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sc_petitioner | 113 | 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.
LEXMARK INTERNATIONAL, INC., Petitioner
v.
STATIC CONTROL COMPONENTS, INC.
No. 12-873.
Supreme Court of the United States
Argued Dec. 3, 2013.
Decided March 25, 2014.
Syllabus*
Petitioner Lexmark sells the only style of toner cartridges that work with the company's laser printers, but "remanufacturers" acquire and refurbish used Lexmark cartridges to sell in competition with Lexmark's own new and refurbished ones. Lexmark's "Prebate" program gives customers a discount on new cartridges if they agree to return empty cartridges to the company. Each Prebate cartridge has a microchip that disables the empty cartridge unless Lexmark replaces the chip. Respondent Static Control, a maker and seller of components for the remanufacture of Lexmark cartridges, developed a microchip that mimicked Lexmark's. Lexmark sued for copyright infringement, but Static Control counterclaimed, alleging that Lexmark engaged in false or misleading advertising in violation of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), and that its misrepresentations had caused Static Control lost sales and damage to its business reputation. The District Court held that Static Control lacked "prudential standing" to bring the Lanham Act claim, applying a multifactor balancing test the court attributed to Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723. In reversing, the Sixth Circuit relied on the Second Circuit's "reasonable interest" test.
Held : Static Control has adequately pleaded the elements of a Lanham Act cause of action for false advertising. Pp. 1385 - 1395.
(a) The question here is whether Static Control falls within the class of plaintiffs that Congress authorized to sue under § 1125(a). To decide that question, this Court must determine the provision's meaning, using traditional principles of statutory interpretation. It is misleading to label this a "prudential standing" question. Lexmark bases its "prudential standing" arguments on Associated General Contractors, but that case rested on statutory considerations: The Court sought to "ascertain," as a statutory-interpretation matter, the "scope of the private remedy created by" Congress in § 4 of the Clayton Act, and the "class of persons who [could] maintain a private damages action under" that legislatively conferred cause of action, 459 U.S., at 529, 532, 103 S.Ct. 897. And while this Court may have placed the "zone of interests" test that Static Control relies on under the "prudential" rubric in the past, see, e.g.,Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98, it does not belong there any more than Associated General Contractors does. Rather, whether a plaintiff comes within the zone of interests requires the Court to determine, using traditional statutory-interpretation tools, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim. See, e.g.,Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210. Pp. 1385 - 1388.
(b) The § 1125(a) cause of action extends to plaintiffs who fall within the zone of interests protected by that statute and whose injury was proximately caused by a violation of that statute. Pp. 1388 - 1393.
(1) A statutory cause of action is presumed to extend only to plaintiffs whose interests "fall within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556. "[T]he breadth of [that] zone ... varies according to the provisions of law at issue." Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281. The Lanham Act includes a detailed statement of its purposes, including, as relevant here, "protect[ing] persons engaged in [commerce within the control of Congress] against unfair competition," 15 U.S.C. § 1127; and "unfair competition" was understood at common law to be concerned with injuries to business reputation and present and future sales. Thus, to come within the zone of interests in a § 1125(a) false-advertising suit, a plaintiff must allege an injury to a commercial interest in reputation or sales. Pp. 1388 - 1390.
(2) A statutory cause of action is also presumed to be limited to plaintiffs whose injuries are proximately caused by violations of the statute. See, e.g.,Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268-270, 112 S.Ct. 1311, 117 L.Ed.2d 532. This requirement generally bars suits for alleged harm that is "too remote" from the defendant's unlawful conduct, such as when the harm is purely derivative of "misfortunes visited upon a third person by the defendant's acts." Id., at 268-269, 112 S.Ct. 1311. In a sense, all commercial injuries from false advertising are derivative of those suffered by consumers deceived by the advertising. But since the Lanham Act authorizes suit only for commercial injuries, the intervening consumer-deception step is not fatal to the proximate-cause showing the statute requires. Cf. Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 656, 128 S.Ct. 2131, 170 L.Ed.2d 1012. Thus, a plaintiff suing under § 1125(a) ordinarily must show that its economic or reputational injury flows directly from the deception wrought by the defendant's advertising; and that occurs when deception of consumers causes them to withhold trade from the plaintiff. Pp. 1390 - 1391.
(3) Direct application of the zone-of-interests test and the proximate-cause requirement supplies the relevant limits on who may sue under § 1125(a). These principles provide better guidance than the multifactor balancing test urged by Lexmark, the direct-competitor test, or the reasonable-interest test applied by the Sixth Circuit. Pp. 1391 - 1393.
(c) Under these principles, Static Control comes within the class of plaintiffs authorized to sue under § 1125(a). Its alleged injuries-lost sales and damage to its business reputation-fall within the zone of interests protected by the Act, and Static Control sufficiently alleged that its injuries were proximately caused by Lexmark's misrepresentations. Pp. 1392 - 1395.
697 F.3d 387, affirmed.
SCALIA, J., delivered the opinion for a unanimous Court.
Steven B. Loy, Lexington, KY, for Petitioner.
Jameson R. Jones, Denver, CO, for Respondent.
Steven B. Loy, Counsel of Record, Anthony J. Phelps, Christopher L. Thacker, Monica H. Braun, Stoll Keenon Ogden PLLC, Lexington, KY, Robert J. Patton, D. Brent Lambert, Lexmark International, Inc., Lexington, KY, Timothy C. Meece, Matthew P. Becker, Banner & Witcoff, Ltd., Chicago, IL, for Petitioner.
M. Miller Baker, Stefan M. Meisner, McDermott Will & Emery LLP, Washington, DC, William L. London III, Static Control Components, Inc., Sanford, NC, Seth D. Greenstein, Counsel of Record, Constantine Cannon LLP, Washington, DC, Joseph C. Smith, Jr., Jameson R. Jones, Bartlit Beck Herman Palenchar & Scott, LLP, Denver, CO, for Respondent.
Justice SCALIA delivered the opinion of the Court.
This case requires us to decide whether respondent, Static Control Components, Inc., may sue petitioner, Lexmark International, Inc., for false advertising under the Lanham Act, 15 U.S.C. § 1125(a).
I. Background
Lexmark manufactures and sells laser printers. It also sells toner cartridges for those printers (toner being the powdery ink that laser printers use to create images on paper). Lexmark designs its printers to work only with its own style of cartridges, and it therefore dominates the market for cartridges compatible with its printers. That market, however, is not devoid of competitors. Other businesses, called "remanufacturers," acquire used Lexmark toner cartridges, refurbish them, and sell them in competition with new and refurbished cartridges sold by Lexmark.
Lexmark would prefer that its customers return their empty cartridges to it for refurbishment and resale, rather than sell those cartridges to a remanufacturer. So Lexmark introduced what it called a "Prebate" program, which enabled customers to purchase new toner cartridges at a 20-percent discount if they would agree to return the cartridge to Lexmark once it was empty. Those terms were communicated to consumers through notices printed on the toner-cartridge boxes, which advised the consumer that opening the box would indicate assent to the terms-a practice commonly known as "shrinkwrap licensing," see, e.g.,ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (C.A.7 1996). To enforce the Prebate terms, Lexmark included a microchip in each Prebate cartridge that would disable the cartridge after it ran out of toner; for the cartridge to be used again, the microchip would have to be replaced by Lexmark.
Static Control is not itself a manufacturer or remanufacturer of toner cartridges. It is, rather, "the market leader [in] making and selling the components necessary to remanufacture Lexmark cartridges." 697 F.3d 387, 396 (C.A.6 2012) (case below). In addition to supplying remanufacturers with toner and various replacement parts, Static Control developed a microchip that could mimic the microchip in Lexmark's Prebate cartridges. By purchasing Static Control's microchips and using them to replace the Lexmark microchip, remanufacturers were able to refurbish and resell used Prebate cartridges.
Lexmark did not take kindly to that development. In 2002, it sued Static Control, alleging that Static Control's microchips violated both the Copyright Act of 1976, 17 U.S.C. § 101 et seq., and the Digital Millennium Copyright Act, 17 U.S.C. § 1201 et seq. Static Control counterclaimed, alleging, among other things, violations of § 43(a) of the Lanham Act, 60 Stat. 441, codified at 15 U.S.C. § 1125(a). Section 1125(a) provides:
"(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which-
"(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
"(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person's goods, services, or commercial activities,
"shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act."
