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songer_genapel2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
UNITED STATES of America, Plaintiff-Appellee, v. 5.96 ACRES OF LAND, more or less, situated in Skamania County, State of Washington, Knappton Towboat Company, a corporation, and the State of Washington, Department of Natural Resources, Defendants-Appellants.
Nos. 77-1557, 77-2215.
United States Court of Appeals, Ninth Circuit.
March 22, 1979.
J. Lawrence Coniff, Jr., Asst. Atty. Gen. (argued), Olympia, Wash., Robert M. Schaefer (argued), Vancouver, Wash., for defendants-appellants.
Jacques B. Gelin, Atty. (argued), Dept, of Justice, Washington, D.C., for plaintiff-appellee.
Before WRIGHT and ANDERSON, Circuit Judges, and TAKASUGI, District Judge.
The Honorable Robert M. Takasugi, United States District Judge for the Central District of California, sitting by designation.
J. BLAINE ANDERSON, Circuit Judge:
To expedite completion of the Bonneville Second Powerhouse Project, the United States filed this action seeking flowage easements and condemnation of certain lands adjacent to the Columbia River. Appellant Knappton Towboat Company (Knappton) leases aquatic lands from the State of Washington (the State). Pursuant to these leases, Knappton has constructed pilings, dolphins, and dikes in and along the waters near the juncture of the Wind and Columbia Rivers. The district court granted the United States partial summary judgment against Knappton, ruling that no compensation was due for damages that the proposed enlargement of the existing dam would cause to the structures built by Knappton. The court reasoned that since these structures were below the river’s ordinary high-water mark and the permits issued by the Army Corps of Engineers authorizing their construction were revocable at will, the United States’ dominant navigational servitude precluded Knappton’s claim for compensation.
The district judge certified an interlocutory appeal. 28 U.S.C. § 1292(b). We affirm the judgment against Knappton and dismiss the State’s appeal.
I. FACTS
For a small annual rent the State of Washington leases to Knappton aquatic lands located immediately upstream from the Bonneville Dam. Knappton built various pilings, dolphins, and dikes on the leased lands for timber storage. Completion of the Second Powerhouse Project will raise the water level behind the dam thereby weakening the structures Knappton has already built. To preserve them, Knappton must rebuild the structures at considerable expense.
Knappton contends this constitutes a compensable taking of private property under the fifth amendment. The State’s claimed loss is predicated on an anticipated decrease in rental value of its aquatic lands.
II. PROCEEDINGS
The United States filed its Complaint in December 1974. The State and Knappton filed Notices of Appearance in January 1975. The United States moved for partial summary judgment in July 1976, but limited its motion to Knappton's claim. Both Knappton and the State filed memoranda in opposition to the motion. The United States then filed a supplemental memorandum in support of partial summary judgment and again addressed its argument only to Knappton’s claim for compensation for injury to the physical structures.
In a Memorandum and Order filed November 19, 1976, the district court granted partial summary judgment, ruling that the United States had established, as a matter of law, that the Second Powerhouse Project served a navigational purpose, and therefore no compensation was due. The court excluded from its ruling the State’s claim for compensation:
“The court would emphasize that the decision reached here is limited to the facts of this case. The collateral issue raised by the State of Washington, in a case not part of this motion and relating to the river bottom, has not been considered.” (R. 165)
The Order also specified that the court would certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), “should either party so desire.”
Knappton moved the court for certification, and the court entered an order certifying this appeal (R. 167). Knappton then filed a Notice of Appeal and a Cost Bond on Appeal (R. 168-69). The State did not file a notice of appeal or a cost bond, nor did it join in Knappton’s motion for certification.
Both Knappton and the State petitioned this court for leave to file an interlocutory appeal. Neither Petition clearly explains the procedural background of the State’s attempt to appeal. A motions panel of this court granted both Knappton and the State leave to appeal. All parties then submitted briefs and participated in oral argument.
III. APPEAL OF THE STATE OF WASHINGTON
Although a motions panel did grant the State’s Petition, we are free to reconsider its standing on appeal. United States v. Emens, 565 F.2d 1142, 1144 n.2 (CA 9 1977); see United States v. Patrick, 532 F.2d 142, 147 (CA 9 1976).
The State argues that the district court’s ruling that the Bonneville Second Powerhouse Project has a navigational purpose will effectively control the outcome of its claim for compensation. Therefore, the State concludes, it is a proper party to this interlocutory appeal. The district judge apparently disagreed: he specifically reserved for separate consideration the effect of the navigational servitude on the State’s claim. Although the State’s argument is logical, it is premised on the belief that the district court’s ruling and this appeal will establish the navigational servitude as the law of the case.
For reasons discussed infra, we do not reach the navigational servitude issue in considering the appeal of Knappton. We decide Knappton’s appeal on another ground. Thus, the State and Knappton (with respect to other claims for compensation) will be unaffected by this appeal, and they may further develop a factual record and address further arguments to the district court should the United States again assert the navigational servitude as a bar to just compensation.
The appeal of the State of Washington is dismissed. See Libby, McNeill, and Libby v. City National Bank, 592 F.2d 504, slip op. 3918 at 3926, # 75-3218 (CA 9, Nov. 28, 1978) (“A party may appeal only to protect its own interests, and not those of a coparty.”) Insofar as its briefs are pertinent to the issues raised by Knappton, we treat the State as amicus curiae.
IV. THE APPEAL OF KNAPPTON TOWBOAT CO.
Section 10 of the Rivers and Harbors Act, 33 U.S.C. § 403, expressly forbids the construction of any structure in navigable waters unless authorized by the Secretary of the Army. The United States alleges that the structures built by Knappton were authorized by permits that are revocable at will and therefore Knappton has no property interest cognizable under the fifth amendment.
Knappton points out that the permits are not included in the record. Copies are included in the record, and Knappton has never alleged that permits were not obtained or that the copies inaccurately or incompletely state the attendant conditions. In fact, Knappton’s Memorandum in Response to plaintiff’s Motion for Summary Judgment (R. 38) implicitly admits that permits were obtained. Even in its briefs to this court, Knappton has not denied that permits were obtained. Despite the asserted deficiency in the record, Knappton’s attempt to raise this phantom issue of fact comes too late.
Moreover, if no permits had been obtained, the structures would be unlawful, and their removal would not require compensation.
In the alternative, Knappton contends that issuance of the permits cannot be conditioned on waiver of its fifth amendment right to compensation for damages to the structures. There are two variants to Knappton’s contention, one directed to each of the two pertinent permit clauses (see n.4, supra).
A.
The first variant is that the permits grant Knappton a property right for which it must be compensated, unless the navigational servitude applies. Cf. Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974) (six justices held procedural due process criteria applicable in determining whether good cause existed for termination of federal employee). This misconstrues the effect of the permit: the permit granted Knappton a mere license to build and maintain these structures.
The permits expressly negate the conclusion that the permit holder received any property right. (E. g., “[T]his instrument does not convey any property rights either in real estate or material.” R. 84.) In United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 33 S.Ct. 667, 57 L.Ed. 1063 (1913), the power company had built similar structures pursuant to a revocable permit. The Court denied any compensation to the power company:
“That it did not [by reason of the permit] acquire any right to maintain these constructions in the river [any] longer than the government should continue the license needs no argument.” 229 U.S. at 68, 33 S.Ct. at 674.
This court has held that comparable permits issued for maintaining outdoor signs along the nation’s highways do not require compensation when revoked. In Ryan Outdoor Advertising, Inc. v. United States, 559 F.2d 554 (CA 9 1977), the panel concluded that once the permits were revoked, there was no longer any interest to be compensated. We find no reason to distinguish these cases.
Although these permits were not revoked, we agree with the district court that the effect was identical:
“The direct language of the permit itself is evidence that [Knappton] knew the government could require removal . . . and that it was acquiring no property interest. It would be an anomaly to argue that the government can require the removal of structures within the river without payment of compensation, yet damage done to the same structures by the exercise of the same inherent rights must be compensated.” R. 164-65.
Cf. United States v. Fuller, 409 U.S. 488, 93 S.Ct. 801, 35 L.Ed.2d 16 (1973) (revocable grazing permits could not be considered in determining value of ranch land though permits had not been revoked). This court has impliedly recognized this fact. In a condemnation action, this court rejected evidence of the land’s value as a port site even though permits had been obtained and may have actually been used, and never revoked, to construct improvements on a navigable river. United States v. 87.30 Acres of Land, 430 F.2d 1130 (CA 9 1970). The permits were revocable at will. We agree with their conclusion:
“This type of permit is not such a vested property right as, on termination, requires payment of just compensation under the Fifth Amendment.” 430 F.2d at 1133.
Even if Knappton’s conclusion that the permits are conditioned on waiver of its right to compensation is correct, the Supreme Court’s analysis in United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), indicates the condition is constitutional. The Court upheld the validity of a condition in a dam license that allowed the United States to acquire the dam in the future for less than fair market value. The Court also stated that the licensee could be required to convey existing riparian rights to the United States at a reduced price in order to secure the right to build a dam, even though payment of full value would be required for these same rights if the government built the dam itself.
B.
Knappton next contends that the exculpatory clause for damages caused by future government operations is invalid.
This court has implicitly rejected the same argument in Pacific Northwest Bell Telephone Co. v. United States, 549 F.2d 1313 (CA 9), cert. denied, 434 U.S. 820, 98 S.Ct. 62, 54 L.Ed.2d 76 (1977) (hereinafter Bell). In that case, the permittee contended the condition conflicted with the waiver of sovereign immunity contained in the Public Vessels Act and the Suits in Admiralty Act. Although the argument here is couched in constitutional and public policy terms, the court’s reasoning is nonetheless applicable.
In Bell, the telephone company had been granted a permit to lay a cable underneath Lake Washington. The permit exculpated the United States from liability for damages that might be caused to the cable by future government operations. While setting buoys for a regatta, a Coast Guard vessel fouled the cable. The telephone company sued the United States for damages; the theory of liability was negligence.
The court upheld the validity of the exculpatory clause. The telephone company had asserted that the condition violated the policy embodied in the statutes waiving sovereign immunity by unfairly favoring the United States solely because of its sovereignty. The court responded:
“This does not serve to place the United States in a position more favorable than that which a private person would occupy . . .. The private person hypothesized in these circumstances is the owner of land from whom an easement is sought by one having no power to compel a grant or demand passage. The question is whether such a private person, in his power to attach conditions to an easement he was not otherwise obliged to grant, is less favored in the law than the United States is here held to be. We do not perceive that he is.
“Finally, we note that holding clause (g) to be unenforceable would do more than relieve Bell of a condition it regards as improper. It would, in effect, operate to render persons incompetent to secure desired benefits by way of contract, since they could no longer effectively commit themselves to conditions they may be entirely willing to assume in order to obtain their permit.”
549 F.2d at 1317.
The State of California argues that the court’s analogy is inapposite because the conditions, in both instances, were imposed, not bargained for at arm’s length. This argument, however, denies the United States the power to place reasonable conditions on private use of public waterways in the same manner as private persons may condition use of their real or personal property. Actually, the government is more constrained. Unlike a private individual, government actions must reasonably further a valid public purpose. See United States v. River Rouge Improvement Co., 269 U.S. 411, 46 S.Ct. 144, 70 L.Ed. 339 (1926); Scranton v. Wheeler, 179 U.S. 141, 21 S.Ct. 48, 45 L.Ed. 126 (1900). An individual property owner may refuse to grant an easement or license as he pleases or condition the grant on any lawful grounds.
In Boston Edison Co. v. Great Lakes Dredge & Dock Co., 423 F.2d 891 (CA 1 1970), the permittee argued that the exculpatory clause violated public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso holds that a tugboat company cannot contractually insulate itself from liability for damages caused by its own negligence when towing another vessel. The court in Boston Edison distinguished Bisso :
“Finally, Edison argues that Clause (g) should be struck down as violative of public policy, relying primarily on Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). Bisso, however, enunciates a rule of contract law and arises in a context in which the Supreme Court ruled, in substance, that where two parties to a contract are of unequal bargaining power it is against public policy for the stronger of the two parties to force the weaker to accept a clause exculpating the stronger from liability for its own negligence.
“The instant situation is totally distinguishable from Bisso in that Clause (g) does not appear in a contract. The permit in question was neither negotiated for nor sold, but was issued by the Secretary of the Army acting under discretionary authority clearly conferred on him by 33 U.S.C. sec. 1 et seq. If the insertion of such a clause under authority given to the Secretary be now thought to be against public policy, the entity enunciating that a policy clearly contained in a statutory grant of power to the Secretary is no longer held in favor should be the Congress and not this court.”
423 F.2d at 897. We also note that absent here is the special relationship between a tow for hire and a helpless vessel that the court expressly relied on in Bisso. 9 349 U.S. at 91, 75 S.Ct. 629. Compare The Steamer Syracuse, 79 U.S. (12 Wall.) 167, 20 L.Ed. 382 (1870) with Sun Oil Co. v. Dalzell Towing Co., Inc., 287 U.S. 291, 53 S.Ct. 135, 77 L.Ed. 311 (1932).
We find the panel’s analogy in Bell apposite and follow its reasoning. We hold that “[t]he effect of the condition here imposed is simply to place upon the permittee the risk of damage to the permitted structure.” Id. at 1316. Irrespective of the condition’s validity in a contract setting, it is valid when the United States is discharging its “special duties and responsibilities” over navigable waters.
The State of California also asserts that Bell should be distinguished because Bell relies on the fact that the Coast Guard was serving a navigational purpose. We disagree. The opinion expressly disavows reliance on the United States’ navigational servitude. 549 F.2d at 1317 n.5. Both the permit here and the one in Bell conditioned the license on the permittee assuming the risk of damage caused by government actions in the public interest.
Finally, the State of California invites us to distinguish Bell on the ground that Bell involved a tort action whereas here the government action involves an alleged taking of private property without compensation. We decline. In Bell, the damage was caused by the government’s negligence; by definition, then, the damage was not necessary to further the public interest. Here, the damage was an unavoidable consequence of a project undertaken to further the public good. The policy supporting insulating the government from liability is therefore much stronger in the case at bar.
Finally, we emphasize that, although the district court relied primarily on the navigational servitude, our decision is in keeping with its conclusion regarding the effect of the permits. The question whether this project serves a navigational purpose may be considered by the district court when ruling on the State’s claim for compensation. This, again, is in keeping with the district court’s initial ruling.
The appeal of the State of Washington is DISMISSED. The judgment is AFFIRMED, and the case is REMANDED for further proceedings.
. For purposes of this appeal, we assume the alleged damage could, in other circumstances, constitute a taking of private property. Thus we do not decide whether the anticipated rise in pool level and consequent weakening of these structures is a sufficient encroachment on private property to constitute a “taking” under the fifth amendment. Similarly, we do not decide whether diminution in rental value can constitute a “taking.” Cf. Gibson v. United States, 166 U.S. 269, 275-76, 17 S.Ct. 578, 41 L.Ed. 996 (1897) (alternative ground); Brothers v. United States, - F.2d -, slip op. 459, # 77-3044 (C.A.9, Feb. 8, 1979) (“there is a taking of property when government action directly interferes with or substantially disturbs the owner’s use and enjoyment of the property.”)
. F.R.A.P. Rule 5, 28 U.S.C.A., provides:
“Appeals by Permission Under 28 U.S.C. § 1292(b)
(d) If permission to appeal is granted the appellant shall file a bond for costs .
A notice of appeal need not be filed.
. Ҥ 403. Obstruction of navigable waters generally; wharves; piers, etc.; excavations and filling in
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, road-stead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.”
33 U.S.C. § 403.
. “[Tjhis permit may be revoked by authority of the Secretary of the Army ... if the Secretary determines that, under the existing circumstances, such action is required in the public interest.” Copy of Permit, R. 84.
The permits also contained an exculpatory clause:
“(j) [T]he United States shall in no way be liable for any damage to any structure or work authorized herein which may be caused by or result from future operations undertaken by the Government in the public interest.” Copy of Permit, R. 85.
Although Knappton contends the present project does not serve a navigational purpose, it does not contend that the project fails to serve a legitimate public interest. Knappton does contend that the Secretary has expanded his authority by changing the wording of these conditions. We have examined the wording in all the permits submitted to the court, including the ones attached to Knappton’s petition for leave to file this appeal and in the regulations promulgated by the Secretary of the Army. In light of the facts and issues raised in this appeal, the variations in wording are immaterial. In each, the government’s power to revoke and its exculpation from liability are clearly stated. See n.6, infra.
. This case also puts to rest Knappton’s contention that conditions unrelated to navigation are invalid per se. See also Zabel v. Tabb, 430 F.2d 199 (CA 5 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed.2d 808 (1971) (Secretary must consider effects other than navigation and may refuse a permit under the Rivers and Harbor Act on conservation grounds). And Knappton’s assertion that the Secretary exceeded his authority in imposing these conditions is unsupported by case law. See id. at 207.
. The condition reviewed in Bell was differently worded, but essentially the same as the condition in the permits issued to Knappton:
“That the United States shall in no case be liable for any damage or injury to the structure or work herein authorized which may be caused by or result from future operations undertaken by the Government for the conservation or improvement of navigation, or for other purposes, and no claim or right to compensation shall accrue from any such damage.”
549 F.2d at 1315. Compare 33 C.F.R. § 209.-130(c)(2)(vii) (1974) with 38 Fed.Reg. 12217 (1973) and 33 C.F.R. § 209.120(g) (1976).
. We granted the State of California leave to file a brief as amicus curiae.
. Any special relationship that exists between the United States and potential users of the nation’s waterways is assured by the requirement that the United States must always act reasonably and in the public interest.
. The district judge in Bell had found that the Coast Guard was negligent per se. 549 F.2d at 1316.
. In Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955), the court grounded its decision on the need:
"(I) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.” (footnote omitted) 349 U.S. at 91, 75 S.Ct. at 632, 633.
Upholding the validity of the instant clause under these facts jeopardizes neither of these policies. As noted in the text, negligence is not involved. There can be no overreaching in bargaining when, as here, the government grants a gratuitous license.
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_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.
UNITED STATES of America, Plaintiff-Appellee, v. Albert Lonzo CANTRELL, Defendant-Appellant.
No. 78-1750.
United States Court of Appeals, Tenth Circuit.
Argued Sept. 13, 1979.
Decided Jan. 7, 1980.
Bruce C. Houdek of James, Odegard, Mil-lert & Houdek, Kansas City, Mo., for defendant-appellant.
John Oliver Martin, Asst. U. S. Atty. (with James P. Buchele, U. S. Atty., Topeka, Kan., on brief), Kansas City, Kan., for plaintiff-appellee.
Before McWILLIAMS, BARRETT and McKAY, Circuit Judges.
McKAY, Circuit Judge.
This case involves two loads of firearms sold to a government “sting” operation. Cantrell and a cohort were indicted under 18 U.S.C. § 922(i) for transporting each of the loads from Missouri to Kansas on September 19 and 20, 1977. Cantrell, a previously convicted felon, was also indicted under 18 U.S.C. § 922(h) for “receiving” the same firearms in Kansas on the same dates. He was convicted and sentenced to consecutive terms of imprisonment for the four counts. The government’s apparent theory and actual proof was that the defendants stole the weapons in Missouri and transported them to Kansas for sale to the sting operation. Cantrell challenged the obvious inconsistency between the indictments for transportation from Missouri into Kansas and receipt of those same weapons in Kansas. There is no doubt that the government’s proof supports its theory that the guns were stolen by the defendants in Missouri and transported into Kansas. The problem arises from the government attempt to sustain the convictions and sentences for receiving the guns in Kansas.
In order retroactively to support these apparently inconsistent convictions, the government imaginatively refashions the English language. It suggests that “receipt” is a continuous act under 18 U.S.C. § 922(h) and that Cantrell therefore “received” the weapons at all times that he possessed them — from Missouri to Kansas. To bolster its contention that receipt and possession are synonymous the government quotes from one of the congressional committee reports for the Federal Gun Control Act of 1968. As quoted by the government, the passage reads:
The principal purposes of title IV [of which 18 U.S.C. § 922(h) is a part] are to aid in making it possible to keep firearms out of the hands of those not legally entitled to possess them because of age, criminal background or incompetency . . . . S.Rep.No. 1097, 90th Cong., 2nd Sess., reprinted in [1968] U.S.Code Cong. & Admin.News, pp. 2112, 2113.
Brief for Appellee at 12 (emphasis added by appellee). Rather than accepting a common sense interpretation of this passage — that by making particular acts like “receipt” criminal, Congress intended to deter the ultimate act, possession — the government contends in effect that ultimate statutory purpose should blur precise statutory language: “Clearly, § 922(h) was not designed to discourage the momentary offense of receiving, but rather the continuing offense of receiving or of possession.” Brief for Appellee at 12. Taken one step further, the government’s argument would in effect lead to the absurd conclusion that §§ 922(h) and 922(i), because of their common purpose, are indistinguishable. Under this analysis, we would be left with a double conviction for the same “continuing offense of receiving or of possession,” a result we could not countenance.
In another attempt to sustain its position, the government argues that the jury could have found that Cantrell “re-received” the weapons in Kansas after having transported them there. Since the weapons remained in the trunk of the co-defendant’s car and the co-defendant picked up Cantrell on the way to the sting operation, the government suggests that Cantrell “temporarily lost possession” and later regained it. Brief for Appellee at 9-10. We believe that no jury would formulate such a bizarre theory and, as a matter of law, no jury should be permitted to attach such a meaning to “receipt.” Under neither common sense nor the law do we “receive” our possessions anew each time we come upon them.
The government suggests a final theory to salvage the apparently inconsistent counts of the indictment. It argues that evidence of receipt in Missouri satisfies the indictment for receipt in Kansas and that this case involves a mere harmless variance between indictment and proof. If Cantrell had been charged with receipt only, the variance in the place of the offense would perhaps have been harmless. See United States v. Frazier, 545 F.2d 71 (8th Cir. 1976), cert. denied, 429 U.S. 1078, 97 S.Ct. 823, 50 L.Ed.2d 798 (1977). However, when a defendant is charged with apparently inconsistent counts in a single indictment and the government removes the inconsistency only at trial, if at all, we cannot say that the defendant “could . . . have anticipated what the evidence would be at trial.” Brief for Appellee at 10, citing United States v. Freeman, 514 F.2d 1184 (10th Cir. 1975). The government has succeeded in sustaining consecutive sentences for unlawful transportation. We cannot say that the unfairness involved in the substantial variance between the indictment on the one hand and the government’s theory on the other hand is sufficiently harmless to sustain the addition of two more lengthy terms in sequence.
The conviction is affirmed as to counts one and three (interstate transportation) and reversed as to counts two and four (receipt).
. Section 922(i) reads: “It shall be unlawful for any person to transport or ship in interstate or foreign commerce, any stolen firearm or stolen ammunition, knowing or having reasonable cause to believe that the firearm or ammunition was stolen.”
. In pertinent part, § 922(h) reads: “It shall be unlawful for any person . . who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
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_fedlaw | 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 interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
SITTERDING v. COMMISSIONER OF INTERNAL REVENUE (three cases).
Nos. 3961-3963.
Circuit Court of Appeals, Fourth Circuit.
Jan. 6, 1936.
Frank J. Albus, of Washington, D. C., for petitioner.
L. W. Post, Sp. Asst, to the Atty. Gen. (Frank J. Wideman, Asst. Atty. Gen., and Sewall Rey, Sp. Asst, to the Atty. Gen., on the brief), for respondent.
Before NORTHCOTT and SOPER, Circuit Judges, and CHESNUT, District Judge.
NORTHCOTT, Circuit Judge.
These are petitions for review of decisions of the United States Board of Tax Appeals, involving income taxes of the petitioners for the year 1929. The decision of the board was entered May 4, 1935. The three cases were consolidated and it was stipulated that the decision in one case would control the other two cases.
The Board of Tax Appeals filed no separate findings of fact, but the material facts are stated in the decision of the board and the petition here discussed will be that of Agnes Sitterding in case No. 3961.
The petitioner is an individual residing at Richmond, Va. Her father, Fritz Sitterding, died testate April 14, 1928, and two of his sons and the Virginia Trust Company qualified as executors of the estate in April, 1928. The inventory of the estate filed by the executors valued the assets of the estate at approximately $3,000,000. The will of the deceased directed his executors to set aside and hold in trust $300,000, the income from this trust to be divided quarterly among his three children. The balance of the estate was also to be equally divided among his three children. At the time of the decision of the Board of Tax Appeals the estate was still in the process of administration.
During the year 1929 the executors and trustees made three distributions to the beneficiaries as follows:
Agnes William H. Fred B. Date Sitterding Sitterding Sitterding
Jan. 30, 1929 $7,242.59 $7,242.59 ' $7,242.58
July 30, 1929 3,746.84 3,746.84 3,748.84
Oct. 30, 1029 5,451.45 5,451.45 ‘ 5,451.45
Total “ 16,440.88 16,440.88 16,440.87
The record kept by the executors for the estate contained an account entitled “Income Account” and an account entitled “Principal Account.” The above distributions were charged to and entered in such income account on the above dates and in the above amounts, with an explanation as follows:
Income
Miss Agnes Sitterding......:...... 1/3
W. H. Sitterding.......*........... 1/3
To a/c (or “acc’t”) Fred B. Sitterding ......................... 1/3
Such distributions exhausted the funds as reflected in the credit balance in the income account at the respective dates of distribution.
During the calendar year 1929 the estate had a gross income of $96,998.84, and in March of that year the executors paid a federal estate tax in the amount of $34,555.56, and in April of the same year paid state inheritance tax in the amount of $138,582.41, both of which payments were charged, on the books kept by the executors, to the principal account. The Virginia Trust Company advanced the executors the money to make these federal and state tax payments to the extent that they did not have the money on hand with which to make them.
The respondent increased the reported net income of the petitioner, for the year 1929, by adding thereto the amount of $16,440.88 as representing total distributions from the estate including the amount received from the trust fund and, upon review by the Board of Tax Appeals, the respondent’s action was sustained and this petition for review was filed. Petitioner agrees that the amount received from the trust fund, $1;781.25, should be added to the reported income.
The sole question here involved is whether the board was correct in sustaining the action of the Commissioner in adding $14,659.63 to petitioner’s 1929 income as a distribution of income received from her father’s estate, or whether such amount was distributed from corpus, as contended by petitioner.
The statutes involved are sections 22 (b) (3), section 23 (c) and section 162 (b, c) of the Revenue Act of 1928 (26 U.S.C.A. §§ 22 and note, 23 note, 162 and note) and Treasury Regulations 74, arts. 83, 154, 862, and 863.
It is first urged on behalf of the respondent that the record, as prepared for this court, contains no statement of evidence whatsoever, and that the board’s findings of fact are not here reviewable to determine whether they are supported by substantial evidence. Commissioner v. Continental Screen Company (C.C.A.) 58 F.(2d) 625; Evergreen Cemetery Ass’n v. Burnet, 59 App.D.C. 397, 45 F.(2d) 667. While this is undoubtedly the correct rule of law, there are incorporated - in the decision of the board findings of ultimate facts and it is not necessary to quote authorities to the effect that we can review the action of the board in applying the law to the facts so found.
It is uniformly held that “under the revenue acts taxable income is computed for annual periods.” That the revenue acts uniformly assess the tax on the basis of annual returns is unquestioned. Burnet v. Sanford & Brooks Co., 282 U.S. 359, 51 S.Ct. 150, 75 L.Ed. 383; Burnet v. Thompson Oil & Gas Co., 283 U.S. 301, 51 S.Ct. 418, 75 L.Ed. 1049.
The year involved is the year 1929 and in that year the estate did not collect total income enough to pay the state and federal taxes properly chargeable to it. It follows that there was no income to be distributed for that year and therefore no income to be taxed either to the estate or to the heirs. The federal and state taxes paid are a proper deduction from the gross income of the estate (Revenue Act 1928, § 23 [26 U.S.C.A. § 23 and note]), and more than covered the entire income collected. The action of the Commissioner and of the Board of Tax Appeals seems to be based largely upon the fact that the distribution made to the taxpayer was from an income account kept by the executors and while it is true that book entries are evidential (Doyle v. Mitchell Brothers Company, 247 U.S. 179, 38 S.Ct. 467, 62 L.Ed. 1054), the authorities are clear that such entries are no more than evidential and the decision must rest upon the actual facts, especially, where these facts are not in dispute. Doyle v. Mitchell Brothers Company, supra.
Where there is no question of bad faith with regard to the bookkeeping entries, the rights of the parties can neither be established nor impaired by the ■bookkeeping methods employed. Mere bookkeeping entries cannot preclude the government from collecting its revenues, nor are such entries conclusive upon the taxpayer. The bookkeeping creates nothing, and the question must be decided according to proven and established facts. Douglas v. Edwards (C.C.A.) 298 F. 229; Mitchell Brothers Company v. Doyle (D.C.) 225 F. 437.
The matter must be considered in the light of the applicable probate and administration law. By this law the duty of the executors was to receive the principal of the estate, to inventory it, to ascertain the debts to be paid, including all taxes, and after paying all creditors and taxes and expenses of administration, to strike a balance from which should be paid specific or particular legacies, trust funds should be set up as required by the will, and final balance should be distributed to the residuary legatees, of whom the taxpayer was one. As this was not done during the year 1929, there is certainly nothing to show that the comparatively small sums distributed to the taxpayer during that year were in excess of her principal interest as residuary legatee in the estate. It is not shown by the record what the total charges against the estate were, including debts to be paid. The estate has not been fully administered. It is not possible, therefore, to say that the distribution to the taxpayer was income and not merely an advance on account of the corpus. It is still undetermined what amount of corpus the residuary legatee will receive from the estate.
In dealing with the law of the case, we must also consider the federal taxing statutes. The Virginia probate and administration law is typical of what is generally the law in the different states of the United States. It is reasonable to assume that Congress, in providing for the payment of income tax by estates, had this general situation in mind. Congress has definitely provided for the taxation of income of estates in the course of administration whether the decedent died testate or intestate. Particular provisions are made with regard to the taxation on the income of an estate where it is held in trust. In such a case it is specifically provided that the income actually paid or accumulated for payment to the beneficiary shall be allowed as a deduction from income of the estate but shall be taxable as income to the individual beneficiary.
With regard to the income of estates not specifically held in trust, it is provided that the taxes, including those paid by the executors in this case in 1929, are deductible from income.
The effect of this legislation as a whole seems to be that Congress realized that for a certain period after the death of a decedent the corpus of his estate would be held by the executors before actual distribution and that while so held and therefore before distribution to the beneficiaries under the will or by the intestate law, there would be income of the estate received by the executors or administrators. And such income after* certain deductions provided for by law is taxable to the executors and administrators. The income of this estate, therefore, during 1929 and before its distribution to the legatees, was taxable to the executors and not to the beneficiaries, except to the extent that they received income on principal disbursements.
While the record does not expressly and affirmatively so show, yet it is necessarily inferable from the facts stated, that the executors in this case were not taxable on the income of the estate because the credits against the income on account of the taxes paid greatly exceeded the total gross income. Nevertheless the apparent purpose of the Commissioner in this case is to tax some portion of this net income of the estate to the taxpayer. Or, in other words, there is here an attempt to collect income taxes which are not payable by anybody.
The decision of the Board of Tax Appeals is accordingly reversed.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appbus | 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 "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.
HARTFORD-EMPIRE CO. v. SWINDELL BROS., Inc., (AMSLER-MORTON CO., Intervener).
No. 4273.
Circuit Court of Appeals, Fourth Circuit.
Oct. 4, 1938.
For prior opinion, see 96 F.2d 227.
Sidney F. Parham, of Hartford, Conn. (Edwin F. Samuels, of Baltimore, Md., William J. Belknap, of Detroit, Mich., and Robson D. Brown and- Lloyd G. Bates, both of Hartford, Conn., on the brief), for appellant.
Lawrence C. Kingsland, of St. Louis, ^a’,a“d 13. Jaspert’ of -,PlttS3 burSh> Pa- (Cook & Markell and Edward A. Smith, all of Baltimore, Md., on the brief), for appellees.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
PARKER, Circuit Judge.
A careful consideration of the briefs and oral arguments on rehearing lead to no change in the conclusions of the Court as embodied in its opinion filed April 21, 1938. 96 F.2d 227. One statement of fact should be modified. This modification relates to the statement that the defendants’ expert corrected his testimony as to the top of the tunnel of defendants’ lehr being hotter than the bottom. At page 231. The correction made by the witness related to testimony as to the relative temperatures of the top and bottom of lehr of the reissue patent, not the lehr of defendants. We are satisfied, however, that, as a matter of fact, the tunnel ot defendants’ lehr, as well as of that of plaintiff, has a hotter bottom than top throughout the entire annealing range, When the firebox above the entrance to the tunnel is heated, the heat is maintained at a temperature 300 degrees lower than that of the bottom flue. The top firebox extends for only a very short distance, and beyond this there is no heat whatever above the tunnel, whereas the temperature of the bottom flue is very high. In this situation, it seems to us inevitable that vertical convection currents should be'produced and the lehr of defendants operate on the same principle as that of plaintiff. .
Defendants earnestly contend on rehearing that the function of the dampered cold air inlets of the reissue patent is to cool the flue beyond the annealing range and that the function of the dampered hot air outlets of defendants’ lehr is to contr.ol the heat gradient within the annealing range. From this it is argued that the function of the inlets and outlets in the two cases is entirely different and that there is consequently no basis for a finding of equivalency. We are satisfied from the evidence, however, that the inlets of the reissue patent are used for controlling the heat gradient within the annealing range as well as for cooling the flue beyond that range. And irrespective of this, we think there is ample basis for the finding of equivalency. The gist of the patent is the application of heat to the bottom only of the heatless unit lehr of the prior art. One o'f the problems of the combination was to control the heat of the flue so that it would be reduced in the second annealing stage and nullified in the cooling stage. This was solved in the patent by admitting cool air to the flue through dampered inlets. The accused lehr uses the “unit” lehr of the prior art in combination with the lower heating flue, just as does the lehr of the patent. Heated air is drawn through this lower flue by suction, just as in the lehr of the patent. The only difference is that in the accused lehr the héating flue ends where the cooling stage begins so that the bottom of the tunnel comes directly in contact with the outside atmosphere, and that for controlling the heat gradient within the annealing zone dampered outlets for the heated air are provided so that, by opening those near the entrance end of the tunnel and closing those near the cooling end, a portion of the hot a-ir will be drawn off near the entrance end and will not exert its influence in the second anneal-ing stage. While there is thus a slight change of form in the apparatus used, the same result, i. e. the cooling of the tun-nel, is accomplished in substantially the same way, i. e. by reducing the heat of the heating flue in the annealing stage and hy letting cool air come in contact with the bottom of the tunnel in the cool-ing stage. The fact that, in the anneal-ing stage, .the cooling of the flue is ac-complished in the one case by admitting cool air and in the other by drawing out heated air, and that, in the cooling stage, the cooling is accomplished in the one case by drawing cool air into the heating flue and in the other by ending the flue altogether, is not sufficient to avoid in-fringement on the part of one who has appropriated the real gist of the invention,
Another point zealously stressed on rehearing is that vertical convection cur-rents are not employed in the annealing zcme of the lehr of the reissue patent and n°t at all in the accused lehr. The theory of vertical convection currents is the one upon which the success of the lehr of the reissue patent is explained; but neither the success of the lehr nor the validity of the patent is dependent upon the correctness that theory. The patent was granted for the combination of elements described in our former opinion, not for the theory of operation which it_ was supposed to embody. It was infringed when a lehr was built involving substantially the same combination, whether the^ theory advanced to account for its actaon correct or not. As said by Mr. Justice McKenna in the case of Diamond Rubber Co. v. Consolidated Tire Co., 220 428, 435, 31 S.Ct. 444, 447, 55 L.Ed. 527:
“A patentee may be baldly empirical, seeing nothing beyond his experiments and the result; yet if he has added a new and valuable article to the world’s utilities, he is entitled to the rank and protection of an inventor. And how can it take from his merit that he may not know all of the forces which he has brought into operation? It is certainly not necessary that he understand or be able to state the scientific principles under-lying his invention, and it is immaterial whether he can stand a successful examination as to the speculative ideas in-volved. * * * He must, indeed, make such disclosure and description of his invention that it may be put into practice, In this he must be clear. He must not put forth a puzzle for invention or experiment to solve, but the description is sufficient if those skilled in the art can understand it. This satisfies the law, which only requires as a condition of its protection that the world be given something new and that the world be taught how to use it. It is no concern of the world whether the principle upon which the new construction acts be obvious or obscure, so that it inheres in the new construction.”
Nothing in the file wrapper of Ingle patent No. 1,764,791 can have any bearing upon the validity of the Ingle patent in suit; for the patent in suit was granted before application was made for the other. patent. Century Electric Co. v. Westinghouse Electric Co., 8 Cir., 191 F. 350, 352; Claude Neon Lights, Inc., v. Machlett & Son, 2 Cir., 27 F.2d 702, 707; Thomson-Houston Electric Co. v. Ohio Brass Co., 6 Cir., 80 F. 712, 727. Furthermore, as we were at pains to point out in our former opinion, there was no novelty in the drive used by the Ingle patent in ^ suit. The novelty consisted in the combination of the drive with the woven wire belt in such way as to make that type of belt usable for transporting ware ^ through the tunnel; and it is this combination, and not the mere drive, which the defendants are imitating.
Finally it is argued by defendants on rehearing that the success of the lehr of the reissue patent, to which we referred in our former opinion, was not as pronounced as there stated and that, at any event, it was attributable to the “unit” lehr construction, old in the art. The “unit” lehr of the prior art, however, was a failure precisely because no method had been devised for heatinsr it effectivelv It "Jo n ly In con.K„.,i"n with teS ing device of the patent that it came to have any practical value. Nothing can obscure the fact that the result of the invention embodied in plaintiff’s structure has been to revolutionize the art with respect to annealing the type of glassware produced by automatic forming machines; and it is the lehr of this invention which defendants are manufacturing, not the old unit lehr of the prior art which had failed.
For the reasons set forth in our former opinion, to which should be added what is herein contained, we are of opinion that the decree appealed from should be affirmed in so far as it relates to Mulholland patent No. 1,840,463 and reversed as to Mulholland reissue patent No. 17, 263 and Ingle patent No. 1,583,046, and that the cause should be remanded for further proceedings.
Affirmed in part, reversed in part 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_confess | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by 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".
STEEL VALLEY AUTHORITY, Appellant, v. UNION SWITCH AND SIGNAL DIVISION, American Standard, Inc., Westinghouse Air Brake Division, American Standard, Inc.; Radice Corporation; F. Emmett Meyer, Jr.; Louis D. Kopsa Radice-East Hills, Inc., Appellees.
No. 86-3402.
United States Court of Appeals, Third Circuit.
Argued Nov. 7, 1986.
Decided Jan. 20, 1987.
Rehearing and Rehearing In Banc Denied Feb. 11, 1987.
Joseph S. Hornack (argued), Edward Jaffee Abes & Associates, P.C., Pittsburgh, Pa., for appellant.
Robert W. Hartland (argued), Reed, Smith, Shaw and McClay, Pittsburgh, Pa., for appellees — American Standard, Inc., Louis D. Kopsa and F. Emmett Meyer, Jr.
Robert W. Murdoch (argued), Vincent J. Grogan, Grogan, Graffam, McGinley & Lucchino, P.C., Pittsburgh, Pa., for appellee — Radice-East Hills, Inc.
Before SLOVITER, STAPLETON and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
The Steel Valley Authority (Steel Valley) has appealed from an order of the district court dismissing Steel Valley’s complaint against various named defendants for failure to state a cause of action. We do not reach the question of whether Steel Valley stated a viable cause of action because we have determined that the addition of an indispensable, nondiverse party defendant to Steel Valley’s action deprived the district ■ court of federal subject matter jurisdiction.
I.
The circumstances giving rise to this case, the migration of heavy industry from long-dependent Pennsylvania communities to new locations outside Pennsylvania, have become all too familiar in the industrial areas of that state. The players in this economic drama are by no means unique. The main defendant in this case is American Standard Corporation, the parent company of both Westinghouse Air Brake Division (WABCO), located in Wilmerding, Pennsylvania since 1889, and Union Switch and Signal Division, located in Swissvale, Pennsylvania since 1887. The plaintiff in this case is the Steel Valley Authority, an organization formed by nine Allegheny County municipalities for the purpose of, among other things, promoting industrial development projects, both new and existing.
The dispute between the parties developed after American Standard’s announcement in the latter part of 1985 that it would close down all of the Union Switch plant and most of the WABCO plant by the end of 1987. Not surprisingly, the decision was unpopular in the communities to be affected by the closings. Reaction was particularly bitter because of extensive community efforts over the past twenty years to keep the plants open.
In an effort to salvage the 2,000 jobs which would be lost as a result of this corporate migration, Steel Valley began to formulate a plan to acquire and operate the WABCO and Union Switch plants and properties as industrial development projects. Apparently, during this initial planning period, American Standard threatened the removal of various equipment and fixtures necessary to the successful operation of the plants.
Forced to take action to preserve the feasibility of its project, Steel Valley brought an action on March 24, 1986 in the Court of Common Pleas of Allegheny County, Pennsylvania against the Union Switch and Signal Division; Westinghouse Air Brake; Louis Kopsa and F. Emmett Meyer, Jr., both employees of the American Standard subsidiaries; and Radice Corporation, a Florida corporation. Steel Valley’s goal in the filing of this action was to preserve the plants in their operable form until it could formulate and implement a plan for the acquisition of the plants through an exercise of its eminent domain power.
In its complaint, Steel Valley alleged that American Standard’s removal of specialized machinery and equipment from the property constituted waste; it therefore sought an injunction prohibiting such waste of the property. Steel Valley argued that it was entitled to an injunction against waste of the property at issue because of its reversionary interest in the land arising out of its power of eminent domain. Steel Valley also alleged the need to preserve the status quo until it could formulate its plan of acquisition and development, asserting that its prospective taking would be mooted by the “destruction of the underlying res.” App. at 73a. It therefore sought, among other relief, an injunction against the destruction or razing of the buildings or fixtures forming part of the real estate. Affirmatively, it sought the protection and maintenance of the property until it could file a declaration of taking.
On March 25, 1986, American Standard filed a petition for removal in the District Court for the Western District of Pennsylvania alleging the jurisdictional ground of diversity. No hearing had yet been held in state court on the preliminary injunction sought by Steel Valley.
American Standard alleged in its petition for removal that the nondiverse individuals Meyer and Kopsa were “fraudulently and improperly joined” as defendants to Steel Valley’s action in an effort by Steel Valley to prevent removal of its case to federal court. App. at 25a. Moreover, American Standard asserted that Radice Corporation, a Florida corporation, which was a diverse defendant, was merely a “nominal party” to the action, because Steel Valley had alleged no wrongdoing by Radice, and thus had not stated any cause of action against Radice to support its claims of relief. Id.
The district court granted American Standard’s petition for removal on March 25, 1986, implicitly agreeing with American Standard’s assertion that Meyer and Kopsa were fraudulently joined and that Radice Corp. was a nominal party, and therefore need not be considered in satisfying diversity jurisdiction requirements.
Steel Valley filed an “Emergency” Motion to Remand on March 26, 1986. The following day, Steel Valley, claiming that it had been mistaken as to the identity of the record owner of the Union Switch property, amended its complaint as of right under Rule 15(a), substituting Radice-East Hills, Inc. (Radice-East), a Pennsylvania corporation, for Radice Corporation. Radice-East had been the record owner of the Union Switch site since November 4, 1985 when Radice Corporation, the original defendant, assigned its interest in the property to Radice-East. Steel Valley’s amended complaint asserted that Radice-East was the owner of the land and buildings occupied by Union Switch, and, among other relief specified, Steel Valley sought to enjoin Radice-East to maintain the property and buildings in their present condition.
Steel Valley argued at the district court hearing on the motion to remand that Rad-ice-East was an indispensable party to the action and therefore, because the addition of Radice-East, a Pennsylvania corporation, destroyed diversity, the motion to remand to the state court should have been granted. In an order filed April 11, 1986, the district court rejected this argument and denied the motion to remand, holding that Radice-East also had been fraudulently joined by Steel Valley because no colorable claim was asserted against it. App. at 130a.
After the denial of Steel Valley’s motion to remand, the defendants filed Rule 12(b)(6) motions to dismiss and Steel Valley sought a preliminary injunction prohibiting, among other things, American Standard’s removal of equipment from the property. The district court in an order dated June 17, 1986 dismissed Steel Valley’s complaint against Meyer, Kopsa, and Radice-East with prejudice. It dismissed the action against American Standard without prejudice, leaving open the option of another action if Steel Valley moved to condemn the property.
Steel Valley timely appealed from the final order of dismissal, raising before us the merits of the dismissal and the failure of subject matter jurisdiction. Our resolution of this appeal necessarily must focus on whether Radice-East was an indispensable party whose joinder would require a remand of the proceeding to state court. Although a district court’s determination of indispensability is subject only to review for abuse of discretion, see Haas v. Jefferson Nat’l Bank of Miami Beach, 442 F.2d 394, 395 (5th Cir.1971), where, as here, the district court did not make an explicit Rule 19 determination, we shall engage in an independent analysis of indispensability. See Walsh v. Centeio, 692 F.2d 1239, 1242 (9th Cir.1982).
II.
Section 1447(e) of Title 28 of the United States Code mandates that: “[i]f at any time before final judgment it appears that the case was removed [from state court] improvidently and without jurisdiction, the district court shall remand the case____” See Adorno Enter. v. Federated Dep’t Stores, 629 F.Supp. 1565 (D.R.I.1986) (accepting the plain meaning of the statute that jurisdiction must be monitored after removal). It is settled that the removal statutes are to be strictly construed against removal and all doubts should be resolved in favor of remand. Abels v. State Farm Fire & Casualty Co., 770 F.2d 26, 29 (3d Cir.1985).
Ruling on whether an action should be remanded to the state court from which it was removed, the district court must focus on the plaintiff’s complaint at the time the petition for removal was filed. Id. In so ruling the district court must assume as true all factual allegations of the complaint, Green v. Amerada Hess Corp., 707 F.2d 201, 205 (5th Cir.1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984), and while nominal or fraudulently joined parties may be disregarded, indispensable parties may not. Cf. supra note 2. It remains the defendant’s burden to show the existence and continuance of federal jurisdiction. Abels, 770 F.2d at 29; see also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3739. That burden continues through judgment if not beyond. Adorno Enter., 629 F.Supp. at 1567; cf. Rubin v. Buckman, 727 F.2d 71 (3d Cir.1984) (where plaintiff after trial claimed lack of diversity jurisdiction the district court was compelled to vacate the jury verdict in favor of the defendant and dismiss plaintiff’s complaint).
These principles have developed because the lack of subject matter jurisdiction voids any decree entered in a federal court and the continuation of litigation in a federal court without jurisdiction would be futile. Thus when a nondiverse party is added to a federal proceeding and that party's presence is indispensable to the furnishing of complete relief, remand is mandated where federal subject matter jurisdiction depends on diversity jurisdiction, even though removal was originally proper. Takeda v. Northwestern Nat’l Life Ins. Co., 765 F.2d 815, 819 (9th Cir.1985); Adorno Enter., 629 F.Supp. at 1573 (“It is beyond doubt that the emergence of an indispensable party, if nondiverse, should defeat subject matter (diversity) jurisdiction and require remand.”); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1269 (W.D.Pa.1982) (“The fact that plaintiff sought to add non-diverse parties following discovery does not [divest] this court of original jurisdiction and compel remand, unless they are indispensable parties.”); Lamar Haddox Contractor, Inc. v. Potashnick, 552 F.Supp. 11 (M.D.La.1982) (addition of non-diverse indispensable defendant required remand to state court); see also Field v. Volkswagenwerk AG, 626 F.2d 293, 297 (3d Cir.1980) (“Whether a party may be dropped depends upon whether the party is ‘indispensable’ to a just and meaningful litigation of the claims____”); 1A J. Moore & B. Ringle, Moore’s Federal Practice 110.161[2],
Applying these principles to Steel Valley’s complaint, Steel Valley argues that when it amended its complaint to add Rad-ice-East, a Pennsylvania corporation, the district court was divested of jurisdiction because Radice-East was an indispensable party.
III.
The outcome of this appeal thus hinges upon our resolution of Radice-East’s status as an indispensable party under Federal Rule of Civil Procedure 19. Indispensable parties, defined succinctly and clearly in the Supreme Court case of Shields v. Barrow, 58 U.S. (17 How.) 130, 15 L.Ed. 158 (1854), are “[p]ersons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.” Id. at 139. “Indispensable parties are persons who, in the circumstances of the case must be before the court,” 3A J. Moore, Moore’s Federal Practice 1Í 19.02, and “[w]hether a person is ‘indispensable,’ that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of the particular litigation.” Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 118, 88 S.Ct. 733, 742, 19 L.Ed.2d 936 (1968); see also Haas, 442 F.2d at 396-97, citing Shields, 58 U.S. (17 How.) at 139.
Of necessity, an indispensability analysis is fact-specific, guided by the legal analysis outlined in Rule 19 of the Federal Rules of Civil Procedure. Therefore, “[t]he question of whether a person not joined is an indispensable party is determined on a case-by-case basis by (1) appraising his interest, and then (2) considering the equitable principles described in Rule 19.” 3A J. Moore, supra, U 19.02 n. 9. Moreover, in an action which involves real property, as is the case here, consideration must be given to the type of legal interest asserted in the property and the type of relief demanded by the plaintiff. 3A J. Moore, supra, 1119.09[1].
A.
We turn first to an examination of Steel Valley’s amended complaint. Assuming as we must that the allegations in the complaint are true, B., Inc. v. Miller Brewing Co., 663 F.2d 545, 549 (5th Cir.1981), Rad-ice-East has been joined as the owner of the land and buildings where Union Switch is located and operates. The deed vesting title in Radice-East was made a part of Steel Valley’s amended complaint. App. at 76a-83a. Steel Valley claimed that the status quo of the plants had to be maintained to enable its plan of acquisition and development to proceed. It asserted that any taking would be mooted by “the destruction of the underlying res.” App. at 73a.
Steel Valley’s complaint therefore sought to enjoin all defendants, including RadiceEast, from, among other things, dismantling, demolishing, destroying, or razing the buildings, machinery, equipment or fixtures forming part of the real estate of Switch Signal. ...” App. at 74a. In addition, Steel Valley asked that the court require the defendants “to take reasonable measures to maintain and protect the condition of the property identified above until such time as the SVA [Steel Valley] can file its declaration of taking.” App. at 75a.
Steel Valley’s allegation of Rad-ice-East’s interest in the Union Switch property is not disputed. This allegation, which we take as true, requires us to discern whether the property interest RadiceEast holds as the owner of the Union Switch real estate would be affected if the relief requested by Steel Valley were to be granted. If Radice-East is determined to be an indispensable party then the district court abused its discretion in (1) finding that Radice-East was fraudulently joined and (2) failing to find that Radice-East was indispensable.
Because there is no question that RadiceEast is the owner of the land and the buildings, we direct our attention to the relief sought by Steel Valley. If Steel Valley’s injunction were to be granted, it is obvious that Radice-East would be restricted to maintaining the buildings and property in their present condition and would be prevented from demolishing or altering them in any effort to utilize the Union Switch property for other purposes.
American Standard and Radice-East argue on appeal, however, that any relief given to Steel Valley by the district court would not affect Radice-East’s interest in the property, because they claim that Rad-ice-East is not entitled to possession under the terms of its sales contract with American Standard until 1988. American Standard specifically argues in its brief that “... any planned development by RadiceEast clearly does not, and never did, represent a threat to the SVA.” Appellee American Standard’s Brief at 20. American Standard asserts that because Radice-East cannot develop the property until 1988, and no court would grant a temporary injunction which would extend until 1988, Steel Valley cannot complain about Radice-East Hill’s conduct relative to the property. Consequently, American Standard contends that Radice-East is not a “factually indispensable party.”
The record, however, does not contain the American Standard — Radice-East sales contract nor does the record disclose that Radice-East’s possessory interest in the property will not vest until 1988, although that argument was made to us orally and in American Standard’s brief. In this latter respect, the record is completely silent. Even assuming, however, that the postponement of possession by Radice-East was established by the record, which it is not, it would not alter our conclusion. Any injunction against dismantling, razing, or demolishing the Union Switch buildings obviously would have a direct impact on Rad-ice-East’s interest, even if its right to possession of the buildings was delayed. Moreover, even though we cannot evaluate, let alone adjudicate, the property rights of Radice-East and American Standard, if a material breach of the sales agreement were to occur, the possibility exists that Radice-East’s right of possession might accelerate.
We also recognize that the relief sought by Steel Valley is essentially the maintenance of the status quo (i.e., the plants are to remain as industrial facilities) until its plan of acquisition and development can be implemented. The preservation of such a status quo would obviously defeat any prospects that Radice-East might have to develop the property for residential or other commercial purposes.
In sum, as we have pointed out, giving credit to Steel Valley’s allegations, there is nothing that appears in the complaint concerning Radice-East’s postponed possession. Only Radice-East’s real property and building ownership is established. The relief sought by the complaint is an injunction prohibiting all defendants at all times from disturbing the buildings and their contents. Steel Valley also sought, as an essential component of relief, an affirmative injunction to have the property owners maintain the Union Switch property in its present condition.
Thus the complaint establishes Radice-East as the owner of the Union Switch property and buildings and reveals that Steel Valley, as a part of its relief, seeks to restrict, limit, and affect RadiceEast’s rights and/or interests in the property.
B.
An “indispensability” analysis must start with Federal Rule of Ciyil Procedure 19(a), which states that:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party____
If a party falls into either of the above two categories, but may not be joined because jurisdiction would be destroyed, the court must determine under Rule 19(b) whether “in equity and good conscience” the action should proceed without the absent party or whether the absent party is indispensable and the action should be dismissed (or, in the case of removal, remanded).
Under the factors set out in Rule 19(a), Radice-East is clearly a party to be joined if feasible. First, Steel Valley would not be able to obtain complete relief if Radice-East were not joined. Any actions taken by Radice-East with respect to its property, particularly actions which required razing or demolition of the buildings, would undoubtedly affect the success of Steel Valley’s development plans. Conversely, any injunction requiring RadiceEast to maintain the status quo of its property as industrial property would undoubtedly affect the rights of Radice-East as a property holder, and the injunction sought by Steel Valley, if granted, would necessarily affect the alienability of Rad-ice-East’s property and its ability to improve the property in accordance with any plans it may have made. Thus, in terms of 19(a), complete relief could not be accorded to Steel Valley without Radice-East’s presence nor could Radice-East protect its very substantial real estate interest in the property if it were not a party to Steel Valley’s action.
C.
Having concluded that Radice-East had to be joined as a party to the action if feasible, we turn to the provisions of Rule 19(b) to ascertain whether the district court could have proceeded without Radice-East being joined as a party. The factors that must be considered in an analysis under Rule 19(b) are:
... first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
Since Radice-East could not be made a party without destroying the district court’s subject matter jurisdiction, the district court was required to “... determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent party [Radice-East] being thus regarded as indispensable.” Fed.R.Civ.P. 19(b).
To arrive at such a determination, Rule 19(b) provides four factors to be taken into consideration. In an earlier discussion of Rule 19(a) of this opinion we touched upon considerations bearing on the first factor of 19(b), i.e., prejudice to the parties. We concluded that any judgment rendered in Radice-East’s absence would necessarily be prejudicial to Radice-East’s property interests.
The second factor of 19(b) directs the court to consider the extent to which the shaping of relief might avoid or lessen any prejudice to the parties. There has been no suggestion made that the relief which Steel Valley seeks could be decreed without significantly affecting Radice-East’s property interest. Any injunction that precluded Radice-East’s full use of its property for purposes other than for which it is presently being utilized, would of necessity prejudice Radice-East. We cannot envisage how such prejudice could be lessened or avoided if an injunction, no matter how shaped, were to issue.
The third factor requires us to consider “whether a judgment rendered in the person’s [Radiee-East’s] absence will be adequate.” Fed.R.Civ.P. 19(b). Focusing on Steel Valley, we are obliged to conclude that Steel Valley would not be able to receive full relief without the joinder of Radice-East. Because of its ownership interest and landlord status, Radice-East could readily undermine Steel Valley’s plan, and therefore the effectiveness of any injunction decreed, by entering and possessing the buildings (with or without American Standard’s permission) if it were not bound by a district court order. It is obvious to us that, in the absence of Rad-ice-East as a party, it will be impossible to resolve the controversy between Steel Valley and American Standard. Necessarily inherent in Steel Valley’s cause of action is that the buildings and property owned by Radice-East are integral to Steel Valley’s industrial development plan. Therefore, because no plan could be proposed or succeed without taking into consideration these particular buildings, a judgment rendered in Radice-East’s absence would not bind Radice-East and thus, without question, would undercut Steel Valley’s industrial development plan. Hence, in terms of Rule 19(b), a judgment, even though rendered in favor of Steel Valley, but in the absence of Radice-East, would be inadequate.
Finally, we are instructed to consider “whether the plaintiff [Steel Valley] will have an adequate remedy if the action is dismissed for nonjoinder.” Fed.R.Civ.P. 19(b). Clearly, the Pennsylvania state court is a ready forum available to all parties. This fact favors a finding of indispensability and thus would require a remand to the state court. Not only is the state court available for resolution of this controversy, but it also may be the most appropriate forum for consideration of Steel Valley’s particular cause of action, see Tick v. Cohen, 787 F.2d 1490, 1495 n. 5 (11th Cir.1986) (“presence of a state forum has been found to be particularly compelling in diversity jurisdiction cases”), which, among other features, includes real property interests — traditionally a state concern. Therefore, consideration of each of the Rule 19(b) factors leads to the conclusion urged upon us by Steel Valley that Rad-ice-East is an indispensable party to Steel Valley’s action.
As a result of our independent Rule 19 analysis, we are satisfied that Radice-East must be joined in the present action, and that the district court abused its discretion by failing to so hold. Because it improperly exercised its discretion, first in its finding of fraudulent joinder, and, second, in failing to find Radice-East to be an indispensable party pursuant to a Rule 19 analysis, the district court declined to remand Steel Valley’s action to the state court. In so doing, the district court improperly retained jurisdiction over Steel Valley’s claims and resolved the merits of Steel Valley’s action, which it should not have addressed, let alone have decided.
IV.
Having concluded that Radice-East is an indispensable and nondiverse party to Steel Valley’s action, we will reverse and direct the district court (1) to vacate its order of June 17, 1986, which granted the defendants’ motions to dismiss on the merits and (2) to remand this proceeding to the Court of Common Pleas of Allegheny County, Pennsylvania.
. At the time of the filing of the original complaint, Steel Valley alleged that Radice Corporation was the record owner of the Union Switch real estate.
. At the time the district court assumed jurisdiction, all defendants had not concurred in the petition for removal. Nonetheless, removal without the consent of Meyer, Kopsa, and Rad-ice Corp. was proper because the district court considered them fraudulently joined or nominal. "In applying this general rule, [that all parties must join in the removal petition] nominal or formal parties, unknown defendants, and defendants fraudulently joined may be disregarded.” 1A J. Moore & B. Ringle, Moore’s Federal Practice ¶ 0.168[3.-2-2]; see also 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3731.
. Rule 15(a) allows the amendment of a complaint as of right if the opposing party has not yet answered the complaint, as was the case here. Fed.R.Civ.P. 15(a).
. We hold that the claims against Union Switch and Westinghouse Air Brake, although dismissed without prejudice, have been finally resolved. American Standard relies on Borelli v. City of Reading, 532 F.2d 950 (3d Cir.1976), in support of its argument that the dismissal was not a final and appealable order. Unlike Borelli, however, an amendment of the complaint would not cure what the district court perceived as the fatal defect of the complaint. Indeed, the district court indicated that “should the situation change and the Authority [Steel Valley] condemn the property," app. at 162a, only then could the action proceed. In such an instance, however, the cause of action would be entirely different than the cause of action which the district court dismissed.
Here, Steel Valley chose to stand on its current cause of action (“waste"). We are satisfied that the district court order from which Steel Valley appealed is final and therefore appeal-able. See B., Inc. v. Miller Brewing Co., 663 F.2d 545, 547-48 (5th Cir.1981); Hall v. Pennsylvania State Police, 570 F.2d 86, 88-89 (3d Cir.1978).
. The federal removal statutes are found in 28 U.S.C. §§ 1441-1452.
. In refusing to remand this case to state court, the district court concluded that Radice-East was fraudulently joined. A removing defendant, in this case American Standard, who charges that the plaintiff, Steel Valley, has fraudulently joined a party (Radice-East) in order to destroy diversity jurisdiction, has a heavy burden of persuasion. B., Inc., 663 F.2d at 549. We have noted that the "[cjourts have found joinder to be fraudulent where there is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant, or no real intention in good faith to prosecute the action against the defendant or seek a joint judgment.” Abels v. State Farm Fire & Cos. Co., 770 F.2d 26, 32 (3d Cir.1985) (quoting Goldberg v. CPC International, 495 F.Supp. 233, 239 (N.Cal.1980)); see also Nobers v. Crucible, Inc., 602 F.Supp. 703, 706 (W.D.Pa.1985). Fraudulent joinder analysis, however, is only appropriate in determining the propriety of removal. Here, Steel Valley admits that the initial removal was proper. Appellant's Brief at 11.
Where a plaintiff seeks to force remand of a properly removed case by the addition of a nondiverse defendant, the appropriate inquiry is whether that proposed defendant is indispensable under Rule 19. E.g., Takeda v. Northwestern Natl Life Ins. Co., 765 F.2d 815, 819 (9th Cir.1985); Kaib v. Pennzoil Co., 545 F.Supp. 1267, 1270 (W.D.Pa.1982). This more stringent inquiry supports "the long-settled (and salutary) policy that a plaintiff cannot artificially force a retreat to the first (state) forum by embarking purposefully on post-removal steps designed exclusively to foster remand.” Adorno Enter., 629 F.Supp. at 1570.
The district court disposed of Steel Valley's claim that Radice-East was an indispensable party without performing, a Federal Rule of Civil Procedure Rule 19 analysis. It held that Radice-East was fraudulently joined and that the claim against Radice-East was not colorable. It did so without regard to Steel Valley’s assertion that the Union Switch buildings and plants were an integral part of Steel Valley’s plan of taking and redevelopment.
. Steel Valley cites Singer v. Redevelopment Auth. of Oil City, 437 Pa. 55, 261 A.2d 594 (1970) as support for its assertion in its complaint that Radice-East Hills "is the owner of the buildings, machinery, equipment and fixtures forming part of the real estate of Switch Signal." App. at 60a (emphasis added). Under the Pennsylvania common law Assembled Industrial Plant Doctrine ”[i]f the machinery, whether fast or loose, is vital to the business operation of an 'industrial plant’ and is a permanent installation therein, it is considered to be part of the real estate." Id. at 59, 261 A.2d at 596. This doctrine apparently has been applied in the areas of industrial mortgage situations, of local real estate taxation, and eminent domain law. Id.
However, for the reasons discussed in the text, infra, we do not find it necessary to rely on Steel Valley’s theory of Assembled Industrial Plant Doctrine in our disposition of this appeal.
. We recognize that Radice-East became a party to this action after Steel Valley amended its complaint to add Radice-East, a Pennsylvania corporation, in place of Radice Corp., a Florida corporation. The district court retained jurisdiction of the proceedings only because it found that Radice-East had been fraudulently joined, and thus on that theory, its joinder did not divest the court of its jurisdiction.
. Steel Valley’s brief analyzed the 19(b) factors as follows:
With respect to the first factor, a judgment rendered in the absence of Radice-East Hills would be prejudicial to Radice-East Hills. For example, "freezing" the Switch and Signal industrial facility impairs Radice-East Hills’ right to use and enjoy that property. Such a judgment would be prejudicial to SVA as well since complete relief could not be accorded if Radice-East Hills is able to pursue its own development of the land and buildings at Switch and Signal. SVA submits, with respect to the second factor, that prejudice to RadiceEast Hills or to itself could not be avoided by the shaping of relief because SVA’s prayer is diametrically opposed to the announced interest of Radice-East Hills to change the entire character of the property. Third, and without repetition of the above stated contentions, a judgment rendered in the absence of RadiceEast Hills would be inadequate in protecting the interests of Radice-East Hills and/or SVA. With respect to the fourth factor, the fact that remand is an option in the case at bar provides SVA with an adequate, available remedy in state court.
Appellant’s Brief at 23.
Question: Did the court conclude that a confession or an incriminating statement was improperly admitted? Consider only incriminating statements made by the defendant.
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_summary | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Darius IRBY; John S. Neal; Charles W. White; James Samuel Williams, Jr.; Cora Lee Tucker; Willie Powell; Milton Richardson; the Virginia Unit of the Southern Christian Leadership Conference; Citizens for a Better America, Plaintiffs-Appellants, v. VIRGINIA STATE BOARD OF ELECTIONS; et al., Defendants-Appellees, and Robert P. Lawler, in his official capacity as a member of the Board of Supervisors of Halifax County, Defendant.
No. 88-2919.
United States Court of Appeals, Fourth Circuit.
Argued June 8, 1989.
Decided Nov. 24, 1989.
Rehearing and Rehearing In Banc Denied Jan. 9, 1990.
Neil Bradley (Kathleen L. Wilde, Laugh-lin McDonald, Derek Alphran, Atlanta, Ga., ACLU Foundation, Inc., Susan L. Quig-Terry, ACLU, Gerald T. Zerkin, Gerald T. Zerkin & Associates, Richmond, Va., on brief), for plaintiffs-appellants.
Gail Starling Marshall, Deputy Atty. Gen. (Mary Sue Terry, Atty. Gen., Stuart, Va., H. Lane Kneedler, Chief Deputy Atty. Gen., Guy W. Horsley, Jr., Sr. Asst. Atty. Gen., Richmond, Va., E.M. Wright, Com. Atty., Buckingham, Va., William W. Bennett, Jr., Halifax, Va., Robert A. Bruce, Farmville, Va., County Attys., Michael R. Packer, City Atty., Petersburg, Va., on brief), for defendants-appellees.
Before PHILLIPS, MURNAGHAN, and WILKINSON, Circuit Judges.
MURNAGHAN, Circuit Judge:
A number of black residents and two civil rights organizations brought an action challenging Virginia’s method of local school board selection as violating the First, Thirteenth, Fourteenth and Fifteenth Amendments to the United States Constitution and Section 2 et seq. of the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. Virginia law requires appointment, rather than election, of local school board members. The plaintiffs allege that Virginia adopted and maintained the appointment system with the intent to discriminate against blacks, and that the system currently has a discriminatory effect. The district court refused plaintiffs’ request for class certification.
The district court granted summary judgment for the defendants on the First and Thirteenth Amendment claims, as well as that portion of the Fourteenth Amendment claim that relied on the Due Process Clause. 692 F.Supp. 610. A trial proceeded on the equal protection, Fifteenth Amendment and Voting Rights Act claims.
After trial, the district judge found for the defendants on all remaining claims. The plaintiffs appealed.
I.
The case was brought by seven individual black citizens who reside in the City of Petersburg or in the counties of Nottoway, Buckingham, Prince Edward or Halifax, and by two organizations — Citizens for a Better America and the Virginia Unit of the Southern Christian Leadership Conference. The suit named three sets of defendants: (1) members of the appointing bodies for local school boards in Petersburg and the four Virginia counties named above; (2) members of the Electoral Boards of each of those five jurisdictions; and (3) Susan H. Fitz-Hugh, Secretary of the State Board of Elections.
The method of appointing school board members varies widely among Virginia’s counties and cities. In Nottoway and Buckingham counties, a three-person selection commission, whose members are chosen by a local circuit court judge, appoint the school board members. The county Board of Supervisors appoints school board members in Prince Edward and Halifax counties. The City Council selects Peters-burg’s school board members.
The appointive system for selection of school board members in Virginia dates to 1870, when the state legislature passed a law providing for appointment of local school trustees by the state Board of Education. The trustees performed functions similar to those of present-day school boards. The district court found no evidence “that the original decision to make school boards appointive rather than elective was motivated by racial discrimination.” Irby v. Fitz-Hugh, 693 F.Supp. 424, 427 (E.D.Va.1988). The court also found conflicting evidence as to whether discriminatory intent motivated various modifications in the appointive scheme between 1870 and the turn of the century. Id.
However, discriminatory intent did figure prominently in Virginia’s decision to retain the appointive system during the Virginia Constitutional Convention of 1901-02. That convention drafted a new constitution that the state concedes was designed, in part, to disenfranchise blacks. During the convention, the state education commission proposed adopting a system of electing school board members. The convention rejected the proposal, however, after several delegates warned that such a change could lead to selection of blacks for school boards. The district court found that
[rjace was a ‘substantial’ or ‘motivating’ factor ... behind the 1901-02 Constitutional Convention’s decision to retain an appointive system. Several members of the Convention cast the decision in racial tones, and the plain purpose of the Convention was to disenfranchise as many impoverished people, including most blacks, as the delegates could.... The appointive system was maintained, therefore[,] for constitutionally impermissible reasons in 1902.
Irby, 693 F.Supp. at 432 (citations omitted).
The state legislature made some modifications to the appointive system in 1903. In the 1920s and 1930s, it rejected various recommendations to adopt an elective system for local school boards. The district court found no racial motivation in those decisions. Id. at 433.
In 1947, the General Assembly departed from the purely appointive scheme by passing a law permitting “any county operating under the county manager plan ... and in which county magisterial districts have been abolished” to hold popular elections to fill school board positions. Id. at 428. At the time, only Arlington County had a form of government allowing it to qualify for the election option. Arlington County voters approved the changes and elected a school board.
The elective system continued in Arlington County until 1956, when the County school board agreed to desegregate its school system in compliance with Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). The state legislature, in an effort “to impede Arlington’s ability to comply with court-ordered desegregation,” Irby, 693 F.Supp. at 433, repealed the 1947 law that had allowed elected school boards. The new law proclaimed that “no school board shall be elected by popular vote in and for any county or city.” Id. at 428.
Between 1968 and 1971, Virginia considered changes in its constitution. The plaintiffs concede that one of the purposes for the constitutional revision “was to close the door on the era of massive resistance to school integration.” Virginia established a Constitutional Revision Commission in 1968 to recommend changes to the 1902 Constitution. The commission made no recommendation for changing the school board selection method. The district court found that debates leading to adoption of the new constitution showed “no evidence that the means of selecting school boards was tainted by racial considerations.” Irby, 693 F.Supp. at 429. The court further found that legislators “simply could not agree on which method was the best and put the debate off to another day by agreeing to preserve the flexibility that currently existed.” Id. The district court never pointed to specific details of those debates to show what arguments legislators made in support of the appointive system.
The state legislature considered the school board selection process again in 1984 by commissioning a study to decide whether school board members should be popularly elected. The 1984 subcommittee report took no stance on the issue but reported the various arguments for and against electing school boards. Many of the arguments arose at public hearings that the subcommittee held throughout the state. The arguments in favor of appointed school boards included:
(1) insulating school governance matters from direct political pressures;
(2) promoting stable school board membership;
(3) encouraging the service of individuals who would not seek elective office;
(4) promoting diversity in viewpoints which otherwise may not achieve representation on an elected school board;
(5) avoiding the division of fiscal authority among multiple elected bodies;
(6) avoiding the fragmentation of local political authority; and
(7) avoiding the problem of single issue campaigns which frequently occur with elected school boards.
Since issuance of the study in 1984, the Virginia legislature has considered various bills to allow popular election of school board members. Irby, 693 F.Supp. at 429, n. 1. It is unclear, however, to what extent legislators discussed or considered the findings of the 1984 study in rejecting those bills.
Turning to the issue of black participation on school boards, the district court found that the percentage of school board seats in Virginia held by blacks increased from 12% in 1974 and 1981 to 15.9% in 1985 and to 18% in 1986 and 1987. Irby, 693 F.Supp. at 430. The court also found that blacks comprised 18% of the voting age population in Virginia. Id.
However, all five jurisdictions at issue in the present case reported a smaller black representation on their school boards than in their population as a whole. The district court found the following disparities in 1987:
General Population School Board
42% black 14.2% black Buckingham
40% ” 22.2% Halifax
37% ” 20% Nottoway
37% ” 25% Prince Edward
61% ” 44.4% City of Petersburg
Irby, 693 F.Supp. at 430.
II.
To establish an. equal protection violation, a plaintiff must show discriminatory intent as well as disparate effect. Crawford v. Board of Education, 458 U.S. 527, 544, 102 S.Ct. 3211, 3221, 73 L.Ed.2d 948 (1982); Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976). The plaintiffs argue that once they prove the state adopted or maintained the appointive system in the past for discriminatory reasons, the burden then shifts to the defendants to prove that the system is not currently being maintained for discriminatory purposes. We need not decide whether the Equal Protection Clause mandates the burden-shifting scheme proposed by the plaintiffs because, even assuming that the burden shifted to the defendants, they have proved that racial discrimination no longer motivates Virginia’s decision to retain an appointive system for selecting school board members.
The plaintiffs satisfied their initial burden of proving that Virginia maintained the appointive system for purposes of minimizing or precluding black participation on school boards. The district court expressly found that the Constitutional Convention of 1901-02 retained the appointive system for racially discriminatory reasons. Irby, 693 F.Supp. at 432. Moreover, the Virginia legislature clearly acted with a discriminatory purpose in passing the 1956 law forbidding popularly elected school boards anywhere in the state. As the district court found, the state legislature passed the law to impede one school district’s willingness to comply with the desegregation mandate of Brown v. Board of Education. Irby, 693 F.Supp. at 428.
The defendants, however, have proved that the state does not currently maintain the system of appointed school boards for discriminatory reasons. The district court held that the defendants had carried that burden by “demonstrating that at least since 1971 the system has not been maintained for racially discriminatory reasons.” Id. at 433. Specifically, the district court found such proof in the 1971 revision of the state constitution. In the atmosphere of the United States, which has had to suffer the complexities of a massive Civil War, reconstruction, Plessy v. Ferguson, massive resistance, and Brown v. Board of Education, it is understandable that there is abroad a skepticism that the 1971 constitutional revision represented sufficient proof that Virginia had purged the discriminatory intent originally underlying the appointive system for school boards. Although all parties agree that a major purpose of the revision was to break with the massive resistance policies of the past, the 1971 redrafting of the constitution did not involve any alterations of the school board selection process and apparently no debate over the relative merits of appointed and elected school boards. Although the 1971 constitution wrought dramatic (and racially progressive) changes in other areas pertaining to education, one cannot readily assume that such breaks with the past carried over to the school board selection provision which was retained without change and with virtually no debate.
Nonetheless, the district court also relied on a much more persuasive piece of evidence in finding that the defendants had met their burden of rebutting the inference of discriminatory intent. The court pointed to the 1984 study commissioned by the state legislature to evaluate the pros and cons of elected and appointed school boards. That study clearly set forth solely legitimate reasons for choosing an appointed school board over a popularly elected body. The evidence also showed that the state legislature subsequently considered bills that would have changed the law to allow elected school boards. The district court did not clearly err in finding such evidence sufficient to demonstrate a lack of discriminatory intent in the current maintenance of the appointive system. Accordingly, the plaintiffs’ equal protection claim must fail.
III.
The Supreme Court has emphasized that “racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation.” Mobile v. Bolden, 446 U.S. 55, 62, 100 S.Ct. 1490, 1497, 64 L.Ed.2d 47 (1980) (plurality opinion). Accord, Washington v. Finlay, 664 F.2d 913, 919 (4th Cir.1981). Since the defendants proved the absence of discriminatory intent in the current maintenance of the appointive system for school boards, the plaintiffs cannot establish a Fifteenth Amendment violation.
IV.
Plaintiffs purport to assert a due process claim under the Fourteenth Amendment. However, they raise no arguments in support of the claim other than those asserted under their equal protection claim. In reality, their claim is one alleging a violation of equal protection rather than of due process. The district court properly dismissed the plaintiffs’ Fourteenth Amendment Due Process claim.
V.
Plaintiffs’ voting rights claim presents a closer question, if the question is properly before us at all. Whereas a plaintiff must prove discriminatory intent to succeed on a claim under the Equal Protection Clause or the Fifteenth Amendment, a showing of discriminatory effect may suffice to establish a violation of Section 2 of the Voting Rights Act of 1965. See Thornburg v. Gingles, 478 U.S. 30, 35, 106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986), citing S.Rep. No. 97-417, p. 28 (1982).
At the outset, we have considerable doubt as to whether Virginia’s choice of an appointive system over an elective scheme for selecting school board members even implicates Section 2 of the Voting Rights Act. The defendants argue that Section 2 applies only where the state decides to choose officials through an election. The language of Section 2 offers some support for the defendants’ position:
A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973(b) (emphasis added). The defendants argue that where no one, black or white, has the right to participate in a popular election of school board members, Section 2 is inapplicable. The few courts that have addressed the issue have found Section 2 inapplicable to appointive offices. Searcy v. Williams, 656 F.2d 1003, 1010 (5th Cir. Unit B 1981) (school board), aff'd without op. sub nom. Hightower v. Searcy, 455 U.S. 984, 102 S.Ct. 1605, 71 L.Ed.2d 844 (1982); Williams v. State Board of Elections, 696 F.Supp. 1563, 1568-69 (N.D.Ill.1988) (state circuit judges). See also Dillard v. Crenshaw County, 831 F.2d 246, 251 n. 12 (11th Cir.1987).
Nonetheless, we will refrain from holding Section 2 inapplicable here because of the ambiguity of congressional intent. In such a circumstance as the present one, concluding, as we do, that, even if applicable, Section 2 has not been violated, we are reluctant to rush to decision that it does not apply when decision is not required and a situation similar to but not identical with what is here presented may arise in a subsequent case. The situation is one calling for us to eschew dictum although, seen in the light of the instant case, it appears more probable than not that Section 2 is not applicable to appointive offices. Congress clearly believed that the choice between an elective and an appointive scheme implicated Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, which requires certain jurisdictions in the United States to obtain “preclearance” of proposed changes in procedures or requirements that could affect voting rights. See S.Rep. 97-417 at 6-7, reprinted in 1982 U.S.Code Cong. & Admin.News 183; Perkins v. Matthews, 400 U.S. 379, 389-90 n. 8, 91 S.Ct. 431, 437 n. 8, 27 L.Ed.2d 476 (1971); Robinson v. Alabama State Dep’t of Education, 652 F.Supp. 484, 485 (M.D.Ala.1987); County Council v. United States, 596 F.Supp. 35, 38 (D.D.C.1984). In addition, Congress recently expressed concern about shifts from appointive to elective systems in discussing the 1982 amendments to the Voting Rights Act, but failed to make clear whether such shifts implicated only Section 5 of the Act or Section 2 as well. See H.Rep. 97-227, 97 Cong. 2d Sess. 18 (1982) (discussing “discriminatory elements of the elections process such as at-large elections, high fees and bonding requirements, shifts from elective to appointive office_” (emphasis added)).
Congress did not necessarily intend that acts covered by § 5 would also implicate § 2. Section 5 covers only certain jurisdictions in the country, those which Congress has found to have the worst record of voting discrimination. See S.Rep. 97-417 at 15, reprinted in 1982 U.S.Code Cong. & Admin.News 192. Congress might have wished to keep a closer eye on those states than on jurisdictions with a more benign history in voting matters. We have some doubts as to whether Congress intended the scope of Section 2 to extend so broadly as to encompass a state’s choice between an elective and an appointive system for filling a given office, even when that choice was made years before enactment of the Voting Rights Act. Extending Section 2 that far could have dramatic and far-reaching effects.
We leave open the question whether Section 2’s reach extends so broadly. Even if Section 2 applied here, the plaintiffs have failed to prove that the appointive system for school boards has produced discriminatory results. The plaintiffs argue that they have shown two types of discriminatory effects: (1) blacks are underrepresented on school boards in relation to their numbers in the general population, and (2) blacks are underrepresented in the offices or governing bodies that ultimately appoint school board members. However, we conclude that the district court did not clearly err in finding that the appointive system did not create discriminatory effects insofar as the representation of blacks on school boards is concerned. Moreover, insofar as the plaintiffs challenge the racial composition of the officials who appoint school board members, they seek relief that far exceeds the scope of this lawsuit, which focuses on the selection of school boards rather than on the manner of choosing the selecting officials.
First, we examine the alleged underrep-resentation of blacks on school boards. Clearly, no disparity exists on a statewide basis. The district court found that in Virginia as a whole, “blacks comprised approximately 18% of the voting population and approximately 18% of all school board members statewide.” Irby, 693 F.Supp. at 433-34. However, we believe the proper comparison must focus not on the statewide averages, but rather on the figures for the five local jurisdictions at issue in this appeal: Buckingham, Halifax, Notto-way, and Prince Edward counties and the City of Petersburg.
Although the district court found a “significant disparity” in Buckingham and Halifax counties between the percentage of blacks in the population and the racial composition of the school boards, the court found no proof that the appointive process caused the disparity. Irby, 693 F.Supp. at 434. The court’s findings on this point are not clearly erroneous. The evidence showed that “although blacks comprise a large portion of the population, they are not seeking school board seats in numbers consistent with their percentage of the population.” Id. For example, since late 1971 every black individual who formally requested appointment to the Buckingham County School Board was placed on the board. In Halifax County, the evidence showed at least one instance where a black individual was nominated for the school board but voluntarily withdrew before appointment.
In the other three jurisdictions, the district court discounted the significance of the disparities between the percentage of the population that was black and the percentage of school board seats held by black individuals. In Nottoway and Prince Edward counties, the addition of one extra black on each school board would cure the disparity. Most, though not all, of the statistical disparity would vanish in Peters-burg if one more black were appointed to the school board. The wide statistical swing produced by the addition of a single black school board member in each of the three jurisdictions raises serious doubts as to whether the disparities are statistically significant. The defendants produced expert testimony discounting the statistical significance of the figures in the defendant jurisdictions. Moreover, the Supreme Court has recognized the dangers of drawing conclusions from statistics involving boards with relatively few members. See Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 611, 94 S.Ct. 1323, 1328-29, 39 L.Ed.2d 630 (1974) (upholding district court finding that there was no significance in the differences between the percentage of blacks on a board and the percentage of blacks in the city’s population; “the number of positions on the Panel was too small to provide a reliable sample; the addition or subtraction of a single Negro meant an 8% change in racial composition.”). The panel at issue in Educational Equality League had 13 members. Id. None of the school boards at issue in the present case has more than nine members; one has only five members.
In sum, the district court did not clearly err in finding that the appointive system did not produce discriminatory effects insofar as black representation on school boards was concerned. The evidence cast considerable doubt on the existence of a causal link between the appointive system and black underrepresentation in Buckingham and Halifax counties. In addition, the plaintiffs failed to establish that the disparities in the other three jurisdictions were statistically significant.
Alternatively, the plaintiffs attempt to prove discriminatory effects by focusing on the racial makeup of the officials who appoint school board members in the defendant jurisdictions. The plaintiffs argue that blacks are denied the opportunity to participate equally in the appointment process because most of the officials who select school board members are themselves white. Plaintiffs assert that blacks are underrepresented on the governing bodies that appoint school board members in Pe-tersburg and in Halifax and Prince Edward counties. In Buckingham and Nottoway counties, white circuit judges appoint the selection commission which in turn chooses the school board members.
We reject the plaintiffs’ attempt to prove a discriminatory impact by focusing on the racial makeup of the officials who appoint, either directly or indirectly, the school board members. First, to the degree that blacks are underrepresented on the elected governing bodies in Halifax and Prince Edward counties and the City of Petersburg, the plaintiffs’ remedy is to bring a suit under the Voting Rights Act challenging directly the electoral schemes for choosing members of those bodies. Plaintiffs have not mounted such a direct challenge in the present case. As for the fact that white judges are ultimately, though indirectly, responsible for selection of school board members in Buckingham and Nottoway counties, the plaintiffs have produced no evidence of racial discrimination in the selection of those judges. Circuit judges in Virginia are generally chosen by the state legislature. Va.Code § 17-121. Yet the plaintiffs have produced no evidence as to the circumstances surrounding the legislature’s selection of the circuit judges for Buckingham and Nottoway counties. Many questions are unanswered. For example, did black legislators support the white circuit judges who were ultimately selected? Were the judges endorsed by white legislators who had received widespread black support in the most recent election? The plaintiffs never attempt to answer these questions, but instead focus merely on the race of the circuit judges. The mere fact that the judges were white does not prove that discrimination existed.
In short, the district court did not clearly err in concluding that the appointive system did not have a discriminatory impact on blacks in the five defendant jurisdictions. Having proved no discriminatory effect, the plaintiffs cannot establish a violation of Section 2 of the Voting Rights Act of 1965, even if it applies (a matter of some doubt).
VI.
Having found no violations of the Equal Protection Clause and the Fifteenth Amendment, we likewise conclude that plaintiffs’ First and Thirteenth Amendment claims must fail. In voting rights cases, the protections of the First and Thirteenth Amendments “do not in any event extend beyond those more directly, and perhaps only, provided by the fourteenth and fifteenth amendments.” Washington v. Finlay, 664 F.2d 913, 927 (4th Cir.1981), cert. denied, 457 U.S. 1120, 102 S.Ct. 2933, 73 L.Ed.2d 1333 (1982).
VII.
In conclusion, the plaintiffs have failed to establish a violation of Section 2 of the Voting Rights Act of 1965 or of the First, Thirteenth, Fourteenth or Fifteenth Amendments. The judgment of the district court is
AFFIRMED.
. In some Virginia jurisdictions, none of which are defendants here, the county board of supervisors and the city council jointly appoint the school board where the school district overlaps the city and county boundaries. Va.Code § 22.1-53.
. The district court’s findings would be more convincing had it investigated the legislative debate over the various bills to determine whether supporters of appointed school boards articulated the arguments found in the 1984 study. Nonetheless, the district court’s failure to discuss the content of the legislative debates after 1984 does not necessitate reversing its factual findings as clearly erroneous.
Question: Did the court's ruling on the appropriateness of summary judgment or the denial of summary judgment favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_numappel | 3 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. William BENTVENA, William Struzzieri and Samuel Monastersky, Defendants-Appellants.
No. 63, Docket 29732.
United States Court of Appeals Second Circuit.
Argued Oct. 20, 1965.
Decided Feb. 23, 1966.
Howard L. Jacobs, Asst. U. S. Atty., Robert M. Morgenthau, U. S. Atty., Neal J. Hurwitz, Asst. U. S. Atty., for ap-pellee.
Jerome Lewis, Brooklyn, N. Y., for appellants Bentvena and Struzzieri.
Robert Kasanof, New York City, for appellant Monastersky.
Before WATERMAN, MOORE and FRIENDLY, Circuit Judges.
WATERMAN, Circuit Judge:
By this opinion we affirm the convictions of three codefendants, who, having been charged with violations of 21 U.S.C. §§ 173, 174 on January 6 and January 13, 1959, were each severally found by a jury to be guilty as charged. Samuel Monastersky and William Struz-zieri were convicted of unlawful involvement on both occasions, William Bent-vena as to the January 13 violation only.
On this appeal, appellants Bentvena and Struzzieri argue that the judgments against them should be reversed and the pertinent counts of the indictment dismissed as to them, because the Government’s proof tending to show their guilt was so meager that the trial court erred in failing to direct verdicts in their favor at the close of the Government’s case. Appellant Monastersky states his willingness to adopt his codefendants’ argument as his own should it commend itself to this court, but he mainly relies upon the argument that the Government should not have been allowed to avail itself of the evidentiary rule contained in 21 U.S.C. § 174 because it failed to prove he had possession of the heroin that was the subject matter of the transactions of January 6 and January 13. He concludes that without the benefit of this rule his conviction cannot stand. We take up these separate contentions in order.
I.
The initial issue is whether the evidence presented by the Government during its case-in-chief was sufficient to permit the cases against any or all of these defendants to be submitted to the jury. We look first to the evidence relating to the January 6 transaction in which only Monastersky and Struzzieri were allegedly involved. The case against these two codefendants, based almost entirely on the trial testimony of several federal narcotics agents, can be briefly summarized. On January 5, Agent Giorgio had arranged with Monastersky to purchase from him on the following day one-half kilogram of heroin for $6,000. At about 8:40 P.M. on January 6 several agents observed Monastersky enter 525 East 88th Street. Several minutes later a car arrived on the scene and parked. Struzzieri got out and entered the same building Monastersky had previously entered. A second federal agent, Agent Ward, testified that when Struzzieri left the car and entered the building he was carrying a package wrapped in blue paper on which appeared a white snow man design. Shortly thereafter Struzzieri left the building empty handed and drove off in the same car in which he had arrived. At about 9:30 P.M. one Richard McGovern left 525 East 88th Street carrying a package and proceeded to 448 East 87th Street. A short time later Monastersky brought Agent Giorgio to 448 East 87th Street. There they met McGovern in an apartment in this building, McGovern produced a package wrapped, according to Giorgio, in blue paper on which appeared a white snow man design and the package, when opened, contained a white powder later proved to be heroin. The three men then left the apartment; once outside Giorgio handed McGovern $6,000 and McGovern gave the agent the package, which contained about one-half a kilogram of heroin. Giorgio took the package to an automobile where a third agent, Agent Mangiaracina, was waiting. There was also testimony tending to show that Struzzieri met McGovern for a few minutes later in the evening.
Assuming for the moment that the trial court correctly charged the jury that it could find Monastersky had “possession” of the heroin sold on January 6 sufficient to justify reliance on the rule contained in 21 U.S.C. § 174 it is quite clear that the Government's case against Monastersky relative to this January 6 sale was sufficient to go to the jury. Indeed, the evidence tending to prove that Monastersky was actively involved in this unlawful sale was largely uncon-tradicted. We surely cannot disturb a jury verdict based on such evidence. See United States v. Dardi, 330 F.2d 316 (2 Cir.), cert. denied, 379 U.S. 845, 85 S.Ct. 50, 13 L.Ed.2d 50 (1964).
Whether the Government’s case concerning the January 6 sale of heroin made out a case against Struzzieri sufficient to go to the jury is a closer question. Essentially, the Government’s case against Struzzieri consists of Giorgio’s testimony that he received the heroin from McGovern and Monastersky in a package wrapped in blue paper on which appeared a white snow man design, and the testimony of Ward that he observed Struzzieri carrying just such a package enter 525 East 88th Street shortly after Monastersky had entered the building and only a few hours before a package so wrapped was passed to Giorgio. The Government contends this evidence was sufficient to allow a reasonable jury to find that Struzzieri brought to McGovern and Monastersky the heroin that the latter pair then sold to Giorgio. Struz-zieri argues that the issue of his guilt should not have been submitted to the jury because crucial testimony of several narcotics agents was “meager,” “remote,” and “incredible." (
In support of his argument Struzzieri first points to the fact Agent Man-giaracina, who waited in an automobile for Giorgio to return with the heroin on the evening of January 6, testified the package Giorgio brought with him to the automobile was brown in color. Unquestionably, this testimony as to the color of the package varied from Gior-gio's testimony that the package was blue and white. Nevertheless, the jury could well have determined that Mangiaracina was mistaken in his recollection of the color and that Giorgio’s testimony was to be believed. Such a resolution of the variance, which would tend to incriminate Struzzieri, would be supported by the testimony of Agent Ward who stated that the páckage Struzzieri carried when he entered 525 East 88th Street was wrapped in blue paper on which appeared a white snow man design. We cannot say that such a resolution of this evidential variance would be unreasonable; therefore we should not replace it with our own. This is not a case in which two segments of the Government’s proof were absolutely essential to support a conviction and each contradicts the other. United States v. Moret, 334 F.2d 887, 893 (2 Cir. 1964) (Waterman, J., dissenting), cert. denied, 379 U.S. 993, 85 S.Ct. 707, 13 L.Ed.2d 612 (1965). Rather, here there was a conflict in the Government’s proof tending to establish only one fact among many facts that together tended to prove Struzzieri was carrying the package that contained the heroin subsequently sold to Giorgio. Undeniably the variance as to the color of the wrapping paper weakened the Government’s case against Struzzieri. Nevertheless, the jury concluded the package that Giorgio received from Monastersky and McGovern was the package Struzzieri brought to the latter pair earlier in the evening. We should not disturb this permissible resolution of the variance since this is precisely the sort of task that juries are best able to perform. United States v. Dardi, supra; United States v. Tutino, 269 F.2d 488 (2 Cir. 1959).
Struzzieri also contends the Government’s case tending to involve him in this January 6 transaction was fatally weak because Agent Ward’s testimony that he observed Struzzieri enter 525 East 88th Street carrying a package wrapped in blue paper on which appeared a white snow man design was incredible and unworthy of belief because of the distance separating Ward from Struzzieri and the poor lighting conditions at that time. In other words, Struzzieri’s claim is not that the Government failed to present evidence from which reasonable men could be convinced of a certain fact beyond a reasonable doubt; rather he claims that the physical facts so contradict Ward’s testimony as to render that testimony unbelievable. We disagree. Deciding whether certain evidence should be believed is precisely the task set the jury in a prosecution such as this; we should not interfere with the jury’s decision in this case that Ward’s testimony was credible.
We next turn to consider whether the Government’s evidence relating to the January 13 transaction in which all of the defendants were allegedly involved was sufficient to permit the cases against any or all of them to be submitted to the jury. Again, the case against Monaster-sky, Struzzieri and Bentvena was based almost entirely on the trial testimony of seyeral narcotics agents, and it, too, can be briefly summarized. Agent Giorgio made arrangements with Monastersky to purchase another half kilogram of heroin on January 13 from Monastersky and McGovern for $6,000. On that date, at about 9:25 P.M. Bentvena and Struzzieri arrived in a car on East 88th Street-; they parked and entered the apartment building numbered 525. Shortly thereafter Monastersky came out of this building and met Agent Giorgio who had been waiting in the immediate vicinity for some time.. Giorgio introduced Agent Mangiaracina to Monastersky as his partner and while Mangiaracina waited in the lobby of the building Monastersky and Giorgio made their way to apartment 2-H, which was McGovern’s apartment. While doing so they met Struz-zieri and Bentvena coming toward them in the opposite direction. When Bent-vena and Struzzieri arrived in the lobby Mangiaracina observed Bentvena stop and speak into the intercom system; at approximately the same time Giorgio observed McGovern go to the intercom connection in apartment 2-H and speak into it, saying, “Everything is okay.” Man-giaraeina then saw Struzzieri leave the building, while agents outside saw them walk to their car, remove a brown package from the trunk, and together return to the lobby where Mangiaracina saw them go upstairs again. Shortly thereafter, according to Giorgio, the doorbell rang in apartment 2-H, McGovern answered the bell and returned with a brown package ultimately found to contain heroin. Bentvena and Struzzieri were observed leaving the building a few minutes after their last entry. In the meantime, McGovern had asked Giorgio for the money. Giorgio summoned Man-giaracina, his supposed partner, from the lobby, the agents handed an envelope containing $6,000 to Monastersky, and Mon-astersky handed the package of heroin to Giorgio. Subsequently Struzzieri and Bentvena returned to 525 East 88th Street, where they remained for about an hour.
Considerations similar to those that caused us to affirm the jury’s verdict of guilty based on the evidence relating to the January 6 sale cause us to hold that the evidence introduced by the Government relating to the January 13 sale was sufficient to support the jury’s verdict of guilty as to the latter transaction. Viewing the evidence, as we must, in the light most favorable to the Government, United States v. Tutino, supra, and recognizing that involvement in an illegal sale of narcotics may be proved by circumstantial evidence, United States v. Moret, supra, we cannot say that reasonable jurors could not have found beyond a reasonable doubt that Struzzieri and Bentvena delivered the heroin to Monastersky and McGovern which they, in turn, sold and delivered to Giorgio. And, of course, Monastersky’s involvement in the transaction is firmly established.
II.
We now examine the claim of appellant Monastersky that his conviction on both counts should be reversed because, as the record does not show that the heroin sold to the agents was illegally imported, or that Monastersky knew from where it came, his conviction can only stand if the Government proved he had “possession” of the drugs, which, he maintains, the Government failed to do. Monastersky contends the Government’s proof establishes only that he was a “casual facilitator” of the sales in question, in other words that he merely introduced a willing seller to a willing buyer, activity that we held was insufficient to establish possession, either actual or constructive, in United States v. Jones, 308 F.2d 26 (2 Cir. 1962). We disagree with appellant. We believe the evidence in this case established that Monastersky had, on both occasions, power to control the disposition of the heroin sufficient -to constitute “possession” within 21 U.S.C. § 174. See United States v. Jones, supra. In Jones we reversed a conviction under §174 that equated mere participation in a sale of narcotics with “possession” of the narcotic drug. In discussing the facts of that case we said:
We believe the evidence in this case negates a conclusion that defendant Jones had dominion and control over the narcotics handed to Brown by Moore. The pains Jones took in the first instance to find Moore indicate that Jones was unable to consummate the transaction as a business dealing of his. The price and place of delivery were not even discussed with the would-be purchaser until defendant spoke with Moore. No one can say that Jones established these essential details of the affair unless he engages in speculation wholly unwarranted by the trial record. After consummation of the transaction Moore told agent Brown to purchase directly from him in the future and not to deal with anyone else. This statement by Moore negates a finding that Jones could assure, as a matter of course, delivery by Brown to a customer Jones might discover. 308 F.2d at 31.
The facts here are quite different. On both January 6 and January 13 Monastersky apparently set the price of the heroin without consulting with McGovern. On January 6 Monastersky was in the building when Struzzieri delivered the heroin. At both sales to Giorgio, •Monastersky remained with McGovern throughout. And during the January 13 transaction Monastersky had the heroin package in his hands, Giorgio paid the money directly to Monastersky, and Mon-astersky handed the heroin directly to Giorgio. This evidence brings Monaster-sky’s case well within our statement in Jones that “evidence showing that a given defendant set the price for a batch of narcotics, had the final say as to means of transfer, or was able to assure delivery, may well be sufficient to charge the defendant with a constructive possession of the narcotics * * 308 F.2d at 31.
Monastersky also contends that the trial court’s charge relating to constructive possession was improper. We would be hard pressed to detect error in this charge. In any event, since Monastersky failed to object to the charge at trial, or to request a different charge, he may not, barring special circumstances not present here, raise the issue on appeal. See United States v. Indiviglio, 352 F.2d 276 (2 Cir. 1965), cert. denied, Feb. 21, 1966, 86 S.Ct. 887.
Affirmed.
. The indictment out of which these convictions arise was filed on May 5, 1960. It named twenty-nine defendants and contained eight counts. The first trial on the indictment ended in a mistrial after six months. The second trial resulted in the conviction of thirteen defendants, including the present appellants, on counts four and five charging substantive violations of the narcotics laws and on count eight, the general conspiracy count. On June 13, 1963 our court affirmed the convictions of nine of the defendants but reversed the convictions of appellants and the defendant Salvatore Pánico and remanded for a new trial. United States v. Bentvena, 319 F2d 916 (2 Cir.), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.24 271 (1963). This appeal follows the third trial.
. Appellants Bentvena and Struzzieri seek only a reversal with directions that the indictment be dismissed, they do not seek a new trial.
. It is a federal offense under Section 174 to import narcotics illegally or to deal in such drugs with knowledge that they have been illegally imported. The statute goes on to provide: “Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possessio’n to the satisfaction of tlie jury.” In the present case Monastersky argues the Government did not prove he had or had had possession of the heroin which was the subject of the illegal transactions.
. See note 3, supra.
Question: What is the total number of appellants in the case? 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.
W. S. KILROY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent.
No. 9358.
United States Court of Appeals Tenth Circuit.
Oct. 23, 1968.
J. Evans Attwell, and Vinson, Elkins, Weems & Searls, Houston, Tex., filed a statement on behalf of petitioner.
Peter H. Schiff, Sol., Federal Power Commission, filed a statement on behalf of respondent.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Petitioner Kilroy seeks review of Opinions Nos. 498 and 498-A, and accompanying orders, of the Federal Power Commission. The issues relate to the authority of the Commission to order refunds on unconditioned temporary certificates granted pursuant to § 7 of the Natural Gas Act and to the manner of exercise of that authority. Six other petitions relating to the same opinions and orders were either filed in or transferred to this court. Because of the pendency of Supreme Court review of our decision in Sunray DX Oil Company v. Federal Power Commission, 10 Cir., 370 F.2d 181, all petitioners agreed that the review of Opinions Nos. 498 and 498-A should be deferred until the Supreme Court had acted on Sunray DX. Accordingly, we ordered all the petitions to be held in abeyance.
In Federal Power Commission v. Sun-ray DX Oil Co., 391 U.S. 9, 40-47, 88 S. Ct. 1526, 20 L.Ed.2d 388, the Supreme Court upheld not only the authority of the Commission to order such refunds but also the manner in which that authority was exercised in Opinions Nos. 501 and 501-A. We then directed the petitioners attacking Opinions Nos. 498 and 498-A to express their views in regard to further proceedings. All those petitioners except Kilroy have agreed that their petitions should be dismissed. Kilroy urges that the Commission erred in failing to consider his equities and in requiring 7% interest on the refunds.
In Sunray DX the Court upheld the refunds ordered pursuant to Opinions Nos. 501 and 501-A. Those opinions followed Opinions Nos. 492 and 492-A which we considered and upheld in Skelly Oil Company v. Federal Power Commission, 10 Cir., 401 F.2d 726. In that decision we said that, on the refund issue presented, Sunray DX is controlling in the absence of exceptional and distinguishing facts. We have now examined Opinions Nos. 498 and 498-A and the Kilroy petition for review and find no exceptional and distinguishing facts. Accordingly, Sun-ray DX is decisive.
Kilroy’s attack on the interest rate is disposed of in our Skelly opinion mentioned above and needs no further elaboration.
The petition for review is denied.
. 36 FPC 149 and 981.
. 15 U.S.C. §§ 717-717w.
. See our docket Nos. 9220, 9307, 9340, 9341, 9357 and 9359.
. 36 FPC 309 and 962.
. Appropriate orders of dismissal were entered on July 15, 1968.
. 35 FPO 849 and 36 FPC 143.
. The Commission considered the unusual situation of Kilroy in one of its dockets and ordered no refund in that particular instance. See Opinion No. 498, 36 FPC 149, 153-154.
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_genstand | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the agency articulate the appropriate general standard?" This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
COMMISSIONER OF INTERNAL REVENUE v. GERSTLE.
No. 8426.
Circuit Court of Appeals, Ninth Circuit.
March 25, 1938.
James W. Morris, Asst. Atty. Gen., and Sewall Key, J. Louis Monarch, Louise Foster, and M. Leo Looney, Jr., Sp: Assts. to Atty. Gen., for petitioner.
Francis W. Murphy, of San Francisco, Cal., for respondent.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
HEALY, Circuit Judge.
This case was brought here on petition to review a decision of the Board of Tax Appeals. The question presented is whether the respondent is entitled to deduct for income tax purposes his proportionate share of operating losses sustained by syndicates of which he was a member. Specifically, it is whether the syndicates are associations within the meaning of section 2(a) (2) of the Revenue Act of 1926, and section 701 (a) (2) of the Revenue Act of 1928, 26 U. S.C.A. § 1696(3), providing that for the purposes of the act “the term ‘corporation’ includes associations, joint-stock companies, and insurance companies”; or whether, as contended by respondent and as held by the Board, the syndicates are joint ventures. If the latter, the members are taxable as individuals and have the right to deduct each year their proportionate share of the operating losses of the syndicates. If the syndicates are associations, and therefore, taxable entities, their losses are personal to them and cannot be deducted by any one else.
Income taxes for the years 1927, 1928, and 1929 are involved. The material facts are stipulated and disclose the following situation: For many years prior to 1927 the respondent and the several other members of the syndicates involved had been directors of corporations owning large department stores in San Francisco and Oakland. In 1927 it was decided to build a new store in Oakland some blocks away from the then business district. The respondent and his associates decided to purchase properties in the immediate vicinity of the proposed new store in order that they might realize profits from an expected increase in value of the neighboring real estate. The original plan was expanded somewhat to include the purchase of other properties in Oakland in anticipation of a general rise in real estate values. Four syndicates in all were organized within a few weeks of each other, the members contributing to a pool to be used for the purchase of the properties thereafter acquired. At the outset it was their purpose to purchase certain properties which they believed could be quickly resold at a profit. It was not then the purpose to improve any of the properties acquired. The management of the properties was intended to be such only as would be necessarily incident to the ownership in the interim between purchase and anticipated sale.
The syndicate agreements were made in writing by three syndicate managers and those who affixed their signatures as members. All four agreements are identical in form. It was recited that the syndicate members are desirous of acting jointly in the purchase, management, and sale of real properties in Oakland, and for that purpose have requested the syndicate managers to act as their agents and trustees. The parties agreed that the managers should purchase, manage, and sell the real properties for the account of the members, the managers to have complete discretion in the selection of the properties to be purchased, the amount of the purchase price, the details of management, the terms of sale and of mortgage, and of all other matters related to the syndicate operations. The properties purchased might be taken in any names the managers might determine'. It was provided that each member on executing the agreement should set down after his name the amount he would contribute to the operations, “and his interest in the properties, profits, obligations, debts and losses of the syndicate shall be that proportion thereof which the amount set after his signature bears to the total of the amounts set after the signatures of all the syndicate members.” It was agreed that the funds required for the operations of the syndicate should be provided by the members, who were to pay to the manag -rs, on call, their respective proportions of the total sum called for, “provided that no syndicate member shall be called upon, prior to the termination of the syndicate, to pay a greater aggregate amount than that set after his signature hereto.” The managers were empowered to borrow money in their own names or in the names of others for the benefit of the syndicate, and the members were liable for the repayment thereof in proportion to their respective interests. The managers, who might act by majority, were not'to be responsible for any act performed in good faith, and were to be indemnified and held harmless by the members from any loss or liability that they might be subjected to. In the event of vacancies, successors to syndicate managers might be appointed by the members. The managers were entitled to compensation under certain conditions. The syndicate might be terminated by the managers or by members holding at least two-thirds of the beneficial interest, and upon termination the syndicate property was to be delivered to the members in their proper proportions, and if there should be a loss, each member was required forthwith to pay his proper proportion to the managers. No assignment by a syndicate member of his interest could be made effective until written notice thereof had been delivered to the managers, “nor shall any assignment release the syndicate member so assigning from liability hereunder unless the syndicate managers shall so agree in writing.” The agreements were to be executed in any number of counterparts, each constituting a single agreement. No certificates or other evidence of interest were provided for in the agreement, nor were any ever issued.
Syndicate No. 1 was the original syndicate, through which six properties were purchased. The purpose of syndicate No. 2 was the purchase and resale of St. Mary’s College property. Syndicate No. 3 acquired two properties, and syndicate No. 4 was formed to acquire what is called the Gross property. No other properties were purchased.
The anticipated rise in values did not occur. There was instead a decline which continued throughout the subsequent years. By reason of these circumstances, the syndicate managers were compelled to operate certain of the buildings and to rent the remaining unimproved properties, these latter being temporarily appropriated for a variety of purposes. Prior to 1930, two properties only were resold, the remainder in the latter year being transferred to corporations.
At the commencement of the operations an arrangement was made with 'a bank to provide the funds origjnally required for the purchase of the several properties, these funds being advanced on the notes of the syndicate managers. The acquisitions were made on the recommendation of the bank and a firm of real estate brokers in Oakland. Believing that a disclosure of the identities of the real parties in interest would result in an immediate increase in. prices, precautions were taken to conceal the identities of the members of the syndicate. Accordingly, title to all properties was taken in the name of one or the other of two title companies.
The syndicates, as such, had no name. There were no officers except as the managers might be so considered. The agreements provided the sole evidence of the interest of the several members, and each member received an executed counterpart. While the agreements gave the managers broad and exclusive powers, the practice was to decide all questions of importance only after the views of all concerned had been obtained. The managers did not organize. The bank, as fiscal agent, kept all records pertaining to syndicate affairs. It rented the improved properties, collected the rents, and paid all expenses. From time to time the syndicate members were called upon to supply funds to the bank proportionate to their respective subscriptions. The funds advanced by the bank on the notes of the syndicate managers, both for the acquisition and subsequent maintenance of the properties, were repaid directly to the bank by the members on calls prepared and issued by the bank directly to the members. As security for the repayment of advances, the bank held declarations of trust covering the syndicate assets executed- by the title companies — the holders of the record title — these declarations of trust being executed with the consent of the managers. The bank was compensated for the services rendered by it.
Large operating losses were sustained by the syndicates during the years in question. The members deducted on 'their individual returns for those years their respective proportions of the losses, and these were disallowed by the Commissioner. The Boai;d disagreed with the Commissioner, holding that the syndicates were not associations taxable as corporations, and that operating losses were allowable to the members.
In Morrissey v. Commissioner, 296 U.S. 344, 56 S.Ct. 289, 295, 80 L.Ed. 263, the court, after reviewing the decisions in Crocker v. Malley, 249 U.S. 223, 39 S.Ct. 270, 63 L.Ed. 573, 2 A.L.R. 1601; and Hecht v. Malley, 265 U.S. 144, 44 S.Ct. 462, 68 L.Ed. 949, said: “While it is impossible in the nature of things to translate the statutory concept of ‘association’ into a particularity of detail that would fix the status of every sort of enterprise or organization which ingenuity may create, the recurring disputes emphasize the need of a further examination of the congressional intent.” Definitions-of the term “association” showing the ordinary meaning of the term as “applicable to a body 'of persons united without a charter ‘but upon the methods and forms used by incorporated bodies for the prosecution of some common enterprise,”’ were there said to be helpful, but not to be accepted to the extent of making mere formal procedure a controlling test. “While the use of corporate forms may furnish persuasive evidence of the existence of an association, the absence of particular forms, or of the usual terminology of corporations, cannot be regarded as decisive.” Again, it is said that “the inclusion of associations with corporations implies resemblance ; but it is resemblance and not identity.” Certain salient features of corporate organization, as furnishing analogies, are pointed out by the court. Thus it is said, in substance, that a corporation, as an entity, holds the title to the property embarked in the undertaking; it furnishes centralized management through representatives ; it insures continuity of enterprise; it facilitates the transfer of beneficial interests and the introduction of large numbers of participants; and it permits the limitation of personal liability of participants to the property embarked in the undertaking.
Certain of these features were present in the syndicates involved. While title to the assets was not taken in. the supposed entity or in the syndicate managers, continuity of the enterprise was effected, insuring against disturbance resulting from death or from the transfer of ownership of beneficial interests. Centralized management was provided for in the agreements, notwithstanding in practice there was general consultation before important decisions were reached. See - Helvering v. Coleman-Gilbert Associates, supra, note. In other respects, these syndicates lack analogy to corporations. Two of the characteristic advantages of corporate organization have been generally thought to be the limited liability of the members, and a ready divisibility and transferability of beneficial interests, making toward the inclusion in the enterprise of large numbers of participants. The liability of the syndicate members was not limited. Their beneficial interests were not readily or conveniently transferable. There were no shares, certificates, or other evidence of interest beyond each member’s copy of the agreement. While, in a few instances, divisions were made of their interest by members, orally or in writing, those acquiring proportionate shares of the interest of these members' were never consulted, and no calls were ever made upon them. Their relations were entirely with the member with whom they had originally dealt and from whom their respective interests were acquired. While, as was said in Morrissey v. Commissioner, supra, “the test of an association is not to be found in the mere formal evidence of interests or in a particular method of transfer,” yet the absence of familiar provision for adequate evidence of interest or of any convenient method of transfer is important to be considered.
In A. A. Lewis & Co. v. Commissioner, 301 U.S. 385, 57 S.Ct. 799, 801, 81 L.Ed. 1174, it was said that the trust reviewed in Morrissey v. Commissioner, supra, “was a medium for the carrying on of a business enterprise by the trustees-and participation in the profits by numerous beneficiaries whose interests were represented by transferable share certificates, thus permitting the introduction of new participants without affecting the continuity of the plan. The certificates represented both preferred and common shares. We pointed out that the corporate analogy was evidenced by centralized control, continuity and limited liability, as well as by the issue of transferable certificates.”
An attempted analysis of the character and functions of the syndicates here involved leads to no entirely satisfying conclusion as to what they are. In some respects they resemble partnerships, in others corporations, and in the main they are markedly different from either. The Board held that they were joint ventures, citing the definition of such given in 33 C.J. 841 as “a special combination of two or more persons, where, in some specific venture, a profit is jointly sought, without actual partnership or corporate designation.” It was thought by the Board that the assets acquired through the syndicate activities were the property of the members, as tenants in common, citing McCausey v. Burnet, 60 App. D.C. 201, 50 F.2d 491, and Clark v. Sidway, 142 U.S. 682, 12 S.Ct. 327, 35 L.Ed. 1157. It seems clear that the members were equitable owners of the real property acquired, and that their beneficial interests were not merely personal claims against the syndicate managers.
No useful purpose would be 'served by further review of the many authorities dealing with various aspects of this difficult subject. Attention will be called only to two recent cases involving opposite sets of facts and illustrating the views that have been taken following on the decision of Morrissey v. Commissioner, supra. These are Monrovia Oil Co. v. Commissioner, 9 Cir., 83 F.2d 417, decided by this court, and Myers v. Commissioner, 89 F.2d 86, decided by the Circuit Court of Appeals for the 7th Circuit.
We hold that the syndicates were not associations within the meaning of the applicable statute, and the decision of the Board is therefore affirmed.
And see the cases immediately following: Swanson v. Commissioner, 296 U.S. 362, 56 S.Ct. 283, 80 L.Ed. 273; Helvering v. Combs, 296 U.S. 365, 56 S.Ct. 287, 80 L.Ed. 275; Helvering v. Coleman-Gilbert Associates, 296 U.S. 369, 56 S.Ct. 285, 80 L.Ed. 278.
Question: Did the agency articulate the appropriate general standard? This question includes whether the agency interpreted the statute "correctly". The courts often refer here to the rational basis test, plain meaning, reasonable construction of the statute, congressional intent, etc. This issue also includes question of which law applies or whether amended law vs law before amendment applies.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_petitioner | 027 | 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.
UNITED STATES v. NATIONAL CITY LINES, INC. et al.
No. 544.
Argued April 28, 1948.
Decided June 7, 1948.
Charles H. Weston argued the cause for the United States. With him on the brief were George T. Washington, Acting Solicitor General (for this case), Assistant Attorney General Sonnett, Robert G. Seaks and Philip Elman.
C. Frank Reavis argued the cause for appellees. With him on the brief were Martin D. Jacobs, Horace G. Hitchcock, Oscar A. Trippet, Henry M. Hogan, N. J. Rosiello, H. D. Emery, Rayburn L. Foster, R. B. F. Hummer, Hubert T. Morrow, Marshall P. Madison, Eugene M. Prince, Francis R. Kirkham and Everett A. Mathews.
Mr. Justice Rutledge
delivered the opinion of the Court.
In United States v. Scophony Corp., 333 U. S. 795, we recently considered the meaning and effect of § 12 of the Clayton Act, providing for venue and service of process in civil antitrust proceedings against private corporations. This case brings before us another phase of the section’s effect in like proceedings. The principal question, and the only one we find it necessary to consider, is whether the choice of forums given to the plaintiff by § 12 is subject to qualification by judicial application of the doctrine of jorum non conveniens.
The suit was brought by the United States against nine corporations for alleged violation of §§ 1 and 2 of the Sherman Act. 26 Stat. 209, 15 U. S. C. §§ 1, 2. The basic charge is that the appellees conspired to acquire control of local transportation companies in numerous cities located in widely different parts of the United States, and to restrain and monopolize interstate commerce in motorbusses, petroleum supplies, tires and tubes sold to those companies, contrary to the Act’s prohibitions. Injunctive and other relief of an equitable nature was sought.
The appellees filed various motions, including the one involved in this appeal. It sought dismissal of the complaint on the ground that the District Court for the Southern District of California was not a convenient forum for the trial. This motion was supported by a showing not only of inconvenience to the defendants of trial in the California district, but also that the District Court for the Northern District of Illinois, Eastern Division (Chicago), would be the most convenient forum for them. The showing was by affidavits, executed by officers, attorneys and employees of the corporate defendants. Counteraffidavits were filed in opposition on behalf of the Government.
After oral argument, the District Court filed findings of fact and conclusions of law together with a written opinion, substantially accepting appellees’ showing and sustaining the motion. 7 F. R. D. 456. Accordingly it entered judgment dismissing the complaint, but without prejudice to the institution of a similar suit against the named defendants “in a more appropriate and convenient forum.” This decision is brought to us for review on direct appeal pursuant to the statutes applicable in such cases.
It is not disputed that the District Court has jurisdiction in the basic sense of power to hear and determine the cause or that it has venue within the provisions of § 12. Nor can it be questioned that any of the defendants can be brought personally within that court’s jurisdiction by service of process made in accordance with the provisions of either § 12, or those of § 5 of the Sherman Act. The only question presented concerning the court’s power is whether, having jurisdiction and venue of the cause and personal jurisdiction of the defendants, the court also was authorized to decline to exercise its jurisdiction upon finding, without abuse of discretion, that the forum was not a convenient one within the scope of the non-statutory doctrine commonly, though not too accurately, labeled jorum non conveniens.
It would serve no useful purpose to review in detail the reasoning or the authorities upon which the District Court ruled the doctrine applicable in such cases as this, or therefore the further groundings upon which it proceeded in holding the forum inconvenient. For the view has prevailed without qualification during the life of § 12, thirty-four years, that the choice of venues expressly given to the plaintiff is not to be qualified by any power of a court having venue under any of the section’s alternatives to decline to exercise the jurisdiction conferred. None of the decisions on which the District Court relied suggested, much less decided, that such a power exists. This therefore is a case of first impression, seeking departure from long-established practice. Moreover, the analogies drawn from other types of cases in which the doctrine has been applied cannot survive in the face of the section’s explicit terms and the patent intent of Congress in enacting it.
In the Scophony case we gave attention to the history of § 12, which as there related is as pertinent to the question now presented as it was to the issues then under consideration. Reference to the Scophony opinion, Part I, 333 U. S. at 802-810, will avoid the necessity for repeating the history here in extenso. But its present applicability will be accentuated by recalling that we reaffirmed the ruling in Eastman Co. v. Southern Photo Co., 273 U. S. 359, namely, that § 12 of the Clayton Act had enlarged the venue provision of § 7 of the Sherman Act, with the intent and effect to give the plaintiff the right to bring antitrust proceedings not only in the districts where the corporate defendant “resides or is found,” as § 7 had authorized, but also “in any district wherein it . . . transacts business.”
In the Eastman case, as the Scophony opinion emphasized, the Court had rejected the argument that the addition of “or transacts business” was no more than a redundant reformulation of “is found”; instead it gave the added words broader and less technical meaning than “is found” had acquired under prior decisions. This was done, as the Eastman opinion stated, because accepting the contrary view would have rendered the addition meaningless and defeated the plain remedial purpose of § 12. 273 U. S. at 373. That section, the Court held, supplemented “the remedial provision of the Anti-Trust Act for the redress of injuries resulting from illegal restraints upon interstate trade, by relieving the injured person from the necessity of resorting for the redress of wrongs committed by a non-resident corporation, to a district, however distant, in which it resides or may be 'found’ — often an insuperable obstacle — and enabling him to institute the suit in a district, frequently that of his own residence, in which the corporation in fact transacts business, and bring it before the court by the service of process in a district in which it resides or may be ‘found.’ ” (Emphasis added.) 273 U. S. at 373-374.
The Scophony opinion reaffirmed this view: “Thus, by substituting practical, business conceptions for the previous hair-splitting legal technicalities encrusted upon the ‘found’-'present’-'carrying-on-business’ sequence, the Court yielded to and made effective Congress’ remedial purpose. Thereby it relieved persons injured through corporate violations of the antitrust laws from the ‘often insuperable obstacle’ of resorting to distant forums for redress of wrongs done in the places of their business or residence. A foreign corporation no longer could come to a district, perpetrate there the injuries outlawed, and then by retreating or even without retreating to its headquarters defeat or delay the retribution due.” 333 U. S. at 808.
These conclusions concerning the section’s intent and effect are altogether inconsistent with any idea that the defendant corporation can defeat the plaintiff’s choice of venue as given, by asking for and securing dismissal of the suit, either on the ground that the venue selected within the statutory limits is inconvenient for the defendant or that another authorized venue is more convenient for it.
No such discretionary power had been exercised by any court during the twenty years of the Sherman Act’s application prior to the enactment of § 12, under the narrower range of choice afforded by § 7. None had been suggested, and uniform practice had established that the plaintiff’s choice was conclusive, as was true later under § 12 until the deviation in this case.
When therefore Congress came to face the problem of making the nation’s antitrust policy more effective through the Clayton Act’s provisions, that body was not confronted with any problem of abuse by plaintiffs in selecting venue for antitrust suits; nor was it concerned with any question of providing means by which the defendants in such suits might defeat the plaintiff’s choice to serve their own convenience. Congress’ concern was quite the opposite. It was to provide broader and more effective relief, both substantively and procedurally, for persons injured by violations of its antitrust policy. Insofar as convenience in bringing suit and conducting trial was involved, the purpose was to make these less inconvenient for plaintiffs or, as was said in the Eastman opinion, to remove the “often insuperable obstacle” thrown in their way by the existing venue restrictions.
To have broadened the choice of venue for the reasons which brought about that action, only to have it narrowed again by application of the vague and discretionary power comprehended by jorum non conveniens, would have been incongruous, to say the least. In making the change Congress did not authorize plaintiffs to institute civil antitrust suits in the newly specified districts, merely in order to have them transferred back for trial to one of the districts comprehended by § 7. It intended trial to take place in the district specified by the statute and selected by the plaintiff.
This conclusion is supported as strongly by the history of the legislative proceedings relating to the enactment of § 12 as by the foregoing judicial constructions. Section 7 of the Sherman Act had limited venue, as we have noted, to districts in which the defendant “resides or is found.” As originally introduced in the House, two sections of the Clayton Act, §§ 4 (then § 5) and 12 (then § 10), perpetuated those provisions. During discussion on the floor, however, various Representatives demanded broader choice of venue for plaintiffs. The demand related to both sections, and the discussion went forward now with reference to one, now the other, now both.
The basic aim of the advocates of change was to give the plaintiff the right to bring suit and have it tried in the district where the defendant had committed violations of the Act and inflicted the forbidden injuries. At first they were not much concerned with the exact formulation of the language to accomplish this, several formulas being proposed from time to time. But they were convinced that restricting the choice of venue to districts in which the defendant “resides or is found” was not adequate to assure that the suit could be brought where the cause of action arose, and therefore insisted on change in order to assure that result.
The committee sponsoring the bill had no objection to this purpose; indeed its members expressly approved it. But at first they opposed any amendment, because they thought the object fully achieved by the words “is found.” Over this difference the discussion went forward, as well as over various formulations of the proposed addition. Some were broader than was necessary to achieve the primary aim. Indeed some were so broad that committee members thought their inclusion would jeopardize passage of the entire bill.
To avoid this result and to satisfy those who insisted on amendment, the committee yielded and proposed a substitute amendment for one of those offered from the floor relating to § 4. The committee substitute added the words “or has an agent” after “is found” in the original committee version. 51 Cong. Rec. 9466. This amendment passed the House and later the Senate unchanged. Id. 9467. Section 4 thus became law in its present form, for the limited class of cases covered by its terms. Cf. note 18.
Since however the amendment affected only § 4, the problem concerning § 12 remained unresolved. Suggestions therefore were made at once for amending § 12 to bring it into conformity with § 4. Id. 9467, 9607. Although other proposals were again put forward, id. 9607, the conforming amendment was adopted by the House. Ibid.
After the bill passed the House, it was referred to the Senate Committee on the Judiciary. That committee reported it out with § 12 altered by the substitution of “or transacts business” in place of “or has an agent,” but leaving the latter clause in § 4 untouched. The Senate committee reports and the debates in that body throw little light upon the reasons underlying the committee’s alteration of § 12 and its failure to alter § 4 so as to make them uniform, except for the general statement that § 12 as reported “concerns the venue or the place where suits to enforce the antitrust laws against corporations may be brought and liberalizes the Sherman law to some extent upon this subject.” The bill finally passed the Senate with § 12 substantially as it was reported by the Committee on the Judiciary, and went to conference in that form. In conference the Senate version of § 12 prevailed over that of the House, and the bill was so enacted.
The short outcome was that Congress expanded the venue provisions of the Sherman Act, § 7, in two ways, viz: (1) by adding to “resides or is found,” in § 4 of the Clayton Act, the words “or has an agent”; (2) in § 12 by adding “or transacts business.” Thus strict uniformity in the two sections’ venue provisions was not achieved. But whatever their differences may be, each addition was designed to aid plaintiffs by giving them a wider choice of venues, and thereby to secure a more effective, because more convenient, enforcement of antitrust prohibitions.
Moreover the discussions in Congress, particularly in the House, disclose no other thought than that the choice of forums was given as a matter of right, not as one limited by judicial discretion. There was, in fact, common agreement upon this among both the advocates and the opponents of amendment. No one suggested that the courts would have discretionary power to decline to exercise the jurisdiction conferred. But since it was universally agreed that the choice of venue, to whatever extent it might be conferred, was to be given as a matter of right, several of the broader amendments were opposed and defeated as going too far.
Congress therefore was not indifferent to possibilities of abuse involved in the various proposals for change. Exactly the opposite was true. For the broader proposals were not rejected because they gave the plaintiff the choice. They were rejected because the choice given was too wide, giving plaintiffs the power to bring suit and force trial in districts far removed from the places where the company was incorporated, had its headquarters, or carried on its business. In adopting § 12 Congress was not willing to give plaintiffs free rein to haul defendants hither and yon at their caprice. 51. Cong. Rec. 9466, 9467. But neither was it willing to allow defendants to hamper or defeat effective enforcement by claiming immunity to suit in the districts where by a course of conduct they had violated the Act with the resulting outlawed consequences. In framing § 12 to include those districts at the plaintiffs’ election, Congress thus had in mind not only their convenience but also the defendant company’s inconvenience, and fixed the limits within which each could claim advantage in venue and beyond which neither could seek it. Moreover, in § 12, though not in § 4, the right of choice conferred was given designedly to the Government as well as to private suitors.
In the face of this history we cannot say that room was left for judicial discretion to apply the doctrine of forum non conveniens so as to deprive the plaintiff of the choice given by the section. That result, as other courts have concluded, would be utterly inconsistent with the purpose of Congress in conferring the broader range of choice. Tivoli Realty v. Interstate Circuit, 167 F. 2d 155; Ferguson v. Ford Motor Co., 77 F. Supp. 425.
In this view of Congress’ action, numerous considerations of policy urged by the appellees as supporting the discretionary power’s existence and applicability become irrelevant. Congress’ mandate regarding venue and the exercise of jurisdiction is binding upon the federal courts. Const. Art. Ill, § 2. Our general power to supervise the administration of justice in the federal courts, cf. McNabb v. United States, 318 U. S. 332, does not extend to disregarding a validly enacted and applicable statute or permitting departure from it, even in such matters as venue.
It is true that the appellees made a strong showing of inconvenience, albeit by interested persons, when that matter is considered on their presentation alone. On the other hand, the Government advanced strong reasons, apart from the question of power, for not applying the doctrine. But in the view we take of § 12, we need not consider whether the appellees’ showing on the facts sufficiently outweighed that of the Government to justify dismissal.
Two important policy considerations were advanced by the Government, however, which not only bear strongly upon that question but affect the question of power, if Congress had not concluded it. The first is that permitting the application of jorum non conveniens to antitrust cases inevitably would lengthen litigation already overextended in the time required for its final disposition, and thus would violate Congress’ declared policy of expediting this type of litigation.
The argument has merit to support the conclusion we have reached upon the statute. Antitrust suits, even with all the expedition afforded them, are notoriously though often perhaps unavoidably long drawn out. The more complex and important cases seldom require less than three to five years to conclude, except possibly where consent decrees are entered. Often the time necessary or taken is much longer. To inject into this over lengthened procedure what would amount to an additional preliminary trial and review upon the convenience of the forum could not but add approximately another year or longer to the time essential for disposing of the cases, indeed for reaching the merits. Although some instances of inconvenience to defendants will arise from the absence of discretionary power, that will be unavoidably true in almost any event. And it may well be doubted that the sum total of inconvenience and injustice resulting will be as great as would follow, for both private plaintiffs and the public, from allowing the inescapable delay-incident to the exercise of such a discretionary power. For once the power were found to exist, it is more than likely that injection of the issue would become a common incident of antitrust suits, and create the disadvantage of delay for all concerned.
This consideration is reinforced by another, namely, the difficulty of applying the doctrine in cases such as this, in which the violations charged are nationwide or nearly so in scope and effect, and the defendants are numerous companies widely scattered in the location of their places of incorporation, principal offices, and places of carrying on business and participating in the scheme. In such a case dismissal in one authorized district cannot reinstate or transfer the cause to another. Nor can the court, within the limits of the doctrine, specify the district in which the case shall be reinstituted and tried. It can only terminate the pending proceeding, as was done here, without prejudice to commencement of a like suit “in a more appropriate or convenient forum,” with whatever consequences may follow from having to begin all over again.
Further, when that is done, the result well may be in some instances to have the action commenced again, only to precipitate the same issue and consequent delay in the second forum. Conceivably this could occur from forum to forum in succession, depending upon the number of corporations named as defendants and the variety, proximity, and degree of concentration of the locations of their principal offices, places of business, and the relative advantages of other available forums for the variously situated defendants. Accordingly, in an unknown number of such cases the practical result well might be to establish a merry-go-round of litigation upon the issue, which could be used to defer indefinitely consideration of the merits. The very possibility of such a tactic would greatly hamper the institution as well as the conclusion of antitrust proceedings. Indeed, for cases of this complex type, the uncertainty concerning the outcome of an effort to apply the doctrine might go far toward defeating the Act's effective application to the most serious and widespread offenses and offenders.
Further, even if it is taken that the appellees’ activities constituting the core of the violations charged were as fully concentrated in or near the Illinois district as ap-pellees claim, such a concentration might or might not exist in other like proceedings. And in the latter event the problem of selecting the appropriate forum well might become a highly uncertain and difficult one.
The appellees also strongly urge two other considerations which deserve mention. One is that a criminal prosecution against the appellees (together with seven individuals, officers of some of them), pending in the California district simultaneously with this cause and growing out of substantially the same transactions, had been transferred to the Illinois district shortly before the District Court entered its judgment of dismissal. The transfer was ordered pursuant to Rule 21 (b) of the Federal Rules of Criminal Procedure. That action was taken after the District Court had made findings of fact and conclusions of law founded upon and substantially adopting the appellees’ showing, which was practically identical with their showing in this case. Consequently, as the cases now stand, the criminal cause is to be tried in the Illinois district while this civil suit founded upon practically the same transactions and affecting the same corporate defendants is to be tried in the California district.
Great emphasis is placed upon this as an impelling reason for holding jorum non conveniens applicable here, and then sustaining the order of dismissal under that doctrine and the District Court’s findings. But, for the reasons above stated, we think the matter has been concluded by the terms and intent of § 12. Moreover, it is at least doubtful whether the Government had a right to appeal from the order of transfer in the criminal case. In any event, the validity of that order is not before us. . We therefore express no opinion upon either of those questions. But the fact that we cannot do so goes far to nullify the effect of appellee’s argument of hardship arising from the transfer. For that argument comes down, in the peculiar circumstances, to one that because the District Court on appellees’ application has transferred the criminal cause by a dubiously reviewable order, perforce of that action it should also dismiss this civil cause and we should sustain the dismissal.
In practical effect the outcome of accepting such an argument as ground for sustaining both the power and the dismissal would be to make Rule 21 (b) controlling in civil as well as criminal cases involving the same transactions and parties, thus overriding § 12, and at the same time depriving the plaintiff in the civil cause of anything more than perfunctory review of the District Court’s order of dismissal.
Hardly can it be taken that Rule 21 (b) was intended so to override the provisions of § 12, to confer power on the District Courts to do so, or to nullify the plaintiff’s right of appeal from an order depriving it of the statutory privilege of choosing the venue. Yet these would be the practical results, if the consideration that the court has ordered transfer of the criminal case is to be controlling or highly influential, as it undoubtedly would be in most cases, in applying the doctrine of jorum non conveniens in the civil cause. If matters of policy were material, these possible consequences would add force to the view that the doctrine is not applicable.
Moreover, if the transfer should result in hardship to the appellees, insofar as the hardship arises from that cause it is one which was avoidable by them and will be incurred as a result of their own action in applying for it. That they have voluntarily incurred it is no good reason for depriving the plaintiff of its statutory right of choice under the terms and policy of § 12 in the entirely distinct civil suit.
Finally, both appellees and the District Court have placed much emphasis upon this Court’s recent decisions applying the doctrine of jorum non conveniens and in some instances extending the scope of its application. Whatever may be the scope of its previous application or of its appropriate extension, the doctrine is not a principle of universal applicability, as those decisions uniformly recognize. At least one invariable, limiting principle may be stated. It is that whenever Congress has vested courts with jurisdiction to hear and determine causes and has invested complaining litigants with a right of choice among them which is inconsistent with the exercise by those courts of discretionary power to defeat the choice so made, the doctrine can have no effect. Baltimore & O. R. Co. v. Kepner, 314 U. S. 44; Miles v. Illinois Central R. Co., 315 U. S. 698. The question whether such a right has been given is usually the crux of the problem. It is one not to be answered by such indecisive inquiries as whether the venue or jurisdictional statute is labeled a “special” or a “general” one. Nor is it to be determined merely by the court’s view that applicability of the doctrine would serve the ends of justice in the particular case. It is rather to be decided, upon consideration of all the relevant materials, by whether the legislative purpose and the effect of the language used to achieve it were to vest the power of choice in the plaintiff or to confer power upon the courts to qualify his selection.
This is a case in which the pertinent factors make clear that the courts were given no such power. Accordingly the judgment is
Reversed.
“Sec. 12. That any suit, action, or proceeding under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” 38 Stat. 736,15 U. S. C. § 22.
These, with the states of their incorporation and their principal places of business, are as follows:
Corporation State of incorporation Principal place of business
National City Lines, Inc. Delaware Chicago
American City Lines, Inc.
Pacific City Lines, Inc. Oakland, Calif.
Standard Oil Co. of California “ San Francisco
Federal Engineering Corp. California “
Phillips Petroleum Co. Delaware Bartlesville, Okla.
General Motors Corp. “ Detroit, Mich.
Firestone Tire & Rubber Co. Ohio Akron, Ohio
Mack Manufacturing Corp. Delaware New York
Forty-four cities in sixteen states are included. The states are as widely scattered as California, Florida, Maryland, Michigan, Nebraska, Texas and Washington. The larger local transportation systems include those of Baltimore, St. Louis, Salt Lake City, Los Angeles and Oakland. The largest concentrations of smaller systems are in Illinois, with eleven cities; California with nine (excluding Los Angeles); and Michigan with four. The local operating companies were not named as parties defendant.
The appellee companies fall into two groups. The largest, which may be called the supplier group, includes the six last named in note 2 above. Except Federal, they are engaged in producing and distributing the commodities purchased by the local operating companies, the sale of which is charged to be monopolized and restrained. Federal is a wholly owned subsidiary of Standard, engaged in managing investments for Standard.
The other group, including the first three companies listed in note 2, is collectively called City Lines. National is a holding company with operations directed from Chicago. American and Pacific are its subsidiaries. The three own, control or have substantial interests in the operating companies.
The complaint charges that the supplier appellees furnish capital to Cily Lines for acquiring control of the local operating systems, upon the understanding that City Lines cause all requirements of the local systems in busses, petroleum products, tires and tubes to be purchased from the supplier appellees and no other sellers.
The prayer of the complaint sought complete divestiture of the supplier appellees’ financial interests in City Lines; partial divestiture of City Lines’ interests in local transportation companies; voiding of existing contracts between the supplier appellees and City Lines; and an injunction against purchases from those suppliers by City Lines or their operating companies, except in accordance with a competitive bidding plan to be included in the decree.
In highly attenuated summary the showing was that the transactions creating the core of the charged conspiracy took place chiefly in or near Chicago; appellees’ chief witnesses and documentary evidence are located there; their transportation to Los Angeles and extended presence there will cause great hardship; no defendant “resides” or has its principal office or place of business in the California district (cf. note 2); and two trials in distant cities, see text infra at note 41, will greatly magnify the hardship. See 7 F. R. D. 456,465.
The Government stresses that three of the five supplier defendants transact business and are “found,” cf. note 1, in the California district; the volume of sales allegedly restrained is much greater on the Pacific Coast than elsewhere; substantial portions of the evidence, oral and documentary, will be produced from California, etc. Cf. 7 F. R. D. 456,465.
32 Stat. 823, 36. Stat. 1167, 15 U. S. C. §29; 43 Stat. 938, 28 U. S. C. § 345.
It is conceded that three of the defendants, Standard, General Motors, and Firestone, transact business within the Southern District of California. The others apparently were served either pursuant to the concluding clause of § 12 or pursuant to § 5 of the Sherman Act. See note 10 infra.
“Sec 5. Whenever it shall appear to the court before which any proceeding under section four of this act may be pending, that the ends of justice require that other parties should be brought before the court, the court may cause them to be summoned, whether they reside in the district in which the court is held or not; and subpoenas to that end may be served in any district by the marshal thereof.” 26 Stat. 210, 15 U. S. C. § 5. Section 4 of the Sherman Act (i. e., “this act”) refers specifically to civil actions brought by the Government. Cf. Eastman Co. v. Southern Photo Co., 273 U. S. 359, 374.
See note 46 infra.
In the Scophony ease we were concerned, not as here with any question of discretion to decline the exercise of jurisdiction, but in presently pertinent part with the tests of venue prescribed by the section and whether, on the facts presented, those tests had been met, so as to establish venue in the district of suit.
See note 1.
See United States v. Scophony Corp., 333 U. S. 795, Part I at 802-810.
The Clayton Act hardly can be regarded as a statute for the relief of corporate defendants in antitrust proceedings from either procedural or substantive abuses. See Levy, The Clayton Law— An Imperfect Supplement to the Sherman Law, 3 Va. L. Rev. 411.
"Wisely, it has not been attempted to catalogue the circumstances which will justify or require either grant or denial of remedy. The doctrine leaves much to the discretion of the court to which plaintiff resorts, and experience has not shown a judicial tendency to renounce one’s own jurisdiction so strong as to result in many abuses.
“If the combination and weight of factors requisite to given results are difficult to forecast or state, those to be considered are not difficult to name. An interest to be considered, and the one likely to be most pressed, is the private interest of the litigant. . . . The court will weigh relative advantages and obstacles to fair trial.” Gulf Oil Corp. v. Gilbert, 330 U. S. 501,508.
The Eastman opinion referred to the disadvantages suffered by plaintiffs under § 7 of the Sherman Act who were injured where they resided or conducted their business, only to be forced to seek out the wrongdoing company in a distant forum to secure venue and service of process, and therefore also to transport witnesses and incur other disadvantages in trial. 273 U. S. 359, 373-374. Likewise the legislative discussions hereinafter cited uniformly treat the problem as one involving both instituting the suit and trying it. There is no hint that it was contemplated the two phases of the litigation might be separated and conducted in different places. See, e. g., notes 31 and 32 infra.
Section 12 began as § 10, became § 11 in the Senate, and finally § 12 in conference. Similarly, § 4 began as § 5, changed first to § 3, and finally to § 4. Section 4 provides for recovery of treble damages in private antitrust proceedings and its venue provisions apply in terms only to such suits. Section 12 applies to “any suit, action, or proceeding under the antitrust laws against a corporation.” This literally is broad enough to include the suits comprehended by §4.
The original wording of the two sections in respect to venue was slightly different but the substance was identical, both following the preexisting provisions of § 7 of the Sherman Act.
E. g., Representative Dickinson urged that the language “be extended sufficiently to reach every contingency, so that these concerns may be sued in that jurisdiction where they commit the wrong, where the acts complained of may be committed, where the officers, agents, or employees, acting for their master corporation, may be found setting aside the law, and where the witnesses are easily obtainable . . . .” 51 Cong. Rec. 9190. Later he stated that he wanted to “give the widest liberty of bringing suits where the damage is done and where the action arose.” 51 Cong. Rec. 9417.
Representative Sumners spoke to the same effect: “Mr. Chairman, I believe this matter of venue is one of the most important connected with the whole subject of antitrust legislation. . . . The philosophy of legislation with regard to this subject should give the venue at the place wherein the cause of action arises.” Id. 9467. See also id. 9414, 9415, 9608.
“Why not at the end of the section, after the word 'found,’ add other words, such as 'doing business, or violating the provisions of this law, or wherever it may do business or where its agents, officers, or employees may be found,’ or other appropriate language. A dozen suggestions may be made in the way of amendment.” Id. 9190. See also id. 9414-9417,9466, 9607,9663,9682.
“Mr. Scott. What is the gentleman’s understanding of the word 'found’; what is its import as used in this section ?
“Mr. Dickinson. I understand that there is some decision by some court that I am not very familiar with that may possibly cover the very thought suggested by my proposed amendment. I do not believe that it meets the situation, and if there be any doubt about it, in order that the Government may prosecute successfully and institute suits and actions and have trials the language ought to be clear and definite, and so plain that he who runs may read, so that there can not be two constructions.” Id. 9415.
“Mr. Cullop. May I suggest . . . that every suit which has arisen under the Sherman antitrust law has been brought at the home of the corporation itself, or at its principal place of business, and therefore there was no occasion to construe this language, ‘is found/ which is ambiguous and uncertain. If you are to construe ‘is found/ you will have to construe that as the place of the residence of the corporation, because it is not migratory. You can not get service upon some person traveling throughout the country and hold your jurisdiction throughout that territory.
“Mr. Carlin. Why should not the suit be brought in the habitat of the corporation ? We have been successful so far in that matter.
“Mr. Cullop. In this case for the very best reason, I think. The gentleman from Virginia [Mr. Carlin] now has disclosed the purpose of this language, and that is why I am combating it, and for the best of reasons, I think. I do not want to make a resident of California come to Trenton, N. J., to bring a suit for violation of this law, but I want him to sue at home in the jurisdiction where the cause of action arose.” Id. 9416. See also id. 9466-9467, 9607-9608, 9663-9664.
E. g., Representative Floyd stated that the provisions were designed “to give the Government the widest possible scope in getting service in these cases, and the provision is right as it is written and ought not to be changed.” Id. 9416.
“Mr. Floyd. . . . The very broadest language that can be used in a statute of this kind conferring jurisdiction is to give the jurisdiction where the corporation resides or is found.” Id. 9415. And “I think the provisions relating to service properly drafted as they appear in the bill, and that the proposed amendment and others suggested in the debate would narrow the scope of the provisions as drawn.” Id. 9417. And see id. 9608.
See, e. g., Representative Cullop’s suggestion to confer jurisdiction on state courts without a right of removal to the federal courts. Id. 9662-9664.
In opposing the suggestion to confer jurisdiction on the state courts, Representative Floyd argued, inter alia, that “any friend of this legislation, as I am sure the gentleman from Indiana [Representative Cullop] is, ought not to aid those who are fighting this legislation — the trusts and the combines of this country — by loading it down with questionable amendments that will tend to defeat it and destroy it in the end.” Id. 9663.
In place of the House amendment to § 12 of “or has an agent,” the Senate committee substituted this language: “or transacts any business; and all process in such cases may be served in the district of which it is an inhabitant, or wherever it may be found.” Sen. Rep. No. 698,63d Cong., 2d Sess. 73.
51 Cong. Rec. 14214. See id. 14596, 15943, 16048-16052.
An amendment providing for stockholder suits against officers of a corporation violating the antitrust laws was added by the Senate but deleted in conference. See the references cited in note 28.
Sen. Doc. No. 583, 63d Cong., 2d Sess. 9. Sen. Doc. No. 584, 63d Cong., 2d Sess. 18.
See notes 25, 26. The following are examples of the discussion on the plaintiff’s right to choose: “Mr. Dickinson. ... I do not ask to strike out any language of the committee, but simply to add to it, to make clear and definite and certain so that any person and any corporation may be sued not only where it has its residence as a corporation or individual, but that it can be sued wherever it is found doing business and the cause of action may arise.
“Mr. Stephens of Texas. ... I thoroughly agree . . . 51 Cong. Rec. 9414.
“I will say to my friend from Wisconsin [Mr. Stafford] that we are liberalizing the procedure in the courts in order to give the individual who is damaged the right to get his damages anywhere— anywhere you can catch the offender, as is suggested by a friend sitting near by.” The quoted language is that of Representative Webb. 51 Cong. Rec. 16274. See id. 9467, 9607; also note 32.
Mr. Scott. I could not conceive that anything would deprive the plaintiff of his right to choose the place of trial if he so desired, either in the district where found or where the corporation resides.” Id. 9417.
“Mr. Scott. . . . The amendment enlarges the present interpretation of the word ‘found’ as applied to the corporate jurisdiction, and permits suit to be brought, with absolute discretion on the part of the plaintiff, in any district in which the defendant may have an agent, without defining the character of that agent.” (Emphasis added.) Id. 9467.
Representative Floyd remarked that the committee “language was used to make this section conform to the existing law and enable him [the Attorney General] to have greater liberty in bringing these suits.” Id. 9415. And see note 23 supra.
See notes 6 and 7.
It should be noted, however, that “the mere balance of convenience” in favor of defendants would be insufficient to justify application of the doctrine of jorum non conveniens. This has been true since the earliest Scottish and English cases applying the doctrine, although the test has been variously formulated. For example, dismissal has been authorized if suit is “vexatious and oppressive and an abuse of the process of the Court,” or “only brought to annoy the defendant.” See Braucher, The Inconvenient Federal Forum, 60 Harv. L. Rev. 908,909-911. Cf. also note 16 supra.
Congress has provided that the trial of these actions may, upon request of the Attorney General, “be given precedence over others and in every way expedited, and be assigned for hearing at the earliest practicable day . . . .” 32 Stat. 823, 15 U. S. C. § 28. The policy of expediting final decision of these cases is further implemented by authorizing direct appeals to this Court. 32 Stat. 823, 15 U. S. C. §29.
See, e. g., Schine Theatres v. United States, 334 U. S. 110; United States v. Griffith, 334 U. S. 100, which were instituted in 1939 and have recently been remanded for further proceedings in the trial courts. And the Eastman case, 273 U. S. 359, though begun in 1915, was not decided by this Court until 1927.
In this case, although the proceedings have advanced without unwarranted delay at any one stage, more than a year has been consumed solely on the issue of forum non conveniens. The complaint was filed on April 10, 1947. Motions to dismiss, supported by affidavits to show inconvenience, were filed in August and September. The trial court made findings and entered judgment of dismissal on October 15 and allowed an appeal on December 3. The Government filed its statement as to jurisdiction in this Court on January 20,1948; we noted probable jurisdiction on February 9, heard oral argument on April 28, and today we resolve the issue. But for the intervention of the motions, the consequent dismissal and appeal, the case with appropriate expedition might now be well on the way to final decision on the merits.
In this case these possibilities have been discounted, largely upon the basis that the appellees had joined in stipulating that all regarded the Illinois forum “as the proper forum for the above action” and that, in case of dismissal in the California district and filing of a like suit in the Illinois district, the defendants would not move for dismissal of the new suit on the ground of forum non conveniens. The stipulation perhaps would be effective in this case to avoid the complexities of repeated motions if suit were reinstituted in Chicago, but not if the Government should select any of the other venues open to it under § 12.
In any event, the stipulation is wholly irrelevant to any question of the general effect of the doctrine’s applicability upon antitrust proceedings. For once that were established, no defendant or group of defendants in subsequent cases would be bound, or perhaps likely, to execute such a stipulation.
As the Government points out, in practically all of the more complex types of antitrust proceedings, the principal defendants are corporations doing a multistate business, and the combination or conspiracy charged seldom has a defined locus. In such situations, it is generally true that, whatever the forum chosen by the plaintiff, it will be inconvenient for some of the defendants and often for most of them. When there is such diffusion of possible venue, that fact of course would be basis for declining to apply the doctrine of forum non conveniens, even if applicable. It is also reason for declining to accept the view that the doctrine was intended to be applicable.
Thus, in this case, all but two of the appellees were incorporated and hence “reside” in Delaware. None are incorporated in Illinois, and only two have their principal places of business or headquarters in Chicago. The invariable practice for fifty-four years, first under § 7, then under § 12, has been that suit may be maintained and trial had at the plaintiff’s election where the corporation “resides” or where it “is found.” But if this suit had been brought in Delaware or at any of the principal places of business except Chicago, under the application of forum non conveniens made here the trial could not have proceeded in any of those other places. Cf. Tivoli Realty v. Interstate Circuit, 167 F. 2d 155. The statute, § 12, does not require trial to be had where the agreement in conspiracy takes place. Locus of coming to agreement is not the gist of the offenses proscribed.
The indictment was returned on April 9, 1947; on August 14, 1947, defendants’ motion to transfer the cause was granted. The civil complaint was filed on April 10, 1947, and dismissed on October 15,1947.
Rule 21 (b) provides: “Offense Committed in Two OR More Districts or Divisions. The Court upon motion of the defendant shall transfer the proceeding as to him to another district or division, if it appears from the indictment or information or from a bill of particulars that the offense was committed in more than one district or division and if the court is satisfied that in the interest of justice the proceeding should be transferred to another district or division in which the commission of the offense is charged.” Cf. note 43 and text. In addition to the questions there reserved, we express no opinion on whether Rule 21 (b) applies to criminal antitrust prosecutions.
The Federal Rules of Criminal Procedure became effective March 21, 1946. It would be stretching very far the idea of utilizing legislative history, if criminal rules adopted twenty-two years after a civil statute was enacted were given any significance upon the meaning or effect of the statute.
The precise point apparently has not arisen since the adoption of Rule 21 (b), but there would seem to be no statutory basis for appeal from an order of this type. See 18 U. S. C. § 682. See also Semel v. United States, 158 F. 2d 231,232.
All that defendants would have to do, in any practical sense, in order to secure dismissal, would be to convince the District Court that transfer of the criminal cause should be made, and then demonstrate the self-evident fact that trial of the two causes in different districts would be inconvenient.
In view of our decision in this civil case, there would be nothing to prevent appellees from making a motion under Rule 21 (b) of the Criminal Rules to have the criminal cause retransferred to the Southern District of California, if in the changed outlook arising from this decision that should be their pleasure.
The Government argues further that as a practical matter there is little likelihood that appellees will be forced to defend both actions. For its distinctly footnote value we quote from its brief:
“When the Government believes that there has been a violation of the Sherman Act, it sometimes seeks corrective relief by way of a civil suit filed after, or simultaneously with, the return of a criminal indictment, but when companion proceedings are thus instituted it is only rarely that both are ultimately brought to trial. If it is held on the present appeal that dismissal of the civil complaint was erroneous, the Government will not seek to bring the criminal and the civil cases to trial simultaneously and, in any event, it is highly unlikely that it will be found necessary to bring both cases to trial.
“If the Government obtains a decree in a civil suit, the defendants in a related criminal case usually file pleas of nolo contendere. If the criminal case is tried first and verdicts of guilty are returned, there is nothing left for trial in the civil case except the question of relief (Local 167 v. United States, 291 U. S. 293, 298-299), and the parties are customarily able to reach an agreement on this question and dispose of the civil case by the entry of a consent decree.”
Gulf Oil Corp. v. Gilbert, 330 U. S. 501; Koster v. Lumbermens Mutual Co., 330 U. S. 518. See also Baltimore & Ohio R. Co. v. Kepner, 314 U. S. 44; Miles v. Illinois Central R. Co., 315 U. S. 698; Williams v. Green Bay & W. R. Co., 326 U. S. 549.
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_respond1_1_4 | 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 respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". Your task is to determine what subcategory of business best describes this litigant.
DORSEY v. OLD SURETY LIFE INS. CO.
No. 1644.
Circuit Court of Appeals, Tenth Circuit.
Sept. 6, 1938.
H. L. Stuart, of Oklahoma City, Okl. (R. R. Bell and E. P. Ledbetter, both of Oklahoma City, Okl., on the brief), for appellant.
Charles Swindall, of Oklahoma City, Okl. (Russell M. Chase, of Ava, Okl., on the brief), for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
Dorsey brought this suit against Old Surety Life Insurance Company, hereinafter called Insurance Company, for alleged infringement of copyrights on three forms of life insurance policies, seeking an injunction against future infringements and damages for alleged past infringements.
In his hill Dorsey alleged that he is the originator and author of three types of insurance policies, denominated “Family Group Life Insurance Policy,” “Family Group Policy,” and “Reserve Loan Life Insurance Co. Policy Family Group”; that copyrights covering such policies were duly granted to him in October, 1927, November, 1928, and September, 1930, respectively, and that he is now the owner of such copyrights; that such policies were composed, edited, prepared, arranged, and compiled by him at great expense after extended research and as a result of more than thirty years of actuarial and sales experience in the life insurance field; that such publications are of the value of $100,000; that commencing on a date unknown to him and continuing until on or about July'28, 1936, the Insurance Company had without license, leave, right, or authority knowingly published, issued, and sold certain insurance policies denominated “Family Group Policy” which infringed vital portions of Dorsey’s copyrighted publications.
The bill sets out the parts of the copyrighted forms alleged to be infringed and the parts of the Insurance Company’s policies alleged to infringe them.
The trial court sustained a motion to dismiss the bill and entered its decree dismissing the suit. Dorsey has appealed.
The right secured by a copyright is not the right to the use of certain words, nor the right to employ ideas expressed thereby. Rather it is the right to that arrangement of words which the author has selected to express his ideas.
In Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577, the court said:
“It has been frequently held that the copyright law does not afford protection' against the use of an idea, but only as to the means by which the idea is expressed.”
It follows that Dorsey’s copyrights in nowise restricted the right of the Insurance Company to use the plans of insurance embraced in the copyrighted policies. They only restricted the use or copying of the means of expression selected by Dorsey to the extent that such means were original with Dorsey.
To be copyrightable a work must be original in that the author has created it by his own skill, labor, and judgment. If he takes matter which has been dedicated to the public by publication without copyright and adds thereto materials which are the result of. his own efforts a copyright thereon is not void, but is valid as to the new and original matter. However, the degree of protection afforded by the copyright is measured by what is actually, copyrightable in the publication and not by the entire publication.
Insurance policies were old at the time Dorsey’s copyrights were granted. Standard provisions had been worked out through long'study and experience. Many of such standard provisions are now inserted in life insurance policies pursuant to statutory requirement. Oklahoma requires that certain provisions be included in each policy of life insurance issued or delivered in Oklahoma or issued by a life insurance company organized under the laws of Oklahoma. See Section 10524, O.S.1931, 36 Okl.St.Ann. § 218.
The copyrighted forms here involved in the main are an aggregation of these standard provisions including those required by statute. As to those provisions it is clear that there is no infringement. One work does not violate the copyright in another simply because there is a similarity between the two if the similarity results from the fact that both works deal with the same subject or have the same common source. Affiliated Enterprises, Inc., v. Gruber, 1 Cir., 86 F.2d 958, 961. The provisions dealing specifically with the family group are alleged to be new and original. The copyrights if valid at all must be limited to those particular provisions and to the particular means employed by Dorsey to express the contractual terms thereof.. The provisions in the policies of the Insurance Company dealing particularly with; the. family group are neither an exact nor a substantial copy of the family group provisions in the copyrighted policies. There is no more similarity than might naturally be expected in policies embracing the same plan of insurance and incorporating like contractual provisions. There can be no doubt, that the Insurance Company is free to make contracts embracing like contractual provisions as those included in the copyrighted policies and to use suitable words to express the provisions of such contracts so long as it does not copy the particular means of expression originated by Dorsey.
A copyright upon a form of contractual. provision should not be construed so, as to impinge upon the natural right of persons to make contracts containing the same, contractual provisions and creating like contractual .rights and obligations, and similarity of expression should not be held to constitute infringement in such cases. Necessarily, where the same contractual .provision is to be expressed there will be similarity of language. To constitute infringement in such cases a showing of appropriation in the exact form or substantially so of the copyrighted materia} should be required. See Brightley v. Littleton, C.C.Pa., 37 F. 103, 104.
Hence, we think the trial court was fully warranted in holding upon the face of the bill that the policies of.the Insurance Company did not infringe Dorsey’s copyrighted forms.
The decree- is affirmed.
Holmes v. Hurst, 174 U.S. 82, 86, 19 S.Ct. 606, 43 L.Ed. 904; Hartfield v. Peterson, 2 Cir., 91 F.2d 998, 999; Guthrie v. Curlett, 2 Cir., 36 F.2d 694, 696; Ansehl v. Puritan Pharmaceutical Co., 8 Cir., 61 F.2d 131, 137, 138; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 25; Kaeser & Blair, Inc., v. Merchants’ Ass’n, Inc., 6 Cir., 64 F.2d 575, 577; Dymow v. Bolton, 2 Cir., 11 F.2d 690, 691. See, also, Affiliated Enterprises, Inc., v. Gantz, 10 Cir., 86 F.2d 597, 598, and Affiliated Enterprises, Inc., v. Gruber, 1 Cir., 86 F.2d 958, 961.
American Code Co., Inc., v. Bensinger, 2 Cir., 282 F. 829, 834; Harold Lloyd Corp. v. Witwer, 9 Cir., 65 F.2d 1, 23.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "financial institution". What subcategory of business best describes this litigant?
A. bank
B. insurance
C. savings and loan
D. credit union
E. other pension fund
F. other financial institution or investment company
G. unclear
Answer: |
songer_respond1_1_4 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". Your task is to determine what subcategory of business best describes this litigant.
LARTER & SONS, Inc. v. DINKLER HOTELS CO., Inc. et al.
No. 14224.
United States Court of Appeals Fifth Circuit.
Nov. 15, 1952.
Ogden Doremus and Estes Doremus,. Atlanta, Ga., for appellant.
Edward E. Dorsey, James N. Frazer and! Hamilton Douglas, Atlanta, Ga., for appellee.
Before BORAH, STRUM and RIVES,. Circuit Judges.
RIVES, Circuit Judge.
This appeal is from a judgment-dismissing the action. The motion to dismiss was filed by one of the defendants, Dinkier Hotels Company, Inc. So far as-the record shows, the other defendant,. Atlanta Baggage & Cafo Company, did not enter an appearance. As to that defendant, it is apparent that the dismissal was inadvertent, and that the judgment must be reversed insofar as it is concerned.
Dinkier Hotels Company’s motion to dismiss was based upon two grounds: one, the general ground that the complaint fails to state a claim against this defendant upon which relief can be granted; and two, upon the further ground that all matters and issues in the action were res judicata, having been finally adjudicated and settled in a prior action in the Civil Court of Fulton County, Georgia, brought by the plaintiff on the same cause of action against the same defendants or their privies.
The general ground of failure to state a claim upon which relief can be granted is not seriously urged. The plaintiff was a jewelry salesman. lie was checking out of the hotel, and a hotel porter had given to him the baggage company’s claim check for a trunk loaded with jewelry to be transported by the baggage company to the railroad station. While the trunk and jewelry were on the sidewalk adjacent to' the hotel awaiting transportation, they were stolen. The complaint fixes their value at $41,376.-11. The plaintiff claims that the hotel company was the agent of the baggage company for the purpose of handling its claim checks, and of delivering to it baggage of guests for transportation to railroad stations, and that both defendants were negligent resulting in the loss of the plaintiff’s trunk and jewelry.
The hotel company insists that the issue of res judicata was properly raised by its motion and that the record facts show that the action had been finally adjudicated in the Civil Court of Fulton County, Georgia. With respect to a specific affirmative defense such as res judicata, the rule seems to foe that if the facts are admitted or are not controverted -or are conclusively established so that nothing further can be developed by a trial of the issue, the matter may be disposed of upon a motion to dismiss whether the decision of the District Court be considered as having been arrived at under the provisons of Rule 12(b) (6) or Rule 56(c), F.R.C.P., 28 U.S.C.A. 2 Moore’s Federal Practice (2nd Ed.) 1698, 2256, 2257; Chappell v. Goltsman, 5 Cir., 186 F.2d 215, 218.
In response to requests for admission under Rule 36, the plaintiff admitted that there had been a suit in the Civil Court of Fulton County, Georgia, by the same plaintiff against the same two defendants or their privies asserting the same cause of action as asserted in this case, that no appeal had been taken from the order of said State court in the prior case and that the time for appeal had expired. The plaintiff’s admission stated “that - it took no appeal for the reason that it affirmatively appears from said order that its suit in the Civil Court of Fulton County, was dismissed by plaintiff without prejudice before the entering of said order.” A copy of the order of the Civil Court of Fulton County is attached as Appendix A to this opinion. There is vigorously debated between the parties the question of state practice and procedure as to whether that suit was effectively dismissed by the plaintiff so as to deprive the Court of jurisdiction to enter its order, and many state cases are cited in support of the respective contentions of the parties.
We do not think that this Court has any authority to pass upon that question of state practice. The State court had the parties before it and invited them to remain while it determined the issues in the case which included the question of that Court’s jurisdiction or power to enter any order after the plaintiff’s attempt to dismiss the action. The plaintiff retired from the State courtroom at its own peril. Thereafter the court adjudged that it did have jurisdiction to enter the order, and that the plaintiff’s petition stood dismissed as of a date prior to its attempted voluntary non-suit. The merits or demerits of the decision of the Civil Court of Fulton County cannot be put in issue here. American Surety Company v. Baldwin, 287 U.S. 156, 166, 53 S.Ct. 98, 77 L.Ed. 231; Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525, 51 S.Ct. 517, 75 L.Ed. 1244.
In Georgia, “A ruling on a general demurrer to a petition is a judgment on the merits of the case.” Darling Stores Corp. v. Beatus, 199 Ga. 215, 33 S.E.2d 701. The final judgment of the State court is conclusive in this court. Jarrard v. Southeastern Shipbuilding Corp., 5 Cir., 163 F.2d 960. The dismissal of the action against Dinkier Hotels Company, Inc. is affirmed; its dismissal against Atlanta Baggage & Cab Company is reversed; the costs of appeal are taxed against the appellant.
Affirmed in part and reversed in part.
Appendix “A” “Civil Court of Fulton County. “Larter & Sons, vs. No. 237470. “Ansley Hotel Operating Company.
“Order.
“On November 26, 1951, this 'Court entered an order sustaining the defendant Ansley Hotel Operating Company’s general demurrer to' count two of the plaintiff’s petition, without leave to the plaintiff to amend, and sustaining the defendant Ansley Hotel Operating Company’s general demurrer to count one of the petition with ten days leave to amend. The order recited that if the plaintiff failed to amend within the stated period, the plaintiff’s petition ‘shall stand dismissed’. The ten day period allowed was later extended for an additional five days.
“On December 11, 1951, which date was within the period allowed by the Court for amendment, the plaintiff tendered an amendment to his petition which was conditionally allowed and ordered filed by the Court.
“After plaintiff tendered this amendment, defendant Ansley Hotel Operating Company filed defensive pleadings by way of a written motion to dismiss the amendment, objections to, the allowance and filing of the amendment, and general demurrers thereto. Defendant took the position in its objections that the amendment failed to meet the requirements of the Courts order of November 26, 1951.
“The motion to dismiss, objections and demurrers, just referred to, were set down for'a hearing on February 1, 1952. The case was regularly sent out to this division of the Court. When the case was called for hearing in this division, plaintiff’s counsel stated that he then and there dismissed the action and wrote upon the original petition a statement of dismissal. Counsel was invited by the Court to remain during determination by the Court of the issues in the case,' but counsel retiréd from the Courtroom, contending that the action had been dismissed.
“The defendant Ansley Hotel Operating Company then made an oral motion to strike the purported dismissal by plaintiff and to expunge the writing of plaintiff’s counsel from the pleadings, and also to expunge any similar entries from the dockéts and other records of the Court. The Court then proceeded to hear argument upon the oral motion and upon the written defensive pleadings referred to above. After consideration, the Court concludes that the plaintiff’s amendment of December 11, 1951, failed to meet the requirements of the order of November 26, 1951, and, further, that the petition as amended failed to meet the original general demurrer of this defendant. Therefore, since plaintiff undertook to comply with the Court’s order of November 26, 1951, and failed to do so, the Court considers that the plaintiff’s petition stood dismissed as of December 11, 1951, the order of November 26, 1951 having provided for dismissal upon plaintiff’s failure to amend the petition with respect to the rulings in Section 3 of that order. The pleadings being in this state, there was nothing for the plaintiff to dismiss.
“It is, therefore, decreed, ordered and adjudged that the plaintiff’s petition stood dismissed as of December 11, 1951; all other and further proceedings by the plaintiff in said case were null and void; the defendant Ansley Hotel Operating Company’s formal motion to dismiss said attempted amendment of the plaintiff is sustained; the defendant Ansley Hotel Operating Company’s formal objection to the allowance and filing of the plaintiff’s amendment is sustained; the defendant Ansley Hotel Operating Company’s motion to expunge from the record all writings and entries on the pleadings, dockets and other records of this Court relative to the plaintiff’s attempted dismissal is sustained, and all such writings and entries on the pleadings, dockets and other records of this Court are hereby ordered expunged and physically stricken from the records of this Court.
“The cost of the proceedings are cast on the plaintiff.
“This 12th day of February, 1952.
Sam F. Lowe, Jr., Judge, Civil Court of Fulton County.”
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "other". What subcategory of business best describes this litigant?
A. medical clinics, health organizations, nursing homes, medical doctors, medical labs, or other private health care facilities
B. private attorney or law firm
C. media - including magazines, newspapers, radio & TV stations and networks, cable TV, news organizations
D. school - for profit private educational enterprise (including business and trade schools)
E. housing, car, or durable goods rental or lease
F. entertainment: amusement parks, race tracks, for profit camps, record companies, movie theaters and producers, ski resorts, hotels, restaurants, etc.
G. information processing
H. consulting
I. security and/or maintenance service
J. other service (including accounting)
K. other (including a business pension fund)
L. unclear
Answer: |
songer_r_natpr | 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 "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CAPITAL TRANSIT CO., Inc., v. GAMBLE et al.
No. 9244.
United States Court of Appeals District of Columbia.
Argued Jan. 9, 1947.
Decided March 10, 1947.
Mr. Howard Boyd, of Washington, D C. , for appellant. Mr. Edward Bennett Williams, of Washington, D. C., also entered an appearance for appellant.
Mr. Wilbert Mclnerney, of Washington, D. C., with whom Mr. Morris Benson, of Washington, D. C., was on the brief, for appellees. Mr. Lewis A. McGowan, Jr., of Washington, D. C., also entered an appearance for appellees.
Before GRONER, Chief Justice, and CLARK and PRETTYMAN, Associate Justices.
CLARK, Associate Justice.
This is an appeal from a verdict and judgment of the District Court awarding damages for personal injuries. Defendant moved for a directed verdict at the close of the plaintiffs’ evidence and again at the close of its evidence. These motions were denied. After the jury returned a verdict in favor of plaintiffs and judgment was entered thereon, defendant moved for judgment notwithstanding the verdict which was denied. Defendant, as appellant here, urges that this action of the trial court was error.
Considering the case as we do, it presents a single question which can only be answered by an analysis of the evidence. If the evidence, construed most favorably to the plaintiffs, is insufficient to form "a basis for a verdict for plaintiffs, the court erred in submitting the case to the jury. We agree with the contention presented by appellant that the court should have directed a verdict in its favor at the close of the evidence. While we are of opinion that defendant’s motion made at the close of plaintiffs’ evidence should have been granted, defendant’s introduction of evidence was a waiver of that motion and the court’s failure to grant it cannot be alleged as error on appeal. See Wigmore, Evidence (3d Ed. 1940) § 2496. However, defendant’s evidence in no way strengthened plaintiffs’ case and plaintiffs are in no better position as a result of it than they were at the termination of their own presentation.
Appellant’s streetcar was proceeding west in the 1200 block of C Street, Northeast, a one-way street thirty-two feet wide with a single streetcar track four feet eight inches wide laid in the center. Along side the south sidewalk and curb of the street was stacked furniture extending from in front of the premises 1209 C Street east to 1213 or 1215 C Street. Peggy Ann Gamble, an infant five years of age at the time of the accident, had been playing on the sidewalk along the south side of the street when she ran from the curb in front of the premises at 1209 C Street directly into the left front side of appellant’s streetcar.
Mrs. Massicotte, plaintiffs’ only eyewitness, testified that she was knocking at the door of 1209 C Street and that she turned around just in time to see the child “run directly into the trolley car”; that she saw the streetcar prior to the time it struck the child; that she “knew she (the child) was going to be hit with the streetcar”; that she wouldn’t estimate how far away the streetcar was when she saw the child start from the curb but that in reference to the furniture piled on the sidewalk the “streetcar might have been about maybe around 1213, 1211; it wasn’t very far”; that the child was running fast; that when she saw the child run off the curb she knew she was going to be hit because the trolley car was so close; that “she couldn’t escape if she was going to keep right on going”; that she did not become aware of the fact that brakes on the streetcar were being applied until after the child was hit; that she didn’t know how far the streetcar went after it struck the child before it came to a complete stop but that “it didn’t go very far.” Other witnesses for plaintiffs who came upon the scene after the accident happened testified that the child was lying, with respect to the streetcar, “just to the rear of the front trucks”, or “about mid-dleway of the car”; that the width of the houses along the street was from 12 to 14 feet (the exact measurement was not given) ; that the rear of the streetcar when stopped was at 1215 C Street; that the streetcar was about 35 feet long.
We are of opinion that the evidence adduced by plaintiffs, considered with all the inferences which justifiably can be drawn from it in their favor, is not sufficient to properly support a verdict for them. “When a plaintiff produces evidence that is consistent with an hypothesis that the defendant is not negligent, and also with one that he is, his proof tends to establish neither.” Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 232, 74 L.Ed. 720; Kelly Furniture Co. v. Washington Ry., 64 App.D.C. 215, 76 F.2d 985; Ewing v. Goode, C. C., 78 F. 442, 444.
One undisputed fact which is entirely apart from the estimates by witnesses of speeds and distances, seems to answer the question of negligence by the motorman. The child, running fast, darted from behind the stack of furniture and ran a little less than thirteen feet into the side of the car just to the rear of its curved front. So the maximum time which the motorman had to avoid the accident was a little less than the time it took the child to run fast the thirteen feet. We say a little less time, because to avoid the accident he would have had to stop the car before it reached the spot where the child was, which, as we have said, was slightly to the rear of the front of the car. Anything less than a complete stop before the spot of the collision would have brought the child into the front of the car instead of into its side. We cannot see how the motorman could possibly be held to have been negligent in failing to stop in so brief a moment of time.
