission has issued more than one suspension when, upon reexamination at the end of the 10-day period, it has determined that another suspension is necessary. At the same time the Commission has recognized that suspension of trading in a security is a serious step, and therefore has exercised the power with restraint and has proceeded with diligence to develop the necessary facts in order that any suspension can be terminated as soon as possible. The Commission would follow that policy in administering the proposed new section 15 (c) (5).” Hearings on H. It. 6789, H. E. 6793, S. 1642 before a Subcommmittee of the House Committee on Interstate and Foreign Commerce, 88th Cong., 1st Sess., 219 (1963).
The Senate Committee on Banking and Currency, when it reported on the proposed 1964 amendments to the Act, indicated that it understood and did not disapprove of the Commission’s practice. It stated:
“The Commission has consistently construed section 19 (a) (4) as permitting it to issue more than one suspension if, upon reexamination at the end of the 10-day period, it determines that another suspension is necessary. The committee accepts this interpretation. At the same time the committee recognizes that suspension of trading in a security is a drastic step and that prolonged suspension of trading may impose considerable hardship on stockholders. The committee therefore expects that the Commission will exercise this power with restraint and will proceed with all diligence to develop the necessary facts in order that any suspension can be terminated as soon as possible.” S. Rep. No. 379, 88th Cong., 1st Sess., 66-67 (1963).
The purpose of the 1964 amendments was merely to grant the Commission the same power to summarily deal with securities traded in the over-the-counter market as it already had to deal with securities traded on national exchanges. The purpose of the 1975 amendments was simply to consolidate into one section the power formerly contained in two.
Under the new provision, when the Commission suspends or revokes the registration of a security, “[n]o . . . broker, or dealer shall make use of the mails or any means or instrumentality of interstate commerce to effect any transaction in, or to induce the purchase or sale of, any security the registration of which has been and is suspended or revoked pursuant to the preceding sentence.” 15 U. S. C. § 78l (j) (1976 ed.).
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199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer: |
songer_dissent | 1 | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the number of judges who dissented from the majority (either with or without opinion). Judges who dissented in part and concurred in part are counted as dissenting.
Barbara E. KIMMEL, Administratrix of the Estate of Frank C. Kimmel, Deceased, v. YANKEE LINES, a Corporation, Appellant.
No. 11511.
United States Court of Appeals Third Circuit.
Argued March 10, 1955.
Decided July 15, 1955.
Hastie, Circuit Judge, dissented.
Robert E. Kline, William C. Walker, Pittsburgh, Pa. (Dickie, McCamey, Chil-cote, Reif- & Robinson, Pittsburgh, Pa., on the brief), for appellant.
A. H. Rosenberg, Pittsburgh, Pa. (Rosenberg & Rosenberg, Pittsburgh, Pa., on the brief), for appellee.
Before McLAUGHLIN, STALEY and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
Plaintiff’s decedent was killed as a result of a collision in Pennsylvania between the automobile he was operating and a tractor trailer owned by and operated for appellant: Nine months after this action' had been commenced' suits were filed in the' state court on behalf of the passengers in the Kimmel car against plaintiff as administratrix of her deceased husband’s estate and Yankee Lines. Those cases' were consolidated and tried. The jury found negligence on the part of both Kimmel and Yankee Lines and awarded verdicts against both defendants. The state trial judge on motion entered judgment n. o. v. in favor of Yankee Lines and allowed the verdicts against Kimmel to stand. This suit was tried thereafter in due course and resulted in a verdict in favor of the plaintiff.
On motions for a new trial and for judgment n. o. v. appellant urged that the verdict in the federal court was against the weight of the evidence and that the state court judgment had resolved the issue of negligence making it res ad judicata.
The first point need not concern us long. There was evidence from which the jury could have concluded as it did that the Yankee Lines driver caused the accident by his negligence and that Kimmel was not contributorily at fault. Those were matters for the jury.
Since this is a diversity case we look to Pennsylvania law for the answer to the second question, whether recovery here is barred by the state court judgments. There is no appellate opinion directly in point but a common pleas decision of that state which is quite close to the situation before us squarely holds that a verdict against two joint defendants in an action such as the state court suit above mentioned does not foreclose the negligence issue as to the defendants in a later suit between them. Chenger v. Peccan, 1953, 88 Pa.Dist. & Co. 186. That opinion, while not controlling, is entitled to some weight. National Foam System v. Urquhart, 3 Cir., 1953, 202 F.2d 659.
The common pleas decision relied on Section 82 of the Restatement of Judgments, which says:
“The rendition of a judgment in an action does not conclude parties to the action who are not adversaries under the pleadings, as to their rights inter se upon matters which they did not litigate, or have an opportunity to litigate, between themselves.” (Emphasis supplied.)
An illustration given under Comment b to this section is particularly apropos to our case:
“1. A and B are driving automobiles, which collide. C, a passenger in B’s car, sues A and B. Whether the judgment is in favor of or against C as to either or both A and B, the issues as to negligence or other element of the cause of action are not res judicata in a subsequent action by A against B for damage to his car.”
Appellant leans heavily on Simodejka v. Williams, 1948, 360 Pa. 332, 62 A.2d 17. In that case, however, the former suit arose under Pennsylvania’s third-party practice rule. Thus instead of the parties being co-defendants in the first suit they were adversaries, i. e. third-party plaintiff and third-party defendant. On this basis the Pennsylvania Supreme Court properly distinguished the Restatement’s nonadversary rule as well as an earlier Pennsylvania case, Jordan v. Chambers, 1910, 226 Pa. 573, 75 A. 956, which had refused to apply the doctrine of res adjudicata in a subsequent suit between two co-defendants who had been successful in an ejectment action brought against them.
This is not the first time the federal courts have applied Pennsylvania law to this particular problem. In Hassenplug v. Victor Lynn Lines, 3 Cir., 1947, 163 F.2d 828, affirming, D.C.E.D.Pa.1947, 71 F.Supp. 70, the representatives of a deceased automobile passenger had recovered a judgment against decedent’s driver and the owner of a truck, the latter being the second vehicle involved in the fatal collision. This court, in a per curiam affirmance, refused to apply the doctrine of res adjudicata in the subsequent suit brought by decedent’s driver against the truck owner. In Greer v. Stanislau, D.C.E.D.Pa.1953, 118 F.Supp. 494, two automobiles collided on the streets of Philadelphia. A land owner brought suit for damages in the Municipal Court of Philadelphia County against the two drivers as joint tortfeasors. Greer did not contest the action and the jury returned a verdict against Greer but exonerated Stanislau. Greer then sued Stanislau in the federal district court. The latter’s motion to dismiss, on the res ad-judicata ground was denied. In his opinion Judge Ganey cited the Simodejka case, quoted Section 82 of the Restatement of Judgments and concluded: “We think the Pennsylvania Courts would follow this section of the Restatement.” The Greer case was not appealed. See also Hornstein v. Kramer Bros. Freight Lines, 3 Cir., 1943, 133 F.2d 143.
Exactly the same problem was before the Minnesota Supreme Court in Bunge v. Yager, 1952, 236 Minn. 245, 52 N.W. 2d 446, 451. What that court said about its contribution and cross-claim procedure could also be said by us about the law of Pennsylvania:
“Our statutes, as well as our new rules, simply provide a method whereby the right's and liabilities of co-parties mazy be litigated in an action in which they are aligned on the same side of the litigation, thereby preventing a multiplicity of suits. But where action is not taken to bring co-parties into an adversary relationship, their rights and liabilities as against each other are not ■ determined, nor is the determination of their liability to a third party a bar to a subsequent action by one of the codefendants against the other to recover damages which he may have suffered as a result of the same tort.” (Emphasis supplied.)
For cases in other jurisdictions to the same effect, see 152 A.L.R. 1066-1072 (1944); 9 Blashfield, Cyclopedia of Automobile Law-and Practice, Section 5835 (1955).
There is more than technicality behind the Restatement illustration. The state court suits were brought to obtain compensation for injuries suffered by the passengers in the present plaintiff’s car. The right of contribution which either defendant there might have been able to assert against the other is entirely collateral to the subject matter of the present cause of action based upon the personal injuries and wrongful death suffered by plaintiff’s decedent. The fact is that no such contribution right was asserted under the pleadings. Nor did plaintiff assert in the prior suit a separate cross-claim against her co-defendant for the injuries and death suffered by her decedent. Plaintiff, acting within Her rights, chose to remain in a non-adversary position with her co-defendant in the first suit. To preclude her now from litigating her cause of action would in effect superimpose a mandatory cross-claim rule on Pennsylvania practice.
We think the Restatement rule is sound and that the Pennsylvania courts would follow it. The judgment below will be affirmed.
. “When Williams, in answering George’s [the plaintiff in the first suit] complaint, also brought in Michael as additional defendant, he, Williams, pursuant to Rule 2255 [of the Pennsylvania rules] [12 P.S. Appendix], became a plaintiff as against Michael and Michael became a defendant opposed to Williams; * * * in other words, as the rule provided, they became adverse parties as to each other * Simodejka v. Williams, supra, 360 Pa. at page 335, 62 A.2d at page 18.
. Appellant also urges upon us Section 68 of the Restatement of Judgments which pertains to the doctrine known as “collateral estoppel”. That contention was also made before the Minnesota Supreme Court. As there indicated, Section 68 must be read in conjunction with Section 82. When that is done it is clear that the collateral estoppel doctrine is likewise limited to subsequent suits between adverse parties in the prior suit or their privies. Any exception to this principle such as where a person has accepted the benefits of a prior judgment bears no relevancy to the instant situation. Cf. Livesay Industries v. Livesay Window Co., 5 Cir., 1953, 202 F.2d 378, certiorari denied 346 U.S. 855, 74 S.Ct. 70, 98 L.Ed. 369. National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 1940, 110 F.2d 138, while containing broader language, is factually sui generis.
. Mere assertions in separate answers that the other defendant is the one at fault does not make the defendants adversaries. Pearlman v. Truppo, 1932, 10 N.J.Misc. 477, 159 A. 623; see also Cooke v. Kilgore Mfg. Co., D.C.N.D.Ohio, 1954, 15 F.R.D. 465.
Question: What is the number of judges who dissented from the majority?
Answer: |
songer_r_subst | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Eugene Richard CYGAN, Administrator of the Estate of Eugene Frank Cygan, deceased, Plaintiff-Appellee, v. CHESAPEAKE & OHIO RAILWAY CO., a Virginia Corporation, Defendant-Appellant.
No. 14280.
United States Court of Appeals Sixth Circuit.
June 30, 1961.
Robert A. Straub, Detroit, Mich., for’ appellant.
James A. Markle, Detroit, Mich., for appellee.
Before MILLER, Chief Judge, and CECIL and O’SULLIVAN, Circuit Judges.
O’SULLIVAN, Circuit Judge.
Defendant-Appellant, Chesapeake & Ohio Railway Company, appeals from a judgment for $15,000.00, entered upon a jury verdict in favor of plaintiff-appellee, Eugene Richard Cygan, Administrator of the Estate of Eugene Frank Cygan, deceased. The action arose out of the death of Eugene Frank Cygan, the two and one-half year old son of the plaintiff-administrator, following such child’s fatal injuries inflicted when struck by the engine of a freight train operated by the defendant railroad. The accident occurred at the crossing of the railroad tracks with what the railroad claims was the right of way of Tireman Avenue, a street in the City of Detroit, Michigan. The deceased child, walking easterly, had approached the railroad tracks along a sidewalk on the south side of Tireman Avenue, and from the easterly end of such sidewalk had proceeded, walking or crawling, along a path extending across the tracks on the line of the sidewalk onto the tracks of defendant, where he was sitting when struck by defendant’s engine.
Plaintiff charged defendant with negligence, first in the claimed failure of the engine crew to make timely discovery •of the child and to exercise due care after they did discover the presence of the •child, and, second, in failing to have fenced its right of way at the point of the fatal accident. The district judge ■submitted both of plaintiff’s theories of recovery to the jury. The jury rendered .a general verdict for plaintiff. On this .appeal, defendant charges error only in the submission of the question of claimed negligence of defendant in failing to have erected a fence along its said right of way. Under the law of Michigan, and under decisions of this and other circuits, a new trial must be granted if there was error in submitting either of plaintiff’s theories of liability. Winnie v. Lake Shore, etc., R. Co., 160 Mich. 334, 125 N. W. 351; Detroit, T. & I. R. Co. v. Banning, 6 Cir., 1949, 173 F.2d 752, 755; See also Wilmington Star Mining Co v. Fulton, 205 U.S. 60, 77-79, 27 S.Ct. 412, 51 L.Ed. 708; Rashaw v. Central Vermont Ry., 2 Cir., 1943, 133 F.2d 253, 256; Northern Pac. Ry. Co. v. Haugan, 8 Cir., 1950, 184 F.2d 472, 478, 481; Atlantic Coast Line R. Co. v. Tiller, 4 Cir., 1944, 142 F.2d 718, 722.
A Michigan statute requires every railroad to erect and maintain fences on each side of its right of way (Mich.Stat.Anno. § 22.274, C.L.1948, § 466.15). The Supreme Court of Michigan has held that notwithstanding such statute, a railroad is not required to maintain such fences within the limits of its railroad yard. Katzinski v. Grand Trunk Ry. Co., 141 Mich. 75, 104 N.W. 409; Hoover v. Detroit, G. H. & M. Ry. Co., 188 Mich. 313, 154 N.W. 94; Rabidon v. Chicago & W. M. R. Co., 115 Mich. 390, 73 N.W. 386, 39 L.R.A. 405. Defendant asserts that railroads are also excused from the fencing requirement of the statute where its tracks cross a street or other public way. In the case of Hyman v. Ann Arbor Railroad Company, 141 Mich. 84, 104 N. W. 375, a railroad was held liable in damages where it erected an embankment and a fence along its right of way blocking an adjoining landowner from passage across the railroad tracks along the way of a street delineated on a recorded plat. The court held that the landowner was entitled to damages for such obstruction, irrespective of whether the streets on the plat had ever been legally accepted by the city or had been opened, repaired, or improved. Defendant claims that evidence established that Tireman Avenue existed as a public street across its tracks, at the place of the fatal accident, and that under the decision of Hyman v. Ann Arbor Railroad Company, supra, it had neither the right nor the duty to fence its right of way so as to close off passage across its tracks at that point. Cases more specifically dealing with this claimed exception to a railroad’s duty to fence its right of way are cited by defendant. Long v. Central Iowa Ry. Co., 64 Iowa 657, 21 N. W. 122; Lathrop v. Central Iowa Ry. Co., 69 Iowa 105, 28 N.W. 465; Gibson v. Central Iowa Ry. Co., 136 Iowa 415, 113 N.W. 927; Sikes v. St. Louis & S. F. R. Co., 127 Mo.App. 326, 105 S.W. 700; Walker v. Southwest Missouri R. Co., Mo. App., 198 S.W. 441.
Neither in the trial court nor here has plaintiff challenged defendant’s contention that if defendant’s tracks, at the point of the accident, were, as a matter of fact, within the limits of its railroad yard or within the limits of a public right of way for street purposes, it was not required to maintain a fence there. Plaintiff claims that whether either of such assertions was factually correct was, under the evidence, a question for the jury. Defendant contends, and requested the trial judge to so instruct the jury, that the undisputed evidence established that the scene of the accident was within the limits of its railroad yard and within the street right of way; also that there was no duty on the railroad to have erected a fence at the location involved and that no negligence could be charged against it for failure to have erected such a fence. The district judge’s charge left it to the jury to determine whether the scene of the accident was within the railroad’s yard limits, but did not discuss the matter of the street right of way. He told the jury that if, under the circumstances, the defendant “should have had a fence or other protection along the right of way that they did not have, you may find the defendant negligent.”
The questions for decision here, therefore, are whether as a matter of undisputed fact, the accident occurred within the railroad’s yard limits or within a public right of way for street purposes. If either question must be answered in the affirmative, a new trial should be ordered.
(1) Yard Limits. One of defendant’s employees was asked whether or not the area where the accident happened “is or is not within yard limits.” He answered, “It is.” There was no other oral testimony dealing directly with the subject. However, the general area was described by witnesses, the police report referred to the area as “open country” and photographs portrayed whatever use the defendant was making of the general locality. Except for one spur track, some distance from the crossing, there is nothing in sight supportive of the claimed existence of a railroad yard or yard limits. We think the physical condition of the area, indicating absence of any activity peculiar to a railroad yard, made a question of fact for the jury on the subject. Rabidon v. Chicago & West Michigan Railway Co., 115 Mich. 390, 73 N.W. 386. Neither the court nor the jury were required to consider only the statement of defendant’s engineer to the exclusion of other evidence from which an inference could be drawn against the existence of a railroad yard. See Andrew Jergens Co. v. Conner, 6 Cir., 1942, 125 F.2d 686, 689; Purcell v. Waterman Steamship Corp., 2 Cir., 1955, 221 F.2d 953, 954.
(2) Did the accident happen on a right of way for street purposes. We are of the opinion that no other conclusion could be drawn from the evidence in this case but that the fatal accident occurred on the railroad track of defendant, as asserted in plaintiff’s complaint, “at its intersection with Tireman (a public street) in the City of Detroit.” Plaintiff’s evidence showed that the deceased child had approached the defendant’s tracks along a sidewalk on the south side of Tireman Avenue, which was marked by a street sign, so designating it. The sidewalk stopped short of the defendant’s tracks. The plaintiff claimed, however, that:
“The people have worn a well-beaten path, continuing east from the east side of the tracks over the right of way and to where Tireman Avenue comes up to the right of way on the opposite side. * * * this is a public way and by long established use * * * was a place where pedestrians and particularly children were to be expected.”
Defendant’s witness Mueller, an employee of the Planning Commission of Detroit, identified a map prepared for the purpose of a condemnation proceeding whereby Tireman Avenue was to be widened as it crossed the defendant’s tracks. This map showed Tireman Avenue as a street 43 feet wide, extending across defendant’s tracks. It showed the city’s plan to condemn 33 feet on the north side of the existing street, to make the street 76 feet wide. The 43 feet of existing street right of way included the sidewalk upon which the child approached and the path upon which he was crossing the tracks. The witness Mueller testified that the city of Detroit owned the 43 foot right of way; that an easement for Tireman Avenue had been granted to the city of Detroit by the dedication of a recorded plat, and that this had occurred long before the accident in question. He identified this 43 foot right of way as “extending from Rutherford to Greenfield, which includes the crossing of the C. & O. Railroad.”
Plaintiff challenges defendant’s claim that the undisputed evidence shows that there was an existing public right of way across the C. & O. tracks at the point of the fatal accident. He asserts that “it is an exhibit which refutes defendant-appellant’s assumption.” The exhibit referred to is a photograph of the area showing a sign located east of the end of the sidewalk as it approached the crossing and just south of the path that proceeds easterly from the end of the sidewalk. This sign, presumably placed there by the C. & O. employees reads, “Chesapeake & Ohio Railway Property, No Trespassing.” There was no evidence one way or the other as to whether this sign was within the 43 foot right of way of the City of Detroit. Assuming, however, that it was located within the right of way, we do not think its presence created an issue of fact as to the existence of the city’s right of way. Clear and unimpeached evidence of the existence of the public right of way had been received. The C. & O. sign’s assertion of ownership could not, in our opinion, create an issue of fact against the clear proof to the contrary.
Where facts upon which a rule of law depends are undisputed, the jury should be so advised. Holbert v. Staniak, 359 Mich. 283, 102 N.W.2d 186, 189; Stearns v. Vincent, 50 Mich. 209, 15 N.W. 86, 45 Am.Rep. 37; Dondero v. Frumveller, 61 Mich. 440, 28 N.W. 712. The fact that Tireman Avenue was a public street, crossing the railroad right of way at the place in question, relieved defendant of any obligation to there erect and maintain a fence. The jury should have been so instructed, as requested by defendant.
Judgment for plaintiff is reversed and a new trial ordered.
Question: What is the total number of respondents in the case that fall into the category "sub-state governments, their agencies, and officials"? Answer with a number.
Answer: |
songer_genapel2 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed appellant. If there are more than two appellants and at least one of the additional appellants has a different general category from the first appellant, then consider the first appellant with a different general category to be the second appellant.
ARAGON et al. v. UNEMPLOYMENT COMPENSATION COMMISSION OF TERRITORY OF ALASKA et al.
No. 10425.
Circuit Court of Appeals, Ninth Circuit.
May 15, 1945.
Andersen & Resner, George R. Andersen, and Herbert Resner, all of San Francisco, Cal., for appellants.
E. Coke Hill, of San Francisco, Cal., for appellees Unemployment Compensation Commission of Territory of Alaska.
Marshall P. Madison, Francis R. Kirk-ham, Melvin E. Mensor, and Pillsbury, Madison & Sutro, all of San Francisco, Cal., and Faulkner & -Banfield, of Juneau, Alaska, for appellees Alaska Packers Ass’n et al.
Before DENMAN, HEALY, and BONE, Circuit Judges.
DENMAN, Circuit Judge.
This is an appeal from a judgment of the District Court of the United States for the Territory of Alaska, rendered in a proceeding to review a decision of the Unemployment Compensation Commission of the Territory. Under the Alaska Unemployment Compensation law appellant employees, hereafter called appellants, were admittedly entitled to unemployment compensation from the Commission for the several months’ period fixed by the Commission’s Regulation 10 of the fishing season of 1940 at the fishing and canning plants of the appellee corporations, hereafter called Canners, at Chignik, Karluk and Bristol Bay, Alaska.
The beneficent purpose of the Unemployment Compensation Law of Alaska is stated in its “Declaration of Territorial Public Policy,” as follows:
“Economic insecurity due to unemployment is a serious menace to the health, morals and welfare of the people of this Territory. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the Legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. The achievement of social security requires protection against this greatest hazard of our economic life. * * * ”
The question here for determination is whether eight weeks’ time should be deducted from the admitted period of unemployment and appellants’ awards reduced by the compensation otherwise due for that period by reason of a claimed labor dispute in active progress for the eight weeks at the “factory, establishment or other premises” of the Canners, within the meaning of an exceptive provision of the Act, as follows:
“Section 5. Disqualification for Benefits. An individual shall be disqualified for benefits :
* * * * *
“(d) For any week with respect to which the Commission finds that his total or partial unemployment is due to a labor dispute which is in active progress at the factory, establishment or other premises at which he is or was last employed; provided, that such disqualification shall not exceed the 8 weeks immediately following the beginning of such dispute; * *
Such an exception to the beneficence of the Act must be strictly construed. In the recent case of A. H. Phillips, Inc. v. Walling, 65 S.Ct. 807, that Court considered the question of the rule of construction of the word “establishment” in a similar exception to the Fair Labor Standards Act of 1938, 52 Stat. 1060, 1067, 29 U.S.C. § 213(a) (2), 29 U.S.C.A. § 213(a) (2), that the wage and hour provisions of the Act shall not apply with respect to “ ‘any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce.’ The issue posed by this case is whether employees working in the warehouse and central office of an interstate grocery chain store system are ‘engaged in any retail * * * establishment’ within the meaning of Section 13(a) (2) so as to be exempt from the wage and hour provisions.”
The Court states the rule of construction of exceptions to such humanitarian and remedial legislation, as here the Alaska Compensation Law is declared to be, as follows:
“The Fair Labor Standards Act was designed ‘to extend the frontiers of social progress’ by ‘insuring to all o„ur able-bodied working men and women a fair day’s pay for a fair day’s work.’ Message of the President to Congress, May 24, 1934. Any exemption from such humanitarian and remedial legislation must therefore be narrowly construed, giving due regard to the plain meaning of statutory language and the intent of Congress. To extend an exemption to other than those plainly and unmistakably within its terms and spirit is to abuse the interpretative process and to frustrate the announced will of the people. We accordingly agree with the two courts below that the exception contained in Section 13(a) (2) is inapplicable in this case and that the employees involved are entitled to the benefits of the wage and hour provisions of the Act. We hold, in other words, that the warehouse and central office of petitioner’s chain store system cannot properly be considered a retail establishment within the meaning of Section 13(a) (2).”
In so holding, the Supreme Court states that “Prior to the adoption of the Fair Labor Standards Act the term ‘establishmentwas used in the sense of physical place of business by many census reports, business analyses, administrative regulations, and state taxing and regulatory statutes. * * *” (Emphasis supplied.)
Prior to the Phillips decision this circuit held in Canadian Pac. R. v. United States, 9 Cir., 73 F.2d 831, 834, a similar strict construction of a proviso excepting certain carriers from liability for overtime pay to employees of the Emigration Service under the Act of March 2, 1931, 8 U.S.C.A. § 109a, and in Reynolds v. Salt River Valley Assn., 9 Cir., 143 F.2d 863, 868 with reference to an exception to the Fair Labor Standards Act. See also same holding regarding excepting provisos in Fair Labor Standards Act in Eighth, Third and First Circuits: Fleming v. Hawkeye Button Co., 8 Cir., 113 F.2d 52, 57; Fleming v. A. B. Kirschbaum, 3 Cir., 124 F.2d 567, 572; Calaf v. Gonzalez, 1 Cir., 127 F.2d 934.
It is obvious that a workman seeking to recover under the Alaska Act would not be denied recovery unless, in addition to his unemployment, he also ■ proved that he had no “disqualification for benefits.” We have held that the burden of proving that an unemployed person, otherwise entitled to the compensation, is deprived of it by reason of falling within the exception is upon the party asserting it, here the appellees. Canadian Pac. R. v. United States, supra; Reynolds v. Salt River Valley Assn., supra; Schlemmer v. Buffalo, Rochester etc. R., 205 U.S. 1, 11, 27 S.Ct. 407, 51 L.Ed. 681.
It does not deed the application of the rule of strict construction to construe the words “factory” and “establishment” placed before the words “or other premises” in Section 5(d) of the Alaska Act as ejusdem generis with the concluding phrase and that the principle of noscitur a sociis applies. Strict construction would require such a construction as the Supreme Court made of the word “establishment” in a similar exception, supra, as the “physical place.” Webster’s New International Dictionary, Second Edition, 1940, defines the word “premises,” the plural of the word “premise,” as
“Premise * * * 4. pi. Law. The property conveyed in a deed; hence, in general [emphasis ours], a piece of land or real estate; sometimes, esp. in fire-insurance papers, a building, or buildings on land; as, to lease premises;' the premises insured. Sometimes loosely applied to personal property, as a vessel.”
The question then is whether appellees have established their burden of proof that there was a labor “dispute which, is in active progress at the factory, establishment or premises at which he is or was last employed.”
The three appellee corporations, called the Canners, maintain salmon fishing and canning establishments in Alaska at Chignik, Karluk and Bristol Bay. The establishments consist of canning factories and the premises surrounding them with quarters for the fishermen and canners, fishing boats and housing for the supplies and equipment of the establishments and their employees. Appellants, over 1300 men, residing in California, had been the employees of the Canners at these establishments in the previous fishing season of 1939. They had been carried to San Francisco on the vessels chartered or owned by the Canners. Their employment, as shown by paragraph 15 of the 1939 agreement between the Canners and the appellants, began when the employees boarded the vessels bound for Alaska and terminated on arrival of the vessels on return to San Francisco, unless leaving the employment in Alaska.
Appellants were last employed under their contract for the 1939 fishing seasons in Alaska. In that contract there are 37 paragraphs with over a hundred agreements between the 1300 employees and the Canners concerning the rates of pay, overtime, food, housing, racial discrimination, and numerous other relations of the employers and employees in the canning and fishing establishments in Alaska and on board the vessels. Any one of these agreements well may have produced a labor dispute at the establishments or on the vessels or adjacent thereto. Section 5(d) excepts the employees in all of these possible hundreds of labor disputes from the compensation of the Act for a maximum of 8 weeks. There is no merit to the contention that the exceptive section 5(d) must be intended to include disputes other than “at” such premises to give meaning and effect to the compensation Act.