Section 1125(a) thus creates two distinct bases of liability: false association, § 1125(a)(1)(A), and false advertising, § 1125(a)(1)(B). See Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1108 (C.A.9 1992). Static Control alleged only false advertising.
As relevant to its Lanham Act claim, Static Control alleged two types of false or misleading conduct by Lexmark. First, it alleged that through its Prebate program Lexmark "purposefully misleads end-users" to believe that they are legally bound by the Prebate terms and are thus required to return the Prebate-labeled cartridge to Lexmark after a single use. App. 31, ¶ 39. Second, it alleged that upon introducing the Prebate program, Lexmark "sent letters to most of the companies in the toner cartridge remanufacturing business" falsely advising those companies that it was illegal to sell refurbished Prebate cartridges and, in particular, that it was illegal to use Static Control's products to refurbish those cartridges. Id., at 29, ¶ 35. Static Control asserted that by those statements, Lexmark had materially misrepresented "the nature, characteristics, and qualities" of both its own products and Static Control's products. Id., at 43-44, ¶ 85. It further maintained that Lexmark's misrepresentations had "proximately caused and [we]re likely to cause injury to [Static Control] by diverting sales from [Static Control] to Lexmark," and had "substantially injured [its] business reputation" by "leading consumers and others in the trade to believe that [Static Control] is engaged in illegal conduct." Id., at 44, ¶ 88. Static Control sought treble damages, attorney's fees and costs, and injunctive relief.1
The District Court granted Lexmark's motion to dismiss Static Control's Lanham Act claim. It held that Static Control lacked "prudential standing" to bring that claim, App. to Pet. for Cert. 83, relying on a multifactor balancing test it attributed to Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). The court emphasized that there were "more direct plaintiffs in the form of remanufacturers of Lexmark's cartridges"; that Static Control's injury was "remot[e]" because it was a mere "byproduct of the supposed manipulation of consumers' relationships with remanufacturers"; and that Lexmark's "alleged intent [was] to dry up spent cartridge supplies at the remanufacturing level, rather than at [Static Control]'s supply level, making remanufacturers Lexmark's alleged intended target." App. to Pet. for Cert. 83.
The Sixth Circuit reversed the dismissal of Static Control's Lanham Act claim. 697 F.3d, at 423. Taking the lay of the land, it identified three competing approaches to determining whether a plaintiff has standing to sue under the Lanham Act. It observed that the Third, Fifth, Eighth, and Eleventh Circuits all refer to "antitrust standing or the [Associated General Contractors ] factors in deciding Lanham Act standing," as the District Court had done. Id., at 410 (citing Conte Bros. Automotive, Inc. v. Quaker State-Slick 50, Inc., 165 F.3d 221, 233-234 (C.A.3 1998); Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 562-563 (C.A.5 2001); Gilbert/Robinson, Inc. v. Carrie Beverage-Missouri, Inc., 989 F.2d 985, 990-991 (C.A.8 1993); Phoenix of Broward, Inc. v. McDonald's Corp., 489 F.3d 1156, 1162-1164 (C.A.11 2007)). By contrast, "[t]he Seventh, Ninth, and Tenth [Circuits] use a categorical test, permitting Lanham Act suits only by an actual competitor." 697 F.3d, at 410 (citing L.S. Heath & Son, Inc. v. AT & T Information Systems, Inc., 9 F.3d 561, 575 (C.A.7 1993); Waits, supra, at 1108-1109;Stanfield v. Osborne Industries, Inc., 52 F.3d 867, 873 (C.A.10 1995)). And the Second Circuit applies a " 'reasonable interest' approach," under which a Lanham Act plaintiff "has standing if the claimant can demonstrate '(1) a reasonable interest to be protected against the alleged false advertising and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising.' " 697 F.3d, at 410 (quoting Famous Horse, Inc. v. 5th Avenue Photo Inc., 624 F.3d 106, 113 (C.A.2 2010)). The Sixth Circuit applied the Second Circuit's reasonable-interest test and concluded that Static Control had standing because it "alleged a cognizable interest in its business reputation and sales to remanufacturers and sufficiently alleged that th[o]se interests were harmed by Lexmark's statements to the remanufacturers that Static Control was engaging in illegal conduct." 697 F.3d, at 411.
We granted certiorari to decide "the appropriate analytical framework for determining a party's standing to maintain an action for false advertising under the Lanham Act." Pet. for Cert. i; 569 U.S. ----, 133 S.Ct. 2766, 186 L.Ed.2d 217 (2013).2
II. "Prudential Standing"
The parties' briefs treat the question on which we granted certiorari as one of "prudential standing." Because we think that label misleading, we begin by clarifying the nature of the question at issue in this case.
From Article III's limitation of the judicial power to resolving "Cases" and "Controversies," and the separation-of-powers principles underlying that limitation, we have deduced a set of requirements that together make up the "irreducible constitutional minimum of standing." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The plaintiff must have suffered or be imminently threatened with a concrete and particularized "injury in fact" that is fairly traceable to the challenged action of the defendant and likely to be redressed by a favorable judicial decision. Ibid. Lexmark does not deny that Static Control's allegations of lost sales and damage to its business reputation give it standing under Article III to press its false-advertising claim, and we are satisfied that they do.
Although Static Control's claim thus presents a case or controversy that is properly within federal courts' Article III jurisdiction, Lexmark urges that we should decline to adjudicate Static Control's claim on grounds that are "prudential," rather than constitutional. That request is in some tension with our recent reaffirmation of the principle that "a federal court's 'obligation' to hear and decide" cases within its jurisdiction "is 'virtually unflagging.' " Sprint Communications, Inc. v. Jacobs, 571 U.S. ----, ----, 134 S.Ct. 584, 591, 187 L.Ed.2d 505 (2013) (quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976)). In recent decades, however, we have adverted to a "prudential" branch of standing, a doctrine not derived from Article III and "not exhaustively defined" but encompassing (we have said) at least three broad principles: " 'the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked.' " Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 12, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004) (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).
Lexmark bases its "prudential standing" arguments chiefly on Associated General Contractors, but we did not describe our analysis in that case in those terms. Rather, we sought to "ascertain," as a matter of statutory interpretation, the "scope of the private remedy created by" Congress in § 4 of the Clayton Act, and the "class of persons who [could] maintain a private damages action under" that legislatively conferred cause of action. 459 U.S., at 529, 532, 103 S.Ct. 897. We held that the statute limited the class to plaintiffs whose injuries were proximately caused by a defendant's antitrust violations. Id., at 532-533, 103 S.Ct. 897. Later decisions confirm that Associated General Contractors rested on statutory, not "prudential," considerations. See, e.g.,Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 265-268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992) (relying on Associated General Contractors in finding a proximate-cause requirement in the cause of action created by the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1964(c)); Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 456, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (affirming that Holmes "relied on a careful interpretation of § 1964(c)"). Lexmark's arguments thus do not deserve the "prudential" label.
Static Control, on the other hand, argues that we should measure its "prudential standing" by using the zone-of-interests test. Although we admittedly have placed that test under the "prudential" rubric in the past, see, e.g.,Elk Grove, supra, at 12, 124 S.Ct. 2301, it does not belong there any more than Associated General Contractors does. Whether a plaintiff comes within "the 'zone of interests' " is an issue that requires us to determine, using traditional tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a particular plaintiff's claim. See Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Clarke v. Securities Industry Assn., 479 U.S. 388, 394-395, 107 S.Ct. 750, 93 L.Ed.2d 757 (1987); Holmes, supra, at 288, 112 S.Ct. 1311 (SCALIA, J., concurring in judgment). As Judge Silberman of the D.C. Circuit recently observed, " 'prudential standing' is a misnomer" as applied to the zone-of-interests analysis, which asks whether "this particular class of persons ha[s] a right to sue under this substantive statute." Association of Battery Recyclers, Inc. v. EPA, 716 F.3d 667, 675-676 (2013) (concurring opinion).3
In sum, the question this case presents is whether Static Control falls within the class of plaintiffs whom Congress has authorized to sue under § 1125(a). In other words, we ask whether Static Control has a cause of action under the statute.4
That question requires us to determine the meaning of the congressionally enacted provision creating a cause of action. In doing so, we apply traditional principles of statutory interpretation. We do not ask whether in our judgment Congress should have authorized Static Control's suit, but whether Congress in fact did so. Just as a court cannot apply its independent policy judgment to recognize a cause of action that Congress has denied, see Alexander v. Sandoval, 532 U.S. 275, 286-287, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), it cannot limit a cause of action that Congress has created merely because "prudence" dictates.