It was strongly urged on the part of ap-pellee that a child of five could not be guilty of contributory negligence. There is conflict of authority on this point and we understand the rule to be that the question of the ability of a child of five to be guilty of contributory negligence depends on the child and the degree of intelligence it is shown to have possessed. But where, as here, the evidence as to primary negligence produced by the plaintiff is so weak that to submit it to a jury would be to allow them to speculate as to the defendant’s negligence the question of contributory negligence does not enter and the court should rightfully exercise its lawful discretion and withhold that evidence from the jury. Appellant’s motion for a directed verdict made at the conclusion of the evidence should have been granted. Failing this, the court should have granted appellant’s motion for judgment notwithstanding the verdict. The judgment is reversed and the case remanded with instructions to dismiss the complaint. See Cone v. West Virginia Pulp and Paper Co., 67 S.Ct. 752.
Reversed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_trialpro | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on procedure at trial favor the appellant?" This includes jury instructions and motions for directed verdicts made during trial. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, v. James J. YOUNG, Appellant.
No. 24161.
United States Court of Appeals, District of Columbia Circuit.
Argued June 14, 1971.
Decided March 30, 1972.
Rehearing Denied May 31, 1972.
Mr. Patrick W. Lee, Washington, D. C. (appointed by this court), for appellant.
Mr. John R. Dugan, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., at the time the brief was filed, and John A. Terry and William H. Collins, Jr., Asst. U. S. Attys., were on the brief, for appellee.
Before LEVENTHAL, ROBINSON and WILKEY, Circuit Judges.
LEVENTHAL, Circuit Judge:
Appellant was indicted for first degree murder and convicted of the lesser-included offense of second degree murder. His appeal claims that questions and remarks by the prosecutor in cross-examination and argument to the jury were improper and, in the absence of corrective instructions, deprived him of a fair trial. We affirm.
I. THE FACTS
The Government's Case
Margaret May related the following events: On Thursday, August 14, 1969, decedent Willie R. Jefferson participated in a card game held in the yard in back of his apartment building with appellant James J. Young and others. All the participants were drinking. The game began around 2:30 p. m. and continued until 6:30 or 6:45 p. m. Shortly thereafter Jefferson, the big winner, offered to return his winnings to the others because he didn’t need the money. As he started to hand the money back to the players Mr. Young “snatched” his share. Jefferson then “reached after Mr. Young, and Mr. Young got back,” and Jefferson “told him if he do that again, he would have to get his gun.” Mr. Young said he would likewise get his gun. Both men then left.
Jefferson entered his apartment, on the ground floor. Young went out onto the street and returned fifteen minutes later, came into the hallway, and knocked on Jefferson’s apartment door. He had a gun in his right hand. Mrs. May’s account continues:
He knocked on Mr. Jefferson’s door real loud, and the door didn’t open right then; so he took his foot and kicked the man’s door in; and at that time, the door flew open; Mr. Jefferson at the door; and that is when Mr. Young asked, told him, you thought I wouldn’t come back, and called him a bad word. [M.F.]
She then saw and heard Young shoot Jefferson three times and run out of the building. Jefferson had said nothing, had made no movement, and had nothing in his hand. This account was corroborated.
The Alibi Defense
Appellant testified: He, Jefferson, and Mary Young played the entire game until it ended at 5:00 p. m. He testified that Jefferson had lost all his money and had to borrow from friends to continue. At one point Young caught Jefferson cheating, “and so I told him, if you all going to start cheating, I might as well get out the game.” Appellant denied getting angry or arguing with Jefferson; he simply left the game. On the way over to pick up his car, he was met by Rudolph Ford, who had previously left the card game and gotten the car. They went to two bars until 7:00 p. m. and thereafter they went to Ford’s apartment where they spent the rest of the night. Appellant learned of Jefferson’s death by shooting on Sunday, August 17, the day he was arrested.
Edna Mae Green testified that she had seen Rudolph Ford and Clinton Lee leave the game around 4:30 p. m.; appellant left the game a short time later and was not present when Jefferson later left the game.
Rudolph Ford, the principal alibi witness, testified to the same effect as appellant Young, with some difference in details. He said he and Young had left their construction job early on August 14, cashed their paychecks at a liquor store, and gone to Mrs. Green’s house where they decided to play cards. Ford left the game three times, first to buy some liquor, second, to check on Young’s car which was being repaired, but was not yet finished, and the third time to pick the car up. He drove back to the area of the game at about 5:00 p. m. and picked up Young, who had left the game and was waiting for Ford at a corner.
Ford testified that he was with appellant until the next morning. They visited two bars and then spent the rest of the night at Ford’s house in the company of Ford’s relatives. Ford learned at work the next day that Jefferson had been shot. On Monday, August 18, he learned that Young was charged with shooting someone. When he visited Young in jail, he learned that Young was charged with shooting Jefferson.
II. PROSECUTOR’S CROSS-EXAMINATION OF ALIBI WITNESS AND REMARKS TO JURY
This trial presented the jury with a classic conflict, two irreconcilable lines of testimony. Appellant claims that the prosecution overstepped permissible bounds in attempting to discredit his alibi defense.
A. Failure of Alibi Witness Ford to Contact the Police
1. During his cross-examination of Rudolph Ford, the prosecutor asked:
Q. By the way, sir, you didn’t give a statement to the police did you?
A. No, sir, I didn’t.
Q. You didn’t give a typewritten statement the next day like some of the other witnesses, did you?
A. No, sir, because I don’t know nothing about it.
The trial judge interrupted, warning,
There is no indication Mr. [Prosecutor] this man was interviewed by the police. I think that question is not appropriate unless there is some indication that police interviewed him.
The prosecutor then asked whether Ford had contacted the police; he had not. In his argument to the jury, the prosecutor, seeking to portray Ford’s alibi testimony as a fabrication, put it:
A man who never gave a statement, his name never comes up in the investigation, all of a sudden he shows up and testifies that the Defendant was with him.
* -x- -X- * *x- *
Rudolph Ford, who never, even talked to the police, never even gave a statement, he tries to criticize Margaret May for not reporting it, but she gave a statement the next day. Ford never gave a statement. What kind of witness is that? That is the alibi defense.
We agree with the trial judge that it was improper for the prosecutor to examine the witness on whether he had given a statement to the police. And it was certainly improper for the prosecutor, after being cautioned, to make this point twice in his summation to the jury.
The same conclusion applies to the prosecutor’s questions and comment concerning the witness’s failure to contact the police. Ford was not interviewed by the police, and if, as he claimed, he did not know that appellant was charged with shooting Jefferson until he visited him in jail, he would not have had any reason to go to the police previously.
Nor is there any reasonable inference from Ford’s failure to contact the police after he learned of the charge against appellant. When a person is approached by the police for questioning, our cases have “commented on the duty of every person to cooperate with police and to respond unless a Fifth Amendment claim is involved.” Coates v. United States, 134 U.S.App.D.C. 97, 100, 413 F.2d 371, 374 (1969); see also Hicks v. United States, 127 U.S.App.D.C. 209, 212, 382 F.2d 158, 161 (1967). But no inference can be drawn from the fact that a witness did not go to the police when he learns they have made an arrest of a defendant for a crime committed at a time for which he can provide alibi testimony. He might reasonably presume that it was sufficient for him to relate his knowledge to the attorney retained or appointed to represent defendant.
However, we do not think this improper questioning and comment was so prejudicial as to require reversal. As to the question concerning failure to contact the police, there was neither objection or warning. There was no repetition. Ford gave a satisfactory explanation. We see no substantial prejudice; in all likelihood the jury took it for a strained argument by the prosecution. As Judge Danaher has commented, prosecutors often overtry their cases, and in their zeal say things that are regrettable but are not significant in terms of influencing a conviction. Turner v. United States, 135 U.S.App.D.C. 59, 62, 416 F.2d 815, 818 (1969).
B. Prosecution Ref erenees to “Missing Witnesses”
Appellant’s major attack concerns efforts by the prosecutor to discredit his alibi by inferences to be drawn from the absence of persons mentioned in the alibi account.
On cross-examination, after appellant testified that one Hazel Davis drove him to the card game, the prosecutor asked “Is he here now?” and “Did you make any efforts to get him here?” Referring to Young’s testimony that he cashed his paycheck at a liquor store, the prosecutor asked:
“Q: This man that cashed the cheek at the liquor store, did you make any efforts to get him here?
A: For what reason.
Q: Can you answer the question, yes or no?
A: I can’t answer.”
THE COURT: I think that is a proper answer. What possible reason would he have to have him here? I think the question is quite inappropriate and if an objection was made I would sustain it.
******
[At bench conference.]
THE COURT: I have indicated to you before, Mr. _, not only on this trial but on other trials, that I am not favorably disposed toward asking a man who is incarcerated in jail what efforts he has made to get witnesses present. The question of the choice of witnesses is a matter for the tactics and determination of his counsel in connection with the trial. I think it carries to the jury perhaps an implication that he had some obligation to bring these people where, frankly, I can’t see where the testimony would be material.
* * * * * *
“He doesn’t have to corroborate times that are not alibi times. You are talking about what he did in the morning in terms of whether he got two beers or six beers, which has nothing to do with alibi. I think in any event it is counsel’s obligation to make those determinations and not an incarcerated man with no particular legal experience.”
In cross-examining Rudolph Ford, who had testified that he and appellant went to a bar after leaving the card game, the prosecutor asked if he remembered the name and address of the bar. Ford was not sure. The trial judge sustained defense counsel’s objection to the question “You never went back and checked out what address it was?” and observed, “There is no requirement he do that.” Later, after Ford said that he had talked briefly with the bar’s proprietor, the prosecutor asked, “By the way, sir, that proprietor is not here at this trial, is he?” The trial judge sustained the defense objection, saying “He has no obligation in any regard.”
The prosecutor had another occasion to advert to missing witnesses when he focused on Ford’s testimony that Young went to Ford’s home after they left the bars and stayed there all night. The prosecutor asked Ford who else was at the house that night and Ford gave the names of three witnesses: his cousin, aunt and aunt’s boyfriend, and said that they all sat together talking. (Tr. 252-253). No question was raised in advance of summation to the jury concerning the presence or absence of these witnesses. But in closing argument to the jury the prosecutor said:
“You saw Ford. Are you going to believe him ? Ford works with the Defendant, has worked with him, he said, for a couple of years. Are you going to believe him? With the Defendant. Poor recollection of times, places, names, people. He says they talked to people in the two bars. Doesn’t recall any of the names. People not here. He says that the Defendant went to his house and stayed there that night. Three of his relatives were there that night when they came. You haven’t heard from them, have you? Are you going to believe Ford?” (Emphasis supplied.)
It is the rule, applicable in criminal as well as civil cases, “if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it permits an inference that the testimony, if produced, would have been unfavorable.” Both comment by counsel and instruction by the judge as to absent witnesses is prohibited if either of the conditions is lacking, that the witness was peculiarly within the power of the party to produce, and that his testimony would elucidate the transaction. See Wynn v. United States, 130 U.S.App.D.C. 60, 397 F.2d 621 (1967); Pennewell v. United States, 122 U.S.App.D.C. 332, 353 F.2d 870 (1965); Richards v. United States, 107 U.S.App.D.C. 197, 199-200, 275 F.2d 655, 657-658, cert. denied, 363 U.S. 815, 80 5. Ct. 1253, 4 L.Ed.2d 1155 (1960).
Plainly the persons referred to by appellant as the man in the liquor store who cashed the paychecks, and the man (Hazel Davis) who drove them earlier in the afternoon, were not “witnesses whose testimony would elucidate the transaction” within the meaning of the missing-witness rule for their testimony would barely have been relevant and certainly could not be considered material. These witnesses encountered Young and Ford well before Young and Ford were admittedly present at the card game. The trial judge was correct in his comments. Their testimony was so remote in time as not to be material, and the Government would not have been entitled to a missing witness instruction. It was not proper for the prosecutor to make a comment during his summation in order to persuade the jury to draw an inference against defendant from the fact that they had not been called by the defense as witnesses.
If a prosecutor engages in prejudicial summation it is not dispositive that defense counsel did not object, especially since objection cannot always procure a realistic cure for the damage. The question is one of degree, and it counts against this prosecutor that he made his improper comment after having been admonished by the judge to abstain, from this line. Nor is it decisive that part of the prosecutor’s argument was justified — such as the comment on the failure of appellant and Ford to remember the names of the persons they met in the bars. The intermesh of the proper may actually escalate the impact of the improper, just as some truth may bait the hook for the impact of a partial lie or libel.
However we do not discern that the references to these relatively remote witnesses wrought the kind of prejudice which warrants reversal. This is not the kind of repetition of references to insignificant absences that “cumulate to the point of distortion.” These references, like the prosecutor’s questions and comment concerning Ford’s failure to contact the police and give a statement, are more fairly condemnable for their weakness than prejudicial impact, a possibility that was further muted by the fact that the trial judge made it clear to the jury that this approach of the prosecutor “is quite inappropriate.” This matter is appropriately left by treating it as not ground for reversal but as context wherein more weight may accrue to other objectionable comments of prosecutor.
We now consider the three persons who, Ford said, saw Young at Ford’s house. Their testimony would have been material, indeed would have provided important corroboration of the alibi if they had testified in court, and hence would have “elucidated” the issues. Ford’s testimony was bolstered by the specific detail provided by his naming his relatives who were present that night, and a desire on the part of the prosecution to comment on their absence is understandable.
We turn to the prosecutor's comments concerning Ford’s relatives, for we cannot bypass these on the claim of harmless error. We begin with the fact that he did not follow the specific procedures prescribed by this court to be followed before a party may comment on the absence of witnesses from the trial, in order to avoid the prejudice which can result from improper use of such comment. Surely it should not be put to the jury, as either instruction or argument, that an inference should be drawn from a party’s failure to produce witnesses if the judge concludes that the party was powerless to do so, Gass v. United States, 135 U.S.App.D.C. 11, 19, 416 F.2d 767, 775 (1969); Wynn v. United States, supra, 130 U.S.App.D.C. at 64 and cases at n. 19, 397 F.2d at 625 n. 19.
To avoid prejudicial misuse of comment on a party’s failure to call witnesses we required in Gass, supra, 135 U.S.App.D.C. at 19-20, 416 F.2d at 775-776:
. that for the future when counsel, either for the prosecution or the defense, intends to argue to the jury for an inference to be derived from the absence of a witness, an advance ruling from the trial court should be sought and obtained.
The Government’s brief acknowledges the prosecutor’s failure to follow the Gass procedure, but seeks to soften the departure by referring to the language in Gass as a “suggestion.” (Br. 14). It was more than a suggestion; it stated a rule of practice to be followed unless there is good reason to the contrary. If the prosecutor’s failure to follow the Gass procedure means that he is now unable to show the permissibility of a comment he could have established at the time of trial, he must abide the consequences.
The prosecutor’s comment would have been improper as to any witnesses defendant would have been powerless to produce at trial, e. g., because he did not know their whereabouts or could not make them amenable to subpoena. We take into account, as the court did in Gass, that defense trial counsel did not raise an objection, and that several witnesses were involved. In Gass there were eight witnesses, and the court put it as likely that at least one of them was available, a circumstance supporting the prosecutor’s comment to that extent. In the case at bar, there are three witnesses, and the overall context is one in which several of the card players could not be found by the marshal (see note 1).
Defendant’s counsel on appeal would have it that the prosecutor erred, by failing to follow the Gass procedure; that the burden of overcoming that error cannot be put on defense trial counsel, by requiring an objection; and in sum the proper remedy is reversal. We cannot accept this approach. Even if there is plain error, there must be some determination that it was prejudicial. Here the plain error was procedural, and reversal would require an appraisal that if the correct procedure had been followed the comment would not have been permitted. If we visualized both the possibility of plain error in the comment and reason for lack of defense objection, the course that would be indicated for this court is a remand, for further inquiry into the underlying facts, as was done in Stewart v. United States, 135 U.S.App.D.C. 274, 418 F.2d 1110 (1969), where we retained jurisdiction and ordered that the pertinent information be developed and transmitted to us in the form of a supplemental record.
In the case at bar, however, defense trial counsel did not shrink from presenting objections to the prosecutor’s summation which he thought appropriate; and indeed he made one shortly prior to these references. If he were concerned lest he emphasize objectionable matters in the mind of the jury, he could have sought a bench conference.
What in the last analysis seems decisive in this case is that defense trial counsel not only failed to object to the prosecutor’s references, he tried to use these as a predicate for offering his own comments, in argument, to the absence of Clinton Lee and Johnny Edwards. The fact that his maneuver was properly rejected, since the Government had tried but had been unable to subpoena these men, does not lessen the impact of his earlier silence. In the circumstances, including the fact that although the witnesses were not linked to defendant directly they were relatives of his friend, we think the probability of a substantial claim of defense inability to call or subpoena Ford’s relatives, is not sufficient, given the failure to object, the attempt to make tactical use of the reference, the lack of any motion in the trial court or this court, supported by a meaningful affidavit of such defense inability, to result in a reversal or remand in the interest of justice.
Our conclusion that the uncontested comments of the prosecutor should not occasion reversal is fortified by our appraisal that it is most unlikely that the defense could have succeeded in any alternative contention that the prosecutor’s comment be hushed on the ground that even assuming the witnesses were available to the defense they were equally available to the prosecution. We are aware that in Brown v. United States, 134 U.S.App.D.C. 269, 414 F.2d 1165 (1969), the court said that a missing witness instruction cannot be given against a defendant unless there is a showing that the witness was not available to be subpoenaed by the Government. But Brown is subject to the qualification that “availability” of a witness to the Government, as to any other party, must be judged “practically as well as physically.” Stewart v. United States, 135 U.S.App. D.C. 274, 279, 418 F.2d 1110, 1115 (1969) ; Burgess v. United States, 142 U.S.App.D.C. 198, 440 F.2d 226 (1970). Thus, no inference may arise from the failure to call a witness to give testimony implicating himself And whether a person is to be regarded as equally available to both sides may depend not only on physical availability but on his “relationship” to the parties. The central question is whether from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one. United States v. Craven, 147 U.S.App.D.C. 383, 458 F.2d 802 (1972).
We are aware that the foregoing does not by any means answer all of the questions that arise with respect to missing witnesses. But it serves to assure us concerning the present case, that it presents a context which makes it improbable that any serious claim of unfairness or prejudice would lie against the prosecutor for comment on the failure of defense to call Ford’s relatives, even assuming it could have been established that the Government had opportunity to obtain their attendance by process.
We also take note that this was a case where there was no instruction by the judge. This factor merits some exposition. There is a difference b.etween an instruction, which has the weight of law, and argument of counsel, which is only that. Argument of counsel is limited, however, by requirements such as that • it must not be in conflict with the law to be declared by the trial judge and it must not taint the trial with unfairness. As our rulings in Wynn and PenneweU make clear, when the judge concludes that the witness was not peculiarly available to a party, or that his testimony would not be such as to elucidate the transaction, comment of opposing counsel arguing for an inference from his absence is contrary to law and unfair, and cannot be permitted in argument to the jury. We suggested in Wynn and required in Gass that a lawyer proposing to comment or. absence of a witness first bring the matter to the attention of the trial judge, in order to avoid unnecessary prejudicial error in the case.
We also pointed out in Gass that ordinarily a judge permitting argument by counsel should prepare an instruction concerning the inference so as to avoid the risk of prejudicial error and enable the jury to discharge its functions. The judge has the duty to give an instruction if he concludes that the case is clear for a missing witness inference against a party, e. g., the party had the physical ability to locate and produce the witness, and there was such a relationship, in legal status or on the facts as claimed by the party as to make it natural to except the party to have called the witness. But in the in-between case where each side has the physical capacity to locate and produce the witness, and it is debatable which side might more naturally have been expected to call the witness, there may be latitude for the judge to leave the matter to debate without an instruction, simply permitting each counsel to argue to the jury concerning the “natural” inference of fact to be drawn. Permitting the issue to be debated in argument generates a duty to provide an elucidating instruction if one is sought; it is only in the context of lack of request that we contemplate some latitude to omit an instruction.
The basis for omitting the instruction, though ordinarily provided pursuant to Gass, would be the conclusion of the judge, first, that even in the absence of instruction the situation is sufficiently clear cut that counsel’s argument can be fairly understood and appraised by the jury, without prejudicial impact; and second, that the preparation of a careful instruction to state the ground rules for appraising counsel’s argument would be unnecessary and time-consuming; and, possibly, third, that such instruction might even be distracting, conceivably counter-productive, leading a jury, respectful of the court’s concerns, to focus unduly on the non-evidence rather than the evidence in the case.
In many cases, perhaps most cases, however, the trial judge may conclude that an instruction would be helpful, and toward that end we have included in the Appendix to this opinion, a specimen instruction which the trial judge may find it useful to use or adapt.
In this case there was argument without an instruction, and the context of the argument was such that we discern no prejudicial error.
Affirmed.
APPENDIX
Specimen Instruction on Absent Witnesses
Counsel have argued that you should draw an inference from the absence of certain witnesses. The court has determined that each side had the ability to produce the witnesses. If you conclude that the testimony of a witness would have cast significant light on the issues, and that it would have been natural for one of the parties to have called that witness in support of his presentation if the facts known by the witness had been favorable to the position of that party, you may infer that if the witness had been called he would have given testimony that would have been unfavorable to that party which failed to call him. But you are not required to draw that inference. And if you think that it would have been equally natural for each of the parties to have called the witness, and that each might equally have been expected to do so, then you may rightly conclude that since an equal inference could be drawn against each party, they cancel each other out. And if the matter seems doubtful, then you may rightly decide that no inference should be drawn from the absence of the witness. In that event, your verdict should be based on the evidence that was presented in court, and should not be affected by the witnesses who were not called.
. The other players were Tommy Davis, who left the game at about 4:00 p. m., John Edwards, who replaced Davis, Louise Young, and another man who may or may not have been Rudolph Ford. Also present, but not participating in the game, were Clinton Lee and Etta (Edna) Mae Green.
The card game was in the backyard of 1835 Capitol Avenue, N.E., which adjoined the lot of 1834 West Virginia Avenue, N.E., where both deceased and Mrs. May had-first floor apartments.
. By two other eyewitnesses, Mrs. May’s two daughters who were present in and around the building that day. All had seen Young before. The Government put in evidence a stipulation that subpoenas were issued to Clinton Lee, Louise Young, Johnny Edwards and Carlton Bradshaw, and none could be located by the Marshal.
. Young said he and Ford quit work early because it was raining; Ford said it was because of the heat. Young said that they left work in a car owned by Hazel Davis; his own car had been taken to the mechanic the night before August 14. Ford testified that they left work in appellant’s car and had taken it to the mechanic that afternoon.
. During cross-examination Ford testified that on three occasions lie talked to defendant in jail about his difficulty; that defendant did not say he wanted Ford to be a witness; that defendant did not discuss Ford’s testimony with him. But Ford must have had a conference with defendant’s attorney after that counsel learned from defendant, or perhaps Ford direct, of Ford’s pertinent knowledge.
. Graves v. United States, 150 U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1894). See generally 2 J. Wigmore, Evidence § 287 at 286 (3rd ed. 1940).
. King v. United States, 125 U.S.App.D.C. 318, 331, 372 F.2d 383, 395 (1966).
. Afro-American Pub. Co. v. Jaffe, 125 U.S.App.D.C. 70, 76, 366 F.2d 649, 655 (en banc, 1966).
. United States v. Free, 141 U.S.App.D.C. 198, 202, 437 F.2d 631, 636 (1970).
. The Government argues that even if these prosecutor references were improper the error was harmless. That approach is available where the uncontested facts confirm defendant’s guilt, e. g., United States v. Jones, 140 U.S.App.D.C. 1, 433 F.2d 1107 (Jan. 27, 1970) (fingerprints on a rifled money box not accessible to the public), or where there is physical corroboration, like possession of stolen property. But here the strong Government cíase of testimony of eyewitnesses as to defendant’s presence at the time of death is matched by testimony of other eyewitnesses, as to his presence elsewhere, which in principle stand on the same plane. In this situation we cannot say that comment on missing witnesses could not have been significant,
. Stewart v. United States, supp. opin., 185 U.S.App.D.C. 274, 279, 418 F.2d 1110, 1115 (1969).
. In this court the motion could have shown ground to request a Stewart-type remand to amplify the record.
. The court stated that this showing must take into account the Government’s opportunity to call the witness after learning of his identity before or during trial. We need not pursue the issue of “availability” of a witness whose identity was learned only late, see United States v. Stevenson, 138 U.S.App.D.C. 10, 13-14, 424 F.2d 923, 926-927 (1970), especially in view of the District Court’s new Rule 87, Defense of Alibi, promulgated October 12, 1970, after the trial in the instant case was concluded. This rule requires a defendant who proposes to offer the defense of alibi to serve notice of his intention, within 20 days after the prosecutor serves a demand stating the time, date and place at which the alleged offense was committed. Defendant must state the places he claims to have been and the names and addresses of witnesses upon whom he intends to rely to establish the alibi.
. The court noted that McClanahan v. United States, 230 F.2d 919, 926 (5th Cir. 1956) stated that availability is to be determined not from a witness’s mere physical presence or accessibility or subpoena but may also depend on bis relationship to the parties, and the nature of the testimony he may be expected to give.
. Bowles v. United States, 142 U.S.App.D.C. 26, 439 F.2d 536, 541 (en banc, 1970) ; Pennewell v. United States, 122 U.S.App.D.C. 332, 333, 353 F.2d 870, 871 (1965).
. Milton v. United States, 71 App.D.C. 394, 397, 110 F.2d 556, 559 (1940) ; Egan v. United States, 52 App.D.C. 384, 396, 287 F. 958, 970 (1923).
Thus, a historic “relationship” settled by a long established rule, see Gallagher v. Hastings, 21 App.D.C. 88, 98 (1903), renders comment permissible on the failure of a party to call his employee, notwithstanding the other party’s ability to secure attendance and testimony by process, since the witness is regarded, ordinarily, as peculiarly available to the employer, by virtue of his likely favorable disposition to the employer, and the employer’s better opportunity to ascertain his testimony in advance of taking the stand. See Note, 68 A.L.R.2d 1072 (1957).
. While we accept this aspect of Judge Fahy’s opinion in Burgess, see 142 U.S. App.D.C. at 209, 440 F.2d at 235, we are not so clear concerning Judge Fahy’s distinction which would permit some comment in counsel’s argument on the fact that a witness is missing so long as he stopped short of saying that an inference could be drawn that the testimony of the absent witness would be adverse to the other side had he been called. Whether or not a lawyer explicitly uses the word “inference,” when his comment, as in •argument to the jury, emphasizes the fact that witnesses were not called by the other party, he is, ordinai’ily at least, in fact arguing to the jury that they may conclude that the testimony of these witnesses would be adverse to the party who failed to call them.
. See Gass v. United States, supra, 135 U.S.App.D.C. at 19-20, 416 F.2d at 775-776.
. Presumably this is the situation that led Wigmore and eminent judges to say that even when a witness is “available” to both parties inferences may be drawn against both parties, with the strength of the inference against either depending on the circumstances. 2 Wigmore, Evidence § 288; United States v. Llamas, 280 F.2d 392 (2d Cir. 1960) (Clark, J.) ; United States v. Jackson, 257 F.2d 41 (3d Cir. 1958) (Goodrich, J.) ; United States v. Beekman, 155 F.2d 580 (2d Cir. 1946) (Frank, J.).
We noted the existence of this approach (a) in Billeci v. United States, 87 U.S. App.D.C. 274, 278-279, 184 F.2d 394, 398-399 (1950), where we reversed an instruction that advised the jury solely of an inference that might be drawn against defendant, and (b) in United States v. Free, 141 U.S.App.D.C. 198, 202-203, 437 F.2d 631, 635-636 (1970), where we permitted the prosecutor to ask defendant where certain persons were, provided the questioning was not handled unfairly.
In the case at bar, the trial judge correctly rejected any questioning of defendant as to why witnesses were not present, since this was a matter for defense counsel, but permitted questions as to whether defendant gave names of persons involved to his counsel.
. The judge would consider this issue in the pre-summation conference pursuant to Gass, assuming that opposing counsel has not brought forward any matters that would render comment by counsel unfair. The exact content of any instruction may have to be “tailored” to the case.
The judge has discretion to preclude absent witness comment by either counsel, though the matter is debatable, when he concludes that there would be need for ground rules in instructions to avoid speculation and unfairness, and that the entire matter is a disproportionate burden on the trial. This may be likened to his discretion to limit proof and consideration of matters .that are collateral.
Question: Did the court's ruling on procedure at trial favor the appellant? This includes jury instructions and motions for directed verdicts made during trial.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_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".
UNITED STATES of America, Appellant, v. R. H. TAYLOR et al., Appellees.
No. 20516.
United States Court of Appeals Fifth Circuit.
June 22, 1964.
Adhered to on Rehearing Sept. 14, 1964.
See 336 F.2d 149.
Robert E. Hauberg, U. S. Atty., E. R. Holmes, Jr., Asst. U. S. Atty., Jackson, Miss., Alan S. Rosenthal, Stephen B. Swartz, Attys., Dept. of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., for appellant.
Vardeman S. Dunn, Jackson, Miss., Bruce C. Aultman, Hattiesburg, Miss., William H. Cox, Jr., Jackson, Miss., Sim-rall, Aultman & Pope, Hattiesburg, Miss., Cox, Dunn & Clark, Jackson, Miss., of counsel, for appellees.
Before HUTCHESON and GEWIN, Circuit Judges, and HOOPER, District Judge.
HUTCHESON, Circuit Judge.
The United States as assignee of its contractor’s claims and demands against a subcontractor for contractual overpay-ments instituted this action for recovery on those claims. An order granting appellee-subcontractor’s motion for summary judgment was entered, and the United States appeals that order. The order was in error. The United States’ motion for summary judgment should have been granted. On this appeal the primary questions before the court are, what law applies to the interpretation of a disputes clause in a subcontract under a contract to perform work on a government project and how such a clause should be interpreted.
Peter Keiwit Sons contracted with the United States Government acting through the Atomic Energy Commission for the construction of a gaseous diffusion plant near Portsmouth, Ohio. On March 3, 1953, appellee TaylorWheless entered into a subcontract with Keiwit to remove and grade dirt at the plant site. The subcontract required that payment should be made to the subcontractor on the basis of the number of cubic yards of material acceptably excavated. The amount of material excavated was to be determined by measuring it “in original position from cross-sections taken before stripping and after excavation and computed by the average end area method.” The parties later orally agreed to substitute the load count method for the average end method of material measurement as a practical way of making periodic quantity determinations upon which to base progress payments.
The work under the subcontract was completed in November, 1953. Keiwit then computed by the average end area method the work performed by Taylor-Wheless. Based on this computation in November, 1954, Keiwit issued Taylor-Wheless a final pay estimate indicating that payments made by the load count method exceeded those due under the average end area method, after subtracting retainage, by approximately $383,000.00. Taylor-Wheless rejected this estimate as inaccurate. Keiwit requested the Atomic Energy Commission to employ an independent survey group to determine if there was an overpayment. Such a group was employed, and they concluded that under the average end area method the overpayment less retainages amounted to $337,973.52. This computation presented to Taylor-Wheless on July 25, 1955, was also refused as inaccurate.
The parties failed to resolve their dispute and Keiwit referred the dispute to the Commission’s General Manager of Oak Ridge Operations under the provisions of the subcontract’s disputes clause. The clause was subsequently amended by agreement between the parties to provide for disputes determination by the Commission. The dispute was, therefore transferred to the Atomic Energy Commission Advisory Board of Contract Appeals (Board). No hearing had been held prior to this transfer.
The Board, after a hearing, found that after Keiwit’s initial submission of the dispute, as prescribed by the disputes clause of the contract, Keiwit and Taylor-Wheless agreed to modify the disputes clause by agreeing to submit disputes to the Commission rather than the Manager of Oak Ridge Operations. They further found that Taylor-Wheless and its attorney suggested times and places of hearing, that the chairman set a hear-' ing, that Taylor-Wheless indicated it was preparing for the hearing, agreed to a postponement of the hearing date, requested further postponements of the hearing, and, after failing to negotiate a settlement with Keiwit in December, 1956, objected to the jurisdiction of the Board and withdrew from the proceedings.
The Board proceeded to determine the issue as to overpayment under the average end area method of computation. Taylor-Wheless did not participate in the hearing. The Board did consider a document previously presented Keiwit by Taylor-Wheless entitled “Statement in Support of Taylor-Wheless Co.’s Final Estimate”. The document attempted to justify accuracy of the load count computations and attacked the accuracy of the average end area computations made by Keiwit prior to the independent survey. After considering oral and documentary evidence and Keiwit’s brief, the Board found an overpayment in the amount determined by the independent surveyors. They relied on this survey since they found that there was no showing that the final figures reflected inaccurate application of the computation principle called for in the contract, and there was adequate basis in the record for finding that the computations were accurate. This fact finding of an overpayment of $337,973.52 was adopted by the Deputy General Manager of the Atomic Energy Commission on April 8, 1958.
On August 4, 1958, the Commission’s Portsmouth Area Manager, as Contracting Officer, determined Keiwit’s overpayment to Taylor-Wheless was an allowable cost and discharged Keiwit from any obligation with respect to government funds advanced for these payments. On August 19, 1958, Keiwit assigned its claims for overpayment against Taylor-Wheless to the United States. The United States instituted this action in the district court praying for judgment in the amount of the disputes award on both the decision of the Board and the underlying claim. Taylor-Wheless moved to dismiss, then moved for summary judgment on the grounds that: withdrawal from the disputes procedure invalidated the award; the Atomic Energy Commission and not the Board was the proper hearing agency; the assignment was invalid and unenforceable; and, finally, the suit constituted a suit on an implied contract and was, therefore, barred by the Mississippi Three Year Statute of Limitations. The United States moved for summary judgment on the grounds that the award and the underlying claim were valid, viable, and enforceable. The court granted the motion of Taylor-Wheless and denied that of the United States.
The court held that: the parties had entered into an arbitration agreement; this was a remedial rather than a substantive matter; and the law of Mississippi would apply to the enforcement of the agreement in a suit such as this in which the government claimed as as-signee. Under Mississippi law the court held that “a party has a complete right, to withdraw from arbitration proceedings any time prior to the making of an award”. Therefore, the court reasoned, the award was invalid. Both parties admit that this is an accurate statement, of the law of Mississippi. They both rely on McClendon v. Shutt, 237 Miss. 703, 115 So.2d 740 (1959) and Machine Prod. Co. v. Prairie Local No. 1538, 230 Miss. 809, 94 So.2d 344, 95 So.2d 763 (1957).
The government insists, however, that federal law applied to the interpretation of subcontracts executed under government contracts and that, under such law, administrative remedies must be exhausted before resort is made to the courts. They rely on American Pipe & Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961). Here the court applied federal law to the interpretation of a subcontract under a federal contract since the area was one dominated by the sweep of federal statutes, the contracts were connected with national security, and, in this instance, a possible increase in the cost of national security was involved. The government is correct. The subcontract in this case would be interpreted by federal law under the sweeping command of the Firestone decision. It is not necessary, however, to paint with such a broad brush.
The trial court erred in treating the disputes clause as an agreement to arbitrate which ousted the court of jurisdiction and was historically viewed with a jealous eye by the courts. The clause is an ordinary disputes clause and so far as possible should be treated as similar clauses in contracts between the government and its contractors. The subcontract disputes clause reads as follows:
“ARTICLE VIII — DISPUTES
“Except as otherwise specifically provided in this subcontract any and all questions, issues, and disputes arising under this subcontract shall be settled if possible by negotiations and mutual agreement of the parties hereto, but in the event of their inability to agree, shall be decided by the Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board, whose decision shall be final and conclusive on the parties. In the meantime, the Subcontractor shall diligently proceed with the contract as directed.”
This clause was modified by mutual agreement on February 28, 1956 substituting the word “Commissioner” for the words “Commission’s Manager of Oak Ridge Operations or his duly authorized representative, representatives or board”.
The disputes clause in a contract between the government and a contractor has long been recognized and approved as a valid provision for the determination of fact issues arising out of the contract. The purpose of the clause is to provide for a quick efficient determination of disputes on an administrative level, thus mitigating or avoiding large claims which might otherwise arise. The Atomic Energy Commission has made its disputes settlement procedure available to parties to subcontracts under contracts let by them. And the Commission regulations are written in terms of appeals by contractors of subcontractors.
In this case the parties to the subcontract have adopted this method of disputes determination between themselves. The subcontract is one in which many aspects of the relations between the contractor and the subcontractor were directly supervised by the government. The contract under which this subcontract was let was a cost type contract, and in fact the cost of the alleged contractual overpayment was assumed by the government as discussed above. The expeditious administrative determination of disputes arising under this contract is a matter of such importance to the federal government that the law controlling such determinations between government and prime contractors so far as applicable should apply to the construction of the disputes clause.
We are aware, as was the court in American Pipe and Steel Corp. v. Firestone Tire & Rubber Co., 292 F.2d 640 (9th Cir. 1961), that there is generally considered to be no privity between a subcontractor and the government when the issue is whether the subcontractor may sue the government. We also recognize the validity of opinions applying state law to the construction of contracts between government contractors and their subcontractors. However, it is clear that federal law will control contracts between private parties if there is sufficient federal interest. It is just such an interest that we have outlined above.
Though the question of what law applies to interpret a disputes clause in a subcontract has apparently never arisen before, federal courts have applied the body of law surrounding the interpretation of disputes clauses in government contracts to a similar clause in private subcontracts under government contracts. In United States v. United Enterprises, 226 F.2d 359 (5th Cir. 1955), a Miller Act dispute between a contractor and a subcontractor, the private subcontract contained a clause providing that the United States Engineer would determine construction and meaning of drawings and specifications. His determination was held binding on the subcontractor under the authority of United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) and United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154, 96 L.Ed. 113 (1951) . Both of these cases involve the construction under federal law of the typical disputes clause in a government contract. In E. I. DuPont DeNemours & Co. v. Lyles & Lang Const. Co., 219 F.2d 328 (4th Cir. 1955), a disputes clause in a private subcontract under a government contract was held inapplicable to a dispute of law. The court cited as authority cases involving disputes clauses in government contracts, United States v. Wunderlich, 342 U.S. 98, 72 S.Ct. 154 (1951) and United States v. J. A. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000 (1946). The court also held that as an arbitration agreement the clause was inapplicable. Despite the language analyzing the clause as an arbitration agreement, the case has been cited as authority for the interpretation of disputes clauses in government contracts in United States v. Hamden Co-Operative Creamery Co., 297 F.2d 139 (2nd Cir. 1961) and Jacobs v. United States, 239 F.2d 459 (4th Cir. 1956). There are still more examples of the application of federal law to clauses in private subcontracts and the law of the private subcontract cases to government contract cases. In Liberty Products Corp. v. H. K. Ferguson Co., 90 F.Supp. 673 (E.D.N.Y.1950) a disputes clause in a private subcontract was held governed by United States v. Moorman, 338 U.S. 457, 70 S.Ct. 288 (1950) a public contract case; and in Moran Towing & Transp. Co. v. United States, 192 F.Supp. 855 (S.D.N.Y. 1960) the Liberty Products case was cited as authority for interpreting a disputes clause in a government contract case. In this opinion we merely verbalize what is implicit in the foregoing decisions.
The application of federal law to this disputes clause to determine the effect of withdrawal on the subsequent ex parte award is in this case made simple for us by the Atomic Energy Regulations governing disputes. The Regulations specifically provided that “In the event of the unexcused absence of a party at the time and place set for a hearing, the hearing will proceed and the appeal will be deemed as having been submitted without oral testimony or argument on behalf of that party.” Withdrawal does not invalidate the award any more than a withdrawal would invalidate a disputes determination by •an architect or engineer in a private ‘contract.
The remaining issues are easily «disposed of. The district court held that the amended disputes clause called for ‘determination by the commission and that representatives of the commission were eliminated from the clause by omitting reference to them in the amended version. The implication of this was that the Board which heard the dispute was not designated in the clause, and, 'therefore, its decision was of no effect. ‘The omission of the reference to representatives in the amended clause might be troublesome had not the subcontract (defined Commission as the Commission •or its duly authorized representatives. 'The Board was the proper administrative ■body to determine the dispute.
The district court held that the •assignment of all claims for overpayment to the government materially prejudiced "the rights of Taylor-Wheless, since Taylor-Wheless could not counter claim -against the government for retainage, nor did it have the same powers of 'discovery against the government to ■which it would have been entitled had the litigation been between parties to the contract. We need not determine the •accuracy of this holding. The short of it is that the subcontract provided that “This Subcontract, or any part thereof, is assignable to the Government by the •Contractor.” No matter what the case absent this clause in the subcontract, .given its presence the claims to overpayment were validly assigned to the gov■ernment.
The district court finally holds that the Mississippi three year statute of limitations bars recovery. Possibly applicable to the underlying claim, though we express no opinion on the matter, the statute is not applicable to a suit based on the disputes award made merely a few days more than one year before the assignment. The statute, of course, ceased to run at the time the claim is assigned to the government.
Taylor-Wheless in this court asserts that, since the disputes clause indicated that the subcontractor should proceed with the contract during the determination of disputes, the clause is applicable only to disputes arising during the performance of the contract. This is a much litigated issue. The better view is that the clause has no such limitation. Again, however, we do not have to determine this issue. The act of the parties in modifying the disputes clause after the termination of the work under the subcontract conclusively demonstrates that the clause was to apply to post completion disputes. This was so found by the Board.
There are no further legal issues to be determined and no facts in dispute. We hold that the judgment below must be reversed and the cause be remanded with directions to enter judgment for the United States.
The judgment of the district court is hereby reversed and remanded for further proceedings not inconsistent herewith.
. 2S U.S.C.A. § 1345.
. Appellees will be referred to as TaylorWheless for convenience. They are, in fact, R. H. Taylor and J. L. Taylor individually and as co-partners in Taylor-Wheless Co., and Taylor-Wheless Co., Inc., successor in business to the partnership.
. Taylor-Wheless has never asserted that there had been an inaccurate application of the end count principle by the independent surveyors.
. Sec. 729, Mass.Code (1942).
. United States v. Moorman, 338 U.S. 457, 460, 70 S.Ct. 288, 94 L.Ed. 256 (1950).
. United States v. Joseph A. Holpuch, 328 U.S. 234, 239, 66 S.Ct. 1000, 90 L.Ed. 1192 (1946).
. 10 C.F.R. Sec. 3.1 (1959) (In effect during all periods here pertinent). See Cuneo, Disputes Between Sub-Contractors and Prime Contractors Under Government Contracts, 16 Fed.Bar J. 246 (1956).
. 10 C.F.R. Secs. 3.1 et seq. (1959) (In effect- during all here pertinent).
. “SUBCONTRACT ART. II The Commission had to approve any change in the scope of the subcontract that the contractor might wish to make. The Commission had to approve any equitable adjustment in the cost of the subcontract due to such changes.
“ART. IV Contractor’s findings of material changes in condition that would re-suit in an increase or decrease in cost to the subcontractor must be concurred in by the Commission.
“ART. VI The disputes clause quoted in Text.
“ART. IX Neither the subcontractor, nor any interest therein, or claim thereunder, nor any sum or sums which may be due thereunder, shall be assigned without the written approval of the contractor and the Commission.
“ART. XI Subject to the approval of the Commission the contractor could terminate the subcontract for reasons other than breach of the subcontract provisions.
“ART. XII (2) Any time after the completion of 50 per cent of the work the contractor might make the remaining partial payments in full to the subcontractor with the approval of the Commission.
“ART. XII (3) All material and work covered by partial payments made became the sole property of the government.
“ART. XII (4) The amount due under the contract after completion and acceptance of all work would be paid the subcontractor after subcontractor furnished contractor with a release of all claims against the contractor and the government arising by virtue of the contract.
“The contract also evidences many instances of direct control over the subcontractor by the Commission.
“ART. 2(111 (b) The subcontractor agreed to conform to all security regulations and requirements of the Commission.
“ART. XVII The subcontractor agreed to comply with all health, safety, and fire regulations of the Commission.
“ARTS. XXI and XXII The Commission shall always have access to drawings and specifications, and all memoranda of record value were to be property of the government.
“ART. XXVIII The subcontractor agreed to save the contractor and the government harmless from all suits, claims, and demands arising out of the work.
“ART. XXXI Subcontractor agreed to comply with all federal and state, and other laws and regulations applicable to the work performed.
“ART. XXXVII The subcontract was subject to the written approval of the Commission.
“The subcontract also contained many provisions often found in contracts between the United States and a prime contractor.
“ART. XV Subcontractor shall not employ any person undergoing sentence of imprisonment at hard labor.
“ART. XVI Subcontractor in performing the work shall not discriminate against any employee or applicant for employment because of race, creed, or color, or national origin.
“ART. XVIII No Congressman or Commissioner shall benefit from this subcontract.
“ART. XIX Subcontractor agreed that he had not employed anyone to solicit the contract on a contingent fee basis.
“ART. XXXIII Subcontractor agreed to use domestic articles in the construction unless the Commission determined otherwise.
“ART. XXXVII The subcontract was made subject to the Renegotiation Act.”
. Rumsey Mfg. Corp. v. United States Hoffman M. Corp., 187 F.2d 927 (2d Cir. 1951); D. W. Winkleman Co. v. Barr, 178 F.2d 341 (6th Cir. 1949).
. Cf. Bank of America Nat. Trust & Sav. Ass’n. v. Parnell, 352 U.S. 29, 77 S.Ct. 119, 1 L.Ed.2d 93 (1956).
. 10 C.F.R. Secs. 3.1-3.40 (1959) (In effect during all time here pertinent).
. 10 C.F.R. Sec. 3.20 (1959). Though the Regulations, note 13, supra, speak only to a disputes procedure that submits the dispute first to the parties, then to a hearing examiner, and finally by appeal to the Board for a de novo determination, the fact that the parties choose to omit the submission to the hearing examiner, an omission acquiesced in by the commission’s approving the contract and making the Board available to the parties, does not exempt them from the plainly declared ex parte policy of the board. The factual determination of the board is binding on the subcontractor though he was absent from the hearing. This is true unless such a factual determination is found to be “fraudulent (sic) or capricious or arbitrary or so-grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C.A. § 321 (1954). No attack has been here made on the fact findings of the Board.
. 10 C.E.R. Sec. 3.3 (1959).
. Note 3, supra.
. United States v. John Hancock Mut. Life Ins. Co., 364 U.S. 301, 81 S.Ct. 1, 5 L.Ed.2d 1 (1960); United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283 (1940).
. Silverman Bros. Inc. v. United States, 324 F.2d 287, (1st Cir. 1963).
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_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).
CONTINENTAL CASUALTY COMPANY, Appellant, v. James A. JACKSON and William R. Jackson, by His Brother and Next Friend, James A. Jackson, Appellees.
No. 18903.
United States Court of Appeals Eighth Circuit.
Aug. 12, 1968.
John A. Blanchard, of Hurlburt, Blanchard, Cless & Porter, Des Moines, Iowa, for appellant; Philip H. Cless, Des Moines, Iowa, on the brief.
Max Putnam, Des Moines, Iowa, for appellees.
Before VOGEL, Senior Circuit Judge, LAY, Circuit Judge, and BECKER, Chief District Judge.
LAY, Circuit Judge.
The Continental Casualty Company appeals after a denial of its motion for judgment notwithstanding verdict and for a new trial after an unfavorable verdict was rendered against it on an accidental death policy. The plaintiffs are beneficiaries of the insured, Robert D. Jackson, deceased. On February 6, 1965, the decedent-insured was stricken with a heart attack after assisting in the manual carriage of one Herman F. Anderson, his father-in-law, from the bathroom to the den of the Anderson residence. At the time of his death the insured was a Judge of the Iowa District Court in Des Moines, Iowa. The decedent, Judge Robert D. Jackson, was hospitalized on the same day and died on February 18, 1965, as a result of a myocardial infarction.
The accidental death policy in question insures against “bodily injury caused by an accident occurring while this policy is in force and resulting directly and independently of all other causes in loss covered by this policy.” The jury found that the death of the decedent was caused by an “accident” within the meaning of the policy and awarded a verdict for the full coverage. Continental Casualty Company brings this appeal on the grounds:
1. That there was insufficient evidence to sustain a finding of liability under the policy
(a) in that the decedent was not the victim of an “accident” because he was engaged in a voluntary act at the time of his heart attack, and
(b) in that the decedent’s death did not result “directly and independently of all other causes of loss covered by this policy.”
2. The defendant also requests a new trial alleging that the court erred in admitting certain evidence.
We affirm.
It is stipulated that the policy is to be interpreted and governed by Iowa law.
The facts briefly summarized show that decedent’s father-in-law, Herman Anderson, became sick and disabled as he was getting out of his car. He later recovered. He was assisted by an Emil Carlson into his house to the bathroom. A short time later Mr. Anderson called for help as he could not get up from the toilet stool. Judge Jackson and his son, William Jackson, age 19, were summoned and arrived some ten or fifteen minutes later. The three men decided to carry Mr. Anderson from the bathroom to the den and place him upon a couch. Carlson held Anderson around the shoulders beneath the armpit, William Jackson took a position at the midsection area and the decedent lifted his thighs and ankles. William Jackson stated that the three of them lifted Mr. Anderson from the toilet stool, prying his hand off the seat itself and his one leg or foot from the lavatory support. The testimony shows that in the process of the carriage Herman Anderson grabbed onto the bathroom door frame and various objects while he was being removed. Mr. Anderson also placed his hands against the wall and throughout the carriage was “completely uncooperative.” William Jackson asked him not to grab onto these things but he continued to do so. Herman Anderson himself testified that he did not remember any of the events which had transpired and that he thought he had been unconscious. The testimony is that as Mr. Anderson grabbed onto the various objects and walls, he disrupted the carriage and caused a jerking motion. This testimony demonstrates that there was an unusual strain placed upon the various parties throughout their movements in carrying Mr. Anderson. William Jackson testified that the jerking motion tended to stop them “just like box cars hitting together.” This testimony was stricken by the trial court, but the testimony that there was a jerking motion throughout their movements remained.
The evidence established that the decedent had had no symptoms of prior heart trouble. Shortly after carrying Mr. Anderson, the decedent experienced severe chest pain and was thereafter admitted to the hospital. He suffered a “coronary artery occlusion” with resultant myocardial damage. Twelve days later he died. His family doctor, Dr. Anderson, and a specialist in internal medicine, Dr. Chambers, both testified that the “probable cause of the myocardial infarction * * * was the heavy lifting previous to the chest pain.” The evidence shows that when an “infarction” occurs, the heart muscle is damaged because a blood clot occurs depriving the muscle of proper circulation. Dr. Chambers specifically related causation to a “serious strain,” pain and the shock which occurred. Dr. Chambers made a finding of coronary artery disease, which he indicated was a generic term covering coronary occlusion. He added, “quite usually” infarction was just the end result of arteriosclerosis. The underlying cause is coronary heart disease. However, Dr. Chambers specifically stated on cross-examination that he did not find that the decedent had arteri-osclerotic disease. No autopsy was performed. He stated that “an excessive strain which causes a greater demand on the heart muscle than it normally is expected to produce may cause * * * the process * * * described as myocardial infarction.”
Dr. Chambers related the strain to the “timing” and added “he might have lived longer under better circumstances with the same amount of coronary artery disease.” He stated that in his experience he has never seen a case which did not have an underlying disease as the functioning cause. And finally, Dr. Chambers added that in his opinion the strain combined with the disease to produce the occlusion which then resulted in the infarction. He described the “strain” as the “provocative” cause. The defendant called two heart specialists. Both doctors in substance related that extraordinary physical strain can initiate events leading to a myocardial infarction but that the major contributing cause of Judge Jackson’s death was the arterio-sclerotic condition of his arteries.
THE “ACCIDENT” QUESTION
The trial court instructed the jury as to the definition of accident:
“The word ‘accident’ as used in this case means happening by chance, unexpectedly taking place, not according to the usual course of things.
“You are instructed in this regard that if the insured does a voluntary act, the natural and usual, and to be expected result of which is to bring injury upon himself, then a death so occurring is not an accident. But if the insured does a voluntary act, without knowledge or reasonable expeetation that the result thereof will be to bring injury upon himself from which death may follow, then a bodily injury resulting in death is caused by an accident.”
We think this instruction clearly reflects proper definition under Iowa law. Cf. Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., 156 N.W.2d 671, 679 (Iowa 1968). Defendant filed an exception to the court’s instruction in that it failed to instruct in order to be an “accident” something “unforeseen, unexpected or unusual must occur in the act which precedes the injury.” But this request does not accurately reflect Iowa law. See Comfort v. Continental Cas. Co., 239 Iowa 1206, 34 N.W.2d 588, 590 (1948). We find no error in the court’s instruction defining the meaning of “accident” under Iowa law.
On rehearing the Iowa Supreme Court in Lickleider v. Iowa State Traveling Men’s Ass’n, 184 Iowa 423, 166 N.W. 363, 367 (1918) quoted with approval from an 1898 Eighth Circuit opinion. The Iowa Supreme Court said:
“The rule, clearly deducible from the overwhelming weight of authority, is that when injury or death follows or results from a voluntary act of the insured, and the act is one which is not manifestly dangerous, but which is ordinarily done or performed without serious consequences to the doer, such result is caused by accidental means. This is nowhere better stated than by Sanborn, J., in [Western Commercial Travelers] Association v. Smith, 85 Fed. 401, 29 C.C.A. 223, 40 L.R.A. 653, where he says:
“ ‘An effect which does not ordinarily follow and cannot be reasonably anticipated from the use of those means, an effect which the actor did not intend to produce and * * * cannot be charged with the design of producing, * * * is produced by accidental means.’ ”
See also Comfort v. Continental Cas. Co., supra. In Lickleider the insured had experienced an excessive strain in “jerking” off a tire casing. The court held these facts to be sufficient to submit to a jury to determine whether an “accident” had occurred within the meaning of the policy. The Iowa Supreme Court relied upon the early decision of the United States Supreme Court in United States Mut. Accident Ass’n v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60 (1889), stating:
“There Dr. Barry, with two or three companions, in leaving a railway station platform jumped to the ground below, a distance of four or five feet. His act was perfectly voluntary, but in some way not shown by any direct proof he sustained a jar which it was claimed caused an injury to his bowels, resulting in his death, and although there was no evidence by any witness that he was seen to slip or fall, or that he alighted in any other manner than he intended, it was held that the jury were at liberty to find that by some unexpected or unforeseen or involuntary movement of his body in his descent from the platform to the ground the injury was caused. The Supreme Court also examined and approved an instruction to the jury to the effect that while if Barry jumped and alighted just as he intended, and nothing unforeseen, unexpected, or involuntary occurred affecting his movement or causing him to strike the ground in any different way than he intended, then his injury was not caused by accidental means; but if ‘there occurred from any cause any unforeseen or involuntary movement, turn, or strain of the body which brought about the injury, or if there occurred any unforeseen circumstance which interfered with or changed such a downward movement as he intended to make, or as it would be natural to expect under such circumstances, and injury resulted therefrom, the injury would be attributable to accidental means.’ If this be good law (and the eminence of the court pronouncing it commands our respect), then the case at bar was one for a jury.” 166 N.W. at 366-67.
See also Budde v. National Travelers’ Ben. Ass’n, 184 Iowa 1219, 169 N.W. 766 (1918) (excessive strain carrying heavy load of ashes), and Annot. 56 A.L.R.2d 796.
In the instant case, we feel the trial court’s submission to the jury of the “accident” question was proper under Iowa law.
CAUSATION
The primary error alleged by the defendant is that the insured’s death did not result solely from accidental injuries. The defendant asserts that for coverage to exist plaintiff must prove that the death was directly caused by the accident alone and was independent of all other causes.
Defendant asserts that if any disease contributed to the insured’s death, there cannot be any recovery under the policy. The Iowa Supreme Court has faced this precise problem on many occasions.
In Delaney v. Modern Acc. Club, 121 Iowa 528, 97 N.W. 91 (1903) recovery was allowed since a wound caused the disease, to-wit, blood poisoning. However, the court said in dicta:
“If Delaney, in the case before us, had been suffering from erysipelas, or some other disease, at the time he received the injury on his finger, and it appeared that the wound was more dangerous on that account, or that his previous diseased condition contributed to and augmented the danger from the wound, then, under the cases last cited, it might well be argued that, within the language of the certificate, his death did not ‘result solely from accidental injuries.’ ” Id. at 95.
To the same effect, see Keen v. Continental Cas. Co., 175 Iowa 513, 154 N.W. 409 (1915); Vernon v. Iowa State Traveling Men’s Ass’n, 158' Iowa 597, 138 N.W. 696 (1912).
In Binder v. National Masonic Accident Ass’n, 127 Iowa 25, 102 N.W. 190 (1905), citing Delaney, a plaintiff with a diseased condition of the arteries was denied recovery under an accident policy when he allegedly fell in a bathtub and ruptured an artery. However, it is significant that under the terms of the policy liability was denied if the injury was “directly or indirectly, wholly or in part, because of or resulting in or from any disease or bodily infirmity.” (Emphasis ours.) The trial court instructed:
“ [I] f Mr. Haverstock sustained a fall, and if the bursting of the artery was caused thereby, the plaintiff would be entitled to recover, even though it was found that the artery was in a weakened condition by reason of disease.” 102 N.W. at 194.
The Iowa Supreme Court held this was error, since the express terms of the contract excluded it.
In Michener v. Fidelity & Cas. Co. of New York, 200 Iowa 476, 203 N.W. 14 (1925), having the same exclusionary policy terms with respect to “disease”, the court relies upon Binder in denying recovery since the plaintiff proved nothing more than an aggravation of a prior disease.
Other Iowa cases (one very recent) clearly sustain the propriety of submitting the question of causation to the jury under the facts and terms of the policy existing here. See Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., (Feb. 6, 1968) supra; Lickleider v. Iowa State Traveling Men’s Ass’n, supra; and cf. Watters v. Iowa State Traveling Men’s Ass’n, 246 Iowa 770, 69 N.W.2d 1 (1955).
The defendant excepted to the trial court’s instruction on causation, which reads as follows:
“The insurance policy in question; states that death must be caused by accident and result directly and independently of all other causes.
“Direct cause means the moving or precipitating cause. A disease or condition may contribute to death from a medical standpoint or as a remote cause; but if this factor would not apart from the accident, if any you find, have caused the death, then and in that event, the disease would not be the moving or precipitating cause of the death.
“Independently of all other causes means independent of any other cause which would have apart from any accident have caused the death.
“An accident may be a direct cause of death even though the accident aggravated a disease or condition which then contributed to the death if that disease or condition would not without the accident have produced the death at that time.
“In that case, you are further told that if you find that the sole and direct cause of the death of Eobert D. Jackson was due to disease, then there can be no recovery for the plaintiffs.”
This instruction, although not using the words “proximate cause” is essentially the definition of proximate cause that is generally found applicable to “accident” policies with language identical to the terms involved in the present case. See Couch, Insurance 2d § 41:380 (1962). The significance of the Binder decision, supra, may be that different rules exist where a specific exclusion or exception to “disease” is provided within the policy. See also Poweshiek County Nat’l Bank v. Nationwide Mut. Ins. Co., supra, 156 N.W.2d at 680. We need not decide this since there is not any exclusionary clause as to disease involved here; the language of the policy in the instant case is identical to that explored within the recent Poweshiek case.
The early case of Delaney v. Modern Acc. Club, supra, although factually distinguishable, lends authority to the common sense rule that where a party is suffering from a preexisting disease and the accident occurs thereafter, even though the disease itself may have had some contributing remote role in the death, nevertheless, such a disease is only a condition and not the proximate cause of death. The “proximate cause” rule is generally derived from, the Massachusetts rule found in Freeman v. Mercantile Mut. Ass’n, 156 Mass. 351, 30 N.E. 1013 quoted with approval by the Iowa Court in Delaney v. Modern Acc. Club, supra, 97 N.W. at 94:
“ ‘The principal question in the case is, what kind of cause is to be deemed ‘proximate,’ within the meaning of the policy? Where different forces and conditions concur in producing a result, it is often difficult to determine which is properly to be considered the cause; and, in dealing with such cases, the maxim, ‘Causa próxima non remota speetatur,’ is applied. But this does not mean that the cause or condition which is nearest in time or space to the result is necessarily to be deemed the proximate cause. It means that the law will not go further back in the line of causation than to find the active, efficient, procuring cause, of which the event under consideration is a natural and probable consequence, in view of the existing circumstances and conditions. The law does not consider the cause of causes, beyond seeking the efficient, predominant cause, which, following it no further than those consequences that might have been anticipated as not unlikely to result from it, has produced the effect. An injury which might naturally produce death in a person of a certain temperament or state of health is the cause of his death, if he dies by reason of it, even if he would not have died if his temperament or previous health had been different. * * * ’ ” (Emphasis ours.)
In Lickleider v. Iowa State Traveling Men’s Ass’n, supra, 166 N.W. at 365, the Iowa Supreme Court said:
“As we have seen, it is not open to doubt that the question whether he died of disease was for the jury. The only evidence tending to show that the death was the natural result of disease is that of the two physicians who express the opinion that he died of arteriosclerosis, which, as we understand it, is the technical term for hardening of the arteries, but this is met by other evidence that the sclerosis discovered in this case was such only as is ordinarily found in men of his size and age, and the weight and influence to be accorded to these conflicting opinions was for the jury. If the arteries of the deceased were sclerotic, but the sclerosis was such only as is the natural or usual accompaniment of increasing years, the fact, if it be a fact, that a bodily injury sustained by him would more likely be fatal than would be the case if such condition did not exist would not prevent a recovery on the policy should it otherwise appear that the injury was of the nature or kind described in the contract. Freeman v. [Mercantile Mutual] Association, 156 Mass. 351, 30 N.E. 1013, 17 L.R.A. 753.” (Emphasis ours.)
Under the circumstances we find no error under Iowa law in the trial court’s instruction on “causation” nor in the submission of the evidence to the jury.
NEW TRIAL QUESTIONS
A. Instructions.
The defendant insists that the trial court erred in refusing to give certain requested instructions. These requests concern defendant’s disagreement with overall definitions of “accident” and “causation” submitted by the court. However, as indicated, we find no error in these instructions. Furthermore, due to its failure to object properly pursuant to Rule 51, the defendant is estopped from claiming error in the refusal of the lower court to give its requested instructions. See Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 461 (8 Cir. 1968).
B. “Hearsay” statement.
Defendant seeks a new trial alleging erroneous admission of the decedent’s statement to his family doctor as to how the “accident” occurred. The trial court admitted this statement for purposes of “history” only, but later overruled defendant’s objection in oral argument when plaintiff’s counsel argued as to the truth of the facts the decedent had related to the physician.
We agree that ordinarily such statements would be inadmissible under the hearsay rule. Krug v. Mutual Benefit Health & Accident Ass’n, 120 F.2d 296 (8 Cir. 1941); London Guar. & Accid. Co. v. Woelfle, 83 F.2d 325 (8 Cir. 1936). The Iowa Supreme Court has held that a physician’s testimony concerning statements made by a patient to a doctor is admissible solely to allow the doctor to give the basis upon which his opinion is founded. However, such evidence cannot properly be used to prove the truth of the facts related by the patient to the doctor. See Schuler v. Cudahy Packing Co., 223 Iowa 1323, 275 N.W. 39 (1937) ; Poweshick County Nat’l Bank v. Nationwide Mut. Ins. Co., supra. Even this rule limits the history to the event and not the details of causation. Poweshick County Nat’l Bank v. Nationwide Mut. Ins. Co., supra. At best these facts in the ordinary case should be restricted to “history” and not as truth of the evidence asserted.
However, it is apparent that the statement is admissible under Iowa law for reasons constituting an exception to the hearsay rule. The doctor testified that the decedent gave him this history at approximately 5:00 p. m. The initial onset of symptoms occurred at approximately 4:00 p. m. When Dr. Anderson arrived, Judge Jackson was ashen gray, cold and still in shock. He was prostrate. Under these circumstances, even though the statement was made over an hour after the accident, such evidence is admissible as part of the res gestae under Iowa law. Cf. Stukas v. Warfield, Pratt, Howell Co., 188 Iowa 878, 175 N.W. 81 (1919); Califore v. Chicago, St. P., M. & O. Ry., 220 Iowa 676, 263 N.W. 29 (1935) and Watters v. Iowa State Traveling Men’s Ass’n, supra. The Supreme Court of Iowa said in Stukas:
“We have repeatedly said that the proper test of admissibility of such statements is whether they relate to the principal transaction and are explanatory of it and are made under such circumstances of excitement still continuing as to show they are spontaneous and not the result of deliberation or design. Within this general rule the admissibility of the declaration under the circumstances of the particular case is largely within the discretion of the trial judge. The facts and circumstances of no two cases can be precisely alike and the exact length of time is not mathematically controlling.” 175 N.W. at 84-85.
The fear of fabrication and unreliability of the decedent’s version, related in the manner described, appears de minimus. Defendant’s assertion that the statement was written up by the doctor many months later goes only to its weight and not its admissibility. We find no error in the court receiving the evidence and allowing the oral argument relating to it.
C. Mortality tables.
Plaintiff offered life expectancy tables theoretically to show the expectation of life of a man 59 years of age to be 16.09 years. Defendant objected that such evidence was irrelevant and immaterial to the issues in the case. We agree. The only issue being tried was whether decedent’s death was caused by an accident. Plaintiff reasons that the tables show decedent would have lived a longer life but for the “accident.” In other words, he would not have died of natural causes or disease at the age of 59 since he still had a life expectancy of sixteen years. We feel this is a complete non sequitur, and the evidence should have been excluded.
Life tables are generally admissible on a limited basis in wrongful death or damage actions for consideration of the probabilities of damage over a period of years. They in no way serve to show whether a person will or will not die by natural causes or otherwise at any particular age. Nor do they tend to prove probabilities of such. And even when life expectancy tables are received into evidence it has long been held the court should fully instruct the jury as to their limited use. See Scott v. Chicago, R. I. & P. Ry., 160 Iowa 306, 141 N.W. 1065 (1913).
However, we feel such evidence is harmless error and does not necessitate reversal. See Fed.R.Civ.P. 61. The relevant consideration is whether the evidence is sufficient to cause reasonable jurors to change their minds and reach a different verdict. Although dealing with a criminal conviction, we think the principle of Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), is applicable to an objective decision here:
“The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence.” Id. at 765, 66 S.Ct. at 1248.
We fail to understand how this evidence could have even a “slight effect” upon the verdict.
Judgment affirmed.
. The defendant erroneously relies on Feder v. Iowa State Traveling Men’s Ass’n, 107 Iowa 538, 78 N.W. 252 (1899) and other Iowa cases which distinguished between “accidental results” and “accidental means.” This rule was modified by later cases which recognized that the two elements are somewhat identical, and proof of one may be considered to be proof of the other. See Dawson y. Bankers’ Life Co., 216 Iowa 586, 247 N.W. 279, 282 (1943); Miser v. Iowa State Traveling Men’s Ass’n, 223 Iowa 662, 273 N.W. 155 (1937).
. The Lickleider case had an unusual history in the Iowa courts. Originally, the facts presented were held not to be sufficient to prove an accident, and the case was dismissed. See 151 N.W. 479 (1915). Then in 166 N.W. 363, upon rehearing, the decision was reversed. However, this was modified again on rehearing as follows:
“A petition for rehearing has been submitted in the above-entitled case, and, upon further consideration thereof, it is ordered that all that portion of the opinion filed therein beginning with and following the sentence, ‘When a person engaged in some act or work of an ordinary and legitímate character is by some unforeseen and unexpected, or perhaps inexplicable, chance or contingency subjected to injury or death, it savors strongly of the absurd to say that the cause which produced this result was not accidental, but his own voluntary act,’ be withdrawn, and that in lieu thereof the following bo substituted :
“It is manifest, from what we have said, that the injury was accidental. To come within the terms of the policy, such accident must have been external and violent. Myrtle Caldwell was asked on cross-examination: ‘Did you not notice Mr. Dunbar slip, did you? A. Only when the tire came off. It came off suddenly with a jerk.’ If then Dunbar in pulling the tire from the wheel slipped as might be found from this testimony, and fell in consequence thereof, the jury might have concluded, not only that the injury was accidental, but that it was due to slipping as the wheel came off, and that this was accidental means. No argument is required to demonstrate that such means might have been found external and violent. For the reason stated, we are of the opinion that the trial court erred in directing a verdict, and the judgment is reversed.
“The reporter in publishing will correct the opinion accordingly.” Lickleider v. Iowa State Traveling Men’s Ass’n, 168 N.W. 884 (1918).
. After retrial on remand a verdict for plaintiff was affirmed by an evenly divided court, 181 N.W. 388 (Iowa 1921).
. The plaintiff urges that Watters make exceptions for heart eases. However, Watters involved a traumatic injury to the heart resulting from crushed ribs causing the myocardial infarction. The coexistence of arteriosclerotic disease was not related as a causal factor. But cf., this court’s reasoning in a pre-Erie case, where arteriosclerosis was held not to be a “disease” under the policy if it was not too far advanced. This court felt this question deserved special instruction and reversed. See Preferred Accident Ins. Co. of New York v. Combs, 76 F.2d 775 (8 Cir. 1935) (excluded: death “caused directly or indirectly by disease in any form”).
. The Iowa cases indicate if there exists ' an exclusionary clause, this becomes an affirmative defense and the defendant must assume the burden of proof thereunder. Even when there is evidence of some preexisting disease, if there is sufficient evidence to show that there was an accident, it is left to the jury to determine whether the accident was the cause or whether the disease was causal or contributory so as to exclude coverage.
See Meyer v. Fidelity & Cas. Co., 96 Iowa 378, 65 N.W. 328 (1895). See also Lickleider v. Iowa State Traveling Men’s Ass’n, supra, and Watters v. Iowa State Traveling Men’s Ass’n, supra, 69 N.W.2d at 12. It is made clear there that if the disease was only temporal or unexpected, the disorder was of a temporary character and not considered to be a contributory factor. 65 N.W. at 330.
. In Cone v. Beneficial Standard Life Ins. Co., 388 F.2d 456, 460 (8 Cir. 1968), interpreting Missouri law, we quoted Prof. Prosser:
“ ‘The event without millions of causes is simply inconceivable; and causation alone can provide no clue of any kind to singling out those which are to be held legally responsible.’ Prosser, Torts 243 (3d ed. 1964).”
. The rule is the same in Missouri. See Mutual Benefit Health & Accident Ass’n V. Francis, 148 F.2d 590 (8 Cir. 1945), where this court following Missouri law held:
“An injury which causes the death of a person in impaired health or suffering from disease is the cause of his death even though he would not have died if his health had not been impaired.”
See also Fetter v. Fidelity & Gas. Co., 174 Mo. 256, 73 S.W. 592, 61 L.R.A. 459 (1903). The Fetter case is cited with approval in Lickleider v. Iowa State Traveling Men’s Ass’n, supra, 166 N.W. at 367.
. Rule 51 reads in part:
“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.” (Emphasis ours.) Fed.R.Oiv.P. 51.
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_numresp | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Kevin McKENNA and Barbara McKenna, Plaintiffs-Appellants, v. CITY OF MEMPHIS and William Sarden, Defendants-Appellees.
No. 84-5608.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 24, 1986.
Decided March 12, 1986.
Ronald D. Krelstein (argued), Holt, Batchelor, Krelstein & Nicholson, Memphis, Tenn., for plaintiffs-appellants.
Henry L. Klein (argued), Clifford E. Pierce, Jr., City Atty., City of Memphis, Memphis, Tenn., for defendants-appellees.
Before LIVELY, Chief Judge, MERRITT, Circuit Judge, and GILMORE, District Judge.
The Honorable Horace Gilmore, Judge, United States District Court for the Eastern District of Michigan, sitting by designation.
PER CURIAM.
This is an action under 42 U.S.C. § 1983 in which the plaintiffs allege that their due process rights guaranteed by the Fourteenth Amendment were violated by the defendants. Kevin McKenna was a Memphis police officer. While pursuing a fleeing suspect on foot McKenna was shot by a fellow Memphis police officer, the defendant Sarden, who was also chasing the suspect.
McKenna charged in his complaint that Sarden “recklessly fired his revolver under circumstances not warrantying [sic] the use of deadly force.” This was so, according to McKenna, because the only offenses known to have been committed by the suspect at the time of the shooting were traffic violations, not serious crimes. McKenna also alleged that Sarden was acting pursuant to a regulation of the Memphis Police Department “outlining the circumstances under which officers were permitted to use deadly force.” He charged in his complaint that his injury resulted from execution of this policy.
. McKenna introduced evidence from which it might be inferred that Sarden’s supervisors should have recognized that he was incompetent. He showed that Sarden did not meet either the minimum education or I.Q. requirements for appointment to the police force. McKenna did not prove that Sarden was following regulations in firing his revolver. In fact, the district court held that Sarden acted in violation of, not pursuant to, such regulations.
The district court submitted the case to the jury on interrogatories. 544 F.Supp. 415. The jury answered “No” to four questions concerning the City’s conduct:
1) Was the City of Memphis reckless or grossly negligent in failing to require William Sarden to meet its police recruit qualification standards?
2) Was the City of Memphis reckless or grossly negligent in failing to train adequately Sarden, as a recruit, and/or as an inservice officer, as to use of deadly force?
3) Was the City of Memphis reckless or grossly negligent in failing adequately to supervise William Sarden as an officer of the Memphis Police Department?
4) Was the City of Memphis reckless or grossly negligent in failing adequately to discipline Sarden and its officers for misuse of deadly force when it was determined that deadly force was improperly used by its officers?
On the basis of its answers to the quoted interrogatories the jury entered a general verdict for the City. McKenna requested additional interrogatories, all related to the claim of reckless or grossly negligent conduct by the City. He also requested an instruction on simple negligence on the part of the City in recruiting, training, supervising and disciplining Sarden.
On the plaintiffs’ waiver, the district court considered their pendent state claim without the intervention of a jury, and awarded damages of $20,000 against Sarden and the City. That judgment was not appealed. This appeal is from the judgment for the City under 42 U.S.C. § 1983. In their motion for judgment notwithstanding the verdict and for a new trial the plaintiffs relied solely on their claim that the City was negligent in hiring, training, supervising and disciplining Sarden. They relied only on these alleged failures of the City with respect to Sarden; there was no reliance on the City’s regulation concerning the use of deadly force, and no claim that the district court erred in failing to submit to the jury an issue related to the allegation in the complaint that Sarden was following a police regulation when he fired his revolver.
On appeal, however, the plaintiffs contend that they produced sufficient evidence to require judgment in their favor on the theory that McKenna suffered a constitutional deprivation by reason of a policy, custom or practice of the City, relying on Monell v. City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The problem with this argument is that the case was not tried on this theory. They seek to bootstrap a claim of negligence in hiring, training and supervising into a claim of injury caused by Sarden’s following a custom, policy or practice.
The case against the City was tried on a theory of gross negligence or reckless conduct. In an abundance of caution the district court submitted a separate set of interrogatories requiring the jury to determine if the City was guilty of simple negligence. The jury absolved the City of liability under this theory as well.
It is clear since the decisions of the Supreme Court in Daniels v. Williams, — U.S. —, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986), and Davidson v. Cannon, — U.S. —, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986), that there can be no liability under 42 U.S.C. § 1983 for simple negligence. As the Court stated in Daniels, “where a government official’s act causing injury to life, liberty or property is merely negligent, ‘no procedure for compensation is constitutionally required.’ ” (Quoting Powell, J. in Parratt v. Taylor, 451 U.S. 527, 548, 101 S.Ct. 1908, 1919, 68 L.Ed.2d 420 (1981), and adding emphasis). Daniels v. Williams, — U.S. at -, 106 S.Ct. at 666. The Court in Daniels did leave open the question of whether § 1983 might afford relief for a higher degree of negligence:
Accordingly, this case affords us no occasion to consider whether something less than intentional conduct, such as recklessness or “gross negligence,” is enough to trigger the protections of the Due Process Clause.
Daniels, at-, n. 3,106 S.Ct. at 667, n. 3.
Under the current interpretation of § 1983, that statute is applicable at best to provide a remedy for due process claims when one acting under color of state law intentionally inflicts an injury or acts with gross negligence or reckless disregard of the rights of an injured party. The jury determined that no act or omission of the City of Memphis in the areas of recruiting, hiring, training, supervising or disciplining Sarden constituted reckless conduct or gross negligence. This finding determined that the City was not liable to the plaintiffs under § 1983 on the only basis upon which liability could have been predicated.
We have considered other issues presented by the plaintiffs and find them to be without merit.
The judgment of the district court is affirmed.
Question: What is the total number of respondents in the case? Answer with a number.
Answer: |
songer_usc1 | 18 | 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.
ADERHOLD, Warden, v. ASHLOCK.
No. 1660.
Circuit Court of Appeals, Tenth Circuit.
Sept. 22, 1938.
Homer Davis, Asst. U. S. Atty., and Summerfield S. Alexander, U. S. Atty., both of Topeka, Kan., for appellant.
No appearance for appellee.
Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.
PHILLIPS, Circuit Judge.
Charles Ashlock was charged by indictment returned in the District Court of the United States for the Eastern District of Kentucky with a violation of 26 U.S.C.A. § 692, now 26 U.S.C.A. § 1043. He pleaded guilty and was sentenced to a term of imprisonment of two years from November 13, 1933. On June 21, 1935, he was conditionally released from the Penitentiary Annex, at Leavenworth, Kansas, by .the United State Parole Board. '
. , , , , . ,. , Thereafter, he was charged by indictment returned m the District Court of the United States for the Southern District of West Virginia with a violation of the Harrison Anti-Narcotic Act. He pleaded guilty to the charge and on September 18, 1935, he was sentenced to serve k term of three years in the United States Penitentiary Annex, at Leavenworth, Kansas. He was delivered to the Penitentiary Annex on September 28, 1935.
A warrant for his arrest, based on a violation of his parole was issued, and upon completion of his second sentence he was arrested and recommitted to the Penitentiary Annex to serve the unexpired portion of his first sentence.
Ashlock filed an application for a writ of habeas corpus in the District Court of the United States for the District of Kansas, predicated on the contention that upon his commitment to the penitentiary on the second sentence, hé immediately began service of the unexpired term of his first sentence and that both sentences had been fully served '
The trial court sustained Ashiock’s contention and entered its judgment discharging him'from custody.
The Warden has appealed,
Section 723c, 18 U.S.C.A., reads in part as follows:
“The Board of Parole * * * or any member thereof, shall have the exclusive authority to issue warrants for the retaking of any United States prisoner who has vio!ated. his' Parole; The ^expired term of imprisonment of any such prisoner shall be-g¡¡n run fr0m the date he is returned to the institution, and the time the prisoner was on parole shall not diminish the time he was originally sentenced to serve.”
in Zerbst v. Kidwell, 304 U.S. 359, 362, 363, 58 S.Ct. 872, 873, 82 L.Ed. 1399, 116 A. L.R. 808, the Supreme Court of the United States in construing the above provision in connection with facts identical with those presented here, said:
. . . ro Obviously, this provision [Sec. 723c,. suPra^ does ?ot require that a parole violator s onSmal> unexpired sentence shall be-gm to run from the date he is imprisoned for a new and separate offense. It can only refer t0 reimprisonment on the original sentence under order of the paroIe Board.
“Since service of the original sentence was interrupted by parole violation, the full term of that sentence has not been com-pleted. Just as respondent’s own misconduct (parole violation) has prevented com-pletion of the original sentence, so has it continued the authority of the board over respondent until that sentence is completed and expb es. * * *
“If the parole laws should be construed as respondent contends, parole might be more reluctantly granted, contrary to the broad humane purpose of Congress to grant relief from imprisonment to deserving prisoners,
“Respondents have not completed servjce 0£ Bieir original sentences and were not entitled to realese.”
. .... "b'b.e cause is reversed with instructions vacate the order of discharge, to order *-b.at Ashlock be redelivered to the custody of the Warden, and to issue and execute suc,h writ °r PTOCtsJ as. may be necessary t0 make sudl order effectlve’
Reversed.
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_prejud | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid 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".
In re B. HOLLIS KNIGHT COMPANY, Debtor. Charles Darwin DAVIDSON, Trustee, Appellant, v. UNION NATIONAL BANK OF LITTLE ROCK, Appellee.
No. 79-1054.
United States Court of Appeals, Eighth Circuit.
Submitted May 18, 1979.
Decided Aug. 30, 1979.
Charles Darwin Davidson, Little Rock, Ark., pro se.
W. R. Nixon, Jr., Little Rock, Ark., for appellee.
Before GIBSON, Chief Judge, and HEA-NEY and McMILLIAN, Circuit Judges.
HEANEY, Circuit Judge.
The trustee in bankruptcy appeals from a decision of the District Court directing him to pay Union National Bank of Little Rock $8,444.69, the amount owed to Union National by the debtor, B. Hollis Knight Company, Inc. (BHK), on the date BHK filed its petition in bankruptcy. The sole issue on appeal is whether Union National has a security interest in an account receivable of BHK that was perfected prior to the lien of the trustee. We conclude that the District Court applied an incorrect legal standard and, therefore, reverse and remand for further proceedings.
BHK, a mechanical contractor, received a $12,000 loan from Union National on November 26, 1976. The loan was evidenced by a promissory note and secured by various accounts receivable and other collateral. The security interest was supposedly perfected by means of financing statements that Union National had filed on all accounts receivable and contract rights owned or thereafter acquired by BHK. These financing statements had been prepared in connection with another loan to BHK and were filed on August 29, 1974, at the Pulaski County Circuit Clerk’s office and at the office of the Arkansas Secretary of State. The filing in the office of the Secretary of State designated Ben H. Knight and BHK as debtors. The filing in the Circuit Clerk’s office, however, designated only Ben H. Knight as the debtor. Thus, as of November 26, 1976, Union National did not have a perfected security interest in BHK’s accounts receivable since it failed to list BHK as a debtor on the filing in the Circuit Clerk’s office as required by Arkansas law. See Ark.Stat.Ann. §§ 85-9 — 401, 85-9-402.
On January 11, 1977, BHK received another loan from Union National in the amount of $6,800. The loan was evidenced by a promissory note and secured by an assignment of an account receivable from a general contractor who owed $9,720 to BHK for work on a construction job completed on January 3, 1977. The assignment stated that it was intended
as security for the repayment of indebtedness owing by the undersigned [BHK] to the said Union National Bank of Little Rock now in the sum of Six Thousand Eight Hundred & No/100 — ($6,800.00) and of any other indebtedness that may become due to the said Bank by the undersigned so long as any of the debt mentioned herein remains unpaidf.]
The assignment was signed by the president of BHK and a notice of the assignment was acknowledged by an authorized representative of the general contractor on January 11, 1977. This assignment was the only assignment to Union National from BHK. No financing statements were filed in connection with the transaction. On January 11, 1977, BHK’s accounts receivable totaled $68,374.58.
On January 19, 1977, BHK filed a voluntary petition in bankruptcy. On that date, it owed Union National $6,814.90 on the January 11, 1977, note and $1,629.79 on the November 26, 1976, note for a total indebtedness of $8,444.69. The schedules filed with the petition listed accounts receivable of $68,364.68. The trustee, however, was unable to collect any accounts receivable other than the account which had been assigned to Union National. The trustee collected $8,919.72 of this account and placed this sum in a special bank account by agreement of the parties pending the outcome of this action.
In his complaint, the trustee alleged that Union National’s security interest in the account receivable was unperfected and subordinate to the trustee’s lien which came into existence on the date of bankruptcy. The Bankruptcy Court disagreed. It determined that Union National’s security interest in the account receivable was perfected on January 11, 1977, prior to the trustee’s lien. The court reasoned that the assignment of the account receivable was not a “significant part” of BHK’s outstanding accounts receivable within the meaning of Ark.Stat.Ann. § 85-9-302(l)(e) and, thus, Union National was not required to file a financing statement. Consequently, Union National’s security interest was perfected without filing under Ark.Stat.Ann. § 85-9-303(1). The court directed the trustee to pay Union National $8,444.69. The District Court affirmed' the Bankruptcy Court.
The parties agree that for Union National to prevail, it must show that it has a perfected security interest in the account receivable under Arkansas law. The answer to this question turns on an interpretation of Ark.Stat.Ann. § 85-9-302(l)(e) which provides:
(1) A financing statement must be filed to perfect all security interests except the following:
* * * * * *
(e) an assignment of accounts which does not alone or in conjunction with other assignments to the same assignee transfer a significant part of the outstanding accounts of the assignor[.]
The parties have not cited to, nor has our research disclosed any Arkansas state court cases that discuss subsection (e). The only case that has interpreted it appears to be Standard Lumber Company v. Chamber Frames, Inc., 317 F.Supp. 837 (E.D.Ark. 1970). In Standard, Chamber Frames, Inc., the debtor, a manufacturer of picture frames, sold K-Mart picture frames valued at $2,212.20. Standard Lumber Company, the secured party and a seller of building materials and millwork, was Chamber Frames’ supplier. In order to secure its debt for supplies, Chamber Frames assigned Standard Lumber the $2,212.20 account receivable from K-Mart. Standard Lumber did not file a financing statement. In an action to recover on the debt, the United States was permitted to intervene and assert a claim under liens arising from unpaid taxes. The District Court determined that Standard Lumber had a perfected security interest in the account receivable notwithstanding its failure to file a financing statement which was perfected prior to the government’s lien. The court reasoned that since the total of accounts receivable assigned amounted to only sixteen percent of Chamber Frames’ outstanding accounts receivable, the assignment was not a significant part of the total accounts. Consequently, Standard Lumber was not required to file a financing statement under Ark. Stat.Ann. § 85-9-302(l)(e) to perfect its security interest.
The District Court relied on Standard in reaching its decision. It reasoned that the account receivable assigned to Union National represented roughly fourteen percent of the outstanding accounts and, thus, was not a “significant part” within the meaning of Ark.Stat.Ann. § 85-9-302(1)(e).
The trustee argues, initially, that the District Court erred in considering the bulk of BHK’s accounts receivable as outstanding accounts, since most of the accounts were unearned by performance at the time of the assignment and, thus, were uncollectible by the trustee after bankruptcy intervened. The evidence established that out of the $68,374.58 listed by BHK as accounts receivable, approximately fifty percent of this amount constituted retainage on construction contracts. The retained amounts were listed on BHK’s balance sheet as accounts receivable, although successful completion of the job was a condition precedent to receiving payment. Since BHK did not complete its work on any projects after it filed bankruptcy, the retainage proved to be uncollectible due to various counterclaims and setoffs.
In our view, the District Court correctly included the retainage in the total outstanding accounts of BHK. Ark.Stat. Ann. § 85-9-106 defines “account” as “any right to payment for goods sold or leased or for services rendered * * * whether or not it has been earned by performance.” Since an account need not be earned by performance, the retainage was properly classified as part of BHK’s outstanding accounts although it would not be paid until the job was satisfactorily completed. Moreover, the mere fact that the trustee was unable to collect certain accounts after bankruptcy would not remove these accounts from inclusion as BHK’s outstanding accounts. The determination of whether an assignment constitutes a significant part of the assignor’s outstanding accounts must be made on the basis of the facts available at the time of the assignment.
The trustee also argues that the District Court’s interpretation of Standard was unduly restrictive. He contends that the court should have examined all of the circumstances surrounding the transaction in deciding whether the assignment was a significant part of the outstanding accounts.
The term “significant part” is not defined in the U.C.C. Although most courts have not undertaken a careful analysis of this term, see In re Munro Builders, Inc., 20 U.C.C.Rep. 739 (W.D.Mich.1976), two tests appear to have emerged as aids in its interpretation, the “casual or isolated” test and the “percentage” test. See generally J. White and R. Summers, Uniform Commercial Code § 23-8 at 807-809 (1972).
The casual or isolated test is suggested by the language of Comment 5 to U.C.C. § 9-302 which provides that
[t]he purpose of the subsection (l)(e) exemptions is to save from ex post facto invalidation casual or isolated assignments: some accounts receivable statutes have been so broadly drafted that all assignments, whatever their character or purpose, fall within their filing provisions. Under such statutes many assignments which no one would think of filing may be subject to invalidation. The subsection (l)(e) exemptions go to that type of assignment. Any person who regularly takes assignments of any debtor’s accounts should file.
The test requires a court to examine the circumstances surrounding the transaction, including the status of the assignee, to determine whether the assignment was casual or isolated. See, e. g., Abramson v. Printer’s Bindery, Inc., 440 S.W.2d 326 (Tex.Civ.App.1969). If a court finds that the transaction was not part of a regular course of commercial financing, it will not require filing. The underlying rationale behind the test appears to be the conclusion that it would not be unreasonable to require a secured creditor to file if he regularly takes assignments of a debtor’s accounts, but it would be unreasonable if this was not a usual practice.
The percentage test, in contrast, focuses on the size of the assignment in relation to the size of the outstanding accounts. Standard Lumber Company v. Chamber Frames, Inc., supra, is generally cited as a case applying this test. J. White and R. Summers, Uniform Commercial Code § 23-8 at 808. See also In re Boughner, 8 U.C.C.Rep. 144, 149-153 (W.D.Mich.1970). The test attempts to define the term “significant part” in a manner that is consistent with the statute and that promotes certainty in application. J. White and R. Summers, Uniform Commercial Code § 23-8 at 808-809.
Some courts have taken the approach that a proper interpretation of the section requires application of both tests. See, e. g., City of Vermillion, S. D. v. Stan Houston Equipment Co., 341 F.Supp. 707, 712 (D.S.D.1972). We are in substantial agreement with the courts that take this eclectic approach.
Both of the policies underlying the two tests appear to be valid limitations on the scope of U.C.C. § 9-302(l)(e). The language of the section would not permit an assignee to escape the filing requirement if he received a large proportion of an assign- or’s accounts whether or not the transaction was an isolated one. See In re Boughner, supra. On the other hand, it is not unfair to require a secured party who regularly takes such assignments to file, since the comments to U.C.C. § 9-302(l)(e) indicate that the section was designed as a narrow exception to the filing requirement — not applicable if the transaction was in the general course of commercial financing.
We note, moreover, that Standard Lumber Company v. Chamber Frames, Inc., supra, is not inconsistent with this position. In Standard, the secured party, Standard Lumber Company, did not regularly take assignments from its suppliers. There was no question that the assignment was an isolated one and, thus, there was no reason for the District Court to consider the issue.
Thus, in the absence of any Arkansas law to the contrary, we hold that in determining what is a significant part of the outstanding accounts of the assignor, a court must examine all ’ of the facts and circumstances surrounding the transaction, including the relative size of the assignment and whether it was casual or isolated.'
The trustee contends that we should not consider the assignment an isolated or casual one simply because Union National is a national banking institution that regularly lends money and has, on previous occasions, made loans to BHK. We disagree with the trustee’s analysis. The relevant question is whether Union National regularly took assignments of accounts receivable. There is no evidence in the record that they did. The Bankruptcy Court found that BHK had not assigned any. other account receivable to Union National and the trustee does not dispute this finding. The record does not indicate that Union National ever received another assignment of accounts receivable from any other person. While Union National may do so as a matter of fact, the assignment of accounts receivable is a specialized method of securing loans, and we are not willing to assume that it was a regular practice.
The trustee also contends that, under the circumstances of this case, it was inappropriate for the District Court to have applied an arbitrary percentage. We agree. The District Court improperly limited its inquiry since its analysis ignores the qualitative differences in accounts receivable.
The ultimate uncollectibility of an account receivable standing by itself would not remove the account from consideration as one of the assignee’s outstanding accounts. If, however, the assignee knew when an assignment was made that certain accounts were uncollectible, he would also recognize that their value as outstanding accounts is minute. The reasoning is similar when there are significant limitations on the collectibility of some accounts.
An assignee would have to discount their value as outstanding accounts to determine whether his assigned account constituted a significant part of the total.
This analysis merely recognizes that the liquidity of an account receivable is one of the primary considerations of a lender who is secured by a lien on the account. An assignee who receives accounts that are not subject to any limitations is usually in a better position than one who receives accounts that are subject to some limitations, although each may hold the same dollar amount of accounts. Thus, the account assigned to Union National may be a significant part of BHK’s outstanding accounts although it represented only fourteen percent of the total amount since it was the only account that was not subject to significant limitations on collectibility.
Although the District Court did not make a specific factual finding in this regard, there is sufficient evidence in the record to support a finding that Union National knew there were significant limitations on the collectibility of BHK’s accounts receivable. The president of BHK testified that he knew the only account he could collect within thirty days was the account assigned to Union National. It is reasonable to infer that he communicated this knowledge to Union National when he applied for the $6,800 loan, since Union National specifically requested the assignment of that particular account. Moreover, Union National had some familiarity with BHK’s business practices and its assets insofar as it had loaned money to BHK on prior occasions. We infer from this that Union National may have known of BHK’s precarious financial position and that there was a substantial risk that the remaining accounts would not be collected because the jobs would not be completed.
Since additional factual findings must be made prior to a determination of whether the account assigned to Union National constituted a significant part of BHK’s outstanding accounts, we remand the cause to the District Court. On remand, the District Court shall examine the extent of Union National’s knowledge of BHK’s accounts receivable and determine how Union National’s knowledge affected, or should have affected, its valuation of BHK’s accounts. The court- must then decide whether the account assigned to Union National was a significant part of the outstanding accounts in light of this valuation. The District Court should look at all of the facts and circumstances surrounding the transaction in making its decision.
The decision of the District Court is reversed and remanded for further proceedings consistent with this opinion.
. Ben H. Knight was the owner of BHK prior to July 1, 1976.
. Of course, the language of Ark.Stat.Ann. § 85-9-302(l)(e) requires a court to examine the total of all assignments to the secured party whether or not they took place in a single transaction.
. Union National knew of this fact because it had actual knowledge of it. See Ark.Stat.Ann. § 85-1-201(25).
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_usc1 | 8 | 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.
ACHESON, Secretary of State, v. NOBUO ISHIMARU.
No. 12690.
United States Court of Appeals Ninth Circuit.
Dec. 4, 1950.
Ray J. O’Brien, U. S. Atty., Howard K. Hoddick, Asst, Honolulu, T. H., Edgar R. Bonsall, Asst. U. S. Atty., San Francisco, Cal., for appellant.
Wilfred C. Tsukiyama, Honolulu, T. H., A. L. Wirin, Los Angeles, Cal., for appellee.
Before HEALY, BONE, and POPE, Circuit Judges.
PER CURIAM.
This matter is befo-re us on a motion to dismiss the appeal of the Secretary of State on the ground that the order of which he seeks review ’is not appealable. By agreement of .the parties, the appeal is likewise before us for decision on the merits in event the motion to dismiss is denied.
•In 1948 appellee (hereafter called the plaintiff) brought suit against the Secretary pursuant to § 503 of the Nationality Act of 1940, 8 U.S.C.A. § 903, *to obtain a judgment declaring him to be a national of the United States. The Secretary answered, but notwithstanding the suit has long been at issue it has not been tried, allegedly because of the refusal of the 'Consular authorities to grant the plaintiff’s application for a certificate of identity so that he may come to Hawaii, where the suit is pending, to testify in his case. 'Consult Statute, note 1, supra. In March of 1950 plaintiff moved for an order directing the Secretary to issue such a certificate, supporting the motion by an affidavit of his counsel giving an account of the circumstances. The matters stated in the affidavit were not controverted by the Secretary, and the court ordered the latter to issue a certificate, or other equivalent document, enabling the plaintiff to return to Hawaii for the purpose of attending the trial and being a witness in his own behalf. It is from this order that the appeal was taken.
lt appears to be undisputed that the plaintiff, as alleged in his complaint, was born in the Territory of Hawaii and went as a minor to Japan. As conceded by the Secretary in his argument here, the sole issues raised below are: “1. Did the Appellee expatriate himself, under the provisions of Section 80,1c, Title 8, United States Code, by serving in the Japanese Army? 2. Did the Appellee expatriate himself, under the provisions of Section 801e, Title 8, United States Code, by voting in a political election in a foreign state, namely Japan?”
We are of opinion that the order below is not appealable. It appears not to fall “in that small class which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528. By this order the district court but took a step toward final disposition of the merits of the case. The order is more nearly analogous to that held purely interlocutory in Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783, involving an attempted appeal from the denial of a motion to quash a subpoena duces tecum.
The appeal is dismissed.
. The statute reads: “If any person who claims a right or privilege as a national of the United States is denied such right or privilege by any Department or agency, or executive official thereof, upon the ground that he is not a national of the United States, such person, regardless of whether he is within the United States or abroad, may institute an action against the head of such Department or agency in the District Court of the United States for the District of Columbia or in the district court of the United States for the district in which such person claims a permanent residence for a judgment declaring him to be a national of the United States. If such person is outside the United States and shall have instituted such an action in court, he may, upon submission of a sworn application showing that the claim of nationality presented in such action is made in good faith and has a substantial basis, obtain from a diplomatic or consular officer of the United States in the foreign country in which, he is residing a certificate of identity stating that his nationality status is pending before the court, and may be admitted to the United States with such certificate upon the condition that he shall be subject to deportation in case it shall be decided by the court that he is not a national of the United States. Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States; and from any denial of an application for such certificate the applicant shall be entitled to an appeal to the Secretary of State, who, if he approves the denial, shall state in writing the reasons for his decision. The Secretary of State, with approval of the Attorney General, shall prescribe rules and regulations for the issuance of certificates of identity as above provided.” 8 U.S.O.A. § 903.
. By reference to the statute (footnote 1, supra) it is seen to provide that “Such certificate of identity shall not be denied solely on the ground that such person has lost a status previously had or acquired as a national of the United States”.
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_stateclaim | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?" 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".The issue hereby considered also pertains to cases where the court concluded that there was no proper cause of action.
John J. BURKE, Jr., Petitioner, Appellant, v. COMMISSIONER OF INTERNAL REVENUE et al., Respondents, Appellees.
No. 5964.
United States Court of Appeals First Circuit.
April 23, 1962.
Solomon Sandler, Gloucester, Mass., .for appellant.
Donald P. Horwitz, Attorney, Department of Justice, with whom Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson and Robert N. Anderson, Attorneys, Department of Justice, W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O’Connor, Asst. U. S. Atty., were on brief, for appellees.
Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.
PER CURIAM.
The appellant filed a petition in the court below for a declaratory judgment setting forth whether or not he is entitled to trial before the Tax Court of the United States on his petition pending in that court for redetermination of his income tax liability for the years 1952 to 1955, inclusive, for an order directing the respondents, the Commissioner of Internal Revenue and the local District Director, forthwith to issue statutory notices of deficiency with respect to those years, and for general relief. The respondents moved to dismiss for lack of jurisdiction and after hearing arguments of counsel the court below from the bench, so we are told, but the appellant’s record appendix does not include a transcript of the proceedings at the hearing, orally dismissed the petition for lack of jurisdiction. Immediately after the hearing counsel for the plaintiff filed notice of appeal.
It is true that a docket entry reflects the action taken by the court below on the bench. But a docket entry is not per se a judgment. It is but a minute of action taken by the court, for courts render judgments; clerks only enter them on the court records. What is determinative therefore is the action of the court, not that of the clerk, and lacking a transcript we do not know whether the court intended its announcement from the bench to be its “final decision” or not. That is to say, we cannot tell on the record presented to us whether the court’s statement from the bench embodied the essential elements of judgment. or was merely a forecast of the final action it intended to take. No specific form of words are required to constitute a judgment. Intention controls and a final decision may even be embodied in an opinion. United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232, 78 S.Ct. 674, 2 L.Ed.2d 721 (1958). But since we know full well that it is the general, indeed the universal, practice of the court below to express its judgments in separate documents clearly so labeled, we can only assume, in the absence of clear evidence to the contrary, that it intended to follow its established practice in this case and did not intend its oral pronouncement from the bench to constitute its final determinative action. No judgment ever having been rendered:
An order will be entered dismissing this appeal for lack of appellate jurisdiction.
Question: Did the court dismiss the case because of the failure of the plaintiff to state a claim upon which relief could be granted?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_casetyp1_1-3-2 | I | 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".
Victor LANGDEAU, Appellant, v. STATE OF SOUTH DAKOTA and Its Agents, et al., Appellees.
No. 71-1149.
United States Court of Appeals, Eighth Circuit.
June 30, 1971.
Gary J. Pashby, Sioux Falls, filed brief for appellant.
Gordon Mydland, Atty. Gen., Pierre, S. D., and Roger Schiager, Special Asst. Atty. Gen., William J. Srstka, Jr. Asst. Atty. Gen., filed brief for appellee.
Before LAY, HEANEY and BRIGHT, Circuit Judges.
LAY, Circuit Judge.
This is a post conviction appeal from a denial by the federal district court of habeas corpus to a state prisoner in South Dakota. The petitioner raises two issues on appeal: (1) whether the requirement of a $3,000 cash bond was in violation of the defendant’s “constitutional right to bail,” and (2) whether the defendant’s plea of guilty was involuntarily entered.
The defendant was arrested on or about July 10, 1964, and charged with the crime of indecent molestation of a child in violation of S.D.C. § 13.1727 (Supp.1960) now S.Dak.Comp.Láws 22-22-7 (1967). A $3,000 cash bond was required pending trial. As an indigent he was unable to post the bail required. On July 15, 1964, petitioner was appointed trial counsel. On November 18, 1964, he was brought to trial. •This resulted in a hung jury. Thereafter, he was returned to jail until January 4, 1965, when he asked leave to withdraw his previous plea and enter a plea of guilty to the charge. He was sentenced to 10 years in the South Dakota penitentiary.
Petitioner has exhausted his state remedies. He was given a full eviden-tiary hearing in the state court. The decision denying him post conviction relief was affirmed by the South Dakota Supreme Court. Langdeau v. State, S. D., 179 N.W.2d 121 (1970).
Petitioner asserts that he pled guilty because of the conditions of his confinement in the Hughes County Jail. The evidence shows that the jail was not segregated by separate cells, that it was crowded beyond its normal capacity, that petitioner was harassed (primarily because of the nature of the charge pending against him), and that the petitioner did not like the food that was being given to him. At the time petitioner pled guilty he made known to the trial court his overall discontent with the jail conditions. The court then examined petitioner in detail as to whether he was entering his plea solely because of these conditions or whether he knowingly and voluntarily wanted to do so. The trial judge who accepted the plea was the same judge who heard the evidence at petitioner’s trial. We have reviewed this evidence. As the trial court commented in accepting the guilty plea, the evidence clearly substantiates petitioner’s guilt of the crime charged. In view of petitioner’s confinement under the conditions of which he complained, before accepting the plea of guilty the state trial court offered to impanel a jury and give the petitioner an immediate trial. The petitioner then answered that this would not be necessary because he wanted to enter his plea. Petitioner stated at the state post-conviction evi-dentiary hearing that his appointed counsel had told him that if he pled guilty he would get a reduced sentence. Although there is nothing of record demonstrating any plea bargaining, the statement of the trial judge indicates that the defendant did receive a reduced sentence by reason of his guilty plea.
Our analysis of the record leads us to conclude that petitioner’s discontent with his preconviction existence in the community jail served only as a circumstance, perhaps at best motivating the timing of his decision to plead guilty. Petitioner’s' distaste for his jaii food is no more a factor than his interest in obtaining a reduced sentence. As taught in Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), such factors serve only as “but for” reasons surrounding the guilty plea. The significant test remains yet to be answered: whether the plea of guilty was “an intelligent act ‘done with sufficient awareness of the relevant circumstances and likely consequences.’ ” McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 1446, 25 L.Ed.2d 763 (1970). Using Brady as the paradigm, the fact that the jail conditions “caused” the plea does not demonstrate that petitioner was unaware of all the surrounding factors and their “likely consequences.” Here the record unequivocally demonstrates to the contrary. The facts are insufficient to hold as a matter of law that invidious discrimination or psychological coercion induced an involuntary guilty plea. The state trial court, as did the federal district court, placed emphasis on the fact that the petitioner was represented by competent counsel and waived the court’s offer to immediately retry the case. Petitioner’s deliberate choice to waive trial cannot be easily eradicated years after the event. Many considerations may influence a defendant to plead guilty. However, these influences cannot serve to set aside a guilty plea made where counsel is present and the defendant is shown to be capable of making a deliberate and knowing decision. We cannot say that there did not exist sufficient facts to support the state trial court’s, and the federal district judge’s, finding that the plea was voluntarily made. The decisions of McMann v. Richardson, supra; Brady v. United States, supra; and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), along with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), require a prisoner represented by competent counsel, where a full and fair guilty plea hearing has taken place, to assume a heavy burden to set aside his guilty plea.
In view of the conviction being sustained, the issue concerning the constitutionality of preeonviction bail is moot.
Judgment affirmed.
. According to the trial judge the verdict stood at 11 to 1 for conviction.
. See McGee, “Our Sick Jails,” Federal Probation 3, March 1971.
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: |
sc_authoritydecision | C | 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.
MISSOURI v. BLAIR
No. 85-303.
Argued November 12, 1986
Decided March 25, 1987
Albert A. Riederer argued the cause for petitioner. With him on the briefs were William L. Webster, Attorney General of Missouri, Philip M. Koppe, Assistant Attorney General, and Robert Frager.
Joseph H. Locascio argued the cause and filed a brief for respondent.
Larry W. Yackle, Charles S. Sims, and Burt Neubome filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.
Per Curiam.
The writ of certiorari is dismissed as improvidently granted.
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_partywinning | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
DIXON v. DUFFY, WARDEN.
No. 79.
Argued October 16, 1951.
Continued November 5, 1951.
Further continued May 12, 1952.
Per Curiam.
On November 5,1951, we ordered this cause “continued for such period as will enable counsel for petitioner to secure a determination from the Supreme Court of California as to whether the judgment herein was intended to rest on an adequate independent state ground or whether decision of the federal claim was necessary to the judgment rendered.” 342 U. S. 33, 34 (1951).
We have not yet been advised whether the Supreme Court of California has conducted any further proceedings in this case or has so entered as to become a part of the record, any order, opinion or certificate after November 5, 1951. We do not regard a letter, not apparently a part of the case record, received by the Clerk of this Court on March 31, 1952, signed by the Clerk of the Supreme Court of California as a sufficient “determination” of the question raised in our order of November 5, 1951.
Accordingly, the cause is ordered further continued for such period as will enable counsel for petitioner to secure from the Supreme Court of California its official determination as requested in our order of November 5, 1951.
Cause continued.
Mr. Justice Douglas, being of the opinion that the federal question in the case has been fully exposed, dissents.
Mr. Justice Minton took no part in the consideration or decision of this case.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
Answer: |
songer_circuit | H | 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.
SHINGLETON et al. v. ARMOUR BOULEVARD CORPORATION.
No. 11067.
Circuit Court of Appeals, Eighth Circuit.
April 22, 1938.
Rehearing Denied May 12, 1938.
Eaton Adams and John B. Pew, both of Kansas City, Mo. (G. W. Humphrey, Arthur N. Adams, Arthur N. Adams, Jr., Eaton Adams, and W. H. L. Watts, all of Kansas City, Mo., on the brief), for appellants.
David M. Proctor, of Kansas City, Mo. (Phineas Rosenberg, William Buchholz, C. H. Ewald, and David M. Proctor, Jr., all of Kansas City, Mo., on the brief), for appellee.
Before GARDNER, SANBORN, and THOMAS, Circuit Judges.
GARDNER, Circuit Judge.
This is an appeal from a judgment of the bankruptcy court dismissing an amended involuntary petition in bankruptcy filed against Armour Boulevard Corporation and refusing to adjudge it a bankrupt. The ground upon which the court dismissed the petition and refused adjudication was that the petition did not state facts sufficient to constitute an act of bankruptcy. The sole question on this appeal is therefore whether the amended petition was sufficient.
The allegations of the petition pertinent to this inquiry are substantially as follows: That the Armour Boulevard Corporation did, on or about the 16th of February, 1937, while insolvent, and with .full knowledge of its insolvency, cause, suffer, and permit a creditor, one Lillian E. Meyenschein, to obtain a judgment against it in the circuit court of Jackson county, Mo., for $2974.82; that the Armour Boulevard Corporation entered its appearance in said cause and filed a confession of judgment and through its counsel presented this confession of judgment to the circuit court of Jackson county, Mo., where the cause was pending, and thereupon caused, permitted, and consented to the rendition by the said court of a judgment based upon such confession, the judgment being entered on the 16th day of February, 1937. That after judgment, the alleged bankrupt caused, suffered, and permitted general execution to issue thereon, and on or about the 3d day of March, 1937, pursuant to a general execution on such judgment, caused, suffered, and permitted the sheriff to seize and attach all debts due or to become due by the Modern Woodmen of America to said alleged bankrupt, or so much thereof as would be sufficient to satisfy its said judgment. That the alleged bankrupt, on or about the 5th of March, 1937, likewise caused, suffered, and permitted the sheriff to attach, levy upon, and seize in the hands of Thomas F. Sotham and Harold E. Sotham, both of Jackson county, Mo., all debts owing by them to the alleged bankrupt, together with all personal property, money, rights, credits, bonds, bills, notes, drafts, checks, and other choses in action, and also all other personal property of whatever kind liable to garnishment of said Armour Boulevard Corporation in possession of or under control or charge of or owing by the said named garnishees. That said transfer of property while insolvent was with the intent to prefer Lillian E. Meyenschein as a creditor over other creditors, including the petitioners; that Lillian E. Meyenschein had full knowledge of said intent. That the alleged bankrupt is asserting a claim against Thomas F. Sotham and Harold E. Sotham, the garnishees, said claim being the basis of a suit pending in the circuit court of Jackson county, Mo., entitled Armour Boulevard Corporation v. Harold E. Sotham and Thomas F. Sotham; that said suit is to recover money; that in said suit the attorneys of record of Armour Boulevard Corporation, the plaintiff, are the law firm of Proctor & Proctor. That Lillian E. Meyenschein is one of the original incorporators of the Armour Boulevard Corporation, and was its executive secretary at all times mentioned in the petition; that the books, records, and accounts of the corporation have been in her care and custody. The petition contains the usual jurisdictional allegations, sets out the character and amount and number of petitioners’ claims, but, as no question is raised as to these allegations, they need not be here reproduced.
Appellants contended in the lower court, and contend here, that the action by Lillian E. Meyenschein against Armour Boulevard Corporation, the alleged bankrupt, followed by confession of judgment and levy under execution, constituted a transfer of a portion of debtor’s property, it being alleged that Armour Boulevard Corporation was insolvent, and that such transfer was with the intent to prefer the creditor Meyenschein over the other creditors of the debtor.
Under the Bankruptcy Act, section 3a (2), 11 U.S.C.A. § 21(a) (2), a debtor who transfers while insolvent any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors commits an act of bankruptcy. It was the manifest purpose of this subdivision of the Bankruptcy Act to .protect creditors from the voluntary act of the bankrupt in an attempt to prefer one creditor over another.
The word “transfer,” as used in the Bankruptcy Act is defined in subsection (25) of section 1, 11 U.S.C.A. § 1 (25) as follows: “ ‘transfer’ shall include the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security.” It may be either directly to a creditor or indirectly. Whatever the nature of the mechanics employed, if the result is to procure a creditor a preference over another creditor, the transaction is forbidden. A debtor who actively aids a creditor in obtaining a judgment by means of which his debt is secured transfers his property, and, if it is done with intent to prefer, and as a result the creditor obtains security or payment of his debt in preference to other creditors, the transaction is an act of bankruptcy. In re Truitt, D.C., 203 F. 550; Folger v. Putnam, 9 Cir., 194 F. 793; In re Nusbaum, D.C., 152 F. 835.
The lower court, in sustaining the motion to dismiss the petition, expressed the view that, if the proceeding alleged results in the giving of security on the debt- or’s property, it would constitute an act of bankruptcy, but expressed the view that the proceeding did not create a lien upon any of the debtor’s property and, hence, the' transaction did not result in giving security.
It is to be noted that the petition charges the debtor with affirmative acts. It is charged that it caused its creditor Lillian E. Meyenschein, who, by the way, was one of its officers, to obtain a judgment against it; that it filed a confession of judgment and it caused judgment to be rendered against itself upon that confession. In addition to this, it is alleged not simply that it permitted acts to be done by third parties, but that it affirmatively caused the issuance of execution, and that it caused the sheriff to attach all debts due it in the hands of Thomas F. Sotham and Harold E. Sotham, and that it levied upon all personal property in their hands due it, including choses in action. According to these allegations, it was the instigator and the prime actor in this entire proceeding.
In the case of In re Musgrove Mining Co., D.C., 234 F. 99, 100, an involuntary petition in bankruptcy was filed against the mining company. The acts of bankruptcy alleged were two confessions of judgment by the mining company. No execution had issued, but the statutes of Idaho, where the property was located, gave a judgment creditor a lien on all real estate owned by the debtor, so that in that case there was no doubt of the existence of a lien. In discussing section 3, subd. (a) (2) and subdivision (a) (3), 11 U.S.C.A. § 21 (a) (2, 3),'the court, among other things, said: “Upon consideration it is concluded that while a preference effected through judicial proceedings may fall within one class or the other, the two provisions do not necessarily overlap. The distinction is to be found in the presence or absence of an intent on the part of the debtor to give a preference, and by intent is meant an actpal, and not merely a constructive,' intent. If the debtor has acted in such a way as to give a preference with the intent and purpose so to do, it is quite immaterial by what means such purpose is accomplished, whether by judicial proceedings or in some other manner. In such case the act falls within a (2). Upon the other hand, if, through legal proceedings, a preference has in fact been permitted or procured, but without any intent or purpose on the part of the debtor to give it, then the act falls within the terms of subdivision a (3).”
In that case, no execution had issued, but there was real estate. In the instant case, execution issued and attachments were levied upon property which the alleged bankrupt said it owned. In a judicial proceeding brought against Thomas F. Sotham and Harold E. Sotham, it alleged that they were indebted to it for money had and received. And, it must be remembered, it was the alleged bankrupt who caused execution to issue and garnish-, ment proceedings to be levied, and by so' doing it again declared that Thomas F. Sotham and Harold E. Sotham were indebted to it. It is here argued that the proceedings did not constitute an act of bankruptcy because the garnishees had not admitted they had money or property in their hands. The garnishees are not parties to this proceeding, but the alleged bankrupt is- a party, and it has not only admitted, but has affirmatively declared, both by the proceedings taken and by proceedings it caused to be taken by Lillian E. Meyenschein, that these garnishees had property in their hands belonging to it. The manifest purpose of the proceeding was to reach that property, and it was the purpose of the alleged bankrupt to subject it to the payment of the judgment which it had procured against itself in favor of Lillian E. Meyenschein. Manifestly, whatever these garnishees had was subjected to the payment of this debt and it became secured thereby. It was not essential that the garnishees admit that they had money or property belonging to the alleged bankrupt. It had itself in the most convincing manner admitted this to be a fact. Having so declared and admitted when it was presumably to its advantage so to do, it should not now be permitted to escape the results of its acts by taking an inconsistent position. Holly Hill Citrus Growers’ Ass’n v. Holly Hill Fruit Products, 5 Cir., 75 F.2d 13; Texas Company v. Gulf Refining Co., 5 Cir., 26 F.2d 394; Williams v. Mason, D.C., 289 F. 812; Michels v. Olmstead, 157 U.S. 198, 15 S.Ct. 580, 39 L.Ed. 671. In any event, there was a chose in action which by the garnishment proceeding was levied upon,'and this was property within the meaning of the statute. Section 655,.Revised Statutes of Missouri 1929, Mo.St.Ann. § 655, p. 4899; section 9977, Revised Statutes of Missouri 1929, Mo.St.Ann. § 9977, p. 8015; Womach v. City of St. Joseph, 201 Mo. 467, 100 S.W. 443, 10 L.R.A.,N.S., 140.
But it is said that, even if there were property in the hands of Thomas F. Sotham and Harold E. Sotham which belonged to the alleged bankrupt, it was not by the proceedings taken under the Missouri statutes subjected to any lien, and the inference is that it was not made available for the payment of the judgment secured in favor of Lillian E. Meyenschein in preference to the bankrupt’s other creditors.
Section 1397 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1397, p. 1612, provides as follows: “Garnishees summoned, how. When a fieri facias shall be issued and placed in the hands of an officer for collection, it shall be the duty of the officer, when directed by the plaintiff, his agent or attorney, to summon garnishees, and with like effect as in case of an original attachment.”
Section 1296 of the Revised Statutes of Missouri 1929, Mo.St.Ann. § 1296, p. 1507, provides the manner for serving writs of attachment as follows: “When the credits of the defendant are to be attached, the officer shall declare to the debtor of the defendant that he attaches in his hands all debts due from him to the defendant, or so much thereof as shall be sufficient to satisfy the debt and interest, or damages and costs, and summon such debtor as garnishee.”
In Kansas & Texas Coal Co. v. Adams, 99 Mo.App. 474, 74 S.W. 158, 160, it is said: "This statutable declaration of sequestration to the garnishee takes the place of manual seizure on account of the intangibility of the credits there referred to. It constitutes constructive seizure of the credits.”
Section 1399 of the Revised Statutes 1929, Mo.St.Ann. § 1399, p. 1615, provides that: “Notice of garnishment, served as provided in this article, shall have the effect of attaching all personal property, money, rights, credits, bonds, bills, notes, drafts, checks or other dioses in action of the defendant in the garnishee’s possession or charge, or under his control,” etc.
As before observed, the claim of the bankrupt which was the basis of an action at law against Thomas F. Sotham and Harold E. Sotham was at least a chose in action, and under this statute it was reached by this garnishment proceeding. .As between the alleged bankrupt and Lillian E. Meyenschein, it gave over to her the right to collect the Sotham debt when it caused it to be levied on under execution. Whether or not there is a lien upon physical properties levied upon in the hands of a garnishee which will follow it into the hands of third parties without notice is not, we think, here material. No such question is presented.
In Marx v. Hart, 166 Mo. 503, 66 S.W. 260, 266, 89 Am.St.Rep. 715, cited and relied upon by appellee, it is said: “By that service of the writ of attachment, the plaintiffs, while not obtaining a full and clear lien upon the specific property in their hands as against third persons, did obtain such a lien as against garnishees as gave plaintiffs the right to hold the garnishees personally liable for its value.” (Italics supplied.)
Under statutes similar to the Missouri statutes, the Supreme Court of Michigan in National City Bank v. Torrent, 130 Mich. 259, 89 N.W. 938, held that garnishment proceedings were security even before any judgment had been taken against the garnishee.
In Re Standard-Detroit Tractor Co., D. C., 275 F. 952, 954, the court, in discussing the effect of garnishment proceedings under a Michigan statute quite similar to the Missouri statute, said: “The effect, therefore, of the service of the writ of garnishment, was to fasten a lien upon the indebtedness of the garnishee defendants to the principal defendant in the garnishment proceedings, the bankrupt herein, and to thereby subject the property of such bankrupt, consisting of its right to recover such indebtedness, to the lien of such garnishment. In re Ransford [6 Cir.], 194 F. 658.”
The effect of the service of the garnishment under execution after judgment entered was at least to create an equitable lien upon whatever property was in the hands of these parties. That there was such property in their hands was admitted and declared by the alleged bankrupt, and it is not in position to complain if its declaration be accepted as true. The object and purpose of the Bankruptcy Act, 11 U. S.C.A. § 1 et seq., being to secure an equal and just distribution of the property of the bankrupt among creditors, to hold that an act of bankruptcy was not committed under the facts, as described by the amended petition, would go far to break down and destroy that purpose and object.
The judgment appealed from is therefore reversed, and the cause remanded to the lower court for further proceedings consistent herewith.
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_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.
Oscar WHITE, and all others similarly situated, Plaintiffs-Appellants, v. Edmund G. BROWN, Jr., Secretary of State, Defendant-Appellee.
No. 72-2560.
United States Court of Appeals, Ninth Circuit.
Sept. 29, 1972.
Thomas J. Gundlach (argued), San Francisco, Cal., for plaintiffs-appellants.
Robert R. Granucei, Deputy Atty. Gen. (argued), William E. James, Edward P. O’Brien, Asst. Attys. Gen., Edward A. Hinz, Jr., Chief Asst. Atty. Gen., Evelle J. Younger, Atty. Gen., San Francisco, Cal., for defendant-appellee.
Before BROWNING, ELY, and WRIGHT, Circuit Judges.
PER CURIAM:
White appeals a dismissal of his action to remove Proposition 17, the California Death Penalty Initiative, from the state’s November ballot. That initiative on its face purports to reinstate all of California provisions for the imposition of the death penalty that were in effect on February 17, 1972. February 17th is the date the California Supreme Court declared all such provisions violative of the California Constitution. People v. Anderson, 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880 (1972).
White’s basic claim is that Proposition 17 would violate the Eighth Amendment of the United States Constitution, as applied by the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972). In our view, White lacks standing to assert this claim.
According to White, the mere possibility of Proposition 17’s passage, regardless of the election’s actual result, will cause him the requisite injury in fact. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970). White is presently charged with the crime of first degree murder arising out of acts allegedly committed on or about J une 24,1972, approximately four months after the California Supreme Court’s decision in People v. Anderson, supra. Prior to Anderson, section 190 of the California Penal Code had authorized discretionary death sentencing in cases of first degree murder. White argues that the mere possibility of Proposition 17’s passage and subsequent interpretation to reinstate section 190’s death penalty and apply it retroactively to him is encouraging him and other criminal defendants similarly situated to waive various federal constitutional rights and even plead guilty now rather than risk the death penalty by stretching out their trials past the initiative’s probable effective date. Such encouragement, asserts White, is analogous to that held impermissible in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
There is no substance to White’s fear that passage of Proposition 17 might subject him to the death penalty.
Proposition 17 does not apply to White’s case. By its own terms, it speaks only in the present tense: “All statutes in effect on February 17, 1972, requiring, authorizing, imposing, or relating to the death penalty are in full force and effect . . . ” (emphasis added). Even though retroactive application would arguably be insulated from attack on state constitutional grounds, there is no basis for asserting such application here.
If Proposition 17 were interpreted to apply to White’s alleged June 24th commission of first degree murder, the proposition would constitute a patent violation of article I, section 10, clause 1 of the United States Constitution: “No State shall . . . pass any . ex post facto Law . . ..” Since the California Supreme Court had on February 17th voided section 190 of the California Penal Code to the extent it authorized imposition of the death penalty for White’s alleged crime, the maximum penalty provided for that crime on the date of its alleged commission was life imprisonment. According to Justice Field, an ex post facto law is “one which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed . . ..” Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 325-326, 18 L.Ed. 356 (1867) (emphasis added); see Ex parte Garland, 71 U.S. (4 Wall.) 333, 377-378, 18 L.Ed. 366 (1867). Or, in the words of Chief Justice Marshall, it is a law “which renders an act punishable in a manner in which it was not punishable when it was committed.” Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 137, 3 L.Ed. 162 (1810). There is simply no possibility that California could now sentence White to death consistently with the United States Constitution.
Finally, the representative of the Attorney General of the State of California has represented to this court, both orally and in writing, that it is the official position of the State of California that Proposition 17, if enacted, will not revive the death penalty with respect to violations of section 187 of the California Penal Code, under which White is charged; that to so apply it would contravene both the federal and state Constitutions; and, accordingly, that White may not be sentenced to death for the offense with which he is charged even if the initiative is enacted.
Since we find that White’s assertion of standing was frivolous, we need not reach the issue of whether a dismissal for want of standing could otherwise be made only by the three-judge district court requested by White. See Scott v. Hill, 449 F.2d 634, 635-637 (6th Cir. 1971), cert. denied 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972). The judgment of dismissal is accordingly affirmed. This court’s mandate shall issue forthwith, and no petition for rehearing will be entertained. See Rule 2, F.R.App.Proe.
So ordered.
. “The undersigned hereby propose that the Constitution of the State of California be amended by adding Section 27 to Article 1 thereof, permitting the death penalty as a form of punishment for criminal offenses, and petition the Secretary of State to submit this proposal to the electors of California for adoption. The text of the proposed measure is as follows:
“ ‘Section 27 is added to Article 1, to read:
“ ‘Sec. 27. All statutes of this state in effect on February 17, 1972, requiring, authorizing, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative, or referendum. The death penalty provided for under those statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments within the meaning of Article 1, Section 6, nor shall such punishment for such offenses be deemed to contravene any other provision of this Constitution.’ ”
Brief for Appellant at 38 (App. a).
. Although California constitutional and statutory law (Cal.Const., art. I, § 16; Pen.Code, § 3) prohibits any enactment that increases criminal penalties for conduct occurring prior to the enactment’s effective date, the initiative provides that its reinstatement of the death penalty “shall not be deemed ... to contravene any other provision of this Constitution.” See note 1, supra.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Vella Dee JOHNSON, Plaintiff-Appellee, v. CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, et al., Defendants-Appellants.
No. 74-1377.
United States Court of Appeals, Tenth Circuit.
Argued Jan. 23, 1975.
Decided April 7, 1975.
Maynard I. Ungerman of Ungerman, Grabel & Ungerman, Tulsa, Oklahoma (Alan M. Levy of Goldberg, Previant & Uelmen, Milwaukee, Wis., on the brief), for defendants-appellants.
Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
The cause which is here appealed was originally an action seeking to recover a surviving widow’s pension. This was allegedly derived from the employment of her husband who had been a driver for Red Ball, Inc. and a member of Teamsters Local 523. The action was originally filed in state court and removed to federal district court for the Northern District of Oklahoma. Following a trial judgment was entered for plaintiff in the amount of $15,000. The Pension Fund is the appellant.
Under the terms of the collective bargaining agreement which covered him, the company paid $6.00 per week to the Pension' Fund for each employee. At the time of Johnson’s death, the company had made payments for 128 weeks, almost two and one-half years.
A booklet which was furnished to plaintiff’s husband explained the pension plan (pp. 1-28) and also included the text of the plan itself (pp. 29-44). Defendant now contends that under the terms of the Plan, plaintiff’s entitlement was limited to a death benefit of $320. Plaintiff maintains she is entitled to a survivor benefit of $250 per month for 60 months ($15,000). Her contention is founded not on the words of the plan but on several statements in the introductory explanation of the plan which she contends are ambiguous and on a letter dated August 25, 1967 sent to Johnson by the union assistant business manager.
The plan itself is not ambiguous. It allows for monthly survivor benefits only if certain specified payments have been made into the fund for the employee. Otherwise, it limits entitlement to the death benefit. The conditions for qualification for survivor benefits are as follows:
If the employee dies after his Normal Retirement Date . . . and if such employee or pensioner dies after his last employer has made contributions on his behalf under a collective bargaining agreement providing for contributions at the rate of $7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter, a survivor benefit shall be payable to his surviving spouse.
Art. Ill, § 9(B).
If contributions of $7.00 and $8.00 have been made, the survivor is entitled to $250 per month; if contributions of $8.00, $9.00, and $10.00 have been made, the survivor is entitled to $300 per month.
In the explanation portion of the booklet, the survivor benefit is described briefly:
$135 per month payable to spouse or dependent children under 23 years of age for five months upon death of active member. $250 or $300 per month payable to spouse for balance of five years upon death of normal retirement pensioner. (Applicable only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.)
(R. 86, p. 7 of booklet).
Later the explanation recites that if death occurs after the employee becomes eligible for normal retirement, “the amount of the monthly Survivor Pension is the Normal Pension payable for 60 months to your surviving wife (or husband).” (R. 97, p. 18 of booklet). On the same page it states that the surviving wife is eligible for the pension if the last employer contributed “under an agreement providing for payments of $5-$6 — $7—$8 or $8-$9-$10 over a three year period.”
The letter relied on is that of August 1967 to Johnson from Nye, the assistant business manager, which stated that the $6 per week payment would entitle each employee to a pension of $250 per month for five years and $110 per month thereafter. According to the booklet explanation, payments by the employer of $5— $6-$7 — $8 per week over a three year period entitle the employee to the pension Nye said would be available. The Plan provision makes clear that $6 per week is not sufficient for the $250 per month pension. The Nye letter says nothing about survivor benefits.
At the trial Mr. Murtha, the administrator of pension benefits, testified that the Trustees of the Fund have never granted a survivor benefit where the employer only contributed $6 per week. He also testified that any amendments to the plan had to be approved by the Internal Revenue Service.
Plaintiff contends that she is entitled to rely on the general description of the plan contained in the introductory pages of the booklet her husband received at the plan’s inception. She further contends that this description is ambiguous and that the ambiguities ought to be resolved strictly against the scrivener. The trial court accepted these contentions and held that the payment of $6.00 per week by her husband’s employer placed her in the “$5-$6-$7-$8” category which provided for survivor benefits of $250 per month for 60 months.
This holding is clearly erroneous. Unfortunately for plaintiff, neither the plan nor its description is ambiguous. The first mention of survival benefits occurs at the front of the booklet under the heading “your pension in brief.” The description states that the survivor benefit is applicable “only to classes of $5-$6-$7-$8 and $8-$9-$10, respectively.” Immediately adjacent to this is a description of the lump sum benefit, which is applicable “to all classes other than $5-$6-$7-$8 and $8-$9-$10.” The descriptive portion of the booklet does not precisely delineate the composition of these two classes, but the plan itself (which follows the description) is explicit in this regard. It declares that survivor benefits are payable only if the employer contributed “$7.00 per week for two years and $8.00 per week thereafter or $8.00 per week for one year, $9.00 per week for the second year, $10.00 per week thereafter.”
The description in the front of the booklet does not expressly represent that employer contributions give the worker the right to be in one of the two classes of surviving beneficiaries; it could, however, lead the ordinary, unwary reader to this belief. But the plan clarifies this vagueness so that if one had been confused after reading the description (regarding the legal result of the $6 per week contribution), an examination of the plan itself serves to dispel any such belief, for it is clear from a reading of the plan that in order for a survivor to have entitlement there must have been employer payments in increasing amounts over a three year period.
Gould v. Continental Coffee Co., 804 F.Supp. 1 (S.D.N.Y.1960) and Dictaphone Corp. v. Clemons, 488 P.2d 226 (Colo. App.1971) are cited by the plaintiff-ap-pellee for the proposition that where there is a variance between the general description and the plan itself it is to be construed against the draftsman. These cases are, however, different because the plans themselves were not in those instances submitted to the beneficiaries. Only the summaries were given. It is not, therefore, surprising that the courts in those cases held that the employees had a right to rely on the summaries.
A reading of the plan makes clear the belief that a survivor’s pension is paid to anyone whose employer paid $5-$6-$7 and $8 and that a higher pension is paid to those whose employer paid $8-$9 and $10.
The letter from Nye to plaintiff’s husband is somewhat misleading. However, it does not mention survivor pensions. The mistake in that letter was made in saying that plaintiff’s husband would receive upon retirement $250 each month for five years and $110 per month thereafter. This is the amount that is received from someone who is in the higher classification of employer payments. But there could have been no reliance on that letter for the purpose of survivor benefits. Although the memorandum which was sent to the union and which is relied on by appellant did mention survivor benefits, read in its entirety it was incapable of misleading anyone.
Finally, it cannot be said that the plan itself is positively deceptive. True, it is much less than perfect in that it presents a picture of glowing generosity, whereas for the $6 per week the surviving widow receives only a small percentage of the amount paid in. This is indeed a poor plan which ought not to be available to an employer. Moreover, if there is to be a description of a plan of this kind it should describe not only the benefits but should also note the deficiencies.
Plaintiff finally urges that the appellant has violated the Welfare Pension Plan Disclosure Act, 29 U.S.C. § 301 et seq. This requires a complete description of pension plans like the one involved here. Even though the, description together with the plan is unsatisfactory, we cannot say that the appellee has violated this Act.
We are constrained to hold that the judgment of the district court is clearly erroneous from the standpoint of the facts found and must be reversed. The cause is remanded to the district court with directions to vacate the judgment and dismiss the action.
. A check, dated April 5, 1972, in the amount of $320 was tendered to Mrs. Johnson, but she refused it.
. Nye admitted at the trial that he “goofed” in including a description of the pension in his letter. It had always been his understanding that interpretation of the benefits would be left to the Pension Fund.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
sc_petitioner | 029 | 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.
SIBRON v. NEW YORK.
No. 63.
Argued December 11-12, 1967.
Decided June 10, 1968.
Kalman Finkel and Gretchen White Oberman argued the cause and filed briefs for appellant in No. 63. Robert Stuart Friedman argued the cause and filed a brief for appellant in No. 74.
William I. Siegel argued the cause for appellee in No. 63. With him on the brief was Aaron E. Koota. James J. Duggan argued the cause for appellee in No. 74. With him on the briefs was Leonard Rubenfeld.
Michael Juviler argued the cause for the District Attorney of New York County, as amicus curiae, in No. 63. With him on the brief filed in both cases were Frank S. Hogan and H. Richard Uviller. Mr. Siegel argued the cause for the District Attorney of Kings County, as amicus curiae, in No. 74.
Briefs of amici curiae, urging reversal in both cases, were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Melvyn Zarr, and Anthony G. Amsterdam for the NAACP Legal Defense and Educational Fund, Inc., and by Bernard A. Berkman, Melvin L. Wulf, and Alan H. Levine for the American Civil Liberties Union et al.
Louis J. Lefkowitz, -pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Brenda Soloff, Assistant Attorneys General, filed a brief for the Attorney General of New York, as amicus curiae, urging affirmance in both cases.
Together with No. 74, Peters v. New York, argued on December 12, 1967, also on appeal from the same court.
MR. Chief Justice Warren
delivered the opinion of the Court.
These are companion cases to No. 67, Terry v. Ohio, ante, p. 1, decided today. They present related questions under the Fourth and Fourteenth Amendments, but the cases arise in the context of New York’s “stop-and-frisk” law, N. Y. Code Crim. Proc. § 180-a. This statute provides:
“1. A police officer may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or any of the offenses specified in section five hundred fifty-two of this chapter, and may demand of him his name, address and an explanation of his actions.
“2. When a police officer has stopped a person for questioning pursuant to this section and reasonably suspects that he is in danger of life or limb, he may-search such person for a dangerous weapon. If the police officer finds such a weapon or any other thing the possession of which may constitute a crime, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.”
The appellants, Sibron and Peters, were both convicted of crimes in New York state courts on the basis of evidence seized from their persons by police officers. The Court of Appeals of New York held that the evidence was properly admitted, on the ground that the searches which uncovered it were authorized by the statute. People v. Sibron, 18 N. Y. 2d 603, 219 N. E. 2d 196, 272 N. Y. S. 2d 374 (1966) (memorandum); People v. Peters, 18 N. Y. 2d 238, 219 N. E. 2d 595, 273 N. Y. S. 2d 217 (1966). Sibron and Peters have appealed their convictions to this Court, claiming that §. 180-a is unconstitutional on its face and as construed and applied, because the searches and seizures which it was held to have authorized violated their rights under the Fourth Amendment, made applicable to the States by the Fourteenth. Mapp v. Ohio, 367 U. S. 643 (1961). We noted probable jurisdiction, 386 U. S. 954 (1967); 386 U. S. 980 (1967), and consolidated the two cases for argument with No. 67.
The facts in these cases may be stated briefly. Sibron, the appellant in No. 63, was convicted of the unlawful possession of heroin. He moved before trial to suppress the heroin seized from his person by the arresting officer, Brooklyn Patrolman Anthony Martin. After the trial court denied his motion, Sibron pleaded guilty to the charge, preserving his right to appeal the evidentiary ruling. At the hearing on the motion to suppress, Officer Martin testified that while he was patrolling his beat in uniform on March 9, 1965, he observed Sibron “continually from the hours of 4:00 P. M. to 12:00, midnight ... in the vicinity of 742 Broadway.” He stated that during this period of time he saw Sibron in conversation with six or eight persons whom he (Patrolman Martin) knew from past experience to be narcotics addicts. The officer testified that he did not overhear any of these conversations, and that he did not see anything pass between Sibron and any of the others. Late in the evening Sibron entered a restaurant. Patrolman Martin saw Sibron speak with three more known addicts inside the restaurant. Once again, nothing was overheard and nothing was seen to pass between Sibron and the addicts. Sibron sat down and ordered pie and coffee, and, as he was eating, Patrolman Martin approached him and told him to come outside. Once outside, the officer said to Sibron, “You know what I am after.” According to the officer, Sibron “mumbled something and reached into his pocket.” Simultaneously, Patrolman Martin thrust his hand into the same pocket, discovering several glassine envelopes, which, it turned out, contained heroin.
The State has had some difficulty in settling upon a theory for the admissibility of these envelopes of heroin. In his sworn complaint Patrolman Martin stated:
“As the officer approached the defendant, the latter being in the direction of the officer and seeing him, he did put his hand in his left jacket pocket and pulled out a tinfoil envelope and did attempt to throw same to the ground. The officer never losing sight of the said envelope seized it from the def[endan]t’s left hand, examined it and found it to contain ten glascine [sic] envelopes with a white substance alleged to be Heroin.”
This version of the encounter, however, bears very little resemblance to Patrolman Martin’s testimony at the hearing on the motion to suppress. In fact, he discarded the abandonment theory at the hearing. Nor did the officer ever seriously suggest that he was in fear of bodily harm and that he searched Sibron in self-protection to find weapons.
The prosecutor’s theory at the hearing was that Patrolman Martin had probable cause to believe that Sibron was in possession of narcotics because he had seen him conversing with a number of known addicts over an eight-hour period. In the absence of any knowledge on Patrolman Martin’s part concerning the nature of the intercourse between Sibron and the addicts, however, the trial court was inclined to grant the motion to suppress. As the judge stated, “All he knows about the unknown men: They are narcotics addicts. They might have been talking about the World Series. They might have been talking about prize fights.” The prosecutor, however, reminded the judge that Sibron had admitted on the stand, in Patrolman Martin’s absence, that he had been talking to the addicts about narcotics. Thereupon, the trial judge changed his mind and ruled that the officer had probable cause for an arrest.
Section 180-a, the “stop-and-frisk” statute, was not mentioned at any point in the trial court. The Appellate Term of the Supreme Court affirmed the conviction without opinion. In the Court of Appeals of New York, Sibron’s case was consolidated with the Peters case, No. 74. The Court of Appeals held that the search in Peters was justified under the statute, but it wrote no opinion in Sibron’s case. The dissents of Judges Fuld and Van Voorhis, however, indicate that the court rested its holding on § 180-a. At any rate, in its Brief in Opposition to the Jurisdictional Statement in this Court, the State sought to justify the search on the basis of the statute. After we noted probable jurisdiction, the District Attorney for Kings County confessed error.
Peters, the appellant in No. 74, was convicted of possessing burglary tools under circumstances evincing an intent to employ them in the commission of a crime. The tools were seized from his person at the time of his arrest, and like Sibron he made a pretrial motion to suppress them. When the trial court denied the motion, he too pleaded guilty, preserving his right to appeal. Officer Samuel Lasky of the New York City Police Department testified at the hearing on the motion that he was at home in his apartment in Mount Vernon, New York, at about 1 p. m. on July 10, 1964. He had just finished taking a shower and was drying himself when he heard a noise at his door. His attempt to investigate was interrupted by a telephone call, but when he returned and looked through the peephole into the hall, Officer Lasky saw “two men tiptoeing out of the alcove toward the stairway.” He immediately called the police, put on some civilian clothes and armed himself with his service revolver. Returning to the peephole, he saw “a tall man tiptoeing away from the alcove and followed by this shorter man, Mr. Peters, toward the stairway.” Officer Lasky testified that he had lived in the 120-unit building for 12 years and that he did not recognize either of the men as tenants. Believing that he had happened upon the two men in the course of an attempted burglary, Officer Lasky opened his door, entered the hallway and slammed the door loudly behind him. This precipitated a flight down the stairs on the part of the two men, and Officer Lasky gave chase. His apartment was located on the sixth floor, and he apprehended Peters between the fourth and fifth floors. Grabbing Peters by the collar, he continued down another flight in unsuccessful pursuit of the other man. Peters explained his presence in the building to Officer Lasky by saying that he was visiting a girl friend. However, he declined to reveal the girl friend’s name, on the ground that she was a married woman. Officer Lasky patted Peters down for weapons, and discovered a hard object in his pocket. He stated at the hearing that the object did not feel like a gun, but that it might have been a knife. He removed the object from Peters’ pocket. It was an opaque plastic envelope, containing burglar’s tools.
The trial court explicitly refused to credit Peters’ testimony that he was merely in the building to visit his girl friend. It found that Officer Lasky had the requisite “reasonable suspicion” of Peters under § 180-a to stop him and question him. It also found that Peters’ response was “clearly unsatisfactory,” and that “under the circumstances Lasky’s action in frisking Peters for a dangerous weapon was reasonable, even though Lasky was himself armed.” It held that the hallway of the apartment building was a “public place” within the meaning of the statute. The Appellate Division of the Supreme Court affirmed without opinion. The Court of Appeals also affirmed, essentially adopting the reasoning of the trial judge, with Judges Fuld and Van Voorhis dissenting separately.
I.
At the outset we must deal with the question whether we have jurisdiction in No. 63. It is asserted that because Sibron has completed service of the six-month sentence imposed upon him as a result of his conviction, the case has become moot under St. Pierre v. United States, 319 U. S. 41 (1943). We have concluded that the case is not moot.
In the first place, it is clear that the broad dictum with which the Court commenced its discussion in St. Pierre — that “the case is moot because, after petitioner’s service of his sentence and its expiration, there was no longer a subject matter on which the judgment of this Court could operate” (319 U. S., at 42) — fails to take account of significant qualifications recognized in St. Pierre and developed in later cases. Only a few days ago we held unanimously that the writ of habeas corpus was available to test the constitutionality of a state conviction where the petitioner had been in custody when he applied for the writ, but had been released before this Court could adjudicate his claims. Carafas v. LaVallee, 391 U. S. 234 (1968). On numerous occasions in the past this Court has proceeded to adjudicate the merits of criminal cases in which the sentence had been fully served or the probationary period during which a suspended sentence could be reimposed had terminated. Ginsberg v. New York, 390 U. S. 629 (1968); Pollard v. United States, 352 U. S. 354 (1957); United States v. Morgan, 346 U. S. 502 (1954); Fiswick v. United States, 329 U. S. 211 (1946). Thus mere release of the prisoner does not mechanically foreclose consideration of the merits by this Court.
St. Pierre itself recognized two possible exceptions to its “doctrine” of mootness, and both of them appear to us to be applicable here. The Court stated that “[i]t does not appear that petitioner could not have brought his case to this Court for review before the expiration of his sentence,” noting also that because the petitioner’s conviction was for contempt and because his controversy with the Government was a continuing one, there was a good chance that there would be “ample opportunity to review” the important question presented on the merits in a future proceeding. 319 U. S., at 43. This was a plain recognition of the vital importance of keeping open avenues of judicial review of deprivations of constitutional right. There was no way for Sibron to bring his case here before his six-month sentence expired. By statute he was precluded from obtaining bail pending appeal, and by virtue of the inevitable delays of the New York court system, he was released less than a month after his newly appointed appellate counsel had been supplied with a copy of the transcript and roughly two months before it was physically possible to present his case to the first tier in the state appellate court system. This was true despite the fact that he took all steps to perfect his appeal in a prompt, diligent, and timely manner.
Many deep and abiding constitutional problems are encountered primarily at a level of “low visibility” in the criminal process — in the context of prosecutions for “minor” offenses which carry only short sentences. We do not believe that the Constitution contemplates that people deprived of constitutional rights at this level should be left utterly remediless and defenseless against repetitions of unconstitutional conduct. A State may not cut off federal review of whole classes of such cases by the simple expedient of a blanket denial of bail pending appeal. As St. Pierre clearly recognized, a State may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing.
The second exception recognized in St. Pierre permits adjudication of the merits of a criminal case where “under either state or federal law further penalties or disabilities can be imposed ... as a result of the judgment which has . . . been satisfied.” 319 U. S., at 43. Subsequent cases have expanded this exception to the point where it may realistically be said that inroads have been made upon the principle itself. St. Pierre implied that the burden was upon the convict to show the existence of collateral legal consequences. Three years later in Fiswick v. United States, 329 U. S. 211 (1946), however, the Court held that a criminal case had not become moot upon release of the prisoner, noting that the convict, an alien, might be subject to deportation for having committed a crime of “moral turpitude” — even though it had never been held (and the Court refused to hold) that the crime of which he was convicted fell into this category. The Court also pointed to the fact that if the petitioner should in the future decide he wanted to become an American citizen, he might have difficulty proving that he was of “good moral character.” Id., at 222.
The next case which dealt with the problem of collateral consequences was United States v. Morgan, 346 U. S. 502 (1954). There the convict had probably been subjected to a higher sentence as a recidivist by a state court on account of the old federal conviction which he sought to attack. But as the dissent pointed out, there was no indication that the recidivist increment would be removed from his state sentence upon invalidation of the federal conviction, id., at 516, n. 4, and the Court chose to rest its holding that the case was not moot upon a broader view of the matter. Without canvassing the possible disabilities which might be imposed upon Morgan or alluding specifically to the recidivist sentence, the Court stated:
“Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid.” Id., at 512-513.
Three years later, in Pollard v. United States, 352 U. S. 354 (1957), the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed. With nothing more than citations to Morgan and Fiswick, and a statement that “convictions may entail collateral legal disadvantages in the future,” id., at 358, the Court concluded that “[t]he possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.” Ibid. The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. The mere “possibility” that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness.” Parker v. Ellis, 362 U. S. 574, 577 (1960) (dissenting opinion).
This case certainly meets that test for survival. Without pausing to canvass the possibilities in detail, we note that New York expressly provides by statute that Sibron’s conviction may be used to impeach his character should he choose to put it in issue at any future criminal trial, N. Y. Code Crim. Proc. § 393-e, and that it must be submitted to a trial judge for his consideration in sentencing should Sibron again be convicted of a crime, N. Y. Code Crim. Proc. § 482. There are doubtless other collateral consequences. Moreover, we see no relevance in the fact that Sibron is a multiple offender. Morgan was a multiple offender, see 346 U. S. at 503-504, and so was Pollard, see 352 U. S., at 355-357. A judge or jury faced with a question of character, like a sentencing judge, may be inclined to forgive or at least discount a limited number of minor transgressions, particularly if they occurred at some time in the relatively distant past. It is impossible for this Court to say at what point the number of convictions on a man’s record renders his reputation irredeemable. And even if we believed that an individual had reached that point, it would be impossible for us to say that he had no interest in beginning the process of redemption with the particular case sought to be adjudicated. We cannot foretell what opportunities might present themselves in the future for the removal of other convictions from an individual’s record. The question of the validity of a criminal conviction can arise in many contexts, compare Burgett v. Texas, 389 U. S. 109 (1967), and the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action. Cf. Peyton v. Rowe, 391 U. S. 54, 64 (1968).
None of the concededly imperative policies behind the constitutional rule against entertaining moot controversies would be served by a dismissal in this case. There is nothing abstract, feigned, or hypothetical about Sibron’s appeal. Nor is there any suggestion that either Sibron or the State has been wanting in diligence or fervor in the litigation. We have before us a fully developed record of testimony about contested historical facts, which reflects the “impact of actuality” to a far greater degree than many controversies accepted for adjudication as a matter of course under the Federal Declaratory Judgment Act, 28 U. S. C. § 2201.
St. Pierre v. United States, supra, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. That certainly is not the ease here. Sibron “has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him.” Fiswick v. United States, supra, at 222. The case is not moot.
II.
We deal next with the confession of error by the District Attorney for Kings County in No. 63. Confessions of error are, of course, entitled to and given great weight, but they do not “relieve this Court of the performance of the judicial function.” Young v. United States, 315 U. S. 257, 258 (1942). It is the uniform practice of this Court to conduct its own examination of the record in all cases where the Federal Government or a State confesses that a conviction has been erroneously obtained. For one thing, as we noted in Young, “our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of parties.” 315 U. S., at 259. See also Marino v. Ragen, 332 U. S. 561 (1947). This consideration is entitled to special weight where, as in this case, we deal with a judgment of a State’s highest court interpreting a state statute which is challenged on constitutional grounds. The need for such authoritative declarations of state law in sensitive constitutional contexts has been the very reason for the development of the abstention doctrine by this Court. See, e. g., Railroad Comm’n v. Pullman Co., 312 U. S. 496 (1941). Such a judgment is the final product of a sovereign judicial system, and is deserving of respectful treatment by this Court. Moreover, in this case the confession of error on behalf of the entire state executive and judicial branches is made, not by a state official, but by the elected legal officer of one political subdivision within the State. The District Attorney for Kings County seems to have come late to the opinion that this conviction violated Sibron’s constitutional rights. For us to accept his view blindly in the circumstances, when a majority of the Court of Appeals of New York has expressed the contrary view, would be a disservice to the State of New York and an abdication of our obligation to lower courts to decide cases upon proper constitutional grounds in a manner which permits them to conform their future behavior to the demands of the Constitution. We turn to the merits.
III.
The parties on both sides of these two cases have urged that the principal issue before us is the constitutionality of § 180-a “on its face.” We decline, however, to be drawn into what we view as the abstract and unproductive exercise of laying the extraordinarily elastic categories of § 180-a next to the categories of the Fourth Amendment in an effort to determine whether the two are in some sense compatible. The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances. See Berger v. New York, 388 U. S. 41 (1967). No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment. E. g., Aguilar v. Texas, 378 U. S. 108 (1964); Giordenello v. United States, 357 U. S. 480 (1958). This Court held last Term in Berger v. New York, supra, that N. Y. Code Crim Proc. § 813-a, which established a procedure for the issuance of search warrants to permit electronic eavesdropping, failed to embody the safeguards demanded by the Fourth and Fourteenth Amendments.
Section 180-a, unlike § 813-a, deals with the substantive validity of certain types of seizures and searches without warrants. It purports to authorize police officers to “stop” people, “demand” explanations of them and “search [them] for dangerous weapon [s]” in certain circumstances upon “reasonable suspicion” that they are engaged in criminal activity and that they represent a danger to the policeman. The operative categories of § 180-a are not the categories of the Fourth Amendment, and they are susceptible of a wide variety of interpretations. New York is, of course, free to develop its own law of search and seizure to meet the needs of local law enforcement, see Ker v. California, 374 U. S. 23, 34 (1963), and in the process it may call the standards it employs by any names it may choose. It may not, however, authorize police conduct which trenches upon Fourth Amendment rights, regardless of the labels which it attaches to such conduct. The question in this Court upon review of a state-approved search or seizure “is not whether the search [or seizure] was authorized by state law. The question is rather whether the search was reasonable under the Fourth Amendment. Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.” Cooper v. California, 386 U. S. 58, 61 (1967).
Accordingly, we make no pronouncement on the facial constitutionality of § 180-a. The constitutional point with respect to a statute of this peculiar sort, as the Court of Appeals of New York recognized, is “not so much . . . the language employed as . . . the conduct it authorizes.” People v. Peters, 18 N. Y. 2d 238, 245, 219 N. E. 2d 595, 599, 273 N. Y. S. 2d 217, 222 (1966). We have held today in Terry v. Ohio, ante, p. 1, that police conduct of the sort with which § 180-a deals must be judged under the Reasonable Search and Seizure Clause of the Fourth Amendment. The inquiry under that clause may differ sharply from the inquiry set up by the categories of § 180-a. Our constitutional inquiry would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.
IV.
Turning to the facts of Sibron’s case, it is clear that the heroin was inadmissible in evidence against him. The prosecution has quite properly abandoned the notion that there was probable cause to arrest Sibron for any crime at the time Patrolman Martin accosted him in the restaurant, took him outside and searched him. The officer was not acquainted with Sibron and had no information concerning him. He merely saw Sibron talking to a number of known narcotics addicts over a period of eight hours. It must be emphasized that Patrolman Martin was completely ignorant regarding the content .of these conversations, and that he saw nothing pass between Sibron and the addicts. So far as he knew, they might indeed “have been talking about the World Series.” The inference that persons who talk to narcotics addicts are engaged in the criminal traffic in narcotics is simply not the sort of reasonable inference required to support an intrusion by the police upon an individual’s personal security. Nothing resembling probable cause existed until after the search had turned up the envelopes of heroin. It is axiomatic that an incident search may not precede an arrest and serve as part of its justification. E. g., Henry v. United States, 361 U. S. 98 (1959); Johnson v. United States, 333 U. S. 10, 16-17 (1948). Thus the search cannot be justified as incident to a lawful arrest.
If Patrolman Martin lacked probable cause for an arrest, however, his seizure and search of Sibron might still have been justified at the outset if he had reasonable grounds to believe that Sibron was armed and dangerous. Terry v. Ohio, ante, p. 1. We are not called- upon to decide in this case whether there was a “seizure” of Sibron inside the restaurant antecedent to the physical seizure which accompanied the search. The record is unclear with respect to what transpired between Sibron and the officer inside the restaurant. It is totally barren of any indication whether Sibron accompanied Patrolman Martin outside in submission to a show of force or authority which left him no choice, or whether he went voluntarily in a spirit of apparent cooperation with the officer’s investigation. In any event, this deficiency in the record is immaterial, since Patrolman Martin obtained no new information in the interval between his initiation of the encounter in the restaurant and his physical seizure and search of Sibron outside.
Although the Court of Appeals of New York wrote no opinion in this case, it seems to have viewed the search here as a self-protective search for weapons and to have affirmed on the basis of § 180-a, which authorizes such a search when the officer “reasonably suspects that he is in danger of life or limb.” The Court of Appeals has, at any rate, justified searches during field interrogation on the ground that “[t]he answer to the question propounded by the policeman may be a bullet; in any case the exposure to danger could be very great.” People v. Rivera, 14 N. Y. 2d 441, 446, 201 N. E. 2d 32, 35, 252 N. Y. S. 2d 458, 463 (1964), cert. denied, 379 U. S. 978 (1965). But the application of this reasoning to the facts of this case proves too much. The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Terry v. Ohio, supra. Patrolman Martin's testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime. Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense. His opening statement to Sibron — “You know what I am after” — made it abundantly clear that he sought narcotics, and his testimony at the hearing left no doubt that he thought there were narcotics in Sibron’s pocket.
Even assuming arguendo that there were adequate grounds to search Sibron for weapons, the nature and scope of the search conducted by Patrolman Martin were so clearly unrelated to that justification as to render the heroin inadmissible. The search for weapons approved in Terry consisted solely of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault. Only when he discovered such objects did the officer in Terry place his hands in the pockets of the men he searched. In this case, with no attempt at an initial limited exploration for arms, Patrolman Martin thrust his hand into Sibron’s pocket and took from him envelopes of heroin. His testimony shows that he was looking for narcotics, and he found them. The search was not reasonably limited in scope to the accomplishment of the only goal which might conceivably have justified its inception — the protection of the officer by disarming a potentially dangerous man. Such a search violates the guarantee of the Fourth Amendment, which protects the sanctity of the person against unreasonable intrusions on the part of all government agents.
V.
We think it is equally clear that the search in Peters’ case was wholly reasonable under the Constitution. The Court of Appeals of New York held that the search was made legal by § 180-a, since Peters was “abroad in a public place,” and since Officer Lasky was reasonably suspicious of his activities and, once he had stopped Peters, reasonably suspected that he was in danger of life or limb, even though he held Peters at gun point. This may be the justification for the search under state law. We think, however, that for purposes of the Fourth Amendment the search was properly incident to a lawful arrest. By the time Officer Lasky caught up with Peters on the stairway between the fourth and fifth floors of the apartment building, he had probable cause to arrest him for attempted burglary. The officer heard strange noises at his door which apparently led him to believe that someone sought to force entry. When he investigated these noises he saw two men, whom he had never seen before in his 12 years in the building, tiptoeing furtively about the hallway. They were still engaged in these maneuvers after he called the police and dressed hurriedly. And when Officer Lasky entered the hallway, the men fled down the stairs. It is difficult to conceive of stronger grounds for an arrest, short of actual eyewitness observation of criminal activity. As the trial court explicitly recognized, deliberately furtive actions and flight at the approach of strangers or law officers are strong indicia of mens rea, and when coupled with specific knowledge on the part of the officer relating the suspect to the evidence of crime, they are proper factors to be considered in the decision to make an arrest. Brinegar v. United States, 338 U. S. 160 (1949); Husty v. United States, 282 U. S. 694 (1931); see Henry v. United States, 361 U. S. 98, 103 (1959).
As we noted in Sibron’s case, a search incident to a lawful arrest may not precede the arrest and serve as part of its justification. It is a question of fact precisely when, in each case, the arrest took place. Rios v. United States, 364 U. S. 253, 261-262 (1960). And while there was some inconclusive discussion in the trial court concerning when Officer Lasky “arrested” Peters, it is clear that the arrest had, for purposes of constitutional justification, already taken place before the search commenced. When the policeman grabbed Peters by the collar, he abruptly “seized” him and curtailed his freedom of movement on the basis of probable cause to believe that he was engaged in criminal activity. See Henry v. United States, supra, at 103. At that point he had the authority to search Peters, and the incident search was obviously justified “by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime.” Preston v. United States, 376 U. S. 364, 367 (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thoroughgoing examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons. While patting down his outer clothing, Officer Lasky discovered an object in his pocket which might have been used as a weapon. He seized it and discovered it to be a potential instrument of the crime of burglary.
We have concluded that Peters’ conviction fully comports with the commands of the Fourth and Fourteenth Amendments, and must be affirmed. The conviction in No. 63, however, must be reversed, on the ground that the heroin was unconstitutionally admitted in evidence against the appellant.
It is so ordered.
N. Y. Pub. Health Law § 3305 makes the unauthorized possession of any narcotic drug unlawful, and §§ 1751 and 1751-a of the N. Y. Penal Law of 1909, then in effect, made the grade of the offense depend upon the amount of the drugs found in the possession of the defendant. The complaint in this case originally charged a felony, but the trial court granted the prosecutor’s motion to reduce the charge on the ground that “the Laboratory report will indicate a misdemeanor charge.” Sibron was convicted of a misdemeanor and sentenced to six months in jail.
N. Y. Code Crim. Proc. § 813-e provides that an order denying a motion to suppress evidence in a criminal case “may be reviewed on appeal from a judgment of conviction notwithstanding the fact that such judgment of conviction is predicated upon a plea of guilty.”
Patrolman Martin stated several times that he put his hand into Sibron’s pocket and seized the heroin before Sibron had any opportunity to remove his own hand from the pocket. The trial court questioned him on this point:
“Q. Would you say at that time that he reached into his pocket and handed the packets to you? Is that what he did or did he drop the packets?
“A. He did not drop them. I do not know what his intentions were. He pushed his hand into his pocket.
“MR. Joseph [Prosecutor]: You intercepted it; didn’t you, Officer?
“The Witness: Yes.” (Emphasis added.)
It is of course highly unlikely that Sibron, facing the officer at such close quarters, would have tried to remove the heroin from his pocket and throw it to the ground in the hope that he could escape responsibility for it.
The possibility that Sibron, who never, so far as appears from the record, offered any resistance, might have posed a danger to Patrolman Martin’s safety was never even discussed as a potential justification for the search. The only mention of weapons by the officer in his entire testimony came in response to a leading question by Sibron’s counsel, when Martin stated that he “thought he [Sibron] might have been” reaching for a gun. Even so, Patrolman Martin did not accept this suggestion by the opposition regarding the reason for his action; the discussion continued upon the plain premise that he had been looking for narcotics all the time.
N. Y. Pen. Law of 1909, § 408, made the possession of such tools under such circumstances a misdemeanor for first offenders and a felony for all those who have “been previously convicted of any crime.” Peters was convicted of a felony under this section.
Officer Lasky testified that when he called the police immediately before leaving his apartment, he “told the Sergeant at the desk that two burglars were on my floor.”
Officer Lasky testified that when he emerged from his apartment, “I slammed the door, I had my gun and I ran down the stairs after them.” A sworn affidavit of the Assistant District Attorney, which was before the trial court when it ruled on the motion to suppress, stated that when apprehended Peters was “fleeing down the steps of the building.” The trial court explicitly took note of the flight of Peters and his companion as a factor contributing to Officer Lasky’s “reasonable suspicion” of them:
“We think the testimony at the hearing does not require further laboring of this aspect of the matter, unless one is to believe that it is legitimately normal for a man to tip-toe about in the public hall of an apartment house while on a visit to his unidentified girl-friend, and, when observed by another tenant, to rapidly descend by stairway in the presence of elevators.”
The first suggestion of mootness in this case came upon oral argument, when it was revealed for the first time that appellant had been released. This fact did not appear in the record, despite the fact that the release occurred well over two years before the case was argued here. Nor was mootness hinted at by the State in its Brief in Opposition to the Jurisdictional Statement in this Court— where it took the position that the decision below was so clearly right that it did not merit further review — or in its brief on the merits — in which it conceded that the decision below clearly violated Sibron’s constitutional rights and urged that it was an aberrant interpretation which should not impair the constitutionality of the New York statute. Following the suggestion of mootness on oral argument, moreover, the State filed a brief in which it amplified its views as to why the case should be held moot, but added the extraordinary suggestion that this Court should ignore the problem and pronounce upon the constitutionality of a statute in a case which has become moot. Normally in these circumstances we would consider ourselves fully justified in foreclosing a party upon an issue; however, since the question goes to the very existence of a controversy for us to adjudicate, we have undertaken to review it.
Cf. Fay v. Noia, 372 U. S. 391, 424 (1963):
“[C]onventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review/'
See N. Y. Code Crim. Proc. § 555 subd. 2.
Sibron was arrested on March 9, 1965, and was unable to make bail before trial because of his indigency. He thus remained in jail from that time until the expiration of his sentence (with good time credit) on July 10, 1965. He was convicted on April 23. His application for leave to proceed in forma pauperis was not granted until May 14, and his assigned appellate counsel was not provided with a transcript until June 11. The Appellate Term of the Supreme Court recessed on June 7 until September. Thus Sibron was released well before there had been any opportunity even to argue his case in the intermediate state appellate court. A decision by the Court of Appeals of New York was not had until July 10, 1966, the anniversary of Sibron's release.
Cf., e. g., Thompson v. City of Louisville, 362 U. S. 199 (1960).
In St. Pierre the Court noted that the petitioner could have taken steps to preserve his ease, but that “he did not apply to this Court for a stay or a supersedeas.” 319 U. S., at 43. Here however, it is abundantly clear that there is no procedure of which Sibron could have availed himself to prevent the expiration of his sentence long before this Court could hear his case. A supersedeas from this Court is a purely ancillary writ, and may issue only in connection with an appeal actually taken. Ex parte Ralston, 119 U. S. 613 (1887); Sup. Ct. Rule 18; see R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court of the United States § 435, at 883 (R. Wolfson & P. Kurland ed., 1951). At the time Sibron completed service of his sentence, the only judgment outstanding was the conviction itself, rendered by the Criminal Court of the City of New York, County of Kings. This Court had no jurisdiction to hear an appeal from that judgment, since it was not rendered by the “highest court of a State in which a decision could be had,” 28 U. S. C. § 1257, and there could be no warrant for interference with the orderly appellate processes of the state courts. Thus no supersedeas could have issued. Nor could this Court have ordered Sibron admitted to bail before the expiration of his sentence, since the offense was not bailable, 18 U. S. C. § 3144; see n. 10, supra. Thus this case is distinguishable from St. Pierre in that Sibron “could not have brought his ease to this Court for review before the expiration of his sentence.” 319 U. S., at 43.
Compare Ginsberg v. New York, 390 U. S. 629, 633, n. 2 (1968), where this Court held that the mere possibility that the Commissioner of Buildings of the Town of Hempstead, New York, might “in his discretion” attempt in the future to revoke a license to run a luncheonette because of a single conviction for selling relatively inoffensive “girlie” magazines to a 16-year-old boy was sufficient to preserve a criminal case from mootness.
See generally Note, 53 Va. L. Rev. 403 (1967).
We do not know from the record how many convictions Sibron had, for what crimes, or when they were rendered. At the hearing he admitted to a 1955 conviction for burglary and a 1957 misdemeanor conviction for possession of narcotics. He also admitted that he had other convictions, but none were specifically alluded to.
We note that there is a clear distinction between a general impairment of credibility, to which the Court referred in St. Pierre, see 319 U. S., at 43, and New York’s specific statutory authorization for use of the conviction to impeach the “character” of a defendant in a criminal proceeding. The latter is a clear legal disability deliberately and specifically imposed by the legislature.
This factor has clearly been considered relevant by the Court in the past in determining the issue of mootness. See Fiswick v. United States, 329 U. S. 211, 221-222 (1946).
Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002, 1006 (1924). See also Parker v. Ellis, 362 U. S. 574, 592-593 (1960) (dissenting opinion).
It is not apparent, for example, whether the power to “stop” granted by the statute entails a power to “detain” for investigation or interrogation upon less than probable cause, or if so what sort of durational limitations upon such detention are contemplated. And while the statute’s apparent grant of a power of compulsion indicates that many “stops” will constitute “seizures,” it is not clear that all conduct analyzed under the rubric of the statute will either rise to the level of a “seizure” or be based upon less than probable cause. In No. 74, the Peters case, for example, the New York courts justified the seizure of appellant under § 180-a, but we have concluded that there was in fact probable cause for an arrest when Officer Lasky seized Peters on the stairway. See infra, at 66. In any event, a pronouncement by this Court upon the abstract validity of § 180-a’s “stop” category would be most inappropriate in these cases, since we have concluded that neither of them presents the question of the validity of a seizure of the person for purposes of interrogation upon less than probable cause.
The statute’s other categories are equally elastic, and it was passed too recent^ for the State’s highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees. We cannot tell, for example, whether the officer's power to “demand” of a person an “explanation of his actions” contemplates either an obligation on the part of the citizen to answer or some additional power on the part of the officer in the event of a refusal to answer, or even whether the interrogation following the “stop” is “custodial.” Compare Miranda v. Arizona, 384 U. S. 436 (1966). There are, moreover, substantial indications that the statutory category of a “search for a dangerous weapon” may encompass conduct considerably broader in scope than that which we approved in Terry v. Ohio, ante, p. 1. See infra, at 65-66. See also People v. Taggart, 20 N. Y. 2d 335, 229 N. E. 2d 581, 283 N. Y. S. 2d 1 (1967). At least some of the activity apparently permitted under the rubric of searching for dangerous weapons may thus be permissible under the Constitution only if the “reasonable suspicion” of criminal activity rises to the level of probable cause. Finally, it is impossible to tell whether the standard of “reasonable suspicion” connotes the same sort of specificity, reliability, and objectivity which is the touchstone of permissible governmental action under the Fourth Amendment. Compare Terry v. Ohio, supra, with People v. Taggart, supra. In this connection we note that the searches and seizures in both Sibron and Peters were upheld by the Court of Appeals of New York as predicated upon “reasonable suspicion,” whereas we have concluded that the officer in Peters had probable cause for an arrest, while the policeman in Sibron was not possessed of any information which would justify an intrusion upon rights protected by the Fourth Amendment.
It is argued in dissent that this Court has in effect overturned factual findings by the two courts below that the search in this case was a self-protective measure on the part of Patrolman Martin, who thought that Sibron might have been reaching for a gun. It is true, as we have noted, that the Court of Appeals of New York apparently rested its approval of the search on this view. The trial court, however, made no such finding of fact. The trial judge adopted the theory of the prosecution at the hearing on the motion to suppress. This theory was that there was probable cause to arrest Sibron for some crime having to do with narcotics. The fact which tipped the scales for the trial court had nothing to do with danger to the policeman. The judge expressly changed his original view and held the heroin admissible upon being reminded that Sibron had admitted on the stand that he spoke to the addicts about narcotics. This admission was not relevant on the issue of probable cause, and we do not understand the dissent to take the position that prior to the discovery of heroin, there was probable cause for an arrest.
Moreover, Patrolman Martin himself never at any time put forth the notion that he acted to protect himself. As we have noted, this subject never came up, until on re-direct examination defense counsel raised the question whether Patrolman Martin thought Sibron was going for a gun. See n. 4, supra. This was the only reference to weapons at any point in the hearing, and the subject was swiftly dropped. In the circumstances an unarticulated “finding” by an appellate court which wrote no opinion, apparently to the effect that the officer’s invasion of Sibron’s person comported with the Constitution because of the need to protect himself, is not deserving of controlling deference.
See n. 7, supra.
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: |
sc_caseoriginstate | 30 | 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.
IN RE R. M. J.
No 80-1431.
Argued November 9, 1981
Decided January 25, 1982
Powell, J., delivered the opinion for a unanimous Court.
Charles B. Blackmar argued the cause for appellant. With him on the briefs were Charles A. Blackmar, Bruce J. Ennis, and Charles S. Sims.
John W. Inglish argued the cause and filed a brief for appellee.
Thomas Lumbard and Harry M. Philo filed a brief for the Association of Trial Lawyers of America as amicus curiae urging reversal.
Jerry L. Z linker filed a brief for the State Bar of Texas as amicus curiae.
Justice Powell
delivered the opinion of the Court.
The Court’s decision in Bates v. State Bar of Arizona, 433 U. S. 350 (1977), required a re-examination of long-held perceptions as to “advertising” by lawyers. This appeal presents the question whether certain aspects of the revised ethical rules of the Supreme Court of Missouri regulating lawyer advertising conform to the requirements of Bates.
I
As with many of the States, until the decision in Bates, Missouri placed an absolute prohibition on advertising by lawyers. After the Court’s invalidation of just such a prohibition in Bates, the Committee on Professional Ethics and Responsibility of the Supreme Court of Missouri revised that court’s Rule 4 regulating lawyer advertising. The Committee sought to “strike a midpoint between prohibition and unlimited advertising,” and the revised regulation of advertising, adopted with slight modification by the State Supreme Court, represents a compromise. Lawyer advertising is permitted, but it is restricted to certain categories of information, and in some instances, to certain specified language.
Thus, part B of DR 2-101 of the Rule states that a lawyer may “publish ... in newspapers, periodicals and the yellow pages of telephone directories” 10 categories of information: name, address and telephone number: areas of practice; date and place of birth; schools attended; foreign language ability; office hours; fee for an initial consultation; availability of a schedule of fees; credit arrangements; and the fixed fee to be charged for certain specified “routine” legal services/ Although the Rule does not state explicitly that these 10 categories of information or the 3 indicated forms of printed advertisement are the only information and the only means of advertising that will be permitted,' that is the interpretation given the Rule by the State Supreme Court and the Advisory Committee charged with its enforcement.
In addition to these guidelines, and under authority of the Rule, the Advisory Committee has issued an addendum to the Rule providing that if the lawyer chooses to list areas of practice in his advertisement, he must do so in one of two prescribed ways. He may list one of three general descriptive terms specified in the Rule — “General Civil Practice,” “General Criminal Practice,” or “General Civil and Criminal Practice.” Alternatively, he may use one or more of a list of 23 areas of practice, including, for example, “Tort Law,” “Family Law,” and “Probate and Trust Law.” He may not list both a general term and specific subheadings, nor may he deviate from the precise wording stated in the Rule. He may not indicate that his practice is “limited” to the listed areas and he must include a particular disclaimer of certification of expertise following any listing of specific areas of practice.