The Canners’ and the Commission’s brief attempt to meet appellants’ contention only by an inferential treatment of Section 5(d) as if the words “at the factory,” etc. were to be stricken from their place after the words “active progress” and transposed above in the paragraph after the word “unemployment.” With such striking and transposing the paragraph would appear
“For any week with respect to which the Commission finds that his total or partial unemployment — at the factory, establishment or other premises at which he is or was last employed — is due to a labor dispute which is in active progress -at-tfee-faetoryv estabíish-mgnt — e?—ethsf—pre-raises—sfe which-he is or was last employed^-’
Even in the absence of the rule of strict construction we would not be justified in so reforming the phrases of the Act. Applying the rule, it is plain that such construction is not valid.
That is to say, the premises at which the appellees must prove the dispute was in active progress are such premises as the land and “physical” structures and fishing vessels in Alaska or the Canners’ vessels on the return voyage to San Francisco at which appellants were last employed.
Under the provisions of the Alaska Unemployment Compensation law appellants’ claims had been heard by a referee appointed by the Commission. At the opening of the hearing the appellants stated three contentions, of which the third we deem determinative. It is a pure question of law on the facts adduced specifically referring to Section 5(d) and the. place at which the dispute is in active progress. Appellants’ three contentions there were
“Mr. Resner [for employee appellants]. Well, I want to make a brief statement as to what our position is.
In the first place, we are contending this is not a labor dispute but simply a refusal on the part of the Alaska Packers to negotiate an agreement with the Union for the present season in Alaska affecting the Alaska Cannery Workers, Local No. 5, of San Francisco, and that is not a labor dis pute; and, therefore, these men are just out of work because of the refusal to enter into this agreement and are entitled to their benefits.
We want to contend, secondly, if under any circumstances this can be considered a labor dispute it is not such labor dispute within the meaning of the Act for these reasons: This is a seasonal industry and the contracts heretofore have been signed for' one year — have been negotiated and signed anew for each season. The contract of last year had expired and a new contract was to be signed for or negotiated for the coming season. There was no contract arrived at. And we contend the failure or the inability to arrive at a contract does not constitute a labor dispute.
Third, going to the Act itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed." (Emphasis supplied.)
The referee states the controversy actually submitted to him to have been stipulated by the. parties to be confined to the “sole question” as to the dispute in progress “at” the Alaska plants, as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed." (Emphasis supplied.)
Appellees offered no testimony before the referee as to any dispute at the ships in which any appellant was last employed. No further testimony was taken at the subsequent proceeding before the Commission or the district court. Hence the appellees have not proved appellants within any excepted dispute at the appellees’ ships where they were last employed.
On the issue, so restricted, the referee decided adversely to the contentions of appellants, (a) that there had been no labor dispute and (b) if there were it did not exist at the Alaska plants. The referee found that there had been a labor dispute between appellants and the Canners, but found that it was in active progress for but six days “with reference to the Karluk plant operated in 1939 by the Alaska Packers Association” and for but twelve days “involving operation of the Chignik plant operated by the Alaska Packers Association” and that “at the time of the commencement of the season in Bristol Bay no labor dispute was in active progress at any of the plants operated in that District in 1939.” (Emphasis supplied). He decided that the Karluk employees should be denied six days’ compensation and the Chignik employees twelve days.
It is our opinion that the referee erred in holding against appellants on the question of law under consideration that the words of Section 5(d) “at the factory, establishment or other premises” mean “with reference to” or “involving operation of” such premises.
The evidence shows that early in 1940 a dispute arose between appellants and the Canners concerning the terms of the future fishing and canning employment of appellants for the approaching 1940 season at above mentioned establishments in Alaska and on the voyages to and from the canneries there. For the purpose of this opinion we assume, but do not decide, that it continued during the eight weeks in question. The beginning and entire activity of the dispute was “at” some unnamed place or places in San Francisco, California, and, it is claimed by the Canners, in part “at” some unnamed place in Seattle, Washington. Obviously, the dispute was not at the premises of any of the Alaska establishments.
The former Karluk and Chignik employees took no appeal to the Commission from the referee’s decision. We hold that there should be at least these deductions from the claims of the Karluk and Chignik employees, deductions which they apparently were willing to accept if the controversy there ended. There was no reason for an appeal by the Bristol Bay men.
However, the controversy continued. The referee’s decision was appealed to the Commission by the Canners, the Commission stating the Canners’ contention before it to involve the question of the premises “at” which the dispute was in progress as follows:
“The employers-respondents claim that the unemployment of the claimants-appellees is due to a labor dispute which was in active progress at the factory, establish ment or other premises of zvhich said claimants, and all of them, were last employed during the seasonable working period of the salmon industry of the Territory of Alaska, as set forth in said Commission’s Regulation No. 10.” (Emphasis supplied.)
The Commission considered the appeal on the record, made for it by the referee, of the parties’ contentions and stipulation and of the evidence taken on the stipulated issue. It thus had before it the contention of the insured men that
“Third, going to 'the A.ct itself, referring to Section 5(d), we contend this is not a labor dispute which is in active progress at the factory, establishment or other premises at which the workers were last employed” (emphasis supplied), and the stipulation of the parties confining the question to the existence of a dispute at the Alaska plants as follows:
“Pursuant to stipulation and understanding with Counsel for the respective parties the sole question before the Referee is to determine whether or not the facts show that at the commencement of the canning season in 1940 a labor dispute was in active progress at the plants at Karluk, Chignik and in Bristol Bay being the plants operated by the Employers in 1939 and at which the members of the Union were then employed.” (Emphasis supplied.)
The Commission evidently agreed with the referee that since the dispute was undeniably “with reference to” or “involving operation of” the Alaska plants in the future, it was a labor dispute then existing “at” the plants within section 5(d). Hence it confines its finding to the mere existence of the dispute during the eight weeks as follows:
“That there was an active labor dispute existing between said parties at the opening of the season; that said dispute continued, and that paragraph (d) under Section 5, under the title ‘Disqualification for Benefits’ provides * * * [followed by the words of Section 5(d)]”.
Obviously, a statement that a statute exists and setting forth its terms is not a minding of fact that the dispute between the. appellants and the Canners was actively pursued “at” the plants in Alaska named in the stipulation. In any event, there was no evidence to support such a finding had it been made. The dispute’s existence was “at” some place in California and possibly in Washington.
The appellants petitioned the district court for a review of the Commission’s decision. As before the Commission, they contended in assignments (a) to (c) that there was no dispute in active progress within the meaning of the word “dispute” in Section 5(d), 'and also, in assignment (d), that, assuming its existence, it was not “at” the premises of last employment as follows:
“d. The decision is in error in that there is neither finding nor conclusion that petitioners’ unemployment during the 1940 salmon canning season was ‘due’ to a labor dispute in active progress AT the premises where last employed (which means at the conclusion of the 1939 season), and not ‘due’ to other causes.” (Emphasis supplied.)
The hearing before the district court was upon the record before the referee stating the position of the insured men. The district court affirmed the Commission’s decision and, in its finding 10, found against appellants’ claim of error “d” supra, and that a labor dispute was in active progress at the Alaska canneries. This although throughout the proceedings in the three tribunals it was admitted that whatever dispute existed began and was carried on in either California or in Washington.
This appeal followed, appellants assigning here as error, inter alia, that finding 10 “that this labor dispute was in active progress at the cannery at which they were respectively last employed,” is not supported by the evidence.
Appellants’ brief here, at page 3 thereof, states the question as to the premises of the existence of the dispute as it was in issue before the referee, the Commission, and the district court
“Were appellants unemployed during the 1940 Alaska salmon season because of a labor dispute in active progress at the establishment at which they were last employed within the meaning of Section 5(d) of the Act?”
Appellants’ brief later answers the question, stating in its caption of section E of its argument
“E. There was no labor dispute in active progress at the ‘factory, establishment, or other premises’ where appellants were last employed.”
The argument is summarized as the last times appellants worked at any of the employers’ plants was in 1939. When the 1939 season ended appellants ceased to be employees of the employers. Work never started at any of the employers’ Alaska plants during 1940. It follows that there was no labor dispute at the place of last employment.
The Commission’s brief recognizes the challenge of the question of appellants’ brief by repeating it in full. Instead of construing the words of Section 5(d), the Commission apparently again assumes it to be sufficient that it is conceded that the dispute was “with reference to” or involved the “operation of” the plants referred to in the stipulation for the approaching season. Its brief says of the appellants’ challenging question as to the place of the dispute, “We think that statement not entirely accurate, that it is a little too broad,” and restates the question, omitting all reference to the premises “at” which the dispute was in active progress, as follows:
“We think the questions to be decided in this Court are: Is there substantial evidence to support the findings of fact of the Commission and' the District Court, and, can it be said as a matter of law that the Commission and the District Court were in error in finding that appellants’ unemployment was due to a labor dispute which was in active progress during the weeks for which appellants claim compensation ?”
At the hearing here counsel for appellants, in obvious distress at a sudden illness of the preceding night in his family, relied upon his brief. The court itself then pressed on counsel for the appellees the question so raised by appellants’ brief concerning the construction of the words of Section 5(d). Appellees’ counsel answered that they did not consider this question before us — and this with appellants’ assignment of error here as to finding 10 of the district court and the issue raised by the question and argument in appellants’ brief, which question is repeated in its exact words in the Commission’s brief.
To summarize, the attempt of the Commission here to treat the contention that the question of the “establishment at which they were last employed” as not under consideration throughout the litigation is in direct contradiction (1) to appellants’ opening contention “Third” and to the stipulation of counsel in the record before the referee upon which the entire proceeding is based; (2) to the Commission’s statement, supra, that this was the contention upon which the Canners appealed to the Commission; (3) to the ground “d” of appellants’ petition to the district court for review, supra; (4) to appellants’ claim of error here in finding 10 of the district court, supra, holding there was such a dispute but at the Alaska canning plants, and (5) to the brief of appellants here. It seems clear to us that the record in this regard cannot be misunderstood by anyone as showing that the Commission, either here or in the three prior hearings in the proceeding, has not had its day in court on the question of the construction of Section 5(d) of the Alaska Act.
We hold that appellees have not maintained their burden of proof that during the first eight weeks of the 1940 employment period there was a labor dispute at the premises of the appellants’ last employment. We further hold that regardless of the burden of proof, the evidence establishes affirmatively that no such dispute existed at the stipulated Alaska canning plants during appellants’ admitted unemployment. ,
Because of the lack of appeal of the Karluk and Chignik employees from the referee’s decision, a deduction must be made from the award for 12 days at Karluk and the 6 days at Chignik. There should be no deduction, because of the dispute, ■ from the claims of the Bristol Bay employees.
Section 6(i) of the Act, providing for this “judicial proceeding” in the district court and appeal to this court, requires that
“Upon the final determination of such judicial proceeding the Commission shall enter an order in accordance with such determination.” (Emphasis supplied.)
It is our determination that the evidence shows appellants are entitled to their compensation for their unemployment in the fishing season of 1940 above considered, without deduction by reason of the labor dispute here in question, other than that for the Karluk and Chignik employees, held to be deducted by the referee as above recited; and that the Commission shall enter an order in accordance with such determination.
The judgment of the district court is reversed and the district court instructed to enter a judgment in accord with this opinion.
Reversed.
Alaska Stats., Ch. 4, Extraordinary Session Laws of 1937, as amended by Ob. 1 and 51, S.L.1939 — hereafter designated Act.
“15. On days of arrival or departure the hour twelve (12) midnight shall be considered the basis for the computation of the payroll. On days of arrival or departure one full day shall be paid irrespective of exact time of arrival or departure with regards to the hour of 12 midnight. Wages shall commence on the day of departure and terminate on the day of return to the port of dispatching, except as herein otherwise provided.
“In the event that any employee does not elect to return to original port of embarkation upon a suitable vessel by and at the direction of the Company at the termination of the season, his employment shall be considered terminated and he shall be paid all wages due him within forty-eight (48) hours, subject to all provisions of this agreement, in which event the Company will be relieved of all obligations to the employee for return transportation.”
“10. That the unemployment of claimants in the 1940 fishing and canning season, and the whole thereof, was due to a labor dispute existing between the employers, the respondent companies herein, and the claimants, and that this labor dispute was in active progress at the cannery at which they were respectwely last employed, and there was an active labor dispute between the claimants and the respondent employers during the entire canning season as defined by the Commission at , the respective canning plants at Chignik, Karluk and various points in Bristol Bay, Alaska.” (Emphasis supplied.)
Question: What is the nature of the second listed appellant whose detailed code is not identical to the code for the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_casetyp1_1-3-1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
GOVERNMENT OF the CANAL ZONE, Plaintiff-Appellee, v. Samuel Gene PEACH, Defendant-Appellant.
No. 78-5414.
United States Court of Appeals, Fifth Circuit.
Sept. 10, 1979.
Arthur J. O’Donnell, Chicago, 111., Daniel D. Douglas, Balboa, Canal Zone, for plaintiff-appellee.
Frank J. Violanti, U. S. Atty., William H. Beatty, Asst. U. S. Atty., Balboa, Canal Zone, Mervyn Hamburg, U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
Before SIMPSON, TJOFLAT and HILL, Circuit Judges.
TJOFLAT, Circuit Judge:
Samuel Gene Peach appeals his conviction for the first degree murder of Ruby Gutierrez. He contends that a confession introduced at trial was obtained from him in violation of his right to counsel under the sixth amendment and rule 44 of the Federal Rules of Criminal Procedure. Finding no reversible error in the proceedings below, we affirm the conviction.
I
During the early evening hours of December 29, 1977, Bertha Rubiella (Ruby) Gutierrez, a 21-year-old Panamanian maid, was brutally beaten and stabbed to death in the Canal Zone residence of her employer, Gary Anderson. The Andersons were all away from home at the time. Anderson discovered the body when he returned to his house at 8:45 p. m. He called the Canal Zone police; the police pathologist determined the time of death to be approximately 7:00 p. m.
The police soon commenced interviewing friends and acquaintances of the Anderson family and of the deceased in an effort to develop leads. One of the more than 40 persons interviewed was the appellant, Peach, a 19-year-old soldier stationed at Fort Kobbe, Canal Zone, who had dated Anderson’s 14-year-old daughter, Carrie. Peach was first interviewed on January 5, 1978, when he responded to a request to come to the Balboa police station for questioning. Detectives Don Ruby and Mel Attkinson conducted the interview, during which Peach affirmed that he knew Carrie Anderson and admitted having sexual intercourse with her on one occasion six months earlier. When asked to account for his activities on December 29, Peach said that he had gone to the Anderson residence at about 6:30 p. m. on that day, but, upon being told by the maid that Carrie was not there, he had left.
Up to this point, Peach had not been given the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but he had been told that he did not have to answer any questions, and, by his own admission, felt free to leave the stationhouse at any time. At the close of this first phase of the interview, he was read his rights, and, since he indicated that he did not totally understand them, they were explained to him in detail. He then said that he understood them; he gave no indication that he wished to consult an attorney.
The questioning resumed briefly prior to a break for lunch and continued afterwards for a short time until Peach asked to see a chaplain. One of the detectives drove him back to his barracks, and Peach agreed to be available for questioning the next day. After his return to the barracks, Peach went to see a friend, PFC Donald Jeeninga. Peach confessed to Jeeninga that he had raped the maid who worked for the parents of his girlfriend and had then killed her because she would recognize him if he ever returned to the Anderson home. Peach gave Jeeninga some clothing and asked him to dispose of it.
Peach next went to see a very close friend, Sgt. Robert Perry, at his home and asked to talk with him privately. Peach again confessed to the murder. Perry urged Peach to turn himself in and said that if Peach did not do so by the following Monday, January 9, Perry would report their conversation. Peach said, “Okay.” Record, vol. 5, at 132.
The next day, the detectives came to the barracks and asked Peach if he would return to the stationhouse for further questioning. Peach declined but said he would answer questions there on the base. He was asked if he recalled his rights as they had been explained the day before, and he said he did. He was questioned about the clothes he was wearing on December 29. He consented to a search of his room, during which the police seized some of his clothing. While at the barracks, the detectives met an Army Criminal Investigation Command Agent, Anthony Japuntich. The police asked Japuntich’s aid in obtaining photographs and fingerprints of Peach since they were afraid he might flee. Japuntich cleared this request with Peach’s commanding officer, and the group went to the agent’s headquarters at Albrook Air Station where Peach was photographed and fingerprinted. While alone with Japuntich in the latter’s office, Peach asked if he was entitled to an army lawyer. Japuntich called the army legal office and was told that if Peach were arrested by the civilian authorities, the army probably would not represent him, but Japuntich was given the names of some military lawyers to contact directly. Japuntich attempted, unsuccessfully, to call them, after which he gave the list of names and phone numbers to Peach.
Peach and Japuntich then left the office and walked to the waiting room where they rejoined the detectives. Japuntich could not recall whether he told the police officers about his conversation with Peach, but he testified that Peach had never asked for a lawyer and Japuntich did not tell the detectives that he had. The detectives had been in touch with their superior in the interim, and, soon after Peach walked into the room, they arrested him for the statutory rape of Carrie Anderson. They advised Peach of his rights, then took him to the Canal Zone jail where he was booked, again given full Miranda warnings, and placed in a cell. A phone was available for his use, but Peach made no attempt to contact either a military or civilian lawyer.
The next day, Saturday, January 7, Peach was brought before the Balboa magistrate for his initial appearance pursuant to Fed. R.Crim.P. 5. There is no transcript of this hearing, but the testimony at the suppression hearing and the magistrate’s brief report of proceedings indicate the following sequence of events. Peach appeared in person, unrepresented by counsel. The statutory rape complaint was read to him, and Peach was informed of his rights, including the right to retain counsel of his choice or to have an attorney appointed for him if he could not afford one. Peach stated he understood the charge against him and his rights as they had been explained. There followed a colloquy between Peach and the magistrate regarding Peach’s financial ability to employ an attorney. The magistrate was evidently of the opinion that since Peach was employed by the Army he was not indigent and did not need appointed counsel. Peach said nothing to counteract this impression, and one witness testified that Peach indicated he would take care of obtaining counsel. Acting on instructions from the magistrate, Detective Attkinson obtained a list of Canal Zone attorneys for Peach to contact, and this list was given to Peach at the hearing. At no time did Peach request or indicate to the magistrate that he wanted an attorney appointed.
Peach was returned to his cell and the officer on duty was instructed that Peach could call his family, friends, or an attorney, but Peach made no attempt to contact anyone. About two hours after the hearing, Detective Attkinson came to Peach’s cell and asked him if he had retained an attorney. Peach said no. He was then escorted to an interrogation room where he agreed to answer questions after hearing his rights read to him again. After about 40 minutes of questioning about the statutory rape and his whereabouts on the day of the murder, Peach said he would tell the police what they wanted to know but first he wanted to talk to his friend Sgt. Perry.
Perry came to the police station and talked with Peach alone for about fifteen minutes. During this discussion Peach said he was ready to come clean with the police. The two men may also have discussed the possibility of obtaining a lawyer for Peach, but the court found that this discussion, if it occurred, was never communicated to the police. Two detectives then reentered the room, and in Perry’s presence again read the Miranda warnings. Peach then gave a disjointed oral statement of his activities on December 29, 1977, including the killing of Ruby Gutierrez. Following this statement, he agreed to go with the police to the Anderson home to reenact the crime. He also took the police to the place where he had thrown the murder weapon into the canal. Perry was not permitted to come along on this trip. After returning to the police station, Peach dictated a confession to a police stenographer, read the typed statement twice, and signed it. The confession states in the first paragraph, “I understand my rights. I do not want a lawyer present at this time.” Government Exh. 18.
Peach had his initial appearance before the magistrate on the murder charge the next day, January 8. He did not request an attorney and none was appointed for him. At the continuation of this hearing on January 12, 1978, the public defender was appointed to represent Peach at the request of the United States Attorney when Peach said he was unable to retain his own counsel because he was paying off outstanding bills.
An information was filed against Peach on February 3, 1978. Following a jury trial, he was found guilty and sentenced to life imprisonment. His sole claim on this appeal is that the district court erred in failing to suppress his confession.
II
Peach does not contend that he was denied any rights due him under Miranda v. Arizona. Rather, he argues that he had a sixth amendment right to counsel under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and that he never waived that right in the manner required by Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). We agree that Peach had a right to the assistance of counsel beginning at least with his first appearance before the magistrate on January 7, but we think that the district court’s finding that he waived that right must be upheld.
There can be no doubt that Peach understood his right to retain counsel or have counsel appointed for him. He had an eleventh grade education, and he was given Miranda warnings seven times before he confessed to the police. On the one occasion that he said he did not completely understand his rights they were explained to him in detail. He never once indicated to the authorities a desire to exercise his right to counsel. The court below and the parties to this appeal agree that the January 7 hearing is critical in this regard. At that time he was advised of his right to have an attorney for the fifth time, and the question whether he could afford to retain one was raised. Peach did not assert that he was indigent and did not request that counsel be appointed to represent him. If he intended at that time to retain his own counsel, the police did everything they can reasonably be expected to have done to facilitate that end. Peach was given a list of attorneys to contact and given access to a phone, but he made no effort to call any of them.
The written statement that was introduced at trial plainly states, “I do not want a lawyer present at this time.” The testimony indicates that these were not Peach’s words; they are part of a standard government introduction to confessions. Nevertheless, Peach carefully read the statement twice before signing it and testified that he understood at the time that he was giving up his right to have an attorney present. Record, vol. 3, at 101. This is not a case like Brewer v. Williams where the police were aware that the defendant was represented by counsel and deliberately set out to get a confession before he could consult his attorney. Peach’s actions and words, as disclosed by this record, fully support the district court’s finding of waiver.
Ill
The second argument on this appeal is that the federal magistrate violated Fed. R.Crim.P. 44 when he failed to appoint counsel for Peach at the January 7 hearing. Rule 44(a) states: “Every defendant who is unable to obtain counsel shall be entitled to have counsel assigned to represent him at every stage of the proceedings from his initial appearance before the federal magistrate or the court through appeal, unless he waives such appointment.” The Advisory Committee notes to the rule state that it is “intended to require the assignment of counsel as promptly as possible after it appears that the defendant is unable to obtain counsel.” 18 U.S.C. Federal Rules of Criminal Procedure App. at 1471 (1976). As we have stated, at the hearing Peach was advised for the fifth time of his right to retain counsel or to have an attorney appointed to represent him if he could not afford to obtain one himself. The magistrate conducted an inquiry regarding whether Peach could afford a lawyer. The evidence clearly preponderates in favor of the view that Peach failed to give any indication to the magistrate either that he could not afford an attorney or that he wanted one appointed. Under these circumstances, we do not think the rule required that anything more be done. At no time during this hearing did it “appear[] that the defendant [was] unable to obtain counsel.” Id. What we said in De La Fe v. United States, 413 F.2d 543, 544 (5th Cir. 1969), accurately describes our view of the rule: “The burden of furnishing an attorney only attaches upon representation of an individual that he is indigent and that he wishes an attorney.” Cf. United States v. Williams, 544 F.2d 1215, 1218 — 19 (4th Cir. 1976) (waiver of statutory right to two counsel in capital case presumed absent request or clear necessity for additional counsel).
Peach cites Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962), for the proposition that the right to be furnished counsel does not depend on a request. In Carnley, the defendant was never advised of his right to counsel, and the Supreme Court refused to imply waiver from a silent record. The record here is not silent. Peach was repeatedly advised of his rights, and we have already held that he waived his sixth amendment right to counsel before confessing. Under rule 44, once a defendant is advised of his right to have counsel appointed and an inquiry is made as to his ability to retain counsel, it is incumbent on the defendant to give some indication that he wants an attorney appointed for him. The authorities are not required to read his mind or discern that, although he says he will obtain an attorney, he really cannot afford one and should have appointed counsel. This is not a case where a defendant was required to plead or go to trial without the assistance of counsel. As soon as Peach indicated he could not afford an attorney, the magistrate appointed the public defender. The conviction is
AFFIRMED.
. We do not suggest that indigency is the sole ground for appointing counsel. “If a defendant is able to compensate counsel but still cannot obtain counsel, he is entitled to the assignment of counsel even though not to free counsel.”' Advisory Comm. Notes to Rule 44(a), supra. Peach gave no indication that he was unable to obtain counsel to represent him.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer: |
songer_respond1_7_5 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
ORDER OF UNITED COMMERCIAL TRAVELERS OF AMERICA v. KING.
No. 5559.
Circuit Court of Appeals, Fourth Circuit.
April 9, 1947.
F. Dean Rainey and C. F. Haynsworth, Jr., both of Greenville, S. C. (Haynsworth & Haynsworth and Rainey and Fant, all of Greenville, S. C., on the brief), for appellant.
Miller C. Foster and Jesse W. Boyd, both of Spartanburg, S. C. (Johnson, Johnson & Foster, of Spartanburg, S. G, on the brief), for appellee.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
DOBIE, Circuit Judge.
The scope of an aviation exclusion clause in a contract of life insurance is the question raised by this appeal. The insured, Lieutenant Drew L. King, a resident of South Carolina, was a flight observer serving with the Civil Air Patrol. He met his death on February 9, 1943, and this suit was instituted by the beneficiary of the policy, the appellee here, against the insurance company, appellant, for the full amount of the policy. The lower court awarded judgment to the plaintiff on stipulated facts. The insurance company has duly appealed.
At eight o’clock in the morning of the day mentioned the insured and a pilot left their base for a routine coastal patrol flight off the shores of North Carolina. The patrol was made in a land based plane along with another plane of like make. About an hour and one-half after take-off, the plane in which the insured was riding developed serious engine trouble. This emergency forced the pilot to bring the plane down at sea some thirty miles from the coast. Apparently the descent was sufficiently controlled to permit putting the plane on the water in a normal landing position. The men managed to inflate their life jackets and free themselves from the plane before it sank a few minutes later.
There is no question that both men were alive at this time as they were seen to signal the other plane. 'A subsequent examination confirmed the belief that the men were not injured by the impact of the plane striking the water. Meanwhile the occupants of the second plane, after dropping an emergency kit, circled the distressed men and tried to establish radio contact with the base. At Noon, which was two and one-half hours later, no help had arrived and the second plane, because of a shortage of gasoline, was forced to return to the base. The men in the- water were alive at that time. When a Navy boat finally arrived at two in the afternoon, both men were dead.
A Naval physician (not an eyewitness to the events) issued a statement of death after examining the bodies, which contained the diagnosis: “Drowning as result of exposure in the water after failure of airplane motor.”
The contract of insurance, which the insured had made in South Carolina with the appellant insurance company, contained the following clause: “This order shall not be liable to any person for any benefit for death resulting from participation, as a passenger or otherwise, in aviation or aeronautics, (except as a fare paying passenger in a licensed aircraft operated on a regular schedule).”
Although South Carolina law would be controlling, the highest court in that State has never considered the precise question here involved. Accordingly the lower court, in an effort to apply South Carolina law, resorted to some general maxims of insurance law that have been invoked on occasions by South Carolina courts. By stressing particularly the insured’s uninjured physical dis-engagement from the airplane, and coupling this with the rule of construction that ambiguous or doubtful clauses must be resolved against an insurer, the District Court reached the conclusion that the exclusion clause of the policy was not applicable. We are unable to agree with that conclusion either on reason or authority.