III. Static Control's Right To Sue Under § 1125(a)
Thus, this case presents a straightforward question of statutory interpretation: Does the cause of action in § 1125(a) extend to plaintiffs like Static Control? The statute authorizes suit by "any person who believes that he or she is likely to be damaged" by a defendant's false advertising. § 1125(a)(1). Read literally, that broad language might suggest that an action is available to anyone who can satisfy the minimum requirements of Article III. No party makes that argument, however, and the "unlikelihood that Congress meant to allow all factually injured plaintiffs to recover persuades us that [§ 1125(a) ] should not get such an expansive reading." Holmes, 503 U.S., at 266, 112 S.Ct. 1311 (footnote omitted). We reach that conclusion in light of two relevant background principles already mentioned: zone of interests and proximate causality.
A. Zone of Interests
First, we presume that a statutory cause of action extends only to plaintiffs whose interests "fall within the zone of interests protected by the law invoked." Allen, 468 U.S., at 751, 104 S.Ct. 3315. The modern "zone of interests" formulation originated in Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970), as a limitation on the cause of action for judicial review conferred by the Administrative Procedure Act (APA). We have since made clear, however, that it applies to all statutorily created causes of action; that it is a "requirement of general application"; and that Congress is presumed to "legislat[e] against the background of" the zone-of-interests limitation, "which applies unless it is expressly negated." Bennett v. Spear, 520 U.S. 154, 163, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997); see also Holmes, supra, at 287-288, 112 S.Ct. 1311 (SCALIA, J., concurring in judgment). It is "perhaps more accurat[e]," though not very different as a practical matter, to say that the limitation always applies and is never negated, but that our analysis of certain statutes will show that they protect a more-than-usually "expan[sive]" range of interests. Bennett, supra, at 164, 117 S.Ct. 1154. The zone-of-interests test is therefore an appropriate tool for determining who may invoke the cause of action in § 1125(a). 5
We have said, in the APA context, that the test is not " 'especially demanding,' " Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. ----, ----, 132 S.Ct. 2199, 2210, 183 L.Ed.2d 211 (2012). In that context we have often "conspicuously included the word 'arguably' in the test to indicate that the benefit of any doubt goes to the plaintiff," and have said that the test "forecloses suit only when a plaintiff's 'interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that' " Congress authorized that plaintiff to sue. Id., at ----, 132 S.Ct., at 2210. That lenient approach is an appropriate means of preserving the flexibility of the APA's omnibus judicial-review provision, which permits suit for violations of numerous statutes of varying character that do not themselves include causes of action for judicial review. "We have made clear, however, that the breadth of the zone of interests varies according to the provisions of law at issue, so that what comes within the zone of interests of a statute for purposes of obtaining judicial review of administrative action under the ' "generous review provisions" ' of the APA may not do so for other purposes." Bennett, supra, at 163, 117 S.Ct. 1154 (quoting Clarke, 479 U.S., at 400, n. 16, 107 S.Ct. 750, in turn quoting Data Processing, supra, at 156, 90 S.Ct. 827).
Identifying the interests protected by the Lanham Act, however, requires no guesswork, since the Act includes an "unusual, and extraordinarily helpful," detailed statement of the statute's purposes. H.B. Halicki Productions v. United Artists Communications, Inc., 812 F.2d 1213, 1214 (C.A.9 1987). Section 45 of the Act, codified at 15 U.S.C. § 1127, provides:
"The intent of this chapter is to regulate commerce within the control of Congress by making actionable the deceptive and misleading use of marks in such commerce; to protect registered marks used in such commerce from interference by State, or territorial legislation; to protect persons engaged in such commerce against unfair competition; to prevent fraud and deception in such commerce by the use of reproductions, copies, counterfeits, or colorable imitations of registered marks; and to provide rights and remedies stipulated by treaties and conventions respecting trademarks, trade names, and unfair competition entered into between the United States and foreign nations."
Most of the enumerated purposes are relevant to false-association cases; a typical false-advertising case will implicate only the Act's goal of "protect [ing] persons engaged in [commerce within the control of Congress] against unfair competition." Although "unfair competition" was a "plastic" concept at common law, Ely-Norris Safe Co. v. Mosler Safe Co., 7 F.2d 603, 604 (C.A.2 1925) (L. Hand, J.), it was understood to be concerned with injuries to business reputation and present and future sales. See Rogers, Book Review, 39 Yale L.J. 297, 299 (1929); see generally 3 Restatement of Torts, ch. 35, Introductory Note, pp. 536-537 (1938).
We thus hold that to come within the zone of interests in a suit for false advertising under § 1125(a), a plaintiff must allege an injury to a commercial interest in reputation or sales. A consumer who is hoodwinked into purchasing a disappointing product may well have an injury-in-fact cognizable under Article III, but he cannot invoke the protection of the Lanham Act-a conclusion reached by every Circuit to consider the question. See Colligan v. Activities Club of N. Y., Ltd., 442 F.2d 686, 691-692 (C.A.2 1971); Serbin v. Ziebart Int'l Corp., 11 F.3d 1163, 1177 (C.A.3 1993); Made in the USA Foundation v. Phillips Foods, Inc., 365 F.3d 278, 281 (C.A.4 2004); Procter & Gamble Co., 242 F.3d, at 563-564;Barrus v. Sylvania, 55 F.3d 468, 470 (C.A.9 1995); Phoenix of Broward, 489 F.3d, at 1170. Even a business misled by a supplier into purchasing an inferior product is, like consumers generally, not under the Act's aegis.
B. Proximate Cause
Second, we generally presume that a statutory cause of action is limited to plaintiffs whose injuries are proximately caused by violations of the statute. For centuries, it has been "a well established principle of [the common] law, that in all cases of loss, we are to attribute it to the proximate cause, and not to any remote cause." Waters v. Merchants' Louisville Ins. Co., 11 Pet. 213, 223, 9 L.Ed. 691 (1837); see Holmes, 503 U.S., at 287, 112 S.Ct. 1311 (SCALIA, J., concurring in judgment). That venerable principle reflects the reality that "the judicial remedy cannot encompass every conceivable harm that can be traced to alleged wrongdoing." Associated Gen. Contractors, 459 U.S., at 536, 103 S.Ct. 897. Congress, we assume, is familiar with the common-law rule and does not mean to displace it sub silentio. We have thus construed federal causes of action in a variety of contexts to incorporate a requirement of proximate causation. See, e.g.,Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005) (securities fraud); Holmes, supra, at 268-270, 112 S.Ct. 1311 (RICO); Associated Gen. Contractors, supra, at 529-535, 103 S.Ct. 897 (Clayton Act). No party disputes that it is proper to read § 1125(a) as containing such a requirement, its broad language notwithstanding.
The proximate-cause inquiry is not easy to define, and over the years it has taken various forms; but courts have a great deal of experience applying it, and there is a wealth of precedent for them to draw upon in doing so. See Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 838-839, 116 S.Ct. 1813, 135 L.Ed.2d 113 (1996); Pacific Operators Offshore, LLP v. Valladolid, 565 U.S. ----, ----, 132 S.Ct. 680, 692-693, 181 L.Ed.2d 675 (2012) (SCALIA, J., concurring in part and concurring in judgment). Proximate-cause analysis is controlled by the nature of the statutory cause of action. The question it presents is whether the harm alleged has a sufficiently close connection to the conduct the statute prohibits.
Put differently, the proximate-cause requirement generally bars suits for alleged harm that is "too remote" from the defendant's unlawful conduct. That is ordinarily the case if the harm is purely derivative of "misfortunes visited upon a third person by the defendant's acts." Holmes, supra, at 268-269, 112 S.Ct. 1311; see, e.g., Hemi Group, LLC v. City of New York, 559 U.S. 1, 10-11, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). In a sense, of course, all commercial injuries from false advertising are derivative of those suffered by consumers who are deceived by the advertising; but since the Lanham Act authorizes suit only for commercial injuries, the intervening step of consumer deception is not fatal to the showing of proximate causation required by the statute. See Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 800-801 (C.A.5 2011). That is consistent with our recognition that under common-law principles, a plaintiff can be directly injured by a misrepresentation even where "a third party, and not the plaintiff, ... relied on" it. Bridge v. Phoenix Bond & Indemnity Co., 553 U.S. 639, 656, 128 S.Ct. 2131, 170 L.Ed.2d 1012 (2008).