Finally, one further aspect of the Rule is relevant in this case. DR 2-102 of Rule 4 regulates the use of professional announcement cards. It permits a lawyer or firm to mail a dignified “brief professional announcement card stating new or changed associates or addresses, change of firm name, or similar matters.” The Rule, however, does not permit a general mailing; the announcement cards may be sent only to “lawyers, clients, former clients, personal friends, and relatives.” Mo. Rev. Stat., Sup. Ct. Rule 4, DR 2-102(A)(2) (1978) (Index Vol.).
II
Appellant graduated from law school in 1973 and was admitted to the Missouri and Illinois Bars in the same year. After a short stint with the Securities and Exchange Commission in Washington, D. C., appellant moved to St. Louis, Mo., in April 1977, and began practice as a sole practitioner. As a means of announcing the opening of his office, he mailed professional announcement cards to a selected list of addressees. In order to reach a wider audience, he placed several advertisements in local newspapers and in the yellow pages of the local telephone directory.
The advertisements at issue in this litigation appeared in January, February, and August 1978, and included information that was not expressly permitted by Rule 4. They included the information that appellant was licensed in Missouri and Illinois. They contained, in large capital letters, a statement that appellant was “Admitted to Practice Before THE UNITED STATES SUPREME COURT.” And they included a listing of areas of practice that deviated from the language prescribed by the Advisory Committee — e. g., “personal injury” and “real estate” instead of “tort law” and “property law” — and that included several areas of law without analogue in the list of areas prepared by the Advisory Committee — e. g., “contract,” “zoning & land use,” “communication,” “pension & profit sharing plans.’" See n. 6, supra. In addition, and with the exception of the advertisement appearing in August 1978, appellant failed to include the required disclaimer of certification of expertise after the listing of areas of practice.
On November 19, 1979, the Advisory Committee filed an information in the Supreme Court of Missouri charging appellant with unprofessional conduct. The information charged appellant with publishing three advertisements that listed areas of law not approved by the Advisory Committee, that listed the courts in which appellant was admitted to practice, and, in the case of two of the advertisements, that failed to include the required disclaimer of certification. The information also charged appellant with sending announcement cards to “persons other than lawyers, clients, former clients, personal friends, and relatives” in violation of DR 2-102(A)(2). In response, appellant argued that, with the exception of the disclaimer requirement, each of these restrictions upon advertising was unconstitutional under the First and Fourteenth Amendments.
In a disbarment proceeding, the Supreme Court of Missouri upheld the constitutionality of DR 2-101 of Rule 4 and issued a private reprimand. 609 S. W. 2d 411 (1981). But the court did not explain the reasons for its decision, nor did it state whether it found appellant to have violated each of the charges lodged against him or only some of them. Indeed, the court only purported to uphold the constitutionality of DR 2-101; it did not mention the propriety of DR 2-102, which governs the use of announcement cards.
Writing in separate dissenting opinions, Chief Justice Bardgett and Judge Seiler argued that the information should be dismissed. The dissenters suggested that the State did not have a significant interest either in requiring the use of certain, specified words to describe areas of practice or in prohibiting a lawyer from informing the public as to the States and courts in which he was licensed to practice. Nor would the dissenters have found the mailing of this sort of information to be unethical.
V-H HH t-H
In Bates v. State Bar of Arizona, 433 U. S. 350 (1977), the Court considered whether the extension of First Amendment protection to commercial speech announced in Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), applied to the regulation of advertising by lawyers. The Bates Court held that indeed lawyer advertising was a form of commercial speech, protected by the First Amendment, and that “advertising by attorneys may not be subjected to blanket suppression.” 433 U. S., at 383.
More specifically, the Bates Court held that lawyers must be permitted to advertise the fees they charge for certain “routine” legal services. The Court concluded that this sort of price advertising was not “inherently” misleading, and therefore could not be prohibited on that basis. The Court also rejected a number of other justifications for broad restrictions upon advertising including the potential adverse effect of advertising on professionalism, on the administration of justice, and on the cost and quality of legal services, as well as the difficulties of enforcing standards short of an outright prohibition. None of these interests was found to be sufficiently strong or sufficiently affected by lawyer advertising to justify a prohibition.
But the decision in Bates nevertheless was a narrow one. The Court emphasized that advertising by lawyers still could be regulated. False, deceptive, or misleading advertising remains subject to restraint, and the Court recognized that advertising by the professions poses special risks of deception — “because the public lacks sophistication concerning legal services, misstatements that might be overlooked or deemed unimportant in other advertising may be found quite inappropriate in legal advertising.” Ibid, (footnote omitted). The Court suggested that claims as to quality or in-person solicitation might be so likely to mislead as to warrant restriction. And the Court noted that a warning or disclaimer might be appropriately required, even in the context of advertising as to price, in order to dissipate the possibility of consumer confusion or deception. “[T]he bar retains the power to correct omissions that have the effect of presenting an inaccurate picture, [although] the preferred remedy is more disclosure, rather than less.” Id., at 375.
In short, although the Court in Bates was not persuaded that price advertising for “routine” services was necessarily or inherently misleading, and although the Court was not receptive to other justifications for restricting such advertising, it did not by any means foreclose restrictions on potentially or demonstrably misleading advertising. Indeed, the Court recognized the special possibilities for deception presented by advertising for professional services. The public’s comparative lack of knowledge, the limited ability of the professions to police themselves, and the absence of any standardization in the “product” renders advertising for professional services especially susceptible to abuses that the States have a legitimate interest in controlling.
Thus, the Court has made clear in Bates and subsequent cases that regulation — and imposition of discipline — are permissible where the particular advertising is inherently likely to deceive or where the record indicates that a particular form or method of advertising has in fact been deceptive. In Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 462 (1978), the Court held that the possibility of “fraud, undue influence, intimidation, overreaching, and other forms of ‘vexatious conduct’” was so likely in the context of in-person solicitation, that such solicitation could be prohibited. And in Friedman v. Rogers, 440 U. S. 1 (1979), we held that Texas could prohibit the use of trade names by optometrists, particularly in view of the considerable history in Texas of deception and abuse worked upon the consuming public through the use of trade names.
Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely. But the States may not place an absolute prohibition on certain types of potentially misleading information, e. g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive. Thus, the Court in Bates suggested that the remedy in the first instance is not necessarily a prohibition but preferably a requirement of disclaimers or explanation. 433 U. S., at 375. Although the potential for deception and confusion is particularly strong in the context of advertising professional services, restrictions upon such advertising may be no broader than reasonably necessary to prevent the deception.
Even when a communication is not misleading, the State retains some authority to regulate. But the State must assert a substantial interest and the interference with speech must be in proportion to the interest served. Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S. 557, 563-564 (1980). Restrictions must be narrowly drawn, and the State lawfully may regulate only to the extent regulation furthers the State’s substantial interest. Thus, in Bates, the Court found that the potentially adverse effect of advertising on professionalism and the quality of legal services was not sufficiently related to a substantial state interest to justify so great an interference with speech. 433 U. S., at 368-372, 375-377.
IV
We now turn to apply these generalizations to the circumstances of this case.
The information lodged against appellant charged him with four separate kinds of violation of Rule 4: listing the areas of his practice in language or in terms other than that provided by the Rule, failing to include a disclaimer, listing the courts and States in which he had been admitted to practice, and mailing announcement cards to persons other than “lawyers, clients, former clients, personal friends, and relatives.” Appellant makes no challenge to the constitutionality of the disclaimer requirement, and we pass on to the remaining three infractions.
Appellant was reprimanded for deviating from the precise listing of areas of practice included in the Advisory Committee addendum to Rule 4. The Advisory Committee does not argue that appellant’s listing was misleading. The use of the words “real estate” instead of “property” could scarcely mislead the public. Similarly, the listing of areas such as “contracts” or “securities,” that are not found on the Advisory Committee’s list in any form, presents no apparent danger of deception. Indeed, as Chief Justice Bardgett explained in dissent, in certain respects appellant’s listing is more informative than that provided in the addendum. Because the listing published by the appellant has not been shown to be misleading, and because the Advisory Committee suggests no substantial interest promoted by the restriction, we conclude that this portion of Rule 4 is an invalid restriction upon speech as applied to appellant’s advertisements.
Nor has the Advisory Committee identified any substantial interest in a rule that prohibits a lawyer from identifying the jurisdictions in which he is licensed to practice. Such information is not misleading on its face. Appellant was licensed to practice in both Illinois and Missouri. This is factual and highly relevant information particularly in light of the geography of the region in which appellant practiced.
Somewhat more troubling is appellant’s listing, in large capital letters, that he was a member of the Bar of the Supreme Court of the United States. See Appendix to this opinion. The emphasis of this relatively uninformative fact is at least bad taste. Indeed, such a statement could be misleading to the general public unfamiliar with the requirements of admission to the Bar of this Court. Yet there is no finding to this effect by the Missouri Supreme Court. There is nothing in the record to indicate that the inclusion of this information was misleading. Nor does the Rule specifically identify this information as potentially misleading or, for example, place a limitation on type size or require a statement explaining the nature of the Supreme Court Bar.
Finally, appellant was charged with mailing cards announcing the opening of his office to persons other than “lawyers, clients, former clients, personal friends and relatives.” Mailings and handbills may be more difficult to supervise than newspapers. But again we deal with a silent record. There is no indication that an inability to supervise is the reason the State restricts the potential audience of announcement cards. Nor is it clear that an absolute prohibition is the only solution. For example, by requiring a filing with the Advisory Committee of a copy of all general mailings, the State may be able to exercise reasonable supervision over such mailings. There is no indication in the record of a failed effort to proceed along such a less restrictive path. See Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S., at 566 (“we must determine whether the regulation ... is not more extensive than is necessary to serve” the governmental interest asserted).
In sum, none of the three restrictions in the Rule upon appellant’s First Amendment rights can be sustained in the circumstances of this case. There is no finding that appellant’s speech was misleading. Nor can we say that it was inherently misleading, or that restrictions short of an absolute prohibition would not have sufficed to cure any possible deception. We emphasize, as we have throughout the opinion, that the States retain the authority to regulate advertising that is inherently misleading or that has proved to be misleading in practice. There may be other substantial state interests as well that will support carefully drawn restrictions. But although the States may regulate commercial speech, the First and Fourteenth Amendments require that they do so with care and in a manner no more extensive than reasonably necessary to further substantial interests. The absolute prohibition on appellant’s speech, in the absence of a finding that his speech was misleading, does not meet these requirements.
Accordingly, the judgment of the Supreme Court of Missouri is
Reversed.
APPENDIX TO OPINION OF THE COURT
The advertisement above appeared in the yellow pages of the Southwestern Bell Telephone Co. telephone directory for St. Louis Suburban West issued in February 1978, and was the basis for Count II of the Information.
Prior to the 1977 revision, Rule 4 provided in pertinent part:
“(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, ‘public communication’ includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book. “(B) A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf . . . .” Mo. Sup. Ct. Rules Ann., Rule 4, DR 2-101, p. 63 (Vernon 1981) (historical note).
Report of Committee to Chief Justice of Supreme Court of Missouri (Sept. 9, 1977), reprinted in App. A-30.
The 10 listed “routine” services are: an uncontested dissolution of marriage; an uncontested adoption; an uncontested personal bankruptcy; an uncomplicated change of name; a simple warranty or quitclaim deed; a simple deed of trust; a simple promissory note; an individual Missouri or federal income tax return; a simple power of attorney; and a simple will. Mo. Rev. Stat., Sup. Ct. Rule 4, DR 2-10KB) (1978) (Index VoL). The Rule authorizes the Advisory Committee to approve additions to this list of routine services. Ibid.
Indeed, on its face, the Rule would appear to suggest that its specific provisions are intended only to provide a safe harbor, and not to prohibit all other forms of advertising or categories of information. This impression is conveyed by the Rule’s inclusion of a general prohibition on misleading advertising in DR 2-101(A):
“A lawyer shall not, on behalf of himself, his partner, associate or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication respecting the quality of legal services or containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim.” Rule 4, DR 2-10KA).
The Advisory Committee is a standing committee of the Supreme Court of Missouri and is responsible for prosecuting disciplinary proceedings and for giving formal and informal opinions on the Canons of Professional Responsibility. See Rule 5.
The addendum to the rule promulgated by the Advisory Committee provided in relevant part as follows:
“[T]he following areas for fields of law may be advertised by use of the specific language hereinafter set out:
1. ‘General Civil Practice’
2. ‘General Criminal Practice’
3. ‘General Civil and Criminal Practice.’
“If a lawyer or law firm uses one of the above, no other area can be used .... If one of the above is not used, then a lawyer or law firm can use one or more of the following:
1. ‘Administrative Law1
2. ‘Anti-Trust Law’
3. ‘Appellate Practice’
4. ‘Bankruptcy’
5. ‘Commercial Law’
6. ‘Corporation Law and Business Organizations’
7. ‘Criminal Law’
8. ‘Eminent Domain Law1
9. ‘Environmental Law’
10. ‘Family Law1
11. ‘Financial Institution Law’
12. ‘Insurance Law’
13. ‘International Law’
14. ‘Labor Law’
15. ‘Local Government Law’
16. ‘Military Law’
17. ‘Probate and Trust Law’
18. ‘Property Law'
19. ‘Public Utility Law’
20. ‘Taxation Law’
21. ‘Tort Law’
22. ‘Trial Practice’
23. ‘Workers Compensation Law.’
No deviation from the above phraseology will be permitted and no statement of limitation of practice can be stated.
“If one or more of these specific areas of practice are used in any advertisement, the following statement must be included . . . :
‘Listing of the above areas of practice does not indicate any certification of expertise therein.’” Rule 4, Addendum III (Adv. Comm. Nov. 13, 1977).
This provision of Rule 4 was not altered by the 1977 amendments.
In an advertisement published in the August 1978 yellow pages for St. Louis, and typical of appellant’s other advertisements, appellant included a listing of 23 areas of practice. Four of the areas conformed to the language prescribed in the Rule — “bankruptcy,” “anti-trust,” “labor,” and “criminal.” Eleven of the areas deviated from the precise language of the Rule — “tax,” “corporate,” “partnership,” “real estate,” “probate,” “wills, estate planning,” “personal injury,” “trials & appeals,” “workmen’s compensation,” “divorce-separation,” and “custody-adoption,” instead of, respectively, and as required by the Rule, “taxation law,” “corporation law and business organizations,” “property law,” “probate & trust law,” “tort law,” “trial practice,” “appellate practice,” “workers compensation law,” and “family law.” Eight other areas listed in the advertisement are not listed in any manner by the Advisory Committee’s addendum: "contract,” “aviation,” “securities-bonds,” “pension & profit sharing plans,” “zoning & land use,” “entertainment/sports,” “food, drug & cosmetic,” and “communication.”
A photograph of the advertisements as they appeared in the St. Louis, Suburban West, Telephone Directory for February 1978, and in the January/February 1978 issue of the West End Word is reproduced as an Appendix to this opinion. In all of appellant's advertisements the statement as to his membership in the Bar of the United States Supreme Court was printed conspicuously in large capital letters.
The dissenting judges differed in several respects. Chief Justice Bardgett considered that appellant’s listing of the fact that he was admitted to practice before the United States Supreme Court was not improper; Judge Seiler argued that this information was more misleading than helpful. Moreover, Judge Seiler argued that appellant should not be penalized for having omitted a disclaimer of certification when the addendum requiring the disclaimer was not available until after appellant had placed the advertisements and after it was too late to add the disclaimer. Chief Justice Bardgett’s dissent omits any mention of appellant’s failure to include a disclaimer. See n. 18, infra. Finally, Chief Justice Bardgett expressed his belief that our decision in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S. 557 (1980), concerning the regulation of commercial speech, does not apply in its entirety to the regulation of lawyer advertising. Judge Seiler appeared to take the opposite position. Both of the dissenting opinions reflect a thoughtful examination of the charges made against appellant.
The Court in Virginia Pharmacy, expressly reserved this question:
“We stress that we have considered in this case the regulation of commercial advertising by pharmacists. Although we express no opinion as to other professions, the distinctions, historical and functional, between professions, may require consideration of quite different factors. Physicians and lawyers, for example, do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising.” 425 U. S., at 773, n. 25.
Even as to price advertising, the Court suggested that some regulation would be permissible. For example, the bar may “define the services that must be included in an advertised package . . . .” 433 U. S., at 373, n. 28, and the bar could require disclaimers or explanations to avoid false hopes, id., at 384 (“[S]ome limited supplementation, by way of warning or disclaimer or the like, might be required of even an advertisement of the kind ruled upon today so as to assure that the consumer is not misled”).
Presumably, too, the bar may designate the services that may be considered “routine. ” Moreover, the Court might reach a different decision as to price advertising on a different record. If experience with particular price advertising indicates that the public is in fact misled or that disclaimers are insufficient to prevent deception, then the matter would come to the Court in an entirely different posture. The commercial speech doctrine is itself based in part on certain empirical assumptions as to the benefits of advertising. If experience proves that certain forms of advertising are in fact misleading, although they did not appear at first to be “inherently” misleading, the Court must take such experience into account. Cf. Bates v. State Bar of Arizona, 433 U. S., at 372 (“We are not persuaded that restrained professional advertising . . . will be misleading”).
See Friedman v. Rogers, 440 U. S. 1, 11, n. 9 (1979) (“When dealing with restrictions on commercial speech we frame our decisions narrowly, ‘allowing modes of regulation [of commercial speech] that might be impermissible in the realm of noncommercial expression’ ” (quoting Ohralik v. Ohio State Bar Assn., 436 U. S. 447, 456 (1978)); Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S., at 771-772, and n. 24 (“Untruthful speech, commercial or otherwise, has never been protected for its own sake. . . . Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State’s dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely”) (citations and footnote omitted).
In addition, the Bates Court noted that reasonable restrictions on the time, place, and manner of advertising would still be permissible, while “the special problems of advertising on the electronic broadcast media will warrant special consideration.” 433 U. S., at 384.
The Model Rules of Professional Conduct proposed by the American Bar Association Commission on Evaluation of Professional Standards provide that “a lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, radio or television, or through written communication not involving personal contact.” Rule 7.2(a). Rule 7.1 prohibits misleading advertising in the following terms:
“A lawyer shall not make any false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
“(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
“(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
"(c) compares the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated.”
Commentary following the Rule suggests that the Rule would prohibit “advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer’s record in obtaining favorable verdicts, and advertisements containing client endorsements.”
It is understood that the format of the proposed new Rules will be considered by the House of Delegates of the American Bar Association at its 1982 midyear meeting and that the substance of the Rules will be considered at the 1982 annual meeting. We, of course, imply no view as to these proposals.
See Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S., at 566:
“In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.”
As the discussion in the text above indicates, the Central Hudson formulation must be applied to advertising for professional services with' the understanding that the special characteristics of such services afford opportunities to mislead and confuse that are not present when standardized products or services are offered to the public. See n. 10, supra.
We recognize, of course, that the generalizations summarized above do not afford precise guidance to the bar and the courts. They do represent the general principles that may be distilled from our decisions in this developing area of the law. As they are applied on a case-by-case basis — as in Part IV of this opinion — more specific guidance will be available.
We note that the restrictions placed upon appellant’s speech by Rule 4 imposed a restriction only upon commercial speech — “expression related solely to the economic interests of the speaker and its audience.” Central Hudson Gas & Electric Corp. v. Public Service Comm’n, supra, at 561. By describing his services and qualifications, appellant’s sole purpose was to encourage members of the public to engage him for personal profit.
At oral argument counsel for appellant stated that the constitutionality of the disclaimer requirement was not before the Court, and that “[t]he disciplinary action was not based on a failure to include the disclaimer.” Tr. of Oral Arg. 16.
Although, the Supreme Court of Missouri did not explicitly indicate whether appellant was in violation of each and every one of the charges made against him, that is the implication of the opinion particularly when read in light of the more detailed dissenting opinions.
Rule 7.2(b) of the proposed Model Rules of Professional Conduct of the American Bar Association requires that “[a] copy or recording of an advertisement or written communication shall be kept for one year after its dissemination.”
,"The Advisory Committee argues that a general mailing from a lawyer would be “frightening” to the public unaccustomed to receiving letters from law offices. If indeed this is likely, the lawyer could be required to stamp “This is an Advertisement” on the envelope. See Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 541-542 (1980) (billing insert is not a significant intrusion upon privacy, and privacy interest can be protected through means other than a general prohibition).
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_respond1_3_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Your task is to determine which specific federal government agency best describes this litigant.
JANEWAY et ux. v. COMMISSIONER OF INTERNAL REVENUE. SHIELDS v. SAME.
Nos. 29, 30.
Circuit Court of Appeals, Second Circuit.
Feb. 6, 1945.
Wright, Gordon, Zachry, Parlin & Ca-hill, of New York City (Charles C. Parlin and Robert C. Brown, both of New York City, of counsel), for petitioners.
Samuel O. Qark, Jr., Asst. Atty. Gen., and Sewall Key, A. F. Prescott, and Newton K. Fox, all of Washington, D. C., for respondent.
Before CPIASE, HUTCHESON, and FRANK, Circuit Judges.
FRANK, Circuit Judge.
We read the findings of the Tax Court taken together with its opinion as saying that, as a matter of fact, all the payments made by the taxpayers to the corporation were capital contributions of such character that, as against any third persons (such as, e.g., persons contracting with the corporation) the taxpayers would have to be regarded as stockholders and nothing else. As the Tax Court’s conclusion rests upon a determination of fact supported by substantial evidence, we cannot disturb it, even under a restricted interpretation of Dobson v. Commissioner, 320 U.S. 489, 64 S.Ct. 239. Accepting that conclusion, the decision of the Tax Court is correct.
Affirmed.
That we may do so, see, e.g., Insurance & Title Guarantee Co. v. Commissioner, 2 Cir., 36 F.2d 842, 845; California Iron Yards Co. v. Commissioner, 8 Cir., 47 F.2d 514, 518; Producers’ Creamery Co. v. United States, 5 Cir., 55 F.2d 104, 108; Emerald Oil Co. v. Commissioner, 10 Cir., 72 F.2d 681, 683; Flynn v. Commissioner, 5 Cir., 77 F.2d 180, 183; California Barrel Co., Inc. v. Commissioner, 9 Cir., 81 F.2d 190, 193; Baker v. Commissioner, 6 Cir., 115 F.2d 987, 989.
Involved is the question of the credibility of the witnesses as to the taxpayers’ intentions, a question surely for the Tax Court.
See Paul, Dobson v. Commissioner: The Strange Ways of Law and Fact (1944), 57 Harv.L.Rev. 753, 822-831; Buckminster’s Estate v. Commissioner, 2 Cir., 1944, 147 F.2d 331.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "other agency, beginning with "F" thru "N"". Which specific federal government agency best describes this litigant?
A. Food & Drug Administration
B. General Services Administration
C. Government Accounting Office (GAO)
D. Health Care Financing Administration
E. Immigration & Naturalization Service (includes border patrol)
F. Internal Revenue Service (IRS)
G. Interstate Commerce Commission
H. Merit Systems Protection Board
I. National Credit Union Association
J. National Labor Relations Board
K. Nuclear Regulatory Commission
Answer: |
songer_initiate | G | 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.
BEN KANOWSKY, Inc., Appellant, v. John W. ARNOLD, Appellee.
No. 16603.
United States Court of Appeals Fifth Circuit.
March 12, 1958.
G. H. Kelsoe, Jr., Dallas, Tex., for appellant.
Joe H. McCracken, III, Dallas, Tex., for appellee.
Bessie Margolin, Asst. Sol. U. S. Dept, of Labor, Washington, D. C., for amicus curiae, James P. Mitchell, Sec. of Labor.
Before CAMERON, JONES and WISDOM, Circuit Judges.
PER CURIAM.
Upon considering the petition for rehearing, along with the brief of the Secretary of Labor filed in support thereof, it is ordered that the figure $33,125.95 in Note 7 of the opinion filed December 10, 1957, 250 F.2d 47, be and it is changed to $39,751.71; and the opinion having been so modified, it is further ordered that the petition for rehearing be, and it is denied.
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: |
sc_respondent | 220 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
CHRISTIANSBURG GARMENT CO. v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
No. 76-1383.
Argued November 28-29, 1977
Decided January 23, 1978
William W. Sturges argued the cause for petitioner. With him on the brief was William B. Pofj.
Thomas S. Martin argued the cause for respondent. With him on the brief were Solicitor General McCree, Deputy Solicitor General Wallace, Abner W. Sibal, Joseph T. Eddins, and Beatrice Rosenberg.
Robert J. Hickey, G. Brockwel Heylin, Stephen A. Bokat, Stanley T. Kaleczyc, Jr., and Lawrence B. Kraus filed a brief for the National Chamber Litigation Center as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Charles A. Bane, Thomas D. Barr, Armand, Derfner, Norman Redlich, Robert A. Murphy, Richard T. Seymour, and William E. Caldwell for the Lawyers’ Committee for Civil Rights under Law; and by Jack Greenberg, James M. Nabrit III, Charles Stephen Ralston, Melvyn R. Leventhal, and Eric Schnapper for the NAACP Legal Defense & Educational Fund, Inc.
Robert E. Williams, Douglas S. McDowell, and Kenneth C. McGuiness filed a brief for the Equal Employment Advisory Council as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
Section 706 (k) of Title VII of the Civil Rights Act of 1964 provides:
“In any action or proceeding under this title the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee . ...”
The question in this case is under what circumstances an attorney’s fee should be allowed when the defendant is the prevailing party in a Title VII action' — a question about which the federal courts have expressed divergent views.
I
Two years after Rosa Helm had filed a Title VII charge of racial discrimination against the petitioner Christiansburg Garment Co. (company), the Equal Employment Opportunity Commission notified her that its conciliation efforts had failed and that she had the right to sue the company in federal court. She did not do so. Almost two years later, in 1972, Congress enacted amendments to Title VII. Section 14 of these amendments authorized the Commission to sue in its own name to prosecute “charges pending with the Commission” on the effective date of the amendments. Proceeding under this section, the Commission sued the company, alleging that it had engaged in unlawful employment practices in violation of the amended Act. The company moved for summary judgment on the ground, inter alia, that the Rosa Helm charge had not been “pending” before the Commission when the 1972 amendments took effect. The District Court agreed, and granted summary judgment in favor of the company. 376 F. Supp. 1067 (WD Va).
The company then petitioned for the allowance of attorney’s fees against the Commission pursuant to § 706 (k) of Title VII. Finding that “the Commission’s action in bringing the suit cannot be characterized as unreasonable or meritless/’ the District Court concluded that “an award of attorney’s fees to petitioner is not justified in this case.” A divided Court of Appeals affirmed, 550 F. 2d 949 (CA4), and we granted cer-tiorari to consider an important question of federal law, 432 U. S. 905.
II
It is the general rule in the United States that in the absence of legislation providing otherwise, litigants must pay their own attorney’s fees. Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240. Congress has provided only limited exceptions to this rule “under selected statutes granting or protecting various federal rights.” Id., at 260. Some of these statutes make fee awards mandatory for prevailing plaintiffs; others make awards permissive but limit them to certain parties, usually prevailing plaintiffs. But many of the statutes are more flexible, authorizing the award of attorney’s fees to either plaintiffs or defendants, and entrusting the effectuation of the statutory policy to the discretion of the district courts. Section 706 (k) of Title VII of the Civil Nights Act of 1964 falls into this last category, providing as it does that a district court may in its discretion allow an attorney’s fee to the prevailing party.
In Newman v. Piggie Park Enterprises, 390 U. S. 400, the Court considered a substantially identical statute authorizing the award of attorney’s fees under Title II of the Civil Rights Act of 1964. In that case the plaintiffs had prevailed, and the Court of Appeals had held that they should be awarded their attorney’s fees “only to- the extent that the respondents’ defenses had been advanced 'for purposes of delay and not in good faith.’ ” Id., at 401. We ruled that this “subjective standard” did not properly effectuate the purposes of the counsel-fee provision of Title II. Relying primarily on the intent of Congress to cast a Title II plaintiff in the role of “a 'private attorney general,’ vindicating a policy that Congress considered of the highest priority,” we held that a prevailing plaintiff under Title II “should ordinarily recover an attorney’s fee unless special circumstances would render such an award unjust.” Id., at 402. We noted in passing that if the objective of Congress had been to permit the award of attorney’s fees only against defendants who h'ad acted in bad faith, “no new statutory provision would have been necessary,” since even the American common-law rule allows the award of attorney’s fees in those exceptional circumstances. Id., at 402 n. 4.
In Albemarle Paper Co. v. Moody, 422 U. S. 405, the Court made clear that the Piggie Park standard of awarding attorney’s fees to a successful plaintiff is equally applicable in an action under Title VII of the Civil Rights Act. 422 U. S., at 415. See also Northcross v. Memphis Board of Education, 412 U. S. 427, 428. It can thus be taken as established, as the parties in this case both acknowledge, that under § 706 (k) of Title VII a prevailing plaintiff ordinarily is to be awarded attorney’s fees in all but special circumstances.
Ill
The question in the case before us is what standard should inform a district court’s discretion in deciding whether to award attorney’s fees to a successful defendant in a Title VII action. Not surprisingly, the parties in addressing the question in their briefs and oral arguments have taken almost diametrically opposite positions.
The company contends that the Piggie Park criterion for a successful plaintiff should apply equally as a guide to the award of attorney’s fees to a successful defendant. Its submission, in short, is that every prevailing defendant in a Title VII action should receive an allowance of attorney’s fees “unless special circumstances would render such an award unjust.” The respondent Commission, by contrast, argues that the prevailing defendant should receive an award of attorney’s fees only when it is found that the plaintiff’s action was brought in bad faith. We have concluded that neither of these positions is correct.
A
Relying on what it terms “the plain meaning of the statute,” the company argues that the language of § 706 (k) admits of only one interpretation: “A prevailing defendant is entitled to an award of attorney’s fees on the same basis as a prevailing plaintiff.” But the permissive and discretionary language of the statute does not even invite, let alone require, such a mechanical construction. The terms of § 706 (k) provide no indication whatever of the circumstances under which either a plaintiff or a defendant should be entitled to' attorney’s fees. And a moment’s reflection reveals that there are at least two strong equitable considerations counseling an attorney’s fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant.
First, as emphasized so forcefully in Piggie Park, the plaintiff is the chosen instrument of Congress to vindicate “a policy that Congress considered of the highest priority.” 390 U. S., at 402. Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. As the Court of Appeals clearly perceived, “these policy considerations which support the award of fees to a prevailing plaintiff are not present in the case of a prevailing defendant.” 550 F. 2d, at 951. A successful defendant seeking counsel fees under § 706 (k) must rely on quite different equitable considerations.
But if the company’s position is untenable, the Commission’s argument also misses the mark. It seems clear, in short, that in enacting § 706 (k) Congress did not intend to permit the award of attorney’s fees to a prevailing defendant only in a situation where the plaintiff was motivated by bad faith in bringing the action. As pointed out in Piggie Park, if that had been the intent of Congress, no statutory provision would have been necessary, for it has long been established that even under the American -common-law rule attorney’s fees may be awarded against a party who has proceeded in bad faith.
Furthermore, while it was certainly the policy of Congress that Title VII plaintiffs should vindicate “a policy that Congress considered of the highest priority,” Piggie Park, 390 U. S., at 402, it is equally certain that Congress entrusted the ultimate effectuation of that policy to the adversary judicial process, Occidental Life Ins. Co. v. EEOC, 432 U. S. 355. A fair adversary process presupposes both a vigorous prosecution and a vigorous defense. It cannot be lightly assumed that in enacting § 706 (k), Congress intended to' distort that process by giving the private plaintiff substantial incentives to sue, while foreclosing to the defendant the possibility of recovering his expenses in resisting even a groundless action unless he can show that it was brought in bad faith.
B
The sparse legislative history of § 706 (k) reveals little more than the barest outlines of a proper accommodation of the competing considerations we have discussed. The only specific reference to § 706 (k) in the legislative debates indicates that the fee provision was included to “make it easier for a plaintiff of limited means to bring a meritorious suit.” During the ¿Senate floor discussions of the almost identical attorney’s fee provision of Title II, however, several Senators explained that its allowance of awards to defendants would serve “to deter the bringing of lawsuits without foundation,” “to discourage frivolous suits,” and “to diminish the likelihood of unjustified suits being brought.” If anything can be gleaned from these fragments of legislative history, it is that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis. The Court of Appeals for the District of Columbia Circuit seems to have drawn the maximum significance from the Senate debates when it concluded:
“[From these debates] two purposes for § 706 (k) emerge. First, Congress desired to 'make it easier for a plaintiff of limited means to bring a meritorious suit’.... But second, and equally important, Congress intended to 'deter the bringing of lawsuits without foundation’ by providing that the 'prevailing party’ — be it plaintiff or defendant — could obtain legal fees.” Grubbs v. Butz, 179 U. S. App. D. C. 18, 20, 648 F. 2d 973, 975.
The first federal appellate court to consider what criteria should govern the award of attorney’s fees to a prevailing Title VII defendant was the Court of Appeals for the Third Circuit in United States Steel Corp. v. United States, 519 F. 2d 359. There a District Court had denied a fee award to a defendant that had successfully resisted a Commission demand for documents, the court finding that the Commission’s action had not been “ 'unfounded, meritless, frivolous or vexatiously brought.’ ” Id., at 363. The Court of Appeals concluded that the District Court had not abused its discretion in denying the award. Id., at 365. A similar standard was adopted by the Court of Appeals for the Second Circuit in Carrion v. Yeshiva University, 535 F. 2d 722. In upholding an attorney’s fee award to a successful defendant, that court stated that such awards should be permitted “not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.” Id., at 727.
To the extent that abstract words can deal with concrete cases, we think that the concept embodied in the language adopted by these two Courts of Appeals is correct. We would qualify their words only by pointing out that the term “merit-less” is to be understood as meaning groundless or without foundation, rather than simply that the plaintiff has ultimately lost his case, and that the term “vexatious” in no way implies that the plaintiff’s subjective bad faith is a necessary prerequisite to a fee award against him. In sum, a district court may in its discretion award attorney’s fees to a prevailing defendant in a Title VII case upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith.
In applying these criteria, it is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one’s belief that he has been the victim of discrimination, no matter how meritorious one’s claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.
That § 706 (k) allows fee awards only to prevailing private plaintiffs should assure that this statutory provision will not in itself operate as an incentive to the bringing of claims that have little chance of success. To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Hence, a plaintiff should not be assessed his opponent’s attorney’s fees unless a court finds that his claim was frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so. And, needless to say, if a plaintiff is found to have brought or continued such a claim in had faith, there will be an even stronger basis for charging him with the. attorney’s fees incurred by the defense.
IV
In denying attorney’s fees to the company in this case, the District Court focused on the standards we have discussed. The court found that “the Commission’s action in bringing the suit cannot be characterized as unreasonable or meritless” because “the basis upon which petitioner prevailed was an issue of first impression requiring judicial resolution” and because the “Commission’s statutory interpretation of § 14 of the 1972 amendments was not frivolous.” The court thus exercised its discretion squarely within the permissible bounds of § 706 (k). Accordingly, the judgment of the Court of Appeals upholding the decision of the District Court is affirmed.
It is so ordered.
Mr. Justice Blackmun took no part in the consideration or decision of this case.
Section 706 (k) provides in full: “In any action or proceeding under this title the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney’s fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person.” 78 Stat. 261, 42 U. S. C. § 2000e-5 (k).
Equal Employment Opportunity Act of 1972, Pub. L. 92-261, 86 Stat. 103.
The Commission argued that charges as to which no private suit had been brought as of the effective date of the amendments remained "pending” before the Commission so long as the complaint had not been dismissed and the dispute had not been resolved through conciliation. The Commission supported its construction of § 14 with references to the legislative history of the 1972 amendments.
The District Court concluded that when Rosa Helm was notified in 1970 that conciliation had failed and that she had a right to sue the company, the Commission had no further action legally open to it, and its authority over the case terminated on that date. Section 14’s reference to “pending” cases was held “to be limited to charges still in the process of negotiation and conciliation” on the effective date of the 1972 amendments. 376 F. Supp., at 1074.
The District Court rejected on the merits two additional grounds advanced by the company in support of its motion for summary judgment.
The opinion of the District Court dealing with the motion for attorney’s fees is reported at 12 FEP Cases 533.
See, e. g., Clayton Act, 38 Stat. 731, 15 U. S. C. §15; Fair Labor Standards Act of 1938, 52 Stat. 1069, as amended, 29 U. S. C. § 216 (b); Packers and Stockyards Act, 42 Stat. 165, 7 U. S. C. § 210 (f); Truth in Lending Act, 82 Stat. 157, 15 U. S. C. § 1640 (a); and Merchant Marine Act, 1936, 49 Stat. 2015, 46 U. S. C. § 1227.
See, e. g., Privacy Act of 1974, 88 Stat. 1897, 5 U. S. C. § 552a (g) (2) (B) (1976 ed.); Fair Housing Act of 1968, 82 Stat. 88, 42 U. S. C. §3612 (c).
See, e. g., Trust Indenture Act of 1939, 53 Stat. 1171, 15 U. S. C. § 77ooo (e); Securities Exchange Act of 1934, 48 Stat. 889, 897, 15 U. S. C. §§ 78i (e), 78r (a); Federal Water Pollution Control Act, 86 Stat. 889, 33 U. S. C. § 1365 (d) (1970 ed., Supp. V); Clean Air Act, 84 Stat. 1706, 42 U. S. C. § 1857h-2 (d); Noise Control Act of 1972, 86 Stat. 1244, 42 U. S. C. § 4911 (d) (1970 ed., Supp. V).
“In any action commenced pursuant to this subchapter, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United States shall be liable for costs the same as a private person.” 42 U. S. C. § 2000a-3 (b).
The propriety under the American common-law rule of awarding attorney’s fees against- a losing party who has acted in bad faith was expressly reaffirmed in Alyeska Pipeline Co. v. Wilderness Society, 421 U. S. 240, 258-259.
Chastang v. Flynn & Emrich Co., 541 F. 2d 1040, 1045 (CA4) (finding “special circumstances” justifying no award to prevailing plaintiff); Carrion v. Yeshiva Univ., 535 F. 2d 722, 727 (CA2); Johnson v. Georgia Highway Express, Inc., 488 F. 2d 714, 716 (CA5); Parham v. Southwestern Bell Telephone Co., 433 F. 2d 421, 429-430 (CA8).
Briefs by amici have also been filed in support of each party.
This was the view taken by Judge Widener, dissenting in the Court of Appeals, 550 F. 2d 949, 952 (CA4). At least two other federal courts have expressed the same view. EEOC v. Bailey Co., 563 F. 2d 439, 456 (CA6); United States v. Allegheny-Ludlum Industries, 558 F. 2d 742, 744 (CA5).
See n. 9, supra. Had Congress provided for attorney’s fee awards only to successful plaintiffs, an argument could have been made that the congressional action had pre-empted the common-law rule, and that, therefore, a successful defendant could not recover attorney’s fees even against a plaintiff who had proceeded in bad faith. Cf. Byram Concretanks, Inc. v. Warren Concrete Products Co. of New Jersey, 374 F. 2d 649, 651 (CA3). But there is no indication whatever that the purpose of Congress in enacting § 706 (k) in the form’that it did was simply to foreclose such' an argument.
Remarks of Senator Humphrey,, 110 Cong. Rec. 12724 (1964).
Remarks of Senator Lausche, id.., at 13668.
Remarks of Senator Pastore, id., at 14214.
Remarks of Senator Humphrey, id., at 6534.
At least three other Circuits are in general agreement. See Bolton v. Murray Envelope Corp., 553 F. 2d 881, 884 n. 2 (CA5); Grubbs v. Butz, 179 U. S. App. D. C. 18, 20-21, 548 F. 2d 973, 975-976; Wright v. Stone Container Corp., 524 F. 2d 1058, 1063-1064 (CA8).
See remarks of Senator Miller, 110 Cong. Rec. 14214 (1964), with reference to the parallel attorney’s fee provision in Title II.
Initially, the Commission argued that the “costs” assessable against the Government under § 706 (k) did not include attorney’s fees. See, e. g., United States Steel Corp. v. United States, 519 F. 2d 359, 362 (CA3); Van Hoomissen v. Xerox Corp., 503 F. 2d 1131, 1132-1133 (CA9). But the Courts of Appeals rejected this position and, during the course of appealing this case, the Commission abandoned its contention that it was legally immune to adverse fee awards under § 706 (k). 550 F. 2d, at 951.
It has been urged that fee awards against the Commission should rest on a standard different from that governing fee awards against private plaintiffs. One amicus stresses that the Commission, unlike private litigants, needs no inducement to enforce Title VII since it is required by statute to do so. But this distinction between the Commission and private plaintiffs merely explains why Congress drafted § 706 (k) to preclude the recovery of attorney’s fees by the Commission; it does not support a difference in treatment among private and Government plaintiffs when a prevailing defendant seeks to recover his attorney’s fees. Several courts and commentators have also deemed significant the Government’s greater ability to pay adverse fee awards compared to a private litigant. See, e. g., United States Steel Corp. v. United States, supra, at 364 n. 24; Heinsz, Attorney’s Fees for Prevailing Title VII Defendants: Toward a Workable Standard, 8 U. Toledo L. Rev. 259, 290 (1977); Comment, Title VII, Civil Rights Act of 1964: Standards for Award of Attorney’s Fees to Prevailing Defendants, 1976 Wis. L. Rev. 207, 228. We are informed, however, that such awards must be paid from the Commission’s litigation budget, so that every attorney’s fee assessment against the Commission will inevitably divert resources from the agency’s enforcement of Title VII. See 46 Comp. Gen. 98, 100 (1966); 38 Comp. Gen. 343, 344-345 (1958). The other side of this coin is the fact that many defendants in Title VII claims are small- and moderate-size employers for whom the expense of defending even a frivolous claim may become a strong disincentive to the exercise of their legal rights. In short, there are equitable considerations on both sides of this question. Yet § 706 (k) explicitly provides that “the Commission and the United States shall be liable for costs the same as a private person.” Hence, although a district court may consider distinctions between the Commission and private plaintiffs in determining the reasonableness of the Commission’s litigation efforts, we find no grounds for applying a different general standard whenever the Commission is the losing plaintiff.
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_appel1_1_3 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
POWELL BROS. TRUCK LINES, Inc., v. PIATT.
No. 1548.
Circuit Court of Appeals, Tenth Circuit.
Nov. 12, 1937.
W. E. Green, of Tulsa, Okl. (Grover C. James, of Joplin, Mo., and J. C. Farmer and Robt. J. Woolsey, both of Tulsa, Okl., on the brief), for appellant.
Frank Nesbitt, of Miami, Okl. (Nelle Nesbitt, of Miami, Okl., and E. B. Morgan, of Galena, Kan., on the brief), for appellee.
. Before PHILLIPS and WILLIAMS, Circuit Judges, and SYMES, District Judge.
PHILLIPS, Circuit Judge.
Piatt brought this action against Powell Brothers Truck Lines, Inc., to recover damages for personal injuries resulting from an accident which occurred about eight o’clock P. M. on September 27, 1935, on the driveway of the Oklahoma Port of Entry situated on Highway No. 66. At the close of the evidence the trial court denied a motion for- a directed verdict in favor of Truck Lines. A verdict was returned in favor of Piatt. From a judgment entered thereon Truck Lines has appealed.
Highway No. 66 runs north and south. The office of the Port of Entry is located in a one-story building about 16 feet square situated a short distance west of the highway. A semicircular driveway between 25 and 30 feet in width and between 200 and 230 feet in length extended from a point on the highway north o’f the office, past the front of the office, to a point on the highway south of the office. It was provided for the convenience of persons required to register at the Port of Entry. The eastern boundary of the driveway was marked by a wall constructed of boulders.
Piatt was engaged in selling breakfast cereal. He used in his business a Plymouth Coupé with a pickup body. On the evening of the day of the accident he was traveling north on Highway No. 66. He arrived at the Port of Entry and drove into the driveway and parked his automobile on the east side thereof, in front of the office and as close to the boulder wall as he considered it safe to drive. When he arrived a truck of the Truck Lines was parked on the west side of the driveway with its front end to the south. The radiators of the two motor vehicles were approximately opposite each other and there was a clear space of four to five feet between the two vehicles. The motor of the truck was running and the lights were on. Piatt entered the office to register. At that time there were in the office two Port of Entry employees and three truck drivers. The truck drivers completed their business and left the office. After having registered Piatt left the office and proceeded to his automobile, approaching it from the left hand side. He set hi's left foot on the running board and seized the door handle with his left hand. The Truck Lines truck started forward toward the south exit of the driveway. There was a heavy Wind blowing and Piatt feeling that his hat was about to blow off took hold of it with his left hand. The truck cut sharply to the left so that its left wheels were well over on the east half of the driveway, and the body of the trailer of the truck passed within three to four inches of the left rear fender of Piatt’s automobile. The trailer of the truck struck Piatt’s left elbow, threw him off balance, caught him and rolled him from the door of his automobile to the rear bumper thereof and threw him on the ground. His body touched the rear fender of his automobile as he was rolled by the force of the truck. His right leg caught under the rear bumper of his automobile. The left rear dual wheel on the trailer passed over his left leg, crushing it and breaking his knee-cap in three places. The truck did not stop.
At the time Piatt took his position alongside of his automobile, it and the Truck Lines truck, were the only motor vehicles in the driveway, and none were immediately approaching the driveway.
It is contended that Piatt was guilty of contributory negligence as a matter of law.
The presumption is that a duty established by law or custom will be duly discharged. One to whom a duty is owed has a right to assume that it will be performed. He is not required to anticipate negligent acts or omissions on the part of others. While reliance upon the' performance of duties by others does not excuse one from exercising due care for his own safety, it does excuse him from taking active measures for his own protection.
Piatt had the right to assume that the truck driver would keep on his side of the driveway. There were no other vehicles in the driveway and none were approaching it when Piatt took his position near the door of his automobile. There was ample space between Piatt and the truck and the position he assumed would not have exposed him to danger had the truck driver performed his statutory duty to drive on the right side of the driveway. We do not think it can be said under the attendant circumstances as a matter of law that in taking his position at the door of his automobile Piatt failed to exercise due care for his own safety.
It is true that immediately before the truck struck Piatt his hat was caught by a gust of wind and he reached for it with his left hand to prevent it from being blown off, and that the truck first struck the elbow of his left arm. It is clear, however, that the truck was cutting closer to him as it moved forward, and that its trailer would have struck his body had his left arm not been somewhat extended. In fact, the truck did strike Piatt’s body and rolled him back against his left fender and bumper and threw him on the ground. We conclude, therefore, that the act of Piatt in reaching for his hat did not contribute to his injuries as a proximate cause. Furthermore, the act of seizing one’s hat when it is about to blow off is so automatic as to be almost involuntary. Hence, if we assume that the act did contribute to the injuries, we do not think it could be said that Piatt’s act was not consistent with what a man of ordinary prudence would have done under like circumstances. Barker v. Ohio River R. Co., 51 W.Va. 423, 41 S.E. 148, 149, 90 Am.St.Rep. 808; Barry v. Terkildsen, 72 Cal. 254,, 13 P. 657, 658, 1 Am.St.Rep. 55.
It is also urged that the act of, Piatt in reaching for his hat was the immediate cause of his injuries. In Snider v. Sand Springs Ry. Co. (C.C.A.10) 62 F.(2d) 635, 638, this court said:
“One guilty of negligence is answerable for consequences flowing directly from his negligent act which should reasonably have been foreseen, unless the chain of causation is interrupted by an efficient independent cause which was not in itself reasonably foreseeable.”
In Littell v. Argus Production Company (C.C.A.10) 78 F.(2d) 955, 957, this court said:
“An intervening efficient cause is a new, intermediate, and self-executing act which breaks the causal connection between the original wrong and the injury. But, in order to absolve the initial wrongdoer from liability, the intervening act must break the chain of events in such a manner that the injury cannot be said to be the natural and probable consequence of the original wrong or to have been anticipated. In the absence of such an intervening eaus?, the original wrong extends to the result and proximates it.”
Here the act of Piatt in reaching for his hat neither caused nor would its omission have prevented the injuries. The evidence clearly showed that the truck was cutting closer to Piatt as it traveled forward and that its trailer would have struck him had he not changed the position of his left arm. It cannot be said that Piatt’s act in reaching for his hat was an intervening efficient cause.
O.S.1931, § 10327 (69 Okl.St.Ann. § 583), in part reads:
“Vehicles in meeting each other shall keep to the right of the center of the road.”
O.S.1931, § 10322 (47 Okl.St.Ann. § 91) in part reads:
“ ‘Highway’ shall mean to include any thoroughfare, highway, county road, state ■highway or state road, public street, avenue, public park, driveway, public square or place, bridge, viaduct, trestle or any other thoroughfare, or structure, public or private, designed, intended or used by or for the general public for travel or traffic or the passage of vehicles, within the State of Oklahoma.” (Italics ours.)
The trial court instructed the jury that the driveway on which the accident occurred was a public highway and if the Truck Lines driver drove past the center line of the driveway over on to the left hand side of the road he was guilty of negligence as a matter of law.
Chapter 50, art. 1, p. 208, Okl.Sess.Laws 1935 (47 Okl.St.Ann. §§ 11, 191-195), authorized and directed the Oklahoma Tax Commission to designate certain highways as Port of Entry highways, to establish a primary registration office on each of such designated highways at a suitable place, and to maintain facilities for the proper registration of all motor vehicles at such registration stations.
The driveway here involved was a part of the facilities established and maintained by the public authorities for the proper registration of motor vehicles. It was a public thoroughfare designed, intended and used by the general public for travel, traffic, and passage of vehicles. It was a driveway and the Oklahoma statute defining highway specifically includes the term “driveway."
In Southern Kansas Ry. Co. v. Oklahoma City, 12 Okl. 82, 69 P. 1050, 1054, the court said:
“The term ‘highway’ is a generic name for all kinds of public ways, including county and township roads, streets and alleys [in cities], turnpikes and plank roads, railroads and tramways, bridges and ferries, canals and navigable rivers. In short, every public thoroughfare is a highway.”
We entertain no doubt that the driveway here involved was a highway within the meaning of the Oklahoma statutory definition and that the instructions given by the court were proper.
The judgment is affirmed.
J. Maury Dove Co. v. Cook, 59 App.D.C. 61, 32 F.(2d) 957, 959, 960; Harris v. Johnson, 174 Cal. 55, 161 P. 1155, 1156, L.R.A.1917C, 477, Ann.Cas.1918E, 560; Cosse v. Ballay (La.App.) 149 So. 285, 286; Dippold v. Cathlamet Timber Co., Ill Or. 199, 225 P. 202, 206; Adams v. Gardiner, 306 Pa. 576, 160 A. 589, 591; Adams v. Fields, 308 Pa. 301, 162 A. 177, 178; Miehener v. Lewis, 314 Pa. 156, 170 A. 272, 273; Barker v. Ohio River R. Co., 51 W.Va. 423. 41 S.E. 148. 149, 90 Am.St.Rep. 808; Deputy v. Kimmell, 73 W.Va. 595, 80 S.E. 919, 51 L.R.A.(N.S.) 989, 1003, Ann.Cas.1916E, 650; Ritter v. Hicks, 102 W.Va. 541, 135 S.E. 601, 602, 603, 50 A.L.R. 1505.
Gornstein v. Priver, 64 Cal.App. 249, 221 P. 396, 401; Rosella v. Paxinos, 110 Cal.App. 299, 294 P. 39, 40; Cosse v. Ballay (La.App.) 149 So. 285, 286; Dippold v. Cathlamet Timber Co., 111 Or. 199, 225 P. 202, 206.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_usc1sect | 723 | 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 28. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
FISKE et al. v. BUDER et al.
No. 12013.
Circuit Court of Appeals, Eighth Circuit.
Feb. 16, 1942.
Rehearing Denied March 13, 1942.
Jesse T. Friday, of St. Louis, Mo. (E. J. Doerner, of Tulsa, Okl., on the brief), for appellants.
G. A. Buder, Jr., of St. Louis, Mo. (Oscar E. Buder, of St. Louis, Mo., on the brief), for appellees.
Before THOMAS and JOHNSEN, Circuit Judges, and REEVES, District Judge.
THOMAS, Circuit Judge.
In 1898, Ehrhardt D. Franz of Saint Louis, Missouri, died testate, leaving an estate consisting of stocks, bonds and real estate. By the terms of his will his widow, Sophie Franz, was given a life interest in the estate with remainder over in equal shares to his ten children.
In 1909 the surviving widow created a trust, the res of which consisted of all the property owned by her in her own right and also as life tenant under the will of her deceased husband. The appellee, G. A. Buder, and G. A. Franz, now deceased, one of the sons of Ehrhardt D. Franz and Sophie Franz, were named as trustees in the instrument creating the trust. A clause of the instrument also provided that the law firm of Buder and Buder consisting of G. A. Buder, a trustee, and his brother, Oscar E. Buder, should be employed by the trustees as their counsel.
About 1924 dissension arose between the trustees and the owners of 6% shares of the remainder estate on one side and the owners of 3% shares on the other. The dissension resulted in litigation which has been carried on in the courts of Missouri and the Federal courts ever since. The facts necessary to a complete understanding of this controversy will be found in the reported decisions of the Supreme Court of Missouri, of the Supreme Court of the United States, and of this court.
Sophie Franz died in 1930, and her life estate was thereby terminated. The trustees under the trust agreement of 1909 claimed as compensation for their services a commission of five per cent estimated not only upon that part of the trust res which had been owned by Sophie Franz in her own right, but also upon the remainder interests of her deceased husband’s estate. The owners of 3% of the remainder interests objected to the allowance against their property but the owners of the 6% interests, then also represented by Buder and Buder, consented to the allowance. On April 1, 1932, an order was entered in the district court denying the commission upon the 3% shares of the objecting remainder-men but providing “that the said Trustees be allowed a credit for a commission of five per cent upon the value of the remaining 6% shares of the corpus of the estate in their possession.”
In 1939 the five appellants, who are among the owners of the 6% shares, moved the court to modify the order of April 1, 1932, “so as to vacate * * * that portion * * * which allows the claim of the trustees to a 5 per cent commission upon” the appellants’ remainder interests. The trustees filed an answer to the motion, and after a full hearing at which evidence was offered and received an order was entered on December 17, 1940, overruling the motion. The appeal is from this order.
The trust estate was brought under the jurisdiction of the district court in 1924 in the case of E. W. Franz v. G. A. Buder, et al., a case in which jurisdiction is based upon diversity of citizenship. See Franz v. Franz, 8 Cir., 15 F.2d 797. That case is still pending for the purpose at least of administering and closing the trust. In all the proceedings and litigation growing out of the trust the law firm of Buder and Buder represented the trustees and from 1926 until 1935 that firm also represented the appellants. On May 17, 1930, the appellants with the assistance of Buder and Buder, their attorneys, filed a Petition for Distribution of Remainder Interests in which it was stated that they were informed that the trustees under the conveyance of January 30, 1909, had filed, or would file, their petition asking for instructions as to making a distribution of the remainder estate. Among other recitations of the petition it was said: “And your petitioners inform the Court that they have agreed with divers other remaindermen that the said Trustees shall be allowed five per cent (5%) on the Trust Estate as compensation for their services as such trustees, and your petitioners consent to and hereby request that such allowance be made and that the Trustees be permitted to deduct and retain such five per cent (5%) out of their remainder interests aforesaid.”
The report of the trustees was filed about a year later, and in it they claimed a credit for a five per cent commission on the remainder estate.
The grounds of the motion to modify the order of April 1, 1932, by vacating the allowance of a commission to the trustees based upon the remainder interests were: (a) That Buder and Buder, while acting as appellants’ attorneys, for the purpose of enhancing the trustees’ commissions had by fraudulent representations, upon which they relied, procured appellants to sign the Petition for Distribution of May 17, 1930, consenting to the allowance of such commission, and (b) that as a result of the fraud complained of the appellants were deprived of their day in court to contest the allowance of said commission.
The fraudulent representations alleged to have been made were (1) that the trustees were entitled to a five per cent commission based upon the value of the interests of the several remaindermen; (2) that the remaindermen were legally obligated to pay such commission; and (3) that (a) unless appellants followed their advice and agreed to pay the commission the distribution of their remainder interests would be indefinitely postponed, and (b) that upon application of the trustees the court would allow a commission upon the remainder interests in excess of five per cent.
In their answer to the motion appellees admit the historical background alleged in the motion and as defenses plead (1) that the motion is a collateral attack upon the order; (2) that at various times prior to the death of the life tenant appellants had agreed that the trustees should be given a five per cent commission upon their remainder interests; (3) deny the alleged fraudulent representations; and (4) allege laches.
The questions presented upon this appeal for determination are: (1) Does the district court have power to grant the relief asked in appellants’ motion? (2) If so, are the appellants guilty of laches so as to deprive them of the right to relief? And (3) if not guilty of laches, are they entitled to relief on the merits?
1. The Power of the District Court.— After appellants had filed their motion to modify the order of April 1, 1932, appellees moved to dismiss and strike it on the ground that the court was without jurisdiction over the subject matter of appellants’ motion. Appellees’ motion was overruled by the court, and no cross appeal has been taken. The only question which can be raised on this appeal, therefore, is the power of the district court to act in the premises. It is the contention of appellees that the relief asked by appellants’ motion is barred by Rule 60(b) of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The motion was not filed within six months after the order sought to be modified was entered. Rule 60(b) provides: “On motion the court, upon such terms as are just, may relieve a party or his legal representative from a judgment, order, or proceeding taken against’ him through his mistake, inadvertence, surprise, or excusable neglect. The motion shall be made within a reasonable time, but in no case exceeding six months after such judgment, order, or proceeding was taken. A motion under this subdivision does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding, or (2) to set aside within one year, as provided in Section 57 of the Judicial Code, U.S.C., Title 28, § 118, a judgment obtained against a defendant not actually personally notified.”
It is argued that this proceeding does not come within the first saving clause of the rule which provides that the rule “does not limit the power of a court (1) to entertain an action to relieve a party from a judgment, order, or proceeding * * *” for the reason that this clause
applies only to original “actions”, and that appellants’ motion is not such an action. It is conceded by appellants, as it must be, that the motion to modify is in the nature of an ancillary proceeding. Simkins: Federal Practice, § 812; Thompson v. Schenectady Ry. Co., C.C.N.Y., 124 F. 274, 277, 278; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 901, 902, 107 A.L.R. 726; St. Louis-San Francisco R. Co. v. Byrnes, 8 Cir., 24 F.2d 66; Dickey v. Turner, 6 Cir., 49 F.2d 998; 1 Moore’s Federal Practice, pp. 462, 465, 466. In this situation the effect and proper construction of Rule 60(b) must be determined. Here the case in which the motion was made is still pending, and the order sought to be modified relates to the administration of a fund in the custody of the court. The question is, does the court in the administration of justice have power under the circumstances to hear and determine the issue presented by the motion and the answer; or more than six months having elapsed after the order was entered before the motion was filed, does Rule 60(b) deprive the court of such power?
Rule 60(b) is based upon § 473 of the Code of Civil Procedure of California, and the question arises whether we should follow the construction placed upon it by the Supreme Court of that state. The general rule is that when a statute is adopted from another jurisdiction, in substantially the same language, the provisions so adopted are to be construed in the sense in-which they were understood at the time in the jurisdiction from which they were: -taken. Metropolitan Railroad Co. v. Moore, 121 U.S. 558, 572, 7 S.Ct. 1334, 30 L.Ed. 1022; United States v. Lecato, 2 Cir., 29 F.2d 694, 695. This is not in conflict with the rule that new legislation must be construed and applied consistently with the construction placed upon the related parts of the general law. United States ex rel. Demarois v. Farrell, 8 Cir., 87 F.2d 957, 962, 963; United States v. Jefferson Electric Co., 291 U.S. 386, 396, 54 S.Ct. 443, 446, 78 L.Ed. 859. And the latter rule does not impair the application of the first to the construction of Rule 60(b). 18 Hughes, Federal Practice, Rules Civil Procedure, p. 445, § 25631 et seq.
The Supreme Court of California has several times had occasion to construe § 473 of the California Code of Civil Procedure in cases where it was sought to vacate a judgment or decree after the period limited by the statute had expired. In Chiarodit v. Chiarodit, 218 Cal. 147, 21 P.2d 562, 564, the court said: “We now turn to consider whether the notice to set aside and vacate the decree was timely given. The notice was served before the expiration of six months but the time set for making the motion fell beyond the limit of section 473 of the Code of Civil Procedure. Those authorities which hold that the motion must actually be made within the period are beside the point in the present case for the reason that here the fraud established by the showing of the respondent was extrinsic. (McGuinness v. Superior Court [196 Cal. 222, 237 P. 42, 40 A.L.R. 1110], supra; Tomb v. Tomb, 120 Cal.App. 438, 7 P.2d 1104), and it has been determined that where it is of that character, the court has the inherent power to set aside the decree regardless of the limitations prescribed by section 473. McGuinness v. Superior Court, supra; Aldrich v. Aldrich, 203 Cal. 433, 264 P. 754; McKeever v. Superior Court, 85 Cal.App. 381, 259 P. 373; Tomb v. Tomb, supra.”
Applying the construction thus placed upon the California statute to Rule 60(b), the district court had power to decide the issue presented by the motion and answer provided the fraudulent representations alleged constitute extrinsic fraud. That question may be discussed more appropriately hereinafter in connection with our decision on- the merits of the controversy. Our conclusion there is that the alleged fraud is extrinsic or collateral. We hold,- therefore, that the district court had power to hear and determine the issues. See, also, Preveden v. Hahn, D.C.S.D.N.Y., 36 F.Supp. 952, 953.
2. Laches. — The contention that appellants’ right to relief is barred by laches, although serious, should not be sustained.
By far the greater part of the property subject to the life estate of Sophie Franz and transferred by her to the trustees consisted of stock dividends issued by corporations. In the early history of the trust it was contended by the trustees that such stock dividends were income belonging to the life tenant and consequently a part of the trust fund subject to a commission to the trustees. It was further contended that the remainder interests had been cancelled by advancements made by the life tenant to the remaindermen. Another claim was that the appellants had by valid contract as early as 1909 agreed to pay the trustees a five per cent commission upon their remainder interests. Practically all of these matters were adjudicated by this court in Buder et al. v. Franz et al., 8 Cir., 27 F.2d 101, decided in 1928. It was there held that stock dividends on stock held in a trust estate are part of the corpus of the estate and not income. It was also held that the remaindermen under the Franz will were not estopped to assert their interest in the securities held by the trustees. The state of Missouri, however, claimed that these stock dividends had by gift or otherwise been surrendered by the remaindermen and belonged to the life tenant. Had this contention been sustained the value of such stock dividends would have been subject to the inheritance tax of the state of Missouri. They would also have been a part of the trust res and liable to the trustees’ commission, because the trust agreement was a Missouri contract and subject to Missouri law. State of Missouri v. Fiske, 290 U.S. 18, 23, 54 S.Ct. 18, 78 L.Ed. 145. In Re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401, decided March 15, 1939, rehearing denied April 20, 1939, the Supreme Court of Missouri decided these contentions against the state and the trustees.
This ancillary proceeding was filed by the appellants on May 12, 1939, within two months after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. It was, in view of these circumstances, seasonably filed. It is true that it might have been filed more than six years earlier, but the appellants until that time had no conclusive reason for not believing the representations of Buder and Buder, and for believing that their interests would not be held to belong to their mother’s estate -and to be a part of the trust estate. There could be no distribution of the estate until after the decision of the Supreme Court of Missouri in the Franz’ Estate case supra. See State of Missouri v. Fiske, supra.
in the case of Wallace v. Fiske, supra, this court, at page 912 of 80 F.2d, 107 A.L.R. 726, said:
“ ‘Laches does not, like limitation; grow out of the mere passage of time. But it is founded upon the inequity of permitting the claim to be enforced — an inequity founded upon some change in the condition or relations of the property or the parties.’ Galliher v. Cadwell, 145 U.S. 368, 12 S.Ct. 873, 36 L.Ed. 738. ‘The length of time during which the party neglects the assertion of his rights, which must pass in order to show laches, varies with the peculiar circumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant, to the rights such, that it would be inequitable to permit the plaintiff to now assert them.’ Alsop v. Riker, 155 U.S. 448, 461, 15 S.Ct. 162, 167, 39 L.Ed. 218.
' “The chancellor will determine the extraordinary’ case in accordance with the equities which condition it. Kelley v. Boettcher, [8 Cir.], 85 F. 55.
“ ‘Laches which will bar a suit in equity depends on the peculiar circumstances of each case, and where the complainant’s inaction does not appear to have worked injury to any one, and.it is not shown that there was any occasion for more promptly asserting his rights, the defense will not prevail.’ Hanchett v. Blair [9 Cir.], 100 F. 817.”
Since, as shown supra, no distribution of the property was possible while the litigation was pending in . the Missouri courts, the parties could not be injured by the delay. It is argued by appellees that certain fights of Honorable James A. Reed had intervened during the delay and that he will be injured by a reversal of the order appealed from. The order of April 1, 1932, directed the trustees to pay Reed $14,000 out of the commissions paid to them. It does not appear that the commissions pay-' able to the trustees in.any event'will not be sufficient to pay this sum. Further, this allowance was made pursuant .to a request of the trustees contained in their report. Reed was not a party to the .suit, and he was given no judgment against the appellants.
Appellees 'assert further that they are prejudiced because of the death of G. A. Franz on July 30, 1939, prior to the trial of this case. His testimony, they assert, would have been important in reference 'to a certain resolution adopted by the parties at Las Vegas, New Mexico, in May, 1909. But the minutes of that meeting were introduced in evidence; and other witnesses were present at that and all other meetings material to the issues, and testified at the hearing. It does not appear' that appellees are in any way prej udiced by the death of Franz. The appellants should not be barred by laches.
3. The Merits. — The’merits of the controversy depend (I) upon the establishment of the alleged fraudulent representations of Buder and Buder inducing appellants to sign the Petition for Distribution on May 16, 1930; that such fraud prevented appellants from excepting to and defending against the allowance of:the claimed com-: mission; and (2) that such fraud, if established, was in its nature extrinsic rather than intrinsic. ■ •
It is the law that fraud must be proved by clear and convincing evidence. Continental Nat. Bank v. Holland Banking Co., 8 Cir., 66 F.2d 823, 830. It must appear also that the, fraud was practiced in the very act of procuring the judgment or order sought to be vacated or' modified and that it was extrinsic or collateral as distinguished from intrinsic fraud. United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93; Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 8 Cir., 115 F.2d 1 (reversed on other .grounds by the Supreme Court in Phœnix Finance Corporation v. Iowa-Wisconsin Bridge Co., 62 S.Ct. 139, 86 L.Ed. -).
The evidence upon this question is conflicting. The appellants without dispute, following the death of the.,life tenant on April 14, 1930, met at the Chase Hotel in Saint Louis on May 16, 1930, for the- purpose of consulting their. attorneys, Buder and Buder, and to procure -a prompt distribution of their remainder; .interests in their . deceased father’s - estate. • ■ Some of them consulted G. A. Buder at his law office in the city the preceding day. Oscar E. Buder met with them at the hotel in both a forenoon and an afternoon session.
At the hearing the appellants testified unequivocally that the alleged representations were on the occasions mentioned made by both the Buders, and both the Buders unequivocally denied having made the statements attributed to them. Both parties claim that their testimony is corroborated by many pertinent facts.
It is the claim of appellees that it was the expressed wish of the life tenant that the trustees should be paid a commission of five per cent estimated upon the value of both the life and remainder estates; that her wish was communicated to the appellants and the appellants consented to the carrying out of her wishes.
It is next claimed that in May, 1909, within four months after the execution of the trust agreement of January 30, 1909, and twenty-one years prior to the execution of the Petition for Distribution, a family conference was held at Las Vegas, New Mexico, at which all the members of the family were present except Mrs. Zimmermann and E. W. Franz; and that at that conference a valid contract was entered into fixing the compensation of the trustees at five per cent of the entire property in the trustees’ hands.
. As showing adherence to the alleged agreement of May, 1909, the appellees refer to an agreement made in 1920, by the terms of which the remaindermen paid the trustees a five per cent commission on the distribution of 12,600 rights to subscribe to stock of the Burroughs Adding Machine Company.
Again, in November, 1929, at a family gathering called by the life tenant an instrument was prepared by Buder and Buder for the purpose of distributing a portion of the trust estate. That instrument, signed by the appellants, contained a provision that the trustees should receive a five per cent ■commission upon all the property distributed. That agreement did not become effective because E. W. Franz refused to sign it.
Finally, the Petition of May 17, 1930, the execution of which appellants claim was obtained by fraudulent representations of Buder and Buder, contained a provision that the trustees should retain a commission of five per cent of the market value of the stock distributed for their services in handling the assets of the trust.
Further, the appellees say the evidence of fraud is not clear and convincing but vague and indefinite because the testimony of appellants as to attendant circumstances is not clear and because their positive and direct testimony is denied by both the Buders.
The appellants contend, first, that there is no basis in either law or equity for the allowance of a commission to the trustees appointed by the life tenant payable out of the remainder estates. A life tenant is a quasi trustee for the remainder-men and liable for waste. It was so held by this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 114. In the opinion of Judge Faris in connection with the order of April 1, 1932, he declared that remaindermen are not liable to burdens placed upon their remainder interests by the life tenant and that counsel for the trustees concede the bare bones of the law to be according to the contentions of the 3% excepting interests on this point, and that the trustees relied only upon a species of estoppel resting partly upon the former recognirion of the trust and partly upon the request of practically all of the beneficiaries. The trustees’ charges are lawfully deductible only from the income of the life tenant as a part of the expenses of the trust created by her. Missouri Central Building & Loan Ass’n v. Eveler, 237 Mo. 679, 141 S.W. 877. Their charges are not deductible from the remainder estate because they did not “create, enhance, preserve, or protect” that estate. Abbott, Puller & Myers v. Peyser, Receiver, App.D.C., 124 F.2d 524, 525, decided December 31, 1941.
Second, Buder and Buder, as counsel for the trustees and for more than nine years attorneys for these appellants, consistently claimed and advised that the trustees were entitled to a five per cent commission upon the remainder estates. They consistently endeavored by the instruments which they drew for appellants’ signatures to extinguish the remainder interests and to merge them with the life estate; and that appellants’ signatures were obtained to these various instruments because of their confidence in Buder and Buder and their reliance upon the advice and counsel so given them. The evidence supports these contentions of appellants. G. A. Buder admits their truth. That is the position taken by Buder and Buder in the litigation in both the federal and the state courts. Their explanation of this conduct is that it was a mistake of law, and that the law of Missouri was not settled with respect to the question of whether a stock dividend is income or corpus during that period. That question was settled, however, by the Supreme Court of Missouri in 1927 by its decision in the case of Hayes v. St. Louis Union Trust Co., 317 Mo. 1028, 298 S.W. 91, 99, 56 A.L.R. 1276. In that case the question was whether stock dividends on stock held in trust constituted income or whether they were a part of the corpus. The court held “that the stock dividends were not income of the trust estate but an accretion to the corpus * * After that decision was rendered there was no excuse for a Missouri lawyer to maintain or advise to the contrary.
The other contentions of Buder and Buder as to the validity of contracts prior to May 17, 1930, and as to the effect to be given the conduct of the appellants is answered by the decision of this court in Buder v. Franz, 8 Cir., 27 F.2d 101, 115. In our opinion in that case, Judge Stone, speaking for the court, said: “It is clear, from this record, that this entire controversy has been caused by the trustees. They have consistently and persistently refused to accord the cross-appellants the rights which were due them. They have gone further than this and have and do deny the existence of any and all rights and interest in the cross-appellants. Such course of conduct has compelled this litigation to establish those interests and to enforce and protect the resulting rights.” In that case the appellant and cross-appellants were the owners of 3% remainder interests, but the same conduct of the trustees applied with equal or greater force to these appellants because at that time they were subj ect to the influence of Buder and Buder as their attorneys.
The course of conduct of the trustees condemned by the court in the last cited case, as shown by this record, did not end with the decision of that case. Acting through their counsel, Buder and Buder, they continued in the determination to secure a five per cent commission on the remainder estates. The procuring of the signatures of the appellants to the Petition for Distribution of May 17, 1930, was but a part of that continued purpose. When the record is studied as a whole this fact is established by evidence so clear and convincing that it cannot be doubted. As late as 1931 the trustees filed a claim in the probate court of Saint Louis against the estate of Sophie Franz, deceased, for a five per cent commission upon both the life estate and the remainder interests as constituting the trust fund- in the amount of $810,001.22 as compensation for their services, alleging that all parties in interest had acquiesced in and consented to the charge. That the appellants trusted and relied upon Buder and Buder in signing the Petition is shown by appellants’ entire course of conduct during the period of their employment of Buder and Buder from 1926 until 1935.
The conclusion is also irresistible that appellants did not except to the trustees’ report nor make any defense to the claim of the trustees for credit for a commission upon the remainder interests for the same reason that they signed the Petition for Distribution containing a consent to the allowance of such credit. At that time the life tenant was dead and they were anxious to come into the possession of their remainder interests. They believed that the way to accomplish that desire was to follow the advice of their counsel. To do so involved a failure to file exceptions and contest the allowance which upon the representations and advice of their counsel they had requested the court to make. It is undisputed that Buder and Buder did not tell their clients, the appellants, that they had a right to contest the claimed commissions, nor that the law did not support the contention that the trustees were entitled to such a commission.
Another matter of concern to the court is the undisputed fact that the fiduciary duty of G. A. Buder as attorney for the appellants was in direct conflict with his interest-as a trustee claiming a commission upon their property to which under the law he was not entitled. Such a position is not tenable. It has always been condemned by courts. The relation obviously inspires confidence in the client, and a mere breach of fidelity to the client’s interest is constructive fraud and gives the client a right to redress. Jones v. Byrne, C.C.Ark., 149 F. 457, 464; Baker v. Humphrey, 101 U.S. 494, 495, 25 L.Ed. 1065; Parkerson v. Borst, 5 Cir., 264 F. 761; In re Conrad, 340 Mo. 582, 105 S.W.2d 1. In the litigation pending in the courts from 1926 to 1935 G. A. Buder occupied a fiduciary relation of several angles. He was one of the trustees of the trust estate of S.ophie Franz by reason of which the trustees had possession of the remainder interests under the will of Ehrhardt D. Franz. He had been attorney for the testator. He was Sophie Franz’ attorney. He and his brother were attorneys for the trustees and they were also attorneys for the appellant remaindermen.
Turning to the question of the nature of the fraud complained of as a ground for relief, it is the rule that fraud is extrinsic or collateral within the meaning of the rule when its effect is to prevent an unsuccessful party from having a trial or from fully presenting his case, as, for instance, when his attorney fraudulently connives at his defeat or sells out his client’s interest. Montgomery v. Gilbert, 9 Cir., 77 F.2d 39, 45. It is always extrinsic fraud for an attorney to fail fully to disclose to his client all material facts in any transaction in which their interests are adversary and when such fraud results in a failure of the client to defend against the claim of his attorney. Hockenberry v. Cooper County State Bank, 338 Mo. 31, 88 S.W.2d 1031, 1036. Fraud which prevents a person from presenting an available defense is proper ground for relief against a judgment. Footnote 12, 31 Am.Jr., § 6'54, p. 232. If the fraud really prevents the complaining party from making a full and fair defense it will justify setting aside a decree, whether extrinsic or intrinsic. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 421, 43 S.Ct. 458, 67 L.Ed. 719. In the present instance the conduct and fraudulent advice and representations of Buder and Buder had the direct effect of preventing the appellants from presenting an available defense to the claims of the trustees for a commission based upon the value of the appellants’ remainder estates. For that reason the allowance of the credit claimed in the trustees’ report and granted in the order of April 1, 1932, should be vacated and set aside. The motion should not be denied because of lapse of time under the circumstances of this case since this is purely an ancillary proceeding, since the fund being administered is under the control of the court and undistributed, and since the parties cannot be prejudiced by such an act of justice. In such a case technical considerations should be accorded little weight, unless their effect is to deprive the court of power to act.
The order appealed from is reversed with directions to enter an order sustaining appellants’ motion.
Franz v. Buder, 8 Cir., 11 F.2d 854; Franz v. Franz, 8 Cir., 15 F.2d 797; Buder v. Franz, 8 Cir., 27 F.2d 101; Franz v. Buder, 8 Cir., 34 F.2d 353; Franz v. Buder, 8 Cir., 38 F.2d 605; Mississippi Valley Trust Co. v. Buder, 8 Cir., 47 F.2d 507; Mississippi Valley Trust Co. v. Franz, 8 Cir., 51 F.2d 1047; Fiske v. State of Missouri, 8 Cir., 62 F.2d 150; Wallace v. Franz, 8 Cir., 66 F.2d 457; Wallace v. Franz, 8 Cir., 68 F.2d 313 ; Fiske v. State of Missouri, 8 Cir., 69 F.2d 683; Wallace v. Fiske, 8 Cir., 80 F.2d 897, 107 A.L.R. 726; Fiske v. Wallace, 8 Cir., 117 F.2d 149; In re Franz’ Estate, 344 Mo. 510, 127 S.W.2d 401; State of Missouri v. Fiske, 290 US. 18, 54 S.Ct. 18, 78 L.Ed. 145.
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 28? Answer with a number.
Answer: |
sc_threejudgefdc | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine whether the case was heard by a three-judge federal district court. Beginning in the early 1900s, Congress required three-judge district courts to hear certain kinds of cases. More modern-day legislation has reduced the kinds of lawsuits that must be heard by such a court. As a result, the frequency is less for the Burger Court than for the Warren Court, and all but nonexistent for the Rehnquist and Roberts Courts.
BROWN et al. v. SOCIALIST WORKERS ’74 CAMPAIGN COMMITTEE (OHIO) et al.
No. 81-776.
Argued October 4, 1982
Decided December 8, 1982
MARSHALL, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, and Powell, JJ., joined, and in Parts I, III, and IV of which Blackmun, J., joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment, post, p. 102. O’Con-nor, J., filed an opinion concurring in part and dissenting in part, in which Rehnquist and Stevens, JJ., joined, post, p. 107.
Gary Elson Brown, Assistant Attorney General of Ohio, argued the cause for appellants. With him on the briefs were William J. Brown, Attorney General, Thomas F. Staub, Assistant Attorney General, and James R. Rishel.
Thomas D. Buckley, Jr., argued the cause for appellees. With him on the brief were Gordon J. Beggs, Ben Sheerer, and Bruce Campbell.
Justice Marshall
delivered the opinion of the Court.
This case presents the question whether certain disclosure requirements of the Ohio Campaign Expense Reporting Law, Ohio Rev. Code Ann. §3517.01 et seq. (1972 and Supp. 1981), can be constitutionally applied to the Socialist Workers Party, a minor political party which historically has been the object of harassment by government officials and private parties. The Ohio statute requires every political party to report the names and addresses of campaign contributors and recipients of campaign disbursements. In Buckley v. Valeo, 424 U. S. 1 (1976), this Court held that the First Amendment prohibits the government from compelling disclosures by a minor political party that can show a “reasonable probability” that the compelled disclosures will subject those identified to “threats, harassment, or reprisals.” Id., at 74. Employing this test, a three-judge District Court for the Southern District of Ohio held that the Ohio statute is unconstitutional as applied to the Socialist Workers Party. We affirm.
M
The Socialist Workers Party (SWP) is a small political party with approximately 60 members in the State of Ohio. The Party states in its constitution that its aim is “the abolition of capitalism and the establishment of a workers’ government to achieve socialism.” As the District Court found, the SWP does not advocate the use of violence. It seeks instead to achieve social change through the political process, and its members regularly run for public office. The SWP’s candidates have had little success at the polls. In 1980, for example, the Ohio SWP’s candidate for the United States Senate received fewer than 77,000 votes, less than 1.9% of the total vote. Campaign contributions and expenditures in Ohio have averaged about $15,000 annually since 1974.
In 1974 appellees instituted a class action in the District Court for the Northern District of Ohio challenging the constitutionality of the disclosure provisions of the Ohio Campaign Expense Reporting Law. The Ohio statute requires every candidate for political office to file a statement identifying each contributor and each recipient of a disbursement of campaign funds. §3517.10. The “object or purpose” of each disbursement must also be disclosed. The lists of names and addresses of contributors and recipients are open to public inspection for at least six years. Violations of the disclosure requirements are punishable by fines of up to $1,000 for each day of violation. §3517.99.
On November 6, 1974, the District Court for the Northern District of Ohio entered a temporary restraining order barring the enforcement of the disclosure requirements against the class pending a determination of the merits. The case was then transferred to the District Court for the Southern District of Ohio, which entered an identical temporary restraining order in February 1975. Accordingly, since 1974 appellees have not disclosed the names of contributors and recipients but have otherwise complied with the statute. A three-judge District Court was convened pursuant to 28 U. S. C. §2281. Following extensive discovery, the trial was held in February 1981. After reviewing the “substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters,” the three-judge court concluded that under Buckley v. Valeo, 424 U. S. 1 (1976), the Ohio disclosure requirements are unconstitutional as applied to appellees. We noted probable jurisdiction. 454 U. S. 1122 (1981).
r-H HH
The Constitution protects against the compelled disclosure of political associations and beliefs. Such disclosures “can seriously infringe on privacy of association and belief guaranteed by the First Amendment.” Buckley v. Valeo, supra, at 64, citing Gibson v. Florida Legislative Comm., 372 U. S. 539 (1963); NAACP v. Button, 371 U. S. 415 (1963); Shelton v. Tucker, 364 U. S. 479 (1960); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958). “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.” NAACP v. Alabama, supra, at 462. The right to privacy in one’s political associations and beliefs will yield only to a “‘subordinating interest of the State [that is] compelling,’” NAACP v. Alabama, supra, at 463 (quoting Sweezy v. New Hampshire, 354 U. S. 234, 265 (1957) (opinion concurring in result)), and then only if there is a “substantial relation between the information sought and [an] overriding and compelling state interest.” Gibson v. Florida Legislative Comm., supra, at 546.
In Buckley v. Valeo this Court upheld against a First Amendment challenge the reporting and disclosure requirements imposed on political parties by the Federal Election Campaign Act of 1971. 2 U. S. C. §431 et seq. 424 U. S., at 60-74. The Court found three government interests sufficient in general to justify requiring disclosure of information concerning campaign contributions and expenditures: enhancement of voters’ knowledge about a candidate’s possible allegiances and interests, deterrence of corruption, and the enforcement of contribution limitations. The Court stressed, however, that in certain circumstances the balance of interests requires exempting minor political parties from compelled disclosures. The government’s interests in compelling disclosures are “diminished” in the case of minor parties. Id., at 70. Minor party candidates “usually represent definite and publicized viewpoints” well known to the public, and the improbability of their winning reduces the dangers of corruption and vote-buying. Ibid. At the same time, the potential for impairing First Amendment interests is substantially greater:
“We are not unmindful that the damage done by disclosure to the associational interests of the minor parties and their members and to supporters of independents could be significant. These movements are less likely to have a sound financial base and thus are more vulnerable to falloffs in contributions. In some instances fears of reprisal may deter contributions to the point where the movement cannot survive. The public interest also suffers if that result comes to pass, for there is a consequent reduction in the free circulation of ideas both within and without the political arena.” Id., at 71 (footnotes omitted).
We concluded that in some circumstances the diminished government interests furthered by compelling disclosures by minor parties does not justify the greater threat to First Amendment values.
Buckley v. Valeo set forth the following test for determining when the First Amendment requires exempting minor parties from compelled disclosures:
“The evidence offered need show only a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.” Id., at 74.
The Court acknowledged that “unduly strict requirements of proof could impose a heavy burden” on minor parties. Ibid. Accordingly, the Court emphasized that “[m]inor parties must be allowed sufficient flexibility in the proof of injury.” Ibid.
“The proof may include, for example, specific evidence of past or present harassment of members due to their associational ties, or of harassment directed against the organization itself. A pattern of threats or specific manifestations of public hostility may be sufficient. New parties that have no history upon which to draw may be able to offer evidence of reprisals and threats directed against individuals or organizations holding similar views.” Ibid.
Appellants concede that the Buckley test for exempting minor parties governs the disclosure of the names of contributors, but they contend that the test has no application to the compelled disclosure of names of recipients of campaign disbursements. Appellants assert that the State has a substantial interest in preventing the misuse of campaign funds. They also argue that the disclosure of the names of recipients of campaign funds will have no significant impact on First Amendment rights, because, unlike a contribution, the mere receipt of money for commercial services does not affirmatively express political support.
We reject appellants’ unduly narrow view of the minor-party exemption recognized in Buckley. Appellants’ attempt to limit the exemption to laws requiring disclosure of contributors is inconsistent with the rationale for the exemption stated in Buckley. The Court concluded that the government interests supporting disclosure are weaker in the case of minor parties, while the threat to First Amendment values is greater. Both of these considerations apply not only to the disclosure of campaign contributors but also to the disclosure of recipients of campaign disbursements.
Although appellants contend that requiring disclosure of recipients of disbursements is necessary to prevent corruption, this Court recognized in Buckley that this concededly legitimate government interest has less force in the context of minor parties. The federal law considered in Buckley, like the Ohio law at issue here, required campaign committees to identify both campaign contributors and recipients of campaign disbursements. 2 U. S. C. §§ 432(c) and (d), and 434(a) and (b). We stated that “by exposing large contributions and expenditures to the light of publicity,” disclosure requirements “ten[d] to ‘prevent the corrupt use of money to affect elections.’” Id., at 67 (emphasis added), quoting Burroughs v. United States, 290 U. S. 534, 548 (1934). We concluded, however, that because minor party candidates are unlikely to win elections, the government’s general interest in “deterring the ‘buying’ of elections” is “reduced” in the case of minor parties. 424 U. S., at 70.
Moreover, appellants seriously understate the threat to First Amendment rights that would result from requiring minor parties to disclose the recipients of campaign disbursements. Expenditures by a political party often consist of reimbursements, advances, or wages paid to party members, campaign workers, and supporters, whose activities lie at the very core of the First Amendment. Disbursements may also go to persons who choose to express their support for an unpopular cause by providing services rendered scarce by public hostility and suspicion. Should their involvement be publicized, these persons would be as vulnerable to threats, harassment, and reprisals as are contributors whose connection with the party is solely financial. Even individuals who receive disbursements for “merely” commercial transactions may be deterred by the public enmity attending publicity, and those seeking to harass may disrupt commercial activities on the basis of expenditure information. Because an individual who enters into a transaction with a minor party purely for commercial reasons lacks any ideological commitment to the party, such an individual may well be deterred from providing services by even a small risk of harassment. Compelled disclosure of the names of such recipients of expenditures could therefore cripple a minor party’s ability to operate effectively and thereby reduce “the free circulation of ideas both within and without the political arena.” Buckley, 424 U. S., at 71 (footnotes omitted). See Sweezy v. New Hampshire, 354 U. S., at 250-251 (plurality opinion) (“Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents”).
We hold, therefore, that the test announced in Buckley for safeguarding the First Amendment interests of minor parties and their members and supporters applies not only to the compelled disclosure of campaign contributors but also to the compelled disclosure of recipients of campaign disbursements.
Ill
The District Court properly applied the Buckley test to the facts of this case. The District Court found “substantial evidence of both governmental and private hostility toward and harassment of SWP members and supporters.” Appellees introduced proof of specific incidents of private and government hostility toward the SWP and its members within the four years preceding the trial. These incidents, many of which occurred in Ohio and neighboring States, included threatening phone calls and hate mail, the burning of SWP literature, the destruction of SWP members’ property, police harassment of a party candidate, and the firing of shots at an SWP office. There was also evidence that in the 12-month period before trial 22 SWP members, including 4 in Ohio, were fired because of their party membership. Although appellants contend that two of the Ohio firings were not politically motivated, the evidence amply supports the District Court’s conclusion that “private hostility and harassment toward SWP members make it difficult for them to maintain employment.”
The District Court also found a past history of Government harassment of the SWP. FBI surveillance of the SWP was “massive” and continued until at least 1976. The FBI also conducted a counterintelligence program against the SWP and the Young Socialist Alliance (YSA), the SWP’s youth organization. One of the aims of the “SWP Disruption Program” was the dissemination of information designed to impair the ability of the SWP and YSA to function. This program included “disclosing to the press the criminal records of SWP candidates, and sending anonymous letters to SWP members, supporters, spouses, and employers.” Until at least 1976, the FBI employed various covert techniques to obtain information about the SWP, including information concerning the sources of its funds and the nature of its expenditures. The District Court specifically found that the FBI had conducted surveillance of the Ohio SWP and had interfered with its activities within the State. Government surveillance was not limited to the FBI. The United States Civil Service Commission also gathered information on the SWP, the YSA, and their supporters, and the FBI routinely distributed its reports to Army, Navy and Air Force Intelligence, the United States Secret Service, and the Immigration and Naturalization Service.
The District Court properly concluded that the evidence of private and Government hostility toward the SWP and its members establishes a reasonable probability that disclosing the names of contributors and recipients will subject them to threats, harassment, and reprisals. There were numerous instances of recent harassment of the SWP both in Ohio and in other States. There was also considerable evidence of past Government harassment. Appellants challenge the relevance of this evidence of Government harassment in light of recent efforts to curb official misconduct. Notwithstanding these efforts, the evidence suggests that hostility toward the SWP is ingrained and likely to continue. All this evidence was properly relied on by the District Court. Buckley, 424 U. S., at 74.
IV
The First Amendment prohibits a State from compelling disclosures by a minor party that will subject those persons identified to the reasonable probability of threats, harassment, or reprisals. Such disclosures would infringe the First Amendment rights of the party and its members and supporters. In light of the substantial evidence of past and present hostility from private persons and Government officials against the SWP, Ohio’s campaign disclosure requirements cannot be constitutionally applied to the Ohio SWP.
The judgment of the three-judge District Court for the Southern District of Ohio is affirmed.
It is so ordered.
The plaintiff class as eventually certified includes all SWP candidates for political office in Ohio, their campaign committees and treasurers, and people who contribute to or receive disbursements from SWP campaign committees. The defendants are the Ohio Secretary of State and other state and local officials who administer the disclosure law.
Section 3517.10 provides in relevant part:
“(A) Every campaign committee, political committee, and political party which made or received a contribution or made an expenditure in connection with the nomination or election of any candidate at any election held in this state shall file, on a form prescribed under this section, a full, true, and itemized statement, made under penalty of election falsification, setting forth in detail the contributions and expenditures ....
“(B) Each statement required by division (A) of this section shall contain the following information:
“(4) A statement of contributions made or received, which shall include:
“(a) The month, day, and year of the contribution;
“(b) The full name and address of each person, including any chairman or treasurer thereof if other than an individual, from whom contributions are received. The requirement of filing the full address does not apply to any statement filed by a state or local committee of a political party, to a finance committee of such committee, or to a committee recognized by a state or local committee as its fund-raising auxiliary.
“(c) A description of the contribution received, if other than money;
“(d) The value in dollars and cents of the contribution;
“(e) All contributions and expenditures shall be itemized separately regardless of the amount except a receipt of a contribution from a person in the sum of twenty-five dollars or less at one social or fund-raising activity. An account of the total contributions from each such social or fund-raising activity shall be listed separately, together with the expenses incurred and paid in connection with such activity. No continuing association which makes a contribution from funds which are derived solely from regular dues paid by members of the association shall be required to list the name or address of any members who paid such dues.
“(5) A statement of expenditures which shall include:
“(a) The month, day, and year of expenditure;
“(b) The full name and address of each person to whom the expenditure was made, including any chairman or treasurer thereof if a committee, association, or group of persons;
“(c) The object or purpose for which the expenditure was made;
“(d) The amount of each expenditure.
“(C) . . .
“. . . All such statements shall be open to public inspection in the office where they are filed, and shall be carefully preserved for a period of at least six years.”
If the candidate is running for a statewide office, the statement shall be filed with the Ohio Secretary of State; otherwise, the statement shall be filed with the appropriate county board of elections. § 3517.11(A).
§ 3517.10(B)(5)(c).
The order restrained various state officials from “applying to or enforcing against plaintiffs ... the disclosure provisions of the Ohio Campaign Expense Reporting Law and the penalty provision of that law, the effect of which will be to postpone the beginning of any possible period of violation of that law by plaintiffs, . . . until such time as the case is decided by the three judge panel, which is hereby convened.” (Citations omitted.)
Apparently none of the parties throughout the 6-year period questioned whether the extended duration of the temporary restraining order conformed to the requirements of Rule 65(b) of the Federal Rules of Civil Procedure.
Because it invalidated the Ohio statute as applied to the Ohio SWP, the District Court did not decide appellees’ claim that the statute was facially invalid. The Ohio statute requires disclosure of contributions and expenditures no matter how small the amount. Ohio Rev. Code Ann. § 3517.10(B)(4)(e) (Supp. 1981). Appellees contended that the absence of a monetary threshold rendered the statute facially invalid since the compelled disclosure of nominal contributions and expenditures lacks a substantial nexus with any claimed government interest. See Buckley v. Valeo, 424 U. S., at 82-84.
The District Court’s opinion is unreported.
Title 2 U. S. C. §§432, 434, and 438 (1976 ed., Supp. V) require each political committee to keep detailed records of both contributions and expenditures, including the names of campaign contributors and recipients of campaign disbursements, and to file reports with the Federal Election Commission which are made available to the public.
The government interest in enforcing limitations is completely inapplicable in this case, since the Ohio law imposes no limitations on the amount of campaign contributions.
We believe that the question whether the Buckley test applies to the compelled disclosure of recipients of expenditures is properly before us. Throughout this litigation Ohio has maintained that it can constitutionally require the SWP to disclose the names of both campaign contributors and recipients of campaign expenditures. In invalidating both aspects of the Ohio statute as applied to the SWP, the District Court necessarily held (1) that the Buckley standard, which permits flexible proof of the reasonable probability of threats, harassment, or reprisals, applies to both contributions and expenditures, and (2) that the evidence was sufficient to show a reasonable probability that disclosure would subject both contributors and recipients to public hostility and harassment. In their jurisdictional statement, appellants appealed from the entire judgment entered below and presented the following question for review:
“Whether, under the standards set forth by this Court in Buckley v. Valeo, 424 U. S. 1 (1976), the provisions of Sections 3517.10 and 3517.11 of the Ohio Revised Code, which require that the campaign committee of a candidate for public office file a report disclosing the full names and addresses of persons making contributions to or receiving expenditures from such committee, are consistent with the right of privacy of association guaranteed by the First and Fourteenth Amendments of the Constitution of the United States when applied to the committees of candidates of a minority party which can establish only isolated instances of harassment directed toward the organization or its members within Ohio during recent years.” Juris. Statement i.
We think that the correctness of both holdings of the District Court is “fairly included” in the question presented in the jurisdictional statement. This Court’s Rule 15.1(a). See Procunier v. Navarette, 434 U. S. 555, 559, n. 6 (1978) (“[0]ur power to decide is not limited by the precise terms of the question presented”).
This is one of three government interests identified in Buckley. Appellants do not contend that the other two interests, enhancing voters’ ability to evaluate candidates and enforcing contribution limitations, support the disclosure of the names of recipients of campaign disbursements.
The partial dissent suggests that the government interest in the disclosure of recipients of expenditures is not significantly diminished in the case of minor political parties, since parties with little likelihood of electoral success might nevertheless finance improper campaign activities merely to gain recognition. Post, at 109-110. The partial dissent relies on Justice White’s separate opinion in Buckley, in which he pointed out that “unlimited money tempts people to spend it on whatever money can buy to influence an election.” 424 U. S., at 265 (emphasis in original).
An examination of the context in which Justice White made this observation indicates precisely why the state interest here is insubstantial. Justice White was addressing the constitutionality of ceilings on campaign expenditures applicable to all candidates. His point was that such ceilings “could play a substantial role in preventing unethical practices.” Ibid. In the case of minor parties, however, their limited financial resources serve as a built-in expenditure ceiling which minimizes the likelihood that they will expend substantial amounts of money to finance improper campaign activities. See id., at 71. For example, far from having “unlimited money,” the Ohio SWP has had an average of roughly $15,000 available each year to spend on its election efforts. Most of the limited resources of minor parties will typically be needed to pay for the ordinary fixed costs of conducting campaigns, such as filing fees, travel expenses, and the expenses incurred in publishing and distributing campaign literature and maintaining offices. Thus Justice White’s observation that “financing illegal activities is low on the campaign organization’s priority list,” id., at 265, is particularly apposite in the case of minor parties. We cannot agree, therefore, that minor parties are as likely as major parties to make significant expenditures in funding dirty tricks or other improper campaign activities. See post, at 110. Moreover, the expenditure by minor parties of even a substantial portion of their limited funds on illegal activities would be unlikely to have a substantial impact.
Furthermore, the mere possibility that minor parties will resort to corrupt or unfair tactics cannot justify the substantial infringement on First Amendment interests that would result from compelling the disclosure of recipients of expenditures. In Buckley, we acknowledged the possibility that supporters of a major party candidate might channel money into minor parties to divert votes from other major party contenders, 424 U. S., at 70, and that, as noted by the partial dissent, post, at 110, and n. 5, occasionally minor parties may affect the outcomes of elections. We thus recognized that the distorting influence of large contributors on elections may not be entirely absent in the context of minor parties. Nevertheless, because we concluded that the government interest in disclosing contributors is substantially reduced in the case of minor parties, we held that minor parties are entitled to an exemption from requirements that contributors be disclosed where they can show a reasonable probability of harassment. 424 U. S., at 70. Because we similarly conclude that the government interest in requiring the disclosure of recipients of expenditures is substantially reduced in the ease of minor parties, we hold that the minor-party exemption recognized in Buckley applies to compelled disclosure of expenditures as well.
For example, the expenditure statements filed by the SWP contain a substantial percentage of entries designated as per diem, travel expenses, room rental, and so on. The Ohio statute makes it particularly easy to identify these individuals since it requires disclosure of the purpose of the disbursements as well as the identity of the recipients. Ohio Rev. Code Ann. §3517.10(B)(5)(c) (Supp. 1981).
“ ‘[Financial transactions can reveal much about a person’s activities, associations, and beliefs.’” Buckley v. Valeo, 424 U. S., at 66, quoting California Bankers Assn. v. Shultz, 416 U. S. 21, 78-79 (1974) (Powell, J., concurring). The District Court found that the Federal Bureau of Investigation (FBI) at least until 1976 routinely investigated the financial transactions of the SWP and kept track of the payees of SWP checks.
The fact that some or even many recipients of campaign expenditures may not be exposed to the risk of public hostility does not detract from the serious threat to the exercise of First Amendment rights of those who are so exposed. We cannot agree with the partial dissent’s assertion that disclosures of disbursements paid to campaign workers and supporters will not increase the probability that they will be subjected to harassment and hostility. Post, at 111-112. Apart from the fact that individuals may work for a candidate in a variety of ways without publicizing their involvement, the application of a disclosure requirement results in a dramatic increase in public exposure. Under Ohio law a person’s affiliation with the party will be recorded in a document that must be kept open to inspection by any one who wishes to examine it for a period of at least six years. Ohio Rev. Code Ann. § 3517.10(C) (Supp. 1981). The preservation of unorthodox political affiliations in public records substantially increases the potential for harassment above and beyond the risk that an individual faces simply as a result of having worked for an unpopular party at one time.
See, e. g., Socialist Workers Party v. Attorney General, 458 F. Supp. 895, 904 (SDNY 1978) (FBI interference with SWP travel arrangements and speaker hall rental), vacated on other grounds, 596 F. 2d 58 (CA2), cert. denied, 444 U. S. 903 (1979).
Moreover, it would be hard to think of many instances in which the state interest in preventing vote-buying and improper campaign activities would be furthered by the disclosure of payments for routine commercial services.
The District Court was quoting from Part I of the Final Report of Special Master Judge Breitel in Socialist Workers Party v. Attorney General of the United States, 73 Civ. 3160 (TPG) (SDNY, Feb. 4, 1980), detailing the United States Government’s admissions concerning the existence and nature of the Government surveillance of the SWP.
The District Court also found the following:
“The Government possesses about 8,000,000 documents relating to the SWP, YSA . . . and their members. . . . Since 1960 the FBI has had about 300 informants who were members of the SWP and/or YSA and 1,000 nonmember informants. Both the Cleveland and Cincinnati FBI field offices had one or more SWP or YSA member informants. Approximately 21 of the SWP member informants held local branch offices. Three informants even ran for elective office as SWP candidates. The 18 informants whose files were disclosed to Judge Breitel received total payments of $358,648.38 for their services and expenses.” (Footnotes omitted.)
After reviewing the evidence and the applicable law, the District Court concluded: “[T]he totality of the circumstances establishes that, in Ohio, public disclosure that a person is a member of or has made a contribution to the SWP would create a reasonable probability that he or she would be subjected to threats, harassment or reprisals.” The District Court then enjoined the compelled disclosures of either contributors’ or recipients’ names. Although the District Court did not expressly refer in the quoted passage to disclosure of the names of recipients of campaign disbursements, it is evident from the opinion that the District Court was addressing both contributors and recipients.
Some of the recent episodes of threats, harassment, and reprisals against the SWP and its members occurred outside of Ohio. Anti-SWP occurrences in places such as Chicago (SWP office vandalized) and Pittsburgh (shot fired at SWP building) are certainly relevant to the determination of the public’s attitude toward the SWP in Ohio. In Buckley we stated that “[n]ew parties that have no history upon which to draw may . . . offer evidence of reprisals and threats directed against individuals or organizations holding similar views.” 424 U. S., at 74. Surely the Ohio SWP may offer evidence of the experiences of other chapters espousing the same political philosophy. See 1980 Illinois Socialist Workers Campaign v. State of Illinois Board of Elections, 531F. Supp. 915, 921 (ND Ill. 1981).
Appellants point to the lack of direct evidence linking the Ohio statute’s disclosure requirements to the harassment of campaign contributors or recipients of disbursements. In Buckley, however, we rejected such “unduly strict requirements of proof” in favor of “flexibility in the proof of injury.” 424 U. S., at 74. We thus rejected requiring a minor party to “come forward with witnesses who are too fearful to contribute but not too fearful to testify about their fear” or prove that “chill and harassment [are] directly attributable to the specific disclosure from which the exemption is sought.” Ibid. We think that these considerations are equally applicable to the proof required to establish a reasonable probability that recipients will be subjected to threats and harassment if their names are disclosed. While the partial dissent appears to agree, post, at 112-113, n. 7, its “separately focused inquiry,” post, at 112, and n. 7, in reality requires evidence of chill and harassment directly attributable to the expenditure-disclosure requirement.
Question: Was the case heard by a three-judge federal district court?
A. Yes
B. No
Answer: |
songer_subevid | D | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent." Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. Robert OWENS, Eugene Howell, Joseph Lyle and Zenobia Owens, a/k/a Zenobia McKinley, Defendants-Appellants.
No. 14681.
United States Court of Appeals Seventh Circuit.
June 2, 1965.
Rehearing Denied June 29, 1965.
Stephen Love, Ellis E. Reid, George N. Leighton, Chicago, 111., for appellant.
Edward V. Hanrahan, U. S. Atty., Gerald M. Werksman, Asst. U. S. Atty., Chicago, 111., John Peter Lulinski, John Powers Crowley, Asst. U. S. Attys., of counsel, for appellee.
Before ENOCH, CASTLE and KILEY, Circuit Judges.
KILEY, Circuit Judge.
Defendants appeal from their convictions, by a jury, of narcotics laws violations : Lyle under two substantive counts, and all under a conspiracy count. We affirm.
Defendants contend that the evidence was not sufficient to sustain the verdicts finding them members in, and guilty of, the general conspiracy charged in the indictment. On this contention we must view the evidence and draw the inferences therefrom in the light most favorable to the Government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1941); United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), cert. denied 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956).
There is ample evidence from which the jury could infer that Eugene Howell and Robert Owens were at the top of a heroin hierarchy and that the narcotics passed from them down through “Red” Thomas and Joseph Lyle — all aided by Zenobia Owens — to the addicts at the base, and that they all knowingly joined in the unlawful conspiracy charged in the indictment. That the members had varied duties does not change the fact that they all acted in furtherance of the same conspiracy. United States v. Micele, 327 F.2d 222, 225 (7th Cir. 1964); United States v. Wenzel, 311 F.2d 164 (4th Cir. 1962); Poliafico v. United States, 237 F.2d 97 (6th Cir. 1956), cert. denied 352 U.S. 1025, 77 S.Ct. 590, 1 L.Ed.2d 597 (1957).
There is evidence that Marvin Moses in looking for a source of narcotics was introduced by Owens to “Red” Thomas; that when Moses called the number given him by Thomas, Zenobia Owens would take the messages for Thomas; that Thomas sold narcotics to Moses; that Zenobia Owens, at least once, picked up money for Thomas at the place where the money and narcotics were customarily exchanged; that Moses later became an informer and introduced Agent Gibson to Thomas, who sold Gibson heroin; that Howell and Owens were arrested together on the Pennsylvania Turnpike and Howell was found in possession of narcotics ; that Howell admitted to the Pennsylvania police that he was returning from a trip to New York to obtain narcotics; that following the arrests Thomas told Moses he could not do anything for him then because “his men” had been arrested in Pennsylvania; and that Thomas later told Gibson that “his people * * * had gotten popped” on the Turnpike but that the stuff that was found did not belong to “his man, Robert.”
There is evidence also that Lyle sold a small sample of heroin to Agent Dayle and told him there would be a delay in supplying larger quantities because “my people” were arrested on the Pennsylvania Turnpike, but that he would have heroin in quantity for Dayle “as soon as they get back from Pennsylvania”; and that Lyle also said “they found the stuff on Gene.”
The evidence is further that Moses brought together Dayle and Owens, who said his “partner” and he “got busted along the turnpike”; that Owens gave Dayle the same telephone number given to Gibson by Thomas; that Owens and Thomas were seen together in a night club and that Thomas, after making sales of narcotics, went to a house where he was let in by Owens; that Owens drove Lyle’s car on several occasions; that Thomas gave Gibson a second telephone number to use; and that Owens was the owner of the building in which were located the two telephones involved in the transactions, one registered to Zenobia Owens and the other to Lily Starkey, who owned the car in which Owens and Howell were arrested.
We think this evidence was clearly sufficient to support the jury’s verdict.
Defendants challenge the rulings of the district court in denying motions to suppress heroin seized from Howell by the Pennsylvania State Police following his arrest there and in refusing to suppress evidence seized from the residences of Howell and Zenobia Owens at the time of their arrests.
Howell was driving with Owens and one Hightower in a new Cadillac convertible on the Pennsylvania Turnpike when he was arrested for speeding. An on-the-spot interrogation disclosed the suspicious circumstance that the car was registered in the name of Lily Starkey, whom Howell said he did not know and from whom neither Owens nor Howell could show permission to drive the car. The Pennsylvania officer, suspecting that the car was stolen, questioned Owens about the contents of the trunk, which Owens opened, revealing three suitcases. Owens disclaimed ownership of one of the suitcases, which was unlocked, and when opened by the officer contained, in open view, a crude hypodermic needle of a type used by addicts. Searching further in the suitcase the officer found a burnt spoon with a bent handle, also an addict’s tool, and a loaded revolver. A search of Howell at the police station disclosed in his shoe a package of nearly pure heroin.
It is clear from the facts in the record that the arrest for speeding was not “a mere excuse to search” for narcotics as in Taglavore v. United States, 291 F.2d 262, 265 (9th Cir. 1961), and that the arrest was valid under Pennsylvania law, which controls that question. United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed. 210 (1948); United States v. Viale, 312 F.2d 595, 599 (2d Cir.) cert. denied 373 U.S. 903, 83 S.Ct. 1291, 10 L.Ed.2d 199 (1963). The surrounding circumstances justified the arresting officer in suspecting that he was dealing with a situation more serious than routine speeding and he had reasonable grounds for believing that the car might be stolen. There is nothing to indicate that the officer suspected the presence of any narcotics or other violation until the suitcase was opened, disclosing the needle. Considering the situation which faced the officer, his attempts to determine whether the car was stolen were not unreasonable or violative of the Fourth Amendment, and the evidence which was turned up was not the fruit of any “poisonous tree.”
The arrests of Howell and Zenobia Owens in Chicago were concededly valid. The question is whether the district court erroneously ruled that the attendant searches were not unreasonable under the Fourth Amendment. Both Howell and Zenobia Owens were arrested on May 6, 1963. At Howell’s home two books lying in open view were seized, each containing the second telephone number given to Gibson by “Red” Thomas, and the notation “Red.” In the residence of Zenobia Owens a slip of paper bearing the same number and notation “Red” was found in her purse in the bedroom.
Defendants argue that the books and slip of paper were seized unlawfully in a general search “solely for evidence.” There is no merit in the argument. The items were seized pursuant to a lawful arrest where the officers were looking for “Contraband, fruits of the crime,” as the arresting officer testified. The items seized were closely related to the means of communication by telephone essential to the successful conduct of the conspiracy and fall within the class of instrumentalities of crime properly subject to seizure incident to arrest. Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed.2d 1399 (1947); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); United States v. Boyette, 299 F.2d 92 (4th Cir.), cert. denied sub nom. Mooring v. United States, 369 U.S. 844, 82 S.Ct. 875, 7 L.Ed. 2d 848 (1962).
Lyle was charged with selling heroin on February 15, 1963 to Agent Dennis Dayle, and with fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment of unlawfully imported heroin on the same day. The evidence taken most favorably for the Government, United States v. Iacullo, 226 F.2d 788, 795 (7th Cir. 1955), substantially proves the offenses charged.
Lyle testified in support of his defense of entrapment that his friend and former attorney, who had become a Government informer, by persistent importuning arranged the meeting with Dayle. Dayle’s testimony shows that Lyle readily agreed to the transaction and that he tried to impress Dayle with his connection with Owens and Howell, and spoke of doing business “in a million dollar way.” In this testimony and that of Agent Cook, in rebuttal, of sales of narcotics by Lyle to him in April 1962, the jury had sufficient basis to find that Lyle was predisposed to the transaction and was not entrapped.
Defendants contend that Cook’s testimony was improper and prejudicial to them since the testimony was of transactions unconnected with the charges in the indictment. The testimony was proper as an inquiry into Lyle’s predisposition to commit the crime, Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and the court’s instructions to the jury properly limited the rebuttal testimony to Lyle’s defense of entrapment. The other defendants, therefore, were not prejudiced.
The judgments are affirmed.
. Charging a sale of heroin to a federal narcotics agent in violation of 26 U.S.C. § 4705(a) and fraudulently and knowingly receiving, concealing and facilitating the transportation and concealment, after unlawful importation, of a quantity of heroin, knowing it to have been unlawfully imported into the United States, in violation of 21 U.S.C. § 174.
. Charging conspiracy to violate 21 U.S.C. § 174.
. The Pennsylvania state policeman clocked the speed of the car as being in excess of the 70 m. p. h speed limit of Title 75 Pennsylvania Statutes, Section 1002, and he made the arrest for speeding pursuant to his authority under Title 71 Pennsylvania Statutes, Section 252.
. “The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize tilings connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody is not to be doubted.” Harris v. United States, 331 U.S. 145, 151, 67 S.Ct. 1098, 1101 (1947), quoting Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 70 L.Ed. 145 (1925).
Question: Did the court's interpretation of the substantial evidence rule support the government? For example, "such evidence as a reasonable mind might accept as adequate to support a conclusion" or "more than a mere scintilla". This issue is present only when the court indicates that it is using this doctrine, rather than when the court is merely discussing the evidence to determine whether the evidence supports the position of the appellant or respondent.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
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.
Robert E. IANNELLI and Dolores Iannelli, his wife v. H. Alan LONG, District Director, Pittsburgh, Pennsylvania, and Johnnie M. Walters, Commissioner of Internal Revenue of the United States of America, successor to Harold T. Swartz, Appellants.
No. 72-1418.
United States Court of Appeals, Third Circuit.
Argued Feb. 27, 1973.
Decided June 29, 1973.
Certiorari Denied Nov. 19, 1973.
See 94 S.Ct. 541.
Robert E. Lindsay, Tax Div., Dept. of Justice, Washington, D. C., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Meyer Rothwacks, Chief Appellate Section, John P. Burke, John M. Brant, Attys. Tax Div. Dept. of Justice, Richard L. Thornburgh, Pittsburgh, Pa., of counsel, for appellants.
James E. McLaughlin, McArdle, McLaughlin, Paletta & McVay, Pittsburgh, Pa., Charles Alan Wright, Austin, Tex., William A. Camp, of counsel, for appel-lees.
Before HASTIE and ALDISERT, Circuit Judges, and DITTER, District Judge.
OPINION OF THE COURT
HASTIE, Circuit Judge.
The order from which the government has taken this appeal enjoined the District Director and the Commissioner of Internal Revenue from seizing or selling, until further order of the court, any property of Robert Iannelli or his wife Dolores to satisfy jeopardy assessments against them for alleged failure to pay overdue federal wagering taxes. In its opinion, W.D.Pa.1971, 333 F.Supp. 407, the court explained that the purpose of this temporary injunction was to protect the taxpayers against possible necessity for self incrimination if, in normal course, they should undertake to establish in a civil suit a right to refund of sums collected pursuant to these assessments while criminal proceedings growing out of their alleged wagering business were pending. The government contends that the district court lacked jurisdiction to grant this injunctive relief because section 7421(a) of the Internal Revenue Code of 1954, U.S.C. § 7421(a), provides, with irrelevant exceptions, that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person”.
The parties agree that section 7421(a) is comprehensive and that on its face it seems to prohibit such a suit and such an injunction as we have here. Cf. Enoch v. Williams Packing & Navigation Co., 1962, 370 U.S. 1, 82 S.Ct. 1125, 8 L.Ed.2d 292; Johnson v. Wall, 4th Cir. 1964, 329 F.2d 149. It reflects an evident purpose to protect the public revenue from court imposed delays in the collection of taxes, leaving aggrieved taxpayers to sue for refunds of any amounts improperly collected. Thus, the section presupposes a bona fide attempt of the government to collect revenue. Therefore, if a levy on property is in formal guise an effort to collect taxes but in fact is only a device for harassing and punishing a wrongdoer without honest anticipation that the levy may yield money owed for taxes, it is arguable that a suit to restrain the tax collector’s enterprise is not in reality a suit to restrain the collection of taxes. Accordingly, it is relevant to consider whether we have here a bona fide effort to collect revenue.
The taxpayers do not dispute that they may owe the government substantial sums of overdue taxes, though they dispute the claimed amount of their total indebtedness. Moreover, at the time of the jeopardy assessment and resultant levies the taxpayers, who had not filed a complete inventory of their possessions, appeared to be the owners of mortgaged income producing rental property, a furnished home, a life insurance policy, bank accounts, automobiles and the contents of a safe deposit box. It is not disputed that in the aggregate the levies on their property were intended to and probably would yield substantial revenue, although in the district court counsel for the government conceded that at least some of the real property was so heavily mortgaged that a forced sale would not in likelihood benefit the government.
Though one of the government’s objectives in this undertaking to seize all of the taxpayers’ discoverable property may have been to put economic pressure upon persons believed to be engaged in large scale criminal activities, the jeopardy assessment and consequent levies also appear to have been bona fide and potentially productive attempts to collect revenue. And bona fide efforts to collect taxes through lawful procedure are the very undertakings that Congress has protected through the enactment of section 7421(a) against frustration or delay by litigation.
The district court was understandably and properly concerned that the taxpayers not be forced to choose between forfeiting their property without contesting the tax assessments on the one hand and, on the other, incriminating themselves by admitting in a tax refund suit that they had been engaged in an illicit enterprise for which they already had been indicted. But a tax refund claim and complaint adequate to toll the running of the statute of limitations could be drafted and filed without damaging admissions concerning the details or even the nature of taxpayers’ business. And further proceedings in such a suit would properly be deferred on the plaintiffs’ request until the conclusion of related criminal proceedings against them or until the running of all applicable periods of limitations on prosecutions. Cf. United States v. Kordel, 1970, 397 U.S. 1, 12 note 27, 90 S.Ct. 763, 25 L. Ed.2d 1; De Vita v. Sills, 3d Cir. 1970, 422 F.2d 1172, 1181. And in the unlikely case of an arbitrary refusal of a district judge to grant such a stay, the abuse of discretion would be reviewable in this court.
For these reasons we have concluded that section 7421(a) of the Internal Revenue Code prohibits the relief granted to the taxpayers in this case.
The judgment will be reversed.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_casesource | 027 | 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.
POLLARD v. UNITED STATES.
No. 38.
Argued December 3, 1956.
Decided February 25, 1957.
Bennett Boskey, acting under appointment by the Court, 350 U. S. 980, argued the cause and filed a brief for petitioner.
Philip Elman argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Olney, Ralph S. Spritzer, Beatrice Rosenberg and Robert G. Maysack.
Mr. Justice Reed
delivered the opinion of the Court.
This case concerns the validity of a sentence imposed on petitioner in September 1954. On September 8, 1952, petitioner pleaded guilty in the United States District Court for the District of Minnesota to an information charging him with the unlawful taking and embezzlement of a United States Treasury check in violation of 18 U. S. C. § 1702. The district judge deferred imposition of sentence pending presentence investigation. On October 3, 1952, petitioner appeared before the trial judge at 10 a. m. for sentencing. He was then serving a sentence in a Minnesota state prison, from which he was eligible for parole the following month. The judge stated that the probation report showed that petitioner had taken an active interest in the Alcoholics Anonymous organization in prison, and petitioner told him that he contemplated continuing that interest when he was released from the state prison. The judge added that he was impressed by the fact that petitioner, who had stolen the check after a two-week drinking spree, had revealed what he had done to an officer of Alcoholics Anonymous and to the FBI without any effort to minimize the offense. He advised petitioner to join Alcoholics Anonymous immediately on his release from the state prison. He then said:
“. . . if you want to revert to drinking, you will be back here again because you will commit some federal offense, and I won’t be talking to you this way if you are ever before me again.
“So, good luck to you and I hope the parole board will give you an opportunity.
“That is all.”
The judge then turned to other business.
It is clear that no explicit reference to petitioner’s sentence had been made during this colloquy. But before the court adjourned at 10:30 a. m., when petitioner apparently had left the courtroom, an assistant United States District Attorney handling the matter said:
“Going back to the matter of Thomas E. Pollard who appeared this morning — I didn’t quite understand that clearly — is there to be a probationary period after his release from Stillwater, or any type of sentencing?
“The Court: It is to commence at the expiration of sentencing at Stillwater.
“Mr. Hachey: Probation to commence after expiration of his sentencing at Stillwater- — for how long?
“The Court: Three years.”
A judgment and order of probation was then entered suspending imposition of sentence and placing petitioner on probation for that term. The Government concedes that the judgment and order was invalid because of petitioner’s absence from the courtroom when probation was imposed. Fed.'Rules Crim. Proc., 43.
Petitioner did not receive a copy of this order, despite a direction of the court, but learned of the probation from state prison officials the following month when he was paroled. On his release he began reporting to the federal probation officer. Nearly two years later, on September 1, 1954, the trial judge issued a bench warrant for petitioner’s arrest on the basis of the probation officer’s report that petitioner had violated the terms of his probation. Petitioner was arrested and brought before the court on September 21, 1954. After waiver of counsel by-petitioner, the following occurred at the hearing:
“The Court: What I am going to do in your case, because of the record, is to sentence you in the first instance: It’s the judgment of the Court that you be confined in an institution to be selected by the Attorney General of the United States for a period of two years. That’s all.
“Mr. Evarts [Asst. U. S. Attorney]: Now, Your Honor, as you recall, the record shows that he was, sentence was imposed on October 3, 1952, and I would suggest to the Court that an Order be made setting aside the judgment and commitment that was entered at that time so that the record will now truly reflect the status of the events.
“The Court: All right.”
A formal judgment and commitment was then entered, sentencing petitioner to two years’ imprisonment and setting aside the judgment and order of probation entered on October 3,1952.
Petitioner’s motion to vacate this sentence under 28 U. S. C. § 2255 was based upon a misapprehension of the basis for the sentence of 1954. He contended that, since his 1952 probation sentence was invalid, his 1954 prison sentence was also invalid because it was for probation violation. Actually, of course, it was punishment for the embezzlement. The District Court denied the motion on the ground that “[Petitioner] was initially sentenced upon September 21, 1954, and the files and records in the case conclusively show that said judgment was within the jurisdiction of the court and the sentence imposed was valid and in accordance with law.” Petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis. The District Court denied this motion “in all respects.” Petitioner then filed a motion for leave to appeal in forma pauperis in the Court of Appeals for the Eighth Circuit. After examination of the record in the District Court, the Court of Appeals denied this motion without opinion. This Court granted leave to proceed in forma pauperis, and, deeming the issues as to the validity of the 1954 sentence of importance in the proper administration of the criminal law, granted certio-rari. 350 U. S. 965. We also appointed counsel for petitioner. 350 U. S. 980.
Petitioner was released from federal prison in March 1956, after his petition for certiorari had been granted. He relies on United States v. Morgan, 346 U. S. 502, 512-513, and Fiswick v. United States, 329 U. S. 211, 220-223, as meeting the question of mootness that this fact suggests. Those cases are not entirely on all fours with this one, since petitioner is challenging the legality not of any determination of guilt, but instead of the sentence imposed. But those cases recognize that convictions may entail collateral legal disadvantages in the future. Appeals from convictions are allowed only after sentences. Fed. Rules Crim. Proc., 37. The determination of guilt and the sentence are essential for imprisonment. We think that petitioner’s reference to the above cases sufficiently satisfies the requirement that review in this Court will be allowed only where its judgment will have some material effect. Cf. St. Pierre v. United States, 319 U. S. 41. The possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.
The petition for certiorari, pro se, sought reversal of the order of the Court of Appeals denying petitioner’s motion for appeal in forma pauperis and also release from his then incarceration. Petitioner contended that the 1954 sentence was unconstitutional because it was imposed for violation of the invalid probation order.
Petitioner now, in his brief, claims that the trial judge determined on October 3, 1952, that no imprisonment and no probation should be imposed, and that consequently the imposition of sentence in September 1954 violated the Double Jeopardy Clause of the Fifth Amendment. He claims alternatively that the imposition of sentence in September 1954 in the circumstances under which it took place constituted a serious departure from proper standards of criminal law administration and violated his rights to a speedy trial under the Sixth Amendment and to due process of law under the Fifth Amendment. The record now before us adequately states the facts for a final determination of the basic issues. Since the Court of Appeals’ denial of petitioner’s appeal involved an adjudication of the merits, i. e., that there was no adequate basis for allowance of appeal in forma pauperis, we think the validity of the 1954 sentence for embezzlement should now be decided. And we conclude that it is proper that we deal with the questions as to legality of the 1954 sentence that petitioner now raises, although, had petitioner been represented by counsel in the courts below and upon his petition for certiorari, we might well have considered those questions neither preserved below nor raised in the petition. Cf. Price v. Johnston, 334 U. S. 266, 292.
I. The contention that the Double Jeopardy Clause of the Fifth Amendment forbids the 1954 sentence may be shortly answered. It depends upon the assertion that the trial court determined in 1952 that petitioner “should not be subject to imprisonment or probation” on his plea of guilty to embezzlement. Without such a determination, there could not be double jeopardy. The transcript of evidence, all pertinent parts of which are quoted in the first part of this opinion, shows no such determination. The petitioner cites no words upon which he relies. The only sentence that was entered at the 1952 hearing was the one of probation, admittedly invalid because of petitioner’s absence.
It is clear to us, too, that the District Court did not by implication intend to acquit or dismiss the defendant. Within the morning session of court, when his failure to make explicit the sentence was called to his attention, the judge directed entry of the order suspending sentence and instituting probation. There is no occasion here for distinguishing between an oral pronouncement of sentence and its entry on the records of the court. Cf. Spriggs v. United States, 225 F. 2d 865, 868. Nor does the situation call for a determination of the correctness of petitioner’s assertion that a federal judge has power, under a statute without minimum penalties, to release or discharge an accused absolutely after conviction or plea of guilty without sentence, suspension of sentence or grant of probation. It is unfortunate for inadvertencies to lead to confusion in criminal trials, but such misunderstanding as petitioner may have drawn from the occurrences at the 1952 sentence is not a basis for vacating the later sentence. The mishap of the prisoner’s absence when the first sentence was pronounced cannot be a basis for vacating the 1954 sentence here involved. If the probation sentence had been valid, petitioner on its violation would have been subject to the sentence actually imposed in 1954. 18 U. S. C. § 3653; Roberts v. United States, 320 U. S. 264, 268.
II. Petitioner’s other contentions relate to violations of constitutional rights of speedy trial and due process, and significant departure from proper standards of criminal law administration. It is not disputed that a court has power to enter sentence.at a succeeding term where a void sentence had been previously imposed. Miller v. Aderhold, 288 U. S. 206; cf. Bozza v. United States, 330 U. S. 160, 166. To hold otherwise would allow the guilty to escape punishment through a legal accident.
Petitioner argues that the 1954 sentence violated his right under the Sixth Amendment of the Constitution to a “speedy” trial. He takes this position on the assumption that the case remained, as we have held above, uncompleted after the 1952 trial. We will assume arguendo that sentence is part of the trial for purposes of the Sixth Amendment. The time for sentence is of course not at the will of the judge. Rule 32 (a) of the Federal Rules of Criminal Procedure requires the imposition of sentence “without unreasonable delay.”
Whether delay in completing a prosecution such as here occurred amounts to an unconstitutional deprivation of rights depends upon the circumstances. See, e. g., Beavers v. Haubert, 198 U. S. 77, 87; Frankel v. Woodrough, 7 F. 2d 796, 798. The delay must not be purposeful or oppressive. It was not here. It was accidental and was promptly remedied when discovered. Nothing in the record indicates any delay in sentencing after discovery of the 1952 error. From the issuance of the warrant in September 1954 for the violation of probation, the normal inference would be that the error was still unknown to the court, although petitioner states he had known of it since November 1952. We do not have in this case circumstances akin to those in United States v. Provoo, 17 F. R. D. 183, 201, aff’d mem. 350 U. S. 857, where Judge Thomsen found the delay “caused by the deliberate act of the government” which the accused attempted to correct. The same situation existed in United States v. McWilliams, 82 U. S. App. D. C. 259, 163 F. 2d 695, where the Government’s failure to be ready for trial persisted for nearly two years despite defendant’s motions for trial. In these circumstances, we do not view the lapse of time before correction of the error as a violation of the Sixth Amendment or of Rule 32 (a). Error in the course of a prosecution resulting in conviction calls for the correction of the error, not the release of the accused. Dowd v. Cook, 340 U. S. 206, 210.
Petitioner contends also that, in sentencing him for the embezzlement in 1954, the judge disregarded the standards prescribed for such a proceeding. He points out that the transcript of evidence shows that the prosecuting attorney in open court, instead of the judge, inquired of petitioner as to waiver of his right to counsel. He suggests that this violates Rule 44 of the Federal Rules of Criminal Procedure. On the same transcript authority, he makes the suggestion that Rules 32 (a) and 37 (a) (2) were disregarded concerning opportunity “to make a statement in his own behalf and to present any information in mitigation of punishment” and advice to a defendant “not represented by counsel ... of his right to appeal.” Petitioner argues that these irregularities constitute a denial of due process. While we do not impose on persons unlearned in the law the same high standards of the legal art that we might place on the members of the legal profession, we think that these issues are too far afield from the questions that petitioner raised in the courts below and in his petition for certiorari for them properly to be before us. In any case, the formal commitment papers signed by the judge show that these steps, except that of advising petitioner of his right to appeal, were actually taken. We are not willing to conclude from the transcript of evidence covering only such notes as were “taken at the above time and place” that the above purely routine statutory requirements were not followed.
This leaves unresolved the question whether the Court of Appeals’ denial of leave to appeal was proper. Since we conclude that petitioner must lose on the merits, nothing could be gained by a remand to the Court of Appeals even if we should be of the opinion that the Court of Appeals erred in denying leave to appeal.
Affirmed.
Cf. Pino v. Landon, 349 U. S. 901, reversing 215 F. 2d 237.
Such an order is reviewable on certiorari. Wells v. United States, 318 U. S. 257.
No question is raised as to the length of the 1954 sentence. Cf. Roberts v. United States, 320 U. S. 264.
“In a criminal case final judgment means sentence; and a void order purporting permanently to suspend sentence is neither a final nor a valid judgment.” Miller v. Aderhold, 288 U. S. 206, 210-211. Cf. Korematsu v. United States, 319 U. S. 432, 434; Hill v. Wampler, 298 U. S. 460, 464; Berman v. United States, 302 U. S. 211, 212.
The statute upon which the information was based reads:
“. . . [an embezzler] shall be fined not more than $2,000 or imprisoned not more than five years, or both.” 18 U. S. C. § 1702.
See 18 U. S. C. § 3651; Fed. Rules Crim. Proc., 32 (a), (b), (e).
Fed. Rules Crim. Proc., 48 (b), provides for enforcement of this right: “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.”
We note that petitioner made no motion to secure a prompt proper sentence, often considered important in questions involving the Speedy Trial Clause. See cases cited in Petition of Provoo, 17 F. R. D. 183.
“If the defendant appears in court without counsel, the court shall advise him of his rightdo counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel.”
Question: What is the court whose decision the Supreme Court reviewed?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
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sc_issuearea | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
McCRAY v. ILLINOIS.
No. 159.
Argued January 10-11, 1967.
Decided March 20, 1967.
R. Eugene Pincham argued the cause for petitioner. With him on the briefs were Sam Adam, Charles B. Evins and Earl E. Strayhom.
John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Richard A. Michael, Assistant Attorney General.
Thomas C. Lynch, Attorney General, William E. James, Assistant Attorney General, and Evelle J. Younger filed a brief for the State of California, as amicus curiae.
Mr. Justice Stewart
delivered the opinion the Court.
The petitioner was arrested in Chicago, Illinois, on the morning of January 16, 1964, for possession of narcotics. The Chicago police officers who made the arrest found a package containing heroin on his person and he was indicted for its unlawful possession. Prior to trial he filed a motion to suppress the heroin as evidence against him, claiming that the police had acquired it in an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. See Mapp v. Ohio, 367 U. S. 643. After a hearing, the court denied the motion, and the petitioner was subsequently convicted upon the evidence of the heroin the arresting officers had found in his possession. The judgment of conviction was affirmed by the Supreme Court of Illinois, and wé granted certiorari to consider the petitioner’s claim that the hearing on his motion to suppress was constitutionally defective.
The petitioner’s arrest occurred near the intersection of 49th Street and Calumet Avenue at about seven in the morning. At the hearing on the motion to suppress, he testified that up until a half hour before he was arrested he had been at “a friend’s house” about a block away, that after leaving the friend’s house he had “walked with a lady from 48th to 48th .and South Park,” and that, as he approached 49th Street and Calumet Avenue, “[t]he Officers stopped me going through the alley.” “The officers,” he said, “did not show me a search warrant for my person or an arrest warrant for my arrest.” He said the officers then searched him and found the narcotics in question. The petitioner did not identify the “friend” or the “lady,” and neither of them appeared as a witness.
The arresting officers then testified. Officer Jackson stated that he and two fellow officers had had a conversation with an informant on the morning of January 16 in their unmarked police car. The officer said that the informant had told them that the petitioner, with, whom Jackson was acquainted, “was selling narcotics and had narcotics on his person and that he could be found-in the vicinity of 47th and Calumet at this particular time.”. Jackson said that he and his fellow officers drove to that vicinity in the police car and that when they spotted the petitioner, the • informant pointed him out and then departed on foot. Jackson stated that the officers observed the petitioner walking with a woman, then separating from her and' meeting briefly with a man, then proceeding alone, and finally, after seeing the police car, “hurriedly walking] between two buildings.” “At this point,” Jackson testified, “my partner and myself got out of the car and informed him we had information he had narcotics on his person, placed him in the police vehicle at this point.” Jackson stated that the officers then searched the petitioner and found the heroin in a cigarette package.
Jackson testified that he had been acquainted with the informant for approximately a year, that during this period the informant had supplied him with information about narcotics activities “fifteen, sixteen times at least,” that the information had proved to be accurate and had resulted in numerous arrests and convictions. On cross-examination, Jackson was even more specific as to the informant’s previous reliability, giving the names of people who had been convicted of narcotics violations as the result of information the informant had supplied. When Jackson was asked for the informant’s name and address, counsel for the State objected, and the objection was sustained by the court.
Officer Arnold gave substantially the same account of the circumstances of the petitioner’s arrest and search, stating that the informant had told the officers that the petitioner “was selling narcotics and had narcotics on his person now in the vicinity of 47th and Calumet.” The informant, Arnold testified, “said he had observed [the petitioner] selling narcotics to various people, meaning various addicts, in the area of 47th and Calumet.” Arnold testified that he had known the informant “roughly two years,” that the informant had given him information concerning narcotics “20 or 25 times,” and that the information had resulted in convictions. Arnold too was asked on cross-examination for the informant’s name and address, and objections to these questions were sustained by the court.
There can be no doubt, , upon the basis of the circumstances related by Officers Jackson and Arnold, that there was probable cause to sustain the arrest and incidental search in this case. Draper v. United States, 368 U. S. 307. Unlike the situation in Beck v. Ohio, 379 U. S. 89, each of the officers in this case described with specificity “what the informer actually said, and why the officer thought the information was credible.” 379 U. S., at 97. The testimony of each of the officers informed the court of the “underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” Aguilar v. Texas, 378 U. S. 108, 114. See United States v. Ventresca, 380 U. S. 102. Upon the basis of those . circumstances, along with the officers’ personal observations. of the petitioner, the court was fully justified in holding that at the time the officers made the arrest “the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense. Brinegar v. United States, 338 U. S. 160, 175-176; Henry v. United States, 361 U. S. 98, 102.” Beck v. Ohio, supra, at 91. It is the petitioner’s claim, however, that even though the officers’ sworn testimony fully supported a finding of probable cause for the arrest and search, the state court nonetheless violated the Constitu- - tion when it sustained objections to the petitioner’s questions as to the identity of the informant. We cannot agree. .
In permitting the officers to withhold the informant’s identity, the court was following well-settled Illinois law. When the issue is not guilt or innocence, but, as here, the question of probable-cause for an arrest or search, the Illinois Supreme Court has held that police officers need not invariably be required to disclose an informant’s identity if the trial judge is convinced, by evidence submitted in open court and subject to cross-examination, that the officers did rely in good faith upon credible information supplied by a reliable informant. This Illinois evidentiary rule is consistent with the law of many other States. In California, the State Legislature in 1965 enacted a statute adopting just such a rule for cases like the one before us:
“[I]n any preliminary hearing, criminal trial, or other criminal proceeding, for violation of any provision of Division 10 (commencing with Section 11000) of the Health and Safety Code, evidence of information communicated to a peace officer by a confidential informant, who is not a material witness to the guilt or innocence of the accused of the offense charged, shall be admissible on the issue of reasonable cause to make an arrest or search without requiring that the name or identity of the informant be disclosed if the judge or magistrate is satisfied, based upon evidence produced in open court, out of the presence of the jury, that such information was received from a reliable informant and in his discretion does not require such disclosure.” California Evid. Code § 1042 (c).
The reasoning of the Supreme Court of New Jersey in judicially adopting the same basic evidentiary rule was instructively expressed by Chief Justice Weintraub in State v. Burnett, 42 N. J. 377, 201 A. 2d 39:
“If a defendant may insist upon disclosure of the informant in order to test the truth of the officer’s statement that there is an informant or as to what the informant related or as to the informant’s reliability, we can be sure that every defendant will demand disclosure. He has nothing to lose and the prize may be the suppression of damaging evidence if the State cannot afford to reveal its source, as is so often the case. And since there is no way to test the good faith of a defendant who presses the demand, we must assume the routine demand would have to be routinely granted. The result would be that the State could use the informant’s information only as a lead and could search only if it could gather adequate evidence of probable cause apart from the informant’s data. Perhaps that approach would sharpen investigatorial techniques, but we doubt that there would be enough talent and time to cope with crime upon that basis. Rather wp accept the premise that the informer is a vital part of society’s defensive arsenal. The basic rule protecting his identity rests upon that belief.
“We must remember also that we are not dealing with the trial of the criminal charge itself. There the need for a truthful verdict outweighs society’s need for the informer privilege. Here, however, the accused seeks to avoid the truth. The very purpose of a motion to suppress is to escape the inculpatory thrust of evidence in hand, not because its probative force is diluted in the least by the mode •of seizure, but rather as a sanction to compel enforcement officers to respect the constitutional security of all of us under the Fourth Amendment. State v. Smith, 37 N. J. 481, 486 (1962). If the motion to suppress is denied, defendant will still be judged upon the untarnished truth.
“The Fourth Amendment is served if a judicial mind passes upon the existence of probable cause. Where the issue is submitted upon an application for a warrant, the magistrate is trusted to evaluate the credibility of the affiant in an ex parte proceeding. As we havé said, the magistrate is concerned, not with whether the informant lied, but with • whether the affiant is truthful in his recitation of what he was told. If the magistrate doubts .the credibility of the affiant, he may require that , the informant be identified or even produced. It seems to us that the same approach is equally sufficient where the search was without a warrant, that is to - say, that it should rest entirely with the judge who hears the motion to suppress to decide whether he needs such disclosure as to the informant in order to decide whether the officer is a believable witness.” 42 N. J., at 385-388, 201 A. 2d, at 43-45.
What Illinois and her sister States have doné is no more than recognize a well-established testimonial privilege, long familiar to the law of evidence. Professor Wigmore, not known as an enthusiastic advocate of testimonial privileges generally, has described that privilege in these words:
“A genuine privilege, on . . . fundamental principle . . . , must be recognized for the identity of persons supplying the government with information concerning the commission of crimes. Communications of this kind ought to receive encouragement. They are discouraged if the informer’s identity is disclosed. Whether an informer is motivated by good citizenship, promise of leniency or prospect of pecuniary reward, he will usually condition his cooperation on an assurance of anonymity — to protect himself and his family from harm, to preclude adverse social reactions and to avoid the risk of defamation or malicious prosecution actions against him. The government also has an interest in nondisclosure of the identity of its informers. Law enforcement officers often depend upon professional informers to furnish them with a flow of information about criminal activities. Revelation of the dual role played by such persons ends their usefulness to the government and discourages others from entering into a like relationship.
“That the government has this privilege is well established, and its soundness cannot be questioned.” (Footnotes omitted.) 8 Wigmore, Evidence § 2374 (McNaughton rev. 1961),
In the federal courts the rules of evidence in criminal trials are governed “by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.” This Court, therefore, has the ultimate task of defining the scope to be accorded to the various common law eviden-tiary privileges in the trial of federal criminal cases. See Hawkins v. United States, 358 U. S. 74. This is a task which is quite different, of course, from the responsibility of constitutional adjudication. In the exercise of this supervisory jurisdiction the Court had occasion 10 years ago, in Roviaro v. United States, 353 U. S. 53, to give thorough consideration to one aspect of the informer’s privilege, the privilege itself having long been recognized in the federal judicial system.
The Ruviaro case involved the informer’s privilege, not at a preliminary hearing to determine probable cause for an arrest or search, but at the trial itself where the issue was the fundamental, one of innocence or guilt. The petitioner there had been brought to trial upon a two-count federal indictment charging sale and transportation of narcotics. According to the prosecution’s evidence, the informer had been. an active participant in the crime. He “had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged.” 353 U. S., at 55. The trial court nonetheless deniéd a defense motion to compel the prosecution to disclose the informer’s identity.
This Court held that where, in an actual trial of a federal criminal case,
“the disclosure of an informer’s identity ... is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action. ...
“We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.” 353 U. S., at 60-61, 62. (Footnotes omitted.)
The Court’s opinion then carefully reviewed the particular circumstances of Roviaro’s trial, pointing out that the informer’s “possible testimony was highly relevant . . . ,” that he “might have disclosed an entrapment . . . ,” “might have thrown doubt upon petitioner’s identity or on the identity of the package . . . ,” “might, have testified to petitioner’s possible lack of knowledge of the contents of the package that he ‘transported’ ...,” and that the “informer was the sole participant, other than the accused, in the transaction charged.” 353 U. S., at 63-64. The Court concluded “that, under these cir-. cumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.” 353 IT. S., at 65.
What Roviaro thus makes clear is that this Court was unwilling to impose any absolute rule requiring disclosure of an informer’s identity even in formulating evidentiary rules for federal criminal trials. Much less has the Court ever approached the formulation of a federal evidentiary rule of- compulsory disclosure where the issue is the preliminary one of probable cause, and guilt or innocence is not at stake. Indeed, we have repeatedly made clear that federal officers need not disclose an informer’s identity in applying for an arrest or search warrant. As was said in United States v. Ventresca, 380 U. S. 102, 108, we have “recognized that ‘an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant/ so long as the magistrate is ‘informed of some of the underlying circumstances’ supporting the affiant’s, conclusions and his belief that any informant involved ‘whose identity need not he disclosed ... was “credible” or his information “reliable.” ’ Aguilar v. Texas, supra, at 114.” (Emphasis added.) See also Jones v. United States, 362 U. S. 257, 271-272; Rugendorf v. United States, 376 U. S. 528, 533. And just this Term we have taken occasion to point out that a rule virtually prohibiting the use of informers would “severely hamper the Government” in enforcement of the narcotics laws. Lewis v. United States, 385 U. S. 206, 210.
In sum, the Court in the exercise of its power to formulate evidentiary rules for federal criminal cases has consistently declined to hold that an informer’s identity need always be disclosed in a federal criminal trial, let alone in a preliminary hearing to determine probable cause for an arrest or search. Yet we are now asked to hold that the Constitution somehow compels Illinois to abolish the informer’s privilege from its law of evidence, and to require disclosure of the informer’s identity in every such - preliminary hearing where it appears that the officers made the arrest or search in reliance upon facts supplied by an informer they had reason to trust. The argument is based upon the Due Process Clause of the Fourteenth Amendment, and upon the Sixth Amendment right of confrontation, applicable to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U. S. 400. We find no support for the petitioner’s position in either of those constitutional provisions.
The arresting officers in this case testified, in open court, fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath. Each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege.
Nothing in the Due Process Clause of the Fourteenth Amendment requires a state court judge in every such hearing- to assume the arresting officers are committing perjury. “To take such a step would be quite beyond the pale of this Court’s proper function in our federal system. It would be a wholly unjustifiable encroachment by this Court upon. the. constitutional power of States to promulgate their own rules of evidence ... in their own state courts . . . .” Spencer v. Texas, 385 U. S. 554, 568-569.
The petitioner does not explain precisely hotf he thinks his Sixth Amendment right to confrontation and cross-examination was violated by Illinois’ recognition of the informer’s privilege in this case. If the claim is that the State violated the Sixth Amendment by not producing the informer to testify against the petitioner, then we need no more than repeat the Court’s answer to that claim a few weeks ago in Cooper v. California:
“Petitioner also -presents the contention here that he was unconstitutionally deprived of the right to confront a witness against him, because the State did not produce the informant to testify against him. This contention we - consider absolutely devoid of merit.”. Ante, p. 68, at 62, n. 2.
On the- other hand, the claim may be that the petitioner was deprived of his Sixth Amendment right to cross-examine the arresting officers themselves, because their refusal to reveal the informer’s identity was upheld. But it would follow from this argument that no witness on cross-examination could ever constitutionally assert a ■ testimonial privilege, including the privilege against compulsory self-incrimination guaranteed by the Constitution itself.. We. have never given the Sixth Amendment such a construction, and we decline to do so now.
Affirmed.
33 Ill. 2d, 210 N. E. 2d 161
384 U.S. 949.
The weather was “real cold,” and the petitioner testified he “had on three coats.” In order to conduct the search, the arresting officers required the petitioner to remove some of his clothing, but even the petitioner’s version of the circumstances of the search did not disclose any conduct remotely akin to that condemned by this Court, in Rochin v. California, 342 U. S. 165.
“Q. What is the name of this informant that gave you this information?
“Mr. Engerman: Objection, Your Honor.
“The Court: State for the record the reasons for your objection.
“Mr. Engerman: Judge, based upon the testimony of the officer so far that they had used this informant for approximately a year, he has worked with this individual, in the interest of the public, I see no reason why the officer should be forced to disclose the name of the informant, to cause harm or jeopardy to an individual who has cooperated with the police. The City of Chicago have a tremendous problem with narcotics. If the police are not able to withhold the name of the informant they will not be able to get informants. They are not willing to risk their lives if their names become known.
“In the, interest of the City and the law enforcement of this community, I feel the officer should not be forced to reveal the name of the informant. And I also cite People vs. Durr.
“The Court: I will sustain that.
“Mr. Adam: Q. Where does this informant live?
“Mr. Engerman: Objection, your Honor, same basis.
“The Court: Sustained.”
People v. Durr, 28 Ill. 2d 308, 192 N. E. 2d 379; People v. Nettles, 34 Ill. 2d 52, 213 N. E. 2d 536; People v. Connie, 34 Ill. 2d 353, 215 N. E. 2d 280; People v. Freeman, 34 Ill. 2d 362, 215 N. E. 2d 206; People v. Miller, 34 Ill. 2d 527, 216 N. E. 2d 793. Cf. People v. Pitts, 26 Ill. 2d 395, 186 N. E. 2d 357; People v. Parren, 24 Ill. 2d 572, 182 N. E. 2d 662.
State v. Cookson, 361 S. W. 2d 683 (Mo. Sup. Ct.); Simmons v. State, 198 Tenn. 587, 281 S. W. 2d 487; People v. Coffey, 12 N. Y. 2d 443, 191 N. E. 2d 263. But see People v. Malinsky, 15 N. Y. 2d 86, 209 N. E. 2d 694. Cf. Stelloh v. Liban, 21 Wis. 2d 119, 124 N. W. 2d 101; Baker v. State, 150 So. 2d 729 (Fla. App.); State v. Boles, 246 N. C. 83, 97 S. E. 2d 476.
In the present case California has filed a helpful amicus brief, advising us that the validity of this provision is now before the Supreme Court of California. Martin v. Superior Court (LA 29078). The statute was enacted to modify that court’s decision in Priestly v. Superior Court, 50 Cal. 2d 812, 330 P. 2d 39. See also Ford v. City of Jackson, 153 Miss. 616, 121 So. 278.
See 8 Wigmore, Evidence §2192 (McNaughton rev. 1961).
Rule 26, Fed. Rules Crim. Proc.
See Scher v. United States, 305 U. S. 251; In re Quarles & Butler, 158 U. S. 532; Vogel v. Gruaz, 110 U. S. 311.
Some federal courts have applied the same rule of nondisclosure in both warrant and nonwarrant cases. Smith v. United States, 123 U. S. App. D. C. 202, 358 F. 2d 833; Jones v. United States, 326 F. 2d 124 (C. A. 9th Cir.), cert. denied, 377 U. S. 956; United States v. One 1957 Ford Ranchero Pickup, 265 F. 2d 21 (C. A. 10th Cir.). Other federal courts, however, have distinguished between these two classes of cases and have required the identification of informants in nonwarrant cases. United States v. Robinson, 325 F. 2d 391 (C. A. 2d Cir.); Cochran v. United States, 291 F. 2d 633 (C, A. 8th Cir.). Cf. Wilson v. United States, 59 F. 2d 390 (C. A. 3d Cir.). See Comment, Informer’s Word as the Basis for Probable Cause in the Federal Courts, 53 Calif. L. Rev. 840 (1965).
In drawing this distinction some of the federal courts have relied upon a dictum in Roviaro v. United States, 353 U. S. 53, 61:
“Most of the federal cases involving this limitation on the scope of the informer’s privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.”
Since there was no probable cause issue in Roviaro, the quoted statement was clearly not necessary for decision. Indeed, an absolute rule of disclosure for probable cause determinations would conflict with the case-by-case approach upon which the Roviaro decision was based. Moreover, the precedent upon which this dictum was grounded furnishes only dubious support. Scher v. United States, 305 U. S. 251, the only decision of this Court which was cited, affirmed the trial judge’s refusal to order arresting officers to reveal the source of their information'.
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_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.
CHICAGO & NORTH WESTERN RAILWAY CO. v. CHICAGO, MILWAUKEE, ST. PAUL & PACIFIC RAILROAD CO. et al.
No. 21.
Argued November 17, 1964.
Decided April 5, 1965.
John C. Danielson argued the cause for appellant. With him on the briefs was Jordan Jay Hillman.
Frank M. Long argued the cause for appellees. With him on the brief were Philip H. Porter, R. K. Merrill and Richard R. Robinson.
Solicitor General Cox, Assistant Attorney General Or-rick, Lionel Kestenbaum, Robert W. Ginnane and Arthur Cerra filed a memorandum for the United States and the Interstate Commerce Commission.
Per Curiam.
The judgment is reversed. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., 270 U. S. 266, 278.
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_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.
Lawrence SCHREIBER, Plaintiff-Appellant, v. ALLIS-CHALMERS CORPORATION, Defendant-Appellee.
No. 78-1357.
United States Court of Appeals, Tenth Circuit.
Argued May 17, 1979.
Decided Nov. 27, 1979.
Rehearing Denied Jan. 21, 1980.
Larry Latham, Jackson, Miss. (R. Daniel Lykins of Jones, Schroer, Rice & Bryan, Topeka, Kan., on brief), for plaintiff-appellant.
Barry E. Warren, Overland Park, Kan. (Frank Saunders, Jr., of Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., on brief), for defendant-appellee.
Before McWILLIAMS, BARRETT and DOYLE, Circuit Judges.
McWILLIAMS, Circuit Judge.
Lawrence Schreiber, plaintiff-appellant, appeals the summary judgment entered in favor of Allis-Chalmers, the defendant-appellee. The Memorandum and Order of the trial court now appears as Schreiber v. Allis-Chalmers Corp., 448 F.Supp. 1079 (D.Kan.1978).
Schreiber filed the instant action in the United States District Court for the Southern District of Mississippi, Jackson Division, on June 16, 1977. Allis-Chalmers, the defendant, is incorporated in Delaware, and has its headquarters in Milwaukee, Wisconsin. Since 1932 Allis-Chalmers has been duly licensed, qualified and authorized to do business in the State of Mississippi. Service of process was made by serving Allis-Chalmers’ statutory agent for service of process. Additionally, the general manager of Allis-Chalmers’ manufacturing facility, located just south of Jackson, Mississippi, was personally served with process.
In the complaint Schreiber alleged that he is a resident and citizen of Kansas and federal jurisdiction is thus based on diversity of citizenship. Schreiber further alleged that on June 22, 1971, he was severely injured near Soldier, Kansas when working on an Allis-Chalmers Roto Baler, causing amputation of his arms. It was alleged that Allis-Chalmers had defectively designed and manufactured the Roto Baler in question and Schreiber’s cause of action was grounded on ordinary and gross negligence, breach of implied warranty and strict liability. Damages were sought in the amount of $5,000,000.
Allis-Chalmers filed an answer and a motion for change of venue pursuant to 28 U.S.C. § 1404(a). The motion was based on a belief that since the accident complained of occurred in Kansas, the case should be transferred to the United States District Court for the District of Kansas. A federal district judge in Mississippi denied the defendant’s motion for change of venue.
In an original proceeding brought in the United States Court of Appeals for the Fifth Circuit that Court, by minute order, ordered the federal district court in Mississippi to transfer the case to the United States District Court for the District of Kansas. In due time the case was thus transferred.
In the Kansas federal court Allis-Chalmers filed a motion for summary judgment, and also sought, and obtained, an order staying discovery until a ruling on the summary judgment motion. The motion was predicated on two propositions: (1) the Mississippi federal court was without jurisdiction to adjudicate Sehreiber’s cause of action; and (2) assuming jurisdiction, the cause of action was barred by the 2-year Kansas statute of limitations. After oral argument, the trial court granted Allis-Chalmers’ motion for summary judgment, holding that the Mississippi federal court did not have jurisdiction to hear the case, and, alternatively, that if the Mississippi federal court did have jurisdiction, it would have applied the Kansas 2-year statute of limitations, which would bar the action. Schreiber now appeals the summary judgment entered for Allis-Chalmers.
The trial court in a detailed Memorandum and Order, consisting of some 20 printed pages, made no findings of fact, of course, since the case was disposed of by way of summary judgment. The critical portions in the Memorandum constitute conclusions of law, with a comprehensive review of the many legal authorities which have bearing thereon. We would parenthetically note that authorities dealing with the troublesome questions of federal jurisdiction and conflict of laws here involved are not only numerous but often contradictory.
We summarize the trial court’s Memorandum and Order as follows: (1) The transferee court, the Kansas federal court, must decide this case as would the transferor court, the Mississippi federal court, and the Mississippi federal court in turn must apply Mississippi state law. We agree. (2) The Mississippi federal court would hold that a Mississippi state court under Mississippi statutory and case law could assume jurisdiction of this case. We agree. (3) The attempted assumption of jurisdiction by the Mississippi state court, however, must fail because such would violate federal due process. Therefore, the hypothetical Mississippi state court has no jurisdiction of the case. With this we disagree. (4) However, assuming jurisdiction on the part of the Mississippi state court, which in turn would give the federal district court in Mississippi jurisdiction to hear the case, under present Mississippi law the Mississippi state court would normally hold that the statute of limitations of the forum state, i. e., the 6-year statute of Mississippi controls. With this we agree. (5) However, if this particular case were presented to a Mississippi state court at this point in time, the Mississippi state court would, for the first time, abandon the lex fori rule and would apply the 2-year statute of limitations of the State of Kansas. With this we disagree.
As indicated, then, we agree with the trial court that it must sit as though it were a federal district court sitting in the Southern District of Mississippi. Although Allis-Chalmers apparently argued to the contrary in the trial court, on appeal it does not press the matter. The trial court’s determination in this regard finds support in Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), where the Supreme Court held that the transferee federal district court is obligated to apply the state law that would have been applied if there had been no change of venue. A corollary of the foregoing is that in the instant case the Mississippi federal court in this diversity proceeding must apply Mississippi’s state law, and the same rule extends to the field of conflict of laws. Klaxon Company v. Stentor Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941) and Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
As indicated, we also agree with the trial court in the instant case that a Mississippi state court, and therefore the Mississippi federal court, would hold that under Mississippi statutory and case law a Mississippi state court could assume jurisdiction of this case. In just so many words, a Mississippi statute provides that a foreign corporation doing business in Mississippi is subject to suit in Mississippi to the same extent that corporations of Mississippi are, “whether the cause of action accrued in this state or not.” Section 79-1-27, Miss. Code 1972. In support of the trial court’s interpretation of that statute, see S. & W. Constr. Co. v. Douglas, 244 Miss. 498, 142 So.2d 33 (1962) and the cases cited therein. In Douglas the Mississippi Supreme Court held that under Mississippi law a Mississippi state court had jurisdiction to hear a case wherein the plaintiff, a resident of Tennessee, was injured in an accident occurring in Tennessee and the defendant was a Tennessee corporation, which, however, had qualified to do business in Mississippi and had appointed a resident agent for service of process upon whom service had been effected.
As indicated, we do not agree that the assumption of jurisdiction by the Mississippi state court would offend federal due process. Perkins v. Benguet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485 (1952) held that federal due process neither forbids, nor compels, a state from opening its courts to a proceeding against a foreign corporation doing business within the state even though the cause of action does not arise from events occurring within that state. In Perkins the foreign corporation there involved was described as having carried on in Ohio “a continuous and systematic, but limited part of its general business.” 342 U.S. at 448, 72 S.Ct. at 414. Based on the record before us, the same can be said of Allis-Chalmers as concerns its connection with the State of Mississippi. As mentioned at the outset, since 1932 Allis-Chalmers has been continuously duly licensed, qualified and authorized to do business in the State of Mississippi. Historically, the business transacted in Mississippi has been sales and sales promotion, although since 1973 Allis-Chalmers has maintained a manufacturing plant near Jackson, Mississippi. That particular plant of Allis-Chalmers manufactures power breakers for electrical utility companies.
The Court of Appeals for the Ninth Circuit in Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406 (9th Cir. 1977) has reviewed the pertinent authorities and has concluded that if a foreign corporation has sufficient deliberate “minimum contacts” with the forum state, a court may acquire in personam jurisdiction over such corporation in actions which arise from those forum contacts, and if the foreign corporation’s activities in the forum state are so “continuous and systematic” that the foreign corporation may in fact be deemed “present” in the forum state, then the foreign corporation may be served in causes of action unrelated to forum activities. In the instant case Allis-Chalmers not only had deliberate minimum contacts with Mississippi, it also had continuous and systematic activities within the state and indeed for nearly 50 years has qualified and been statutorily authorized to do business in Mississippi.
The trial court was of the view that Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) sapped the continued vitality of Perkins. We do not agree. Shaffer is distinguishable from the instant case. Shaffer involved a quasi in rem action, filed in a Delaware state court, which was used as a springboard to obtain in personam jurisdiction over non-resident defendants. It was in such a setting that the Supreme Court held that the Delaware state court proceeding had to meet the minimum contacts standard of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In our case Allis-Chalmers, though a foreign corporation, had been duly qualified to do business in Mississippi, and for now nearly 50 years has been conducting “a continuous, systematic, but limited part of its general business” in the State of Mississippi. In sum, the local Mississippi law which would permit a state court to assume jurisdiction over the instant case does not in our best judgment violate federal due process.
As indicated, we agree with the trial court that, assuming jurisdiction lies with the hypothetical Mississippi state court, the latter on the basis of present Mississippi state law would normally apply the lex fori, insofar as it relates to the Mississippi 6-year statute of limitations. Such in fact has been the precise holding of Mississippi federal courts in diversity cases. See Steeie v. G. D. Searle & Co., 422 F.Supp. 560 (S.D. Miss.1976), on rhg. 428 F.Supp. 646 (S.D. Miss.1977), and Cummings v. Cowan, 390 F.Supp. 1251 (N.D.Miss.1975).
As indicated, we disagree with the trial court’s conclusion that, notwithstanding the fact that under present day law the Mississippi state court would ordinarily apply its 6-year statute to such a case, the Mississippi court, if this exact case were presented to it, would abandon the lex fori rule. It is the duty of the Kansas federal court, under the present circumstances, to follow Mississippi law as it presently exists, and not to anticipate that “the next time around” the Mississippi court would abandon its present law on the subject.
Mitchell v. Craft, 211 So.2d 509 (Miss. 1968), relied on by the trial court as indicating “progressive thinking of Mississippi courts on choice of law problems,” does not support the theorization that a Mississippi state court handling the present case would abandon the lex fori rule and apply the 2-year statute of limitations of Kansas. In Mitchell the Mississippi Supreme Court merely adopted the “center of gravity” test for application of the proper substantive law, and in that case applied Mississippi substantive law to an automobile accident which occurred in Louisiana involving Mississippi residents. It does not follow, however, that Mississippi would abandon its long-adhered-to rule that in a proceeding in a Mississippi court the Mississippi statute of limitations governs. To the contrary, subsequent decisions by that court indicate continued adherence to the rule. Vick v. Cochran, 316 So.2d 242 (Miss.1975).
From a reading of the trial judge’s Memorandum and Order it is quite evident that he was disturbed by the fact that though the present case could not be maintained in the first instance in Kansas federal court, because of the Kansas 2-year statute, it possibly could be maintained in a Mississippi federal court where a 6-year statute of limitations would control. There is perhaps a degree of incongruity in such result. However, it is axiomatic that hard cases make bad law. We think it preferable to adhere to accepted legal principles rather than strive to achieve, at the expense of those principles, a result which might appear to some as being more fair and just than the alternative.
Judgment reversed and cause remanded for further proceedings consonant with the views herein expressed.
. Mississippi has a 6-year statute of limitations governing tort and warranty actions, and therein lies the root of the present controversy.
. In this general connection, it is agreed that the Roto Baler which allegedly caused Schreiber’s injuries was not manufactured in Mississippi.
. It is agreed that under Kansas law the Kansas 2-year statute of limitations bars- only the remedy, and does not extinguish the right.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_genapel1 | 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 is to determine the nature of the first listed appellant.
Joseph TRICHILO, Plaintiff-Appellee, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellant.
No. 1129, Docket 87-6023.
United States Court of Appeals, Second Circuit.
Argued July 16, 1987.
Decided Nov. 4, 1987.
James M. Baker, Baker, Clark & Satter, Syracuse, N.Y., for plaintiff-appellee.
William Kanter, Jay S. Bybee, U.S. Dept, of Justice, Appellate Staff, Civ. Div., Washington, D.C., for defendant-appellant.
Before VAN GRAAFEILAND, PRATT, and ALTIMARI, Circuit Judges.
PER CURIAM:
Presently before the court is Trichilo’s motion for $10,037.96 in attorney’s fees and litigation expenses incurred on the government’s appeal of the district court’s award of attorney’s fees for counsel’s district court work. On that appeal, we ruled in favor of plaintiff in all respects. Trichilo v. Secretary of Health & Human Services, 823 F.2d 702 (2d Cir.1987). We now reaffirm the holding and rationale of our earlier opinion, and, in addition, grant Trichilo’s motion for attorney’s fees on the appeal.
We assume familiarity with our earlier opinion in which we held, in part, that a litigant is entitled to attorney’s fees under the Equal Access to Justice Act not only for the successful prosecution of a suit under the act, but also for the time spent preparing and litigating the fee issue itself. Id. at 707. As we noted:
Since the purpose of the EAJA is to remove counsel fees as an impediment to challenging unreasonable and unjustified governmental actions, where a governmental action has been shown to have been unjustified, there should be as little disincentive for plaintiffs to obtain attorney’s fees as there is for them to challenge the action itself
Id. (emphasis added). This reasoning applies equally to the time and effort expended by counsel on appeal. Indeed, this case provides a prime example of the reason why fees such as Trichilo’s must be recoverable. He incurred fees of over $10,000 on appeal, when the amount in controversy on the original appeal was under $1,000. Were there no possibility of recovering the fees on appeal, counsel might well simply forgo the relatively small amount at issue arid not contest the government’s position on issues such as those raised by the ap-p6al in this case, which, we note, the government lost.
The government contends that it is unfair to subject the government to attorney's fee liability when, as here, the position it advocated on appeal-as distinguished from the original, "substantially unjustified" position it adopted toward Tn-chilo that triggered this litigation-was reasonable, although not ultimately persuasive. However, as we noted in our original opinion, congress has made clear that it is inappropriate to examine separate parts of the litigation to determine whether the government's position in each phase was justified. Instead, as long as the government's underlying substantive position was not "substantially justified", the plaintiff is entitled to recover all reasonable attorney's fees incurred. Trichilo, 823 F.2d at 707-08. If the government wishes to avoid such liability, it need only refrain from taking positions that are not "substantially justified". Plaintiffs such as Triehilo, on the other hand, are unable to avoid these fees, which are forced upon them by the government's unreasonable positions.
We reject the government's position that the reasonability of its position on appeal amounts to a "special circumstance" that would "make an award unjust". 28 U.S.C. § 2412(d)(1)(A). Reading the "special circumstances" exception so broadly would, in effect, swallow the very rule we announced in our earlier opinion. This we decline to do.
We therefore reaffirm our earlier holding in this case, and extend it to include the reasonable attorney's fees incurred by plaintiff on the appeal. In case the law of this circuit is not now clear to the government, we hold that where the government's underlying position is not substantially justified, plaintiff is entitled under the EAJA to recover all attorney's fees and expenses reasonably incurred in connection with the vindication of his rights, including those related to any litigation over fees, and any appeal. Since the government challenges none of the particular amounts of fees and expenses claimed by plaintiff, there is no need to remand for an evidentiary hearing in the district court, and plaintiff's motion is granted in its entirety.
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_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.
Allen L. GRIFFIN, Appellee, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, UAW, Appellant.
No. 72-1126.
United States Court of Appeals, Fourth Circuit.
Argued Sept. 11, 1972.
Decided Oct. 24, 1972.
Bernard G. Link, Baltimore, Md. (Stephen I. Schlossberg, John A. Fillion, and Jordan Rossen, Detroit, Mich., on brief), for appellants.
Hugh G. Casey, Jr., Charlotte, N. C. (George S. Daly, Jr., and Casey & Daly, P. A., Charlotte, N. C., on brief), for ap-pellee.
Before SOBELOFF, Senior Circuit Judge, and WINTER and BUTZNER, Circuit Judges.
SOBELOFF, Senior Circuit Judge:
Allen Griffin, the appellee, brought a civil action for damages against the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America. He claimed that the UAW had breached its duty of fair representation in handling the grievance based on his discharge by the Ford Motor Company. The case was tried before Judge McMillan and a jury and resulted in a verdict in favor of Griffin in the amount of $12,000. From this judgment, the UAW appeals.
In its brief the appellant raised several issues which were not pursued at oral argument. After a careful examination of the record, the briefs of the parties and the pertinent authorities, we conclude that these contentions are without merit. The only issue deserving discussion is whether there was sufficient evidence to support the jury’s finding that the Union breached its duty of fair representation.
I
The phrase “duty of fair representation” is a legal term of art, incapable of precise definition. St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, 130 (6 Cir. 1969). There is no code that explicitly prescribes the standards that govern unions in representing their members in processing grievances. Whether a union breached its duty of fair representation depends upon the facts of each case. Thompson v. Brotherhood of Sleeping Car Porters, 316 F.2d 191 (4 Cir. 1963); Trotter v. Amalgamated Ass’n of Street Railway Employees, 309 F.2d 584 (6 Cir. 1962), cert. den., 372 U.S. 943 (1963). But pronouncements made from time to time by the Supreme Court, articulating the somewhat hazy contours of the union’s obligations, do furnish a measure of guidance.
The doctrine of the “duty of fair representation” was first given currency by the Supreme Court in Steele v. Louisville & N. R. Co., 323 U.S. 192, 65 S.Ct. 226, 89 L.Ed. 173 (1944). Although first propounded in the context of racial discrimination under the Railway Labor Act, the Court extended this duty to cases under Section 301 of the National Labor Relations Act. Ford Motor Co. v. Huffman, 345 U.S. 330, 73 S.Ct. 681, 97 L.Ed. 1048 (1953). In representing its members, declared the Court, a union is permitted “a wide range of reasonableness,” but this latitude is “subject always to complete good faith and honesty of purpose in the exercise of its discretion.” Id. at 337-338, 73 S.Ct. at 686.
The outline of the duty of fair representation cognizable under Section 301 was further clarified in Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967). That case declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.
Nonetheless, the Supreme Court did not invest the union with a carte blanche. It sought to fashion an appropriate standard by which to measure union conduct. “[The doctrine of fair representation] includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.” Vaca v. Sipes, supra, 386 U.S. at 177, 87 S.Ct. at 910. A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.
The repeated references in Vaca to “arbitrary” union conduct reflected a calculated broadening of the fair representation standard. Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, 453 F.2d 1018, 1023 n. 8 (9 Cir. 1972); Feller, “Vaca v. Sipes, One Year Later” in N.Y.U. Twenty-First Annual Conference on Labor 141, 167 (1969). While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. Vaca v. Sipes, supra 386 U.S. at 191, 194, 87 S. Ct. 903; Retana v. Apartment, Motel, Hotel & El. Op. U., Local 14, supra, 453 F.2d at 1024 n. 10; De Arroyo v. Sindi-cato de Trabajadores Packinghouse, 425 F.2d 281, 284 (1 Cir. 1970); St. Clair v. Local 515, Int’l Bhd. of Teamsters, etc., 422 F.2d 128, at 130. Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.
For a successful suit against a union for breach of its duty of fair representation, the employee “must also have proved arbitrary or bad-faith conduct on the part of the union in processing his grievance.” Vaca v. Sipes, supra, 386 U.S. at 193, 87 S.Ct. at 918 (emphasis added). We believe that looking at the evidence in the light most favorable to Griffin — as we are bound to do at this stage — there is sufficient evidence to support a conclusion of arbitrary or bad-faith conduct.
II
For seven years Allen Griffin worked for the Ford Motor Company at its parts depot in Charlotte, North Carolina. His problems apparently began in July, 1965, when he was disciplined by the Warehouse Operations Manager, D. J. Cashion, management’s second ranking member at the forty men depot, for allegedly reading a newspaper that lined the handtruck used by Griffin in his work. Cashion’s disciplinary action was successfully appealed by the Union. Subsequently, the relationship between the two men further deteriorated until they became embroiled in a fight at a local hockey game, with Cashion sustaining facial lacerations and cracked ribs. As a result of these fisticuffs, Griffin was discharged by Depot Manager Meares upon his return to work. In addition, a local court fined Griffin $50 for the assault.
J. W. Brown, who worked immediately under Cashion, was the chairman of the Union’s Local House Committee. His responsibilities included handling the preliminary stages of the grievance procedure. He filed with Cashion, the very man with whom Griffin had the fight, the grievance seeking Griffin’s reinstatement. Not surprisingly, Cashion, representing Ford, refused reinstatement. After Griffin’s assault conviction, Brown recommended to his fellow committee members that Griffin’s grievance be withdrawn. When one of the committee members objected, Brown threatened to resign. The grievance was withdrawn by a 2-1 vote.
Griffin then appealed to the membership of his Local to reverse the decision to withdraw his grievance. A vote was taken and it was decided that Griffin’s grievance be pursued. In protest of the members’ action, House Committee Chairman Brown resigned his position as House Chairman. But the action of the House Committee in withdrawing Griffin’s grievance was upheld by an appeals committee of the International; although the committee recommended that efforts to secure Griffin’s reinstatement continue. Finally, Ford agreed to reinstate Griffin’s grievance and allow it to be processed through normal channels on the condition that Griffin waive any claim for back pay prior to the time the grievance was reinstated. Griffin accepted this proposal. The revived grievance, “frozen dead” after the two-year hiatus, was eventually heard by the Ford Umpire, who on March 22, 1968, upheld the discharge.
Ill
The Union’s insistence on filing the discharge grievance with Cashion, the man with whom Griffin had fought, cannot be justified. It represents a stubborn refusal to recognize the inequity of placing the matter in the hands of a hostile person — Griffin’s antagonist. Although the Union may have acted in good faith, grieving the discharge in this manner can be viewed — as the jury apparently viewed it — as the equivalent of arbitrarily ignoring the grievance or handling it in a perfunctory manner. Vaca v. Sipes, supra, 386 U.S. at 191, 194, 87 S.Ct. 903. The “arbitrary” standard elucidated in Vaca was thus breached.