Aside from the many authorities on this question (to which we will advert later in this opinion), we think the exclusion clarise clearly comprehends the very situation that here developed. Any other conclusion must ignore the plain meaning and presence of the word “resulting.” To give that word the effect that it must have in everyday speech (and as understood by laymen as well as lawyers) obviates the necessity for technical and artificial rules of construction. In our view of the case it is as undesirable as it is unnecessary to borrow from the law of torts the nuances and subtleties which attend such a phrase as “proximate cause” and to attempt an application of these nuances and subtleties to the facts of the instant case. There is little, if anything, to construe. In undertaking an aerial flight over the ocean in a land-based plane, man must reckon with the perils of the sea which are as imminent and real as the unrelenting force of gravity. Just as flight over the land brings forth the danger of violent collision with the earth, we have the dangers of the sea in over-water flight. That men may remain alive for varying periods of time before succumbing does not change the picture. We think it a rather violent fiction to say that death, under such circumstances, comes from accidental drowning. Common knowledge and experience fairly shout of the dangers of shock, exposure and drowning when a flight is taken over water in the winter time in a land based plane.
Out of the abundance of wisdom that comes with hind-sight it might have been better to have also inserted the words “directly or indirectly” in the exclusion clause. Actually such words were not vital here and would have added little to the force of the word “resulting.”
We are asked by counsel for appellee to notice the harrowing experiences and remarkable rescue of Captain Eddie Rickenbacker. The contention is made that when a man leaves a plane under such conditions he is in a position of “potential safety,” i. e., he can be saved. To pursue this somewhat ingenious argument is to invert the real question of the case. It is true that rescue, routine or fortuitous, may remove a man from peril. But it does not follow that the failure of rescue brings the peril that causes death. When the insured was in the cold waters of the Atlantic Ocean in February, he was not in a position of “potential safety.” He was in imminent peril of death, unless rescue came and also came quickly. We are unable to see how, under these circumstances, death resulted in any way other than from participation in aviation.
There is more than ample authority to support this view. In Neel v. Mutual Life Ins. Co. of N.Y., 2 Cir., 131 F.2d 159, the insured, after landing his plane on the ocean, was drowned while trying to reach shore. Under a similar aviation exclusion clause, the insurer was held not liable. Judge Augustus Hand, speaking for the Court, said (131 F.2d at page 160) : “The policy provides that Double Indemnity shall not be payable if death resulted ‘from participation in aeronautics’ and it seems quite contrary to the natural meaning of the proviso to say that Stubbs did not meet his death from ‘participation in aeronautics’ merely because he may hot have been killed by impact upon the water. If he landed in the open sea, even though without immediate injury, drowning was an almost inevitable consequence. To say that his death did not result ‘from participation in aeronautics’ would exclude from the proviso of the policy the most ordinary risks involved and limit the effect of the clause in an unexpected and unreasonable way. As Judge Cardoza said in Bird v. St. Paul F. & M. Ins. Co., 224 N.Y. 47, 120 N.E. 86, 87, 13 A.L.R. 875: ‘General definitions of a proximate cause give little aid. Our guide is the reasonable expectation and purpose of the ordinary business man when making an ordinary business contract. It is his intention, expressed or fairly to be inferred, that counts. * * * The same cause producing the same effect may be proximate or remote as the contract of the parties seems to place it in light or shadow. That cause is to be held predominant which they would think of as predominant. A common-sense appraisement of everyday forms, of speech and modes of thought must tell us when to stop. It is an act of “judgment as upon a matter of fact.” ’ ”
This was followed in Green v. Mutual Benefit Life Ins. Co., 1 Cir., 144 F.2d 55, in which the insured, a Naval aviator, was forced to land his plane on the water and was drowned while attempting to reach his life raft. Other instructive cases are Pittman v. Lamar Life Insurance Co., 5 Cir., 17 F.2d 370; Wendorff v. Missouri State Life Ins. Co., 318 Mo. 363, 1 S.W.2d 99, 57 A.L.R. 615; and Blonski v. Banker’s Life Co., 209 Wis. 5, 243 N.W. 410. Compare: Commercial Union Assurance Co. v. Pacific Union Club, 9 Cir., 169 F. 776; Pacific Union Club v. Commercial Union Assurance Co., 12 Cal.App. 503, 509, 107 P. 728; Tierney v. Occidental Life Insurance Co. of California, 89 Cal.App. 779, 265 P. 400.
Counsel for the beneficiary virtually conceded in oral argument (as indeed they must) that the Neel and Green cases, supra, are indistinguishable in principle from this case. They rely, however, on Bull v. Sun Life Assurance Co. of Canada, 7 Cir., 141 F.2d 456, certiorari denied, 323 U.S. 723, 65 S.Ct. 55, 89 L.Ed. 581. In that case the insured went down a few hundred yards from shore, after his plane was damaged by anti-aircraft fire. After the emergency landing, the insured was seen standing on the fuselage, attempting to launch a rubber boat. Other members of the crew, who had already escaped in a rubber raft dived into the water when a Japanese plane swept low to strafe the crippled American plane. An explosion was heard, the crippled plane burst into flames, and the insured was never seen again. In holding the insurer liable, the Court, by a two to one decision, emphasized the war risk of enemy fire and noted that the jury could have found this intervening force caused death. We agree with the observation in the Green case which viewed the intervening force in the Bull case as a distinguishing feature. 144 F.2d 55 at page 58.
We come, then,' to the last argument of the plaintiff (appellee) which is that, irrespective of the foregoing, the South Carolina law would permit recovery in a case of this character. This phase of the argument rests primarily on the dictum in Bolt v. Life & Casualty Ins. Co. of Tennessee, 156 S.C. 117, 152 S.E. 766, 767: “* * * our court has made it the almost universal rule to construe any clause of an insurance policy against the insurer, when there existed the least doubt as to the meaning of the language employed.”
We agree that this is an exceedingly broad statement. Nevertheless, in our view of the instant case, the meaning of the language employed in the policy is clear on its face. In any event, we believe that the highest court in South Carolina would not make specific application of such a generalized dictum, which, if applied to the facts here, would fly in the face of reason and the very considerable authority that has expressed the view we now follow. It would certainly not conform with accepted theories of proximate cause. See Horne v. Atlantic Coast Line R. Co., 177 S.C. 461, 181 S.E. 642.
Counsel for appellee, while not contending that we are bound by it, have cited a decision rendered in the Court of Common Pleas for the County of Spartanburg which allowed the same plaintiff to recover on a similar policy with another insurance company on the same statement of facts now before us. That opinion, not binding on other South Carolina courts, is not binding' on us and we cannot treat it as a final expression of South Carolina law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. While we entertain nothing but respect for that court, we must reject its view of this case for the reasons previously expressed. That opinion, it might be added, which was rendered July 29, 1946, relied on the District Court’s ruling in the instant case now before us.
The case of Goethe v. New York Life Ins. Co., 183 S.C. 199, 190 S.E. 451, is urged as an instance in which terms in insurance policies should be construed according to the ordinary and usual understanding of its signification by “common people.” We are unable to see how this strengthens the plaintiff’s case, for our conclusion is reached by the express adoption of the rule urged by plaintiff.
We have carefully considered other cases cited by the plaintiff: McGee v. Globe Indemnity Co., 173 S.C. 380, 175 S.E. 849; Young v. Life & Casualty Ins. Co. of Tennessee, 204 S.C. 386, 29 S.E.2d 482; Myers v. Ocean Mftg. Co., 4 Cir., 99 F.2d 485; Manufacturers Accident Indemnity Co. v. Dorgan, 6 Cir., 58 F. 945, 22 L.R.A. 620, and find them inapplicable and not controlling.
The judgment of the lower court is reversed.
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_circuit | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
BOWLES, Adm’r, Office of Price Administration, v. FRANCESCHINI et al.
No. 3997.
Circuit Court of Appeals, First Circuit.
Nov. 10, 1944.
Karl Lachmann, Atty., Office of Price Administration, Thomas I. Emerson, Deputy Adm’r for Enforcement, and John M, Durbin, Territorial Enforcement Atty., all of Washington, D. C. (Fleming James, Jr., Director, Litigation Division, and David London, Chief, Appellate Branch, both of Washington, D. C., of counsel), for appellant.
Frank Torres, of Ponce, Puerto Rico, for appellees.
Before MAHONEY and WOODBURY, Circuit Judges, and PETERS, District Judge.
MAHONEY, Circuit Judge.
The Administrator of the Office of Price Administration brought this action in the District Court to enjoin the defendants from violating the price regulations promulgated under the Emergency Price Control Act of 1942, 52 Stat. 23, 50 U.S.C.A. Appendix §§ 901-946, hereinafter called the Act, and to recover damages in the sum of $1,461.93, being three times the amount by which the alleged sales prices exceeded those permitted by the regulations.
The defendants are Enrique Franceschini and Octavio Busquet, doing business as partners under the name of “Juan E. Torres & Co., Suers., S. en C.” They are engaged in the business of selling foodstuffs at wholesale in the City of Ponce, Puerto Rico. By stipulation, the defendants admitted that they had sold and delivered to retailers in the course of business commodities at prices which exceeded those set by the price regulations and consented to the entry of an injunction. The Administrator admitted that the transactions in question were effected by defendants in good faith. The District Court granted the injunction but dismissed the complaint as to the claim for damages. From the order of dismissal the Administrator has appealed.
Because the Administrator claimed damages in the sum of $1,461.93 defendants challenged the jurisdiction of the District Court on the ground that the amount in controversy does not exceed $3000. 28 U. S.C.A. § 41(1). It is sufficient to say that this limitation on the jurisdiction of District Courts is not applicable to this case arising under § 205(e) of the Act because in § 205(c) it is specifically set forth that the District Courts have jurisdiction of criminal proceedings for violations of § 4 of the Act, and concurrently with State and Territorial courts, of all other pro» ceedings under § 205. The lower court was correct in taking jurisdiction and this court has jurisdiction of the appeal under § 128 of the Judicial Code, 28 U.S.C.A. § 225.
The defendants also attack the legal sufficiency of the amended complaint because it nowhere alleges the reason why the Administrator and not the buyer brings this action. They admit, however, that the sales complained of were made to retailers in the course of trade or business. Such purchasers were not buying “for use or consumption” and they are not entitled to bring suit for overcharges under § 205(e). That section provides that the -Administrator may bring the action on behalf of the United States where the buyer is not entitled to bring such suit or action.
We are asked to determine whether the Administrator may recover damages under the provisions of § 205(e) for violations of the Maximum Price Regulations when such violations are committed in good faith. The pertinent provisions of that section are as follows:
“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or' maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is greater, plus reasonable attorney’s fees and costs as determined by the court. * * * If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. * * *”
The District Court dismissed the complaint as to the claim for damages because the defendants had . acted in good faith in selling commodities at over ceiling prices. We think the court was in error. It cited the recent case of Hecht Co. v. Bowles, 321 U.S. 321, 325, 64 S.Ct. 587, 591. There the question before the court was whether the Administrator under § 205(a) was entitled as of right to an injunction restraining violations or whether the court had some discretion to grant or withhold such relief. The Supreme Court states that it seemed apparent from the language of the statute that there was room for the exercise of discretion on the part of the District Court “For the requirement is that a ‘permanent or temporary injunction, restraining order, or other order’ be granted. Though the Administrator asks for an injunction, some ‘other order’ might be more appropriate, or at least so appear to the court.” It stated that it was dealing with the requirements of equity practice and held: “Hence we resolve the ambiguities of § 205(a) in favor of that interpretation which affords a full opportunity for equity courts to treat enforcement proceedings under this emergency legislation in accordance with their traditional practices, as conditioned by the necessities of the public interest which Congress has sought to protect.”
The case before us is an action for damages under § 205(e) and not an action in the nature of a suit in equity under § 205 (a). The position of the lower court appears to be that the Act confers upon the trial court discretion to grant damages or not to grant damages, as the court might think reasonable, where the seller “unwittingly” violated the price ceilings. We find no language in § 205 (e) which supports this view. The statute unequivocally provides that if a seller violates the maximum price ceilings he may be subject to an action either for $50 or treble damages, whichever is greater. The court in Bowles v. American Stores, 1943, 78 U.S.App.D.C. 238, 139 F.2d 377, 379, certiorari denied 322 U.S. 730, 64 S.Ct. 947, referred to the “unqualified language” of § 205(e) and said that the argument for discretion in awarding damages in an amount less than $50 is “further refuted by the fact that the same sentence of the Act, while it says nothing about reasonableness or discretion in regard to the award of $50, provides for the award of ‘reasonable attorney’s fees and costs as determined by the court.’ ”
In the absence of any provision in the statute for the exercise of discretion upon the part .of the trial court, it would seem that good faith, unless expressly provided for, cannot serve as a defense, and that if a seller violates the maximum price regulations, his liability is absolute. Bowles v. American Stores, supra; Brown v. Cummins Distilleries Corp., D.C., 53 F.Supp. 659. It may appear to be a severe hardship cast upon the seller who acts in good faith, but the protection of the public as a whole in its struggle against inflation seems to have merited the strictest sanctions in the eyes of Congress.
From the inclusion of the word “willfully” in § 205(b), which provides for criminal penalties, and its omission in § 205(e), we can reasonably infer that Congress intended to omit the word “willfully” from the latter section and that, therefore, good faith is immaterial. That Congress could make use of “good faith” as a defense when it wanted to appears in § 205 (d) which provides for no liability “in respect of anything done or omitted to be done in good faith pursuant to * * * any regulation, order, price schedule * * The purpose of this section is to protect those who act “pursuant to” the provisions of, or regulations under the Act as distinguished from those who “violate” it. It does not appear that the sales made in good faith in the instant case were made “pursuant to” any provision or regulation under the Act. Section 205(d) does not apply in this situation. When the bill was before the Senate, the Committee on Banking and Currency reported that “of course Section 205(d) does not confer any immunity upon any person who violates any such provision, regulation, order or requirement”. (Sen.Rep. 931, 77th Cong., 2nd Sess.) In Bowles v. Rock, D.C., 55 F.Supp. 865, 868, the court said: “For civil liability the violative act is adequate; its willfulness is not required and need not be alleged. The language of Title 50 U.S. C.A.Appendix, § 925(d) is simply inapplicable to suits brought, as this one is, under Title 50 U.S.C.A.Appendix, § 925(e), and merely absolves persons from possible liability for damages or penalties arising out of their compliance in good faith with the Act and its implementing regulations. It has no reference to liabilities created by the Act itself for its own violation.” Zwang v. A. & P. Food Stores, Inc., 181 Misc. 375, 46 N.Y.S.2d 747; Maitland v. Krieger, Ct.Com.Pl. N.D., O.P.A. Service P. 622:-340.
While this action was pending, § 205(e) was amended by §§ 108(b) and 108(c) of the Stabilization Extension Act of 1944. Under § 108(b) good faith is made a factor in the mitigation of damages. “If the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation” his damage liability is reduced to “the amount of the overcharge or overcharges or $25; whichever is greater.” It seems clear from the unqualified language of the Act that good faith alone is not a sufficient defense under § 108(b). Not only must the defendant show that the violations were not “willful” he must also show that he took “practicable precautions” to avoid violating the regulations before he is entitled to the benefits of the reduction in damages.
Section 108(c) of the Stabilization Act, supra, makes the amendment applicable to pending proceedings. This is not an action by a buyer, nor is it an action which may be instituted by the Administrator only after the buyer has failed to bring suit within thirty days from the occurrence of the violation. Defendants are therefore entitled to claim the benefits of the amendment.
The order of the District Court dismissing the claim for damages is reversed and the case remanded for further proceedings in accordance with this opinion.
“Sec. 205(a). Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged in or is about to engage in such acts or practices a permanent or temporary injunction, restraining order, or other order shall be granted without bond.” 50 U.S.C.A. Appendix § 925.
“Sec. 205 (d). No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or agreement may be modified, rescinded, or determined to be invalid. In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction, of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action.”
Sec. 205(e) as amended by §§ 308(b) and 108(c) of the Stabilization Extension Act of 3.944 (Act of June 80, 1944, Public Laws 883, 78th Cong., 2nd Sess.) 50 U.S.C.A. Appendix §§ 901-946:
“ ‘(e) If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum price,s, the person who buys such commodity for use or consumption other than in the course of trade or business may, within one year from the date of the occurrence of the violation, except as hereinafter provided, bring an action against the seller on account of the overcharge. In such action, tlie seller shall bo liable for reasonable attorney’s fees and costs as determined by the court, plus whichever of the following sums is tho greater: (1) Such amount not more than three times the amount of the overcharge, or tho overcharges, upon which the action is based as the court in its discretion may determine, or (2) an amount not less than $25 nor more than $50, as the court in its discretion may determine: Provided, however, That such amount shall be the amount of the overcharge or overcharges or $25, whichever is greater, if the defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation. * * *
“If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer either fails to institute an action under this subsection within thirty days from the date of the occurrence of the violation or is not entitled for any reason to bring the action, the Administrator may institute such action on behalf of the United States within such one-year period. If such action is instituted by the Administrator, the buyer shall thereafter be barred from bringing an action for the same violation or violations. Any action under this subsection by either the buyer or the Administrator, as the case may be, may be brought in any court of competent jurisdiction. A judgment in an action for damages under this subsection shall be a bar to the recovery under this subsection of any damages in any other action against the same seller on account of sales made to the same purchaser prior to the institution of the action in which such judgment was rendered.’ (c) The amendment made by subsection (b), insofar as it relates to actions by buyers or actions which may be brought by the Administrator only after the buyer has failed to institute an action within thirty days from the occurrence of the violation, shall be applicable only with respect to violations occurring after the date of enactment of this Act. In other cases, such amendment shall be applicable with respect to proceedings pending on the date of enactment of this Act and with respect to proceedings instituted thereafter.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
songer_numappel | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Mitchell T. HELLER and M & M Investment Company, Plaintiffs-Appellees, v. David I. NAMER and National Financial Management, Inc., both d/b/a Financial Management Services, Defendants-Appellants. NATIONAL FINANCIAL MANAGEMENT SERVICES, INC., d/b/a Financial Management Services, Plaintiffs-Appellants, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees. FIDELITY FINANCIAL OF FLORIDA, INC., Plaintiff-Appellant, v. Mitchell T. HELLER, II, Mitchell T. Heller, III, Golden West Corporation, Inn Crowd and Kent White, Defendants-Appellees.
No. 79-2579.
United States Court of Appeals, Fifth Circuit. Unit A
Feb. 1, 1982.
Terry A. Bell, Gretna, La., for defendants-appellants.
Stone, Pigman, Walther, Wittmann & Hutchinson, Stephen H. Kupperman, Campbell C. Hutchinson, New Orleans, La., for defendants-appellees.
Before BROWN and POLITZ, Circuit Judges.
Former Fifth Circuit case, Section 9(1) of Public Law 96-452 — October 14, 1980.
Due to his death on May 15, 1981, Judge Gewin did not participate in this decision. The case is being decided by a quorum. 28 U.S.C. § 46(d).
JOHN R. BROWN, Circuit Judge:
This diversity action arises from the alleged breach of a contract to secure from a savings and loan association a commitment to finance the acquisition of a hotel. As part of the contract, for processing the application fee, the finance company received two checks — the first of which was dishonored by the bank for payment and the second, a replacement for the dishonored check. Subsequently, the first check was re-presented by the payee and paid by the drawee bank. The finance company retained the funds from both checks presumably as partial payment of its fee for securing the loan. The District Court granted summary judgment to the borrower for the amount of both checks and dismissed the counterclaim of the finance company. Finding that no genuine issue of material fact exists since as a matter of law no commitment to finance was issued, we affirm the granting of summary judgment as to the refund of both checks. We find, however, that due to a missing transcript we are unable to review the lower court determination of personal liability and therefore remand for a determination of this limited issue.
The Inn Crowd
In 1977, Mitchell T. Heller (Heller) was seeking a standby loan commitment to help finance the acquisition of a hotel in Odessa, Texas, the Inn of the Golden West. If financing were secured, the hotel was to be acquired by Inn Crowd, a partnership to be formed by Heller, his father, M. T. Heller, II, and Kent White. Frederick Wohlfeld, a loan broker employed by Fidelity Financial of Florida (Fidelity), suggested that Heller contact David Namer to assist in procuring the loan. Namer was president of National Financial Management, Inc. d/b/a Financial Management Services (Financial) in New Orleans. Apparently, Namer and Heller had prior dealings within the previous year, but that transaction aborted prior to securing a loan. Heller came to New Orleans to meet with Namer on September 12, 1977, at which time Heller executed an application form for the loan and delivered to Namer: (1) a check for $25,000, drawn on Heller’s father’s account in the Arizona Bank maintained under the name “M & M Investment Company,” a nonexistent entity, and (2) a transmittal letter. The check was a good faith deposit required to accompany the submission of the application for a loan. At this meeting, the name of the payee of the check was changed from Management Service Consultants to Financial Management Services and the notation on the bottom was also modified. The transmittal letter, signed by Heller’s father, was also corrected by the addition of two paragraphs, one correcting the name of the addressee to indicate that “Name of the corporation is Financial Management Services, and not Management Services Consultants,” and one amending the provisions concerning the handling of the deposit. The application form provided for Financial to receive $104,000 in fees if an acceptable (i.e., substantially in accordance with the application conditions) commitment was “granted and/or offered”, less the application deposit of $25,000. The terms of liquidated damages for failure to accept the commitment and return of the application fee if the commitment was not acceptable were also covered by the form. Fidelity, for its assistance in securing the loan, was also to receive llh% fee “payable l/z% on acceptance of the Namer commitment and 1% on funding.”
On or about September 23, 1977, Heller was informed that his bank had refused to pay the $25,000 check because of the change in the name of the payee and had returned the check to Namer.- After notifying Nam-er of this wrinkle and negotiating with him, Heller agreed to send Namer a replacement check, but this time for $26,000. This $1000 increase in the amount of the second check reflected the change ih the amount of the loan being requested. Although Heller was supposed to deposit 1% of the total loan sought, he had anticipated only a $2.5 million loan in early September and Namer had agreed to accept the smaller deposit. Apparently, the first check was subsequently re-presented for payment and cleared sometime prior to October 14, 1977. Thus through a fortuitous series of events, at least from Mr. Namer’s standpoint, Financial came to hold $51,000 (the amount of the first check and the replacement check), rather than a $25,000 deposit.
Standing By
On October 11, 1977, Heller and Namer spoke by telephone, during which conversation Namer informed Heller that a commitment would be issued and that Heller should be in New Orleans not later than October 21 to accept the commitment and pay, by cashier’s check, the balance of the fee. Heller apparently was not particularly receptive to paying the fees without first receiving a copy of the commitment to review, but Namer agreed to send Heller sample language which arrived in Heller’s Arizona office on October 13, 1977. On or about October 14, Heller discovered that the first check for $25,000, previously dishonored, had been paid by his bank and requested Namer to return the excess funds. On October 19,1977, Heller received a telegram stating that a commitment had been issued and requesting that the remaining $53,000 balance of the fees ($104,000 minus deposits of $26,000 and $25,000), now due, be forwarded by October 21 and informing Heller that the commitment would expire if not accepted prior to October 28, 1977. This telegram was also confirmed by a letter dated October 19,1977. Heller responded to the telegram and letter with another demand for return of the $25,000, informing Namer that the retention of these funds constituted a breach of contract. According to Namer’s brief, he never agreed with Heller to return the excess funds because he believed they were already earned and because of the problems he had had in prior dealings with Heller. Counsel for Namer admitted that his client decided unilaterally to retain the full $51,000. Namer responded on October 21, 1977 to Heller’s letter, clarifying that the contract was with Financial Management Services as a corporate entity, not David Namer, and stating that Financial had “granted and offered” a commitment substantially in accordance with the terms of the application, both verbally and in writing on October 12,1977 and on October 19, 1977.
Namer’s Show and Tell
On October 27, 1977, Heller, his attorney, and a secretary met in Namer’s office with Namer, Wohlfeld of Fidelity, and Namer’s attorney. At that time Heller demanded return of the $25,000 which Namer refused, declaring that a commitment had been issued and that all fees were then due. According to Namer, a commitment was tendered and refused. Namer declined to show Heller the commitment or tell who the purported lender would be until Heller either (1) proved that funds sufficient to pay all fees were present in New Orleans or (2) paid all fees. At this meeting, which carried over to October 28, Heller and his attorney were eventually provided with a copy of the “commitment”, but with the name of the lender and all signatures whited out. Considerable discussion occurred about the substantive aspects of the commitment, including whether any problems existed in complying with state usury laws and whether Heller would be able to obtain an interim lender based on the commitment. Heller and his attorney were not convinced that the commitment was substantially in accordance with the application and were not willing to pay any fees without first knowing the name of the issuer to verify the stability of that institution. Namer asserts that Heller had no intention of complying with his obligations under the application or of accepting the commitment. Concerning the issue of the anonymity of the proposed lender, Namer points to Wohlfeld’s statement that he (Wohlfeld), knowing the name of the lender, believed the commitment was proper, that he could obtain an interim lender on the basis of the commitment, and that he had verified its financial integrity. The meeting of October 28, 1977 ended after Heller demanded a return of his money and Namer refused to return the funds.
Apparently on the same day as the first meeting, October 27, 1977, Heller filed an action in federal court to sequester $25,000 (the amount'of the dishonored first check subsequently re-presented and paid) in the bank account of Financial. A writ of sequestration did issue on November. 1, 1977, but no funds were present in the account sequestered. Heller’s amended complaint demanding a return of $51,000 named Financial as an additional defendant. The defendants counterclaimed for damages in the amount of $250,000 caused by the allegedly wrongful sequestration and for additional damages caused by the plaintiff’s initiating of allegedly improper criminal complaints with state and local governmental authorities. Financial instituted a separate action in federal court against Heller, his father, Golden West Corporation, Inn Crowd and Kent White to obtain the remainder of the fees ($53,000) allegedly due under the application for the loan commitment. Fidelity also filed suit in federal court against both Hellers, Golden West, Inn Crowd, and Kent White, the same defendants as Financial had, seeking to obtain a commission of $39,000 for the procurement of the loan commitment allegedly obtained by Financial. These cases were subsequently consolidated after which the plaintiffs filed a motion for summary judgment on all issues, including the claims by Financial and Fidelity. Following oral argument, on March 14, 1979, the District Court orally assigned reasons for judgment, granting summary judgment (entered April 11, 1979) against Financial and Namer for $51,000 and dismissing all other actions. A motion for reconsideration was denied on June 6, 1979.
In this appeal, Namer, Financial, and Fidelity assert that summary judgment was improper because issues of fact remained. In addition, they assert that the District Court undertook to make credibility choices in the competing affidavits and drew inferences of fact against the party opposing the summary judgment.
Hide and Seek — The Missing Record
[1] During oral argument before this Court it was revealed that the record was incomplete, lacking (1) the transcript of the hearing for summary judgment, during which the District Court judge orally assigned his reasons for granting the motion, and (2) the transcript of the hearing on the motion for reconsideration. At that time we indicated that the parties were to insure that the transcripts were filed promptly. Presently, we have a full transcript of the June 6, 1979 hearing on the motion for reconsideration but only a partial transcript of the March 14,1979 hearing on the motion for summary judgment. The court reporter not only delayed transcribing the March 14 hearing but also managed to lose a portion of his notes. We mention the lost transcript to emphasize our dismay with the court reporter’s carelessness. Fortunately, the hole created in the record can be rewoven but the reconstructing of it requires needless judicial time and effort.