We thus hold that a plaintiff suing under § 1125(a) ordinarily must show economic or reputational injury flowing directly from the deception wrought by the defendant's advertising; and that that occurs when deception of consumers causes them to withhold trade from the plaintiff. That showing is generally not made when the deception produces injuries to a fellow commercial actor that in turn affect the plaintiff. For example, while a competitor who is forced out of business by a defendant's false advertising generally will be able to sue for its losses, the same is not true of the competitor's landlord, its electric company, and other commercial parties who suffer merely as a result of the competitor's "inability to meet [its] financial obligations." Anza, 547 U.S., at 458, 126 S.Ct. 1991.6
C. Proposed Tests
At oral argument, Lexmark agreed that the zone of interests and proximate causation supply the relevant background limitations on suit under § 1125(a). See Tr. of Oral Arg. 4-5, 11-12, 17-18. But it urges us to adopt, as the optimal formulation of those principles, a multifactor balancing test derived from Associated General Contractors. In the alternative, it asks that we adopt a categorical test permitting only direct competitors to sue for false advertising. And although neither party urges adoption of the "reasonable interest" test applied below, several amici do so. While none of those tests is wholly without merit, we decline to adopt any of them. We hold instead that a direct application of the zone-of-interests test and the proximate-cause requirement supplies the relevant limits on who may sue.
The balancing test Lexmark advocates was first articulated by the Third Circuit in Conte Bros. and later adopted by several other Circuits. Conte Bros. identified five relevant considerations:
"(1) The nature of the plaintiff's alleged injury: Is the injury of a type that Congress sought to redress in providing a private remedy for violations of the [Lanham Act]?
"(2) The directness or indirectness of the asserted injury.
"(3) The proximity or remoteness of the party to the alleged injurious conduct.
"(4) The speculativeness of the damages claim.
"(5) The risk of duplicative damages or complexity in apportioning damages." 165 F.3d, at 233 (citations and internal quotation marks omitted).
This approach reflects a commendable effort to give content to an otherwise nebulous inquiry, but we think it slightly off the mark. The first factor can be read as requiring that the plaintiff's injury be within the relevant zone of interests and the second and third as requiring (somewhat redundantly) proximate causation; but it is not correct to treat those requirements, which must be met in every case, as mere factors to be weighed in a balance. And the fourth and fifth factors are themselves problematic. "[T]he difficulty that can arise when a court attempts to ascertain the damages caused by some remote action" is a "motivating principle" behind the proximate-cause requirement, Anza, supra, at 457-458, 126 S.Ct. 1991; but potential difficulty in ascertaining and apportioning damages is not, as Conte Bros. might suggest, an independent basis for denying standing where it is adequately alleged that a defendant's conduct has proximately injured an interest of the plaintiff's that the statute protects. Even when a plaintiff cannot quantify its losses with sufficient certainty to recover damages, it may still be entitled to injunctive relief under § 1116(a) (assuming it can prove a likelihood of future injury) or disgorgement of the defendant's ill-gotten profits under § 1117(a). See TrafficSchool.com, Inc. v. Edriver Inc., 653 F.3d 820, 831 (C.A.9 2011); Johnson & Johnson v. Carter-Wallace, Inc., 631 F.2d 186, 190 (C.A.2 1980). Finally, experience has shown that the Conte Bros. approach, like other open-ended balancing tests, can yield unpredictable and at times arbitrary results. See, e.g., Tushnet, Running the Gamut from A to B: Federal Trademark and False Advertising Law, 159 U. Pa. L.Rev. 1305, 1376-1379 (2011).
In contrast to the multifactor balancing approach, the direct-competitor test provides a bright-line rule; but it does so at the expense of distorting the statutory language. To be sure, a plaintiff who does not compete with the defendant will often have a harder time establishing proximate causation. But a rule categorically prohibiting all suits by noncompetitors would read too much into the Act's reference to "unfair competition" in § 1127. By the time the Lanham Act was adopted, the common-law tort of unfair competition was understood not to be limited to actions between competitors. One leading authority in the field wrote that "there need be no competition in unfair competition," just as "[t]here is no soda in soda water, no grapes in grape fruit, no bread in bread fruit, and a clothes horse is not a horse but is good enough to hang things on." Rogers, 39 Yale L. J., at 299; accord, Vogue Co. v. Thompson-Hudson Co., 300 F. 509, 512 (C.A.6 1924); 1 H. Nims, The Law of Unfair Competition and Trade-Marks, p. vi (4th ed. 1947); 2 id., at 1194-1205. It is thus a mistake to infer that because the Lanham Act treats false advertising as a form of unfair competition, it can protect only the false-advertiser's direct competitors.
Finally, there is the "reasonable interest" test applied by the Sixth Circuit in this case. As typically formulated, it requires a commercial plaintiff to "demonstrate '(1) a reasonable interest to be protected against the alleged false advertising and (2) a reasonable basis for believing that the interest is likely to be damaged by the alleged false advertising.' " 697 F.3d, at 410 (quoting Famous Horse, 624 F.3d, at 113). A purely practical objection to the test is that it lends itself to widely divergent application. Indeed, its vague language can be understood as requiring only the bare minimum of Article III standing. The popularity of the multifactor balancing test reflects its appeal to courts tired of "grappl[ing] with defining" the " 'reasonable interest' " test "with greater precision." Conte Bros., 165 F.3d, at 231. The theoretical difficulties with the test are even more substantial: The relevant question is not whether the plaintiff's interest is "reasonable," but whether it is one the Lanham Act protects; and not whether there is a "reasonable basis" for the plaintiff's claim of harm, but whether the harm alleged is proximately tied to the defendant's conduct. In short, we think the principles set forth above will provide clearer and more accurate guidance than the "reasonable interest" test.
IV. Application
Applying those principles to Static Control's false-advertising claim, we conclude that Static Control comes within the class of plaintiffs whom Congress authorized to sue under § 1125(a).
To begin, Static Control's alleged injuries-lost sales and damage to its business reputation-are injuries to precisely the sorts of commercial interests the Act protects. Static Control is suing not as a deceived consumer, but as a "perso[n] engaged in" "commerce within the control of Congress" whose position in the marketplace has been damaged by Lexmark's false advertising. § 1127. There is no doubt that it is within the zone of interests protected by the statute.
Static Control also sufficiently alleged that its injuries were proximately caused by Lexmark's misrepresentations. This case, it is true, does not present the "classic Lanham Act false-advertising claim" in which " 'one competito[r] directly injur[es] another by making false statements about his own goods [or the competitor's goods] and thus inducing customers to switch.' " Harold H. Huggins Realty, 634 F.3d, at 799, n. 24. But although diversion of sales to a direct competitor may be the paradigmatic direct injury from false advertising, it is not the only type of injury cognizable under § 1125(a). For at least two reasons, Static Control's allegations satisfy the requirement of proximate causation.
First, Static Control alleged that Lexmark disparaged its business and products by asserting that Static Control's business was illegal. See 697 F.3d, at 411, n. 10 (noting allegation that Lexmark "directly target[ed] Static Control" when it "falsely advertised that Static Control infringed Lexmark's patents"). When a defendant harms a plaintiff's reputation by casting aspersions on its business, the plaintiff's injury flows directly from the audience's belief in the disparaging statements. Courts have therefore afforded relief under § 1125(a) not only where a defendant denigrates a plaintiff's product by name, see, e.g.,McNeilab, Inc. v. American Home Prods. Corp., 848 F.2d 34, 38 (C.A.2 1988), but also where the defendant damages the product's reputation by, for example, equating it with an inferior product, see, e.g.,Camel Hair and Cashmere Inst. of Am., Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 7-8, 11-12 (C.A.1 1986); PPX Enterprises, Inc. v. Audiofidelity, Inc., 746 F.2d 120, 122, 125 (C.A.2 1984). Traditional proximate-causation principles support those results: As we have observed, a defendant who " 'seeks to promote his own interests by telling a known falsehood to or about the plaintiff or his product' " may be said to have proximately caused the plaintiff's harm. Bridge, 553 U.S., at 657, 128 S.Ct. 2131 (quoting Restatement (Second) of Torts § 870, Comment h (1977); emphasis added in Bridge ).