The Union attempts to justify submitting the grievance to Cashion by pointing out that the only other person with whom the grievance could have been filed was Meares, the Depot Manager. This, the UAW maintains, “was at best a Hobson’s choice: Cashion, the man Griffin assaulted on the one hand, and Meares, the man who discharged Griffin, the very act that was being protested, on the other hand.”
The Union’s contention overstates the case. Cashion had a history of difficulties in supervising the men under him. There was evidence that he was “very high tempered” and that he was willing to use his position of authority to punish those “who crossed him.” Meares, at the time of the discharge, had heard only Cashion’s version of the fight and the incidents that led np to it. It is quite possible that if the grievance had been immediately filed with Meares and Cashion’s history of pugnacity with workers in general, and his goading of Griffin in particular, had been adequately presented, Meares would have mitigated his disciplinary action. The fact that Meares refused the grievance after it was reinstated nearly one and one-half years later has no relevance. The passage of time and the hardening of positions had taken their effect.
There was also evidence presented to the jury from which it might have found the Union’s handling of the grievance to have been motivated by bad faith. After the membership of the Local voted to pursue Griffin’s grievance, House Committee Chairman J. W. Brown resigned his position to protest the members’ action. He was replaced by George R. Kennedy. On April 8, 1966, Kennedy wrote Walter P. Reuther, the late president of the UAW, to express his opinion that the action of the Local in dropping Griffin’s grievance was the result of the friendship between Cashion and J. W. Brown. In the course of the letter Kennedy stated poignantly:
Mr. Cashion, having been a personal friend of the former Chairman [Brown] for many years, as well as a very good friend with one of the committeemen and a close friend of the union member who testified against Mr. Griffin, used these friendships to influence the committee’s decision to drop the case as far as the committee was concerned. Therefore, when the membership overruled the committee, the Chairman, Mr. J. W. Brown resigned.
In my opinion those officers who were in a position to help Mr. Griffin, were trying to find as many reasons as they could not to help him. This is illustrated by the very fact that I am writing this letter because Mr. T. C. Brown, our Recording Secretary, and the brother of Mr. J. W. Brown, the resigned Chairman, refused to answer your letter of March 80, 1966. (Emphasis added.)
There is sufficient evidence in the record to support the jury’s finding that the Union breached its duty of fair representation in handling Griffin’s discharge grievance. Therefore, the judgment of the District Court is hereby
Affirmed.
. Earlier in the summer, the two men almost became involved in a fight when Cashion invited Griffin outside the plant behind the railroad tracks to settle their difference and to “whip his blank” — an invitation declined by Griffin.
. This characterization was given the reinstated grievance by Judge McMillan. (Tr. 403.)
. Appellant’s Reply Brief at 2-3.
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_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".
SOUND, INC., Appellee, v. AMERICAN TELEPHONE AND TELEGRAPH COMPANY, Bell Telephone Laboratories, Inc., Western Electric Company, Inc. and Northwestern Bell Telephone Company, Appellants.
No. 80-1047.
United States Court of Appeals, Eighth Circuit.
Submitted April 15, 1980.
Decided Aug. 25, 1980.
Harvey Kurzweil, Dewey,. Ballantine, Bushby, Palmer & Wood, New York City, for appellants; Joseph Angland and Robert W. Hirth, New York City, and Nyemaster, Goode, McLaughlin, Emery & O’Brien, Des Moines, Iowa, on brief.
Donald Polden, Hawkins & Norris, Des Moines, Iowa, for appellee; Lex Hawkins and Glenn L. Norris, Des Moines, Iowa, on brief.
Ron M. Landsman, Atty., Appellate Section, Antitrust Div., Dept, of Justice, Washington, D. C., for amicus curiae U. S.; Sanford M. Litvack, Asst. Atty. Gen., Robert B. Nicholson, Attys., Dept, of Justice, Washington, D. C., on brief.
Before HEANEY and ARNOLD, Circuit Judges, and VIETOR, District Judge.
The Honorable HAROLD D. VIETOR, United States District Judge for the Southern District , of Iowa.
HEANEY, Circuit Judge.
This case presents the difficult problem of reconciling the pro-competitive policies of the antitrust laws with federal and state regulation protecting the public interest in the context of the terminal telephone equipment market.
Sound, Inc., an Iowa corporation, brought this antitrust action against the Bell System (Bell), American Telephone and Telegraph Company and its subsidiaries, Bell Telephone Laboratories, Western Electric Company and Northwestern Bell Telephone Company, alleging violations of sections 1, 2 and 3 of the Sherman Act, 15 U.S.C. §§ 1, 2, 3, and of Iowa tort law. Bell moved for judgment on the pleadings, contending that the conduct alleged in the complaint was immune by virtue of regulation by the Federal Communications Commission (FCC) and the Iowa State Commerce Commission (ISCC). The district court denied the motion, holding that the conduct alleged was subject to antitrust scrutiny. The district court certified its decision for interlocutory appellate review and we granted Bell permission to appeal pursuant to 28 U.S.C. § 1292(b). The complaint alleges the following facts. Sound, Inc., began to sell and lease key telephone terminal equipment in Cedar Rapids, Des Moines and Waterloo, Iowa, in 1970. This equipment consists of telephone sets containing six to thirty buttons which allow the telephone user access to several incoming and outgoing lines. Beginning in 1971, Bell engaged in a concerted effort to destroy Sound’s business and to exclude Sound, from the terminal telephone equipment market in violation of the Sherman Act by predatorily pricing its own equipment, making false and slanderous statements to Sound’s customers and potential customers, making threats of economic retribution to Sound’s customers, and threatening to withhold telephone service from those purchasing or leasing Sound’s equipment.
In June, 1971, Bell filed a tariff with the ISCC that substantially reduced the rates for all the equipment that was in competition with Sound’s equipment. The ISCC suspended the rates and later rejected them because Bell had not provided sufficient cost justification. During the suspension and even after the rejection of these rates, Bell’s sales personnel represented to Sound’s customers that the lower rates would quickly be approved and that the customers should not do business with Sound. In 1973, Bell filed another tariff proposing lower rates for the competing equipment. Again, the rates were suspended and again, Northwestern Bell’s sales personnel represented to Sound’s customers that the lower rates were assured and that the customers should not purchase Sound’s equipment. In January, 1975, the ISCC approved the tariff filed in 1973.
In late 1974, Bell filed tariffs involving a new series of terminal key equipment offerings known as ComKey. The tariffs established a “two-tier” price system. Rates denominated “Vintage I” automatically went into effect upon filing, and they were substantially modified and increased by tariffs denominated “Vintage II” in 1975. Sound alleged that these tariffs were filed by Bell with knowledge that they were grossly non-compensatory.
The complaint also alleged that Sound was damaged by Bell’s requirement that Protective Connecting Arrangements (PCA’s) be attached to any telephone terminal equipment owned or leased by anyone other than Bell. Sound alleged that Bell required the PCA’s knowing they were unnecessary, poorly designed, harmful to Sound’s equipment, unnecessarily and anti-competitively expensive and improperly installed and maintained. Bell required these PCA’s by tariffs filed with the FCC until 1975.
The complaint further alleged that Bell deprived Sound of free and unlimited access to the FCC and state regulatory agencies and that Bell interfered with Sound’s business relations in violation of state tort law.
In its answer, Bell claimed that its rate-related conduct is exempt from antitrust scrutiny by the state action doctrine. It also alleged that all activity undertaken by Bell regarding the interconnection of privately owned terminal telephone equipment is impliedly immune because the antitrust and regulatory standards are inconsistent and because the conduct is pervasively regulated. Bell further alleged that its marketing practices are exempt and immune because they are an integral part of the regulated conduct.
We affirm the district court’s denial of Bell’s motion for judgment on the pleadings.
I
IMPLIED IMMUNITY
This appeal involves no question of express immunity. Bell does not argue that the Communications Act of 1934 contains any explicit grant of statutory immunity from the antitrust laws. Nor has Bell attempted to demonstrate that Congress, in passing the Communications Act, intended to immunize the telecommunications industry generally from the antitrust laws; in fact, the explicit immunization of certain FCC-approved consolidations and mergers of telephone companies, 47 U.S.C. §§ 221(a), 222(c)(1), indicates that Congress did not contemplate a blanket immunity. See Mt. Hood Stages, Inc. v. Greyhound Corp., 555 F.2d 687, 691 (9th Cir. 1977), cert. denied in part, 434 U.S. 1008, 98 S.Ct. 716, 54 L.E.2d 750, rev’d in part, 437 U.S. 322, 98 S.Ct. 2370, 57 L.Ed.2d 239 (1978).
The question presented here, one of implied immunity, is whether the tension between the antitrust laws and the scheme of FCC regulation of the interconnect industry impliedly repeals the Sherman Act. The statutory schemes of regulation, the implementation of those schemes and the competitive situations have varied so greatly from industry to industry that no clear path for determining whether implied immunity exists has been illuminated. Some guiding principles have been established, however. Implied repeal of the antitrust laws “is not favored and not casually to be allowed. Only where there is a ‘plain re-pugnancy between the antitrust and regulatory provisions’ will repeal be' implied.” Gordon v. New York Stock Exch., 422 U.S. 659, 682, 95 S.Ct. at 2611 (1975) (quoting United States v. Philadelphia Nat’l Bank, 374 U.S. 321, 350-351, 83 S.Ct. 1715, 1734, 10 L.Ed.2d 915 (1963)). See United States v. National Ass’n of Secs. Dealers, 422 U.S. 694, 719-720, 729-730, 95 S.Ct. 2427, 2442-2443. 2447-2448, 45 L.Ed.2d 486 (1975); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 126, 94 S.Ct. 383, 389, 38 L.Ed.2d 348 (1973). The antitrust laws and the regulatory statutes must be reconciled where feasible, United States v. National Ass’n of Secs. Dealers, supra, 422 U.S. at 720, 95 S.Ct. at 2443; Gordon v. New York Stock Exch., supra, 422 U.S. at 683, 95 S.Ct. at 2611, and “ ‘[rjepeal is to be regarded as implied only if necessary to make [the regulatory statute] work, and even then only to the minimum extent necessary.’ ” Gordon v. New York Stock Exch., supra, 422 U.S. at 683, 95 S.Ct. at 2612 (quoting Silver v. New York Stock Exch., 373 U.S. 341, 357, 83 S.Ct. 1246, 1257, 10 L.Ed.2d 389 (1963)). The pervasive nature of the regulatory scheme is a factor in determining whether implied repeal exists, Gordon v. New York Stock Exch., supra, 422 U.S. at 688, 95 S.Ct. at 2614; however, certain activities by industries perceived to be heavily regulated have been held subject to the antitrust laws. Silver v. New York Stock Exch., supra (securities); Otter Tail Power Co. v. United States, 410 U.S. 366, 93 S.Ct. 1022, 35 L.Ed.2d 359 (1973) (generation and transmission of electric power); United States v. Philadelphia Nat’l Bank, supra (national banking); United States v. RCA, 358 U.S. 334, 79 S.Ct. 457, 3 L.Ed.2d 354 (1959) (broadcasting).
The Court’s application of these principles has resulted in a finding of implied immunity when enforcement of the antitrust laws, would interfere with the operation of the regulatory agency. Interference has been found when the antitrust laws would prohibit action specifically contemplated by the regulatory statute, Gordon v. New York Stock Exch., supra; United States v. National Ass’n of Secs. Dealers, supra, or when the antitrust laws would prohibit conduct falling precisely within the detailed statutory scheme of enforcement and that statutory scheme specifically required consideration of competition. Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 93 S.Ct. 647, 34 L.Ed.2d 577 (1973); Pan Am. World Airways, Inc. v. United States, 371 U.S. 296, 83 S.Ct. 476, 9 L.Ed.2d 325 (1963).
Bell relies on Gordon v. New York Stock Exch., supra, to sustain its view that the challenged activities are impliedly immune. In Gordon, a group of investors challenged the SEC-sanctioned system of fixed stock commission rates as being violative of the antitrust laws. The Court rejected the challenge. It held that Congress, in enacting the Securities Exchange Act, intended to leave supervision of the fixing of reasonable rates of commission to the SEC and thus impliedly immunized the practice from antitrust challenge. The Court found two factors to be dispositive: (1) the supervisory power was granted seven years after the Court’s decision that price fixing is a per se violation of the Sherman Act, United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700 (1927); and (2) the Securities Exchange Commission actively supervised and approved the fixing of commission rates over a period of years. The Court concluded that the enforcement of the antitrust laws “would preclude and prevent the operation of the Exchange Act as intended by Congress and as effectuated through SEC regulatory activity.” Gordon v. New York Stock Exch., supra, 423 U.S. at 691, 95 S.Ct. at 2615.
In United States v. National Ass’n of Secs. Dealers, supra, the Court found that vertical restrictions on secondary market activities designed to maintain prices in brokerage transactions of mutual funds were exactly the type of curbs on competition that Congress thought necessary in enacting the Investment Company Act of 1940, 15 U.S.C. § 80a-l et seq. The Court found the SEC’s regulatory authority so pervasive as to confer an implied immunity on the alleged horizontal conspiracy to prevent a secondary market in mutual fund shares, particularly in view of the SEC’s consistent approval of the agreements to which the subject matter of the antitrust action was ancillary.
Two other cases upon which Bell relies, Hughes Tool Co. v. Trans World Airlines, Inc., supra, and Pan Am. World Airways v. United States, supra, involved even more explicit statutory schemes of regulation. In Hughes Tool, TWA brought an antitrust suit challenging Toolco’s exercise of its control over TWA’s acquisition and financing of aircraft. Toolco had developed its control over TWA through stock acquisitions specifically investigated and approved by the Civil Aeronautics Board; further, each acquisition of aircraft by the airline had been approved by the CAB. Because the CAB had exercised its authority to approve Toolco’s acquisition of TWA’s stock pursuant to section 408 of the Federal Aviation Act of 1958, 49 U.S.C. § 1378, and because that section required an appraisal of the impact of the proposed action on monopoly and competition, the Court held Toolco’s actions impliedly immune from the antitrust laws. In Pan Am, the Court similarly held immune the anticompetitive interference by Pan Am with acquisition of a route by Panagra, a joint venture of Pan Am and .Grace Company. The Court relied on the statutory grant in section 411 of the Federal Aviation Act, 49 U.S.C. § 1381, authorizing the CAB to investigate and regulate unfair methods of competition among air carriers. Both Hughes Tool and Pan Am emphasize section 414 of that Act, 49 U.S.C. § 1384, which explicitly immunizes from the antitrust laws any action taken pursuant to a CAB order.
Our approach, then, is to consider both the statute under which the industry is regulated and the exercise of regulatory authority over the challenged activity pursuant to the statute.
Prior to passage of the Federal Communications Act of 1934, 47 U.S.C. § 151 et seq., the telecommunications industry was subject both to the jurisdiction of the Interstate Commerce Commission and the antitrust laws. The Communications Act provides that the carriers generate tariffs showing all charges and all classifications, practices and regulations affecting such charges, and file those tariffs with the FCC, 47 U.S.C. § 203(a); that the FCC and the public be given thirty days notice of any proposed change in a tariff, id. § 203(b); and that no charge be demanded or collected, refunded or remitted except in accordance with a filed tariff. Id. § 203(c). The FCC is empowered, either upon a complaint or on its own initiative, to conduct a hearing concerning the lawfulness of a tariff, and has been authorized to suspend the tariff for up to three months pending completion of the hearing. Id. § 204 (subsequently amended to five months). The FCC is also authorized “to determine and prescribe what will be the just and reasonable charge * * * to be thereafter observed, and what classification, regulation, or practice is or will be just, fair, and reasonable, to be thereafter followed * * *.” Id. § 205(a) The FCC’s guiding standard is the public interest. Id. § 201. The Communications Act also provides a saving clause:
Nothing in this Act contained shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this Act are in addition to such remedies.
Id. § 414.
Nothing in the language of the Communications Act or its history convinces us that Congress, in establishing a system of regulation of the telecommunications industry, sought to displace the antitrust laws. Accord, Essential Communications Sys., Inc. v. American Tel. & Tel. Co., 610 F.2d 1114 (3d Cir. 1979); MCI Communications Corp. v. American Tel. & Tel. Co., 462 F.Supp. 1072 (N.D.Ill.), mandamus denied, 594 F.2d 594 (7th Cir. 1978), cert. denied, 440 U.S. 971, 99 S.Ct. 1533, 59 L.Ed.2d 787 (1979); United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D.D.C.1978). Since no goals are set forth in the statute that are clearly repugnant to the antitrust laws, we must examine the FCC’s exercise of its authority over the interconnect industry to determine “whether allowance of an antitrust suit would conflict with the operation of the regulatory scheme * * Gordon v. New York Stock Exch., supra, 422 U.S. at 688, 95 S.Ct. at 2614.
Bell has provided terminal equipment to customers since its inception and effectively cornered the market on such equipment by filing tariffs with the FCC that prohibited the attachment to the Bell System of any equipment not furnished by Bell. This broad prohibition was held violative of the Communications Act by the Fifth Circuit in 1956. Hush-A-Phone Corp. v. United States, 238 F.2d 266 (D.C. Cir. 1956). The Hush-A-Phone was simply a cup-shaped device that snapped on a telephone receiver to afford privacy to the speaker. Bell construed the decision narrowly and filed new tariffs prohibiting all direct electrical connection with the telephone system. In 1968, the FCC ruled this tariff illegal and encouraged Bell to adopt technical standards that would weed out harmful devices while allowing the interconnection of safe equipment. Use of the Carterfone Device, 13 F.C.C.2d 420, 423-424, reconsideration denied, 14 F.C.C.2d 571 (1968). Bell then filed tariffs permitting interconnection of customer-supplied equipment but requiring the use of Bell-supplied “protective connecting arrangements.” The FCC undertook an investigation of the tariff, expressly stating that- its decision not to immediately grant relief to those challenging the tariff should not be interpreted as tacit approval. AT&T “Foreign Attachment” Tariff Revisions, 15 F.C.C.2d 605, 610 (1968), reconsideration denied, 18 F.C.C.2d 871 (1969). The FCC contracted with the National Academy of Science for a study of interconnection, and the Academy concluded that Bell’s protective connecting arrangements were not necessary and were potentially harmful to competitor’s equipment.
In 1975, the FCC invalidated ’ the tariff and established its own technical standards for interconnection. Equipment meeting those standards was to be registered with the FCC, and Bell could not require PCA’s for that equipment. Proposal for New or Revised Classes of Interstate and Foreign MTS and WATS, First Report and Order, 56 F.C.C.2d 593 (1975), on reconsideration, 57 F.C.C.2d 1216, 58 F.C.C.2d 716, 59 F.C. C.2d 83 (1976); Second Report and Order, 58 F.C.C.2d 736 (1976), on reconsideration, 61 F.C.C.2d 396, 64 F.C.C.2d 1058 (1977), aff’d sub nom. North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977). That registration program is still in effect.
Bell contends that the “public interest” standard enunciated by the Communications Act and applied by the FCC conflicts with the pro-competition standard of the antitrust laws. We do not agree. The record does not show that the FCC has exercised its supervisory authority over the industry in an effort to prevent the development of competition in the terminal equipment market; rather, its rulings have indicated that Bell’s attempts to retain its monopoly in that market are disfavored. Although the FCC’s attempts to interject competition into this market may have been sluggish, they have been real and have not reflected an approval of Bell’s interconnect-related conduct. In light of this, the maintenance of an antitrust suit will not conflict with the operation of the regulatory scheme authorized by Congress but will supplement' that scheme. See Gordon v. New York Stock Exch., supra, 422 U.S. at 690, 95 S.Ct. at 2615.
Bell, not the FCC, proposes its rates, regulations and restrictions, subject, of course, to FCC approval. In filing each tariff, Bell implements its own business judgment in regard to its relationship with competitors. “When these relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws.” Otter Tail Power Co. v. United States, supra, 410 U.S. at 374, 93 S.Ct. at 1028. We see nothing in the public interest standard that would prevent Bell from making business judgments that conform to the requirements of antitrust law, and nothing unfair in requiring it to do so.
Bell’s argument also rests on the pervasiveness of the Communication Act’s regulatory scheme. The extent of the regulatory framework’s control of an industry is a factor to be considered in determining whether certain conduct is impliedly immune from the antitrust laws, see United States v. National Ass’n of Secs. Dealers, supra, 422 U.S. at 732-733, 95 S.Ct. at 2448-2449; Hughes Tool Co. v. Trans World Airlines, Inc., supra; Pan Am. World Airways v. United States, supra, but we do not view the FCC’s control over the interconnect industry to be so pervasive as to warrant a finding of immunity, particularly in the absence of a showing that the two statutes conflict. See Mid-Texas Communications Sys., Inc. v. American Tel. & Tel. Co., 615 F.2d 1372 (5th Cir. 1980); MCI Communications Corp. v. American Tel. & Tel. Co., supra.
We find support for our interpretation of the Communications Act in the views of the FCC. Unlike the SEC in the stock exchange cases, the FCC has strongly urged that its jurisdiction should not displace the antitrust law, writing: “The Commission has never considered its authority over equipment interconnection to displace the antitrust laws.” Memorandum of FCC as Amicus Curiae (in United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D. D.C. 1978)), 62 F.C.C.2d 1102, 1114 (1975).
While we recognize that there has been some division in the cases considering the question of implied immunity for Bell’s interconnection-related activities, we think the better-reasoned solution lies in holding that Bell is not impliedly immune but is liable for the antitrust violations that may be proven. See Mid-Texas Communications Sys., Inc. v. American Tel. & Tel. Co., supra; Essential Communications Sys., Inc. v. American Tel. & Tel. Co., supra; Litton Sys., Inc. v. American Tel. & Tel. Co., 487 F.Supp. 942 (S.D.N.Y.1980); MCI Communications Corp. v. American Tel. & Tel. Co., supra; United States v. American Tel. & Tel. Co., 461 F.Supp. 1314 (D. D.C. 1978); Jarvis, Inc. v. American Tel. & Tel. Co., 481 F.Supp. 120 (D. D.C. 1978); United States v. American Tel. & Tel. Co., 427 F.Supp. 57 (D. D.C. 1976). Contra, Monitor Business Machines, Inc. v. American Tel. & Tel. Co., 1978-1 Trade Cas. (CCH) ¶ 62,030 (C.D. Cal. 1978); Phonetele, Inc. v. American Tel. & Tel. Co., 435 F.Supp. 207 (C.D. Cal. 1977), appeal pending; DASA Corp. v. General Tel. Co., 1977-2 Trade Cas. (CCH) ¶ 61,610 (C.D. Cal. 1977), appeal pending.
II
STATE ACTION EXEMPTION
Bell contends that its rate structure and marketing practices relating to the terminal equipment market are exempt, as state action, from antitrust challenge because Iowa regulates the rates Bell charges for the installation and monthly use of Bell’s equipment. Bell relies on the Parker doctrine and its recent articulation 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). On the basis of this record, we reject Bell’s argument.
As a public utility, Bell is required to file tariffs with the Iowa State Commerce Commission setting forth its proposed rates. Iowa Code § 476.6. “[A]ny person or body politic” may request the Commission to determine the reasonableness of “rates, charges, schedules, service, regulations, or anything done or omitted to be done by any public utility * * Id. § 476.3. Upon such complaint or the Commission’s own motion, the public utility is required to satisfy the Commission of the reasonableness of the challenged action. The Commission may institute a formal proceeding and conduct hearings. If it finds the utility’s action to be “unjust, unreasonable, discriminatory or otherwise in violation of any provision of law,” it may determine and enforce reasonable rates or regulations. Id.
The tariffs prepared by Bell have been the subject of formal hearings and extensive investigation by the ISCC over the past several years. The ISCC has rejected some rates and charges as anticompetitive. See Reasonableness of Certain Rates and Charges for Business Phone Service Provided by Northwestern Bell Telephone Company Under TF1-115 and TF1-161, Iowa State Commerce Commission Docket No. U-366, Order at 2 (Dec. 23, 1971) (rejecting, proposed rates); Northwestern Bell Telephone Company, Iowa State Commerce Commission Docket No. > U-514, Decision and Order (Dec. 21,1976) (approving certain rates with modification but rejecting equipment lease termination charge as an illegal penalty).
The ISCC has recognized that it should apply antitrust considerations in its deci-sionmaking, saying,
[O]ur inquiry must also be based upon “an awareness * * * of the opportunities for competition in the markets supplied by public utilities, and the growing insistence of remedial action by the courts and regulatory agencies so that access to those opportunities may be realized as the law permits.”
Northwestern Bell Telephone Company, Iowa State Commerce Commission Docket No. U-467, Decision and Order at 2 (Jan. 28, 1975). The ISCC has denied certain rates proposed by Bell for multiline telephone equipment because the evidence showed a “distinct anticompetitive effect.” Docket No. U-366, supra at 2. The ISCC has also noted that its functions include “establishing a first line of defense against those competitive practices that might later be the subject of antitrust proceedings.” Docket No. U-467, supra at 3 (quoting Gulf States Utils. Co. v. FPC, 411 U.S. 747, 758 (1973)). The ISCC stated that it had “fully accommodated” the policies of state and federal antitrust laws in Docket No. U-514, supra at 7.
With this overview of the Iowa regulatory scheme in mind, we turn to an analysis of the state action exemption cases relevant to this factual situation. In Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), the plaintiff sought to enjoin the enforcement of an agricultural prorate program administered pursuant to state legislation intended to stabilize the market price of various commodities, including raisins. The Court held that Congress did not intend the Sherman Act to apply to state action, saying:
We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.
Parker v. Brown, supra, 317 U.S. at 350-351, 63 S.Ct. at 313.
For thirty years, the Supreme Court'offered little guidance in the application of Parker. In 1975, the Court decided Goldfarb v. Virginia State Bar, 421 U.S. 773, 95 S.Ct. 2004, 44 L.Ed.2d 572 (1975), holding that the minimum fee schedule for title examination promulgated by the county bar, a voluntary association, and enforced by the state bar, an administrative agency, was not immune from Sherman Act attack. The fee schedule was not required by any state statute or by any rules of the state supreme court. In fact, the state supreme court’s rules directed lawyers not to be controlled by fee schedules. The Court’s “threshold inquiry” was whether the activity was “required by the State acting as sovereign,” id., 421 U.S. at 790, 95 S.Ct. at 2015, and the Court held that it was not.
The next year, in Cantor v. Detroit Edison Co., 428 U.S. 579, 96 S.Ct. 3110, 49 L.Ed.2d 1141 (1976), a sharply divided Court held that a public utility’s program of providing free light bulbs to customers was not immune from the Sherman Act in spite of the state’s approval of tariffs filed by Detroit Edison establishing the program. Mr. Justice Stevens, writing for the Court, identified the issue as “whether the Parker rationale immunizes private action which has been approved by a state and which must be continued while the state approval remains effective.” Id. at 581, 96 S.Ct. at 3113. In those portions of the opinion in which five members concurred, the Court held that the commission’s approval and the fact that the practice could not be discontinued without approval did not render the conduct immune. The state’s policy was “neutral on the question whether a utility should, or should not, have [a light bulb] program.” Id. at 585, 96 S.Ct. at 3115. No specific statute referred to regulation of the light bulb business, and other state utilities did not have such a program. The Court noted that the decision to provide free light bulbs was one in which both the commission and Detroit Edison participated, but that the option to have or not have the program was “primarily” Detroit Edison’s. Id. at 593-594, 96 S.Ct. at 3118-3119. Further, Detroit Edison, not the state, had initiated the program. The Court applied a fairness analysis and determined that, under the circumstances, there was “nothing unjust” in requiring the utility to make business choices that conformed to federal law.
The Cantor Court further noted that it was not logically inconsistent to require a utility to “meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.” Id. at 596, 96 S.Ct. at 3120 (footnote omitted). The Court found that Michigan’s regulatory scheme did not conflict with antitrust policy and concluded that no exemption from the antitrust laws existed.
In Bates v. State Bar, 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810 (1977), the Court addressed the question of whether Arizona’s prohibition of attorney advertising was exempt from Sherman Act challenge under Parker v. Brown, supra. The Court held that the disciplinary rule, the affirmative command of the state supreme court, was exempt. The Court distinguished Cantor on three grounds.
First, and most obviously, Cantor would have been an entirely different ease if the claim had been directed against a public official or public agency, rather than against a private party. Here, the appellants’ claims are against the State.
* He * * * *
Second, the Court emphasized in Cantor that the State had no independent regulatory interest in the market for light bulbs. There was no suggestion that the bulb program was justified by flaws in the competitive market or was a response to health or safety concerns. And an exemption for the program was not essential to the State’s regulation of electric utilities. In contrast, the regulation of the activities of the bar is at the core of the State’s .power to protect the public. * * *
Finally, the light-bulb program in Cantor was instigated by the utility with only the acquiescence of the state regulatory commission. The State’s incorporation of the program into the tariff reflected its conclusion that the utility was authorized to employ the practice if it so desired. The situation now before us is entirely different. The disciplinary rules reflect a clear articulation of the State’s policy with regard to professional behavior.
Id., 433 U.S. at 361-362, 97 S.Ct. at 2697 (citations and footnotes omitted).
In Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Court held that a municipal utility operator was not excluded from the antitrust laws. The plurality opinion expressed the view that Parker v. Brown, supra, exempted only acts of government by the state as sovereign or by a municipality pursuant to the state’s policy of replacing competition with either regulation or monopoly public service. The plurality emphasized the need for a clearly articulated state policy of displacing competition with regulation and active supervision by the policymaker. Significantly, it distinguished Cantor’s analysis because it presented the question whether “anticompetitive activity in which purely private parties engaged” could be insulated from antitrust attack. Id. at 410 n. 40, 98 S.Ct. at 1136 n. 40.
We turn, finally, to Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97, 100 S.Ct. 937, 63 L.Ed.2d 233 (1980), which Bell contends is controlling. Midcal involved a challenge to California’s statutorily created wine-pricing program, which constituted resale price maintenance in violation of the Sherman Act. California charged Midcal, a wine wholesaler, with violating state law by selling wine below the effective price schedule of E. & J. Gallo Winery. Midcal filed a writ of mandate seeking to enjoin the state’s program. A state court of appeals granted the mandate and enjoined the program. The California Retail Liquor Dealers Association, as inter-venor, sought certiorari in the United States Supreme Court. The question presented involved the exemption of state conduct from the antitrust laws—an exemption that , does not necessarily coincide with that for a private defendant.
The Court briefly reviewed the leading cases, including those we have discussed, and articulated two standards for applying a state action exemption from the antitrust laws: “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.” Id., 445 U.S. at 105,100 S.Ct. at 943, 63 L.Ed.2d at 243.
The Court held that thé California system satisfied the first standard because the legislative policy was “forthrightly stated and clear in its purpose to permit resale price maintenance^]” id., which would otherwise be a per se violation of the Sherman Act. It held that the second standard was not satisfied, however, because the state simply authorized the prices set by private parties and enforced them without reviewing their reasonableness, saying, “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.
As the above decisions demonstrate, the determination of whether state regulation of private action is “state action” and therefore exempt from the antitrust laws is not an easy task. “Like many other phantasmagoria of the law, we know it is there, but it is hard to define precisely what it is, and, unlike obscenity, we do not always know it even when we see it.” Kennedy, Of Lawyers, Lightbulbs, and Raisins: An Analysis of the State Action Doctrine Under the Antitrust Laws, 74 Nw.L.Rev. 31 (1979). We are convinced, however, that the following factors are relevant to our determination: the existence and nature of any relevant statutorily expressed policy; the nature of the regulatory agency’s interpretation and application of its enabling statute, including the accommodation of competition by the regulator; the fairness of subjecting a regulated private defendant to the mandates of antitrust law; and the nature and extent of the state’s interest in the specific subject matter of the challenged activity.
Nothing in the Iowa statutes establishing the Iowa State Commerce Commission or its system of regulating public utilities even remotely suggests an intention to require anticompetitive conduct on the part of a public utility. Nothing in the statutes resembles the direct establishment of a program of resale price maintenance as in Mid-cal or the proscription of advertising as in Bates, nor is there any other explicit requirement of action prohibited by the Sherman Act. On the contrary, the statute prohibits rates “in violation of any provision of law,” which presumably includes the Sherman Act. By requiring just and reasonable rates and charges, the statute provides a means of preventing the abuse of monopoly power by public utilities; it does not purport to aid an industry by giving it a competitive advantage as did the State of California in Parker v. Brown, supra. We thus are unable to find in the state statutes any clearly articulated or affirmatively expressed policy of replacing competition with regulation in the telephone terminal equipment market.
Nothing in the ISCC’s interpretation and application of the statute indicates a requirement of anticompetitive conduct or displacement of competition. See discussion on page 1332, supra. Rather, the ISCC has indicated an accommodation of federal antitrust law and the advancement of competition, its underlying goal, in the market for telephone terminal equipment. This accommodation certainly cannot be construed as an intent to displace competition in that market.
Nothing in this record suggests it is unfair to subject Bell to the standards of the antitrust laws. Bell, not the ISCC, proposed the rates at issue. Bell sought diligently to have those rates accepted by the ISCC, unsuccessfully opposing the intervention of Midwestern Telephone Company, Sound’s successor, in one rate investigation proceeding. Docket No. U-514, supra at 4. The ISCC’s approval of some of those proposed rates reflected the conclusion that “the utility was authorized to employ the [rate] if it so desired[,]” Bates v. State Bar, supra, 433 U.S. at 362, 97 S.Ct. at 2698, not a conclusion that the rates were mandated. Bell was not deprived of its power to exercise its independent business judgment in determining the rates it would propose. The state’s involvement is not “so dominant that it would be unfair to hold a private party responsible for his conduct in implementing it[.]” Cantor v. Detroit Edison, Co., supra, 428 U.S. at 594-595, 96 S.Ct. at 3119. The Court’s conclusion in Cantor is equally appropriate here: “There is nothing unjust in a conclusion that respondent’s participation in the decision is sufficiently significant to require that its conduct implementing the decision, like comparable conduct by unregulated businesses, conform to applicable federal law.” Id. at 594, 96 S.Ct. at 3119 (footnote omitted).
Finally, nothing in the record indicates that the State of Iowa’s interest in the terminal telephone equipment market is such as to displace the antitrust laws. The issue before us would be different if the purpose of Iowa’s exercise of its regulatory control was to avoid the consequences of unrestrained competition, subject only to the strictures of the antitrust laws, in the telephone terminal equipment market. The record before us, however, clearly does not present such a case. Again, the Court’s conclusion in Cantor is particularly appropriate:
On the contrary, public utility regulation typically assumes that the private firm is a natural monopoly and that public controls are necessary to protect the consumer from exploitation. There is no logical inconsistency between requiring such a firm to meet regulatory criteria insofar as it is exercising its natural monopoly powers and also to comply with antitrust standards to the extent that it engages in business activity in competitive areas of the economy.
Id. at 595-596, 96 S.Ct. at 3120 (footnotes omitted).
Thus, Iowa’s regulation of Bell’s rates poses no necessary conflict with the federal requirement that respondent’s activities in competitive markets satisfy the standards of the antitrust laws.
In summary, we disagree with Bell’s contention that the standards of Mid-cal have been satisfied. The state’s authorization of a public utility’s proposed rates in a competitive market does not constitute a “clearly articulated and affirmatively expressed state policy,” and does not exempt the utility from the Sherman Act.
The judgment of the district court is affirmed.
. The United States District Court for the Southern District of Iowa, Judge Donald E. O’Brien presiding.
. Because the case is before this Court on the district court’s refusal to dismiss under Fed.R. Civ.P. 12(c), the facts well-pleaded by the plaintiff are deemed true. Quality Mercury, Inc. v. Ford Motor Co., 542 F.2d 466, 468 (8th Cir. 1976) cert. denied, 433 U.S. 914, 97 S.Ct. 2986, 53 L.Ed.2d 1100 (1977).
. See page 1330, infra. Sound ceased doing business in 1975 because its liabilities exceeded its assets.
. Although the FCC has jurisdiction over Bell’s activities in the interconnect area, North Carolina Utils. Comm’n v. FCC, 552 F.2d 1036 (4th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977), that is not sufficient to imply immunity. “The Court has never held * * * that the antitrust laws are inapplicable to anticompetitive conduct simply because a federal agency has jurisdiction over the activities of one or more of the defendants.” Gordon v. New York Stock Exch., 422 U.S. 659, 692, 95 S.Ct. 2598, 2616, 45 L.Ed.2d 463 (1975) (Stewart, J., concurring), quoted in Cantor v. Detroit Edison Co., 428 U.S. 579, 596 n. 36, 96 S.Ct. 3110, 3120 n. 36, 49 L.Ed.2d 1141 (1976).
. For a recent Eighth Circuit case discussing this issue, see National Gerimedical Hospital and Gerontology Center v. Blue Cross of Kansas City, Blue Cross Association, 628 F.2d 1050 (8th Cir. 1980).
. See the detailed discussion of the Act’s history in Essential Communications Sys., Inc. v. American Tel. & Tel. Co., 610 F.2d 1114, 1117-1120 (3d Cir. 1979).
. Bell claims that it required protective connecting arrangements because it did not know how otherwise to adequately protect the integrity of its equipment. The claim is a factual matter to be established at trial. The claim is relevant, if at all, only to the merits of the antitrust charges rather than to the claim of immunity.
. The word “exemption” is “a shorthand expression for Parker’s holding that the Sherman Act was not intended by Congress to prohibit the anticompetitive restraints imposed by California in that case.” Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 393 n. 8, 98 S.Ct. 123, 1126 n. 8, 55 L.Ed.2d 364 (1978).
. The Court reiterated this requirement in New Motor Vehicle Bd. v. Orrin W. Fox Co., 439 U.S. 96, 109, 99 S.Ct. 403, 411-412, 58 L.Ed.2d 361 (1978). In that case, the Court held exempt from Sherman Act challenge a California statute requiring that new automobile dealerships within the market area of an existing franchisee must be approved by the New Motor Vehicle Board.
. Having disposed of these contentions, we necessarily reject Bell’s claim that its marketing practices are immune because they are “integrally related” to the regulated conduct. Bell also contends that the district court erred in failing to dismiss the portion of Sound’s complaint that alleged a denial of access to federal and state regulatory agencies. We find this contention to be without merit. See California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).
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_lcdisposition | B | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
NEVADA et al. v. HICKS et al.
No. 99-1994.
Argued March 21, 2001
Decided June 25, 2001
Scaua, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, Thomas, and Ginsburg, JJ., joined. Sou-ter, J., filed a concurring opinion, in which Kennedy and Thomas, JJ., joined, post, p. 375. Ginsburg, J., filed a concurring opinion, post, p. 386. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in which Stevens and Breyer, JJ., joined, post, p. 387. Stevens, J., filed an opinion concurring in the judgment, in which Breyer, J., joined, post, p. 401.
C. Wayne Howie, Senior Deputy Attorney General of Nevada, argued the cause for petitioners. With him on the briefs were Frankie Sue Del Papa, Attorney General, Paul G. Taggart, Deputy Attorney General, and Jeffrey S. Sutton.
S. James Anaya argued the cause for respondents and filed a brief for respondent Hicks. Kim Jerome Gottschalk and Melody McCoy filed a brief for respondents Tribal Court in and for the Fallon Paiute-Shoshone Tribes et al.
Barbara McDowell argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were former Solicitor General Waxman, Assistant Attorney General Schiffer, Deputy Solicitor General Kneedler, David C. Shilton, and. William, B. Lazarus.
A brief of amici curias urging reversal was filed for the State of Montana et al. by Joseph P. Mazurek, Attorney General of Montana, Clay R. Smith, Solicitor. and Harley R. Harris, Assistant Attorney General, joined by the Attorneys General for their respective States as follows: Bill Pryor of Alabama, Janet Napolitana of Arizona, Richard Blumenthal of Connecticut, Robert A Butterworth of Florida, Carla J. Stovall of Kansas, Jennifer M. Granholm of Michigan, Mike Moore of Mississippi, Heidi Heitkamp of North Dakota, W. A Drew Edmondson of Oklahoma, Hardy Myers of Oregon, Sheldon Whitehouse of Rhode Island, Charles M. Con-don of South Carolina, Mark Barnett of South Dakota, John Cornyn of Texas, Jan Graham of Utah, James E. Doyle of Wisconsin, and Gay Wood-house of Wyoming.
Briefs of amici curiae urging affirmance were filed for the Coalition for Local Sovereignty by Kenneth B. Clark; for the Confederated Tribes of the Colville Reservation et al. by William R. Perry; for the Pyramid Lake Paiute Tribe of Nevada et al. by John Fredericks III; and for the Thlopthlocco Tribal Town et al. by D. Michael McBride III and Steven K. Balman.
Justice Scalia
delivered the opinion of the Court.
This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation.
I
Respondent Hicks is one of about 900 members of the Fallon Paiute-Shoshone Tribes of western Nevada. He resides on the Tribes’ reservation of approximately 8,000 acres, established by federal statute in 1908, ch. 53, 35 Stat. 85. In 1990 Hicks came under suspicion of having killed, off the reservation, a California bighorn sheep, a gross misdemeanor under Nevada law, see Nev. Rev. Stat. §501.376 (1999). A state game warden obtained from state court a search warrant “SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES.” According to the issuing judge, this tribal-court authorization was necessary because “[tjhis Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation.” App. G to Pet. for Cert. 1. A search warrant was obtained from the tribal court, and the warden, accompanied by a tribal police officer, searched respondent’s yard, uncovering only the head of a Rocky Mountain bighorn, a different (and unprotected) species of sheep.
Approximately one year later, a tribal police officer reported to the warden that he had observed two mounted bighorn sheep heads in respondent’s home. The warden again obtained a search warrant from state court; though this warrant did not explicitly require permission from the Tribes, see App. F to Pet. for Cert. 2, a tribal-court warrant was nonetheless secured, and respondent’s home was again (unsuccessfully) searched by three wardens and additional tribal officers.
Respondent, claiming that his sheep heads had been damaged, and that the second search exceeded the bounds of the warrant, brought suit against the Tribal Judge, the tribal officers, the state wardens in their individual and official capacities, and the State of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone Tribes. (His claims against all defendants except the state wardens and the State of Nevada were dismissed by directed verdict and are not at issue here.) Respondent’s causes of action included trespass to land and chattels, abuse of process, and violation of civil rights — specifically, denial of equal protection, denial of due process, and unreasonable search and seizure, each remediable under Rev. Stat. § 1979, 42 U. S. C. § 1983. See App. 8-21, 25-29. Respondent later voluntarily dismissed his case against the State and against the state officials in their official capacities, leaving only his suit against those officials in their individual capacities. See id., at 32-35.
The Tribal Court held that it had jurisdiction over the claims, a holding affirmed by the Tribal Appeals Court. The state officials and Nevada then filed an action in Federal District Court seeking a declaratory judgment that the Tribal Court lacked jurisdiction. The District Court granted summary judgment to respondent on the issue of jurisdiction, and also held that the state officials would have to exhaust any claims of qualified immunity in the tribal court. The Ninth Circuit affirmed, concluding that the fact that respondent’s home is located on tribe-owned land within the reservation is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land. 196 F. 3d 1020 (1999). We granted certiorari, 531 U. S. 923 (2000).
II
In this case, which involves claims brought under both tribal and federal law, it is necessary to determine, as to the former, whether the Tribal Court in and for the Fallon Paiute-Shoshone Tribes has jurisdiction to adjudicate the alleged tortious conduct of state wardens executing a search warrant for evidence of an off-reservation crime; and, as to the latter, whether the Tribal Court has jurisdiction over claims brought under 42 U. S. C. § 1983. We address the former question first.
A
The principle of Indian law central to this aspect of the case is our holding in Stmte v. A-l Contractors, 520 U. S. 438, 453 (1997): “As to nonmembers ... a tribe’s adjudicative jurisdiction does not exceed its legislative jurisdiction ... That formulation leaves open the question whether a tribe’s adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction. We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone Tribes— either as an exercise of their inherent sovereignty, or under grant of federal authority — can regulate state wardens executing a search warrant for evidence of an off-reservation crime.
Indian tribes’ regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U. S. 544 (1981), which we have called the “path-marking case” on the subject, Strate, supra, at 445. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, Montana observed that, under our decision in Oliphant v. Suquamisk Tribe, 435 U. S. 191 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, “Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” 450 U. S., at 565 (footnote omitted). Where nonmembers are concerned, the “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so, cannot survive without express congressional delegation.” Id., at 564 (emphasis added). .
Both Montana and Strate rejected tribal authority to regulate nonmembers’ activities on land over which the tribe could not “assert a landowner’s right to occupy and exclude,” Strate, supra, at 456; Montana, supra, at 557, 564. Respondents and the United States argue that since Hicks’s home and yard are on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers’ entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both Montana and Strate, the reason that was so was not that Indian ownership suspends the “general proposition” derived from Oliphant that “the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe” except to the extent “necessary to protect tribal self-government or to control internal relations.” 450 U. S., at 564-565. Oliphant itself drew no distinctions based on the status of land. And Montana, after announcing the general rule of no jurisdiction over nonmembers, cautioned that “[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands,” 450 U. S., at 565 — clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is “necessary to protect tribal self-government or to control internal relations.” It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land. Compare, e. g., Merrion v. Jicarilla Apache Tribe, 455 U. S. 130, 137, 142 (1982) (tribe has taxing authority over tribal lands leased by nonmembers), with Atkinson Trading Co. v. Shirley, 532 U. S. 645, 659 (2001) (tribe has no taxing authority over nonmembers’ activities on land held by nonmembers in fee); but see Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U. S. 408, 443-444, 458-459 (1989) (opinions of Stevens, J., and Blackmun, J.) (tribe can impose zoning regulation on that 3.1% of land within reservation area closed to public entry that was not owned by the tribe). But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers.
We proceed to consider, successively, the following questions: whether regulatory jurisdiction over state officers in the present context is “necessary to protect tribal self-government or to control internal relations,” and, if not, whether such regulatory jurisdiction has been congressionally conferred.
B
In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to which Montana referred: tribes have authority “[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members,” 520.U. S., at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have “ ‘the right... to make their own laws and be ruled by them,’ ” 520 U. S., at 459, quoting Williams v. Lee, 358 U. S. 217, 220 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 386 (1976) (per curiam) (“In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them” (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See Merrion, supra, at 137, 142 (“The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government,” at least as to “tribal lands” on which the tribe “has . . . authority over a nonmember”).
Our cases make clear that the Indians’ right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation’s border. Though tribes are often referred to as “sovereign” entities, it was “long ago” that “the Court departed from Chief Justice Marshall’s view that ‘the laws of [a State] can have no force’ within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832),” White Mountain Apache Tribe v. Bracker, 448 U. S. 136, 141 (1980). “Ordinarily,” it is now clear, “an Indian reservation is considered part of the territory of the State.” U. S. Dept, of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U. S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U. S. 60, 72 (1962).
That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires “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 Colville Reservation, 447 U. S. 134,156 (1980); see also id., at 181 (opinion of Rehnquist, J.). “When on-reservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State’s regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest.” Bracker, supra, at 144. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated Tribes. In that case, Indians were selling cigarettes on their reservation to nonmembers from off reservation, without collecting the state cigarette tax. We held that the State could require the Tribes to collect the tax from nonmembers, and could “impose at least ‘minimal’ burdens on the Indian retailer to aid in enforcing and collecting the tax,” 447 U. S., at 151. It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation. See Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148-149 (1973).
While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In Confederated Tribes, we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due. See 447 U. S., at 162. In Utah & Northern R. Co., however, we observed that “[i]t has . . . been held that process of [state] courts may run into an Indian reservation of this kind, where the subject-matter or controversy is otherwise within their cognizance,” 116 U. S., at 31. Shortly thereafter, we considered, in United States v. Kagama, 118 U. S. 375 (1886), whether Congress could enact a law giving federal courts jurisdiction over various common-law, violent crimes committed by Indians on a reservation within a State. We expressed skepticism that the Indian Commerce Clause could justify this assertion of authority in derogation of state jurisdiction, but ultimately accepted the argument that the law
“does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.
“It seems to us that this is within the competency of Congress.” Id., at 383.
The Court’s references to “process” in Utah & Northern R. Co. and Kagama, and the Court’s concern in Kagama over possible federal encroachment on state prerogatives, suggest state authority to issue search warrants in cases such as the one before us. (“Process” is defined as “any means used by a court to acquire or exercise its jurisdiction over a person or over specific property,” Black’s Law Dictionary 1084 (5th ed. 1979), and is equated in criminal cases with a warrant, id., at 1085.) It is noteworthy that Kagama recognized the right of state laws to “operat[e] . . . upon [non-Indians] found” within a reservation, but did not similarly limit to non-Indians or the property of non-Indians the scope of the process of state courts. This makes perfect sense, since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to “prevent [such areas] from becoming an asylum for fugitives from justice.” Fort Leavenworth R. Co. v. Lowe, 114 U. S. 525, 533 (1885).
We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations — to “the right to make laws and be ruled by them.” The State’s interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe’s self-government than federal enforcement of federal law impairs state government. Respondents argue that, even conceding the State’s general interest in enforcing its off-reservation poaching law on the reservation, Nevada’s interest in this, suit is minimal, because it is a suit against state officials in their individual capacities. We think, however, that the distinction between individual and official capacity suits is irrelevant. To paraphrase our opinion in Tennessee v. Davis, 100 U. S. 257, 263 (1880), which upheld a federal statute permitting federal officers to remove to federal court state criminal proceedings brought against them for their official actions, a State “can act only through its officers and agents,” and if a tribe can “affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws,” “the operations of the [state] government may at any time be arrested at the will of the [tribe].” Cf. Anderson v. Creighton, 488 U. S. 635, 638 (1987) (“[Permitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties”).
C
The States’ inherent jurisdiction on reservations can of course be stripped by Congress, see Draper v. United States, 164 U. S. 240, 242-243 (1896). But with regard to the jurisdiction at issue here that has not occurred. The Government’s assertion that “[a]s a general matter, although state officials have jurisdiction to investigate and prosecute crimes on a reservation that exclusively involve non-Indians, . . . they do not have jurisdiction with respect to crimes involving Indian perpetrators or Indian victims,” Brief for United States as Amicus Curiae 12-13, n. 7, is misleading. The statutes upon which it relies, see id., at 18-19, show that the last half of the statement, like the first, is limited to “crimes on a reservation.” Sections 1152 and 1153 of Title 18, which give United States and tribal criminal law generally exclusive application, apply only to crimes committed in Indian country; Public Law 280, codified at 18 U. S. C. § 1162, which permits some state jurisdiction as an exception to this rule, is similarly limited. And 25 U. S. C. §2804, which permits federal-state agreements enabling state law enforcement agents to act on reservations, applies only to deputizing them for the enforcement of federal or tribal criminal law. Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation. To the contrary, 25 U. S. C. § 2806 affirms that “the provisions of this chapter alter neither ... the law enforcement, investigative, or judicial authority of any . . . State, or political subdivision or agency thereof....”
III
We ton next to the contention of respondent and the Government that the tribal court, as a court of general jurisdiction, has authority to entertain federal claims under § 1983. It is certainly true that state courts of “general jurisdiction” can adjudicate cases invoking federal statutes, such as § 1983, absent congressional specification to the contrary. “Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States,” Tafflin v. Levitt, 493 U. S. 455, 458 (1990). That ¿his would be the case was assumed by the Framers, see The Federalist No. 82, pp. 492-493 (C. Rossiter ed. 1961). Indeed, that state courts could enforce federal law is presumed by Article III of the Constitution, which leaves to Congress the decision whether to create lower federal courts at all. This historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts.
Respondents’ contention that tribal courts are courts of “general jurisdiction” i& also quite wrong. A state court’s jurisdiction is general, in that it “lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe.” Id., at 493. Tribal courts, it should be clear, cannot ,be courts of general jurisdiction in this sense, for a tribe’s inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction. See supra, at 357-359. It is true that some statutes proclaim tribal-court jurisdiction over certain questions of federal law. See, e. g., 25 U. S. C. § 1911(a) (authority to adjudicate child custody disputes under the Indian Child Welfare Act of 1978); 12 U.S.C. § 1715z-13(g)(5) (jurisdiction over mortgage foreclosure actions brought by the Secretary of Housing and Urban Development against reservation homeowners). But no provision in federal law provides for tribal-court jurisdiction over § 1983 actions.
Furthermore, tribal-court jurisdiction would create serious anomalies, as the Government recognizes, because the general federal-question removal statute refers only to removal from state court, see 28 U. S. C. § 1441. Were § 1983 claims cognizable in tribal court, defendants would inexplicably lack the right available to state-court §1983 defendants to seek a federal forum. The Government thinks the omission of reference to tribal courts in §1441 unproblematic. Since, it argues, “[i]t is doubtful... that Congress intended to deny tribal court defendants the right given state court defendants to elect a federal forum for the adjudication of causes of action under federal law,” we should feel free to create that right by permitting the tribal-court defendant to obtain a federal-court injunction against the action, effectively forcing it to be refiled in federal court. Brief for United States as Amicus Curiae 25-26. The sole support for devising this extraordinary remedy is El Paso Natural Gas Co. v. Neztsosie, 526 U. S. 473 (1999), where we approved a similar procedure with regard to claims under the Price-Anderson Act brought in tribal court. In Neztsosie, however, the claims were not initially federal claims, but Navajo tort claims that the Price-Anderson Act provided “shall be deemed to be ... actionfe] arising under” 42 U. S. C. § 2210; there was little doubt that the tribal court had jurisdiction over such tort claims, see 526 U. S,, at 482, n. 4. And for the propriety of the injunction in Neztsosie, we relied not on § 1441, but on the removal provision of the Price-Anderson Act, 42 U. S. C. § 2210(n)(2). Although, like §1441, that provision referred only to removal from state courts, in light of the Act’s detailed and distinctive provisions for the handling of “nuclear incident” cases in federal court, see 526 U. S., at 486, we thought it clear Congress envisioned the defendant’s ability to get into federal court in all instances. Not only are there missing here any distinctive federal-court procedures, but in order even to confront the question whether an unspecified removal power exists, we must first attribute to tribal courts jurisdiction that is not apparent. Surely the simpler way to avoid the removal problem is to conclude (as other indications suggest anyway) that tribal courts cannot entertain § 1983 suits.
IV
The last question before us is whether petitioners were required to exhaust their jurisdictional claims in Tribal Court before bringing them in Federal District Court. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 856-857 (1985). In National Farmers Union we recognized exceptions to the exhaustion requirement, where “an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith,... or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court’s jurisdiction,” id., at 856, n. 21 (internal quotation marks omitted). None of these exceptions seems applicable to this case, but we added a broader exception in Strate: “[w]hen ... it is plain that no federal grant provides for tribal governance of nonmembers’ conduct on land covered by Montana’s main rule,” so the exhaustion requirement “would serve no purpose other than delay.” 520 U. S., at 459-460, and n. 14. Though this exception too is technically inapplicable, the reasoning behind it is not. Since it is clear, as we have discussed, that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases “would serve no purpose other than delay,” and is therefore unnecessary.
V
Finally, a. few words in response to the concurrence of Justice O’Connor, which is in large part a dissent from the views expressed in this opinion.
The principal point of the concurrence is that our reasoning “gives only passing consideration to the fact that the. state officials’ activities in this case occurred on land owned and controlled by the Tribes,” post, at 392. According to Justice O’Connor, “that factor is not prominent in the Court’s analysis,” post, at 395. Even a cursory reading of our opinion demonstrates that this is not so. To the contrary, we acknowledge that tribal ownership is a factor in the Montana analysis, and a factor significant enough that it “may sometimes be . . . dispositive,” supra, at 360. We simply do not find it dispositive in the present case, when weighed against the State’s interest in pursuing off-reservation violations of its laws. See supra, at 364 (concluding that “[t]he State’s interest in execution of process is considerable” enough to outweigh the tribal interest in self-government “even when it relates to Indian-fee lands”). The concurrence is of course free to disagree with this judgment; but to say that failure to give tribal ownership determinative effect “fails to consider adequately the Tribe’s inherent sovereign interests in activities on their land,” post, at 401 (opinion of O’Connor, J.), is an exaggeration.
The concurrence marshals no authority and scant reasoning to support its judgment that tribal authority over state officers pursuing, on tribe-owned land, off-reservation violations of state law may be “necessary to protect tribal self-government or to control internal relations.” Montana, 450 U. S., at 564-565. Self-government and internal relations are not directly at issue here, since the issue is whether the Tribes’ law will apply, not to their own members, but to a narrow category of outsiders. And the concurrence does not try to explain how allowing state officers to pursue off-reservation violation of state law “threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe,” id., at 566. That the actions of these state officers cannot threaten or affect those interests is guaranteed by the limitations of federal constitutional and statutory law to which the officers are fully subject.
The concurrence exaggerates and distorts the consequences of our conclusion, supra, at 359, n. 3, that the term “other arrangements” in a passage from Montana referred to other “private consensual” arrangements — so that it did not include the state officials’ obtaining of tribal warrants in the present case. That conclusion is correct, as a fuller exposition of the passage from Montana makes clear:
“To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U. S., at 565.
The Court (this is an opinion, bear in mind, not a statute) obviously did not have in mind States or state officers acting in their governmental capacity; it was referring to private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. This is confirmed by the fact that all four of the cases in the immediately following citation involved private commercial actors. See Confederated Tribes, 447 U. S., at 152 (nonmember purchasers of cigarettes from tribal outlet); Williams v. Lee, 358 U. S., at 217 (general store on the Navajo reservation); Morris v. Hitchcock, 194 U. S. 384 (1904) (ranchers grazing livestock and horses on Indian lands “under contracts with individual members of said tribes”); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (challenge to the “permit tax” charged by a tribe to nonmembers for “the privilege ... of trading within the borders”).
The concurrence concludes from this brief footnote discussion that we would invalidate express or implied cessions of regulatory authority over nonmembers contained in state-tribal cooperative agreements, including those pertaining to mutual law enforcement assistance, tax administration assistance, and child support and paternity matters. See post, at 393-394. This is a great overreaching. The footnote does not assert that “a consensual relationship [between a tribe and a State] could never exist,” post, at 394 (opinion of O’Connor, J.). It merely asserts that “other arrangements” in the passage from Montana does not include state officers’ obtaining of an (unnecessary) tribal warrant. Whether contractual relations between State and tribe can expressly or impliedly confer tribal regulatory jurisdiction over nonmembers — and whether such conferral can be effective to confer adjudicative jurisdiction as well — are questions that may arise in another case, but are not at issue here.
Another exaggeration is the concurrence’s contention that we “give nonmembers freedom to act with impunity on tribal land based solely on their status as state law enforcement officials,” post, at 401 (opinion of O’Connor, J.). We do not say state officers cannot be regulated; we say they cannot be regulated in the performance of their law enforcement duties. Action unrelated to that is potentially subject to tribal control depending on the outcome of Montana analysis. Moreover, even where the issue is whether the officer has acted unlawfully in the performance of his duties, the tribe and tribe members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights.
We must comment upon the final paragraphs of Part II of the concurrence’s opinion — which bring on stage, in classic fashion, a deus ex machina to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending. The concurrence manages to have its cake and eat it too — to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers’ traditional immunity (and hence the State’s law enforcement interest) will be protected — by simply announcing “that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction.” Post, at 401 (opinion of O’Connor, J.). What wonderful magic. Without so much as a citation (none is available) the concurrence declares the qualified immunity inquiry to be part of the jurisdictional inquiry, thus bringing it within the ken of the federal court at the outset of the case. There are two problems with this declaration. The first is thát it is not true. There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court’s jurisdiction — much less to the tribe’s regulatory jurisdiction, which is what is at issue here. (If they did pertain to the court’s jurisdiction, they would presumably be nonwaivable. Cf. Idaho v. Coeur d’Alene Tribe of Idaho, 521 U. S. 261, 267 (1997).) And the second problem is that without first determining whether the tribe has regulatory jurisdiction, it is impossible to know which “immunity defenses” the federal court is supposed to consider. The tribe’s law on this subject need not be the same as the State’s; indeed, the tribe may decide (as did the common law until relatively recently) that there is no immunity defense whatever without a warrant. See California v. Acevedo, 500 U. S. 565, 581 (1991) (SCALIA, J., concurring in judgment). One wonders whether, deprived of its deus ex machina, the concurrence would not alter the conclusion it reached in Part I of its opinion, and agree with us that a proper balancing of state and tribal interests would give the Tribes no jurisdiction over state officers pursuing off-reservation violations of state law.
Finally, it is worth observing that the concurrence’s resolution would, for the first time, hold a non-Indian subject to the jurisdiction of a tribal court. The question (which we have avoided) whether tribal regulatory and adjudicatory jurisdiction are coextensive is simply answered by the concurrence in the affirmative. As Justice Soutee’s sepárate opinion demonstrates, it surely deserves more considered analysis.
* * *
Because the Fallon Paiute-Shoshone Tribes lacked legislative authority to restrict, condition, or otherwise regulate the ability of state officials to investigate off-reservation violations of state law, they also lacked adjudicative authority to hear respondent’s claim that those officials violated tribal law in the performance of their duties. Nor can the Tribes identify any authority to adjudicate respondent’s §1988 claim. And since the lack of authority is clear, there is no need to exhaust the jurisdictional dispute in tribal court. State officials operating on a reservation to investigate off-reservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court.
The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with our opinion.
It is so ordered.
Hereinafter, Hicks will be referred to as “respondent.” The Tribal Court and Judge are also respondents, however, and are included when the term “respondents” is used.
In National Farmers Union Ins. Cos. v. Crow Tribe, 471 U. S. 845, 855-856 (1985), we avoided the question whether tribes may generally adjudicate against nonmembers claims arising from on-reservation transactions, and we have never held that a tribal court had jurisdiction over a nonmember defendant. . Typically, our cases have involved claims brought against tribal defendants. See, e. g., Williams v. Lee, 358 U. S. 217 (1959). In Strate v. A-l Contractors, 520 U. S. 438, 453 (1997), however, we assumed that “where tribes possess authority to regulate the activities of nonmembers, civil jurisdiction over disputes arising out of such activities presumably lies in the tribal courts,” without distinguishing between nonmember plaintiffs and nonmember defendants. See also Iowa Mut. Ins. Co. v. LaPlante, 480 U. S. 9, 18 (1987). Our holding in this case is limited to the question of tribal-court jurisdiction over state officers enforcing state law. We leave open the question of tribal-court jurisdiction over nonmember defendants in general.
Montana recognized an exception to this rule for tribal regulation of “the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements.” 450 U. S., at 565. Though the wardens in this case “consensually” obtained a warrant from the Tribal Court before searching respondent’s home and yard, we do not think this qualifies as an “other arrangement” within the meaning of this passage. Read in context, an “other arrangement” is clearly another private consensual relationship, from which the official actions at issue in this case are far removed.
Our holding in Worcester must be considered in light of the fact that “[t]he 1828 treaty with the Cherokee Nation . . . guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory.” Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962); cf. Williams v. Lee, 358 U. S., at 221-222 (comparing Navajo treaty to the Cherokee treaty in Worcester).
Though Utah & Northern R. Co. did not state what it meant by a “reservation of this kind,” the context makes clear that it meant a reservation not excluded from the territory of a State by treaty. See, e. g., Harkness v. Hyde, 98 U. S. 476, 478 (1879); The Kansas Indians, 5 Wall. 737, 739-741 (1867).
That this risk is not purely hypothetical is demonstrated by Arizona ex rel. Merrill v. Turtle, 413 F. 2d 683 (CA9 1969), a case in which the Navajo Tribal Court refused to extradite a member to Oklahoma because tribal law forbade extradition except to three neighboring States. The Ninth Circuit held that Arizona (where the reservation was located) could not enter the reservation to seize the suspect for extradition since (among other reasons) this would interfere with tribal self-government, id,., at 685-686.
Justice Stevens questions why it is necessary to consider tribal-court jurisdiction over § 1983 claims, since we have already determined that “tribal courts lack . . . jurisdiction over ‘state wardens executing a search warrant for evidence of an off-reservation crime,’ ” post, at 402, n. 1 (opinion concurring in judgment). It is because the latter determination is based upon Strate’s holding that tribal-court jurisdiction does not exceed tribal regulatory jurisdiction; and because that holding contained a significant qualifier: “[a]bsent congressional direction enlarging tribal-court jurisdiction,” 520 U. S., at 453. We conclude (as we must) that § 1983 is not such an enlargement.
Justice Stevens argues that “[a]bsent federal law to the contrary, the question whether tribal courts are courts of general jurisdiction is fundamentally one of tribal law.” Post, at 402 (emphasis deleted). The point of our earlier discussion is that Strate is “federal law to the contrary.” Justice Stevens thinks Strate cannot fill that role, because it “merely concerned the circumstances under which tribal courts can exert jurisdiction over claims against nonmembers,” post, at 403, n. 3. But Strate’s limitation on jurisdiction over nonmembers pertains to subject-matter, rather than merely personal, jurisdiction, since it turns upon whether the actions at issue in the litigation are regulable by the tribe. One can of course say that even courts of limited subject-matter jurisdiction have general jurisdiction over those subjects that they can adjudicate (in the present case, jurisdiction over claims pertaining to activities by nonmembers that can be regulated) — but that makes the concept of general jurisdiction meaningless, and is assuredly not the criterion that would determine whether these courts received authority to adjudicate §1983 actions.
Justice O’Connor claims we have gone beyond the scope of the questions presented in this case by determining whether the Tribes could regulate the state game warden’s actions on tribal land, because this is a case about tribal “civil adjudicatory jurisdiction.” See post, at 397 (opinion concurring in part and concurring in judgment). But the third question presented, see Pet. for Writ of Cert, i, is as follows: “Is the rule of [Montana], creating a presumption against tribal court jurisdiction over nonmembers, limited to cases in which a cause of action against a nonmember arises on lands within a reservation which are not controlled by the tribe?” Montana dealt only with regulatory authority, and is tied to adjudicatory authority by Strate, which held that the latter at best tracks the former. As is made clear in the merits briefing, petitioners’ argument is that the Tribes lacked adjudicatory authority because they lacked regulatory authority over the game wardens. See Brief for Petitioners 36-44.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer: |
sc_jurisdiction | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
CHICAGO, ROCK ISLAND & PACIFIC RAILROAD CO. v. STUDE et al.
No. 209.
Argued December 2-3, 1953.
Decided January 18, 1954.
Alden B. Howland and B. A. Webster, Jr. argued the cause for petitioner. Mr. Howland also filed a brief for petitioner.
Raymond A. Smith and Harold W. Kauffman argued the cause for respondents. With them on the brief were Daniel J. Gross, Philip J. Willson and John M. Peters.
Mr. Justice Minton
delivered the opinion of the Court.
The petitioner, a Delaware corporation, owns and operates its railroad through Pottawattamie County, Iowa. It was authorized by the Interstate Commerce Commission to improve its line of railway in that county and by the Iowa State Commerce Commission to acquire by condemnation any land necessary for the improvement.
On January 18, 1952, pursuant to the Iowa Code, the petitioner filed with the sheriff of the county its application to condemn certain lands in the county owned by respondent Stude. The sheriff appointed a commission of six resident freeholders to assess damages. Notice was given by the sheriff to the respondent owner and others interested in the land, and an award of damages in the sum of $23,888.60 was allowed to the owner and $1,000 to the tenant. The amount of the assessment was paid by the petitioner to the sheriff and the petitioner took possession of the land. Such appraisal became final unless appealed from.
On March 6, 1952, the petitioner filed with the sheriff of the county a notice of appeal from the commission’s award. The Iowa Code provides for appeal as follows:
“472.18 Appeal. Any party interested may, within thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, his agent or attorney, and the sheriff, written notice that such appeal has been taken.
“472.21 Appeals — how docketed and tried. The appeal shall be docketed in the name of the owner of the land, or of the party otherwise interested and appealing, as plaintiff, and in the name of the applicant for condemnation as defendant, and be tried as in an action by ordinary proceedings.” Code of Iowa, 1950.
The petitioner then filed a complaint in the United States District Court for the Southern District of Iowa against the respondents in which it alleged diversity of citizenship, jurisdictional amount, authority to make improvements and to condemn therefor, together with a description of the land and that respondent Stude was the owner, and that the assessment proceedings had been instituted in the sheriff’s office, resulting in the assessment of damages of $23,888.60, which was alleged to be excessive, and that appeal was taken by notice duly given. This notice was referred to as Exhibit A to the complaint, which exhibit recited that the appeal was taken to the Federal District Court for the Southern District of Iowa, and a transcript of the sheriff’s proceeding was filed in that court. The prayer was that the damages for the taking of the land be fixed at not more than $10,000. On this complaint, a summons was issued and served upon the respondents.
The petitioner also filed an appeal from this assessment in the state court, the District Court for Potta-wattamie County. The case was docketed there with the landowner as the plaintiff and the petitioner-con-demnor as defendant, as required by the Iowa Code. Thereafter, a petition to remove the cause to the federal court was filed by the petitioner. The respondents filed in the Federal District Court a motion to dismiss the complaint filed therein and a motion to remand the case removed from the state court.
The federal court granted the motion to dismiss and dismissed the complaint but denied the motion to remand. The petitioner appealed from the judgment dismissing its complaint. The respondents gave notice of appeal from the order of the District Court denying the motion to remand. The Court of Appeals affirmed the District Court’s judgment dismissing the complaint and reversed the District Court’s denial of the motion to remand, and ordered the cause remanded to the state court. 204 F. 2d 116, 204 F. 2d 954. We granted certiorari, 346 U. S. 810.
The Order Denying the Motion to Remand. Obviously, such an order is not final and appealable if standing alone. Reed v. Lehman, 91 F. 2d 919; Miller v. Pyrites Co., 71 F. 2d 804. While these two cases were separate actions pending on the docket of the Federal District Court, they both involve the same subject and they were treated by the parties, the District Court and the Court of Appeals as if the dismissal appealed from and the order in the removal case were made in one case. Treating them as one case, the cross-error, challenging the order denying the motion to remand, may be considered as assigned in a case involving an appealable order, the order dismissing the complaint and the action. This is true despite the fact that the order denying the motion to remand standing alone would not be appealable. Deckert v. Independence Shares Corp., 311 U. S. 282, 287.
We come therefore to the merits of the motion to re- . mand. The question on this motion is whether the petitioner was a defendant nonresident of Iowa and therefore authorized to remove to the Federal District Court as provided by statute, 28 U. S. C. § 1441 (a).
The proceeding before the sheriff is administrative until the appeal has been taken to the district court of the county. Then the proceeding becomes a civil action pending before “those exercising judicial functions” for the purpose of' reviewing the question of damages. Myers v. Chicago & N. W. R. Co., 118 Iowa 312, 315-316, 91 N. W. 1076, 1078. When the proceeding has reached the stage of a perfected appeal and the jurisdiction of the state district court is invoked, it then becomes in its nature a civil action and subject to removal by the defendant to the United States District Court. Boom Co. v. Patterson, 98 U. S. 403, 407.
Is the petitioner such a defendant? The petitioner contends it is because the Code of Iowa, § 472.21, provides that on appeal, the case shall be docketed in the district court with the landowner as the plaintiff and the condemnor as the defendant and thereafter tried as in an original proceeding. The Supreme Court of Iowa has construed this statute to mean that in such proceedings on appeal, the condemnor is the defendant. Myers v. Chicago & N. W. R. Co., supra, at 324, 91 N. W., at 1081. This Court was urged in Mason City R. Co. v. Boynton, 204 U. S. 570, to follow that construction put upon this identical provision of the Iowa statute by the Supreme Court of Iowa. This Court declined to do so, saying:
“It is said that this court is bound by the construction given to the state law by the state court. Indeed the above § 2009 does not need construction; it enacts, in terms, that the landowner shall be plaintiff. As the right to remove a suit is given only to the defendants therein, being non-residents of the State, it is argued that the state decision ends the case.
“But this court must construe the Act of Congress regarding removal. And it is obvious that the word defendant as there used is directed toward more important matters than the burden of proof or the right to open and close. It is quite conceivable that a state enactment might reverse the names which for the purposes of removal this court might think the proper ones to be applied. In condemnation proceedings the words plaintiff and defendant can be used only in an uncommon and liberal sense. The plaintiff complains of nothing. The defendant denies no past or threatened wrong. Both parties are actors: one to acquire title, the other to get as large pay as he can. It is not necessary in order to decide that the present removal was right to say that the state decision was wrong. We leave the latter question where we find it. . . .
“Therefore, in a broad sense, the railroad is the plaintiff, as the institution and continuance of the proceedings depend upon its will. . . .” 204 U. S. 570, at 579-580.
For the purpose of removal, the federal law determines who is plaintiff and who is defendant. It is a question of the construction of the federal statute on removal, and not the state statute. The latter’s procedural provisions cannot control the privilege of removal granted by the federal statute. Shamrock Oil Corp. v. Sheets, 313 U. S. 100, 104. Here the railroad is the plaintiff under 28 U. S. C. § 1441 (a) and cannot remove. The remand was proper.
The Motion to Dismiss. We think it was properly granted, and the original complaint in the Federal District Court correctly dismissed. The steps taken by the petitioner were those to perfect an appeal to the Federal District Court. The notice said it was the intention of the petitioner to docket the appeal in the federal court. The transcript on appeal was filed in the federal court, and the complaint filed sought a review of the commission’s assessment of damages. The proceeding makes no sense on any other basis, for the action is brought not by the person injured, namely, the landowner, but by the railroad that inflicted the damage. It will be noticed further that there is no prayer for damages but only for a review of the assessment, in keeping with the Iowa Code, § 472.23, which provides “no judgment shall be rendered except for costs . . . In short, it was an attempt of the petitioner to review the state proceedings on appeal to the Federal District Court.
The petitioner, after giving notice of appeal by filing notice with the sheriff, etc., could not perfect that appeal to any court but the court which the statute of Iowa directed, which was the District Court of that State for the County of Pottawattamie. The United States District Court for the Southern District of Iowa does not sit to review on appeal action taken administratively or judicially in a state proceeding. A state “legislature may not make a federal district court, a court of original jurisdiction, into an appellate tribunal or otherwise expand its jurisdiction . . . Burford v. Sun Oil Co., 319 U. S. 315, 317. The Iowa Code does not purport to authorize such an appeal, Congress has provided none by statute, and the Federal Rules of Civil Procedure make no such provision.
We cannot ignore this plain attempt to appeal and treat the complaint as initiating an original action, as if the parties had agreed that the petitioner could take the land, leaving only a controversy as to the amount of compensation. In that instance, there would be an implied agreement that the petitioner would pay the landowner the fair value of the land. Either party might in that posture of the case ask for a declaration as to the amount of compensation owing. The claim for damages would arise in that case from the substantive rights given by the implied contract, and the suit would be one to enforce that contract. We have no such case here. The right to take the land and the ensuing right to damages here spring from the exercise of the power of eminent domain. The petitioner here seems to ignore the means by which it obtained the land and seeks to review only the question of damages. It may not separate the question of damages and try it apart from the substantive right from which the claim for damages arose. Nor can it be said that petitioner has fully exercised its power of eminent domain, leaving nothing to be determined but the question of damages. Petitioner has possession but not title to the land. The land does not belong to the petitioner until the damages are paid. The sheriff, or the clerk of the state district court in case of appeal, must file in the county recorder’s office all the papers filed in the proceeding. Code of Iowa, 1950, § § 472.35, 472.36. The Iowa Code, § 472.41, makes this record presumptive evidence of title in the condemnor. Petitioner is still in the process of trying to get the land by virtue of its power of eminent domain. But obviously the complaint here was not filed to invoke the jurisdiction of the federal court in an eminent domain proceeding.
The Federal Rules of Civil Procedure do have elaborate provisions for procedure in the federal court in condemnation proceedings. It is obvious that the petitioner was not proceeding under these Rules. Whether it could so proceed as an original action in the United States District Court for the Southern District of Iowa is not before us.
The judgment is
Affirmed.
Mr. Justice Jackson concurs in the result.
“471.6 Railways. Any railway, incorporated under the laws of the United States or of any state thereof, may acquire by condemnation or otherwise so much real estate as may be necessary for the location, construction, and convenient use of its railway. . . .
“472.3 Application for condemnation. Such proceedings shall be instituted by a written application filed with the sheriff of the county in which the land sought to be condemned is located. . . .
“472.4 Commission to assess damages. The sheriff shall thereupon, except as otherwise provided, appoint six resident freeholders of his county, none of whom shall be interested in the same or a like question, who shall constitute a commission to assess the damages to all real estate desired by the applicant and located in the county.” Code of Iowa, 1950.
“472.25 Right to take possession of lands. Upon the filing of the commissioners’ report with the sheriff, the applicant may deposit with the sheriff the amount assessed in favor of a claimant, and thereupon the applicant shall, except as otherwise provided, have the right to take possession of the land condemned and proceed with the improvement. No appeal from said assessment shall affect such right, except as otherwise provided.” Code of Iowa, 1950.
In that ease, the power of eminent domain was relied upon from beginning to end.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer: |
songer_applfrom | J | 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).
PEELLE CO. v. SECURITY FIRE DOOR CO.
No. 9314.
Circuit Court of Appeals, Eighth Circuit.
April 14, 1932.
Thomas J. Johnston, of New York City (J. Granville Meyers, of New York City, on the brief), for appellant.
Joseph J. Gravely, of St. Louis, Mo. (James A. Carr and T. Percy Carr, both of St. Louis, Mo., on the brief), for appellee.
Before STONE and BOOTH, Circuit Judges, and WYMAN, District Judge.
STONE, Circuit Judge.
This is an action for alleged infringement of claims 1, 2, 3, 4, 7, 8, and 9 of patent No. 1,414,387, to Benjamin Wexler. The defenses are invalidity of the patent and noninfringement. Prom a decree adjudging the claims involved invalid, plaintiff takes this appeal.
This patent is for a dumb-waiter door structure. The structure embodies a rigid metal frame at the door opening having guides or tracks wherein vertically travel two counterbalanced half doors. The entire construction, including the doors, is made and shipped as a unit. The main object of the invention is stated to be a construction capable of installation as a unit and, at the same time, insuring a fixed permanent relation of parts which will insure free easy movement of the doors after installation.
The court found that the claims involved were invalid because anticipated by various patents and by several catalogued disclosures cited in the memorandum opinion.
We have carefully examined each of the numerous urged citations against the patent. Some of these citations show only a part or only some of the principles involved in these claims, but several of them rather clearly set out the entire idea. It is unnecessary to discuss these in detail, since one of them, Dugdale No. 1,133,794, is sufficient to avoid this patent. However, we may observe that the elements are old. The angle side members are found in numerous patents such as Cross, No. 560,396; Dug-dale, 1,133,794; and others; also in Catalogues A and B of Variety Manufacturing Company; and in Thorpe Catalogue, all of which were offered in evidence. The two-part doors counterbalanced are also found in many patents including Dugdale and Cross and prior Wexler patents; also in the Catalogues of the Variety Manufacturing Company. The guides or tracks secured to a flange of the vertical side bars are found in the Variety Manufacturing Company Catalogues B and A; in the Cross patent; and in the Dugdale patent. The use of anchors for embedding in the wall are found in the Appleton patent, No. 931,714, and in the Variety Manufacturing Company Catalogue B. Sill and lintel members secured to the vertical angle side members and spaced apart are found in Dugdale, and in the Variety Manufacturing Company Catalogues A and B. Nor is the combination new. It is found in Dugdale; in the Catalogues A and B of the Variety Manufacturing Company; and, furthermore, is covered by the fact testimony given on the trial.
In Dugdale there are the same character of doors, door movement members and frame, and the entire device is designed to be manufactured as a unit “ready to be set up at the place of the chute which said doors are to occupy.” Not only are all of the outlines of the patent in suit shown in Dugdale, but there is much similarity in detail.
It is contended by the appellant that the prior art disclosed by some of the patents is not of dumb-waiter doors, but of freight elevator doors, and that freight elevator doors are not in the same art with dumbwaiter doors. We discover no merit in this contention. An examination of the structures disclosed shows that the main difference is one of size, and the evidence on the trial also disclosed that dumb-waiters were considered in the same art as freight elevators, only that they were smaller. We are therefore of the opinion that the prior art, including freight elevator door construction, is to be considered.
The decree should be and is affirmed. ■
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer: |
songer_appel1_2_2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". Your task is to determine what category of private associations best describes this litigant.
ACTION FOR CHILDREN’S TELEVISION, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents, CBS, Inc., National Association of Broadcasters, Washington Association for Television and Children, Office of Communication of the United Church of Christ, American Broadcasting Companies, Inc., Communication Commission of the National Council of Churches of Christ in the U.S.A., Association of Independent Television Stations, Inc., Forward Communications Corp., et al., National Broadcasting Company, Inc., Intervenors.
No. 84-1052.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 18, 1985.
Decided March 19, 1985.
See also, 546 F.Supp. 872.
Petition for Review of an Order of the Federal Communications Commission.
Henry Geller, Washington, D.C., with whom William August, Cambridge, Mass., was on the brief, for petitioner.
C. Grey Pash, Jr., Counsel, F.C.C., Washington, D.C., with whom Bruce E. Fein, Gen. Counsel, and Daniel M. Armstrong, Associate Gen. Counsel, F.C.C., Washington, D.C., were on brief, for respondents. George Edelstein and Robert B. Nicholson, Dept, of Justice, Washington, D.C., entered appearances for respondent Dept, of Justice.
Sally Katzen, Washington, D.C., with whom Carl R. Raney, Joel Rosenbloom, Carol H. Fishman, Valerie G. Schulte, Washington, D.C., Corydon B. Dunham, New York City, and Howard Monderer, Washington, D.C., were on joint brief, for intervenors American Broadcasting Companies, Inc., et al. Erwin G. Krasnow, Washington, D.C., also entered an appearance for intervenor Nat. Ass’n of Broadcasters.
Barbara R. Shufro, Wilhelmina Reuben Cooke, Washington, D.C., and Donna De-mac, New York City, were on brief, for intervenors Wash. Ass’n for Television and Children, et al.
J. Laurent Scharff, Jack N. Goodman and Robert J. Aamoth, Washington, D.C., were on brief, for intervenor Ass’n of Independent Television Stations, Inc. James M. Smith, Washington, D.C., also entered an appearance for intervenor Ass’n of Independent Television Stations, Inc.
Robert M. Gurss and Andrew Jay Schwartzman, Washington, D.C., were on brief, for amicus curiae Nat. Educ. Ass’n urging reversal.
Before WRIGHT, GINSBURG, and SCALIA, Circuit Judges.
Judge Ginsburg took no part in the decision of this case.
Opinion PER CURIAM.
PER CURIAM.
Petitioner Action for Children’s Television and supporting intervenors (“petitioners”) challenge the Federal Communications Commission’s January 4, 1984 Report and Order defining the obligations of television broadcast licensees to their child audiences. See In re Children’s Television Programming and Advertising Practices, 96 F.C.C.2d 634 (1984) (“1984 Order”). There the Commission found that the video market, considered as a whole, does not exhibit a clear failure to serve the needs and interests of the child audience, and that mandatory programming rules (including flexible processing guidelines for license renewal applications) raise serious problems of law and policy; and accordingly elected simply to reaffirm “the general licensee obligations emphasized by the Commission in its [Children’s Television Report and Policy Statement, 50 F.C.C.2d 1 (1974) (“1974 Statement”), aff'd sub nom., Action for Children’s Television v. FCC, 564 F.2d 458 (D.C.Cir.1977) ] and ... the general requirement that stations provide programming responsive to the needs and interests of the communities they serve.” 96 F.C.C.2d at 655 (footnote omitted). Petitioners assert that the agency improperly considered the children's programming available from all video sources in finding no market failure warranting more intensive regulation of commercial broadcasting; that it gave insufficient consideration to flexible processing guidelines; that it arbitrarily and without explanation dropped the 1974 Statement’s requirement that licensees make a reasonable effort to provide age-specific, informational, and educational children’s programming; and that it ignored relevant evidence.
After carefully considering petitioners’ arguments, we conclude that the Commission’s decision was within the broad scope of its discretion and was adequately explained by the 1984 Order. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 593-96, 101 S.Ct. 1266, 1273-75, 67 L.Ed.2d 521 (1981); NAACP v. FCC, 682 F.2d 993, 998 (D.C.Cir.1982). The differences between the 1984 Order and the 1974 Statement are attributable to changes in the Commission’s judgment about how best to serve the public interest, convenience and necessity, and the reasons for these changes are stated in the Order with sufficient clarity to withstand judicial scrutiny. See Motor Vehicle Manufacturers Ass’n, Inc. v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 42-43, 103 S.Ct. 2856, 2866-67, 77 L.Ed.2d 443 (1983).
Only two issues raised by petitioners require brief discussion. First, petitioners assert that it was improper for the Commission, in making its determination of public needs for children’s programming, to take into account such programming available on cable television or on noncommercial television broadcasting stations. We think not. As to cable: While that medium is not available in all areas or to all segments of the viewing community, it has a sufficiently broad and increasing presence that the Commission may appropriately consider its offerings in determining the necessity for such nationwide rules as petitioners favored. This does not mean, and we do not interpret the Commission to suggest, that in a particular service area where cable penetration is insubstantial or nonexistent that medium can have any effect upon the broadcaster’s assessment of the most significant needs of his community; or that the broadcaster in any community can disregard the needs of those not served by cable. We also see no need for the Commission to blind itself to the contribution of noncommercial television. To be sure, Congress did not intend noncommercial broadcasting to “relieve commercial broadcasters of their responsibilities to present public affairs and public service programs, and in general to program their stations in the public interest,” S.Rep. No. 222, 90th Cong., 1st Sess. 6, reprinted in 1967 U.S.Code Cong. & Ad.News 1772, 1777. But that does not mean that the Commission must require commercial broadcasters to pursue those responsibilities in disregard of the fact that some gaps in the public interest may have been filled by that source while other needs remain entirely unmet.
The second issue relates to age-specific programming. The 1974 Statement set forth the Commission’s expectation that broadcast licensees would henceforth make a reasonable effort “to present programming designed to meet the needs of three specific age groups: (1) pre-school children, (2) primary school aged children, and (3) elementary school aged children.” 50 F.C.C.2d at 7. Petitioners express the fear that the 1984 Order, which does not explicitly discuss age-specific programming, will relieve licensees of that obligation, echoing concerns voiced by Commissioner Rivera in his dissent from the Order. See 96 F.C.C.2d at 660 n. 11. We do not read the 1984 Order that way — nor, based on their representations at oral argument, do the broadcasters or the Commission. While it imposes no detailed age-specific requirements on licensees, and expresses doubts about a number of the programming categories relied on by the 1974 Statement (e.g., “informational” and “educational”), it explicitly affirms that “there is a continuing duty, under the public interest standard, on each licensee to examine the program needs of the child part of the audience and to be ready to demonstrate at renewal time its attention to those needs.” 96 F.C.C.2d at 656. It is absurd to believe that “the program needs of the child part of the audience” were thought to be uniform, from pre-school through elementary school. It seems clear to us that under the 1984 Order broadcasters faced with renewal challenges based on the adequacy of their children’s programming can be called upon to explain why they chose to focus on the needs and interests of certain age groups or other segments of the child audience, or why they emphasized emotional rather than cognitive needs. Licensees can expect the Commission to defer to reasonable programming decisions in this field, but that is a far cry from the wholesale abolition of licensee responsibility perceived by petitioners.
Petition denied.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "private organization or association". What category of private associations best describes this litigant?
A. business, trade, professional, or union (BTPU)
B. other
Answer: |
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.
COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. O. LIQUIDATING CORPORATION.
No. 13420.
United States Court of Appeals Third Circuit.
Argued Feb. 23, 1961.
Decided June 14, 1961.
Douglas A. Kahn, Washington, D. C. (Charles K. Rice, Asst. Atty. Gen., Lee Jackson, Harry Baum, Attorneys, Dept, of Justice, Washington, D. C., on the brief), for petitioner.
John S. Chapman, Jr., New York City, for respondent.
Before KALODNER, STALEY and FORMAN, Circuit Judges.
KALODNER, Circuit Judge.
Did the Commissioner of Internal Revenue abuse his statutory discretion in refusing to grant his consent to a change in the taxpayer’s method of accounting for a material item of gross income ?
That is the critical question presented by the Commissioner of Internal Revenue’s petition for review of the Tax Court decision which answered it in the affirmative.
Treasury Regulations 118, § 39.41-2, relating to Sections 41 and 42 of the Internal Revenue Code of 1939 provide in relevant part as follows:
“(c) A taxpayer who changes the method of accounting employed in keeping his books shall, before computing his income upon such new method for purposes of taxation, secure the consent of the Commissioner. * -x- * Permission to change the method of accounting will not be granted unless the taxpayer and Commissioner agree to the terms and conditions under which the change will be effected. * * * ”
The relevant facts, as stipulated and found by the Tax Court, are not in dispute and may be summarized as follows:
The O. Liquidating Corporation (“taxpayer”), has at all times kept its books and reported its income on a calendar year and accrual basis. In 1918 taxpayer established, and has since broadened and continuously maintained, a group insurance plan for its employees. The premiums on the policies obtained pursuant to that plan were paid by taxpayer in monthly installments. All of the policies here involved were written by one mutual insurance company and all had a policy year coterminous with the calendar year. With one exception, each of the policies contained an identical provision, which is set out in the margin, for the payment of annual dividends. Pursuant to that provision, the actuarial department of the insurance company would, in January of each year, compute the surplus earned in the prior year and recommend a dividend formula to the board of directors. At its regular meeting in February, the board would consider the actuarial report and determine the amount of dividend, if any, to be distributed.
The policies here involved were purchased on varying dates beginning with 1941. Taxpayer has consistently followed the practice of recording on its books the amount of the monthly insurance premiums as an expense in the calendar year in which paid. During the years 1941 through 1952, inclusive, taxpayer consistently followed the practice of recording as of the year end an amount representing an accrual of the dividends to be paid by the insurance company and to be received by taxpayer in the subsequent year, which amount was recorded in the insurance expense account as an off-set to the gross premiums recorded therein for such year. In its federal income and excess profits tax returns for all years prior to 1953, petitioner claimed as a deduction for group insurance expense the net amount remaining after the reduction of the amount of gross premiums paid within the calendar year by the amount of dividends recorded as an accrual as of the year end.
Thus, for the year 1949, taxpayer recorded in its insurance expense account gross premiums in the amount of $170,-641.05 and an accrual in the amount of $37,713.05, representing dividends to be paid by the insurance company and to be received by taxpayer in the year 1950, leaving a net expense of $132,928.00 which was claimed and allowed as a deduction in its federal income tax return for such year. During the calendar year 1950 taxpayer received insurance dividends in the amount of $37,713.05.
During the years 1941 through 1949, taxpayer accrued as of the end of the year, the exact amount of dividends that were to be received by it in the subsequent year. In 1950, taxpayer under-accrued the amount of the dividend it subsequently received in 1951, and in 1951, taxpayer overacerued this item. In 1952 taxpayer again estimated the exact amount.
Taxpayer, in order to correct the 1950 underaccrual and the 1951 overaccrual, made adjustments in its 1951 and 1952 tax returns, the years in which the dividend was actually received. The Commissioner, however, upon auditing taxpayer’s returns for 1950, 1951 and 1952 made the necessary adjustments in the years in which the dividend was accrued, 1950 and 1951 respectively.
In 1953, taxpayer made a significant departure from its prior consistent method of accounting for the insurance dividends. In that year, taxpayer, without requesting the consent of the Commissioner, accrued no dividends and deducted the full amount of its group insurance premiums from its federal income and excess profits tax return. In 1954, taxpayer received dividends totalling $114,-117.44, which amount it reported on its return for that year. The obvious effect of this change was a deduction for group insurance expense for the year 1953 consisting of gross premiums only with no corresponding off-set for insurance dividends.
In 1956, upon examination of taxpayer’s federal income and excess profits tax return for the year 1953, the Commissioner made an adjustment decreasing taxpayer’s claimed deduction for group insurance expense by $114,117.44, i. e., he determined that the dividend received by taxpayer in 1954 should have been accrued and reported in 1953. As a result of this adjustment, taxpayer’s net deduction for insurance expenses was reduced from $265,327 to $151,209.56. It is this adjustment which is the single item in dispute here.
The Tax Court held that, since the taxpayer had no right to receive the insurance dividends prior to the determination of the board of directors of the insurance company to set aside a certain amount of surplus for distribution, which determination was always made in the year in which the dividend was paid, the taxpayer’s method of accruing and reporting this item in the year prior to payment (receipt) was erroneous. The court further held that the change in the treatment of this item by taxpayer in its 1953 federal tax return did not constitute a change in its method of accounting which would require the prior approval of the Commissioner. Accordingly, the Tax Court held that the dividend received by taxpayer in 1954 accrued in that year rather than in 1953 and that the dividend was properly reported in the later year. However, the court accepted the Commissioner’s alternative argument that, in view of the above holdings, the taxpayer erred in failing to report in 1953 the dividend it received in 1953 but which it had accrued and reported in 1952. The court adjusted the 1953 return accordingly and determined a deficiency of $50,-772.28 for that taxable year. In a dictum, however, the court stated that since the dividend received in 1953 had already been accounted for in 1952, “it appears that petitioner [taxpayer] will have adequate relief from double inclusion of an item of gross income by virtue of those sections [1311 et seq.] of the 1954 Code.” The net result of the Tax Court’s holding, and of its dictum (if applied), is that one year’s dividend will be deleted and the net insurance expense deduction for that year increased to that extent.
On this appeal, the Commissioner does not contest the Tax Court’s determination that the annual dividends accrued in the year of receipt so that the taxpayer’s former method of reporting the insurance dividends was incorrect under the accrual method of accounting. He contends, however, that under the applicable statutes and Regulations, a taxpayer may change the method of accounting employed in reporting his income only if he first obtains the consent of the Commissioner; that the reason for this rule is that a change of accounting method will normally involve a distortion of the taxpayer’s income for the year of change and, in order to protect the Government against a loss of revenues, the Commissioner conditions his consent to the change on the taxpayer’s acceptance of adjustments which would prevent the avoidance of tax liability. The Commissioner further urges that this rule applies not only to a change in an over-all method of accounting but also to a change in the method of accounting for a material item; that the change which the taxpayer made in the instant case constitutes a “change” requiring the prior approval of the Commissioner notwithstanding that taxpayer’s prior method of accounting for this item was erroneous, and, therefore, the Commissioner properly, in making the adjustments here in issue, refused to allow taxpayer to unilaterally change its method of accounting for this item.
Taxpayer, on the other hand, contends that, in view of the uncontested determination of the Tax Court that the insurance dividends were properly reportable in the year of receipt under the accrual method of accounting, no other method would “clearly reflect income” and that the Commissioner “may not insist upon adherence to a method which fails to ‘clearly reflect income.’ ” It argues “that correction of an error to conform to a long-standing method of accounting is not a change in accounting method and the Commissioner may not require the taxpayer to perpetuate an error.” Taxpayer further asserts that if equitable considerations are relevant in this determination, it is not possible here to determine where as between the Government and the taxpayer the equities rest in view of the fact that for years taxpayer has been prepaying the tax on this item and that taxpayer paid taxes to which it would not otherwise have been subject at the expiration of the excess profits tax of World War II in 1946 and whenever the tax rates were reduced. Finally, taxpayer urges that we modify the Tax Court’s decision, which brought into 1953 the dividend which had already been reported in 1952 (relief from which the Court indicated could be secured by way of a claim for refund under § 1311 et seq. of the 1954 Code, 26 U.S.C.A. § 1311 et seq.), by directing the deletion of this item from the 1953 return' — execute the dictum of the Tax Court as it were.
Section 42 of the Internal Revenue Code of 1939 provides that “items of gross income shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under section 41, any such amounts are to be properly accounted for as of a different period.” Section 41 of the 1939 Code provides that
“The net income shall be computed upon the basis of the taxpayer’s annual accounting period (fiscal year or calendar year as the case may be) in accordance with the method of accounting regularly employed in keeping the books of such taxpayer; but if no such method of accounting has been so employed, or if the method employed does not clearly reflect the income, the computation shall be made in accordance with such method as in the opinion of the Commissioner does clearly reflect income.”
Pertinent Treasury Regulations, earlier set forth, provide that a taxpayer who desires to change the method of accounting employed in reporting his income must first “secure the consent of the Commissioner” to the change, and that permission to make it will not be granted “unless the taxpayer and the Commissioner agree to the terms and conditions under which the change will be effected.”
The taxpayer’s argument proceeds as follows:
“The taxpayer may not employ a method of accounting which does not clearly reflect income. If the taxpayer’s method fails clearly to reflect income, then under Section 41 of the Internal Revenue Code of 1939, the Commissioner can insist that a method be employed which does clearly reflect income. * * * ”
“However,. the Commissioner has not power to require a taxpayer, for any reason, to employ an accounting method which fails clearly to reflect income. His right to determine what method a taxpayer shall employ has limitations. One important limitation — the limitation which here controls — is that no authority is vested in the Commissioner to disregard the actual transaction and to readjust the income on a basis which would not clearly reflect income.”
This argument is premised on Caldwell v. Commissioner, 2 Cir., 1953, 202 F.2d 112; Commissioner of Internal Revenue v. Frame, 3 Cir., 1952, 195 F.2d 166; Commissioner of Internal Revenue v. Mnookin’s Estate, 8 Cir., 1950, 184 F.2d 89, and subsequent similar cases. Those cases involved involuntary changes in the method of accounting of taxpayer required by the Commissioner because the old method of accounting did not clearly reflect income and in them the Commissioner attempted to make the necessary adjustments so that items would be neither omitted nor duplicated. The courts held that the taxpayer could not be required to make such adjustments. As stated in Advance Truck Co. v. Commissioner, 9 Cir., 1958, 262 F.2d 388, 391-392:
“We believe that it is a fair statement to say that the rationale of such cases is that the Commissioner is not empowered in the year of change-over to assess a deficiency in tax for the year of the change-over premised on items of income which the taxpayer should have, but failed to include, in his income tax return for the tax year or years prior to the change, based upon the method employed by the taxpayer in keeping his books of account for such prior year or years.”
The rule stated is not applicable here for the simple reason that the Commissioner did not attempt to change taxpayer’s method of accounting and impose adjustments, but, on the contrary, he sought only to prevent a change in the taxpayer’s method of accounting for this item to which he had not first given his consent and to require adherence to the method used for many years prior to 1953. This distinction was recognized in Goodrich v. Commissioner, 8 Cir., 1957, 243 F.2d 686, at pages 688-689, where it was said:
“It [the Regulation] allows him [the Commissioner] to impose adjustments in relation to a taxpayer’s income status of other years, only as a term or condition on which he will consent to a change in the taxpayer’s method of accounting for purposes of the latter’s current tax return. But it does not allow him to impose such adjustments in relation to the taxpayer’s income status of other years, except as a matter of agreement or acceptance on the taxpayer’s part.
“If the taxpayer refuses to agree to the terms or conditions so imposed and to accept the adjustments required by the Commissioner to be ■ made, the result is in general to leave the situation simply as one in which the taxpayer is without legal right to make use of a change in his accounting method for purposes of his current taxability and return. * *
“It is not open to either the Commissioner or the taxpayer unilaterally to make a shift, whether of income or of outgo, to another year than that for which its tax status, ‘in accordance with the method of accounting regularly employed in keeping the books of such taxpayer’, has properly been created. Security Flour Mills Co. v. Commissioner, 321 U.S. 281, 286-287, 64 S.Ct. 596, 599, 88 L.Ed. 725.” (Emphasis supplied.)
The rationale of the Regulation here involved is that virtually any material change in the method of reporting income or deduction items will result in a distortion of taxable income, and it is the Commissioner’s responsibility to insure that the distortion will not be to the detriment of the Government. The Commissioner accomplishes this by withholding his consent until the taxpayer agrees to adjustments that will prevent, inter alia, duplication of deduction items or omission of income items as a result of the change. Brookshire v. Commissioner, 4 Cir., 1960, 273 F.2d 638, certiorari denied 363 U.S. 827, 80 S.Ct. 1597, 4 L.Ed.2d 1523.
On review of the record we agree with the Commissioner’s contention that while taxpayer did not change its overall method of accounting it did change its treatment of a significant item — the insurance dividends which amounted to |114,000 — and that its action constituted a change in the method of accounting within the meaning of the Treasury Regulations. The Tax Court, in our opinion, erred in finding to the contrary.
In Rev.Rul. 59-285, 1959-2 Cum.Bull. 458, the Internal Revenue Service, in confirming its interpretation and practice with respect to Section 41 of the Internal Revenue Code of 1939 stated in part (1959-2 Cum.Bull. pp. 459-460) :
“Under the 1939 Code, the prior consent of the Commissioner is required in order for a taxpayer to change his method of accounting with respect to a material item. Pri- or consent must be secured from the Commissioner whether or not the taxpayer regards the method from which he desires to change to be proper. * * *
“Accordingly, under the 1939 Code as well as under the 1954 Code, taxpayers, employing the accrual method of accounting, who have consistently deducted a material item in the year paid rather than the year accrued, must obtain the prior consent of the Commissioner before changing such method of accounting, whether or not the taxpayer regards the method from which he desires to change to be proper.” (Emphasis supplied.)
It is well-settled that administrative interpretation of the Internal Revenue Service is entitled to great weight and should be followed unless clearly inconsistent with the statute. Corn Products Refining Co. v. Commissioner, 1955, 350 U.S. 46, 52-53, 76 S.Ct. 20, 100 L.Ed. 29. The interpretation stated is certainly not inconsistent with the statute.
It is not dispositive that taxpayer’s former consistent method of reporting the insurance dividends in the instant case was not correct under the accrual accounting system since it could not be changed without the Commissioner’s pri- or consent.
As was said in Advertisers Exchange, Inc., 1956, 25 T.C. 1086, 1092-1093, affirmed 2 Cir., 1957, 240 F.2d 958,
“Consistency is the key and is required regardless of the method or system of accounting used. * * * And a change from one method of accounting to another is seldom possible without some distortion of income. Thus, respondent [Commissioner] may, as here, reject any change in the accounting treatment of items of income made without his prior consent and approval of compensating adjustments to insure that distortions arising therefrom are not at the expense of the governmental revenue. Kahuku Plantation Co. v. Commissioner [9 Cir.], 132 F.2d 671.
“As heretofore noted, the effect of respondent’s determination is to require the continued use of the accounting method consistently employed by petitioner for a number of years. To do so is within the broad administrative discretion accorded respondent under the statute and is not to be disturbed unless an abuse of discretion is evident. * * * ” (Emphasis supplied.)
To the same effect see 2 Mertens, Federal Income Taxation, §§ 12.08-.09 (rev. ed. 1955).
The “broad discretion” of the Commissioner in determining whether to consent to a change was settled in Brown v. Helvering, 1934, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725. See also Commissioner of Internal Revenue v. Hansen, 1959, 360 U.S. 446, 467, 79 S.Ct. 1270, 3 L.Ed.2d 1360.
It may be noted that the Tax Court, in its opinion, did not advert to the “broad discretion” of the Commissioner and did in fact not hold that he had abused his statutory discretion in refusing to give retroactive consent to taxpayer’s change in its method of accounting for the insurance dividends here involved.
On consideration of the record we certainly cannot say that the Commissioner abused his statutory discretion in refusing to grant retroactive consent in the instant case to taxpayer’s unilateral change in its method of accounting of the very sizeable dividend income involved.
For the reasons stated the Decision of the Tax Court will be reversed and the cause remanded with directions to proceed in accordance with this opinion.
. The Memorandum Findings of Fact and Opinion of the Tax Court are reported at 19 CCH Tax Ct.Mem. 154 (1960).
. 26 U.S.C.A. 1952 ed., Sections 41, 42.
. “The surplus, if any, to be distributed upon this policy as a dividend shall be ascertained and distributed by the Society annually as of each policy anniversary provided this policy shall have been continued in force by the payment of all premiums hereunder to such policy anniversary; otherwise the Society shall not distribute any surplus upon this policy. Any surplus apportioned to this policy in accordance with this provision shall be paid in cash to the Employer, or, upon written notice to the Society by the Employer, may be applied by the Employer to the payment of any premium hereon.”
. The record does not disclose the dividend provision contained in one of the policies.
. Taxpayer received a dividend of $72,531.-79 in 1953. However, that item had been accrued and reported by it in 1952, pursuant to its consistent accounting practice. Had taxpayer adhered to its prior method of accounting for this item, it would have accrued and reported in 1953 the dividend it received in 1954.
. The deficiency determined by the Commissioner, using the dividend for 1954 rather than 1953, was $78,851.43.
. 19 CCH Tax Ct.Mem. at 159.
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_procedur | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
VIRGIN ISLANDS HOTEL ASSOCIATION (U.S.), INC., a corporation, Appellant, v. VIRGIN ISLANDS WATER & POWER AUTHORITY.
No. 72-1996.
United States Court of Appeals, Third Circuit.
Argued Jan. 19, 1973.
Decided April 12, 1973.
Evelyn N. Cooper, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
Ronald H. Tonkin, Atty. Gen. of the Virgin Islands, Sidney H. McKenzie, III, Asst. Atty. Gen., St. Thomas, V. I., Wallace L. Duncan, Duncan & Brown, Washington, D. C., for appellee.
Before VAN DUSEN and ADAMS, Circuit Judges, and BARLOW, District Judge.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This is the second time that these parties, the Virgin Islands Hotel Association (the Hotel Association) and the Virgin Islands Water and Power Authority (the Authority), are before this court. On the first occasion, in Virgin Islands Hotel Ass’n v. Virgin Islands Water & Power Authority, 465 F.2d 1272 (3d Cir. 1972), this court upheld with modification an injunction the district court had issued against the Authority. By order of October 3, 1972, the district court vacated that injunction, and the Hotel Association appeals. We affirm the October 1972 order of the district court.
I. BACKGROUND
It is necessary only to summarize the facts stated in our earlier opinion and in the first opinion of the district court, reported at 54 F.R.D. 377 (D.V.I.1972).
In the late fall of 1971, the Authority became worried that its revenues would soon fail to provide the coverage over interest required by its outstanding debt instruments, with devastating impact on its ability to procure additional needed financing. On November 10, 1971, it issued a press release indicating its intention to raise electric rates by from about 19% for residential users to about 25% for large power users. Public hearings were held one week later, and on December 3 the Authority put the proposed increases into effect.
The Hotel Association was understandably upset, since its members are classified as “large power” users. It immediately sought an injunction against the rate increase. The district court ruled that the Authority had violated 30 V.I.C. § 105(a) (12) in two ways. First, because the Authority did not have at its disposal information on the cost of providing electricity to its various classes of customers, the Authority had failed “to determine . . . reasonable rates.” Second, the public hearings held pursuant to this section 105(a) (12) were altogether inadequate. Among other defects, notice to the public was too short to allow adequate preparation time and the reports the Authority relied on were not made available publicly until the first public hearing. The district court, on February 4, 1972, ordered the Authority to rescind the increases, to have made an appropriate study of costs (called a “rate” study), and to hold proper public hearings on the proposed increases. However, to avoid possible disruption, the court stayed this injunction for ten months.
By decision of June 28, 1972, this court, although ruling that the Authority’s determination of rates is not subject to judicial review, held that review is available when the Authority has “ignored a plain statutory duty, exceeded its jurisdiction, or committed constitutional error.” 465 F.2d at 1275. “The rate fixing procedure created by 30 V.I. C. § 105(a) (12) contemplates a meaningful public hearing at which interested persons can present their views and present evidence in support thereof. Concomitant with such a hearing are the essential requirements of adequate notice, dissemination to the public of the facts and figures on which the Authority relies, and an opportunity afforded to those attending the hearing to rebut such facts and figures.” Id. at 1276. This court agreed with the district court that the Authority’s hearings did not comply with these requirements. This court did not, however, agree that § 105(a) (12) imposed any duty “to make rate studies as such,” id. at 1276, and modified the district court injunction accordingly.
To comply with this court’s mandate, the Authority commissioned new reports from R. W. Beck & Associates and from D.S.S. Engineering, Inc. (hereinafter D.S.S.); it also had Jackson & Moreland prepare an update of the report they had prepared earlier. On July 5, 1972, the Authority issued a press release stating, inter alia, that new hearings would be held and that the earlier Jackson &. Moreland study was available to the public. Beginning on August 12, 1972, the Authority had published in the local newspapers notices that new public hearings would be held on September 11, 12 and 13. The Authority made the Beck and the Jackson & Moreland reports available to the public on August 8, the D.S.S. report on August 28.
The Authority held these hearings as scheduled. At each hearing various officials of the Authority commented on the proposed rate increases, and representatives from the three engineering firms summarized and discussed the contents of their reports. In accordance with the procedure announced at the beginning of each meeting, all persons could submit written questions, which would be answered by either an official of the Authority or a representative from one of the firms. In addition, all persons could submit written statements or, at the conclusion of the Authority’s presentation, deliver oral statements. According to an affidavit of the Authority’s Executive Director, “All questions which were asked were responded to. In addition, any person desiring to make a statement with regard to the proposed subject rate increases were [sic] permitted to do so.”
The Secretary of the Hotel Association’s St. Thomas-St. John Chapter testified at the September 12 hearing held on St. Thomas. In addition, counsel for the Hotel Association and an expert the Association had hired, Constance W. Bary, attended the September 13 hearing held at Christiansted on St. Croix. Counsel objected to the testimony not being sworn and not being subject to oral cross-examination. Counsel had no written questions to submit, but was allowed to give orally an “offer of proof” of what the Hotel Association would have established if an opportunity for cross-examination had been granted. Admitting that Mr. Bary had not been contacted until September 7, such counsel also requested that the hearing be adjourned until November 9. This adjournment would give the Authority time to prepare, and for Mr. Bary to review, data which counsel said were necessary to examine the reasonability of rates. Counsel and Mr. Bary then stated that without such data the Hotel Association was unable to demonstrate the unreasonableness of the proposed rates.
Following the hearings, the Authority determined that the rates it had proposed the previous December were reasonable. The Authority then filed a motion in the district court to vacate the injunction. The district court, after considering the Hotel Association’s allegations of substantive and procedural infirmities, vacated the injunction by its October 1972 order.
II. PROCEDURAL ISSUES
The Hotel Association argues either that the September 1972 hearings did not comply with 30 V.I.C. § 105(a)(12) as interpreted by this court in deciding the previous appeal or that, assuming compliance, the statute itself fails to provide the due process of law required by 48 U.S.C. § 1561 (1970). Specifically, the Hotel Association urges that the notice of the hearings and the prior dissemination of the engineering studies were inadequate; that these deficiencies were perpetuated by the denial of the adjournment it requested; that the hearings themselves should have been trial-type, rather than legislative-type; that they should have been conducted by an impartial hearing officer; and that in making its final decision the Authority improperly relied on evidence not in the record.
“Whether [due process] requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.” Hannah v. Larche, 363 U.S. 420, 442, 80 S.Ct. 1502, 1515, 4 L.Ed.2d 1307 (1960). Accord, Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970); Marine Space Enclosures, Inc. v. Federal Maritime Commission, 137 U.S.App.D.C. 9, 420 F.2d 577, 589-590 (1969).
While this court, in its prior opinion, did not state precisely how many days in advance the schedule of the new hearings had to be announced or the reports disseminated, it stressed the importance of notice and dissemination adequate under the circumstances. To be considered, for example, was the complex nature of the data.
The Hotel Association now complains that notice of about one month was too short. What the Hotel Association in effect asks us to ignore is the district court’s injunction which had been stayed for only ten months. As of June 28, when this court handed down its affirmance of that injunction, it was clear to all concerned that the Authority would have to hold new hearings. Moreover, the July 5th press release was sufficient to warn the Hotel Association of the need to retain its expert. Thus, the Hotel Association has only itself to blame for waiting until the end of August before seeking an expert qualified to present its case. Similarly, the question whether or not the public had enough time to evaluate the three engineering studies should be considered in light of the ability of the public under these circumstances to have been ready for the reports. We are not prepared to reverse the decision of the district court and rule as a matter of law that notice and dissemination were inadequate.
The Hotel Association’s request for a two-month adjournment was properly denied, particularly since the Hotel Association did not' make the request sooner, for example, when the schedule of meetings was announced, but at the last meeting held. Moreover, the argument the Authority presented to the district court, that any additional delay would seriously hamper the sale of new bonds, is a persuasive factor.
The Hotel Association’s most telling argument is that the hearings should have been conducted not as legislative hearings but as adversary proceedings. The chief difference between the two modes as regards this case is that a trial-type hearing typically permits oral cross-examination of witnesses. Our earlier opinion did not decide this question.
The Administrative Procedure Act, 5 U.S.C. § 551 et seq. (1970), is instructive. Rule-making proceedings are controlled by § 553, which requires only that interested parties be given adequate notice of the proposed rule, see § 553(b), and “an opportunity to participate in the rule making through submission of written data, views or arguments with or without opportunity for oral presentation,” § 553(c). The procedure for adjudication is set out in §§ 554 and 556, under which “[a] party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts,” § 556(d). If the Administrative Procedure Act governed the Authority’s rate-making, the appropriate proceeding would be rule-making, because the rates in question have only prospective application. § 551(4); Law Motor Freight, Inc. v. CAB, 364 F.2d 139, 143-144 (1st Cir. 1966); see Jones v. District of Columbia, 116 U.S.App.D.C. 301, 323 F.2d 306, 308-309 (1963).
A second distinction which has been relied on by the federal courts is whether the proposed agency action affects a small or a large number of persons. Compare Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915), with Londoner v. Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908). The two rationales underlying this distinction are that decisions affecting large numbers of persons are likely to be more concerned with general policies than with specific facts and that permitting many persons to cross-examine each witness would make proceedings totally unmanageable. See United States v. Florida East Coast Railway Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). In the present case, of course, the proposed increases affected every person in the Virgin Islands. We do not know, however, that there would have been a multitude of cross-examiners at the September hearings if cross-examination had been available.
A third factor, somewhat overlapping the second, is whether the facts in question are “legislative” or “adjudicative.” See 1 K. C. Davis, Administrative Law Treatise, § 702 (1958). That is, will the agency decision depend chiefly on policy considerations or on specific, especially historical facts which are provable or disprovable? The Authority’s decision here appears to have been made, as 30 V.I.C. § 105(a) provides, in reliance on both types of facts — for example, the costs of providing electric service to its various classes of customers and “making the benefits [of water and electric power systems] available to the inhabitants of the Virgin Islands in the widest economic manner consistent with sound fiscal management, and by this means to promote the general welfare and increase commerce and prosperity. ...” § 105(a).
While Professor Davis would thus suggest that cross-examination would be appropriate at least as to the adjudicative facts, a number of courts have held in cases which, like the one before us, involved complex and technical factual controversies, that written submissions, possibly supplemented by oral argument, suffice. United States v. Florida East Coast Railway Co., supra; Phillips Petroleum Co. v. F. P. C., 475 F.2d 842 (10th Cir. 1973); National Air Carriers Association v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-194 (1970); American Airlines, Inc. v. CAB, 123 U.S.App.D.C. 310, 359 F.2d 624 (1966); cases cited note 10. One recent case countenances the restriction that questions be submitted in writing. International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir., 1973), at p. 18-23. On the other hand, the absence here of any specific statutory procedures such as the Administrative Procedure Act necessitates greater leeway than those courts had.
The present case does not compel us to hold that cross-examination will never be required in hearings under 30 V.I.C. § 105(a) (12). Instead, we rely on the failure of the Hotel Association to have demonstrated the inadequacy of written questions, which were permitted. The Hotel Association could easily have informed itself of this aspect of the Authority’s procedures by attending the September 11 meeting. In fact, a representative of the Hotel Association did attend the September 12 meeting on St. Thomas and no doubt could have told counsel in time to prepare for the September 13 hearing that questions had to be in writing. We have carefully examined the Hotel Association’s “offer of proof” at the September 13 hearing, and no reason appears to us that the points there raised could not have been formulated in written questions. Consequently, we hold that the Hotel Association has not shown that it was prejudiced, and on this basis we decline to reverse the district' court. See Woodbury v. McKinnon, 447 F.2d 839, 844 (5th Cir. 1971); Citizens for Allegan County, Inc. v. FPC, 134 U.S.App.D.C. 229, 414 F.2d 1125, 1134 (D.C.Cir. 1969).
The Hotel Association’s other two procedural claims can be quickly disposed of. First, it did not appear that the officials who conducted the hearings in any way intimidated counsel for the Hotel Association or otherwise deprived it of privileges available to other participants. Moreover, because the Board of the Authority had the responsibility for the final decision on the rate increases, it is not at all evident how having a trial examiner take testimony would have altered that decision in any way. Second, in claiming that the Authority went beyond what was in the record at the hearings, the Hotel Association relies on certain language in the resolution in which the Authority adopted the increases. We find that the Hotel Association’s interpretation of this language is contrary to its obvious meaning.
III. SUBSTANTIVE ISSUES
The Hotel Association contends that the Authority did not have adequate information on which to determine whether or not the rates were reasonable. The essence of this argument is that the Authority does not know how to allocate various expenses between water and power distribution and does not know, how much it costs it to supply power to the various types of power users. However, the three engineering studies introduced at the hearings seem to provide just this type of information. The Hotel Association has clearly failed to demonstrate the type of statutory violation subject to review by this court. See V. I. Hotel Association v. V. I. Water & Power Authority, supra, 465 F.2d at 1274.
Finally, we note that the Hotel Association did not attempt to establish in the Authority’s September 1972 hearings or in the subsequent district court proceeding, and does not now urge, that the increase in electric rates is confiscatory. At the district court proceeding held on December 21, 1971, where the Hotel Association challenged the first set of hearings held by the Authority, there was uneontradicted testimony by various witnesses that the electric power bills of Virgin Islands hotels accounted for between four and eight percent of all operating costs (including debt service). See N.T. 136, 143, 145-146, 153. With the proposed increase in mind, the district court at that time computed that the rate increases would increase overall operating costs by about two percent, an amount which it concluded was not going to put the hotels out of business. N.T. 175-176.
The October 3, 1972, order of the district court will be affirmed.
. This affidavit was submitted with the Authority’s Motion to Vacate Injunction. The Hotel Association neither filed a counter-affidavit nor disputed these assertions at the September 1972 hearings held on the motion.
. Transcript of September 13 hearing at Christiansted, at 74-75; September 29 bearing on Motion to Vacate Injunction, at 7-9.
. Transcript of September 13 hearing at Christiansted, at 7-12.
. Id. at 51-57.
. Id. at 59.
. Id. at 63, 67-71.
. We note that the Authority’s decision as to rates concerns rates which the members of the Hotel Association must pay. That factor distinguishes this case from cases such as Morgan v. United States, 298 U.S. 468, 56 S.Ct. 906, 80 L.Ed. 1288 (1936), where an arm of the Government fixed prices that regulated persons could charge to customers. The distinction is that the latter situation is much more fraught with the potential for taking without just compensation and, consequently, places heavier demands on procedural due process. We recognize, however, that there could be such a taking in the present situation.
. September 29, 1972, hearing on Motion to Vacate Injunction, at 9. Counsel for the Authority reiterated the desirability of a prompt resolution in oral argument before this court. Apparently one practical, and perhaps legal, requirement of selling these municipal bonds is an opinion letter from counsel that there is no litigation in progress which would materially affect the bonds.
. The Hotel Association also is dissatisifed with the failure of the testimony to be sworn. Because the persons who testified did so in their professional capacities, it does not seem particularly significant that they were not under oath.
. Law Motor Freight also holds that, as regards setting agency policy for the future, 5 U.S.C. § 553 provides due process of law. Accord, NLRB v. Delaware Valley Armaments, Inc., 431 F.2d 494, 499 (3d Cir. 1970); California Citizens Band Association, Inc. v. United States, 375 F. 2d 43, 50 (9th Cir. 1967).
. This court is reluctant to hold that cross-examination is never needed, since the Authority has such broad discretion not subject to judicial review, see 465 F. 2d at 1274, and since, in the view of several commentators, cross-examination of experts on technical matters can contribute significantly to the decision-making process. Robinson, The Making of Administrative Policy: Another Look at Rulemaking and Adjudication and Administrative Reform, 118 U.Pa.L.Rev. 485, 521-524 (1970); Spritzer, Uses of the Summary Power to Suspend Rates: An Examination of Federal Regulatory Agency Practices, 120 U.Pa.L.Rev. 39, 95-97 (1971); Comment, Public Participation in Federal Administrative Proceedings, 120 U.Pa.L.Rev. 702, 743-744 (1972).
However, as noted at page 1269 above, several federal cases have held that cross-examination is not mandated in such a situation.
. The Hotel Association made no attempt to offer similar data at the September 1972 district court hearing.
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_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".
AMERICAN PRESIDENT LINES, LTD., et al., Petitioners, v. FEDERAL MARITIME BOARD (now Federal Maritime Commission) and United States of America, Respondents.
No. 16198.
United States Court of Appeals District of Columbia Circuit.
Argued Nov. 8, 1961.
Decided May 24, 1962.
Mr. Seymour H. Kligler, New York City, with whom Mr. Elkan Turk, New York City, was on the brief, for petitioners.
Mr. Edward Aptaker, Asst. Gen. Counsel, Federal Maritime Commission, at the time of argument, with whom Mr. Robert E. Mitchell, Deputy Gen. Counsel, Federal Maritime Commission, and Mr. Irwin Seibel, Atty., Dept. of Justice, were on the brief, for respondents.
Mr. Richard A. Solomon, Atty., Dept. of Justice, entered an appearance for respondent United States of America.
Before Wilbur K. Miller, Chief Judge, Edgerton, Circuit Judge, and Prettyman, Senior Circuit Judge.
PRETTYMAN, Senior Circuit Judge.
This is a petition to review an order of the Federal Maritime Board, for which the successor Federal Maritime Commission is now responsible. Petitioners are common carriers by water in the foreign commerce of the United States. The subject of the controversy is demurrage charged for cargo on docks in New York.
Ships bringing transoceanic freight into port are required by their transportation obligation, absent a special contract, to unload the cargo onto a dock, segregate it by bill of lading and count, put it at a place of rest on the pier so that it is accessible to the consignee, and afford the consignee a reasonable opportunity to come and get it. This was settled by the courts many years ago. *Circuit Judge Goodrich stated, in North American Smelting Co. v. Moller S. S. Co., that “There is no doubt that in discharging the cargo onto the pier and notifying the consignee the carrier was no longer in possession of the goods so as to suffer the risk of loss not due to any negligence on its part.” The work of unloading and putting the cargo on the dock is done on behalf of the carrier by longshoremen, who are laborers skilled in this sort of thing, or by stevedoring companies under contract with the carriers, these stevedores employing longshoremen. There is not now, and does not appear ever to have been, absent a special contract, any obligation on the part of the carriers to put such cargo actually into the hands of consignees, as by putting it into trucks and hauling it to the consignees’ places of business. Consignees are obligated, after notice and reasonable opportunity, to come and pick up their goods at the pier.
A public interest is involved in the problem created when consignees leave cargo on piers for indefinite periods. A port could be blocked by such practice, to the great, detriment of the whole community. This problem became acute in-the port of New York. The Maritime-Commission, by an order of May 29,1947, instituted an investigation and rule-making procedure. After long consideration, involving hearings before an Examiner, exceptions, and argument before-the Commission, the Commission on October 19, 1948, issued its General Order-69, dealing with the amount of time a consignee must be given to remove his-goods from a pier (called “free time”), and the charges to be made upon him if he leaves his goods there too long (called' demurrage charges), on import property at the port of New York. The supporting “Report of the Commission” was long- and carefully done. The practices of the industry are clearly described. The Commission pointed out mishaps which may-prevent a carrier from performing its-duty of tender for delivery, and it diagnosed the responsibility. It pointed out that a period of “free time” is part of the transportation service of the carrier. It concluded that under conditions prevailing in New York “five days is the shortest time that affords to consignees, a reasonable opportunity to take delivery of imports.” It held a tariff which failed “to assure to consignees a minimum of five days of free time” would be unjust and unreasonable.
The Commission then discussed the-matter of demurrage charges, which are, on a progressively increasing scale, authorized after “free time” has expired on a shipment. The Commission said “it is undisputed that the demurrage rate structure is penal in purpose, intended to clear the piers.”
Then the Commission discussed the problems posed by inability of either party to perform its obligation. It depicted the difference between events which affect the carrier, so that “cargo •cannot be tendered for delivery”, and a •case in which an event “effectively prevents consignees from removing their ■shipments.” It referred, by way of example, to a trucking strike which blockaded the port so that “many shipments which, although available for delivery, •consignees could not remove.” The Commission said, “In such cases, neither carriers nor consignees are at fault.” Neither, said the Commission, should be ■subjected to an avoidable penalty or permitted to profit from the other’s disability. It held that a carrier was entitled to fair compensation for sheltering •and protecting the consignee’s property under such circumstances, that the demurrage charge at the lowest rate (i. e., for the first period after “free time”) represented a compensatory charge, but "that the increased demurrage rates were penal and could not be charged under these conditions. In the order then entered (General Order 69) were two provisions as to demurrage, one in respect to carriers and the other in respect to consignees. They were:
“3. Where a carrier is for any reason unable, or refuses, to tender cargo for delivery, free time must be extended for a period equal to the duration of the carrier’s disability or refusal.
“4. Where a consignee is prevented from removing his cargo by factors beyond his control (such as, but not limited to, trucking strikes or weather conditions) which affect an entire port area or a substantial portion thereof, carriers shall (after expiration of free time) assess demurrage against imports at the rate applicable to the first demurrage period, for such time as the inability to remove the cargo may continue. * * * ”
The ruling was quite clear, it seems to us. Its language fitted precisely into the practice of the trade. Referring to the carriers it said that if a carrier is for any reason unable, or refuses, “to tender cargo for delivery,” free time must be extended. The clear underlying premise was that the obligation of the carrier was to tender for delivery, i. e., leave the goods in the designated place of pick-up, for five days.
We pause at this point to note what will become important to a decision here. “[Tjender for delivery” and “deliver” are distinct and different terms. The point comes up in various contexts. “Delivery”, as respects goods contracted to be sold and delivered, and “tender of delivery” are distinct terms. Under a contract of carriage the carrier made a proper “tender” when it offered the goods to the consignee at the pier. If a seller notifies his buyer of the time and place of delivery according to the terms of a contract, and delivers at the time and place, there is a tender. In the industry concerned in this case there seems to us to be no room for dispute over the nature of the obligation of the carrier. It tenders for delivery; it does not deliver. It makes a valid and complete tender when it puts the cargo on the dock, reasonably accessible, properly segregated and marked, and leaves it there for five days; with notice, of course.
The second pertinent part (par. 4) of General Order 69 is likewise clear. It uses language which describes precisely
what happens. Its expression is “Where a consignee is prevented from removing his cargo by factors beyond his control”, and it goes on to insure its meaning by specifying “such as, but not limited to, trucking strikes”. Under those circumstances, says the General Order, the carrier shall assess demurrage at the first demurrage period rate.
Years later (November, 1956, and February, 1957) massive strikes of longshoremen at New York occurred. Cargo was immobilized on the docks. A dispute arose between carriers and consignees as to wharf demurrage during these periods. The carriers said that under General Order 69, where demurrage had begun before the strike took eifeet, they would charge the first period rate for the time during which the goods could not be moved. In other words, the carriers said that, where consignees, unimpeded, had left their goods on the dock after the free time had expired and demurrage had begun to accrue, the consignees should continue to pay, but not at penalty rates. The Board was notified of the practice. Two years later the Board instituted a proceeding. Arguments were presented in written form. The Board then promulgated the order here and now disputed. It read:
“It is Ordered that General Order No. 69 (46 C.F.R. 226) is interpreted to bar common carriers by water from assessing demurrage or storage charges against import property at New York for any period during which they are unable to deliver such property because of a strike by longshoremen, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.”
In the Federal Register the foregoing order appears under its opening designations thus:
“Chapter II — Federal Maritime Board, Maritime Administration, Department of Commerce
“Subchapter B — Regulations Affecting Maritime Carriers and Related Activities
“[Docket No. 859; General Order 69, Amdt. 2]
“PART 226 — FREE TIME AND DEMURRAGE CHARGES ON IMPORT PROPERTY APPLICABLE TO ALL COMMON CARRIERS BY WATER
-»**»**
“Part 226 is hereby amended by adding the following new section and center heading:
“Interpretation
Ҥ 226.2 Applicability of decision and order.
“This part is interpreted by the Federal Maritime Board to * *
The first phase of the controversy is whether the new order is an interpretation of General Order 69 or is an amendment of it. We think it is clearly an amendment. Whereas General Order 69 deals, correctly, with the carriers’ obligation to tender for delivery, the new order speaks of a period “during which they [the carriers] are unable to deliver such property * * *, regardless of whether the cargo has been made available for delivery during the entire prescribed period of free time.” The Board’s position, as made clear by its brief and argument here, is that the legal duty of the carrier to deliver continues until the consignee calls for the cargo; that even after free time has expired the carrier has the duty of making the eargo physically available to the consignee’s trucks; and that the carrier must provide the labor to load the consignee’s trucks. A longshore strike, the Board says, prevents the carrier from fulfilling this obligation. This is a violent shift from the provisions of General Order 69 and introduces a new concept into the industry. A carrier does not, as we have pointed out, under long-established customs and official rules, deliver goods to consignees; it tenders them for delivery, makes them available for delivery. We think the proposal to deny the carriers demurrage charges at the first period demurrage rate, where goods have been properly marked, etc., on the dock for more than five days before the strike began, is a violation of General Order 69; and, as the Commission itself pointed out in its 1948 Report, is a denial of just compensation for a service rendered.
The next question is whether the order is invalid for procedural defects. Section 4(b) of the Administrative Procedure Act provides that, after the notice required for proposed rule-making (excepting interpretative rules), opportunity for interested persons to participate, and “consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose.” In the Senate Judiciary Committee print of June, 1945, which is explanatory of the proposed Administrative Procedure Act and is included in the Legislative History of the Act printed by order of the ■ Senate, the following appears: “The statement of the ‘basis and purpose’ of rules issued will vary with the rule, but in any case should be fully explanatory of the complete factual and legal basis as well as the real object or objects sought.”
No statement of the basis and purpose of the new rule appears, either in the rule itself or in any accompanying report or opinion. The Board says a complete statement of basis and purpose accompanied General Order 69. This is true, but that statement cannot encompass the different rule incorporated in the new order. The Board argues that the new order is an interpretation and therefore this statutory requirement does not apply. We have held hereinabove that the order is not an interpretation but is an amendment of the existing rule. It establishes a new requirement as to the payment of demurrage, clearly different from the requirement which is in the heretofore existing order (General Order 69). Since the premise for the Board’s argument falls, the argument falls. We hold that the quoted provision of Section 4(b) of the Administrative Procedure Act applies and that therefore the new order of the Board must, for procedural validity, include or be accompanied by a statement of the basis and purpose of the order.
For the foregoing reasons the order entered by the Board on December 15, 1960, in Docket No. 859, Free Time and Demurrage Charges — New York, is set aside as invalid and the matter is remanded to the Board for further proceedings in accordance with this opinion.
So ordered.
. See, e. g., The Eddy, 5 Wall. 481, 495, 72 U.S. 481, 495, 18 L.Ed. 486 (1866) ; Ex parte Easton, 95 U.S. 68, 75, 24 L.Ed. 373 (1877) ; The Grafton, 10 F.Cas. 907 (No. 5656) (S.D.N.Y.1844), aff’d, 10 F.Cas. 905 (No. 5655) (C.C.S.D.N.Y. 1846) ; The Titania, 131 F. 229 (2d Cir. 1904) ; Southern Pac. Co. v. Van Hoosear, 72 F.2d 903, 907 (9th Cir. 1934) ; Baltimore & O. R. Co. v. United States, 201 F.2d 795, 797 n. 3 (3d Cir. 1953) ; Miami Struct. Iron Corp. v. Cie Nationale, Etc., 224 F.2d 566, 568 (5th Cir. 1955).
. 204 F.2d 384, 386 (3d Cir. 1953).
. For simplicity’s sake we omit discussion of lighterage, which sometimes is involved.
. The problem in connection with the port of San Francisco was rather exhaustively discussed in California v. United States, 320 U.S. 577, 64 S.Ct. 352, 88 L.Ed. 322 (1944).
. Free Time and Demurrage Charges at New York, Docket No. 659, 3 U.S.M.C.. 89, as amended, 46 C.F.R. § 226.
. Inland Products Corp. v. Donovan, Inc., 240 Minn. 865, 62 N.W.2d 211, 218 (1954).
. Dohrmann Hotel Supply Co. v. Owl Transfer & Storage Co., 19 Wash.2d 522, 143 P.2d 441, 149 A.L.R. 1108 (1943).
. Carnation v. Pridgen, 84 Ga.App. 768, 67 S.E.2d 485 (1951).
. 46 C.F.R. § 226.1(d).
. The facts recited in the text were developed in exchanges of correspondence, which was complicated in its detail.
. 25 Fed.Reg. 13696 (1960).
. 60 Stat. 238 (1946), 5 U.S.C.A. § 1003 (b).
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_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.
COGGINS v. O’BRIEN, Warden.
No. 4501.
United States Court of Appeals First Circuit.
March 15, 1951.
Rehearing Denied March 29, 1951.
Michael F. Coggins, Jr., pro se.
Lenahan O’Connell, Asst. Atty. Gen. (Francis E. Kelly, Atty. Gen., Massachusetts, and William F. Marcella, Boston, Mass., on the brief), for appellee.
Wilbur G. Hollingsworth, Boston, Mass., amicus curiae.
Before MAGRUDER, Chief Judge, WOODBURY, Circuit Judge, and FORD, District Judge.
WOODBURY, Circuit Judge.
This is an appeal on certificate of probable cause, Title 28 U.S.C.A. § 2253, from a final order of the United States District Court for the District of Massachusetts dismissing an application for a writ of habeas corpus without prejudice and denying the writ.
The petitioner and one Ralph P. Dupont were indicted and tried together on pleas of not guilty in the Massachusetts Superior Court for the County of Middlesex for a homicide committed in the course of an attempted armed robbery. Both were found guilty by the jury of murder in the second degree and both were sentenced to life imprisonment in conformity with Massachusetts law. Neither appealed and they were forthwith committed. At the trial, which took place in November, 1947, the petitioner was represented by counsel appointed by the court whose skill and competence is unquestioned.
Subsequently in June, and again in September, 1948, the. petitioner acting pro se, filed separate motions for a new trial on the ground of after discovered evidence. These motions were heard by the judge who presided at the trial and both were denied without findings of fact, conclusions of law, or memorandum opinion. The petitioner appealed from the denial of both motions to the Supreme Judicial Court of Massachusetts and asked that Court to appoint counsel to assist him therein. He withdrew his request for counsel, however, when the counsel who had represented him at the trial volunteered to aid the petitioner in prosecuting his appeal, and in due course on July 21, 1949, the Supreme Judicial Court handed down its opinion affirming the Superior Court. Commonwealth v. Coggins, 324 Mass. 552, 87 N.E. 2d 200. The Supreme Court of the United States denied certiorari. 338 U.S. 881, 70 S.Ct. 152.
Thereupon the petitioner, again acting pro se, applied to the court below for a writ of habeas corpus alleging that his “trial, conviction, and sentence, individually or collectively, was rendered * * * in contravention of (his) Federal Constitutional Rights to ‘Due Process of Law’ as related and guaranteed * * * by virtue of the Fourteenth Amendment to the Constitution of the United States.” As already appears the District Court dismissed the application and denied the writ, and obtaining a certificate of probable cause from that court, the petitioner comes here on appeal.
On this appeal the petitioner filed a brief pro se and also asked us for a writ of habeas corpus ad testificandum to permit him to appear and argue in person. We denied his application for the writ, not because we doubted our power to issue it, but because in the exercise of our discretion we felt that oral argument by the petitioner himself was not reasonably necessary to our adequate understanding of the case. Price v. Johnston, 334 U.S. 266, 278-286, 68 S.Ct. 1049, 92 L.Ed. 1356. The petitioner also asked us to appoint counsel to aid him on this appeal and we did so. But the petitioner objected to representation by the counsel whom we had appointed asserting his incompetence in matters of federal constitutional law.- We well knew that the petitioner’s objection was utterly unfounded, and we did not deem it incumbent upon us to appoint some other attorney to represent the petitioner. Nevertheless, in view of the petitioner’s objection, we changed the designation of the counsel we had appointed from counsel for the petitioner to amicus curiae so that we might have the benefit of his skill and learning at oral argument.
The petitioner’s basic contention is that the prosecuting authorities knowingly used perjured testimony in order to bring about his conviction, and that this action on their part under the rule enunciated in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, constituted a denial of that due process of law to which he is entitled under the Fourteenth Amendment of the Constitution of the United States. Undoubtedly if the petitioner’s premise is sound, and his conviction did in fact rest upon perjured testimony knowingly used by the prosecuting authorities for that purpose, he has indeed been deprived of due. process of law as guaranteed to him by the Fourteenth Amendment. But he has once tried to establish the factual basis upon which his constitutional contention, rests in the courts of the Commonwealth of Massachusetts, and failed. This does not mean, however, that as a necessary consequence he is forever barred from again trying to- establish the factual basis for his contention in the court below, for it was established in Salinger v. Loisel, 265 U.S. 224, 44 S.Ct. 519, 68 L.Ed. 989, that the doctrine of res judicata is not applicable in habeas corpus cases. On the other hand it does not follow from the inapplicability of the doctrine of res judicata that in spite of his unsuccessful attempt in the Massachusetts courts he is entitled as of legal right, or without more appearing, even in judicial discretion, to try his basic factual issue over again in the court below. While state courts have full discretionary power either to hear again or summarily to dispose of repeated applications for habeas corpus grounded on the same facts filed by prisoners in state custody, and federal courts have like powers with respect to prisoners in federal custody, different considerations apply in cases like the present. Due respect for the delicacies of the relationship between the United States and its courts, and the states and theirs, under a federal system such as ours (see Darr v. Burford, 339 U.S. 200, 205 et seq., 70 S.Ct. 587, 94 L.Ed. 761, and cases cited) requires that the federal courts withhold their relief in state custody cases until it is made to appear that the state has not afforded a constitutionally adequate opportunity to prove the factual basis for a constitutional contention such as this unless “exceptional circumstances of peculiar urgency are shown to exist.” United States ex rel. Kennedy v. Tyler, 269 U.S. 13, 17, 46 S.Ct. 1, 3, 70 L.Ed. 138; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572. In my view the area of judicial discretion in cases like the present is limited to the evaluation of the urgency of any exceptional circumstances which may be present in a particular case. Thus, finding no “exceptional circumstances of peculiar urgency” whatever in the case at bar, the primary question for us as I see it is whether under Massachusetts law Coggins has been afforded an opportunity consonant with the due process requirements of the Fourteenth Amendment to prove that perjured testimony was in fact knowingly used by the prosecuting officials to obtain his conviction. For it is only after this question has been answered in the negative that the court below is open to him for a hearing on the merits.
At this point, however, I am confronted with two perplexing problems, arising from certain language used by the Supreme Court in recent cases.
The Supreme Judicial Court of Massachusetts did not rest its decision in Commonwealth v. Coggins, 324 Mass. 552, 87 N.E.2d 200, upon some nonfederal ground. On the contrary, taking it for granted that Massachusetts law provided Coggins with an adequate remedy by motion for a new trial, it held that Massachusetts practice and procedure had been fully complied with in the disposition of his motions for new-trial, and that by that practice and procedure Coggins had not been deprived of any right secured to him by the due process provision of the Fourteenth Amendment. Thus the highest court of the Commonwealth never reached Coggins’ basic federal constitutional question for the reason that in its view Coggins, although afforded due process of law, had failed to establish any foundation in fact for it to rest upon. That court did, however, consider a federal question, i. <?., the adequacy under the Fourteenth Amendment of the local system for administering the criminal law, and hence the Supreme Court of the United States had jurisdiction to grant Coggins’ petition for a writ of certiorari directed to the Supreme Judicial Court of Massachusetts. The Supreme Court’s denial of Coggins’ petition for the writ under these circumstances presents the question of what weight if any, we should give that denial.
Raising this question does not indicate that I am unaware of the many occasions upon which the Supreme Court has emphasized that its denial of certiorari is not to be taken as a ruling upon the merits, or, indeed, even as having any bearing whatsoever upon the merits. I pose the question for the reason that the Supreme Court in House v. Mayo, 324 U.S. 42, 48, 65 S.Ct. 517, 521, 89 L.Ed. 739, while reaffirming the proposition that its denial of certiorari “imports no expression of opinion upon the merits of a case”, nevertheless, closely paraphrasing Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572, (which it cites) goes on to say: “It is true that where a state court has considered and adjudicated the merits of a petitioner’s contentions, and this Court has either reviewed or declined to review the state court’s decision, a federal court will not ordinarily reexamine upon writ of habeas corpus the questions thus adjudicated. * * * But that rule is inapplicable where, as here, the basis of the state court decision is that the particular remedy, sought is not one allowed by state law, for in such a case this Court lacks jurisdiction to review the decision.”
Moreover, the Court of Appeals for the Second Circuit in Schechtman v. Foster, 1949, 172 F.2d 339, 342, certiorari denied, Schectman v. Foster, 339 U.S. 924, 70 S.Ct. 613, interpreted the foregoing language as requiring it to give effect on the merits to a denial of certiorari by the Supreme Court in prior state proceedings. And the subsequent opinion of the court in Darr v. Burford, 339 U.S. 200, 214-216, 70 S.Ct. 587, 595-597, 94 L.Ed. 761, written by Mr. Justice Reed and concurred in by the Chief Justice and Mr. Justice Minton, handed down over a year after the Schechtman case, mentions but avoids decision of the question of the significance, if any, of a denial of certiorari to the highest state court in cases like this. See Mr. Justice Frankfurter’s dissenting opinion in Darr v. Burford, supra, 339 U.S. 224, 70 S.Ct. 600.
The other perplexing question confronting me at the threshold of this case is whether it falls within our province to disagree with the Supreme Judicial Court’s decision of the federal question it considered on Coggins’ appeal should we feel disposed to do so. I pose this question because in the opinion of the court in Darr v. Burford, supra, 339 U.S. 216, 70 S.Ct. 596, in which on this point Mr. Justice Burton and Mr. Justice Clark agreed, it is said: “It is this Court which ordinarily should reverse state court judgments concerning local criminal administration.” And in the sstme case on the following page it is said: “It is this Court’s conviction that orderly federal procedure under our dual system of government demands that the state’s highest courts should ordinarily be subject to reversal only by this Court and that a state’s system for the administration of justice should be condemned as constitutionally inadequate only by this Court.”
If the language quoted above is to be taken literally and given general application, then it would appear that even though a prior denial of certiorari to the highest state court is of no moment, it is not our function, except in extraordinary cases, to disagree with that court’s determination that the local system for the administration of justice squares with federal constitutional requirements. Hence, if it is not for us to disagree with the highest state court, it would seem that the function of the inferior federal courts in these cases would be only to expedite the applicant for habeas corpus along his secondary road through the federal courts to a second petition to the Supreme Court for certiorari to review the federal question which it has once declined to consider. , And, on the other hand, if the denial of certiorari to the highest state court is to be given any weight at all by the inferior federal courts in cases like the present, it would seem to follow that we ought also to expedite the applicant on his way for, as pointed out by Judge Learned Hand- in the Schechtman case, supra, 172 F.2d 343, “unless we are altogether to disregard the action of the court of last resort in the very case itself, the denial ought to be conclusive.” However, until clearer sailing directions are forthcoming I do not care to dispose of this case summarily, or perhaps even, perfunctorily, on the basis of either the proposition that in these cases denial of certiorari to the highest state court is conclusive upon us on the merits, or else that it is not our function as an inferior federal court to disagree with the Supreme Judicial Court of Massachusetts as to the constitutional adequacy of the system for administering criminal justice in that Commonwealth even if we should feel so inclined. I turn, therefore, to the petitioner’s contention.
Coggins filed both of his motions for new trial pro se. But at the hearings on those motions he was represented by the counsel who had represented him at the trial. He was also present at both hearings personally pursuant to writs of habeas corpus ad testificandum issued on his application by the justice of the Massachusetts Superior Court before whom the motions were heard, who as already appears was also the justice who had presided at the trial.
His first motion was supported by the affidavit of a witness for the Commonwealth at the trial who said in her affidavit that, motivated by jealousy, (she had been Coggins’ fiancée but he had broken their engagement) she had then testified falsely with respect to statements indicative of guilt made to her by Coggins while he was confined in jail awaiting trial. This affidavit was corroborated by those of three others to the effect that the first affiant had admitted to them that she had testified falsely' at Coggins’ trial, and by that of still another to the effect that he was present when the first affiant visited Coggins in jail and nothing was then said by the latter tending to indicate his guilt. In addition, the affidavits of two persons were introduced tending to establish an alibi, and also those of two more tending to show that two police officers who had been subpoenaed to testify at the trial would have said had they been called, which they were not, that the- Commonwealth’s star identification witness at first had had great difficulty in identifying Coggins. Moreover, affidavits of Coggins’ codefendant, and of the latter’s brother, Alfred J. Dupont, Jr., were also introduced; the former to show the falsity of the testimony of a police officer with respect to incriminating statements made by Coggins in jail, and the latter to show that the Commonwealth’s principal witness on the issue of identity had originally identified the affiant as an assailant, but that in spite of this identification he had never been formally charged with participation in the crime.
All of these affidavits were presented to the justice at the hearing, who said he would consider them, and he also heard oral testimony by some of the affiants who were present in court.
Coggins’ second motion for new trial was supported by another affidavit of the affiant who previously had sworn that she had testified falsely at the trial in which she reiterated her perjury, and also added, what she had significantly omitted from her first affidavit, that the falsity of her testimony was not only known to the prosecuting attorney, but also that he had encouraged her to give it. In addition to this affidavit Coggins requested the court to issue compulsory process to require the attendance at the hearing on this motion of the two Duponts, of one of the affiants who had corroborated the first affiant above, and also of one of the jurors who Coggins stated would say that he had given weight to the first affiant’s testimony at the trial in arriving at his verdict. The court granted Coggins’ request for process as to the juror and the corroborating affiant, but not as to the Duponts, and also granted an application made by Coggins for a writ of habeas corpus ad testificandum to enable him to attend the hearing, which was set for December 7. Thereupon Coggins applied for writs -of habeas corpus ad testificandum to produce both Ralph P. Dupont, and .also the brother Alfred J. Dupont, Jr., (who was also confined in the Massachusetts penitentiary) at the hearing. The court refused these writs and Coggins was so informed by letter from the clerk in which it is stated that the court would, however, consider the affidavits of the Duponts already on file. Coggins then wrote to the court that affidavits from the two Duponts were “practically out of the, question” and that he would like to have them personally in court ■at the hearing “because they hold testimony and evidence which is one of the assignments of my motion” which “has nev'er been discussed during my trial or hearing for a new trial.” This request was not acted upon, and at the' outset of the hearing on December 7, at which Coggins, his counsel, and the witnesses who had been summoned were present, Coggins repeated his request for the production of the two Duponts and asked for a recess to “have these men brought before this Court, as they are my first witnesses and are very important witnesses.”
The court then said:
"Coggins, it was brought to your attention by the Court, whether your counsel brought it to your attention or not, I have no way of knowing, but I rather suppose he did, knowing him to be a very able attorney, and that he, as you have already said, did everything that possibly could be done in your behalf, but certainly I brought it to your attention at the hearing on June 25, 1948, on your motion for new trial at that time, that by Rule 46 of the Superior Court Rules, and I quote the rule:
. “ ‘The Court need not hear any motion or opposition thereto grounded on facts unless the facts are verified or are apparent upon the record and files or are agreed and stated in writing signed by the attorneys for the parties interested.’
“I say I brought that to your attention June 25, if you did not already know it, but in spite of the rule, as I recall it now, on June 25, 1948, I did take some testimony at your request, and at your request at this hearing I have caused summons to be issued for two witnesses at your request. It isn’t the practice to take oral testimony in such situations as this and the time has come when I must make it clear to you that I do not propose to take any oral testimony; that you must comply with the rule of the court in respect to this matter, and you can understand that I do not propose, because I have already indicated to you, to bring either or both of the Duponts here to testify orally, I repeat what had already been said to you by the Clerk in his letter to you, that I am willing to consider the affidavits already on file from both of these individuals.”
Coggins replied that as a.prisoner he was unable to “get a notary public.to notarize such documents” as affidavits and the court replied: “That is a very interesting comment, sir, but it so happens on June 22nd, 1948, you filed in your behalf many .affidavits, the number of them I am not attempting. to state, and since then you have filed affidavits. Anything further, Cog-gins?”
Coggins then said that he was:
“ * * * trying to explain they will notarize affidavits but they will not notarize affidavits that are going to hurt somebody or are incriminating themselves, and a notary public there, Mr. Joseph Tambeau, Chief Clerk of the prison, definitely refuses to notarize any such paper as what his testimony shall be, and I am a prisoner and. I must obey the rules. If he says he shall not notarize it, he will not, and there is nothing I can do about it.”
******
“That is why, sir, I have requested those witnesses. They have very important testimony.”
After some further colloquy the court terminated the discussion by saying: “I have already told you, sir, I am not going to bring the Duponts to court. What do you want to say about the motion, anything?”
The hearing' then proceeded with oral testimony from the juror, and from the other witness who had been summoned, who said that the affiant who had sworn to her perjury at the trial had told the witness that she had been questioned by . the police about her second affidavit, and told by them “that if she didn’t take back what she had stated in her affidavit, they would send her to prison for life for perjury.”
Coggins himself was then allowed to take the stand to tell the court that if Ralph P. Dupont were present he would testify that he was an eye witness' to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins was not one of them, and that the brother, Alfred J. Dupont, Jr., if present, would testify “that it was he who had suggested to Ralph Dupont that the truth be told to prove the innocence of the petitioner.”
In opposition to the motion the Commonwealth presented a police officer who testified that he had questioned thé affiant who swofe that she had perjured herself, and had shown her the statutory penalty for perjury, and that “while he questioned her as to the truth of her affidavits, she orally admitted that her testimony on the trial was true.”
After considering matters with respect to the affidavit and testimony of the juror, and hearing arguments of counsel and of Coggins personally, the court took the motion under advisement and the next day denied it without opinion.
Coggins then succeeded in obtaining an affidavit from Ralph P. Dupont in which the affiant said that he was an eye witness to the homicide for which Coggins had been convicted, that he knew the persons who had participated therein, and that Coggins “was not present at the time the crime was committed.” Coggins sent this affidavit to the clerk of the Massachusetts Superior Court with a motion to vacate judgment which the clerk refused to accept for filing on the ground of lack of statutory provision therefor. Coggins thereupon took his appeal from the denial of both of his motions for new trial to the Supreme Judicial Court of Massachusetts.
The foregoing facts are taken from the voluminous application for habeas corpus filed by Coggins in the court below. Since that court denied the application without requiring the respondent to answer and without a hearing, we assume them to be true. House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739. Taking them as true, however, Coggins has not made out a case for the issuance of a writ of habeas corpus by the District Court. The reason for this is that, absent “exceptional circumstances of peculiar urgency”, a federal court ought not to entertain applications for habeas corpus by persons in state custody unless otherwise the applicant would be without a remedy which is constitution-ally adequate to redress the wrong complained of. And here it seems to me clear, first, that Massachusetts law afforded Cog-gins a remedy by motion for a new trial, and second, that the remedy afforded was constitutionally adequate in that under the law of the Commonwealth Coggins in the pursuit of the remedy afforded had a full and fair opportunity to prove the factual basis for the federal constitutional question presented within the requirements of the due process clause of the Fourteenth Amendment. See Ex parte Hawk, 321 U.S. 114, 118, 64 S.Ct. 448, 88 L.Ed. 572, cited with approval by this court in Buchanan v. O’Brien, 1 Cir., 181 F.2d 601, 603, in which, after stating that a federal court will not ordinarily re-examine on habeas corpus the merits of contentions once considered and adjudicated by the state courts, and certiorari has either been granted or denied, the court goes on to say, (omitting citations) : “But where resort to state court remedies has failed to afford a full and fair adjudication of the federal contentions raised, either because the state affords no remedy, * * * or because in the particular case the remedy afforded by state law proves in practice unavailable or seriously inadequate, * * * a federal court should entertain his petition for habeas corpus, else he would be remediless.”
It is true that the Massachusetts trial justice decided Coggins’ motions without opinion so that we are in the dark as to his reasons for that action. Hence, although we know that the highest court of the Commonwealth found it unnecessary to consider Coggins’ basic constitutional contention, we do not know whether or not the trial justice also found it unnecessary to do so. It may be that the trial justice believed Coggins’ evidence, but, in ignorance of the rule of Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, failed to appreciate that the deliberate use of perjured testimony required vacation of the conviction. On the other hand it is equally probable that the trial justice, having presided at the trial and therefore having seen the affiant who swore that she had then perjured herself, and believing the police officer who testified for the Commonwealth at the hearing on the second motion for new trial, found Coggins’ evidence that perjured testimony was knowingly used to obtain his conviction wholly unworthy of belief, and thus did not reach the constitutional question at all.
The first assumption, i. e. that the trial justice believed Coggins’ evidence but made, an error of federal constitutional law, is not open to us for two reasons. In the first place an applicant for habeas corpus to make out a case has the burden of alleging and proving primary facts, not inferences, that show, notwithstanding the presumption of constitutional regularity in state court proceedings that he has been in fact denied due process of law. Schechtman v. Foster, 2 Cir., 172 F.2d 339, 342; Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 94 L.Ed. 761, and cases cited. In the second place the. assumption that the trial justice was unaware of the well settled rule that a conviction obtained by the deliberate use of perjured testimony deprived the accused of due process of law would be a rather violent one in view of the clear pronouncement several years ago in Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, later reaffirmed in Pyle v. Kansas, 317 U.S. 213, 216, 63 S.Ct. 177, 87 L.Ed. 214, and White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. Moreover, it has long been the rule that we are not at liberty “to presume that the decision of the state court would be otherwise than is required by the fundamental law of the land, or that it would disregard the settled principles of constitutional law announced by this court, upon which is clearly conferred the power to decide ultimately ' and finally all cases arising under the constitution and laws of the United States.” Ex parte Royall, 117 U.S. 241, 252, 6 S.Ct. 734, 740, 29 L.Ed. 868, cited with approval in Darr v. Burford, 339 U.S. 200, 205, 70 S.Ct. 587, 94 L.Ed. 761. See also Bute v. Illinois, 333 U.S. 640, 671-672, 68 S.Ct. 763, 92 L.Ed. 986.
I think we ought therefore to assume, in the silence of the trial justice, that he disbelieved Coggins’ evidence, and hence found no occasion to consider the validity under the due process clause of the Fourteenth Amendment of a conviction obtained by the conscious use of perjured testimony. In short, I agree with the Court of Appeals for the Second Circuit that a prisoner in state custody makes out a case in the District (Court for federal habeas corpus in cases like this only in the event that he can affirmatively show that the state court denying his application either failed to give any consideration at all to his evidence, or else failed to understand that as a matter of federal constitutional law the deliberate use of perjured testimony vacates a conviction based thereon. Schechtman v. Foster, 172 F.2d 339.
Moreover it is also true that under Massachusetts law a party moving for a new trial in a criminal case does not have an absolute legal right to present the testimony of witnesses in support of his motion, but may under rule of court in the discretion of the trial justice be relegated to the use of affidavits only to support his factual contentions. This rule of criminal procedure does not in my opinion run afoul of the Fourteenth Amendment for it does not deprive one who has been convicted of a crime of any right which can properly be classified as fundamental, such as the right to notice of the criminal charge and the right to' an adequate opportunity to be heard in defense. The rule merely provides an expeditious method for handling motions grounded on facts in that it authorizes the trial court in its discretion to require proof by affidavit rather than by the time consuming method of oral testimony. It is merely a rule of administrative convenience which does not offend any fundamental principle of justice of which I am aware, and it is well settled that “The commonwealth of Massachusetts is free to regulate the procedure of its courts in accordance with its own conception of policy and fairness, unless in so doing it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked' as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78 L.Ed. 674. In brief the rule impresses me as a practical one which I can by no means say “is so flagrantly unjust that the Constitution of the United States steps in to forbid it.” Id., 291 U.S. 115, 54 S.Ct. 336.
It might, however, still be objected that invoking the rule with respect to prisoners whose affidavits are unobtainable serves to prevent the production of any evidence at all, and hence deprives a moving party of due process of law. In the first place it is doubtful if prison rules in fact prevented Coggins from obtaining affidavits from the Duponts. He obtained affidavits from them in support of his first motion, which the court said it would consider on his second one, and furthermore he obtained an affidavit from one of them the day following the second hearing. It may well be, and perhaps the trial justice well knew, that prison rules did not prevent prisoners from executing affidavits. In the second place the trial court permitted, and presumably considered, a statement by Coggins at the second hearing with respect to what the substance of the Duponts’ testimony would be if called to the stand. Thus it appears that Coggins in fact succeeded in placing all his evidence before the court on his second motion for new trial despite the rule.
One more matter calls for brief mention. In the court below Coggins for the first time asserted that he had been denied due process of law because at the trial the court admitted the testimony of a police officer secreted in a cell between him and his codefendant who used “disguise, misrepresentation and psychological tactics” to prevent them from sleeping and in this way elicited from them “information and statements”, presumably of a damaging nature, as to which he was allowed by testify. The District Court refused to consider this contention for the reason that Coggins had never attempted to raise it in the Massachusetts courts and hence had not exhausted his state remedies. This action on the part of the court below is correct. Darr v. Burford, 339 U.S. 200, 203, 70 S.Ct. 587, 94 L.Ed. 761.
The order of the District Court is affirmed.
. Ex parte Hawk, in turn, refers to Salinger v. Loisel, 265 U.S. 224, 230-232, 44 S.Ct. 519, 68 L.Ed. 989, as authority. That case, however, does not involve any question of certiorari to the highest court of ¿ state, or even an application to a federal court for habeas corpus by a prisoner in state custody. It involves the question of the effect to be accorded by a federal court in habeas corpus proceedings brought by a prisoner in federal custody to the prior refusal of another federal court to discharge the prisoner on a like application.
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_appel2_2_3 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". Your task is to determine what subcategory of private association best describes this litigant.
LOCAL 553, INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent. MEENAN OIL CO., Inc., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
Nos. 208, 209, Docket 25306, 25307.
United States Court of Appeals Second Circuit.
Argued April 17, 1959.
Decided May 14, 1959.
Samuel G. Cohen, New York City (Jack Last, New York City, of counsel), for petitioner Local 553.
Hannon, Evans, Nolan & Halpin, New York City (Jerome T. Nolan, New York City, of counsel), for petitioner Meenan Oil Co., Inc.
Jerome D. Fenton, Gen. Counsel, Thomas J. McDermott, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Frederick U. Reel and James C. Paras, Attys., Washington, D. C., for respondent.
Before CLARK, Chief Judge, and SWAN and MOORE, Circuit Judges.
SWAN, Circuit Judge.
These cases are before us upon separate petitions of Local 553, hereafter referred to as the Union, and Meenan Oil Co., Inc., which employs members of the Union. It will be referred to as the Company. The petitioners seek to have set aside a decision and order of the National Labor Relations Board which holds that the Union and the Company have engaged in unfair labor practices and orders them to take remedial action. The Board’s answer to the petitions requests the court to enforce its order.
The Board found that the Company and the Union violated section 8(a)(1), (2) and (3) and section 8(b)(1)(A) and (2) of the Act, 29 U.S.C.A. § 158, by entering into, maintaining and enforcing their 1956 collective bargaining contract which the Board held delegated to the Union final control over the employees’ seniority status. The Board further found that the Union used its control over seniority to cause the Company to discriminate against an employee named Wolny, and that both petitioners thereby violated the same provisions of the Act.
The Company is engaged in the business of selling fuel oil. Since the volume of its business is dependent upon the demand for heating oil, it is inherently a seasonal business which reaches its peak during the months of October to May. In this period it employs the maximum number of drivers. Only a limited number of them are able to maintain year-round employment with the Company. Seniority controls the retention of jobs during the slack summer period, as well as the allocation of driving assignments and shift preferentials during the entire year. The collective bargaining agreement contains the seniority provision set forth in the margin. The Board takes the position that this provision delegates to the Union final control over the seniority status of the Company’s drivers. It relies upon N.L.R.B. v. International Brotherhood of Teamsters, etc., 8 Cir., 225 F.2d 343, 347 which held that delegation to a union of complete control over seniority is violative of the Act “because it tends to encourage membership in a Union.” In accord is N.L.R.B. v. Dallas General Drivers, etc., 5 Cir., 228 F.2d 702, 706. The petitioners apparently concede the correctness of these decisions but maintain that the seniority provisions considered in them differ from the provision under consideration in the case at bar because here the contract provision merely vests the shop steward with ministerial functions to be performed according to an objective standard.
We disagree with the Board’s interpretation of section 10 of the contract and agree with that advanced by the petitioners. Concededly the Company’s business .is seasonal. During the slack season many drivers of its trucks are laid off and take other employment. Some may never return; others will return to the Company’s employ and do not wish to lose their seniority status by reason of .the summer lay-off. To the employer it is important to know by October 15 how many may be expected to return and be available for work. Section 10 of the contract was devised to meet the needs of both the employees and the Company. It requires the drivers who have been laid off during the summer to sign the “seniority roster” by 8 A.M. on October 15 and requires the Company to “accept the certification of said shop steward as to ’ the availability of such men when called by the employer.” The certification is purely a ministerial act to be performed according to an objective standard. The shop steward is vested with no discretion to determine whosé names may appear on the list or the order in which they shall be rehired by the Company. He merely certifies that such men as have signed the seniority roster have done so by 8 A.M. on October 15 and are therefore available for work when and if the employer seeks to hire additional drivers. This seems to us to be an entirely reasonable provision to include in a collective bargaining contract.
The Board further argues that the practice as revealed by the record establishes that the Company in fact surrendered seniority control to the Union. This is based on the Conklin and Wolny episodes. Conklin’s position on the list certified by the shop steward was below that of other men to whom he was senior. Wolny’s name, although he showed up at the plant on the morning of October 15, was not on the list. Superintendent Slater of the Company questioned shop steward Johnson as to these matters. He explained that Conklin had signed late and that Wolny had not signed at all. These explanations and Mr. Slater’s testimony refute in our opinion the Board’s contention that the Company in fact surrendered seniority control to the Union. Nor can we accept the argument that application of the seniority provision to Wolny was discriminatory. While working for another employer Wolny had disregarded a strike-call and the Union had imposed a fine of $500 which he refused to pay. Johnson, who preferred the charges that led to the fine, had developed such animus against Wolny that possibly he might have refused to certify Wolny’s name had he signed the seniority roster. In an affidavit Johnson stated: “If Wolny would have demanded to sign the seniority list, I would not have permitted him to sign until I had called the Union at about 9 A.M. to get advise [sic], in view of my understanding that he quit the past season.” Much was made of this statement by the Trial Examiner in his Intermediate Report. We regard the statement as irrelevant. The fact that Johnson might have discriminated against Wolny is no evidence that he or the Union committed any discriminatory act. Johnson’s only act, namely, omitting Wolny’s name from the roster was ministerial in character and in strict accordance with the seniority provision of the contract, since Wolny had not signed.
For the foregoing reasons the petitions are granted and the Board’s order is set aside.
. “Section 10. Dealers with more than one depot will establish a seniority list for each classification in each depot. It is understood and agreed, however, that men formerly employed in a depot either temporarily or permanently closed, must be placed at the end or other single steady list.
It is further understood and agreed that during the dull season of the year preference shall be given to the chauffeurs on the seniority list and that the Shop Steward shall be the No. 1 man on that list, except as provided in Section 2, paragraph 1.
During the slack season, April 15 to October 15, any employee who according to seniority would not have steady employment shall be entitled to a leave of absence and mai/ntain his full seniority rights during that period. Any man so described must report to the Shop Steward not later than 8 A.M. on October 15 and sign the seniority roster in order to protect his seniority, and, the Employer agrees to accept the certification of said Shop Steward as to availability of such men when called by the Employer. If October 15 falls on a Saturday or Sunday, the reporting day shall be the neait work day. Any man failing to report as above specified shall forfeit all seniority rights.
-No' Shop Steward has the right to tie up a' bar unless authorized' by the delegate, who so authorized in full accordanee -with the terms and provisions of this contract.” (Emphasis supplied.)
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "private organization or association", specifically "business, trade, professional, or union (BTPU)". What subcategory of private association best describes this litigant?
A. Business or trade association
B. utilities co-ops
C. Professional association - other than law or medicine
D. Legal professional association
E. Medical professional association
F. AFL-CIO union (private)
G. Other private union
H. Private Union - unable to determine whether in AFL-CIO
I. Public employee union- in AFL-CIO (include groups called professional organizations if their role includes bargaining over wages and work conditions)
J. Public Employee Union - not in AFL-CIO
K. Public Employee Union - unable to determine if in AFL-CIO
L. Union pension fund; other union funds (e.g., vacation funds)
M. Other
N. Unclear
Answer: |
songer_usc1 | 26 | 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.
Arnold T. FORSETH, Gerald R. Formsma and Constance Y. Formsma, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 86-1209.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 1, 1987.
Decided May 6, 1988.
Edward G. Lavery, Hercules & Lavery, Dallas, Tex., for petitioners-appellants.
Kenneth L. Greene, Tax Div., Dept, of Justice, Washington, D.C., for respondent-appellee.
Before CUDAHY and MANION, Circuit Judges, and WILL, Senior District Judge.
The Honorable Hubert L. Will, Senior District Judge for the Northern District of Illinois, sitting by designation.
WILL, Senior District Judge.
This is a somewhat complicated case involving the tax treatment of losses allegedly incurred by taxpayers as a result of their investment in a commodity straddle tax shelter. Although here we are dealing with only three appellants (Mr. and Mrs. Formsma and Mr. Forseth), the case was originally a consolidated trial at the tax court level involving several different persons similarly situated. The five other parties involved in the tax case have already appealed the tax court’s adverse decision to the Fifth, Sixth, Ninth, and Eleventh Circuits. In each of these appeals, the decision of the tax court has been affirmed. Bramblett v. Commissioner, 810 F.2d 197 (5th Cir.1987) (unpublished opinion); Mahoney v. Commissioner, 808 F.2d 1219 (6th Cir.1987); Enrici v. Commissioner, 813 F.2d 293 (9th Cir.1987); Wooldridge v. Commissioner, 800 F.2d 266 (11th Cir.1986). Moreover, in each of these cases, the other appellants (who were represented by the same counsel as the instant appellants) raised issues identical to the issues appellants are now raising here. Thus, it appears we have a serious case of multiple forum shopping.
The particular facts of the case are detailed in the lengthy published opinion below. Forseth v. Commissioner, 85 T.C. 127 (1985). Essentially, the tax court held that the purported commodities trades giving rise to the “losses” allegedly incurred by appellants were shams and accordingly that such losses were not deductible. In concluding that the entire tax straddle arrangement was an artifice, the tax court found that Interact (an advisory firm providing informational services as to how to contact broker-traders who deal in foreign markets), LMEI (a commodity firm), and LMEC (LMEI’s successor) took advisory fees and alleged “margin deposits” from appellants; entered into forward contracts for gold or platinum with appellants on an unregulated foreign market for which there were no published prices (and without laying off the contracts with any real third-party brokers); created fictitious losses for appellants by closing out “losing” positions at prices and terms set by LMEI/LMEC to generate a theoretical tax loss that largely offset the type and amount of income the taxpayers needed to shelter; and then closed out the winning position in a subsequent year at a price set by LMEI/LMEC to generate losses that uniformly equaled the amount of margin deposits, which were in reality fees for delivering the artificial tax “losses.” Thus, the tax court concluded that the straddle transactions were shams lacking economic substance because the appellants had really just paid a fee to buy fictitiously generated tax losses. Accordingly, the tax court disallowed the de-ductibility of the tax losses.
Discussion
In the instant case, taxpayers, Mr. For-seth and Mr. and Mrs. Formsma, appeal the tax court’s decision as to the deductibility of the tax losses sustained by them. To be deductible under the Code a transaction must be “entered into for profit.” I.R.C. § 165(c). As the Sixth Circuit has noted, although this phrase is “a term of art that has not been interpreted the same by all courts, it is clear that the transaction cannot be a complete sham. If it is a sham, then such niceties as whether it was ‘primarily’ for profit, or whether the test is an objective or subjective one are simply not involved. Regardless of the definition, the transaction must be bona fide.” Mahoney v. Commissioner, 808 F.2d 1219, 1220 (6th Cir.1987).
Here, because the tax court determined that the commodities straddle transactions were a sham, it never reached the “entered for profit” issue. The tax court’s finding that the forward contracts were shams, is reviewable under the “clearly erroneous” standard because it is “essentially a factual determination.” Thompson v. Commissioner, 631 F.2d 642, 646 (9th Cir.1980), cert. denied, 452 U.S. 961, 101 S.Ct. 3110, 69 L.Ed.2d 1972 (1981). See also Enrici, supra, 813 F.2d at 295.
In finding that the alleged gold and platinum straddles were no more than preconceived shams, the tax court relied on the following six factors:
1. The remarkable correlation of the tax needs of each taxpayer and the nature and the amount of tax losses delivered by LMEC/LMEI and Interact. Tax losses were correlated to tax needs in two ways: first, the taxpayer generally suffered losses equal to the amount of income each taxpayer needed to shelter; and second, the type of loss created matched the type of income that needed to be sheltered.
2. Interact’s “extraordinary” ability to predict the amount of losses that would be incurred depending upon the margins posted.
3. The willingness of LMEI/LMEC to commence trading in clients’ accounts before receipt of the required margin deposits with the result that they were not protected against client default. Had actual bona fide trades been carried out on behalf of appellants, at least some appellants would have been required to post additional margin deposits to cover trading losses.
4. The margin balances in the accounts were “zeroed out” by closing out the clients’ gains at prices that made the taxpayers’ overall losses equal the margin deposits the appellants initially placed with LMEI/LMEC.
5. Opposite positions were never actually entered into with market making brokers to “lay off” trades.
6. The apparent manipulation of certain trading records by LMEI/LMEC.
Forseth v. Commissioner, 85 T.C. 127, 149-166 (1985).
To demonstrate that the trades were not shams, appellants primarily argue that many of these grounds would also have existed even if they had entered into straddles on the open commodities market, and that the losses suffered in their forward straddles were in fact correlated to the losses and gains they would have suffered in the American commodities market. Each court of appeals that has reviewed the tax court’s opinion has rejected this argument, however. For example, in Enrici, supra, 813 F.2d at 296, the Ninth Circuit stated that
even if these factual assertions are accepted as true, the Tax Court was entitled to infer from both the precision of the tax advantages obtained and the undocumented nature of the transactions that the parties were merely rigging paper prices, losses, and gains to effectuate a sale of generated tax losses. The fact that Congress may have permitted similar tax advantages to be obtained from real commodities straddles does not make the losses from these sham transactions deductible.