We do not find it necessary either to reverse the decision of the District Court on the basis of the lost transcript or to refer the issue back to the District Court for resolution pursuant to F.R.A.P. 10(e). Although nothing in F.R.Civ.P. 56, governing summary judgment, technically requires a statement of reasons by a trial judge for granting a motion for summary judgment, we have many times emphasized the importance of a detailed discussion by the trial judge. Here the parties were informed by the District Court of the basic reason for which the summary judgment was granted. Although we are missing a portion of the transcript of the March 14 hearing, the judge reiterated sufficient reasons for his having granted the motion at the later hearing on the motion for reconsideration on June 6, the transcript of which we have available at this time. As we will discuss in more detail below, Judge Gordon specifically stated that as a matter of law no commitment had been issued.
No Issue of Fact — No Commitment Issued
[2,3] Summary judgment is proper under F.R.Civ.P. 56 when no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. From the transcript of the hearing on the motion for reconsideration on June 6, 1979; the District Court’s granting of summary judgment was based on the judge’s conclusion that as a matter of law no commitment had been offered. From the pleadings, affidavits, documents, answers to interrogatories, depositions, and arguments and memoranda of counsel, it is undisputed that two checks from Heller, one for $25,000 and one for $26,000, were negotiated at some time prior to October 14, 1979, the date on which Heller discovered that the first check had been re-presented and paid. There also is no dispute that on October 19, 1979, Namer telegraphed Heller that a commitment “has been issued” even though the commitment itself, eventually submitted with the defendants’ motion opposing summary judgment, is dated October 21, 1977. Nor is there any disagreement as to the undisputed fact that at the meeting on October 27, 1977, a copy of the commitment, with the name of the lender and the signatures whited out, was provided to Heller and his attorney. The record contains the loan application which provided that the fee of $104,000 would be earned “should a commitment and/or loan be granted and/or offered substantially in accordance with the conditions” of the application.
We agree with the District Court that there was a total failure to prove that a commitment “substantially in compliance” was offered or granted. Heller was not given the name of the lender and could not verify the stability of the proposed lender, or indeed whether a commitment actually existed. Certainly, the lack of the name of the lender made it impossible to determine if the commitment conformed even minimally with the application requirements. Even viewing the evidence in the light most favorable to the party opposed to the motion for summary judgment, the defendants on the evidence asserted by them wholly failed to prove performance of the contract, that is, the granting of a commitment. This determination was not one of the credibility of witnesses or disputed facts, but rather a determination that as a matter of law the presentation of the commitment with the whited out name of the lender and signatures does not constitute proof of the offering or granting of a commitment.
Defendant Financial attempts to cloud the water by raising several issues of fact which are peripheral to Heller’s establishment of the right to judgment as a matter of law. First, Financial’s primary contention is that at the time the first check for $25,000 was re-presented and paid, a commitment had been “issued.” Whether the commitment was “issued” or merely “forthcoming”, it is undisputed that Heller did not see even a whited out copy of the commitment prior to October 27, almost two weeks after Namer was notified that the second check had been paid. Thus, at the time Financial retained the additional funds, as a matter of law no commitment had been “offered” to Heller.
Namer also argues that there is a factual dispute concerning whether he intended to require Heller to pay the fees or only demonstrate the ability to pay the fees prior to being allowed to review the commitment. We find that this issue is irrelevant to Heller’s right to recover since it is undisputed that there was no requirement that Heller either pay or prove his ability to pay the fees prior to viewing the commitment. Nor did any evidence from any party raise the possibility of an inference of any such precondition.
Since it is clear as a matter of law that Financial could not establish a defense based on performance of the contract, even when viewing the facts in the light most favorable to Financial, we find that the granting of summary judgment for the return of $51,000, the amount of both checks, was proper. No commitment as a matter of law had been offered and therefore no fees had been earned. Financial was not entitled to retain the amount of the deposit since under the application all funds were to be returned if a commitment not substantially in compliance was not accepted. And the retention of the additional funds ($25,000) is equally unsupported since we have determined that no commitment was issued and therefore no fees of $104,000 were due. This also disposes of the separate claim by Namer and Financial for the remainder of the fees. Based on the uncontradicted fact that all Namer showed Heller was a commitment with the name of the lender whited out, there was no performance of the contract. Heller simply does not owe Financial a dime.
What’s In a Name?
While the determination that summary judgment was proper leads us to affirm the judgment as to Financial and Fidelity, we must remand the case for further consideration of the issue of Namer’s personal liability. The District Court held Namer personally liable, as well as Financial, for the judgment. Unfortunately, the end of the court reporter’s transcript of the March 14, 1979 hearing roughly corresponds with the beginning of the argument on personal liability and thus we have no indication of the District Court’s reasoning for finding Namer personally liable. Namer raised a factual dispute whether due to the prior course of dealings between the parties Heller was aware of the corporate status of Financial Management Services. Also Namer asserts that the modification to the September 9, 1977 letter, stating that “Name of the corporation is Financial Management Services, and not Management Services Consultants”, along with the verbal discussion, called Heller’s attention to the corporate status of Financial Management Services. Heller, both in his motion for summary judgment and in his brief, argued that Namer had a duty affirmatively to bring his agency relationship to Heller’s attention and failed to do so. Relying on Louisiana Civil Code, Article 2324, Heller also asserts that the officer, director or shareholder of a corporation who participates, aids or abets the corporation in the commission of a tort or unconscionable act is solidarily liable with the corporation for all loss or damage sustained by a third party. Bluefields S. S. Co. v. Lala Ferreras Cangelosi S. S. Co., 133 La. 424, 63 So. 96 (1913). Heller contends that since the deposit funds were to be held “in tact” and Namer’s personal representations induced' Heller to send the second check, Namer, as the president, aided in wrongful and tortious conversion.
From the abbreviated state of the March 14, 1979 transcript, we cannot determine whether the District Court improperly resolved the factual dispute of Heller’s awareness of corporate status or whether, as a matter of law, the District Court concluded that Namer was personally liable. We therefore remand to the District Court the issue of Namer’s liability personally both as to the $26,000 application fee and the $25,-000 check re-presented and paid. We believe that at the minimum there is no question that Financial was not entitled to retain at any time the $25,000 over and above the amount of the $26,000 required deposit. We do not here decide whether or not Louisiana law views this action, as well as the later refusal to return the deposit of $26,-000, as one unlawful under art. 2324, whether Namer actually assisted in an unlawful act, or whether Namer failed to meet any duty to disclose an agency relationship. We leave for the District Court to determine upon remand Namer’s personal liability, if any, for tortious conversion or breach of fiduciary duties. While we regret the duplication of judicial effort, we cannot, due to the inexplicable and inexcusable loss of the portion of the court reporter’s notes for the March 14, 1979 hearing, here determine whether the District Court acted properly in assessing individual liability.
A Noncommittal Closing
Having disposed of Heller’s claim, we briefly touch on the issues raised in the other lawsuits consolidated with this one. We hold that the District Court correctly granted summary judgment in favor of Heller and against Fidelity. The agreement between Heller and Fidelity provided for the payment of fees “on acceptance of Namer commitment” and “on funding.” It is undisputed that Heller never accepted the commitment since we found that it was not offered for him to accept, and it is clear that the commitment was never funded. Thus, Fidelity is entitled to no fees. Fidelity’s argument that Heller’s actions were solely responsible for the failure to fulfill the terms of the application is clearly incorrect based on our holding that Namer did not perform his part of the bargain.
Since we found that Namer did not perform his contract, it is clear that he has no basis to recover the remainder of the fees. As to the counterclaim in the original suit, that for malicious prosecution, defamation, and abuse of process, we find these claims frivolous. Before an action for malicious prosecution or defamation stemming from allegations in a lawsuit can be asserted, Louisiana law generally requires that the suit must have terminated. Brown & Root, Inc. v. Big Rock Corp., 383 F.2d 662 (5th Cir. 1967); Marionneaux v. King, 331 So.2d 180 (La.App. 1st Cir. 1976); Calvert v. Simon, 311 So.2d 13 (La.App. 2d Cir. 1975). Not only was the lawsuit not terminated, but in view of the District Court’s primary holding and our decision there is no basis in this record for the contention, much less the conclusion, that Heller lacked probable cause for initiating his litigation, especially when Namer re-presented the first check without notice to Heller. Since there was no improper use of process, the abuse of process claim is also without merit.
AFFIRMED IN PART, REVERSED IN PART.
. According to Namer, Heller first approached Financial in October 1976 after contacting Eleven West Mortgage and Investment, Inc., requesting a permanent mortgage loan. Namer contacted Heller directly to inform him that while a permanent loan was not available, a standby loan for acquisition and renovation was feasible. Heller had RLS Real Estate Services Corp. submit a proposal which was forwarded to Financial in November 1976. Subsequently Heller contacted Financial, and according to Namer, set up and cancelled three separate appointments before advising Financial that he was no longer interested in financing.
The prior dealings are also substantiated by a letter of August 16, 1977, from Mitchell T. Heller to Wohlfeld of Fidelity, which states in part:
We’ve got two other potentials working at the moment .. . both qualified institutions that have expressed an interest despite the location, age, etc. Should have a yes or no within the next 14 days.
In the meantime, have Mr. Namer do what we’ve been doing for well over a year .. . cool his heels a little. As you know, we’ll not be rushed or bullied into taking on an extremely expensive standby. While I realize that a bird in the hand ... I want to let nature take over ’til Labor Day.
Then, we’ll either accept the standby or the permanent, whichever is in hand.
. Dear Mr. Namer:
Attached is a check for $25,000 which is to be held as good faith deposit pending issuance of a commitment in connection with the purchase of the Inn of the Golden West in Odessa, Texas.
It is understood these funds wall be held in tact until such time as commitment is issued. It is further our understanding that should the transaction not materialize, for any reason whatsoever, this check will be returned forthwith.
Very truly yours,
M. T. Heller, II
. To the original notation on the check of “Good faith deposit as per ltr of 9/9/77” was added “and application of 9/12/77”.
. Check No. 1258, received along with this letter, is accepted with the following modifications
1. Name of the corporation is Financial Management Services, and not Management Services Consultants.
2. Paragraph 2 of this letter is hereby amended to read that in accordance with the application for loan commitment dated September 12, 1977, that should the loan commitment not be forthcoming as per the terms and conditions outlined therein, then the funds will be returned in full.
. 5. A. Should a commitment and/or loan be granted and/or offered substantially in accordance -with the conditions and authorizations of this Application, FMS and/or its nominee, will have earned a permanent and non-refundable fee of $104,000.00 and said fee is due and payable, less the Application deposit amount, without demand.
B. Application Deposit: A cash deposit of $26,000.00, representing one (1)% of the Loan Amount is enclosed herewith. Should this loan application be accepted and should a commitment substantially in accordance with the terms and conditions contained in this Application be offered and/or granted, then the cash deposit referenced above will be earned and retained by FMS and/or its nominee.
C. If applicant does not accept the loan and/or commitment, then the entire Loan Application Deposit will be retained as liquidated damages.
D. Should this Application not be accepted or should a commitment and/or loan be offered and/or granted substantially different from the above terms and conditions, and not acceptable to applicant, said deposit will be returned to the borrower, in full.
Should we, the undersigned applicant, elect not to accept the commitment requested within the time provided for herein, or fail to fulfill the terms and conditions of this authorization and Application, or fail to furnish all information, exhibits, and instruments required to obtain the requested commitment, close the requested loan, and/or fulfill the Application, then the deposit of $26,000.00 shall be retained by FMS, or its nominee, as liquidated damages.
. Wohlfeld, in a letter of September 26, 1977, told Heller that he would accept “a l‘/2% fee payable */2% on acceptance of Namer commitment and 1% on funding.” Heller confirmed this arrangement, stating that he agreed to “1.5%, payable 'A% on acceptance by us and our bank, the balance on funding.”
. At the hearing before Judge Gordon, on March 14, 1979, to consider Heller’s motion for summary judgment, the following exchange occurred:
COUNSEL FOR NAMER: We are now into the question of two checks. The factual issue here is whether or not Defendants at this time were entitled to their full $104,000 fee. The issue there turns on whether or not a commitment, in fact, be issued, or was forthcoming at the time and whether or not Plaintiffs had a right under the factual issues as they then stood, to retain funds. Now—
THE COURT: Aren’t you saying that Mr. Nam-er decided on his own, unilaterally that he had done that without giving the Plaintiff an opportunity to see whether there had been a commitment?
COUNSEL FOR NAMER: He wrote them a letter saying that he was retaining the funds at this time to be in his office in order to accept the commitment. At that time they would be given an opportunity to review the commitment and decide whether or not it was in substantial accordance and whether or not the fees were actually earned.
THE COURT: But, did you have anything to indicate that they acquiesced in the procedure to be suggested in that letter?
COUNSEL FOR NAMER: There is no indication that they ever acquiesced to that.
THE COURT: So, he unilaterally decided to keep the second amount?
COUNSEL FOR NAMER: Well, he decided to keep it.
THE COURT: Without regard to reason, for convenience or whatnot, you do concede that he unilaterally decided to keep it?
COUNSEL FOR NAMER: I cannot state differently at this point.
THE COURT: I am just talking about it before me, I am trying to get straight in my mind, I am not arguing with you.
COUNSEL FOR NAMER: At this point, he unilaterally decided to keep it, pending their arrival in New Orleans to review the commitment.
. In this letter of October 21, 1977 Namer stated:
Let us now place our objectives in priority, and understand that, if you want the commitment as applied for in your Application of September 12, 1977, you have but to come to New Orleans and accept same and pay the remaining fees due.
. Heller states that Namer refused to provide the commitment until all fees were paid. In contrast, Namer asserts that he only wanted proof that sufficient funds were available in New Orleans to pay the fees. We find it unnecessary to determine which of these factual characterizations of the situation is correct since the application for the loan commitment neither required Heller to prove that sufficient funds were available nor to pay such fees prior to receiving the commitment.
. Namer attached to his Memorandum in Opposition to the Motion for Summary Judgment a transcription of the meeting on October 27, which he apparently taped. Namer, in response to the request by Heller’s attorney to know who was offering the commitment so as to determine the financial strength of the institution, stated: “You’re not going to know who the bank is until I’ve been shown that you are prepared to accept this commitment and pay the balance of points. If it means that Mr. Heller you should wire those funds to your own name into an account here in New Orleans, and issue a certified check or cashier’s check based on that account, and then we reconvene in the morning at 9:00 or 9:30 we could do that.”
Subsequently, the following exchange took place:
Counsel for Heller: I’d like to see a commitment tendered.
Namer: Show me your money and you’ll see it.
. The complaint named the defendant as David Namer, doing business as Financial Management Services.
. The writ authorized sequestration of $25,000 in the account of Financial Management Services “or in the absence of such account”, in the account of Namer.
. F.R.Civ.P. 52 specifically states that “[flmdings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 . .. . ” See Boazman v. Economics Laboratory, Inc., 537 F.2d 210, 213 n.5 (5th Cir. 1976); Jot-Em-Down Store (JEDS), Inc. v. Cotter and Co., 651 F.2d 245, 247 (5th Cir. 1981); Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 434 (5th Cir. 1981); Farbwerke Hoeschst A.G. v. M/V “DON NICKY”, 589 F.2d 795, 798 (5th Cir. 1979); Mosley v. Ogden Marine, Inc., 480 F.2d 1226, 1226 (5th Cir. 1973).
. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458, 460 (1962). In deciding a motion for summary judgment, the District Court must view the evidence in the light most favorable to the party resisting the motion. Cubbage v. Averett, 626 F.2d 1307, 1308 (5th Cir. 1980); Joplin v. Bias, 631 F.2d 1235, 1237 (5th Cir. 1980); Northwest Power Products, Inc. v. Omark Industries, 576 F.2d 83, 85 (5th Cir. 1978), cert. denied, 439 U.S. 1116, 99 S.Ct. 1021, 59 L.Ed.2d 75 (1979); BAW Manufacturing Co. v. Slaks Fifth Avenue Ltd., 547 F.2d 928, 930 (5th Cir. 1977). The burden to establish the absence of a genuine issue as to material facts is thus on the party moving for the summary judgment and all doubts must be resolved against the movant. Erco Industries Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424, 428 (5th Cir. 1981). The court, on a motion for summary judgment, may not resolve material factual disputes. Environmental Defense Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981); Kennett-Murray Corp. v. Bone, 622 F.2d 887, 892 (5th Cir. 1980). Nor may it assess the probative value of evidence presented. United States v. An Article of Food Consisting of 345/50-Pound Bags, 622 F.2d 768, 773 (5th Cir. 1980). In essence, summary judgment is reserved for the situation where the moving party has established his right to judgment with such clarity that the non-moving party cannot recover under any discernible circumstance. Joplin v. Bias, 631 F.2d at 1237; Everhart v. Drake Management, Inc., 627 F.2d 686, 690 (5th Cir. 1980).
. THE COURT; If I concluded that there was no material issue of fact surrounding the point that a commitment was never offered, does all this make any difference? Didn’t I conclude that under the circumstances of this case that the failure of your clients to offer or disclose all facts pertaining to this alleged commitment, amounted to failure to provide a commitment, among other things, deprived the Plaintiffs of opportunity to examine the credit, integrity of the alleged party whose name you had whited out. I concluded that there was no material issue of fact, it was a matter of law. No offer had been made. If that’s so, does this make any difference?
COUNSEL FOR NAMER: Well, our interpretation, or our search, it is a contract or commitment was, in fact, granted and offered at the meetings between the parties.
THE COURT: I know that you interpreted it that way, but I reached a contrary conclusion as a matter of law.
COUNSEL FOR NAMER: Well, I think the documents which have been provided and attached make it clear that there was a commitment granted and had been issued.
THE COURT: Well, there may have been, but it was a secret, and at that time, there was no way for those people to know that.
, Nowhere in the record is it indicated on what date the first check, the one for $25,000, was negotiated, a fact we do not understand since the check should have been clearly stamped with the date of acceptance.
. See note 5 supra.
. He who causes another person to do an unlawful act, or assists or encourages in the commission of it, is answerable, in solido, with that person, for the damage caused by such act.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_applfrom | E | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
James A. BOYCE, Appellant, v. Dr. ALIZADUH, and his Insurance Company, c/o Washington County Detention Center, Hagerstown, Md. and “Dick” Ford, Sheriff, Washington County, Maryland, Hagerstown, Md. 21740 and Carl Frick, Director, Washington County Detention Center, Hagerstown, Md. and Spurrier, U. S. Marshall for the District of Maryland and Dr. Kolakowski, USPHS Hospital, Baltimore, Maryland, Appellees.
No. 77-2242.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1979.
Decided April 2, 1979.
Jerrold B. Pinsker, Rockville, Md., for appellant.
Michael A. Anselmi, Asst. Atty. Gen., Baltimore, Md. (Francis B. Burch, Atty. Gen. of Md., Clarence W. Sharp, Asst. Atty. Gen., Chief, Crim. Div., Baltimore, Md., on brief), for appellees.
Before BUTZNER and RUSSELL, Circuit Judges, and FIELD, Senior Circuit Judge.
DONALD RUSSELL, Circuit Judge:
The plaintiff, a federal prisoner, incarcerated in a State Detention Center, has filed pro se a § 1983, 42 U.S.C. action, charging a constitutional violation of his right to medical attention and care. He accompanied his complaint with a motion for leave to proceed in forma pauperis. The district court permitted the docketing of the action but later dismissed the complaint without the issuance of a summons, ruling that “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” The plaintiff has appealed that dismissal.
The district court rested its authority to dismiss on § 1915(d). The exercise of this statutory authority as a basis for dismissal of an action, particularly in connection with a forma pauperis suit by prison inmates, has long been approved in this Circuit. Graham v. Riddle (4th Cir. 1977) 554 F.2d 133, 134-5; Caviness v. Somers (4th Cir. 1956) 235 F.2d 455, 456; Fletcher v. Young (4th Cir. 1955) 222 F.2d 222, 224, cert. denied 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802; Mann v. Leeke (D.S.C.1974) 73 F.R.D. 264, 265, aff’d. 551 F.2d 307; Hawkins v. Elliott (D.S.C.1974) 385 F.Supp. 354, 357; Spears v. United States (S.D.W.Va. 1967) 266 F.Supp. 22, 25; Farley v. Skeen (N.D.W.Va.1953) 113 F.Supp. 736, 737, appeal dismissed for want of exhaustion of state remedies, with the statement that “[w]e would * * * affirm the decision below if the case were properly before us.” 208 F.2d 791, 792. The procedure to be followed in its exercise was outlined in the first case in this circuit to consider the question:
“Where a petition for habeas corpus by a poor person is meritless, the court may permit the filing of such petition and then dismiss it as frivolous, and in a patently frivolous proceeding respondent will not be called upon to make a return or answer.” 113 F.Supp. at 737.
The two-step procedure followed in Skeen, whereby the district court determines whether the plaintiff qualifies by economic status under § 1915(a), and then, after allowing the complaint to be docketed upon a finding of economic justification, proceeds to the next step of determining whether the action stated in the complaint is “frivolous or malicious” within § 1915(d) before permitting the issuance of process, is the very procedure followed by the district court in this case and is the very procedure recommended by Judge Aldisert’s committee in its “Recommended Procedures For Handling Prisoner Civil Rights Cases In the Federal Courts” (Federal Judicial Center, Tentative Report No. 2,1977). This is, also, the procedure followed in the district court in Gamble v. Estelle (5th Cir. 1977) 554 F.2d 653 (on remand from the Supreme Court, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251), cert. denied 434 U.S. 974, 98 S.Ct. 530, 54 L.Ed.2d 465.
In its Report, Judge Aldisert’s committee declared:
“Some courts have blurred the distinction between § 1915(a) and § 1915(d) by approving the practice of denying leave to proceed in forma pauperis on the ground that the complaint is frivolous or malicious. The practice observed by most courts is to consider only the petitioner’s economic status in making the decision whether to grant leave to proceed in for-ma pauperis. Once leave has been granted, the complaint should be filed and the court should consider whether to dismiss pursuant to § 1915(d). See commentary following standard D, infra.”
The language of the commentary following Standard D is:
“The committee recommends that the decision whether to dismiss pursuant to § 1915(d) be made prior to the issuance of process. In this way the defendant will be spared the expense and inconvenience of answering a frivolous complaint.
“The committee recommends dismissal with no opportunity to respond when the complaint is irreparably frivolous or malicious. If the defect in the complaint is reparable, the court should issue an order to show cause, permitting the plaintiff to respond and to amend. If there are multiple defendants, the complaint should be dismissed as to those defendants against whom a frivolous or malicious cause of action is alleged and should be allowed to continue against the other defendants. In borderline cases, the court should not dismiss, but should let the case proceed and rule on a subsequent motion to dismiss if one is presented.”
Turning from the procedure to be used under § 1915(d) to the substantive question of when the power thereby given is to be exercised, many decisions have declared that the exercise of that authority is discretionary and that the discretion is “especially broad” in civil rights- actions brought by prisoners. Flowers v. Turbine Support Division (5th Cir. 1975) 507 F.2d 1242, 1244; Diamond v. Pitchess (9th Cir. 1969) 411 F.2d 565, 566; Shobe v. California (9th Cir. 1966) 362 F.2d 545, 546, cert. denied 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115; Boston v. Stanton (W.D.Mo.1978) 450 F.Supp. 1049, 1053-4; Ramsey v. United States (N.D.Ill.1978) 448 F.Supp. 1264, 1275-6; Jones v. Bales (N.D.Ga.1972) 58 F.R.D. 453, 463-4, aff’d. 480 F.2d 805 (5th Cir.). But however broad the discretion may be, it may not be exercised arbitrarily and is limited in a pro se case, such as here, by the rule in Haines v. Kerner (1972) 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 and in every case by the language of the statute itself which restricts its application to complaints found to be “frivolous or malicious.” There is, it will be noted, little practical difference between the Haines rule and the definition to be given “frivolous” under the statute. The rule in Haines as reaffirmed in Estelle v. Gamble (1976) 429 U.S. 97, 106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251, is that “a pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Frivolousness of a complaint under § 1915(d) has been defined in largely those same terms. Thus, Judge Bell in Watson v. Ault (5th Cir. 1976) 525 F.2d 886, 892, defined frivolity under the statute:
“The test of frivolity in the context of Section 1915(d) in the trial court, has not been defined. In Anders v. California, 1967, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493, 498, the Supreme Court in a criminal case defined a frivolous appeal as being one without arguable merit. In our view this same test or standard should be applied in the trial court but in terms of the arguable substance of the claim presented, both in law and in fact.”
To satisfy the test of frivolousness under § 1915(d), it is accordingly essential for the district court to find “beyond doubt” and under any “arguable” construction, “both in law and in fact” of the substance of the plaintiff’s claim that he would not be entitled to relief. Conley v. Gibson (1957) 355 U.S. 41, 45-6, 78 S.Ct. 99, 2 L.Ed.2d 80; Watson v. Ault, supra 525 F.2d at 892. And a dismissal under such standard is appealable. Roberts v. U. S. District Court (1950) 339 U.S. 844, 845, 70 S.Ct. 954, 94 L.Ed. 1326; Flowers v. Turbine Support Division, supra, 507 F.2d at 1244; Foster v. United States (6th Cir. 1965) 344 F.2d 698, 700. In resolving this appeal and in determining whether the district court abused its discretion in dismissing the action against all defendants, we must thus apply the standard of frivolousness and want of arguable merit declared in Haines and Watson to the facts, liberally construed, as set forth in the plaintiff’s discursive complaint.
The plaintiff alleges in his complaint that he developed an infection in both ears while incarcerated in Washington County Detention Center, Hagerstown, Maryland, as a prisoner. He had had such an infection on at least three occasions prior to his incarceration and had been successfully treated for it. When he reported his infection to the prison authorities on this particular occasion, he was directed to the prison physician, the defendant Alizaduh, for medical attention. When seen by Dr. Alizaduh, the plaintiff told the doctor of his previous successful treatment of the condition. This prior treatment consisted, according to him, of a “white kind of Kenalog Cream and Timmeral tablets for the itching” and some “little white pills called steriods or something like that.” He, also, identified certain drugs to which he was supposed to be allergic. He specifically identified “Keeplex” and certain “Otic drop solutions” as such drugs.
Despite what may be considered, under a liberal construction of the pleadings, plaintiff’s warning that “Otic drop solutions” might produce an allergic reaction from such treatment, Dr. Alizaduh proceeded to prescribe for his condition “Neo-Decadron Otic drops.” The result, plaintiff alleges, was a serious aggravation of the infection. At this point, the plaintiff referred Dr. Alizaduh to his prior medical records and the drugs which were used in his earlier successful treatment of the infection. These records, he said, were available in Baltimore. Dr Alizaduh, however, directed the continuance of the “Otic” drops, even though it is inferable from plaintiff’s allegation that such drops had caused the plaintiff’s condition to become more aggravated, as the plaintiff had previously warned the physician. Later, at a meeting with Dr. Alizaduh at his offices, the plaintiff renewed his request that the physician obtain his prior medical record or consult with an “ENT Specialist” on the treatment of his infection. On this visit, Dr. Alizaduh did make a culture of the infection and prescribed the antibiotic Amphicillin. The condition of the plaintiff, though, continued to deteriorate. He had swelling in both his arms and legs and some fluid emissions and a “host of watered pimples,” later diagnosed as “a general allergic id reaction.” Finally, his condition became such that he was transferred to the United States Public Health Service Hospital in Baltimore, Maryland, for treatment of his condition, which had by that time become serious and which, according to the plaintiff’s allegations, he heard described by some hospital personnel as looking like “the dreaded staff [staph] disease.” As a result of what he alleged to have been intentional mistreatment of his condition, he suffered intense pain and discomfort.