The District Court emphasized that Lexmark and Static Control are not direct competitors. But when a party claims reputational injury from disparagement, competition is not required for proximate cause; and that is true even if the defendant's aim was to harm its immediate competitors, and the plaintiff merely suffered collateral damage. Consider two rival carmakers who purchase airbags for their cars from different third-party manufacturers. If the first carmaker, hoping to divert sales from the second, falsely proclaims that the airbags used by the second carmaker are defective, both the second carmaker and its airbag supplier may suffer reputational injury, and their sales may decline as a result. In those circumstances, there is no reason to regard either party's injury as derivative of the other's; each is directly and independently harmed by the attack on its merchandise.
In addition, Static Control adequately alleged proximate causation by alleging that it designed, manufactured, and sold microchips that both (1) were necessary for, and (2) had no other use than, refurbishing Lexmark toner cartridges. See App. 13, ¶ 31; id., at 37, ¶ 54.7 It follows from that allegation that any false advertising that reduced the remanufacturers' business necessarily injured Static Control as well. Taking Static Control's assertions at face value, there is likely to be something very close to a 1:1 relationship between the number of refurbished Prebate cartridges sold (or not sold) by the remanufacturers and the number of Prebate microchips sold (or not sold) by Static Control. "Where the injury alleged is so integral an aspect of the [violation] alleged, there can be no question" that proximate cause is satisfied. Blue Shield of Va. v. McCready, 457 U.S. 465, 479, 102 S.Ct. 2540, 73 L.Ed.2d 149 (1982).
To be sure, on this view, the causal chain linking Static Control's injuries to consumer confusion is not direct, but includes the intervening link of injury to the remanufacturers. Static Control's allegations therefore might not support standing under a strict application of the " ' "general tendency" ' " not to stretch proximate causation " ' "beyond the first step." ' " Holmes, 503 U.S., at 271, 112 S.Ct. 1311. But the reason for that general tendency is that there ordinarily is a "discontinuity" between the injury to the direct victim and the injury to the indirect victim, so that the latter is not surely attributable to the former (and thus also to the defendant's conduct), but might instead have resulted from "any number of [other] reasons." Anza, 547 U.S., at 458-459, 126 S.Ct. 1991. That is not the case here. Static Control's allegations suggest that if the remanufacturers sold 10,000 fewer refurbished cartridges because of Lexmark's false advertising, then it would follow more or less automatically that Static Control sold 10,000 fewer microchips for the same reason, without the need for any "speculative ... proceedings" or "intricate, uncertain inquiries." Id., at 459-460, 126 S.Ct. 1991. In these relatively unique circumstances, the remanufacturers are not "more immediate victim[s]" than Static Control. Bridge, supra, at 658, 128 S.Ct. 2131.
Although we conclude that Static Control has alleged an adequate basis to proceed under § 1125(a), it cannot obtain relief without evidence of injury proximately caused by Lexmark's alleged misrepresentations. We hold only that Static Control is entitled to a chance to prove its case.
* * *
To invoke the Lanham Act's cause of action for false advertising, a plaintiff must plead (and ultimately prove) an injury to a commercial interest in sales or business reputation proximately caused by the defendant's misrepresentations. Static Control has adequately pleaded both elements. The judgment of the Court of Appeals is affirmed.
It is so ordered.
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
Lexmark contends that Static Control's allegations failed to describe "commercial advertising or promotion" within the meaning of 15 U.S.C. § 1125(a)(1)(B). That question is not before us, and we express no view on it. We assume without deciding that the communications alleged by Static Control qualify as commercial advertising or promotion.
Other aspects of the parties' sprawling litigation, including Lexmark's claims under federal copyright and patent law and Static Control's claims under federal antitrust and North Carolina unfair-competition law, are not before us. Our review pertains only to Static Control's Lanham Act claim.
The zone-of-interests test is not the only concept that we have previously classified as an aspect of "prudential standing" but for which, upon closer inspection, we have found that label inapt. Take, for example, our reluctance to entertain generalized grievances- i.e., suits "claiming only harm to [the plaintiff's] and every citizen's interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large." Lujan v. Defenders of Wildlife, 504 U.S. 555, 573-574, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). While we have at times grounded our reluctance to entertain such suits in the "counsels of prudence" (albeit counsels "close [ly] relat[ed] to the policies reflected in" Article III), Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 475, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982), we have since held that such suits do not present constitutional "cases" or "controversies." See, e.g.,Lance v. Coffman, 549 U.S. 437, 439, 127 S.Ct. 1194, 167 L.Ed.2d 29 (2007) ( per curiam ); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 344-346, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); Defenders of Wildlife,supra, at 573-574, 112 S.Ct. 2130. They are barred for constitutional reasons, not "prudential" ones. The limitations on third-party standing are harder to classify; we have observed that third-party standing is " 'closely related to the question whether a person in the litigant's position will have a right of action on the claim,' " Department of Labor v. Triplett, 494 U.S. 715, 721, n. * *, 110 S.Ct. 1428, 108 L.Ed.2d 701 (1990) (quoting Warth v. Seldin, 422 U.S. 490, 500, n. 12, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)), but most of our cases have not framed the inquiry in that way. See, e.g.,Kowalski v. Tesmer, 543 U.S. 125, 128-129, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (suggesting it is an element of "prudential standing"). This case does not present any issue of third-party standing, and consideration of that doctrine's proper place in the standing firmament can await another day.
We have on occasion referred to this inquiry as "statutory standing" and treated it as effectively jurisdictional. See, e.g.,Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 97, and n. 2, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); cases cited id., at 114-117, 118 S.Ct. 1003 (Stevens, J., concurring in judgment). That label is an improvement over the language of "prudential standing," since it correctly places the focus on the statute. But it, too, is misleading, since "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction, i.e., the court's statutory or constitutional power to adjudicate the case.' " Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 642-643, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (quoting Steel Co.,supra, at 89, 118 S.Ct. 1003); see also Grocery Mfrs. Assn. v. EPA, 693 F.3d 169, 183-185 (Kavanaugh, J., dissenting), and cases cited therein; Pathak, Statutory Standing and the Tyranny of Labels, 62 Okla. L.Rev. 89, 106 (2009).
Although we announced the modern zone-of-interests test in 1971, its roots lie in the common-law rule that a plaintiff may not recover under the law of negligence for injuries caused by violation of a statute unless the statute "is interpreted as designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 36, pp. 229-230 (5th ed. 1984); see cases cited id., at 222-227; Gorris v. Scott, [1874] 9 L.R. Exch. 125 (Eng.). Statutory causes of action are regularly interpreted to incorporate standard common-law limitations on civil liability-the zone-of-interests test no less than the requirement of proximate causation, see Part III-B, infra.
Proximate causation is not a requirement of Article III standing, which requires only that the plaintiff's injury be fairly traceable to the defendant's conduct. Like the zone-of-interests test, see supra, at 1387 - 1388, and nn. 3-4, it is an element of the cause of action under the statute, and so is subject to the rule that "the absence of a valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction." Steel Co., 523 U.S., at 89, 118 S.Ct. 1003. But like any other element of a cause of action, it must be adequately alleged at the pleading stage in order for the case to proceed. See Ashcroft v. Iqbal, 556 U.S. 662, 678-679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). If a plaintiff's allegations, taken as true, are insufficient to establish proximate causation, then the complaint must be dismissed; if they are sufficient, then the plaintiff is entitled to an opportunity to prove them.
We understand this to be the thrust of both sides' allegations concerning Static Control's design and sale of specialized microchips for the specific purpose of enabling the remanufacture of Lexmark's Prebate cartridges.
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_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.
UNITED STATES of America v. Maurice S. OSSER, Appellant.
No. 87-1635.
United States Court of Appeals, Third Circuit.
Argued Oct. 31, 1988.
Decided Dec. 29, 1988.
Rehearing and Rehearing In Banc Denied Jan. 24, 1989.