Thus, the tax court’s finding that the entire tax straddle arrangement was an artifice, the essence of which was the sale of bogus tax losses to appellants for a fee, does not appear to be clearly erroneous; rather the finding appears to be right on the mark. As this circuit stated in Saviano v. Commissioner, 765 F.2d 643, 654 (7th Cir.1985), “[t]he freedom to arrange one’s affairs to minimize taxes does not include the right to engage in financial fantasies with the expectation that the Internal Revenue Service will play along. The Commissioner and the courts are empowered, and in fact duty-bound, to look beyond the contrived forms of the transactions to their economic substance and to apply the tax laws accordingly.”
In addition to the above, one more item needs to be addressed: whether the tax court correctly found that appellants were liable for a negligence penalty under I.R.C. § 6653(a). Section 6653(a) imposes an addition to tax when any part of an underpayment of income tax is due to negligence or intentional disregard of the rules and regulations. Negligence, for the purpose of § 6653(a), is defined as a lack of due care or failure to do what a reasonable and ordinary prudent person would do under the circumstances. Marcello v. Commissioner, 380 F.2d 499, 506 (5th Cir.1967). The determination of the Commissioner is presumptively correct. See Beatty v. Commissioner, 676 F.2d 150, 152 (5th Cir.1982). The taxpayer has the burden of showing that he was not negligent, and the tax court’s determination that a taxpayer is liable for a negligence penalty under § 6653 is subject to the clearly erroneous rule. See Enrici, supra, 813 F.2d at 296; Patterson v. Commissioner, 740 F.2d 927, 930 (11th Cir.1984).
Here, the tax court’s determination that appellants did not meet their burden does not appear to be clearly erroneous in light of the fact that in reporting their “losses” they gave as little information as possible on their tax returns. For example, Forseth reported his loss as “Platinum Contract Cancelled” and the Formsmas reported their loss only as “Contract Can-celled.” Moreover, none of the taxpayers checked the “yes” box in response to the question on the Schedule B’s filed with their 1980 returns that asked if they had any interest in a foreign account. At the very least, even if Mr. and Mrs. Formsma and Mr. Forseth were not knowing participants in the scheme, they obviously paid little or no attention to the rather suspect workings of LMEI/LMEC, and thus can be said to have acted without due care. The tax court must therefore be affirmed on this ground as well.
Conclusion
For the reasons set forth above, like the Fifth, Sixth, Ninth, and Eleventh Circuits in the related cases, the decision of the tax court is
Affirmed.
. The Formsmas, in addition to arguing that the forward contracts were not shams, contend that the tax court erred in finding that the $2,000 advisory fee paid to Interact in 1980 was nondeductible. Specifically, the Formsmas argue that such fee is deductible under I.R.C. § 212 because it falls under the category of "tax advice.” But if the forward contracts were shams, then the fee could not have been spent for production of income, nor for informational services concerning bona fide investments, nor for tax advice. Thus, we also affirm the tax court’s finding on the disallowance of the fee.
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_fedlaw | A | What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal statute, and if so, whether the resolution of the issue by the court favored the appellant.
ILLINOIS COMMERCE COMMISSION and Patrick W. Simmons, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents, Association of American Railroads, Rails to Trails Conservancy, and Iowa Trails Council, Intervenors. COMMISSIONER OF TRANSPORTATION OF the STATE OF NEW YORK, Petitioner, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. RAILS TO TRAILS CONSERVANCY, IOWA TRAILS COUNCIL, and Conservation Federation of Maryland, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 86-1687, 87-1015, 87-1278.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 25, 1988.
Decided May 24, 1988.
As Amended May 24, 1988.
Gordon P. MacDougall, Washington, D.C., with whom James E. Weging, Sp. Asst. Atty. Gen., Chicago, Ill., were on the brief for petitioners Illinois Commerce Com’n and Patrick W. Simmons in No. 87-1687.
William J. Dwyer, Albany, N.Y., for petitioner Com’r of Transp. of the State of N.Y. in No. 87-1015.
Charles H. Montange, Washington, D.C., for petitioners Rail to Trails Conservancy, Iowa Trails Council, and Conservation Federation of Maryland in No. 87-1278.
Louis Mackall, Atty., ICC, with whom Robert S. Burke, General Counsel, Ellen D. Hanson, Associate Gen. Counsel, Anne S. Almy, Asst. Chief, Land and Natural Resources Div., Dept, of Justice, and J. Carol Williams, Atty., Dept, of Justice, Washington, D.C., were on the joint brief for Respondents the ICC and the U.S.
John T. Sullivan and J. Thomas Tidd, Washington, D.C., were on the brief for intervenor, Ass’n of American Railroads.
Before MIKVA, STARR and SILBERMAN, Circuit Judges.
Opinion for the Court PER CURIAM.
Opinion concurring in part and dissenting in part filed by Circuit Judge MIKVA.
PER CURIAM:
This case is before us a second time following a remand to the Interstate Commerce Commission. The controversy relates to the ICC’s relaxation of regulatory strictures triggered by a railroad’s proposed abandonment of rail lines that have fallen into a state of rail-traffic desuetude. In our prior consideration, we concluded that the ICC’s order establishing a class exemption for abandonments was, in certain respects, deficient under the applicable standards of the Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982). Specifically, we concluded that in three particulars the Commission failed adequately either to address salient points adumbrated in comments submitted to the ICC or to marshall the requisite factual support for the conclusions undergirding the Commission’s final rule.
The question now before us is whether the ICC complied on remand with both the APA’s strictures and the specific requirements previously articulated by this court. In addition, an entirely new set of questions arose during the course of the proceedings on remand, namely, whether the ICC’s actions comply with various federal environmental statutes. For the reasons that follow, we uphold the Commission’s decision.
I
The order in question involves an expedited method of effecting abandonment of “out of service” rail lines, which are defined as those carrying no local traffic for at least two years. The Commission promulgated the regulation, 49 C.F.R. § 1152.50 (1985), pursuant to the deregulatory mandate of the Staggers Rail Act of 1980, specifically section 10505. 49 U.S.C. § 10505 (1982). Section 10505 requires the ICC to exempt a transaction or class of transactions from regulation when the Commission finds that (1) regulation is not necessary to carry out the multi-faceted national rail transportation policy (RTP), as set forth in 49 U.S.C. § 10101a; and (2) either (a) the transaction is of limited scope, or (b) regulation is not needed to protect shippers from the abuse of market power. Id. § 10505(a). The statutory and procedural background of the rulemaking is thoroughly chronicled in our previous opinion, the upshot of which was to dispatch the rulemaking back to the Commission for further consideration and explanation. Illinois Commerce Comm’n v. ICC, 787 F.2d 616 (D.C.Cir.1986).
In directing a remand, our colleagues faulted the Commission’s order in several respects. First, the ICC had failed adequately to consider whether the abandonment regulations from which it was exempting eligible rail lines were necessary to effectuate relevant goals of the RTP, specifically: (1) energy conservation, (2) maintenance of reasonable rates, (3) meeting the needs of the national defense, and (4) cooperation with States in respect of transportation matters. Id. at 629-32. Second, the Commission had neglected to assess the adequacy of its findings concerning the limited scope of the exemption and the potential for abuse of market power, in light of the expanded definition of “out of service” adopted in the final rule. Id. at 634r-35. The originally proposed definition of “out of service,” which encompassed only rail lines carrying no traffic at all for at least two years, had been expanded in the final rule to include lines carrying overhead traffic, i.e., traffic that neither originates nor terminates on a line and can be rerouted over other lines. Id. at 634. Finally, the original regulation had specified no clear procedure for challenging the sufficiency of employee protections automatically provided under the exemption. Id. at 636.
On remand, the ICC readopted the class exemption for “out of service” lines, but elaborated on the points found wanting in our prior opinion. Exemption of Out of Service Rail Lines, 2 I.C.C.2d 146 (1986). Unenamored of this result, the Illinois Commerce Commission and Patrick Simmons (Illinois) filed a petition with the ICC requesting a stay of the decision’s effective date pending appeal. Expanding the already broad horizons of the proceeding, Rails to Trails Conservancy (RTC), joined by two other nonprofit organizations, entered the fray for the first time by petitioning the ICC for reconsideration and a stay of its decision. Ex Parte No. 274 (Sub-No. 8) Exemption of Out of Service Rail Lines, (not printed) decided June 15, 1987. RTC argued, first, that the rulemaking constituted a major federal action triggering the requirements of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982), with which the Commission had failed to comply; second, that the exemption requirements failed to assure compliance with a number of applicable environmental statutes, including NEPA and the National Historic Preservation Act (NHPA), 16 U.S.C. § 470f (1982); and, finally, that the ICC failed adequately to consider the effect of the regulations on public use of abandoned lines under the National Trails System Act, 16 U.S.C. § 1247 (1982), and the public use provision of the Interstate Commerce Act, 49 U.S.C. § 10906 (1982). Id. The Commission denied all the petitions, and these petitions for review followed.
II
A
In our earlier decision, the first area of concern articulated by our colleagues related to the ICC’s treatment of the RTP or, more specifically, the agency’s examination of the five RTP goals listed above. See 49 U.S.C. § 10505(a)(1). Now, after reviewing the agency’s analysis on remand of each of these five factors, we are persuaded that the Commission’s conclusion (that application of the abandonment regulations to “out of service” lines is not necessary to carry out the RTP) is neither arbitrary nor capricious; to the contrary, the Commission’s analysis is reasonable and adequately supported by the record. Cf. Illinois Commerce Comm’n v. ICC, 819 F.2d 311, 317 (D.C.Cir.1987) (applying “arbitrary and capricious” standard to trackage rights agreements); Brae Corp. v. ICC, 740 F.2d 1023, 1038 (D.C.Cir.1984), cert. denied, 471 U.S. 1069, 105 S.Ct. 2149, 85 L.Ed.2d 505 (1985) (“arbitrary and capricious” review of exemption of boxcar freight rates from regulation).
In our prior consideration of this case, the court faulted the agency’s finding that exemption would promote energy conservation, 49 U.S.C. § 10101a(15), as being “utterly lacking in record support.” Illinois Commerce Comm’n, 787 F.2d at 629. On remand, the agency modified this particular determination, concluding “upon further reflection ... that energy conservation is unlikely to be affected in any significant way.” Out of Service, 2 I.C.C. 2d at 148. In arriving at this latter, more modest conclusion, the Commission reasoned as follows: where a line has carried no traffic at all, abandonment will have no effect on energy consumption since there is no traffic to be cut off or diverted to other routes or modes of transportation. Although abandonment of a line that has carried overhead traffic may result in some increase (or decrease) in fuel consumption due to rerouting, any such change, the ICC reasoned, should be insignificant since it is in the carrier’s interest to maintain the most efficient routes and to aggregate traffic in order to minimize energy costs. Id.
Illinois attempts to derail this line of reasoning by arguing that even if carriers operate efficiently, they will nonetheless reroute traffic in ways that save costs elsewhere in their operations, but not necessarily in a manner that conserves energy. Brief for Illinois at 13. Illinois further contends that rerouting traffic may involve much more than a minimal increase in fuel consumption. Id. Illinois cites nothing, however, in support of either of these speculative assertions. Nor do petitioners point to anything indicating that application of the abandonment regulations is, as the statute contemplates, necessary to the promotion and encouragement of energy conservation. In contrast to petitioners’ creative exercise in the realm of the hypothetical, the ICC’s analysis logically and persuasively explains why the agency believes the effect on energy matters will be de minimis; in the absence of an indication that the agency’s judgment is flawed, we are persuaded that the explanation is amply reasoned to pass muster under the APA.
B
The second RTP-related concern which had been inadequately addressed in the ICC’s earlier decision involved the effect of the class exemption on rate reasonableness. In the court’s view, the ICC had failed to consider whether abandonment of “out of service” lines will expose shippers to excessive rates in circumstances where there is a want of competition. Illinois Commerce Comm’n, 787 F.2d at 630.
Upon reexamination of this point, the Commission concluded that the class exemption will not affect the agency’s ability to assure the reasonableness of rates. Out of Service, 2 I.C.C.2d at 148. In so concluding, the ICC observed that exemption will not in any way alter the Commission’s authority to regulate rates nor will it provide carriers with an opportunity to initiate previously forbidden rate actions. With or without an exemption for abandonments of “out of service” lines, the ICC emphasized, carriers are at liberty to set rates at levels of their choosing, subject to protest by shippers. Id. at 149. Nothing in the exemption works a change to this carefully crafted scheme.
Illinois attacks the Commission’s finding as to rate reasonableness on several fronts, only two of which merit discussion. Illinois contends, first, that the exemption will have an adverse effect on rates because the abandoned lines would no longer be available for constructing more favorable rates in what is known as “short line rate-making.” Brief for Illinois at 15. But this argument, on reflection, largely ignores the process by which rates are established. “Short line ratemaking” is completely voluntary; carriers may terminate the use of a particular “short line” rate at any time, regardless of whether the line has been abandoned and, if it has been abandoned, regardless of whether abandonment was effected pursuant to the statutory or exemption abandonment procedures. Conversely, carriers may maintain a favorable rate, based on an abandoned line, simply by filing a tariff to that effect. Out of Service, 2 I.C.C.2d at 149. In short, the abbreviated abandonment procedures have little if anything to do with a carrier’s ability, obligation, or incentive to continue offering a particular rate.
Next, Illinois questions the ICC’s reliance on its authority to regulate rates as sufficient to prevent carriers’ imposing unreasonable rates following on the heels of an abandonment, asserting that a rate can be “unreasonable” yet lawful and thus beyond the ICC’s rate-regulatory reach. Brief for Illinois at 17-19. Illinois cites no authority for this proposition, however. This should come as no surprise. The ICC is empowered to regulate any unreasonable rate charged by a carrier with market dominance. 49 U.S.C. § 10709. In the absence of such dominance, however, the statute assumes that competition in the marketplace will, as it were, “regulate” rates; all rates outside a market-dominant setting are presumed to be reasonable (and thus lawful). The ICC is without power, either with or without the exemption for “out of service” lines, to alter lawful rate increases.
In sum, Illinois’ attempts to demonstrate that the statutory abandonment procedures are necessary to ensure rate reasonableness are unavailing. The Commission’s determination that the exemption does not affect the rate reasonableness policies of section 10101a, undergirded as it is by a reasoned explanation, readily withstands APA scrutiny.
C
In our previous decision, the court condemned the agency’s treatment of a third RTP goal, namely developing a sound rail transportation system to meet the needs of the national defense, 49 U.S.C. § 10101a(4), as inadequate by virtue of the Commission’s failure to respond to comments submitted by the Department of Defense. Illinois Commerce Comm’n, 787 F.2d at 630-31. Illinois asserts that the Commission on remand once again failed to do its job in this respect. Brief for Illinois at 29-30. The two main points flagged by DOD in its comments back in 1982 were, first, that advance notice of abandonments is essential to safeguard the national defense and, second, that the financial assist-anee procedures available in the statutory abandonment provisions (designed to provide for the rescue of about-to-be-abandoned lines) should be made available under the exemption. Illinois Commerce Comm’n, 787 F.2d at 630 n. 102. Both concerns, we are satisfied, received adequate consideration on remand.
For one thing, the ICC effectively mooted DOD’s earlier comments on the financial assistance program since the agency promulgated rules specifically providing for application of those provisions in exemption cases. See Ex Parte No. 274 (Sub-No. 16) Exemption of Rail Line Abandonments or Discontinuance—Offers of Financial Assistance, decided Dec. 14, 1987. As to DOD’s concern over the adequacy of impending abandonments, the Commission observed that, in a separate proceeding, it had in fact extended the period for notice provided to the Defense Department. Out of Service, 2 I.C.C. at 151. Railroads invoking the class exemption are now required to notify DOD in writing at least ten days prior to the filing of a notice of exemption with the ICC, thereby according the Department at least sixty days’ notice before the abandonment’s effective date. 49 C.F.R. § 1152.50(d). The Commission determined that, although this provides less notice than DOD had originally requested, the sixty-day period should afford ample time to identify lines that should be preserved by virtue of national defense considerations.
Illinois’ sole criticism of this analysis is that “[t]he System Diagram Map requirement ... is the critical notice period.” Brief for Illinois at 30. The System Diagram Map, which is part of the statutory abandonment scheme, provides interested parties with four months’ notice of potential or proposed abandonments. See supra note 13. Illinois neglects to explain why this four-month period, while obviously helpful, is critical or why, if additional time is necessary to meet the Nation’s defense needs, DOD failed to reiterate its concern by petitioning for review. Although additional notice would presumably be helpful from DOD’s standpoint, Illinois provides us with nothing to indicate that additional time beyond the sixty-day period is in any way necessary to DOD’s evaluation of proposed abandonments. In the absence of evidence to the contrary, we are satisfied as to the reasonableness of the agency’s determination that sixty days’ notice is adequate.
D
A related issue which was remanded for further consideration involved the RTP goal of cooperation with the States in transportation matters, 49 U.S.C. § 10101a(9). Illinois Commerce Comm’n, 787 F.2d at 631. In our previous decision, the court faulted the ICC’s failure to consider comments submitted by States protesting the lack of notice of proposed abandonments under the class exemption. Id. Basically, the States contended that retention of the System Diagram Map, or its equivalent, is necessary both to the States’ rail planning efforts and to provide notice to rail users who might oppose the abandonment. Id. Illinois and New York continue to press that point before us. Brief for Illinois at 30-31; Brief for New York at 7-8. On remand, the Commission considered and rejected these contentions, providing a thorough and well-reasoned explanation for doing so. We turn, then, to the Commission’s explanation.
Although rejecting the argument that the statutory abandonment procedures, specifically System Diagram Maps, are necessary to further the goals of the RTP, the Commission squarely responded to the position that notice should be afforded prior to consummation of an abandonment. Under the exemption procedures, States receive notice at least sixty days before the exemption is effective and an abandonment can occur. 49 C.F.R. § 1152.50(d). In justifying the adequacy of the sixty-day period, the Commission observed that the exemption, which by definition applies solely to lines that have generated no traffic for at least two years and carry only overhead traffic that can be rerouted (and thus readily accommodated), results in no loss of service to shippers. Out of Service, 2 I.C. C.2d at 154-55. Furthermore, the transactions encompassed by the exemption tend to be noncontroversial, as evidenced by the small number of abandonments generating opposition under the exemption (only 10 of the first 200 cases). See id. at 150. In light of this factual predicate, the Commission concluded that the benefits of the additional notice accruing to the small number of States and shippers affected by aban-donments of out-of-service lines are outweighed by the costs to railroads both in maintaining the Maps and in delaying desired abandonments for four months. Id. at 154.
The ICC’s reliance on the sufficiency of the sixty-day notice period did not rest on this balancing alone, however. The Commission considered the situations of various parties who might potentially be affected or involved in rail planning and explained why the notice provided by the System Diagram Maps is unnecessary to protect the interests of such groups. For example, if, in spite of the absence of local traffic, a particular line is important to the State’s rail system, the State should monitor its activity, as lack of use will tend to herald eventual abandonment. Id. at 153-54. Similarly, a shipper dependent on a particular line but who (somehow) fails to use the line for two years can likewise be expected, in reason, to shoulder the burden of monitoring material developments under such rather unusual circumstances; a shipper of that sort cannot reasonably presume an indefinite continuation of service on a manifestly marginal line. Id. at 154. Finally, a new business that wishes to employ the affected line can reasonably be expected to inquire into the line’s future, with the railroad presumably having no reason to be less than forthright about any plans to abandon the track. Id.
In the absence of indications that additional notice is necessary to promote cooperation with the States, the Commission’s classic line-drawing choice of sixty days’ notice appears reasonable. We are further persuaded that the Commission’s determination, predicated as it is on the agency’s experience, is entirely in keeping with the deregulatory thrust of the Staggers Act.
Ill
We turn to the next major area of concern articulated in our prior visitation to this case, namely the ICC’s treatment of section 10505’s second prerequisite to exemption. To recap, in order to qualify for an exemption, section 10505 requires either that the transaction be of limited scope, or that application of the statutory provision be unnecessary to protect shippers from the abuse of market power. 49 U.S.C. § 10505(a)(2) (emphasis added). In its original decision, the Commission failed to examine whether its findings on these points were valid in light of the expanded definition of “out of service” contained in the final rule. Illinois Commerce Comm’n, 787 F.2d at 634-35. On remand, the ICC reaffirmed its conclusions, finding that the exemption, as expanded, was limited in scope and that regulation was unnecessary to protect shippers from market power abuses. Out of Service, 2 I.C.C. at 156.
Illinois challenges both determinations, arguing that the exemption, as expanded, is not limited in scope and that regulation is necessary to protect shippers. Brief for Illinois at 20-29; Brief for New York at 8. We need not plumb the depths of the first point, however, inasmuch as we are satisfied that the agency acted properly under the “abuse of market power” clause. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314 (requirements of section 10505(a)(2) are disjunctive; as long as the ICC properly determined that regulation is unnecessary to protect shippers from abuse of market power, it need not find the exempt transaction to be limited in scope).
The Commission provides a reasonable explanation for its conclusion that regulation of abandonments is unnecessary to prevent the abuse of market power. Essentially, the ICC relies on the proposition that a carrier’s market power is unaffected by an abandonment. Out of Service, 2 I.C.C.2d at 156. The carrier’s market power is determined not by the presence or absence of particular lines, but by the existence (or lack) of transportation alternatives available to shippers. Obviously, a carrier does not compete with itself, with one routing option vying with another for the greater share of traffic. If a carrier lacks market power prior to abandonment, then the carrier’s decreasing the number of available routes on its own lines will do nothing to create power that did not otherwise exist. That is to say, after the abandonment, the carrier will be subject to the same competitive forces as previously. Conversely, if a carrier possess market power prior to an abandonment, reducing its routing options will neither augment nor diminish that power. Id. Although, as Illinois elaborately explains, abandonments may obviously alter a carrier’s operations, see Brief for Illinois at 21-24, such alterations do not bear on the extent of competition (either from other rail carriers or from other modes of transportation) to which the carrier is subject.
Somewhat more specifically, the challengers emphasize the effect of abandon-ments on shippers located adjacent to the abandoned line. Illinois and New York hypothesize that railroads will employ the exemption as a device to sever important lines providing service to overhead shippers. Id. at 31-33; Brief for New York at 6-8. According to this gloomy view, when a line is severed, shippers located on the segments adjacent to the abandoned section will suffer from the exercise of the carrier’s increased market power. Id. Although Illinois cites a specific instance of abandonment within its borders as an example of this phenomenon, the State fails to explain how, if at all, the abandonment led to an abuse of market power. The sole evidence adduced by Illinois is a difference in rates charged to shippers on the two segments of line that were severed by the abandonment. Brief for Illinois at 33. For starters, however, Illinois does not explain how the rate differential constituted an abuse of market power. Nor does Illinois demonstrate how the abandonment enabled the carrier to charge the differential; presumably, for reasons previously set forth, the carrier could have increased the rate charged the shippers on both segments of the line prior to the abandonment. See Illinois Commerce Comm’n v. ICC, 819 F.2d at 314-15 (although the acquisition of trackage rights under a class exemption may enable carriers to alter routes or raise rates on old routes under threat of abandonment, such behavior is not an “abuse of market power,” but rather reflects the economics of the marketplace.)
Thus, the rationale informing the Commission’s “market power” determination appears sound; indeed, on remand the agency has more than adequately covered its tracks. In the absence of concrete evidence to the contrary, we are satisfied that the ICC’s treatment of the “abuse of market power” factor was neither arbitrary nor capricious.
IV
The final issue remanded to the ICC involved the protection of railroad employee interests. Section 10505(g) prohibits the Commission from exercising its exemption authority to relieve a carrier of its obligation to protect employee interests. 49 U.S.C. § 10505(g). Pursuant to this mandate, the ICC ordered the standard labor protections, adopted by the agency in Oregon Short Line R.R. — Abandonment—Goshen (OSL), 360 I.C.C. 91 (1979), applicable to carriers seeking to abandon lines under the auspices of the Commission-fashioned exemption. Observing that the OSL protections constituted only the requisite minimum, the court faulted the ICC for failing to clarify the appropriate procedures for seeking enhanced labor protection conditions. Illinois Commerce Comm’n, 787 F.2d at 636.
Responding to the court’s directive, the Commission on remand established that the appropriate procedure by which labor organizations may seek higher levels of employee protection is a petition for partial revocation. Out of Service, 2 I.C.C.2d at 157. In the wake of the Commission’s ameliorative action, the attack on this point is now waged all alone by Simmons, who claims (for the second time) that protective conditions in abandonment proceedings must be implemented prior to consummation. Simmons contends that OSL requires preservation of the status quo until the necessary labor protections are embodied in an agreement. Brief for Illinois at 34-35. Simmons claims that reconsideration rather than revocation should have been the procedural vehicle embraced by the ICC. Id. at 35 n. 35.
Although the Commission’s discussion fails expressly to address Simmons’ point, we nevertheless find nothing arbitrary or capricious in its action. Undoubtedly, we would have been edified by the agency’s views as to the proper interpretation of OSL. But in view of our express rejection of Simmons’ argument the last time around, see supra note 19, we cannot fault the Commission for failing to set forth its views in this particular. See Illinois Commerce Comm’n, 787 F.2d at 636 n. 157. As the old saying goes, enough is enough. What is more (than enough), the ICC provided a sensible explanation for its determination that post-abandonment revocation constitutes an adequate procedure to safeguard employee interests. The Commission pointed to the extremely limited number of abandonment cases under the statutory procedures in which labor interests had established a case of protections going beyond the OSL conditions. Out of Service, 2 I.C.C.2d at 157. The ICC further predicted that the labor-related effects of abandonment of “out of service” lines would be minimal, since few employees would likely be serving lines that had generated no local traffic for over two years. Id. Moreover, to the extent that the OSL conditions may prove inadequate, the Commission’s procedures expressly permit, as we have just seen, those conditions to be augmented as circumstances warrant. Id.
Simmons says nothing that undermines the agency’s reasoning, nor does he indicate how the legitimate interests of employees are prejudiced by consideration of protection issues post abandonment (again, in view of the panoply of remedies afforded by the standard OSL conditions). In light of (1) the small number of cases in which labor protection conditions would likely require augmentation, (2) the limited universe of railroad employees involved, and (3) the absence of any showing of prejudice to labor interests, it was reasonable for the Commission to conclude that pre-consum-mation consideration of labor protection issues beyond the OSL conditions is unnecessary to protect employees’ interests.
V.
Having determined that the Commission has adequately addressed the concerns expressed in our previous opinion, we proceed to consider the arguments raised by Rails to Trails Conservancy (“RTC”) in its appeal from the Commission’s denial of RTC’s petition for reconsideration. RTC argues, first, that inadequate consideration was given to environmental consequences during the rulemaking itself, in violation of section 102 of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332 (1982). In its order denying reconsideration, the ICC rejected this contention, in part because the rulemaking would not result in more or less abandonments being granted, but instead would simply reduce regulatory burdens on abandonments that would occur in any event, and hence could have no environmental impact. The ICC’s reasoning here is unsatisfactory, for it is not at all apparent that a change in procedure alone will not affect the environment — the new procedure may, for example, lessen the opportunity for environmental groups to influence the agency’s final decision. The procedural nature of a regulation does not, therefore, exempt an agency from complying with NEPA and preparing an environmental assessment (“EA”) or an environmental impact statement (“EIS”) where appropriate.
Contrary to RTC’s suggestion, however, we do not believe the Commission did, in fact, ignore environmental factors when it promulgated this regulation. In its first rulemaking (prior to remand), the Commission noted that track removal and dispositions of rights-of-way could affect the environment and correctly stated that its exemption authority did not extend to exempting transactions from relevant environmental laws. Thus the Commission required parties seeking exemptions to submit evidence on environmental issues. 49 C.F.R. § 1152.50(d)(4) (1985). The Commission also cautioned that individual exemption authorizations “may at times be conditioned upon compliance with environmental conditions.” Exemption of Out of Service Rail Lines, 366 I.C.C. 885, 890 (1983); Illinois Commerce Comm’n, 787 F.2d at 629 n. 89. Furthermore, subsequent to the rulemaking, in response to concerns raised by its own staff, the Council on Environmental Quality (“CEQ”), and RTC, the Commission has engrafted onto the abandonment regulations additional procedures to ensure compliance with NEPA and other environmental statutes at the individual abandonment stage.
It is true, nevertheless, that the Commission was obligated by its own regulations and those of CEQ to prepare at least an EA prior to promulgating this regulation. But because the Commission did not ignore environmental consequences during the rule-making, and subsequently has developed procedures to focus on those consequences when individual abandonments are authorized, we decline to remand. An order to the Commission to prepare an EA or an EIS and engage in rulemaking for a third time would be a meaningless gesture, not necessary to guarantee that the Commission will consider environmental concerns when it authorizes abandonments. See Kerner v. Celebrezze, 340 F.2d 736, 740 (2d Cir.1965) (Friendly, J.) (remand for procedural error not necessary where it would accomplish nothing “save further expense and delay”).
We turn next to RTC’s contention that the actual procedures established by the regulation will result in the violation of NEPA each time the Commission authorizes an exemption. Under the regulation as promulgated, a carrier seeking an exemption must file a notice with the appropriate state Public Service Agency ten days prior to filing with the Commission. The carrier’s application to the Commission itself must address environmental issues, and must be submitted fifty days before the date of abandonment. Within twenty days after receiving the application, the Commission publishes notice of abandonment in the Federal Register, and the exemption is effective thirty days later without any further Commission action. Under the regulation as originally promulgated, petitions to stay the exemption had to be filed within ten days of publication of notice in the Federal Register, and petitions to reconsider within twenty days. Those deadlines have since been modified by the Commission, as will be discussed below.
RTC attacks this regulation on grounds that it impermissibly shifts to private parties the burden of raising environmental concerns, that it allows the Commission to authorize an abandonment without considering the effect of that action on the environment, that it sets such a high burden on an applicant for a stay or reconsideration that abandonments will go forward despite submission of valid objections, and that the short notification period does not provide a reasonable opportunity for public participation.
RTC raises several powerful points, and if the regulation had not been modified at all in response to environmental concerns, the appropriate disposition of RTC’s petition would be a remand to the Commission. Nevertheless, a remand is no longer necessary, for in several subsequent orders the Commission has addressed RTC’s concerns by adding additional procedures and clarifying the burden that intervenors must meet to stay an abandonment proceeding. These subsequent orders, in addition to representations by. counsel for the Commission at oral argument, persuade us that the current procedural regime for authorizing abandonments is not facially inconsistent with NEPA and other environmental statutes. Nothing we decide here, however, affects the rights of these petitioners or any others to challenge the adequacy of the Commission’s procedures as applied to a particular abandonment.
We agree with RTC that, under the regulation as originally promulgated, the Commission’s reliance on private parties to raise environmental concerns was unlawful. The Commission may not delegate to parties and intervenors its own responsibility to independently investigate and assess the environmental impact of the proposal before it. Harlem Valley Transp. Ass’n v. Stafford, 500 F.2d 328, 336 (2d Cir.1974); see also Steamboaters v. FERC, 759 F.2d 1382, 1394 (9th Cir.1985); Calvert Cliffs’ Coordinating Comm., Inc. v. Atomic Energy Comm’n, 449 F.2d 1109, 1118-19 (D.C.Cir.1971). In December 1987, however, the Commission instructed its Section of Energy and Environment to complete and make available to the public an environmental assessment within five days of publication of the exemption notice in the Federal Register. At oral argument, counsel for the Commission represented that this EA would be the product of independent staff investigation and evaluation of the abandonment proposal — not a pro forma reworking of the applicant’s assertions regarding environmental impact.
RTC questions whether an adequate EA can possibly be prepared in the time allotted. We review the Commission’s judgment that its procedure satisfy NEPA for abuse of discretion. See Vermont Yankee Nuclear Power Corp. v. Nat’l Resources Defense Council, 435 U.S. 519, 554, 98 S.Ct. 1197, 1217, 55 L.Ed.2d 460 (1978); Kleppe v. Sierra Club, 427 U.S. 390, 412-14, 96 S.Ct. 2718, 2731-32, 49 L.Ed.2d 576 (1976). While the time for preparation of an EA is abbreviated, particularly if the proposed abandonment is extensive, see Scientists’ Inst. for Pub. Information, Inc. v. Atomic Energy Comm’n., 481 F.2d 1079, 1092 (D.C.Cir.1973) (NEPA statements will vary in length and complexity in relation to size of project being considered), we cannot say, in the context of this facial challenge, that the Commission has acted arbitrarily. Furthermore, if an abandonment application does present complex environmental problems, the Commission may on it own motion stay the exemption to allow an adequate EA or EIS to be prepared by its staff.
RTC also contends the EA comes too late in the authorization process to be meaningful. Council on Environmental Quality regulations require that “NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken.” 40 C.F.R. 1500.1(b) (emphasis added). RTC asserts that the publication of notice of abandonment in the Federal Register is the relevant agency action or decision, and argues that the EA must therefore be prepared prior to publication, and not five days later, as provided by current procedures.
We think this argument is overly technical — an order to the Commission to prepare the EA five days earlier so as to coincide with publication of notice would exalt form over substance. The decision at issue here—that a particular abandonment is not subject to regulation — is not made at the moment notice is published in the Federal Register. While it is true, as RTC notes, that the exemption may become effective thirty days after publication without further action by the Commission, publication is nevertheless not the final step. The Commission’s staff continues to investigate and assess environmental issues after publication, and if the staff or any intervenors raise questions suggesting the exemption should not be granted, the Commission will stay authorization while it considers such issues. Hence, publication of notice prior to completion of the EA does not conflict with NEPA, for it does not diminish the Commission’s capacity to take environmental concerns into account in its decisionmaking. No “irretrievable commitments” of agency or private resources occur upon publication, nor are options precluded or positions finally determined. See Scientists’ Institute, 481 F.2d at 1094. Rather, the notice serves to alert interested parties about the abandonment and provides information on how to obtain the EA and request a stay or reconsideration. Of course, since publication of notice is not itself the final decision, the Commission, or some responsible official delegated authority by the Commission, must formally consider staff recommendations contained in the EA and comments by intervenors at some time prior to the effective date of abandonment. Moreover, the record of the abandonment authorization must clearly reflect this, in order to withstand subsequent judicial review. See id. at 1094-95. It must reflect, as well, an affirmative determination that the agency’s environmental analysis permits the rail abandonment to go forward. Otherwise, a substantive decision may be made—the granting of the exemption—without the agency ever taking a hard look at environmental factors. As this court has held, “NEPA was intended to ensure that decisions about federal actions would be made only after responsible decision-makers had fully adverted to the environmental consequences of the actions, and had decided that the public benefits flowing from the actions outweighed their environmental costs.” Jones v. District of Columbia Redevelopment Land Agency, 499 F.2d 502, 512 (D.C.Cir.1974), cert. denied, 423 U.S, 937, 96 S.Ct. 299, 46 L.Ed.2d 271 (1975).
RTC correctly asserts that after an exemption is finally authorized and the railroad begins to tear up the track and dispose of the right-of-way, alternatives are clearly foreclosed and it would be too late at that point for the Commission to consider environmental factors. And yet, RTC argues, if the Commission declines to grant a stay at the request of an intervenor who raises environmental concerns, because the intervenor has failed to make the required showing of probability of success and irreparable injury, the abandonment process will go forward even though the Commission may not have responded to serious questions presented it. Thus, according to RTC, a short notice period and a high threshold for granting a stay conspire to prevent the full consideration of environmental issues demanded by NEPA before major federal action is taken.
The Commission has responded to RTC’s concern by informing this court in its brief and at oral argument that the Commission’s current practice is to “stay any individual abandonment of an out-of-service line if environmental issues are raised and cannot be resolved through a Commission decision before the exemption would otherwise become effective for that line.” Brief for the ICC and the United States at 40; see also ICC Docket No. AB-32 (Sub.-No. 36X), Boston & Maine Corporation and Springfield Terminal Railway Company-Abandonment and Discontinuance of Service (not printed), served Nov. 25, 1987. At oral argument, counsel for the Commission stated that no showing of irreparable harm or probability of success is required of intervenors or parties who raise environmental concerns — a stay will automatically be granted until the concerns are resolved by the Commission. As this procedure obviates the possibility that an abandonment would be authorized even though environmental questions were still outstanding, a remand is not necessary.
The importance of an EA or an EIS lies not merely in the aid it may give to the agency’s own decisionmaking process, but also in the notice it gives the public of both the environmental issues the agency is aware of and those it has missed. The EA or EIS should provide a springboard for public comment, bringing to the agency viewpoints and options it might otherwise lack. See Calvert Cliffs’ Coordinating Comm., 449 F.2d at 1114; 40 C.F.R. § 1501.2(d)(2). RTC contends that the procedures set forth on the abandonment regulation fail to provide a reasonable period of time for meaningful public comment. A railroad seeking an abandonment exemption must notify the state public service commission ten days prior to filing the exemption provision. The Commission states that public interest groups such as RTC could establish a relationship with the public service commission in their locality and so receive early notification that an exemption will be requested. No EA would be available at that time, though, and so the usefulness of such notice to environmental groups is limited. The Commission, moreover, does not advance any evidence that state public service agencies will perform this service, and, in fact, the Commission’s own staff in comments concerning another exemption proceeding suggest that state agencies do not carry out this function very well. “The designated agency ... cannot circulate the environmental notice quickly enough to afford any meaningful opportunities for involvement in the ICC’s decisionmaking process.” Comments of the Section of Energy and Environment on Class Exemption for the Construction of Connecting Tracks under 49 U.S.C. § 10901. J.A. at 300. We therefore give little weight to this method of notification.
Five days after the notice of exemption is published in the Federal Register, the EA prepared by the Commission’s staff will be publicly available. Parties and intervenors then have fifteen days to request a stay. If the Commission required a detailed statement and a showing of irreparable injury and probability of success, this time period might be inadequate as a matter of law, but since, as we have stated, the Commission has indicated it will grant a stay upon a minimal showing, we cannot hold that fifteen days is always impermissibly short. Where, in a particular abandonment proceeding, special circumstances render fifteen days unreasonably short even to make a minimal showing, the Commission could grant an extension in order to comply with NEPA. We therefore decline to rule that the Commission’s procedures, as set forth in the regulation and modified by subsequent action, are facially inconsistent with NEPA.
In addition to its arguments regarding lack of compliance with NEPA, RTC asserts that the Commission’s procedures violate section 106 of the National Historic Preservation Act, 16 U.S.C. § 470f (1982). Like section 102 of NEPA, section 106 of the Historic Preservation Act is a “stop, look, and listen” provision; it requires federal agencies to take into account the effect of their actions on structures eligible for inclusion in the National Register of Historic Places. As the Commission recognized in its first rulemaking (pri- or to remand), track abandonment may affect historic structures. Exemption of Out of Service Rail Lines, 366 I.C.C. 885, 890 (1983). In order to fulfill its obligations under the Historic Preservation Act, the Commission requires applicants for abandonment exemptions to include in their application information concerning whether any sites listed in the National Register of Historic Places are affected. Furthermore, the applicant must submit detailed descriptions of any affected structures fifty years old or older to the appropriate State Historic Preservation Office. 49 C.F.R. 1105.7(c)(10) (1987).
RTC’s attack on the Commission’s Historic Preservation Act procedures is similar to its arguments concerning NEPA. In particular, RTC asserts that publication of notice of abandonment prior to consultation with state and federal agencies concerning historic preservation violates the Act. For the reasons stated in our discussion of NEPA, we do not agree. So long as the record in an individual abandonment shows that the required consultations and deliberations concerning historic preservation occur before the exemption becomes effective, the purposes of the Historic Preservation Act are met.
Section 8(d) of the National Trails System Act, 16 U.S.C. § 1247(d) (Supp. II 1984), directs the Commission to encourage state and local agencies and private parties to establish recreational trails along abandoned rail lines. See also 49 U.S.C. § 10906. Such use serves to preserve established rights-of-way for future reactivation as working railroads—hence the name “rail banking.” Section 1247(d) provides that any line preserved in this way shall not be treated as abandoned — thus preventing rights-of-way obtained through easements from reverting to their owners upon the cessation of railroad use. See generally Washington State Dep’t of Game v. ICC, 829 F.2d 877 (9th Cir.1987). RTC cqntends that the Commission has failed to consider its obligations under section 8(d) in issuing the abandonment regulation. We disagree. The regulation specifically provides that persons interested in interim use of abandoned rail lines as recreational trails may submit evidence, and refers the reader to 49 C.F.R. § 1152.29. (1987) which sets out the statement required of prospective users. Although the regulation requires the statement be submitted within ten days, the Commission has informed the court that “it would accept and act on late-filed Trails Act requests so long as it still retains jurisdiction to do so.” Brief of I.C.C. and United States at 37. Private organizations and state or local agencies interested in interim use of rail lines may monitor the Federal Register and upon notification of an abandonment, may make the submission required by § 1152.29. We reject FTC’s contention that the time allotted under the Commission’s regulation as modified is not adequate, and we do not believe the Commission has ignored its obligations under section 8(d) of the National Trails Systems Act.
. The exemption also extends to discontinuances of service and trackage rights under 49 U.S.C. § 10903-05(1982). Exemption of Out of Service Rail Lines, 2 I.C.C.2d 146 (1986).
. The legislative history of the Staggers Rail Act of 1980, Pub.L. No. 96-448, 94 Stat. 1895 (1980), clearly evinces Congress’ desire to deregulate the railroads. In enacting section 10505 and conferring broad exemption authority on the ICC, Congress expected that "as many as possible of the Commission's restrictions on changes in prices and services by rail carriers will be removed [through the use of section 10505] and that the Commission will adopt a policy of reviewing carrier actions after the fact to correct abuses of market power." H.Con.Rep. No. 1430, 96th Cong., 2d Sess. 105, reprinted in 1980 U.S.Code Cong. & Admin.News 3978, 4110, 4137. Congress believed that "the Commission is more capable through the administrative process of examining specific regulatory provisions and practices not yet addressed by Congress to determine where they can be deregulated consistent with the policies of Congress.” Id.; see also Illinois Commerce Comm’n v. ICC, 749 F.2d 875, 885 (D.C.Cir.1984) (deregulation through exemption process overriding purpose of Act), cert. denied, 474 U.S. 820, 106 S.Ct. 70, 88 L.Ed. 2d 57 (1985); Coal Exporters Ass’n v. United States, 745 F.2d 76, 82 (D.C.Cir.1984) (exemption provision intended to give ICC very broad authority to eliminate unnecessary regulation), cert. denied, 471 U.S. 1072, 105 S.Ct. 2151, 85 L.Ed.2d 507 (1985).
. For the reader’s reference, the multi-pronged RTP is quoted in full at footnote 67 in our prior opinion. Illinois Commerce Comm’n, 787 F.2d at 626 n. 67.
. Iowa Trails Council and Conservation Federation of Maryland joined RTC in the agency proceedings and now on review.
. Separate petitions for review were filed by the Illinois Commerce Commission and Patrick Simmons; the Commissioner of Transportation of the State of New York; and Rails to Trails Conservancy, Iowa Trails Council, and Conservation Federation of Maryland. The petitions were consolidated by the court.
. In its decision, the Commission observed that in situations where overhead traffic is not being rerouted efficiently (which presumably would include cases where rerouting has resulted in more than a de minimis increase in energy consumption), an affected shipper may file a petition for reconsideration challenging the carrier’s representation that all overhead traffic can be rerouted in an efficient manner. Out of Service, 2 I.C.C.2d at 151.
. In discussing rate reasonableness, the court focused on subsection 6 of the RTP, which directs the ICC "to maintain reasonable rates where there is an absence of effective competi-tion_” 49 U.S.C. § 10101a(6). In its petition for review, Illinois points to several other RTP factors which relate to rate reasonableness, including sections 10101a(l), (3), (4), (10), (11), and (13). Brief for Illinois at 14.
. Section 10701a provides that "unless a rate is prohibited by a provision of this title, a rail carrier ... may establish any rate for transportation or other service provided by the carrier.” 49 U.S.C. § 10701a(a). Carriers establish rates for particular lines in tariffs, which they tire required to file and maintain. Tariffs are subject to protest (for changed rates) and complaint (for existing rates) procedures. Rates established by carriers with market dominance are subject to challenge on the ground that they exceed a maximum reasonable level. Id. § 10709. Where there is competition, no such challenge is permitted since competition serves to assure the reasonableness of rates.
. "Short line ratemaking” is a practice employed by some carriers to allow shippers to take advantage of a lower rate that applies over a route other than the actual route of movement. Out of Service, 2 I.C.C.2d at 149 n. 7.
. Illinois does cite two cases in support of its assertion that rates can be unreasonable, yet lawful and beyond the ICC’s power to regulate. Brief for Illinois at 19 n. 22. Neither decision, however, stands for this proposition. Rather, they establish that the ICC may not find a rate unreasonable unless it has established market dominance. Atchison, T. & S.F. Ry. v. ICC, 580 F.2d 623, 627 (D.C.Cir.1978); Potomac Elec. Power Co. v. United States, 584 F.2d 1058, 1066 (D.C.Cir.1978).
. The financial assistance procedures, 49 U.S. C. § 10905, permit DOD (or any other interested party) either to purchase the line or subsidize its operations as a means of avoiding abandonment or discontinuance.
. Exemption of Out of Service Rail Lines — Notice to the Department of Defense, 1 I.C.C.2d 323 (1985).
. In its comments, DOD had suggested that adequate notice would be provided by identification of targeted lines on a carrier’s System Diagram Map for at least four months prior to abandonment, as required under the statutory abandonment procedures. Illinois Commerce Comm’n, 787 F.2d at 630 n. 102. Under the statute, railroads are required to maintain complete diagrams of their transportation systems and must indicate lines projected for abandonment or potentially subject to abandonment. 49 U.S.C. § 10904(e)(2). When an abandonment is opposed by a State (or political subdivision) or a significant user of the line during the previous twelve months, a certificate of abandonment ordinarily will not issue unless the line was described in the diagram or an amendment to the diagram at least four months prior to the application. Id. § 10904(e)(3). The ICC’s failure to incorporate this requirement into the exemption procedures is addressed more fully in the text which follows.
. The court also criticized the Commission’s failure to maintain the financial assistance procedures as requested by the States. Illinois Commerce Comm’n, 787 F.2d at 631. As noted in our discussion of national defense needs, the ICC has since promulgated rules making the requested procedures automatically available in exemption proceedings, thereby fully satisfying the States' concern. See Ex Parte No. 274 (Sub-No. 16) Exemption of Rail Line Abandonments or Discontinuance — Offers of Financial Assistance, decided Dec. 14, 1987.
. In his partial dissent, our colleague quite rightly emphasizes the role of the States in carrying on the implementation of a sound and efficient rail transportation system. With that role we have not the slightest quarrel. Consonant with our historic system of federalism fashioned at the Founding, Congress has ordained a vital, complementary role for the States in the rebuilding and maintenance of the Nation’s rail transportation system. That being said, our disagreement rests entirely on a narrow but important point, namely whether it is for this court to tear asunder the carefully crafted scheme erected by the Commission in vindi-eating the various (and at times competing) elements of the rail transportation policy. Fundamental values of federalism informing the statutory scheme are, we are satisfied, secured by the system which the ICC has erected. True, the States are no longer afforded the four-months’ notice provided by the System Diagram Map mechanism. But the ICC focused specifically on the question of notice and deemed, for reasons we think sufficient to pass judicial muster, the notice mechanism under the new regime ample to vindicate those values. That being so, we are not at liberty to undo what the Commission has done in this particular.
. We note that if a rate differential is imposed in a discriminatory fashion, an affected party can seek a remedy under 49 U.S.C. § 10741(b).
. In response to the abandonment cited by Illinois as an example of market power abuse, the ICC refers to the agency’s unchallenged findings in that case, namely that the line involved carried little overhead traffic and, thus, any effect on overhead traffic (and, presumably, any potential for abuse of market power) would be de minimis. Brief for Respondents at 30-31. The Commission further observed that in the rare situation where an exempt transaction results in market power abuse, affected shippers may challenge the abandonment in post hoc proceedings. Id. at 31 (citing Illinois Commerce Comm’n, 819 F.2d at 315 & n. 3).
. Neither Illinois nor New York joins Simmons in challenging the Commission’s treatment of this issue.
. In their prior appeal, Illinois and Simmons asserted that "relegation of the issue of adequacy of employee protections to post-abandonment revocation procedures would violate an administrative rule that the Commission must establish the level of employee protection before consummation of an abandonment.” Illinois Commerce Comm’n, 787 F.2d at 636 n. 157. The court expressly rejected the argument, stating that the case cited by petitioners for the proposition did not in fact support it. Undaunted by this adverse determination, Simmons continues to press the point.
. This should not be surprising, in view of the generous package of protections embodied in the OSL package, including in some cases full pay for up to six years for employees laid off by virtue of the abandonment. See OSL, 360 I.C.C. at 98-103.
. Petitioner Rails to Trails Conservancy is joined by Iowa Trails Council and Conservation Federation of Maryland. These petitioners are public interest corporations devoted to minimizing adverse environmental impacts Rowing from rail abandonments and to fostering public use, including public recreational trail use and rail banking, of railroad rights-of-way scheduled for abandonment.
. An environmental assessment serves to aid an agency’s compliance with NEPA when no environmental impact statement is necessary. 40 C.F.R. § 1508.9 (1987).
. The Commission’s notice states:
In consultation between Commission staff and the Council on Environmental Quality, an issue has arisen concerning the timing of Environmental Assessments (EAs) in abandon-ments under this exemption. To assure adequate notice and opportunity for the public to comment on these documents, we are instructing our Office of Transportation Analysis (OTA), which includes the Section of Energy and Environment (SEE), to assure that EAs are completed and available within 5 days of publication of the notice of exemption in the Federal Register (FR). The fact that EAs will be available at that time upon request will be noted in each FR notice and SEE will continue to serve the parties and every agency with whom it has consulted in preparation of the document.
Ex Parte No. 274 (Sub-No. 8) Exemption of Out of Service Rail Lines (not printed), served Dec. 29, 1987.
. The Commission has stated that it will no longer require stay petitions to be filed within ten days of Federal Register publication. Stay petitions may therefore be filed within the twenty day period allotted for petitions to reconsider.
. The Commission has stated that according to 49 U.S.C. § 10505(c), its jurisdiction over exempted abandonments would appear to extend indefinitely. Brief at 37 n. 28. See also Ex Parte No. 274 (Sub-No. 13), Rail Abandonments—Use of Rights of Way as Trails—Supplemental Trails Act Procedures, decided December 2, 1987.
. RTC adverts to, but does not directly challenge, the Commission’s interpretation of section 8(d) as requiring it to condition rail-to-trail conversions on negotiations of voluntary agreements between abandoning railroads and prospective interim trail users. See generally Washington State Dep’t of Game v. ICC, 829 F.2d 877 (9th Cir.1987). We have no occasion, therefore, to pass on the reasonableness of that interpretation.
Question: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_genapel1 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
BANK OF AMERICA NAT. TRUST & SAVINGS ASS’N v. DOUGLAS et al.
No. 7354.
United States Court of Appeals for the District of Columbia.
Argued March 30, 1939.
Decided May 8, 1939.
William Stanley, of Washington, D. C., T. W. Dahlquist, of San Francisco, Cal., and Charles W. Collins and Donald R. Rich-berg, both of Washington, D. C., for appellant.
Chester T. Lane, of Washington, D. G, for appellees.
Before GRONER, Chief Justice, and EDGERTON and VINSON, Associate Justices.
GRONER, G J.
Plaintiff Bank brought this suit against the members of the Securities and Exchange Commission to prevent the public disclosure by the Commission of information claimed to have been illegally obtained and for injunction restraining the Commission from enforcing subpoenas requiring the production of the records of the Bank.
Plaintiff is a national bank, a member of the Federal Reserve System, with deposits insured by the Federal Deposit Insurance Corporation, and has its principal place of business in San Francisco, California. It has outstanding capital stock of $50,000,000, has total capital assets in excess of $114,000,000, and does business in 308 communities in the State of California through its main office and its branches.
Transamerica Corporation (not a party to this suit) owned practically the entire voting stock of the Bank prior to July 15, 1937, but on that date distributed to its own stockholders all but 42%, which it still retains.
None of the Bank’s stock is registered on any national securities exchange.
Transamerica in August, 1937, filed with Securities Commission an application for registration of 11,590,784 shares of its own capital stock of the par value of $2 per share. The registration became effective the following September 10. Since Transamerica had owned all of the Bank’s capital stock during the years 1934-36, its application included balance sheets, profit and loss statements, and other financial information with respect to the Bank for those years — furnished substantially in the same form as the report of condition of the Bank filed with the Comptroller of the Currency.
In November, 1938, the Commission, in anticipation of proceedings to determine whether Transamerica’s registration should be suspended, obtained from the Secretary of the Treasury permission to examine the reports of bank examiners made to the Comptroller of the Currency with reference to the Bank. Subsequently, in response to the Commission’s request, the Secretary consented to the public official use of the information.
The Commission then issued an order directing that a public hearing be held in Washington on January 16, 1939. The Bank was not summoned or joined as a party, but the Commission caused a subpoena duces tecum to be served on the Bank’s cashier in San Francisco, commanding him to appear within four days and bring with him records relating to numerous banking items and practices from 1929 to date; another subpcena was directed to the Bank’s vice-president, commanding him to produce records from 1929 to date relating to nearly two hundred loans made by the Bank. The subpoenas admittedly were based upon information derived from the reports furnished by the Secretary. On the hearing day, the Bank filed this complaint, alleging that the proposed investigation of the Bank’s affairs constituted an unlawful exercise of visitorial powers; that the Secretary had unlawfully given access to the bank examiners’ reports; and that their publication as proposed by the Commission would irreparably injure the Bank. It prayed for a declaratory judgment and for an injunction.
The Commission answered, challenging the jurisdiction of the court and averring affirmatively that neither the action of the Secretary in furnishing the information nor the act of the Commission in using it was contrary to law.
The trial court heard the cause on the merits and concluded: (1) that although the Commission intends at a public hearing to make its own appraisal and valuation of a substantial portion of the assets of the Bank and to make an investigation of the reserves of the Bank, such action does not constitute the exercise of any visitorial power over the Bank; (2) that even if such action is visitorial, it is within the lawful power of the Commission; (3) that although the evidence does not disclose that the bank examiners’ reports have ever been furnished to any officer, agency, or department of the government for use in a public hearing without the consent of the bank involved, except for use in criminal proceedings, the Secretary of the Treasury was authorized to furnish them to the Commission for its public official use; and (4) that the court had jurisdiction and that the suit was not prematurely brought. Judgment was entered dismissing the complaint.
From what has been said, it is apparent that the issues concern: (1) the power of the District Court to grant the relief prayed; (2) the scope of the Commission’s investigatory powers; (3) the right of the Commission to demand and receive and thereafter to disclose information contained in the reports of the bank examiners; and (4) the validity of the subpoenas issued by the Commission based on such information.
First. We think the court had jurisdiction. The Bank alleged that disclosure of the information would result in irreparable injury. Since other remedy was entirely lacking, the cause was a proper one for equitable relief. Utah Fuel Co. v. National Bituminous Coal Commission (decided January 30, 1939), 59 S.Ct. 409, 83 L.Ed. 483. If the Bank had prayed solely for an injunction against enforcement of the subpoenas, the question would be different. Federal Trade Com’n. v. Millers’ Nat. Federation, 60 App.D.C. 66, 47 F.2d 428; cf. Federal Power Com’n. v. Metropolitan Edison Co., 304 U.S. 375, 386, 58 S.Ct. 963, 82 L.Ed. 1408. But the complaint asks for other relief which a court of equity may grant, as well as for a declaratory judgment. “ ‘A court of equity ought to do justice completely and not by halves,’ and to this end, having properly acquired jurisdiction of the cause for any purpose, it will ordinarily retain jurisdiction for all purposes, including the determination of legal rights that otherwise would fall within the exclusive authority of a court of law”. Rice & Adams Corp. v. Lathrop, 278 U.S. 509, 515, 49 S.Ct. 220, 222, 73 L.Ed. 480.
And since the case is one arising under the laws of the United States, the court had power to enter a declaratory judgment. Zenie Brothers v. Miskend, D.C., 10 F. Supp. 779.
Second. Sec. 19(a) of the Securities Exchange Act of 1934 authorizes the Commission, if in its opinion such action is necessary for the protection of investors — “(2) after appropriate notice and opportunity for hearing, by order to deny, to suspend the effective date of, to suspend for a period not exceeding twelve months, or to withdraw, the registration of a security if the Commission finds that the issuer of such security has failed to comply with any provision of this title or the rules and regulations thereunder.”
Sec. 12(b) (1) requires as a condition of the registration of securities the filing with the Commission of — “Such information, in such detail, as to the issuer and any person directly or indirectly controlling or controlled by, or under direct or indirect common control with, the issuer, * * * as the Commission may by rules and regulations require, as necessary or appropriate in the public interest or for the protection of investors. * * *”
Sec. 21(a) authorizes the Commission in its discretion to make such investigation as it shall deem necessary to determine whether a registrant has violated any provisions of the Act or the rules of the Commission.
The Commission’s order alleged that Transamerica had failed to comply with the provisions of Sec. 12(b) and the Commission’s regulations, in that it had filed false and misleading statements of material facts, that is to say, a large amount of losses and doubtful accounts had been written off the books of the Bank by pretended sales to other subsidiaries of Transamerica and by write-ups of the value of investment securities; the figures for “loans and discounts” included a large number of worthless and doubtful accounts; the valuation of certain bonds included arbitrary write-ups; the depreciation figures for real estate were inadequate; the “reserve for contingencies” was misleading since there was no indication that it represented not only a self-insurance fund but a reserve for all the losses and doubtful accounts, and was therefore inadequate; the profit and loss statements included the write-ups but made no provision for the losses; as a consequence the Bank had paid out in dividends a large sum in excess of its actual current earnings.
The Act, being primarily for the protection of investors, imposes civil liability and criminal penalties upon any person who knowingly makes false and misleading statements in an application for the registration of a security for sale on a national exchange. The purpose is to require complete and truthful exposure of all matters in relation to the registrant’s financial condition. We do not doubt, therefore, that the Commission, in the exercise of its powers to enforce the Act, may inquire into the affairs of a company controlled by a registrant. And on the record in this case we are of opinion that Transamerica’s interest in the Bank, past arid present, brings the latter within the scope of that power.
Third. The next question turns upon the authority of the Secretary of the Treasury to furnish the Commission copies of the examiners’ reports and whether, if there was authority, the information must be held in confidence.
Admittedly, there is no statute of prohibition.
According to a practice of long standing, the reports of bank examiners made to the Comptroller have been considered as private, and access to them for use by other government officials has been granted only in tax investigations and criminal prosecutions. In a number of instances Congress has specifically authorized use of reports “in confidence”, and the only statutory reference to publicity is in the Comptroller’s qualified authority to publish the report on any bank which fails to comply with his recommendations.
Other instances to show that by unbroken custom reports of bank examinen, have been regarded as privileged are (1) the testimony of Chairman Douglas of the Commission in the hearings on the Barkley bill, to the effect that examiners’ reports ought not to be made public; (2) the testimony of the Comptroller in the Pujo investigation that the reports of examiners had always been regarded as confidential; (3) legislation on the subject, where in each instance in which the rule was modified, Congress recognized the necessity of effecting it by express language even as to those agencies and instrumentalities authorized to deal with banks. And to all of this may be added the uncontradicted testimony that examiners’ reports had never at any previous time been publicly used in any civil proceeding. It is obvious, therefore, that this case presents a direct conflict in congressional purposes; for on the one hand the Securities Exchange Act vests in the Commission power to make examinations of registrants and their controlled companies without excepting banks and, as part of its power, to compel the production of their books, records and papers for scrutiny' by the Commission— whereas on the other, the National Banking Act, in deference to the delicate and sensitive interests involved, contemplates exclusive supervision of banks by the Comptroller of the Currency and the confidential treatment by him of the matters developed as to their internal affairs.
And this brings us back to the question with which we began this inquiry — the authority of the Secretary of the Treasury to furnish the information in question and, assuming that, whether it should be published by the Commission. The first part of the question was answered in the affirmative by Attorney General Wickersham on an inquiry from the President relative to the Money Trust or Pujo Committee Investigation in Congress. After a comprehensive review of the duties and powers of the Comptroller, he said: “Thus the banking laws clothe the Comptroller with authority to examine into the affairs of national banks for three main purposes: First, to ascertain the financial condition and soundness of management of national banks; second, to determine whether or not such banks are operating in conformity with the banking laws; third, to enable him to recommend amendments to the existing law. Nowhere in the law is there any express provision that the information thus acquired by the Comptroller shall be confidential. While, if in your opinion, the interests of the' Government require that this information shall be so treated, you have the right to refuse to divulge it (Boske v. Comingore, 177 U.S. 459, 469 [20 S.Ct. 701, 44 L.Ed. 846]), yet, I am clearly of the view that if, in your opinion, it is proper to give this information to the House committee you have the lawful power to do so.” 29 Op. Atty. Gen. 555, 560.
The Commission insists that equal power is lodged in the Secretary by R.S. 161, which authorizes the head of each Department to prescribe regulations not inconsistent with law for the custody, use, and preservation of its records and papers. We think this is correct, and that the power includes the right to determine whether records may be withdrawn and used by other departments. In this view and since the Comptroller’s records are within the Treasury Department and the Comptroller, by statute, is under the general direction of the Secretary, it follows that no distinction can be made between the two classes of records. See, generally, 25 Op. Atty. Gen. 326; 35 Op. Atty. Gen. 5. Without more, therefore, we hold that the act of the Secretary in furnishing the Commission with the reports of the bank examiners in the present case “was not inconsistent with law”.
Whether the information so furnished should be used by the Commission only for the purpose of conducting its inquiry into the financial affairs of the Bank or whether its use was unrestricted, presents a more difficult problem. As we have already pointed out, the unbroken administrative practice of the Secretary and the Comptroller, as well as the course of Congressional legislation, manifests a fixed purpose to confine the outside use of such information to criminal prosecutions, tax suits, and the like. And this is true because of the nature of banking, as to which, by universal recognition, public confidence is essential. The plenary power of the Comptroller over the conduct of the business and affairs of banks always has been considered ample to assure reasonable protection to depositors and the public.
In the instant case it is said by the Bank that the Commission has already made public much of the information obtained from the examiners’ reports. In this respect the record shows that the Commission,, upon receiving the permission of the Secretary to make “public official use” of the reports, made an order for a hearing before one of its examiners to determine whether Transamerica had violated any of the provisions of the Act. The order, which was released to the public, set out the particulars of the subjects to be investigated, together with all of the facts believed by the Commission to show the respects in which Transamerica’s statement of the condition of the Bank was untrue. The specifications of alleged misconduct are so serious in their implications as to warrant the Commission in characterizing them as having, potentially, criminal aspects “which may yet lead to criminal prosecutions” and are set out in such meticulous detail as, backed by the great power of the Commission, to cause serious prejudice to the Bank and bring it, in advance of any hearing, into public disrepute. The Securities Exchange Act authorizes the Commission in its discretion to make investigations and to make public its findings, but there is nothing in the Act which authorizes publicity in advance of hearing. In the present case the order was made pursuant to Sec. 19(a) (2) of the Act, 15 U.S.C.A. § 78s, which empowers, after notice and hearing, suspension or cancellation of the registration statement. Under regulations prescribed by the Administrative Committee of the Federal Register, notices of hearing must be published in the Register, but the rule does not require the publication as part of such notice of the evidentiary facts; and where, as in this case, the latter are obtained from confidential sources, neither the purpose nor intent of the Act contemplates their broadcast to the public. It is not difficult to see that such a power might easily be made an instrument of oppression and, lacking specific congressional authorization, we think it ought not to be indulged. In addition to this, pretrial publication of evidence — labeled as believed to be true— ought, we think, to be avoided, especially as emanating from the tribunal charged with the judicial responsibility of weighing it and assuring .the accused a fair hearing. And, if this is the correct view, it is particularly pertinent here, for after all the Bank is not a party in the proceeding instituted by the Commission. Its connection with the investigation gro.ws wholly out of the fact that its largest stockholder, Transamerica, in certifying its own-financial condition, is believed by the Commission to have violated the provisions of the Securities Exchange Act. So far as the Bank is concerned, even if the charge, as to it, is true, any possible violation by it of the banking laws, is a matter not within the Commission’s reach. And certainly until findings are made, the Bank is entitled to have judgment, public and official, suspended. This does not suggest or contemplate that the government should be hampered or restrained in its investigation or in its prosecution of violations of the laws, or that in this case the Commission, under its duty to develop the actual facts by which to test the bona fides of the Bank’s financial statement, should be circumscribed in their proper pursuit.
And so, as we think, while it must be decided that the Secretary was authorized to deliver the reports, their use should be confined to an investigation of the charges in proper proceedings by the Commission in the discharge of its duties under the Act. And this the Commission now assures us is the length and breadth of the purpose it has in mind. It says that it does not desire or intend to introduce the reports in evidence and that it will not make them public by any other means. This assurance we accept as conclusive of this branch of the case, and relying upon it we hold that the Commission may use the information at hand in preparation for the hearing and to aid it in obtaining the evidence believed by it to be necessary and proper in the hearing on its notice to Transamerica to show cause why its registration statement should not be suspended. In saying this, we are not holding that the Commission has any “visitorial” power over the Bank, or that it has the slightest right to manage or control the Bank’s affairs or policy, or to do any of those things which are visitorial in character. If in the discharge of its duty to hold hearings and make findings business secrets are necessarily disclosed, the result is attributable only to the necessity of carrying out the purposes of the Act. The difference between this and the exercise of visitorial powers, which are restricted by Congress to itself and certain particular agencies of government, is pointed out in First Nat. Bank of Youngstown v. Hughes, C.C., 6 F. 737, in this language : “Visitation, in law, is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations. Burrill defines the word to mean ‘inspection; superintendence; direction; regulation.’ The exercise of no such authority is contemplated by defendants. They do not contemplate inspection, supervision, or regulation of complainant’s business, or an enforcement of its laws or regulations. On the contrary, their purpose is to ascertain, in a legal way, and by legitimate testimony, whether any person had, at the time mentioned, on deposit with complainant any money subject to taxation in said county which had not been returned by the owners thereof for that purpose. Hence, the subpoena commanding the production of the complainant’s books, in the manner and for the purpose stated, is not an exercise of ‘visitorial powers;’ * * '*Pages 740, 741.
This distinction is recognized and approved in Guthrie v. Harkness, 199 U.S. 148, 158, 26 S.Ct. 4, 50 L.Ed. 130, 4 Ann. Cas. 433. But the Bank objects that, even if this is so, speaking generally, it does not apply here for the reason that the controlled company is a bank, and bebause banks are under the direction of the Comptroller, any examination by the Commission into its affairs is a duplication of supervision which ought not to be countenanced. The answer to this is that, the value of the assets of Transamerica depends in large measure on the value of its shareholding in the Bank. An investigation of the one which did not include also an investigation of the other would be futile, and in this view we are unable to find anything, either in the statutes or in reason, to justify putting the Bank in a class by itself. The Bank insists this is done by Sec. 13(b) of the Act, 15 U.S.C.A. § 78m, but we do not so read the section. It provides that the Commission may prescribe the form in which the required information shall be set forth — “but in the case of the reports of any person whose methods of accounting are prescribed under the provisions of any law of the United States, or any rule or regulation thereunder, the rules and regulations of the Commission with respect to reports shall not be inconsistent with the requirements imposed by such law or rule or regulation in respect of the same subject matter * * * ”
The Bank argues that, since it is required by the National Banking Act to file with the Comptroller a “report of its condition”, it is “inconsistent” to require Transamerica to file a different report with the Commission. The reasonableness of this argument may be conceded, and yet not reach the heart of the question. For here it is not a question of form or of the adoption of a different method of accounting. In all of these respects — as well as in the manner of appraisal of assets — the Bank must follow the Comptroller’s orders. And if Transamerica can show the Bank’s compliance therewith, we may assume the Commission would have no right to substitute its opinion in place of the Comptroller’s. But that is matter for another day. The Comptroller’s opinion of the Bank’s practices does not appear. The case we have concerns a charge that items involving large sums of money have by fictitious transfers between the Bank and its branches and other subsidiaries of Transamerica been made to reflect an incorrect value in the Bank’s assets and reserves, so that its footings are consequently unreal and untrue. To deny the right to investigate this charge and make public findings in relation thereto, would be destructive of the basic purpose of the Act.
Fourth. This brings us then, to the question whether 'the subpoenas in their present form are so limitless in their scope as to make them unreasonable. The one to Ferrari commands him to bring from San Francisco to Washington, all loan and discount records, collateral records, ap-. praisal records, charged off loan and discount records, loan approval records, and any other books of account not heretofore enumerated together with all supporting data and records of correspondence for and covering the period from January 1, 1929, to January 13, 1939. The only limit to this requirement is that the books relate to matter concerning some two hundred loans in the Bank and its branches.
The subpoena to Smith commands him to bring to Washington all records of loans and discounts, records of assets other than loans and discounts, records of collateral, records of charged off loans and discounts, records of charged off assets other than loans and discounts, loan approval records, investment records, records of inter-company accounts, general and expense ledgers, payroll and expense records, and any other books of account and records in support thereof not heretofore enumerated, records of appraisal, real estate tax bills, insurance policies, receipted bills and expense vouchers, contracts, guarantees, options, pledges and other agreements, minute books and records of correspondence, for and covering the period from January 1, 1929, to January 10, 1939, which relate to payments and credits to A. P. Giannini; to agreements in relation to assets amounting to thirty-five million dollars previously carried on the books; the character of such assets; the collateral pledged for them; the obligations created under sundry agreements for reduction of the obligations or guarantees thereof; loans and discounts, including losses, doubtful and slow accounts, write-ups of United States and municipal securities; the accounting methods employed to reflect such write-up; the character of the reserve maintained for contingencies; the adequacy of this reserve to cover self-insurance; losses on real estate; depreciation of bank premises, furniture, fixtures; losses on bonds and other securities; the amount and character of foreign exchange and credits held abroad; agreements between the Bank and subsidiaries of Transamerica relating to charged-off assets; sale, transfer, assignment, assumption of the guarantees of rights or liabilities under the agreements; repurchase guarantees; an agreement between the Bank and Transamerica relating to 56,000 shares of National City Bank stock; the manner of creation, treatment, and adequacy of the reserves set up on the books of the Bank and its predecessors and the charges thereto. It is perfectly clear, we think, that compliance with these demands will, for all practical purposes, close the Bank, and it is equally clear that by transferring the place of hearing from Washington to San Francisco the Commission may carry on its investigation without unduly and unreasonably hampering the Bank in its business. If this is so, then any other course is so unreasonable as to require correction. In Hale v. Henkel, 201 U.S. 43. 26 S.Ct. 370, 50 L.Ed. 652, the Supreme Court had before it a similar case, which is well described in the following quotation :
“Applying the test of reasonableness to the present case, we think the subpcena duces tecum is far too sweeping in its terms to be regarded as reasonable. It does not require the production of a single contract, or of contracts with a particular corporation, or a limited number of documents, but all understandings, contracts, or correspondence between the MacAndrews & Forbes Company, and no less than six different companies, as well as all reports made and accounts rendered by such companies from the dale of the organization of the MacAndrews & Forbes Company, as well as all letters received by that company since its organization from more than a dozen different companies, situated in seven different states in the Union. If the writ had required the production of all the books, papers, and documents found in the office of the MacAndrews & Forbes Company, it would scarcely be more universal in its operation, or more completely put a stop to the business of that company. Indeed, it is difficult to say how its business could be carried on after it had been denuded of this mass of material, which is not shown to be necessary in the prosecution of this case, and is clearly in violation of the general principle of law with regard to the particularity required in the description of documents necessary to a search warrant or subpcena. Doubtless many, if not all, of these documents may ultimately be required, but some necessity should be shown, either from an examination of the witnesses orally, or from the known transactions of these companies with the other companies implicated, or some evidence of their materiality produced, to justify an order for the production of such a mass of papers. A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.” 201 U.S. pages 76, 77, 26 S.Ct. page 380, 50 L.Ed. 652.
While it is true the Act authorizes the Commission to subpoena witnesses from any part of the United States, we think it a fair statement that Congress never intended that the power should be exercised to bring from one side of the country to the other the principal officers of a bank and the books and records covering a period of ten years to appear before an examiner of an administrative commission. The right to be free of suit except in the District of which one is an inhabitant is a fixed part, ot our federal judicial history. Its statutory requirement arose out of the experience of colonial days. Its wisdom has been proved in the passage of time, and no more obvious reversal of its spirit could be cited than is shown in the facts of this case. For all of these reasons, we are of opinion the subpoenas are unreasonable under the rule laid down in Hale v. Henkel, supra. Federal Trade Com’n. v. American Tobacco Co., 264 U. S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L. R. 786; Mobile Gas Co. v. Patterson, D.C., 288 F. 884; Id., D.C., 293 F. 208, 228; Cudahy Packing Co. v. United States, 7 Cir., 15 F.2d 133.
We therefore hold:
1; That the delivery to the Commission by the Secretary of the Treasury of the examiners’ reports was authorized and legal;
2. That their use in proceedings to obtain the necessary facts 'and information whereby to carry out the investigatory function of the Commission, is proper;
3. That except to the extent necessary to carry out the purpose just above mentioned the reports should be treated as confidential; and
4. That the subpoenas in their present form are unreasonable and should not be enforced.
We, therefore, remand to the trial court, with instructions to revoke the decree dismissing the complaint. But the Commission, by counsel, having given assurances' that the examiners’ reports will not be given publicity except as authorized in this opinion and the subpcenas having expired by limitation and being now ineffective, no injunction need issue. The cause will remain on the trial docket of the District Court with the right to the Bank to apply for further relief if it should become necessary by subsequent events contrary to the views expressed herein.
Affirmed in part; reversed in part; and remanded.
48 Stat. 881, 15 U.S.C.A. § 78a et seq.
See. 18, 15 U.S.C.A. § 78r.
See. 32(a), 15 U.S.C.A. § 78ff.
Federal Farm Loan Act: The Comptroller is “authorized and directed” to furnish his information concerning national banks and to make special examinations for the “confidential use” of any Federal Intermediate Credit Bank. 42 Stat. 1458, 12 U.S.C.A. § 1091.
Reconstruction Finance Corporation Act: The Comptroller is “authorized” to make available to the Corporation “in confidence” such information as he may have concerning applicants for loans. 47 Stat. 709, 714, 15 U.S.C.A. § 608.
Federal Home Loan Bank Act: The Comptroller is “authorized” to make available “in confidence” to the Homo Loan Bank Board such information as he may have respecting institutions with which any Home Loan Bank may have transactions. 47 Stat. 739, 12 U.S.C.A. § 1442(a).
Federal Deposit Insurance Corporation Act: The Corporation’s examiners may examine national banks only with the written consent of the Comptroller, and the Corporation is given access to information in possession of the Comptroller. 49 Stat. 693-694, 12 U.S.O.A. § 264 (k)(2-4).
12 U.S.C.A. § 481.
Hearing, Senate Committee on Banking and Currency, S. 2344, 75 Cong. 1 Sess. (1937), p. 71.
Hearings, House Committee on Banking and Currency, H.R. 429 and 504 (1912-1913), Money Trust Investigation, 62 Cong. 2 Sess., Vol. 2, pt. 19, p. 1391.
See note 4, supra.
R.S. § 5133 et seq., 12 U.S.C.A. § 21, et seq.
5 U.S.C.A. § 22.
R.S. § 324, 12 U.S.C.A. § 1.
The Reconstruction Finance Corporation has announced that in transactions between the corporation and a bank it will be guided by the reports of the latter to the Comptroller.
Hearings, House Committee on Banking and Currency, H.R. 5357, 74 Cong. 1 Sess. (1935), p. 135.
12 U.S.C.A. ,j§ 484: “No bank shall be subject to any visitorial powers other than such as are authorized by law, or vested in the courts of justice or such as shall be or shall have been exercised or directed by Congress, or by either House thereof or by any committee of Congress or of either House duly authorized. (R. S. § 5240; Feb. 19, 1875, c. 89, 18 Stat. 329; Dec. 23, 1918, c. 6, § 21, 38 Stat. 271.)”
See. 51, Judicial Code, 28 U.S.C.A. § 112.
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_usc1sect | 405 | 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 42. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
EWING v. BLACK.
No. 10723.
United States Court of Appeals Sixth Circuit.
Feb. 2, 1949.
Melvin Blumenthal, of Baltimore, Md. (H. G. Morison, of Washington D. C., Ward Hudgins and S. E. Wasson, both of Nashville, Tenn., on the brief; Edward H. Hickey, Vincent P. Russo, Leonard B. Zeisler and Robert Hannings, all of Washington, D. C., of counsel), for appellant.
Judson Harwood, of Nashville, Tenn. (Judson Harwood and Cecil Sims, both of Nashville, Tenn., on the brief), for appellee.
' Before'HICKS, Chief Judge, and MARTIN and McALLISTER, Circuit Judges.
MARTIN, Circuit Judge.
The appellee, Robert W. Black, of Nashville, Tennessee, was employed from January 1, 1937, to February, 1943, by Gladstone Brothers of New York, manufacturers of clothing for men and boys. He was a commission salesman assigned to a definite territory.
In 1937, Black complied with the request of his employers that he procure a social security number, so that they might report the amount of commissions paid him and make payment of social security taxes due thereon to the Bureau of Internal Revenue. The employers made regular deductions at the lawful percentage rate from his wage commissions, but at no time reported officially any wages paid him or any amounts deducted from his wages for social security taxes, and made no remittances on his account to the Bureau of Internal Revenue, as required by law.
Appellee had no knowledge that the commissions paid him by Gladstone Brothers had not been reported to the social security administration until, upon attaining age 65, he filed an application for benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq. When informed by the Nashville field office manager of the Social Security Board, in April 1946, that the records of the board showed no postings whatever of any wages to his credit, Black wrote Gladstone Brothers, disclosing to them the information which he had received. The employers replied that they had always considered him an independent contractor on whom no taxes need be withheld; and that their purpose in making social security deductions on the wages paid him was that it would not then be necessary for them to malee deductions at one time for all amounts due him, should it be decided that he was an employee. He was, of course, surprised, inasmuch as he had assumed that because regular deductions had been made from his wages for social security purposes his employers had made the required reports and paid the proper taxes on his behalf.
About two and a half months later, Gladstone Brothers mailed Black a check for $85.26, stating that this represented the monies which had been withheld for social security purposes; and that they had understood him to be classified as an independent agent “not subject to social security.” The appellee had been paid commission wages of $50 or more in each of 25 calendar quarters to the total amount of $8,626.93, thus qualifying him for primary insurance benefits under section 202(a) of the Social Security Act, as a fully insured individual who has attained age 65 and has filed application for primary insurance benefits.
The application of appellee for these benefits was made on June 7, 1946, and was denied three and a half months later by the Bureau of Old-Age and Survivors Insurance of the Social Security Administration, Federal Security Agency. The determination by the bureau that the claimant was not a “fully insured individual” at the time of his application was based on the assertion that the amounts earned by him prior to January 1, 1942, could not be included in his wage record, in consequence of the provisions of section 205(c) (2) of the Social Security Act, which provides: “After the expiration of the fourth calendar year following any year in which wages were paid or are alleged to have been paid an individual, the records of the Board as to the wages of such individual for such year and the periods of payment shall be conclusive * * Section 405(c) (2), Title 42 U.S.C.A.
Appellee requested and obtained a hearing before a. Referee of the Appeals Council of the Social Security Administration. H^ was the only witness who testified at that hearing, but documentary evidence was received. The finding was made by the Referee that an employer-employee relationship between Gladstone Brothers and Black had existed continuously from January 1, 1937, to the termination of his services in 1943, inasmuch as the proof showed conclusively that his employers not only had the right to control his services, but had exercised such control as a matter of fact.
The Referee sustained the ruling of the Bureau that the remuneration received by appellee from his employers constitutes wages; and found that the employers had made regular deductions from his commissions for social security purposes, but had at no time reported the amounts paid him, nor had they remitted any taxes affecting him to the Bureau of Internal Revenue. The official further found no evidence in the record which would indicate that the Social Security Administration had notice of Black’s employment, or that he was being paid wages, “until just before April 1946.” The Referee stated that, this being true, section 205(c) (2) of the Social Security Act, as amended, is applicable, with the resultant that the Social Security Administration has no lawful authority to credit the claimant with wages paid him by Gladstone Brothers prior to January 1, 1942, unless that firm, “in accordance with the provisions of section 205(c) (4), should report such wages and remit the taxes thereon to the Collector of Internal Revenue.”
It was asserted by the Referee that in case such report and remittance were made, the Social Security Administration could revise its wage records to conform to the tax returns made to the Bureau of Internal Revenue, thereupon crediting claimant’s wage account with the total wages paid him, and could also credit him with 25 quarters of coverage. Gladstone Brothers failed to take any such action in behalf of Black.
Conceding that Black “a man of intelligence and absolutely sincere in his intentions,” had been misled by his employers to the deprival of his benefit status through no fault of his- own, “as he had every reason to believe that his employers were making timely reports,” the Referee, nevertheless, held that, though regrettable, Black has no remedy. The concluding paragraph of the .Referee’s decision states that the claimant can be credited only with wages paid subsequent to 1941 in the amount of $2,864.51, covering only six quarters; and .that, inasmuch as the claimant is required to have had 15 quarters of coverage, Black was not a fully insured individual when he filed his application and, accordingly, is not entitled to the primary insurance benefits for which he applied.
The request of appellee to the Appeals Council of the Social Security Administration to review the Referee’s decision was denied; and, in conformity with the practice of the Federal Security Administrator, the decision of the Appeals Council became his final decision. In due time and in compliance with the right granted him in section 205(g) of the Social Security Act, as amended, section 405(g), Title 42 U.S.C.A., appellee instituted this action in the United States District Court for the Middle District of Tennessee to review and reverse the administrative decision. He prayed that the Federal Security Administrator and the Commissioner for Social Security be required to cause payments, based on his. earnings including the wages paid him by Gladstone Brothers, to be made him according to the provisions of the Social Security Act. Other and further relief as may be just and equitable was also prayed. Appellee filed a motion for summary judgment on the pleadings, on the admitted facts therein contained. The district court granted his motion.
The final judgment entered remanded the cause to the Federal Security Administrator with directions to him “to credit the plaintiff on his wage records ■ with the amount, of wages paid to him by Gladstone, Brothers Company during the years 1937, 1938 and 1939 and to compute the amount of benefits to which he is entitled, upon the basis of such wage record and for further proceedings in conformity with section 205 (i) and the other applicable provisions of Title II of the Social Security Act, as amended.”
The district court’s decision was grounded upon the opinion, expressed orally, that the four-year period provided for in section 205(c) (2) of the Act is not retroactive and was intended to start with the year 1940; and that it could not be considered to be a four-year statute of limitations for any period of time prior to 1940.
Many finely drawn challenges to the correctness of the district court’s decision have been .presented by the government in its brief, as well as in its oral argument. In our analysis of the case, we find it unnecessary to pass upon all the propositions argued.
Whether or not the provisions of section 205(c) (2) of the Social Security Act, if applied generally, are constitutionally infirm need not be decided here. Moreover, we deem it unimportant here whether the pertinent section is, in general, a qualification of a right newly created by the Act of which the section is a part. Therefore, we have considered but will not discuss cases cited by the government to the point. The Harrisburg, 119 U.S. 199, 7 S.Ct. 140, 30 L.Ed. 358; Pennsylvania Company for Insurances, etc. v. Deckert, 3 Cir., 123 F.2d 979, 985; Matheny v. Porter, 10 Cir., 158 F.2d 478; Damiano v. Pennsylvania R. Co., 3 Cir., 161 F.2d 534; Madden v. Lancaster County, 8 Cir., 65 F. 188. Not long ago, this court manifested its accord with the principle of these authorities in two opinions upon the subject matter, neither of which is cited by the government although certiorari was denied in both cases: Maki v. George R. Cooke Co., 124 F.2d 663, 146 A.L.R. 1352, with annotation, certiorari denied 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758; Wilson v. Massengill, 124 F.2d 666, certiorari denied, 316 U.S. 686, 62 S.Ct. 1274, 86 L.Ed. 1758.
Nor. are w.e concerned with whether the section is reasonable, or unreasonable, as to the time limit within which the admin-
istrator’s wage records for the period from 1937 through 1939 may be revised. We deem it unnecessary to discuss the argument of the government that “if section 205(c) (2) cannot be construed retroactively it forbids revision of the administrator’s wage records for the years 1937-1939, inclusive, after February 29, 1944.” We have not neglected, however, to read and consider the authorities cited: Sohn v. Waterson, 17 Wall. 596, 21 L.Ed. 737; Carscadden v. Territory of Alaska, 9 Cir., 105 F.2d 377, 379; Philadelphia Nat. Bank v. Raff, 6 Cir., 76 F.2d 843, certiorari denied 296 U.S. 601, 56 S.Ct. 118, 80 L.Ed. 426; The Fred Smartley, Jr., 4 Cir., 108 F.2d 603; American Mut. Liability Ins. Co., of Boston v. Lowe, 3 Cir., 85 F.2d 625.
Our concern is with the exact issue which we must decide. That issue does not involve a revision of the records of the Board. This is not a case of challenging the conclusiveness of records. There are no records to challenge. The Board has none at all pertaining to Black. The employer wrongfully failed to furnish them; but records affecting Black can now easily, accurately and completely be made by the Board from the exhibits introduced in evidence in this case. Section 205(c) (2) of the Act, reasonably construed, constitutes no bar to the Board’s receiving these records and making them official, so that the employee may obtain his just benefits under the Social Security Act.
It will be observed that the provision of section 205(c) (1), section 405(c) (1), Title 42, U.S.G.A.j that the absence of an entry as to an individual’s wages in the Board’s records for any period shall be evidence that no wages were paid such individual in such period does not carry with it the conclusive^ ness of such records. The section merely says that the absence of entries shall be “evidence” that no wages were paid. It does not say that such absence shall be conclusive evidence. To the contrary, in section 205(c) (2), the records of the Board [which we think means records made, not omitted, by the Board], are expressly made “conclusive.”
Appellant contends that, even though Black did not know that the administrator’s wage records for the three years prior to 1940 failed to show that wages had been paid him by Gladstone Brothers, and notwithstanding the fact that he was led by his employers’ actions to believe that the wages paid him had been reported to the Commissioner of Internal Revenue, he had the right, under section 205(c) (3), to request an opportunity to prove that the wages had been paid him during the crucial years and failed to exercise that right, bringing upon himse.lf, thereby, the bar of section 205(c) (2). We cannot accede to* this reasoning. There was no suspicious circumstance to put him upon notice that his employers had been derelict in performing their lawful duty in obedience to the Social Security Act. Why should he make inquiry when he was justified in feeling secure?
The beneficent purpose of Congress in the enactment of the Social Security Act must not be ignored. After painstaking investigation and elaborate research through experts, Congress reached the conclusion, upon which it acted, that the award of old-age benefits is conducive to the general welfare. See opinion of Mr. Justice Cardozo in Helvering v. Davis, 301 U.S. 619, 641-645, 57 S.Ct. 904, 909, 81 L.Ed. 1307, 109 A.L.R. 1319, where the legislative history of the Social Security Act is reviewed. In his logical reasoning, the eminent jurist did not strain eloquence when he said: “The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey’s end is near.”
In Social Security Board v. Nierotko, 327 U.S. 358, 364, 66 S.Ct. 637, 640, 9C L.Ed. 718, 162 A.L.R. 1445, affirming our decision in 149 F.2d 273, the Supreme Court, asserting that the “purpose of the Federal Old Age Benefits of the Social Security Act is to provide funds through contributions by employer and employee for the decent support of elderly workmen who have ceased to labor”, gave a liberal interpretation to the Act; and held that “back pay” awarded under the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., to an employee is to be treated under the Social Security Act as wages for which the employee is entitled to credit on his Old Age and. Survivors Insurance Account. This holding was made despite a contrary administrative determination by the Social Security Board.
Again, in United States v. Silk, 331 U.S. 704, 712, 67 S.Ct. 1463, 1467, 91 L.Ed. 1757, the Supreme Court made it clear that the Social Security Act must be liberally construed: “As the federal social security legislation is an attack On recognized evils in our national economy, a constricted interpretation of the phrasing by the courts would not comport with its purpose. Such an interpretation would only make for a continuance, to a considerable degree, of the difficulties for which the remedy was devised and would invite adroit schemes by some employers and employees to avoid the immediate burdens at the expense of the benefits sought by the legislation. These considerations have heretofore guided our construction of the Act.”
Attorneys for Black insist, and the district court ■ agreed, that Congress did not intend that the limitation contained in section 205(c) (2) should apply to.wage records for the years 1937-1939, inclusive. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858, is cited to the proposition that a law is presumed, in the absence of clear expression to the contrary; to operate prospectively. Sections 204(a) and 204(b) of the Act, sections 404(a) and (b), Title 42, U.S.C.A. relating to correction of errors with respect to payments to an individual are pointed to as indicative that Congress did not, intend that section 205(c) (2) should apply to wage records prior to the 1939 amendment.'
We cannot accept such interpretation as sound. We think it apparent that the purpose of Congress was to give conclusiveness to the records for the years 1937 to 1939, inclusive, after the period of time and upon the conditions prescribed in the statute; but, where no records at all have been kept for those years relating to a particular employee, who had conformed to all lawful requirements which would .qualify him to enjoy the benefits of the Social Security Act and with reason rested secure in the belief that his employers had likewise complied, the case is different. As we have attempted to show, it would defeat the obvious purposes of the Social Security Act and give judicial sanction to gross injustice to hold that, in the detailed circumstances of this case, the employee must be deprived of his social security old-age benefits.
Accordingly, we affirm the judgment; but we have attempted to make clear that we are not in accord with the reasoning upon which the district court based its decision.
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 42? Answer with a number.
Answer: |
songer_dissent | 2 | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Thurlester WILSON, Defendant-Appellant.
No. 71-1764.
United States Court of Appeals, Seventh Circuit.
Reargued Jan. 23, 1973.
Decided May 23, 1973.
Kiley, Circuit Judge, filed dissenting opinion in which Duffy, Senior Circuit Judge, joined. Duffy, Senior Circuit Judge, filed dissenting opinion.
Joseph Cohn, E. St. Louis, 111., for defendant-appellant.
Henry A. Schwarz, U. S. Atty., Jack A. Strellis, Asst. U. S. Atty., E. St. Louis, 111., Michael L. Levinson, Asst. U. S. Atty., Danville, 111., for plaintiff-ap-pellee.
Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and KIL-EY, FAIRCHILD, CUMMINGS, PELL, STEVENS and SPRECHER, Circuit Judges.
PELL, Circuit Judge.
Thurlester Wilson appeals from his conviction for violating 26 U.S.C. §§ 5861(d), 5871, possession of an unregistered firearm. The principal issue raised in this appeal is “whether the sawed-off shotgun which was the basis for the indictment and which was found by police officers during a search for which a warrant had been procured, was tainted by previous police action and conduct which uncovered evidence forming the probable cause basis for the issuance of the search warrant.” A panel of this court reversed the conviction by a 2 to 1 vote, holding that the police officer did not have probable cause to make the initial arrest of Wilson. 465 F.2d 1290. On rehearing, we have reached the conclusion that the police did have sufficient probable cause to stop Wilson, and we, therefore, affirm the conviction.
On January 21, 1971, Wilson stopped at a service station near Effingham, Illinois, on Interstate Highway 57. While there he charged a purchase of less than $25.00 to an American Express card issued to William Kotinas. Because the purchase was less than $25.00, no authorization was needed from American Express. He then asked to charge purchases amounting to approximately $100.00. A woman cashier called “American Express to get verification from the number.” However, Wilson asked to speak to the American Express people and after a short conversation indicated to the cashier that he no longer wished to make the purchases. When the assistant station manager, Robert Mayhaus, was informed of this he in turn called American Express via a Texaco company number and was informed that the credit card Wilson had sought to use was listed as stolen.
Mayhaus then called the highway patrol and informed them “that a man had made a purchase of gasoline at our station and had used a credit card, and that we didn’t check on it, you know, because it was for an amount under twenty-five dollars; and then he attempted to make purchases in the store for over twenty-five; and we called; and at this time I was informed that it was a stolen card.” A police bulletin was issued: “a red Ford Torino, 1970, with license plates HC [8196] . . . one colored male, had in his possession an American Express credit card which was stolen; and he had asked the direction to St. Louis; and it was passed at the Roadway Truck Stop in Effingham, Illinois, where he had purchased gas.” Wilson was stopped by three officers. He was “patted-down” by Trooper James Williams, who, during the course thereof, reached in Wilson’s pocket and withdrew the American Express card. Subsequently, another officer, on the basis of the fact that Wilson had in his possession a stolen credit card, applied to a state court judge for a warrant to search Wilson’s automobile for other credit cards and papers which might have been stolen from Kotinas. The search warrant was issued. During the course of the search of the car the sawed-off shotgun was found.
Prior to trial, Wilson moved to quash the search warrant and suppress the evidence deriving from the warrant. Several of the grounds advanced to support the motion are not relevant here. However, one of the grounds was that “[t]he issuing Judge incorrectly found probable cause for the issuance of the warrant in the affidavit(s).” This, of course, is not the same as alleging that the police did not have probable cause to stop Wilson initially. The two contentions are, nonetheless, interrelated since what Wilson was apparently attempting to show was that the fact alleged in Trooper Weems’ complaint for a search warrant was based purely on the radio bulletin and that in turn was based only on the call from Mayhaus. Thus, we are led back to the question of whether Mayhaus’ call standing alone constituted probable cause to believe that Wilson had a stolen credit card in his possession. It is unfortunate that Wilson’s motion was not clear on this point. Because of the lack of specificity in Wilson’s challenge in the pre-trial hearing, the Government did not question May-haus closely as to the total content of the call to the police. Indeed, when the Government attempted at the suppression hearing to develop specific information from Mayhaus which would have reflected upon the basis of his information that the card was stolen, the effort was thwarted by the sustaining of Wilson’s objections that the evidence was hearsay. The testimony of Trooper Williams indicates that Mayhaus conveyed far more information to the state police than the answers he gave in the pretrial hearing would reflect. Because Wilson did not clearly raise in the trial court the ground which he now claims requires reversal of his conviction, we hold that he is not in a position to challenge any reasonable inferences from or any claimed lack of greater specificity in Mayhaus’ testimony.
The warrantless search of Wilson at the time of his arrest, during which search the credit card was found, was valid only if it was a search incident to a lawful arrest. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). Even if such a “pat-down” could have been justified by fear that one who allegedly tried to use a stolen credit card might be armed, Trooper Williams’ reaching into Wilson’s pockets and extracting the credit card went beyond the permissible scope of a non-arrest “pat-down” for weapons. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The fact that the arrest was made pursuant to a police bulletin does not add or detract from the necessity of probable cause as an underlying requirement for an arrest. Whiteley v. Warden, 401 U.S. 560, 568, 91 S. Ct. 1031, 28 L.Ed.2d 306 (1971). For this arrest to be valid, the officer who caused the radio bulletin to be issued must have had sufficient information to establish probable cause to believe that the person driving the specified car had committed a crime. Further, if the police had probable cause, the facts of this case — particularly that the appellant was driving away from the scene of the alleged crime — provide sufficient exigent circumstances to relieve the police of the requirement of obtaining a search or arrest warrant before stopping him. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
The test for determining whether probable cause exists for the issuance of a search warrant, being the same standard applicable to a warrantless arrest, is set out in Aguilar v. Texas, 378 U.S. 108, 114, 84 S.Ct. 1509, 1514, 12 L.Ed.2d 723 (1964): “Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant . . . was ‘credible’ or his information ‘reliable.’ ” The Aguilar two-pronged test was applied in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), in which the Supreme Court emphasized that the affiant must make more than a conclusionary assertion concerning the informant’s reliability and that the tip must contain supporting facts to show why the informer concluded that the defendant was committing illegal acts.
We turn then to the question of whether, at the time the police bulletin was issued, the police had sufficient information to establish probable cause under the Aguilar-Spinelli test. From the record before us, which, because the suppression hearing was only tangentially related to this issue, is not as complete as might be desired, the only evidence that the police had at that crucial time was the call from Robert Mayhaus. The case, therefore, hinges on the narrow factual question of whether that call was sufficient under the two-pronged probable cause test.
As to the first prong of the test, the reliability of the informant, we know that Mayhaus informed the police as to where he worked since it was part of the radio bulletin received by Trooper Williams. The fact that Mayhaus was not a paid informer is significant. A citizen in the position of Mayhaus would ordinarily not have had the opportunity to establish a prior history of reliability for tips to the police. On the other hand, as then Circuit Judge Burger stated in Brown v. United States, 125 U.S. App.D.C. 43, 365 F.2d 976, 979 (1966), “[although the police could not here judge the reliability of the information on the basis of past experience with the informant, . . . the victim’s report has the virtue of being based on personal observation . . . and is less likely to be colored by self-interest than is that of an informant.” A serious charge, such as that made by Mayhaus, when volunteered by an identified party in the circumstances before us, carries with it indicia of reliability of the informant. See, e. g., Adams v. Williams, 407 U.S. 143, 146-147, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972). That reliability was reinforced by the “internal content” of the call which “intrinsically proves the truth of the ‘responsible’ citizen’s word.” United States v. Roman, 451 F.2d 579, 581 (4th Cir. 1971), cert. denied, 405 U.S. 963, 92 S.Ct. 1171, 31 L.Ed.2d 239 (1972). In United States v. Unger, 469 F.2d 1283 (7th Cir. 1972), this court adopted the above language in upholding a search warrant the affidavit for which omitted completely any allegation as to the reliability of the informant. We need not go so far in the present case. Cf. United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).
Aguilar also requires some knowledge of the underlying facts to support the conclusion that a crime has been committed. Although Mayhaus’ testimony is sparse, we think it sufficient in light of contemporary business dealings of which every citizen is aware. As noted above, Mayhaus testified that “we called; and at this time I was informed that it was a stolen card.” Very few individuals today are not familiar with the ritual associated with credit card purchases. A book of numbers is consulted, and if the purchase is over a moderate sum, a call is made to confirm credit. Thus, although Mayhaus’ explanation of how he knew the card tendered by Wilson was stolen may have been truncated, it was sufficient in its business context to show the police “the underlying circumstances from which the informer concluded that” Wilson had a stolen credit card. Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589.
Wilson makes a further attack on the sufficiency of the information available to the police in that he contends that Mayhaus did not tell the police whom he called. As noted above, Mayhaus’ testimony was abbreviated, in part because of Wilson’s objections to questions put to Mayhaus and in part because of lack of emphasis on the particular point now under consideration. The police bulletin, however, reflects the fact that May-haús specified that it was a stolen American Express card. The only logical inference that can be drawn from the statement “we called” in light of modern credit practices is that Mayhaus called American Express or some agent of American Express which was authorized to approve substantial credit purchases.
Finally, Wilson attacks the reliability of the information furnished by American Express. Initially we are confronted with the fact that the information imparted to the police was hearsay based on hearsay. If hearsay information is acceptable in arriving at probable cause, and it is, Jones v. United States, 362 U.S. 257, 269, 80 S.Ct. 725, 4 L.Ed. 2d 697 (1960), then hearsay based on hearsay should be acceptable as long as the police officer has sufficient information so that both levels of hearsay meet the two-pronged test spelled out in Aguilar. Since we have held that the hearsay information involved in Mayhaus calling the state police was sufficient under Aguilar, assuming that he gave the police an accurate summary of the telephone call to American Express (and we make this assumption because Mayhaus had been determined credible under Aguilar), we need only determine whether the American Express report was itself sufficiently credible under Aguilar.
There is no indication that Mayhaus had any idea of the identity of the person to whom he was speaking at American Express. He, in a routine manner following ordinary business procedures applicable to this particular type of transaction, had called Texaco, which had referred the call to American Express. The call was placed to a number provided for this very purpose. While it is required that “if the informant came by the information indirectly,” he must explain “why his sources were reliable,” Spinelli v. United States, supra, 393 U.S. at 416, 89 S.Ct. at 589, we have no difficulty finding reliability, not in the fact that the person to whom Mayhaus talked had personal knowledge of the theft, but rather in the fact that such person was one functioning part of a large business mechanism established for the very purpose of collating and disseminating this type of information to customers who regulated their daily business affairs in reliance thereon.
“In dealing with probable cause, . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S. Ct. 1302, 1310, 93 L.Ed. 1879 (1949). The Government argues that the hearsay of the American Express operator meets the Aguilar test because it is comparable to the business records exception to the hearsay rule. There is merit in the comparison. For many years we have recognized the reliability of records made in the regular course of business and have accepted such records into evidence for their truth. 28 U.S.C. § 1732. Furthermore, Rule 406 of the Proposed Federal Rules of Evidence makes “[ejvidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses . . relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.”
In sum, we are of the opinion that the mechanism of today’s system of credit confirmation is sufficient to support the type of reliability and credibility required by Aguilar. When the police were told that Mayhaus checked with American Express and was told the card was stolen, they knew that there was a very high degree of reliability in the fact that the card was actually reported as stolen. Furthermore, that a card was reported as stolen supports the conclusion that the use of the card was either use of a stolen credit card or else, at least, use without the permission of the owner, which would also be' a crime. Thus, the second requirement of Aguilar is met by the information conveyed to Mayhaus by American Express.
In his original brief, Wilson also argued that this conviction should be reversed because the Assistant United States Attorney who tried the case purposefully introduced at trial evidence concerning other crimes allegedly perpetrated by Wilson for which he was not then being tried, e. g., armed robbery of Kotinas and fraud in using Kotinas’ stolen credit card. Wilson argued in the district court that such evidence was irrelevant and highly prejudicial since the Supreme Court in United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971), held that 26 U.S.C. § 5861 does not require proof of specific intent or knowledge that the firearm was unregistered.
As the Government pointed out, Freed did not eliminate the need to prove possession. Since the car Wilson was driving was not his but was rented, the Government argued that proof that Wilson had rented the car (by showing that he had done it with a credit card stolen from Kotinas) was essential to establish that he had in fact possessed the illegal firearm. Since the evidence was relevant to show knowing possession, we find no reversible error in its admission. Nor did Wilson ask for any partial limitation of the Government’s inquiry into this area- — a request which might have met with more favor from the district court. Finally, we note that the district court, in instructing the jury, did state that Wilson was on trial only for the crime charged and that the jury should not consider whether he was guilty of any other crime. As to two other incidents in which objectionable answers were made by witnesses, we note that the testimony was immediately objected to and those objections were sustained with the material ordered stricken from the record. Moreover, as to all of "the alleged prejudicial statements, we observe that they would qualify as harmless error under the rule of Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), in light of the overwhelming evidence against the defendant on all material issues.
For the reasons given hereinbefore, the judgment of the district court is affirmed.
Affirmed.
. United States v. Wilson, 465 F.2d 1290, 1292 (7th Cir. 1972).
. Although not specified in the search warrant, the shotgun was contraband and was properly seized if taken in the course of a legal search. See discussion in dissenting opinion, United States v. Wilson, supra at 1295-1296.
. As Wilson’s counsel stated at reargument: “What I do contend is that the telephone conversation Mr. Mayhaus had with the police dispatcher by analogy must be comparable to the information given by a complainant to a magistrate to obtain either a warrant for search or a warrant for arrest.”
. McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).
. When the case was reargued, counsel for Wilson conceded that Mayhaus must have identified himself to the police.
. We note that the district court’s jury instructions erroneously, in light of Freed, required the Government to prove specific intent and that even that heavier burden was met.
Question: What is the number of judges who dissented from the majority?
Answer: |
songer_appnatpr | 99 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
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.
BARROW et al. v. IRVING TRUST CO.
No. 137.
Circuit Court of Appeals, Second Circuit.
Jan. 8, 1934.
Abram P. Staples, of Roanoke, Va., for appellants.
Cravath, de Gorsdorff, Swaine & Wood, of New York City (William D. Whitney, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
PER CURIAM.
This appeal raises no other questions than those which we dealt with in Manhattan Properties, Inc., v. Irving Trust Co., 66 F.(2d) 470, and Malavazos v. Irving Trust Co., 66 F.(2d) 482, except that here we must consider a point of Virginia law. The lessors, who are the claimants, assert that hy the law of that state when a lessee repudiates the lease, the lessor may sell the term and sue at once for liquidated damages; by which we mean the difference between the discounted future rents and the value of the term as realized. The claimants did not indeed take that course here; rather they procured from a Virginia court a receiver who is collecting the rents for the interest of whom it may concern. But their position is that the bankruptcy court may sell the term in their stead by way of liquidating the claim, and offset the sum received against the discounted future rents. We are not clear that under James v. Kibler’s Adm’r, 94 Va. 165, 26 S. E. 417, this course is open to a lessor; that is, whether he must not himself resell the term upon the lessee’s repudiation. However, we shall assume that he may leave the sale to the court, if he positively elects to pursue that remedy; just as we assume that the bankruptcy is a repudiation of the lease by the lessee. We have never held that the lessor would not have a provable claim in bankruptcy in case the lease contained a covenant that upon repudiation the lessee would pay the discounted future rents, less the present value of the term. In re Roth & Appel (C. C. A. 2) 181 F. 667, 31 L. R. A. (N. S.) 270, did not touch such a covenant; though the lessee had promised to pay the difference between the rent reserved as it fell due, and the rente received by the lessor on any reletting. We thought such a claim too contingent,' because each payment was conditional upon the continuance of the term, and the- covenant was as little absolute as the prime covenant to pay the rents. A covenant to pay at once the discounted rent would not be so conditioned; it would be, in substance, a covenant for liquidated damages, as we have already called it; and we reserve its provability. Arguendo we will assume that it would be provable.
In James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the lessor was allowed to recover without such a covenant in the lease; the remedy was the same as though it had existed. If the lessee had entered, we should have to decide the question we have just reserved. However, he had not, and that was expressly mentioned as an important, if not controlling, circumstance; the situation was treated as an ordinary breach of contract. In Crowder v. Virginia Bank of Commerce, 127 Va. 299, 103 S. E. 578, the lessee had entered and the lessor had not resold the term. The lessee urged this as an excuse when the lessor sued for the full rent, his theory being that by neglecting to sell the lessor had failed in his duty to minimize his damages. This the court answered by distinguishing between the repudiation of a contract to lease and of the lease itself ; in the first the lessor must minimize damages, in the second he may let the rent roll up and sue for it. The last was a doctrine of real property, different from that applicable to contráete generally. Of course, it would be possible to say that the lessor has such a remedy after entry, but that for especial reasons he need not use it; it is possible to lay down any rule whatever. But at least the distinction made in Crowder v. Virginia Bank of Commerce leaves us doubtful whether the circumstances that in James v. Kibler’s Adm’r, supra, 94 Va. 165, 26 S. E. 417, the term had not begun, may not have been the controlling factor. Certainly no such remedy was known to the common law in the absence of specific covenant. Branning Mfg. Co. v. Norfolk-Southern R. Co., 138 Va. 43, 121 S. E. 74, again concerned a lease in which the term had not begun; it adds nothing to James v. Kibler. Cook v. Payne, unreported, was merely a refusal without opinion to entertain an appeal; we have no means of knowing what were the court’s reasons; certainly they may have been other than what the claimants here assume. Our conclusion is that the law of Virginia has not been shown to vary from the common law, and that In re Roth & Appel, supra, 181 F. 667, 31 L. R. A. (N. S.) 270, rules this appeal.
The order is affirmed, but if the appellants wish the mandate will be held up until the decision of the Supreme Court on the main issues now pending before it on certiorari.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
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.
Leoda NEWPORT, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS AND TEXAS PACIFIC RAILWAY, a Division of Southern Railway, Defendant-Appellant.
No. 74-1782.
United States Court of Appeals, Sixth Circuit.
Feb. 5, 1975.
Don S. Stansberry, Jr., Baker, Worthington, Crossley & Stansberry, Huntsville, Tenn., for defendant-appellant.
Richard W. Krieg, Morton, Lewis, King & Jones, John K. King, Knoxville, Tenn., for plaintiff-appellee.
Before CELEBREZZE, PECK and McCREE, Circuit Judges.
McCREE, Circuit Judge.
This is an appeal from the denial of a motion for judgment notwithstanding the verdict or in the alternative for a new trial, entered after the jury returned a verdict for plaintiff-appellee in the amount of $55,000. Jurisdiction is based on diversity of citizenship, and the law of Tennessee applies.
The case arises out of a railroad crossing accident in which plaintiff’s decedent was killed. On January 14, 1970, shortly before 4 p. m., Leland Newport, a resident of Scott County, Tennessee, was driving his truck in a westerly direction on Carson Road, a public road in Scott County. This road is intersected by two sets of railroad tracks constituting the main line of the Cincinnati, New Orleans & Texas Pacific Railway. The intersection is known as Pemberton Crossing and vehicular traffic is warned of the railroad tracks by a erossbuck warning sign located on the northeastern corner of the crossing.
The railroad tracks south of Pemberton Crossing appear to be straight and level to a motorist driving west on Carson Road. Moreover, for a distance in excess of fifty feet east from Pemberton Crossing, Carson Road is also straight and level. The railroad right-of-way extends fifty feet east of the center line of the eastern set of tracks.
Along the eastern right-of-way of the railroad south of Carson Road there is a bank covered with weeds and debris which, to some extent, prevents motorists driving west on Carson Road from seeing railroad trains traveling north. Nevertheless, a motorist who is driving west is able to see fifty feet to the south of Pemberton Crossing when he is on Carson Road fifty feet from the eastern track of the railroad; ninety feet when he is forty feet away; and four hundred fifty feet when he is twenty feet away. Near the crossing, on the western side of the track is a factory from which noise emanates.
Leland Newport approached Pemberton Crossing from the east on Carson Road. At approximately the same time, one of appellant’s trains was proceeding north on the eastern set of, tracks at approximately 32 miles per hour and was, at the time Newport was proceeding into the crossing, some 75 to 80 feet south of it. The train had been continuously blowing its whistle for a quarter of a mile south of the crossing.
Despite the train whistle and the crossbuck, Newport, who had driven across Pemberton Crossing before, drove straight into the path of the train without looking or stopping or even slowing down. When he approached within fifteen feet of the tracks and gave no indication that he was aware of the approaching train, the train’s engineer put the train into emergency in a futile attempt to stop it. Nevertheless, the train and the truck collided and Newport sustained fatal injuries.
On October 9, 1973, Leoda Newport, the wife of the deceased, filed a complaint alleging that her husband was killed because the Railroad was negligent in the operation of its train, in maintaining the right-of-way adjacent to the crossing, and in failing to employ warning devices other than a crossbuck at Pemberton Crossing. The Railroad denied that it was negligent in any of these respects and responded that plaintiff’s action was barred because her husband’s conduct constituted proximate contributory negligence.
The case was tried on March 14, 1974, before a jury which returned a verdict for plaintiff. On April 1, 1974, the Railroad’s post-trial motions were denied.
On appeal, the Railroad contends that a judgment should have been entered for it for two reasons: (1) because it was guilty of no negligence which was the proximate cause of the accident and the death of Leland Newport; and (2) because Leland Newport was guilty of proximate contributory negligence as a matter of law.
We conclude, after a careful examination of the record and of Tennessee law, that Leland Newport’s failure to stop or slow down, or even look for approaching trains at Pemberton Crossing despite the presence of a clearly visible crossbuck ^warning sign, constituted, as a matter of law, contributory negligence which was a proximate cause of his death. In light of this conclusion, we need not determine whether the Railroad was negligent in any respect.
As a general rule, “[t]he law in Tennessee, as elsewhere, provides that whether or not a plaintiff acted with due care is [a question] for determination by the jury.” Doane Agricultural Service, Inc. v. Coleman, 254 F.2d 40, 43 (6th Cir.), cert. denied, 358 U.S. 818, 79 S.Ct. 29, 3 L.Ed.2d 60 (1958), citing Osborn v. City of Nashville, 182 Tenn. 197, 185 S.W.2d 510 (1945). Nevertheless, in some cases, where reasonable minds could reach only one conclusion — -that plaintiff failed to exercise ordinary care and that his negligence was the proximate cause of his injury — it is appropriate to remove the case from the jury’s consideration.
In Tennessee, “a railroad crossing is a warning of danger and a motorist is required to exercise ordinary care for his own safety, including the precautions of stopping, looking and listening where ordinary care would require as much.” Maxwell v. Western Atlantic R.R. Co., 295 F.Supp. 740, 745 (E.D.Tenn.), aff’d, 406 F.2d 1326 (6th Cir. 1967). In that case, thiá court affirmed a judgment n. o. v. for the railroad in an action where the facts disclosed that plaintiff’s decedent attempted to cross railroad tracks without stopping to look for approaching trains .even though it was clear that he should have known he was at a train crossing.
In Fluckey v. Southern Ry. Co., 242 F. 468, 470 (6th Cir. 1917), this court, again applying Tennessee law, affirmed a directed verdict for the railroad rendered because plaintiff’s decedent was guilty of proximate contributory negligence and explained:
Upon the first question, it is unnecessary to go into great detail. We are satisfied that the court below was right. When the automobile reached a point 40 feet from the rail, the buildings and the standing cars on the driver’s left had so far ceased to obstruct his view that he could see 120 feet along the straight'5 track upon which the car was approaching, and at that moment the car was not more than 100 feet from the point of collision. It was broad daylight, there was neither smoke nor dust to obscure the view, there was no other moving train to drown the noise of the approaching car, nor was there anything to distract the driver’s attention. It is not to be disputed that, if the driver had looked at the first instant when looking would do any good, he would have seen the car coming. He was familiar with the crossing, and knew that, by reason of the obstructions, it was a dangerous crossing and must be approached cautiously. His clear duty was not only to look as soon as he could see, but to have his machine under such control that, if necessary, he could stop before getting into the danger zone. . . . [citations omitted].
Under these undisputed facts, there can be no tenable basis for a finding that Mr. Fluckey exercised that degree of care which would be observed by a reasonably prudent man in such a situation.
In this case, although the railroad permitted debris to accumulate on the eastern side of the track to the south of Carson Road thereby obscuring the southerly view of a motorist approaching the crossing from the east, the undisputed facts disclose that.the crossbuck sign was clearly visible to Leland Newport and that he failed to look, stop or slow down for an approaching train. If he had slowed down and looked after seeing the crossbuck sign, the evidence of physical facts, including the sight measurements of a civil engineer already referred to and photographs of the crossing submitted as part of the record in this appeal, render inescapable the conclusion that Leland Newport would have seen the train. See Southern Railway Co. v. Hutson, 170 Tenn. 5, 91 S.W.2d 290 (1936). A motorist who proceeds across a railroad track without looking for danger of which he is warned by a crossbuck sign cannot be said to have exercised due, or any, care for his own safety, and if his view is obstructed, he should slow down or, if necessary, stop to permit him to see whether it is safe to cross.
We hold, therefore, as a matter of law, that Leland Newport’s failure to slow down and look for approaching trains after being apprised of that danger by the crossbuck sign constituted contributory negligence which proximately caused his injury. Accordingly, the district court erred in refusing to grant appellant’s motion for judgment notwithstanding the verdict.
Reversed and remanded with instructions to enter a judgment for appellant notwithstanding the verdict.
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: |
sc_certreason | L | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the reason, if any, given by the court for granting the petition for certiorari.
BALTIMORE CITY DEPARTMENT OF SOCIAL SERVICES v. BOUKNIGHT
No. 88-1182.
Argued November 7, 1989
Decided February 20, 1990
O’Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Stevens, Scalia, and Kennedy, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, post, p. 563.
Ralph S. Tyler III argued the cause for petitioner in No. 88-1182. With him on the briefs were J. Joseph Cur-ran, Jr., Attorney General of Maryland, and Andrew H. Baida and Carmen M. Shepard, Assistant Attorneys General. Mitchell Y. Mirviss argued the cause for petitioner in No. 88-6651. With him on the briefs were Susan Dishler Shubin, Stuart R. Cohen, Kathi Grasso, and M. Gayle Hafner.
George E. Bums, Jr., argued the cause for respondent. With him on the brief were Jose F. Anderson, George M. Lipman, Gary S. Offutt, Robin Parsons, and M. Christina Gutierrez.
Together with No. 88-6651, Maurice M. v. Bouknight, also on certio-rari to the same court.
Briefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by James M. Shannon, Attorney General of Massachusetts, Judy G. Zeprun, Judith Fabricant, and Countess C. Williams, Assistant Attorneys General, and by the Attorneys General for their respective States as follows: Douglas B. Baily of Alaska, Robert A. Corbin of Arizona, John K. Van de Kamp of California, John J. Kelly of Connecticut, Charles M. Oberly III of Delaware, Neil F. Hartigan of Illinois, Gordon Allen of Iowa, Robert T. Stephan of Kansas, William J. Guste, Jr., of Louisiana, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Mike Moore of Mississippi, Brian McKay of Nevada, Jeffrey Howard of New Hampshire, Peter N. Perretti, Jr., of New Jersey, Hal Stratton of New Mexico, Nicholas Spaeth of North Dakota, Dave Frohnmayer of Oregon, Ernest D. Preate, Jr., of Pennsylvania, T. Travis Medlock of South Carolina, Roger A. Tellinghuisen of South Dakota, Jeffrey L. Amestoy of Vermont, Mary Sue Terry of Virginia, Charlie Brown of West Virginia, and Joseph B. Meyer of Wyoming; for Advocates for Children and Youth Inc. by Cheri Wyron Levin; for the Criminal Justice Legal Foundation by Kent S. Scheidegger; for the Juvenile Protective Association by Thomas H. Morsch; and for the U. S. Conference of Mayors et al. by Benna Ruth Solomon, Melvin Spaeth, and Donald 0. Beers. William L. Grimm filed a brief for Charles M. as amicus curiae.
Justice O’Connor
delivered the opinion of the Court.
In this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. We hold that she may not.
I
Petitioner Maurice M. is an abused child. When he was three months old, he was hospitalized with a fractured left femur, and examination revealed several partially healed bone fractures and other indications of severe physical abuse. In the hospital, respondent Bouknight, Maurice’s mother, was observed shaking Maurice, dropping him in his crib despite his spica cast, and otherwise handling him in a manner inconsistent with his recovery and continued health. Hospital personnel notified the Baltimore City Department of Social Services (BCDSS), petitioner in No. 88-1182, of suspected child abuse. In February 1987, BCDSS secured a court order removing Maurice from Bouknight’s control and placing him in shelter care. Several months later, the shelter care order was inexplicably modified to return Maurice to Bouknight’s custody temporarily. Following a hearing held shortly thereafter, the juvenile court declared Maurice to be a “child in need of assistance,” thus asserting jurisdiction over Maurice and placing him under BCDSS’ continuing oversight. BCDSS agreed that Bouknight could continue as custodian of the child, but only pursuant to extensive conditions set forth in a court-approved protective supervision order. The order required Bouknight to “cooperate with BCDSS,” “continue in therapy,” participate in parental aid and training programs, and “refrain from physically punishing [Maurice].” App. to Pet. for Cert. 86a. The order’s terms were “all subject to the further Order of the Court.” Id., at 87a. Bouk-night’s attorney signed the order, and Bouknight in a separate form set forth her agreement to each term.
Eight months later, fearing for Maurice’s safety, BCDSS returned to juvenile court. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. BCDSS stated that Maurice’s father had recently died in a shooting incident and that Bouknight, in light of the results of a psychological examination and her history of drug use, could not provide adequate care for the child. App. 33-34. On April 20, 1988, the court granted BCDSS’ petition to remove Maurice from Bouknight’s control for placement in foster care. BCDSS officials also petitioned for judicial relief from Bouknight’s failure to produce Maurice or reveal where he could be found. Id., at 36-39. The petition recounted that on two recent visits by BCDSS officials to Bouknight’s home, she had refused to reveal the location of the child or had indicated that the child was with an aunt whom she would not identify. The petition further asserted that inquiries of Bouknight’s known relatives had revealed that none of them had recently seen Maurice and that BCDSS had prompted the police to issue a missing persons report and referred the case for investigation by the police homicide division. Also on April 20, the juvenile court, upon a hearing on the petition, cited Bouknight for violating the protective custody order and for failing to appear at the hearing. Bouknight had indicated to her attorney that she would appear with the child, but also expressed fear that if she appeared the State would “‘snatch the child.’” Id., at 42, 54. The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Expressing concern that Maurice was endangered or perhaps dead, the court issued a bench warrant for Bouk-night’s appearance. Id., at 51-57.
Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. Investigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. There was and has been no indication that she was unable to comply with the order. The court directed that Bouknight be imprisoned until she “purge[d] herself of contempt by either producing [Maurice] before the court or revealing to the court his exact whereabouts.” App. to Pet. for Cert. 82a.
The juvenile court rejected Bouknight’s subsequent claim that the contempt order violated the Fifth Amendment’s guarantee against self-incrimination. The court stated that the production of Maurice would purge the contempt and that “[t]he contempt is issued not because she refuse[d] to testify in any proceeding . . . [but] because she has failed to abide by the Order of this Court, mainly [for] the production of Maurice M.” App. 150. While that decision was being appealed, Bouknight was convicted of theft and sentenced to 18 months’ imprisonment in separate proceedings. The Court of Appeals of Maryland vacated the juvenile court’s judgment upholding the contempt order. In re Maurice M., 314 Md. 391, 550 A. 2d 1135 (1988). The Court of Appeals found that the contempt order unconstitutionally compelled Bouknight to admit through the act of production “a measure of continuing control and dominion over Maurice’s person” in circumstances in which “Bouknight has a reasonable apprehension that she will be prosecuted.” Id., at 403-404, 550 A. 2d, at 1141. Chief Justice Rehnquist granted BCDSS’ application for a stay of the judgment and mandate of the Maryland Court of Appeals, pending disposition of the petition for a writ of certiorari. 488 U. S. 1301 (1988) (in chambers). We granted certiorari, 490 U. S. 1003 (1989), and we now reverse.
I — I I — I
The Fifth Amendment provides that “No person . . . shall be compelled in any criminal case to be a witness against himself.” The Fifth Amendment’s protection “applies only when the accused is compelled to make a testimonial communication that is incriminating.” Fisher v. United States, 425 U. S. 391, 408 (1976); see Doe v. United States, 487 U. S. 201, 207, 209-210, n. 8 (1988) (Doe II); Schmerber v. California, 384 U. S. 757, 761 (1966) (“[T]he privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature”). The juvenile court concluded that Bouknight could comply with the order through the unadorned act of producing the child, and we thus address that aspect of the order. When the government demands that an item be produced, “the only thing compelled is the act of producing the [item].” Fisher, supra, at 410, n. 11; see United States v. Doe, 465 U. S. 605, 612 (1984) (Doe I). The Fifth Amendment’s protection may nonetheless be implicated because the act of complying with the government’s demand testifies to the existence, possession, or authenticity of the things produced. See Doe II, supra, at 209; Doe I, supra, at 612-614, and n. 13; Fisher, supra, at 410-413. But a person may not claim the Amendment’s protections based upon the incrimination that may result from the contents or nature of the thing demanded. Doe I, 465 U. S., at 612, and n. 10; id., at 618 (O’Connor, J., concurring); Fisher, supra, at 408-410. Bouknight therefore cannot claim the privilege based upon anything that examination of Maurice might reveal, nor can she assert the privilege upon the theory that compliance would assert that the child produced is in fact Maurice (a fact the State could readily establish, rendering any testimony regarding existence or authenticity insufficiently incriminating, see Fisher, supra, at 411). Rather, Bouknight claims the benefit of the privilege because the act of production would amount to testimony regarding her control over, and possession of, Maurice. Although the State could readily introduce evidence of Bouknight’s continuing control over the child — e. g., the custody order, testimony of relatives, and Bouknight’s own statements to Maryland officials before invoking the privilege — her implicit communication of control over Maurice at the moment of production might aid the State in prosecuting Bouknight.
The possibility that a production order will compel testimonial assertions that may prove incriminating does not, in all contexts, justify invoking the privilege to resist production. See infra, at 556-558. Even assuming that this limited testimonial assertion is sufficiently incriminating and “sufficiently testimonial for purposes of the privilege,” Fisher, supra, at 411, Bouknight may not invoke the privilege to resist the production order because she has assumed custodial duties related to production and because production is required as part of a noncriminal regulatory regime.
The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State’s public purposes unrelated to the enforcement of its criminal laws. In Shapiro v. United States, 335 U. S. 1 (1948), the Court considered an application of the Emergency Price Control Act of 1942 and a regulation issued thereunder which required licensed businesses to maintain records and make them available for inspection by administrators. The Court indicated that no Fifth Amendment protection attached to production of the “required records,” which the “‘defendant was required to keep, not for his private uses, but for the benefit of the public, and for public inspection.’” Id., at 17-18 (quoting Wilson v. United States, 221 U. S. 361, 381 (1911)). The Court’s discussion of the constitutional implications of the scheme focused upon the relation between the Government’s regulatory objectives and the Government’s interest in gaining access to the records in Shapiro’s possession:
“It may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.” 335 U. S., at 32.
See also In re Harris, 221 U. S. 274, 279 (1911) (Holmes, J.) (regarding a court order that a bankrupt produce account books, “[t]he question is not of testimony but of surrender— not of compelling the bankrupt to be a witness against himself in a criminal case, past or future, but of compelling him to yield possession of property that he no longer is entitled to keep”). The Court has since refined those limits to the government’s authority to gain access to items or information vested with this public character. The Court has noted that “the requirements at issue in Sha-piro were imposed in ‘an essentially non-criminal and regulatory area of inquiry,”’ and that Shapiro’s reach is limited where requirements “are directed to a ‘selective group inherently suspect of criminal activities.’” Marchetti v. United States, 390 U. S. 39, 57 (1968) (quoting Albertson v. Subversive Activities Control Board, 382 U. S. 70, 79 (1965)); see Grosso v. United States, 390 U. S. 62, 68 (1968) (Shapiro inapplicable because “[h]ere, as in Marchetti, the statutory obligations are directed almost exclusively to individuals inherently suspect of criminal activities”); Haynes v. United States, 390 U. S. 85, 98-99 (1968).
California v. Byers, 402 U. S. 424 (1971), confirms that the ability to invoke the privilege may be greatly diminished when invocation would interfere with the effective operation of a generally applicable, civil regulatory requirement. In Byers, the Court upheld enforcement of California’s statutory requirement that drivers of cars involved in accidents stop and provide their names and addresses. A plurality found the risk of incrimination too insubstantial to implicate the Fifth Amendment, id., at 427-428, and noted that the statute “was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities,” id., at 430, was “‘directed at the public at large,”’ ibid, (quoting Albertson v. Subversive Activities Control Board, supra, at 79), and required disclosure of no inherently illegal activity. See also United States v. Sullivan, 274 U. S. 259 (1927) (rejecting Fifth Amendment objection to requirement to file income tax return). Justice Harlan, the author of Marchetti, Grosso, and Haynes, concurred in the judgment. He distinguished those three cases as considering statutory schemes that “focused almost exclusively on conduct which was criminal,” 402 U. S., at 454. While acknowledging that in particular cases the California statute would compel incriminating testimony, he concluded that the noncriminal purpose and the general applicability of the reporting requirement demanded compliance even in such cases. Id., at 458.
When a person assumes control over items that are the legitimate object of the government’s noncriminal regulatory powers, the ability to invoke the privilege is reduced. In Wilson v. United States, supra, the Court surveyed a range of cases involving the custody of public documents and records required by law to be kept because they related to “the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.” Id., at 380. The principle the Court drew from these cases is:
“[Wjhere, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. In assuming their custody he has accepted the incident obligation to permit inspection.” Id., at 382.
See also Braswell v. United States, 487 U. S. 99, 109-113 (1988); Curdo v. United States, 354 U. S. 118, 123-124 (1957) (“A custodian, by assuming the duties of his office, undertakes the obligation to produce the books of which he is custodian in response to a rightful exercise of the State’s visitorial powers”). In Shapiro, the Court interpreted this principle as extending well beyond the corporate context, 335 U. S., at 16-20, and emphasized that Shapiro had assumed and retained control over documents in which the Government had a direct and particular regulatory interest. Id., at 7-8, 14-15. Indeed, it was in part Shapiro’s custody over items having this public nature that allowed the Court in Marchetti, supra, at 57, Grosso, supra, at 69, and Haynes, supra, at 99, to distinguish the measures considered in those cases from the regulatory requirement at issue in Shapiro.
These principles readily apply to this case. Once Maurice was adjudicated a child in need of assistance, his care and safety became the particular object of the State’s regulatory interests. See 314 Md., at 404, 550 A. 2d, at 1141; Md. Cts. & Jud. Proc. Code Ann. §§ 3 — 801(e), 3-804(a) (Supp. 1989); see also App. 105 (“This court has jurisdiction to require at all times to know the whereabouts of the minor child. We asserted jurisdiction over that child in the spring of 1987 . . .”). Maryland first placed Maurice in shelter care, authorized placement in foster care, and then entrusted responsibility for Maurice’s care to Bouknight. By accepting care of Maurice subject to the custodial order’s conditions (including requirements that she cooperate with BCDSS, follow a prescribed training regime, and be subject to further court orders), Bouknight submitted to the routine operation of the regulatory system and agreed to hold Maurice in a manner consonant with the State’s regulatory interests and subject to inspection by BCDSS. Cf. Shapiro v. United States, supra. In assuming the obligations attending custody, Bouknight “has accepted the incident obligation to permit inspection.” Wilson, 221 U. S., at 382. The State imposes and enforces that obligation as part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders. See Md. Cts. & Jud. Proc. Code Ann. §3-802(a) (1984) (setting forth child protective purposes of subtitle, including “providing] for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle”); see also Md. Cts. & Jud. Proc. Code Ann. §§3-820(b), (c) (Supp. 1989); In re Jessica M., 312 Md. 93, 538 A. 2d 305 (1988).
Persons who care for children pursuant to a custody order, and who may be subject to a request for access to the child, are hardly a “ ‘selective group inherently suspect of criminal activities.’” Marchetti, supra, at 57 (quoting Albertson v. Subversive Activities Control Board, 382 U. S., at 79). The juvenile court may place a child within its jurisdiction with social service officials or “under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate.” Md. Cts. & Jud. Proc. Code Ann. § 3-820(c)(l)(i) (Supp. 1989). Children may be placed, for example, in foster care, in homes of relatives, or in the care of state officials. See, e. g., In re Jessica M., supra; In re Arlene G., 301 Md. 355, 483 A. 2d 39 (1984); Maryland Dept, of Health and Mental Hygiene v. Prince George’s County Dept, of Social Services, 47 Md. App. 436, 423 A. 2d 589 (1980). Even when the court allows a parent to retain control of a child within the court’s jurisdiction, that parent is not one singled out for criminal conduct, but rather has been deemed to be, without the State’s assistance, simply “unable or unwilling to give proper care and attention to the child and his problems.” Md. Cts. & Jud. Proc. Code Ann. § 3-801(e) (Supp. 1989); see In re Jertrude 0., 56 Md. App. 83, 466 A. 2d 885 (1983), cert. denied, 298 Md. 309, 469 A. 2d 863 (1984). The provision that authorized the juvenile court’s efforts to gain production of Maurice reflects this broad applicability. See Md. Cts. & Jud. Proc. Code Ann. § 3-814(c) (1984) (“If a parent, guardian, or custodian fails to bring the child before the court when requested, the court may issue a writ of attachment directing that the child be taken into custody and brought before the court. The court may proceed against the parent, guardian, or custodian for contempt”). This provision “fairly may be said to be directed at . . . parents, guardians, and custodians who accept placement of juveniles in custody.” 314 Md., at 418, 550 A. 2d, at 1148 (McAuliffe, J., dissenting).
Similarly, BCDSS’ efforts to gain access to children, as well as judicial efforts to the same effect, do not “focu[s] almost exclusively on conduct which was criminal.” Byers, 402 U. S., at 454 (Harlan, J., concurring in judgment). Many orders will arise in circumstances entirely devoid of criminal conduct. Even when criminal conduct may exist, the court may properly request production and return of the child, and enforce that request through exercise of the contempt power, for reasons related entirely to the child’s well-being and through measures unrelated to criminal law enforcement or investigation. See Maryland Cts. & Jud. Proc. Code Ann. § 3-814(c) (1984). This case provides an illustration: concern for the child’s safety underlay the efforts to gain access to and then compel production of Maurice. See App. 33-39, 53-55, 150, 155-158; see also 314 Md., at 419, 550 A. 2d, at 1149 (McAuliffe, J., dissenting). Finally, production in the vast majority of cases will embody no incriminating testimony, even if in particular cases the act of production may incriminate the custodian through an assertion of possession or the existence, or the identity, of the child. Cf. Byers, 402 U. S., at 430-431; id., at 458 (Harlan, J., concurring in judgment). These orders to produce children cannot be characterized as efforts to gain some testimonial component of the act of production. The government demands production of the very public charge entrusted to a custodian, and makes the demand for compelling reasons unrelated to criminal law enforcement and as part of a broadly applied regulatory regime. In these circumstances, Bouknight cannot invoke the privilege to resist the order to produce Maurice.
We are not called upon to define the precise limitations that may exist upon the State’s ability to use the testimonial aspects of Bouknight’s act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed. The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony. See Braswell, 487 U. S., at 118, and n. 11. The State’s regulatory requirement in the usual case may neither compel incriminating testimony nor aid a criminal prosecution, but the Fifth Amendment protections are not thereby necessarily unavailable to the person who complies with the regulatory requirement after invoking the privilege and subsequently faces prosecution. See Marchetti, 390 U. S., at 58-59 (the “attractive and apparently practical” course of subsequent use restriction is not appropriate where a significant element of the regulatory requirement is to aid law enforcement); see also Leary v. United States, 395 U. S. 6, 26-27 (1969); Haynes, 390 U. S., at 100; Grosso, 390 U. S., at 69; cf. Doe I, 465 U. S., at 617, n. 17 (scope of restriction). In a broad range of contexts, the Fifth Amendment limits prosecutors’ ability to use testimony that has been compelled. See Simmons v. United States, 390 U. S. 377, 391-394 (1968) (no subsequent admission of testimony provided in suppression hearing); Murphy v. Waterfront Comm’n of New York Harbor, 378 U. S. 52, 75-76, 79 (1964) (Fifth Amendment bars use, in criminal processes, in other jurisdictions of testimony compelled pursuant to a grant of use immunity in one jurisdiction); Maness v. Meyers, 419 U. S. 449, 474-475 (1975) (White, J., concurring in result); Adams v. Maryland, 347 U. S. 179, 181 (1954) (“[A] witness does not need any statute to protect him from the use of self-incriminating testimony he is compelled to give over his objection. The Fifth Amendment takes care of that without a statute”); see also New Jersey v. Portash, 440 U. S. 450 (1979); Garrity v. New Jersey, 385 U. S. 493, 500 (1967). But cf. Doe I, supra, at 616-617 (construing federal use immunity statute, 18 U. S. C. §§6001-6005); Pillsbury Co. v. Conboy, 459 U. S. 248, 261-262 (1983) (declining to supplement previous grant of federal use immunity).
Ill
The judgment of the Court of Appeals of Maryland is reversed, and the cases are remanded to that court for further proceedings not inconsistent with this opinion.
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: |
sc_caseorigin | 046 | 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.
HARMON v. BRUCKER, SECRETARY OF THE ARMY.
No. 80.
Argued January 14-15, 1958.
Decided March 3, 1958.
David I. Shapiro argued the cause and filed a brief for petitioner in No. 80.
Victor Rabinowitz argued the cause for petitioner in No. 141. With him on the brief was Leonard B. Boudin.
Donald B. MacGuineas argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General Doub, Samuel D. Slade, B. Jenkins Middleton and George W. Hickman, Jr., Judge Advocate General of the Army.
Briefs of amici curiae were filed by Carl Rachlin for the Workers Defense League in No. 80, and Ben Margolis and John T. McTernan for the Servicemen’s Defense Committee in Nos. 80 and 141.
Per Curiam.
The Secretary of the Army, relying upon 10 U. S. C. § 652a (Act of June 4, 1920, § 1, subch. II, 41 Stat. 809, as amended) and 38 U. S. C. § 693h (Act of June 22, 1944, 58 Stat. 286, as amended), and upon Department of Defense and Army Regulations deemed to be authorized by those statutes, discharged petitioners from the Army and issued to each of them a discharge certificate in form other than “honorable.” In so doing, he took into account preinduction activities of petitioners rather than basing his action exclusively upon the record of their military service. After having exhausted available administrative remedies, petitioners separately brought these proceedings in the District Court seeking judgments declaring those determinations and actions of the Secretary to be void as in excess of his powers under the circumstances, and directing him to issue “honorable” discharge certificates to them. Being of the view that it was without jurisdiction to consider the actions, the District Court dismissed them, 137 F. Supp. 475, and the Court of Appeals affirmed, with one judge dissenting, 100 U. S. App. D. C. 190, 256, 243 F. 2d 613, 834. We granted certiorari, 353 U. S. 956 and 354 U. S. 920.
The respective contentions made here may be summarized as follows:
(1) Petitioners contend (a) that the Secretary acted in excess of his powers, because the statutes referred to did not authorize, nor support Department of Defense and Army Regulations when taken to authorize, consideration of petitioners’ preinduction activities in determining the type of discharges to be issued to them upon separation from the Army, and (b) that the action of respondent in issuing to them less than “honorable” discharges, and the action of the District Court and of the Court of Appeals in refusing review for what they thought was lack of judicial power, deprived petitioners of due process under the Fifth Amendment, and of a judicial trial under the Sixth Amendment, of the Constitution ;
(2) Respondent contends (a) that by 10 U. S. C. § 652a, Congress required that, upon separation from the Army, a former soldier be given “a certificate of discharge, ... in the manner prescribed by the Secretary of the Department of the Army . . (b) that, inasmuch as all certificates of discharge are not required to be “honorable” ones, he was authorized to, and did, prescribe various types of discharge certificates running the gamut from the accolade of “Honorable discharge” to the odious “Dishonorable discharge”; (c) that by 38 U. S. C. § 693h, Congress directed the establishment of an Army Review Board with power to review, upon its own motion or that of the former soldier, the type of discharge issued, and “to change, correct, or modify any discharge or dismissal, and to issue a new discharge in accord with the facts presented to the board,” and prescribed that “the findings thereof [shall] be final subject only to review by the Secretary of the Army”; (d) that the findings of the Board, made under those procedures so afforded to and availed of by petitioners, were final subject only to review by the Secretary of the Army; and-(e) that, therefore, such administrative procedure is exclusive and the courts are without jurisdiction to review those findings.
In keeping with our duty to avoid deciding constitutional questions presented unless essential to proper disposition of a case, we look first to petitioners’ non-constitutional claim that respondent acted in excess of powers granted him by Congress. Generally, judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. American School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 108; Philadelphia Co. v. Stimson, 223 U. S. 605, 621-622; Stark v. Wickard, 321 U. S. 288, 310. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion, and, in such circumstances as those before us, judicial relief from this illegality would be available. Moreover, the claims presented in these cases may be entertained by the District Court because petitioners have alleged judicially cognizable injuries. Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 123, 159, 160, and see Army Regulation 615-360, par. 7.
This brings us to the merits. The Solicitor General conceded that if the District Court had jurisdiction to review respondent’s determinations as to the discharges he issued these petitioners and if petitioners had standing to bring these suits, the action of respondent is not sustainable. On the basis of that concession and our consideration of the law and this record we conclude that the actions of the Secretary of the Army cannot be sustained in law. By § 652a, which provides that no person be discharged from military service “without a certificate of discharge,” Congress granted to the Secretary of the Army authority to issue discharges. By § 693h it provided for review by the Army Review Board of the exercise of such authority. Surely these two provisions must be given an harmonious reading to the end that the basis on which the Secretary’s action is reviewed is coterminous with the basis on which he is allowed to act. Section 693h expressly requires that the findings of the Army Review Board “shall be based upon all available records of the [Army] relating to the person requesting such review . . . We think the word “records,” as used in the statute, means records of military service, and that the statute, properly construed, means that the type of discharge to be issued is to be determined solely by the soldier’s military record in the Army. An authoritative construction of the congressional grant of power is to be found in the regulations of the Department of the Army. Army Regulation 615-375, par. 2 (b) states: “The purpose of a discharge certificate is to record the separation of an individual from the military service and to specify the character of service rendered during the period covered by the discharge.” (Emphasis supplied.) Moreover, the Army’s Regulation 615-360, par. 7 (which was in effect during the times here involved), further states: “Because the type of discharge may significantly influence the individual’s civilian rights and eligibility for benefits provided by law, it is essential that all pertinent factors be considered so that the type of discharge will reflect accurately the nature of service rendered. . . .” (Emphasis supplied.)
The judgments of the Court of Appeals are reversed and the cases are remanded to the District Court for the relief to which petitioners are entitled in the light of this opinion.
Reversed.
Question: What is the court in which the case originated?
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer: |
sc_issue_1 | 01 | 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.
BROWN v. ALLEN, WARDEN.
NO. 32.
Argued April 29, 1952.
Reargued October 13, 1952.
Decided February 9, 1953.
Rosea V. Price argued the cause for petitioner in No. 32. Herman L. Taylor filed a brief for petitioner.
Herman L. Taylor argued the cause and filed a brief for petitioner in No. 22.
0. John Rogge and Murray A. Gordon argued the cause for petitioners in No. 20. Mr. Taylor was with them on the brief.
R. Brookes Peters argued the cause for respondent in No. 32. E. O. Brogden, Jr. argued the cause for respondent in No. 22. Ralph Moody, Assistant Attorney General of North Carolina, argued the cause for respondent in No. 20. With them on the briefs was Harry McMul-lan, Attorney General.
Mr. Justice Reed
delivered the opinion of the Court.
Certiorari was granted to review judgments of the United States Court of Appeals for the Fourth Circuit. 343 U. S. 903; 342 U. S. 953; 342 U. S. 941. These cases were argued last year. As the records raised serious federal constitutional questions upon which the carrying out of death sentences depended and procedural issues of importance in the relations between states and the Federal Government upon which there was disagreement in this Court, we decided to set the cases for reargument. We have now heard the cases again.
The judgments of affirmance were entered October 12, 1951, on appeal from three judgments of the United States District Court for the Eastern District of North Carolina, refusing writs of habeas corpus sought by prisoners convicted in that state. We conclude that all required procedure for state review of the convictions had been exhausted by petitioners in each case before they sought the writs of habeas corpus in the federal courts. In each case petitions for certiorari to this Court for direct review of the state judgments rendered by the highest court of the state in the face of the same federal issues now presented by habeas corpus had been denied.
It is not necessary in such circumstances for the prisoner to ask the state for collateral relief, based on the same evidence and issues already decided by direct review with another petition for certiorari directed to this Court. It is to be noted that an applicant is barred unless he has “exhausted the remedies available in the courts of the State... by any available procedure.” The legislative history shows that this paragraph, in haec verba, was presented to the Congress with the recommendation of the Judicial Conference. The legislative history of 28 U. S. C. § 2254 has no discussion of the considerations which moved congressional enactment other than that contained in S. Rep. No. 1559. But see a similar clause § 2254 in H. R. 3214, 80th Cong., 1st Sess.; H. R. 3214, 80th Cong., 2d Sess.; S. Rep. No. 1559, 80th Cong., 2d Sess., p. 9; Report of the Judicial Conference of Senior Circuit Judges, 1947, pp. 17-20.
The second paragraph of § 2254 has been construed by several courts of appeals. In Ekberg v. McGee, 191 F. 2d 625, the Ninth Circuit refused to consider that the statute meant to deny a federal forum where state procedures were inexhaustible. The Third Circuit in Master v. Baldi, 198 F. 2d 113, 116, held that the exhaustion of one of several available alternative state remedies with this Court’s denial of certiorari therefrom is all that is necessary. In Bacom v. Sullivan, 181 F. 2d 177, and Bacom v. Sullivan, 194 F. 2d 166, the Fifth Circuit ruled that when a federal question had been presented to the state courts by at least one post-conviction procedure, certiorari on the same question having been once denied by this Court, there appeared a unique and extraordinary circumstance justifying federal examination under Darr v. Burford, 339 U. S. 200.
When, in April 1948, Judge Maris presented the Judicial Conference draft of § 2254 to the Senate Judiciary Subcommittee, the language of the revision of 28 U. S. C., on which the hearings were being held, set out three bases for exercise of federal jurisdiction over applications for habeas corpus from state prisoners. Under the language of the bill as it then read, an application might have been entertained where it appeared (1) that the applicant had exhausted the remedies available in the courts of the state, or (2) where there was no adequate remedy available in such courts, or (3) where such courts had denied the applicant a fair adjudication of the legality of his detention under the Constitution and laws of the United States. In accepting the recommendation of the Judicial Conference, the Congress eliminated the third basis of jurisdiction. S. Rep. No. 1559, p. 9, shows the reason for this as follows:
“The second purpose is to eliminate, as a ground of Federal jurisdiction to review by habeas corpus judgments of State courts, the proposition that the State court has denied a prisoner a ‘fair adjudication of the legality of his detention under the Constitution and laws of the United States.’ The Judicial Conference believes that this would be an undesirable ground for Federal jurisdiction in addition to exhaustion of State remedies or lack of adequate remedy in the State courts because it would permit proceedings in the Federal court on this ground before the petitioner had exhausted his State remedies. This ground would, of course, always be open to a petitioner to assert in the Federal court after he had exhausted his State remedies or if he had no adequate State remedy.
“The third purpose is to substitute detailed and specific language for the phrase ‘no adequate remedy available.’ That phrase is not sufficiently specific and precise, and its meaning should, therefore, be spelled out in more detail in the section as is done by the amendment.”
If the substitution for “adequate remedy available” of the present definition was intended by the Congress to eliminate the right of a state prisoner to apply for relief by habeas corpus to the lower federal courts, we do not think that the report would have suggested that a remedy for denial of a “fair adjudication” was in the federal court. The suggested elimination of district and circuit courts does not square with the other statutory habeas corpus provisions. See 28 U. S. C. §§ 2241, 2242, 2251, 2252, 2253, 3d paragraph. We are unwilling to conclude without a definite congressional direction that so radical a change was intended.
In each of these cases the District Court, in determining the propriety of its granting the writ, considered the effect of our refusal of certiorari on the same questions upon direct review of the judgments of the highest court of the state. As that question, pretermitted in our ruling in Darr v. Burford, 339 U. S. 200, 214-217, a case where no certiorari was sought here from state denial of collateral relief by habeas corpus from imprisonment, had given rise to definite differences of opinion in the federal courts, a ruling here was necessary. There is a similar difference in this Court. As other issues command a majority that upholds the judgments of the Court of Appeals, this opinion is that of the Court although it represents the minority view on the effect of our denial of certiorari. The position of the majority upon that point is expressed by the opinion of Mr. Justice Frankfurter, post, p. 488. A summary review of habeas corpus practice in the federal courts in relation to state criminal convictions will be found in Hawk v. Olson, 326 U. S. 271, 274, and Darr v. Burford, 339 U. S. 200, 203. It is hoped the conclusions reached herein will result in the improvement of the administration of justice and leave the indispensable function of the Great Writ unimpaired in usefulness.
II. Effect of Former Proceedings.
The effect to be given this Court’s former refusal of certiorari in these cases was presented to the District Court which heard the applications for federal habeas corpus upon full records of the state proceedings in the trial and appellate courts. In No. 32, Brown v. Allen, the District Court, upon examination of the application, the answer, and the exhibits, adopted, without hearing argument or testimony, the findings of the sentencing judge with respect to both the composition of the grand jury and the voluntary character of the confession. These were the federal constitutional issues involved in the state trial. The record which the District Judge had before him embraced the record of the case in the North Carolina courts and this Court, including all the relevant portions of the transcript of proceedings in the sentencing court. The District Court then dismissed the petition. Sub nom. Brown v. Crawford, 98 F. Supp. 866.
In No. 22, Speller v. Allen, the petition for habeas corpus in the District Court raised again the same federal question which had been passed upon by the trial and appellate courts in North Carolina and which had been offered to this Court on petition for certiorari; to wit, the jury commissioners had “pursuant to a long and continuous practice, discriminated against Negroes in the selection of juries, solely on account of race and/or color.” The District Court had before it the record which had been filed in the Supreme Court of North Carolina on appeal. Included in this record was the same transcript of proceedings in the trial court which had been before the State Supreme Court. In addition, the District Court took further evidence by way of testimony and stipulation. The District Court, upon examination of all the evidence and the stipulations, adopted the findings of the sentencing judge with respect to the composition of the trial jury. It added that petitioner “failed to substantiate the charge that he did not have a trial according to due process,....” The court then vacated the writ; and held that while the petition could be dismissed “solely in the light of the procedural history,” there was the added alternative ground of failure to substantiate the charge. Sub nom. Speller v. Crawford, 99 F. Supp. 92, 97.
In No. 20, Daniels v. Allen, petitioners at the state trial made a timely motion to quash the indictment and challenged the array, alleging discrimination against Negroes in the selection of both grand and petit jurors in contravention of the guarantees of the Fourteenth Amendment. Timely objection was also made to admission in evidence of what were alleged to be coerced confessions. Petitioners contend that the admission of these confessions violated their due process rights under the Fourteenth Amendment. They also urge that the refusal of the Supreme Court of North Carolina to examine the merits of the trial record in the state courts because of their failure to serve a statement of the case on appeal until one day beyond the period of limitation, is a denial of equal protection under the Fourteenth Amendment. In their application to the District Court, petitioners repeated once again those federal constitutional questions which had earlier been presented to the sentencing court and the Supreme Court of North Carolina and which had also been repeated in their petition for certiorari filed in this Court.
In examining the application, the District Court Judge studied the records of the trial and appellate courts of North Carolina, including a transcript of the proceedings in the sentencing court. He concluded that the findings of the judge of the sentencing court on the matter of whether the jury had been properly selected were supported by all the evidence and that it was not shown that there was a purposeful and systematic exclusion of Negroes solely on account of race. He also found that the trial judge correctly determined that the confessions were voluntary and that the instruction concerning the confessions was adequate. In addition the District Judge heard all evidence offered by the prosecution or defense.
The District Court Judge did advert to the circumstance that this Court had denied a petition for certiorari on the same questions, and he further observed that to his mind the procedural history of the case did not make it appear that petitioners were denied the substance of a fair trial. He added that petitioners “failed to substantiate the charges made.” 99 F. Supp. at 216. The writ was vacated and the application dismissed. On the procedural history, the District Court refused to entertain the request. Sub nom. Daniels v. Crawford, 99 F. Supp. 208.
The records of the former proceedings thus determined the action of the United States District Court. The fact that further evidence was heard in two of the cases was to assure the judge that the prisoners were not held in custody in violation of the Constitution. In dismissing these petitions for habeas corpus the District Court did not treat our denial of certiorari as conclusive.
In the Brown case, the last one decided, Judge Gilliam based his decision on this finding of fact:
“12. The facts found by the trial Judge, in respect to the composition of the grand jury, are supported by the evidence before him, and these findings and the conclusion thereon are adopted as findings in this respect, and the facts found by that Court in respect to the question of admission of statements made by the defendant are also supported by the evidence, and these findings and the conclusions thereon are likewise adopted.” 98 F. Supp. 866, 870.
The court cited from Stonebreaker v. Smyth, 163 F. 2d 498, 499, in support of the above statement that this is the proper rule:
“ ‘While action of the Virginia courts and the denial of certiorari by the Supreme Court were not binding on the principle of res judicata, they were matters entitled to respectful consideration by the court below; and in the absence of some most unusual situation, they were sufficient reason for that court to deny a further writ of habeas corpus.’ ” 98 F. Supp. at 868.
In the Speller case, the pith of his conclusion is stated as follows:
“ ‘The Court now concludes that the writ should be vacated and the petition dismissed upon the procedural history and the record in the State Courts, for the reason that habeas corpus proceeding is not available to the petitioner for the purpose of raising the identical question passed upon in those Courts.’ ” 99 F. Supp. 92, 95.
To this was added the alternative ground of agreement with the conclusions of the sentencing court. See pp. 452-453, supra.
In the Daniels case, decided the same day, the District Court left open the question of its power to reexamine, 99 F. Supp. at 213, and concluded on the record that the State had afforded a fair trial.
A. Effect of Denial of Certiorari. — In cases such as these, a minority of this Court is of the opinion that there is no reason why a district court should not give consideration to the record of the prior certiorari in this Court and such weight to our denial as the District Court feels the record justifies. This is the view of the Court of Appeals. 192 F. 2d 763, 768 et seq.; Speller v. Allen, 192 F. 2d 477. This is, we think, the teaching of Ex parte Hawk, 321 U. S. 114, 118, and White v. Ragen, 324 U. S. 760, 764, 765. We have frequently said that the denial of certiorari “imports no expression of opinion upon the merits of a case.” House v. Mayo, 324 U. S. 42, 48; Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251, 258. Cf. Ex parte Abernathy, 320 U. S. 219. When on review of proceedings no res judicata or precedential effect follows, the result would be in accord with that expression, that statement is satisfied. But denial of certiorari marks final action on state criminal proceedings. In fields other than habeas corpus with its unique opportunity for repetitious litigation, as demonstrated in Dorsey v. Gill, 80 U. S. App. D. C. 9, 148 F. 2d 857, see 7 F. R. D. 313, the denial would make the issues res judicata. The minority thinks that where a record distinctly presenting a substantial federal constitutional question disentangled from problems of procedure is brought here by certiorari and denied, courts dealing with the petitioner’s future applications for habeas corpus on the same issues presented in earlier applications for writs of certiorari to this Court, should have the power to take the denial into consideration in determining their action. We indicated as much in House v. Mayo, supra, p. 48, and Ex parte Hawk, supra, p. 117, when we specifically approved a district court’s refusal to reexamine ordinarily the questions passed upon by our denial. Permitting a district court to dismiss an application for habeas corpus on the strength of the prior record should be a procedural development to reduce abuse of the right to repeated hearings such as were permitted during the period when there was no review of the refusal of a habeas corpus application, Salinger v. Loisel, 265 U. S. 224. See 61 Harv. L. Rev. 657, 670. Compare the protection given by statute against abuse of habeas corpus in federal criminal proceedings, 28 U. S. C. § 2244. Since a federal district court has power to intervene, there is a guard against injustice through error. Darr v. Burford, supra, at 214. It should be noted that the minority does not urge that the denial of certiorari here is res judi-cata of the issues presented. It is true, as is pointed out in the opinion of Mr. Justice Frankfurter, the records of applications for certiorari to review state criminal convictions, directly or collaterally, through habeas corpus or otherwise, are not always clear and full. Some records, however, are. It seems proper for a district court to give to these refusals of certiorari on adequate records the consideration the district court may conclude these refusals merit. This would be a matter of practice to keep pace with the statutory development of 1867 that expanded habeas corpus. We think it inconsistent to allow a district court to dismiss an application on its appraisal of the state trial record, as we understand those do who oppose our suggestion (see Mr. Justice Frankfurter’s opinion, post, pp. 500-501 and 503-506), but to refuse to permit the district court to consider relevant our denial of certiorari.
B. Effect of State Court Adjudications. — With the above statement of the position of the minority on the weight to be given our denial of certiorari, we turn to another question. The fact that no weight is to be given by the Federal District Court to our denial of certiorari should not be taken as an indication that similar treatment is to be accorded to the orders of the state courts. So far as weight to be given the proceedings in the courts of the state is concerned, a United States district court, with its familiarity with state practice is in a favorable position to recognize adequate state grounds in denials of relief by state courts without opinion. A fortiori, where the state action was based on an adequate state ground, no further examination is required, unless no state remedy for the deprivation of federal constitutional rights ever existed. Mooney v. Holohan, 294 U. S. 103; Ex parte Hawk, 321 U. S. 114. Furthermore, where there is material conflict of fact in the transcripts of evidence as to deprivation of constitutional rights, the District Court may properly depend upon the state’s resolution of the issue. Malinski v. New York, 324 U. S. 401, 404. In other circumstances the state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata.
Furthermore, in view of the consideration that was given by the District Court to our denial of certiorari in these cases, should we return them to that court for reexamination in the light of this Court’s ruling upon the effect to be given to the denial? We think not. From the findings of fact and the judgments of the District Court we cannot see that such consideration as was given by that court to our denials of certiorari could have had any effect on its conclusions as to whether the respective defendants had been denied federal constitutional protection. It is true, under the Court’s ruling today, that the District Court in each of the three cases erroneously gave consideration to our denial of certiorari. It is also true that its rulings, set out above, show that without that consideration, it found from its examination of the state records and new evidence presented that the conduct of the respective state proceedings was in full accord with due process. Such conclusions make immaterial the fact that the trial court gave consideration to our denial of certiorari.
The District Court and the Court of Appeals recognized the power of the District Court to reexamine federal constitutional issues even after trial and review by a state and refusal of certiorari in this Court. Darr v. Burford, 339 U. S., at 214. The intimation to the contrary in the Speller case, 99 F. Supp., at 95, see p. 453, supra, must be read as the Court’s opinion after the hearing. “In the review of judicial proceedings the rule is settled that if the decision below is correct, it must be affirmed, although the lower court relied upon a wrong ground or gave a wrong reason.” Certainly the consideration given by the District Court to our former refusals of cer-tiorari on the issues presented cannot affect its determinations that there was no merit in any of the applications for habeas corpus. 98 F. Supp. 868, 870; 99 F. Supp. 97, 99; 99 F. Supp. at 216. Where it is made to appear affirmatively, as here, that the alleged error could not affect the result, such errors may be disregarded even in the review of criminal trials. Whether we affirm or reverse in these cases, therefore, does not depend upon the trial court’s consideration of our denial of certiorari but upon the soundness of its decisions upon the issues of alleged violation of federal procedural requirements or of petitioner’s constitutional rights by the North Carolina proceedings. We now take up those problems.
III. Right to Plenary Hearing.
Petitioner alleges a procedural error in No. 32, Brown v. Allen. As we stated in the preceding subdivision, the writ of habeas corpus was refused on the entire record of the respective state and federal courts. 98 F. Supp. 866. It is petitioner’s contention, however, that the District Court committed error when it took no evidence and heard no argument on the federal constitutional issues. He contends he is entitled to a plenary trial of his federal constitutional issues in the District Court. He argues that the Federal District Court, with jurisdiction of the particular habeas corpus, must exercise its judicial power to hear again the controversy notwithstanding prior determinations of substantially identical federal issues by the highest state court, either on direct review of the conviction or by post-conviction remedy, habeas corpus, coram nobis, delayed appeal or otherwise.
Jurisdiction over applications for federal habeas corpus is controlled by statute. The Code directs a court entertaining an application to award the writ. But an application is not “entertained” by a mere filing. Liberal as the courts are and should be as to practice in setting out claimed violations of constitutional rights, the applicant must meet the statutory test of alleging facts that entitle him to relief.
The word “entertain” presents difficulties. Its meaning may vary according to its surroundings. In § 2243 and § 2244 we think it means a federal district court’s conclusion, after examination of the application with such accompanying papers as the court deems necessary, that a hearing on the merits legal or factual is proper. See Walker v. Johnston, 312 U. S. 275, 283, First and Second; Smith v. Baldi, post, p. 561, at p. 568. Even after deciding to entertain the application, the District Court may determine later from the return or otherwise that the hearing is unnecessary.
It is clear by statutory enactment that a federal district court is not required to entertain an application for habeas corpus if it appears that “the legality of such detention has been determined by a judge or court of the United States on a prior application for a writ of habeas corpus.” The Reviser’s Notes to this section in House Report No. 308, 80th Cong., 1st Sess., say that no material change in existing practice is intended. Nothing else indicates that the purpose of Congress was to restrict by the adoption of the Code of 1948 the discretion of the District Court, if it had such discretion before, to entertain petitions from state prisoners which raised the same issues raised in the state courts.
Furthermore, in enacting 28 U. S. C. § 2254, dealing with persons in custody under state judgments, Congress made no reference to the power of a federal district court over federal habeas corpus for claimed wrongs previously passed upon by state courts. See discussion at p. 447, supra. A federal judge on a habeas corpus application is required to “summarily hear and determine the facts, and dispose of the matter as law and justice require,” 28 U. S. C. § 2243. This has long been the law. R. S. § 761, old 28 U. S. C. § 461. It was under this general rule that this Court approved in Salinger v. Loisel, 265 U. S. 224, 231, the procedure that a federal judge might refuse a writ where application for one had been made to and refused by another federal judge and the second judge is of the opinion that in the light of the record a satisfactory conclusion has been reached. That principle is also applicable to state prisoners. Darr v. Burford, supra, 214-215.
Applications to district courts on grounds determined adversely to the applicant by state courts should follow the same principle — a refusal of the writ without more, if the court is satisfied, by the record, that the state process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion. Where the record of the application affords an adequate opportunity to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances calling for a hearing are presented, a repetition of the trial is not required. See p. 457, supra. However, a trial may be had in the discretion of the federal court or judge hearing the new application. A way is left open to redress violations of the Constitution. See p. 447, supra. Moore v. Dempsey, 261 U. S. 86. Although they have the power, it is not necessary for federal courts to hold hearings on the merits, facts or law a second time when satisfied that federal constitutional rights have been protected. It is necessary to exercise jurisdiction to the extent of determining by examination of the record whether or not a hearing would serve the ends of justice. Cf. 28 U. S. C. § 2244. See n. 15, supra. As the state and federal courts have the same responsibilities to protect persons from violation of their constitutional rights, we conclude that a federal district court may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state prisoner where the legality of such detention has been determined, on the facts presented, by the highest state court with jurisdiction, whether through af-firmance of the judgment on appeal or denial of post-conviction remedies. See White v. Ragen, 324 U. S. 760, 764.
As will presently appear, this case involves no extraordinary situation. Since the complete record was before the District Court, there was no need for rehearing or taking of further evidence. Treating the state’s response to the application as a motion to dismiss, the court properly granted that motion. Discharge from conviction through habeas corpus is not an act of judicial clemency but a protection against illegal custody.
The need for argument is a matter of judicial discretion. All issues were adequately presented. There was no abuse.
IV. Disposition of Constitutional Issues.
Next we direct our attention to the records which were before the District Court in order to review that court’s conclusions that North Carolina accorded petitioners a fair adjudication of their federal questions. Questions of discrimination and admission of coerced confessions lie in the compass of the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Have petitioners received hearings consonant with standards accepted by this Nation as adequate to justify their convictions? Hebert v. Louisiana, 272 U. S. 312; Adamson v. California, 332 U. S. 46.
First. We take up Brown v. Allen, No. 32, a case that turns more generally than the others on the constitutional issues.
Petitioner, a Negro, was indicted on September 4, 1950, and tried in the North Carolina courts on a charge of rape, and, having been found guilty, he was sentenced to death on September 15, 1950. In the sentencing court petitioner made a timely motion to quash the bill of indictment, alleging discrimination against Negroes in the selection of grand jurors in contravention of the guarantees of the Fourteenth Amendment to the Federal Constitution. After the verdict, but before sentencing, petitioner, by a motion to set aside the verdict, sought to expand his constitutional attack on the selection of the grand jury to embrace the petit jury also. On appeal the State Supreme Court treated, as we do, petitioner’s motions as adequate to challenge the selection of both juries. 233 N. C. 202, 205-206, 63 S. E. 2d 99, 100-101. A second federal question was raised in the sentencing court when petitioner opposed admission into evidence of a confession which he alleged had been given involuntarily. Following sentencing, petitioner took an appeal to the State Supreme Court and there presented for review the issues of jury discrimination and admission of a coerced confession. On this appeal, that court had before it both a brief on behalf of petitioner and a transcript of all those portions of the sentencing court proceedings which petitioner deemed relevant to a review of his federal questions. Dealing with the federal constitutional questions on their merits, the State Supreme Court affirmed the conviction. State v. Brown, 233 N. C. 202, 63 S. E. 2d 99.
A. Petitioner’s charge of discrimination against Negroes in the selection of grand and petit jurors in violation of his constitutional rights attacks the operation of a method used by North Carolina in selecting juries in Forsyth County. The statutes detailing the method of selection are cited below. It is petitioner’s contention that no more than one or two Negroes at a time have ever served on a Forsyth County grand jury and that no more than five Negroes have ever previously served on a petit jury panel in the county. These contentions are the basis of the allegation that a system of discrimination is being employed against the Negro residents of the county. Petitioner offered no evidence to support his charge of limitation against the jury service of Negroes, except the fact that fewer Negroes than whites, having regard for their proportion of the population, appeared on the jury panels.
The 1940 Census shows the following figures in respect to the population of Forsyth County.
21 Plus Percent Population
50,499 66.5 White. 85,323 tO
25,057 33.5 Negro. 41,152 tq co*
Total. 126,475 100.0 75,556 100.0
According to the unchallenged testimony of the IBM Supervisor in the office of the Tax Supervisor of Forsyth County, a list of names is compiled from a tabulation of all the county property and poll taxpayers who make returns and is thereafter tendered to the County Commissioners for use in jury selection. All males between 21 and 50 years of age are required to list themselves for poll tax as well as to list their property. Gen. Stat. of North Carolina, Recompiled 1950, §§ 105-307, 105-341. In 1948, Winston Township, the most heavily populated in Forsyth County, had 7,659 white males and 2,752 colored males who listed polls. In the County of Forsyth outside Winston Township, 10,319 white males and 587 colored males listed polls. This indicates that Negroes number approximately 16% of the listed taxpayers. No figures appear in the record of the percentage of Negroes on the property tax lists.
In June 1949, a list of approximately 40,000 names compiled from all the tax lists was handed to the Commissioners by the office of the Tax Supervisor. There is uncontradicted testimony by the IBM Supervisor that the list of jurors was prepared without regard to color, and that it constituted a complete compilation of the names of all resident, adult, listed taxpayers of Forsyth County. Both the grand and petit jury panels employed in this case were drawn from that pool. All the names on that list and no others (the list having been cut up into individual slips of uniform size bearing only one person's name) were put into a jury box. The selection from the jury box of names of persons subject to a summons to serve as grand jurors in a term of court is made by lot, as is the selection of panels of persons subject to summons for duty on petit juries. As the drawings were made by a small child and recorded in public there is no claim or evidence of chicanery in the drawings.
Grand jurors in Forsyth County are selected in January and July for a six months' term. See c. 206, 1937 Public-Local Laws, as amended by c. 264, 1947 N. C. Session Laws, as amended by c. 577, 1949 N. C. Session Laws. A panel of 60 names is drawn from the jury box each December and June by a child in the presence of the County Commissioners. At the June 5, 1950, meeting of the Commissioners, 60 names were drawn. These 60 names constituted the panel of persons subject to summons for service on the grand jury which returned the indictment against petitioner. After such a drawing, a jury order is immediately prepared and given to the sheriff, who then summons all the parties he can find to appear for drawings for grand or petit jury service, as the case may be. All persons whose names were drawn were summoned if they could be found. Although there is no evidence as to how many persons were summoned by the sheriff, there is evidence to show that at least four or five Negroes were summoned. The final drawing for grand jury service is conducted in the courtroom in the presence of the Superior Court Judge. When the July 1950 grand jury was selected from the panel of 60, the drawing was again made by a child. The names of all the persons summoned by the sheriff were put into a special section of the jury box and the 18-man grand jury was then drawn. The name of one of the four or five Negroes summoned was drawn in the group of 18, and that Negro served on the grand jury. The remaining names are used for the petit jury panel.
When they are needed, petit jury panels in Forsyth County are drawn from the same jury box in groups of 44 persons. C. 206, Public-Local Laws, supra. After a drawing, the names are given to a deputy sheriff who then summons those persons on the list whom he can find. On the lists supplied to the deputies there are no indications as to whether the persons named are Negro or white. According to the statute all summoned persons must report for jury service. At the selection of the petit jurors for the trial of this case 8 of the 37 persons summoned on the panel were Negroes, as were 3 of a special venire of 20. Challenges, peremptory or for cause, eliminated all Negroes. No objections are made to the legality of these challenges. Uncontradicted evidence by a state witness shows that in the two years 1949 and 1950 the percentages of Negroes drawn on grand jury panels in Forsyth County varied between 7% and 10% of all persons drawn. In 1950 the percentage of Negroes drawn on petit jury panels varied between 9% and 17% of all persons drawn.
Prior to 1947, the jury list was composed of those taxpayers who had “paid all the taxes assessed against them for the preceding year.” N. C. Gen. Stat., 1943, § 9-1 ; cf. State v. Davis, 109 N. C. 780, 14 S. E. 55; State v. Dixon, 131 N. C. 808, 44 S. E. 944. This requirement has now been removed, as is shown by comparing the earlier statutes with the present wording of § 9-1 which was put into law in 1947. No change was made in the duty of all males between 21 and 50 to list their polls for assessment nor of the requirement for the county to collect an annual poll tax. Gen. Stat. §§ 105-307, 105-336, 105-339, 105-341; cf. State v. Brown, 233 N. C. 202, 205, 63 S. E. 2d 99, 100-101. The pool of eligible jurors was thus enlarged. This enlargement and the practice of selecting jurors under the new statute worked a radical change in the racial proportions of drawings of jurors in Forsyth County. As is shown by the record in this Court of Brunson v. North Carolina, 333 U. S. 851, tried in North Carolina in October, 1946, Forsyth County with its large Negro population, at that time had a jury pool of 10,622 white and 255 colored citizens. At that time a sheriff, then in office for 10 years, testified that he had summoned only about twelve Negroes for jury service in that time. In 1949, the jury box was purged. All those listing taxes and eligible were listed for jury service with the result in this case shown above.