It was the position of the district court that these allegations of the plaintiff set forth no more than a disagreement between the plaintiff and the physician over the proper treatment of the plaintiff’s condition. Were this the full possible extent of plaintiff’s claim, the action of the district court could not be faulted. Estelle v. Gamble, supra, 429 U.S. at 104, 105, 97 S.Ct. at 292, makes it quite clear that mere error of judgment or “inadvertent failure to provide adequate medical care,” while perhaps sufficient to support an action for malpractice, will not constitute a constitutional deprivation redressable under § 1983, 42 U.S.C.; it is only when there is a “deliberate indifference to serious medical needs” of a prisoner that the conduct of the physician rises to the level of a constitutional deprivation. But it is possible to deduce from the inartful and over-discursive language of the complaint that the plaintiff is charging that he warned the prison physician of his possible allergic reaction to the medicine being prescribed by the physician, and that, even after this possibility had been established as a fact, the physician persisted in prescribing the very same medication which had caused the allergic reaction, with the result that the plaintiff suffered a serious and painful aggravation of his condition. We do not mean to find that such is the necessary thrust of the plaintiff’s allegations; we merely find that the allegations of the plaintiff are sufficient under these circumstances to overcome a charge of “frivolousness” against a pro se complaint under § 1915(d) and to make necessary a response from the prison physician, Dr. Alizaduh.
However, the prison officials other than the prison physician, are beyond any doubt not liable to the plaintiff under any conceivable state of facts. There is no intimation in plaintiff’s complaint that these officials were neglectful of the plaintiff’s needs. They promptly provided the plaintiff with medical attention. The prison physician, to whom they referred the plaintiff, promptly saw the plaintiff and engaged on a course of treatment. The plaintiff does allege that he complained to one of the prison guards about the medical treatment which was being given him but the guard could not be held liable for any alleged dereliction by the prison physician. The dismissal of the action against all the defendants other than the prison physician, Dr. Alizaduh, is accordingly affirmed but the dismissal of Dr. Alizaduh is reversed with directions that process should issue against him.
Affirmed in part and reversed in part and remanded to the district court with directions.
. 28 U.S.C. § 1915(d) provides:
“The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.”
. The Supreme Court’s sub silentio treatment of the procedure by the majority opinion in 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 was considered in Smart v. Villar (10th Cir. 1976) 547 F.2d 112, 113 — 4, to be an approval of the procedure followed by the district court here.
. Page 54.
. Pages 56 and 57.
. The language of the committee in its first report (1975) is substantially the same as that in its second report, quoted above. See Sinwell v. Shapp (3d Cir. 1976) 536 F.2d 15, 18-19, notes 9 and 10.
. The rationale for this “especially broad” discretion in prisoner civil rights cases is stated in Jones v. Bales, supra, 58 F.R.D. at 463:
“There are compelling reasons for allowing courts broader dismissal powers in forma pauperis suits — especially damage suits brought by convicted prisoners — than in other cases. Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for ‘malicious prosecution’ or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mailing privileges the temptation is especially strong. As Justice Rehnquist has noted, ‘Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.’ Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (dissenting).”
. In Williams v. Field (9th Cir. 1968) 394 F.2d 329, 331, cert, denied 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 the Court said that the discretion under § 1915(d) was to be exercised “generally only where it would be proper to dismiss the complaint sua sponte before service of process if it were filed by one tendering the required fees.”
. Some courts have defined a “frivolous” action within § 1915(d) as one in which the “plaintiffs realistic chances of ultimate success * * * are slight, * * Boston v. Stanton, supra, 450 F.Supp. at 1054; Serna v. O’Donnell (W.D.Mo.1976) 70 F.R.D. 618, 621; Clark v. Zimmerman (M.D.Pa.1975) 394 F.Supp. 1166, 1178; Jones v. Bales, supra, 58 F.R.D. at 464. The basis for this definition is forcefully stated in Jones v. Bales and the language of the court in that case has often been quoted in later cases, expressing the same rule. We, however, are not certain that such rule can be squared with the language of the court in Haines and Estelle and we are inclined to accept the definition of frivolity stated in Watson, quoted in the text. The Aldisert committee, too, appears to adopt the Watson standard. Page 57.
. See, also, Russell v. Sheffer (4th Cir. 1975) 528 F.2d 318 at 319:
“Questions of medical judgment are not subject to judicial review” and do not present a constitutional violation regressable under § 1983.
. See Thomas v. Pate (7th Cir. 1974) 493 F.2d 151, 158, cert, denied 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (plaintiff brought to attention of nurse his allergy to penicillin, but was nonetheless given shot with bad results); Williams v. Vincent (2d Cir. 1974) 508 F.2d 541, 544 (choice of less efficacious treatment than that requested by plaintiff-prisoner may amount to deliberate indifference.) Both of these cases are cited with approval in Estelle, 429 U.S. at 106, n. 14, 97 S.Ct. 285.
. Our position is that stated in Vinnedge v. Gibbs (4th Cir. 1977) 550 F.2d 926, 928:
“We think the complaint stated enough so that it should not have been dismissed, but we hasten to add we express no opinion as to whether or not the plaintiff with aid of counsel will be able to state a cause of action.”
. This accords with what the court did in Vinnedge v. Gibbs, supra, and what was done on remand from the Supreme Court in Gamble v. Estelle (5th Cir. 1977) 554 F.2d 653, 654, rehearing denied 559 F.2d 1217, cert, denied 434 U.S. 974, 98 S.Ct. 530, 54 L.Ed.2d 465. In Gamble, the court, in dismissing the action against the prison officials, said (p. 654);
“Here Gamble has failed to meet the rigorous guidelines described above. His complaint is directed primarily at the prison physician who actually performs the medical treatment, while the Director and the warden are parties, not for having failed to provide treatment, but more on respondeat superior principles in line with their official capacities. We can find no evidence in the record that either exhibited ‘deliberate indifference’ to Gamble’s medical needs by means of interference with the prison doctor’s performance or in any other manner which would satisfy the Supreme Court standard.”
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_othcrim | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense." This includes the question of whether the defendant waived the right to raise some claim. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed". If the court answered the question in the affirmative, but the error articulated by the court was judged to be harmless, answer "Yes, but error was harmless".
NATIONAL LEAD COMPANY, a Corporation, Appellant, v. Bernard M. WOLFE and Frederick J. Dannenfelser, Individuals and Copartners, Doing Business Under the Names and Styles “Dutch Paint Co.,” and “Manning-Mitchell Paint Co.,” Appellees.
No. 13737.
United States Court of Appeals Ninth Circuit.
May 17, 1955.
Rehearing Denied July 14, 1955.
See, also, 15 F.R.D. 61.
Robert E. Burns, Crimmins, Kent, Draper & Bradley, San Francisco, Cal., James D. Ewing, New York City, Milton Handler, San Francisco, Cal., John B. Henrick, New York City, for appellant.
James M. Naylor, Frank A. Neal, Naylor & Lassagne, San Francisco, Cal., for appellee.
Before DENMAN, Chief Judge, POPE, Circuit Judge, and BYRNE, District Judge.
POPE, Circuit Judge.
The plaintiffs-appellees, citizens of the State of California, brought a suit for declaratory relief against the defendant-appellant, a New Jersey corporation, praying for an adjudication that the plaintiffs’ use of the words “Dutch”, “Dutch Paint Company” and “Dutch Paint” in connection with the paint and .paint products manufactured and processed by them does not infringe the rights of appellant in its trade mark “Dutch Boy”.
Appellant, by counterclaim, alleged its prior adoption and use of the trade mark “Dutch Boy”, the registration of this mark, for paint products, in the United States Patent Office in 1937; that it has built up a large and profitable business in its products identified with that trade mark and has spent large sums in advertising it; that since 1949 the appellees, with knowledge of appellant’s trade mark, have used the words “Dutch Paint Company”, “Dutch” and “Dutch Paint” in connection with their manufacture and advertising of paint products in a manner calculated and liable to confuse and deceive the public in believing that appellees’ products are manufactured by or originate with the appellant; that this was unfair competition as well as infringement of appellant’s trade mark and its registration.
Upon this counterclaim the appellant sought an injunction against further use by the appellees of the words objected to; an accounting of profits from the alleged infringement of the trade mark, and an award of damages.
The case was tried and all testimony taken before Honorable Herbert W. Erskine, District Judge, who died before he could make or file any findings in the case. By agreement of the parties the cause was submitted to the Honorable Edward P. Murphy upon the record of the testimony and other evidence previously presented to Judge Erskine. The court made findings of fact and entered a judgment in favor of the appellees as plaintiffs and dismissed the appellant’s counterclaim. Upon this appeal the specifications of error in the main assert the right of appellant- to have judgment upon this counterclaim.
The record shows that the appellant -is a large and well known manufacturer of paint and paint products which it has sold to the trade and the consuming public throughout the country for more than 40 years. In 1907 it adopted a picture of a Dutch boy as its trade mark for white lead. Subsequently it commenced using the words “Dutch Boy” in its advertising and these words were applied successively to linseed oil, red lead paint, white lead paint, flatting oil, wall primer and other paint products. The word trade mark “Dutch Boy” was registered in the Patent Office in 1937 for a number of paints and paint products including inside and outside paints, primers, undercoats, lacquers and varnishes. All these uses antedated by a considerable number of years the appellees’ entry into the paint business. In connection with its sales of Dutch Boy paints appellant made very large expenditures devoted to advertising its Dutch Boy trade mark. Its products were shown to be regularly sold through independent dealers as well as through its 39 retail stores. There were some 1200 of these dealers in the eleven' Pacific Coast states. Appellant's sales of paint products bearing this trade mark have aggregated over six hundred million dollars and it has expended in excess of nineteen million dollars in national advertising.
The appellees on the other hand entered the paint business in 1946 after their discharge from the Navy where they had had some training in connection with the naval paint program. After initiating the paint business and incorporating their enterprise under the name of Manning-Mitchell, Inc., they had some difficulty in procuring raw materials for their marine paints. Then in the same year they acquired for some $9,000 a partnership concern known as “Dutch Paint Co.” at San Francisco which operated a small paint factory and which had on hand some labels marked “Dutch Paint”. Thereafter the apellees formed a new corporation called “Dutch Paint Company” and continued to increase the manufacture and sale of household and other paints using labels and other marks with the names “Dutch” and “Dutch Paint”. It is of this use that appellant complains in its counterclaim.
The record shows beyond possible controversy that the appellants had a trade mark valid both at common law and under the applicable federal acts. Neither the word “Dutch”, nor the words “Dutch Boy” are used otherwise than in a fictitious, arbitrary and fanciful manner. Of course the word “Dutch” is capable of being used as a geographical term. If used to indicate a product made in Holland or by some Dutch process, it could be a descriptive term. However, the record shows without doubt that appellant’s trade mark does not contain words having either a geographical or descriptive sense. In this respect the case is governed by Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S. 251, 36 S.Ct. 269, 271, 60 L.Ed. 629, where the court said: “We do not regard the words ‘The American Girl,’ adopted and employed by complainant in connection with shoes of its manufacture, as being a geographical or descriptive term. It does not signify that the shoes are manufactured in America, or intended to be sold or used in America, nor does it indicate the quality or characteristics of the shoes. Indeed, it does not, in its primary signification, indicate shoes at all. It is a fanciful designation, arbitrarily selected by complainant’s predecessors to designate shoes of their manufacture. We are convinced that it was subject to appropriation for that purpose, and it abundantly appears to have been appropriated and used by complainant and those under whom it claims. * * * ‘The American Girl’ would be as descriptive of almost any article of manufacture as of shoes; that is to say, not descriptive at all.”
Here there is no likelihood that the use of the name “Dutch” or “Dutch Boy” in connection with the appellant’s goods would be understood by purchasers as representing that the goods or their constitutent materials were produced or processed in Holland or that they are of the same distinctive kind or quality as those produced, processed or used in that place.
The record and briefs do not disclose any assertion on the part of the appellees that appellant’s trade mark was wholly without validity. Appellees however contend that the mark is not a “strong” but a “weak” mark, citing as their authority for this position this court’s decisions in Sunbeam Furniture Corporation v. Sunbeam Corporation, 9 Cir., 191 F.2d 141, and Sunbeam Lighting Co. v. Sunbeam Corporation, 9 Cir., 183 F.2d 969. We find no resemblance between this case and our Sunbeam cases for in those cases it was pointed out that the name Sunbeam was “a meaningful word, a joyful word, a word of comfort, and of health.” It was therefore held that its use was not sufficiently fanciful to warrant the granting of an injunction not merely against the use of the term “Sunbeam” on the defendants’ lamps but against the use of the firm name “Sunbeam Furniture Corporation.”
The fact that' “Dutch” as a dictionary term has a geographical significance and that it would be possible for a manufacturer to use that word in connection with his business in its primary geographical sense is beside the point here. Thus one who manufactures paint in Holland cannot be restrained from selling his product as “Dutch” paint any more than a watch manufacturer in Switzerland can be prevented from selling his “Swiss” watches. No use of the word “Dutch” in a geographical sense is involved here for neither appellant nor appellees are marketing products or goods “likely to be understood by purchasers as representing that the goods or their constituent materials were produced or processed in the place designated by the name or that they are of some distinctive kind or quality as the goods produced, processed or used in that place.”
The distinction is well made by the Supreme Court in Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., supra, where it contrasted with the valid use of “The American Girl” the supposititious use of a mark “American Shoes”. As the appellees are not making their paints in Holland or using any Dutch processes or giving them any distinctive Dutch quality, the fact that others might have done so is of no significance in this case. There is no question also that “Dutch” has certain descriptive meanings. Thus “Dutch Kalsomine Brushes”, the record shows, are paint brushes of a special construction; “Dutch White” and “Dutch Blue” are terms describing certain colors under which some paints are sold although not those of the appellees; “Dutch Process”, or “Old Dutch Process” is a means of making white lead used in Holland and some manufacturers of white lead use that process and make reference to it on their labels; “Dutch Enamel” is a term descriptive of a kind of enamel first developed in Holland. Neither appellant nor appellees are engaged in the utilization of any such processes and the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” used by appellees are not claimed to have any relation to any product now or ever made in Holland or any process, color, or other description related to Holland or the Dutch.
We conclude therefore that the appellant’s trade-mark was one entitled to full protection both under the rules of the common law and under the federal acts.
Under the rules and decisions generally applicable, the appellees’ use of the terms here complained of would constitute an actionable infringement of the appellant’s trade-mark. We note here, in connection with appellees’ competing business, the use of a designation which is “confusingly similar to the [appellant’s] trade name.” Under § 32 of the Lanham Act, 15 U.S.C.A. § 1114, to the protection of which appellant is entitled, the infringement is the use, without the registrant’s consent, of “any registered mark in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive purchasers as to the source of origin of such goods or services * *
That we have a case here of confusing similarity is very apparent and the facts of the case are not to be distinguished from those in a multitude of decisions finding infringement. Among those cases are Armstrong Paint & Varnish Works v. Nu-Enamel Corporation, 305 U.S. 315, 59 S.Ct. 191, 83 L.Ed. 195; Brooks Bros. v. Brooks Clothing of California, 9 Cir., 158 F.2d 798, adopting opinion D.C., 60 F.Supp. 442; Lane Bryant, Inc. v. Maternity Lane, 9 Cir., 173 F.2d 559. Here there is confusing similarity between the appellant’s trademark and the words used by the appellees in respect to appearance, sound and meaning. The great mass of cases cited by Callman in § 82.1 of his work on Unfair Competition and Trade-Marks, 2d Ed., in which confusing similarity in sound, appearance or meaning, or in some of these respects, was found to exist, make it clear that in using the words “Dutch”, “Dutch Paint”, or “Dutch Paint Company” in connection with their products, appellees are guilty of infringement of the appellant’s trade mark. The evidence here satisfies the standards of proof set forth in Mershon v. Pachmayr, 9 Cir., 220 F.2d 879: “There is ample evidence in the case to require the finding that there was material confusion just as the court said there would be, and that there was strong likelihood that there would be confusion, although actual confusion is not essential in the proof of infringing a trade-mark.”
However, the appellant produced a mass of evidence which was uncontradicted showing some 290 instances in which paint dealers, painters, industrial users of paints and retail customers were actually deceived or misled by the appellees’ use of “Dutch”, “Dutch Paint”, “Dutch Paint Company”, and by their advertisements, into believing that appellees’ paints were actually the appellant’s Dutch Boy paints. This evidence of actual confusion showed that it occurred in some 20 communities in California, and in communities in Washington, Oregon, Idaho, Utah, Wyoming, and Nevada, and even in Hawaii. Some of these witnesses were experienced painters or construction superintendents; others were individual consumers purchasing for their own use. Testimony was given by some of appellant’s dealers and employees who related many instances of confusion on the part of the consumers visiting the stores. In addition there was substantial testimony that dealers in paints who were accustomed to purchase paint at wholesale, were confused into believing that the appellees’ “Dutch Paint” was appellant’s “Dutch Boy Paint”.
Notwithstanding this extensive proof not only of likelihood of confusion but of actual confusion as well, and notwithstanding the evidence was uncontradicted, the trial court found that there were no purchasers who were confused as between defendant’s and plaintiffs’ products and concluded that there was a lack of similarity because the names differed in sound, significance and appearance. We are unable to perceive how the court could have made such a finding in the light of this record. The court’s findings upon this point are clearly erroneous.
The record also shows that not only did the appellees beginning in 1946 adopt these confusingly similar names but shortly thereafter the method of advertising their paint showed that their continued use of these names and the passing off of their products thereunder was intentionally false and misleading and done with a purpose on their part of deceiving prospective purchasers. Thus appellees advertised “New Lower Than Pre-War Prices on Dutch Paint”. The facts were, as appellees knew them, that their Dutch paints were not in business before the war and they had no pre-war prices. They also knew that the appellant’s Dutch Boy paint had been sold long prior to the war. They also advertised “How - Can $2.95 Buy $6 Paint?”, offering their Dutch paint “at approximately 50% of the normal price”. Appellees never sold $6 paints; $2.95 was their normal price, although it was approximately 50% of the normal Dutch Boy price. They advertised “Quality Famous Dutch Paint” which they represented as selling for half price at $2.95.
The proof of this deliberately false and misleading use of advertising in connection with the appellees’ own infringement, has an important bearing upon the inferences to be drawn with respect to the existence of confusion. The rule respecting the consequences of this intent to deceive was stated in My-T-Fine Corporation v. Samuels, 2 Cir., 69 F.2d 76, 77, as follows: “But when it [intent to deceive] appears, we think that it has an important procedural result; a late comer who deliberately copies the dress of his competitors already in the field, must at least prove that his effort has been futile. Prima facie the court will treat his opinion so disclosed as expert and will not assume that it was erroneous. * * * He may indeed succeed in showing that it was; that, however bad his purpose, it will fail in execution; if he does, he will win. * * * But such an intent raises a presumption that customers will be deceived.”
Appellees attempt to meet the appellant’s showing of infringement by setting up defenses of laches, acquiescence and estoppel. The record does not sustain any of them.
The record is that early in 1947, a then partner and associate of the appellees assured the appellant’s manager that they intended to discontinue their use of the name “Dutch” as soon as they had exhausted their supply of labels. In March, 1948, there was a discussion between appellant’s advertising manager and the appellees in which the former discussed with appellees the question of the appellees abandoning the use of the word “Dutch”. The advertising manager testified that appellees indicated their intention to drop this brand as soon as there was an ample supply of raw materials for other kinds of paints. The appellees’ version of the conversation is that the manager asked them if they had thought of abandoning the use of the word “Dutch” and they replied that they could not do so as they were obliged to manufacture Dutch paints because of pigment shortage.
Whichever be the correct version, plainly appellant was endeavoring to canvass the possibility of removing the infringement in 1948. The suit was begun in October, 1949. The attempted proof of laches is too trivial to require serious consideration. In the light of the intentional and fraudulent use of appellant’s trade mark, the defense here is a frivolous one. Menendez v. Holt, 128 U.S. 514, 523, 9 S.Ct. 143, 32 L.Ed. 526.
The claim of acquiescence is equally groundless. Thus, it is argued that on the occasion previously mentioned when the advertising manager of appellant met with the appellees, the manager confined his objections to certain radio advertising on a Sacramento radio station; but that the failure of the advertising manager to make additional objections particularly to the newspaper advertisements which appellees were running, and his failure to make a stronger showing of force against the use of the word “Dutch Paint” in connection with appellees’ product, amounted to an acquiescence.
The record also shows that some of the appellant’s employees and salesmen during the years 1946-1947-1948 occasionally visited the appellees’ offices and knew that the word “Dutch” was displayed on signs and paint cans. There was also produced at the trial a letter written by one Kaegebehn, the manager of appellant’s patent department, to the appellant’s advertising manager. This contained a statement that “Dutch” is a geographical name, and as such, it is not registrable as a trademark, but if used exclusively, it may acquire secondary trademark significance. However our mark is Dutch Boy and we can only enforce that mark against others under the trade mark laws.” The writer of the letter was not a lawyer; the letter was an intra-company communication, never addressed to anyone outside the appellant company, and there was no reliance upon it by appellees. Cf. Aunt Jemima Mills Co. v. Rigney & Co., 2 Cir., 247 F. 407.
Appellees began their use of the words here objected to in 1946. In 1947 they gave assurance they would shortly discontinue this use. In March,. 1948, appellant was negotiating with appellees in an effort to procure a promise to discontinue. Formal notice of infringement was given in July, 1949, and the suit begun in October of the same year. Laches, acquiescence, or estoppel are wholly wanting here.
The appellees attempted to show that a large number of other persons had used the name “Dutch” or some combination thereof in connection with sales of paint, and it is contended that the showing made in this respect justifies the trial court’s findings and judgment against the appellant’s claim of a valid trade mark and infringement thereof. The suggestion is that these third party uses of the term “Dutch” in the paint industry have been so numerous and so general that the mark must be held to be a weak mark within the meaning of the Sunbeam cases, supra, and further, that the term “Dutch” has become publici juris as in the cases of “aspirin” and “cellophane”.
Appellees have attached to their brief in this court a tabulation which was an exhibit in the court below showing uses which third parties, manufacturers or dealers in paint have made of names which include the word “Dutch”. Substantially the same information was portrayed in a photograph which was also an exhibit and which showed in color paint cans to which were attached labels with trade marks using the word “Dutch”. A study of the 39 listed uses of the word “Dutch” reveals that some of them are duplications, some relate to uses discontinued many years ago, some were used but to a limited extent and in single communities or limited localities far from the Pacific Coast to which appellees’ operations were confined, and for the most part in the eastern portion of the United States, and some with respect to which there was no proof of any isale whatever; some relate to non-paint products such as floor wax. The remaining proven third party uses of the word “Dutch” in connection with paint sale or manufacture are too inconsequential to establish a claim of pub-lid juris or the claim that appellant’s mark has become a weak mark or to justify on any other theory the acts of these appellees. It may be that some of these third persons may also have been guilty of wrongful infringement, but such would not be a defense or justification for the appellees. It is no excuse for them to say that others have been guilty of the same wrong. Del Monte Special Food Co. v. California Packing Corp., 9 Cir., 34 F.2d 774; Potter-Wrightington, Inc., v. Ward Baking Co., 1 Cir., 298 F. 398, affirming D.C., 288 F. 597. Uses of the offending word in local areas in the East are no justification for acts of appellees on the Pacific Coast.
The findings of the trial court fail to note that these third party uses fall into these various categories. The court failed to note that, as earlier here indicated, no one questions the possibility of using the word “Dutch” in a geographical or descriptive sense. Some of the third party uses listed in the findings, without noting this distinction, were instances where such proper and unobjectionable uses were made, as in the case of “Dutch Kalsomine”, “Dutch White”, “Old Dutch” process. Again there was no breakdown of those uses which were local and far distant from the area of appellees’ user. And since the trial court’s findings were based upon the same cold record which is before us, we are “in as good a position as the trial court was to appraise the evidence.” We find no evidence to warrant a holding that appellant’s trade-mark had become publici juris, or that the word “Dutch”, when used as appellees have done, was publici juris. The third party uses as are shown are not such as would permit an inference of acquiescence. We find here no evidence that an originally distinctive mark changed or developed into a generic term.
There is also a contention that there was an abandonment of the trademark by the appellant. No evidence thereof appears in this regard for there was no evidence of any intent whatever to abandon. Saxlehner v. Eisner & Mendelson Co., 179 U.S. 19, 31, 21 S.Ct. 7, 45 L.Ed. 60.
What we have said heretofore has in terms referred to the trade-mark infringement. That, however, is but one aspect of the larger field of unfair competition. It requires no extended discussion in view of what we have said to demonstrate that the acts here complained of are not only an infringement of trade-mark but they constitute acts of unfair competition. The law is stated in Weinstock, Lubin & Co. v. Marks, 109 Cal. 529, 541, 42 P. 142, 146, 30 L.R.A. 182: “ * * * Upon what principle of law can a court of equity say, ‘If you cheat and defraud your competitor in business by taking his name, the court will give relief against you, but, if you cheat and defraud him by assuming a disguise of a different character, your acts are beyond the law?’ Equity will not concern itself about the means by which fraud is done. It is the results arising from the means — it is the fraud itself — with which it deals. The foregoing principles of law do not apply alone to the protection of parties having trademarks and trade-names. They reach away beyond that, and apply to all cases where fraud is practiced by one in securing the trade of a rival dealer; and these ways are as many and as various as the ingenuity of the dishonest schemer can invent.”
In order to make out a case of unfair competition, it is only required that the natural and necessary consequence of appellees’ conduct in this respect was such as'to cause deception. The case of Ross-Whitney Corp. v. Smith Kline & French Lab., 9 Cir., 207 F.2d 190, sufficiently demonstrates that wholly apart from trade-mark infringement, the appellant had here made out a case of unfair competition and that the court below had jurisdiction thereof.
In view of the demonstration in the court below that the appellees’ use of “Dutch Paint” and “Dutch Paint Company” was by false and misleading advertising, and the consequent demonstration that there was a deliberate and intentional design to cause confusion and mistake and to deceive purchasers, the conclusion must be that whether the cause be viewed as one of unfair competition or as one of infringement of a registered trade-mark, appellant is entitled not merely to relief by injunction but to an accounting of profits and damages as well. “But where an injunction is had against unfair competition, willfully conducted by the defendant with knowledge of the plaintiff’s rights, an accounting normally follows.” Matzger v. Vinikow, 9 Cir., 17 F.2d 581, 584.
As for appellant's rights under the trade-mark acts, since this is not a case where there has been “no showing of fraud or palming off”, cf. Champion Spark Plug Co. v. Sanders, 331 U.S. 125, 131, 67 S.Ct. 1136, 1139, 91 L.Ed. 1386, but where the showing is quite to the contrary and the intentional misleading has been demonstrated, appellant is entitled not merely- to an injunction as prayed for but to an accounting of appellees’ profits and a - recovery of any-damages sustained under the provisions of Title 15 U.S.C.A. §1117, pursuant to the rule of Mishawaka Rubber & Woolen Mfg. Co. v. S. S. Kresge Co., 316 U.S. 203, 62 S.Ct. 1022, 86 L.Ed. 1381.
Accordingly, the judgment is reversed- and the cause is remanded with directions to dismiss the appellees’ complaint, to grant to the appellant an injunction as prayed for in its answér and- counter-, claim, and to proceed to take ah accounting of the' appellees’ profits, and to determine appellant’s, damages as.directed in this opinion.
. The findings reflect the difficulty of the trial judge in dealing with a record of evidence none of which he had heard from the lips of witnesses. Thus he appears to have overlooked the extensive testimony, uncontradieted, as to the many years of selling and advertising Dutch Boy paints, long prior to the appellees’ commencement of the business, and limited himself on this subject to a finding as follows: “The earliest national advertisement of the ‘Dutch Boy’ blue and white label products was in 1947, and the earliest reference to ‘Dutch Boy’ paints as distinguished from white lead, in defendant’s national advertising, occurred in 1950”. The impression given is that appellant did not begin to advertise its paints, and particularly its mixed ready to use paints, at least on the national scale, until 1947 or even 1950.