Jeremy T. Ross (argued), Neil E. Jokel-son, Philadelphia, Pa., for appellant.
Frederick G. Herold (argued), Asst. U.S. Atty., Edward S.G. Dennis, Jr., U.S. Atty., Walter S. Batty, Jr., Asst. U.S. Atty., Chief of Appeals, Philadelphia, Pa., for appellee.
Before GIBBONS, Chief Judge, BECKER and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
Fifteen years after this petitioner was convicted of mail fraud, the Supreme Court held that the governing statute does not permit prosecution solely on the theory that a governmental official’s wrongful conduct deprived the citizenry of his honest services. Petitioner then asked the district court to vacate his conviction in light of the Court’s holding but was denied relief because he had failed to raise the issue on direct appeal. In addition, the district judge noted that the jury had been charged that it also could convict if it found that the kickbacks petitioner received had caused economic loss to the municipality that had employed him. We will affirm.
In 1972, petitioner Maurice Osser, a City Commissioner of Philadelphia, was convicted on seven counts of mail fraud, 18 U.S.C. §§ 1341, 2, one count of conspiracy to commit mail fraud, 18 U.S.C. § 371, and one count of obstruction of justice, 18 U.S.C. § 1510. The court imposed sentences of imprisonment and fines on the mail fraud counts, a concurrent sentence of imprisonment on the conspiracy count, along with a fine, and a consecutive prison sentence and fine on the obstruction of justice charge. The judgments were affirmed by this Court on direct appeal. United States v. Osser, 483 F.2d 727 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973). Osser served his periods of incarceration and probation and has paid the fines.
In 1987, the Supreme Court decided in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), that the federal mail fraud statute did not reach schemes to deny the public its right to have governmental officials perform their duties honestly and impartially. “The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government.” Id. at -, 107 S.Ct. at 2879. In so deciding, the Court itself acknowledged that the Courts of Appeals had consistently interpreted the statute as proscribing schemes to defraud persons of their intangible rights. Id. at -, 107 S.Ct. at 2880.
Armed with the McNally decision, Osser sought to vacate his conviction by petitioning for a writ of coram nobis from the same district judge who presided at his 1972 trial. Osser asserted that the jury had been erroneously charged that it could convict if the government proved that “the citizens of Philadelphia were defrauded out of the loyal and faithful services of an employee” and that it need not “show an actual monetary loss to the City.” Arguing that the jury instructions invalidated his conviction, Osser contended that relief was due because he suffers collateral adverse consequences flowing from his conviction — possible impeachment as a witness, enhanced penalties for future convictions, and the denial of his city pension.
In reviewing the underlying conviction, the district court characterized the scheme as “a classic ‘bid rigging’ and ‘kick-back’ ” arrangement in which two printing companies submitted collusive bids on the city’s requests, ensuring that each firm would get certain contracts. In operation for fifteen years, the printers’ secret agreement prevented actual competitive bidding. Os-ser, by virtue of his position as City Commissioner, was able to influence the selection of printing firms and, for his part in the annual scheme, received “commissions.”
The trial record revealed that the jurors had been instructed on four separate postulates that could lead to a conviction for mail fraud. One possibility was that the city had been defrauded of money in the form of “commissions” or kickbacks that Osser received; another was that the citizens of Philadelphia had been deprived of Osser's honest and impartial services.
In denying Osser’s petition, the district court observed that McNally proscribed only one of the two separate theories on which the mail fraud counts had been submitted to the jury; a conviction based on a monetary loss approach would still be valid. The court also noted that portions of the record were no longer available, that Osser had not raised the intangible rights issue either at trial or on direct appeal, and that he was not seeking to vacate the obstruction of justice conviction. Although the prosecution had presented “overwhelming evidence” to establish Osser’s guilt in the 1972 trial, it was doubtful that, fifteen years later, the government would be able to present sufficient proof to allow the case to go to a jury. The district court observed that, in these circumstances, granting a new trial would create a “manifest injustice to the City of Philadelphia and its citizens.”
On appeal, Osser argues that McNally is to be given retroactive effect and that because the issue of guilt was submitted to the jury on two theories, one of which was invalid, the conviction must be vacated. The government contends that the scheme established at trial had the inevitable result of causing property loss to the city, and hence, McNally does not affect the validity of the conviction. In addition, the government asserts that, because Osser had not previously contested the intangible rights theory, he is not now entitled to coram nobis relief.
I.
The retroactivity of Supreme Court holdings in criminal cases has proved to be a troubling concept, particularly as applied to procedural rulings and prophylactic measures. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). McNally is of a different nature because it holds that certain misconduct does not fall within the proscription of the mail fraud statute and thus the decision goes to substance rather than procedure.
A ruling that a trial court lacked power to convict a defendant for proven activity must necessarily be retroactive. The Supreme Court stated in United States v. United States Coin & Currency, 401 U.S. 715, 724, 91 S.Ct. 1041, 1046, 28 L.Ed.2d 434 (1971), that “even the use of impeccable factfinding procedures could not legitimate a verdict” where “we have held that the conduct being penalized is constitutionally immune from punishment. No circumstances call more for the invocation of a rule of complete retroactivity.” It follows that retroactivity must be given to McNally’s holding that a scheme depriving the citizenry of honest services of its local officials was, without more, not prohibited by the mail fraud act. United States v. Shelton, 848 F.2d 1485, 1490 (10th Cir.1988) (en banc) (habeas corpus proceeding). See Davis v. U.S., 417 U.S. 333, 342, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974) (collateral attack allowed on basis of intervening change in substantive law).
The Court has also determined that a verdict of guilty based arguably on alternative premises, one of which is erroneous, cannot stand on direct appeal where it is impossible to ascertain on which ground the defendant was convicted. Chiarella v. United States, 445 U.S. 222, 237 n. 21, 100 S.Ct. 1108, 1119 n. 21, 63 L.Ed.2d 348 (1980); Stromberg v. California, 283 U.S. 359, 368, 51 S.Ct. 532, 535, 75 L.Ed. 1117 (1931). See United States v. Dansker, 537 F.2d 40, 51 (3d Cir.1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 732, 50 L.Ed.2d 748 (1977).
These general principles, however, are not dispositive of the issues present in the case at hand. Even though McNally is retroactive, it does not always require the vacation of a mail fraud conviction tinged with intangible rights aspects.
II.
Osser seeks relief through the cor-am nobis route, a remedy reserved for exceptional circumstances. Coram nobis was available at common law in both the civil and criminal fields to correct errors of fact unknown to the court at time of the original judgment. Later, the writ was used to correct errors of law in criminal cases. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). See generally Note, The Writ of Error Coram No-bis in Civil Practice, 20 Va.L.Rev. 423 (1933). The All Writs Act, 28 U.S.C. § 1651(a), incorporated coram nobis into federal practice.
Citing its earlier opinion in United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129 (1914), the Supreme Court in Morgan cautioned that coram nobis relief is limited to correct errors “of the most fundamental character.” Morgan, 346 U.S. at 512, 74 S.Ct. at 253. “Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. at 252.
We reiterated this point in United States v. Cariola, 323 F.2d 180, 184 (3d Cir.1963), stating, “[a]ny proceeding which is challenged by the writ is presumed to be correct and the burden rests on its assailant to show otherwise_ Relief will be granted only when circumstances compel such action ‘to achieve justice.’ ” Consequently, the right to issuance of the writ is more restricted than that provided by direct appeal. United States v. Gross, 614 F.2d 365, 368 (3d Cir.) (per curiam), cert. denied, 447 U.S. 925, 100 S.Ct. 3019, 65 L.Ed.2d 1118 (1980). Nevertheless, it appears to us that an assertion that a conviction was based on conduct not covered by a criminal statute class is of a “fundamental character.” See Davis v. United States, 417 U.S. 333, 346-47, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109 (1974).
Even so, other factors must be taken into account. The interest in finality of judgments is a weighty one that may not be casually disregarded. Where sentences have been served, the finality concept is of an overriding nature, more so than in other forms of collateral review such as habeas corpus, where a continuance of confinement could be manifestly unjust.