Discriminations against a race by barring or limiting citizens of that race from participation in jury service are odious to our thought and our Constitution. This has long been accepted as the law. Brunson v. North Carolina, 333 U. S. 851; Cassell v. Texas, 339 U. S. 282, 286-287; State v. Peoples, 131 N. C. 784, 42 S. E. 814. Such discrimination is forbidden by statute, 18 U. S. C. § 243, and has been treated as a denial of equal protection under the Fourteenth Amendment to an accused, of the race against which such discrimination is directed. Neal v. Delaware, 103 U. S. 370. The discrimination forbidden is racial discrimination, however, directed to accomplish the result of eliminating or limiting the service of the proscribed race by statute or by practice. Smith v. Texas, 311 U. S. 128; Patton v. Mississippi, 332 U. S. 463. It was explained in 1880 by this Court, when composed of justices familiar with the evils the Amendment sought to remedy, as permitting a state to “confine the selection [of jurors] to males, to freeholders, to citizens, to persons within certain ages or to persons having educational qualifications.” Strauder v. West Virginia, 100 U. S. 303, 310. Cf. Franklin v. South Carolina, 218 U. S. 161, 167-168; Fay v. New York, 332 U. S. 261, 268-272. While discriminations worked by consistent exclusion have been rigorously dealt with, Neal v. Delaware, 103 U. S. 370; Carter v. Texas, 177 U. S. 442; Norris v. Alabama, 294 U. S. 587; Pierre v. Louisiana, 306 U. S. 354; Hill v. Texas, 316 U. S. 400; Patton v. Mississippi, 332 U. S. 463, variations in proportions of Negroes and whites on jury lists from racial proportions in the population have not been considered violative of the Constitution where they are explained and not long continued. Akins v. Texas, 325 U. S. 398, 403. Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. Texas, 311 U. S. 128. Nor can a race be proscribed as incompetent for service, Hill v. Texas, 316 U. S. 400.
Responsible as this Court is under the Constitution to redress the jury packing which Bentham properly characterized as a sinister species of art, Bentham, Elements of the Art of Packing as Applied to Special Juries, p. 6, it should not condemn good faith efforts to secure competent juries merely because of varying racial proportions.
The Supreme Court of North Carolina concluded that objection to the lists based on the racial composition of the tax lists was “far-fetched" and that it was not a racial discrimination when a list which included only taxpayers was used. State v. Brown, 233 N. C. 202, 63 S. E. 2d 99. We recognize the fact that these lists have a higher proportion of white citizens than of colored, doubtless due to inequality of educational and economic opportunities. While those who chose the names for the jury lists might have included names other than taxpayers, such action was not mandatory under state law. State v. Brown, 233 N. C. 202, 205, 63 S. E. 2d 99, 100. As only property and poll tax lists were used, see p. 467, supra, this case presents a jury selection as though limited by statute to all property owners and voters. We assume only reasonable tax levies were used. It is to be noted all males between 21 and 50 must list both property, however modest in amount, and polls, see pp. 467-468, supra, so that in that sense there is no exclusion on racial grounds. The name of every property owner and every voter is in the jury box. We recognize, too, that we are now reviewing a constitutional objection to a state court conviction, and we may not act to alter practices of a state which are short of a denial of equal protection or due process in the selection of juries. States should decide for themselves the quality of their juries as best fits their situation so long as the classifications have relation to the efficiency of the jurors and are equally administered.
Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. Short of an annual census or required population registration, these tax lists offer the most comprehensive source of available names. We do not think a use, nondiscriminatory as to race, of the tax lists violates the Fourteenth Amendment, nor can we conclude on the evidence adduced that the results of the use require a conclusion of unconstitutionality. Assuming that before the Brunson case, 333 U. S. 851, there were unconstitutional exclusions of Negroes in this North Carolina county, the present record does not show such exclusions in this case. The evidence is to the contrary. The District Court correctly determined this issue as to the grand jury. As both the grand and petit juries in this case were drawn from the same filling of the jury box, the reasoning of the District Court is applicable to the petit jury here involved.
B. Petitioner contends further that his conviction was procured in violation of the Fourteenth Amendment of the Federal Constitution because the trial judge permitted the jury to rely on a confession claimed by petitioner to be coerced in determining his guilt. At the trial petitioner registered timely objection to use by the state of his purported confessions. The objection having been made, the trial judge immediately excused the jury and ordered a preliminary examination to determine whether or not the statements were voluntary. It was in this preliminary hearing, in which the petitioner and two police officers testified, that the admitted facts were first developed upon which petitioner rests this phase of his case. After hearing the testimony, the trial judge found that the petitioner’s statements were freely and voluntarily given and declared them to be competent. Upon recall of the jury, the state introduced the statements in evidence, objections again being noted. Although the petitioner chose not to take the stand in the trial of his cause, his counsel, while cross-examining the officers who had taken the challenged statements from the petitioner, developed again for the jury all the facts upon which petitioner now relies.
A conviction by a trial court which has admitted coerced confessions deprives a defendant of liberty without due process of law. Brown v. Mississippi, 297 U. S. 278, 280, 286-287. When the facts admitted by the state show coercion, Ashcraft v. Tennessee, 327 U. S. 274, a conviction will be set aside as violative of due process. Chambers v. Florida, 309 U. S. 227. This is true even though the evidence apart from the confessions might have been sufficient to sustain the jury’s verdict. Malinski v. New York, 324 U. S. 401; see Lyons v. Oklahoma, 322 U. S. 596, 597.
Therefore, it does not matter in this case whether or not the jury was acquainted with all the facts laid before the judge upon which petitioner now relies or whether the jury heard or did not hear the petitioner testify. Neither does it matter that there possibly is evidence in the record independent of the confessions which could sustain the verdict. The mere admission of the confessions by the trial judge constituted a use of them by the state, and if the confessions were improperly obtained, such a use constitutes a denial of due process of law as guaranteed by the Fourteenth Amendment. In determining whether a confession has been used by the state in violation of the constitutional rights of a petitioner, a United States court appraises the alleged abuses by the facts as shown at the hearing or admitted on the record.
Petitioner’s contention that he had a constitutional right to have his statements excluded from the record rests upon these admitted facts. He is an illiterate. He was held after arrest for five days before being charged with the crime for which he was convicted. He was not given a preliminary hearing until 18 days after his arrest. No counsel was provided for him in the period of his detention. The alleged confessions were taken prior to the preliminary hearing and appointment of counsel. There is no record of physical coercion or of that less painful duress generated by prolonged questioning. There is evidence that petitioner was told he could remain silent and that any statement he might make could fee used against him. He chose to speak, and he made that choice without a promise of reward or immunity having been extended. He was never denied the right to counsel of his choice and was never without competent counsel from the inception of judicial proceedings. If the delay in the arraignment of petitioner was greater than that which might be tolerated in a federal criminal proceding, due process was not violated. Under the leadership of this Court a rule has been adopted for federal courts, that denies admission to confessions obtained before prompt arraignment notwithstanding their voluntary character. McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410. Cf. Allen v. United States, 91 U. S. App. D. C. 197, 202 F. 2d 329. This experiment has been made in an attempt to abolish the opportunities for coercion which prolonged detention without a hearing is said to enhance. But the federal rule does not arise from constitutional sources. The Court has repeatedly refused to convert this rule of evidence for federal courts into a constitutional limitation on the states. Gallegos v. Nebraska, 342 U. S. 55, 63-65. Mere detention and police examination in private of one in official state custody do not render involuntary the statements or confessions made by the person so detained. Petitioner’s constitutional rights were not infringed by the refusal of the trial court to exclude his confessions as evidence.
Second. We examine the constitutional issues in No. 22, Speller v. Allen.
Petitioner, a Negro, was indicted and in August, 1949, tried in the Superior Court of Bertie County, North Carolina, upon a charge of rape. He has been convicted and sentenced to death on this charge three times, the first two convictions having been set aside on appeal by the Supreme Court of North Carolina on the ground of discriminatory selection of jurors. State v. Speller, 229 N. C. 67, 47 S. E. 2d 537; 230 N. C. 345, 53 S. E. 2d 294. At this, his third trial, August Term 1949, petitioner made a timely motion to set aside the array of special veniremen called from Vance County, alleging discrimination against Negroes “solely and wholly on account of their race and/or color” in the selection of the veniremen in contravention of the guarantees of the Fourteenth Amendment of the Federal Constitution. (Transcript of Record, State v. Speller, August Term 1949, Bertie N. C. Superior Court at 12, Item 91, Clerk’s Record, Supreme Court of the United States.) Evidence was taken at length on this issue, although some evidence deemed material by petitioner was excluded. In particular, the trial judge, on the ground that it would be immaterial, infra, p. 480, refused to permit petitioner to produce evidence as to all the scrolls in the jury box for the purpose of showing the existence of dots on the scrolls bearing the names of Negroes. The jury box was produced in court, opened, and counsel for defendant permitted to examine the scrolls. The trial judge made findings relating to the manner of selecting the veniremen, determining that no discrimination was practiced, and on these findings denied the motion to set aside the array. Petitioner was thereafter convicted for the third time, and sentenced to death.
On appeal petitioner asserted that his conviction violated the Equal Protection Clause of the Fourteenth Amendment, assigning the denial of his motion to set aside the array as error, and also assigning as error the trial court’s ruling on his request for permission to examine into all the scrolls in the jury box. The Supreme Court of North Carolina had before it on that appeal as part of the record a mimeographed, narrative-style transcript of the entire proceedings below; petitioner makes no objection to the absence of any relevant evidence on that appeal, except that relating to all the scrolls which had been excluded by the trial court. Upholding the rulings of the trial court, the Supreme Court of North Carolina affirmed the conviction, 231 N. C. 549, 57 S. E. 2d 759.
Petitioner filed this petition for a writ of habeas corpus in the Federal District Court for the Eastern District of North Carolina after we denied certiorari on direct review of the state proceedings. The petition summarily recited the prior history of the litigation, and raised again the same federal question which had been passed upon by both North Carolina courts, and which had been offered to this Court on petition for certiorari, racial discrimination. The District Court heard all additional evidence the petitioner offered. This was in its discretion. Moore v. Dempsey, 261 U. S. 86; Dorr v. Burford, 339 U. S., at 214, cases which establish the power of federal district courts to protect the constitutional rights of state prisoners after the exhaustion of state remedies. It better enabled that court to determine whether any violation of the Fourteenth Amendment occurred.
Petitioner’s charge of discrimination against Negroes in the selection of petit jurors in violation of his constitutional rights attacks the operation of the system used by the North Carolina authorities to select juries in Vance County, from which county a special venire was obtained to try petitioner. The charge rests on petitioner’s contentions (1) that no Negro within recent years had served on a jury in Vance County before this case, (2) that no Negro had been summoned to serve on a jury before this case, and (3) that the jury box in this case was so heavily loaded with names of white persons that the drawing could not fairly reflect a cross-section of those persons in the community qualified for jury service. Petitioner offered evidence to support each of these three contentions.
The evidence establishes the correctness of contentions (1) and (2). They are inapplicable to this case, however, under the circumstances of the filling of this particular jury box. As is pointed out in Brown v. Allen, supra, at page 470, North Carolina in 1947 enlarged its pool of citizens eligible for jury service. General Statutes, North Carolina, § 9-1. In Vance County, where the special venire for Speller’s trial was drawn, the names of substantial numbers of Negroes appeared thereafter in the jury box. 145 Negroes out of a total of 2,126 names were in this jury box. As this venire was the first-drawing of jurors from the box after its purge in July 1949, following the new statute and Brunson v. North Carolina, 333 U. S. 851, decided here March 15, 1948, the long history of alleged discrimination against its Negro citizens by Vance County jury commissioners is not decisive of discrimination in the present case. Former errors cannot invalidate future trials. Our problem is whether this venire was drawn from a jury box invalidly filled as to Speller because names were selected by discriminating against Negroes “solely on account of race and/or color.” It is this particular box that is decisive, cf. Cassell v. Texas, 339 U. S. 282, 290 and 295. Past practice is evidence of past attitude of mind. That attitude is shown to no longer control the action of officials by the present fact of colored citizens’ names in the jury box.
It is suggested that the record shows that the names of colored persons in the jury box were marked with a dot or period on the scroll. This could be used for unlawful disposition of such scrolls when drawn. Such a scheme would be useless in the circumstances of this case. The record shows that the defendant and his counsel were present when the venire was drawn by a child, aged 5. All of the names drawn were given to the sheriff'and summonses were issued. As a matter of fact the special venire contained the names of seven Negroes. Four appeared. None sat as jurors. Therefore the assertion as to the dots, even if true, means no more than that some unknown person desired to interfere with the fair drawing of juries in Vance County. The trial court found against petitioner on this question. The District Court pointed out its immateriality. 99 F. Supp., at 97.
This box was filled by names selected by the clerk of the jury commissioners and corrected by the commissioners. The names put in were substantially those selected by the clerk, who chose them from those on the tax lists who had “the most property.” The clerk testified no racial discrimination entered into his selection. Since the effect of this possible objection to the selection of jurors on an economic basis was not raised or developed at the trial, on appeal to the State Supreme Court, on the former certiorari to this Court, or in the petition or brief on the present certiorari to this Court, it is not open to consideration here. Such an important national asset as state autonomy in local law enforcement must not be eroded through indefinite charges of unconstitutional actions.
As we have stated above in discussing the Brown case, page 473, et seq., supra, our conclusion that selection of prospective jurors may be made from such tax lists as those required under North Carolina statutes without violation of the Federal Constitution, this point needs no further elaboration. The fact that causes further consideration in this case of the selection of prospective jurors is that the tax lists show 8,233 individual taxpayers in Vance County of whom 3,136 or 38% are Negroes. In the jury box involved, selected from that list, there were 2,126 names. Of that number 145 were Negroes, 7%. This disparity between the races would not be accepted by this Court solely on the evidence of the clerk of the commissioners that he selected names of citizens of “good moral character and qualified to serve as jurors, and who had paid their taxes.” It would not be assumed that in Vance County there is not a much larger percentage of Negroes with qualifications of jurymen. The action of the commissioners’ clerk, however, in selecting those with “the most property,” an economic basis not attacked here, might well account for the few Negroes appearing in the box. Evidence of discrimination based solely on race in the selection actually made is lacking.
The trial and district courts, after hearing witnesses, found no racial discrimination in the selection of the prospective jurors. The conviction was upheld as nondiscriminatory by the State Supreme Court, which had once acted to reverse a conviction of this defendant by a jury deemed tainted with racial discrimination, State v. Speller, 229 N. C. 67, 47 S. E. 2d 537, and again to reverse a conviction when adequate time for investigation of discrimination had not been given. State v. Speller, 230 N. C. 345, 53 S. E. 2d 294. It would require a conviction, by this Court, of violation of equal protection through racial discrimination to set aside this trial. Our delicate and serious responsibility of compelling state conformity to the Constitution by overturning state criminal convictions, should not be exercised without clear evidence of violation.
Disregarding, as we think we should, the clerk’s unchallenged selections based on taxable property, there is no evidence of racial discrimination. Negroes’ names now appear in the jury box. If the requirement of comparative wealth is eliminated, and the statutory standards employed, the number would increase to the equality justified by their moral and educational qualification for jury service as compared with the white race. We do not think the small number, by comparison, of Negro names in this one jury box, is, in itself, enough to establish racial discrimination.
Third. We have the problems presented by No. 20, Daniels v. Allen. The two petitioners, Negroes, were indicted and convicted in the North Carolina courts on a charge of murder. Their trial in the Superior Court of Pitt County resulted in a verdict of guilty, and each petitioner was thereafter sentenced to death. There is no issue over guilt under the evidence introduced. In addition to the objections stated above at p. 453 — discrimination in jury lists, coerced confessions and refusal to hear on the merits- — there is also objection here to the procedure for determination of the voluntariness of the confessions. As the failure to serve the statement of the case on appeal seems to us decisive, we do not discuss in detail the other constitutional issues tendered and only-point out that they were resolved against the petitioners by the sentencing state court and the Federal District Court after full hearing of the evidence offered. It is also to be noted that the Supreme Court of North Carolina refused certiorari to review the alleged invasions of constitutional rights by the sentencing court and two efforts of petitioners to secure an order permitting them to apply for coram nobis. The writ of coram nobis is available in North Carolina to test constitutional rights extraneous of the record. In re Taylor, 230 N. C. 566, 53 S. E. 2d 857. In the first coram nobis case the Court said, speaking of its refusal of certiorari:
“Counsel for petitioners were advised, however, that petition might be filed here for permission to apply to the Superior Court of Pitt County, where the cause was tried, for a writ of error coram nobis, through which, if allowed there, they might be heard on the main features on which they asked for relief, which included matters dehors the record, and that appeal would lie to the Supreme Court in the event of its unfavorable action. S. v. Daniels, supra; In re Taylor (230 N. C.), supra; In re Taylor (229 N. C.), supra.
“The defendants now file a petition for permission to apply to the Superior Court for such a writ. Their petition does not make a prima jade showing of substance which is necessary to bring themselves within the purview of the writ.” 231 N. C. 341, 56 S. E. 2d 646, 647.
After the refusal of the first coram nobis petition, the Supreme Court of North Carolina dismissed petitioners’ attempted appeal on the record proper on the ground that no case on appeal had been filed. 231 N. C. 509, 57 S. E. 2d 653; Rule 17, 4 N. C. Gen. Stat., App.; id., Vol. 1, § 1-282. Such action accords with well-settled practice in that state. “Rules requiring service to be made of case on appeal within the allotted time are mandatory.” 231 N. C. 17, 24, 56 S. E. 2d 2, 7. They are applied alike to all appellants. The first application for certiorari to this Court raised federal constitutional objections to the judgments of the Supreme Court of North Carolina on both direct and collateral attack by certiorari and coram nobis on the judgment of the trial court. 339 U. S. 954.
The failure to perfect the appeal came in this way. Upon the coming in of the verdict on June 6, 1949, the petitioners several times moved for a new trial, in each motion reiterating one or the other of the aforementioned federal questions. These motions were denied, and the trial court pronounced its sentence. Petitioners excepted to the judgments and noted appeals therefrom to the State Supreme Court. In response to petitioners’ notice, the trial judge granted petitioners 60 days in which to make and serve a statement of the case on appeal. When counsel failed to serve this statement until 61 days had expired, the trial judge struck the appeal as out of time. This action precluded an appeal as of right to the State Supreme Court.
This situation confronts us. North Carolina furnished a criminal court for the trial of those charged with crime. Petitioners at all times had counsel, chosen by themselves and recognized by North Carolina as competent to conduct the defense. In that court all petitioners’ objections and proposals whether of jury discrimination, admission of confessions, instructions or otherwise were heard and decided against petitioners. The state furnished an adequate and easily-complied-with method of appeal. This included a means to serve the statement of the case on appeal in the absence of the prosecutor from his office. State v. Daniels, 231 N. C. 17, 24, 56 S. E. 2d 2, 7. Yet petitioners’ appeal was not taken and the State of North Carolina, although the full trial record and statement on appeal were before it, refused to consider the appeal on its merits.
The writ of habeas corpus in federal courts is not authorized for state prisoners at the discretion of the federal court. It is only authorized when a state prisoner is in custody in violation of the Constitution of the United States. 28 U. S. C. § 2241. That fact is not to be tested by the use of habeas corpus in lieu of an appeal. To allow habeas corpus in such circumstances would subvert the entire system of state criminal justice and destroy state energy in the detection and punishment of crime.
Of course, federal habeas corpus is allowed where time has expired without appeal when the prisoner is detained without opportunity to appeal because of lack of counsel, incapacity, or some interference by officials. Also, this Court will review state habeas corpus proceedings even though no appeal was taken, if the state treated habeas corpus as permissible. Federal habeas corpus is available following our refusal to review such state habeas corpus proceedings. Failure to appeal is much like a failure to raise a known and existing question of unconstitutional proceeding or action prior to conviction or commitment. Such failure, of course, bars subsequent objection to conviction on those grounds.
North Carolina has applied its law in refusing this out-of-time review. This Court applies its jurisdictional statute in the same manner. Preston v. Texas, 343 U. S. 917, 933; cf. Paonessa v. New York, 344 U. S. 860, certiorari denied because “application therefor was not made within the time provided by law.” We cannot say that North Carolina’s action in refusing review after failure to perfect the case on appeal violates the Federal Constitution. A period of limitation accords with our conception of proper procedure.
Finally, federal courts may not grant habeas corpus for those convicted by the state except pursuant to § 2254. See note 17, supra. See also note 2, supra. We have interpreted § 2254 as not requiring repetitious applications to state courts for collateral relief, p. 447, supra, but clearly the state’s procedure for relief must be employed in order to avoid the use of federal habeas corpus as a matter of procedural routine to review state criminal rulings. A failure to use a state’s available remedy, in the absence of some interference or incapacity, such as is referred to just above at notes 32 and 33, bars federal habeas corpus. The statute requires that the applicant exhaust available state remedies. To show that the time has passed for appeal is not enough to empower the Federal District Court to issue the writ. The judgment must be affirmed.
We have spoken in this opinion of the change of practice in North Carolina in the selection of jurors. Our conclusions have been reached without regard to earlier incidents not connected with these juries or trials that suggest past discriminations. Since the states are the real guardians of peace and order within their boundaries, it is hoped that our consideration of these records will tend to clarify the requirements of the Federal Constitution in the selection of juries. Our Constitution requires that jurors be selected without inclusion or exclusion because of race. There must be neither limitation nor representation for color. By that practice, harmony has an opportunity to maintain essential discipline, without that objectionable domination which is so inconsistent with our constitutional democracy.
The judgments are affirmed.
Mr. Justice Jackson concurs in this result for the reasons stated in a separate opinion. [See post, pp. 532, 548.]
Mr. Justice Burton and Mr. Justice Clark adhere to their position as stated in Darr v. Burford, 339 U. S. 200, at 219. They believe that the nature of the proceeding upon a petition for certiorari is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted.
They join in the judgment of the Court in these cases and they concur in the opinion of the Court except insofar as it may contain, in Part II, Subdivision A (pp. 456-457), or elsewhere, any indication that, although the reasons for a denial of certiorari be not stated, those reasons nevertheless may be inferred from the record. They also recognize the propriety of the considerations to which Mr. Justice Frankfurter invites the attention of a federal court when confronted with a petition for a writ of habeas corpus under the circumstances stated.
Mr. Justice Frankfurter.
The course of litigation in these cases and their relevant facts are set out in Mr. Justice Reed's opinion. This opinion is restricted to the two general questions which must be considered before the Court can pass on the specific situations presented by these cases. The two general problems are these:
I. The legal significance of a denial of certiorari, in a case required to be presented here under the doctrine of Darr v. Burford, 339 U. S. 200, when an application for a writ of habeas corpus thereafter comes before a district court.
II. The bearing that the proceedings in the State courts should have on the disposition of such an application in a district court.
I.
Darr v. Burford sheds no light on the effect a district court is to give our denial of certiorari in one of these cases. That decision was expressly limited to ruling that “ordinarily” the certiorari jurisdiction of this Court must be invoked in an attempt to secure review of a State court’s refusal of relief prior to an application for habeas corpus in a district court. Darr v. Burford, 339 U. S., at 201, 214. The fact that two members of the necessary majority in Darr v. Burford deemed it appropriate to disavow concurrence in any “indication” in the Court’s opinion that any effect is to be given to the denial of certiorari emphasizes that no such ruling can be attributed to Darr v. Burford. It was the view of Mr. Justice Burton and Mr. Justice Clark “that the nature of the proceeding is such that, when the reasons for a denial of certiorari are not stated, the denial should be disregarded in passing upon a subsequent application for relief, except to note that this source of possible relief has been exhausted.” Darr v. Burford, supra, at 219. Of course, when the reasons are given, the decision to deny will have the effect indicated by the reasons stated. But we know best how puzzling it often would be to state why the Court denied certiorari even when we are parties to the denial.
In the three cases now here from the Fourth Circuit, the Court of Appeals relied heavily on our denial of certiorari in ruling against applications for federal habeas corpus by State prisoners. Its opinion in No. 20 relies on, and the per curiam decision in Nos. 22 and 32 quotes, an earlier decision by that court based on an express assumption that if this Court had thought that the record showed a denial of constitutional rights, cer-tiorari would have been granted. Stonebreaker v. Smyth, 163 F. 2d 498, 499.
If we were to sanction a rule directing the District Courts to give any effect to a denial of certiorari, let alone the effect of res judicata which is the practical result of the position of the Fourth Circuit, we would be ignoring actualities recognized ever since certiorari jurisdiction was conferred upon this Court more than sixty years ago.
From its inception certiorari jurisdiction has been treated for what it is in view of the function that it was devised to serve. It was designed to permit this Court to keep within manageable proportions, having due regard to the conditions indispensable for the wise adjudication of those cases which must be decided here, the business that is allowed to come before us. By successive measures Congress enlarged the discretionary jurisdiction of the Court until, by the Judiciary Act of 1925, supplemented by the Court’s own invention of the jurisdictional statement in relation to the narrow scope of residual appeals, the Court became complete master of its docket. The governing consideration was authority in the Court to decline to review decisions which, right or wrong, do not present questions of sufficient gravity. Whatever the source of these questions, whether the common law, statutes or the Constitution, other cases of obvious gravity are more than enough to absorb the Court’s time and thought. Cf. Hamilton Shoe Co. v. Wolf Brothers, 240 U. S. 251, 258.
It is within the experience of every member of this Court that we do not have to, and frequently do not, reach the merits of a case to decide that it is not of sufficient importance to warrant review here. Thirty years ago the Court rather sharply reminded the Bar not to draw strength for lower court opinions from the fact that they were left unreviewed here. “The denial of a writ of certiorari imports no expression of opinion upon the merits of the case, as the bar has been told many times.” United States v. Carver, 260 U. S. 482, 490. We have repeatedly indicated that a denial of certiorari means only that, for one reason or another which is seldom disclosed, and not infrequently for conflicting reasons which may have nothing to do with the merits and
Question: What is the issue of the decision?
01. involuntary confession
02. habeas corpus
03. plea bargaining: the constitutionality of and/or the circumstances of its exercise
04. retroactivity (of newly announced or newly enacted constitutional or statutory rights)
05. search and seizure (other than as pertains to vehicles or Crime Control Act)
06. search and seizure, vehicles
07. search and seizure, Crime Control Act
08. contempt of court or congress
09. self-incrimination (other than as pertains to Miranda or immunity from prosecution)
10. Miranda warnings
11. self-incrimination, immunity from prosecution
12. right to counsel (cf. indigents appointment of counsel or inadequate representation)
13. cruel and unusual punishment, death penalty (cf. extra legal jury influence, death penalty)
14. cruel and unusual punishment, non-death penalty (cf. liability, civil rights acts)
15. line-up
16. discovery and inspection (in the context of criminal litigation only, otherwise Freedom of Information Act and related federal or state statutes or regulations)
17. double jeopardy
18. ex post facto (state)
19. extra-legal jury influences: miscellaneous
20. extra-legal jury influences: prejudicial statements or evidence
21. extra-legal jury influences: contact with jurors outside courtroom
22. extra-legal jury influences: jury instructions (not necessarily in criminal cases)
23. extra-legal jury influences: voir dire (not necessarily a criminal case)
24. extra-legal jury influences: prison garb or appearance
25. extra-legal jury influences: jurors and death penalty (cf. cruel and unusual punishment)
26. extra-legal jury influences: pretrial publicity
27. confrontation (right to confront accuser, call and cross-examine witnesses)
28. subconstitutional fair procedure: confession of error
29. subconstitutional fair procedure: conspiracy (cf. Federal Rules of Criminal Procedure: conspiracy)
30. subconstitutional fair procedure: entrapment
31. subconstitutional fair procedure: exhaustion of remedies
32. subconstitutional fair procedure: fugitive from justice
33. subconstitutional fair procedure: presentation, admissibility, or sufficiency of evidence (not necessarily a criminal case)
34. subconstitutional fair procedure: stay of execution
35. subconstitutional fair procedure: timeliness
36. subconstitutional fair procedure: miscellaneous
37. Federal Rules of Criminal Procedure
38. statutory construction of criminal laws: assault
39. statutory construction of criminal laws: bank robbery
40. statutory construction of criminal laws: conspiracy (cf. subconstitutional fair procedure: conspiracy)
41. statutory construction of criminal laws: escape from custody
42. statutory construction of criminal laws: false statements (cf. statutory construction of criminal laws: perjury)
43. statutory construction of criminal laws: financial (other than in fraud or internal revenue)
44. statutory construction of criminal laws: firearms
45. statutory construction of criminal laws: fraud
46. statutory construction of criminal laws: gambling
47. statutory construction of criminal laws: Hobbs Act; i.e., 18 USC 1951
48. statutory construction of criminal laws: immigration (cf. immigration and naturalization)
49. statutory construction of criminal laws: internal revenue (cf. Federal Taxation)
50. statutory construction of criminal laws: Mann Act and related statutes
51. statutory construction of criminal laws: narcotics includes regulation and prohibition of alcohol
52. statutory construction of criminal laws: obstruction of justice
53. statutory construction of criminal laws: perjury (other than as pertains to statutory construction of criminal laws: false statements)
54. statutory construction of criminal laws: Travel Act, 18 USC 1952
55. statutory construction of criminal laws: war crimes
56. statutory construction of criminal laws: sentencing guidelines
57. statutory construction of criminal laws: miscellaneous
58. jury trial (right to, as distinct from extra-legal jury influences)
59. speedy trial
60. miscellaneous criminal procedure (cf. due process, prisoners' rights, comity: criminal procedure)
Answer: |
sc_partywinning | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether the petitioning party (i.e., the plaintiff or the appellant) emerged victorious. The victory the Supreme Court provided the petitioning party may not have been total and complete (e.g., by vacating and remanding the matter rather than an unequivocal reversal), but the disposition is nonetheless a favorable one. Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case.
ALLEN, CHAIRMAN, TWELFTH REGION WAGE STABILIZATION BOARD, et al. v. GRAND CENTRAL AIRCRAFT CO.
No. 450.
Argued March 11-12, 1954.
Decided May 24, 1954.
Robert L. Stern argued the cause for appellants. With him on the brief were Solicitor General Sobelojf, Assistant Attorney General Burger, Samuel D. Slade, Herman Marcuse and Charles H. Kendall.
Richard W. Lund argued the cause for appellee. With him on the brief were Dana Latham and Paul R. Watkins.
Mr. Justice Burton
delivered the opinion of the Court.
The principal question for decision is whether the Defense Production Act of 1950 authorized the President to apply administrative action to the enforcement of its wage stabilization provisions. For the reasons hereafter stated, we decide that it did.
There is here also the question whether such administrative enforcement may be applied even after the restrictions placed on wages under Title IV of the Act have expired, provided the enforcement is limited to violations antedating such expiration. Our answer is in the affirmative.
Appellee further claims that the pending administrative proceeding should be enjoined because the mere conduct of that proceeding might cause it irreparable damage. For the reasons given below, we find that argument untenable.
]Appellee, Grand Central Aircraft Company, is a California corporation which was engaged, in 1951, in the production and repair of aircraft equipment in Glendale, California, and Tucson, Arizona. November 4, 1952, the Wage Stabilization Board filed a complaint with the National Enforcement Commission alleging in substance that appellee, between January 26, 1951, and January 1, 1952, had paid wage increases in violation of an order freezing wages at the levels of January 25, 1951. Those payments consisted of wages totaling about $5,500,000, including about $750,000 alleged to have been in excess of the wage ceilings. January 14, 1953, the National Enforcement Commission appointed Phil C. Neal to hear the evidence as an Enforcement Commissioner and to recommend to the Commission a determination of the issues in the proceeding. He set the case for hearing on February 24 at Los Angeles, California, but further action was enjoined, as stated below, so that the proceeding is still pending at that stage.
February 13, 1953, appellee filed the instant suit in the United States District Court for the Northern District of California, Southern Division. Appellee asked the court to restrain the defendant members of the Wage Stabilization Board, the National Enforcement Commission, officials of the Twelfth Region Wage Stabilization Board, and the Enforcement Commissioner, from proceeding with the administrative hearing. Only the regional officials and the Enforcement Commissioner were served. In its complaint, appellee denied that it had violated the Defense Production Act or any regulation or order under it. Appellee claimed also that the administrative procedure then being followed was unauthorized by the Constitution or any statute and that, even if originally authorized, that authorization had now expired. Finally, appellee claimed the hearing should be enjoined because the mere conduct of the proceeding would inflict irreparable damage upon it. A three-judge District Court, convened under 28 U. S. C. (1952 ed.) § 2282, granted the restraining order and interlocutory injunction sought by appellee against further conduct of the administrative proceeding. After hearing and trial, the injunction was made permanent. 114 F. Supp. 389. The order was then appealed to this Court under 28 U. S. C. (1952 ed.) § 1253. Stay of the injunction was denied, two Justices dissenting and one not participating. 345 U. S. 988. Probable jurisdiction of the appeal was noted. 346 U.S.920.
A somewhat comparable case was decided by a three-judge United States District Court for the Northern District of Texas in favor of an employer June 14, 1953, in Jonco Aircraft Cory. v. Franklin, 114 F. Supp. 392, with Chief Circuit Judge Hutcheson dissenting. That judgment was reversed by this Court, -per curiam, for failure of appellee to exhaust its administrative remedy. 346 U. S. 868.
I.
We consider first the claim to injunctive relief which appellee made on the ground that the conduct of the proposed administrative hearings would cause it irreparable damage by weakening its bank credit and depriving it of essential working capital. On that basis, interlocutory relief was granted pending the court’s determination of the ultimate issue of the validity of the administrative procedure. That injunction has been made permanent but the Government, on behalf of appellants, contends that appellee is acting prematurely in seeking such relief before carrying the prescribed administrative procedure at least to the point where it faces some immediate compulsion and greater probability of damage than it has established.
The proposed hearings are to be held before an Enforcement Commissioner with authority merely to recommend findings to a Regional Enforcement Commission subject to review by the National Enforcement Commission. Those findings may show no violation of wage ceilings. At most, they will be concerned with appellee’s alleged payment of wages in excess of wage ceilings to an extent of about $750,000. If such a violation of the ceilings is found by the National Enforcement Commission, it may then, under § 405 (b) of the Defense Production Act of 1950 and the President's delegated authority, certify to governmental agencies, including the Bureau of Internal Revenue for income-tax purposes, the disal-lowance of all or part of appellee’s illegal wage payments. Appellee argues that such proceedings carry the possibility of the disallowance as a business expense, for income-tax purposes, of $750,000, more or less, up to the total wages paid, exceeding $5,500,000. Appellee contends also that the mere threat of such action would jeopardize the bank credit upon which it depends for essential working capital. There is grave doubt of the right of appellee thus to test the validity of administrative procedure before exhausting it or bringing the issues closer to a focus than it has done. However, it is clear that once the right of the Government to hold administrative hearings is established, a litigant cannot enjoin them merely because they might jeopardize his bank credit or otherwise be inconvenient or embarrassing. Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752, 777-779. “[T]he expense and annoyance of litigation is ‘part of the social burden of living under government.’ ” Petroleum Exploration, Inc. v. Public Service Commission, 304 U. S. 209, 222. See also, Myers v. Bethlehem Corp., 303 U. S. 41, 47; Chicago & Southern Air Lines v. Waterman Corp., 333 U. S. 103, 112-113; Franklin v. Jonco Aircraft Corp., per curiam, 346 U. S. 868.
It is appellee’s principal claim that there is no properly authorized administrative procedure for it to exhaust and that the administrative authorities who seek to determine its case have no lawful right to do so. We, therefore, go directly to the heart of this controversy, which is the question whether the administrative enforcement of the 1950 yjage stabilization program has been validly authorized. /
II.
The procedure in question is prescribed by General Procedural Regulation 1, Revised, issued by the Economic Stabilization Administrator, August 21, 1952, 17 Fed. Reg. 7737. The hearings are to be conducted regionally by an Enforcement Commissioner and provision is made for appeal to the National Enforcement Commission. That Commission (NEC) is authorized to issue a certificate of disallowance prescribing the amount of wages to be disregarded by the executive departments and other governmental agencies in determining the costs and expenses of appellee for the purposes of any other law or regulation. ESA Gen. Order No. 18, July 28, 1952, 17 Fed. Reg. 6925. Standards of action are prescribed by the Economic Stabilization Administrator in his General Order No. 15, April 3, 1952, 17 Fed. Reg. 2994. Appellee does not complain of noncompliance with these regulations. It complains rather that they are not authorized by statute or that, if purporting to be so authorized, the statute violates the Federal Constitution.
The Government finds authority for the creation of this administrative machinery in § 405 (b) of the Defense Production Act of 1950, when read in connection with the entire Act. That section is derived from § 5 (a) of the Stabilization Act of 1942, 56 Stat. 767, 50 U. S. C. App. (1946 ed.) § 965 (a). To read the Defense Production Act of 1950 without reference to this model is to read it out of the context in which Congress enacted it.
The Stabilization Act of 1942 was a vital wartime measure, adopted October 2, 1942, directing the President “on or before November 1, 1942, to issue a general order stabilizing prices, wages, and salaries, affecting the cost of living.” In it, Congress relied upon presidential action geared to the critical necessity for speedy compliance. Its purpose was to check inflation. It subordinated individual convenience to nationwide standards. Its sanctions were entrusted to administrative agencies capable of prompt action. Section 5 (a) provided that—
“No employer shall pay, and no employee shall receive, wages or salaries in contravention of the regulations promulgated by the President under this Act. The President shall also prescribe the extent to which any wage or salary payment made in contravention of such regulations shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any employer for the purposes of any other law or regulation.” 56 Stat. 767, 50 U. S. C. App. (1946 ed.) § 965 (a).
The Act granted the President broad powers to promulgate regulations. October 3, 1942, he issued Executive Order No. 9250, 7 Fed. Reg. 7871, “to control so far as possible the inflationary tendencies and the vast dislocations attendant thereon which threaten our military-effort and our domestic economic structure, and for the more effective prosecution of the war.” That order established an Office of Economic Stabilization, headed by an Economic Stabilization Director. In Title II it established a national “Wage and Salary Stabilization Policy.” This placed wage rates under the control of the National War Labor Board and froze them generally at the levels prevailing September 15, 1942. In Title III it authorized the National War Labor Board to issue rules and regulations “for the speedy determination of the propriety of any wage increases or decreases in accordance with this Order.” It thus established administrative processes for making specific determinations of wages paid in contravention of the Act. The same processes also enabled the Government, through other agencies, to disregard such illegal payments when computing taxes, compensation under cost-plus contracts and other governmental transactions.
October 27, 1942, James F. Byrnes, the Economic Stabilization Director, with the personal approval of the President, issued the regulations which later were to serve as the model for the regulations now before us. They delegated to the National War Labor Board authority to certify, to all executive departments and other agencies of the Government, disallowances of payments of wages based upon the Board’s determination of their violation of the Act.
July 30, 1943, the Board adopted rules to govern its procedures and those of Regional War Labor Boards in dealing with violation of the wage stabilization program. Those regulations likewise are comparable to the ones involved in this case. 9 Fed. Reg. 4681 et seg.
Nearly 100,000 proceedings were thus held and disal-lowances of nearly $30,000,000 were made up to February 24, 1947, Those proceedings were matters of general public knowledge and were well known to Congress. They support the natural presumption that Congress, in its subsequent actions, accepted them as legitimate interpretations of the Stabilization Act. Shapiro v. United States, 335 U. S. 1, 16; Helvering v. Winmill, 305 U. S. 79, 82-83; Norwegian Nitrogen Co. v. United States, 288 U. S. 294, 310-315; Hecht v. Motley, 265 U. S. 144, 153.
Under the Act of 1942, the President thus determined, through his administrative agencies, many specific violations of the prescribed wage ceilings. It was the practice of those administrative agencies to certify to other departments and agencies specific disallowances of the wages paid in violation of such ceilings. See Troy Laundry Co. v. Wirtz, 155 F. 2d 53; Woodworth Co. v. Kavanagh, 102 F. Supp. 9, aff’d, 202 F. 2d 154.
A comparison of the terms of the Act of 1942 with those of the Defense Production Act of September 8, 1950, and a comparison of the regulations and practice under those Acts is impressive.
Section 405 (b) of the later Act is as follows:
“No employer shall pay, and no employee shall receive, any wage, salary, or other compensation in contravention of any regulation or order promulgated by the President under this title. The President shall also prescribe the extent to which any wage, salary, or compensation payment made in contravention of any such regulation or order shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any employer for the purposes of any other law or regulation.” 64 Stat. 807, 50 U. S. C. App. (1946 ed., Supp. V) § 2105 (b).
It follows, almost word for word, the language of § 5 (a) of the earlier Act, supra, at p. 542. While it substitutes the phrase “any wage, salary, or other compensation” in place of “wages or salaries,” and the phrase “any regulation or order” in place of “the regulations,” the substance of the two sections is inescapably the same.
The Act of 1950 granted the President broad powers to make regulations under it and to delegate the authority conferred upon him by it. His orders and regulations follow the pattern of the earlier ones. September 9, 1950, he issued Executive Order No. 10161, 15 Fed. Reg. 6105, 6106, Part IV of which created a new agency known as the Economic Stabilization Agency, headed by an Economic Stabilization Administrator. To him the President delegated responsibility for wage stabilization. He established, within such agency, a Wage Stabilization Board with functions to be determined by the Administrator. January 24,1951, Eric Johnston, then the Administrator, delegated to that Board his functions of wage stabilization. ESA Gen. Order No. 3, 16 Fed. Reg. 739. January 26, he froze wages generally at the levels prevailing January 25. Gen. Wage Stabilization Regulation No. 1, 16 Fed. Reg. 816.
Enforcement under the Act of 1950 thus closely resembled enforcement under the Act of 1942. June 13, the Wage Stabilization Board established a National Enforcement Commission and authorized the establishment of Regional Enforcement Commissions. Such Commissions were authorized to make determinations of wage violations and the disallowances of specific wage payments under §405 (b). Those determinations were to be “conclusive for the purpose therein stated. The executive departments and other agencies of the government which receive certifications of such determinations shall disregard and disallow the amount thus certified.” WSB Enforcement Resolution No. 1, § 1 (c), 16 Fed. Reg. 6028, 6029. June 28, this procedure was further described in a resolution of the War Stabilization Board. 16 Fed. Reg. 7284.
April 3, 1952, the Economic Stabilization Administrator, in General Order No. 15, 17 Fed. Reg. 2994, prescribed the standards to be followed in making dis-allowances, including a recognition of extenuating and mitigating circumstances.
Effective July 30, 1952, § 403 (b) of the Act was amended to establish a new Wage Stabilization Board. 66 Stat. 300-301. Its functions were defined by the Economic Stabilization Administrator in ESA General Order No. 16, 17 Fed. Reg. 6925. On the same day, he issued ESA General Order No. 18, 17 Fed. Reg. 6925, defining the functions of the National Enforcement Commission. The order covered the Commission’s authority to determine and certify specific disallowances in accordance with the standards prescribed in General Order No. 15, supra. The language and substance is obviously reminiscent of that under the Act of 1942.
The legislative history confirms the parallel nature of the two programs. The occasion for the Act of 1950 was the recurring need to check inflation. The military-demands in Korea and elsewhere in 1950 made it necessary to maintain a large production of military goods while seeking also to meet the long-denied and increasing needs of the Nation’s civil economy. The 1950 Act expressly declared its purpose. Congress reenacted, on a temporary basis, the emergency powers of the President which had been effective during World War II.
The Senate Report on the 1950 bill expressly said:
“This subsection [405 (b)] adopts the language of the Stabilization Act of October 2, 1942, respecting the penalties to be applied for violations of the wage and salary stabilization program. The committee finds that the disallowance of illegal wage payments as a cost of doing business, for purposes of computing taxes, Government contract payments, and for purposes of establishing price ceilings, was an effective deterrent.” S. Rep. No. 2250, 81st Cong., 2d Sess. 39.
The regulations, procedures and practices comparable to those under the Act of 1942 were fully reported to Congress.
Despite this history of administrative enforcement under the 1942 Act, appellee claims that, under the 1950 Act, the President had no authority to apply administrative action to the enforcement of wage stabilization. Appellee argues that § 706 of the later Act, as set forth in the margin, vested enforcement of the Act in the District Courts and thus left to the President only authority to promulgate general regulations. We do not agree. Section 706 appears in Title VII containing the so-called “general provisions” of the Act. Appellee reads the section as sharply restricting the administrative procedure which we have just described. Such an interpretation, however, cannot be given to it in the face of § 405 (b). Instead of sharply restricting the revival of administrative enforcement of wage ceilings under § 405 (b), we read § 706 as primarily applicable to other activities under the Act. It applies naturally enough to price controls, credit controls and allocations of material. We hold that the specific language of § 405 (b) should receive the same construction now that was placed on similar language in the Act of 1942. The “general provisions” of § 706 do not restrict the specific provisions of § 405 (b) now reenacted.
The correctness of the above interpretation was underscored July 31, 1951, when Congress inserted a new § 405 (a). In language strikingly similar to § 405 (b), that new section introduced administrative enforcement for price controls. Obviously it was not to be substantially eliminated by the existing provisions of § 706. As the specific language of § 405 (a) is thus controlling over the general provisions of § 706, so the same specific language in § 405 (b) is controlling over those same provisions.
| We have noted the other arguments submitted by-appellee concerning the interpretation and constitutionality of the statute but it would be premature action on our part to rule upon these until after the required administrative procedures have been exhausted.]
III.
Finally, appellee contends that, by the termination of the substantive provisions of the Defense Production Act of 1950, all authority has now expired for determining or disallowing past, as well as future, payments made in violation of wage ceilings.
As the Act is a temporary statute, the effect of its expiration is governed by the following general savings statute:
“The expiration of a temporary statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the temporary statute shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.” (Emphasis supplied.) 1 U. S. C. (1952 ed.) § 109.
We find no express, or even implied, provision in the Act contrary to the policy of the general savings statute. All of the alleged violations here involved occurred in 1951. The substantive provisions of Title IV relating to wage stabilization and the supporting orders fixing the wage ceilings here at issue did not expire until April 30, 1953. Neither that expiration date nor the six-month extension of it for liquidation purposes restricts the general provision of § 109 as to the survival of enforcement proceedings.
The precise object of the general savings statute is to prevent the expiration of a temporary statute from cutting off appropriate measures to enforce the expired statute in relation to violations of it, or of regulations issued under it, occurring before its expiration. United States v. Allied Oil Corp., 341 U. S. 1, 5; Fleming v. Mohawk Co., 331 U. S. 111.
A similar situation followed the expiration, in 1946, of the substantive provisions of the Stabilization Act of 1942, and we have seen that the enforcement proceedings continued under it until 1949. See note 11, supra. On that occasion the authority to make disallowances was transferred to the Department of the Treasury. Exec. Order No. 9809, ¶10 (b), 11 Fed. Reg. 14281, 14283. In the present instance, wage stabilization enforcement has been transferred to the Director of the Office of Defense Mobilization. Exec. Order No. 10494, October 14,1953,18 Fed. Reg. 6585. The authority of the President to make such a delegation of his powers appears in §§ 703 and 705, and such authority remains effective until June 30, 1955, § 717 (a), note 23, supra.
The validity of the pending administrative proceeding being thus upheld, the judgment of the District Court enjoining that proceeding is
Reversed.
64 Stat. 798, as amended, 65 Stat. 131, 66 Stat. 296, 67 Stat. 129, 50 U. S. C. App. (1946 ed., Supp. V) §2061 et seq.
“TITLE IV — PRICE AND WAGE STABILIZATION” containing §§ 401-412, 64 Stat. 803-812, 66 Stat. 304, and see 50 U. S. C. App. (1946 ed., Supp. V) §§2101-2110.
Created, within the Economic Stabilization Agency, by § 403 (b) of the Defense Production Act, June 30, 1952, 66 Stat. 300-301. See also, Exec. Order No. 10377, 17 Fed. Reg. 6891; ESA Gen. Order No. 16, 17 Fed. Reg. 6925.
ESA Gen. Order No. 18, effective July 30, 1952, 17 Fed. Reg. 6925, as amended at 9977, established NEC within the ESA and defined the functions of NEC.
Gen. Wage Stabilization Regulation 1, issued by Economic Stabilization Administrator, January 26, 1951, 16 Fed. Reg. 816.
The Government states that Neal, who is one of the appellants, is now on the staff of the Office of Defense Mobilization and is authorized and ready to conduct the hearing if the injunction is lifted.
56 Stat. 765, 50 U. S. C. App. (1946 ed.) §961 et seq. The Stabilization Act itself was an amendment to the Emergency Price Control Act of 1942, approved January 30, 1942, 56 Stat. 23, 50 U. S. C. App. (1946 ed.) § 901 et seq. For its title, see 58 Stat. 643. It was temporary legislation. Its termination date was June 30, 1944, or “such earlier date as the Congress by concurrent resolution, or the President by proclamation, may prescribe.” 56 Stat. 767. That date was postponed, one year at a time, to June 30, 1947. 58 Stat. 643, 59 Stat. 306, 60 Stat. 664, 50 U. S. C. App. (1946 ed.) §966.
“Sec. 2. The President may, from time to time, promulgate such regulations as may be necessary and proper to carry out any of the provisions of this Act; and may exercise any power or authority conferred upon him by this Act through such department, agency, or officer as he shall direct. . . .” 56 Stat. 765, 50 U. S. C. App. (1946 ed.) § 962.
Office of Economic Stabilization — Pt. 4001 — Wages and Salaries, 7 Fed. Reg. 8748 et seq. Subsequent amendments did not change the provisions for making tax disallowances based upon specific administrative determinations.
Ҥ 4001.2 Authority of National War Labor Board. The Board shall . . . have authority to determine whether any
“(a) Wage payments . . .
“are made in contravention of the Act, or any rulings, orders or regulations promulgated thereunder. Any such determination by the Board, made under rulings and orders issued by it, that a payment is in contravention of the Act, or any rulings, orders, or regulations promulgated thereunder, shall be conclusive upon all Executive Departments and agencies of the Government in determining the costs or expenses of any employer for the purpose of any law or regulation, either heretofore or hereafter enacted or promulgated, including the Emergency Price Control Act of 1942 or any maximum price regulation thereof, or for the purpose of calculating deductions under the revenue laws of the United States, or for the purpose of determining costs or expenses under any contract made by or on behalf of the United States. Any determination of the Board made pursuant to the authority conferred on it shall be final and shall not be subject to review by The Tax Court of the United States or by any court in any civil proceedings.” 7 Fed. Reg., at 8749.
From October 3, 1942, to December 29, 1945, 68,233 cases, resulting in disallowances of $19,018,820.19, were handled by the National War Labor Board. 1 Termination Report, National War Labor Board, 428-441. From January 1, 1946, to January 30, 1947, 30,071 cases, resulting in disallowances of $11,822,609, were handled by the National Wage Stabilization Board. National Wage Stabilization Board (1946-1947) 223-235. While many cases resulted in findings of no violation or were closed without penalty or dis-allowance, many others were terminated with disallowances, either by consent or after hearings. There were 282 appeal cases processed by the National Boards, and although the controls were terminated in November 1946 by Executive Order No. 9801, 11 Fed. Reg. 13435, the enforcement activities, based on earlier violations, were carried on by the Department of the Treasury until 1949. See Ann. Reps, of the Commissioner of Internal Revenue 62-63 (1947); 33-34 (1948); 26-27 (1949).
Not only was the life of the Act extended three times (see note 7, supra) but its administration was reviewed during annual appropriation hearings. See Hearings before the House Subcommittee on Appropriations on National War Agencies Appropriation Bills for 1944, Pt. 2, 78th Cong., 1st Sess. 667-668; for 1945, Pt. 1, 78th Cong., 2d Sess. 240-241, 303-304; for 1946, 79th Cong., 1st Sess. 12-13.
“Sec. 403. (a) At such time as the President determines that it is necessary to impose price and wage controls generally over a substantial portion of the national economy, he shall administer such controls . . . through a new independent agency created for such purpose: .... Such agency may utilize the services, information, and facilities of other agencies and departments of the Government, but such agency shall not delegate enforcement of any of the controls to be administered by it under this section to any other agency or department.” 64 Stat. 807, as amended, 65 Stat. 137, 66 Stat. 300. See 50 U. S. C. App. (1946 ed., Supp. V) §2103. (Delegations as to the enforcement of controls, accordingly, were made only to officials within the new independent agency known as the Economic Stabilization Agency.)
“Sec. 703. (a) Except as otherwise specifically provided, the President may delegate any power or authority conferred upon him by this Act to any officer or agency of the Government, including any new agency or agencies (and the President is hereby authorized to create such new agencies, other than corporate agencies, as he deems necessary), and he may authorize such redelegations by that officer or agency as the President may deem appropriate. . . .” 64 Stat. 816, 50 U. S. C. App. (1946 ed., Supp. V) § 2153 (a).
“Sec. 704. The President may make such rules, regulations, and orders as he deems necessary or appropriate to carry out the provisions of this Act. Any regulation or order under this Act may be established in such form and manner, may contain such classifications and differentiations, and may provide for such adjustments and reasonable exceptions as in the judgment of the President are necessary or proper to effectuate the purposes of this Act, or to prevent circumvention or evasion, or to facilitate enforcement of this Act, or any rule, regulation, or order issued under this Act.” 64 Stat. 816, see 50 U. S. C. App. (1946 ed., Supp. V) § 2154.
“Sec. 4. Functions of the National Enforcement Commission. (a) The functions of the National Enforcement Commission (hereinafter referred to as the Commission) shall be, with respect to persons within the jurisdiction of the Wage Stabilization Board, the Salary Stabilization Board and the Office of Salary Stabilization, and the Railroad and Airline Wage Board, to determine whether any wage, salary, or other compensation has been paid or accrued, at any time, in violation or contravention of any provision of the Defense Production Act of 1950, as amended, or any regulation or order or directive heretofore or hereafter promulgated under the act. Such determination shall be made by the Commission after any of the foregoing named constituent organizations of this Agency have instituted an enforcement proceeding before it or after any such organization has submitted a settlement proposal to the Commission for its approval. Such determination shall be final within the Economic Stabilization Agency.
“ (b) The Commission is further authorized to certify and transmit such determinations in accordance with the policy and procedure set forth in Economic Stabilization Agency General Order No. 15, and other orders, directives, general policies or general regulations of the Economic Stabilization Administrator.
“Sec. 5. Redelegation of authority, (a) The authority delegated to the Economic Stabilization Administrator with respect to the imposition of disallowance sanctions under section 405 (b) of the Defense Production Act, as amended, for the violation or contravention of any provisions of, or any orders or any regulations issued under said act, as amended, relating to the payment of wages, salaries, or other compensation, is hereby redelegated to the Commission, in accordance with the functions described above.” 17 Fed. Reg., at 6926.
“Sec. 2. ... The United States is determined to develop and maintain whatever military and economic strength is found to be necessary to carry out this purpose. Under present circumstances, this task requires diversion of certain materials and facilities from civilian use to military and related purposes. It requires expansion of productive facilities beyond the levels needed to meet the civilian demand. In order that this diversion and expansion may proceed at once, and that the national economy may be maintained with the maximum effectiveness and the least hardship, normal civilian production and purchases must be curtailed and redirected.
“It is the objective of this Act to provide the President with authority to accomplish these adjustments in the operation of the economy. It is the intention of the Congress that the President shall use the powers conferred by this Act to promote the national defense, by meeting, promptly and effectively, the requirements of military programs in support of our national security and foreign policy objectives, and by preventing undue strains and dislocations upon wages, prices, and production or distribution of materials for civilian use, within the framework, as far as practicable, of the American system of competitive enterprise.” 64 Stat. 798, 799, 50 U. S. C. App. (1946 ed., Supp. V) § 2062.
See S. Rep. No. 2250, 81st Cong., 2d Sess. A-5, 20-40.
The 1950 Act, generally, was to terminate June 30, 1952. Title IV, as to price and wage stabilization, was to expire June 30, 1951. 64 Stat. 822. The latter date was extended to April 30, 1953. 66 Stat. 306, 67 Stat. 131. The survival of enforcement procedure in relation to prior violations is discussed in Section III of this opinion.
First Ann. Rep. of the Joint Committee on Defense Production, S. Rep. No. 1040, 82d Cong., 1st Sess. 98-103 (1951); Second Ann. Rep. of the same Committee, S. Rep. No. 3, 83d Cong., 1st Sess. 108-119 (1952).
“Sec. 706. (a) Whenever in the judgment of the President 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 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 President that such person has engaged or is about to engage in any such acts or practices a permanent or temporary injunction, restraining order, or other order, with or without such injunction or restraining order, shall be granted without bond.
“(b) The district courts of the United States and the United States courts of any Territory or other place subject to the jurisdiction of the United States shall have jurisdiction of violations of this Act or any rule, regulation, order, or subpena thereunder, and of all civil actions under this Act to enforce any liability or duty created by, or to enjoin any violation of, this Act or any rule, regulation, order, or subpena thereunder. Any criminal proceeding on account of any such violation may be brought in any district in which any act, failure to act, or transaction constituting the violation occurred. Any such civil action may be brought in any such district or in the district in which the defendant resides or transacts business. Process in such cases, criminal or civil, may be served in any district wherein the defendant resides or transacts business or wherever the defendant may be found; the subpena for witnesses who are required to attend a court in any district in such case may run into any other district. The termination of the authority granted in any title or section of this Act, or of any rule, regulation, or order issued thereunder, shall not operate to defeat any suit, action, or prosecution, whether theretofore or thereafter commenced, with respect to any right, liability, or offense incurred or committed prior to the termination date of such title or of such rule, regulation, or order. No costs shall be assessed against the United States in any proceeding under this Act. All litigation arising under this Act or the regulations promulgated thereunder shall be under the supervision and control of the Attorney General.” 64 Stat. 817-818, as amended, 65 Stat. 139, 50 U. S. C. App. (1946 ed., Supp. V) § 2156.
That this is a logical interpretation of § 706 is emphasized by the fact that the bills which became the Act of 1950 contained, when introduced, provisions for credit and commodity controls but no provisions for wage stabilization. Thus the section that was to become § 706 originally had no reference to wage stabilization. Title IY, including § 405 (b) as to wage stabilization, was inserted in Committee. The separate origins of §§ 405 (b) and 706 point to the separate effect which should be given to them. See S. Rep. No. 2250, 81st Cong., 2d Sess. 5.
“. . . The President shall also prescribe the extent to which any payment made, either in money or property, by any person in violation of any such regulation, order, or requirement [as to price control] shall be disregarded by the executive departments and other governmental agencies in determining the costs or expenses of any such person for the purposes of any other law or regulation, including bases in determining gain for tax purposes.” 65 Stat. 136, 50 U. S. C. App. (1946 ed., Supp. V) §2105 (a).
This interpretation of § 405 (a) and (b) is consistent, likewise, with the interpretation given to § 5 of the Stabilization Act of 1942. The Stabilization Act of 1942 was superimposed on the Emergency Price Control Act of 1942, 56 Stat. 23, which already contained general provisions for judicial enforcement. The solution reached was to apply those general provisions (§ 205 (a) (b) and (c)) without restricting the administrative procedure prescribed in § 5 for wage control. 56 Stat. 33, 50 U. S. C. App. (1946 ed.) §925 (a)(b)(c).
Finally, the text of § 403 uses the word “enforcement” in referring to the powers of the administrative agencies in connection with wage controls. In referring to the new agency to be created, it provides that “such agency shall not delegate enforcement of any of the controls to be administered by it under this section to any other agency or department.” (Emphasis supplied.) 64 Stat. 807, 50 U. S. C. App. (1946 ed., Supp. V) §2103.
See also, the Conference Report on the Defense Production Act Amendments of 1952 which said: “The conference substitute is not intended to preclude the [Wage Stabilization] Board from, as at present, enforcing wage stabilization regulations and policies.” (Emphasis supplied.) H. R. Rep. No. 2352, 82d Cong., 2d Sess. 24.
The constitutional objections suggested are that the Act and proceedings which have been taken and are proposed under it violate (1) the Fifth Amendment by depriving appellee of property without due process of law; (2) the Sixth or Seventh Amendment by depriving appellee of the right to a jury trial; (3) the Eighth Amendment in authorizing excessive fines; (4) Article I, § 9, by authorizing an unapportioned direct tax; (5) Article I, § 1, by improper delegation of legislative power to the Executive; and (6) the Tenth Amendment by attempting to legislate on matters reserved to the
“Sec. 717. (a) Title I [priorities and allocations] . . . title III [expansion of productive capacity and supply], and title VII [general provisions] ... of this Act, and all authority conferred thereunder, shall terminate at the close of June 30, 1955. . . . Titles IV [price and wage stabilization] and V [settlement of labor disputes] of this Act, and all authority conferred thereunder, shall terminate at the close of April 30, 1953.
“(b) Notwithstanding the foregoing—
“(3) Any agency created under this Act may be continued in existence for purposes of liquidation for not to exceed six months after the termination of the provision authorizing the creation of such agency.” 64 Stat. 822, as amended, 65 Stat. 144, 66 Stat. 306, 67 Stat. 131.
Executive Order No. 10434, February 6, 1953, 18 Fed. Reg. 809, suspended the wage stabilization program but provided that “This order shall not operate to defeat any suit, action, prosecution, or administrative enforcement proceeding, whether heretofore or hereafter commenced, with respect to any right, liability, or offense possessed, incurred, or committed, prior to this date.”
See also, Hearings before the House Subcommittees on Appropriations, Pt. 1, 83d Cong., 1st Sess. 439-441, on The Supplemental Appropriation Bill, 1954, introduced in the House as H. R. 6200, and those on the same bill before the Senate Committee on Appropriations, 83d Cong., 1st Sess. 423-431.
“. . . Though most of the controls have been lifted, the Act is still in effect. Liabilities incurred prior to the lifting of controls are not thereby washed out. United States v. Hark, 320 U. S. 531, 536; Utah Junk Co. v. Porter, 328 U. S. 39, 44; Collins v. Porter, 328 U. S. 46, 49. And Congress has explicitly provided that accrued rights and liabilities under the Emergency Price Control Act are preserved whether or not suit is started prior to the termination date of the Act. If investigation were foreclosed at this stage, such rights as may exist would be defeated, contrary to the policy of the Act.” Fleming v. Mohawk Co., 331 U. S. 111, 119.
Question: Consider that the petitioning party lost if the Supreme Court affirmed or dismissed the case, or denied the petition. Consider that the petitioning party won in part or in full if the Supreme Court reversed, reversed and remanded, vacated and remanded, affirmed and reversed in part, affirmed and reversed in part and remanded, or vacated the case. Did the petitioning win the case?
A. Yes
B. No
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.
Carl Gregory WITT, Appellant, v. UNITED STATES of America, Appellee.
No. 23065.
United States Court of Appeals Ninth Circuit.
June 6, 1969.
Certiorari Denied Nov. 17, 1969.
See 90 S.Ct. 272.
J. Pierce Harris (argued) of Freeman & Harris, National City, Cal., for appellant.
Edwin L. Miller, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal. (no argument by govt.) for appel-lee.
Before CHAMBERS and KOELSCH, Circuit Judges, and BYRNE, District Judge.
Honorable William M. Byrne, United States Senior District Judge, Los Angeles, California, sitting by designation.
BYRNE, District Judge:
On March 14, 1968, the appellant was indicted on a charge of smuggling marihuana in violation of U.S.C. Title 21, Section 176a. He was convicted in a trial by the Court without a jury.
The appellant contends that Section 176a of the Statute under which he was convicted is unconstitutional, and relies upon Marchetti v. United States, 390 U. S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 716, 19 L.Ed.2d 906; and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923.
In Marchetti, the Supreme Court held that a plea of the Fifth Amendment privilege provided a defense to a prosecution for failure to register and pay the occupational tax on wagers as required by 26 U.S.C. Sections 4411 and 4412. The Court noted that 26 U.S.C. 6107 required lists of wagering taxpayers be furnished to state and local prosecutors on demand, and concluded that compliance with the Statutes would have subjected Marchetti to “real and appreciative” risk of self-incrimination. In Grosso the Court held that the same considerations required the claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. In Haynes the Court held, for the same reasons, that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act.
Subsequent to the filing of the briefs and oral argument in this case, the Supreme Court, on May 19, 1969, decided the case of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. For reasons set forth in our discussion of Leary which follows, we hold that neither the cases relied upon by the appellant, nor Leary, require the reversal of the District Court in this case.
This is a smuggling case; Leary was not. The indictment in Leary originally-charged smuggling marihuana into the United States in violation of 21 U.S.C. Section 176a. Second, it was charged that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of Section 176a. Third, it was alleged that Leary was a transferee of marihuana and had knowingly transported, concealed and facilitated the transportation and concealment of marihuana, without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4644(a) (2).
After both sides had presented their evidence, the District Court dismissed the smuggling count. The Supreme Court theorized (note 4): “Petitioner had testified without contradiction that he had obtained the marihuana in New York, and the District Court apparently reasoned that an article taken out of the United States could not be ‘smuggled’ back into the country, as charged by the indictment.” The jury found Leary guilty on the other two counts.
The Supreme Court granted certiorari to consider two questions: (1) whether Leary’s conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination ; (2) whether Leary was denied due process by the application of the part of 21 U.S.C. § 176a, which provides that a defendant’s possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. The Court held in favor of Leary on both issues and reversed the judgment of the Court of Appeals. But neither issue is in the instant case. This appellant was not charged with a violation of the Marihuana Tax Act, nor did his conviction rest upon the presumption of knowledge of illegal importation which was declared unconstitutional by the Court in Leary.
In Marchetti, Grosso, Haynes and Leary, the Court’s decision in each instance was required by the impact of the registration provisions which, when considered with the statutory direction that the information be conveyed to state and local law enforcement officials, obliged the Court to conclude that a timely and proper assertion of the privilege against self-incrimination provided a complete defense to prosecution under those particular statutes.
Appellant Witt was caught in the very act of smuggling marihuana which should have been invoiced and presented to the Customs officials for inspection in accordance with the Tariff Act of 1930. The Supreme Court has not legalized the smuggling of marihuana nor any other merchandise, nor has it declared the Tariff Act unconstitutional.
We are not persuaded by the appellant’s argument that the Supreme Court’s decisions immunize smugglers from prosecution. The appellant asserts: “In the instant case, appellant Witt was required by Federal law to formally acknowledge possession of property which it was unlawful under State law for him to possess. Providing the Customs Officers with the information as required by law would surely establish a ‘link in the chain’ of evidence tending to establish his guilt.”
The appellant reasons that a person bringing marihuana into the United States must smuggle it in, because to invoice it and present it for inspection would provide a “link in the chain” of evidence tending to establish his guilt, and would violate his Fifth Amendment privilege against self-incrimination. There is about as much logic in that reasoning as there would be in the contention of a bank robber that he was required to shoot the bank guard who ordered him to drop his gun and raise his hands, because to comply with the guard’s orders would be self-incriminating and would provide a “link in the chain” of evidence tending to establish his guilt, all in violation of his Fifth Amendment privilege against self-incrimination. The same claim might be made by the burglar who is accosted by a police officer as he crawls out of the window of a residence at three A.M. and is ordered to submit to an inspection of the luggage he is carrying. To hold that the privilege was available in any of these cases would border on the ridiculous and would effectively frustrate all criminal laws.
The second issue in Leary was whether the application of the presumption contained in 21 U.S.C. § 176a denied Leary due process of law. The Court held that in that case it did. But, as noted above, that issue is not in this case.
This was not a jury trial, and so of course there were no instructions involved. At the time of trial the appellant moved for dismissal on the ground that the presumption contained in the second paragraph of Section 176a was unconstitutional. The District Judge denied the motion, adding: “But as I have always held, that on the smuggling cases the presumption is not indulged in and cannot and should not be.” We agree.
As an additional ground for reversal, appellant asserts that he had been denied his Sixth Amendment right to a speedy trial.
Appellant was arrested December 22nd and taken before the Commissioner on December 26th, at which time counsel was appointed to represent him. He had a bail review on December 29th. The Customs Agency report was received in the United States Attorney’s office on March 9th, 1968. The Grand Jury returned the indictment on March 14th; he was arraigned on March 18th and an omnibus hearing was set for April 4th. The omnibus hearing was held on April 4th and the case was set for trial May 13th. The trial was held on May 15th.
It will be observed that most of the delay is attributable to the late filing of the Customs Agency report. At the hearing on the motion to dismiss, the District Judge commented that the statistics show that between November 1967 and the early part of 1968, an unprecedented amount of marihuana came through the border and the number of arrests during that period increased almost one hundred per cent over the same period the previous year and that the Service got far behind in their reports. When the District Judge inquired whether the appellant had suffered any prejudice such as loss of witnesses or evidence as a result of the delay, appellant’s counsel replied that he believed there had been “damage to the defendant’s psychological attitude”. The appellant offered no evidence at the trial, both he and the co-defendant stipulated to the chain of custody and that the contraband seized from them whs marihuana. It should also be noted that the appellant, who was sentenced to ten years imprisonment, will receive credit for time spent in custody.
We find here no deprivation of the constitutional right to a speedy trial in violation of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); Collins v. United States, 157 F.2d 409 (CA 9); Buatte v. United States, 350 F.2d 389 (CA 9); Cohen v. United States, 366 F.2d 363 (CA 9).
Affirmed.
. The present offense is essentially one deriving from the Customs law, and the term “invoiced” as used in the statute carries the meaning attached to it in the Customs law, viz., lawfully entered or declared. See Thomas v. United States, 314 F.2d 936 (CA 5, 1963).
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_respond2_7_2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed 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 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, Appellant, v. Bernard E. ROESSLING, etc., et al., Appellees.
No. 17857.
United States Court of Appeals Fifth Circuit.
July 19, 1960.
Rehearing Denied Aug. 30, 1960.
William A. Montgomery, Morton Hollander, Atty., Dept, of Justice, Washington, D. C., Robert F. Nunez, Asst. U. S. Atty., Tampa, Fla., George Cochran Doub, Asst. Atty. Gen., James L. Guil-martin and E. Coleman Madsen, U. S. Attys., Miami, Fla., for appellant.
Paul Game, Tampa, Fla., B. E. Roes-sling, Green Cove Springs, Fla., for ap-pellees.
Before RIVES, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.
RIVES, Chief Judge.
The United States sought to collect a loan and to that end to foreclose a mortgage on real property. It obtained an in personam judgment against the mortgagors for the debt, but was denied foreclosure on the property. It appeals from such denial.
The Government loan was made pursuant to the Emergency Relief Appropriation Act of 1935, 49 Stat. 115, and to the President’s Executive Order No. 7027, issued April 30, 1935, delegating to the Resettlement Administration the power to make loans under said Act. It was secured by a mortgage on real property owned by the mortgagors in Hills-borough County, Florida. The mortgage was duly recorded on April 19, 1937, in the public records of the County. Thereafter, the County taxes assessed against the land for the year 1940 were not paid. Florida law provided that a lien was imposed for the assessed amount, which was said to constitute “a first lien superior to all other liens” on the property, and to continue “in full force and effect until discharged by payment.” Fla.Stat.Ann. § 192.21. By statute the taxes became delinquent on April 1, 1941.
Pursuant to Sections 193.51 and 193.54 of the Florida Statutes Annotated, the property was sold to the County and on July 7, 1941, a tax sale certificate in the amount of $19.63 was issued to the County. See Fla.Stat.Ann. § 193.59(1). The only notice of this sale which the statute required was publication in a newspaper “once each week for four consecutive weeks” before the sale, or, if no newspaper was published in the county, “posting in three public places in the county * * *.” Fla.Stat.Ann. - § 193.51.
In accordance with the provisions of Fla.Stat.Ann. § 194.47, the County, in 1943, filed an action in the Circuit Court of Hillsborough County to quiet title. Section 194.47 directs that, if the property covered by a tax sale certificate has not been redeemed or purchased within two years after the date of issuance of the certificate to a county, the county shall file a bill of complaint against the land. It expressly makes unnecessary the naming “as defendant in such bill of complaint, or proceeding, any person or persons owning or having any interest in or lien upon such lands,” and provides that “[j Jurisdiction of all of said lands and of all parties interested therein or having any lien thereon at the date of filing of such suit shall be obtained by publication of notice * * The United States was not named in the suit filed by Hillsborough County in 1943.
On August 28, 1944, the Circuit Court of Hillsborough County entered a decree under this statute declaring title to the property here involved to be vested in Hillsborough County, free and clear of all pre-existing claims and liens. The state statute provides that, upon the entry of such a decree,
“ * * * all rights, titles, interests in or liens upon said property * * * shall be cut off and extinguished and forever declared null and void and the title to such lands when conveyed by the county shall be construed in all respects as a new, original title * *
The County subsequently sold the. property and by mesne conveyances title thereto became vested in the appellees, James R. Holland and his wife.
In a written opinion reported at 170 F.Supp. 459, the district court held that the Government’s mortgage lien was subordinate to the later County lien for taxes, and, accordingly, was extinguished by the state judicial proceeding to quiet title to the property. Despite the failure to make the United States a party to the state proceeding, that holding might not be subject to attack if it were, in the first instance, conceded that the Government’s mortgage lien was inferior to the later County lien for taxes. See United States v. Brosnan et al., (Bank of America, etc. v. United States), 363 U.S. 237, 80 S.Ct. 1108, 4 L.Ed.2d 1192. If, however, the Government’s mortgage lien was superior, then the County could not reach the paramount lien of the United States through its taxing powers. As indicated in United States v. Boyd, 5 Cir., 1957, 246 F.2d 477, 483, it is the nature and relative rank of the respective liens which determines whether or not the enforcement of the one destroys the other.
It is well established that, in the-absence of a controlling federal statute, the priority of federally created tax liens. is determined by the rule that a lien first in time is first in right. United States v. City of New Britain, 1954, 347 U.S. 81, 85, 74 S.Ct. 367, 98 L.Ed. 520; Michigan v. United States, 1943, 317 U.S. 338, 340, 63 S.Ct. 302, 87 L.Ed. 312. That rule governing the priority of federal tax liens has been applied to federal mortgage liens as well. City of New Brunswick v. United States, 1928, 276 U.S. 547, 555, 48 S.Ct. 371, 72 L.Ed. 693; United States v. Latrobe Construction Co., 8 Cir., 1957, 246 F.2d 357, 364; Southwest Engine Co. v. United States, 10 Cir., 1960, 275 F.2d 106, 107.
No state or county can tax the property interests of the United States in the absence of congressional consent. United States v. Allegheny County, 1944, 322 U.S. 174, 191, 64 S.Ct. 908, 88 L.Ed. 1209. There is no constitutional prohibition against a state or county assessing taxes against property on which the United States holds a lien on the basis of the full value of that property, but, in the absence of congressional consent, the state or county is without authority to enforce the collection of the taxes thus assessed so as to destroy the pre-existing federal lien. City of New Brunswick v. United States, supra, 276 U.S. 547, 556, 48 S.Ct. 371, 72 L.Ed. 693; S.R.A., Inc. v. State of Minnesota, 1946, 327 U.S. 558, 569, 66 S.Ct. 749, 90 L.Ed. 851; compare Bancroft Inv. Corporation v. City of Jacksonville, 1946, 157 Fla. 546, 27 So.2d 162.
The Emergency Relief Appropriation Act of 1935, 49 Stat. 115, contains no language consenting to local taxation of property interests acquired by the Resettlement Administration under said Act. In fact, a later amendment to the Act indicates that the congressional intention was precisely the contrary. In the Act of June 29, 1936, 49 Stat. 2036, Congress provided that, with respect to certain kinds of property acquired under the 1935 Act,
“[u]pon the request of any State or political subdivision thereof, or any other local public taxing unit, * * * the Resettlement Administration is authorized to enter into an agreement * * * for the payment by the United States of sums in lieu of taxes.” (Emphasis supplied.)
We hold that the state court decree purporting to divest all prior encumbrances and to quiet title to the mortgaged realty in the County did not operate to extinguish the Government’s mortgage lien. Accordingly, the judgment is reversed and the cause remanded.
Reversed and remanded.
. This instrument provided that the mortgagors “granted, bargained and sold” the land to the Administrator of the Resettlement Administration or his successors, but that the mortgage would “cease and be null and void” if the mortgagors paid the note it secured, in addition to any other sums thereafter advanced, and performed certain specified obligations. Among these was the mortgagors’ duty to “pay all taxes which may accrue on said land * * The Florida doctrine is that a mortgagee “has no title to convey, and Ms interest in the land was a lien of a mortgage to secure the payment of a note * * (Emphasis supplied.) Jordan v. Sayre, 1892, 29 Fla. 100, 10 So. 823, 827. See, also, Hemphill v. Nelson, 1928, 95 Fla. 498, 116 So. 498, 499. In the case of Waldock v. Iba, 1934, 114 Fla. 786, 150 So. 231, 803, 153 So. 915, the Florida Supreme Court used the expression, “a mortgage does not create an interest in the land. It is a chose in action which creates a lien on land.” (Emphasis supplied.) Even so, the lien of the mortgage is clearly a property right, and it is not material that it be treated as equitable in nature.
. Ela.Stat.Ann. § 193.51.
. Ela.Stat.Ann. § 194.53.
Question: This question concerns the second 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)". 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: |
sc_adminaction | 094 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the federal agency involved in the administrative action that occurred prior to the onset of litigation. If the administrative action occurred in a state agency, respond "State Agency". Do not code the name of the state. The administrative activity may involve an administrative official as well as that of an agency. If two federal agencies are mentioned, consider the one whose action more directly bears on the dispute;otherwise the agency that acted more recently. If a state and federal agency are mentioned, consider the federal agency. Pay particular attention to the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
DIAMOND, COMMISSIONER OF PATENTS AND TRADEMARKS v. CHAKRABARTY
No. 79-136.
Argued March 17, 1980
Decided June 16, 1980
BubgeR, C. J., delivered the opinion of the Court, in which Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined. Brennan, J., filed a dissenting opinion, in which White, Marshall, and Powell, JJ., joined, post, p. 318.
Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Assistant Attorney General Shenefield, Harriet S. Shapiro, Robert B. Nicholson, Frederic Freilicher, and Joseph F. Nakamura.
Edward F. McKie, Jr., argued the cause for respondent. With him on the brief were Leo I. MaLossi, William E. Schuyler, Jr., and Dale H. Hoscheit
Leonard S. Bubenstein filed a brief for the Peoples Business Commission as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by George W. Whitney, Bruce M. Collins, and Karl F. Jorda for the American Patent Law Association, Inc.; by Thomas D. Kiley for Genentech, Inc.; by Jerome G. Lee, William F. Dudine, Jr., and Paul H. Heller for the New York Patent Law Association, Inc.; by Peter R. Taft, Joseph A. Keyes, Jr., and Sheldon Ellcñt Steinbach for Dr. Leroy E. Hood et al.; and by Lorance L. Greenlee for Dr. George Pieczenik.
Briefs of amici curiae were filed by William I. Althen for the American Society for Microbiology; by Donald R. Dunner for the Pharmaceutical Manufacturers Association; by Edward S. Irons, Mary Helen Sears, and Donald Reidhaar for the Regents of the University of California; and by Cornell D. Cornish, pro se.
Mr. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to determine whether a live, human-made micro-organism is patentable subject matter under 35 U. S. C. § 101.
I
In 1972, respondent Chakrabarty, a microbiologist, filed a patent application, assigned to the General Electric Co. The application asserted 36 claims related to Chakrabarty’s invention of “a bacterium from the genus Pseudomonas containing therein at least two stable energy-generating plasmids, each of said plasmids providing a separate hydrocarbon degradative pathway.” This human-made, genetically engineered bacterium is capable of breaking down multiple components of crude oil. Because of this property, which is possessed by no naturally occurring bacteria, Chakrabarty’s invention is believed to have significant value for the treatment of oil spills.
Chakrabarty’s patent claims were of three types: first, process claims for the method of producing the bacteria; second, claims for an inoculum comprised of a carrier material floating on water, such as straw, and the new bacteria; and third, claims to the bacteria themselves. The patent examiner allowed the claims falling into the first two categories, but rejected claims for the bacteria. His decision rested on two grounds: (1) that micro-organisms are “products of nature,” and (2) that as living things they are not patentable subject matter under 35 U. S. C. § 101.
Chakrabarty appealed the rejection of these claims to the Patent Office Board of Appeals, and the Board affirmed the examiner on the second ground. Relying on the legislative history of the 1930 Plant Patent Act, in which Congress extended patent protection to certain asexually reproduced plants, the Board concluded that § 101 was not intended to cover living things such as these laboratory created micro-organisms.
The Court of Customs and Patent Appeals, by a divided vote, reversed on the authority of its prior decision in In re Bergy, 563 F. 2d 1031, 1038 (1977), which held that “the fact that microorganisms . . . are alive ... [is] without legal significance” for purposes of the patent law. Subsequently, we granted the Acting Commissioner of Patents and Trademarks’ petition for certiorari in Bergy, vacated the judgment, and remanded the case “for further consideration in light of Parker v. Flook, 437 U. S. 584 (1978).” 438 17. S. 902 (1978). The Court of Customs and Patent Appeals then vacated its judgment in Chakrabarty and consolidated the case with Bergy for reconsideration. After re-examining both cases in the light of our holding in Flook, that court, with one dissent, reaffirmed its earlier judgments. 596 F. 2d 952 (1979).
The Commissioner of Patents and Trademarks again sought certiorari, and we granted the writ as to both Bergy and Chakrabarty. 444 U. S. 924 (1979). Since then, Bergy has been dismissed as moot, 444 U. S. 1028 (1980), leaving only Chakrabarty for decision.
II
The Constitution grants Congress broad power to legislate to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Art. I, § 8, cl. 8. The patent laws promote this progress by offering inventors exclusive rights for a limited period as an incentive for their inventiveness and research efforts. Kewanee Oil Co. v. Bicron Corp., 416 U. S. 470, 480-481 (1974); Universal Oil Co. v. Globe Co., 322 U. S. 471, 484 (1944). The authority of Congress is exercised in the hope that “[t]he productive effort thereby fostered will have a positive effect on society through the introduction of new products and processes of manufacture into the economy, and the emanations by way of increased employment and better lives for our citizens.” Kewanee, supra, at 480.
The question before us in this case is a narrow one of statutory interpretation requiring us to construe 35 U. S. C. § 101, which provides:
“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.”
Specifically, we must determine whether respondent’s microorganism constitutes a “manufacture” or “composition of matter” within the meaning of the statute.
Ill
In cases of statutory construction we begin, of course, with the language of the statute. Southeastern Community College v. Davis, 442 U. S. 397, 405 (1979). And “unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U. S. 37, 42 (1979). We have also cautioned that courts “should not read into the patent laws limitations and conditions which the legislature has not expressed.” United States v. Dubilier Condenser Corp., 289 U. S. 178, 199 (1933).
Guided by these canons of construction, this Court has read the term “manufacture” in § 101 in accordance with its dictionary definition to mean “the production of articles for use from raw or prepared materials by giving to these materials new forms, qualities, properties, or combinations, whether by hand-labor or by machinery.” American Fruit Growers, Inc. v. Brogdex Co., 283 U. S. 1, 11 (1931). Similarly, “composition of matter” has been construed consistent with its common usage to include “all compositions of two or more substances and ... all composite articles, whether they be the results of chemical union, or of mechanical mixture, or whether they be gases, fluids, powders or solids.” Shell Development Co. v. Watson, 149 F. Supp. 279, 280 (DC 1957) (citing 1 A. Deller, Walker on Patents § 14, p. 55 (1st ed. 1937)). In choosing such expansive terms as “manufacture” and “composition of matter,” modified by the comprehensive “any,” Congress plainly contemplated that the patent laws would be given wide scope.
The relevant legislative history also supports a broad construction. The Patent Act of 1793, authored by Thomas Jefferson, defined statutory subject matter as “any new and useful art, machine, manufacture, or composition of matter, or any new or useful improvement [thereof].” Act of Feb. 21, 1793, § 1, 1 Stat. 319. The Act embodied Jefferson’s philosophy that “ingenuity should receive a liberal encouragement.” 5 Writings of Thomas Jefferson 75-76 (Washington ed. 1871). See Graham v. John Deere Co., 383 U. S. 1, 7-10 (1966). Subsequent patent statutes in 1836, 1870, and 1874 employed this same broad language. In 1952, when the patent laws were recodified, Congress replaced the word “art” with “process,” but otherwise left Jefferson’s language intact. The Committee Reports accompanying the 1952 Act inform us that Congress intended statutory subject matter to “include anything under the sun that is made by man.” S. Rep. No. 1979, 82d Cong., 2d Sess., 5 (1952); H. R. Rep. No. 1923, 82d Cong., 2d Sess., 6 (1952).
This is not to suggest that § 101 has no limits or that it embraces every discovery. The laws of nature, physical phenomena, and abstract ideas have been held not patentable. See Parker v. Flook, 437 U. S. 584 (1978); Gottschalk v. Benson, 409 U. S. 63, 67 (1972); Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S. 127, 130 (1948); O’Reilly v. Morse, 15 How. 62, 112-121 (1854); Le Roy v. Tatham, 14 How. 156, 175 (1853). Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.” Funk, supra, at 130.
Judged in this light, respondent’s micro-organism plainly qualifies as patentable subject matter. His claim is not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter — a product of human ingenuity “having a distinctive name, character [and] use.” Hartranft v. Wiegmann, 121 U. S. 609, 615 (1887). The point is underscored dramatically by comparison of the invention here with that in Funk. There, the patentee had discovered that there existed in nature certain species of root-nodule bacteria which did not exert a mutually inhibitive effect on each other. He used that discovery to produce a mixed culture capable of inoculating the seeds of leguminous plants. Concluding that the patentee had discovered "only some of the handiwork of nature,” the Court ruled the product nonpatentable:
“Each of the species of root-nodule bacteria contained in the package infects the same group of leguminous plants which it always infected. No species acquires a different use. The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee.” 333 TJ. S., at 131.
Here, by contrast, the patentee has produced a new bacterium with markedly different characteristics from any found in nature and one having the potential for significant utility. His discovery is not nature’s handiwork, but his own; accordingly it is patentable subject matter under § 101.
IV
Two contrary arguments are advanced, neither of which we find persuasive.
(A)
The petitioner’s first argument rests on the enactment of the 1930 Plant Patent Act, which afforded patent protection to certain asexually reproduced plants, and the 1970 Plant Variety Protection Act, which authorized protection for certain sexually reproduced plants but excluded bacteria from its protection. In the petitioner’s view, the passage of these Acts evidences congressional understanding that the terms “manufacture” or “composition of matter” do not include living things; if they did, the petitioner argues, neither Act would have been necessary.
We reject this argument. Prior to 1930, two factors were thought to remove plants from patent protection. The first was the belief that plants, even those artificially bred, were products of nature for purposes of the patent law. This position appears to have derived from the decision of the Patent Office in Ex parte Latimer, 1889 Dec. Com. Pat. 123, in which a patent claim for fiber found in the needle of the Pinus australis was rejected. The Commissioner reasoned that a contrary result would permit “patents [to] be obtained upon the trees of the forest and the plants of the earth, which of course would be unreasonable and impossible.” Id., at 126. The Latimer case, it seems, came to “se[t] forth the general stand taken in these matters” that plants were natural products not subject to patent protection. Thorne, Relation of Patent Law to Natural Products, 6 J. Pat. Off. Soc. 23, 24 (1923). The second obstacle to patent protection for plants was the fact that plants were thought not amenable to the “written description” requirement of the patent law. See 35 U. S. C. § 112. Because new plants may differ from old only in color or perfume, differentiation by written description was often impossible. See Hearings on H. R. 11372 before the House Committee on Patents, 71st Cong., 2d Sess., 7 (1930) (memorandum of Patent Commissioner Robertson).
In enacting the Plant Patent Act, Congress addressed both of these concerns. It explained at length its belief that the work of the plant breeder “in aid of nature” was patentable invention. S. Rep. No. 315, 71st Cong., 2d Sess., 6-8 (1930); H. R. Rep. No. 1129, 71st Cong., 2d Sess., 7-9 (1930). And it relaxed the written description requirement in favor of “a description ... as complete as is reasonably possible.” 35 U. S. C. § 162. No Committee or Member of Congress, however, expressed the broader view, now urged by the petitioner, that the terms “manufacture” or “composition of matter” exclude living things. The sole support for that position in the legislative history of the 1930 Act is found in the conclusory statement of Secretary of Agriculture Hyde, in a letter to the Chairmen of the House and Senate Committees considering the 1930 Act, that “the patent laws ... at the present time are understood to cover only inventions or discoveries in the field of inanimate nature.” See S. Rep. No. 315, supra, at Appendix A; H. R. Rep. No. 1129, supra, at Appendix A. Secretary Hyde’s opinion, however, is not entitled to controlling weight. His views were solicited on the administration of the new law and not on the scope of patentable subject matter — an area beyond his competence. Moreover, there is language in the House and Senate Committee' Reports suggesting that to the extent Congress considered the matter it found the Secretary’s dichotomy unpersuasive. The Reports observe:
“There is a clear and logical distinction between the discovery of a new variety of plant and of certain inanimate things, such, for example, as a new and useful natural mineral. The mineral is created wholly by nature unassisted by man. ... On the other hand, a plant discovery resulting from cultivation is unique, isolated, and is not repeated by nature, nor can it be reproduced by nature unaided by man. . . .” S. Rep. No. 315, supra, at 6; H. R. Rep. No. 1129, supra, at 7 (emphasis added).
Congress thus recognized that the relevant distinction was not between living and inanimate things, but between products of nature, whether living or not, and human-made inventions. Here, respondent’s micro-organism is the result of human ingenuity and research. Hence, the passage of the Plant Patent Act affords the Government no support.
Nor does the passage of the 1970 Plant Variety Protection Act support the Government’s position. As the Government acknowledges, sexually reproduced plants were not included under the 1930 Act because new varieties could not be reproduced true-to-type through seedlings.. Brief for Petitioner 27, n. 31. By 1970, however, it was generally recognized that true-to-type reproduction was possible and that plant patent protection was therefore appropriate. The 1970 Act extended that protection. There is nothing in its language or history to suggest that it was enacted because § 101 did not include living things.
In particular, we find nothing in the exclusion of bacteria from plant variety protection to support the petitioner’s position. See n. 7, supra. The legislative history gives no reason for this exclusion. As the Court of Customs and Patent Appeals suggested, it may simply reflect congressional agreement with the result reached by that court in deciding In re Arzberger, 27 C. C. P. A. (Pat.) 1315, 112 F. 2d 834 (1940), which held that bacteria were not plants for the purposes of the 1930 Act. Or it may reflect the fact that prior to 1970 the Patent Office had issued patents for bacteria under § 101. In any event, absent some clear indication that Congress “focused on [the] issues . . . directly related to the one presently before the Court" SEC v. Sloan, 436 U. S. 103, 120-121 (1978), there is no basis for reading into its actions an intent to modify the plain meaning of the words found in § 101. See TV A v. Hill, 437 U. S. 153, 189-193 (1978) ; United States v. Price, 361 U. S. 304, 313 (1960).
(B)
The petitioner’s second argument is that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. His position rests on the fact that genetic technology was unforeseen when Congress enacted § 101. From this it is argued that resolution of the patentability of inventions such as respondent’s should be left to Congress. The legislative process, the petitioner argues, is best equipped to weigh the competing economic, social, and scientific considerations involved, and to determine whether living organisms produced by genetic engineering should receive patent protection. In support of this position, the petitioner relies on our recent holding in Parker v. Flook, 437 U. S. 584 (1978), and the statement that the judiciary “must proceed cautiously when . . . asked to extend patent rights into areas wholly unforeseen by Congress.” Id., at 596.
It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in § 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting “the Progress of Science and the useful Arts” with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms.
Nothing in Flook is to the contrary. That case applied our prior precedents to determine that a “claim for an improved method of calculation, even when tied to a specific end use, is unpatentable subject matter under § 101.” 437 U. S., at 595, n. 18. The Court carefully scrutinized the claim at issue to determine whether it was precluded from patent protection under “the principles underlying the prohibition against patents for 'ideas’ or phenomena of nature.” Id., at 593. We have done that here. Flook did not announce a new principle that inventions in areas not contemplated by Congress when the patent laws were enacted are unpatentable per se.
To read that concept into Flook would frustrate the purposes of the patent law. This Court frequently has observed that a statute is not to be confined to the “particular application [s] . . . contemplated by the legislators.” Barr v. United States, 324 U. S. 83, 90 (1945). Accord, Browder v. United States, 312 U. S. 335, 339 (1941); Puerto Rico v. Shell Co., 302 U. S. 253, 257 (1937). This is especially true in the field of patent law. A rule that unanticipated inventions are without protection would conflict with the core concept of the patent law that anticipation undermines patentability. See Graham v. John Deere Co., 383 U. S., at 12-17. Mr. Justice Douglas reminded that the inventions most benefiting mankind are those that “push back the frontiers of chemistry, physics, and the like.” Great A. & P. Tea Co. v. Supermarket Corp., 340 U. S. 147, 154 (1950) (concurring opinion). Congress employed broad general language in drafting § 101 precisely because such inventions are often unforeseeable.
To buttress his argument, the petitioner, with the support of amicus, points to grave risks that may be generated by research endeavors such as respondent’s. The briefs present a gruesome parade of horribles. Scientists, among them Nobel laureates, are quoted suggesting that genetic research may pose a serious threat to the human race, or, at the very least, that the dangers are far too substantial to permit such research to proceed apace at this time. We are told that genetic research and related technological developments may spread pollution and disease, that it may result in a loss of genetic diversity, and that its practice may tend to depreciate the value of human life. These arguments are forcefully, even passionately, presented; they remind us that, at times, human ingenuity seems unable to control fully the forces it creates— that, with Hamlet, it is sometimes better “to bear those ills we have than fly to others that we know not of.”
It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is patentable subject matter under § 101. We disagree. The grant or denial of patents on micro-organisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent's claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all.
What is more important is that we are without competence to entertain these arguments — either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the Government, the Congress and the Executive, and not to the courts
We have emphasized in the recent past that “[o]ur individual appraisal of the wisdom or unwisdom of a particular [legislative] course ... is to be put aside in the process of interpreting a statute.” TV A v. Hill, 437 U. S., at 194. Our task, rather, is the narrow one of determining what Congress meant by the words it used in the statute; once that is done our powers are exhausted. Congress is free to amend § 101 so as to exclude from patent protection organisms produced by genetic engineering. Cf. 42 U. S. C. § 2181 (a), exempting from patent protection inventions “useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon.” Or it may choose to craft a statute specifically designed for such living things. But, until Congress takes such action, this Court must construe the language of § 101 as it is. The language of that section fairly embraces respondent’s invention.
Accordingly, the judgment of the Court of Customs and Patent Appeals is
Affirmed.
Plasmids are hereditary units physically separate from the chromosomes of the cell. In prior research, Chakrabarty and an associate discovered that plasmids control the oil degradation abilities of certain bacteria. In particular, the two researchers discovered plasmids capable of degrading camphor and octane, two components of crude oil. In the work represented by the patent application at issue here, Chakrabarty discovered a process by which four different plasmids, capable of degrading four different oil components, could be transferred to and maintained stably in a single Pseudomonas bacterum, which itself has no capacity for degrading oil.
At present, biological control of oil spills requires the use of a mixture of naturally occurring bacteria, each capable of degrading one component of the oil complex. In this way, oil is decomposed into simpler substances which can serve as food for aquatic life. However, for various reasons, only a portion of any such mixed culture survives to attack the oil spill. By breaking down multiple components of oil, Chakrabarty’s microorganism promises more efficient and rapid oil-spill control.
The Board concluded that the new bacteria were not “products of nature,” because Pseudomonas bacteria containing two or more different energy-generating plasmids are not naturally occurring.
Bergy involved a patent application for a pure culture of the microorganism Streptomyces vellosus found to be useful in the production of lincomycin, an antibiotic.
This case does not involve the other “conditions and requirements” of the patent laws, such as novelty and nonobviousness. 35 U. S. C. §§ 102, 103.
This same language was employed by P. J. Federico, a principal draftsman of the 1952 reeodification, in his testimony regarding that legislation: “[U]nder section 101 a person may have invented a machine or a manufacture, which may include anything under the sun that is made by man. . . .” Hearings on H. R. 3760 before Subcommittee No. 3 of the House Committee on the Judiciary, 82d Cong., 1st Sess., 37 (1951).
The Plant Patent Act of 1930, 35 U. S. C. § 161, provides in relevant part:
“Whoever invents or discovers and asexually reproduces any distinct and new variety of plant, including cultivated sports, mutants, hybrids, and newly found seedlings, other than a tuber propogated plant or a plant found in an uncultivated state, may obtain a patent therefor. . . .”
The Plant Variety Protection Act of 1970, provides in relevant part:
“The breeder of any novel variety of sexually reproduced plant (other than fungi, bacteria, or first generation hybrids) who has so reproduced the variety, or his successor in interest, shall be entitled to plant variety protection therefor. ...” 84 Stat. 1547, 7 U. S. C. § 2402 (a).
See generally, 3 A. Deller, Walker on Patents, ch. EX (2d ed. 1964); R. Allyn, The First Plant Patents (1934).
Writing three years after the passage of the 1930 Act, R. Cook, Editor of the Journal of Heredity, commented: “It is a little hard for plant men to understand why [Art. I, § 8] of the Constitution should not have been earlier construed to include the promotion of the art of plant breeding. The reason for this is probably to be found in the principle that natural products are not patentable.” Florists Exchange and Horticultural Trade World, July 15, 1933, p. 9.
In 1873, the Patent Office granted Louis Pasteur a patent on “yeast, free from organic germs of disease, as an article of manufacture.” And in 1967 and 1968, immediately prior to the passage of the Plant Variety Protection Act, that Office granted two patents which, as the petitioner concedes, state claims for living micro-organisms. See Reply Brief for Petitioner 3, and n. 2.
Even an abbreviated list of patented inventions underscores the point: telegraph (Morse, No. 1,647); telephone (Bell, No. 174,465); electric lamp (Edison, No. 223,898); airplane (the Wrights, No. 821,393); transistor (Bardeen & Brattain, No. 2,524,035); neutronic reactor (Fermi & Szilard, No.. 2,708,656); laser (Schawlow & Townes, No. 2,929,922). See generally Revolutionary Ideas, Patents & Progress in America, United States Patent and Trademark Office (1976).
We are not to be understood as suggesting that the political branches have been laggard in the consideration of the problems related to genetic research and technology. They have already taken action. In 1976, for example, the National Institutes of Health released guidelines for NIH-sponsored genetic research which established conditions under which such research could be performed. 41 Fed. Reg. 27902. In 1978 those guidelines were revised and relaxed. 43 Fed. Reg. 60080, 60108, 60134. And Committees of the Congress have held extensive hearings on these matters. See, e. g., Hearings on Genetic Engineering before the Subcommittee on Health of the Senate Committee on Labor and Public Welfare, 94th Cong., 1st Sess. (1975); Hearings before the Subcommittee on Science, Technology, and Space of the Senate Committee on Commerce, Science, and Transportation, 95th Cong., 1st Sess. (1977); Hearings on H. R. 4759 et al. before the Subcommittee on Health and the Environment of the House Committee on Interstate and Foreign Commerce, 95th Cong., 1st Sess. (1977).
Question: What is the agency involved in the administrative action?
001. Army and Air Force Exchange Service
002. Atomic Energy Commission
003. Secretary or administrative unit or personnel of the U.S. Air Force
004. Department or Secretary of Agriculture
005. Alien Property Custodian
006. Secretary or administrative unit or personnel of the U.S. Army
007. Board of Immigration Appeals
008. Bureau of Indian Affairs
009. Bureau of Prisons
010. Bonneville Power Administration
011. Benefits Review Board
012. Civil Aeronautics Board
013. Bureau of the Census
014. Central Intelligence Agency
015. Commodity Futures Trading Commission
016. Department or Secretary of Commerce
017. Comptroller of Currency
018. Consumer Product Safety Commission
019. Civil Rights Commission
020. Civil Service Commission, U.S.
021. Customs Service or Commissioner or Collector of Customs
022. Defense Base Closure and REalignment Commission
023. Drug Enforcement Agency
024. Department or Secretary of Defense (and Department or Secretary of War)
025. Department or Secretary of Energy
026. Department or Secretary of the Interior
027. Department of Justice or Attorney General
028. Department or Secretary of State
029. Department or Secretary of Transportation
030. Department or Secretary of Education
031. U.S. Employees' Compensation Commission, or Commissioner
032. Equal Employment Opportunity Commission
033. Environmental Protection Agency or Administrator
034. Federal Aviation Agency or Administration
035. Federal Bureau of Investigation or Director
036. Federal Bureau of Prisons
037. Farm Credit Administration
038. Federal Communications Commission (including a predecessor, Federal Radio Commission)
039. Federal Credit Union Administration
040. Food and Drug Administration
041. Federal Deposit Insurance Corporation
042. Federal Energy Administration
043. Federal Election Commission
044. Federal Energy Regulatory Commission
045. Federal Housing Administration
046. Federal Home Loan Bank Board
047. Federal Labor Relations Authority
048. Federal Maritime Board
049. Federal Maritime Commission
050. Farmers Home Administration
051. Federal Parole Board
052. Federal Power Commission
053. Federal Railroad Administration
054. Federal Reserve Board of Governors
055. Federal Reserve System
056. Federal Savings and Loan Insurance Corporation
057. Federal Trade Commission
058. Federal Works Administration, or Administrator
059. General Accounting Office
060. Comptroller General
061. General Services Administration
062. Department or Secretary of Health, Education and Welfare
063. Department or Secretary of Health and Human Services
064. Department or Secretary of Housing and Urban Development
065. Administrative agency established under an interstate compact (except for the MTC)
066. Interstate Commerce Commission
067. Indian Claims Commission
068. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
069. Internal Revenue Service, Collector, Commissioner, or District Director of
070. Information Security Oversight Office
071. Department or Secretary of Labor
072. Loyalty Review Board
073. Legal Services Corporation
074. Merit Systems Protection Board
075. Multistate Tax Commission
076. National Aeronautics and Space Administration
077. Secretary or administrative unit or personnel of the U.S. Navy
078. National Credit Union Administration
079. National Endowment for the Arts
080. National Enforcement Commission
081. National Highway Traffic Safety Administration
082. National Labor Relations Board, or regional office or officer
083. National Mediation Board
084. National Railroad Adjustment Board
085. Nuclear Regulatory Commission
086. National Security Agency
087. Office of Economic Opportunity
088. Office of Management and Budget
089. Office of Price Administration, or Price Administrator
090. Office of Personnel Management
091. Occupational Safety and Health Administration
092. Occupational Safety and Health Review Commission
093. Office of Workers' Compensation Programs
094. Patent Office, or Commissioner of, or Board of Appeals of
095. Pay Board (established under the Economic Stabilization Act of 1970)
096. Pension Benefit Guaranty Corporation
097. U.S. Public Health Service
098. Postal Rate Commission
099. Provider Reimbursement Review Board
100. Renegotiation Board
101. Railroad Adjustment Board
102. Railroad Retirement Board
103. Subversive Activities Control Board
104. Small Business Administration
105. Securities and Exchange Commission
106. Social Security Administration or Commissioner
107. Selective Service System
108. Department or Secretary of the Treasury
109. Tennessee Valley Authority
110. United States Forest Service
111. United States Parole Commission
112. Postal Service and Post Office, or Postmaster General, or Postmaster
113. United States Sentencing Commission
114. Veterans' Administration or Board of Veterans' Appeals
115. War Production Board
116. Wage Stabilization Board
117. State Agency
118. Unidentifiable
119. Office of Thrift Supervision
120. Department of Homeland Security
121. Board of General Appraisers
122. Board of Tax Appeals
123. General Land Office or Commissioners
124. NO Admin Action
125. Processing Tax Board of Review
Answer: |
songer_direct1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
Arthur J. PALMER, Appellant, v. UNITED STATES of America, Appellee.
No. 19149.
United States Court of Appeals Ninth Circuit.
June 8, 1964.
Rehearing Denied Aug. 25, 1964.
Arthur J. Palmer, Leavenworth, Kansas, appellant pro se.
Sidney I. Lezak, U. S. Atty., Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee.
Before CHAMBERS, HAMLEY and HAMLIN, Circuit Judges.
PER CURIAM:
The order denying appellant’s motion under 28 U.S.C. § 2255 is affirmed.
We are satisfied that the court’s finding that Palmer’s plea was entered understandingly and voluntarily is correct.
We find no merit in Palmer’s contention that 26 U.S.C. § 4724 violates the Fifth Amendment.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
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. Leonard SMITH, Appellant.
No. 71-1852.
United States Court of Appeals, District of Columbia Circuit.
Sept. 26, 1972.
As Amended Oct. 3, 1972.
Messrs. Edgar H. Brenner and Steven P. Lockman, Washington, D. C. (appointed by this Court), were on the brief for appellant.
Mr. Harold H. Titus, Jr., U. S. Atty., was on the brief for appellee. Messrs. John A. Terry, Warren L. Miller, and James F. McMullin, Asst. U. S. Attys., were also on the brief for appellee.
Before McGOWAN, LEYENTHAL, and MacKINNON, Circuit Judges.
PER CURIAM:
Appellant was convicted of assault with intent to commit rape in violation of D.C.Code § 22-501 for which he received a sentence of one to five years in prison. His appeal principally challenges the admission into evidence of a benzidine test which was administered at the police station and allegedly indicated the presence of blood on his penis shortly after the assault. The trial judge held a pretrial hearing and denied appellant’s motion to suppress the results of the test. We sustain his ruling and the admission into evidence of the result of such test and affirm the judgment of conviction.
I
The jury found that appellant, with intent to rape, had assaulted the four and one-half-year-old daughter of a woman with whom he was living. The assault was viewed through a hole in a bedroom door by the six-year-old daughter and was corroborated by substantial physical evidence. The victim’s eyes were red and swollen and caked with tears, and her mother testified:
I started to examine her and I screamed. I got the towel and I wet it so I could wipe her off. ... I saw blood and bowel movement and I saw some white stuff. ... I thought it was some of the sperms or discharge or something. ... I use the word torn and busted up. Her rectum was bleeding . . . she had blood, red all around her rectum. . . . (Tr. 64).
A timely inspection by the victim’s grandmother and by a medical doctor (obstetrics and gynecology) at District of Columbia General Hospital confirmed abuse and damage to the child's rectum and vagina. Appellant and the grandmother’s husband were the only men known to be in the house at the time. The house was so arranged that the grandmother would have noticed any person entering the apartment where the children were playing.
An immediate complaint was made to the police and two detectives came to the house to investigate the allegations. The detectives asked appellant to accompany them to police headquarters “to get the matter straightened out” and the trial judge concluded that this constituted an arrest. Appellant was advised of his constitutional rights from a form which he signed (Tr. 95, 181-183). In response to police questions appellant declared that none of the several women with whom he had had sexual relations during the past few days had been menstruating (Tr. 178, 185). It was then explained to appellant that the police would like him to undergo a benzidine test “to see if there was a show of blood” (Tr. 179). The mechanics of the test were outlined, and appellant was advised that if the test results were positive he would be charged with the offense, if negative, he would be released (Tr. 179). Appellant replied that “he had no fear about the test because he knew it wouldn’t come up positive” (Tr. 181). At headquarters the technician explained the principles of the test to appellant (Tr. 187). When simple visual inspection of appellant’s penis disclosed nothing unusual (blood would have been unusual), the benzidine test was performed (Tr. 188). “There was a positive color reaction” (Tr. 99). At trial, in response to evidence of the positive reaction which resulted from the benzidine test appellant changed the story he had given to the police at the time of his arrest and claimed that the night before the alleged offense he had had sexual relations with a neighbor, whose name he could not recall, who had begun to menstruate during their act of sexual intercourse (Tr. 118). When cross examined about this inconsistency with the prior statement that he had made to the police, appellant attempted to reconcile the inconsistency thus:
But, see, they asked me have I had intercourse with anybody who was on a period. But I didn’t have intercourse with anybody who was on a period at that time. I had intercourse with somebody who came on the period. (Tr. 119-120).
II
Appellant now contends that the administration of the benzidine test upon his person was an unreasonable search and seizure in violation of the Fourth Amendment and resulted in a deprivation of his right to counsel as guaranteed by the Sixth Amendment. In reply to these claims the trial court found:
(1) appellant was not entitled to counsel at police headquarters and did not seek counsel; (2) appellant consented to the test, even though his consent was not required; (3) the test was incident to a lawful arrest based upon probable cause; (4) the test was “purely chemical,” as opposed to “medical” within the meaning of Schmerber v. California [384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)].
Appellant prefaces this claim by an assertion that the detectives did not arrest him. However, Form PD-47 (Tr. 182) which was read to him and which he signed states in the first sentence, “You are under arrest”; and the trial judge found that he had been arrested. We agree with the finding of the trial court which means that the test was a search incident to a lawful arrest. We also conclude that the search was reasonable since it was obviously necessary to conduct the test as promptly as possible because of the ease with which the evidence could be destroyed by a thorough washing. The simplicity of the test makes it unnecessary to have it conducted by a physician. It is a chemical test not a medical test and was properly administered by a trained police technician. His qualifications were not questioned. Having found that the test was administered pursuant to a valid arrest (for which there was probable cause), the constitutional validity of the test as a valid search is recognized by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). It should also be noted that Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969) stated:
[I]t is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. (Emphasis added.)
Since we find the test was reasonable and was conducted pursuant to a valid arrest we need not go on to find, as the trial court found, that appellant had properly consented to the test.
Ill
With respect to appellant’s claim that he had a right to counsel at the police station when the benzidine test was administered we note: (1) he was advised of his right to counsel; (2) he did not request counsel (as the trial court found); and (3) counsel was not required. The last point was determined in United States v. Wade, 388 U.S. 218, 227-228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967) where the Supreme Court held that counsel was required at a lineup but not at
“various other preparatory steps, such as systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing, hair, and the like. We think there are differences which preclude such stages being characterized as critical stages at which the accused has the right to the presence of his counsel. Knowledge of the techniques of science and technology is sufficiently available, and the variables in techniques few enough, that the accused has the opportunity for a meaningful confrontation of the Government’s case at trial through the ordinary processes of cross-examination of the Government’s expert witnesses and the presentation of the evidence of his own experts. The denial of a right to have his counsel present at such analyses does not therefore violate the Sixth Amendment; they are not critical stages since there is minimal risk that his counsel’s absence- at such stages might derogate from his right to a fair trial.” (Emphasis added).
The benzidine test is obviously one of the preparatory steps which is excluded from the Sixth Amendment right to counsel. Since it is constitutionally valid to take an internal blood sample for scientific analysis pursuant to a valid arrest where, as here, there was an urgency to prevent the destruction of evidence, certainly it is permissible to take an external sample of blood by a simple cotton swab. Schmerber v. California, supra, 384 U.S. at 770, 771, 86 S.Ct. 1826. We see no similarity to the situation present in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), or to the law there announced. If counsel had been present and counselled against submitting to the test, such advice would have been futile because the police were entitled to make the test. Schmerber v. California, supra, 384 U.S. at 765-766, 86 S.Ct. 1826. Lewis v. United States, 127 U.S.App.D.C. 269, 271, 382 F.2d 817, 819 (1967). The trial court so found and we agree.
IV
Finally, we deal with the contention made in appellant’s reply brief that since the Government admits that the benzidine test yields a positive response to substances other than blood the conviction of appellant must be set aside. The Government’s brief states:
“Appellee is constrained to inform this Court that substances other than blood will also yield a positive color reaction, including rust, mud and shoe polish. The initial positive reaction rises to conclusive evidence of the presence of blood only when it is supported by microchemical analysis revealing the presence of hemoglobin, a compound unique to the red corpuscles of vertebrates.” (Emphasis added.) Government’s br. at 8, n.6.
Appellant contends that his counsel did not
have any reason to believe that the positive reaction which resulted could have been caused by any substance other than blood. The technician who conducted the test gave clear and unequivocal testimony as to the nature of the test, but never mentioned this very important fact. The impression created by his testimony was that the test result positively demonstrated the presence of blood on appellant’s penis.
* * * » -X *
The fact-finding process was seriously-tainted by the unqualified assertions of the Government witness and reliance thereon by Government counsel during his closing argument. Since disclosure of all the facts with respect to the test “might have led the jury to entertain a reasonable doubt about appellant’s guilt,” the conviction cannot stand.
There might be some merit to this argument in a different context. What appellant here contends is that at trial the test was considered as proving that appellant’s penis had been exposed to blood. We fail to see how that could in any way be prejudicial to the appellant since at trial he admitted that his penis had been so exposed shortly before the test was administered. At trial in his testimony he attempted to attribute it to another source, and at closing argument his counsel stated, “It could be anybody’s blood.” While this later contention was too broad in view of the evidence of record which narrowed the possibilities to two persons, it did point out, what was not denied, that the test did not prove that it was the blood of the victim in this case. The test was never alleged to prove anything different than what appellant admits, i. e., that his penis had recently been exposed to blood. Since he admitted that, the fact that it was an overstatement to claim that the test alone proved the same thing is in no way prejudicial to him. After such testimony, the only issue was whether the jury would believe the Government’s testimony or appellant’s explanation and the rest of his testimony — their verdict indicates that they believed the Government witnesses. It was well within their province so to find.
Affirmed.
. D.C.Code § 22-501 provides:
Every person convicted of any assault with intent to kill or to commit rape . . . shall be sentenced to imprisonment for not more than fifteen years.
. A He said that he had had relations with other women in the past several days.
Q And did he say whether or not any of those had been on their period?
A He stated that none of them had been.
Tr. 178.
. The benzidine test consists in swabbing the suspected area with cotton that has been saturated with water. The cotton is then immersed in a benzidine solution. “If blood is present you will get a bright bluish-green reaction from the benzidine solution.” Even the most minute quantity of blood will trigger the reaction (Tr. 98). The instant test was administered to the area in “the ridge directly under the helmet [of the penis which] is a general catching place for stains. It doesn’t necessarily or normally come in contact with clothing and so on. So this is the area that I examined” (Tr. 99).
. District Court memorandum opinion, p. 2.
. Appellant’s brief states:
We do not suggest that either the technician or the Government’s trial attorney deliberately withheld the exculpatory facts concerning the test from appellant and his counsel.
. Appellant’s brief states :
This was the impression created at tlie j)retrial suppression hearing as well. Judge Gesell’s opinion states that appellant “arrived at the precinct at C :00 p. m. and was formally charged at 6:25 p. m., after a benzidine test on his penis disclosed presence of blood.”
. Appellant’s brief states :
The technician’s testimony appears at transcript pages 97-100 and 187-188. The following interchange on cross-examination is illustrative:
“Q. And is it not also the ease that your test is not the kind of test that indicates the person from whom the blood came? It really says whether or not you have Hood in the sample?
A Yes sir, that is true.”
(Emphasis supplied) Tr. 100.
. That rust, mud or shoe polish would be present in the small highly protected area where the test was administered is highly unlikely and appellant makes no such claim.
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_typeiss | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
Maurice BUTLER, et al., Petitioners, v. CONTINENTAL WESTERN LINES, A DIVISION OF TRAILWAYS, INC., et al.
No. 80-2525.
United States Court of Appeals, District of Columbia Circuit.
Argued Oct. 28, 1981.
Decided Nov. 20, 1981.
Theodore E. Lombard, Washington, D. C., for petitioners.
•Richard W. Galiher, Jr., Washington, D. C., with whom Richard W. Galiher, William H. Clarke, Frank J. Martell, and William J. Donnelly, Jr., Washington, D. C., were on the brief, for respondents.
Before MacKINNON and GINSBURG, Circuit Judges, and PHILIP NICHOLS, Jr., Judge, United States Court of Claims.
Sitting by designation pursuant to 28 U.S.C. § 293(a).
Opinion PER CURIAM.
PER CURIAM:
Petitioners, children of deceased worker Samuel Butler, sought death benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950, made applicable to the District of Columbia by D.C.Code § 36-501. The Act applies
in respect to the injury or death of an employee of an employer carrying on any employment in the District of Columbia, irrespective of the place where the injury or death occurs; except that in applying such provisions the term “employer” shall be held to mean every person carrying on any employment in the District of Columbia, and the term “employee” shall be held to mean every employee of any such person.
An administrative law judge denied the claim on the ground that the jurisdictional requirements of the Act were not met, and the Benefits Review Board, United States Department of Labor, agreed with that conclusion.
We affirm the Board’s decision. The employment situation in this case did not bear any substantial connection to the District of Columbia. Therefore petitioners’ claim falls beyond the reach of the Act. See Director, OWCP v. National Van Lines, Inc., 613 F.2d 972, 979-81 (D.C.Cir.1979), cert. denied, 448 U.S. 907, 100 S.Ct. 3049, 65 L.Ed.2d 1136 (1980) (citing and quoting Cardillo v. Liberty Mutual Insurance Co., 330 U.S. 469, 476, 67 S.Ct. 801, 805, 91 L.Ed. 1028 (1947) (reach of the Act is limited to cases presenting “some substantial connection between the District and the particular employee-employer relationship”)).
Samuel Butler, the deceased worker, formerly resided in the District of Columbia. He was divorced in 1968 and left the District in 1970. From 1972 until his death in 1976, he resided in California. During the period of his residence in California, he was employed as a bus driver by Continental Western Lines, a division of Trailways, Inc., a Texas corporation. Butler’s employment as a driver for Continental did not bring him within 2,000 miles of the District of Columbia. He died on the job in Canyon City, Colorado. Trailways, Inc. did not, except through corporate subsidiaries, employ anyone in the District of Columbia. Butler was not employed by Trailways or any Trailways affiliate prior to his departure from the District.
Petitioners rely upon two factors to connect their claim to the District: three subsidiaries of the Trailways corporate family operate here; Butler’s children reside in the District and are the compensation claimants. The local operations of Trailways subsidiaries could not supply a legitimate basis for District of Columbia regulation of Butler’s west coast employment situation. Butler’s work for Continental never brought him east of the Mississippi and no aspect of his employment was supervised or managed from the District. Cf. Director, OWCP v. Boughman, 545 F.2d 210 (D.C.Cir. 1976) (facts relevant to application of District of Columbia law summarized in Director, OWCP v. National Van Lines, Inc., supra, 613 F.2d at 982) (District Act applied, although deceased employee resided in California, where employer’s national headquarters were in the District and employee, occasionally came here on business relating to his employment).
Turning to the District residence of the claimants in this case, we find no authority for the suggestion that employers reasonably may be subjected to the compensation laws, and the obligation to insure, in any place in which their employees may have dependent children. Petitioners’ counsel stresses the clear interest the District has in the welfare of children living here. But counsel was unable to cite any reported case in which the residence of the claimants, when it differed from the residence of the deceased employee, was the connection successfully relied upon to invoke application of a workers’ compensation statute.
In sum, we do not think the District’s Compensation Act is so pliable that it can be interpreted to reach an employment relationship as distant from the District- as the one between Continental and Samuel Butler. But even if we could fit petitioners’ claim to the terms of the statute we would hesitate to ascribe to Congress a design to sweep this case within the governance of District of Columbia law, cf. Church of the Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892), particularly in view, of the constitutional question such an extension of the District’s law would raise. See Cardillo v. Liberty Mutual Insurance Co., supra.
For the reasons stated herein, we find no basis for disturbing the administrative decision on review. The order of the Benefits Review Board is accordingly
Affirmed.
. At argument, petitioners’ counsel confirmed that petitioners have filed a timely claim for workers’ compensation benefits in California.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer: |
songer_r_natpr | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Luisa A. DE ABADIA, et al., Plaintiffs, Appellees, v. Hon. Luis IZQUIERDO MORA, et al., Defendants, Appellants.
Nos. 85-1505, 85-1520.
United States Court of Appeals, First Circuit.
Argued Sept. 13, 1985.
Decided May 27, 1986.
Rehearing and Rehearing En Banc Denied June 27, 1986.
Marcos A. Ramirez Lavandera with whom Marcos A. Ramirez and Ramirez & Ramirez, Hato Rey, P.R., were on brief, for defendants, appellants.
Jose E. Fernandez-Sein with whom Law Offices of Nachman & Fernandez-Sein, Santurce, P.R., was on brief, for plaintiffs, appellees.
Before CAMPBELL, Chief Judge, and ALDRICH and TORRUELLA, Circuit Judges.
BAILEY ALDRICH, Senior Circuit Judge.
This is our second installment in a saga of Puerto Rican politics following the gubernatorial election of November 1984. See Jimenez-Fuentes v. Torres Gaztambide, 779 F.2d 765 (1st Cir.1985) (since withdrawn and decision en banc now awaited). Plaintiff Luisa de Abadía, a member of the party (PNP) ousted in that election and former Executive Director of the Quality Control Program of the Department of Health, seeks monetary damages and injunctive relief under 42 U.S.C. § 1983 against Luis A. Izquierdo Mora, the recently appointed Secretary of the Department of Health, Guillermo Irizarry, the Administrator of the Department, and Sonia I. Colon Robles, the Department’s Personnel Director. She alleges that defendants violated her civil rights when they demoted her to a “career” position as a nutritionist within the Department. Specifically, she claims her demotion was due to her political affiliation, in violation of the strictures of Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), and Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). Defendants moved for summary judgment, arguing that the qualified immunity to which, as public officials, they were entitled, see Harlow v. Fitzgerald, 457 U.S. 800,102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), precluded recovery in damages against them, whatever the outcome of the injunctive claim. The district court denied the motion, and defendants appeal.
Strictly, defendants filed two motions. The court disposed first of their motion to delay discovery until the motion for summary judgment was acted upon. In denying this, by written order, the court said that although it might agree that officials might be entitled to a qualified immunity in claims for damages in a proper case,
“this action is ... not an action seeking damages, but is also an action for injunctive relief against which the defendants may not be entitled to a claim of qualified immunity. Generally, the immunity doctrine is only applicable to actions for damages and cannot be employed in suits seeking declaratory or injunctive relief. Mitchum v. Foster, 407 U.S. 225 [92 S.Ct. 2151, 32 L.Ed.2d 705], Thus, the issue of immunity is not as clear cut as defendants argue in their motion to stay.”
Our thought that the court was here confusing the making of an early ruling as to immunity with the right to an immediate appeal, where both damages and an injunction were involved, is confirmed by its later, oral, ruling denying the motion for summary judgment. When the parties discussed the merits of that motion, and the court stated it would deny it, it added, “It is not appealable, anyway.” The following then occurred.
Mr. Ramirez: It is appealable if it denies qualified immunity, that’s one of the cases we cited on the motion.
The Court: I am not denying qualified immunity, I am denying your motion for summary judgment, two different things.
Mr. Ramirez: It includes qualified immunity.
The Court: You raised it, but in an injunction I am not so sure that qualified immunity applies or not, as I . said in my order denying your request to stay.
Mr. Ramirez: Okay so Your Honor is denying then the—
The Court: I am denying your motion for summary judgment, I believe that there is a controversy of fact that cannot be resolved through summary judgment.
This would seem to raise two points: whether it was correct to deny the motion for summary judgment, and whether an incorrect denial would be appealable.
We consider first whether denial of summary judgment on a claim of qualified immunity which the Court held in Mitchell v. Forsyth, — U.S.-, 105 S.Ct. 2806, 86
L.Ed.2d 411 (1985), warranted an immediate appeal as a “final decision” in an action simply for damages, would not permit an immediate appeal if there were also a claim for injunctive relief. This question was left open in Mitchell, ante, at 2812, footnote 5. Before Mitchell, two circuits had divided on this question. The Fourth, Bever v. Gilbertson, 724 F.2d 1083 (4th Cir. 1984) (2-1), denied appealability; Tubbesing v. Arnold, 742 F.2d 401 (8th Cir.1984), held contra. We have found no other cases since Mitchell, and it is a matter of first impression in this circuit. In Krohn v. United States, 742 F.2d 24 (1st Cir.1984), we held that the denial of qualified immunity is immediately appealable, but, as in Mitchell, ante, we had before us only a claim for damages. It seems to us, however, that the official’s concerns are the same when there is also a claim for an injunction and we conclude that the rule should extend to such cases.
As the Court said in Mitchell, qualified immunity is more than an immunity from money damages; it is “an immunity from suit ... [which] is effectively lost if a case is erroneously permitted to go to trial.” Id. at 2816 (emphasis in original). This is so, the Court said, because,
the “consequences” with which we were concerned in Harlow are not limited to liability for money damages; they also include “the general costs of subjecting officials to the risks of trial — distraction of officials from their official duties, inhibition of discretionary action, and deterrence of able people from government service.” Id. at 2815 (quoting Harlow, ante, 457 U.S. at 816, 102 S.Ct. at 2737).
Plaintiff argues that because defendants must proceed to trial in any event on the injunctive claim, there is little purpose in allowing them to avoid trial on damages. Plaintiff would quote Bever, ante, 724 F.2d at 1086-87, to the effect that,
[defendants remain] the principal defenders of the state’s position. They will bear a major responsibility for the outcome of the litigation and will be among the principal witnesses at trial. Whether or not they are immune from damages against them in their individual capacities, the litigation will demand their time and attention. A present declaration of immunity from damages claims cannot avoid the diversion of their attention from official duties which the litigation will occasion.
In these circumstances, the question whether a denial of the immunity claims is appealable would appear to have little effect upon the willingness of responsible persons to serve in public office.
With due respect to the Fourth Circuit, we do not follow its reasoning. Its approach assumes that, for a public official, the threat of suit in his individual capacity is no worse than the threat of suit as representative of the state, and that the burdens of defending are no more onerous for the former than the latter. Although we recognize a public official’s obligation to defend a suit brought against him in his public capacity, the emotional, and perhaps physical, responsibility is not as great. “[T]he fear of being sued and held personally liable for damages is a far cry from a suit for reinstatement or injunctive relief, which public officials face regularly in the course of performing their duties.” Bever, ante, 724 F.2d at 1091-92 n. 4 (Hall, J., dissenting). The threat may well include punitive, as well as actual damages. See Carlson v. Green, 446 U.S. 14, 22, 100 S.Ct. 1468, 1473-74, 64 L.Ed.2d 15 (1980). Even if the actual time spent on the case away from his ordinary responsibilities were the same whether the damages claim was in or out, the official’s energy may be diverted from pressing public issues merely by the personal apprehension involved. At the least, the official sued for damages may have to retain, his own counsel at his own expense. Tubbesing, ante, 742 F.2d at 404 n. 3. In this litigious age all of these concerns are legitimate, and might easily deter individuals from taking public office.
Finally, the Fourth Circuit’s approach might invite plaintiffs to include spurious injunctive claims to avoid interlocutory appeal of the immunity question, and thus force the defendant to face the tribulations of a trial from which he may be properly immune.
In sum, we agree with the dissent in Bever, and with Tubbesing in all respects. We hold that an interlocutory appeal lies from the district court’s denial of summary judgment on a claim of qualified immunity from damages liability, even though a petition for injunctive relief is also pending.
Perhaps because of its erroneous views on the availability of an advance ruling on qualified immunity, the district court did not discuss whether defendants had made a sufficient showing of immunity. Instead, it denied summary judgment on the basis of “clear issues of fact,” but made little showing as to their extent beyond reference to the “controversy whether Mrs. Abadía was or was not a confidential employee, what her duties were ... [tjhat’s why I cannot decide by summary judgment.” Obviously if there was a determining question of fact regarding defendant’s qualified immunity defense, denial of the motion was correct. See Fernandez v. Leonard, 784 F.2d 1209, 1214, note 2 (1st Cir.1986).
There is a serious shortage of record. In their proposed pretrial order, the parties listed four disputed matters: 1) whether plaintiff’s position was “confidential”; 2) whether she was terminated for political reasons; 3) whether her position was “policy making”; and 4) whether “political loyalty is an appropriate requirement for the performance of the office.” Not all of these, however, are factual disputes upon which a determination of this motion for summary judgment depends.
To start with Nos. 1 and 3, Branti makes it clear that these classifications do not, per se, excuse political demotions. In Branti, the Court pointed out that labels such as “policymaking” or “confidential” are not what controls; rather, the relevant inquiry is whether “party affiliation is an appropriate requirement for the effective performance of the public office.” 445 U.S. 507 at 518, 100 S.Ct. 1287, 1295, 63 L.Ed.2d 574. Thus, issue Nos. 1 and 3 really merge into, and are not separate from, issue No. 4. At the same time, issue No. 2 does not have to be decided in defendants’ favor if they can succeed on No. 4. Furthermore, with respect to the plaintiff’s claim for damages, defendants need not win on the merits of issue No. 4 if they are entitled to the defense of qualified immunity. If the defendants make a sufficient showing of objective good faith, viz., that at the time of the demotion the law was not “clearly established” against their action, they are immune from suit. Harlow, ante, 457 U.S. at 818, 102 S.Ct. at 2738.
The first question is what is meant by “clearly established.” We consider it to be something less than requiring the public official to show that the principle of law did not exist, or there would be little left; there would be few cases on which officials could succeed. Only rarely do legislatures or courts introduce or change whole principles. More often, the process of change involves a sharpening of lines in the law’s grey areas, absent which there could reasonably be excusable mistakes. The case law supports this broad interpretation. See Harlow, ante, 457 U.S. at 815-19, 102 5. Ct. at 2736-39; Procunier v. Navarette, 434 U.S. 555, 560-65, 98 S.Ct. 855, 859-61, 55 L.Ed.2d 24 (1978); Wood v. Strickland, 420 U.S. 308, 315-22, 95 S.Ct. 992, 997-1001, 43 L.Ed.2d 214 (1975); Scheuer v. Rhodes, 416 U.S. 232, 240-48, 94 S.Ct. 1683, 1688-92, 40 L.Ed.2d 90 (1974). In each of these cases, the Court laid heavy emphasis on the officials’ good faith, now defined by Harlow as objective good faith, as the criterion by which their actions are to be judged.
[T]he public interest requires decision and action____ Public officials ... who fail to make decisions when they are needed or who do not act to implement decisions when they are made do not fully and faithfully perform the duties of their offices. Implicit in the idea that officials have some immunity ... is a recognition that they may err. The concept of immunity assumes this and goes on to assume that it is better to risk some error than not to decide or act at all. Scheuer, ante, 416 U.S. at 241-42, 94 S.Ct. at 1689.
The good faith standard is the Court’s attempt to accommodate this need for discretionary action in areas of uncertainty with the protection of individual rights. “The official cannot be expected to predict the future course of constitutional law, but he will not be shielded from liability if he acts ‘with such disregard of ... clearly established rights that his action cannot reasonably be characterized as being in good faith.’ ” Procunier, ante, 434 U.S. at 562, 98 S.Ct. at 860, (quoting Wood, ante, 420 U.S. at 322, 95 S.Ct. at 1001) (citations omitted). These are concerns that apply just as forcefully to refinements or clarifications of existing doctrine as to radical changes of direction. The cases are also clear that the limits of good faith vary with “the scope of discretion and responsibilities of the office and all the circumstances as they appeared at the time of the action.” Scheuer, ante, 416 U.S. at 247, 94 S.Ct. at 1692. Where, as in this case, the official’s responsibilities are broad, he must be afforded a correspondingly broad range of discretion. While employment decisions may not appear initially to be the type of critical actions for which wide discretion is appropriate, at least at the higher levels, they are essential to the effective implementation of important government policies. See Elrod, ante, 427 U.S. at 367, 372, 96 S.Ct. at 2686-87, 2689.
On this basis, the question becomes, not whether defendants were in fact correct in believing party affiliation to be an appropriate requirement for plaintiff’s position, but whether, viewed objectively, they were reasonable in so believing. If this were an issue of subjective good faith, there might always be a question of fact; it is difficult to think there could ever be summary judgment. However, in the case of objective good faith, that a reasonable man in defendants’ position could have believed his conduct to be warranted, Malley v. Briggs, — U.S. -, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986), may be a purely legal question, Mitchell at 2816-17 n. 9, so that it may be possible for an appellate court to rule that a defendant was reasonable as a matter of law. In that event, no purpose would be served by remanding to the district court. We believe this is such a case.
We start with the fact that Elrod and Branti marked a substantial change in the law. That “party affiliation be an appropriate job requirement” is much easier to say than to apply to the wide number of factual situations bound to occur in any government employing a large number of individuals. In the present state of the law, whatever may be the ultimate resolution on the merits — an issue not before us — of a particular case, may frequently not be easy to say in advance. Certainly at the top there must be political as well as other guidelines for the conduct of the Commonwealth’s Department of Health. Plaintiff, in accordance with governmental regulations, had executed her own official job description as Executive Director of the Department of Health. Plaintiff’s own responsibilities appear to mesh directly therein. With these compare Branti, 445 U.S. at 518, 100 S.Ct. at 1294-95.
[I]t is ... clear that the Governor of a State may appropriately believe that the official duties of various assistants who help him write speeches, explain his views to the press, or communicate with the legislature cannot be performed effectively unless those persons share his political beliefs and party commitments.
Plaintiffs affidavit that her true employment was mundane, only, non constat that she had prepared a quite different job description, ante, on the asserted basis of her actual performance, might create an issue of fact ultimately on the merits, but to permit a proffer of an oral contradiction of her own signed description to create an issue of fact destroying defendants’ qualified immunity would emasculate the entire principle. No official would be free of suit.
We would add that an official should have at least a qualified right to regard an office as embracing the characteristics normal to its nature. If, in fact, the preceding governor withheld the duties embraced in plaintiff’s job description this should not foreclose his successor from naming a replacement with the higher duties. As the court said in Meeks v. Grimes, 779 F.2d 417, 419 n. 1 (7th Cir. 1985),
[The] focus is on the “inherent powers” of the office, not what any individual officeholder actually does.
Elrod and Branti require examination of the powers inherent in a given office, as opposed to the functions performed by a particular occupant of that office. Ness v. Marshall, 660 F.2d 517, 522 (3d Cir.1981); Alfaro de Quevedo v. De Jesus Schuck, 556 F.2d 591, 593 n. 4 (1st Cir.1977); Mummau v. Ranck, 531 F.Supp. 402, 405 (E.D. Pa.1982), affd, 687 F.2d 9, 10 (3d Cir. 1982). Thus, if an officeholder performs fewer or less important functions than usually attend his position, he may still be exempt from the prohibition against political terminations if his position inherently encompasses tasks that render his political affiliation an appropriate prerequisite for effective performance. In this court’s reiteration of the Branti formulation, we emphasized the functions of the office involved, not the officeholder: “The test is whether the position held by the individual authorizes, either directly or indirectly, meaningful input into government decision making on issues where there is room for principled disagreement on goals or their implementation.” Nekolny v. Painter, 653 F.2d 1164,1170 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982). The unarticulated purpose behind this approach seems to be two-fold: first, to resolve the issue entirely in one proceeding, thereby relieving the courts of the burden of having to reexamine a certain position every time a new administration changes the mix of responsibilities bestowed upon the officeholder; and, second, to provide certainty to litigants.
Tomczak v. City of Chicago, 765 F.2d 633, 640-41 (7th Cir.1985). Therefore barring some radical transformation that goes to the core of the nature of the position, the district court need not concern itself with what past or present administrations have done with the office.
Indeed, to labor the point, the very fact that there is a reasonable dispute means that, from the standpoint of qualified immunity, the law was not clearly established in plaintiff’s favor. In Tubbesing v. Arnold a section 1983 discharge action depended upon the meaning of a “personnel policy manual.” In granting defendants qualified immunity the court said, 742 F.2d at 406,
Insofar as there is a disputed issue concerning the Manual, it involves the differing interpretations of Tubbesing and the Board. There is no dispute that the manual was in effect and no dispute about the contents of the Manual. The only question involves its interpretation, and this is a question for the court. Rather than precluding summary judgment, the fact that the application of the Policy Manual [to the directors] is disputed merely emphasizes that the law at the time of the conduct complained of was not clearly established. Even considering the evidence in the light most favorable to Tubbesing, and giving her the benefit of all reasonable inferences, we cannot conclude that there is a genuine issue of fact concerning whether Tubbesing had a “clearly established” right to continued employment.
So viewed we consider that, as a matter of law, defendants could reasonably believe, although on the merits they may ultimately prove to be mistaken, that the position of Executive Director of the Quality Control Program was one that allowed substantial responsibility for the development and implementation of high level policy as detailed in the job description, n. 3 ante, requiring a political outlook compatible with the Secretary’s; in short, that it was a position for which political affiliation was an appropriate requirement. Particularly it should not lie in plaintiff’s mouth, on the issue of defendants’ good faith, to say that they could not regard the job as being what she herself had described it to be. (See n. 5, ante.)
In sum, we are presently concerned not with the correctness of defendants’ determination, on the one hand, nor their subjective state of mind on the other, but of the “objective reasonableness” of their conduct. See Floyd v. Farrell, 765 F.2d 1, 4 & n. 1 (1st Cir.1985). We cannot say that the incorrectness of their conduct was clearly established. Harlow demands not prescience, but objective good faith. In some cases the application, vel non, of Elrod-Branti may be clear; in others it will be sufficiently fraught with uncertainty that an official could not be faulted for failing to apprehend.
We are not without sympathy for district judges who would like full guidance in this difficult area, but we must hesitate to write a textbook providing resolution of all future questions. For now we merely hold, finding appellants to be at least reasonable in believing the law was not clearly established, that they are entitled to qualified immunity from suit. We therefore vacate and remand with directions to grant summary judgment on the issue of personal liability and to dismiss the counts as to defendants’ personal damages.
. Conceivably there is a further question whether the court misspoke itself in the second paragraph. Qualified immunity is, of course, no defense to equitable relief. That is the cause of our problem.
2. The Fourth Circuit suggested that the interest in prompt results also militates against allowing these appeals: "[Defendants] might have obtained a favorable judgment on the claims against them individually sooner by a trial on the merits than by appellate litigation of their immunity claims.” Id. at 1087. This is a red herring, totally irrelevant to the overriding concern, expressed in Harlow and Mitchell, for the official’s right to avoid trial, and not merely to obtain an expeditious resolution of his immunity defense.
. With respect to issue No. 1, it is not apparent how it could be thought that plaintiff was other than a "confidential employee” as defined in the Puerto Rico Personnel Law. See P.R.Laws Ann. tit. 3, § 1350 (1978 & Supp.1984).
. Harlow is only the most recent pronouncement on qualified immunity. The doctrine has roots that antedate all of these cases, which simply developed its contours. Harlow’s significance lies in its rejection of the subjective good faith prong of the doctrine. 457 U.S. at 817-18, 102 S.Ct. at 2737-38.
. See, e.g.,
"2. Advise the Secretary, Governors’ Aids, and Legislators in the establishment of the philosophy, public policy, goals and objectives related to the health services.
“7. Recommend drafts of bills and bills directed to implement, amend or derogate provisions allowing for the development of the functions assigned to the Program; discuss them; process for the consideration of the Secretary, the Governor or the Legislature and give follow up to determine the action taken."
. "Detail the work you perform in the order of importance of the different tasks, starting with the most important____”
Our dissenting brother’s reference to plaintiffs separate count for damages under the Commonwealth statute, for which pendent jurisdiction is asserted, is to a matter not presently before us. However, the writer of this opinion, the matter having been raised, would call the district court’s attention to Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
sc_respondentstate | 17 | 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.
ADAMS v. ILLINOIS
No. 70-5038.
Argued December 7, 1971
Decided March 6, 1972
Brennan, J., announced the Court’s judgment and delivered an opinion, in which Stewart and White, JJ., joined. Burger, C. J., filed an opinion concurring in the result, post, p. 285. Blackmun, J., filed a statement concurring in the result, post, p. 286. Douglas, J., filed a dissenting opinion, in which Marshall, J., joined, post, p. 286. Powell and Rehnquist, JJ., took no part in the consideration or decision of the ease.
Edward M. Genson argued the cause for petitioner. With him on the brief were Charles B. Evins, R. Eugene Pincham, and Sam Adam.
E. James Gildea argued the cause for respondent. On the brief were William J. Scott, Attorney General of Illinois, Joel M. Flawn, First Assistant Attorney General, and James B. Zagel and James R. Streicker, Assistant Attorneys General.
Mr. Justice Brennan
announced the judgment of the Court and an opinion, in which Mr. Justice Stewart and Mr. Justice White join.
In Coleman v. Alabama, 399 U. S. 1, decided June 22, 1970, we held that a preliminary hearing is a critical stage of the criminal process at which the accused is constitutionally entitled to the assistance of counsel. This case presents the question whether that constitutional doctrine applies retroactively to preliminary hearings conducted prior to June 22, 1970.
The Circuit Court of Cook County, Illinois, conducted a preliminary hearing on February 10, 1967, on a charge against petitioner of selling heroin. Petitioner was not represented by counsel at the hearing. He was bound over to the grand jury, which indicted him. By pretrial motion he sought dismissal of the indictment on the ground that it was invalid because of the failure of the court to appoint counsel to represent him at the preliminary hearing. The motion was denied on May 3, 1967, on the authority of People v. Morris, 30 Ill. 2d 406, 197 N. E. 2d 433 (1964). In Morris the Illinois Supreme Court held that the Illinois preliminary hearing was not a critical stage at which the accused had a constitutional right to the assistance of counsel. Petitioner's conviction was affirmed by the Illinois Supreme Court, which rejected petitioner's argument that the later Coleman decision required reversal. The court acknowledged that its Morris decision was superseded by Coleman, but held that Coleman applied only to preliminary hearings conducted after June 22, 1970, the date Coleman was decided. 46 Ill. 2d 200, 263 N. E. 2d 490 (1970). We granted certiorari limited to the question of the retroactivity of Coleman. 401 U. S. 953 (1971). We affirm.
The criteria guiding resolution of the question of the retroactivity of new constitutional rules of criminal procedure “implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the “major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials Williams v. United States, 401 U. S. 646, 653 (1971). Examples are the right to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963); on appeal, Douglas v. California, 372 U. S. 353 (1963); or at some forms of arraignment, Hamilton v. Alabama, 368 U. S. 52 (1961). See generally Stovall v. Denno, supra, at 297-298; Williams v. United States, supra, at 653 n. 6.
However, “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree,” Johnson v. New Jersey, 384 U. S. 719, 728-729 (1966); it is a “question of probabilities.” Id., at 729. Thus, although the rule requiring the assistance of counsel at a lineup, United States v. Wade, 388 U. S. 218 (1967); Gilbert v. California, 388 U. S. 263 (1967), is “aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence,” we held that the probabilities of infecting the integrity of the truth-determining process by denial of counsel at the lineup were sufficiently less than the omission of counsel at the trial itself or on appeal that those probabilities “must in turn be weighed against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice.” Stovall v. Denno, supra, at 298.
We hold that similarly the role of counsel at the preliminary hearing differs sufficiently from the role of counsel at trial in its impact upon the integrity of the factfinding process as to require the weighing of the probabilities of such infection against the elements of prior justified reliance and the impact of retroactivity upon the administration of criminal justice. We may lay aside the functions of counsel at the preliminary hearing that do not bear on the factfinding process at trial — counsel's help in persuading the court not to hold the accused for the grand jury or meanwhile to admit the accused to bail. Coleman, 399 U. S., at 9. Of counsel's other functions — to “fashion a vital impeachment tool for use in cross-examination of the State’s witnesses at the trial,” to “discover the case the State has against his client,” “making effective arguments for the accused on such matters as the necessity for an early psychiatric examination . . . ,” ibid. — impeachment and discovery may make particularly significant contribution to the enhancement of the factfinding process, since they materially affect an accused’s ability to present an effective defense at trial. But because of limitations upon the use of the preliminary hearing for discovery and impeachment purposes, counsel cannot be as effectual as at trial or on appeal. The authority of the court to terminate the preliminary hearing once probable cause is established, see People v. Bonner, 37 Ill. 2d 553, 560, 229 N. E. 2d 527, 531 (1967), means that the degree of discovery obtained will vary depending on how much evidence the presiding judge receives. Too, the preliminary hearing is held at an early stage of the prosecution when the evidence ultimately gathered by the prosecution may not be complete. Cf. S. Rep. No. 371, 90th Cong., 1st Sess., 33, on amending 18 U. S. C. § 3060. Counsel must also avail himself of alternative procedures, always a significant factor to be weighed in the scales. Johnson v. New Jersey, 384 U. S., at 730. Illinois provides, for example, bills of particulars and discovery of the names of prosecution witnesses. Ill. Rev. Stat., c. 38, §§ 114-2, 114-9, 114-10 (1971). Pretrial statements of prosecution witnesses may also be obtained for use for impeachment purposes. See, e. g., People v. Johnson, 31 Ill. 2d 602, 203 N. E. 2d 399 (1964).
We accordingly agree with the conclusion of the Illinois Supreme Court, “On this scale of probabilities, we judge that the lack of counsel at a preliminary hearing involves less danger to 'the integrity of the truth-determining process at trial’ than the omission of counsel at the trial itself or on appeal. Such danger is not ordinarily greater, we consider, at a preliminary hearing at which the accused is unrepresented than at a pretrial line-up or at an interrogation conducted without presence of an attorney.” 46 Ill. 2d, at 207, 263 N. E. 2d, at 494.
We turn then to weighing the probabilities that the denial of counsel at the preliminary hearing will infect the integrity of the factfinding process at trial against the prior justified reliance upon the old standard and the impact of retroactivity upon the administration of justice. We do not think that law enforcement authorities are to be faulted for not anticipating Coleman. There was no clear foreshadowing of that rule. A contrary inference was not unreasonable in light of our decisions in Hamilton v. Alabama, 368 U. S. 52, and White v. Maryland, 373 U. S. 59 (1963). Hamilton denominated the arraignment stage in Alabama critical because defenses not asserted at that stage might be forever lost. White held that an uncounseled plea of guilty at a Maryland preliminary hearing could not be introduced by the State at trial. Many state courts not unreasonably regarded Hamilton and White as fashioning limited constitutional rules governing preliminary hearings. See, e. g., the decision of the Illinois Supreme Court in People v. Morris, 30 Ill. 2d 406, 197 N. E. 2d 433. Moreover, a number of courts, including all of the federal courts of appeals had concluded that the preliminary hearing was not a critical stage entitling an accused to the assistance of counsel. It is thus clear there has been understandable and widespread reliance upon this view by law enforcement officials and the courts.
It follows that retroactive application of Coleman “would seriously disrupt the administration of our criminal laws.” Johnson v. New Jersey, 384 U. S., at 731. At the very least, the processing of current criminal calendars would be disrupted while hearings were conducted to determine whether the denial of counsel at the preliminary hearing constituted harmless error. Cf. Stovall v. Denno, 388 U. S., at 300. The task of conducting such hearings would be immeasurably complicated by the need to construct a record of what occurred. In Illinois, for example, no court reporter was present at pre-Coleman preliminary hearings and the proceedings are therefore not recorded. See People v. Givans, 83 Ill. App. 2d 423, 228 N. E. 2d 123 (1967). In addition, relief from this constitutional error would require not merely a new trial but also, at least in Illinois, a new preliminary hearing and a new indictment. The impact upon the administration of the criminal law of that requirement needs no elaboration. Therefore, here also, “[t]he unusual force of the countervailing considerations strengthens our con-elusion in favor of prospective application.” Stovall v. Denno, supra, at 299.
We do not regard petitioner’s case as calling for a contrary conclusion merely because he made a pretrial motion to dismiss the indictment, or because his conviction is before us on direct review. “[T]he factors of reliance and burden on the administration of justice [are] entitled to such overriding significance as to make [those] distinction [s] unsupportable.” Stovall v. Denno, supra, at 300-301. Petitioner makes no claim of actual prejudice constituting a denial of due process. Such a claim would entitle him to a hearing without regard to today’s holding that Coleman is not to be retroactively applied. See People v. Bernatowicz, 35 Ill. 2d 192, 198, 220 N. E. 2d 745, 748 (1966); People v. Bonner, 37 Ill. 2d 553, 561, 229 N. E. 2d 527, 532 (1967).
Affirmed.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
The Illinois Supreme Court stated, 46 Ill. 2d, at 205-206, 263 N. E. 2d, at 493,
“A preliminary hearing in Alabama, as in Illinois, has the purpose of determining whether there is probable cause to believe an offense has been committed by the defendant .... In both States the hearing is not a required step in the process of prosecution, as the prosecutor may seek an indictment directly from the grand jury, thereby eliminating the proceeding. ... In neither State is a defendant required to offer defenses at the hearing at the risk of being precluded from raising them at the trial itself. . . . We conclude that the preliminary hearing procedures of Alabama and Illinois are substantially alike and we must consider because of Coleman v. Alabama . . . that a preliminary hearing conducted pursuant to section 109-3 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 109-3) is a 'critical stage’ in this State’s criminal process so as to entitle the accused to the assistance of counsel.”
A right to a preliminary hearing has been constitutionally established, effective July 1, 1971. Illinois Constitution of 1970, Art. I, §7.
Accord: Phillips v. North Carolina, 433 F. 2d 659, 662 (1970), where the Court of Appeals for the Fourth Circuit observed:
“To be sure, if a preliminary hearing is held, the accused gains important rights and advantages that can be effectively exercised only through his attorney. Counsel’s function, however, differs from his function at trial. Broadly speaking, his role at the preliminary hearing is to advise, observe, discover the facts, and probe the state’s case. In this respect he serves in somewhat the same capacity as counsel at lineups and interrogations, which are both pretrial stages of criminal proceedings where the right to counsel has not been held retroactive.”
Pagan Cancel v. Delgado, 408 F. 2d 1018 (CA1 1969); United States ex rel. Cooper v. Reincke, 333 F. 2d 608 (CA2 1964); United States ex rel. Budd v. Maroney, 398 F. 2d 806 (CA3 1968); DeToro v. Pepersack, 332 F. 2d 341 (CA4 1964); Walker v. Wainwright, 409 F. 2d 1311 (CA5 1969); Waddy v. Heer, 383 F. 2d 789 (CA6 1967); Butler v. Burke, 360 F. 2d 118 (CA7 1966); Pope v. Swenson, 395 F. 2d 321 (CA8 1968); Wilson v. Harris, 351 F. 2d 840 (CA9 1965); Latham v. Crouse, 320 F. 2d 120 (CA10 1963); Headen v. Untied States, 115 U. S. App. D. C. 81, 317 F. 2d 145 (1963).
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_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.
UNDERWRITERS AT LLOYD’S UNDER POLICY NO. LHO 10497, Norton-Simon, Inc. and McCall Publishing Company, Plaintiff-Appellants Cross-Appellees, v. PEERLESS STORAGE COMPANY and Peerless Transportation Company, Defendant-Appellees Cross-Appellants.
Nos. 76-1302, 76-1303.
United States Court of Appeals, Sixth Circuit.
Argued June 13, 1977.
Decided Sept. 8, 1977.
Jon M. Sebaly, Smith & Schnacke, Dayton, Ohio, William T. Smith, Richard A. Getty, Calfee, Halter & Griswold, Robert J. Amsdell, F. Rush McKnight, Cleveland, Ohio, for appellants.
Robert P. Bartlett, Jr., Thomas L. Cze-chowski, Estabrook, Finn & McKee, Dayton, Ohio, for appellees.
Before WEICK and EDWARDS, Circuit Judges, and CECIL, Senior Circuit Judge.
WEICK, Circuit Judge.
We are required in this diversity case to determine the applicable Ohio statute of limitations governing an action by a subro-gated insurer against a bailee to recover the value of personal property injured by fire. The case was tried by the District Judge without a jury, and in a published opinion he adopted findings of fact and conclusions of law. He followed the decision of the Supreme Court of Ohio in Andrianos v. Community Traction Co., 155 Ohio St. 47, 97 N.E.2d 549 (1951), and the decision of this Court in Sears, Roebuck & Co. v. Cleveland Trust Co., 355 F.2d 705 (6th Cir. 1966), and held that the action was governed by Ohio’s two-year statute of limitations, Ohio Rev. Code § 2305.10. Underwriters at Lloyd’s etc. v. Peerless Storage Co., 404 F.Supp. 492 (S.D.Ohio 1975). Although the insured’s proof of loss on the insurer’s form was dated June 2, 1971, the insurer did not file suit until about three and one-half years after the date of the fire. It was therefore barred by the statute of limitations. The District Judge dismissed the action and the plaintiffs have appealed. We affirm.
There was no substantial dispute as to the facts.
Norton-Simon, Inc. and McCall Publishing Company (McCall) entered into a verbal month to month storage agreement with the defendants, Peerless Storage Company and Peerless Transportation Company (herein referred to jointly as Peerless), in which agreement Peerless agreed to store in its Warehouse Number 15 in Dayton, Ohio, a quantity of Norton-Simon’s and McCall rolled paper stock.
On February 27, 1971 a fire destroyed Warehouse 15. The paper stock was damaged extensively, with losses valued at $850,096. No proof was offered as to the cause of the fire but there was substantial evidence that the warehouse had no sprinkler system and no fire walls, and was operated in violation of fire codes. Norton-Simon and McCall were able to recoup only $8,000 in salvage value from its damaged property.
Subsequently Underwriters at Lloyd’s (Lloyd’s) paid Norton-Simon and McCall $750,096. for the loss and damage to said rolled paper stock caused by the fire, against which Lloyd’s had insured under its policy of fire insurance. By reason of this payment Lloyd’s became subrogated to the rights of Norton-Simon and McCall against the defendants for recovery of the loss and damage to the paper stock. Norton-Simon and McCall incurred an uninsured loss of $100,000.
On June 25, 1974 Lloyd’s filed a suit against Peerless in the Federal District Court, some forty months after the fire, claiming damages of $750,096. The complaint alleged that Peerless had breached the oral bailment contract by its failure “to exercise good faith and reasonable skill and diligence in discharging its obligations and responsibilities under said agreement.” In July, 1975 Norton-Simon and McCall intervened as co-plaintiffs under Fed.R.Civ.P. 24(b) claiming damages for $100,000 on the uninsured portion of the loss allegedly resulting from Peerless’ breach of contract.
On October 17, 1974 the District Court entered an order denying Peerless’ motion for summary judgment.
In its published opinion, however, the District Court held that plaintiffs had established a prima facie case of liability and that Peerless as bailee had failed to rebut the plaintiffs’ prima facie case. The District Court, as noted above, ruled that the two-year limitation in § 2305.10 was applicable.
The two Ohio statutes of limitation under consideration provide as follows:
§ 2305.07 Contract not in writing.
Except as provided in section 1302.98 of the Revised Code, an action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.
§ 2305.10 Bodily injury or injury to personal property.
An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.
Plaintiffs argue that § 2305.10 does not apply to the present cause of action. They contend that the case of Andrianos v. Community Traction Co., supra, is limited to cases involving bodily injuries and injuries to personal property, and not to cases involving predetermined arm’s-length bargained contractual rights and obligations. Plaintiffs assert also that § 2305.10 does not apply to causes of action as in the present case for violation of rights in personal property or for violation of rights arising out of an injury to personal property, but rather that § 2305.10 applies to actions involving injury to persons or tangible things, which actions arise generally in situations where there is fortuitous damage to personal property such as damages resulting from an automobile collision. Peerless, on the other hand, maintains that the Andrianos decision controls in suits to recover damages for injury to personal property irrespective of the form of the action filed.
In Andrianos a bus passenger suffered bodily injuries when the bus driver struck a pillar or stanchion of a viaduct. Nearly four years after the accident the passenger sued the common carrier for violation of an implied contract to provide safe carriage, claiming $30,000 damages. The sole issue before the Ohio Supreme Court was whether the six-year statute of limitations for bringing a contract action under Section 11222 of the General Code (now Ohio Rev. Code § 2305.07), or the two-year statute of limitations on bodily injury under Section 11224-1 of the General Code (now Ohio Rev.Code § 2305.10), applied to the cause of action.
The Court ruled that the latter statute was applicable and dismissed the cause of action. It adopted what it termed the “majority rule” as follows:
The rule prevailing in by far the larger number of jurisdictions is that where a statute, specific in terms, limits the time within which an action for “injuries to the person” or “bodily injury” may be brought, such statute governs all actions the real purpose of which is to recover for an injury to the person, whether based upon contract or tort, and a general statute, limiting the time for bringing an action growing out of a contractual relationship, is without application. (Id., 155 Ohio St. at 50, 97 N.E.2d at 552.)
The Court also held that the two-year statute of limitations applied to all actions concerning bodily injury regardless of the form of action brought. The Andrianos Court noted at 51, 97 N.E.2d at 552:
No matter what form is adopted, the essence of the action is the wrongful injury, and that it arose from the breach of an express or implied contract is immaterial.
Thus, the limitation statutes are concerned with the nature or subject matter of the cause of action, even though the plaintiff may choose whether to sue for damages under a contract or under a tort theory.
The Court concluded at 53, 97 N.E.2d at 553:
In conclusion, Section 11224-1, General Code, is complete in itself and suggests no legislative intent to distinguish between bodily injuries directly and forcibly caused under circumstances where no contractual relationship exists between or among the persons concerned and those resulting from a breach of contract. Until such time as the General Assembly sees fit to make such distinction by an enactment carrying appropriate language to accomplish that purpose, this court must accept and apply the statute as it exists, regardless of hardship to a particular litigant.
It is manifest from a perusal of the amended petition that this is an action for damages upon a claim for bodily injury. It was instituted after the expiration of two years from the date upon which liability arose, and it comes squarely within the two-year limitation prescribed by Section 11224 — 1, General Code. (Footnote added)
Because § 2305.10 refers to injury to personal property as well as bodily injury, it is clear that the Andrianos case applies to both situations. Farbach Chem. Co. v. Commercial Chem. Co., 101 Ohio App. 209, 211-12,136 N.E.2d 363 (1956). See generally, 34 Ohio Jur.2d Limitation of Actions § 30 (1958).
The Ohio lower courts have developed Ohio case law since the Andrianos decision and have applied the limitation of § 2305.10 to cases where contracts have been involved, even to an oral bailment contract such as in the present case.
For example, the Andrianos case was followed, applying § 2305.10, in a case involving violations of a written car-rental agreement in which a rented automobile had been damaged. National Car Rentals v. Allen, 1 Ohio App.2d 321, 204 N.E.2d 554 (1964).
In Bauman Chevrolet, Inc. v. Faust, 66 Ohio Law Abs. 145, 113 N.E.2d 769 (Ct. of Common Pleas of Erie County 1953), the plaintiff sued for breach of an oral bailment contract for the bailee’s alleged failure to return an automobile in as good condition and repair as when the bailee took possession thereof; the car had been damaged beyond repair. The Court relying on the Andrianos decision, applied the two-year statute of limitations under Section 11224-1 of the General Code (now § 2305.10) holding that “a cause of action for damages to personal property arising out of a bailment contract, is governed by [that statute].” Id. at 147, 113 N.E.2d at 771.
Moreover, this Court in the case of Sears, Roebuck & Co. v. Cleveland Trust Co., 355 F.2d 705 (6th Cir. 1966), relied on the Andrianos decision and applied the statute of limitations under § 2305.10 to a lessee’s contract suit for the lessor’s alleged breach of its covenant to deliver a leased building to the lessee in good condition and repair, and for damages to personal property resulting therefrom. Among other things, the Court quoted the following from the District Court’s decision in Tomle v. New York Cent. R.R., 234 F.Supp. 101, 104 (N.D. Ohio 1964):
The Andrianos opinion continues on in language equally forceful and unequivocal to reinforce the Ohio Supreme Court’s pronouncement that the two-year statute of limitations applies to any and all actions to recover for personal injuries. In light of the Andrianos decision, plaintiff’s contention that he is entitled to the benefit of the six-year statute must be rejected. (355 F.2d at 707)
Cf. Mahalsky v. Salem Tool Co., 461 F.2d 581 (6th Cir. 1972) (two-year statute of limitations on injury to personal property applied to claim of express and implied warranties arising out of a sale of an alleged defective augering machine), and Levin v. Bourne, 117 Ohio App. 269, 192 N.E.2d 114 (1962) (§ 2305.10 applicable to automobile negligence suit against minor’s parents for alleged bodily injuries).
In 34 Ohio Jur.2d Limitation of Actions § 31 (1958) it is stated, in part:
§ 31. Bailments. If a breach of a bailment contract by the bailee gives rise to a situation where the action may be brought either in tort or contract, the bailor may elect which remedy he will pursue. Irrespective of the remedy chosen by the bailor, however, where the purpose of the action is solely to recover damages for injury to personal property, such action is governed by the statute of limitations relating to the recovery of damages for injury to personal property, namely, the 2-year statute, and not those relating to recovery of damages for the breach of contract. [Footnotes omitted]
Therefore it is clear that § 2305.10 is applicable to an action arising out of a breach of an oral bailment contract, even where the breach occurred due to a fortuitous situation of fire, as here, and it is equally clear that the pivotal decision in this area of law is the Andrianos case.
In the present case the plaintiffs had the option to sue either under a tort theory for injury to Norton-Simon’s and McCall’s personal property, the rolled paper stock, or under a contract theory for breach of the oral bailment contract. Although the plaintiffs chose the latter option, this Court is bound, under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), by Ohio substantive law which applies the rule in Andrianos to suits for injury to personal property. It matters not that the case involves a large sum of money or that it will take time to investigate. Since the proof of loss was dated June 2,1971 it appears that the insurer had plenty of time to investigate. Plaintiffs offered no proof that they could not, in the exercise of ordinary diligence, have filed within the two-year statutory period, the same type of short complaint which was filed in the present case.
Here the sole purpose of plaintiffs’ lawsuit was to recover damages for the paper destroyed in the fire, and this Court holds that when the complaint is stripped of its legal terminology, plaintiffs’ cause of action in substance and effect was one for recovery of injury to personal property, and not, as plaintiffs contend, for violation of rights in personal property or for violation of rights arising out of an injury to personal property.
This holding does not mean that in every case wherein personal property has been damaged a suit in contract may not lie which applies a limitation different from § 2305.10. See, e. g., Schulz v. Allstate Ins. Co., 17 Ohio Misc. 83, 244 N.E.2d 546 (Ct. of Common Pleas of Franklin County 1968). There are various cases under Ohio law wherein the cause of action sounded in contract and in no way sought recovery for injuries to body or personal property or where recovery under a tort theory was incidental to the lawsuit. The following cases are examples of this principle and are distinguishable from both the case at bar and the Andrianos decision.
In R. & H. Cartage Co. v. Fought, 111 Ohio App. 230, 171 N.E.2d 369 (1960), the Court applied the fifteen-year statute of-limitations in a suit for a breach of a contract of indemnity for negligence in making delivery of a cargo shipment (spoilage and delay in delivery). The subrogee had already paid the shipper for any losses, but the cause of action did not arise “until the refusal of the defendant to comply on demand under the terms of its contract” covering the shipment with the lessee. Id. at 232, 171 N.E.2d at 371.
In Farbach Chem. Co. v. Commercial Chem. Co., 101 Ohio App. 209, 136 N.E.2d 363 (1956), the Court applied the six-year statute of limitations to a suit for an alleged breach of contract warranting good workmanship — the defendant allegedly failed to remove an offensive substance from brake fluid. The Court said at 213, 136 N.E.2d at 366:
The language of Section 2305.10, Revised Code, implies [sic] a positive injury to the property, not a negative contractual failure to render a product harmless.
The latter situation was the circumstance in the Farbach case.
Lastly, the Court in American Ins. Group v. McCowin, 7 Ohio App.2d 62, 218 N.E.2d 746 (1966), applied the limitation in § 2305.-07, rather than the limitation in § 2305.10, in a suit between an employer’s insurance carrier (subrogee) and an employee’s admin-istratrix because the cause of action rested upon an implied contract of indemnity pursuant to the doctrine of primary and secondary liability. The insurance company had paid damages to a third party for personal injuries sustained by that party caused by the employee’s negligent operation of an automobile.
Cf. Val Decker Packing Co. v. Corn Prods. Sales Co., 411 F.2d 850 (6th Cir. 1969) (action for breach of implied warranty of merchantability or fitness for a particular purpose pursuant to a written sales contract governed by the four-year statute of limitations specifically provided for under the Ohio Uniform Commercial Code).
Plaintiffs also argue in the alternative that the cause of action here is based upon an implied contract of indemnity, and thus the six-year limitation in § 2305.07 is applicable. Plaintiffs rely generally on this Court’s decision in Ohio Cas. Ins. Co. v. Ford Motor Co., 502 F.2d 138 (6th Cir. 1974), which was an opinion by a divided Court.
In the Ohio Casualty case plaintiff insurance company paid damages to injured third parties who had suffered personal and property damages when the brakes on the insured’s truck failed because of an alleged defect. The insurance company, as subro-gee to the rights of the insured, then sued the automobile manufacturer upon an implied contract of indemnity. The insurance company claimed that it was secondarily liable for the wrongful injuries while the automobile manufacturer was primarily liable as the party who actually created the wrong. Because the settlement payments were all made more than two years before the suit for subrogation was filed, but, with one exception, within six years of the filing of the complaint, the issue arose over what statute of limitations applied to the cause of action. This Court ruled that the real purpose of the action was “to obtain indemnification for monies paid to the injured third persons who suffered the damage” rather than “to gain compensation for personal injury or property damage.” Id. at 140. Thus the six-year limitation for contracts in § 2305.07 was held applicable “to an action for indemnification arising where a party secondarily liable has been compelled to pay damages that should have been borne by a party primarily liable . . ..” Id. at 141.
However, the situation here is different. As recognized by the District Court, plaintiffs have proceeded upon the theory of a breach of an oral bailment contract, and not as an action for indemnification. The real purpose of plaintiffs’ action was to recover for injury to personalty. Moreover there is no primary-secondary liability involved in the present case. Lloyd’s, as subrogee, has no rights greater than those of the insured, Norton-Simon and McCall. As noted by the Court in the Ohio Casualty case:
Of course, the insurance company, as subrogee, has no greater rights against Ford — no longer time in which to commence an action — than the insured would have had if he, instead of the insurance company, had- paid the claim and sued appellee for indemnification. 50 O.Jur.2d Subrogation § 26. (502 F.2d at 139)
Because Norton-Simon and McCall were limited to the two-year limitation in § 2305.10, so also was Lloyd’s.
We are of the opinion that the Supreme Court of Ohio would adhere to its decision in Andrianos, and approve the subsequent appellate decisions applying it to personal property damage. Cf. United States Fidelity & Guar. Co. v. Truck & Concrete Equip. Co., 21 Ohio St.2d 244, 257 N.E.2d 380 (1970).
For the reasons stated above, plaintiffs were barred from bringing their cause of action because of the running of the two-year statute of limitations in § 2305.10, and thus their cause of action was properly dismissed. The judgment of the District Court is affirmed.
. The syllabus in the Andrianos case, which is the law of the case in Ohio, states:
1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.
2. Section 11224-1, General Code, providing that an action for bodily injury shall be brought within two years after the cause thereof arose, governs all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed on
the cause of action and the form in which the action is brought is immaterial.
3. Where a fare-paying passenger sustains bodily injury during his transportation by a common carrier of passengers and thereafter institutes an action against the carrier to recover damages for such injury and the results thereof based on a claimed breach of the implied contract for safe carriage, the two-year limitation for bringing an action prescribed by Section 11224-1, General Code, is controlling and not the six-year limitation contained in Section 11222, General Code, relating to an action on an implied contract.
. But see Slick Airways, Inc. v. Reinert, 114 Ohio App. 124, 175 N.E.2d 844 (1961), for a case which applied the statute of limitations for a contract action wherein a tort action was possible without discussing the Andrianos decision.
See also Schiffman v. Itts, 88 Ohio Law Abs. 389, 183 N.E.2d 423 (Ohio App.1961), wherein the Court refused to apply the two-year statute of limitations under § 2305.10 in a suit for a breach of a bailment contract because the defendant never affirmatively raised the defense of the statute of limitations.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_respond1_5_2 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Your task is to determine which category of state government best describes this litigant.
Donald Alan MILLER, Petitioner-Appellant, v. James ROWLAND, et al., Respondents-Appellees.
No. 92-15875.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 13, 1993.
Decided July 8, 1993.
Jeffrey L. Staniels, Chief Asst. Federal Defender, Sacramento, CA, for petitioner-appellant.
Joan W. Cavanagh, Supervising Deputy Atty. Gen., Sacramento, CA, for respondents-appellees.
Before: BROWNING, CHOY and CANBY, Circuit Judges.
PER CURIAM:
Donald Miller, a California prisoner serving an indeterminate life sentence for conspiracy to commit murder, appeals the denial of his petition for writ of habeas corpus. He claims his due process and contract clause rights were violated by the California Department of Correction’s refusal to grant him work credits pursuant to Cal.Penal Code § 2933.
I.
Until May 1983, Miller earned credits at the rate of one day of credit for every two days of good behavior or participation in certain “work, educational, vocational, therapeutic or other prison activities.” Cal.Penal Code § 2931. Under § 2931, Miller’s term of confinement could be reduced by as much as one third. In 1982, the California legislature adopted a new system for awarding credits to prisoners sentenced after January 1, 1983. Under the new system, prisoners may earn one day of credit for each day of participation in work assignments or educational programs, thus reducing their term of confinement by as much as one half. See Cal.Penal Code § 2933. For prisoners sentenced before 1983, the legislature provided that “a prisoner subject to the provisions of Section 2931 may waive the right to receive time credits as provided in Section 2931 and be subject to the provisions of Section 2933.” Cal.Penal Code § 2934. In May 1983, Miller signed an “irrevocable” waiver giving up his right to earn § 2931 credits for the chance to earn credits under § 2933.
In 1987, the California Attorney General issued Opinion No. 86-1102, which concluded § 2933 credits are not available to inmates like Miller who are serving indeterminate life sentences under Cal.Penal Code § 190. The Department of Corrections informed Miller he could no longer earn § 2933 credits and henceforth could receive only § 2931 credits. Corrections officials also informed inmates they would receive § 2931 rather than § 2933 credits for the work they had already completed. In In re Monigold, 205 Cal.App.3d 1224, 253 Cal.Rptr. 120 (4th Dist.1988), the California Court of Appeal affirmed the Attorney General’s decision that § 2933 credits were not available to prisoners serving indeterminate life sentences, but held such inmates were entitled, under an equitable estoppel theory, to the § 2933 credits they had already earned.
Miller has received credits under § 2931 for good behavior up to June 1983, § 2933 credits for worktime between June 1983 and February 1989 (when the mandate issued in Monigold), and § 2931 credits for his good behavior since February 1989.
After an unsuccessful state habeas petition, Miller filed this petition under 28 U.S.C. § 2254, claiming his due process and contract clause rights were violated when the state refused to comply with the terms of the § 2934 waiver, which Miller asserts is a binding and “irrevocable” contract. The district court denied the petition.
n.
The state contends Miller failed to exhaust his contract clause claim. In his pro se petition for review in the California Supreme Court, Miller argued his “waiver contract with the State entitling him to continued receipt of worktime credits is a valid, enforceable contract which by its own terms cannot be revoked, certainly not unilaterally, and is in full force. The State’s refusal to abide by its terms and the State’s unilateral revocation of same violates due process.” The court denied review. Although “the California Supreme Court’s denial of a habeas petition without comment or citation constitute[s] a decision on the merits of the federal claims,” Hunter v. Aispuro, 982 F.2d 344, 347 (9th Cir.1992), we must determine whether Miller’s due process claim that the § 2934 waiver is a binding contract “fairly presented” the contract clause issue.