The record is quite otherwise. As appears from the deposition of appellant’s advertising manager, since 1913 appellant had been promoting the sale, on a national scale, of ready mixed paint bearing conspicuous labels with its trade mark. In the early 1930’s ready mixed paints called “Colors in Oil” were sold throughout the country under the conspicuous Dutch Boy label. Its 1937 trade mark registration was for numerous paints and paint products including “ready mixed paints for exterior use” and “ready mixed paints for interior use”. Beginning in 1918 what were known as “flatting paints” were sold under the Dutch Boy trade mark; and in the years between 1930 and 1940 similar Dutch Boy labels were applied to white lead paint, lead mixing oil, gloss enamels, varnish, quick drying enamel, enamel undercoat, semi-gloss, flat wall paint, wall primer, one coat flat-wall base and liquid dryer. The record includes numerous photographs of samples of appellant’s paint containers bearing the Dutch Boy label as distributed nation-wide in the years prior to 1940. Some of these were on products such as linseed oil and flatting oil, apparently for u-se of professional painters in mixing paint, but many of them are of mixed ready for use paints designed for sale to the consumers such as “Dutch Boy Outside White”, “Dutch Boy Satin Egg-Shell”, “Dutch Boy Interior White”.
Since 1938 appellant produced a full line of more than 30 types of ready mixed paints, each in a variety of colors, and all particularly designed for consumers’ use. All were displayed bearing this label among the stocks of independent dealers nation-wide as well as in the company’s own retail stores. These products were pushed with particular vigor in the area west of the Rocky Mountains. About 1930 appellant took over a concern manufacturing a full line of paints known as Bass-Heuter of San Francisco, and thereafter put out the full line of paint products of that concern using the Dutch Boy label thereon with a smaller insert marked “formerly Bass-Heuter”.
During the period following 1914 appellant advertised its trade mark products by distributing for use of painters millions of “wet-paint” signs bearing the Dutch Boy trade mark. From 1928 on it advertised its Dutch Boy products in approximately 200 newspapers throughout the country of which 40 or 50 were on the Pacific Coast. Displayed in the record are exhibits of circulars advertising Dutch Boy painters’ products which were distributed to dealers throughout the country in quantities aggregating hundreds of thousands. During this period the Dutch Boy trade mark was advertised in national magazines such as the Saturday Evening Post and Colliers, and in the farm journals.
The independent dealers in Dutch Boy paint were furnished fluorescent and Neon signs. At least 30,000 of such signs have been distributed since 1915, about 15% of which were installed at the stores selling the products on the Pacific Coast. Mammoth Neon signs bearing the trademark were located for outdoor advertising at places of maximum automobile traffic in New York, Los Angeles, Buffalo, Philadelphia, St. Louis, Chicago, Pittsburg, Cleveland and Cincinnati.
The case was tried in 1950 and the appellant’s advertising manager in testifying produced color advertisements currently appearing that year in national magazines bearing the phrase “Dutch Boy Paints”. The unfortunate reference in the quoted finding to the year 1950 is based upon the testimony of appellant’s advertising manager that “that particular phrase” first appeared in those 1950 advertisements. The result of this wholly unwarranted finding is that it gives an erroneous impression that appellant had only “come lately” with its trade mark into the mixed paint field.
. The district court’s findings erroneously recite that this Dutch Paint Co. had been producing “Dutch Paint” since 1941. There is no evidence upon the subject other than that “Dutch Paint Co.” was listed in the telephone hook from 1941 on. When it began producing, or when it made its “Dutch Paint” labels, does not appear.
. Although the record discloses no attack on the registration of appellant’s trade mark, the trial court failed to make any finding thereon, or even to note the fact of registration in the findings.
. See comment on Subdivision (a) of § 720 Restatement of Law of Torts, as follows:
“Arbitrary or fanciful use. The reasons for the rule that geographical names cannot be trade-marks do not weigh heavily when the geographical name has obviously only an arbitrary or fanciful significance in connection with the goods upon which it is used. Thus Gibraltar may be a trade-mark for automobiles since there is no likelihood that such use of the name would lead purchasers to suppose that there is any particular relation between the automobiles and the geographical locations known by that name, or any likelihood that it would seriously interfere with the freedom of merchants at Gibraltar to use that name. Again, Ethiopian may be a proper trademark for ladies’ stockings; for, while -suggestive of a certain color and sheen, it is only fancifully so and there is no likelihood that other merchants may have occasion properly to use the name Ethiopia on stockings since there is no factor of importance associating stockings with Ethiopia. Such is also the case of Pacific for bread or Arctic for refrigerators.”
. The words quoted are taken from Restatement of Torts, § 720(a).
. It was alleged in the counterclaim and admitted in the response that a valid registration of the mark “Dutch Boy”, obtained under the Act of February 20, 1905, is entitled to the benefits and remedies provided under the Lanham TradeMark Act of July 5, 1946, 60 Stat. 427, 15 U.S.C.A. § 1051 et seq., by virtue of § 46(b) of that Act, 15 U.S.C.A. § 1051 note. The section mentioned provides that “registrations now existing under * * * the Act of February 20, 1905 shall continue in full force and effect for the unexpired terms thereof * * *. Such registrations and the renewals thereof shall be subject to and shall be entitled to the benefits of the provisions of this Act [with certain exceptions not here applicable].”
. The quoted words arfe from Restatement of Torts, § 717 (1) (a).
. See the discussion in Callman, Unfair Competition in Trade-Marks, 2d Ed., §§ 82.3 and 80.6.
. Apparently appellees have abandoned any effort to sustain this finding of no confusion, for speaking of the testimony of appellant’s witnesses on this point, appellees’ brief says that “it is apparent that the presence of the common word “Dutch” was the sole cause of their several mistakes.”
. To the same effect see comment “f” to § 729(b) Restatement of Torts: “But if he adopts his designation with the intent of deriving benefit from the reputation of the trade-mark or trade name, his intent may be sufficient to justify the inference that there is confusing similarity.” See also Safeway Stores v. Dunnell, 9 Cir., 172 F.2d 649, 656: “Dunnell, witb his eyes open, thus chose to seek ■ the benefit of Store’s vast expenditures for advertising on the chance that it might prove enjoinable.” Cf. Stork Restaurant v. Sahati, 9 Cir., 166 F.2d 348.
. This was the occasion previously mentioned on which, according to the testimony of both appellees, appellant’s representative asked them “Have you ever given any thought to abandoning the use of the word ‘Dutch’?” It was appellant’s version of this conversation that appellees indicated an intention ultimately to drop the Dutch Paint brand and to go into a line of marine paints. Disregarding appellant’s version, it is plain that the parties then discussed the matter of appellees’ giving up the use of the Dutch Paint name.
. Appellees learned of this letter only after the action was begun, and through discovery processes. It was not even admissible in evidence. Overlooking this, and the rule of the Aunt Jemima Mills case, the trial court appears to have attached considerable significance to it for its finding 33 reads: “Mr. C. F. Kaegebehn, Manager of defendant’s Patent Department, admitted that National Lead Company did not have ‘proprietary legal exclusive right to the word “Dutch” in connection with paint and paint products,’ the while suggesting that a ‘show of force’ by defendant be used in lieu of such right.” Actually, in the same letter, Kaegebehn was urging the company representative to which it was addressed to advise all persons using the phrase Dutch Paint that the company was prepared to enforce its legal rights “to the utmost”. The letter can have no significance in support of a claim either of acquiescence or of estoppel.
. Bayer Co., Inc., v. United Drug Co., D.C., 272 F. 505; Du Pont Cellophane Co. v. Waxed Products, 2 Cir., 85 F.2d 75.
. As an example of this sort of thing, “Dutch Mill”, No. 19 on the tabulation mentioned, was a label used on one paint item in an Albany, N. X., store. Appellant had never heard of it until after this suit started.
. In the Pacific Coast area Uhl Bros. Inc. of Los Angeles and San Francisco sold paint under 23 different labels, one of which was “Old Dutch”; Tibbetts Corporation of Los Angeles manufactured and sold paint under 8 different names or labels, one of which was “Royal Dutch”; Security Paint Manufacturing Company of Los Angeles made paint under four names or brands one of which was “Royal Dutch”; and about a year before the trial appellees found a can of paint in a Standard Brands Paint Store in Los Angeles bearing a label marked “Dutch Mill Paint”. These four cases made up the whole of the showing of such third party uses in this area. The Uhl Bros. “Old Dutch” label had been made for ten years prior to 1950, but the Tibbetts “Royal Dutch” represented a relatively small volume of that concern’s sales; the brand had never been advertised, and one dealer carrying Tibbetts’ paints had never heard of it. The date given for first use of Security Paint’s “Royal Dutch” was 1944 or 1945. No date or source of manufacture was given for the label found in the Los Angeles store apparently after the suit was begun.
. Thus even if appellant were unable, under the rule in United Drug Co. v. Theodore Rectanus, 248 U.S. 90, 39 S.Ct. 48, 63 L.Ed. 141, to obtain injunctions in those local areas, that fact would not affect its right to relief elsewhere.
. The quoted words are from Equitable Life Assur. Soc. v. Irelan, 9 Cir., 123 F.2d 462, 464. In accord Orvis v. Higgins, 2 Cir., 180 F.2d 537, 539; United States v. Fotopulos, 9 Cir., 180 F.2d 631.
. This and other California cases relating to unfair competition were cited by this court in Lane Bryant, Inc., v. Maternity Lane, 9 Cir., 173 F.2d 559, 563.
. “ ‘If the natural and necessary consequence of said defendant’s conduct in this respect was such as to cause deception, said defendant, knowing the facts, must be held to the same responsibility as if it acted under the honest impression that no right of the plaintiff was invaded.’ ” As quoted in Lane Bryant, Inc., v. Maternity Lane, supra, 173 F.2d at page 564, from Dodge Stationery Co. v. Dodge, 145 Cal. 380, 78 P. 879. Cf. Straus v. Notaseme Hosiery Co., 240 U.S. 179, 36 S.Ct. 288, 60 L.Ed. 590.
Question: Did the court rule for the defendant on grounds other than procedural grounds? For example, right to speedy trial, double jeopardy, confrontation, retroactivity, self defense. This includes the question of whether the defendant waived the right to raise some claim.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
sc_issue_9 | 25 | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
NATIONAL PARK HOSPITALITY ASSOCIATION v. DEPARTMENT OF THE INTERIOR et al.
No. 02-196.
Argued March 4, 2003
Decided May 27, 2003
Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Ginsburg, JJ., joined. Stevens, J., filed an opinion concurring in the judgment, post, p. 812. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined, post, p. 817.
Kenneth S. Getter argued the cause for petitioner. With him on the briefs were Richard B. Katskee and David M. Gossett. Robert R. Gasaway and Ashley C. Parrish filed briefs for Xanterra Parks & Resorts, LLC, respondent under this Court’s Rule 12.6, urging reversal.
John P. Elwood argued the cause for the federal respondents. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCallum, Deputy Solicitor General Clement, and Barbara C. Biddle.
Justice Thomas
delivered the opinion of the Court.
Petitioner, a nonprofit trade association that represents concessioners doing business in the national parks, challenges a National Park Service (NPS) regulation that purports to render the Contract Disputes Act of 1978 (CDA), 92 Stat. 2383, 41 U. S. C. § 601 et seq., inapplicable to concession contracts. We conclude that the controversy is not yet ripe for judicial resolution.
I
The CDA establishes rules governing disputes arising out of certain Government contracts. The statute provides that these disputes first be submitted to an agency’s contracting officer. §605. A Government contractor dissatisfied with the contracting officer’s decision may seek review either from the United States Court of Federal Claims or from an administrative board in the agency. See §§606, 607(d), 609(a). Either decision may then be appealed to the United States Court of Appeals for the Federal Circuit. See 28 U. S. C. § 1295; 41 U. S. C. § 607(g).
Since 1916 Congress has charged NPS to “promote and regulate the use of the Federal areas known as national parks,” “conserve the scenery and the natural and historic objects and the wild life therein,” and “provide for [their] enjoyment [in a way that] will leave them unimpaired for the enjoyment of future generations.” An Act To establish a National Park Service, 39 Stat. 535, 16 U. S. C. § 1. To make visits to national parks more enjoyable for the public, Congress authorized NPS to “grant privileges, leases, and permits for the use of land for the accommodation of visitors.” § 3, 39 Stat. 535. Such “privileges, leases, and permits” have become embodied in national parks concession contracts.
The specific rules governing national parks concession contracts have changed over time. In 1998, however, Congress enacted the National Parks Omnibus Management Act of 1998 (1998 Act or Act), Pub. L. 105-391, 112 Stat. 3497 (codified with certain exceptions in 16 U. S. C. §§5951-5966), establishing a new and comprehensive concession management program for national parks. The 1998 Act authorizes the Secretary of the Interior to enact regulations implementing the Act’s provisions, § 5965.
NPS, to which the Secretary has delegated her authority under the 1998 Act, promptly began a rulemaking proceeding to implement the Act. After notice and comment, final regulations were issued in April 2000. 65 Fed. Reg. 20630 (2000) (codified in 36 CFR pt. 51). The regulations define the term “concession contract” as follows:
“A concession contract (or contract) means a binding written agreement between the Director and a conces-sioner .... Concession contracts are not contracts within the meaning of 41 U. S. C. 601 et seq. (the Contract Disputes Act) and are not service or procurement contracts within the meaning of statutes, regulations or policies that apply only to federal service contracts or other types of federal procurement actions.” 36 CFR §51.3 (2002).
Through this provision NPS took a position with respect to a longstanding controversy with the Department of Interi- or’s Board of Contract Appeals (IBCA). Beginning in 1989, the IBCA ruled that NPS concession contracts were subject to the CDA, see R & R Enterprises, 89-2 B. C. A., ¶ 21708, pp. 109145-109147 (1989), and subsequent attempts by NPS to convince the IBCA otherwise proved unavailing, National Park Concessions, Inc., 94-3 B. C. A., ¶ 27104, pp. 135096-135098 (1994).
II
Petitioner challenged the validity of § 51.3 in the District Court for the District of Columbia. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 142 F. Supp. 2d 54, 80-82 (2001). The District Court upheld the regulation, applying the deference principle of Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). The court concluded that the CDA is ambiguous on whether it applies to concession contracts and found NPS’ interpretation of the CDA reasonable. 142 F. Supp. 2d, at 80-82.
The Court of Appeals for the District of Columbia Circuit affirmed, albeit on different grounds. Amfac Resorts, L. L. C. v. United States Dept. of Interior, 282 F. 3d 818, 834-835 (2002). Recognizing that NPS “does not administer the [CDA], and thus may not have interpretative authority over its provisions,” the court placed no reliance on Chevron but simply “agree[d]” with NPS’ reading of the CDA, finding that reading consistent with both the CDA and the 1998 Act. 282 F. 3d, at 835. We granted certiorari to consider whether the CDA applies to contracts between NPS and concession-ers in the national parks. 537 U. S. 1018 (2002). Because petitioner has brought a facial challenge to the regulation and is not litigating any concrete dispute with NPS, we asked the parties to provide supplemental briefing on whether the case is ripe for judicial action. Tr. of Oral Arg. 62.
III
Ripeness is a justiciability doctrine designed “to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Laboratories v. Gardner, 387 U. S. 136, 148-149 (1967); accord, Ohio Forestry Assn., Inc. v. Sierra Club, 523 U. S. 726, 732-733 (1998). The ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction,” Reno v. Catholic Social Services, Inc., 509 U. S. 43, 57, n. 18 (1993) (citations omitted), but, even in a case raising only prudential concerns, the question of ripeness may be considered on a court’s own motion. Ibid, (citing Regional Rail Reorganization Act Cases, 419 U. S. 102, 138 (1974)).
Determining whether administrative action is ripe for judicial review requires us to evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to the parties of withholding court consideration. Abbott Laboratories, supra, at 149. “Absent [a statutory provision providing for immediate judicial review], a regulation is not ordinarily considered the type of agency action ‘ripe’ for judicial review under the [Administrative Procedure Act (APA)] until the scope of the controversy has been reduced to more manageable proportions, and its factual components fleshed out, by some concrete action applying the regulation to the claimant's situation in a fashion that harms or threatens to harm him. (The major exception, of course, is a substantive rule which as a practical matter requires the plaintiff to adjust his conduct immediately. . . .)” Lujan v. National Wildlife Federation, 497 U. S. 871, 891 (1990). Under the facts now before us, we conclude this case is not ripe.
We turn first to the hardship inquiry. The federal respondents concede that, because NPS has no delegated rule-making authority under the CDA, the challenged portion of §51.3 cannot be a legislative regulation with the force of law. See Brief for Federal Respondents 15, n. 6; Supplemental Brief for Federal Respondents 6. They note, though, that “agencies may issue interpretive rules ‘to advise the public of the agency’s construction of the statutes and rules which it administersBrief for Federal Respondents 15, n. 6 (quoting Shalala v. Guernsey Memorial Hospital, 514 U. S. 87, 99 (1995) (emphasis added)), and seek to characterize § 51.3 as such an interpretive rule.
We disagree. Unlike in Guernsey Memorial Hospital, where the agency issuing the interpretative guideline was responsible for administering the relevant statutes and regulations, NPS is not empowered to administer the CDA. Rather, the task of applying the CDA rests with agency contracting officers and boards of contract appeals, as well as the Federal Court of Claims, the Court of Appeals for the Federal Circuit, and, ultimately, this Court. Moreover, under the CDA, any authority regarding the proper arrangement of agency boards belongs to the Administrator for Federal Procurement Policy. See 41 U. S. C. § 607(h) (“Pursuant to the authority conferred under the Office of Federal Procurement Policy Act [41 U. S. C. §401 et seq.], the Administrator is authorized and directed, as may be necessary or desirable to carry out the provisions of this chapter, to issue guidelines with respect to criteria for the establishment, functions, and procedures of the agency boards .. .”)• Consequently, we consider § 51.3 to be nothing more than a “general statement] of policy” designed to inform the public of NPS’ views on the proper application of the CDA. 5 U. S. C. § 553(b)(3)(A).
Viewed in this light, § 51.3 does not create “adverse effects of a strictly legal kind,” which we have previously required for a showing of hardship. Ohio Forestry Assn., Inc., 523 U. S., at 733. Just like the Forest Service plan at issue in Ohio Forestry, § 51.3 “do[es] not command anyone to do anything or to refrain from doing anything; [it] do[es] not grant, withhold, or modify any formal legal license, power, or authority; [it] do[es] not subject anyone to any civil or criminal liability; [and it] create[s] no legal rights or obligations.” Ibid.
Moreover, §51.3 does not affect a concessioner’s primary conduct. Toilet Goods Assn., Inc. v. Gardner, 387 U. S. 158, 164 (1967); Ohio Forestry Assn., supra, at 733-734. Unlike the regulation at issue in Abbott Laboratories, which required drug manufacturers to change the labels, advertisements, and promotional materials they used in marketing prescription drugs on pain of criminal and civil penalties, see 387 U. S., at 152-153, the regulation here leaves a con-cessioner free to conduct its business as it sees fit. See also Gardner v. Toilet Goods Assn., Inc., 387 U. S. 167, 171 (1967) (regulations governing conditions for use of color additives in foods, drugs, and cosmetics were “self-executing” and had “an immediate and substantial impact upon the respondents”).
We have previously found that challenges to regulations similar to § 51.3 were not ripe for lack of a showing of hardship. In Toilet Goods Assn., for example, the Pood and Drug Administration (FDA) issued a regulation requiring producers of color additives to provide FDA employees with access to all manufacturing facilities, processes, and formu-lae. 387 U. S., at 161-162. We concluded the case was not ripe for judicial review because the impact of the regulation could not “be said to be felt immediately by those subject to it in conducting their day-to-day affairs” and “no irremedia-bl[y] adverse consequences flow[ed] from requiring a later challenge.” Id., at 164. Indeed, the FDA regulation was more onerous than §51.3 because failure to comply with it resulted in the suspension of the producer’s certification and, consequently, could affect production. See id., at 165, and n. 2. Here, by contrast, concessioners suffer no practical harm as a result of §51.3. All the regulation does is announce the position NPS will take with respect to disputes arising out of concession contracts. While it informs the public of NPS’ view that concessioners are not entitled to take advantage of the provisions of the CDA, nothing in the regulation prevents concessioners from following the procedures set forth in the CDA once a dispute over a concession contract actually arises. And it appears that, notwithstanding § 51.3, the IBCA has been quite willing to apply the CDA to certain concession contracts. Watch Hill Concessions, Inc., 01-1 B. C. A., ¶ 31298, pp. 154520-154521 (IBCA 2001) (concluding that concession contract was subject to the CDA despite the contrary language in § 51.3).
Petitioner contends that delaying judicial resolution of this issue will result in real harm because the applicability vel non of the CDA is one of the factors a concessioner takes into account when preparing its bid for NPS concession contracts. See Supplemental Brief for Petitioner 4-6. Petitioner’s argument appears to be that mere uncertainty as to the validity of a legal rule constitutes a hardship for purposes of the ripeness analysis. We are not persuaded. If we were to follow petitioner’s logic, courts would soon be overwhelmed with requests for what essentially would be advisory opinions because most business transactions could be priced more accurately if even a small portion of existing legal uncertainties were resolved. In short, petitioner has failed to demonstrate that deferring judicial review will result in real hardship.
We consider next whether the issue in this case is fit for review. Although the question presented here is “a purely legal one” and § 51.8 constitutes “final agency action” within the meaning of § 10 of the APA, 5 U. S. C. § 704, Abbott Laboratories, supra, at 149, we nevertheless believe that further factual development would “significantly advance our ability to deal with the legal issues presented,” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 82 (1978); accord, Ohio Forestry Assn., Inc., 523 U. S., at 736-737; Toilet Goods Assn., supra, at 163. While the federal respondents generally argue that NPS was correct to conclude that the CDA does not cover concession contracts, they acknowledge that certain types of concession contracts might come under the broad language of the CDA. Brief for Federal Respondents 33-34. Similarly, while petitioner and respondent Xanterra Parks & Resorts, LLC, present a facial challenge to § 51.3, both rely on specific characteristics of certain types of concession contracts to support their positions. See Brief for Petitioner 21-23, 36; Brief for Respondent Xanterra Parks & Resorts, LLC, 20, 22. In light of the foregoing, we conclude that judicial resolution of the question presented here should await a concrete dispute about a particular concession contract.
* * *
For the reasons stated above, we vacate the judgment of the Court of Appeals insofar as it addressed the validity of § 51.3 and remand the case with instructions to dismiss the case with respect to this issue.
It is so ordered.
Title 41 U. S. C. § 602(a) provides:
“Unless otherwise specifically provided herein, this chapter applies to any express or implied contract (including those of the nonappropriated fund activities described in sections 1346 and 1491 of title 28) entered into by an executive agency for—
“(1) the procurement of property, other than real property in being;
“(2) the procurement of services;
“(3) the procurement of construction, alteration, repair or maintenance of real property; or,
“(4) the disposal of personal property.”
The CDA also provides that a prevailing contractor is entitled to prejudgment interest. § 611.
For ease of reference, throughout this opinion we will refer to the second sentence quoted in the text as § 51.3.
Petitioner notes that its complaint challenged not only the regulation but also two specific prospectuses issued by NPS in late 2000. Thus, petitioner argues, even if the first challenge is not ripe, the latter two are reviewable under the Tucker Act, 28 U. S. C. § 1491(b)(1). See Supplemental Brief for Petitioner 6-8. Petitioner did not seek certiorari review on these issues; accordingly, we decline to consider them. See this Court’s Rule 14.1(a); Yee v. Escondido, 503 U. S. 519, 535-536 (1992).
Similarly, Justice Breyer’s reliance on the Tucker Act to show that the hardship requirement of Abbott Laboratories v. Gardner, 387 U. S. 136 (1967), has been satisfied, see post, at 820-821 (dissenting opinion), is misplaced. The fact that one “congressional statute” authorizes “immediate judicial relief from [certain types of] agency determinations,” post, at 820, says nothing about whether “immediate judicial review” is advisable for challenges brought against other types of agency actions based on a different statute.
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer: |
songer_usc1 | 28 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Jack W. WHITE, Petitioner-Appellant, v. Hubert D. GNANN, Warden, Effingham Public Works Camp, Springfield, Georgia, Respondent-Appellee.
No. 28499
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Feb. 19, 1970.
Jack W. White, pro se.
Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Exec. Asst. Atty. Gen., Courtney Wilder Stanton, Marion O. Gordon, Asst. Attys. Gen., Atlanta, Ga., for appellee.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
PER CURIAM:
We have concluded on the merits that oral argument is unnecessary in this case. Accordingly, we have directed the Clerk to place the case on the Summary Calendar and to notify the parties of this fact in writing. See Huth v. Southern Pacific Co., 5 Cir. 1969, 417 F.2d 526; Murphy v. Houma Well Service, 5 Cir. 1969, 409 F.2d 804; 5th Cir. R. 18.
Jack White, represented by court-appointed counsel, was convicted and sentenced upon his plea of guilty in state court to the charge of larceny of a motor vehicle. When he had exhausted state remedies, White filed a petition for habeas corpus in the district court. He alleges that he was held in jail incommunicado for sixty-five days prior to arraignment and not permitted to get in touch with counsel during that time; that he was wrongfully denied the right to make bond; and that his plea of guilty was coerced in that his lawyer advised that if he did not plead guilty “he stood a good chance of getting ten years” instead of the two years his lawyer had bargained for if he entered a guilty plea. The district court denied relief without holding an evidentiary hearing.
In a prior habeas corpus proceeding on March 13, 1969, the Superior Court of Effingham County, Georgia, held a hearing on all of these contentions. White was represented by counsel. Upon consideration of the evidence presented, the Superior Court denied the petition for habeas corpus with findings of fact and conclusions of law. This judgment was affirmed on appeal to the Supreme Court of Georgia. White has not alleged nor have we discovered anything to justify rejecting these findings of fact. 28 U.S.C. § 2254 instructs us that in these circumstances the state court’s findings are “presumed to be correct”. Thomas v. Simpson, 5 Cir. 1968, 391 F.2d 283.
As characterized by the district court, the Superior Court of Effingham County, Georgia, concluded that the evidence demonstrated White’s guilty plea to have been entered knowingly, deliberately, and voluntarily. White’s fear of receiving a greater sentence by standing trial does not vitiate his plea. Schnautz v. Beto, 5 Cir. 1969, 416 F.2d 214, 215-216; Parrish v. Beto, 5 Cir. 1969, 414 F.2d 770; Rogers v. Wainwright, 5 Cir. 1968, 394 F.2d 492. Since a plea of guilty entered voluntarily and understandingly waives all prior non jurisdictional defects, File v. Smith, 5 Cir. 1969, 413 F.2d 969, we affirm the judgment of the district court.
. 28 U.S.C. § 2254(d) reads:
In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant ' shall establish or it shall otherwise appear, or the respondent shall admit—
(1) that the merits of the factual dispute were not resolved in the State court hearing;
(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;
(3) that the material facts were not adequately developed at the State court hearing;
(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;
(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;
(6) that the applicant did not receive a full, fair, and adequate hearing in the State court preceding; or
(7) that the applicant was otherwise denied due process of law in the State court proceeding;
(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination of the sufficiency of the evidence to support such factual determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes that such factual determination is not fairly supported by the record:
And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs numbered (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_appnatpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MESCALERO APACHE TRIBE, Plaintiff-Appellee, v. STATE OF NEW MEXICO and William S. Huey, Individually and as Director of New Mexico Department of Game and Fish, or his Successors in Office, Defendants-Appellants.