Morgan indicated that coram nobis relief is not available if a sentence has been executed unless the conviction carries continuing penalties. Morgan, 346 U.S. at 512-13, 74 S.Ct. at 253. The collateral consequences that must exist to justify coram nobis have been the subject of some discussion among the Courts of Appeals. For example, we noted in Carióla that the denial of the right to vote or the subsequent imposition of a sentence heavier than would otherwise have been appropriate represents a collateral legal disadvantage that survives the satisfaction of a sentence. Cariola, 323 F.2d at 182.
In United States v. Keane, 852 F.2d 199, 203 (7th Cir.1988), the Court of Appeals stated that the collateral consequences must be unique to criminal convictions, for example, the loss of a license to practice law, or of the right to bear arms. However, the Court viewed a fine that had been paid as equivalent in reality to a money judgment in a civil case and, hence, not sufficient to sustain a coram nobis action. Damage to reputation is not enough. However, in Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir.1987), the Court seemed to adopt a presumption that “collateral consequences flow from any criminal conviction.” In that case, the Court found the requirement was satisfied even on a misdemeanor.
Osser alleges that his mail fraud conviction has resulted in the denial of a pension from the City of Philadelphia but that the conviction for obstruction of justice has no such effect. We admit to some uncertainty that Osser has established the requisite showing of collateral consequences but the record on this issue is almost nonexistent and the government has conceded the point for purposes of the appeal. We are not completely satisfied that the prerequisites for coram nobis may be established by prosecutorial concession in this fashion. See Mayer, 235 U.S. at 70, 35 S.Ct. at 20. However, in view of the result we reach here, we will assume, without deciding, that Osser has established the loss of a pension and that it is a cognizable collateral consequence.
There is, moreover, another factor that poses serious problems here. The gravamen of Osser’s complaint is that the trial judge’s instructions to the jury were incorrect in offering as an alternative ground for conviction a theory that was later invalidated by McNally. Yet as the government argues, Osser did not raise that point at trial nor on direct appeal.
Relief is no more readily granted in a collateral attack by habeas corpus than one using coram nobis. Indeed, the jurisdictional basis of habeas corpus is that the petitioner be “in custody,” 28 U.S.C. § 2255, and the natural solicitude of the law to end expeditiously an unjust incarceration exerts a perhaps unacknowledged pressure for expansive review. In a coram nobis case, by contrast, where sentence has been served and nothing remains but some financial detriment, judicial incentive to excuse compliance with procedural prerequisites is of a lower order.
That is not to say, however, that substantial judicial constraints have not been observed in habeas corpus cases. In United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982), the habeas corpus petitioner had failed to object to an allegedly faulty jury charge at trial and did not raise the issue on direct appeal. The Supreme Court refused to apply the “plain error” standard of Federal Rule of Criminal Procedure 52(b), stating that it was “out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” Id. at 164, 102 S.Ct. at 1592. Reaffirming the consistently held rule that “[a] collateral challenge may not do service for an appeal,” the Court continued, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. at 165, 102 S.Ct. at 1593 (quoting United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979)).
Similarly, in Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), the Court denied habeas corpus relief where the petitioners had failed to take direct appeals from their convictions. The Court rejected the petitioners’ contention that appeals would have been futile, commenting that the situation was one “where at the time of the convictions the definitive ruling on the question of law had not crystallized.” Id. at 181, 67 S.Ct. at 1592. Allowing collateral attacks in these situations would be inappropriate; the Court noted:
“If defendants who accept the judgment of conviction and do not appeal can later renew their attack on the judgment by habeas corpus, litigation in these criminal cases will be interminable. Wise judicial administration of the federal courts counsels against such course, at least where the error does not trench on any constitutional rights of defendants nor involve the jurisdiction of the trial court.”
Id. at 182, 67 S.Ct. at 1593.
Osser cites United States v. Travers, 514 F.2d 1171 (2d Cir.1974), where the Court of Appeals directed coram nobis relief for a petitioner whose direct appeal was based on an issue that the Supreme Court resolved in a contrary manner in a later case. Because the petitioner had properly exhausted the appellate process, he was entitled to the writ, and the Court “le[ft] to another day the determination of the proper result when less has been done.” Id. at 1177.
Osser also cites Ingber v. Enzor, 841 F.2d 450 (2d Cir.1988), where habeas corpus relief was granted on a pre-McNally mail fraud conviction. That case, however, is substantially different from the one at hand. In Ingber, the trial took place in 1986. The Court of Appeals pointed out that by that time virtually every appellate decision for a decade had concluded that a scheme aimed at the deprivation of honest government came within the scope of the mail fraud statute, thus representing “entrenched precedent.” In those circumstances, the Court held that to fault petitioner for failure to appeal on that ground would encourage appeals on even well settled law. See also Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 2911, 82 L.Ed.2d 1 (1984) (habeas petitioner has cause for not raising an issue if there was no “reasonable basis upon which to develop [the] legal theory” and where subsequent Supreme Court decision overturned “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”).
Osser’s case is quite different. In 1972 when his trial took place and in 1973 when he appealed, deprivation of honest services as a basis for mail fraud was an open question in this circuit and nationally as well. It was not until 1982 in United States v. Boffa, 688 F.2d 919, 926 (3d Cir. 1982), cert. denied, 460 U.S. 1022, 103 S.Ct. 1272, 75 L.Ed.2d 494 (1983), that this Court adopted that interpretation of the statute.
At the time of the Osser trial there was no “entrenched precedent” in this circuit or elsewhere in the United States. Whether the statute covered such conduct presented a live question, and was hotly contested by the defense in United States v. States, 488 F.2d 761 (8th Cir.1973), cert. denied, 417 U.S. 909, 94 S.Ct. 2605, 41 L.Ed.2d 212 (1974). Indeed, in that case the concurring judge was “reluctant” and voiced some doubt that Congress had intended such a sweeping view of the statute. By no means can it be said that an appeal on this point in 1973 would have been futile.
Just as the Ingber case points up the weakness in Osser’s argument, so does United States v. Sams, 521 F.2d 421 (3d Cir.1975), on which he also relies. There, we reversed the district court’s denial of coram nobis relief eleven years after the defendant had pleaded guilty to charges of failing to pay a federal wagering tax. In the interim, the Supreme Court had held that prosecution for violation of that statute encroached on the Fifth Amendment privilege against self incrimination. Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). Deciding that the guilty plea did not act as a waiver, we determined there was no longer a governmental interest in punishing the offender. Moreover, “[v]acating the plea ... does not present the United States with the arduous task of attempting, years after the trial would originally have taken place, to piece together a case for the prosecution.” Sams, 521 F.2d at 426.
In the case presently before us, the district judge noted the difficulty the government would face were it required to go forward with a new trial. Parts of the record are missing, witnesses may well be unavailable, and the lapse of fifteen years cannot but provide great difficulty. And in contrast to the Sams case, the remedy here would not be a vacation of the conviction but a new trial to correct an erroneous instruction so that the jury might pass on charges of criminal conduct not affected by McNally.
The argument for denying relief because the disputed question was waived by failing to appeal is much stronger here than in Travers, Ingber, and Sams. In our view, this case falls within the teachings of Frady and Sunal, and on that basis, the district court properly denied the writ. The issue that Osser brings at this late date should have been included in his direct appeal; to now excuse his failure to exhaust direct appellate procedures would disproportionately harm the prosecution.
III.
Affirmance is also compelled by United States v. Asher, 854 F.2d 1483 (3d Cir.1988), in which McNally was urged on direct appeal as a ground for reversal of a mail fraud conviction. That case, like this one, also involved wrongdoing in the awarding of governmental contracts. After a review of the facts and gost-McNally authority in other Courts of Appeals, we were “satisfied that the government in the instant case could not have proved a violation of intangible rights without simultaneously proving that the Commonwealth of Pennsylvania was deprived of money as the result of the no-bid contract awarded to CTA.” Id. at 1496.
In Asher, the jury had been charged, as in Osser’s trial, that either monetary loss or the deprivation of the right to honest government would support a conviction. We determined that the Asher jury “could not have found a fraudulent scheme that consisted solely of depriving the citizens of their right to honest government that did not also involve tangible losses by Pennsylvania.” Id.
The instructions in Asher and the present case differ from those in United States v. Piccolo, 835 F.2d 517 (3d Cir.1987), cert. denied, — U.S. —, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988). There, the trial judge charged that the jury could find the defendant’s scheme had deprived his employer of money “and” of honest and faithful services. Because the instruction was in the conjunctive rather than the disjunctive, the conviction was affirmed; the jurors could not have found guilt unless they had found that an object of the scheme was to obtain property from the victim.