A federal claim “is fairly presented [to the state courts] if the petitioner has described the operative facts and legal theory on which his claim is based. A habeas petitioner may, however, reformulate somewhat the claims made in state court; exhaustion requires only that the substance of the federal claim be> fairly presented.” Tamapua v. Shimoda, 796 F.2d 261, 262 (9th Cir.1986) (citation omitted); see also Picard v. Connor, 404 U.S. 270, 277, 92 S.Ct. 509, 513, 30 L.Ed.2d 438 (1971) (claim is exhausted if “ ‘the ultimate question for disposition’ will be. the same despite variations in the legal theory or factual allegations urged in its support”) (citation omitted). Although Miller characterized his claim as a due process claim, we conclude his contract clause claim was fairly presented as well since the ultimate question for disposition under both claims is the validity and effect of the § 2934 waiver agreement. See also Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980) (federal courts have a’ duty to construe pro se pleadings liberally).
III.
We review de novo the district court’s decision to deny Miller’s petition for a writ of habeas corpus; “[t]o the extent it is necessary to review findings of fact, the clearly erroneous standard applies.” Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991).
A. The Contract Clause Claim.
Miller argues the § 2934 waiver was a valid and enforceable, contract that bound both him and the state. The attorney general’s opinion and In re Monigold establish as a matter of California law that Miller is not eligible for § 2933 credits. The Department of Corrections was therefore not authorized to contract with Miller for such credits. See also In re Diaz, 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395 (6th Dist.1993) (discussing Monigold); In re Oluwa, 207 Cal.App.3d 439, 255 Cal.Rptr. 35 (2d Dist.1989) (discussing the relationship between § 190 and § 2933). “[N]o contractual obligation may be enforced against a public agency unless it appears the agency was authorized by the Constitution or statute to incur the obligation; a contract entered into by a governmental entity without the requisite constitutional or statutory authority is void and unenforceable.” Air Quality Products, Inc. v. California, 96 Cal.App.3d 340, 349, 157 Cal.Rptr. 791 (1979); see also 1 Witkin, Summary of California Law: Contracts § 77, at 111 (1987). Since the waiver agreement is void and unenforceable by either party, Miller’s contract clause claim is without merit.
B. The Due Process Claim.
Miller has already received credits for his earlier participation in the § 2933 program, but claims the plain language of the statute and the terms of the § 2934 waiver agreement give him a liberty interest in continuing to earn work credits. We ruled in Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir.1986), that § 2933 does not create a liberty interest in eligibility for work credits where an inmate has not engaged in work that would entitle him to such credits. See also Kalka v. Vasquez, 867 F.2d 546, 547 (9th Cir.1989) (prisoner does not have liberty interest in § 2933 credits during period he was available for work but was not given any work to do). We have also determined the § 2934 waiver agreement is void and unenforceable under California law; accordingly that agreement cannot serve as the basis for a liberty interest in future work credits.
Affirmed.
. Section 190 provides that "[e]very person guilty of murder in the first degree shall suffer death, confinement in state prison for life without possibility of parole, or confinement in the state prison for a term of 25 years to life.” Miller claims the fact that he is guilty of conspiracy to murder compels a different interpretation of § 190 than the interpretation given that statute in cases involving murderers. However, under Cal.Penal Code § 182(a)(6), conspiracy to commit murder is punishable under § 190 as if it were first degree murder. The issue in this case is not which of the two crimes Miller committed, hut the meaning of § 190, under which persons convicted of either crime are to be sentenced. In the absence of any contrary suggestion by the California courts, we decline to give a separate meaning to the language of § 190 when it is applied pursuant to § 182(a)(6) to persons convicted of conspiracy to murder.
. The state also contends Miller has not exhausted his contract clause claim because the California Court of Appeal ruled Miller's petition was procedurally defective due .to a pleading deficiency that he could have corrected. We need not consider this argument because the state failed to pursue it in the district court. Granberry v. Greer, 481 U.S. 129, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987). In any event, the Court of Appeal cited the alleged pleading defect only as a ground for denying Miller relief under an equitable es-toppel theory, and not as a basis for refusing to reach the merits of Miller's claims.
. We need not defer to the Attorney General's opinion and the decisions of the California Court of Appeal if their interpretation of California law is "untenable or amounts to a subterfuge to avoid federal review of a constitutional violation.” Taylor v. Kincheloe, 920 F.2d 599, 609 (9th Cir.1990) (citations and internal quotation marks omitted); see also Ward v. Love County, 253 U.S. 17, 22, 40 S.Ct. 419, 421, 64 L.Ed. 751 (1920). Although Miller advances several arguments against the state court's interpretation of §§ 2933 & 2934, the court's rulings are straightforward and reasonable. Miller's arguments for a different reading are not cognizable in federal habeas review. See Jackson v. Ylst, 921 F.2d 882, 885 (9th Cir.1990).
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)". Which category of state government best describes this litigant?
A. legislative
B. executive/administrative
C. bureaucracy providing services
D. bureaucracy in charge of regulation
E. bureaucracy in charge of general administration
F. judicial
G. other
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.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DIGITAL PAGING SYSTEM OF TOLEDO, INC., Respondent.
No. 80-1470.
United States Court of Appeals, Sixth Circuit.
Sept. 17, 1981.
Elliott Moore, Deputy Associate Gen. Counsel, N. L. R. B., Washington, D. C., Bernard Levine, Director, Region 8, N. L. R. B., Cleveland, Ohio, for petitioner.
Ward Summerville, Spengler, Nathanson, Heyman, McCarthy & Durfee, Toledo, Ohio, for respondent.
Before KEITH and MARTIN, Circuit Judges, and PECK, Senior Circuit Judge.
ORDER
The National Labor Relations Board is applying to the Court under § 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e), to enforce its order against the Digital Paging Systems of Toledo, Inc., issued on April 29, 1980, to cease and desist from unfair labor practices, to reinstate an employee and to bargain with the Union. The Company filed an answer to the application. The application has been referred to a panel of this Court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
In August, 1978, the Company demoted Carol Van Tuinen from the position of manager to salesperson in the Toledo office. She and the only two other employees in the bargaining unit became concerned over the security of their jobs and contacted a union agent. The three signed union authorization cards. The union agent met with the new manager to demand recognition. The manager began to interrogate Ms. Van Tuinen and the others about their knowledge of the union. On September 19, 1978, Company officials learned of the demand and two days later Ms. Van Tuinen was discharged. The Company thereafter refused to bargain with the Union, which then filed unfair labor charges against the Company.
As a result of the charges, the National Labor Relations Board held a hearing before an Administrative Law Judge. He found that the Company had unlawfully interrogated employees about union activity, improperly discharged Ms. Van Tuinen and refused to bargain with the Union in violation of § 8(a)(5) and (1). The ALJ recommended, inter alia, an order be issued requiring the Company to bargain with the Union.
The Company filed exceptions to the latter two findings. The Board affirmed the ALJ’s decision and adopted his recommendations. That decision is reported at 249 NLRB No. 15 (1980).
The standard of review in Board cases is whether the Board’s determination is supported by substantial evidence on the record as a whole. 29 U.S.C. § 160(e); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). Conflicts in the evidence are for the Board to resolve and, if supported by substantial evidence, such resolutions must be accepted by this Court. NLRB v. Pinkerton's Inc., 621 F.2d 1322, 1324 (6th Cir. 1980). The same is true for determinations of credibility. NLRB v. Cement Transport, Inc., 490 F.2d 1024, 1029 n.5 (6th Cir.), cert. denied, 419 U.S. 828, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974).
Upon review, the Court has examined the record, including portions of the hearing held before the Administrative Law Judge. We find substantial evidence in the record to support the Board’s findings of the unfair labor practices listed above. We also find the Board properly applied the guidelines of NLRB v. Gissell Packing Co., 395 U.S. 575, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969) in ordering the Company to bargain with the Union.
Accordingly, enforcement of the Board’s order of April 29, 1980, is hereby granted. Rule 9(d)3, Rules of the Sixth Circuit.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer: |
songer_respond1_1_4 | J | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". Your task is to determine what subcategory of business best describes this litigant.
TALBOT TRACTOR COMPANY, INC., Plaintiff, v. HINOMOTO TRACTOR SALES, USA and Southern Tractor Corporation, Defendants-Third-Party-Plaintiffs-Appellants, v. KANEMATSU-GOSHO, (U.S.A.) INC., Third-Party-Defendant-Appellee.
No. 82-3389.
United States Court of Appeals, Fifth Circuit.
April 18, 1983.
Jerry Saporito, Albert C. Miranda, Metairie, La., for Hinomoto Tractor Sales USA.
Hayes, Durio & Richard, Steven G. Durio, Lafayette, La., for Southern Tractor Corp.
Franklin, Moore & Walsh, R. Michael Caldwell, Baton Rouge, La., Richard K. Jeydel, New York City, for Kanematsu-Gosho, Ltd.
Before TUTTLE, POLITZ and GAR-WOOD, Circuit Judges.
Circuit Judge of the Eleventh Circuit, sitting by designation.
TUTTLE, Circuit Judge:
This is an appeal from the dismissal by the trial court of a third-party action against Kanematsu-Gosho, (U.S.A.) Inc., for want of personal jurisdiction in the State of Louisiana.
I. STATEMENT OF FACTS AND PROCEEDINGS BELOW
The parties in this action are as follows:
1. Toyosha Company of Japan — a tractor. manufacturer;
2. Kanematsu-Gosho, (U.S.A.) Inc. (“KG”) — an importer of products that receives Toyosha tractors at West Coast ports and delivers them to Hinomoto in Houston for national distribution;
8. Hinomoto USA, Inc. — national distributor of Toyosha tractors;
4. Southern Tractor and Talbot Tractor — competing tractor distributors in Louisiana.
Talbot Tractor filed an action against Southern Tractor and Hinomoto alleging that Hinomoto had breached its non-exclusive Louisiana dealership contract with Talbot and that Southern had wrongfully induced the breach. Hinomoto and Southern then filed third-party demands against Toyosha and K-G alleging that if there was a failure to meet their contractual obligations, Toyosha and K-G had caused the damages alleged by Talbot. K-G moved to dismiss the third-party complaint for lack of personal jurisdiction.
The facts are largely undisputed. In 1978, Toyosha and Hinomoto entered into a contract granting Hinomoto the right to distribute Toyosha products in the United States and Canada. As a corollary to this agreement, Hinomoto and K-G agreed that K-G would serve as importer of Toyosha products for Hinomoto and would deliver them anywhere in the United States specified by Hinomoto. Hinomoto and K-G also agreed that K-G would aid in the processing of warranty claims by consumers of Toyosha products.
It is undisputed that K-G does not conduct or solicit any business, activity in Louisiana. Its contract with Hinomoto was not executed in Louisiana and called for no performance by K-G in that state (though, presumably, if Hinomoto requested the goods to be delivered to Louisiana, K-G would have to comply). K-G takes title to the goods at the West Coast and its relationship with them ceases in Houston. The record is not clear as to whether K-G delivers Toyosha tractors to Hinomoto in any place other than Houston. K-G had no role to play in picking dealers.
II. STATEMENT OF ISSUES
1. Does the district court have personal jurisdiction over K-G?
a) doing business?
b) minimum contracts?
c) fair and reasonable?
2. (Secondary Issue) If the Due Process Clause would not block the exercise of jurisdiction, does § 3201(d) of the Louisiana Longarm Statute provide personal jurisdiction over an out-of-state contract breacher simply because a victim of the breach resides in-state?
Hinomoto’s claim of personal jurisdiction is based on the Louisiana Longarm Statute, which provides:
A Court may exercise personal jurisdiction over a non-resident, who acts directly or by an agent, as to a cause of action arising from the non-resident’s (a) doing business in the state;
sfc * ¡k s¡c
(d) causing injury or damage in this state by an offense or quasi-offense committed through an act or omission outside of the state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state.
La.Rev.Stat.Ann. § 13:3201(d).
This Court has held: “This statute was intended to permit the full exercise of in personam jurisdiction allowable under due process standards in cases when the suit ‘arises from’ the non-resident’s contacts with the forum.” Standard Fittings Co. v. Sapag S/A, 625 F.2d 630, 638-40 (5th Cir. 1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1981, 68 L.Ed.2d 299, (1981). “Business activity which will satisfy the requirements of due process will thus necessarily satisfy the ‘transacting business’ requirement of the [Louisiana] Longarm Statute.” Austin v. North American Forest, 656 F.2d 1076, 1089 (5th Cir.1981).
III. THE DISTRICT COURT OPINION
The district court relied on Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) and Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974) to reject the notion that K-G had sufficient minimum contacts with the state to be haled into court. The court found that K-G had not purposefully availed itself of the benefits of conducting business in the state, and its contacts with Louisiana were not “reasonably foreseeable.” The court held that the mere knowledge by K-G that Hinomoto had a national distributorship was insufficient since K-G never shipped any goods to Louisiana or performed any warranty work in the state.
Without citing any cases, the district court also stated that courts were less willing to assert jurisdiction over a party alleged to have breached a contractual duty than over a party “standing in the shoes of” the manufacturer of an injury-causing product.
Finally, the court (again without citing cases) asserted that even if K-G was subject to jurisdiction under the Due Process analysis, § 3201(d) only addresses tortious misconduct and that no portion of the Statute provides for jurisdiction over a “breaching” party with only attenuated contacts in the state.
IY. DISCUSSION OF ISSUES
The appellant bases its argument on the notion that K-G should reasonably have foreseen that some of the products handled by it would be sold or used in Louisiana. Appellant also urges that K-G “derives revenue” from the state since each tractor sold in Louisiana means an additional tractor shipped by K-G.
The appellant attempts to distinguish Volkswagen, the case relied on by the district court in which the Supreme Court refused to allow an Oklahoma state court to exercise jurisdiction over the sellers of an automobile in a products liability suit brought by persons who had purchased the automobile in New York as New York residents. The Court held that the mere fact that the accident occurred in Oklahoma was not enough and rejected the plaintiffs’ contention that the “reasonably foreseeable” doctrine should subject the seller to suit in every state.
The appellant urges that the contacts in the present case were not “simply fortuitous” (as the Supreme Court labeled those in Volkswagen) and cites Austin v. North America Forest Products, 656 F.2d 1076 (5th Cir.1981) where this Court stressed that jurisdiction may be exercised where contacts with the state are “purposeful and deliberate.” The appellant urges that the present case bears no factual semblance to Volkswagen since K-G and Hinomoto were parties to an agreement specifying that Hinomoto was a distributor for an area including Louisiana.
Hinomoto also argues that notions of fairness and judicial economy compel the assertion of jurisdiction over K-G. Hinomoto notes that it was itself haled into court in Louisiana and urges that to require it to file a separate suit for indemnity in Texas would not create any inconvenience to K-G and would waste judicial resources.
The appellee K-G relies heavily on Volkswagen. As for the foreseeability of any product transported by K-G entering Louisiana, K-G quotes:
The foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.
Volkswagen, 444 U.S. at 297, 100 S.Ct. at 567. K-G urges that the foreseeability doctrine is especially inapplicable to it given that it is not a manufacturer and that Hinomoto’s claim rests on a breach of contract rather than a tort. K-G stresses that the manufacturer, Toyosha, had a direct distribution agreement with Hinomoto and that K-G acted for Hinomoto to transfer the goods to Houston.
The appellee stresses that its revenues and its activities with regard to Toyosha products were not directly connected in any way to the degree of Hinomoto’s sales in Louisiana. K-G urges that it should not be subject to the jurisdiction of the Louisiana court simply because Hinomoto’s national sales area happens to include Louisiana.
K-G attacks the appellant’s “fairness” argument on two grounds. First, K-G urges that it deliberately structured its relationship with Hinomoto and Toyosha so as to be subject to suits only in a limited number of states; the legal system should have a “degree of predictability ... that allows potential defendants to structure their primary conduct with some minimum assurance as to where the conduct will and will not render them liable to suit.” Volkswagen, supra, at 297, 100 S.Ct. at 567. As evidence of this intent, K-G points to its written arbitration agreements with Hinomoto and Toyosha and urges that Hinomoto can hardly claim that the present suit represents the most efficient resolution of this dispute.
Both parties recognize that the Supreme Court’s pronouncements in Volkswagen, supra, must be carefully analyzed for our determination whether personal jurisdiction exists in this case. Appellee contends that Volkswagen controls because the facts here neatly meet those in Volkswagen. Appellant, to the contrary, points to the fact that there is an important distinction in the facts, to wit: that the only basis for jurisdiction in Volkswagen was the fact that an automobile manufactured or sold by the out-of-state defendant ended up in the State of Oklahoma where it figured in a tortious incident whereas here, the out-of-state defendant is in the chain of national distribution of equipment that ultimately found its way to the State of Louisiana.
Appellant cites only one Fifth Circuit case, Austin v. North American Forest, supra, in its effort to find a matching state of facts based on a breach of contract. In Austin, this Court found in favor of longarm jurisdiction under the Louisiana statute because of the very significant fact present in that case, that the out-of-state defendant was actually required to, and did, submit to the Louisiana plaintiff a certificate of compliance with federal standards, which was required under federal regulations before the contract for the purchased materials could be approved. 656 F.2d at 1090. This, undoubtedly, furnished sufficient contact, not only with the State of Louisiana, but with the particular plaintiff, to warrant, as found by this Court, a determination that the Louisiana statute conferred jurisdiction.
Another Fifth Circuit case, Product Promotions, Inc. v. Cousteau, 495 F.2d 483 (5th Cir.1974), was cited by the trial court. In that case the Court held that the plaintiff failed to connect Jacques Cousteau and his French company to the contract entered into between Product Promotions, Inc., and CEMA on the basis of agency. It then discussed the nature of proof required to support personal jurisdiction over CEMA, the other party to the contract. It first held that the contract was actually made in Texas. The court then said:
... since the contract was made in Texas, CEMA had reason to foresee that enforcement and protection of its own rights under the contract might depend on the laws of Texas. In short, CEMA voluntarily entered a transaction with one it knew to be a Texas resident, a transaction which had a substantial connection with Texas and which CEMA had reason to know would have consequences in Texas. (Footnotes omitted).
495 F.2d at 497. See also, Benjamin v. Western Boat Building Corp., 472 F.2d 723 (5th Cir.1973), a breach of contract case, which we feel fully supports the trial court’s decision here.
In Volkswagen, the court cited six factors which it considered in determining that long-arm jurisdiction over the defendant did not reside in the Oklahoma courts: (1) defendant conducts no activity in the state; (2) it closes no sales and performs no services in the state; (3) it avails itself of none of the privileges and benefits of state law; (4) it solicits no business either through sales persons in the state or ads reasonably calculated to reach the state; (5) it makes no regular sales to state residents; and (6) it does not “indirectly, or through others, serve or seek to serve the [state] market.” 444 U.S. at 295, 100 S.Ct. at 566.
All of these factors apply to K-G in the present case except possibly the final one, for it is not entirely clear that K-G does not “indirectly, or through others, ... seek to serve the [state] market.” However, with respect to this factor the Court said: “[Financial benefits accruing to the defendant from a collateral relationship to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State.” 444 U.S. at 299, 100 S.Ct. at 568. Here, there was no effort made by the appellants to show that the sale of a tractor in Louisiana even added substantially to profits of K-G.
Since we conclude that the trial court was correct in finding against personal jurisdiction on due process grounds, we do not reach the question whether subsection (d) would otherwise provide a basis for jurisdiction.
As to appellant’s argument that jurisdiction should be found because of “fairness” in permitting it to litigate against all parties where it was forced into court by the plaintiff, it is clear that fairness itself cannot overcome the requirement of some necessary minimum contacts. In Volkswagen, the Court said:
Even if the defendant would suffer minimal or no inconvenience from being forced to litigate before the tribunals of another State; even if the forum State has a strong interest in applying its law to the controversy; even if the forum State is the most convenient location for litigation, the Due Process Clause, acting as an instrument of interstate federalism, may sometimes act to divest the State of its power to render a valid judgment. 444 U.S. at 294, 100 S.Ct. at 565.
The judgment is AFFIRMED.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "trade". What subcategory of business best describes this litigant?
A. auto, auto parts, auto repairs
B. chemical
C. drug
D. food
E. oil, natural gas, gasoline
F. textile, clothing
G. electronic
H. alcohol or tobacco
I. general merchandise
J. other
K. unclear
Answer: |
sc_petitioner | 104 | 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.
MORALES v. TURMAN et al.
No. 76-5881.
Decided March 21, 1977
Per Curiam.
The motion of American Orthopsychiatric Association et al. for leave to file a brief as amici curiae is granted.
This case from the United States Court of Appeals for the Fifth Circuit involves the proper scope of three-judge-court jurisdiction under 28 U. S. C. § 2281. Petitioners brought suit challenging allegedly unconstitutional punitive and inhumane conditions in Texas institutions housing juvenile delinquents, and the failure to provide juveniles with the rehabilitation or treatment that justified their confinement. A single District Judge determined that the juveniles’ constitutional rights had been violated, and ordered the parties to submit a curative plan. The Court of Appeals vacated the District Court’s decision on the ground that a three-judge court should have been convened in accordance with § 2281. 535 F. 2d 864 (1976).
The appellate court reasoned that the challenged, unwritten practices of the juvenile institutions administered by the Texas Youth Council were revealed during trial to be statewide in impact and that therefore they were equivalent to a statute with statewide applicability within the meaning of § 2281. Under the Court of Appeals’ analysis, the necessity of convening a three-judge court was thus not properly apparent until considerable factual development of the breadth and content of the Texas Youth Council’s administrative practices had taken place.
In construing § 2281, this Court has concluded that the three-judge court procedure is brought into play in any “suit which seeks to interpose the Constitution against enforcement of a state policy, whether such policy is defined in a state constitution or in an ordinary statute or through the delegated legislation of an ‘administrative board or commission.’ ” Phillips v. United States, 312 U. S. 246, 251 (1941). We have never, however, considered the generalized, unwritten practices of administration to be equivalent to the “delegated legislation” of an administrative board. In fact that approach was specifically rejected in Baxter v. Palmigiano, 425 U. S. 308 (1976), involving a challenge brought in a single-judge court to the Rhode Island prison system’s unwritten rule forbidding counsel at disciplinary hearings. In rejecting the argument that a three-judge court was necessary to resolve that challenge, we noted that the complaint did not meet the threshold requirements of § 2281 jurisdiction; it “did not mention or challenge any rule or regulation of the Authority; nor did it seek an injunction against the enforcement of any identified rule.” 425 U. S., at 313 n. 2. That description applies equally to the complaint in this case.
The ruling in Baxter merely reflected the consistent recognition that the three-judge court procedure is not “a measure of broad social policy to be construed with great liberality, but . . . an enactment technical in the strict sense of the term and to be applied as such.” Phillips v. United States, supra, at 251; see also Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 98 (1974). The Court of Appeals' ruling improperly deviated from that understanding, and in addition it effectively transformed the jurisdictional inquiry from a threshold question to one depending upon the shifting proof during litigation, injecting intolerable uncertainty and potential delay into important litigation.
Accordingly we hold that the single District Judge properly exercised jurisdiction to decide this case, and that his judgment is reviewable on the merits in the Court of Appeals. See 28 U. S. C. § 1291. The petition for a writ of certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Public Law 94-381, Aug. 12, 1976, 90 Stat. 1119, prospectively repealed 28 U. S. C. § 2281. For cases pending at the time of repeal, § 2281 still governs jurisdiction, and provides:
“An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”
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_genapel2 | A | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the 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.
Kenneth L. DUVAL, and Cheryl Duval, on behalf of themselves and all other Nebraska residents similarly situated, Jerry K. Mason and Linda L. Mason, Appellees, v. MIDWEST AUTO CITY, INC., a corporation, Appellant, Dave Studna, Individually, Dave Studna d/b/a E & J Motor Sales, American Truck Sales, Global Tank Trailer Sales, and D. Studna Auto Sales, Ervin Delp, Individually, Appellant, Midwest Auto City, Inc., and Ervin Delp d/b/a Tecumseh Motors and Bernard Flaherty.
No. 77-1910.
United States Court of Appeals, Eighth Circuit.
Submitted April 12, 1978.
Decided June 12, 1978.
Herbert J. Friedman, Lincoln, Neb., on briefs for appellant.
Alan L. Plessman, Lincoln, Neb., on brief for appellees.
Before BRIGHT and ROSS, Circuit Judges, and TALBOT SMITH, Senior District Judge.
The Honorable TALBOT SMITH, Senior United States District Judge for the Eastern District of Michigan, sitting by designation.
ROSS, Circuit Judge.
Midwest Auto City, Inc. (Midwest) sells automobiles in Lincoln, Nebraska. In 1975 Midwest sold to each of the plaintiffs, the Duvals and the Masons, a used car which had had its odometer rolled back to give the impression that the car was a low-mileage vehicle when in fact its true mileage was much higher. Alleging that they had been victimized by conduct made unlawful under Title IV of the Motor Vehicle Information and Cost Savings Act, 15 U.S.C. § 1981 et seq., plaintiffs commenced this suit. They sought to recover treble damages together with the costs of the action and an award of attorney fees, all as provided in 15 U.S.C. § 1989.
Following a bench trial the district court entered findings of fact and conclusions of law holding the defendants liable to both plaintiffs. A hearing was later held to determine the amount of attorney fees and costs, and an award was entered.
Plaintiffs’ complaint had named as defendants, in addition to Midwest, several other individuals and entities, including Midwest’s president Ervin Delp; only Midwest and Delp have appealed. Together they assert that the trial judge (1) erred in failing to grant judgment of dismissal at the close of the plaintiffs’ case, (2) erred in certain of his findings of fact and conclusions of law, and (3) abused his discretion in making the award of attorney fees. We affirm the judgment of the district court.
The facts of the case are fully and accurately set out in the district court’s reported opinion and will be reiterated here only where necessary to discuss the issues presented by this appeal.
I.
During their case in chief, plaintiffs introduced evidence tending to show that Midwest and Delp were part of a scheme whereby Midwest would buy high-mileage vehicles with low-mileage odometer readings from a car dealer in Kansas. Midwest in turn would resell these cars as low-mileage vehicles. The district court described the workings of this arrangement as follows:
Two paths predominated. One would begin with the purchase of a car in Kansas, the certificate of title showing high mileage, whereupon the car would be sent to Bennie Motors in Missouri and titled there, where the state law does not require a mileage certification, and then the car would be transported to Nebraska for sale. *' * * The other path consisted of the purchase of an automobile in Kansas and sending the ear to Nebraska for sale with a copy of the certificate of title sufficiently mutilated by erasure or ink smudge to render the high-mileage odometer reading illegible, thus obscuring to a potential purchaser the fact that the odometer itself had been turned back.
Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381, 1385 (D.Neb.1977).
At the close of the plaintiffs’ case, defendants moved for involuntary dismissal under Fed.R.Civ.P. 41(b) on the ground that the plaintiffs’ evidence was insufficient to show a right to relief. Ruling on this motion was reserved and defendants proceeded to their proof. On áppeal, defendants argue essentially that liability could be established against Midwest and Delp only by considering evidence of the market value of the various automobiles as high-mileage and as low-mileage cars. Only by correlating these values with the prices actually paid by Midwest, and the prices actually charged on resale, could it be determined whether Midwest was a participant in, or itself a victim of, the alleged scheme. Evidence of market value was introduced only during the defendants’ presentation. Thus, defendants argue, the district court erred in failing to grant their motion for dismissal. This argument is stated in defendants’ brief as follows:
The trial court forced the defendants to proceed with their case without ruling on the motion to dismiss and then allowed the plaintiffs to bootstrap their faulty case with evidence adduced by the defendants. The court should not have permitted this and should have dismissed the plaintiffs’ case pursuant to the motion of the defendants.
Under the circumstances here presented, defendants are foreclosed from raising any issue concerning the sufficiency of the evidence as it stood at the close of plaintiffs’ case. If a defendant, after moving for involuntary dismissal at the close of the plaintiff’s case, introduces evidence in his own behalf, his right to a judgment of dismissal is thereby waived. See, e. g., Wealden Corp. v. Schwey, 482 F.2d 550, 551-52 (5th Cir. 1973); A. & N. Club v. Great American Insurance Co., 404 F.2d 100, 103-04 (6th Cir. 1968); 9 Wright & Miller, Federal Practice & Procedure § 2371, at 221 (1971). In such situations the sufficiency of the evidence is tested on appeal by viewing the entire record, reversal being warranted only if the district court’s findings are clearly erroneous.
This conclusion is not altered by the fact that the trial judge reserved ruling on the motion when made. Rule 41(b) expressly authorizes the ruling to be so reserved. The judge did not thereby “force” defendants to do anything. “If defendants wished to challenge this decision, their avenue for doing so was to refuse to offer their evidence, accept a judgment for plaintiffs, and appeal it on the ground that plaintiffs’ evidence was insufficient.” Wealden Corp. v. Schwey, supra, 482 F.2d at 552.
II.
On the issue of liability the district court concluded that both Midwest and Delp had violated 15 U.S.C. § 1986 by conspiring with the other named defendants to violate other sections of the Act, including 15 U.S.C. § 1984, which provides:
No person shall disconnect, reset, or alter or cause to be disconnected, reset, or altered, the odometer of any motor vehicle with intent to change the number of miles indicated thereon.
Finding sufficient evidence to conclude that Midwest and Delp were part of a conspiracy to violate this section, and that the vehicles of both plaintiffs fell within the ambit of the conspiracy, the judgment of the district court is, on this basis, affirmed.
As an additional basis of liability the district court found that Delp violated 15 U.S.C. § 1988, which states in pertinent part:
(a) Not later than 90 days after October 20, 1972, the Secretary [of Transportation] shall prescribe rules requiring any transferor to give the following written disclosure to the transferee in connection with the transfer of ownership of a motor vehicle:
(1) Disclosure of the cumulative mileage registered on the odometer.
(2) Disclosure that the actual mileage is unknown, if the odometer reading is known to the transferor to be different from the number of miles the vehicle has actually traveled.
The district court found that Delp violated this section by failing to furnish the plaintiffs with the required statement disclosing that the true mileage of the vehicles was unknown. We disagree with this holding of the district court. As the above-quoted statutory language makes plain, liability is imposed upon a transferor who fails to make the required disclosure to a transferee “in connection with the transfer of ownership of a motor vehicle.” In the implementing rules prescribed by the Secretary of Transportation, “transferor” is defined as “any person who transfers his ownership in a motor vehicle.” 49 C.F.R. § 580.3 (emphasis added). No liability could attach to Delp under this section since, with respect to each plaintiff, the owner of the vehicle, and thus its transferor, was Midwest, not Delp. See Romans v. Swets Motors, Inc., 428 F.Supp. 106, 107-08 (E.D.Wis. 1977) (corporate manager not a transferor); Coulbourne v. Rollins Auto Leasing Corp., 392 F.Supp. 1198, 1199-1200 (D.Del.1975) (corporate sales agent not a transferor).
III.
Following trial, a separate hearing was held to determine the amount of costs and reasonable attorney fees as provided for in 15 U.S.C. § 1989(a) of the Act. Upon consideration of the evidence presented and the briefs of counsel, Judge Urbom awarded plaintiffs attorney fees in the amount of $14,205.65. In making this award the court applied the guidelines recommended in the American Bar Association’s Code of Professional Responsibility, Disciplinary Rule 2-106. Those guidelines have frequently been approved by this court as a standard for determining reasonable attorney fees.
On appeal defendants concede the appropriateness of the factors considered by Judge Urbom and likewise agree that this court should accept the district court’s judgment except upon a showing of an abuse of discretion. Arguing that such an abuse occurred in this case, defendants assert (1) that the Duvals were not awarded damages and such fact should have reduced the amount of attorney fees, and (2) that the award is greatly in excess of the amount of damages and is, for that reason, patently unreasonable. We reject both arguments.
A.
Upon finding that the defendants had violated the Act in connection with the sale of the Duval automobile, Judge Urbom concluded that the Duvals were entitled to recover as damages the difference between the amount they had paid for the car and the fair market retail value of the same car with the number of miles it had actually traveled. This amount was determined to be $247 which, if tripled, is less than the $1500 minimum provided in 15 U.S.C. § 1989(a)(1). Therefore, the court determined that the Duvals were entitled to recover $1500. However, as a result of an earlier settlement between themselves and another defendant, the Duvals had actually received $2500. Because this amount exceeded the total amount of recovery, the court concluded that the Duvals were entitled to no more, except attorney fees and costs.
Under the circumstances of this case, we conclude that the above-described settlement does not require a reduction in the total amount of attorney fees awarded. Following the settlement the case proceeded to trial against the remaining defendants on the claims of both the Duvals and the Masons. Violations were proved against all defendants and their individual liability to each plaintiff thereby established. The extent of the preparation required to establish this liability was commented upon by Judge Urbom as follows:
Over two hundred separate automobile transactions between the parties were investigated in detail by the plaintiffs’ counsel, although many less than that were detailed at the trial. Nonetheless, the fact is that the patterns developed by extensive documentation of similar automobile transactions between Midwest Auto City, Inc., David Studna, and Bennie Studna formed the strongest evidence of a conspiracy between those persons and knowledge on the part of Midwest Auto City, Inc. and Ervin Delp that the odometers of the plaintiffs’ automobiles had been altered. * * *
It cannot be doubted that massive investigation preparatory to the trial was necessary if any reasonable likelihood of success was to be realized.
We agree with the district court’s assessment of the work required of plaintiffs’ counsel to adequately prepare this case for trial. We also conclude that the nature of the case was such that, to be successful, the same preparation was required whether there was one plaintiff or two or more. Defendants apparently made no attempt in the court below, and have made none here, to show that any significant portion of the total work product specifically attributable to the Duvals’ claim was performed by the plaintiffs’ attorney after the settlement of the Duval claim, which work would not have been performed had the case proceeded only on the Masons’ claim. Accordingly, we hold that defendants have failed to present any factual basis for concluding that the district court abused his discretion in calculating the amount of attorney fees.
B.
The combined statutory damages found by the district court to be recoverable by the two plaintiffs was $3,960; the attorney fees awarded amounted to over $14,000. Defendants insist that the disparity between these two figures makes the latter award unjust. We disagree.
By its enactment of Title IV of the Motor Vehicle Information and Cost Savings Act, Congress sought to “establish a national policy against odometer tampering and prevent consumers from being victimized by such abuses.” S.Rep. No. 92-413, 92d Cong., 2d Sess., 3 U.S.Code Cong. & Admin. News, pp. 3960, 3962 (1972). This policy is carried over in 15 U.S.C. § 1981, which states: “[i]t is therefore the purpose of this subchapter to prohibit tampering with odometers on motor vehicles and to establish certain safeguards for the protection of purchasers * *
To accomplish its remedial purposes the Act provides in 15 U.S.C. § 1989 for the recovery of treble damages or $1500, which ever is the greater. The same section makes recovery of reasonable attorney fees a mandatory feature of a defendant’s liability upon proof of a violation. See 15 U.S.C. § 1989(a), quoted in note 4 supra. We agree with the district court’s observation that these provisions are a response to legislative recognition that, as a practical matter, “in many situations, the amount of damage under the Act will be so small that few attorneys will pursue his client’s case with diligence unless the amount of the fee be proportionate to the actual work required, rather than the amount involved.”
In rejecting defendants’ argument, we do not minimize the significance of the amount of recovery as a factor in determining the reasonable value of an attorney’s services. That factor, however, must be placed alongside the others, and all must be placed in the context of a concrete case. We hold that where, as here, a remedial statute requires the awarding of attorney fees as an element of recovery, a showing that the trial court’s award exceeds the amount of damages does not, standing alone, amount to an abuse of discretion.
The judgment of the district court is affirmed.
. Duval v. Midwest Auto City, Inc., 425 F.Supp. 1381 (D.Neb.1977).
. Defendants do not seriously contend that the record as a whole fails to support the district court’s findings on this particular issue; indeed, defense counsel candidly acknowledged at oral argument that there never was any question that the odometers had in fact been tampered with. Instead, defendants’ primary argument was that discussed in section I of this opinion, i. e. that the evidence necessary to establish a conspiracy was introduced during the defendants’ presentation.
. In view of our holding that the district court correctly found that Delp violated 15 U.S.C. § 1986, our conclusion that he did not also violate 15 U.S.C. § 1988 does not affect the outcome of this appeal. However, the issue presents a question of first impression in this circuit concerning the scope of liability under this statute and we deem the question to be one of sufficient significance to warrant brief discussion.
. 15 U.S.C. § 1989(a) provides:
(a) Any person who, with intent to defraud, violates any requirement imposed under this subchapter shall be liable in an amount equal to the sum of—
(1) three times the amount of actual damages sustained or $1,500, whichever is the greater; and
(2) in the case of any successful action to enforce the foregoing liability, the costs of the action together with reasonable attorney fees as determined by the court.
. DR 2-106(B) states in part:
Factors to be considered as guides in determining the reasonableness of a fee include the following:
(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
(2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
(3) The fee customarily charged in the locality for similar legal services.
(4) The amount involved and the results obtained.
(5) The time limitations imposed by the client or by the circumstances.
(6) The nature and length of the professional relationship with the client.
(7) The experience, reputation, and ability of the lawyer or lawyers performing the services.
(8) Whether the fee is fixed or contingent.
. A detailed analysis of the factors listed in DR 2-106 was articulated by the court in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). That court’s discussion has been cited with approval in this circuit on a number of occasions. See, e. g., Allen v. Amalgamated Transit Union Local 788, 554 F.2d 876, 884 (8th Cir.), cert. denied, 434 U.S. 891, 98 S.Ct. 266, 54 L.Ed.2d 176 (1977); Firefighters Institute for Racial Equality v. City of St. Louis, 549 F.2d 506, 516 (8th Cir.), cert. denied, 434 U.S. 819, 98 S.Ct. 60, 54 L.Ed.2d 76 (1977).
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_usc1 | 0 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
UNITED STATES of America ex rel. Richard Charles GEIGER, Petitioner-Appellant, v. Lt. Col. Willie H. McBEE, Respondent-Appellee.
No. 18325.
United States Court of Appeals, Seventh Circuit.
June 5, 1970.
Rehearing Denied Aug. 28,1970.
Stanley A. Bass, Community Legal Counsel, Michael E. Povieh, Cook County Legal Assistance, Chicago, 111., for petitioner-appellant.
Thomas A. Foran, U. S. Atty., Eugene Robinson, Chicago, 111., for respondent-appellee; John Peter Lulinski, Asst. U. S. Atty., of counsel.
Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge and CUMMINGS, Circuit Judge.
DUFFY, Senior Circuit Judge.
On March 5, 1970, petitioner Geiger submitted to induction pursuant to an order of his Draft Board. He then immediately filed a petition for a writ of habeas corpus challenging the validity of the order. The District Court denied the petition and petitioner appealed to this Court. We temporarily enjoined the commanding officer of the Induction Station from removing petitioner from the district for a period to and including March 11, 1970. Thereafter, we continued the injunction pending this appeal.
After petitioner’s eighteenth birthday in 1965, he registered for the draft with Michigan Local Board 102. He then lived in Michigan. Petitioner’s questionnaire disclosed that he was, at that time, a full time student at the University of Michigan.
On April 21, 1965, petitioner was classified II-S by Local Board 102. For a short period thereafter, petitioner was classified I-A because of his failure to advise the Board that he still was attending school. Then, on February 16, 1966, he was reclassified as II-S, and for the next two years (until July 9, 1968) this classification continued. When he was graduated from the University of Michigan, he was again classified as I-A.
On September 11, 1968, petitioner was classified II-A because of his teaching activities in Detroit “core-area” schools. On October 9, 1968, Local Board 102 received notification from the University of Illinois, advising that Geiger had enrolled as a first year law student. On December 10, 1968, Geiger was reclassified as I-A and ordered on January 15, 1969 to report for a physical examination to be held February 3, 1969.
There were other shifts in petitioner’s classification which need not be detailed except to note that on July 16, 1969, Geiger wrote to the Clerk of Local Board 102, requesting an application form for status as a conscientious objector. This form was promptly mailed to him but he did not return same to the Board.
In the summer of 1969, Geiger was working for VISTA (Volunteers In Service To America), a branch of the Office of Economic Opportunity (O.E.O.). He requested draft deferment for the summer. This was denied on August 26, 1969 which was four days before the end of his summer employment with VISTA.
Geiger again secured employment with VISTA, this time for a one-year period until October 1970. On September 23, 1969, Kenneth Howell, a Division Director of the Program, wrote to Board 102 requesting an occupational deferment for Geiger. Howell advised that Geiger had organized tenant unions and had successfully caused the rehabilitation of apartment buildings. Howell stated that Geiger offered a unique and valuable contribution to work that must continue.
On October 22, 1969, Local Board 102 advised that “ * * * the information submitted did not warrant reopening of * * * ” Geiger’s classification. On November 5, 1969, Geiger wrote a letter to the Government Appeal Agent in which he elaborated on facts connected with his VISTA employment which, he claimed, demonstrated he could not be replaced. This letter was received on November 10, 1969. He requested the Appeal Agent to unequivocally advise the Board to reopen his case. Previously, two similar letters had been sent by Geiger to the State Director and the National Director.
On November 14, 1969, the Appeal Agent wrote to Local Board 102 stating “ * * * that the services rendered by [Geiger] to the Community Legal Counsel indicating his employment in the Office of Economic Opportunity, VISTA, is not that type of service commanding an occupational deferment.”
Previously, on November 10, 1969, the Local Board had issued an order for Geiger to report for induction on December 8, 1969. Later, the induction was transferred to Chicago where Geiger was residing and working, and Geiger was ordered to and did report on March 5, 1970 as hereinbefore stated.
Congress has provided for deferment from training and service in the armed forces, for persons whose employment is found to be necessary to the maintenance of the national health, safety or interest, providing such deferments be upon the basis of the individual status of each registrant. Title 50 App.U.S.C. § 456(h) (2).
On April 19, 1968, the Director of Selective Service issued Local Board Memorandum No. 95 concerning the policy of that Agency with respect to occupational deferments. Each Local Board was thereafter vested with the discretion to grant, in individual cases, occupational deferments based on a showing of essential community need.
On August 26, 1969, the Michigan State Appeal Board which had jurisdiction of the area in which Geiger’s Local Board is located, made a final determination of Geiger’s classification. Prior correspondence contained in the file concerned Geiger’s summer employment with VISTA and also contained a specific request for an occupational deferment based on that employment. On this appeal, Geiger does not challenge that determination of the Michigan Appeal Board.
On this appeal, he argues that his subsequent assignment to the VISTA program for a one-year period was not considered by the Board when he was classified. He also argues that a state memorandum issued by the State Director of Selective Service for the State of Illinois recommending that a registrant’s engagement in VISTA be considered for occupational deferment was sufficient to create a basis for the reopening of his classification.
This Court may take judicial notice of the recent public announcement by the Office of Economic Opportunity stating it would no longer support draft deferments for VISTA volunteers. However, we must judge the action of the Board here in question in light of the conditions which existed as of the date when the Board’s decision was made. Very likely, at that time, a number of such deferments were granted by various Boards.
The burden is upon the registrant to establish his entitlement to any classification other than I-A. United States of America ex rel. Luster v. McBee, 422 F.2d 562 (7 Cir., 1970); United States of America v. Porter, 314 F.2d 833, 835 (7 Cir., 1963), 32 C.F.R. § 1622.1 (c) (1969).
In Luster, supra, at page 566, we also stated “ * * * the scope of judicial review of a draft classification is limited to the narrow question of whether there was any basis in fact for the board’s order. * * * So long as there is a basis in fact for the board’s decision to classify the appellant I-A and to deny his request for a III-A deferment, this court’s scope of review ends * *
Petitioner Geiger argues that the Local Board was under an obligation to reopen his classification upon receipt of the information concerning his one-year employment with VISTA. Such information came from Geiger and from various of his superiors at VISTA.
The question of when a Local Board is required to reopen was recently clarified by this Court in the case of United States of America ex rel. Luster v. McBee, supra, at page 567. We stated therein “There is no dispute as to the legal standard for determining whether the local board was under a duty to reopen appellant’s classification. A local board is required to reopen a registrant’s classification, upon receipt of new information presenting facts not considered when he was previously classified, which facts, if true, would require or entitle him to reclassification, i. e., a prima facie case. * * * Accordingly, a local board may properly determine not to reopen if either 1) the information presented by the registrant ‘fails to present any facts in addition to those considered when the registrant was [previously] classified’ or 2) ‘even if new facts are presented, the local board is of the opinion that such facts, if true, would not justify a change in the registrant’s classification.’ 32 C.F.R. § 1625.4 (1969).” The Local Board had the discretion to grant or deny occupational deferments for VISTA service for both the summer and the one-year employment.
It is very clear from this record that the Local Board did know of Geiger’s employment by VISTA, first for the period of a summer vacation and thereafter for a one-year period. In fact, on November 14, 1969, the Government Appeal Agent returned Geiger’s file to his Board and in a letter to it, stated he was of the opinion that Geiger’s VISTA employment was not of the type which commanded an occupational deferment from his Local Board.
It is quite apparent that Geiger and his friends in VISTA made a determined, extended and persistent effort to obtain a change in Geiger’s classification. Appeals were made to the State Director. Thereafter, Geiger’s file was forwarded to the Director of Selective Service at Washington, D. C. for review.
We think it was reasonable for the Board to believe that the national health, safety or interest would not be affected unless Geiger were deferred. The Board undoubtedly did not believe that the VISTA objectives of the Community Legal Counsel would experience a loss of effectiveness by Geiger’s departure for the service. The record before the Board showed that Geiger had commenced his employment for one year only a very short time before his employer requested a deferment for him.
We are of the view that there was a substantial compliance by Local Board 102 with the requirements of the pertinent regulations; that the Board did not act arbitrarily and capriciously in classifying Geiger as I-A and in its denial of Geiger’s request for reopening.
We hold that the record clearly shows a basis in fact for Geiger’s I-A classification.
The Order of the District Court denying Geiger’s petition for a writ of habeas corpus will be and is affirmed.
The restraining order and injunction hereinbefore entered will be dissolved.
Affirmed and injunction dissolved.
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_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 26. 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.
MID-SOUTH MUSIC CORPORATION, Plaintiff-Appellant, v. Alvin H. KOLAK, Sid Wissand, Harvey Haskins, Rose Baumgarter, Chris Workman, Charles Stamphill, Bruce Thomas, Darrell Hall, Roy Oakes, Tommy Kain, and the United States of America, Defendants-Appellees.
No. 83-5867.
United States Court of Appeals, Sixth Circuit.
Decided Oct. 30, 1984.
Krupansky, Circuit Judge, concurred in part and dissented in part and filed opinion.
John B. Link, III (Lead), John B. Owens, Jr. (argued), King, Ballow & Little, Nashville, Tenn., for plaintiff-appellant.
Robert E. Rice, Glenn L. Archer, Jr., Michael L. Paup, Thomas Gick (argued), U.S. Dept, of Justice, Tax Div.-Civil Trial Section, Washington, D.C., for defendants-appellees.
Before MERRITT and KRUPANSKY, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
MERRITT, Circuit Judge.
Plaintiff Mid-South Music Corporation, appeals from the District Court's dismissal of its suit against the United States and various officials of the Internal Revenue Service seeking compensatory and punitive damages for alleged violation of its statutory and constitutional rights. The alleged violations arose from a pre-filing letter sent by IRS officials in Nashville to investors in a tax shelter marketed by Mid-South, informing them that based on IRS review of Mid-South “purported tax deductions” from that investment would not be allowed and investors claiming such deductions would be subject to penalties. In its second amended complaint, plaintiff claims that this letter caused the destruction of its business and loss of income, depriving it of property in violation of the Fifth Amendment’s requirement of due process. In addition, Mid-South argues that this letter revealed its identity as a taxpayer and the fact that it was subject to IRS audit, thereby disclosing tax return information in violation of 26 U.S.C. § 6103. The District Court held that the United States had not waived sovereign immunity from the constitutional claim and that a cognizable Fifth Amendment property interest had not been alleged in any event. He also ruled that the individual defendants were not amenable to suit for the statutory violations because 26 U.S.C. § 7431(a)(1) provides for suit against the United States as the exclusive remedy for violations of Section 6103. On the statutory claim against the United States, the Court held that no violation of Section 6103 had been stated in the complaint.
The District Court correctly dismissed the constitutional claim against the United States and. the individual defendants. No constitutional claim is stated against the individual defendants because the plaintiff has alleged no property interest cognizable under the Fifth Amendment. Construed in the light most favorable to the plaintiff, its complaint alleges that the pre-filing letter has caused investors to withdraw their money from Mid-South and thereby caused the destruction of its business. It is settled, however, that not every expectation is entitled to the due process protections of the Fifth Amendment. Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972); Leis v. Flynt, 439 U.S. 438, 441-443, 99 S.Ct. 698, 700-701, 58 L.Ed.2d 717 (1979). The plaintiff is in effect claiming that its business interests should be protected from IRS communications intended to convey to taxpayer investors information which will prevent them from being penalized for erroneously taking deductions on their income tax returns. A similar situation was before the Supreme Court in Bob Jones University v. Simon, 416 U.S. 725, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), where the taxpayer sought an injunction restraining the IRS from withdrawing advance assurance to donors that contributions to the taxpayer’s organization would constitute charitable deductions under the Tax Code. The Court rejected the taxpayer’s argument that prohibition of the desired injunc-tive relief under the Anti-Injunction Act (26 U.S.C. § 7431(a)) would violate its Fifth Amendment rights because withdrawing the assurance of tax deductions would cause a reduction if not elimination of donations and the destruction of its organization. The Court reasoned that:
... although the Congressional restriction to postenforcement review may place an organization claiming tax-exempt status in a precarious financial position, the problems presented do not rise to the level of constitutional infirmities, in light of the powerful governmental interests in protecting the administration of the tax system from premature judicial interference ... and of the opportunities for review that are available.
416 U.S. 725, 747-748, 94 S.Ct. at 2051-2052.
Our conclusion is buttressed by the fact that the causal connection between the IRS’s actions and the alleged business injury is attenuated. Here, there was no IRS action directly depriving the plaintiffs of property. Accord Investment Annuity, Inc. v. Blumenthal, 609 F.2d 1, 7 (D.C.Cir. 1979).
On the issue of an alleged violation of the non-disclosure provisions in 26 U.S.C. § 6103, we affirm the District Court’s decision that under 26 U.S.C. § 7431(a)(1) the only proper defendant to such a suit is the United States, and that no claim is stated against the individual defendants for such a statutory violation. We reverse the District Court’s ruling that as a matter of law, the plaintiff has failed to allege that return information was disclosed within the meaning of section 6103. Such information is defined by Section 6103(b)(2) to include a “taxpayer’s identity” and “whether the taxpayer’s return was, is being, or will be examined or subject to other investigation or processing.” Construed favorably, Mid-South’s complaint asserts that the pre-filing notice revealed its identity as a taxpayer and the fact that it had been under IRS investigation, since the investors’ names were allegedly obtained through that investigation (a fact then revealed to them upon receiving the pre-filing letter). These allegations state a colorable claim.
At oral hearing defendants argued that the pre-filing letter’s legality might be saved under section 6103(e)(7) and perhaps other subsections which create exceptions to the non-disclosure provision, allowing disclosure to certain authorized persons. However, this issue was not presented to the District Court, was not briefed or thoughtfully considered by the parties, and it is not suitable for our resolution at this time.
We therefore affirm the District Court’s judgment dismissing both the constitutional and statutory claims against the individual defendants, and the constitutional claim against the United States as a party defendant. We remand to the District Court for reconsideration of the statutory claim against the United States under 26 U.S.C. § 7431(a)(1), and the issue of a possible exception under Section 6103(e)(7) and other similar provisions.
. In relevant part, 26 U.S.C. § 6103 provides:
(a) General rule. — Returns and return information shall be confidential, and except as authorized by. this title—
(1) no officer or employee of the United States, shall disclose any return or return information obtained by him ...
(b) Definitions. — For purposes of this section
(2) Return information. — The term "return information” means—
(A) a taxpayer's identity, the nature, source, or amount of his income, payments, receipts, deductions, exemptions, credits, assets, liabilities, net worth, tax liability, tax withheld, deficiencies, overassessments, or tax payments, whether the taxpayer's return was, is being, or will be examined or subject to other investigation or processing, or any other data, received by, recorded by, prepared by, furnished to, or collected by the Secretary with respect to a return or with respect to the determination of the existence, or possible existence, of liability (or the amount thereof) of any person under this title for any tax, penalty, interest, fine, forfeiture, or other offense____
. 26 U.S.C. § 7431(a)(1) provides:
"If any officer or employee of the United States knowingly, or by reason of negligence, discloses any return or return information with respect to a taxpayer in violation of any provision of section 6103, such taxpayer may bring a civil action for damages against the United States in a district court of the United States."
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 26. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
songer_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.
BANK ONE TEXAS, N.A., Plaintiff, Appellee, v. A.J. WAREHOUSE, INC., et al., Defendants, Appellants.
No. 91-1826.
United States Court of Appeals, First Circuit.
Heard March 3, 1992.
Decided June 30, 1992.
Bernard J. Bonn III, with whom John P. Dennis, Timothy C. Blank and Dechert Price & Rhoads, Boston, Mass., were on brief, for appellants.
Kathryn S. Shea, with whom John M. Harrington, Jr. and Ropes & Gray, Boston,Mass., were on brief, for appellee.
Before TORRUELLA, Circuit Judge, CAMPBELL and WEIS, Senior Circuit Judges.
Of the Third Circuit, sitting by designation.
TORRUELLA, Circuit Judge.
The cast of characters in this case reads like a García Márquez novel. It involves an appeal from a summary judgment issued by the United States District Court for the District of Massachusetts in favor of Bank One Texas, N.A. (“Bank One”), and against Leaseway Transportation Corporation and its related corporations, (collectively “the Companies”). The Companies allege that there are material issues of genuine fact which make summary judgment in this case inappropriate. We disagree and affirm the judgment of the district court.
FACTS
The Merger
Leaseway Transportation Corporation (“Leaseway”), is a holding company organized and existing under the laws of Delaware. Leaseway has approximately 70 subsidiaries at the present, from which it derives all of its revenue. Until June 25, 1987, Leaseway was a publicly held company with its capital stock listed on the New York Stock Exchange. On that date, LTC Acquisition Company, a wholly-owned subsidiary of Leaseway Holdings, Inc., (“Holdings”), was merged with Leaseway, and as a result of the merger, Leaseway became a wholly-owned subsidiary of Holdings. Holdings is a privately owned corporation.
The Loans
To obtain part of the funds to finance the referenced merger and to obtain additional working capital, revolving credit funds and letters of credit, Holdings, Leaseway and substantially all of Leaseway’s subsidiaries, (i.e., the Companies), on June 25, 1987, executed and delivered a Revolving Credit Term Loan Agreement (“credit agreement”), to a consortium of 20 lending banks (collectively “the Banks”), including MBank Dallas, N.A., predecessor-in-interest to Bank One, with the First National Bank of Boston, as agent.
Since the date of its execution the credit agreement has been amended 18 times. In May of 1990, Credit Agricole replaced First National as the agent bank under the credit agreement as amended, and Pittsburgh National Bank became the administrative agent.
The Banks loaned the Companies the aggregate sum of $382,000,000, consisting of $230,000,000 in revolving credit loans and $152,000,000 in term loans. Each bank’s revolving credit loan was subject to the terms and conditions of the credit agreement and was evidenced by a separate promissory note (“revolving credit note”) payable to that bank. Similarly, each bank’s term loan was subject to the credit agreement and was evidenced by a second separate promissory note (“term note”) payable to the bank.
MBank Dallas’ initial commitment was approximately 3% of the amounts loaned. Thus, MBank made a $10,440,000 revolving credit loan and a $4,560,000 term loan, for a total of $15,000,000. These notes were passed on by MBank to its successor, Bank One.
The Credit Agreement
The credit agreement was structured to permit ongoing credit advances to the Companies by the participating Banks. If a participating bank withdraws from providing ongoing credit advances under the credit agreement, thus reducing its commitment percentage to zero, it becomes a “terminating bank.” A key provision of the credit agreement, for the protection of the “non-terminating banks,” prevents terminating banks from interfering with the administration of the credit by providing, in section 14.2, that if for any reason a Bank receives any payment of past due principal or interest from the Companies, it may not retain any portion of the payment in excess of its “ratable share” of the payments received by all banks. Under the same section, each individual bank’s “ratable share” of payments received under the credit agreement is defined as its “commitment percentage.”
On December 31,1989, Bank One became a terminating bank under section 2.2 of the credit agreement by reducing its “commitment percentage” under the credit agreement to zero when it refused to participate in further loans to the Companies under the credit agreement terms.
Loan Payments
Section 6.7 of the credit agreement requires that the Companies make all payments under the credit agreement, including those under the notes, to the administrative agent (Pittsburgh National Bank). The administrative agent then remits to each bank its pro rata share of the payment. The notes themselves also provide for direct payment to the agent bank.
On October 5, 1990, Credit Agricole, Bank One’s agent bank, informed Bank One that under section 14.2 of the credit agreement Bank One’s ratable portion of any payment from the Companies, as a terminating bank, was zero. Bank One responded on November 14, 1990, stating its disagreement with that position and thereafter, on November 26, 1990, demanded payment from the Companies in the amount of $1,774,834 which it alleged was the principal and interest past due.
On November 29, 1990, Credit Agricole wrote Bank One claiming that, pursuant to the credit agreement, if it received any payment from the Companies, it would be required “to distribute the entire payment to other Banks.” Nevertheless, on December 4, 1990, the Companies replied to Bank One, supporting the administrative agent’s position and adding that the Companies would be at risk to other Banks if they made any payment to Bank One without approval of the other Banks.
The Law Suit
On January 31, 1991, plaintiff-appellee, Bank One, filed this diversity action in district court against defendants-appellants, the Companies, i.e., Leaseway Transportation Corporation and its related corporations. The complaint alleges that the Companies owe Bank One accrued principal and interest under the credit agreement and the notes. Bank One moved for summary judgment.
The Companies sought discovery relating to Bank One’s negotiation, preparation and execution of the credit agreement and the notes, the obligations of the Companies under those documents, and the factual basis for the statements and contentions in the Edge affidavit. The district court denied discovery.
The Companies filed a Motion to Dismiss on the grounds that Bank One had failed to join indispensable parties.
The district court denied the Companies’ Motion to Dismiss, and ruled on the Motion for Summary Judgment without allowing discovery. It entered judgment in favor of Bank One in the amount of the past due principal, $3,258,287.54. 137 F.R.D. 631.
The Companies appeal,
STANDARD OF REVIEW
Summary judgment is proper when there is “no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The district court’s grant of summary judgment is subject to de novo review by this court. Fowler v. Boise Cascade Corp., 948 F.2d 49 (1st Cir.1991); Catrone v. Thoroughbred Racing Assocs. of N.A., 929 F.2d 881, 884 (1st Cir.1991). We consider the facts in the light most favorable to the non-movant. See, e.g., Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 804 (1st Cir.1987).
LEGAL ANALYSIS
I. The Credit Agreement
Appellants submit that summary judgment should have been denied because there are genuine issues of material fact to be adjudicated. They specifically allege that the district court incorrectly concluded that the Companies’ and all of the non-terminating banks’ interpretation of section 14.2 of the credit agreement does not present an issue of fact. Rather, they claim, Bank One and the Companies directly dispute whether, under the credit agreement, Bank One is entitled to any payments at this time since Bank One is a terminating bank. Bank One asserts that it is entitled to payment, while the Companies contend that Bank One is not so entitled.
The credit agreement specifically provides that it is to be construed in accordance with Massachusetts law. It is well settled in Massachusetts, with regard to written contracts,
that it is only where more than one view can be taken of the evidence respecting the circumstances of the parties and the condition of the subject with which they are dealing that a proper case arises for the jury, and that where, as here, there is no dispute as to the facts to be applied to the terms of the contract, the interpretation of the contract in their light is still to be treated as a question of law for the judge.
Ober v. National Casualty Co., 318 Mass. 27, 60 N.E.2d 90, 91 (1945) (citations omitted) (emphasis added). Moreover, “so long as the words of an agreement are plain and free from ambiguity, they must be construed in their ordinary and usual sense.” McDonald’s Corp. v. Lebow Realty Trust, 888 F.2d 912, 913-14 (1st Cir.1989) (citing J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 494 N.E.2d 374, 378 (1986)). Furthermore, a contract is to be construed so as to give reasonable effect to each of its provisions. J.A. Sullivan Corp., 494 N.E.2d at 378 (citing McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 264, 186 N.E.2d 827 (1962)).
Having established the legal framework, we turn to the credit agreement at issue in the present case.
We recount at the outset the undisputed facts. It is undisputed that MBank Dallas, one of the banks, and the predecessor in interest to Bank One, and the Companies entered into a credit agreement. It is also undisputed that Bank One holds two notes subject to the terms of the credit agreement, both of which are past due, i.e., there is no question that the Companies are in default. As the district court found, Bank One is clearly authorized under the plain terms of section 14.1 of the credit agreement to bring suit for amounts past due against any or all the borrowers in the event of default. More specifically, section 14.1of the credit agreement reads:
Rights of Banks. If any one or more of the Events of Default specified in § 12 shall have occurred and be continuing, and whether or not acceleration of the Notes shall have occurred pursuant to § 12, (a) any Bank may proceed to protect and enforce its rights by suit in equity, action at law and/or by other appropriate proceeding, whether for the specific performance of any covenant or agreement contained in this Agreement and, if the Notes shall have become due, by declaration or otherwise, proceed to enforce the payment of such Notes or any other of its legal or equitable rights ...
(Emphasis added). There is no ambiguity in the language of section 14.1 and appellants point to no term giving rise to any ambiguity. Instead they argue that section 6.7 directs the Companies to make payment to the administrative agent. While this is true, it is no less true that section 6.7 does not operate in the event of default. It is sections 12 through 14 that address default specifically, with section 14.1 clearly stating that in the event of default any bank may take legal action against the borrowers and secure a judgment.
However, appellants argue that because Bank One is a terminating bank whose commitment percentage is zero, it is not entitled to any payment by the Companies. According to the Companies’ interpretation of section 14.2, Bank One is only entitled to payment from the Companies if the Non-Terminating banks consent, or if they are paid in full.
We find no language in section 14.2 that supports this argument. In fact, section 14.2 would seem to indicate to the contrary:
§ 14.2. Set-Off. ... Each Bank further agrees with the other Banks that if such Bank shall both (i) receive from the Companies or from any other source whatsoever, whether by voluntary payment, exercise of the right of set-off, counterclaim, cross action, or enforcement of any claim evidenced by the Notes or this Agreement, or by proof thereof in bankruptcy, reorganization, liquidation, receivership or similar proceedings, or otherwise, and (ii) retain and apply to the payment of the amounts owing with respect to the Notes or of any amounts due to such Bank under this Agreement any amount which is in excess of its ratable portion of the payments received by all of the Banks, then such Bank will make such disposition and arrangements with the other Banks with respect to such excess, either by way of distribution until the amount of such excess has been exhausted, assignment of claims, subro-gation or otherwise, as shall result in each such Bank receiving in respect of its Notes and the amounts due such Bank under this Agreement its ratable share of all such payments. For purposes of this § 14.2, each Bank’s ratable share of payments received hereunder shall be deemed to be its Commitment Percentage of such payments.
(Emphasis added). A close analysis of section 14.2 demonstrates that the credit agreement envisioned a law suit by any bank in the event of default. The purpose of this section is to specify what portion of the payments made by any of the Companies to a particular bank may be retained by that bank. This section provides that if a bank receives a payment from a company and such payment is in excess of that bank’s “ratable portion of the payments received by all the banks,” then such bank will distribute said excess among the other banks until the amount retained equals that bank’s ratable share. Thus, section 14.2 anticipated that payment would be made to a bank directly, even if said bank’s commitment percentage was zero. Therefore, the language of section 14.2 provided no support for appellants’ argument, since it only addresses how payments to the banks will be shared or divided.
We find it significant that section 14.1 precedes section 14.2 in the Credit Agreement, so that the agreement first grants the banks the right to sue for any amount due to it under the notes, and then, in section 14.2, it designates what portion of the amount recovered may be kept by the bank. Thus, for purposes of the present case, the language of section 14.2 is irrelevant as no payment has yet been made. Section 14.2 goes into effect only when payment is made.
Appellants also cite a letter from the agent bank in support of their proposition. They claim that:
Credit Agricole asserted in various letters to Bank One that because Bank One was a Terminating Bank, as defined in the Credit Agreement, it was not entitled to any payments from the Companies.
Appellants’ Brief at 21 (emphasis in original). We read Credit Agricole’s letter differently. In its letter to Bank One dated November 29, 1990, the agent bank stated:
Please be advised that ... if you receive any payments from the Companies pursuant to your demand, such payments will be for the pro rata benefit of the banks ... § 14.2 requires you to distribute the entire payment to the other banks.
Letter of Credit Agricole, dated November 29, 1990 (emphasis added). It is clear from the language of the letter that the agent bank was well aware that Bank One may sue the Companies for any amount owed under- the notes. In fact as the letter reads: “if you receive any payment from the Companies,” — it indicates that the author envisioned the possibility of payment being forwarded to the bank itself as a result of a court judgment. Thus the letter simply served as a warning that if Bank One was successful in recovering any money from the Companies, section 14.2 would come into effect and Bank One would be required to share said money with the other banks. Nowhere in the letter does the agent bank even suggest that Bank One was not entitled to any payment.
The Companies suggest that if judgment is accorded Bank One, they will be liable to the other banks in the case that Bank One refuses to share the payments with the other banks as directed by section 14.2. We find it unnecessary to enter into such speculations to properly render a decision in this ease.
The intent of the parties is clear from the plain language of the Credit Agreement. Accordingly, as there are no genuine issues of material fact, we affirm the decision of the district court.
II. Denial of Discovery
Appellants also appeal from the district court’s order denying discovery. Appellants sought discovery on the issue of whether Bank One is presently entitled to any payments under the terms of the credit agreement. More specifically the Companies urged the district court to allow discovery so as to ascertain the intent of the parties when they entered into the credit agreement.
To satisfy Rule 56(f), a party must “articulate a plausible basis for the belief that discoverable materials exist which would raise a trialworthy issue.” Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.1991). The district court’s denial of a Rule 56(f) motion is reviewable only for abuse of discretion. Id. We note that “a court may grant summary judgment despite an opposing party’s claim that discovery would yield additional facts where the opposing party has not alleged specific facts that could be developed through such discovery.” Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir.1984).
Thus, where like here, the intent of the parties is clear and free from ambiguity from the plain language of the agreement, discovery was not compelled. The only fact on which appellants sought discovery was regarding the intent of the parties when they entered into the Credit Agreement. However, as we stated above, when the intent of the parties is clear from the written language of the agreement, the interpretation of such agreement is a matter of law for the judge to decide from the plain terms of the document. See Ober, supra, 60 N.E.2d at 91. Therefore we find no abuse of discretion on the part of the district court in denying discovery.
III. Rule 19(a)
Last, appellants submit that the district court erred when it failed to dismiss Bank One’s complaint for nonjoinder pursuant to Rule 12(b)(7) and 19(a)(2) of the Federal Rules of Civil Procedure. According to the Companies, the Banks were all indispensable parties to the resolution of this dispute.
Under Rule 19(a)(2) a party is only necessary if:
(2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may
(i) as a practical matter impair or impede the person’s ability to protect that interest or
(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.
Fed.R.Civ.P. 19(a)(2).
Appellants assert that under the factual inquiry prescribed by Rule 19(a)(2), the Banks must be joined to fully adjudicate this matter, though they are not holders of the notes giving rise to this action.
In light of our previous analysis, we do not feel that disposition of this action in the absence of the Banks would leave the Companies subject to a substantial risk of incurring double obligations. To so hold would necessarily require our entering into issues not relevant to the disposition of this case — essentially whether Bank One is obligated to share any payment it receives from the Companies, and if so, whether Bank One will share said payments. We do not reach, nor need we reach these issues to fully adjudicate this matter. Nor are we impeding the Banks from protecting any interest they might have in the payments made to Bank One by not joining them to this action. In fact, the district court noted in its Memorandum of Decision, 137 F.R.D. at 632 n. 2, that “[a]l-though they are aware of it, the other banks have yet to show any interest in participating in this litigation.” The reason for this is clear, the other Banks will have no interest in this litigation until Bank One has actually recovered the amount due. Thus, the Banks are not necessary parties under 19(a) nor can they be indispensable parties under 19(b). See Pujol v. Shearson American Express, Inc., 877 F.2d 132, 135, 138 (1st Cir.1989).
AFFIRMED.
. There are a total of 71 defendants-appellants— A.J. Warehouse, et al.
. While the complaint filed by Bank One says the term note was in the amount of $4,506,000, the term note itself says the amount due thereunder is $4,560,000. We cite the amount on the term note. Further, appellants claim that the actual amount of the credit revolving loan is $6,900,000. We cite the amount on the revolving credit note — $10,440,000. We note that since Bank One is suing only for past due amounts, these discrepancies do not present an issue of material fact.
. Bank One alleged that the Companies owed Bank One principal payments under the term note in the amount of $800,000 as of December 31, 1990, and in the amount of $974,834 under the revolving credit note as of December 31, 1990.
. Section 17 provides that the Companies jointly and severally “agree to indemnify and hold harmless ... each Bank ... from and against all damages [or] losses” resulting from transactions contemplated under the terms of the Credit Agreement. In addition, section 11.2 prohibits the Companies from permitting any lien to be imposed on their assets except in accordance with the provisions of the Credit Agreement.
The actions of Bank One can only result in the imposition of liens on the Companies’ assets which is inconsistent with the terms of the credit agreement, and to the detriment of the other non-terminating banks.
. On July 19, 1991, despite earlier assertions that no interest was owed, the companies paid interest to Bank One. The amounts paid were $94,574.30 on the term note and $273,349.69 on the revolving credit note. According to Bank One, these amounts covered the period of December 31, 1990 to June 30, 1991 and were actually higher than they should have been as per the bank’s calculations. Thus, the issue of interest is moot.
As of July 31, 1991, the past due and owing principal was $1,499,999.90 under the term note, and $1,758,287.64 under the revolving credit note for a total of $3,258,287.54. This is the amount Bank One seeks to recover.
. Bank One filed its motion for summary judgment based on the affidavit of Cheryl D. Edge, the keeper of records of Bonnet Resources Corporation, an agent for Bank One, who had no personal knowledge of the negotiation of the Credit Agreement.
. See Credit Agreement, section 21.
. Section 6.7 reads:
Place and Mode of Payments. All payments due hereunder shall be made by the Companies to the Administrative Agent at its Head Office, in immediately available funds by 12:00 noon Eastern time.... Upon receipt by the Administrative Agent of any such payment, the Administrative Agent shall remit to each Bank on the same day, its pro rata share of such payment. The Companies' payment of any amount due hereunder to the Administrative Agent shall conclusively evidence their payment of such amounts due hereunder.
. The Companies also sought discovery relating to the amount allegedly borrowed from Bank One, the calculation of amounts allegedly due and owing to Bank One, and if payments were due, to whom such payments should be made. However, appellants have offered no evidence to contradict the appellees assertions as to each of these issues, accordingly the prima facie case of Bank One stands uncontested.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. 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.
Clennie H. SAYLOR, Petitioner-Appellant, v. Roger T. OVERBERG, Supt., Respondent-Appellee.
No. 79-3135.
United States Court of Appeals, Sixth Circuit.
Sept. 14, 1979.
Clennie H. Saylor, Marillyn Fagen D’Amelio, Cleveland, Ohio [Court-Appointed CJA], for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Randall G. Burnworth, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before LIVELY, ENGEL and KEITH, Circuit Judges.
ORDER
This appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. After examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.
Petitioner appeals from the District Court’s dismissal of his application for a writ of habeas corpus. 28 U.S.C. § 2254. This was petitioner’s second attempt at ha-beas corpus, his first application having been denied by the District Court, with affirmance by this Court and certiorari denied by the Supreme Court of the United States.
In the present proceedings, the District Court held that petitioner had not exhausted his state remedies with respect to his claim that he was denied effective assistance of counsel in the state proceedings. This particular claim may be raised under Ohio’s Post-Conviction Act, Ohio Rev. Code § 2953.21, et seq. State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976); Burrows v. Engle, 545 F.2d 552 (6th Cir. 1976). This Court’s subsequent decision in Keener v. Ridenour, 594 F.2d 581 (6th Cir. 1979), does not require a contrary conclusion under the facts of this case.
The District Court held that the other two claims in his application for habeas corpus have been included, in somewhat different form, in petitioner’s previous ha-beas corpus action, and declined to consider them. Rule 9, Rules Governing Section 2254 cases. We find no abuse of discretion in this action of the District Court.
One of the previously considered grounds was the claim that there was insufficient evidence to support petitioner’s conviction for perjury. The District Court in the earlier habeas corpus action applied the test of “totally devoid of evidentiary support,” Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), in finding petitioner had not made out a case of due process violation. Subsequently, the Supreme Court and this Court have announced a less stringent test in considering habeas corpus claims based on insufficiency of the evidence. Jackson v. Virginia, - U.S. -, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Speigner v. Jago, 603 F.2d 1208 (6th Cir. 1979).
Applying the less stringent standard, we find that the evidence was such that a rational factfinder could have found petitioner guilty beyond a reasonable doubt of perjury under Ohio law. The petitioner is not entitled to habeas relief on the basis of an alleged insufficiency of the evidence at his state trial.
The panel concludes that the questions on which decision of this case depends are so unsubstantial as not to require further argument. The judgment of the District Court is affirmed. Rule 9(d)3, Rules of the Sixth Circuit.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer: |
sc_caseorigin | 048 | 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.
MITCHUM, dba BOOK MART v. FOSTER et al.
No. 70-27.
Argued December 13, 1971
Decided June 19, 1972
Stewart, J., delivered the opinion of the Court, in which all members joined except Powell and Rehnquist, JJ., who took no part in the consideration or decision of the case. Burger, C. J., filed a concurring opinion, in which White and BlackmüN, JJ., joined, post, p. 243.
Robert Eugene Smith. argued the cause for appellant. With him on the brief was Paul Skimek, Jr.
Raymond L. .Marky, Assistant Attorney General of •Florida, argued the cause for appellees. With him on the brief were Robert L. Shevin, Attorney General, and George R. Georgieff, Assistant, Attorney General.
George F. Kugler, Jr,, Attorney General of New Jersey, and Michael R. Peñe and John DeCicco, Deputy Attorneys General, filed a brief for the State of New Jersey as amicus curiae.
Mr. Justice Stewart
delivered the opinion of the Court.
The federal anti-injunction statute provides that a federal .court “may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of. its jurisdiction,, or to protect or effectuate its judgments.” An Act of Congress, 42 U. S. C. § 1983, expressly authorizes a “suit in equity” to redress “the deprivation,” under color of state law, “of any rights, privileges, or immunities secured by the Constitution . ...” The question before us is whether this “Act of Congress” comes within the “expressly authorized” exception of the anti-injunction statute so as to permit a federal court in a § 1983 suit to grant an injunction to stay a proceeding pending in. a state court. This question, which has divided the federal courts, has lurked in the background of many of our recent cases, but we have not until today explicitly decided it.
I
The prosecuting attorney of Bay County, Florida, brought a proceeding in a Florida court to close down the appellant's’ bookstore as a public nuisance under the claimed authority of Florida law. The state court entered a preliminary order prohibiting continued operation of the bookstore. After further inconclusive proceedings in the state courts, the appellant filed a complaint in the United States District Court for the Northern District of Florida, alleging that „ the actions of the state judicial and law enforcement officials were depriving him of rights protected by the First and Fourteenth Amendments. Relying upon 42 U. S. C. .§ 1983, he asked for injunctive and declaratory relief against the state court proceedings, on the. ground that Florida laws were being unconstitutionally applied by the state court so as to cause him great and irreparable harm; A single federal district judge issued temporary restraining orders, and ,a three-judge court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. After a hearing, .the three-judge court dissolved the temporary restraining orders and refused to. enjoin the state court proceeding, holding that the “injunctive relief sought here as to the proceedings pending in the Florida courts does not come, under any of the exceptions set forth in Section 2283. It is not expressly authorized by Act of Congress,, it is not necessary in the aid of this court’s jurisdiction, and it is not sought in order to protect or effectuate any judgment of this court.” 315 F. Supp. 1387, 1389. An appeal was brought directly here under 28 U. S. C. § 1253, and we noted probable jurisdiction. 402 U. S. 941.
II
In denying injunctive relief, the District Court relied on this Court’s decision in Atlantic Coast, Line R. Co. v. Brotherhood, of Locomotive Engineers, 398 U. S. 281. The Atlantic Coast Line case did not deal with the “expressly authorized” exception of the anti-injunction statute, but the Court’s opinion in that ease does bring into sharp focus the critical importance of the question now before us. For in that case we expressly rejected the view that the anti-injunction statute merely states a flexible doctrine of comity, and made clear that the statute imposes an absolute ban upon the issuance of a federal injunction against a pending state court proceeding, in the absence of one of the recognized exceptions:
“On its face the present Act is an absolute, prohibition against enjoining state court proceedings, unless the injunction falls within one of three specifically defined exceptions. The respondents here have intimated that the Act only establishes a ‘principle of comity,’ not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. . . . [We] hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be. upheld. . . .” 398 U. S., at 286-287.
It follows, in the present context, that'if 42 U. S. C. § 1983 is not within the. “expressly authorized” exception of the anti-injunction statute, then a federal equity court is wholly without power to grant any relief in a § 1983 suit seeking to stay a state court proceeding. In short, if a § 1983 action is not an “expressly authorized” statutory exception, the anti-injunction law absolutely prohibits in such an action all federal equitable intervention in a pending state court proceeding, whether civil or criminal, and regardless of how extraordinary the particular circumstances may be.
Last Term, in Younger v. Harris, 401 U. S. 37, and its companion cases, the Court dealt at length with the subject of federal judicial intervention in pending state criminal prosecutions. In Younger a three-judge federal district court in a § 1983 action had enjoined a criminal prosecution pending in. a California court. In. asking us to reverse that judgment, the appellant argued that the injunction .was in violation of the federal anti-injunction statute. 401 U. S., at 40. But the Court carefully eschewed any reliance on the statute in reversing the judgment, basing its decision. instead upon what the Court called “Our Federalism” — upon “the national policy forbidding fedéral courts to stay or enjoin pending state court proceedings except under special circumstances.” 401 U. S., at 41, 44.
In Younger, this Court emphatically reaffirmed “the fundamental policy against federal .interference with, state criminal prosecutions.” 401 U. S., at 46. It made clear that even “the' possible' unconstitutionality of a statute ‘on its face’ does not in itself justify an injunction against good-faith attempts to enforce it.” 401 U. S., at 54. At the same time, however, the Court clearly left room for federal injunctive intervention in a pending state court prosecution in certain exceptional circumstances — where irreparable injury is “both great and immediate,” 401 U. S., at 46, where the state law is “ ‘flagrantly and patently violative of express constitutional prohibitions,’ ” 401 U. S., at 53, or where there is a showing of “bad faith, harassment, or .'. . other unusual circumstances that would call for equitable relief.” 401 U. S., at, 54. In the companion case of Perez v. Ledesma, 401 U. S. 82, the Court said that “[o]nly in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate.” 401 U. S., at 85. See also Dyson v. Stein, 401 U. S. 200, 203.
While the Court in Younger and its companion cases expressly disavowed deciding the question now before us — whether § 1983 comes within the “expressly authorized” exception of the anti-injunction statute, 401 U. S., at 54 — it is evident that our decisions in those cases cannot be disregarded in deciding this question. In the first place, if § 1983 is not within the statutory exception,' then the anti-injunction statute would have absolutely barred the injunction issued in Younger, as the appellant in that case argued, and there would have been no occasion whatever for the Court to decide that, case upon the “policy” ground of “Our Federalism.” Secondly, if § 1983 is not within the “expressly authorized” exception of the anti-injunction statute, then we must overrule Younger and its companion cases insofar as they recognized the permissibility of injunctive relief against pending criminal prosecutions in certain limited and exceptional circumstances. For, under the doctrine of Atlantic Coast Line, the anti-injunction statute would, in a § 1983 case, then be an “absolute prohibition” against federal equity intervention in a pending state criminal or civil proceeding — under any circumstances whatever.
The Atlantic Coast Line and Younger cases thus serve to delineate both the importance and the finality of the question now before us. And it is in the shadow of those cases that the question must be decided.
III
The anti-injunction statute goes back almost to the beginnings of our history as a Nation. In 1793, Congress enacted a law providing that no “writ of injunction be granted [by any federal court] to stay proceedings in any 'court of a state. . . Act of March' 2, 1793; 1 Stat. 335. The precise origins of • the legislation are shrouded in obscurity, .but the consistent understanding has been that its basic purpose is to prevent “needless friction between state and federal courts.” Oklahoma Packing Co. v. Gas Co., 309 U. S. 4, 9. The law remained unchanged until 1874, when it was amended to permit a federal court to stay state court proceedings that interfered with the administration of a federal bankruptcy proceeding. The present wording of the legislation was adopted with the enactment of Title 28 of the United States Code in 1948.
Despite the seemingly uncompromising language of the anti-injunction statute prior to 1948, the Court soon recognized that exceptions must be made to its blanket prohibition if the import and purpose of other Acts of Congress were to be given their intended scope: . So it was that, in addition to the bankruptcy law exception that Congress explicitly, recognized in 1874, the Court through the years found that federal courts were empowered. to enjoin state court proceedings, despite the anti-injunction.statute,.in carrying.out-.the will.of Congress under at least six. other .federal'-laws.: -These" covered a broad speetrum of congressional-' action: ,(l) legislation providing for removal .of litigation from state to federal courts, (2) legislation limiting the liability of shipowners, (3) legislation providing for federal interpleader actions, (4) legislation conferring federal jurisdiction over farm mortgages, (5) legislation governing federal habeas corpus proceedings, and (6) legislation providing for control of prices.
In addition to the exceptions to the anti-injunction statute found to be embodied in these various Acts of Congress- the Court recognized other “implied” exceptions to thé blanket prohibition of' the anti-injunction statute. One was an “in rem” exception, allowing a federal court to enjoin a state court proceeding in order to protect its jurisdiction of a res over which it had first acquired jurisdiction. Another was a “relitiga-tioh” exception, permitting a federal court to enjoin relitigation in a state court of issues already decided in federal litigation. Still a third exception, more recently developed, permits a federal injunction of state court proceedings when the plaintiff in the federal court is the United States itself, or a federal agency asserting “superior federal interests.”
In Toucey v. New York Life Ins. Co., 314 U. S. 118, the Court in 1941 issued an opinion casting considerable doubt upon the approach to the anti-injunction statute reflected in its previous decisions. The Court’s opinion expressly disavowed the “relitigation” exception to the statute, • and emphasized generally the importance of recognizing the statute’s basic directive “of ‘hands off’ by the federal courts in.the use of the injunction..to stay litigation in a state court.” 314 U. S., at 132. The congressional response to Toucey was the enactment in 1948 of the anti-injunction statute in its present form in 28 U. S. C. § 2283, which, as the Reviser’s Note makes evident, served not only to overrule the specific holding of Toucey, but to restore “the basic law as generally understood and interpreted prior to the Toucey decision.”
. We proceed, then, upon the understanding that in determining whether § 1983 comes within the “expressly authorized” exception of the anti-injunction statute, the criteria to be applied are those reflected in the Court’s decisions prior to Toucey, A review of those decisions makes reasonably clear what the relevant criteria are. In the first place, it is evident that, in order to qualify under the “expressly authorized” exception of the anti-injunction statute, a federal law need not contain an express reference to that statute. As the Court has said, “no prescribed formula is required; an authorization need- not expressly refer to § 2283.” Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 516. Indeed, none of the previously recognized' statutory exceptions contains any such reférence. Secondly, a federal law need not expressly authorize an injunction of a state .court proceeding in order to qualify as an exception. Three of the six previously recognized statutory exceptions contain no such authorization. Thirdly, it is clear that, in order to qualify as an “expressly authorized” exception to the anti-injunction statute, an Act of Congress must have created a specific and uniquely federal right or remedy, enforceable in a federal court of equity, that could be frustrated if the federal court were not empowered to enjoin a state court proceeding." This is not to say that in order to come within the exception an Act of Congress must, on its face and in every one of its provisions, be totally incompatible with the prohibition of the anti-injunction statute. The test, rather, is whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only, by the stay of a state court proceeding. See Toucey, supra, at 132-134; Kline v. Burke Construction Co., 260 U. S. 226; Providence & N. Y. S. S. Co. V. Hill Mfg. Co., 109 U. S. 578, 599; Treinies v. Sunshine Mining Co., 308 U. S. 66, 78; Kalb v. Feuerstein, 308 U. S. 433; Bowles v. Willingham, 321 U. S. 503.
With these criteria in view, we turn to consideration of 42 U. S. C. § 1983.
W
Section 1983 was originally § 1 of the Civil Rights Act of 1871. 17 Stat. 13. It was .“modeled" on § 2 of the Civil Rights Act of 186.6, Í4 Stat. 27; and was enacted for the express purpose of “enforcing] the Provisions of the Fourteenth Amendment.” 17 Stat. 13. The predecessor of § 1983 was thus an important part of the basic alteration in our federal system wrought in the Reconstruction era through federal legislation and constitutional amendment. As a résult of the new . structure of law that emerged in the post-Civil War era — and especially of the Fourteenth. Amendment, which was its centerpiece — ‘the role of the Federal Government' as a guarantor of basic federal rights against state power was clearly established. Monroe v. Pape, 365 U. S. 167; McNeese v. Board of Education, 373 U. S. 668; Shelley v. Kraemer, 334 U. S. 1; Zwickler v. Koota, 389 U. S. 241, 245-249; H. Flack, The Adoption of the Fourteenth Amendment (1908); J. tenBroek, The Anti-Slavery Origins of the Fourteenth Amendment (1951). Section 1983 opened the federal courts to private citizens, offering a uniquely federal remedy against incursions under the claimed authority of state law upon rights secured by the Constitution and Jaws of the .Nation.
It is clear from the legislative debates surrounding passage of § 1983’s predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment “against State action,... whether that action be executive, legislative, or judicial.” Ex parte Virginia, 100 U. S. 339, 346 (emphasis supplied). Proponents of the legislation noted that state courts were being used to harass and injure individuals, either because the state courts were powerless to stop deprivations or were in league with those who were bent upon abrogation of federally protected rights.
As Representative Lowe stated, the “records of * the [state] tribunals are searched in vain for evidence of effective redress [of federally secured rights] .... What less than this [the Civil Rights Act of 1871] will afford an adequate remedy? The Federal Government cannot serve a writ of mandamus 'upon State Executives or upon State courts- to compel them to protect the rights, privileges and immunities of citizens .... The case has arisen . . . when the Federal Government must, resort to its own agencies to carry its own authority into execution. Hence this bill throws open the doors of the United States courts to'those whose rights under the Constitution are denied or impaired.” Cong. Globe, 42d Cong., 1st Sess., 374^376 (1871), This view was echoed by Senator Osborn: “If the State courts had proven themselves competent to suppress the local disorders, or to maintain law and order, we should not have been called upon to legislate . . , . We are driven by existing facts to provide for the several states in the South what they have been unable to fully provide for themselves; i. e., the full and complete administration of justice in the courts. And the courts with reference to which we legislate must be the United States courts.” Id., at 653. And Representative Perry concluded: “Sheriffs, having eyes to see, see not; judges, having ears to hear, hear not; witnesses conceal the' truth or falsify it; grand and petit juries act as if they might be accomplices .... [A] 11 the apparatus and machinery of civil government, all the processes of justice, skulk away as if government and justice were crimes and feared detection. Among the most dangerous things an injured party can do is to appeal .to- justice.” Id., at App. 78.
' Those who opposed the Act of 1871 clearly recognized that the proponents, were extending federal power in an attempt to- remedy the state courts’ failure to secure federal rights. The debate was not about whether the predecessor of § 1983 extended to actions of state courts, but whether this innovation was necessary or desirable.
This legislative history makes evident that Congress clearly conceived that it was altering the relationship between the States and the Nation with respect to the protection of federally created rights; it was concerned that state instrumentalities could not protect those rights; it realized that state officers might, in fact, be antipathetic to the vindication of those rights; and it believed that these failings extended to the state courts.-
V
Section 1983 was thus a product of a vast transformation from the concepts of federalism. that had prevailed in the late 18th century when the anti-injunction. statute was enacted. The very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, “whether that action be executive, legislative, or judicial.” Ex parte Virginia, 100 U. S., at 346. In carrying out that purpose, Congress plainly authorized the federal courts to issue injunctions in § 1983 actions, by expressly authorizing a “suit in equity” as one of the means of redress. And this Court long ago recognized that, federal injunctive relief against a state court proceeding can in some circumstances, be essential to prevent great, immediate, and irreparable loss of a person’s constitutional rights. Ex parte Young, 209 U. S. 123;. cf. Truax v. Raich, 239 U. S. 33; Dombrowski v. Pfister, 380 U. S. 479. For these reasons we conclude that, under the criteria established in our previous decisions construing the anti-injunction statute, § 1983 is an Act of Congress that falls within the “expressly authorized” exception of that law.
In so concluding, we do not question or qualify in any way the principles of equity, comity, and federalism that must restrain a federal court when asked to enjoin a state court proceeding. These principles, in the context of state criminal prosecutions, were canvassed at length last Term in Younger v. Harris, 401 U. S. 37, and its companion cases. They are principles that have been emphasized by this Court many times in the past. Fenner v. Boykin, 271 U. S. 240; Spielman Motor Sales Co. v. Dodge, 295 U. S. .89; Beal v. Missouri Pac. R. Co., 312 U. S. 45; Watson v. Buck, 313 U. S. 387; Williams v. Miller, 317 U. S. 599; Douglas v. City of Jeannette, 319 U. S. 157; Stefanelli v. Minard, 342 U. S. 117; Cameron v. Johnson, 390 U. S. 611. Today we decide only that the District Court in this case was in error in holding that, because .of the anti-injunction statute, it was absolutely without power in this' § 1983 action to enjoin»a .proceeding pending in a state court under any circumstances whatsoever.
■ The judgment is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered.
Mr. Justice Powell and Mr. Justice Rehnquist took no part in the consideration or decision of this case.
28 U. S. C. §2283.
The statute provides in full: “Every person who, under color of any statute, ordinance, regulation, custom; or usage,, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Compare Cooper v. Hutchinson, 184 F. 2d 119 (CA3) (§ 1983 is an “expressly authorized” exception), with Baines v. City of Danville, 337 F. 2d 579 (CA4) (§ 1983 is not an “expressly authorized” exception).
See Dombrowski v. Pfister, 380 U. S. 479, 484 n. 2; Cameron v. Johnson, 390 U. S. 611, 613 n, 3; Younger v. Harris, 401 U. S. 37, 54. See also Lynch v. Household Finance Corp., 405 U. S. 538, 556; Roudebush v. Hartke, 405 U. S. 15.
In Younger, supra, Mr. Justice Douglas was the only member of the Court who took a position on the question now before us. He expressed the view that § 1983 is included in the “expressly authorized exception to § 2283 .” 401 U. S., at 62. Cf. id., at 54 .(Stewart, J., joined by Harlan, J., concurring); Perez v. Ledesma, 401 U. S. 82, 120 n. 14 (separate opinion of BreNNAN, J., joined by White and Marshall, JJ.).
Federal jurisdiction was based upon 28 U. S. C. § 1343 (3). The statute states in relevant part:
“The district courts shall have original jurisdiction of any civil action authorized by law to 'be commenced by' any person:
“(3) To- redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for eqúal rights of citizens or of all persons within the jurisdiction of-the United States . . .
The statute provides: "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or' denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.”
At issue were the other two exceptions of the anti-injunction statute: “where necessa^ in aid of its jurisdiction, or to protect or effectuate its judgments.” Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U. S. 281, 288.
See First National Bank & Trust Co. v. Village of Skokie, 173 F. 2d 1; Baines, 337 F. 2d, at 593. See also Taylor & Willis, The Power of Federal Courts to Enjoin Proceedings in State Courts, 42 Yale L. J. 1169, 1194 (1933).
Samuels v. Mackell, 401 U. S. 66; Boyle v. Landry, 401 U. S: 77; Perez v. Ledesma, 401 U. S. 82; Dyson v. Stein, 401 U. S. 200; Byrne v. Karalexis, 401 U. S. 216.
“The history of this provision in the Judiciary Act of 1793 is not.fully known. We know that on December 31/ 1790, Attorney General Edmund Randolph reported to the House of Representatives on desirable changes in. the Judioiary Act of 1789. Am. State Papers, Mise., vol. 1, No. 17, pp. 21-36. The most serious question, raised by Randolph concerned the arduousness of the -circuit duties imposed on the Supreme Court justices. But the Report also suggested a number of amendments dealing with procedural matters. A section of the proposed bill submitted by him provided that 'no injunction in equity shall be granted by a district court to a judgment at law of a State court.’ Id., p. 26. Randolph explained that this clause 'will debar the district court from interfering with the judgments at. law in the State courts; for if the plaintiff and defendant rely upon the State courts, as far as the judgment, they ought to continue there as they have begun. It is enough to' split the same suit into one1 at law, and another in equity, without adding a further separation, by throwing the common law side of the ques--' tion into the State courts, and the equity side into the federal courts.’ Id., p. 34. The Report was considered by the House sitting as a Committee of the Whole, and then was referred to successive special, committees for further consideration. No action was taken until after Chief Justice Jay and his associates wrote the President that their circuit-riding duties were too burdensome. American State Papers, Misc., vol. 1, No. 32, p. 51. In response to this complaint, which was transmitted to Congress, the Act of March 2, 1793, was passed, containing in § 5, inter alia, the prohibition against staying state court proceedings.
“Charles Warren in his article Federal and State Court Interference, 43 Harv. L. Rev. 345, 347, suggests that this provision was the direct consequence of Randolph’s report. This seéfns doubtful, .in view of the very narrow purpose of Randolph’s proposal, namely, that federal courts of equity should not interfere with the enforcrnent- of judgments at law rendered in the state courts. See Taylor and Willis, The Power of Federal Courts to Enjoin Proceedings in State Courts, 42 Yale L. J. 1169, 1171, n. 14.
“There is no record of any debates over the statute. See 3 Annals of Congress (1791-93). It has been suggested that'the provision reflected the then strong feeling against the unwarranted intrusion ' of federal courts upon state sovereignty. Chisholm v. Georgia, 2 Dali. 419, was decided on February 18, 1793, less .than two weeks before the provision was enacted into law. The significance of this-proximity is doubtful. Compare Warren Federal and State Court Interference, 43 Harv. L. Rev. 345, 347-348, with Gunter v. Atlantic Coast Line R. Co., 200.U. S. 273, 291-292. Much more probable is the suggestion that the provision' reflected the prevailing prejudices against equity jurisdiction. The Journal of William Monday (1927 ed.), chronicling the piroceedings of the Senate while he was one of its members (1789-1791), contains abundant evidence of a widespread hostility to chancery practice. See especially, pp. 92-94, 101-06 (debate on/the bill that became Judiciary Act of 1789). Moreover, Senator Ellsworth (soon, to become Chief Justice of the United Statesjy the principal draftsman of both the 1789 and 1793 Judiciary-Acts, often indicated a dislike for equity jurisdiction. See Brown, Life of Oliver Ellsworth (1905 ed.) 194; Journal of William Maclay (1927 ed.) 103-04; Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 96-100.” Toucey v. New York Life Ins. Co., 314 U. S. 118, 130-132.
See also Note, 38 U. Chi. L. Rev. 612 (1971); 1A J. Moore, Federal Practice 2302 (1965); H. Hart & H. Wechsler, The Federal Courts and the Federal System 1075-1078 (1953); Durfee & Sloss, Federal Injunction Against Proceedings in State Courts: The Life History of a Statute, 30 Mich. L. Rev. 1145 (1932).
As so amended, the- statute provided that state court proceedings could be enjoined “where such injunction may be authorized by any law relating to proceedings in bankruptcy.” Rev. Stat. § 720 (1874).
See French v. Hay, 22 Wall. 250; Kline v. Burke Construction Co., 260 U. S.. 226. The federal' removal provisions, both .civil and criminal, 28 U. S. .C. §§ 1441-1450, provide that once a copy of the removal petition is filed with the clerk of the state court, the “State court^shall proceed no further unless and until the case, is remanded.” 28 TJ. S. C." § 1446 (e).
See Providence & N. Y. S. S. Co. v. HiU Mfg. Co., 109 U. S. 578. The Act of 1851, 9 Stat. 635,.as amended, provides that once a shipowner has deposited with the court an amount equal to the value of his interest in the ship, “all claims and* proceedings, against th.e owner with respect to the matter in question shall cease.” 46 U. S: C. § 185.
See Treinies v. Sunshine Mining Co., 308 U. S. 66. The inter-pleader Act of 1926, 44 Stat. 416, as currently written provides that in “any civil action of interpleader ... a district court may . . . enter its order restraining [all claimants] . . . from instituting or prosecuting any proceeding in ány. State or United States court affecting, the property, instrument or obligation involved in the interpleader action.” 28 U. S. C. §2361.
See Kalb v. Feuerstein, 308 U. S. 433. The Frazier-Lemke Farm- ■ Mortgage Act, as amended in 1935, 49 Stat, 944, provides that in situations to which it is applicable a federal court shall “stay all judicial or official proceedings in any court.” 11 U. S. C. § 203 (s) (2) (1940 ed.).
See Ex parte Royall, 117 U. S. 241, 248-249, The Federal Habeas Corpus Act provides that a federal court before which a habeas corpus proceeding is pending may “stay any proceeding against the person detained in any State Court... for any matter involved in the habeas corpus, proceeding.” 28 U. S. C. §2251.
Section 205 (a) of the Emergency Price Control Act of 1942, 56 Stat. 33, provided that the Price Administrator could request a federal district court to enjoin acts that violated or threatened to violate the Act. In Porter v. Dicken, 328 U. S. 252, we held that this authority was broad enough to justify an injunction to restrain state court procéedings. Id., at 255. The Emergency Price Control Act was thus considered a congressionally authorized exception to the anti-injunction statute. Ibid.; see also Bowles v. Willingham, 321 U. S. 503. Section 205 (a) expired in 1947. Act of July 25. 1946, 60 Stat. 664.
See, e. g., Toucey v. New York Life Ins. Co., 314 U. S., at 135— 136; Freeman v. Howe, 24 How. 450; Kline v. Burke Construction Co., 260 U. S. 226.
See, e. g., Toucey, supra, at 137-141; Dial v. Reynolds, 96 U. S. 340; Supreme Tribe of Ben-Hur v. Cauble, 255 U. S. 356. See generally 1A J. Moore, Federal Practice 2302-2311 (1965).
Letter Minerals Inc. v. United States, 352 U. S. 220; NLRB v. Nash-Finch Co., 404 U. S. 138.
The Reviser’s Note states in part: “The exceptions specifically include the words 'to protect or effectuate' its judgments,’ for lack of which the Supreme Court held that the Federal courts are without pow;er to enjoin relitigation of casés and controversies fully adjudicated by such courts. (See Toucey v. New York Life Insurance Co., . . . 314 U. S. 118 . . . .) "A vigorous dissenting opinion [314 U. S, 141] notes that at the time of the 1911 revision of the Judicial Code, the power of the courts ... of the United States to protect-their judgments was unquestioned and that the revisers of that code noted no change and Congress intended no change.” H. R. Rep. No. 308, 80th Cong., 1st Sess., A181-182 (1947).
Ibid.
Cf. Amalgamated Clothing Workers v. Richman Bros. Co., 348 U. S. 511, 521 (dissenting opinion).
See nn. 12, 13, 14, 15, 16, and 17, supra.
See nn. 12, 13, and 17, supra. The federal courts have found that other Acts- of Congress that do not refer to § 2283 or to injunctions against state court proceedings nonetheless come within ' the “expressly authorized” language of the anti-injunction statute. See; e. g., Walling v. Black Diamond Coal Mining Co., 59 F. Supp. 348, 351 (WD Ky.) (the Fair Labor Standards Act); Okin v. SEC, 161 F. 2d 978, 980 (CA2) (the Public Utility Holding Company Act) ; Dilworth v. Riner, 343 F. 2d 226, 230 (CA5) (the 1964 Civil Rights Act); Studebaker Corp. v. Gittlin, 360 F. 2d 692 (CA2) (the Securities and Exchange Act).
Cf. Baines v. City of Danville, 337 F. 2d 579 (CA4).
See remarks of Representative Shellabarger, chairman of the House Select Committee which drafted the Civil Rights Act of 1871, Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871), and Lynch v. Household Finance Corp., 405 U. S. 538, 545 n. 9.
In addition to proposing the Thirteenth, Fourteenth, and Fifteenth Amendments, Congress; from 1866 to 1875 enacted the following civil rights legislation: Act of April 9, 1866, 14 Stat. 27; Act of May 31, 1870, 16 Stat. 140; Act of April 20, 1871, 17 Stat. 13; and Act of March 1, 1875, 18 Stat. 335. In 1875, Congress also passed the general federal-question provision, giving federal courts the power tq hear suits arising under Art. Ill, §2, of the Constitution. Act. of March 3, 1875, 18 Stat. 470. This is the predecessor of 28 U. S. C. § 1331.
See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich. L. Rev. 1323 (1952); Note, 75 Yale L. J. 1007 (1966); F. Frankfurter & J, Landis, The Business of the Supreme. Court 65 (1928). As one commentator has put it: "That statutory plan [of the Fourteenth Amendment and Acts of Congress to enforce it] did supply the means of vindicating those rights [of person and property] through the instrumentalities of the federal government... . . It did constitute the federal government the protector of the civil rights . . . .” TenBroek, at 185. See. also United States v. Price, 383 U. S. 787, 801 n. 9; K. Stampp, The Era of Reconstruction (1965).
As Representative Shellabarger stated, the Civil Rights Act of 1871 “not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights to which they are entitled under the Constitution by reason and virtue of their national citizenship.” Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871). And as Representative Hoar stated: “The principal danger that menaces us to-day is from the effort within the States to deprive considerable numbers of persons of the civil and equal rights which the General Government is endeavoring to secure to them.” Cong. Globe, 42d Cong., 1st Sess. 335.
Although, as originally drafted in 1871, § 1983’s predecessor protected rights, privileges, or immunities secured by the Constitutionthe provision included by the Congress in the Revised Statutes o1874 was enlarged to provide protection for rights, privileges, or immunities secured by federal law as well. Rev. Stat. § 1979.
Representative Cobum.stated: “The United States courts are further above mere'local influence than the county courts; -their judges can act with more independence, cannot be put under terror, as local judges can; their sympathies are not so nearly identified with those of the vicinage; the jurors are taken from the State, and not the neighborhood; they will be able to rise above prejudices or bad .passions or terror more easily. . . .” Cong. Globe, 42d Cong.. 1st Sess., 460 (1871).
See also id., at App. 85 (Rep. Bingham); 321 (Rep. Stoughton); 333-334 (Rep. Hoar); 389 (Rep. Elliot); 394 (Rep. Rainey); 429 (Rep. Beatty); App. 68-69 (Rep. Shellabarger); App. 78 (Rep. Perry); 345 (Sen. Sherman); 505 (Sen. Pratt); 577 (Sen. Carpenter) ; ,651 (Sen. Sumner); 653 (Sen. Osborn); App. 255 (Sen. Wilson). Cf. id., at 697 (Sen. Edmunds).
See, e. g., Cong. Globe, 42d Cong., 1st Sess., 361 (Rep. Swann); 385 (Rep. Lewis); 416 (Rep. Biggs); 429 (Rep. McHenry); App. 179 (Rep. Voorhees); 599-600 (Sen. Saulsbury); App. 216 (Sen. Thurman).
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer: |
songer_appfiduc | 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 "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.
JONES v. COMMISSIONER OF INTERNAL REVENUE.
No. 9863.
Circuit Court of Appeals, Eighth Circuit.
July 5, 1934.
Frank T. Gladney, of St. Louis, Mo. (Jones, Hocker, Sullivan, Gladney & Reeder, of St. Louis, Mo., on tbe brief), for petitioner.
John MaeC. Hudson, Sp. Asst, to Atty. Gen. (Frank J. Wideman, Asst. Atlv. Gen., and Sewall Key, Sp. Asst, to Atty. Gen., on the brief), for respondent.
Before SANBORN and WOODRQUGH, Circuit Judges, and DEWEY, District Judge.
Rehearing denied Oct. 15, 1934.
SANBORN, Circuit Judge.
This is a petition to review an order of the United States Board of Tax Appeals redetermining a deficiency in income taxes of the petitioner for the year 1926.
The sole question involved is the amount of taxable income received by the taxpayer from the sale in 1926 of a piece of improved real estate in the city of St. Louis, Mo. The controlling facts, which are undisputed, are briefly as follows:
The petitioner, as trasteo under a declaration of trust, on September 10, 1020, purchased the real estate in question for $76,000', and held it until 1936, when it was sold for $100,000. For the years 1920, 1921, and 1922, no deduction from the gross income of the petitioner for depreciation was claimed or allowed. For the years 1923, .1021, and 1925 the petitioner claimed deductions from gross income because of depreciation, but these claims were disallowed by the Commissioner. At the time the property was sold, the total accumulated allowable depreciation was $13,22.7.50'. In determining the taxable gain from the sale, the peiitioner took the difference between the pnrcha.se price and the sale price of the property; while the Commissioner of Interna) Revenue deducted the amount of depreciation from the purchase priee, which increased the taxable gain by the amount of the depreciation, and this xasulted in the deficiency complained of. The petitioner appealed to the Board, which affirmed the Commissioner.
The question is whether the Commissioner had the right, in determining the taxable gain resulting from the sale, to deduct the allowable but unallowed depreciation of $13,-227.50 from the purchase price of the property.
The Revenue Act of .1926 provides [section 204 (a), c. 27, 44 Stat. 9, 14, 26 USCA § 935 (a)] that “the basis for determining the gain or loss from the sale 0 c of property acquired after February 28, .1013, shall be the cost of such property”; and [section 202 (b), (2), c. 27, 44 Stat. 13, 26 USCA § 933 (b) (21)] that “the basis shall be diminished by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property under this title or prior income tax laws. * * t
Article 1561, Treasury Regulations 69', provides, among- other things: “ * * In computing the amount of gain or loss, however, the cost or other basis of the property must be increased by the cost of capita! improvements and betterments made to the property since the basic date, and by carrying charges, such as taxes on unproductive property. fc “ * The cost or other basis of the property must then be decreased by the amount of the deductions for exhaustion, wear and tear, obsolescence, amortization, and depletion which have since the acquisition of the property been allowable in respect of such property, whether or not such deductions were claimed by the taxpayer or formally allowed. M * * ”
That the method pursued by the Commissioner in determining the taxable gain from the sale of the property here in question is justified by the law and the regulations appears long since to have been settled. Appeal of Even Realty Co., 1 B. T. A. 355; Hardwick Realty Co. v. Commissioner, 7 B. T. A. 1108, affirmed (C. C. A. 2) 29 F.(2d) 498, certiorari denied 279 U. S. 876, 49 S. Ct. 349, 73 L. Ed. 1010; Kalb v. Commissioner, 15 B. T. A. 865; Franklin Lumber & Power Co. v. Commissioner, 18 B. T. A. 1207; United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054; Hardwick Realty Co. v. Commissioner (C. C. A. 2) 29 F.(2d) 498; Ricek v. Heiner (C. C. A. 3) 25 F.(2d) 453, certiorari denied 277 U. S. 608, 48 S. Ct. 603, 72 L. Ed. 1013; Fidelity-Philadelphia Trust Co. v. Commissioner (C. C. A. 3) 47 F.(2d) 36; Koepfli v. Commissioner (C. C. A. 9) 41 F.(2d) 606.
The petitioner, however, argues that to increase the taxable gain from the sale of this property by reducing the original cost to the extent of depreciation which was allowable but not allowed, is in effect adding to income that which is not income, but a loss, and results in the imposition of a tax upon something which is not taxable under the Sixteenth Amendment to the Constitution.
It is true, as the petitioner says, that the constitutionality of the method used for ascertaining the gain from a sale was not directly involved or specifically passed upon in the case of United States v. Ludey, 274 U. S. 295, 47 S. Ct. 608, 71 L. Ed. 1054, supra. It appears from the opinion in that case that the power of Congress to provide for the deduction of depreciation from original cost was conceded. However, it is not conceivable that the Supreme Court would have approved the method held to be proper in that ease merely because of this concession, if, in fact, in violation of the Constitution, particularly since the contention in that ease was that Congress, at the time of the sale there in question, had not in terms required the deduction of depreciation from the cost price in determining taxable gain. The court said (pages 300, 301 of 274 U. S., 47 S. Ct. 603, 610): “The depreciation charge permitted as a deduction from the gross income in determining the taxable income of a business for any year represents the reduction, during the year, of the capital assets through wear and tear of the plant used. The amount of the allowance for depreciation is the sum which should be set aside for the taxable year, in order that, at the end of the useful life of the plant in the business, the aggregate of the sums set aside will (with the salvage value) suffice to provide an amount equal to the original cost. The theory underlying this allowance for depreciation is that by using up the plant a gradual sale is made of it. The depreciation charged is the measure of the cost of the part which has been sold. When the plant is disposed of after years of use, the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. Any other construction would permit a double deduction for the loss of the same capital assets.” And, on pages 303, 304 of 274 TJ. S., 47 S. Ct. 608, 611: “The aggregate for depreciation and depletion claimed by Ludey in the income tax returns for the years 1913, 1914, 1915, and 1916, and allowed, was only $5',156. He insists that more cannot be deducted from the original cost in making the return for 1917. The contention is unsound. The amount of the gain on the sale is not dependent on the amount claimed in earlier years. If in any year he has failed to claim, or has been denied, the amount to which he was entitled, rectification of the error must be sought through a review of the action of the bureau for that year. He cannot choose the year in whieh he will take a reduction. On the other hand, we cannot accept the government’s contention that the full amount of depreciation and depletion sustained, whether allowable by law as a deduction from gross income in past years or not, must be deducted from cost in ascertaining gain or loss. Congress doubtless intended that the deduction to be made from the original cost should be the aggregate amount which the taxpayer was entitled to deduct in the several years.”
As we read Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 51 S. Ct. 418, 75 L Ed. 1049, it does not detract in any way from what was said in the Ludey Case.
While the petitioner’s contentions are. not without force, it seems plain to us that the Supreme Court of the United States has approved the method provided by law and used by the Commissioner in determining the amount of taxable gain received by the petitioner in the year 1926. This court would not now be justified in holding the method so approved to be violative of the Sixteenth Amendment.
The order of the Board of Tax Appeals is affirmed.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer: |
sc_decisiontype | A | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the type of decision made by the court among the following: Consider "opinion of the court (orally argued)" if the court decided the case by a signed opinion and the case was orally argued. For the 1791-1945 terms, the case need not be orally argued, but a justice must be listed as delivering the opinion of the Court. Consider "per curiam (no oral argument)" if the court decided the case with an opinion but without hearing oral arguments. For the 1791-1945 terms, the Court (or reporter) need not use the term "per curiam" but rather "The Court [said],""By the Court," or "By direction of the Court." Consider "decrees" in the infrequent type of decisions where the justices will typically appoint a special master to take testimony and render a report, the bulk of which generally becomes the Court's decision. This type of decision usually arises under the Court's original jurisdiction and involves state boundary disputes. Consider "equally divided vote" for cases decided by an equally divided vote, for example when a justice fails to participate in a case or when the Court has a vacancy. Consider "per curiam (orally argued)" if no individual justice's name appears as author of the Court's opinion and the case was orally argued. Consider "judgment of the Court (orally argued)" for formally decided cases (decided the case by a signed opinion) where less than a majority of the participating justices agree with the opinion produced by the justice assigned to write the Court's opinion.
HODEL, ACTING SECRETARY OF THE INTERIOR, et al. v. INDIANA et al.
No. 80-231.
Argued February 23, 1981
Decided June 15, 1981
Marshall, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Stewart, White, Blackmun, Powell, and Stevens, JJ., joined. Burger, C. J., filed a concurring statement, ante, p. 305. Rehnquist, J., filed an opinion concurring in the judgment, ante, p. 307.
Peter Buscemi argued the cause for appellants. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Sagalkin, and Michael A. McCord.
G. Daniel Kelley, Jr., argued the cause for appellees. With him on the brief were Theodore L. Sendak, Attorney General of Indiana, Linley E. Pearson, Attorney General-Elect, Jack R. O’Neill, Deputy Attorney General, Harry T. Ice, and Byron L. Myers
Norman L. Dean, Jr., filed a brief for the National Wildlife Federation et al. as amici curiae urging reversal.
Briefs of amici curiae urging affirmance were filed for the State of Alaska et al. by Wilson L. Condon, Attorney General of Alaska, Wayne Minami, Attorney General of Hawaii, and Johnson H. Wong, Deputy Attorney General, David H. Leroy, Attorney General of Idaho, Steven L. Beshear, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, and Gary L. Keyser and Carmack M. Blackmon, Assistant Attorneys General, Paul L. Douglas, Attorney General of Nebraska, and Judy K. Hoffman, Assistant Attorney General, Jeff Bingaman, Attorney General of New Mexico, Jan Eric Cartwright, Attorney General of Oklahoma, Dennis J. Roberts II, Attorney General of Rhode Island, Mark V. Meierhenry, Attorney General of South Dakota, and Robert B. Hansen, Attorney General of Utah; for the State of Arizona et al. by Robert C. Corbin, Attorney General of Arizona, Wayne Minami, Attorney General of Hawaii, and Johnson H. Wong, Deputy Attorney General, Richard H. Bryan, Attorney General of Nevada, Larry D. Struve, Chief Deputy Attorney General, and Harry W. Swainston, Deputy Attorney General, Allen I. Olson, Attorney General of North Dakota, and Ray Walton, Special Assistant Attorney General, James M. Brown, Attorney General of Oregon, Robert B. Hansen, Attorney General of Utah, Slade Gorton, Attorney General of Washington, and John D. Troughton, Attorney General of Wyoming; for the State of Illinois by Tyrone C. Fahner, Attorney General, and Harvey M. Sheldon; for the State of Iowa by Thomas J. Miller, Attorney General, and Elizabeth M. Osenbaugh, Assistant Attorney General; for the State of Maryland by Stephen H. Sachs, Attorney General, and Thomas A. Deming and Michael J. Sibini-cio II, Assistant Attorneys General; for the State of Texas by Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Richard E. Gray III, Executive Assistant Attorney General, and Justin Andrew Kever, Assistant Attorney General; for the Mid-America Legal Foundation by John M. Cannon; for the Mountain States Legal Foundation by Roger J. Marzulla; for the National Coal Association et al. by John A. MacLeod, and Richard McMillan, Jr.; and for the National League of Cities et al. by Ross D. Davis, Robert K. Corbin, Attorney General of Arizona, Robert T. Stephen, Attorney General of Kansas, and Bruce Eugene Miller, Deputy Attorney General, and David L. Wilkinson, Attorney General of Utah.
Justice Marshall
delivered the opinion of the Court.
This appeal, like Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, p. 264, also decided today, involves a broad constitutional challenge to numerous important provisions of the Surface Mining Control and Reclamation Act of 1977, 91 Stat. 445, 30 U. S. C. § 1201 et seg. (1976 ed., Supp. III) (Surface Mining Act or Act). Many of the specific provisions attacked in this case, however, differ from the “steep-slope” provisions that were the primary focus of the challenge in Virginia Surface Mining. The United States District Court for the Southern District of Indiana ruled that the provisions of the Act challenged here are unconstitutional and permanently enjoined their enforcement. 501 F. Supp. 452 (1980). We noted probable jurisdiction sub nom. Andrus v. Indiana, 449 U. S. 816 (1980), and we now reverse.
I
A
The basic structure of the Surface Mining Act is described in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 268-272, and it will therefore suffice here to briefly describe the specific provisions drawn into question in this case. Several of the challenged sections of the Act are known collectively as the “prime farmland” provisions. These sections establish special requirements for surface mining operations conducted on land that both qualifies as prime farmland under a definition promulgated by the Secretary of Agriculture and has historically been used as cropland within the meaning of the regulations of the Secretary of the Interior (Secretary) implementing the Surface Mining Act. § 701 (20), 30 U. S. C. § 1291 (20) (1976 ed., Supp. III). A permit for surface coal mining on such lands may be granted only if the mine operator can demonstrate its “technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as nonmined prime farmland in the surrounding area under equivalent levels of management. . . .” § 510 (d)(1), 30 IT. S. C. § 1260 (d)(1) (1976 ed., Supp. III). The operator must also show that it can “meet the soil reconstruction standards” for prime farmland set forth in § 515 (b)(7), 30 U. S. C. § 1265 (b)(7) (1976 ed., Supp. III). That section specifies that the distinct soil layers on prime farmland must be separately removed, segregated, stockpiled, and then properly replaced and regraded. Furthermore, § 519 (c)(2), 30 U. S. C. § 1269 (c)(2) (1976 ed., Supp. Ill), provides that upon its completion of mining activities on prime farmland, a mine operator can have its performance bond released only on a showing that soil productivity “has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices . ...”
Also challenged here are some of the Act’s more general provisions that are applicable throughout the country. These include §515 (b)(3), which requires restoration of mined land to its approximate original contour, and the directive in § 515 (b)(5), 30 U. S. C. § 1265 (b)(5) (1976 ed., Supp. Ill), that surface mine operators remove topsoil separately during mining activities and preserve it for use during reclamation if it is not to be replaced immediately on the backfill area of the mining cut. Section 508, 30 U. S. C. § 1258 (1976 ed., Supp. Ill), requires applicants for surface coal mining permits to submit proposed reclamation plans specifying the intended postmining use of the land and the method by which that use will be achieved. In addition, §§ 522 (a), (c), (d), 30 U. S. C. §§ 1272 (a), (c), (d) (1976 ed., Supp. Ill), require States wishing to assume permanent regulatory authority over surface coal mining to establish an administrative procedure for determining whether particular lands are unsuitable for some or all kinds of surface mining. Section 522 (e), 30 U. S. C. § 1272 (e) (1976 ed., Supp. Ill), proscribes mining activity within 100 feet of roadways and cemeteries or within 300 feet of public buildings, schools, churches, public parks, or occupied dwellings. Finally, the Act’s procedures for collecting proposed civil penalties contained in § 518 (c), 30 U. S. C. § 1268 (c) (1976 ed., Supp. Ill), are also drawn into question here.
B
These suits were filed in August 1978, one by the State of Indiana and several of its officials, and the other by the Indiana Coal Association, several coal mine operators, and others. The complaints alleged that the Act contravenes the Commerce Clause, the equal protection and due process guarantees of the Due Process Clause of the Fifth Amendment, the Tenth Amendment, and the Just Compensation Clause of the Fifth Amendment.
The District Court held a 1-day hearing on plaintiffs’ motion for a preliminary injunction and defendants’ motion to dismiss, and the court ultimately decided the case on the merits without taking further evidence. On June .10, 1980, the District Court issued an order and opinion sustaining each of plaintiffs’ constitutional challenges and permanently enjoining the Secretary from enforcing the challenged sections of the Act. 501 F. Supp. 452 (SD Ind. 1980).
II
The District Court gave two rationales for its decision on the Commerce Clause issue. The court first held that the six “prime farmland” provisions are beyond congressional power to regulate interstate commerce because they are “directed at facets of surface coal mining which have no substantial and adverse effect on interstate commerce.” Id., at 460. The court reached this conclusion by examining statistics in the Report of the Interagency Task Force on the Issue of a Moratorium or a Ban on Mining in Prime Agricultural Lands (1977) (Interagency Report). These statistics compared the prime farmland acreage being disturbed annually by surface mining to the total prime farmland acreage in the United States. The Interagency Report stated that approximately 21,800 acres of prime farmland were being disturbed annually and that this acreage amounted to 0.006% of the total prime farmland acreage in the Nation. 501 F. Supp., at 459. This statistic and others derived from it, together with similar comparisons for Indiana, persuaded the court that surface coal mining on prime farmland has “an infinitesimal effect or trivial impact on interstate commerce.” Id., at 458.
With respect to the other 15 substantive provisions which apply to surface mining generally, the District Court reasoned that the only possible adverse effects on interstate commerce justifying congressional action are air and water pollution and determined that these effects are adequately addressed by other provisions of the Act. The court therefore concluded that these 15 provisions as well as the 6 prime farmland provisions “are not directed at the alleviation of water or air pollution, to the extent that there are [any] such effects, and are not means reasonably and plainly adapted to [the legitimate end of] removing any substantial and adverse effect on interstate commerce.” Id., at 461. We find both of the District Court’s rationales untenable.
It is established beyond peradventure that “legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality . . . .” Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 15 (1976). See also Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 83-84 (1978). A court may invalidate legislation enacted under the Commerce Clause only if it is clear that there is no rational basis for a congressional finding that the regulated activity affects interstate corn-merce, or that there is no reasonable connection between the regulatory means selected and the asserted ends. Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 276; Katzenbach v. McClung, 379 U. S. 294, 303-304 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 258, 262 (1964). We are not convinced that the District Court had reliable grounds to reach either conclusion in this case.
In our view, Congress was entitled to find that the protection of prime farmland is a federal interest that may be addressed through Commerce Clause legislation. The Inter-agency Report provides no basis for the District Court’s contrary view. That report dealt only with the question whether a complete moratorium or ban on surface coal mining on prime farmland was advisable as a matter of policy. The report neither purported to examine the full impact of surface mining on interstate commerce in agricultural commodities, nor concluded that the impact is too negligible to warrant federal regulation. More important, the court below incorrectly assumed that the relevant inquiry under the rational-basis test is the volume of commerce actually affected by the regulated activity. This Court held in NLRB v. Fainblatt, 306 U. S. 601, 606 (1939), that “[t]he power of Congress to regulate interstate commerce is plenary and extends to all such commerce be it great or small.” The pertinent inquiry therefore is not how much commerce is involved but whether Congress could rationally conclude that the regulated activity affects interstate commerce. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 276-277; Perez v. United States, 402 U. S. 146, 154-156 (1971); Katzenbach v. McClung, supra, at 303-304; Wickard v. Filburn, 317 U. S. 111, 127-129 (1942). Cf. Polish National Alliance v. NLRB, 322 U. S. 643, 648 (1944); United States v. Darby, 312 U. S. 100, 123 (1941).
Against this background, we have little difficulty in concluding that the congressional finding in this case satisfies the rational-basis test. The Senate considered information from the Interagency Report about the prime farmland acreage that might be affected by surface coal mining. See 123 Cong. Rec. 15713 (1977) (remarks of Sen. Percy). In addition, Senator Percy called the Senate’s attention to testimony presented at the Senate Committee hearings about the losses in agricultural productivity attributable to surface mining. Id., at 15713-15717. See also id., at 15720-15721 (remarks of Sen. Humphrey), 15721 (remarks of Sen. Stevenson). Similar evidence was presented during the contemporaneous hearings before the House Committee, and the Committee Report referred to this testimony in explaining the origins of the “prime farmland” provisions. The Report stated:
“The Committee heard testimony from citizens and local officials of Illinois and Indiana requesting that special attention be given in the bill to the protection of prime agricultural lands. Working with officials of the Soil Conservation Service, the Committee added a number of provisions to H. R. 2 designed to insure the proper reconstruction of soil strata within those areas classified as prime agricultural lands.” H. R. Rep. No. 95-218, p. 184 (1977).
In our judgment, the evidence summarized in the Reports mandates the conclusion that Congress had a rational basis for finding that surface coal mining on prime farmland affects interstate commerce in agricultural products. As we explained in Stafford v. Wallace, 258 U. S. 495, 521 (1922):
“Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of danger and meet it. This court will certainly not substitute its judgment for that of Congress unless the relation of the subject to interstate commerce and its effect upon it are clearly non-existent.”
The court below improperly substituted its judgment for the congressional determination.
We also conclude that the court below erred in holding that the prime farmland and 15 other substantive provisions challenged by appellees are not reasonably related to the legitimate goal of protecting interstate commerce from adverse effects attributable to surface coal mining. The court incorrectly assumed that the Act’s goals are limited to preventing air and water pollution. As we noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 277-280, Congress was also concerned about preserving the productive capacity of mined lands and protecting the public from health and safety hazards that may result from surface coal mining. All the provisions invalidated by the court below are reasonably calculated to further these legitimate goals.
For example, the approximate-original-contour requirement in § 515 (b) (5) is designed to avoid the environmental and other harm that may result from unreclaimed or improperly restored mining cuts. As the Senate Committee Report explained:
“If surface mining and reclamation are not done carefully, significant environmental damage can result. In addition, unreclaimed or improperly reclaimed surface coal mines pose a continuing threat to the environment, and at times are a danger to public health and safety, public or private property.” S. Rep. No. 95-128, p. 50 (1977).
See also id., at 83; H. R. Rep. No. 95-218, supra, at 79-80, 93. The same is true of § 508’s requirement that applicants for surface mining permits under the permanent program must inform the regulatory authority of the intended postmining use for the land and the manner in which such use will be achieved. This requirement was among the remedial actions specifically recommended to the House Committee by the United States Army Corps of Engineers. The Corps recommended “[a]dvanced submission of mining and reclamation plans to a responsible government agency having authority to grant or deny approval to engage in mining, based upon the information in the plans and the requirements of the regulations.” House Hearings, pt. 2, at 86. These requirements obviously enable the regulatory authority to ascertain, before mining begins, whether the prospective mine operator has given adequate consideration to the postmining fate of the land, and whether the operator possesses the technological capability to restore the land in the manner proposed.
Similarly, the relevance of the topsoil-replacement requirement in § 515 (b)(5) to the congressional goal of preserving the productive capacity of mined land should be self-evident. See H. R. Rep. No. 95-218, supra, at 106-109. Again, this measure was included among the Corps of Engineers’ recommendations to the House Committee. The Corps spokesman advised the Committee to require “[segregation and preservation of topsoils during, or preceding, mining operations . . . [in order] to provide soil conditions conducive to rapid re-vegetation after mining . . . House Hearings, pt. 2, at 86. Section 522 (e)’s prohibition against mining near churches, schools, parks, public buildings, and occupied dwellings is plainly directed toward ensuring that surface coal mining does not endanger life and property in coal mining communities.
Congress adopted the Surface Mining Act in order to ensure that production of coal for interstate commerce would not be at the expense of agriculture, the environment, or public health and safety, injury to any of which interests would have deleterious effects on interstate commerce. See 30 U. S. C. § 1202 (f) (1976 ed., Supp. III); S. Rep. No. 95-128, supra, at 49-53; H. R. Rep. No. 95-218, supra, at 57-60. Moreover, as noted in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 281-282, the Act reflects the congressional goal of protecting mine operators in States adhering to high performance and reclamation standards from disadvantageous competition with operators in States with less rigorous regulatory programs. See 30 U. S. C. § 1201 (g) (1976 ed., Supp. III). The statutory provisions invalidated by the District Court advance these legitimate goals, and we conclude that Congress acted reasonably in adopting the regulatory scheme contained in the Act.
III
The District Court also held that the 21 substantive statutory provisions discussed above violate the Tenth Amendment because they constitute “displacement or regulation of the management structure and operation of the traditional governmental function of the States in the area of land use control and planning . . . .” 501 F. Supp., at 468. The District Court ruled that the real purpose and effect of the Act is land-use regulation, which, in the court’s view, is a traditional state governmental function. The court below, like the District Court in Virginia Surface Mining, relied for its Tenth Amendment analysis on this Court’s decision in National League of Cities v. Usery, 426 U. S. 833 (1976).
For the reasons stated in our opinion in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 286-293, we hold that the District Court erred in concluding that the challenged provisions of the Act contravene the Tenth Amendment. Like the provisions' challenged in Virginia Surface Mining, the sections of the Act under attack in this case regulate only the activities of surface mine operators who are private individuals and businesses, and the District Court’s conclusion that the Act directly regulates the States as States is untenable. This Court’s decision in National League of Cities simply is not applicable to this case.
IV
The District Court next held that the prime farmland and approximate-original-contour provisions of the Act violate the equal protection and substantive due process guarantees of the Fifth Amendment. The court noted that the Act makes no allowance for variances from the prime farmland requirements, and that variances from the approximate-original-contour provisions are available only for steep-slope and mountaintop operations. The court reasoned that the absence of a variance procedure from these statutory requirements impermissibly discriminates against coal mine operators and States in the Midwest, where there are significant ■coal reserves located under prime farmland and few or no steep-slope or mountaintop mining operations. Relying on this Court’s decision in Hampton v. Mow Sun Wong, 426 U. S. 88 (1976), the court ruled that this discriminatory treatment could not withstand equal protection scrutiny because it is not justified by “an overriding national interest.” 501 F. Supp., at 469. The court further held that both the prime farmland and approximate-original-contour provisions “constitute a deprivation of substantive due process” because they are “irrational, arbitrary and capricious requirements in situations where they are not reasonably necessary to achieve a particular postmining use . . . .” Ibid.
Although its decision was couched in terms of the arbitrariness of the challenged provisions, we fear that the court below did no more than substitute its policy judgment for that of Congress. Social and economic legislation like the Surface Mining Act that does not employ suspect classifications or impinge on fundamental rights must be upheld against equal protection attack when the legislative means are rationally related to a legitimate governmental purpose. Schweiker v. Wilson, 450 U. S. 221 (1981); U. S. Railroad Retirement Board v. Fritz, 449 U. S. 166 (1980). Moreover, such legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality. Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S., at 83; Usery v. Turner Elkhorn Mining Co., 428 U. S., at 15. As the Court explained in Vance v. Bradley, 440 U. S. 93, 97 (1979), social and economic legislation is valid unless “the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that [a court] can only conclude that the legislature’s actions were irrational.” This is a heavy burden, and appellees have not carried it.
Neither the court below nor appellees have identified any instance in which the prime farmland or approximate-original-contour provisions have been applied to a mining operation so as to produce an irrational or arbitrary result. More important, even were appellees correct that the challenged provisions impose a greater burden on mine operators in the Midwest, that is no basis for finding the provisions unconstitutional. A claim of arbitrariness cannot rest solely on a statute’s lack of uniform geographic impact. Secretary of Agriculture v. Central Roig Refining Co., 338 U. S. 604, 616—619 (1950); Currin v. Wallace, 306 U. S. 1, 14 (1939). As the Court explained in Central Roig Refining Co., supra, at 616:
“Nor does the Commerce Clause impose requirements of geographic uniformity. . . . Congress may devise ... a national policy with due regard for the varying and fluctuating interests of different regions.”
The characteristics of surface coal mining obviously will vary according to the different geographical conditions present in affected States. Congress has determined that the measures appropriate for steep-slope mines are not necessarily desirable in flatter terrain and prime farmland areas. In allowing variances from the approximate-original-contour requirement applicable to steep-slope mines, Congress may have been influenced by the relative shortage of level land in the steep-slope areas of the country which does not exist in the flatter terrain areas of the Midwest. Similarly, Congress presumably concluded that allowing variances from the prime farmland provisions would undermine the effort to preserve the productivity of such lands. In our view, Congress acted rationally in drawing these distinctions, and the fact that a particular State has more of one kind of mining operation than another does not establish impermissible discrimination under the Fifth Amendment’s Due Process Clause. Furthermore, by invalidating the challenged provisions of the Act under the rubric of “substantive due process,” the District Court essentially acted as a superlegislature, passing on the wisdom of congressional policy determinations. In so doing, the court exceeded its proper role. See New Orleans v. Dukes, 427 U. S. 297, 303 (1976); Ferguson v. Skrupa, 372 U. S. 726, 730 (1963).
y
As did its counterpart in Virginia Surface Mining, the District Court here ruled that some of the Act’s provisions take private property without just compensation in violation of the Fifth Amendment. ,The court found fault with three of the prime farmland provisions. One is the provision requiring an operator seeking a permit for mining on such land to show that he has the capacity to restore the land, within a reasonable time after the completion of mining, to at least the productivity levels of “non-mined prime farmland in the surrounding area under equivalent levels of management . . . .” § 510 (d)(1), 30 U. S. C. § 1260 (d)(1) (1976 ed., Supp. III). The second provision conditions the release of a mine operator’s performance bond on the completion of this restoration. §519 (c)(2), 30 U. S. C. § 1269 (c)(2) (1976 ed., Supp. III). The third provision directs mine operators to include information about the premining productivity of the land in the reclamation plans they file as part of “prime farmland” permit applications. §508 (a) (2), 30 U. S. C. § 1258 (a)(2) (1976 ed., Supp. III). The District Court concluded that these three provisions effect ail unconstitutional taking of private property because, in the court’s view,
“it is technologically impossible to reclaim prime farmland in a postmining period so that equal or higher levels of yield under high levels of management practice can be achieved.” 501 F. Supp., at 470.
The court also ruled that the requirement in § 522 of a procedure for designating areas unsuitable for mining operations, as well as § 522 (e)’s proscription of mining on certain lands and near particular structures, takes private property without just compensation.
In this case as in Virginia Surface Mining, appellees’ takings claims do not focus on any particular properties to which the challenged provisions have been applied. Similarly, the District Court’s ruling did not pertain to the taking of a particular piece of property or the denial of a mining permit for specific prime farmland operations proposed by appel-lees. Thus, this case resembles Virginia Surface Mining in that the only issue properly before the District Court was whether “mere enactment” of the Surface Mining Act effected an unconstitutional taking of private property. For the reasons discussed more fully in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 294-297, we conclude that this question must be answered in the negative.
Like the steep-slope provisions reviewed in Virginia Surface Mining, the prime farmland provisions do not prohibit surface mining; they merely regulate the conditions under which the activity may be conducted. The prime farmland provisions say nothing about alternative uses to which prime farmland may be put since they come into play only when an operator seeks to conduct mining operations on the land. We therefore conclude that these provisions do not, on their face, deprive a property owner of economically beneficial use of his property.
VI
The court below joined the Virginia Surface Mining District Court in holding that the Act’s civil penalty provisions deprive coal mine operators of their right to due process. However, like their counterparts in Virginia Surface Mining, appellees have made no showing that they were ever assessed civil penalties under the Act, much less that the statutory prepayment requirement was ever applied to them or caused them any injury. As in Virginia Surface Mining, we hold that appellees’ challenge to these provisions is premature.
VII
Our review of the questions presented by this case leads us to the same conclusion that we reached in Virginia Surface Mining. The Surface Mining Act is not vulnerable to appel-lees’ pre-enforcement constitutional challenge. Accordingly, we reverse the judgment of the District Court and remand the case to that court with instructions to dissolve the injunction entered against the Secretary, and for further proceedings consistent with this opinion.
So ordered.
[For concurring statement of The Chief Justice, see ante, p. 305.]
[For opinion of Justice Rehnquist concurring in the judgment, see ante, p. 307.]
Section 701 (20), 91 Stat. 517, 30 U. S. C. § 1291 (20) (1976 ed., Supp. III), provides that
“the term ‘prime farmland’ shall have the same meaning as that previously prescribed by the Secretary of Agriculture on the basis of such factors as moisture availability, temperature regime, chemical balance, permeability, surface layer composition, susceptibility to flooding, and erosion characteristics, and which historically have been used for intensive agricultural purposes, and as published in the Federal Register.”
The Secretary of Agriculture’s definition is found at 7 CFR pt. 657 (1980), and is incorporated into the Secretary of the Interior’s regulations implementing the Act by 30 CFR § 701.5 (1980). The Secretary published regulations defining “prime farmland” for purposes of the Act’s interim phase. The United States District Court for the District of Columbia remanded the regulations to the Secretary for reconsideration on grounds not pertinent here. See In re Surface Mining Regulation Litigation, 456 F. Supp. 1301, 1312 (1978), rev’d in part on other grounds, 201 U. S. App. D. C. 360, 627 F. 2d 1346 (1980). The Secretary has published proposed new regulations defining “prime farmland” for purposes of the interim program. See 44 Fed. Reg. 33625 (1979).
Under § 509 of the Act, 30 U. S. C. § 1259 (1976 ed., Supp. Ill), no mining permits may be issued until the operator has filed a performance bond with the appropriate regulatory authority.
Section 515 (b) (3) describes the “approximate original contour” requirement applicable generally to surface mining operations. Appellees in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, p. 264, challenged the approximate-original-contour provision in § 515 (d) of the Act, which is applicable only to surface mining operations on steep slopes.
The progress of the States in submitting proposed permanent regulatory programs under § 503 of the Act and the Secretary’s response to those submissions is described in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 272, n. 7. The proposed program submitted by Indiana was approved in part and disapproved in part. See 45 Fed. Reg. 78482 (1980).
On July 2, 1980, Justice Stevens stayed the District Court’s judgment pending final disposition of this appeal.
The six are:
(1) § 507 (b) (16), 30 U. S. C. § 1257(b) (16) (1976 ed., Supp. Ill), which requires a “soil survey” of suspected prime farmlands “to confirm the exact location of such prime farmlands, if any”;
(2) § 508 (a)(2)(C), 30 IT. S. C. § 1258 (a) (2) (C) (1976 ed., Supp. Ill), which directs a mine operator to include in its reclamation plan information about “the productivity of land prior to mining, including appropriate classification as prime farm lands, as well as the average yield of food, fiber, forage, or wood products from such lands obtained under high levels of management”;
(3) § 510 (d) (1), 30 U. S. C. § 1260 (d) (1) (1976 ed., Supp. Ill), which allows permits to be issued for mining on prime farmland only when the regulatory authority is satisfied that the operator “has the technological capability to restore such mined area, within a reasonable time, to equivalent or higher levels of yield as non-mined prime farmland in the surrounding area under equivalent levels of management and can meet the soil reconstruction standards in Section 515 (b) (7). . . .”;
(4) § 515 (b) (7), 30 U. S. C. § 1265 (b) (7) (1976 ed., Supp. Ill), which requires the separate removal and replacement of the A, B, and C soil horizons of prime farmland;
(5) §515 (b)(20), insofar as it authorizes regulatory authorities to approve “long-term, intensive, agricultural postmining land use”; and
(6) § 519 (c) (2), 30 TJ. S. C. § 1269 (c) (2) (1976 ed., Supp. Ill), which provides that performance bonds for mining on prime farmland may not be released “until soil productivity for prime farm lands has returned to equivalent levels of yield as nonmined land of the same soil type in the surrounding area under equivalent management practices . . . .”
The Interagency Report was submitted to the House Committee on Interior and Insular Affairs in April 1977, one month after the Committee completed hearings on the proposed surface mining legislation. See 501 F. Supp. 452, 459 (SD Ind. 1980).
The court noted that it would take 166 years for surface mining to disturb 1% of the total prime farmland in the country. The court also noted that in 1977 the Government’s Agricultural Stabilization and Conservation Service paid farmers not to grow crops on 5,900,000 acres, which is 200 times the prime farmland acreage disturbed annually by surface mining. With respect to Indiana, the court pointed out that only 40,000 acres of prime farmland are projected to be disturbed by surface mining in Indiana in the next 20 years, and that this figure amounts to 0.003% of the total prime farmland in Indiana. Id., at 459-460. In addition, the court noted that in 1977, the Government paid Indiana farmers not to farm 369,153 acres, nearly 1,000% more land than would be affected by surface mining in Indiana in the next 20 years. Id., at 460.
These provisions are:
(1) §515 (b)(3), 30 U. S. C. § 1265 (b)(3) (1976 ed., Supp. Ill), requiring restoration of surface mined land to its approximate original contour;
(2) §515 (b)(5), 30 U. S. C. § 1265 (b)(5) (1976 ed., Supp. Ill), requiring separate removal, segregation, and ultimate replacement of topsoil on mined land;
(3) §§522 (a), (c), (d), (e)(4), (e)(5), 30 U. S. C. §§ 1272 (a), (c), (d), (e)(4), (e)(5) (1976 ed., Supp. Ill), requiring permanent regulatory programs to establish procedures for designating particular lands as unsuitable for surface mining, and restricting surface mining within a specified radius of certain facilities;
(4) §§ 508 (a)(2), (3), (4), (8), (10), 30 U. S. C. §§ 1258 (a)(2), (3), (4), (8), (10) (1976 ed, Supp. Ill), requiring that reclamation plans be submitted as part of permit applications under the permanent regulatory program, including descriptions of the premining use of the affected land, the proposed postmining use, and the methods by which the proposed use will be achieved;
(5) §§ 510 (b) (1), (2), 30 U. S. C. §§ 1260 (b) (1), (2) (1976 ed, Supp. Ill), the general provisions governing approval or disapproval of permit applications under the permanent regulatory program (invalidated to the extent that they entail regulatory authority review of proposed postmining land uses); and
(6) §§515 (b) (19), (20), 30 IT. S. C. §§ 1265 (b) (19), (20) (1976 ed, Supp. HI), requiring maintenance of revegetation of mined lands for a 5- or 10-year period after completion of mining (invalidated to the extent that they may incorporate a requirement of compliance with a postmining land-use plan approved by the regulatory authority).
As explained in the Report of the House Committee, Congress followed the recommendation of the Interagency Report, and rejected a Carter administration proposal for a 5-year moratorium on surface mining on prime farmlands. The Committee explained that Soil Conservation Service officials testified that mined prime farmland could be restored to its original productivity levels through compliance with the prime farmland provisions now contained in the Act. H. R. Rep. No. 95-218, pp. 184-185 (1977).
In any event, the District Court’s “finding” that only an insignificant amount of interstate commerce is affected by surface mining on prime farmland is questionable. The court, noted that the 21,800 acres of prime farmland disturbed annually by surface mining would have produced about 0.04% of the Nation’s total corn production in the 1976-1977 crop year. See 501 F. Supp., at 459. Although this percentage may seem small, it is worth remembering that corn production for grain in that year was 6.4 billion bushels, worth some $12.9 billion. See United States Department of Agriculture, Agricultural Statistics 30 (1979). Therefore, the 0.04% of corn production would have had an approximate value of $5.16 million which surely is not an insignificant amount of commerce.
See Surface Mining Control and Reclamation Act of 1977: Hearings on S. 7 before the Subcommittee on Public Lands and Resources of the Senate Committee on Energy and Natural Resources, 95th Cong., 1st Sess., 775-811 (1977) (Senate Hearings).
See Surface Mining Control and Reclamation Act of 1977: Hearings on H. R. 2 before the Subcommittee on Energy and the Environment of the House Committee on Interior and Insular Affairs, 95th Cong., 1st Sess., pt. 4, pp. 16-31, 78-92, 159-172, 235-260 (1977) (House Hearings).
Contrary to the District Court’s conclusion, it is irrelevant that the Federal Government has in the past paid farmers to refrain from growing crops on certain lands. Such subsidies serve independent goals related to the pricing of agricultural commodities. More important, the affected lands are kept out of production only temporarily, whereas Congress found that unregulated surface mining can be expected to cause long-term or irreversible soil damage.
Even if the District Court was correct in assuming that the Act’s sole purpose is controlling air and water pollution that may be caused by surface mining, the court’s conclusion that the challenged provisions bear no relation to achievement of this goal would nonetheless be questionable. Along with other provisions of the Act addressing these problems, the provisions at issue contribute to this end. The approximate-original-contour and topsoil replacement requirements, for example, are designed to prevent erosion and sedimentation and thus help preserve water quality. These requirements were among the remedial measures specifically recommended to the House Committee by the United States Army Corps of Engineers for the prevention of further adverse surface mining effects on the Nation’s water resources. See House Hearings, pt. 2, at 86.
A representative of the United States Army Corps of Engineers testified at the 1977 House hearings that a National Strip Mine Study prepared by the Corps found that more than 4,400,000 acres of land in the United States have already been disturbed by surface mining and that 1,900,000 of those acres have not been reclaimed. He further testified that, according to the study, the annual rate of land disturbance by surface mining was 153,000 acres in 1964, and 207,000 acres in 1974. House Hearings, pt. 2, at 69, 83, 90-95. See also S. Rep. No. 95-128, p. 50 (1977).
Appellees contend that a number of the specific provisions challenged in this case cannot be shown to be related to the congressional goal of preventing adverse effects on interstate commerce. This claim, even if correct, is beside the point. A complex regulatory program such as established by the Act can survive a Commerce Clause challenge without a showing that every single facet of the program is independently and directly related to a valid congressional goal. It is enough that the challenged provisions are an integral part of the regulatory program and that the regulatory scheme when considered as a whole satisfies this test. See Heart of Atlanta Motel, Inc. v. United States, 379 U. S. 241, 262 (1964); Katzenbach v. McClung, 379 U. S. 294, 303-304 (1964). Cf. Perez v. United States, 402 U. S. 146, 154-156 (1971); Wickard v. Filburn, 317 U. S. 111, 127-128 (1942); United States v. Darby, 312 U. S. 100, 123 (1941).
We also do not share the view of the District Court that the Surface Mining Act is a land-use measure after the fashion of the zoning ordinances typically enacted by state and local governments. The prime farmland and other provisions at issue in this case are concerned with regulating the conditions and effects of surface coal mining. Any restrictions on land use that may be imposed by the Act are temporary and incidental to these primary purposes. The Act imposes no restrictions on postreclamation use of mined lands.
The District Court did find that one of appellee coal companies owns subsurface rights to coal on prime farmland which it “intends to mine ... in the immediate future.” 501 F. Supp., at 470. But even under the District Court’s takings analysis, this particular plaintiff's claim is not ripe for judicial determination. For the court held that the Act effects a taking only where it would require a mine operator to demonstrate that it had the capability to restore mined prime farmland to “equal or higher levels of yield under high levels of management.” Ibid. (emphasis added). The court specifically found that mined prime farmland can be restored to the productivity of unmined land under what it described as “basic levels of management.” Ibid, (emphasis added). Since the plaintiff involved did not allege that it was required to demonstrate a capacity to restore the prime farmland to yields under “high levels of management,” there could be no basis for the District Court’s conclusion that the mine operator’s property has been taken by the Act.
The District Court found that “[pjlaintiffs coal companies own and/or have rights to and presently intend to mine lands subject to § 522 (e) (4) and/or (5).” Id., at 460. However, in Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 296, n. 37, we held that the “mere enactment” of § 522 (e) did not 'effect an unconstitutional taking of the lands to which its restrictions apply. We rely on our discussion in Virginia Surface Mining to dispose of the pertinent claims here. We also hold that here, as in Virginia Surface Mining, the District Court erred in ruling on the validity of §§522 (a), (c), and (d). These provisions, which require procedures for designating areas unsuitable for mining, do not come into effect until the permanent phase of the program, and they have not been applied to appellees or any other landowners in Indiana. In these circumstances, there is no justiciable case or controversy concerning these sections of the Act. See Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., ante, at 294, n. 36.
Question: What type of decision did the court make?
A. opinion of the court (orally argued)
B. per curiam (no oral argument)
C. decrees
D. equally divided vote
E. per curiam (orally argued)
F. judgment of the Court (orally argued)
G. seriatim
Answer: |
sc_caseorigin | 159 | 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.
ARMSTRONG v. ARMSTRONG et al.
No. 38.
Argued November 15, 1955.
Decided April 9, 1956.
Robert N. Gorman argued the cause for petitioner. With him on the brief were James N. Hengelbrok and Julius R. Samuels.
Walter K. Sibbald argued the cause and filed a brief for Armstrong, respondent.
Mr. Justice Minton
delivered the opinion of the Court.
The petitioner, while residing in Dade County, Florida, filed a suit for divorce from his wife, who had separated from him and gone to Ohio, where she had established her residence. The wife was not personally served, nor did she appear in person or by attorney in the Florida suit. Service on her was constructive only. A divorce decree was granted petitioner by the Florida court, and he contends that that court also denied alimony to the respondent.
Later, the respondent wife instituted a suit in Ohio for divorce and for alimony. The petitioner appeared and set up the divorce obtained in Florida. The Ohio court found that the respondent had established grounds for divorce in Ohio but denied the divorce because Florida had already decreed a divorce to the petitioner. The Ohio court proceeded to pass on the question of alimony and granted the wife alimony, taking into account the total property owned by the petitioner. The petitioner appealed to the Court of Appeals, 99 Ohio App. 7, 130 N. E. 2d 710, and then to the Supreme Court of Ohio, which affirmed the judgments of the lower courts. 162 Ohio St. 406, 123 N. E. 2d 267. Petitioner argued and contends here that the Ohio courts have denied full faith and credit to the Florida decree. We granted certiorari. 349 U. S. 915.
The sole question presented by the petition for certio-rari was whether the Ohio courts were required to give full faith and credit to the ex parte Florida divorce decree, which petitioner alleges not only granted him a divorce but also decreed that the wife was not entitled to alimony. As we interpret the Florida decree, however, the Florida court did not purport to adjudicate the absent wife's right to alimony. The Ohio courts, therefore, in awarding alimony to the wife, did not in fact fail to give full faith and credit to the Florida decree. Accordingly, we do not reach the constitutional question sought to be presented. But even if there is doubt as to the meaning of the Florida decree, we should construe its action as a refusal to pass on the question of alimony and thus avoid the constitutional question as to its power to do so.
The Florida court found that Mrs. Armstrong “has not come into this court in good faith or made any claim to the equitable conscience of the court and has made no showing of any need on her part for alimony. It is, therefore, specifically decreed that no award of alimony be made to the defendant . . . Taken literally, that language means only that, for the reasons it gave, the court would refrain from making an affirmative award of alimony to the wife, not that it adjudicated in favor of the husband that his wife was not entitled to alimony. The husband's bill of complaint did not ask for greater relief. It offered to show that Mrs. Armstrong's interest in jointly held property was “ample to support the defendant and that she has no further need of alimony.” The purpose of this offer, however, was revealed by the next sentence of the complaint: “Nevertheless the plaintiff hereby offers to do equity and to abide by such orders or decrees, with reference to the settlement of the property affairs, as to this court may be deemed equitable.” Thus the husband did not seek a decree holding the wife not entitled to alimony but rather merely submitted to the court’s jurisdiction to condition its grant of divorce to him upon an award of alimony to his wife. The prayer for relief was fully satisfied by the decision that protection of the absent wife did not require the court to fix alimony before granting the divorce.
The Florida master’s report is confirmatory of the limited scope of the decree. The master stated that “the question of the wife’s alimony, if any, cannot be determined at this stage of the proceeding,” pointing out that most of the marital property was in the wife’s possession in Ohio and was the subject matter of litigation pending there. He accordingly found that “the defendant is not entitled to receive alimony . . . under the facts and circumstances presented in this case” and recommended “that no award of alimony be made.” The master’s recommendation meant no more than that the question of alimony should not be decided because the wife had in her possession property adequate to meet her immediate needs, and the unresolved litigation made it impossible to determine her future needs. Presumably, the court’s decree meant no more when it adopted in terms the master’s recommendation that “no award of alimony be made.” Like the master’s report, the decree expressly recognized that the parties’ property rights depended upon the outcome of the pending litigation in Ohio and that the wife had not shown any need for alimony.
When the Florida court said, “it is, therefore, specifically decreed that no award of alimony be made to the defendant,” it recognized that no issue of alimony should be decided by it. The court simply said that no award of alimony be made — a purely negative assertion that it would not pass on the question.
It is true that the decree “that no award of alimony be made” was followed in the same sentence by a declaration, based on the court’s and master’s view of Florida property law, quieting title in the husband to certain Florida real property. At most, however, the fact that both matters were dealt with in a single sentence suggests only that the court might have reserved alimony out of that specific property had it concluded that such action was necessary to protect the wife’s interests. That it did not do so is consistent with our conclusion that the Florida court did no more than refrain from awarding alimony at that time.
There was a valid decree in Florida dissolving the bonds of matrimony. There was no decree as to alimony. Ohio had personal service on both parties in a suit for divorce and alimony brought there by Mrs. Armstrong. The court denied her a decree of divorce because Florida had already dissolved the bonds of matrimony. The Ohio court found that, but for the decree in Florida, Mrs. Armstrong had established grounds for divorce in the Ohio suit. It considered that the matter before it was not a division of property, but an application for alimony, and it proceeded to hear evidence on that basis and finally entered a personal judgment against the defendant husband for alimony. The Ohio court, which had complete jurisdiction of both parties and the cause of action, entered a decree as to alimony only, which decree seems clearly authorized by the Ohio cases. Slapp v. Slapp, 143 Ohio St. 105, 54 N. E. 2d 153; Cox v. Cox, 19 Ohio St. 502. The Florida judgment was given full faith and credit by Ohio as far as the judgment in Florida went, and no other questions are presented here.
The judgment is
Affirmed.
Mr. Justice Frankfurter,
joining the opinion of the Court.
It is, of course, desirable to have a Court opinion, if one can be achieved without straining one’s conscience. I am sufficiently in agreement with Mr. Justice Minton’s construction of the Florida decree to be able to join him.
On my study of the record, I would dismiss the writ as improvidently granted. And for these reasons. After a case has been heard on the merits, it is to be disposed of on the precise issue that full study of the case discloses, and not on the basis of the preliminary examination of the questions that were urged in the petition for certio-rari. Due regard for the working of the certiorari system requires this. In view of the fact that about 1,300 applications were made last Term for leave to be heard (and this is a fair average of the volume of the Court’s business), determination during this sifting process of the jurisdictional merits in all these 1,300 cases can hardly be expected. Theory and practice alike reject any such notion. The inevitably cursory consideration that is normally given in a case on the preliminary round precludes the assumption that a tentative finding of a federal question will survive the thorough study of the record which consideration of a case on the merits implies. Therefore, it is that cases have again and again been dismissed for want of jurisdiction, i. e., a substantial federal question was found wanting; on the contrary, it became clear that the state court judgment rested on an adequate state ground.
The petition for writ of certiorari in this case vigorously-argued that
“The sole question is whether the courts of Ohio, under Article IV of the Constitution of the United States, are compelled to give full faith and credit to the entire decree, granting a divorce, and denying alimony, rendered by the court in Florida, the matrimonial domicile of the parties, following the decision of Thompson v. Thompson, 226 U. S. 551.”
The references to the Florida decree in the opinion of the Ohio Supreme Court — the two documents are hardly to be deemed conspicuously lucid — warranted, without more, a belief that the case did present the question formulated by petitioner. Such a question would, no doubt, raise an important problem in the construction of the Full Faith and Credit Clause.
But the course of the oral argument, for such is one of its functions, and an exacting scrutiny of the record, for such is the requirement of plenary consideration of a case, put in a very different light the decree of the Florida court and thereby the significance of the litigation in Ohio.
A study of the Florida decree, a portion of which is set out in the margin, in conjunction with Florida case law demonstrates, I believe, that Florida expressly disavowed any adjudication regarding claims to and in property situated in Ohio, the very properties which are the subject matter of the challenged Ohio decree.
Thus, the sole question that survives is the power of Ohio, as a matter of its own policy, to define rights in property situated in Ohio in the circumstances of this case. A question of due process might be raised, though not successfully. (Both the real property and securities which had their locus in Ohio were subject to Ohio's control in that both items constituted “property within the State.” Pennington v. Fourth National Bank, 243 U. S. 269, 271.) In any event, it was not raised, and the claim under the Full Faith and Credit Clause has evaporated, because Ohio merely dealt with property within its borders which Florida had not purported to affect.
Of course we have to go through all this reasoning to determine whether a substantial federal question was raised by reason of Ohio’s disregard of Florida’s decree. The Court not infrequently is required to find its way through a tangled or confused record in order to determine whether a state court judgment turned on a state ground or on a federal ground. In short, the Court has jurisdiction to decide whether it has jurisdiction. But when adequate analysis discloses that a state judgment amply rests on a state ground, we are barred from proceeding to the merits of the alleged federal question. The appropriate disposition is to dismiss the case for want of jurisdiction.
[For concurring opinion of Me. Justice Black, joined by The Chief Justice, Mr. Justice Douglas and Mr. Justice Clark; see next page.]
“This court takes recognition of the fact that litigation is now pending in the state of Ohio relative to the recovery of . . . stocks and bonds as well as the settlement of other matters concerning property rights between the parties. This court recognizes that the courts of Ohio will have the ultimate determination of the question of property rights where the property itself is in the state of Ohio . . .
Compare Burkhart v. Circuit Court, Eleventh Judicial Circuit, 146 Fla. 457, 1 So. 2d 872, and Lucian v. So. Ohio Savings Bank & Trust Co., 156 Fla. 370, 23 So. 2d 674, with Pawley v. Pawley, 46 So. 2d 464 (Fla.), and Sorrells v. Sorrells, 82 So. 2d 684 (Fla.).
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
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200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
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210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer: |
songer_counsel2 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Willie A. WOMACK, Appellant, v. UNITED STATES of America, Appellee.
No. 21629.
United States Court of Appeals District of Columbia Circuit.
Argued March 28, 1968.
Decided May 1, 1968.
Petition for Rehearing En Banc Denied May 24, 1968.
Mr. Jerome H. Simonds, Washington, D. C., (appointed by this Court) for appellant.
Mr. Lawrence Lippe, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker, Asst. U. S. Atty., were on the opposition, for appellee.
Before Bastían, Senior Circuit Judge, and Burger and Wright, Circuit Judges.
PER CURIAM:
After a direct appeal from his criminal conviction had been noted, appellant moved to hold that appeal in abeyance pending disposition by the District Court of a motion under 28 U.S.C. § 2255. The motion filed below alleged denial of due process under the principles announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The District Court refused a hearing on appellant’s allegations, holding that it had no jurisdiction to entertain a Section 2255 motion while a direct appeal was pending in this court. Appellant noted an appeal from this order and has moved for summary reversal.
We are of the view that there is no jurisdictional bar to the District Court’s entertaining a Section 2255 motion during the pendency of a direct appeal but that the orderly administration of criminal law precludes considering such a motion absent extraordinary circumstances. A motion under Section 2255 is an extraordinary remedy and not a substitute for a direct appeal. Moreover, determination of the direct appeal may render collateral attack unnecessary.
In the case at bar, the District Judge properly refused to entertain the Section 2255 motion. Although the trial was held prior to the Supreme Court’s decision in Stovall v. Denno, swpra, and the record on direct appeal may, therefore, be insufficient to warrant reversal of the conviction, this court may nonetheless remand for further proceedings if there appears to be a nonfrivolous Stovall claim. See Wright v. United States, No. 20,153 (D.C.Cir. Jan. 31, 1968). Since such an evidentiary hearing is all that appellant seeks by way of Section 2255, we think that an adequate remedy is available on direct appeal. Appellant would, of course, be free to renew his Section 2255 motion after disposition of the direct appeal, should relief still be necessary.
Motion for summary reversal denied.
. Where tlio District Judge concludes that the motion is or may be appropriate, he may follow the procedure outlined in Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952). See also Smith v. United States, 109 U.S.App.D.C. 28, n. 9, 283 F.2d 607 (1960), cert. denied, 364 U.S. 938, 81 S.Ct. 387, 5 L.Ed.2d 369 (1961).
. Thornton v. United States, 125 U.S.App.D.C. 114, 117-118, 368 F.2d 822, 825-826 (1966).
. United States v. Brilliant, 274 F.2d 618 (2d Cir.), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960) ; Black v. United States, 269 F.2d 38, 41 (9th Cir. 1959), cert. denied, 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); Bell v. United States, 265 F.Supp. 311 (N.D. Miss.1966), aff’d, 375 F.2d 763 (5th Cir.), cert. denied, 389 U.S. 881, 88 S.Ct. 121, 19 L.Ed.2d 175 (1967). Cf. Adams v. United States ex rel. McCann, 317 U. S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
. The only factor in this case running in favor of granting a hearing is that more than seven months had elapsed since sentencing when the District Court refused to entertain the Section 2255 motion. More than seventeen months have now elapsed since appellant’s allegedly improper pre-trial identification. Much of the delay since the conviction is attributable to appellant’s seeking extraordinary relief rather than pursuing his direct appeal.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_altdisp | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
LITTLE SIX CORPORATION, Appellant, v. UNITED MINE WORKERS OF AMERICA, LOCAL UNION NO. 8332, Appellee.
No. 82-1377.
United States Court of Appeals, Fourth Circuit.
Argued Dec. 7, 1982.
Decided Feb. 22, 1983.
Edward G. Stout, Bristol, Va. (James P. Jones, Penn, Stuart, Eskridge & Jones, Bristol, Va., on brief), for appellant.
Gerald F. Sharp, Castlewood, Va., for ap-pellee.
Before WIDENER, HALL and ERVIN, Circuit Judges.
ERVIN, Circuit Judge:
In July, 1981, three members of Local No. 8332 of the United Mine Workers (“the Union”) filed a grievance with the Little Six Corporation (“the Company”), claiming that they had “panel rights” (employment rights) at a mine the Company was operating in Dickenson County, Virginia. The Company responded by obtaining from a state court a temporary injunction forbidding pursuance of the grievance. The Union then removed the case to federal court pursuant to 28 U.S.C. § 1441 and 29 U.S.C. § 185. An evidentiary hearing was held on the Union’s motion to dissolve the injunction. The district court, noting that the state court’s order already had expired, held that the National Bituminous Coal Wage Agreements of 1978 and 1981 (“the Contract”) required the Company to submit the dispute to arbitration, and therefore denied the Company’s motion for injunctive and declaratory relief. We affirm.
I.
In June, 1980, Contracting Enterprises, a mining company in Dickenson County, Virginia, ceased operations and terminated all its employees. Several of the younger employees were hired by the Company to work at a mine about thirty miles from the Contracting Enterprises site. Senior Union members responded by filing a grievance contending that the Company and Contracting Enterprises were in fact the same employer and that the Company was therefore violating their panel rights based on seniority. The Company denied the claim and the matter proceeded to arbitration. The Union presented evidence that the two companies had a substantially integrated operation and that they shared the same executive officer. Nevertheless, the arbitrator denied the grievance because he concluded that the two companies were in fact separate and distinct operations.
In early summer, 1981, the Company began mining operations on or near the old Contracting Enterprises site. Three senior Union members once again filed a grievance, this time arguing that they were enti-tied to panel rights at the old site because the Company was the successor-employer to Contracting Enterprises.
In federal district court, the Company contended that it was not obligated to arbitrate because the issue presented by the current grievance is substantially the same as that decided by the arbitrator in 1980. The Union maintained, and the district court agreed, that the preclusive effect of the 1980 arbitration award was itself arbi-trable. The court, as an alternate ground for its decision, also concluded that the Company had not shown the identity of issues necessary to support applying the bar of res judicata. 537 F.Supp. 216 (W.D.Va. 1982).
II.
Article XXVII of the 1981 Contract under which the current grievants are seeking to proceed states that
The United Mine Workers of America and the Employers agree and affirm that, except as provided herein, they will maintain the integrity of this contract and that all disputes and claims which are not settled by agreement shall be settled by the machinery provided in the “Settlement of Disputes” Article of this Agreement unless national in character in which event the parties shall settle such disputes by free collective bargaining as heretofore practiced in the industry, it being the purpose of this provision to provide for the settlement of all such disputes and claims through the machinery in this contract and by collective bargaining without recourse to the courts.
The Employer, however, expressly authorizes the Union to seek judicial relief, without exhausting the grievance machinery, in cases involving successorship.
The autonomy of the settlement resolution “machinery” (the grievance procedure culminating in arbitration) is specifically guaranteed by Article XXIII(c) which states that “[t]he arbitrator’s decision shall be final and shall govern only the dispute before him.”
It is the clear intent of the parties to the Contract to avoid resorting to litigation in all matters arising under it: “differences ... as to the meaning and application of the provisions of this Agreement, or . .. about matters not specifically mentioned in this Agreement ... [and] any local trouble of any kind” are all to be resolved by the Contract’s “machinery.” Article XXIII(c). In the Steelworkers Cases, the Supreme Court severely restricted judicial intervention into arbitration machinery established by labor-management agreements, stating that the parties should be required to arbitrate “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960). In light of this special canon of labor contract interpretation, it would seem that this issue, like any other arising under the Contract, is arbitra-ble.
The Company responds that the question here is not a substantive labor dispute, but rather a disagreement over the effect of the 1980 arbitral award. The Steelworkers Cases’ solicitude for arbitration, according to the Company, indicates that the district court should have decided the question of the award’s res judicata effect, and decided it in the Company’s favor. Only thus, the Company maintains, can the autonomy mandated for arbitration by the Supreme Court and agreed to by the parties to the 1978 and 1981 Contracts be provided. The Company cites several cases that it claims support its position.
The district court in Todd Shipyards Corp. v. Industrial Union of Marine & Shipbuilding Workers, 242 F.Supp. 606 (D.N.J. 1965), held that the preclusive effect of an earlier arbitral award was a question for judicial and not arbitral resolution, substantially for the reasons, autonomy and finality, advanced by the Company here. The Third Circuit, however, subsequently clearly repudiated the Company’s position and the rationale of Todd Shipyards. That court has stated that “[i]t is the function of the arbitrator, not the court, to decide whether the ‘same question or issue’ had been the subject of [previous] arbitration.” Local 103, Int’l Union of Elec., Radio and Mach. Workers v. RCA Corp., 516 F.2d 1336, 1339 (3d Cir.1975); accord, Westinghouse Broadcasting Co. v. Local 804, Int’l Alliance, 616 F.2d 97 (3d Cir.1980).
Panza v. Arnaco Steel Corp., 316 F.2d 69 (3d Cir.1963), cert. denied, 375 U.S. 897, 84 S.Ct. 174,11 L.Ed.2d 125 (1963), is factually distinguishable from the present controversy. It involved an attack on a previous arbitral award as fraudulently obtained. The appeals court affirmed the district court’s dismissal on res judicata grounds. The Third Circuit’s subsequent decisions in Local 103 and Westinghouse Broadcasting demonstrate the fallacy of the Company’s reliance on Panza.
In the third case cited by the Company, Int’l Chemical Workers Union Local No. 189 v. Purex Corp., 427 F.Supp. 338 (D.Neb. 1977), aff’d, 566 F.2d 48 (8th Cir.1977), the district court assumed, without addressing the issue, that it could decide whether an arbitral award should be accorded preclu-sive effect. The court therefore determined that, in the absence of “a strict factual identity,” res judicata would not apply, and ordered the parties to submit the dispute to arbitration. 427 F.Supp. at 339. The appeals court’s one paragraph per cu-riam simply stated that it was resolving a “single, tightly-drawn issue: Is a party to a collective bargaining agreement bound by an arbitrator’s interpretation of a clause in an identically-worded prior contract although that interpretation was dictum?,” 566 F.2d at 49, and affirmed the lower court’s order. The narrow proposition thus endorsed by the Eighth Circuit is obviously inapplicable to this case.
Not only do the Company’s authorities wilt under examination, but there is solid, well-reasoned case law holding that the preclusive effect of a prior arbitral award is itself a question for arbitration. In addition to the Third Circuit cases mentioned above, the Fifth Circuit has stated that “[w]hether [a prior] award can be given an effect akin to res judicata or state decisis with regard to future disputes ... neither the district court nor this court should decide. If the parties do not agree, that issue itself is a proper subject for arbitration.” New Orleans S.S. Ass’n v. General Longshore Workers, 626 F.2d 455, 468 (5th Cir. 1980), aff’d sub nom. Jacksonville Bulk Terminals, Inc. v. Int'l Longshoremen’s Ass’n., -U.S.-, 102 S.Ct. 2673, 73 L.Ed.2d 327 (1982). The First Circuit also has endorsed this position in a recent decision. See Boston Shipping Ass’n v. Int'l Longshoremen’s Ass’n, 659 F.2d 1 (1st Cir.1981). The district court below in the present case considered the question and adopted the view of the Third and Fifth (and now First) Circuits. We agree.
The core to the Company’s argument is the claim that unless the courts prevent the Union from pressing this grievance, the finality of the 1980 award will be undermined. But this is an unwarranted speculation. “Open to the Union [and, of course, to the Company], before the arbitrator, is the same contention it has presented to the courts, i.e., that the ‘same question or issue’ was previously ‘the subject of arbitration.’ So viewed, finality, consistent with the provisions of the agreement, will be preserved.” Local 103, 516 F.2d at 1341.
It is of course true that numerous cases support the application of res judicata or collateral estoppel when the losing party in an arbitration proceeding seeks to reopen its case in federal court. See, eg., Milos v. Spector Freight Systems, Inc., 464 F.Supp. 754 (M.D.N.C.1979). These cases are clearly distinguishable. Here the victorious party in the prior arbitration has gone into court in an attempt to foreclose arbitration. Cases like Milos stand only for the proposition that courts will hold the parties to a labor contract to their bargain. Here it is the Company, not the Union, which is seeking to escape from its agreement to arbitrate disputes.
III.
We hold that the district court correctly decided that the question of the preclusive effect of the 1980 arbitration award is itself arbitrable. We therefore need not, and should not, reach the question of the 1980 arbitration’s present effect. The decision of the district court is affirmed.
AFFIRMED.
. There is one exception to the exclusiveness accorded arbitration by the Contract: in suc-cessorship disputes (like the present case) the Union is authorized to bypass the grievance machinery and seek judicial relief. See Article XXVII. This exception is plainly of no help to the Company.
Question: Did the court's ruling on an issue arising out of an alternative dispute resolution process (ADR, settlement conference, role of mediator or arbitrator, etc.) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_respond1_1_3 | 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 determine what category of business best describes the area of activity of this litigant which is involved in this case.
TOUPET-TAYLOR ENGINEERING CO. v. RED DOG MFG. & SUPPLY CO.
(Circuit Court of Appeals, Third Circuit.
December 6, 1926.
Rehearing Denied January 26, 1927.)
No. 3397.
1. Patents <§=141 — Enlargement of specifications and claims In reissue held unwarranted, where patentee, with full knowledge, failed to include such matters in original patent.
Where patentee, with full knowledge that unslaeked lime or Portland cement could be used as binder in bricks, confined claims, specifications, and disclosures to unslaeked lime, his patent rights were limited to original disclosure, and subsequent enlargement of specifications and claims in reissue to include Portland cement, on ground of inadvertent mistake, was unwarranted.
2. Patents <@=328 — Reissue No. 15,829, for making brick and hollow tile, held invalid.
Engélbrecht’s reissue, No. 15,829, for making brick and hollow tile by use of Portland cement as binder, held invalid.
' Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
Patent infringement suit by the ToupetTaylor Engineering Company against the Red Dog Manufacturing & Supply Company. Bill dismissed, and plaintiff appeals.
Affirmed.
Charles M. Clarke, of Pittsburgh, Pa., for appellant.
George E. Stebbins and Byrnes, Stebbins & Parmelee, all of Pittsburgh, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
This case concerns the making of brick and hollow tile from “red dog,” .a by-product of bituminous coal mining. In such operation great quantities of slate and other strata near the coal have to be mined in connection with the coal, by reason of the thinness of the coal vein. This worthless substance is dumped in huge piles near the pit mouth, where it often takes fire by spontaneous combustion and the burning produces a substance, equally worthless, which the miners call “red dog.” The proofs in the ease show that some of this red dog was sent to one Engelbr'eeht, whose patent is here involved, with a view to ascertaining whether it could be used in making fireproof bricks. He experimented and found that, when used in proper proportions with Portland cement, it could be made into bricks having very desirable qualities, and he made some sample bricks by the use of such ingredients. He also found it was possible to< use imslacked lime as a binder and he made bricks of those ingredients.