No. 78-1790.
United States Court of Appeals, Tenth Circuit.
Argued Oct. 17, 1979.
Decided Aug. 13, 1980.
Jeff Bingaman, Atty. Gen. and Thomas L. Dunigan, Deputy Atty. Gen., Santa Fe, N. M. (Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe, N. M., with them on briefs), for defendants-appellants.
George E. Fettinger, Alamogordo, N. M. (Kim Jerome Gottschalk, Santa Fe, N. M., with him on brief), Fettinger & Bloom, Alamogordo, N. M., for plaintiff-appellee.
Steven E. Carroll, Atty., Washington, D. C. (James W. Moorman, Asst. Atty. Gen., Robert L. Klarquist and Edward J. Shawaker, Attys., Dept, of Justice, Washington, D. C. , on brief), for the United States as amicus curiae.
Paul A. Lenzini and Susan A. Glotz, Attys., Chapman, Duff & Paul, Washington, D. C., filed an amicus curiae brief for the Intern. Ass’n of Fish and Wildlife Agencies.
Daniel H. Israel, Native American Rights Fund, Boulder, Colo., Robert J. Nordhaus and Adelia W. Kearny, Nordhaus, Moses & Dunn, Albuquerque, N. M., filed an amicus curiae brief for the Jicarilla Apache Tribe.
Robert B. Hansen, Utah Atty. Gen., Richard L. Dewsnup and Dallin W. Jensen, Asst. Attys. Gen., Salt Lake City, Utah, filed an amicus curiae brief for the State of Utah.
Before DOYLE, BREITENSTEIN and McKAY, Circuit Judges.
McKAY, Circuit Judge.
This case involves a challenge to the State of New Mexico’s attempt to regulate the management and harvesting of wildlife resources within the boundaries of the Mescalero Apache reservation. The Tribe carried its challenge to the district court where it secured a judgment declaring that the State may not apply its hunting and fishing laws to any person, Indian or non-Indian, within the boundaries of the tribal reservation. The court also enjoined the State from enforcing its game laws “against any person either on the Reservation or after they [sic] have left the Reservation for acts done on the Reservation.” Record, vol. 1, at 221. The State concedes its lack of jurisdiction over tribal members on the reservation, but appeals the district court’s resolution as to non-members of the Tribe.
In 1977 the Tribe, as part of “an extensive tourism program designed to bring income and employment to the Reservation,” Record, vol. 1, at 205, adopted various hunting and fishing ordinances to improve management of reservation wildlife resources. These ordinances were adopted pursuant to the tribal constitution and were duly approved by the Secretary of the Interior. Some of the ordinances are clearly inconsistent with state laws. For example, the Tribe specifically does not require that a hunter on its reservation purchase a state license and, in contrast to state law, the Tribe permits elk and antelope hunters to purchase permits in consecutive years. In addition, tribal hunting seasons do not all correspond with those of the State, and bag limits differ. By obeying the more restrictive of the regulations, a non — member hunter on the reservation could conform his behavior to the dictates of both Tribe and State. His doing so, however, would render much of the tribal regulatory scheme a nullity.
The revenue derived directly and indirectly from visiting sportsmen comprises a significant portion of the tribal budget, but reservation hunting and fishing by nonmembers is but a minuscule part of the overall state total. Although the State argues that wildlife management efficiency requires its jurisdiction over reservation activities, no claim is made that any species is endangered. Cf. Puyallup Tribe, Inc. v. Department of Game, 433 U.S. 165, 176-77, 97 S.Ct. 2616, 2623-24, 53 L.Ed.2d 667 (1977). In fact, the State agrees that tribal management of reservation wildlife resources has been exemplary, and in conformance with accepted wildlife management procedures. Record, vol. 1, at 134. The Tribe maintains a large, well-trained enforcement staff and receives support from the Bureau of Indian Affairs.
In the factual situation presented by this case, the State is unable to claim that either it or its lands played any significant role in the creation and preservation of the reservation wildlife resources. Instead, much of the reservation wildlife is effectively a creation of the Tribe and the federal government. For example, the antelope population on the reservation is nonmigratory, and few animals ever cross the boundaries. In recent years, the herd’s protection has been entirely in tribal hands. Furthermore, the Tribe has taken affirmative steps to build an elk herd. Prior to 1966, only 13 elk grazed in the general area of the reservation. In 1966-67, the National Park Service donated 162 elk. Through considerable range development, the Tribe removed cattle from direct competition with the elk for grazing land. The elk herd has grown to 1200, many of which wander off the reservation during part of the year. The migratory elk thus provide significant hunting opportunities for non-members outside the reservation, and the Tribe, despite its fundamental role in herd development, makes no attempt to limit that hunting.
The reservation has no natural lakes. Several man-made lakes have been constructed with federal funds and are stocked from a national fish hatchery on the reservation. Federal officials from the hatchery also provide the Tribe with technical assistance. The State has never stocked reservation lakes and no longer stocks any reservation streams. The entire tribal fishing program now exists independent of the State.
I. Justiciability
Before proceeding to the merits, we must dispose of several preliminary matters raised by the State. The State challenges, as it unsuccessfully did below, the Tribe’s right to bring this suit. The State asserts that the Tribe has no standing and that the suit is otherwise not justiciable.
On the standing issue, the State argues that “[t]he Tribe is seeking to enjoin the enforcement of State penal statutes which do not apply to it and which do not threaten it or its members in any real, direct and immediate sense.” Brief for Appellant at 20. In the State’s view, a challenge to the state regulations may be prosecuted only by an aggrieved non-member sportsman. Since the Tribe has sold nearly all of its available hunting and fishing permits, the Tribe has allegedly suffered no revenue losses and no other “injury in fact” by the regulations the State would impose on non-member sportsmen.
The State’s understanding of standing requirements is overly narrow. For purposes of standing, federal courts may certainly consider the principles of elementary economics. The State’s imposition of higher costs on individual sportsmen clearly limits the Tribe’s ability to raise the prices of its own licenses. Cf. Agua Caliente Band of Mission Indians v. County of Riverside, 442 F.2d 1184, 1186 (9th Cir. 1971). We have no reason to assume that the demand curve for reservation hunting and fishing is so inelastic that the Tribe could charge and receive any imaginable price for its licenses. Even though all tribal licenses are now sold, and applications for licenses exceed the number available, that fact merely reflects the Tribe’s conservative adjustment to market forces in devising its own fee structure. Similarly, other conflicts between the tribal and state regulatory structures-e. g., variations in hunting seasons-necessarily deter some non — member hunters from entering the reservation at some times. These conflicts affect the Tribe’s own regulatory scheme. They also influence the prices the Tribe may charge and impinge on the Tribe’s revenue-raising powers. These effects are not merely speculative, but are the straightforward and immediate results of economic forces. Cf. United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 683-90, 93 S.Ct. 2405, 2413-17, 37 L.Ed.2d 254 (1973).
Beyond economics, the Tribe has another legitimate basis for standing. When one sovereign entity is alleged to have usurped the authority lawfully belonging to another, the injured sovereign must have standing to challenge the usurpation. Other circuits have routinely found standing, without discussion, when Indian tribes have sought judgments that states were unlawfully interfering with tribal regulation of hunting and fishing. See, e. g., Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979); Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75 (4th Cir. 1978).
No other barrier to justiciability is present. The impact of the state regulation upon the Tribe is “sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage.” Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 87 S.Ct. 1507, 1517, 18 L.Ed.2d 681 (1967). The limits of state jurisdiction on the reservation is an issue now as ripe for resolution as it will ever be. The State has made clear that prosecution of non-member violators of state game laws, with the attendant effects on tribal regulation and revenue-raising, is intended and probable. Record, vol. 1, at 204. Cf. Poe v. Ullman, 367 U.S. 497, 501-02, 81 S.Ct. 1752, 1754-55, 6 L.Ed.2d 989 (1961).
Finally, all indispensable parties are named in the suit. As the district court noted, “A determination that New Mexico game laws are not applicable to non-Indian activity within the Mescalero Apache Reservation cannot injuriously affect the interests of the United States . . . .” Record, vol. 1, at 204. In addition, “no act would be required of the Secretary [of the Interior] regardless of the outcome of the suit.” Id. at 205.
II. Federal Preemption
Any attempt by a state to exercise regulatory powers within the confines of a federally recognized, “semi-independent” Indian reservation is precluded if the subject matter has been preempted by federal law or if the state regulations infringe on the tribe’s rights of self-government. White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). Accordingly, in this jurisdictional dispute between a state government and an Indian tribe, we must first determine whether the applicable treaty and federal statutes, read against the “backdrop” of Indian sovereignty, preempt exercises of state power. See McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114 (1973); Warren Trading Post Co. v. Arizona Tax Commission, 380 U.S. 685, 690-91, 85 S.Ct. 1242, 1245-46, 14 L.Ed.2d 165 (1965). Under a standard of construction followed from the time of the Marshall Court, we must construe the applicable treaty and statutes liberally in order to further Indian interests. See, e. g., Bryan v. Itasca County, 426 U.S. 373, 392, 96 S.Ct. 2102, 2112, 48 L.Ed.2d 710 (1976); McClanahan v. Arizona State Tax Commission, 411 U.S. at 174, 93 S.Ct. at 1263; Squire v. Capoeman, 351 U.S. 1, 6-7, 76 S.Ct. 611, 614-15, 100 L.Ed. 883 (1956); Carpenter v. Shaw, 280 U.S. 363, 366-67, 50 S.Ct. 121, 122-23, 74 L.Ed. 478 (1930); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 582, 8 L.Ed. 483 (1832).
The sovereign powers of the Tribe in wildlife management are so pervasive that sovereignty here moves from a mere backdrop into a leading role on the litigational stage. The historical relationship between Indian tribes, their lands, and the wild game thereon has of necessity been one of great interdependence. Access to and control of wildlife was “not much less necessary to the existence of the Indians than the atmosphere they breathed.” United States v. Winans, 198 U.S. 371, 381, 25 S.Ct. 662, 664, 49 L.Ed. 1089 (1905). After a careful, thoughtful analysis, the district court properly determined that, before the signing of the Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852), the Tribe “had inherent and complete authority to control the fish and game found within the confines of the tribal territory.” Record, vol. 1, at 208. Since the treaty is “not a grant of rights to the Indians, but a grant of rights from them-a reservation of those not granted,” id. (quoting United States v. Winans, 198 U.S. at 381, 25 S.Ct. at 664), the Tribe retains its authority even though the treaty itself did not fix the boundaries of the tribal reservation. Cf. Antoine v. Washington, 420 U.S. 194, 95 S.Ct. 944, 43 L.Ed.2d 129 (1975). Abrogation of any rights protected by treaty, particularly fundamental hunting and fishing privileges, must be explicit to be effective, see Menominee Tribe of Indians v. United States, 391 U.S. 404, 413, 88 S.Ct. 1705, 1711, 20 L.Ed.2d 697 (1968), and no congressional enactment here meets that standard. See United States v. Wheeler, 435 U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303 (1978).
The Tribe’s inherent authority stems largely from the traditional reliance on wild game for basic survival needs. See F. Cohen, Handbook of Federal Indian Law 286 (1942). However, the Tribe’s historical use of only some species within its territory does not mean that the game control powers reserved by treaty are less than all-encompassing. It is quite irrelevant whether the Mescalero at one time were primarily hunters, fishermen, or gatherers. At the treaty’s signing, the United States must certainly have understood that the Tribe could alter its use of wildlife as conditions changed. For example, “[it is] inconceivable that the United States intended to withhold from the Indians the right to sustain themselves from any source of food which might be available on their reservation.” United States v. Finch, 548 F.2d 822, 832 (9th Cir. 1976), vacated on other grounds, 433 U.S. 676, 97 S.Ct. 2909, 53 L.Ed.2d 1048 (1977).
The Tribe’s sovereign powers are not, of course, limited to control of wildlife. The Tribe’s historical powers extend to the territory itself. The State acknowledges that the Tribe has, at a minimum, the power of any landowner to exclude non-official persons from the reservation. In the State’s view, the Tribe may altogether forbid permission to hunt and fish or may condition the grant of permission upon compliance with state laws, but the Tribe may not exempt a non-member hunter from the application of state laws. The power of a landowner, however, provides only one source-and a secondary one-of tribal authority. See Powers of Indian Tribes, 55 Interior Dec. 14, 48-50 (1934). The Supreme Court has repeatedly stressed “that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, they are ‘a separate people’ possessing ‘the power of regulating their internal and social relations.’ ” United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975) (emphasis added) (citations omitted) (quoting United States v. Kagama, 118 U.S. 375, 381-82, 6 S.Ct. 1109, 1112-13, 30 L.Ed. 228 (1886)). See Merrion v. Jicarilia Apache Tribe, 617 F.2d 537, 541-43 (10th Cir. 1980); United States v. New Mexico, 590 F.2d 323, 327-28 (10th Cir. 1978) (“Indian nations [are] distinct political communities, having territorial boundaries in which their authority is exclusive”). In its most recent statement, the Court “emphasized that there is a significant geographical component to tribal sovereignty, a component which remains highly relevant to the preemption inquiry; ... it remains an important factor to weigh in determining whether state authority has exceeded the permissible limits.” White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980).
The State questions the existence of any inherent tribal powers in this case. It argues that the Tribe could not have exclusive rights in any traditional territory because, in effect, there is no traditional territory: “the Mescaleros were being swept from their lands by a tide of white settlers.” Brief for Appellants at 37. If we were to accept the State’s argument, we would be enshrining the rather perverse notion that traditional rights are not to be protected in precisely those instances when protection is essential, i. e., when a dominant group has succeeded in temporarily frustrating exercise of those rights. We prefer a view more compatible with the theory of this nation’s founding: rights do not cease to exist because a government fails to secure them. See The Declaration of Independence (1776).
In regulating game on the reservation, the Tribe thus seeks to exercise its sovereign power in an area in which it unquestionably has a “significant interest.” Cf. Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980). This case is therefore quite unlike Colville, in which the Court rejected tribal claims to an exemption from state taxation of reservation cigarette sales to non-members. Reservation sales outlets were, except in location, identical to their off-reservation competitors, and the product taxed was in no sense a tribal creation. Unlike the situation in this case, no significant tribal interest was involved.
This case is further unlike Colville in that here a definite conflict exists between the tribal regulatory structure and that of the State. In Colville the tribal and state taxing schemes were purely revenue-raising in nature, and dual systems of pure taxation are not inherently conflicting. In contrast, dual regulatory schemes, as the Court implied, necessarily create mutual dislocations. - U.S. at -, 100 S.Ct. at 2083. It is because of this characteristic of regulation that we presume, when Indian tribes under federal protection seek to regulate their traditional interests, that federal law has preempted state jurisdiction. See D. Getches, D. Rosenfelt & C. Wilkinson, Cases and Materials on Federal Indian Law 295-99 (1979). “[T]hose standards of pre-emption that have emerged in other areas of the law” generally do not apply “to federal enactments regulating Indian tribes.” White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980). As this court has recently emphasized, “[T]he cases stress that regulatory powers in Indian country or on Indian lands belong to the Congress except for inherent jurisdiction of the tribes. Congress may delegate this authority to the state, but when it does so it must be in specific terms.” United States v. New Mexico, 590 F.2d 323, 328 (10th Cir. 1978) (emphasis added).
As important as sovereignty is in this case, we need not consider whether the Tribe’s sovereign powers alone are sufficient to preempt state jurisdiction. The Supreme Court has not ruled on that question but has noted, given the pervasiveness of federal treaties and statutes, that it is “something of a moot question.” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 172 n.8, 93 S.Ct. 1257, 1262, 36 L.Ed.2d 129 (1973). See Note, Tribal Preemption, 54 Wash.L.Rev. 633, 639 (1979). In this case, the treaty and statutory basis for federal preemption is strong. We see as sources of preemption (1) the treaty; (2) the Enabling Act for New Mexico; (3) the Indian Reorganization Act of 1934; (4) the tribal constitution and ordinances enacted pursuant to the IRA; (5) the extensive federal developmental assistance; and (6) the negative inferences from Public Law 280. These factors, considered in light of the Tribe’s inherent powers over reservation land and wildlife, compel our conclusion of preemption.
The applicable treaty, as we have noted, implicitly reserves to the Tribe control over reservation hunting and fishing. In addition, the treaty is explicit in its expression of federal dominance on the reservation. In Article 1 of that document, the Tribe submits itself “exclusively [to] the laws, jurisdiction, and government of the United States of America.” Treaty with the Apaches, July 1, 1852, 10 Stat. 979 (1852) (emphasis added). Further, the treaty provides that the United States shall “designate, settle, and adjust [the Tribe’s] territorial boundaries, and pass and execute . such laws as may be deemed conducive to the prosperity and happiness of [the Mescalero Apaches].” Id., art. 9, 10 Stat. 980.
The treaty’s exclusivity language aids our interpretation of the Enabling Act for New Mexico, 36 Stat. 557 (1910), in which New Mexico Indian lands were placed “under the absolute jurisdiction and control of the Congress of the United States.” Although Organized Village of Kake v. Egan, 369 U.S. 60, 68, 82 S.Ct. 562, 567, 7 L.Ed.2d 573 (1962), said that “ ‘absolute’ federal jurisdiction is not invariably exclusive jurisdiction,” Egan “did not purport to provide guidelines for the exercise of state authority in areas set aside by treaty for the exclusive use and control of Indians.” McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 176 n.15, 93 S.Ct. 1257, 1264 n.15, 36 L.Ed.2d 129 (1973). In the area of resource management, the treaty language in this case suggests that “absolute” jurisdiction is indeed “exclusive” jurisdiction.
The tribal constitution gives to the Mescalero Apache Tribal Council the power “[t]o protect and preserve the property, wildlife and natural resources of the tribe, and to regulate the conduct of trade and the use and disposition of tribal property upon the reservation.” Mescalero Apache Tribe Revised Const. art. 11, § 1(c). That constitution was adopted and approved pursuant to the Indian Reorganization Act of 1934, 25 U.S.C. § 476, under which Congress provided that the adoption of a tribal constitution reconfirms in the tribe “all powers vested ... by existing law.” The statute thus reconfirms all preexisting powers of the Tribe and itself becomes a source of preempting power. See White Mountain Apache Tribe v. Bracker, - U.S. -, -, -, 100 S.Ct. 2578, 2583, 2584 n.10, 65 L.Ed.2d 665 (1980); Note, Balancing the Interests in Taxation of Non-Indian Activities on Indian Lands, 64 Iowa L.Rev. 1459, 1463, 1463 n.27 (1979).
Tribal power over reservation hunting and fishing was unquestionably vested prior to 1934. Tribal ordinances enacted to implement traditionally held, and congressionally approved, powers, may themselves serve to preempt the State. The Supreme Court saw another similarly enacted tribal ordinance as the implementation of “an overriding federal policy which is clearly adequate to defeat state jurisdiction.” Fisher v. District Court, 424 U.S. 382, 390, 96 S.Ct. 943, 948, 47 L.Ed.2d 106 (1976). Any constitutional limitations on congressional authority to delegate its legislative powers are “less stringent . . where
[as here] the entity exercising the delegated authority itself possesses independent authority over the subject matter.” United States v. Mazurie, 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975). The tribal scheme also negates any argument that the Tribe has not manifested an intent to preempt state jurisdiction. Cf. Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979).
The Fourth Circuit has held that extensive federal participation in reservation wildlife development is itself an element indicating federal preemption. Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d 75, 78 (4th Cir. 1978). In Eastern Band, as here, the federal government and the Tribe had developed the reservation fishing program with no state assistance. Where the State plays no role in stocking reservation waters, it “has no perceivable interest in reservation fishing.” Id See White Mountain Apache Tribe v. Bracker, - U.S.--, -, 100 S.Ct. 2578, 2587, 65 L.Ed.2d 665 (1980). See also Central Machinery Co. v. Arizona State Tax Commission, - U.S. -, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980).
Finally, we infer federal preemption from the statutory structure of Public Law 280, 67 Stat. 590 (1953), and its later amendments. Under that statute, New Mexico had the option until 1968 of unilaterally asserting civil and criminal jurisdiction over the Mescalero Apache reservation. It did not do so. See McClanahan v. Arizona State Tax Commission, 411 U.S. at 177-79, 93 S.Ct. at 1265-66. Even had the State assumed jurisdiction, the statute in its present form specifically protects the tribes from the deprivation of “any right, privilege, or immunity afforded under Federal treaty, agreement, or statute with respect to hunting, trapping, or fishing or the control, licensing, or regulating thereof.” 25 U.S.C. § 1321(b). If those states which accepted Public Law 280 jurisdiction may not hinder traditional hunting and fishing rights, New Mexico a fortiori may not do so.
The presumption of federal preemption is clearly not overcome by a treaty and statutory scheme which reassert the exclusivity of federal and tribal regulation of hunting and fishing. The State may not apply its game laws to persons for acts done on the reservation.
III. Tribal Self-Government
The second test for determining the propriety of state regulation on Indian reservations analyzes the impact of the regulation on tribal self-government. Even if the treaty and statutory scheme, read against the backdrop of sovereignty, were insufficient to create federal preemption, the Tribe’s authority is here protected under a tribal self-government analysis.
In the landmark case of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), which upheld tribal court jurisdiction over non-Indians, the Supreme Court restated the controlling test: “Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.” Id. at 220, 79 S.Ct. at 271. To apply that test, a court must “[seek] an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other.” Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2083, 65 L.Ed.2d 10 (1980). Congress has identified one overriding federal interest by “recognizing] the obligation of the United States to respond to the strong expression of the Indian people for self-determination.” 25 U.S.C. § 450a(a).
In the context of its analysis of the pure-taxation schemes of the tribe and state in Colville, the Supreme Court delineated the relevant considerations for the balancing process:
While the Tribes do have an interest in raising revenues for essential governmental programs, that interest is strongest when the revenues are derived from value generated on the reservation by activities involving the Tribes and when the taxpayer is the recipient of tribal services. The State also has a legitimate governmental interest in raising revenues, and that interest is likewise strongest when the tax is directed at off-reservation value and when the taxpayer is the recipient of state services.
- U.S. at -, 100 S.Ct. at 2083. In the case before is, the scales tip decisively in the Tribe’s favor.
Unlike Colville, we here have a clear state interference with a traditional tribal regulatory power. To restrict the application of the tribal scheme to members only would be to complicate excessively the enforcement process and to render the very idea of “regulation” an absurdity. Here the Tribe has, with the aid of the federal government, generated the “value . on the reservation” which it now seeks to control and whose benefits it seeks to enjoy. The state services received by on-reservation sportsmen are minimal-incidental spillover effects of state activities outside the reservation. In fact, the spillover benefits to the State from the tribal conservation scheme-e. g., development of the migratory elk herd-may well be more significant. Although New Mexico has a legitimate interest in the conservation of its wildlife, the Tribe’s activities do not threaten that interest in any way.
The Ninth Circuit held, in United States v. Sanford, 547 F.2d 1085 (9th Cir. 1976), that Montana’s elk hunting laws were applicable to non-Indians hunting on a tribal reservation. The court found no indication that Montana game laws interfered with tribal self-government. Id. at 1089. In distinguishing Sanford, the Fourth Circuit emphasized that “there was no showing in Sanford that the applicability of Montana’s game laws . . . would materially affect or frustrate the Indians’ governance of themselves or any commercial, conservationist or other program administered by the Indians for their own advantage.” Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 558 F.2d 75, 78-79 (4th Cir. 1978). In this case, precisely that sort of showing was made.
Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980), indicates that state regulation of an activity in which a tribe has no significant interest- and where the only effect on the tribe is to limit tribal revenues-does not infringe upon tribal self-government. Id. at ---, 100 S.Ct. at 2082-83. However, such an effect still remains a factor to be considered, for “financial self-sufficiency” is “one major goal of tribal self-government.” Eastern Band of Cherokee Indians v. North Carolina Wildlife Resources Commission, 588 F.2d at 78. See also White Mountain Apache Tribe v. Bracker, - U.S. -, -, 100 S.Ct. 2578, 2586, 65 L.Ed.2d 665 (1980). The unquestioned importance to the Tribe of the game revenues contributed to the district court’s determination that tribal self-government was infringed upon, and we affirm that finding.
Finally, we note that underlying the infringement test is a desire to promote the development of indigenous Indian institutions. Congress has declared that its policy is “to help develop and utilize Indian resources ... to a point where the Indians will fully exercise responsibility for the utilization and management of their own resources.” 25 U.S.C. § 1451. If we were to permit state interference with the tribal scheme, we would be effectively “deny[ing] Indians the opportunity of developing their own system.” Chino v. Chino, 90 N.M. 203, 561 P.2d 476, 479 (1977). The federally declared policy of self-determination becomes a mockery if it is subject to defeasance by the State.
IV. Environmental Concerns
This nation has recently begun to recognize the fragility of the natural environment. However, the federal system, whose competing sovereignties serve to protect individual liberties, may not provide the optimum environmental regulatory scheme. The State suggests that, whatever the justification for exclusive tribal regulation under a traditional legal analysis, the seriousness of ecological problems creates an implied exception in this case. The State proclaims that “its management efforts are directed to biological rather than political units,” Brief for Appellant at 27, so state regulation should be allowed.
The State vastly overstates its case. Just as wildlife does not respect reservation boundaries, it also does not respect the boundaries of states. The State surely does not mean to suggest that it ignores state boundaries in its enforcement efforts. Somewhat inconsistently, the State also maintains that, “[sjince wildlife exists in widely varying conditions throughout the United States,” “there is no dominant federal interest which requires preemption.” Brief for Appellant at 55. The State’s “biological units” argument would seem logically to prefer federal regulation, because only that regulation can take account of the varying conditions without the restraints of political boundaries. Hence, if ecological necessities were to require changes in constitutional arrangements-a position we certainly do not endorse-the changes would not necessarily be those suggested by the State.
In its ecological analysis, the State misinterprets Supreme Court language declaring the common law duty of a “state in its sovereign capacity” to protect wildlife “for the common benefit of all of its people.” LaCoste v. Department of Conservation, 263 U.S. 545, 549, 44 S.Ct. 186, 187, 68 L.Ed. 437 (1924). That language does not describe the ecologically optimum vehicle for regulation of wildlife. Nor does it require that only one sovereign, the State, participate in wildlife management. Instead, it is descriptive of the trusteeship duty imposed on all sovereigns. The Tribe as a sovereign has undertaken that duty, as the State concedes, in an exemplary fashion, vastly improving the wildlife habitat on the reservation. Therefore, the Ninth Circuit’s reasoning in United States v. Montana, 604 F.2d 1162 (9th Cir. 1979), cert. granted, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980)-that simultaneous state regulation is permissible if the state purpose is “conservation and proper management of game and fish,” 604 F.2d at 1166-simply does not extend to this case. Based on the Tribe’s record in wildlife management, we, unlike the Ninth Circuit, are not “convinced that the preservation and improvement of the stocks of fish and game,” id. at 1170, requires dual regulation.
V. Enforcement
Our analysis has indicated that the Tribe has plenary power over reservation wildlife management. In this section we consider whether the absence of tribal criminal jurisdiction over non-members necessitates a cutback in that power.
New Mexico relies heavily on an enforcement vacuum that would allegedly exist if the State could not assert its criminal jurisdiction over the Indian reservation. The State insists that “[cjriminal jurisdiction over non — Indian hunters and fisherman [sic] is indispensable to effective management.” Brief for Appellant at 36. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209 (1978), effectively repudiated tribal criminal jurisdiction over non-members, and 18 U.S.C. § 1165, it is argued, gives the United States jurisdiction over trespass only. Hence, the State maintains that without state criminal sanctions, violations by nonmembers would go unpunished and enforcement would be impossible. We believe New Mexico has overstated the effect of Oliphant and the need for criminal jurisdiction, and has underestimated the potential reach of § 1165.