After thus demonstrating the practical possibility of each of the binders, viz. Portland cement and unslaeked lime, he, on May 25, 1921, made application for, and on July 24, 1923, was granted, patent No. 1,462,596 for slate bricks. Why he did so is inexplicable but for some reason he made no disclosure in his specification that Portland cement could be used as a binder, but confined his disclosure to the use of unslaeked lime. His specification made no suggestion of the use of any other binder than unslaeked lime, and his claims were limited, respectively, to unslaeked lime, viz. “a proportionately small amount of unslaeked lime,” and “from 3 to 5 per cent, of unslaeked lime.” The disclosure of his specification was that after describing red dog, the proportions to be used and preliminary grinding thereof were as follows: “I then add a small proportion of unslaeked lime, in the neighborhood of from 3 to 5 per cent.; the greater the percentage of lime, the stronger the brick;” and “my invention consists in part in grinding this mixture properly, the object being to much more thoroughly mix the substances by grinding in conjunction with < the proper amount of water, so as to cement together with the lime as great a surface area of the grains of slate as is possible, thereby making the brick stronger and less liable to be disintegrated by intense heat. * * * The grinding, however, is carried on while the mixture is still moist and the lime is slacking, and it is continued until a coherent mass is formed, which will not crumble apart when pressed together.”
It will thus be seen the case is not one where, for example, an inventor had found a single binder for his mixture, and had disclosed all he knew about binders, but had mistakenly confined his claim to that particular binder, or where he had suggested the possible use of some other bind of binder; but the case is one where, with full knowledge and the practical demonstration’ that each of two binders could be used to produce red dog bricks, he confined his claim, specification, and disclosure to one binder, and neither disclosed the other binder nor told of its possible use. So far as his patent is concerned, the public at the end of 17 years would still remain ignorant of the possibility of the use of Portland cement.
In view of the full knowledge of Engelbrecht of the use of such cement, and his making neither disclosure nor claim of it, there was no basis for a reissue on the ground of “inadvertence, accident, or mistake,” so as to then disclose and elaim cement as a binder, and thereby make infringers of cement users, such as the defendant, who were not so when Engelbrecht’s patent was issued. Oh the contrary, the case is one where, with full knowledge of the use of Portland cement in connection with “red dog,” Engelbrecht saw fit not to disclose such demonstrated use, and asked for claims limited to his disclosure of lime as a binder. Under such facts, his patent rights were limited to what his original disclosure showed, and the subsequent enlargement of his specification and addition of claims, in his reissue No. 15,829, so as to cover Portland cement, must be adjudged unwarranted and invalid.
So holding, the decree of the court below, dismissing the plaintiff’s bill, is affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer: |
songer_origin | D | 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.
BRIGGS v. HUNT, ELLIS & CO. et al. Petition of BRIGGS.
(Circuit Court of Appeals, First Circuit.
February 2, 1926.)
Nos. 1927, 1937.
1. Bankruptcy <§=¿>465 — Appeal dismissed! on same matter coming before court on petition to revise.
Appeal from decree affirming order of referee in bankruptcy limiting time for filing reclamation claims will be dismissed, where matter is also before the court on petition to revise the same decree.
2. Bankruptcy <§=¿>446 — Question of authority to enter order not considered on petition of one not adversely affected.
Question of authority of referee in bankruptcy before adjudication to limit time to file reclamation petitions will not be considered; no right of petitioner, so far as disclosed, being adversely affected, he not alleging that he was thereby prevented from filing any such petitions, and it appearing that he did file two within the time limited.
Appeal from and Petition to Revise the Proceedings of the District Court of the United States for the District of Massachusetts; James Arnold Lowell, Judge.
In the matter of Hunt, Ellis & Co. and others, bankrupts. Walter S. Briggs appeals from a decree affirming an order of the referee, and files petition to revise the same decree.
Appeal and petition dismissed.
Mark M. Horblit, of Boston, Mass. (Herbert A. Baker and Horblit & Wasserman, all of Boston, Mass., on the brief), for appellant and petitioner.
Daniel J. Lyne, of Boston, Mass., pro se.
Lee M. Friedman, of Boston, Mass. (Friedman, Atherton, King & Turner, of Boston, Mass., on the brief), for other appellees and respondents.
Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.
BINGHAM, Circuit Judge.
No. 1927 is an appeal from a decree of the federal District Court for Massachusetts affirming an order of a referee in bankruptcy limiting the time for filing reclamation claims in a bankruptcy matter where, before adjudication, composition had been offered and accepted by a majority of the creditors, but as yet not approved by the court.
No. 1937 is a petition to revise in matters of law the same decree from which the appeal was taken in the previous case.
The matter is.properly before us on petition to revise, and the appeal should be dismissed.
It appears that on August 10,1925, an involuntary petition in bankruptcy was filed against William Hunt and L. Guy Dennett, copartners carrying on a stock and brokerage business under the name of Hunt, Ellis & Co.; that on October 12, 1925, the alleged bankrupts filed a petition for composition; that on October 13, 1925, the ease, with the petition, requesting a meeting of creditors to consider the offer of composition, was referred to the referee in bankruptcy, “to take such further proceedings therein as are authorized by the act and as in his judgment .may be necessary or advisable for the preservation of the estate or business of the alleged bankrupt, including the appointment of receivers and appraisers, if necessary; to hear and determine all matters of fact relating to said meeting and the proposed offer in composition; to call such meetings, give such notices, and make such further orders as may be necessary in the premises while said petition and offer in composition are pending, and to file his report under this order within 40 days hereafter”; that on October 17, 1925, notice of a meeting to consider the composition was duly given; that' at said meeting held October 30, 1925, on motion of counsel for the alleged bankrupts, the referee fixed December 30, 1925, as the time on or before which claims in the nature of reclamation or in the nature of impressing funds with a trust must be filed, which order was later reduced to writing, notice of which was mailed to all creditors on November 4, 1925; that said order, after setting out the name of the ease and the motion of counsel, the time when and the circumstances under which the oral order was made, reads as follows:
“It is hereby ordered that the time on or before which persons in interest herein may herein file any proceeding in reclamation, in the nature of reclamation or in the nature of impressing with trust securities or funds within the jurisdiction of this court, be and the same hereby is fixed at December 30, 1925, being sixty (60) days from the date hereof and it is further ordered that all persons in interest failing on or before such date to file any such claim be forever thereafter barred from filing the same herein.”
On November 11, 1925, the present petitioner filed a petition to review said order by the District Judge, and on November 23, 1925, the District Judge, having reviewed the order, entered a decree dismissing the pefcition and affirming the order of the referee. No order of 'adjudication has been entered, and the petition for composition is still pending before the referee. It further appears that the petitioner had, within the time fixed by said order, filed in said proceeding two or more petitions for reclamation.
The contention on the part of the petitioner is that the court erred in affirming the order of the referee on the ground that the latter had no authority to enter the order before adjudication.
We are unable to see wherein the petitioner, in view of the facts set out in his petition, is in any way aggrieved by the order. The petition does not allege that he has been prevented by the order from filing such reclamation petitions as he deemed necessary, and the answer to the petition discloses that he has “within the time fixed therefor by said order filed two petitions in the nature of reclamation, one on December 1, and the other on December 30, 1925.”
We listened with interest to the extended arguments of counsel and have spent much time examining the eases called to our attention as bearing on the question argued, but as no right of the petitioner, so far as the facts disclose, is adversely affected by the order, we do not feel called upon to consider it.
It may be doubtful whether the order properly construed operates further than to preclude the filing of reclamation claims in the bankruptcy proceeding after the date fixed by the order and to bar proceedings against the receiver individually in ease he turned over the estate to the bankrupts with knowledge of outstanding reclamation claims which had not been seasonably filed, a composition having been confirmed. It would seem, however, that to this extent it would operate to preclude the filing of claims thereafter and as a bar, and that the District Court had jurisdiction to enter such an order. It will be sufficient to consider the question whether the District Court, after a petition for composition has been filed, either before or after adjudication, has jurisdiction to enter an order barring reclamation claims as against the debtor, not presented within the time limited, when a case presenting the question is before us.
It is one thing to say that adverse claimants to property in the custody of the bankruptcy court may have their rights determined in that court, pending a composition, and quite another to say that a bankrupt debtor may, distribution of the estate being suspended by a pending composition, compel such adverse claimants to have their rights in the property determined in that court or be thereafter barred.
In No. 1927, Briggs v. Hunt, Ellis & Co., the appeal is dismissed without costs. No. 1937, Walter S. Briggs, Petitioner, the petition is vdismissed, with costs to the respondents.
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_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.
Harry Earl POLLARD, by next friend, Sol G. Cherry, Appellee, v. William Patrick FENNELL and Tillie Michel Fennell, Appellants.
No. 12077.
United States Court of Appeals Fourth Circuit.
Argued May 7, 1968.
Decided July 18,1968.
F. T. Dupree, Jr., Raleigh, N. C., (David R. Cockman, and Dupree, Weaver, Horton, Cockman & Alvis, Raleigh, N. C., on brief) for appellants.
Joe McLeod, Fayetteville, N. C., (Quil-lin, Russ, Worth & McLeod, Fayetteville, N. C., on brief) for appellee.
Before HAYNSWORTH, Chief Judge, and SOBELOFF and WINTER, Circuit Judges.
WINTER, Circuit Judge :
In a jury trial in which liability was conceded, plaintiff, an eighteen-year-old minor, was awarded judgment for $42,-500 for a permanent one-inch shortening of his right leg and for pain and suffering as a result of an accident which occurred when he was approximately sixteen years old. At that time, plaintiff, a pedestrian, was struck by a motor vehicle owned by one defendant and operated by the other. In the action no claim was made for medical expenses or for loss of services during minority. Defendant in appealing assigns as error (a) the manner in which the district judge conducted the trial, his interrogation of witnesses and his repetition of testimony favorable to plaintiff, (b) the district judge’s limitation on defendants in the efforts of their counsel to cross-examine plaintiff on the basis of his pretrial deposition, and (c) the district judge’s interruption of defendants’ counsel’s closing argument and his admonition. The amount of the verdict, standing alone, does not shock us, but we are constrained to reverse the judgment and award a new trial because of the district judge’s improper and unwarranted participation in the trial.
To treat defendants’ contentions in inverse order, we see no merit in the claim of error in the interruption of closing argument. In the case liability was conceded. Yet in closing argument defendants’ counsel told the jury “We hope that our fairness and our approach to the whole thing has been evidenced by our giving up the right to show that this was, indeed, a pure accident and one that couldn’t be helped. We hope that — .” Quite properly, we think, the district judge interrupted the argument and told the jury that there was no evidence at all that the accident could not be helped. In advising counsel that he would not permit the argument that the accident was unavoidable after the driver (William Patrick Fennell) pleaded guilty to responsibility for the accident and both defendants admitted liability at the trial, the district judge correctly exercised his function as governor of the trial.
The district judge did unduly limit defendants’ counsel in his cross-examination of plaintiff, but we cannot say that the limitation, as such, constituted reversible error. On cross-examination, counsel asked plaintiff in regard to pain experienced during his hospitalization whether the pain continued for about two weeks. Plaintiff replied that the pain persisted for over two weeks. After an exchange with the district judge, in which the latter volunteered that “there is no question in my mind he hurt all the time for a long period of time,” counsel attempted to interrogate plaintiff about his deposition testimony that the pain' he experienced in, the hospital continued “not long” and specifically “about two weeks.” The district judge interrupted the interrogation, ruling “You want to introduce his deposition, introduce it, let the jury read it,” gratuitously and incorrectly observing “there is no evidence that this boy has changed his story in the slightest.” After counsel voiced an objection, the district judge repeated his erroneous comment, saying “I am not going to let you infer or make a statement that the boy has changed his story when there isn’t a bit of evidence to indicate that he has.”
Ordinarily, counsel should be permitted to interrogate a party or a witness on the basis of his deposition about apparent inconsistencies between his testimony in court and his testimony on deposition with regard to all matters relevant to the issues at trial. There was an apparent inconsistency in plaintiff’s testimony on the two occasions in regard to the duration of pain in the hospital, an item of injury for which recovery was sought, and counsel should have been permitted to inquire. Plaintiff’s deposition, under Rule 26(d) (2), Fed.R.Civ.Proc., because he was a party, could be used by defendants for any purpose. While we neither commend nor approve of the district judge’s failure to observe the provisions of Rule 26(d) (1), Fed.R.Civ.Proc., that a deposition “may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness,” defendants’ counsel could have achieved the same practical result by adopting the suggestion of the district judge and offering plaintiff’s deposition so that he could call to the jury’s attention plaintiff’s apparently inconsistent statement. This counsel failed to do, and we conclude that the district judge’s error in this regard was not sufficiently prejudicial to warrant reversal. However, more basic and fundamental considerations do require that result.
As we have adverted to in our discussion of defendants’ counsel’s argument to the jury, in this circuit the rule is well-established that the district judge is the governor of the trial. United States v. Chase, 372 F.2d 453 (4 Cir. 1967); Fields v. United States, 370 F.2d 836 (4 Cir. 1967); United States v. Godel, 361 F.2d 21 (4 Cir. 1966); Wallace v. United States, 281 F.2d 656 (4 Cir. 1960), cert, den., 370 U.S. 923, 82 S.Ct. 1564, 8 L.Ed.2d 503 (1962); Simon v. United States, 123 F.2d 80 (4 Cir.), cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941). This is so because he is the only disinterested lawyer connected with the proceeding; his only interest is to see that justice is done.
As the only disinterested lawyer whose only interest is to see that justice is done, and especially as one who, in the eyes of the jury, occupies a position of preeminence and special persuasiveness, the district judge must be assiduous in performing his function as governor of the trial dispassionately, fairly and impartially. On this record we regret that the district judge fell short of the required standard. By acting, not as a disinterested prober for the truth, but as an advocate and, in addition, by acting as a witness, he created a record from which we must infer that defendants and the jury, with justification, concluded that he unduly favored plaintiff over defendants in regard to the point in issue. A recitation of parts of the record show the basis for these conclusions.
First, the record shows that repeatedly and consistently the district judge was not content to permit counsel to interrogate the witnesses, and the record discloses no reason why the excessive intervention of the district judge in this regard was necessary. We agree with the statement of the Third Circuit that:
“Where both sides are represented by eminently competent counsel we think it important that the court minimize its own questioning of witnesses, to the end that any such judicial departure from the normal course of trial be merely helpful in clarifying the testimony rather than prejudicial in tending to impose upon the jury what the judge seems to think about the evidence.” Groce v. Seder, 267 F.2d 352, 355 (3 Cir. 1959).
More objectionable was the fact that the district judge’s questions were usually leading in form. It must be remembered that this was a trial before a jury, and the impact of a question by the court on both the witness and the jury, together with the natural reluctance of counsel to object to the court’s questions, which is even greater when the questioning is in the presence of a jury, should not be underestimated. See, In re United States, 286 F.2d 556 (1 Cir. 1961).
In the margin we set forth part of the direct examination of the plaintiff by his own counsel. Aside from apparently unnecessary interrogation by the district judge, a close reading of the remarks shows that the district judge supplied the testimony that plaintiff was “strapped down to the bed,” that “this cast [was] clear up to the shoulder and all the way down” and that plaintiff was “in a solid cast from the chest down.” In assuming a role as witness, the district judge far exceeded his function as judge.
Advocacy on the part of the district judge was also exhibited in his apparent impatience to bring to the attention of the jury demonstrative evidence of the extent of plaintiff’s injuries, as the following extract from the record shows. Again, we add, the record shows no reason why the intervention of the district judge at this part of the examination of the plaintiff by his counsel was necessary. Groce v. Seder, supra.
We have adverted to the district judge’s misstatement of the contents of plaintiff’s deposition in regard to the' duration of the period that he experienced pain while in the hospital. If' the aura of impartiality on the part of' the district judge had not been diminished up to this point in the trial, it was. demolished in the full exchange which, took place.
Again, the district judge acted as witness. He made his position crystal clear that, irrespective of the evidence, plaintiff’s pain persisted over a considerable period of time; worse, he depicted counsel for defendants as taking an unfair advantage when counsel undertook only to represent his clients’ interests and sought to inquire about a manifest inconsistency between plaintiff’s testimony and his earlier deposition.
We conclude that the manner in which the district judge conducted the trial in the instances set forth ineluctably had its influence on the jury to the prejudice of defendants. Notwithstanding their admission of liability, defendants are entitled, in a new trial, to the fair and impartial assessment of plaintiff’s damages, which they were denied.
Reversed and remanded.
. In the earliest statement of the rule, in this circuit, Judge Dobie said:
“ * * * It cannot be too often repeated, or too strongly emphasized, that the function of a federal trial judge is not that of an umpire or of a moderator at a town meeting. I-Ie sits to see that justice is done in the cases heard before him; and it is his duty to see that a case on trial is presented in such way as to be understood by the jury, as well as by himself. He should not hesitate to ask questions for the purpose of developing the facts; and it is no ground of complaint that the facts so developed may hurt or help one side or the other. * * * The judge is the only disinterested lawyer connected with the proceeding. He has no interest except to see that justice is done, and he has no more important duty than to see that the facts are properly developed and that their bearing upon the question at issue are clearly understood by the jury.” Simon v. United States, 123 F.2d 80, 83 (4 Cir.). cert, den., 314 U.S. 694, 62 S.Ct. 412, 86 L.Ed. 555 (1941).
. DIRECT EXAMINATION OF HARRY EARL POLLARD
By Mr. McLeod:
Q. Okay. What if any treatment did you receive while you were in the hospital?
THE COURT: Just tell the jury, son, in your own words, not technical, what you remember of how they had you in bed, what they did to you, just in boy’s language; don’t worry about doctor language; they will tell that when they get here. Tell them what they did to you. Did they keep you in bed or have you stretched out?
THE WITNESS: Yes, sir.
THE COURT: Tell the jury.
THE WITNESS: I remember waking up in a operating room where they had taken a steel pin and run it through my right knee through the bone and afterwards fell asleep and woke up pulling my leg down at the foot of the bed and the head of the bed, and my left leg was in traction. THE COURT: How long did they keep you in bed when you were under traction, couldn’t move?
THE WITNESS: From the night I got hit until sometime in January. THE COURT: From November until January they had you in, strapped doion to the bed where you couldn’t move?
THE WITNESS: Yes, sir.
THE COURT: All right.
Go ahead.
Q. How long were you in the hospital bed at your home?
THE COURT: So the jury will thoroughly understand, was this oast clear up to the shoulder and all the way doion, you couldn’t move?
THE WITNESS: No, sir.
THE COURT: Somebody had to carry you or move you, you couldn’t walk or move at all?
THE WITNESS: I could.
THE COURT: Move your arms, but you couldn’t move your body or hips or anything, could you?
THE WITNESS: No, sir.
THE COURT: All right.
So the jury understands he was in a solid cast from the chest down. All right. Go ahead.
(emphasis supplied)
. CONTINUATION OF DIRECT EXAMINATION OF MR. POLLARD
By Mr. McLeod:
Q. What is the condition of your leg at this time?
A. I can’t bend my right leg all the-way back and it is an inch shorter.
THE COURT: Get down and show the jury. Get down and show them where you can’t bend it and how, so-walk in front of them. Pull your trousers up and let them see it if you. want to, I mean if they can’t.
MR. McLEOD: Take your pants off.. THE COURT: Let him do whatever he wants to.
MR. McLEOD: Take your pants off if you will and show the jury your right leg. You might take your shoes: off.
THE COURT: He can walk up there and let you look at it.
MR. McLEOD: Take your shoes off and your pants all the way off so you won’t trip.
(Witness complied)
MR. McLEOD: You walk down here. (Witness complied)
THE COURT: Stop right there. Let them look over, the jury can. You point out to them, son, about the knee and bend it, show them where the trouble is.
THE WITNESS.: Right there is as far as I can bend the leg, (demonstrating) .
THE COURT: In other words, you can’t sit down or squat all the way down.
THE WITNESS: No, sir.
. CROSS-EXAMINATION OF MR. POLLARD
By Mr. Dupree:
Q. And that went on for about two weeks, didn’t it?
A. Longer than that.
Q. About two weeks?
THE COURT: Let’s be fair with the boy. It went on for a year. What do you mean two weeks, Mr. Dupree? I can’t be operated on — I don’t care what he said in that deposition.
MR. DUPREE: I follow it with some questions.
THE COURT: Yes, sir. But I don’t want you to take this young boy like this and say he only had two weeks of pain when he was in a cast from his chest down to his toes for four months and then went back for two operations, and there is no question in my mind he hurt all the time for a long period of time. You take it from there. There isn’t any question about it.
MR. DUPREE: No, sir.
THE COURT: Is there?
MR. DUPREE: Your Honor, I would just like to ask him the length of time over which he experienced this pain. THE COURT: You can aslc him, hut I will tell the jury to use their own experiences on that. I am not going to alloio this young hoy loho obviously doesn’t know if he is under medication to have the record show that he only had tico loeeks of pain on a broken leg of this type and the time that he was in the cast and coming hack a year later and wheel chair. You know it isn’t right yourself. And he had to have a cast to sleep on at night. I mean I want the jury to get the facts. Go ahead.
MR. DUPREE: Yes, sir.
Q. Your deposition in this case was taken by me on the eleventh of March, 1967, wasn’t it?
A. I think so.
Q. And at that time you were asked questions concerning your injury, were you not?
A. Yes, sir.
Q. Is your recollection of how you felt at that time as good as it is now?
A. When I was sitting down talking to you my leg was hurting.
Q. The question, sir, is whether or not your recollection of how you had felt in the hospital and everything at the time when your deposition was taken was as good as it is now?
A. No, sir.
Q. What have you done since that time to refresh your recollection or make you know anything more about it than you did at that time?
THE COURT: Mr. Dupree, wait a minute, I am not going to permit this. That is not fair at all. You want to introduce his deposition, introduce it, let the jury read it. I mean there is no — this boy — there is no evidence that this hoy has changed his story in the slightest. There isn’t. I am not going to stand still for it on this kind of a case. This is an infant.
MR. DUPREE: May I have an exception ?
THE COURT: You may have all the exceptions you want.
MR. DUPREE: Yes, sir.
THE COURT: Yes, sir.
But I want the record to show that this is an infant, and I am not going to let you infer or make a statement that the hoy has changed his story when there isn’t a hit of evidence to indicate that he has.
(emphasis supplied)
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_applfrom | J | 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).
ITEN LEASING CO., a Minnesota corporation, Appellant, v. BURROUGHS CORPORATION, a Michigan corporation, Appellee.
No. 81-2323.
United States Court of Appeals, Eighth Circuit.
Submitted June 15, 1982.
Decided July 28, 1982.
James F. Finley, Alan W. Weinblatt, St. Paul, Minn., for appellant.
Joseph T. Dixon, Jr., Bruce C. Recher, Henson & Efron, P.A., Minneapolis, Minn., for appellee.
Before ROSS, Circuit Judge, HENLEY, Senior Circuit Judge, and STEVENS, District Judge.
The Honorable Joseph E. Stevens, Jr., United States District Judge for the Western and Eastern Districts of Missouri, sitting by designation.
ROSS, Circuit Judge.
Iten Leasing Company (Iten) appeals a judgment of the district court which failed to find Burroughs Corporation (Burroughs) liable for misrepresentation, fraud and breach of express warranty in the sale of a computerized accounting system to Iten but rather found Burroughs liable only for damages in regard to two devices sold as part of the system. We affirm.
On April 1, 1974, Iten purchased a Burroughs L-8500 accounting machine, internal memory for the system, a data-save device and a reader/feeder/stacker (R/P/S) attachment. Iten also purchased software support including an amortization and depreciation program, an accounts receivable program and standard Burroughs payroll and general ledger programs. In late June 1974, the L-8500 was delivered to Iten and Iten used the L-8500 for its payroll from July 1974 until July 1975 when it discontinued use of the equipment. During July, August and early September 1974, Burroughs delivered and installed the general ledger program and the billing and accounts receivable programs used by a Salt Lake City leasing company. In November 1974 the R/F/S attachment was delivered and installed.
On July 14,1975, Iten notified Burroughs that it was discontinuing use of the accounting system due to numerous problems and demanded rescission of the contracts of sale.
The magistrate found that the R/F/S never worked satisfactorily and adjustments to the R/F/S worked only temporarily. The magistrate also found that the data-save device failed to operate properly except on two occasions and Burroughs was unable to correct the problem during the time the system was in use. The magistrate held that Burroughs knew or should have known that its representations as to the R/F/S and data-save device on which Iten relied were false. The magistrate held that these misrepresentations were material to the purchase of the R/F/S and data-save device but were not material to the purchase of the total accounting system. The magistrate recommended that Iten be awarded the cost of the R/F/S and data-save device plus an additional $400 for an amortization and depreciation schedule which Iten never received.
A. Review of the Magistrate’s Recommendations
Iten contends that the district court erred in adopting the magistrate’s conclusions of law without reviewing the trial transcript.
On August 1, 1979, the parties filed a stipulation that this case could be tried before the United States magistrate and the parties expressly waived their right to object to the magistrate’s recommended order, agreeing that any appeal would be directly to this court. The district court accepted the stipulation and ordered that the case be tried before the magistrate. However, the district court indicated that although the parties’ waiver of review by the district court of the findings of fact would be ordered, the parties would have the right to object to the magistrate’s recommended conclusions of law and order of judgment. The district court apparently allowed review of the conclusions of law based on this court’s opinion in Duryea v. Third Northwestern National Bank, 602 F.2d 809 (8th Cir. 1979). In Duryea, this court held that Rule 53(e)(4) of the Federal Rules of Civil Procedure allowed the parties to stipulate to the finality of the magistrate’s findings of fact but that questions of law should be reviewed by the district court. Id..at 810.
Considering that the district court was only called upon to review the magistrate’s recommended conclusions of law, we fail to see the relevancy of the trial transcript to the review of written conclusions of law. Iten has attempted to mischaracterize many issues of fact as issues of law. Iten is apparently trying to avoid the clear terms of the stipulation and the subsequent order of the district court. In any event, Iten’s waiver of objection to the district court regarding the magistrate’s findings of fact does not affect our review of those findings of fact under the clearly erroneous standard.
B. Representations of Future Acts
Iten concedes that the magistrate correctly stated the eleven elements necessary to prove fraud under Minnesota law as outlined in Clements Auto Co. v. Service Bureau Corp., 444 F.2d 169, 175 (8th Cir. 1971). Iten contends, however, that the magistrate erred in finding that certain representations were representations of future acts rather than, as required under Clements, representations of “past or present fact.” Id. at 175. The five representations Iten alleges were not regarding future acts are as follows:
1) Burroughs’ representation that an in-house ledger card would provide a month-to-month profit analysis of each leased vehicle.
2) A representation that Iten would receive an amortization schedule.
3) A representation that Burroughs would provide a flow chart and written instructions to Iten.
4) A representation that Burroughs would support Iten’s personnel to obtain an efficient operation of the equipment.
5) A representation that Burroughs’ system would satisfy Iten’s needs.
As to these representations, we have reviewed the record and hold that the factual findings of the magistrate as to “future acts” are not clearly erroneous. Other factual findings influence our review of these representations regarding future acts. The magistrate held that Iten’s evidence failed to establish as false Burroughs’ representation that its system would accomplish the objectives, needs and requirements of Iten. The evidence established that Burroughs had explained to Iten the difference between more expensive, custom programs and the package programs Iten chose to order. The magistrate found that both parties recognized that modifications to the package programs would be necessary, noting that Burroughs had successfully modified the programs. Although there was evidence which might support a finding that the representations regarding a profit figure, an amortization schedule, and general support of the system were representations of past or present fact, we cannot say that the magistrate’s view of the evidence was clearly erroneous. It also is important that in each instance where the magistrate found a representation regarding a future act, he also held that there was no evidence that Burroughs did not intend to perform that representation at the time it was made. See Northwestern State Bank v. Gangestad, 289 N.W.2d 449, 453 (Minn.1979) and Vandeputte v. Soderholm, 298 Minn. 505, 216 N.W.2d 144, 147 (1974). This finding is also supported by the evidence.
Iten also argues that this case is factually similar to the Clements case where this court found that a computer company had fraudulently misrepresented, as fact rather than as simple prediction, that their system “ ‘would constitute an effective and efficient tool to be used in inventory control.’ ” Clements, supra, 444 F.2d at 181. In contrast to Clements, however, the magistrate held that Iten failed to prove that Burroughs’ representation that its system would accomplish Iten’s objectives, needs and requirements was false.
C. Materiality of the Misrepresentations
Iten argues that the magistrate erred in determining that the misrepresentations regarding the data-save device and R/F/S were not material to the purchase of the accounting system, thus limiting Iten’s damages to the cost of the R/F/S and data-save device. The determination of whether there has been a misrepresentation of a material fact is a factual question. Strouth v. Wilkison, 302 Minn. 297, 224 N.W.2d 511, 513 (1974). Minnesota law also limits damages for misrepresentations “to the actual out-of-pocket loss sustained by the plaintiff as a proximate result of the defendant’s fraud and the purchaser’s reliance thereon.” Id. at 514.
The magistrate’s memorandum made the following factual findings regarding materiality:
Having found some of the representations to be false, it must be determined if they were material. Plaintiff operated defendant’s system for several months before the R/F/S was delivered, and for several months after plaintiff ceased using the R/F/S because of its defects. When the data-save device failed, plaintiff at first was required to have defendant’s service man restart the system and later, after instructions by defendant’s employees, restart the machines themselves. Delay in each instance was brief.
Plaintiff wanted to eliminate delay in obtaining financial information and to obtain hard copies of financial records, including individual leases. While the R/F/S was an important factor in influencing plaintiff to decide to purchase the system, neither it nor the data-save device was at the heart of plaintiff’s decision to undertake a new accounting system. Therefore, neither of the representations were material [to the purchase of the system] and plaintiff has failed to establish its claim for misrepresentation.
Iten argues that the R/F/S and data-save device cannot be separated from the system as a whole and any material misrepresentation affected the system as a whole. However, we do not believe the magistrate’s findings are clearly erroneous. As the magistrate noted, Iten used the accounting system both before and after the R/F/S’s failure. Additionally, the magistrate found that Burroughs’ representation that the system would accomplish Iten’s needs and objectives was not shown to be false. In view of these facts we do not find error in the magistrate’s findings that the failure of the R/F/S and data-save device was not material to the system as a whole. Thus, the magistrate could properly limit damages to those proximately caused by the failure of the R/F/S and data-save device and award only the purchase price of the R/F/S and data-save device.
D. Revocation of Acceptance
Iten contends that under Minn.Stat. § 336.2-608 its acceptance of the accounting system could be revoked. The Minnesota Supreme Court has stated the following:
Section 336.2-508 prescribes the following requirements for an effective revocation of acceptance: (1) the goods must be nonconforming; (2) the nonconformity must substantially impair the value of the goods to the buyer; (3) the buyer must have accepted the goods on the reasonable assumption that the nonconformity would be cured; (4) the nonconformity must not have been seasonably cured; (5) the buyer must notify the seller of his revocation; (6) revocation must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects; and (7) the buyer must take reasonable care of the goods for which he has revoked acceptance.
Jacobs v. Rosemont Dodge-Winnebago South, 310 N.W.2d 71, 76 (Minn.1981), quoting Durfee v. Rod Baxter Imports, 262 N.W.2d 349, 353 (Minn.1977).
The magistrate found that the failure of the R/F/S and data-save device did not substantially impair the value of the system and that the notice of revocation did not occur within a reasonable time. The same facts cited in part C of this opinion regarding materiality support the magistrate’s finding regarding a lack of substantial impairment. Regarding the timeliness of the July 1975 revocation notice, the magistrate found that the last contact between the parties prior to the revocation was a phone call in early March 1975. During the phone call Iten’s employee stated the system was in use and was performing more satisfactorily. Iten’s employee made no request for further changes or corrections in the system. These facts are supported by the record and the findings of the magistrate regarding the timeliness of the revocation are not clearly erroneous.
Affirmed.
. Trial was held before United States Magistrate J. Earl Cudd. The recommendations of the magistrate were adopted and judgment was entered by the Honorable Harry H. MacLaugh-lin, United States District Judge for the District of Minnesota.
. The court in Duryea v. Third Northwestern National Bank, 602 F.2d 809 (8th Cir. 1979) also noted that legislation was pending which would enlarge the jurisdiction of the United States magistrates. Id. at 810 n.2. Such legislation was subsequently passed, and effective October 10, 1979, the parties by agreement may appeal the final judgment of the magistrate directly to the United States court of appeals. See 28 U.S.C. § 636(c)(3) and Robinson v. Moreland, 655 F.2d 887, 888 (8th Cir. 1981).
. Although the magistrate found this representation to be regarding a future act, the magistrate did recommend that Iten be awarded $400, the cost of the amortization schedule, because it was never delivered.
. The magistrate also found that it was unclear whether the representation regarding the flow chart was ever made and Iten failed to sustain its burden of proof as to this representation.
. It should be noted that one of Iten’s major problems with the system was in regard to inaccurate age analyses and late charge calculations. The magistrate found that these inaccuracies were attributable to Iten’s employees failing to properly record information, rather than problems with the system or Burroughs’ training of the employees.
. Prior to purchasing the Burroughs system Iten sent its accounting information to a Chicago firm and there was a 5-6 day delay before accounting reports were received by Iten from the firm.
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_usc1sect | 27 | 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 11. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
In re FOSTER CONST. CORPORATION. Appeal of POPKIN.
No. 431.
Circuit Court of Appeals, Second Circuit.
June 24, 1931.
See, also, 49 F.(2d) 213.
Louis Jersawit, of New York City, for appellant.
Leo J. Linder, of New York City, for creditor-appellee and intervener trustee in bankruptcy.
Before MANTON, SWAN, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
The appellee is a creditor of the bankrupt, which was adjudicated such on failure to answer a petition filed against it on September 23, 1929, in the Eastern district of New York. The trustee qualified June 30, 1930. Appellee, on January 27, 1930, procured an order in the Eastern district of New York for the arrest of the appellant, president of the bankrupt. The order of arrest was based on a petition of Mr. Lind-er, appellee’s attorney, and the affidavit of one Satloff. On December 4, 1930, on the sole petition of the appellee, the bankrupt’s trustee not joining therein, a District Judge in the Eastern district of New York authorized and empowered the appellee “to apply to the United States District Court for the Southern District of New York and for the District of New Jersey, and for an ancillary order of examination of such witnesses within the jurisdiction of said courts as may be necessary as to the acts, conduct or property of the bankrupt corporation herein, and for orders ne exeat directed to the Marshals for the Southern District of New York and for the District of New Jersey.”
On the same day, appellee, on its sole petition, without the trustee joining therein, obtained ex parte, in the Southern district of New York, an ancillary order ne exeat, and an ancillary order for the examination of the appellant before a special commissioner in bankruptcy was signed. It was therein ordered : “That the United States Marshal for the Southern District of New York, or any of his deputies, be and he is hereby commanded that, without delay, he apprehend and take into custody Joseph Popkin, an officer of the bankrupt corporation above named, and bring him forthwith before me for examination or, at his option, cause him to give sufficient bail or security in the sum of $10,-000 to be approved by this Court or the Clerk thereof, that he, the said Joseph Popkin, will not depart from or go, or attempt to depart from or go beyond the territorial juiisdietion of this Court without its leave, and will at all times and in all manner, respect and things, obey and comply with the lawful orders and decrees of the Court herein for his examination, which shall or may be made on behalf of the said petitioner or other creditor of the said bankrupt.”
A warrant of arrest was executed by the marshal in the Southern district, and the appellant taken into custody^ Appellant furnished the required bail, and moved to vacate the ancillary order ne exeat. Prom an order denying this motion, this appeal is taken.
It is conceded that the order ne exeat was made pursuant to such authority as is found in section 2, subd. 15, of the Bankruptcy Act, 11 USCA § 11 (15). It provides: “That the courts of bankruptcy * * * are hereby invested * * * with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings * * * [to] (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this title.”
Neither the court of primary jurisdiction nor the court below of ancillary jurisdiction has authority to issue such an order unless it be so pursuant to section 9, subd. b, of the Bankruptcy Act, 11 USCA § 27 (b). A writ obtained under section 9, subd. b, of the Bankruptcy Act, requires a petition against a person to be obtained before the expiration of one month, after the qualification of the trustee upon satisfactory proof by affidavits of at least two persons that the bankrupt is about to leave the district in which he resides or has his principal place of business and is attempting, by his departure, to avoid examination and defeat the proceedings in bankruptcy. The section also provides for the arrest of the bankrupt and holding under bail for his appearance and examination.
No attempt was made by the appellee to comply with section 9, subd. b, 11 USCA § 27 (b), and the appellee rests its contention as to the validity of the order on section 2, subd. 15,11 USCA § 11 (15), giving authority to the District Courts to make such orders, issue such process, and enter such judgments provided for and necessary for the enforcement of the provisions of the Bankruptcy Act.
The writ and use of the writ of ne exeat is referred to and limited by section 261 of the Judicial Code (28 USCA § 376) in equity proceedings, where it is provided that it’ may be granted by a judge, “but no writ of ne exeat shall be granted unless a suit in equity is commenced, and satisfactory proof is made to the court or judge granting the same that the defendant designs quickly to depart from the United States.”
Limitations for permitting such, an arrest are made clear by tbe statute. If tbe bankrupt is to be taken into custody, be may be detained only ten days, and be must be arrested upon an order based upon the affidavits of two persons, which must show the facts, not opinions, and must be reasonably conclusive. The bankrupt cannot actually be imprisoned within these limitations. Collier on Bankruptcy, 13th Edition, vol. 1, p. 390. The writ is punitive in its effect, and Congress recognized, by section 9, subd. b, of the act, 11 USCA § 27 (b), the high degree of proof necessary upon which to base such a writ. It is to be issued only as an order of arrest with the care that Congress intended. The general authority to issue orders contained in section 2, subd. 15, 11 USCA § 11 (15), cannot be regarded as extending a writ so specifically granted to a District Judge. The only other statutory authority to issue the writ is section 261 of the Judicial Code, which applies to suits in equity, and the writ can only be issued against a party defendant.
This writ is intended to be issued against the bankrupt only. In re Hale, Fed. Cas. No. 5,911. In the Hale Case, Judge Choate said: “It can hardly be doubted that so great a power, practically reviving imprisonment for debt, and touching so seriously the personal liberty of a very large class of' citizens, would, if intended to be given, have been given expressly and not left to be inferred merely from the grant of other powers, and that, if given, its exercise would have been carefully limited by the act, to prevent hardship and abuse. The express grant of the power in one case shows that the attention of the framers of the law was called to the subject, and they are silent as to all other cases. This raises a presumption of some strength against the existence of the power in other eases. & * * And the fact that no provision has been made * * for a warrant of arrest in any other case than that expressly provided for in the act, indicates the opinion of the supreme court that no such remedy is available.” See In re Hassenbusch (C. C. A.) 108 F. 35.
In the court below, In re Lipke (D. C.) 98 F. 970, 971, was referred to, but the question there presented was whether a bankrupt, about to abscond with the assets, can be detained by a writ, and under the general power of section 2, subd. 15, 11 USCA § 11 (15), it was ruled that he could. Judge Brown said: “The necessity of the occasional exercise of this power for the efficient administration of the bankrupt law is evident. Without it the bankrupt might easily defy, and largely nullify, all adverse proceedings against him, by absconding with his assets.”
In re Cohen (D. C.) 136 F. 999, and the Matter of Berkowitz (D. C.) 173 F. 1012, to which our attention is also called, both District Court cases, we think disregard the limitations of section 9, subd. b, 11 USCA § 27 (b), and erroneously hold the power, did exist to issue the writ of ne exeat under section 2, subd. 15. However, in both instances, the writ was against the bankrupt. We think it better to follow the apparent intent of Congress to permit the writ to issue when and as specifically granted under section 9, subd. b, and when the terms of that section are complied with.
Moreover, there is no provision in section 9, subd. b, which vested jurisdiction or authority in the court below to issue a writ of ne exeat against an officer of a bankrupt corporation. And there is no inherent power to issue such an order and thus hold him to be examined concerning the acts of the bankrupt. Congress by the general provision of section 2, subd. 15, did not intend the issuance of orders of arrest, for, at the same time, by section 9b, it provided specific requirements before arrests might be granted. An officer of a bankrupt corporation is not the bankrupt. Kaufman v. United States (C. C. A.) 212 F. 613, Ann. Cas. 1916C, 466. The section is without application to him. Congress recognized this in prescribing punishment for crime (section 29b) under the Bankruptcy Act, 11 USCA § 52 (b). Such a drastic remedy as an arrest provided for by section 9 (b) of the Bankruptcy Act, 11 USCA § 27 (b), is one directed against the liberty of a person, and should be strictly construed and carefully applied. In re Schenkein (D. C.) 113 F. 421. It is the bankrupt, not an officer, who is referred to as subject to arrest in section 9 (b). It was intended to be issued only against the bankrupt, not a third party. If an officer of the corporation fails to appear for examination under section 21 (a) of the act, 11 USCA § 44 (a), or becomes a recalcitrant witness, he may be punnished for contempt. This remedy is ample; at least it is all Congress has provided.
Another sufficient reason why the order was improperly granted below is the fact that it was applied for by a creditor and not the trustee in bankruptcy. In re Lewensohn, 121 F. 538, 539 (C. C. A. 2). There the court said: “The trustee represents every creditor. • * * If the trustee should, without sufficient reason, refuse to proceed, tlie'court, by its order, could compel him to do so, or remove him for disobedience. It has been held under the present act that a creditor cannot prosecute an appeal from the judgment of a court of bankruptcy allowing the claim of another creditor, and that the trustee is the only party who can do so.” See, also, In re Rogers-Johnson Bldg. Co. (C. C. A.) 30 F.(2d) 359.
While the trustee is serving as such, any controversy arising out of and connected with the bankrupt’s estate must be instituted by the trustee, for no useful purpose can be served by a creditor’s duplication. Any other interpretation of the act would leave the bankrupt at the mercy of every creditor for his real or fancied wrongs. The creditor cannot usurp the power conferred upon the trustee while the trustee is in office.
Order reversed, and motion to vacate granted.
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 11? Answer with a number.
Answer: |
songer_r_fed | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Roy H. HAMM, Defendant-Appellant.
No. 85-1362.
United States Court of Appeals, Seventh Circuit.
Argued Sept. 23, 1985.
Decided March 26, 1986.
Ronald Lee Bell, Deerfield, 111., for defendant-appellant.
Paul L. Kanter, U.S. Atty. Office, Dan-ville, 111., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and GRANT, Senior District Judge.
The Honorable Robert A. Grant, Senior District Judge for the Northern District of Indiana, is sitting by designation.
GRANT, Senior District Judge.
A jury convicted defendant-appellant of conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 2. The jury acquitted him of a second count charging possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The trial court sentenced him to twelve years’ imprisonment. We affirm the conviction, but remand the case for resentencing.
Facts
In October 1984, agents of the Illinois Department of Law Enforcement, Division of Criminal Investigation, were conducting an undercover narcotics investigation into the activities of Schiavone, a co-defendant in the instant case who pled guilty. The Department suspected Schiavone of narcotics trafficking in the Kankakee, Illinois area.
During the course of the investigation, agent Grant sought to purchase one kilogram of cocaine from Schiavone. When agent Grant refused to help finance Schiavone’s purchase of the cocaine, Schiavone borrowed $25,000 from Savinski, a Michigan City, Indiana, friend who was the other co-defendant in this case and who also pled guilty. Savinski learned of the purpose of the loan some days later and, when Schiavone appeared to be having trouble finding a supplier of the cocaine, Savinski suggested defendant-appellant Hamm.
Savinski contacted Hamm and told him that Schiavone had a purchaser for ten kilograms of cocaine. Hamm later confirmed the availability of a quantity of cocaine and indicated that his source of the cocaine was “Columbians.” Savinski passed this information to Schiavone who passed it to agent Grant.
On October 23, 1984, Schiavone and agent Grant met in a room at the Bradley, Illinois, Holiday Inn. They called Savinski at Gratty’s, a Michigan City bar, to finalize their transaction. They informed Savinski that agent Grant wished to purchase one, rather than ten, kilograms of cocaine and that agent Grant did not want to travel from the Kankakee area to complete the deal. Savinski told Hamm, who was with him at Gratty’s, about the changes in the plan. Hamm made a phone call and told Savinski that the changes were acceptable. Savinski called Schiavone a short time later and worked out the remaining details.
Hamm and Savinski met the next morning to leave for Kankakee. Hamm carried a duffle bag and asked Savinski if he wanted to check it before they left. Savinski declined. While Hamm and Savinski drove in Savinski’s van to Kankakee, Schiavone and agent Grant awaited their arrival in the Bradley Holiday Inn.
At approximately 1:00 P.M., Savinski called Schiavone at the Holiday Inn and told Schiavone that they were waiting for him at the Bonanza Restaurant on Court Street in Kankakee. Schiavone left to meet them. Savinski waited for him in the restaurant. Hamm waited in the van. Schiavone met Savinski in the restaurant and, after briefly discussing the money still owed Savinski by Schiavone, the two went to the van where Schiavone met Hamm.
From the front passenger seat, Hamm handed the duffle bag to Schiavone who was sitting in the rear seat. Schiavone checked the contents and returned to agent Grant at the Holiday Inn to get the money. Whereupon agent Grant arrested him. A short time later, other agents arrested Schiavone and Hamm in the restaurant parking lot. In a search of the van subsequent to the arrest, agent King found the duffle bag which contained 994.1 grams of 78.8% pure cocaine.
Hamm’s arraignment occurred on December 4, 1984. On January 3, 1985, all three defendants viewed a video tape of the arrest. On January 8, Hamm filed a Motion to Suppress the cocaine based upon the lack of probable cause for the search of the van and the coercion of Schiavone who told the agents where they could find the cocaine. On January 9, the trial court ordered that all pending motions would be heard on January 14, the day of trial.
At the hearing on the motions, the trial court denied Hamm’s Motion to Suppress. When Hamm learned that his co-defendants had entered into plea agreements, he moved for a continuance of trial which the court also denied. Instead, the trial court delayed the jury selection and the beginning of the Government’s case to allow Hamm an opportunity to consult with his attorney. The jury found him guilty and he appeals.
Issues
Hamm presents three issues on appeal:
I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance;
II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine; and,
III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report?
I. Whether the trial court abused its discretion in denying Hamm’s Motion for Continuance?
Savinski and Schiavone entered pleas of guilty on the morning of trial. Hamm’s counsel moved for a continuance seeking time to compare their statements to the evidence as he already knew it. Instead of granting a continuance, the trial court delayed the selection of the jury until that afternoon and postponed the beginning of the Government’s case until the next morning. The trial court felt that this delay would provide Hamm’s counsel sufficient time to compare the former co-defendants’ testimony with the 18 U.S.C. § 3500 material he had received three days earlier. Transcript at 3.
This Court may review the trial court’s denial of a request for a continuance only for an abuse of discretion. To establish an abuse of discretion, Hamm must show that actual prejudice resulted from the denial. United States v. Rodgers, 755 F.2d 533, 539 (7th Cir.), cert. denied, — U.S. —, 105 S.Ct. 3532, 87 L.Ed.2d 656 (1985); United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir.1980). Hamm claims that ineffective assistance of counsel resulted from the denial of the continuance. Therefore, this Court must inquire into Hamm’s counsel’s actual performance at trial. Rodgers, 755 F.2d at 540. We measure counsel’s performance by the totality of the circumstances as revealed by the trial transcript. United States v. Flick, 719 F.2d 246, 248 (7th Cir.1983), cert. denied, 466 U.S. 962, 104 S.Ct. 2178, 80 L.Ed.2d 560 (1984). The transcript reveals that Schiavone and Savinski did not present testimony so complicated that Hamm’s counsel required a great amount of time or expert assistance to understand it. Trial counsel conducted extensive and effective cross-examination of both Schiavone and Savinski. He challenged their versions of the facts and attempted to impeach their credibility. We conclude that Hamm’s counsel’s trial performance surpassed the minimum professional standards. Therefore, no prejudice resulted to Hamm. Rodgers, 755 F.2d at 541.
II. Whether the trial court erred in denying Hamm’s Motion to Suppress the cocaine?
The trial court arraigned Hamm on December 4, 1985. The Order for Pretrial Discovery and Inspection directed that motions “be filed within fifteen (15) days of the arraignment (or such later time as may be set by the Court).” Record at 20. On January 8, 1985, after viewing a video tape of the arrest, Hamm filed his Motion to Suppress. Hamm based his motion on an alleged violation of Schiavone’s fifth amendment rights. Id. at 38. When the trial court considered the motion on the morning of trial, Hamm’s counsel stated that he was basing the motion on information received from Schiavone’s and Savinski’s counsels through their innuendoes. Transcript at 5. After discussing the motion, the trial court, finding that it had no merit, denied it for being untimely filed. Id. at 8.
“Failure by a party to raise defenses ... at the time set by the court ... shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.” Fed.R.Crim.P. 12(f). A trial court has discretion when considering an untimely motion and a reviewing court may disturb the trial court’s decision only for clear error. United States v. Mangieri, 694 F.2d 1270, 1283 (D.C.Cir.1982). In order to gain relief under Rule 12(f), a party must present a legitimate explanation for his failure to make a timely motion, United States v. Davis, 663 F.2d 824, 831 (9th Cir.1981), and absence of prejudice, Brooks v. United States, 416 F.2d 1044, 1048 n. 1 (5th Cir.1969), cert. denied, 400 U.S. 840, 91 S.Ct. 81, 27 L.Ed.2d 75 (1970). “[Ajbsence of prejudice by itself may justify a district court’s refusal to grant relief from the waiver resulting from non-timely filing____” United States v. Hirschhorn, 649 F.2d 360, 364 (5th Cir.1981) (citing Brooks, 416 F.2d at 1048 n. 1).
In the instant case, this Court finds no prejudice and, therefore, will not disturb the trial court’s denial of the untimely motion. First, Hamm based his Motion to Suppress on an alleged violation of Schiavone’s rights. “A defendant ‘may not obtain exclusion of evidence on ground that someone else’s rights were violated.’ ” United States v. Davies, 768 F.2d 893, 897 (7th Cir.) (quoting United States v. Williams, 737 F.2d 594, 616 (7th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 1354, 84 L.Ed.2d 377, (1985)), cert. denied, — U.S. —, 106 S.Ct. 533, 88 L.Ed.2d 464 (1985). Second, a trial court need only grant a suppression hearing when a defendant presents facts justifying relief, that is, facts which are definite, specific, detailed and nonconjectural. United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.), cert. denied, — U.S. —, 106 S.Ct. 320, 88 L.Ed.2d 303 (1985); United States v. Harrelson, 705 F.2d 733, 737 (5th Cir.1983). The facts alleged by Hamm fail to meet this standard.
III. Whether the trial court properly considered Hamm’s challenge regarding information contained in the presentence investigation report?
At the sentencing hearing, Hamm challenged several items in the presentence investigation report. Those items included an allegation by Savinski that Hamm had contracted for Savinski’s murder, a probation violation charge which occurred when Hamm was arrested for a murder, a probation violation charge for possession of a gun, an offense in which Hamm was charged with conspiracy to commit burglary, assault and battery, intent to kill, and committing a felony while armed, and the opinion of a probation officer that Hamm had no legitimate source of income. Hamm informed the trial judge that he had not contracted for Savinski’s murder, that neither of the alleged probation violations had been prosecuted or affected his probation, that the alleged offense had resulted in a prosecution and conviction for voluntary manslaughter, and that he derived legitimate income from manufacturing custom-made clocks. The Government declined to question Hamm and, in its argument, stated that it found the presentence report to be very complete and thorough. The trial court denied Hamm’s motion to strike the contested material from the presentence investigation report and, in sentencing Hamm, declared that he was an outlaw. See Transcript at 233-48.
In United States v. Eschweiler, 782 F.2d 1385 (7th Cir.1986), a case heard on the same day as the instant case, this Court, relying on United States v. Rone, 743 F.2d 1169 (7th Cir.1984), and Rule 32, Federal Rules of Criminal Procedure, stated:
Rone requires that the sentencing judge ask the defendant three questions in order to comply with Rule 32: (1) whether the defendant has had an opportunity to read the report; (2) whether the defendant and defense counsel have discussed it; and (3) whether he or she wishes to challenge any facts in the report. Id. at 1174. This questioning process establishes a record reflecting that the defendant has had a realistic opportunity to read, discuss, and object to the report.
If the defendant disputes a fact in the report, the requirements of subsection (D) are triggered. Rone, 743 F.2d at 1175. The sentencing judge is then obligated either to make written findings concerning the disputed matter or a written determination that the disputed matter will not be relied on for sentencing, and then attach it to the presentence report. Id. at 1175. These procedures, when strictly followed, ensure that the defendant's sentence is based on accurate and reliable information and that subsequent recipients of the report are aware of whatever resolutions occurred at sentencing.
... Thus all a defendant needs to show in order to be resentenced for a violation of Rule 32(c)(3)(D) is that (1) allegations of inaccuracy were before the sentencing court and (2) the court failed to make findings regarding the controverted matters or a determination that the disputed information would not be used in sentencing.
Eschweiler, 782 F.2d 1385, 1389 (citations omitted) (footnotes omitted). In this case, the trial court made neither findings regarding the controverted matters nor a determination that the information would not be used in sentencing. Rule 32(c)(3)(D) compels us to remand the case for resentencing.
Conclusion
This Court Affirms Hamm’s conviction, but Remands the case for resentencing consistent with the procedures set forth in Eschweiler and Rule 32(c)(3)(D), Federal Rules of Criminal Procedure.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer: |
songer_usc1sect | 115 | 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 26. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
MEYER v. COMMISSIONER OF INTERNAL REVENUE.
No. 9039.
Circuit Court of Appeals, Third Circuit.
Argued Feb. 4, 1946.
Decided Feb. 27, 1946.
Sydner A. Gutkin, of Newark, N. J. (David Beck, of Newark, N. J., on the brief), for petitioner.
S. Dee Hanson, of Washington, D. C. (Samuel O. Clark, Jr., Asst. Atty. Gen., and Sewall Key and J. Louis Monarch, Sp. Assts. to Atty. Gen., on the brief), for respondent.
Before MARIS, McLAUGHLIN and O’CONNELL, Circuit Judges.
MARIS, Circuit Judge.
The taxpayer asks this court to review a finding by tlie Tax Court that the redemption by Bersel Realty Company during the years 1938, 1939, 1940 and 1941 for $125,-000 of 1,250 shares of its 5% noncumulative preferred stock which he owned was accomplished at such times and in such manner as to be essentially equivalent to distributions of taxable dividends to him within the meaning of Sectioin 115(g) of the Revenue Act of 1938 and the Internal Revenue Code, 26 U.S.C.A. Int.Rev.Code, § 115(g). This was a conclusion which ordinarily would not be reviewable here. Dobson v. Commissioner, 1943, 320 U.S. 489, 64 S.Ct. 239, 88 L.Ed. 248; John Kelley Co. v. Commissioner, 1946, 66 S.Ct. 299.
In the present case, however, this conclusion was based tipon a finding that in the years in question the company had undistributed surplus earnings in excess of the amounts distributed in redemption of the stock. That finding in turn depended in part upon a further finding that on December 31, 1937 the earned surplus of the company was $374,433.37. This represented the earned surplus as shown by the company’s hooks of account on that date. The Tax Court also found, however, that in the years 1931, 1934 and 1935 the company had redeemed 5,500 shares of the taxpayer’s preferred stock for $550,-000.
While the Tax Court found that these redemptions were all charged against the capital account it did not find, and the present record does not disclose any basis for finding, that the redemptions made in 1931, 1934 and 1935 were accomplished at a time and in a manner so different from those made in 1938, 1939, 1940 and 1941 as not to be also essentially equivalent to distributions of taxable dividends. On the contrary every factor upon which the court relied in concluding that the later redemptions were of this character would seem, so far as appears from the record now before us, equally applicable to the earlier ones.
If, however, the earlier redemptions which totalled $550,000 are also to be treated as essentially equivalent to distributions of taxable dividends, it is obvious that, looked at from the tax standpoint, they must have operated to distribute so much of the earned surplus of $374,433.-37 shown by the company’s books at the end of 1937 as had accumulated up to the time of the last of these earlier redemptions in 1935. In that case only the earnings accumulated since that last redemption would, for tax purposes, have remained available for distribution in 1938 and later years. The Tax Court made no finding as to the amount of the earnings accumulated in 1936 and 1937 and there is no evidence in the record upon which such a finding could be based.
The Tax Court, as we have said, concluded that the entire sum of $125,000 distributed by Bersel Realty Company to the taxpayer in 1938, 1939, 1940 and 1941 in redemption of preferred stock was taxable as dividends. From what has been said it will be seen that this conclusion required for its support a finding either (a) that the redemptions of 1931, 1934 and 1935 were not essentially equivalent to the distribution of taxable dividends and therefore did not for tax purposes operate to distribute the earnings of that period, or (b) that the earnings accumulated after the last of those earlier redemptions together with the earnings of the years 1938, 1939, 1940 and 1941 were at least equal to the amounts distributed in redemption of preferred stock in the latter years. Since the Tax Court made neither finding its decision must be vacated and the case remanded for appropriate findings and decision.
The decision of the Tax Court is vacated and the case is remanded for further proceedings in accord with this opinion.
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 26? Answer with a number.
Answer: |
songer_treat | E | 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.
Albert Soto MEDINA, Appellant, v. J. J. ENOMOTO, Superintendent, California Correctional Inst., Appellee.
No. 74-2682.
United States Court of Appeals, Ninth Circuit.
Sept. 8, 1975.
Albert Soto Medina in pro per.
Evelle J. Younger, Atty. Gen., State of California, Los Angeles, Cal., for appel-lee.
Before CARTER, HUFSTEDLER and GOODWIN, Circuit Judges.
OPINION
PER CURIAM:
The order denying Medina’s petition for a writ of habeas corpus is vacated, and the cause is remanded for further proceedings. The opinion of this court in Mann v. Smith, 488 F.2d 245 (9th Cir. 1973), cert. denied, 415 U.S. 932, 94 S.Ct. 1445, 39 L.Ed.2d 490 (1974), upon which the district court based its decision, was subsequently overruled by Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975).
Vacated and remanded.
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: |
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
AMGEN INC. et al. v. CONNECTICUT RETIREMENT PLANS AND TRUST FUNDS
No. 11-1085.
Argued November 5, 2012
Decided February 27, 2013
Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Sotomayor, and Kagan, JJ., joined. Abito, J., filed a concurring opinion, post, p. 482. Scalia, J., filed a dissenting opinion, post, p. 483. Thomas, J., filed a dissenting opinion, in which Kennedy, J., joined, and in which Scalia, J., joined except for Part I-B, post, p. 486.
Seth P. Waxman argued the cause for petitioners. With him on the briefs were Louis R. Cohen, Andrew N. Vo timer, Daniel S. Volchok, Noah A. Levine, Steven 0. Kramer, John P. Stigi III, John M. Landry, and Jonathan D. Moss.
David C. Frederick argued the cause for respondent. With him on the brief were Derek T. Ho, Emily T. P. Rosen, Edward Labaton, Jonathan M. Plasse, and Christopher J. McDonald.
Melissa Arbus Sherry argued the cause for the United States as amicus curiae in support of respondent. On the brief were Solicitor General Verrilli, Deputy Solicitor General Stewart, Nicole A. Saharsky, Mark D. Cahn, Michael A. Conley, Jacob H. Stillman, John W. Avery, Benjamin L. Schiffrin, and Jeffrey A. Berger.
Briefs of amici curiae urging reversal were filed for the Chamber of Commerce of the United States of America et al. by Aaron M. Streett, David D. Sterling, Robin S. Conrad, Rachel L. Brand, James M. (Mit) Spears, and Melissa B. Kimmel; for Former SEC Commissioners and Officials et al. by Timothy S. Bishop and Joshua D. Yount; for Law Professors by John P. Elwood; for the Securities Industry and Financial Markets Association by William F. Sullivan, Peter M. Stone, Stephen B. Kinnaird, and Kevin M. Carrol; and for the Washington Legal Foundation et al. by Cory L. Andrews.
Briefs of amici curiae urging affirmance were filed for AARP by Jay Sushelsky and Michael Schuster; for the California Public Employees’ Retirement System et al. by Jay W. Eisenhofer; for Civil Procedure and Securities Law Professors by Eric Alan Isaacson and David Marcus; for Financial Economists by Ernest A. Young, William C. Fredericks, and Ann M. Lipton; for the National Association of Shareholder and Consumer Attorneys by Mr. Fredericks and Ms. Lipton; for the New York City Pension Funds et al. by Stephen R. McAllister, Lamen N. Mulligan, Darren J. Check, Michael A. Cardozo, and Gregory W. Smith; and for Public Justice, P. C., by Earl Landers Vickery and Arthur H. Bryant.
Justice Ginsburg
delivered the opinion of the Court.
This case involves a securities-fraud complaint filed by Connecticut Retirement Plans and Trust Funds (Connecticut Retirement) against biotechnology company Amgen Inc. and several of its officers (collectively, Amgen). Seeking class-action certification under Federal Rule of Civil Procedure 23, Connecticut Retirement invoked the “fraud-on-the-market” presumption endorsed by this Court in Basic Inc. v. Levinson, 485 U. S. 224 (1988), and recognized most recently in Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. 804 (2011). The fraud-on-the-market premise is that the price of a security traded in an efficient market will reflect all publicly available information about a company; accordingly, a buyer of the security may be presumed to have relied on that information in purchasing the security.
Amgen has conceded the efficiency of the market for the securities at issue and has not contested the public character of the allegedly fraudulent statements on which Connecticut Retirement’s complaint is based. Nor does Amgen here dispute that Connecticut Retirement meets all of the class-action prerequisites stated in Rule 23(a): (1) the alleged class “is so numerous that joinder of all members is impracticable”; (2) “there are questions of law or fact common to the class”; (3) Connecticut Retirement’s claims are “typical of the claims ... of the class”; and (4) Connecticut Retirement will “fairly and adequately protect the interests of the class.”
The issue presented concerns the requirement stated in Rule 23(b)(3) that “the questions of .law or fact common to class members predominate over any questions affecting only individual members.” Amgen contends that to meet the predominance requirement, Connecticut Retirement must do more than plausibly plead that Amgen’s alleged misrepresentations and misleading omissions materially affected Amgen’s stock price. According to Amgen, certification must be denied unless Connecticut Retirement proves materiality, for immaterial misrepresentations or omissions, by definition, would have no impact on Amgen’s stock price in an efficient market.
While Connecticut Retirement certainly must prove materiality to prevail on the merits, we hold that such proof is not a prerequisite to class certification. Rule 23(b)(3) requires a showing that questions common to the class predominate, not that those questions will be answered, on the merits, in favor of the class. Because materiality is judged according to an objective standard, the materiality of Amgen’s alleged misrepresentations and omissions is a question common to all members of the class Connecticut Retirement would represent. The alleged misrepresentations and omissions, whether material or immaterial, would be so equally for all investors composing the class. As vital, the plaintiff class’s inability to prove materiality would not result in individual questions predominating. Instead, a failure of proof on the issue of materiality would end the case, given that materiality is an essential element of the class members’ securities-fraud claims. As to materiality, therefore, the class is entirely cohesive: It will prevail or fail in unison. In no- event will the individual circumstances of particular class members bear on the inquiry.
Essentially, Amgen, also the dissenters from today’s decision, would have us put the cart before the horse. To gain certification under Rule 23(b)(3), Amgen and the dissenters urge, Connecticut Retirement must first establish that it will win the fray. But the office of a Rule 23(b)(3) certification ruling is not to adjudicate the case; rather, it is to select the “metho[d]” best suited to adjudication of the controversy “fairly and efficiently.”
I
A
This case involves the interaction between federal securities-fraud laws and Rule 23’s requirements for class certification. To obtain certification of a class action for money damages under Rule 23(b)(3), a plaintiff must satisfy Rule 23(a)’s above-mentioned prerequisites of numerosity, commonality, typicality, and adequacy of representation, see swpra, at 459, and must also establish that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” To recover damages in a private securities-fraud action under § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 15 U. S. C. § 78j(b) (2006 ed., Supp. V), and Securities and Exchange Commission Rule 10b-5, 17 CFR §240.10b-5 (2011), a plaintiff must prove “(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Matrixx Initiatives, Inc. v. Siracusano, 563 U. S. 27, 37-38 (2011) (internal quotation marks omitted).
“Reliance,” we have explained, “is an essential element of the § 10(b) private cause of action” because “proof of reliance ensures that there is a proper connection between a defendant’s misrepresentation and a plaintiff’s injury.” Halliburton, 563 U. S., at 810 (internal quotation marks omitted). “The traditional (and most direct) way” for a plaintiff to demonstrate reliance “is by showing that he was aware of a company’s statement and engaged in a relevant transaction . . . based on that specific misrepresentation.” Ibid. We have recognized, however, that requiring proof of direct reliance “would place an unnecessarily unrealistic evidentiary burden on [a] plaintiff who has traded on an impersonal market.” Basic, 485 U. S., at 245. Accordingly, in Basic the Court endorsed the “fraud-on-the-market” theory, which permits certain Rule 10b-5 plaintiffs to invoke a rebuttable presumption of reliance on material misrepresentations aired to the general public. Id., at 241-249.
The fraud-on-the-market theory rests on the premise that certain well developed markets are efficient processors of public information. In such markets, the “market price of shares” will “reflec[t] all publicly available information.” Id., at 246. Few investors in such markets, if any, can consistently achieve above-market returns by trading based on publicly available information alone, for if such above-market returns were readily attainable, it would mean that market prices were not efficiently incorporating the full supply of public information. See R. Brealey, S. Myers, & F. Allen, Principles of Corporate Finance 330 (10th ed. 2011) (“[I]n an efficient market, there is no way for most investors to achieve consistently superior rates of return.”).
In Basic, we held that if a market is shown to be efficient, courts may presume that investors who traded securities in that market relied on public, material misrepresentations regarding those securities. See 485 U. S., at 245-247. This presumption springs from the very concept of market efficiency. If a market is generally efficient in incorporating publicly available information into a security’s market price, it is reasonable to presume that a particular public, material misrepresentation will be reflected in the security’s price. Furthermore, it is reasonable to presume that most investors—knowing that they have little hope of outperforming the market in the long run based solely on their analysis of publicly available information—will rely on the security’s market price as an unbiased assessment of the security’s value in light of all public information. Thus, courts may presume that investors trading in efficient markets indirectly rely on public, material misrepresentations through their “reliance on the integrity of the price set by the market.” Id., at 245. “[T]he presumption,” however, is “just that, and [can] be rebutted by appropriate evidence.” Halliburton, 563 U. S., at 811. See also Basic, 485 U. S., at 248-249 (providing examples of showings that would rebut the fraud-on-the-market presumption).
Although fraud on the market is a substantive doctrine of federal securities-fraud law that can be invoked by any Rule 10b-5 plaintiff, see, e. g., Black v. Finantra Capital, Inc., 418 F. 3d 203, 209 (CA2 2005); Blackie v. Barrack, 524 F. 2d 891, 908 (CA9 1975), the doctrine has particular significance in securities-fraud class actions. Absent the fraud-on-the-market theory, the requirement that Rule 10b-5 plaintiffs establish reliance would ordinarily preclude certification of a class action seeking money damages because individual reliance issues would overwhelm questions common to the class. See Basic, 485 U. S., at 242. The fraud-on-the-market theory, however, facilitates class certification by recognizing a rebuttable presumption of classwide reliance on public, material misrepresentations when shares are traded in an efficient market. Ibid.
B
In its complaint, Connecticut Retirement alleges that Amgen violated § 10(b) and Rule 10b-5 through certain misrepresentations and misleading omissions regarding the safety, efficacy, and marketing of two of its flagship drugs. According to Connecticut Retirement, these misrepresentations and omissions artificially inflated the price of Amgen’s stock at the time Connecticut Retirement and numerous other securities buyers purchased- the stock. When the truth came to light, Connecticut Retirement asserts, Am-gen’s stock price declined, resulting in financial losses to those who purchased the stock at the inflated price. In its answer to Connecticut Retirement’s complaint, Amgen conceded that “[a]t all relevant times, the market for [its] securities,” which are traded on the NASDAQ stock exchange, “was an efficient market”; thus, “the market for Amgen’s securities promptly digested current information regarding Amgen from all publicly available sources and reflected such information in Amgen’s stock price.” Consolidated Amended Class Action Complaint ¶¶ 199-200 in No. CV-07-2536 (CD Cal.); Answer ¶¶199-200.
The District Court granted Connecticut Retirement’s motion to certify a class action under Rule 23(b)(3) on behalf of all investors who purchased Amgen stock between the date of the first alleged misrepresentation and the date of the last alleged corrective disclosure. After granting Amgen’s request to take an interlocutory appeal from the District Court’s class-certification order, see Fed. Rule Civ. Proc. 23(f), the Court of Appeals affirmed. 660 F. 3d 1170 (CA9 2011).
Amgen raised two arguments on appeal. First, Amgen contended that the District Court erred by certifying the proposed class without first requiring Connecticut Retirement to prove that Amgen’s alleged misrepresentations and omissions were material. Second, Amgen argued that the District Court erred by refusing to consider certain rebuttal evidence that Amgen had proffered in opposition to Connecticut Retirement’s class-certification motion. This evidence, in Amgen’s view, demonstrated that the market was well aware of the truth regarding its alleged misrepresentations and omissions at the time the class members purchased their shares.
The Court of Appeals rejected both contentions. Am-gen’s first argument, the Court of Appeals noted, made the uncontroversial point that immaterial misrepresentations and omissions “by definition [do] not affect. . . stock price[s] in an efficient market.” Id., at 1175. Thus, where misrepresentations and omissions are not material, there is no basis for presuming classwide reliance on those misrepresentations and omissions through the information-processing mechanism of the market price. “The problem with that argument,” the Court of Appeals observed, is evident: “[Because materiality is an element of the merits of their securities fraud claim, the plaintiffs cannot both fail to prove materiality yet still have a viable claim for which they would need to prove reliance individually.” Ibid. The Court of Appeals thus concluded that “proof of materiality is not necessary” to ensure compliance with Rule 23(b)(3)’s requirement that common questions predominate. Id., at 1177.
With respect to Amgen’s second argument, the Court of Appeals determined that Amgen’s ■ proffered rebuttal evidence was merely “a method of refuting [the] materiality” of the misrepresentations and omissions alleged in Connecticut Retirement’s complaint. Ibid. Having already concluded that a securities-fraud plaintiff does not need to prove materiality before class certification, the court similarly held that “the district court correctly refused to consider” Amgen’s rebuttal evidence “at the class certification stage.” Ibid.
We granted Amgen’s petition for certiorari, 567 U. S. 905 (2012), to resolve a conflict among the Courts of Appeals over whether district courts must require plaintiffs to prove, and must allow defendants to present evidence rebutting, the element of materiality before certifying a class action under § 10(b) and Rule 10b-5. Compare 660 F. 3d 1170 (case below) and Schleicher v. Wendt, 618 F. 3d 679, 687 (CA7 2010) (materiality need not be proved at the class-certification stage), with In re Salomon Analyst Metromedia Litigation, 544 F. 3d 474, 484-485, 486, n. 9 (CA2 2008) (plaintiff must prove, and defendant may present evidence rebutting, materiality before class certification). See also In re DVI, Inc. Securities Litigation, 639 F. 3d 623, 631-632, 637-638 (CA3 2011) (plaintiff need not prove materiality before class certification, but defendant may present rebuttal evidence on the issue).
II
A
The only issue before us in this case is whether Connecticut Retirement has satisfied Rule 23(b)(3)’s requirement that “questions of law or fact common to class mémbers predominate over any questions affecting only individual members.” Although we have cautioned that a court’s class-certification analysis must be “rigorous” and may “entail some overlap with the merits of the plaintiff’s underlying claim,” Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 351 (2011) (internal quotation marks omitted), Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent— but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. See id., at 351, n. 6 (a district court has no “ ‘authority to conduct a preliminary inquiry into the merits of a suit’ ” at class certification unless it is necessary “to determine the propriety of certification” (quoting Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 177 (1974))); Advisory Committee’s 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 144 (“[A]n evaluation of the probable outcome on the merits is not properly part of the certification decision.”).
Bearing firmly in mind that the focus of Rule 23(b)(3) is on the predominance of common questions, we turn to Amgen’s contention that the courts below erred by failing to require Connecticut Retirement to prove the materiality of Amgen’s alleged misrepresentations and omissions before certifying Connecticut Retirement’s proposed class. As Amgen notes, materiality is not only an element of the Rule 10b-5 cause of action; it is also an essential predicate of the fraud-on-the-market theory. See Basic, 485 U. S., at 247 (“[W]here materially misleading statements have been disseminated into an impersonal, well-developed market for securities, the reliance of individual plaintiffs on the integrity of the market price may be presumed.” (emphasis added)). That theory, Amgen correctly observes, is premised on the understanding that in an efficient market, all publicly available information is rapidly incorporated into, and thus transmitted to investors through, the market price. See id., at 246-247. Because immaterial information, by definition, does not affect market price, it cannot be relied upon indirectly by investors who, as the fraud-on-the-market theory presumes, rely on the market price’s integrity. Therefore, the fraud-on-the-market theory cannot apply absent a material misrepresentation or omission. And without the fraud-on-the-market theory, the element of reliance cannot be proved on a class-wide basis through evidence common to the class. See id., at 242. It thus follows, Amgen contends, that materiality must be proved before a securities-fraud class action can be certified.
Contrary to Amgen’s argument, the key question in this case is not whether materiality is an essential predicate of the fraud-on-the-market theory; indisputably it is. Instead, the pivotal inquiry is whether proof of materiality is needed to ensure that the questions of law or fact common to the class will “predominate over any questions affecting only individual members” as the litigation progresses. Fed. Rule Civ. Proc. 23(b)(3). For two reasons, the answer to this question is clearly “no.”
First, because “[t]he question of materiality ... is an objective one, involving the significance of an omitted or misrepresented fact to a reasonable investor,” materiality can be proved through evidence common to the class. TSC Industries, Inc. v. Northway, Inc., 426 U. S. 438, 445 (1976). Consequently, materiality is a “common questio[n]” for purposes of Rule 23(b)(3). Basic, 485 U. S., at 242 (listing “materiality” as one of the questions common to the Basic class members).
Second, there is no risk whatever that a failure of proof on the common question of materiality will result in individual questions predominating. Because materiality is an essential element of a Rule 10b-5 claim, see Matrixx Initiatives, 563 U. S., at 37, Connecticut Retirement’s failure to present sufficient evidence of materiality to defeat a summary-judgment motion or to prevail at trial would not cause individual reliance questions to overwhelm the questions common to the class. Instead, the failure of proof on the element of materiality would end the case for one and for all; no claim would remain in which individual reliance issues could potentially predominate.
Totally misapprehending our essential point, Justice Thomas’ dissent asserts that our “entire argument is based on the assumption that the fraud-on-the-market presumption need not be shown at certification because it will be proved later on the merits.” Post, at 495, n. 9. Our position is not so based. We rest, instead, entirely on the text of Rule 23(b)(3), which provides for class certification if “the questions of law or fact common to class members predominate over any questions affecting only individual members.” A failure of proof on the common question of materiality ends the litigation and thus will never cause individual questions of reliance or anything else to overwhelm questions common to the class. Therefore, under the plain language of Rule 23(b)(3), plaintiffs are not required to prove materiality at the class-certification stage. In other words, they need not, at that threshold, prove that the predominating question will be answered in their favor.
Justice Thomas urges that a plaintiff seeking class certification “must show that the elements of [her] claim are susceptible to elasswide proof.” Post, at 491. See also post, at 496 (criticizing the Court for failing to focus its analysis on “whether the element of reliance is susceptible to classwide proof”). From this premise, Justice Thomas concludes that Rule 10b-5 plaintiffs must prove materiality before class certification because (1) “materiality is a necessary component of fraud on the market,” and (2) without fraud on the market, the Rule 10b-5 element of reliance is not “susceptible of a classwide answer.” Post, at 491, 495. See also post, at 496 (“[I]f a plaintiff wishes to use Basic’s presumption to prove that reliance is a common question, he must establish the entire presumption, including materiality, at the class certification stage.”).
Rule 23(b)(3), however, does not require a plaintiff seeking class certification to prove that each “elemen[t] of [her] claim [is] susceptible to classwide proof.” Post, at 491. What the Rule does require is that common questions “predominate over any questions affecting only individual [class] members.” Fed. Rule Civ. Proc. 23(b)(3) (emphasis added). Nowhere does Justice Thomas explain how, in an action invoking the Basic presumption, a plaintiff class’s failure to prove an essential element of its claim for relief will result in individual questions predominating over common ones. Absent proof of materiality, the claim of the Rule 10b-5 class will fail in its entirety; there will be no remaining individual questions to adjudicate.
Consequently, proof of materiality is not required to establish that a proposed class is “sufficiently cohesive to warrant adjudication by representation”—the focus of the predominance inquiry under Rule 23(b)(3). Amchem Products, Inc. v. Windsor, 521 U. S. 591, 623 (1997). No doubt a clever mind could conjure up fantastic scenarios in which an individual investor might rely on immaterial information (think of the superstitious investor who sells her securities based on a CEO’s statement that a black cat crossed the CEO’s path that morning). But such objectively unreasonable reliance does not give rise to a Rule 10b-5 claim. See TSC Industries, 426 U. S., at 445 (materiality is judged by an objective standard). Thus, “the individualized questions of reliance,” post, at 494, n. 8, that hypothetically might arise when a failure of proof on the issue of materiality dooms the .fraud-on-the-market class are far more imaginative than real. Such “individualized questions” do not undermine class cohesion and thus cannot be said to “predominate” for purposes of Rule 23(b)(3).
Because the question of materiality is common to the class, and because a failure of proof on that issue would not result in questions “affecting only individual members” predominating, Rule 23(b)(3), Connecticut Retirement was not required to prove the materiality of Amgen’s alleged misrepresentations and omissions at the class-certification stage. This is not a case in which the asserted problem—i. e., that the plaintiff class cannot prove materiality—“exhibits some fatal dissimilarity” among class members that would make use of the class-action device inefficient or unfair. Nagar-eda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97,107 (2009). Instead, what Amgen alleges is “a fatal similarity—[an alleged] failure of proof as to an element of the plaintiffs’ cause of action.” Ibid. Such a contention is properly addressed at trial or in a ruling on a summary-judgment motion. The allegation should not be resolved in deciding whether to certify a proposed class. Ibid. See also Schleicher, 618 F. 3d, at 687 (“[WJhether a statement is materially false is a question common to all class members and therefore may be resolved on a class-wide basis after certification.”).
B
Insisting that materiality must be proved at the class-certification stage, Amgen relies chiefly on two arguments, neither of which we find persuasive.
1
Amgen points first to our statement in Halliburton that “securities fraud plaintiffs must prove certain things in order to invoke Basic’s rebuttable presumption of reliance,” including “that the alleged misrepresentations were publicly known ..., that the stock traded in an efficient market, and that the relevant transaction took place ‘between the time the misrepresentations were made and the time the truth was revealed.’ ” 563 U. S., at 811 (quoting Basic, 485 U. S., at 248, n. 27). See also Dukes, 564 U. S., at 351, n. 6 (“[P]laintiffs seeking 23(b)(3) certification [of a securities-fraud class action] must prove that their shares were traded on an efficient market.”). If these fraud-on-the-market predicates must be proved before class certification, Amgen contends, materiality—another fraud-on-the-market predicate—should be treated no differently.
We disagree. As an initial matter, the requirement that a putative class representative establish that it executed trades “between the time the misrepresentations were made and the time the truth was revealed” relates primarily to the Rule 23(a)(3) and (a)(4) inquiries into typicality and adequacy of representation, not to the Rule 23(b)(3) predominance inquiry. Basic, 485 U. S., at 248, n. 27. A security’s market price cannot be affected by a misrepresentation not yet made, and in an efficient market, a misrepresentation’s impact on market price is quickly nullified once the truth comes to light. Thus, a plaintiff whose relevant transactions were not executed between the time the misrepresentation was made and the time the truth was revealed cannot be said to have indirectly relied on the misrepresentation through its reliance on the integrity of the market price. Such a plaintiff’s claims, therefore, would not be “typical” of the claims of investors who did trade during the window between misrepresentation and truth revelation. Fed. Rule Civ. Proc. 23(a)(3). Nor could a court confidently conclude that such a plaintiff would “fairly and adequately protect the interests” of investors who traded during the relevant window. Rule 23(a)(4). The requirement that the fraud-on-the-market theory’s trade-timing predicate be established before class certification thus sheds little light on the question whether materiality must also be proved at the class-certification stage.
Amgen is not aided by Halliburton’s statement that market efficiency and the public nature of the alleged misrepresentations must be proved before a securities-fraud class action can be certified. As Amgen notes, market efficiency, publicity, and materiality can all be proved on a classwide basis. Furthermore, they are all essential predicates of the fraud-on-the-market theory. Unless those predicates are established, there is no basis for presuming that the defendant’s alleged misrepresentations were reflected in the security’s market price, and hence no grounding for any contention that investors indirectly relied on those misrepresentations through their reliance on the integrity of the market price. But unlike materiality, market efficiency and publicity are not indispensable elements of a Rule 10b-5 claim. See Matrixx Initiatives, 563 U. S., at 37-38 (listing elements of a Rule 10b-5 claim). Thus, where the market for a security is inefficient or the defendant’s alleged misrepresentations were not aired publicly, a plaintiff cannot invoke the fraud-on-the-market presumption. She can, however, attempt to establish reliance through the “traditional” mode of demonstrating that she was personally “aware of [the defendant’s] statement and engaged in a relevant transaction . . . based on that specific misrepresentation.” Halliburton, 563 U. S., at 810. Individualized reliance issues would predominate in such a lawsuit. See Basic, 485 U. S., at 242. The litigation, therefore, could not be certified under Rule 23(b)(3) as a class action, but the initiating plaintiff’s claim would remain live; it would not be “dead on arrival.” 660 F. 3d, at 1175.
A failure of proof on the issue of materiality, in contrast, not only precludes a plaintiff from invoking the fraud-on-the-market presumption of classwide reliance; it also establishes as a matter of law that the plaintiff cannot prevail on the merits of her Rule 10b-5 claim. Materiality thus differs from the market-efficiency and publicity predicates in this critical respect: While the failure of common, classwide proof on the issues of market efficiency and publicity leaves open the prospect of individualized proof of reliance, the failure of common proof on the issue of materiality ends the case for the class and for all individuals alleged to compose the class. See Brief for United States as Amicus Curiae 20 (“Unless the failure of common proof gives rise to a need for individualized proof, it does not cast doubt on the propriety of class certification.”). In short, there can be no actionable reliance, individually or collectively, on immaterial information. Because a failure of proof on the issue of materiality, unlike the issues of market efficiency and publicity, does not give rise to any prospect of individual questions overwhelming common ones, materiality need not be proved prior to Rule 23(b)(3) class certification.
2
Amgen also contends that certain “policy considerations” militate in favor of requiring precertification proof of materiality. Brief for Petitioners 28. An order granting class certification, Amgen observes, can exert substantial pressure on a defendant “to settle rather than incur the costs of defending a class action and run the risk of potentially ruinous liability.” Advisory Committee’s 1998 Note on subd. (f) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 143. See also AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 350 (2011) (class actions can entail a “risk of ‘in terrorem’ settlements”). Absent a requirement to evaluate materiality at the class-certification stage, Amgen contends, the issue may never be addressed by a court, for the defendant will surrender and settle soon after a class is certified. Insistence on proof of materiality before certifying a securities-fraud class action, Amgen thus urges, ensures that the issue will be adjudicated and not forgone. See also post, at 485-486 (Scalia, J., dissenting) (expressing the same concerns).
In this regard, however, materiality does not differ from other essential elements of a Rule 10b-5 claim, notably, the requirements that the statements or omissions on which the plaintiff’s claims are based were false or misleading and that the alleged statements or omissions caused the plaintiff to suffer economic loss. See Matrixx Initiatives, 563 U. S., at 37-38. Settlement pressure exerted by class certification may prevent judicial resolution of these issues. Yet this Court has held that loss causation and the falsity or misleading nature of the defendant’s alleged statements or omissions are common questions that need not be adjudicated before a class is certified. See Halliburton, 563 U. S., at 809 (loss causation need not be proved at the class-certification stage); Basic, 485 U. S., at 242 (“the falsity or misleading nature of the . . . public statements” allegedly made by the defendant is a “common questio[n]”). See also Schleicher, 618 F. 3d, at 685 (falsity of alleged misstatements need not be proved before certification of a securities-fraud class action).
Congress, we count it significant, has addressed the settlement pressures associated with securities-fraud class actions through means other than requiring proof of materiality at the class-certification stage. In enacting the Private Securities Litigation Reform Act of 1995 (PSLRA), 109 Stat. 737, Congress recognized that although private securities-fraud litigation furthers important public-policy interests, prime among them, deterring wrongdoing and providing restitution to defrauded investors, such lawsuits have also been subject to abuse, including the “extraction]” of “extortionate ‘settlements’ ” of frivolous claims. H. R. Conf. Rep. No. 104-369, pp. 31-32 (1995). The PSLRA’s response to the perceived abuses was, inter alia, to “impos[e] heightened pleading requirements” for seeurities-fraud actions, “limit recoverable damages and attorney’s fees, provide a 'safe harbor’ for forward-looking statements, impose new restrictions on the selection of (and compensation awarded to) lead plaintiffs, mandate imposition of sanctions for frivolous litigation, and authorize a stay of discovery pending resolution of any motion to dismiss.” Merrill Lynch, Pierce, Fenner & Smith Inc. v. Dabit, 547 U. S. 71, 81-82 (2006). See also 15 U. S. C. § 78u-4 (2006 ed. and Supp. V). Congress later fortified the PSLRA by enacting the Securities Litigation Uniform Standards Act of 1998, 112 Stat. 3227, which curtailed plaintiffs’ ability to evade the PSLRA’s limitations on federal seeurities-fraud litigation by bringing class-action suits under state rather than federal law. See 15 U. S. C. §78bb(f)(1) (2006 ed.).
While taking these steps to curb abusive seeurities-fraud lawsuits, Congress rejected calls to undo the fraud-on-the-market presumption of classwide reliance endorsed in Basic. See Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 153, and n. 8 (noting that the initial version of H. R. 10, 104th Cong., 1st Sess. (1995), an unenacted bill that, like the PSLRA, was designed to curtail abuses in private securities litigation, “would have undone Basic”). See also Common Sense Legal Reform Act: Hearings before the Subcommittee on Telecommunications and Finance of the House Committee on Commerce, 104th Cong., 1st Sess., 92, 236-237, 251-252, 272 (1995) (witnesses criticized the fraud-on-the-market presumption and expressed support for H. R. 10’s requirement that seeurities-fraud plaintiffs prove direct reliance). Nor did Congress decree that seeurities-fraud plaintiffs prove each element of their claim before obtaining class certification. Because Congress has homed in on the precise policy concerns raised in Am-gen’s brief, “[w]e do not think it appropriate for the judiciary to make its own further adjustments by reinterpreting Rule 23 to make likely success on the merits essential to class certification in seeurities-fraud suits.” Schleicher, 618 F. 3d, at 686; cf. Smith v. Bayer Corp., 564 U. S. 299, 317-318 (2011) (“Congress’s decision to address the relitigation concerns associated with class actions through the mechanism of removal provides yet another reason for federal courts to adhere in this context to longstanding principles of preclusion.”).
In addition to seeking our aid in warding off “in terrorem” settlements, Amgen also argues that requiring proof of materiality before class certification would conserve judicial resources by sparing judges the task of overseeing large class proceedings in which the essential element of reliance cannot be proved on a classwide basis. In reality, however, it is Amgen’s position, not the judgments of the lower courts in this case, that would waste judicial resources. Amgen’s argument, if embraced, would necessitate a minitrial on the issue of materiality at the class-certification stage. Such preliminary adjudications would entail considerable expenditures of judicial time and resources, costs scarcely anticipated by Federal Rule of Civil Procedure 23(c)(1)(A), which instructs that the decision whether to certify a class action be made “[a]t an early practicable time.” If the class is certified, materiality might have to be shown all over again at trial. And if certification is denied for failure to prove materiality, nonnamed class members would not be bound by that determination. See Smith, 564 U. S., at 312-318. They would be free to renew the fray, perhaps in another forum, perhaps with a stronger showing of materiality.
Given the tenuousness of Amgen’s judicial-economy argument, Amgen’s policy arguments ultimately return to the contention that private seeurities-fraud actions should be hemmed in to mitigate their potentially “vexatiou[s]” character. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 739 (1975). We have already noted what Congress has done to control exorbitant securities-fraud actions. See supra, at 476-477. Congress, the Executive Branch, and this Court, moreover, have “recognized that meritorious private actions to enforce federal antifraud securities laws are an essential supplement to criminal prosecutions and civil enforcement actions brought, respectively, by the Department of Justice and the Securities and Exchange Commission.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308, 313 (2007); see H. R. Conf. Rep. No. 104-369, at 31; Brief for United States as Amicus Curiae 1. See also Amchem, 521 U. S., at 617 (“ ‘The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’” (quoting Mace v. Van Ru Credit Corp., 109 F. 3d 338, 344 (CA7 1997))). We have no warrant to encumber securities-fraud litigation by adopting an atextual requirement of precertification proof of materiality that Congress, despite its extensive involvement in the securities field, has not sanctioned.
C
Justice Sc alia acknowledges that proof of materiality is not required to satisfy Rule 23(b)(3)’s predominance requirement. See post, at 483. Nevertheless, he maintains that full satisfaction of Rule 23’s requirements is insufficient to obtain class certification under Basic. In Justice Scalia’s view, the Court’s decision in Basic established a special rule: A securities-fraud class action cannot be certified unless all of the prerequisites of the fraud-on-the-market presumption of reliance, including materiality, have first been established. Post, at 484.
The purported rule is Justice Scalia’s invention. It cannot be attributed to anything the Court said in Basic. That decision is best known for its endorsement of the fraud-on-the-market theory. But the opinion also established something more. It stated the proper standard for judging the materiality of misleading statements regarding the existence and status of preliminary merger discussions. See 485 U. S., at 230-241, 250 (“Materiality in the merger context depends on the probability that the transaction will be consummated, and its significance to the issuer of the securities.”). The District Court in Basic certified a class of investors whose share prices were allegedly depressed by misleading statements that disguised ongoing merger negotiations. Id., at 228. Postcertification, the court granted summary judgment to the defendants on the ground that the alleged misstatements were immaterial as a matter of law. Id., at 228-229. The Court of Appeals affirmed the class certification but reversed the grant of summary judgment. Id., at 229. This Court, in turn, vacated the Court of Appeals’ judgment and remanded for further proceedings on the defendants’ summary-judgment motion in light of the materiality standard set forth in the Court’s opinion. Id., at 240-241, 250. Notably, however, we did not disturb the District Court’s class-certification order, which we stated “was appropriate when made.” Id., at 250.
If Justice Scalia were correct that our decision in Basic demands proof of materiality before class certification, the Court in Basic should have ordered the lower courts to reconsider on remand both the defendants’ entitlement to summary judgment and the propriety of class certification. Instead, the Court expressly endorsed the District Court’s class-certification order while at the same time recognizing that further proceedings were necessary to determine whether the plaintiffs had mustered sufficient evidence to satisfy the relatively lenient standard for avoiding summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242, 248 (1986) (“[Sjummary judgment will not lie if . . . the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”). Unlike Justice Sc alia, we are unwilling to presume that Basic announced a rule requiring precertification proof of materiality when Basic failed to apply any such rule to the very case before it.
Ill
Amgen also argues that the District Court erred by refusing to consider the rebuttal evidence Amgen proffered in opposing Connecticut Retirement’s class-certification motion. This evidence, Amgen contends, showed that “in light of all the information available to the market,” its alleged misrepresentations and misleading omissions “could not be presumed to have altered the market price because they would not have ‘significantly altered the total mix of information made available.’” Brief for Petitioners 40-41 (quoting Basic, 485 U. S., at 282). For example, Connecticut Retirement’s complaint alleges that an Amgen executive misleadingly downplayed the significance of an upcoming Food and Drug Administration advisory committee meeting by incorrectly stating that the meeting would not focus on one of Amgen’s leading drugs. See App. to Pet. for Cert. 17a. Amgen responded to this allegation by presenting public documents—including the committee’s meeting agenda, which was published in the Federal Register more than a month before the meeting—stating that safety concerns associated with Amgen’s drug would be discussed at the meeting. See id., at 41a-42a. See also 69 Fed. Reg. 16582 (2004).
The District Court did not err, we agree with the Court of Appeals, by disregarding Amgen’s rebuttal evidence in deciding whether Connecticut Retirement’s proposed class satisfied Rule 23(b)(3)’s predominance requirement. The Court of Appeals concluded, and Amgen does not contest, that Am-gen’s rebuttal evidence aimed to prove that the misrepresentations and omissions alleged in Connecticut Retirement’s complaint were immaterial. 660 F. 3d, at 1177 (characterizing Amgen’s rebuttal evidence as an attempt to present a “ ‘truth-on-the-market’ defense,” which the Court of Appeals explained “is a method of refuting an alleged misrepresentation’s materiality”). See also Reply Brief 17 (Amgen’s evidence was offered to rebut the “materiality predicate” of the fraud-on-the-market theory). As explained above, however, the potential immateriality of Amgen’s alleged misrepresentations and omissions is no barrier to finding that common questions predominate. See Part II, supra. If the alleged misrepresentations and omissions are ultimately found immaterial, the fraud-on-the-market presumption of classwide reliance will collapse. But again, as earlier explained, see supra, at 467-470, individual reliance questions will not overwhelm questions common to the class, for the class members’ claims will have failed on their merits, thus bringing the litigation to a close. Therefore, just as a plaintiff class’s inability to prove materiality creates no risk that individual questions will predominate, so even a definitive rebuttal on the issue of materiality would not undermine the predominance of questions common to the class.
We recognized as much in Basic itself. A defendant could “rebut the [fraud-on-the-market] presumption of reliance,” we observed in Basic, by demonstrating that “news of the [truth] credibly entered the market and dissipated the effects of [prior] misstatements.” 485 U. S., at 248-249. We emphasized, however, that “[p]roof of that sort is a matter for trial” (and presumably also for a summary-judgment motion under Federal Rule of Civil Procedure 56). 485 U. S., at 249, n. 29. The District Court thus correctly reserved consideration of Amgen’s rebuttal evidence for summary judgment or trial. It was not required to consider the evidence in determining whether common questions predominated under Rule 23(b)(3).
⅜ ⅜ ⅜
For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.
Part IV of Justice Blackmun’s opinion in Basic—the part endorsing the fraud-on-the-market theory—was joined by Justices Brennan, Marshall, and Stevens. Together, these Justices composed a majority of the quorum of six Justices who participated in the case. See 28 U. S. C. § I (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.”).
Although describing Basic’s adoption of the fraud-on-the-market presumption of reliance as “questionable,” Justice Thomas’ dissent acknowledges that “the Court has not been asked to revisit” that issue. Post, at 489, n. 4. See also post, p. 482 (Alito, J., concurring).
Amgen’s allegedly improper marketing practices have sparked federal and state investigations and several whistleblower lawsuits. See Dye, Amgen To Pay $762 Million in Drug-Marketing Case, Washington Post, Dec. 19, 2012, p. A17.
We agree with Justice Thomas that “[m]ateriality was central to the development, analysis, and adoption of the fraud-on-the-market theory both before Basic and in Basic itself.” Post, at 502. We disagree, however, that the history of the fraud-on-the-market theory’s development “confirms that materiality must be proved at the time that the theory is invoked—i. e., at certification.” Ibid. As explained below, see infra, at 468-470, proof of materiality is not required prior to class certification because such proof is not necessary to ensure satisfaction of Rule 23(b)(3)’s predominance requirement.
Justice Thomas is also wrong in arguing that a failure of proof on the issue of materiality would demonstrate that a Rule 10b-5 class action “should not have been certified in the first place.” Post, at 487. Quite the contrary. The fact that such a failure of proof resolves all class members’ claims once and for all, leaving no individual issues to be adjudicated, confirms that the original certification decision was proper.
Amgen advances a third argument founded on modern economic research tending to show that market efficiency is not ‘“a binary, yes or no question.’” Brief for Petitioners 32 (quoting Langevoort, Basic at Twenty: Rethinking Fraud on the Market, 2009 Wis. L. Rev. 151, 167). Instead, this research suggests, differences in efficiency can exist within a single market. For example, a market may more readily process certain forms of widely disseminated and easily digestible information, such as public merger announcements, than information more difficult to acquire and understand, such as obscure technical data buried in a filing with the Securities and Exchange Commission. See, e. g., Macey & Miller, Good Finance, Bad Economics: An Analysis of the Fraud-on-the-Market Theory, 42 Stan. L. Rev. 1059,1083-1087 (1990); Stout, The Mechanisms of Market Inefficiency: An Introduction to the New Finance, 28 J. Corp. L. 635, 653-656 (2003). Amgen, however, never clearly explains how this research on market efficiency bolsters its argument that courts should require precertification proof of materiality. In any event, this case is a poor vehicle for exploring whatever implications the research Amgen cites may have for the fraud-on-the-market presumption recognized in Basic. As noted above, see swpra, at 463, Amgen conceded in its answer that the market for its securities is “efficient” and thus “promptly digest[s] current information regarding Amgen from all publicly available sources and re-flectes] such information in Amgen’s stock price.” Consolidated Amended Class Action Complaint ¶¶199-200; Answer ¶¶ 199-200. See also App. to Pet. for Cert. 40a (relying on the admission in Amgen’s answer and an unchallenged expert report submitted by Connecticut Retirement, the District Court expressly found that the market for Amgen’s stock was efficient). Amgen remains bound by that concession. See American Title Ins. Co. v. Lacelaw Corp., 861 F. 2d 224, 226 (CA9 1988) (“Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.”); cf. Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U. S. 661, 677 (2010) (“This Court has . . . refused to consider a party’s argument that contradicted a joint ‘stipulation [entered] at the outset of th[e] litigation.’” (quoting Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 226 (2000))). We thus find nothing in the cited research that would support requiring pre-certification proof of materiality in this case.
As earlier noted, see supra, at 459, Amgen does not here contest Connecticut Retirement’s satisfaction of Rule 23(a)’s requirements.
Accordingly, “the timing of the relevant stock trades” is indeed an “element” of the fraud-on-the-market theory. Post, at 490, n. 6 (opinion of Thomas, J.). Unlike Justice Thomas, however, see ibid., we do not understand the United States as amicus curiae to take a different view. See Brief for United States 15, n. 2 (“Precise identification of the times when the alleged misrepresentation was made and the truth was subsequently revealed is . . . important to ensure that the named plaintiff has traded stock during the time the stock price allegedly was distorted by the defendant’s misrepresentations.”).
Scouring the Court’s decision in Basic for some semblance of support for his position, Justice Scalia attaches portentous significance to Basic’s statement that the District Court’s class-certification order, although “ ‘appropriate when made,’ ” was “ ‘subject on remand to such adjustment, if any, as developing circumstances demanded].’ ” Post, at 484 (quoting Basic, 485 U. S., at 250). This statement, however, merely reminds that certifications are not frozen once made. Rule 23 empowers district courts to “alte[r] or amen[d]” class-certification orders based on circumstances developing as the ease unfolds. Rule 23(c)(1) (1988). See also Rule 23(c)(1)(C) (2013).
Justice Scalia suggests that the Court’s approach in Basic might have been influenced by the obsolete view that “ ‘Rule 23 . . . set[s] forth a mere pleading standard.” ” Post, at 484 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U. S. 338, 350 (2011)). The opinion in Basic, however, provides no indication that the Court perceived any issue before it to turn on the question whether a plaintiff must merely plead, rather than “affirmatively demonstrate,” her satisfaction of Rule 23⅛ certification requirements. Dukes, 564 U. S., at 350.
Amgen attempts to minimize the import of this statement by noting that it was made prior to a 2003 amendment to Rule 23 that eliminated district courts’ authority to conditionally certify class actions. See Advisory Committee’s 2003 Note on subd. (c)(1) of Fed. Rule Civ. Proc. 23, 28 U. S. C. App., p. 144. Nothing in our opinion in Basic, however, suggests that the statement relied in any way on district courts’ conditional-certification authority. To the contrary, the Court in Basic stated: “Proof of that sort [i. e., that news of the truth had entered the market and dissipated the effects of prior misstatements] is a matter for trial, throughout which the District Court retains the authority to amend the certification order as may be appropriate.” 485 U. S., at 249, n. 29 (emphasis added). Rule 23(c)(1)(C) continues to provide that a class-certification order “may be altered or amended before final judgment.”
Question: What is the ideological direction of the decision reviewed by the Supreme Court?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_timely | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
MILWAUKEE AREA VOCATIONAL TECHNICAL AND ADULT EDUCATION DISTRICT, Plaintiff-Appellant, v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
No. 87-1553.
United States Court of Appeals, Seventh Circuit.
Argued Dec. 15, 1987.
Decided June 1, 1988.
John A. Casey, Quarles & Brady, Milwaukee, Wis., for plaintiff-appellant.
David A. Luptak, Law Dept., USX Corp., Pittsburgh, Pa., for defendant-appellee.
Before WOOD, Jr., MANION and KANNE, Circuit Judges.
MANION, Circuit Judge.
Plaintiff, Milwaukee Area Vocational Technical and Adult Education District (MATC), brought this action against United States Steel Corporation (USS) for the cost of replacement and repair of steel used in the construction of MATC’s campus buildings. USS moved for summary judgment on the ground that MATC’s claim was time-barred. The district court granted the motion and MATC appeals. We affirm.
I.
In the mid-1970’s, MATC commenced extensive construction projects involving the construction of its North Campus Center, its South Campus Center, and an addition to its West Campus Center. The specifications for all three buildings called for the use of “weathering steel” in the construction of the buildings’ roofs and portions of the exterior walls. The specifications for the “weathering steel” were nearly identical for all three buildings. The brand of “weathering steel” actually used in the construction was Cor-Ten steel manufactured by USS. The construction at the North Campus Center and South Campus Center was substantially completed in July, 1976. The construction at the West Campus Center was substantially completed by November, 1977.
In December, 1978, MATC discovered unusual rusting and staining of the Cor-Ten steel at its North Campus Center. Two architects employed by MATC, James Pauers (MATC’s Manager of Construction Services) and Lawrence Earll (a consulting architect) investigated the problem. A memorandum by MATC’s consulting architect dated February 8, 1979, stated that “[investigation has revealed that [Cor-Ten] steel of this g[au]ge can rust thru unless back painted.” The memo concluded:
Review of the shop drawing draws the conclusion that it is a “poor design” of the gutter installation that is contributing to the rusting of the soffit panels. The estimated cost to correct the problems is $60,000.00. This would include the removal of all the gutters; replacing those soffit panels indicating rusting action; caulking at the joining of the soffit panel to the fascia panel; and reinstalling the gutter.
Another document prepared for MATC in February, 1979, stated that the solution to the problem “is to remove all of the drip/gutters; replace defective panels, caulk at the intersection of the soffit and fascia [panels], and reinstall the drip/gutter,” and that “MATC concluded that this was a poorly designed detail.” The memo also noted that the problem with the rusting of the Cor-Ten steel was not observed at the South Campus Center.
The project architects, whom MATC thought shouldered the “probable responsibility” for the problem, conducted their own investigation. In a letter dated July 3, 1979, the project architects noted, among other things, that the Cor-Ten steel needed additional weathering.
Despite having notice of the unusual rusting and staining in December, 1978, MATC waited until March, 1985, to bring this action. MATC’s complaint, naming USS as the sole defendant, alleged that the Cor-Ten supplied by USS was defective, that USS knew or should have known that the Cor-Ten was subject to excessive corrosion and deterioration, that USS negligently failed to disclose that the Cor-Ten was defective, and that the defective Cor-Ten was unreasonably dangerous to MATC’s property, employees, and students. USS moved for summary judgment on the ground that MATC’s action was barred by the six-year limitation period contained in WIS.STAT.ANN. § 893.52 (West 1983). The district court granted USS's motion.
II.
ANALYSIS
WIS.STAT.ANN. § 893.52 (West 1983) places a six-year limitations period on actions “not arising on contract, to recover damages for an injury to real or personal property_” Under § 893.52, the statute of limitations begins to run “after [a] cause of action accrues.” Thus, we must affirm the district court’s grant of summary judgment if the undisputed facts establish that MATC’s action accrued more than six years before it filed its complaint in March, 1985.
In Wisconsin Natural Gas Co. v. Ford, Bacon & Davis Construction Corp., 96 Wis.2d 314, 291 N.W.2d 825 (Wis.1980), the Wisconsin Supreme Court held that under § 893.52 (then codified as WIS.STAT. § 893.19(5)):
[A] cause of action accrues and the statute of limitations ... begins to run when the evidence of injury to property, resulting from the negligent act upon which the action is based, is sufficiently significant to alert the injured party to the possibility of a defect. The injury need not, however, be of such magnitude as to identify the causal factor.
96 Wis.2d at 324, 291 N.W.2d at 830 (emphasis in original) (quoting Tallmadge v. Skyline Construction, Inc., 86 Wis.2d 356, 359, 272 N.W.2d 404, 405 (Wis.Ct.App.1978)). In Wisconsin Natural Gas, the plaintiff had retained the defendant, a pipeline engineering and consulting firm, to design and supervise the installation of a 14-mile natural gas transmission pipeline. The plaintiff sued the defendant after there were a number of “casing shorts” in the pipeline. The defendant argued that the plaintiff’s cause of action was time-barred on the ground that the limitations period began to run as soon as the pipeline suffered its first “casing short.” There was evidence, however, that “casing shorts” are a regular occurrence in a pipeline and often caused by factors other than the improper installation of a pipeline. In view of this evidence, the court held that “the discovery of a single casing short, in a relatively new pipeline, is not ‘sufficiently significant’ to alert the [plaintiff] to the possibility of major defects throughout the entire 14 mile pipeline.” 96 Wis.2d at 325, 291 N.W.2d at 830-31. Instead, the court held that the plaintiff’s cause of action did not accrue “until a number of ‘casing shorts’ rendered the cathodic protection process ineffective and necessitated an extensive excavation and repair program to clear the pipeline of the shorts.” Id.
Relying heavily on Wisconsin Natural Gas, the Wisconsin Supreme Court subsequently adopted the “discovery rule” for purposes of determining the accrual of all tort causes of action. See Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W. 2d 578, 583 (Wis.1983). In Hansen, the plaintiff brought suit against the manufacturer of an intrauterine device alleging that the device caused her to contract pelvic inflammatory disease. Plaintiff filed her suit within three years of the time she had been diagnosed as suffering from pelvic inflammatory disease but more than three years after she first suffered the effects of the disease. Her problem had been previously diagnosed by a doctor as gastroenteritis. The manufacturer sought to have the plaintiff’s claim dismissed as time-barred on the ground that the three-year limitations period governing plaintiff’s cause of action accrued when plaintiff first suffered injury as a result of the intrauterine device, even though plaintiff was not aware the device caused her injury until she was diagnosed as suffering from pelvic inflammatory disease. The manufacturer relied upon several Wisconsin cases holding that a negligence action accrues at the time an injury is suffered even if the plaintiff was not aware of the injury. See Rod v. Farrell, 96 Wis.2d 349, 291 N.W.2d 568 (Wis.1980) (three-year limitations period barred claim for surgery that was negligently performed in 1955 even though plaintiff did not discover injury until 1975); Peterson v. Roloff, 57 Wis.2d 1, 203 N.W.2d 699 (Wis.1973) (three-year limitations period barred action for surgery that was negligently performed in 1954 even though plaintiff did not suffer effects of negligence until 1971). The Hansen court rejected the rule enunciated in Rod and Peterson, holding instead that tort claims are not deemed to accrue until “the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first.” 113 Wis.2d at 560, 335 N.W.2d at 583. The court then held that plaintiffs cause of action was not time-barred because it did not accrue until plaintiff was diagnosed as suffering from pelvic inflammatory disease.
The discovery rule was further explained by the Wisconsin Supreme Court in Borello v. U.S. Oil Co., 130 Wis.2d 397, 388 N.W.2d 140 (Wis.1986). In Borello, the court was asked to determine whether a personal injury action based upon the plaintiffs’ contraction of “metal fume fever” from a defective furnace was timely filed. The plaintiff in Borello had suffered from several ailments which she attributed to a newly-installed furnace. Various physicians, however, diagnosed her as suffering from conditions that had nothing to do with the furnace, such as viral infections, allergies, and psychoneurosis. Finally, a doctor diagnosed her as suffering from “metal fume fever” as a result of the defective furnace. The court in Borello held that the plaintiffs cause of action did not accrue until that diagnosis. According to the Borello court, it was “apparent from the general tenor of Hansen that this court did not, by the language ‘claims shall accrue on the date the injury is discovered,’ mean the date on which the manifestations of the injury shall first appear.” 130 Wis.2d at 408, 388 N.W.2d at 144-45. Rather, the court determined that the limitations period did not begin until the plaintiff knew the nature of her illness as diagnosed by her doctor. 130 Wis.2d at 409, 388 N.W.2d at 145. The court stated that the statute of limitations “should not commence to run until the plaintiff with due diligence knows to a reasonable probability of injury, its nature, its cause, and the identity of the allegedly responsible defendant.” 130 Wis. 2d at 420, 388 N.W.2d at 149.
Here, MATC concedes that the undisputed facts established that it was aware that it suffered an “injury” related to the Cor-Ten steel more than six years before it filed suit. Nonetheless, MATC contends under Hansen and Borello it had no obligation to file its action against USS within six years of the date of the discovery of its injury because it perceived that the problem was related to “ ‘poor design’ of the gutter installation that is contributing to the rusting of the soffit panels.” It also relies upon the fact that the problem observed at the North Campus in December, 1978, was not observed at the South Campus and that, as late as July, 1979, the project architect (the same architect MATC believed to be responsible for the problem) advised MATC that the steel needed additional weathering. According to MATC, these facts establish that it did not know until after March, 1979, the nature of the injury, the cause of the injury, or the identity of the responsible party as required by Borello. We disagree.
Although Borello makes clear that under the discovery rule a plaintiff must be aware of some causal connection between the injury and the defendant’s product, Bo-rello does not help MATC in the present case. Borello, like Hansen, was a personal injury case in which the plaintiff could not be deemed to be objectively aware that she had a cause of action against any party until her illness was correctly diagnosed by a physician. Moreover, Borello makes clear that the nature of the injury must be taken into account in determining whether a cause of action has accrued under the discovery rule:
The rule in its full meaning, meaning consistent with Hansen, was explicated by Chief Justice Kenison of the New Hampshire Supreme Court in Arthur Raymond v. Eli Lilly and Company, 117 N.H. 164, 170-171, 371 A.2d 170 (1977):
‘One might read several discovery rule cases and conclude that the courts are applying two substantially distinct rules. In most cases, the courts frame the rule in terms of the plaintiff’s discovery of the causal relationship between his injuries and the defendant’s conduct. In some cases ... a court will simply state that, under the discovery rule, a cause of action accrues when the plaintiff discovers or should have discovered his injury. Some other courts use both statements of the rule within the same case. The reason for these apparent differences is that most cases in which the court states the rule in terms of the discovery of the injury, the injury is the kind that puts the plaintiff on notice that his rights have been violated. Thus, there is no reason for the court to express the rule in terms of the discovery of the causal connection between the harm and the defendant’s conduct. In a case such as the one before us, in which the injury and the discovery of the causal relationship do not occur simultaneously, it is important to articulate exactly what the discovery rule means. We believe that the proper formulation of the rule and the one that will cause the least confusion is the one adopted by the majority of the courts: A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been injured but also that his injury may have been caused by the defendant’s conduct.’
130 Wis.2d at 409-410, 388 N.W.2d at 145.
In the present case, MATC was put on notice of a problem related to the Cor-Ten steel and its possible connection with USS more than six years before it filed its complaint. The facts in the record establish that MATC knew in December, 1978, that there was unusual rusting and staining of the Cor-Ten steel. These facts alone were certainly sufficient to put MATC on notice that its rights had been violated and that the problem was probably caused by either defective design, defective Cor-Ten steel supplied by USS, or some combination of defective design and defective steel. It does not take a specialist to conclude that, once the problem with the rusting of the Cor-Ten steel was discovered, a significant possibility exists that the problem may be with the steel itself. Cf. Holy Family Catholic Congregation v. Stubenrauch Associates, Inc., 136 Wis.2d 515, 402 N.W. 2d 382 (Wis.Ct.App.1987) (stating that plaintiff’s cause of action against defendants for a defectively constructed roof accrued under discovery rule when plaintiff became aware of leaks in roof). In any event, MATC clearly had such notice by February, 1979. In February, 1979, its consulting architects noted that: “[Cor-Ten] steel of this [gauge] can rust thru unless back painted”; that “ ‘poor design’ of the gutter installation ... is contributing to the rusting ...”; and, that “[t]he solution is to remove all the drip/gutters; caulk at the intersection of the soffit and fascia, and reinstall the drip/gutter.” (Emphasis added.) From that point in time, at the latest, MATC had six years to investigate fully and to determine to its own satisfaction which particular entity or entities it sought to hold accountable. Furthermore, the fact that the unusual rusting and staining were not observed at the south or west building sites before March, 1979, does not alter the fact that plaintiff was put on notice of the possibility of a defect with all the Cor-Ten supplied by USS. The specifications for Cor-Ten used in all three buildings were nearly identical and the buildings were all constructed during the same general time period. In fact, the South Campus Center was “substantially completed” within two weeks of the “substantial completion” of the North Campus Center. Once MATC had notice of the possibility of a significant defect in the Cor-Ten steel itself, it follows that a reasonable person should have been aware of the fact that all the Cor-Ten supplied for all the projects might be defective.
In short, the limitations period does not begin to run until there is some notice of the injury and of a causal connection between the injury and the defendant, but once there is such notice, Borello does not allow a party to extend the limitations period by its own protracted elimination of potential defendants. As the district court pointed out, MATC essentially argues that it should be able to delay the accrual of its cause of action at its own whim. Even now, USS vigorously denies that the Cor-Ten is defective. Under plaintiffs subjective theory, until the exact defect (if any) or the allegedly responsible defendant is determined to its own subjective satisfaction, the statute does not begin to run. As Hansen makes clear, however, the discovery rule is an objective standard that does not protect those plaintiffs who sleep on their rights. See Hansen, 113 Wis.2d at 559, 335 N.W.2d at 582.
The decision of the district court is
Affirmed.
. The United States Steel Corporation is now named USS, a Division of USX.
. WIS.STAT.ANN. § 893.52 (West 1983) provides:
Action for damages for injury to property An action, not arising on contract, to recover damages for an injury to real or personal property shall be commenced within 6 years after the cause of action accrues or be barred, except in the case where a different period is expressly prescribed.
. Before moving for summary judgment on limitations grounds, USS moved for summary judgment on the ground that the six-year statute of repose contained in WIS.STAT.ANN. § 893.89 (West 1983) barred MATC’s action. The district court denied this motion. USS contends on appeal that even if the district court incorrectly granted summary judgment under § 893.52, we should nonetheless affirm the district court because the undisputed material facts show that it is entitled to judgment as a matter of law under § 893.89. Because we affirm the district court’s grant of summary judgment on the limitations issue, we need not reach this possible alternative ground of affirmance.
. MATC argues that the Wisconsin Court of Appeals’ decision in Holy Family should be disregarded because it is inconsistent with the Wisconsin Supreme Court’s decision in Borello. MATC claims that the standard applied in Holy Family is inconsistent with Borello because it stated that plaintiffs need not be aware of the "specific causal factor of the injury.” Assuming arguendo that the standard applied in Holy Family is inconsistent with Borello, its strict holding is not. As discussed earlier, Borello makes clear that the nature of the injury must be taken into account. Unlike an internal physical injury, a leaking roof or unusual rusting in steel will certainly put a plaintiff on notice that it has suffered an injury and of the identity of the allegedly responsible defendant.
Question: Did the court conclude that it could not reach the merits of the case because the litigants had not complied with some rule relating to timeliness, a filing fee, or because a statute of limitations had expired?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
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AMCHEM PRODUCTS, INC., et al. v. WINDSOR et al.
No. 96-270.
Argued February 18, 1997
Decided June 25, 1997
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined, post, p. 629. O’Connor, J., took no part in the consideration or decision of the case.
Stephen M. Shapiro argued the cause for petitioners. With him on the briefs were John D. Aldock, Elizabeth Runyan Geise, Richard M. Wyner, Kenneth S. Getter, Andrew J. Pincus, Charles A. Rothfeld, Eileen Penner, Robert H. Bork, Max Gitter, Blake Perkins, and Nancy B. Stone.
Laurence H. Tribe argued the cause and filed a brief for respondent Windsor et al. With him on the brief were Brian Koukoutchos, Jonathan S. Massey, Frederick M. Baron, Brent M. Rosenthal, and Steve Baughman. Brad Seligman, Jocelyn D. Larkin, Donna M. Ryu, Sharon R. Vi-nick, and Steven Kazan filed a brief for respondent Cargile et al. Shepard A. Hoffman filed a brief for respondent Ba-lonis et al. Ronald L. Motley, Joseph F. Rice, Nancy Worth Davis, Gene Locks, and Jonathan W. Miller filed a brief for respondent Georgine et al. Brian Wolfman and Alan B. Morrison filed a brief for respondent White Lung Association of New Jersey et al.
Briefs of amici curiae urging reversal were filed for the National Association of Securities and Commercial Lawyers by Kevin P. Roddy, Clinton A. Krislov, and Robert J. Stein III; for the Chamber of Commerce of the United States by John H. Beisner, Brian D. Boyle, Stephen A. Bokat, and Robin S. Conrad; for Rhone-Poulenc Rorer Inc. et al. by Carter G. Phillips, Richard L. Berkman, and Fred T. Magaziner; and for the Washington Legal Foundation by Daniel J. Popeo.
Briefs of amici curiae urging affirmance were filed for the State of New York et al. by Dennis C. Vacco, Attorney General of New York, Barbara Gott Billet, Solicitor General, Shirley F. Sarna, Nancy Spiegel, Joy Feig-enbaum, and Jane M. Kimmel, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, Thomas F. Gede, Special Assistant Attorney General, and Albert Norman Shelden, Supervising Deputy Attorney General, Charles P. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General of their respective jurisdictions as follows: Winston Bryant of Arkansas, M. Jane Brady of Delaware, Alan G. Lance of Idaho, Carla J. Stovall of Kansas, Albert B. Chandler III of Kentucky, Frank J. Kelley of Michigan, Hubert H. Humphrey III of Minnesota, Joseph P. Mazurek of Montana, Frankie Sue Del Papa of Nevada, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, W. A. Drew Edmondson of Oklahoma, James S. Gilmore III of Virginia, and Calvin E. Holloway, Sr., of Guam; for the Asbestos Victims of America by Maynard Ungerman; for the Association of Trial Lawyers of America by Jeffrey Robert White and Howard F. Twiggs; for Law Professors by Charles Silver and Samuel Issacharoff; for Owens-Illinois, Inc., by James D. Miller; and for Trial Lawyers for Public Justice by Leslie A. Brueckner and Arthur H. Bryant.
Justice Ginsburg
delivered the opinion of the Court.
This ease concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class-action certification sought to achieve global settlement of current and future asbestos-related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tied together by this commonality: Each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here.
The United States District Court for the Eastern District of Pennsylvania certified the class for settlement only, finding that the proposed settlement was fair and that representation and notice had been adequate. That court enjoined class members from separately pursuing asbestos-related personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court of Appeals for the Third Circuit vacated the District Court’s orders, holding that the class certification failed to satisfy Rule 23’s requirements in several critical respects. We affirm the Court of Appeals’ judgment.
I
A
The settlement-class certification we confront evolved in response to an asbestos-litigation crisis. See Georgine v. Amchem Products, Inc., 83 F. 3d 610, 618, and n. 2 (CA3 1996) (citing commentary). A United States Judicial Conference Ad Hoc Committee on Asbestos Litigation, appointed by The Chief Justice in September 1990, described facets of the problem in a 1991 report:
“[This] is a tale of danger known in the 1930s, exposure inflicted upon millions of Americans in the 1940s and 1950s, injuries that began to take their toll in the 1960s, and a flood of lawsuits beginning in the 1970s. On the basis of past and current filing data, and because of a latency period that may last as long as 40 years for some asbestos related diseases, a continuing stream of claims can be expected. The final toll of asbestos related injuries is unknown. Predictions have been made of 200,000 asbestos disease deaths before the year 2000 and as many as 265,000 by the year 2015.
. “The most objectionable aspects of asbestos litigation can be briefly summarized: dockets in both federal and state courts continue to grow; long delays are routine; trials are too long; the same issues are litigated over and over; transaction costs exceed the victims’ recovery by nearly two to one; exhaustion of assets threatens and distorts the process; and future claimants may lose altogether.” Report of The Judicial Conference Ad Hoc Committee on Asbestos Litigation 2-3 (Mar. 1991).
Real reform, the report concluded, required federal legislation creating a national asbestos dispute-resolution scheme. See id., at 3, 27-35; see also id., at 42 (dissenting statement of Hogan, J.) (agreeing that “a national solution is the only answer” and suggesting “passage by Congress of an administrative claims procedure similar to the Black Lung legislation”). As recommended by the Ad Hoc Committee, the Judicial Conference of the United States urged Congress to act. See Report of the Proceedings of the Judicial Conference of the United States 33 (Mar. 12, 1991). To this date, no congressional response has emerged.
In the face of legislative inaction, the federal courts — lacking authority to replace state tort systems with a national toxic tort compensation regime — endeavored to work with the procedural tools available to improve management of federal asbestos litigation. Eight federal judges, experienced in the superintendence of asbestos cases, urged the Judicial Panel on Multidistrict Litigation (MDL Panel), to consolidate in a single district all asbestos complaints then pending in federal courts. Accepting the recommendation, the MDL Panel transferred all asbestos cases then filed, but not yet on trial in federal courts to a single district, the United States District Court for the Eastern District of Pennsylvania; pursuant to the transfer order, the collected cases were consolidated for pretrial proceedings before Judge Weiner. See In re Asbestos Products Liability Litigation (No. VI), 771 F. Supp. 415, 422-424 (JPML 1991). The order aggregated pending cases only; no authority resides in the MDL Panel to license for consolidated proceedings claims not yet filed.
B
After the consolidation, attorneys for plaintiffs and defendants formed separate steering committees and began settlement negotiations. Ronald L. Motley and Gene Locks — later appointed, along with Motley’s law partner Joseph F. Rice, to represent the plaintiff class in this action— cochaired the Plaintiffs’ Steering Committee. Counsel for the.Center for Claims Resolution (CCR), the consortium of 20 former asbestos manufacturers now before us as petitioners, participated in the Defendants’ Steering Committee. Although the MDL Panel order collected, transferred, and consolidated only cases already commenced in federal courts, settlement negotiations included efforts to find a “means of resolving... future cases.” Record, Doc. 3, p. 2 (Memorandum in Support of Joint Motion for Conditional Class Certification); see also Georgine v. Amchem Products, Inc., 157 F. R. D. 246, 266 (ED Pa. 1994) (“primary purpose of the settlement talks in the consolidated MDL litigatidn was to craft a national settlement that would provide an alternative resolution mechanism for asbestos claims,” including claims that might be filed in the future).
In November 1991, the Defendants’ Steering Committee made an offer designed to settle all pending and future asbestos cases by providing a fund for distribution by plaintiffs’ counsel among asbestos-exposed individuals. The Plaintiffs’ Steering Committee rejected this offer, and negotiations fell apart. CCR, however, continued to pursue “a workable administrative system for the handling of future claims.” Id., at 270.,
To that end, CCR counsel approached the lawyers who had headed the Plaintiffs’ Steering Committee in the unsuccessful negotiations, and a new round of negotiations began; that round yielded the mass settlement agreement now in controversy. At the time, the former heads of the Plaintiffs’ Steering Committee represented thousands of plaintiffs with then-pending asbestos-related claims — claimants the parties to this suit call “inventory” plaintiffs. CCR indicated in these discussions that it would resist settlement of inventory cases absent “some kind of protection for the future.” Id., at 294; see also id., at 295 (CCR communicated to the inventory plaintiffs’ attorneys that once the CCR defendants saw a rational way to deal with claims expected to be filed in the future, those defendants would be prepared to address the settlement of pending cases).
Settlement talks thus concentrated on devising an administrative scheme for disposition of asbestos claims not yet in litigation. In these negotiations, counsel for masses of inventory plaintiffs endeavored to represent the interests of the anticipated future claimants, although those lawyers then had no attorney-client relationship with such claimants.
Once negotiations seemed likely to produce an agreement purporting to bind potential plaintiffs, CCR agreed to settle, through separate agreements, the claims of plaintiffs who had already filed asbestos-related lawsuits. In one such agreement, CCR defendants promised to pay more than $200 million to gain release of the claims of numerous inventory plaintiffs. After settling the inventory claims, CCR, together with the plaintiffs’ lawyers CCR had approached, launched this case, exclusively involving persons outside the MDL Panel’s province — plaintiffs without already pending lawsuits.
C
The class action thus instituted was not intended to be litigated. Rather, within the space of a single day, January 15, 1993, the settling parties — CCR defendants and the representatives of the plaintiff class described below — presented to the District Court a complaint, an answer, a proposed settlement agreement, and a joint motion for conditional class certification.
The complaint identified nine lead plaintiffs, designating them and members of their families as representatives of a class comprising all persons who had not filed an asbestos-related lawsuit against a CCR defendant as of the date the class action commenced, but who (1) had been exposed— occupationally or through the occupational exposure of a spouse or household member — to asbestos or products containing asbestos attributable to a CCR defendant, or (2) whose spouse or family member had been so exposed. Untold numbers of individuals may fall within this description. All named plaintiffs alleged that they or a member of their family had been exposed to asbestos-containing products of CCR defendants. More than half of the named plaintiffs alleged that they or their family members had already suffered various physical injuries as a result of the exposure. The others alleged that they had not yet manifested any asbestos-related condition. The complaint delineated no subclasses; all named plaintiffs were designated as representatives of the class as a whole.
The complaint invoked the District Court’s diversity jurisdiction and asserted various state-law claims for relief, including (1) negligent failure to warn, (2) strict liability, (3) breach of express and implied warranty, (4) negligent infliction of emotional distress, (5) enhanced risk of disease, (6) medical monitoring, and (7) civil conspiracy. Each plaintiff requested unspecified damages in excess of $100,000. CCR defendants’ answer denied the principal allegations of the complaint and asserted 11 affirmative defenses.
A stipulation of settlement accompanied the pleadings; it proposed to settle, and to preclude nearly all class members from litigating against CCR companies, all claims not filed before January 15, 1993, involving compensation for present and future asbestos-related personal injury or death. An exhaustive document exceeding 100 pages, the stipulation presents in detail an administrative mechanism and a schedule of payments to compensate class members who meet defined asbestos-exposure and medical requirements. The stipulation describes four categories of compensable disease: mesothelioma; lung cancer; certain “other cancers” (colon-rectal, laryngeal, esophageal, and stomach cancer); and “non-malignant conditions” (asbestosis and bilateral pleural thickening). Persons with “exceptional” medical claims— claims that do not fall within the four described diagnostic categories — may in some instances qualify for compensation, but the settlement caps the number of “exceptional” claims CCR must cover.
For each qualifying disease category, the stipulation specifies the range of damages CCR will pay to qualifying claimants. Payments under the settlement are not adjustable for inflation. Mesothelioma claimants — the most highly compensated category — are scheduled to receive between $20,000 and $200,000. The stipulation provides that CCR is to propose the level of compensation within the prescribed ranges; it also establishes procedures to resolve disputes over medical diagnoses and levels of compensation.
Compensation above the fixed ranges may be obtained for “extraordinary” claims. But the settlement places both numerical caps and dollar limits on such claims. The settlement also imposes “case flow máximums,” which cap the number of claims payable for each disease in a given year.
Class members are to receive no compensation for certain kinds of claims, even if otherwise applicable state law recognizes such claims. Claims that garner no compensation under the settlement include claims by family members of asbestos-exposed individuals for loss of consortium, and claims by so-called “exposure-only” plaintiffs for increased risk of cancer, fear of future asbestos-related injury, and medical monitoring. “Pleural” claims, which might be asserted by persons with asbestos-related plaques on their lungs but no accompanying physical impairment, are also excluded. Although not entitled to present compensation, exposure-only claimants and pleural claimants may qualify for benefits when and if they develop a compensable disease and meet the relevant exposure and medical criteria. Defendants forgo defenses to liability, including statute of limitations pleas.
Class members, in the main, are bound by the settlement in perpetuity, while CCR defendants may choose to withdraw from the settlement after ten years. A small number of class members — only a few per year — may reject the settlement and pursue their claims in court. Those permitted to exercise this option, however, may not assert any punitive damages claim or any claim for increased risk of cancer. Aspects of the administration of the settlement are to be monitored by the AFL-CIO and class counsel. Class counsel are to receive attorneys’ fees in an amount to be approved by the District Court.
D
On January 29,1993, as requested by the settling parties, the District Court conditionally certified, under Federal Rule of Civil Procedure 23(b)(3), an encompassing opt-out class. The certified class included persons occupationally exposed to defendants’ asbestos products, and members of their families, who had not filed suit as of January 15. Judge Weiner appointed Locks, Motley, and Rice as class counsel, noting that “[t]he Court may in the future appoint additional counsel if it is deemed necessary and advisable.” Record, Doc. 11, p. 3 (Class Certification Order). At no stage of the proceedings, however, were additional counsel in fact appointed. Nor was the class ever divided into subclasses. In a separate order, Judge Weiner assigned to Judge Reed, also of the Eastern District of Pennsylvania, “the task of conducting fairness proceedings and of determining whether the proposed settlement is fair to the class.” See 157 F. R. D., at 258. Various class members raised objections to the settlement stipulation, and Judge Weiner granted the objectors full rights to participate in the subsequent proceedings. Ibid.
In preliminary rulings, Judge Reed held that the District Court had subject-matter jurisdiction, see Carlough v. Amchem Products, Inc., 834 F. Supp. 1437, 1467-1468 (ED Pa. 1993), and he approved the settling parties’ elaborate plan for giving notice to the class, see Carlough v. Amchem Products, Inc., 158 F. R. D. 314, 336 (ED Pa. 1993). The court-approved notice informed recipients that they could exclude themselves from the class, if they so chose, within a three-month opt-out period.
Objectors raised numerous challenges to the settlement. They urged that the settlement unfairly disadvantaged those without currently compensable conditions in that it failed to adjust for inflation or to account for changes, over time, in medical understanding. They maintained that compensation levels were intolerably low in comparison to awards available in tort litigation or payments received by the inventory plaintiffs. And they objected to the absence of any compensation for certain claims, for example, medical monitoring, compensable under the tort law of several States. Rejecting these and all other objections, Judge Reed concluded that the settlement terms were fair and had been negotiated without collusion. See 157 F. R. D., at 325, 331-332. He also found that adequate notice had been given to class members, see id., at 332-334, and that final class certification under Rule 23(b)(3) was appropriate, see id., at 315.
As to the specific prerequisites to certification, the District Court observed that the class satisfied Rule 23(a)(1)’s numer-osity requirement, see ibid., a matter no one debates. The Rule 23(a)(2) and (b)(3) requirements of commonality and preponderance were also satisfied, the District Court held, in that
“[t]he members of the class have all been exposed to asbestos products supplied by the defendants and all share an interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system. Whether the proposed settlement satisfies this interest and is otherwise a fair, reasonable and adequate compromise of the claims of the class is a predominant issue for purposes of Rule 23(b)(3).” Id., at 316.
The District Court held next that the claims of the class representatives were “typical” of the class as a whole, a requirement of Rule 23(a)(3), and that, as Rule 23(b)(3) demands, the class settlement was “superior” to other methods of adjudication. See ibid.
Strenuous objections had been asserted regarding the adequacy of representation, a Rule 23(a)(4) requirement. Objectors maintained that class counsel and class representatives had disqualifying conflicts of interests. In particular, objectors urged, claimants whose injuries had become manifest and claimants without manifest injuries should not have common counsel and should not be aggregated in a single class. Furthermore, objectors argued, lawyers representing inventory plaintiffs should not represent the newly formed class.
Satisfied that class counsel had ably negotiated the settlement in the best interests of all concerned, and that the named parties served as adequate representatives, the District Court rejected these objections. See id., at 317-319, 326-332. Subclasses were unnecessary, the District Court held, bearing in mind the added cost and confusion they would entail and the ability of class members to exclude themselves from the class during the three-month opt-out period. See id., at 318-319. Reasoning that the representative plaintiffs “have a strong interest that recovery for. all of the medical categories be maximized because they may have claims in any, or several categories,” the District Court found “no antagonism of interest between class members with various medical conditions, or between persons with and without currently manifest asbestos impairment.” Id., at 318. Declaring class certification appropriate and the settlement fair, the District Court preliminarily enjoined all class members from commencing any asbestos-related suit against the CCR defendants in any state or federal court. See Georgine v. Amchem Products, Inc., 878 F. Supp. 716, 726-727 (ED Pa. 1994).
The objectors appealed. The United States Court of Appeals for the Third Circuit vacated the certification, holding that the requirements of Rule 23 had not been satisfied. See 83 F. 3d 610 (1996).
E
The Court of Appeals, in a long, heavily detailed opinion by Judge Becker, first noted several challenges by objectors to justiciability, subject-matter jurisdiction, and adequacy of notice. These challenges, the court said, raised “serious concerns.” Id., at 623. However, the court observed, “the jurisdictional issues in this case would not exist but for the [class-action] certification.” Ibid. Turning to the class-certification issues and finding them dispositive, the Third Circuit declined to decide other questions.
On class-action prerequisites, the Court of Appeals referred to an earlier Third Circuit decision, In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, 55 F. 3d 768, cert. denied, 516 U. S. 824 (1995) (hereinafter GM Trucks), which held that although a class action may be certified for settlement purposes only, Rule 23(a)’s requirements must be satisfied as if the case were going to be litigated. 55 F. 3d, at 799-800. The same rule should apply, the Third Circuit said, to class certification under Rule 23(b)(3). See 83 F. 3d, at 625. But cf. In re Asbestos Litigation, 90 F. 3d 963, 975-976, and n. 8 (CA5 1996), cert. pending, Nos. 96-1379, 96-1394. While stating that the requirements of Rule 23(a) and (b)(3) must be met “without taking into account the settlement,” 83 F. 3d, at 626, the Court of Appeals in fact closely considered the terms of the settlement as it examined aspects of the case under Rule 23 criteria. See id., at 630-634.
The Third Circuit recognized that Rule 23(a)(2)’s “commonality” requirement is subsumed under, or superseded by, the more stringent Rule 23(b)(3) requirement that questions common to the class “predominate over” other questions. The court therefore trained its attention on the “predominance” inquiry. See id., at 627. The harmfulness of asbestos exposure was indeed a prime factor common to the class, the Third Circuit observed. See id., at 626, 630. But uncommon questions abounded.
In contrast to mass torts involving a single accident, class members in this case were exposed to different asbestos-containing products, in different ways, over different periods, and for different amounts of time; some suffered no physical injury, others suffered disabling or deadly diseases. See id., at 626, 628. “These factual differences,” the Third Circuit explained, “translated] into significant legal differences.” Id., at 627. State law governed and varied widely on such critical issues as “viability of [exposure-only] claims [and] availability of causes of action for medical monitoring, increased risk of cancer, and fear of future injury.” Ibid. “[T]he number of uncommon issues in this humongous class action,” the Third Circuit concluded, ibid., barred a determination, under existing tort law, that common questions predominated, see id., at 630.
The Court of Appeals next found that “serious intra-class conflicts preclude[d] th[e] class from meeting the adequacy of representation requirement” of Rule 23(a)(4). Ibid. Adverting to, but not resolving charges of attorney conflict of interests, the Third Circuit addressed the question whether the named plaintiffs could adequately advance the interests of all class members. The Court of Appeals acknowledged that the District Court was certainly correct to this extent: “ ‘[T]he members of the class are united in seeking the maximum possible recovery for their asbestos-related claims.’” Ibid, (quoting 157 F. R. D., at 317). “But the settlement does more than simply provide a general recovery fund,” the Court of Appeals immediately added; “[rjather, it makes important judgments on how recovery is to be allocated among different kinds of plaintiffs, decisions that necessarily favor some claimants over others.” 83 F. 3d, at 630.
In the Third Circuit’s view, the "most salient” divergence of interests separated plaintiffs already afflicted with an asbestos-related disease from plaintiffs without manifest injury (exposure-only plaintiffs). The latter would rationally want protection against inflation for distant recoveries. See ibid. They would also seek sturdy back-end opt-out rights and “causation provisions that can keep pace with changing science and medicine, rather than freezing in place the science of 1993.” Id., at 630-631. Already injured parties, in contrast, would care little about such provisions and would rationally trade them for higher current payouts. See id., at 631. These and other adverse interests, the Court of Appeals carefully explained, strongly suggested that an undivided set of representatives could not adequately protect the discrete interests of both currently afflicted and exposure-only claimants.
The Third Circuit next rejected the District Court’s determination that the named plaintiffs were “typical” of the class, noting that this Rule 23(a)(3) inquiry overlaps the adequacy of representation question: “both look to the potential for conflicts in the class.” Id., at 632. Evident conflict problems, the court said, led it to hold that “no set of representatives can be ‘typical’ of this class.” Ibid.
The Court of Appeals similarly rejected the District Court’s assessment of the superiority of the class action. The Third Circuit initially noted that a class action so large and complex “could not be tried.” Ibid. The court elaborated most particularly, however, on the unfairness of binding exposure-only plaintiffs who might be unaware of the class action or lack sufficient information about their exposure to make a reasoned decision whether to stay in or opt out. See id., at 633. “A series of statewide or more narrowly defined adjudications, either through consolidation under Rule 42(a) or as class actions under Rule 23, would seem preferable,” the Court of Appeals said. Id., at 634.
The Third Circuit, after intensive review, ultimately ordered decertification of the class and vacation of the District Court’s antisuit injunction. Id., at 635. Judge Wellford concurred, “fully subscribing] to the decision of Judge Becker that the plaintiffs in this case ha[d] not met the requirements of Rule 23.” Ibid. He added that in his view, named exposure-only plaintiffs had no standing to pursue the suit in federal court, for their depositions showed that “[t]hey claimed no damages and no present injury.” Id., at 638.
We granted certiorari, 519 U. S. 957 (1996), and now affirm.
II
Objectors assert in this Court, as they did in the District Court and Court of Appeals, an array of jurisdictional barriers. Most fundamentally, they maintain that the settlement proceeding instituted by class counsel and CCR is not a justi-ciable case or controversy within the confines of Article III of the Federal Constitution. In the main, they say, the proceeding is a nonadversarial endeavor to impose on countless individuals without currently ripe claims an administrative compensation regime binding on those individuals if and when they manifest injuries.
Furthermore, objectors urge that exposure-only claimants lack standing to sue: Either they have not yet sustained any cognizable injury or, to the extent the complaint states claims and demands relief for emotional distress, enhanced risk of disease, and medical monitoring, the settlement provides no redress. Objectors also argue that exposure-only claimants did not meet the then-current amount-in-controversy requirement (in excess of $50,000) specified for federal-court jurisdiction based upon diversity of citizenship. See 28 U. S. C. § 1332(a).
As earlier recounted, see supra, at 608, the Third Circuit declined to reach these issues because they “would not exist but for the [class-action] certification.” 83 F. 3d, at 623. We agree that “[t]he class certification issues are dispositive,” ibid.; because their resolution here is logically antecedent to the existence of any Article III issues, it is appropriate to reach them first, cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 66-67 (1997) (declining to resolve definitively question whether petitioners had standing because mootness issue was dispositive of the case). We therefore follow the path taken by the Court of Appeals, mindful that Rule 23’s requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure “shall not abridge, enlarge or modify any substantive right,” 28 U. S. C. § 2072(b). See also Fed. Rule Civ. Proc. 82 (“rules shall not be construed to extend... the [subject-matter] jurisdiction of the United States district courts”).
III
To place this controversy in context, we briefly describe the characteristics of class actions for which the Federal Rules provide. Rule 23, governing federal-court class actions, stems from equity practice and gained its current shape in an innovative 1966 revision. See generally Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 375-400 (1967) (hereinafter Kaplan, Continuing Work). Rule 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a “class [so large] that join-der of all members is impracticable”); (2) commonality (“questions of law or fact common to the class”); (3) typicality (named parties’ claims or defenses “are typical... of the class”); and (4) adequacy of representation (representatives “will fairly and adequately protect the interests of the class”).
In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3). Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing “incompatible standards of conduct for the party opposing the class,” Fed. Rule Civ. Proc. 23(b)(1)(A), or would “as a practical matter be disposi-tive of the interests” of nonparty class members “or substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B). Rule 23(b)(1)(A) “takes in cases where the party is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the party must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners).” Kaplan, Continuing Work 388 (footnotes omitted). Rule 23(b)(1)(B) includes, for example, “limited fund” cases, instances in which numerous persons make claims against a fund insufficient to satisfy all claims. See Advisory Committee’s Notes on Fed. Rule Civ. Proc. 23, 28 U. S. C. App., pp. 696-697 (hereinafter Adv. Comm. Notes).
Rule 23(b)(2) permits class actions for declaratory or in-junctive relief where “the party opposing the class has acted or refused to act on grounds generally applicable to the class.” Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples. Adv. Comm. Notes, 28 U. S. C. App., p. 697; see Kaplan, Continuing Work 389 (subdivision (b)(2) “build[s] on experience mainly, but not exclusively, in the civil rights field”).
In the 1966 class-action amendments, Rule 23(b)(3), the category at issue here, was “the most adventuresome” innovation. See Kaplan, A Prefatory Note, 10 B. C. Ind. & Com. L. Rev. 497, 497 (1969) (hereinafter Kaplan, Prefatory Note). Rule 23(b)(3) added to the complex-litigation arsenal class actions for damages designed to secure judgments binding all class members save those who affirmatively elected to be excluded. See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1777, p. 517 (2d ed. 1986) (hereinafter Wright, Miller, & Kane); see generally Kaplan, Continuing Work 379-400. Rule 23(b)(3) “opt-out” class actions superseded the former “spurious” class action, so characterized because it generally functioned as a permissive joinder (“opt-in”) device. See 7A Wright, Miller, & Kane § 1753, at 28-31, 42-44; see also Adv. Comm. Notes, 28 U. S. C. App., p. 695.
Framed for situations in which “class-action treatment is not as clearly called for” as it is in Rule 23(b)(1) and (b)(2) situations, Rule 23(b)(3) permits certification where class suit “may nevertheless be convenient and desirable.” Adv. Comm. Notes, 28 U. S. C. App., p. 697. To qualify for certification under Rule 23(b)(3), a class must meet two requirements beyond the Rule 23(a) prerequisites: Common questions must “predominate over any questions affecting only individual members”; and class resolution must be “superior to other available methods for the fair and efficient adjudication of the controversy.” In adding “predominance” and “superiority” to the qualification-for-certification list, the Advisory Committee sought to cover cases “in which a class action would achieve economies of time, effort, and expense, and promote... uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable results.” Ibid. Sensitive to the competing tugs of individual autonomy for those who might prefer to go it alone or in a smaller unit, on the one hand, and systemic efficiency on the other, the Reporter for the 1966 amendments cautioned: “The new provision invites a close look at the case before it is accepted as a class action....” Kaplan, Continuing Work 390.
Rule 23(b)(3) includes a nonexhaustive list of factors pertinent to a court’s “close look” at the predominance and superiority criteria:
“(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.”
In setting out these factors, the Advisory Committee for the 1966 reform anticipated that in each case, courts would “consider the interests of individual members of the class in controlling their own litigations and carrying them on as they see fit.” Adv. Comm. Notes, 28 U. S. C. App., p. 698. They elaborated:
“The interests of individuals in conducting separate lawsuits may be so strong as to call for denial of a class action. On the other hand, these interests may be theoretic rather than practical; the class may have a high degree of cohesion and prosecution of the action through representatives would be quite únobjectionable, or the amounts at stake for individuals may be so small that separate suits would be impracticable.” Ibid.
See also Kaplan, Continuing Work 391 (“Th[e] interest [in individual control] can be high where the stake of each member bulks large and his will and ability to take care of himself are strong; the interest may be no more than theoretic where the individual stake is so small as to make a separate action impracticable.” (footnote omitted)). As the Third Circuit observed in the instant case: “Each plaintiff [in an action involving claims for personal injury and death] has a significant interest in individually controlling the prosecution of [his case]”; each “ha[s] a substantial stake in making individual decisions on whether and when to settle.” 83 F. 3d, at 633.
While the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high, the Advisory Committee had dominantly in mind vindication of “the rights of groups of people who individually would be without effective strength to bring their opponents into court at all.” Kaplan, Prefatory Note 497. As concisely recalled in a recent Seventh Circuit opinion:
“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights. A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone’s (usually an attorney’s) labor.” Mace v. Van Ru Credit Corp., 109 F. 3d 338, 344 (1997).
To alert class members to their right to “opt out” of a (b)(3) class, Rule 23 instructs the court to “direct to the members of the class the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Fed. Rule Civ. Proc. 23(c)(2); see Eisen v. Carlisle & Jacquelin, 417 U. S. 156, 173-177 (1974) (individual notice to class members identifiable through reasonable effort is mandatory in (b)(3) actions; requirement may not be relaxed based on high cost).
No class action may be “dismissed or compromised without [court] approval,” preceded by notice to class members. Fed. Rule Civ. Proc. 23(e). The Advisory Committee’s sole comment on this terse final provision of Rule 23 restates the Rule’s instruction without elaboration: “Subdivision (e) requires approval of the court, after notice, for the dismissal or compromise of any class action.” Adv. Comm. Notes, 28 U. S. C. App., p. 699.
In the decades since the 1966 revision of Rule 23, class-action practice has become ever more “adventuresome” as a means of coping with claims too numerous to secure their “just, speedy, and inexpensive determination” one by one. See Fed. Rule Civ. Proc. 1. The development reflects concerns about the efficient use of court resources and the conservation of funds to compensate claimants who do not line up early in a litigation queue. See generally J. Weinstein, Individual Justice in Mass Tort Litigation: The Effect of Class Actions, Consolidations, and Other Multiparty Devices (1995); Schwarzer, Settlement of Mass Tort Class Actions: Order out of Chaos, 80 Cornell L. Rev. 837 (1995).
Among current applications of Rule 23(b)(3), the “settlement only” class has become a stock device. See, e. g., T. Willging, L. Hooper, & R. Niemic, Empirical Study of Class Actions in Four Federal District Courts: Final Report to the Advisory Committee on Civil Rules 61-62 (1996) (noting large number of such cases in districts studied). Although all Federal Circuits recognize the utility of Rule 23(b)(3) settlement classes, courts have divided on the extent to which a proffered settlement affects court surveillance under Rule 23’s certification criteria.
In GM Trucks, 55 F. 3d, at 799-800, and in the instant case, 83 F. 3d, at 624-626, the Third Circuit held that a class cannot be certified for settlement when certification for trial would be unwarranted. Other courts have held that settlement obviates or reduces the need to measure a proposed class against the enumerated Rule 23 requirements. See, e. g., In re Asbestos Litigation, 90 F. 3d, at 975 (CA5) (“in settlement class context, common issues arise from the settlement itself”) (citing H. Newberg & A. Conte, 2 Newberg on Class Actions § 11.28, p. 11-58 (3d ed. 1992)); White v. National Football League, 41 F. 3d 402, 408 (CA8 1994) (“adequacy of class representation... is ultimately determined by the settlement itself”), cert. denied, 515 U. S. 1137 (1995); In re A. H. Robins Co., 880 F. 2d 709, 740 (CA4) (“[i]f not a ground for certification per se, certainly settlement should be a factor, and an important factor, to be considered when determining certification”), cert. denied sub nom. Anderson v. Aetna Casualty & Surety Co., 493 U. S. 959 (1989); Malchman v. Davis, 761 F. 2d 893, 900 (CA2 1985) (certification appropriate, in part, because “the interests of the members of the broadened class in the settlement agreement were commonly held”), cert. denied, 475 U. S. 1143 (1986).
A proposed amendment to Rule 23 would expressly authorize settlement class certification, in conjunction with a motion by the settling parties for Rule 23(b)(3) certification, “even though the requirements of subdivision (b)(3) might not be met for purposes of trial.” Proposed Amendment to Fed. Rule Civ. Proc. 23(b), 117 S. Ct. No. 1 CXIX, CLIV to CLV (Aug. 1996) (Request for Comment). In response to the publication of this proposal, voluminous public comments — many of them opposed to, or skeptical of, the amendment — were received by the Judicial Conference Standing Committee on Rules of Practice and Procedure. See, e. g., Letter from Steering Committee to Oppose Proposed Rule 23, signed by 129 law professors (May 28, 1996); Letter from Paul D. Carrington (May 21, 1996). The Committee has not yet acted on the matter. We consider the certification at issue under the Rule as it is currently framed.
<
We granted review to decide the role settlement may play, under existing Rule 23, in determining the propriety of class certification. The Third Circuit’s opinion stated that each of the requirements of Rule 23(a) and (b)(3) “must be satisfied without taking into account the settlement.” 83 F. 3d, at 626 (quoting GM Trucks, 55 F. 3d, at 799). That statement, petitioners urge, is incorrect.
We agree with petitioners to this limited extent: Settlement is relevant to a class certification. The Third Circuit’s opinion bears modification in that respect. But, as we earlier observed, see supra, at 609, the Court of Appeals in fact did not ignore the settlement; instead, that court homed in on settlement terms in explaining why it found the absentees’ interests inadequately represented. See 83 F. 3d, at 630-631. The Third Circuit’s close inspection of the settlement in that regard was altogether proper.
Confronted with a request for settlement-only class certification, a district court need not inquire whether the case, if tried, would present intractable management problems, see Fed. Rule Civ. Proc. 23(b)(3)(D), for the proposal is that there be no trial. But other specifications of the Rule— those designed to protect absentees by blocking unwarranted or overbroad class definitions — demand undiluted, even heightened, attention in the settlement context. Such attention is of vital importance, for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold. See Rule 23(c), (d).
And, of overriding importance, courts must be mindful that the Rule as now composed sets the requirements they are bound to enforce. Federal Rules take effect after an extensive deliberative process involving many reviewers: a Rules Advisory Committee, public commenters, the Judicial Conference, this Court, the Congress. See 28 U. S. C. §§ 2073, 2074. The text of a rule thus proposed and reviewed limits judicial inventiveness. Courts are not free to amend a rule outside the process Congress ordered, a process properly tuned to the instruction that rules of procedure “shall not abridge... any substantive right.” § 2072(b).
Rule 23(e), on settlement of class actions, reads in its entirety: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” This prescription was designed to function as an additional requirement, not a superseding direction, for the “class action” to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed.
The safeguards provided by the Rule 23(a) and (b) class-qualifying criteria, we emphasize, are not impractical impediments — checks shorn of utility — in the settlement-class context. First, the standards set for the protection of absent class members serve to inhibit appraisals of the chancellor’s foot kind — class certifications dependent upon the court’s gestalt judgment or overarching impression of the settlement’s fairness.
Second, if a fairness inquiry under Rule 23(e) controlled certification, eclipsing Rule 23(a) and (b), and permitting class designation despite the impossibility of litigation, both class counsel and court would be disarmed. Class counsel confined to settlement negotiations could not use the threat of litigation to press for a better offer, see Coffee, Class Wars: The Dilemma of the Mass Tort Class Action, 95 Colum. L. Rev. 1343, 1379-1380 (1995), and the court would face a bargain proffered for its approval without benefit of adversarial investigation, see, e. g., Kamilewicz v. Bank of Boston Corp., 100 F. 3d 1348, 1352 (CA7 1996) (Easterbrook, J., dissenting from denial of rehearing en banc) (parties “may even put one over on the court, in a staged performance”), cert. denied, 520 U. S. 1204 (1997).
Federal courts, in any case, lack authority to substitute for Rule 23’s certification criteria a standard never adopted— that if a settlement is “fair,” then certification is proper. Applying to this case criteria the rulemakers set, we conclude that the Third Circuit’s appraisal is essentially correct. Although that court should have acknowledged that settlement is a factor in the calculus, a remand is not warranted on that account. The Court of Appeals’ opinion amply demonstrates why — with or without a settlement on the table— the sprawling class the District Court certified does not satisfy Rule 23’s requirements.
A
We address first the requirement of Rule 23(b)(3) that “[common] questions of law or fact... predominate over any questions affecting only individual members.” The District Court concluded that predominance was satisfied based on two factors: class members’ shared experience of asbestos exposure and their common “interest in receiving prompt and fair compensation for their claims, while minimizing the risks and transaction costs inherent in the asbestos litigation process as it occurs presently in the tort system.” 157 F. R. D., at 316. The settling parties also contend that the settlement’s fairness is a common question, predominating over disparate legal issues that might be pivotal in litigation but become irrelevant under the settlement.
The predominance requirement stated in Rule 23(b)(3), we hold, is not met by the factors on which the District Court relied. The benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration, see supra, at 598, but it is not pertinent to the predominance inquiry. That inquiry trains on the legal or factual questions that qualify each class member’s case as a genuine controversy, questions that preexist any settlement.
The Rule 23(b)(3) predominance inquiry tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation. See 7A Wright, Miller, & Kane 518-519. The inquiry appropriate under Rule 23(e), on the other hand, protects unnamed class members “from unjust or unfair settlements affecting their rights when the representatives become fainthearted before the action is adjudicated or are able to secure satisfaction of their individual claims by a compromise.” See 7B Wright, Miller, & Kane § 1797, at 340-341. But it is not the mission of Rule 23(e) to assure the class cohesion that legitimizes representative action in the first place. If a common interest in a fair compromise could satisfy the predominance requirement of Rule 23(b)(3), that vital prescription would be stripped of any meaning in the settlement context.
The District Court also relied upon this commonality: “The members of the class have all been exposed to asbestos products supplied by the defendants....” 157 F. R. D., at 316. Even if Rule 23(a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. See 83 F. 3d, at 626-627. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.
The Third Circuit highlighted the disparate questions undermining class cohesion in this case:
“Class members were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma.... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.
“The [exposure-only] plaintiffs especially share little in common, either with each other or with the presently injured class members. It is unclear whether they will contract asbestos-related disease and, if so, what disease each will suffer. They will also incur different medical expenses because their monitoring and treatment will depend on singular circumstances and individual medical histories.” Id., at 626.
Differences in state law, the Court of Appeals observed, compound these disparities. See id., at 627 (citing Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 823 (1985)).
No settlement class called to our attention is as sprawling as this one. Cf. In re Asbestos Litigation, 90 F. 3d, at 976, n. 8 (“We would likely agree with the Third Circuit that a class action requesting individual damages for members of a global class of asbestos claimants would not satisfy [Rule 23] requirements due to the huge number of individuals and their varying medical expenses, smoking histories, and family situations.”)- Predominance is a test readily met in certain cases alleging consumer or securities fraud or violations of the antitrust laws. See Adv. Comm. Notes, 28 U. S. C. App., p. 697; see also supra, at 615, 616. Even mass tort cases arising from a common cause or disaster may, depending upon the circumstances, satisfy the predominance requirement. The Advisory Committee for the 1966 revision of Rule 23, it is true, noted that “mass accident” cases are likely to present “significant questions, not only of damages but of liability and defenses of liability,... affecting the individuals in different ways.” Adv. Comm. Notes, 28 U. S. C. App., p. 697. And the Committee advised that such cases are “ordinarily not appropriate” for class treatment. Ibid. But the text of the Rule does not categorically exclude mass tort cases from class certification, and District Courts, since the late 1970’s, have been certifying such cases in increasing number. See Resnik, From “Cases” to “Litigation,” 54 Law & Contemp. Prob. 5, 17-19 (Summer 1991) (describing trend). The Committee’s warning, however, continues to call for caution when individual stakes are high and disparities among class members great. As the Third Circuit’s opinion makes plain, the certification in this case does not follow the counsel of caution. That certification cannot be upheld, for it rests on a conception of Rule 23(b)(3)’s predominance requirement irreconcilable with the Rule’s design.
B
Nor can the class approved by the District Court satisfy Rule 23(a)(4)’s requirement that the named parties “will fairly and adequately protect the interests of the class.” The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent. See General Telephone Co. of Southwest v. Falcon, 457 U. S. 147, 157-158, n. 13 (1982). “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” East Tex. Motor Freight System, Inc. v. Rodriguez, 431 U. S. 395, 403 (1977) (quoting Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 216 (1974)).
As the Third Circuit pointed out, named parties with diverse medical conditions sought to act on behalf of a single giant class rather than on behalf of discrete subclasses. In significant respects, the interests of those within the single class are not aligned. Most saliently, for the currently injured, the critical goal is generous immediate payments. That goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflation-protected fund for the future. Cf. General Telephone Co. of Northwest v. EEOC, 446 U. S. 318, 331 (1980) (“In employment discrimination litigation, conflicts might arise, for example, between employees and applicants who were denied employment and who will, if granted relief, compete with employees for fringe benefits or seniority. Under Rule 23, the same plaintiff could not represent these classes.”).
The disparity between the currently injured and exposure-only categories of plaintiffs, and the diversity within each category are not made insignificant by the District Court’s finding that petitioners’ assets suffice to pay claims under the settlement. See 157 F. R. D., at 291. Although this is not a “limited fund” case certified under Rule 23(b)(1)(B), the terms of the settlement reflect essential allocation decisions designed to confine compensation and to limit defendants’ liability. For example, as earlier described, see supra, at 604-605, the settlement includes no adjustment for inflation; only a few claimants per year can opt out at the back end; and loss-of-consortium claims are extinguished with no compensation.
The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point:
“[Wjhere differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups.” In re Joint Eastern and Southern Dist. Asbestos Litigation, 982 F. 2d 721, 742-743 (1992), modified on reh’g sub nom. In re Findley, 993 F. 2d 7 (1993).
The Third Circuit found no assurance here — either in the terms of the settlement or in the structure of the negotiations — that the named plaintiffs operated under a proper understanding of their representational responsibilities. See 83 F. 3d, at 630-631. That assessment, we conclude, is on the mark.
C
Impediments to the provision of adequate notice, the Third Circuit emphasized, rendered highly problematic any endeavor to tie to a settlement class persons with no perceptible asbestos-related disease at the time of the settlement. Id., at 633; cf. In re Asbestos Litigation, 90 F. 3d, at 999-1000 (Smith, J., dissenting). Many persons in the exposure-only category, the Court of Appeals stressed, may not even know of their exposure, or realize the extent of the harm they may incur. Even if they fully appreciate the significance of class notice, those without current afflictions may not have the information or foresight needed to decide, intelligently, whether to stay in or opt out.
Family members of asbestos-exposed individuals may themselves fall prey to disease or may ultimately have ripe claims for loss of consortium. Yet large numbers of people in this category — future spouses and children of asbestos victims — could not be alerted to their class membership. And current spouses and children of the occupationally exposed may know nothing of that exposure.
Because we have concluded that the class in this case cannot satisfy the requirements of common issue predominance and adequacy of representation, we need not rule, definitively, on the notice given here. In accord with the Third Circuit, however, see 83 F. 3d, at 633-634, we recognize the gravity of the question whether class action notice sufficient under the Constitution and Rule 23 could ever be given to legions so unselfconscious and amorphous.
V
The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. As this case exemplifies, the rulemakers’ prescriptions for class actions may be endangered by “those who embrace [Rule 23] too enthusiastically just as [they are by] those who approach [the Rule] with distaste.” C. Wright, Law of Federal Courts 508 (5th ed. 1994); cf. 83 F. 3d, at 634 (suggesting resort to less bold aggregation techniques, including more narrowly defined class certifications).
* * *
For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is
Affirmed.
Justice O’Connor took no part in the consideration or decision of this case.
In a series of orders, the MDL Panel had previously denied other asbestos-case transfer requests. See In re Asbestos and Asbestos Insulation Material Products Liability Litigation, 431 F. Supp. 906, 910 (JPML 1977); In re Asbestos Products Liability Litigation (No. II), MDL-416 (JPML Mar. 13, 1980) (unpublished order); In re Asbestos School Products Liability Litigation, 606 F. Supp. 713, 714 (JPML 1985); In re Ship Asbestos Products Liability Litigation, MDL-676 (JPML Feb. 4, 1986) (unpublished order); In re Leon Blair Asbestos Products Liability Litigation, MDL-702 (JPML Feb. 6, 1987) (unpublished order).
The CCR Companies are Amchem Products, Inc.; A. P. Green Industries, Inc.; Armstrong World Industries, Inc.; Asbestos Claims Management Corp.; Certainteed Corp.; C. E. Thurston & Sons, Inc.; Dana Corp.; Ferodo America, Inc.; Flexitallic, Inc.; GAF Building Materials, Inc.; I. U. North America, Inc.; Maremont Corp.; National Services Industries, Inc.; Nosroc Corp.; Pfizer Inc.; Quigley Co.; Shook & Fletcher Insulation Co.; T & N, PLC; Union Carbide Corp.; and United States Gypsum Co. All of the CCR petitioners stopped manufacturing asbestos products around 1975.
It is basic to comprehension of this proceeding to notice that no transferred case is included in the settlement at issue, and no case covered by the settlement existed as a civil action at the time of the MDL Panel transfer.
Also on the same day, the CCR defendants filed a third-party action against their insurers, seeking a declaratory judgment holding the insurers liable for the costs of the settlement. The insurance litigation, upon which implementation of the settlement is conditioned, is still pending in the District Court. See, e. g., Georgine v. Amchem Prods., Inc., No. 93-0215, 1994 WL 502475 (ED Pa., Sept. 2, 1994) (denying motion of insurers to compel discovery).
The complaint defines the class as follows:
“(a) All persons (or their legal representatives) who have been exposed in the United States or its territories (or while working aboard U. S. military, merchant, or passenger ships), either occupationally or through the occupational exposure of a spouse or household member, to asbestos or to asbestos-containing products for which one or more of the Defendants may bear legal liability and who, as of January 15, 1993, reside in the United States or its territories, and who have not, as of January 15, 1993, filed a lawsuit for asbestos-related personal injury, or damage, or death in any state or federal court against the Defendant^) (or against entities for whose actions or omissions the Defendants) bear legal liability).
“(b) All spouses, parents, children, and other relatives (or their legal representatives) of the class members described in paragraph (a) above who have not, as of January 15, 1993, filed a lawsuit for the asbestos-related personal injury, or damage, or death of a class member described in paragraph (a) above in any state or federal court against the Defendants) (or against entities for whose actions or omissions the Defendant(s) bear legal liability).” 1 App. 13-14.
Only three percent of the qualified mesothelioma, lung cancer, and “other cancer” claims, and only one percent of the total number of qualified “non-malignant condition” claims can be designated “extraordinary.” Average expenditures are specified for claims found “extraordinary”; meso-thelioma victims with compensable extraordinary claims, for example, receive, on average, $300,000
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Answer: |
songer_prejud | E | What follows is an opinion from a United States Court of Appeals. The issue is: "Was there prejudicial conduct by prosecution? (including prosecutor refusing to produce evidence which would aid 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".
John W. RUSSO, Plaintiff-Appellee, v. MATSON NAVIGATION COMPANY, a corporation, Defendant-Appellant.
No. 71-3057.
United States Court of Appeals, Ninth Circuit.
Oct. 29, 1973.
Leon A. Pinney (argued), John S. Matthew, of Sikes, Pinney & Matthew, North Hollywood, Cal., for defendant-appellant.
Joel N. Elevens (argued), George E. Bodle, Daniel Fogel, Eric Julber, of Bo-dle, Fogel, Julber, Reinhardt & Rothschild, Los Angeles, Cal., for plaintiff-appellee.
Before HUFSTEDLER and WRIGHT, Circuit Judges, and RENFREW, District Judge.
Of the Northern District of California.
OPINION
PER CURIAM:
Defendant Matson Navigation Company appeals from a judgment on a jury verdict in favor of plaintiff seaman in the amount of $40,000. The sole issue on appeal is whether the district court correctly refused to set off against the award disability pension benefits being paid to plaintiff. We affirm the judgment.
Russo, a seaman employed by Matson, was injured aboard Matson’s vessel “Pacific Trader.” He brought suit under the Jones Act [46 U.S.C. § 688 (1970)] and general maritime law, and received a verdict for $40,000. Russo receives $300 a month as a disability retirement pension pursuant to an agreement between the Pacific Maritime Association, to which Matson belongs, and plaintiff’s union, the Seafarer’s International Union of North America, Pacific District.
Matson sought to introduce evidence of the pension benefits, but the court refused to allow it, ruling that whether a setoff is allowable is a matter of law for the court’s determination, and not a question for the jury. After verdict, the court entered judgment thereon without the requested setoff.
Matson contends that setoff of the pension benefits is proper under Section 5 of the Federal Employers’ Liability Act [45 U.S.C. § 55], and in light of a general rule of law that a tortfeasor need not pay twice for the same damages.
Section 5 of the FELA is incorporated in the Jones Act by 46 U.S.C. § 688. Section 5 provides:
“Any contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void: Provided, That in any action brought against any such common carrier under or by virtue of any of the provisions of this chapter, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” [Emphasis added.]
Matson contends that, because it contributes to the fund from which plaintiff’s benefits are paid, and because they are paid “on account of the injury,” set-off of these benefits against the award is proper under Section 5. A denial of setoff, Matson contends, forces it to pay twice for the same injury.
Clearly, the statute does not provide for a setoff of “benefits received,” but rather for a setoff of “any sum . contributed.” Therefore, any setoff to which Matson might be entitled must be limited to the amount it has contributed to the pension plan. Matson claims, however, that this amount is far in excess of the benefits being received by Russo.
Generally, a tortfeasor need not pay twice for the damage caused, but he should not be allowed to set off compensation from a “collateral source” against the amount he owes on account of his tort.
“[T]he broad rule seems to be that where the plaintiff receives from the tortfeasor payments specifically to compensate him for his injury, the tortfeasor need not pay twice for the same damage, and therefore such compensation payments should be taken into account in fixing tort damages. [Citations] On the other hand, where the injured plaintiff’s compensation comes from a ‘collateral source,’ it should not be offset against the sum awarded for the tort nor considered in determining that award.”
United States v. Price, 288 F.2d 448, 449 (4th Cir. 1961); Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962). The issue, then, is whether the pension benefits come from a “collateral source,” or directly from Matson as compensation for Russo’s injury.
In analyzing this issue, it is well established that courts should look at “the purpose and nature of the fund and of the payments,” and not merely at their source. Gypsum Carrier, Inc. v. Handelsman, supra at 534 n.31, and cases cited therein.
Two courts in other jurisdictions have recently considered almost the precise issue with which we are confronted. Haughton v. Blackships, Inc., 462 F.2d 788 (5th Cir. 1972), virtually indistinguishable from this case, held that, in computing damages payable to a seaman who was injured aboard ship, it was improper to consider the seaman’s maritime pension in mitigation of damages. The court found that, although all money in the retirement fund was contributed by the employer, the fund was established as the result of a contract between the employer and the union and was in the nature of a fringe benefit or deferred compensation. In other words, the pension was a term of employment rather than an attempt by the employer to indemnify itself against liability.
The court in Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92 (D. Minn.1971), reached a similar conclusion. The court considered a railroad’s claim that certain insurance benefits should be set off in light of Section 5 of the FELA, since the carrier paid the insurance premiums. The court concluded that Section 5 does not permit setoff of amounts that are in effect part of an employee’s income and are paid without regard to liability on the part of the employer.
“On the basis of the foregoing, the court concludes that where the insurance policy is one of general hospital and medical coverage upon which the insured may make claim without regard to liability on the part of the employer, such ' a policy is a fringe benefit maintained by the employer and is in effect part of the employee’s income for services rendered, and the collateral source rule prohibits set-off of premiums paid or benefits received thereunder by the employee. In this court’s opinion Section 5’s express set-off proviso was not intended and does not permit set-off of amounts ‘paid’ or ‘contributed’ by the employer to a policy of such general coverage pursuant to a collective bargaining contract.”
Id. at 97.
In light of Haughton and Hall, plaintiff’s pension benefits are not, for purposes of Section 5, received “on account of his injury,” but rather as a fringe benefit of his employment. This benefit is the result of a contractual agreement between plaintiff’s union and the association to which Matson belongs.
Under the pension agreement, the employee’s retirement, the length of his service, and the extent of his disability are all crucial to his eligibility for benefits. Eligibility is not dependent, however, on disability occurring in the course of employment or as the result of an employer’s negligence. A disabled employee receives no pension unless he has worked a minimum of 10 years, has been permanently and totally disabled, and has retired from sea duty. It is unnecessary that an injury cause the disability; an illness suffices. Once the employee is eligible for a pension, the amount increases with the length of employment. Thus, looking at the nature and purpose of the pension plan agreement, it is clear that benefits paid from it are “collateral” to Matson’s obligation to pay for its wrongdoing.
In summary, Matson does not bear a double burden in this case if no setoff is allowed. Pension benefits paid from the fund to which Matson contributes are one form of compensation for plaintiff’s employment. The $40,000 judgment against Matson is the sole burden that it must bear directly as a result of its negligence. “This may permit a double recovery, but it does not impose a double burden. The tortfeasor bears only the single burden for his wrong.” Gypsum Carrier, Inc. v. Handelsman, 307 F.2d 525, 534 (9th Cir. 1962).
Affirmed.
. This is to be distinguished from benefits received under a limited employer indemnity insurance policy, which might be appropriately set off.
“Where the insurance is written to cover only those injuries incurred on the job for which the employer might be liable by statute or common law, it is solely for the benefit of the employer and cannot be characterized as a fringe benefit given employees in partial consideration for their labors.
See, e. g., Thomas v. Humble Oil & Refining Co., 420 F.2d 793 (4th Cir. 1970) . . . "
Hall v. Minnesota Transfer Railway Co., 322 F.Supp. 92, 96-97 (D.Minn.1971) ; Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972).
Question: Was there prejudicial conduct by prosecution?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
Subsets and Splits