New Mexico’s interpretation of Oliphant would lead to the untenable conclusion that the Supreme Court implicitly abolished most aspects of tribal sovereignty, while at the same time asserting the continuing validity of that doctrine. Many tribal powers that derive from inherent sovereignty would perhaps best be enforced through criminal sanctions. However, the Oliphant Court clearly did not intend to end all traditional tribal authority, including, for example, the taxing power-a power this court has recently reaffirmed. See Merrion v. Jicarilla Apache Tribe, 617 F.2d 537 (10th Cir. 1980) (en banc). In fact, the Supreme Court has recognized the limited nature of the Oliphant holding. See Washington v. Confederated Tribes of the Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081, 65 L.Ed.2d 10 (1980).
Many regulatory schemes, at all levels of government, exist without criminal sanctions for enforcement purposes. New Mexico itself relies in part on civil sanctions in its hunting and fishing enforcement scheme. See, e. g., N.M.Stat.Ann. § 17-2-26 (1978). Although the Tribe may not assert criminal jurisdiction over non-members, the Supreme Court has at no time denied the power of an Indian tribe to assert its civil powers. For example, “[t]ribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65, 98 S.Ct. 1670, 1681, 56 L.Ed.2d 106 (1978). See also Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). There is no inconsistency in the existence of tribal regulatory power without the availability of criminal sanctions. Cf. United States v. Montana, 604 F.2d 1162, 1165 (9th Cir. 1979), cert. grant ed, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980). Included in the Tribe’s unquestioned authority is the power to expel those who violate tribal ordinances on the reservation. See Quechan Tribe of Indians v. Rowe, 531 F.2d 408, 411 (9th Cir. 1976).
We reject the State’s assertion that we must imply a divestiture of tribal sovereignty in any area in which the Tribe becomes involved with non-members. The Supreme Court has noted that “[t]he areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and nonmembers of the tribe,” United States v. Wheeler, 435 U.S. 313, 326, 98 S.Ct. 1079, 1087, 55 L.Ed.2d 303 (1978) , but the Court did not mean that sovereignty has necessarily been divested whenever a tribe’s external relations are involved. The divestiture found in Oliphant is of a very special sort, and “[i]n most respects the Oliphant Court’s rationale does not apply to noncriminal cases.” Collins, Implied Limitations on the Jurisdiction of Indian Tribes, 54 Wash.L.Rev. 479, 508 (1979). See Note, Balancing the Interests in Taxation of Non-Indian Activities on Indian Lands, 64 Iowa L.Rev. 1459, 1467-69 (1979).
Even if tribal civil sanctions are not sufficient to provide efficient wildlife regulation, the criminal authority of the United States under 18 U.S.C. § 1165 could be interpreted broadly enough to fill much of any enforcement vacuum. When a nonmember violates, for example, a tribal bag limit, he can be considered to have gone upon tribal land “without lawful authority or permission.” His permission to enter was conditioned upon his observance of tribal game regulations. The scienter element of the statute does not require for conviction that the offender intended to violate tribal lawful authority when he entered the land. The requirement is only that he “knowingly goes upon any land . for the purpose of hunting, trapping, or fishing thereon.” If the statute does leave an enforcement vacuum, it would be for that very limited class which enters the reservation with no intent to participate in hunting, trapping or fishing and then violates the tribal game ordinances.
VI. Effect of Injunction
We must address one final question, an alleged lack of clarity in the district court’s order. That ambiguity reflects, it is argued, the application of improper standards in granting injunctive relief. The State suggests that the district court’s injunction provides incomplete relief to the Tribe because it expressly governs only “acts done on the Reservation” and does not address the State’s claimed power to regulate possession of game off the reservation. Brief for Appellant at 23-24.
No dilemma exists. The simple answer is that, absent justification, the State may not discriminatorily prohibit possession of game lawfully obtained from the reservation while permitting possession of game obtained elsewhere. See N.M.Stat.Ann. § 17-2-7 A(2) (1978). A proper game license from another state is presumably a defense to a New Mexico prosecution for possession of game without a New Mexico license. The same principle applies to game obtained on the reservation with a proper tribal license. Unless New Mexico is willing to prohibit possession of game altogether, it may not prohibit possession of game legally obtained from a source outside the State’s jurisdiction. The Supreme Court has recently stressed that a state’s historic interest in protection of wild animals, see Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), does not extend to the “ownership of game that had been lawfully reduced to possession.” Hughes v. Oklahoma, 441 U.S. 322, 327, 99 S.Ct. 1727, 1732, 60 L.Ed.2d 250 (1979).
The district court’s injunctive order properly protected its declaratory judgment.
AFFIRMED.
. For most purposes, the important distinction is between tribal members and non-members, not between Indians and non-Indians. Members of other tribes generally visit the Mescalero reservation on the same footing as non-Indians. See Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081-2083, 65 L.Ed.2d 10 (1980).
. The parties stipulated that “[t]he purpose of the tourism program is to provide income for the Mescalero Apache Tribe which may be used for its governmental purposes and economic development.” Record, vol. 1, at 121— 22.
. The Tribe may be seeking to create jurisdictional disputes. However, no negative inference should be attached to such a posture. In fact, a clear intent to preempt state jurisdiction is an element in the Tribe’s favor. See Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89, 91 (9th Cir. 1979).
. The Tribe has erected a resort complex where many sportsmen stay while on the reservation. Because of the recreation facilities at the resort, many nonhunters accompany the sportsmen. In recent years direct tribal income from hunting and fishing activities has exceeded $250,000 per year. The indirect revenues increase that total. Record, vol. 1, at 135.
. For example, in a recent year the Tribe sold 50 elk licenses, while the State sold 14,000. Ten tribal antelope licenses were available, compared to 3500 for the State. Tribal deer licenses permitted the taking of 500 deer; the State issued 100,000 licenses.
. In the first year that tribal antelope licenses were available, only six of ten were sold. The Tribe has sold all other available licenses, however, and we may safely assume that the antelope license figures reflect a temporary aberration.
. Since standing is in part a constitutional concept, a federal court has an obligation to consider the issue even if the parties do not raise it. The lack of discussion in these cases therefore cannot reflect only party failure to press the standing issue.
. The applicable treaty itself mandates “liberal construction ... to the end that . the government of the United States shall so legislate and act as to secure the permanent prosperity and happiness of said Indians.” Treaty with the Apaches, July 1, 1852, art. 11, 10 Stat. 980 (1852).
. The treaty mandated creation of a new tribal territory, but the actual boundaries of the reservation were set by a series of executive orders from 1873 until 1883.
. In 1969 the Tribe informed the State that its game and fish officers would be welcome only if they obtained tribal permission to enter the reservation. The State has honored the Tribe’s request, but it does not concede the Tribe’s power to exclude officials. Brief for Appellants at 9-10. Because of our resolution of the case, we do not reach the issue of the State’s enforcement powers on the reservation. The Supreme Court also has not spoken on this question. See Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, -, 100 S.Ct. 2069, 2081-2083, 65 L.Ed.2d 10 (1980); Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 468 n.6, 96 S.Ct. 1634, 1639, 48 L.Ed.2d 96 (1976).
. In Mescalero Apache Tribe v. O’Cheskey, 625 F.2d 967 (10th Cir. 1980) (en banc), we were also not faced with dual regulatory schemes. The state tax there at issue, like the Colville tax, was purely revenue-raising in nature, and the Tribe had not imposed its own taxing scheme. In United States v. Montana, 604 F.2d 1162 (9th Cir. 1979), cert. granted, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980), the Ninth Circuit upheld dual regulation of hunting and fishing on the Crow reservation. The court assumed, however that tribal-state cooperation would be “forthcoming.” 604 F.2d at 1172. Because of the Mescalero Apache Tribe’s clear position in this case, we may make no such assumption. See also Confederated Tribes of Colville Indian Reservation v. Washington, 591 F.2d 89, 91 (9th Cir. 1979) (“tribal government explicitly acknowledged that state jurisdiction would not constitute an obstacle to its efforts”).
. Insofar as other courts have improperly presumed the existence of state jurisdiction in similar cases, their decisions do not control our determination. See, e. g., United States v. Montana, 604 F.2d 1162, 1172 (9th Cir. 1979), cert. granted, 445 U.S. 960, 100 S.Ct. 1645, 64 L.Ed.2d 234 (1980). Nor does past participation by the State in reservation wildlife regulation necessarily limit any tribal claim of sovereign powers. See Brief for Appellant at 55. Past cooperation of the Tribe with the State reflects nothing more than a temporary waiver of the Tribe’s preemptive rights in the hunting and fishing area.
. New Mexico does not challenge the validity of the treaty. The parties stipulated that it was signed by a representative of the Tribe. Record, vol. 1, at 118.
. The New Mexico Supreme Court has understood the implications of the McCIanahan clarification of Egan. In a case involving the Mescalero Apaches, the court viewed the clarification as a refusal “to extend the concept of concurrent federal and state jurisdiction to cases which arise in areas set aside by treaty for the exclusive use and control of Indians.” Chino v. Chino, 90 N.M. 203, 205, 561 P.2d 476, 478 (1977).
. The constitution also provides that “[n]o provision . . shall be construed as a limitation on the inherent residual sovereign powers of the Mescalero Apache Tribe.” Mescalero Apache Tribe Revised Const. art. 27, § 1.
. In Eastern Band, Chief Judge Haynsworth emphasized that the fishing program was a “purely commercial undertaking” of the Cherokees. 588 F.2d at 79. We believe that the tribal interests are, if anything, enhanced when the purposes of the wildlife regulation are much broader.
. Our analysis does not attach independent preemptive significance to 18 U.S.C. § 1165. Cf. Central Machinery Co. v. Arizona State Tax Commission, - U.S. -, 100 S.Ct. 2592, 65 L.Ed.2d 684 (1980). The import of that statute is addressed in Part V.
. We recognize that the preemption and self-government analyses overlap, and that the Supreme Court appears to be gradually collapsing the tests into one. See Washington v. Confederated Tribes of Colville Indian Reservation, - U.S. -, ---, 100 S.Ct. 2069, 2082-83, 65 L.Ed.2d 10 (1980). Nonetheless, the two tests continue to provide different analytical perspectives. See White Mountain Apache Tribe v. Bracker, - U.S. -, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980).
. Section 1165, entitled “Hunting, trapping, or fishing on Indian land,” reads:
Whoever, without lawful authority or permission, willfully and knowingly goes upon any land that belongs to any Indian or Indian tribe, band, or group and either are held by the United States in trust or are subject to a restriction against alienation imposed by the United States, or upon any lands of the United States that are reserved for Indian use, for the purpose of hunting, trapping, or fishing thereon, or for the removal of game, peltries, or fish therefrom, shall be fined not more than $200 or imprisoned not more than ninety days, or both, and all game, fish, and peltries in his possession shall be forfeited.
. Recent Supreme Court reiterations of the continuing importance of tribal sovereignty are legion. See, e. g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56, 98 S.Ct. 1670, 1675-76, 56 L.Ed.2d 106 (1978); United States v. Wheeler, 435 U.S. 313, 322-28, 98 S.Ct. 1079, 1085-89, 55 L.Ed.2d 303 (1978); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 208, 98 S.Ct. 1011, 1020, 55 L.Ed.2d 209 (1978); United States v. Antelope, 430 U.S. 641, 646, 97 S.Ct. 1395, 1398, 51 L.Ed.2d 701 (1977); United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975).
. This interpretation of § 1165 may differ in spirit from that of the Ninth Circuit: “[S]ection 1165 must be considered to be a statute providing a penalty for trespass to an Indian reservation and not an attempt by Congress to enter the field of fish and game regulation.” United States v. Sanford, 547 F.2d 1085, 1089 (9th Cir. 1976) (quoting State v. Danielson, 149 Mont. 438, 427 P.2d 689, 691 (1967)). However, we do not believe that it differs in substantive result. It is sufficient for purposes of providing an enforcement mechanism that § 1165 be read merely as an anti-trespass statute.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_adminrev | O | What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
UNITED STATES of America, Plaintiff-Appellee, v. Dale Edmund CROWDER, Defendant-Appellant.
No. 71-2980.
United States Court of Appeals, Ninth Circuit.
Aug. 22, 1972.
Rehearing Denied Sept. 27, 1972.
J. Patrick Heron (argued), San Francisco, Cal., J. Douglas McVay, Phoenix, Ariz., for defendant-appellant.
Joseph Jenckes, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Patricia Whitehead, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.
Before BARNES, KILKENNY and CHOY, Circuit Judges.
PER CURIAM:
Appellant was tried by a jury and convicted of violations of statutes with reference to interstate transportation of firearms. Additionally, he was convicted of violating 18 U.S.C. § 2314 [interstate transportation of stolen goods]. All convictions grew out of the same factual background.
On appeal, appellant makes the following assignments of error: (1) that the refusal of the trial judge to bifurcate the trial on the first two counts resulted in an improper admission of prejudicial evidence; (2) that the admission of appellant’s statements relating to his conduct in connection with seizing and transporting a female across state lines was prejudicial error, and (3) that the court erroneously instructed the jury on the question of intent on one of the counts.
(1) On the first assignment, we hold that the trial judge did not abuse his discretion. United States v. Roselli, 432 F.2d 879 (CA9 1970). Neither Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), nor Erwing v. United States, 296 F.2d 320 (CA9 1961), is in point on this record before us. Beyond that, the Judge’s cautionary instructions prohibiting the use of the evidence relative to Counts I and II in connection with the other counts were more than adequate to dispel any possible impropriety in overruling the motion.
(2) Neither appellant nor his attorney objected to the statements of the witnesses with reference to the abduction and transportation of the female witness. In the absence of plain error, appellant is in no position to raise the point. Here, plain error is not presented. Consequently, Rule 52(a), FRCrim P, as construed in United States v. Machado, 457 F.2d 1372, 1375 (CA9 1972), precludes us from considering the point.
Further, the evidence was properly received under the well-established rule that where two offenses are so inseparably connected that proof of one necessarily involves the proof of the other, the evidence of the other crime or crimes is admissible. United States v. Hughes, 441 F.2d 12 (CA5 1971), cert. denied 404 U.S. 849, 92 S.Ct. 156, 30 L.Ed.2d 88; Schwartz v. United States, 160 F.2d 718 (CA9 1947); Johnston v. United States, 22 F.2d 1, 5 (CA9 1927), cert. denied 276 U.S. 637, 48 S.Ct. 421, 72 L.Ed. 745.
(3) Appellant’s contention with reference to the absence of evidence of intent is answered by United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971).
Judgment affirmed.
. 18 U.S.C. § 922(g); 18 U.S.C. § 924(a); 18 U.S.C. § 922 (k).
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer: |
songer_r_bus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
The TAYLOR-WINFIELD CORPORATION, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 72-1409.
United States Court of Appeals, Sixth Circuit.
Oct. 24, 1972.
John C. Klotsche, Chicago, 111., for petitioner-appellant; Thomas M. Hader-lein, Chicago, 111., on brief; Baker & McKenzie, Chicago, 111., of counsel.
Charles E. Anderson, Atty., Tax Div., Dept, of Justice, Washington, D. C., for respondent-appellee; Scott P. Crampton, Asst. Atty. Gen., Richard W. Perkins and Meyer Rothwacks, Attys., Tax Div., Dept, of Justice, Washington, D. C., on brief.
Before EDWARDS and MILLER, Circuit Judges, and BRATCHER, District Judge.
Honorable Rhodes Bratcher, United States District Judge for the Western District of Kentucky, sitting by designation.
ORDER
On consideration of the briefs of the parties and the files and records in this case; and
Finding that the appellate issues have been fully and accurately dealt with by the opinion of the Tax Court, 57 T.C. 205 (November 8, 1971),
The decisions of the Tax Court are affirmed for the reasons set forth in the Tax Court opinion just cited.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_casetyp1_7-2 | E | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
EUCLID NATIONAL BANK, Plaintiff-Appellant, v. The FEDERAL HOME LOAN BANK BOARD and the Federal Savings and Loan Insurance Corporation, Defendants-Appellees.
No. 17831.
United States Court of Appeals Sixth Circuit.
May 7, 1968.
Certiorari Denied Oct. 14, 1968.
See 89 S.Ct. 130,
Maxwell J. Gruber, Cleveland, Ohio, for plaintiff-appellant, R. Dugald Pearson, Zellmer & Gruber, Cleveland, Ohio, on the brief.
Daniel J. Goldberg, Atty., Federal Home Loan Bank Bd. etc., Washington, D. C., for defendants-appellees, Kenneth E. Scott, Gen. Counsel, Max Wilfand, Assoc. Gen. Counsel, Washington, D. C., on the brief.
Before O’SULLIVAN, McCREE and COMBS, Circuit Judges.
ORDER
This is an appeal by the Euclid National Bank, formerly Euclid Savings Association, from a judgment of the District Court which holds that the bank is not entitled to recover certain insurance premiums paid to the Federal Savings and Loan Insurance Corporation.
The Euclid Savings Association was converted from an Ohio chartered building and loan association to the Euclid National Bank on February 1,1966. During its life as a building and loan association its savings accounts were insured by the appellee Federal Savings and Loan Insurance Corporation under the provisions of the National Housing Act, 12 U.S.C. § 1727. When it became a national bank its deposits were insured by the Federal Deposit Insurance Corporation.
Under the terms of the National Housing Act the Euclid Savings Association became obligated on November 21, 1965, to pay an annual premium in advance to the Federal Savings and Loan Insurance Corporation. One-half of the premium was paid in November, 1965, and the other one-half was deferred to April, 1966, and then paid pursuant to demand. The bank contends that the portion of the premium covering the period beyond February 1, 1966, when it became a national bank, is unearned and should be returned to it.
The trial judge held in a well reasoned memorandum opinion, D.C., 286 F.Supp. 125, that there is no federal statute or agency regulation applicable to this situation and, in the absence of an express agreement or one that may be implied in law, the rule is that “an insured may not have any part of his premium returned once the risk attaches, even if it eventually turns out that the premium was in part unearned.” Citing Fleetwood Acres v. Federal Housing Administration, 171 F.2d 440, 442 (2nd Cir. 1948).
For the reasons stated in the District Judge’s memorandum opinion, the judgment is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
sc_caseoriginstate | 01 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state of the court in which the case originated. Consider the District of Columbia as a state.
THE CITIZENS BANK v. ALAFABCO, INC., et al.
No. 02-1295.
Decided June 2, 2003
Per Curiam.
The question presented is whether the parties’ debt-restructuring agreement is “a contract evidencing a transaction involving commerce” within the meaning of the Federal Arbitration Act (FAA). 9 U. S. C. § 2. As we concluded in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995), there is a sufficient nexus with interstate commerce to make enforceable, pursuant to the FAA, an arbitration provision included in that agreement.
Petitioner The Citizens Bank — an Alabama lending institution — seeks to compel arbitration of a financial dispute with respondents Alafabco, Inc. — an Alabama fabrication and construction company — and its officers. According to a complaint filed by respondents in Alabama state court, the dispute among the parties arose out of a series of commercial loan transactions made over a deeade-long course of business dealings. In 1986, the complaint alleges, the parties entered into a quasi-contractual relationship in which the bank agreed to provide operating capital necessary for Alafabco to secure and complete construction contracts. That relationship began to sour in 1998, when the bank allegedly encouraged Alafabco to bid on a large construction contract in Courtland, Alabama, but refused to provide the capital necessary to complete the project. In order to compensate for the bank’s alleged breach of the parties’ implied agreement, Alafabco completed the Courtland project with funds that would otherwise have been dedicated to repaying existing obligations to the bank. Alafabco in turn became delinquent in repaying those existing obligations.
On two occasions, the parties attempted to resolve the outstanding debts. On May 3, 1999, Alafabco and the bank executed “ ‘renewal notes’ ” in which all previous loans were restructured and redocumented. 872 So. 2d 798 (Ala. 2002). The debt-restructuring arrangement included an arbitration agreement covering “ ‘all disputes, claims, or controversies.’ ” That agreement provided that the FA A “ ‘shall apply to [its] construction, interpretation, and enforcement.’ ” Id., at 799. Alafabco defaulted on its obligations under the renewal notes and sought bankruptcy protection in federal court in September 1999.
In return for the dismissal of Alafabco’s bankruptcy petition, the bank agreed to renegotiate the outstanding loans in a second debt-restructuring agreement. On December 10, 1999, the parties executed new loan documents encompassing Alafabco’s entire outstanding debt, approximately $430,000, which was secured by a mortgage on commercial real estate owned by the individual respondents, by Alafabco’s accounts receivable, inventory, supplies, fixtures, machinery, and equipment, and by a mortgage on the house of one of the individual respondents. Id., at 800. As part of the second debt-restructuring agreement, the parties executed an arbitration agreement functionally identical to that of May 3, 1999.
Within a year of the December 1999 debt restructuring, Alafabco brought suit in the Circuit Court of Lawrence County, Alabama, against the bank and its officers. Ala-fabco alleged, among other causes of action, breach of contract, fraud, breach of fiduciary duties, intentional infliction of emotional distress, and interference with a contractual or business relationship. Essentially, the suit alleged that Ala-fabco detrimentally “ ‘incur[red] massive debt’ ” because the bank had unlawfully reneged on its agreement to provide capital sufficient to complete the Courtland project. Id., at 799. Invoking the arbitration agreements, the bank moved to compel arbitration of the parties’ dispute. The Circuit Court ordered respondents to submit to arbitration in accordance with the arbitration agreements.
The Supreme Court of Alabama reversed over Justice See’s dissent. Applying a test it first adopted in Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759 (2000), the court held that the debt-restructuring agreements were the relevant transactions and proceeded to determine whether those transactions, by themselves, had a “substantial effect on interstate commerce.” 872 So. 2d, at 801, 808. Because there was no showing “that any portion of the restructured debt was actually attributable to interstate transactions; that the funds comprising that debt originated out-of-state; or that the restructured debt was inseparable from any out-of-state projects,” id., at 805, the court found an insufficient nexus with interstate commerce to establish FAA coverage of the parties’ dispute.
Justice See in dissent explained why, in his view, the court had erred by using the test formulated in Sisters of the Visitation, in which the Supreme Court of Alabama read this Court’s opinion in United States v. Lopez, 514 U. S. 549 (1995), to require that “a particular contract, in order to be enforceable under the Federal Arbitration Act must, by itself, have a substantial effect on interstate commerce.” 872 So. 2d, at 808. Rejecting that stringent test and assessing the evidence with a more generous view of the necessary effect on interstate commerce, Justice See would have found that the bank’s loans to Alafabco satisfied the FAA’s “involving commerce” requirement.
II
The FAA provides that a
“written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U. S. C. §2 (emphasis added).
The statute further defines “commerce” to include “commerce among the several States.” §1. Echoing Justice See’s dissenting opinion, petitioner contends that the decision below gives inadequate breadth 'to the “involving commerce” language of the statute. We agree.
We have interpreted the term “involving commerce” in the FAA as the functional equivalent of the more familiar term “affecting commerce” — words of art that ordinarily signal the broadest permissible exercise of Congress’ Commerce Clause power. Allied-Bruce Terminix Cos., 513 U. S., at 273-274. Because the statute provides for “the enforcement of arbitration agreements within the full reach of the Commerce Clause,” Perry v. Thomas, 482 U. S. 483, 490 (1987), it is perfectly clear that the FAA encompasses a wider range of transactions than those actually “in commerce” — that is, “within the flow of interstate commerce,” Allied-Bruce Terminix Cos., supra, at 273 (internal quotation marks, citation, and emphasis omitted).
The Supreme Court of Alabama was therefore misguided in its search for evidence that a “portion of the restructured debt was actually attributable to interstate transactions” or that the loans “originated out-of-state” or that “the restructured debt was inseparable from any out-of-state projects.” 872 So. 2d, at 805. Such evidence might be required if the FAA were restricted to transactions actually “‘in commerce,’ ” Gulf Oil Corp. v. Copp Paving Co., 419 U. S. 186, 195-196 (1974), but, as we have explained, that is not the limit of the FAA’s reach.
Nor is application of the FAA defeated because the individual debt-restructuring transactions, taken alone, did not have a “substantial effect on interstate commerce.” 872 So. 2d, at 803. Congress’ Commerce Clause power “may be exercised in individual cases without showing any specific effect upon interstate commerce” if in the aggregate the economic activity in question would represent “a general practice . .. subject to federal control.” Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 236 (1948). See also Perez v. United States, 402 U. S. 146, 154 (1971); Wickard v. Filburn, 317 U. S. 111, 127-128 (1942). Only that general practice need bear on interstate commerce in a substantial way. Maryland v. Wirtz, 392 U. S. 183, 196-197, n. 27 (1968); NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37-38 (1937).
This case is well within our previous pronouncements on the extent of Congress’ Commerce Clause power. Although the debt-restructuring agreements were executed in Alabama by Alabama residents, they nonetheless satisfy the FAA’s “involving commerce” test for at least three reasons. First, Alafabco engaged in business throughout the southeastern United States using substantial loans from the bank that were renegotiated and redocumented in the debt-restructuring agreements. Indeed, the gravamen of Alafab-co’s state-court suit was that it had incurred “‘massive debt’ ” to the bank in order to keep its business afloat, and the bank submitted affidavits of bank officers establishing that its loans to Alafabco had been used in part to finance large construction projects in North Carolina, Tennessee, and Alabama.
Second, the restructured debt was secured by all of Ala-fabco’s business assets, including its inventory of goods assembled from out-of-state parts and raw materials. If the Commerce Clause gives Congress the power to regulate local business establishments purchasing substantial quantities of goods that have moved in interstate commerce, Katzenbach v. McClung, 379 U. S. 294, 304-305 (1964), it necessarily reaches substantial commercial loan transactions secured by such goods.
Third, were there any residual doubt about the magnitude of the impact on interstate commerce caused by the particular economic transactions in which the parties were engaged, that doubt would dissipate upon consideration of the “general practice” those transactions represent. Mandeville Island Farms, supra, at 236. No elaborate explanation is needed to make evident the broad impact of commercial lending on the national economy or Congress’ power to regulate that activity pursuant to the Commerce Clause. Lewis v. BT Investment Managers, Inc., 447 U. S. 27, 38-39 (1980) (“[B]anking and related financial activities are of profound local concern. . . . Nonetheless, it does not follow that these same activities lack important interstate attributes”); Perez, supra, at 154-155 (“Extortionate credit transactions, though purely intrastate, may in the judgment of Congress affect interstate commerce”).
The decision below therefore adheres to an improperly cramped view of Congress’ Commerce Clause power. That view, first announced by the Supreme Court of Alabama in Sisters of the Visitation v. Cochran Plastering Co., 775 So. 2d 759 (2000), appears to rest on a misreading of our decision in United States v. Lopez, 514 U. S. 549 (1995). Lopez did not restrict the reach of the FAA or implicitly overrule Allied-Bruce Terminix Cos. — indeed, we did not discuss that case in Lopez. Nor did Lopez purport to announce a new rule governing Congress’ Commerce Clause power over concededly economic activity such as the debt-restructuring agreements before us now. 514 U. S., at 561. To be sure, “the power to regulate commerce, though broad indeed, has limits,” Maryland v. Wirtz, supra, at 196, but nothing in our decision in Lopez suggests that those limits are breached by applying the FAA to disputes arising out of the commercial loan transactions in this case.
Accordingly, the petition for writ of certiorari is granted, the judgment of the Supreme Court of Alabama is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Question: What is the state of the court in which the case originated?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer: |
Subsets and Splits