This Court adopted reasoning similar to Asher in an earlier case, United States v. Catena, 500 F.2d 1319 (3d Cir.), cert. denied, 419 U.S. 1047, 95 S.Ct. 621, 42 L.Ed.2d 641 (1974). There, on appeal the defendant argued for the first time that the charge permitted the jury to convict on findings which, in themselves, would not constitute a violation of the statute. In rejecting that contention, we found “it ‘inconceivable’ that the error in the charge affected the outcome of the jury deliberations.” Id. at 1325.
The Catena opinion cited Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974). The defendants in that case were convicted of conspiring to cast fictitious votes for federal, state, and local candidates in a primary election. On appeal, the defendants argued for the first time that the statute was limited to conspiracies to cast false votes in federal, not local elections. The Supreme Court held that jury instructions not limited to federal candidates did not require reversal. The Court stated, “Given the record, we think it inconceivable that, even if charged by more specific instructions, the jury could have found a conspiracy to cast false votes for local offices without finding a conspiracy to cast false votes for the federal offices as well.” Id. at 228, 94 S.Ct. at 2264.
We have carefully reviewed the factual basis for Osser’s conviction. The net result of the bid rigging was to deprive the City of Philadelphia of substantial sums of money over a period of years. That this is so is demonstrated conclusively in 1968 when the bid rigging scheme was suspended. During that year, one of the printing companies submitted a competitive bid 17% lower than that of the other firm the year before. The other printer then placed a bid 45% lower than its preceding one. The next year, the scheme was reinstated and the contract price came in 40% higher.
Unquestionably, the arrangement worked out by Osser resulted in a substantial monetary detriment to the City, and no rational juror could conclude otherwise. See United States v. Perholtz, 836 F.2d 554, 560 (D.C.Cir.) (per curiam), cert. denied, — U.S. —, 109 S.Ct. 65, 102 L.Ed.2d 42 (1988). Once having found that Os-ser had participated in the bid rigging, the jury could not escape finding financial loss as part of the scheme. On that basis, therefore, McNally does not apply here.
Here, the trial judge specifically instructed the jury that Osser’s receipt of secret payments could constitute an offense under the indictment. The court charged that if Osser had participated in a scheme to receive commissions as a result of his position with the City, “such commissions would have been due and owing to the City of Philadelphia” and he could be found guilty of “a scheme devised to defraud the City of Philadelphia out of secret commissions and moneys.”
This charge was consistent with Pennsylvania law as set out in Kribbs v. Jackson, 387 Pa. 611, 619, 129 A.2d 490, 494 (1957), where the State Supreme Court determined:
“All profits made and advantage gained by the agent in the execution of the agency belong to the principal. And it matters not whether such profit or advantage be the result of the performance or of the violation of the duty of the agent.... [I]f profit accrues from his violation of duty, that likewise belongs to the principal ... because the agent cannot be permitted to derive advantage from his own default.”
We do not overlook Osser’s argument that in United States v. Zauber, 857 F.2d 137 (3d Cir.1988), this Court—on a direct appeal—explicitly disavowed the “constructive trust” theory as a basis for conviction under the mail fraud statute. However, Zauber must be read carefully. In that case, the indictment and the charge to the jury were focused solely on the deprivation of the employee’s honest services by the receipt of kickbacks. There was no evidence of property loss nor was the jury asked to consider whether the taking of kickbacks constituted a monetary loss to the victimized pension fund. Indeed, the trial court instructed the jury that “it is absolutely irrelevant whether or not there was any loss in pension benefits, as well as whether or not the pension fund is presently financially strong.” Id. at 145.
The Court of Appeals for the Seventh Circuit in United States v. Holzer, 840 F.2d 1343 (7th Cir.), cert. denied, — U.S. -, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988), also found the constructive trust theory inapplicable where a county judge accepted bribes from attorneys. Zauber and Holzer are thus similar to McNally in that no effort was made by the prosecution to show property loss growing out of illegal activity.
Unlike the Zauber, Holzer, and McNally trials, the jury in this case was charged explicitly that it could find financial detriment to the City as a result of the kickbacks and commissions received by Osser. Thus, the trial court did not rely on a constructive trust doctrine as explicated in Zauber and Holzer.
Osser’s conviction can be properly aligned with those post-McNally decisions where Courts of Appeals have held that a charge and evidence of monetary or property loss will sustain a conviction for mail fraud, even if the intangible rights theory was presented as an alternative basis for conviction. E.g., United States v. Bonansinga, 855 F.2d 476 (7th Cir.1988); Perholtz, 836 F.2d 554; United States v. Richerson, 833 F.2d 1147 (5th Cir.1987) (conspiracy to commit mail fraud); United States v. Wellman, 830 F.2d 1453 (7th Cir.1987).
We are aware that some courts have vacated convictions on the authority of McNally in cases where the jury was charged on the intangible rights theory as the basis for conviction. E.g., United States v. Shelton, 848 F.2d 1485 (10th Cir.1988) (en banc); United States v. Ochs, 842 F.2d 515 (1st Cir.1988); Holzer, 840 F.2d 1343. Such decisions are not controlling here.
Ochs was decided on direct appeal and the court did not charge on the municipality’s entitlement to the kickback moneys. Similarly, in Shelton, a habeas corpus case, “[t]he Government did not charge that the counties lost money because of the kickbacks.” Shelton, 848 F.2d at 1491. In Holzer, the court pointed out that “the state’s financial situation is the same whether [the defendant] takes bribes or doesn’t take bribes_ This is an intangible-rights case and only an intangible-rights case.” Holzer, 840 F.2d at 1348. In contrast, Osser pocketed moneys growing out of the city’s legitimate activity in contracting for services, and in these circumstances — unlike McNally — the scheme increased the cost of the services to the municipality.
Osser is not entitled to coram nobis relief. The judgment of the district court will be affirmed.
. The judge read to the jury the relevant portion of the indictment, which charged that Osser “devised and intended to devise a scheme and artifice to defraud:
"a. The City of Philadelphia and its citizens of their right to the conscientious, loyal, faithful, disinterested and unbiased services, decisions, actions, and performance of official ’ duties of Maurice S. Osser in his capacity as City Commissioner of Philadelphia:
"b. The City of Philadelphia and its citizens of their right to have the City’s business and its affairs conducted honestly, impartially, free from deceit, craft, trickery, corruption, fraud, undue influence, and conflict of interests;
"c. The City of Philadelphia out of secret monies obtained by Maurice S. Osser in the performance of his official duties as City Commissioner of the City of Philadelphia:
"d. The City of Philadelphia and its citizens of their right to have contracts for the printing of election ballots and material for the City Commissioners and the contacts for printing the official documents of City Council bid upon and awarded by free and competitive bids, without fraud and collusion.”
. Congress has since amended the mail fraud statute by adding, "the term ‘scheme or artifice to defraud’ includes the scheme or artifice to deprive another of the intangible right of honest services.” Anti-Drug Abuse Act of 1988, Pub.L. No. 100-690, § 7603, 102 Stat. 4181, 4508 (1988) (to be codified at 18 U.S.C. § 1346).
. We need not, and do not, decide here that the possibility of heavier punishment in the event of a conviction in the future may be a cognizable collateral consequence.
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_appel2_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 appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
ASHER v. RUPPA.
No. 9747.
United States Court of Appeals Seventh Circuit.
Feb. 8, 1949.
Rebearing Denied March 25, 1949.
Meyer Abrams, of Chicago, 111. (Shul-man, Shulman & Abrams, of Chicago, 111., of counsel), for appellant.
William B. Rubin, Myron L. Gordon and Joseph P. Brazy, all of Milwaukee, Wis., for appellee.
Before MAJOR, Chief Judge, KERNER, Circuit Judge, and LINDLEY, District Judge.
KERNER, Circuit Judge.
Plaintiffs have appealed from an order dismissing their complaint upon the ground that it did not state a claim upon which relief could be granted.
Before proceeding to discuss the merits of this appeal, we pause to consider the claim of Derzon, that the order dismissing the complaint for failure to state a claim upon which relief could be granted is not a final order; in other words, the jurisdiction of this court is questioned on the ground that the order is not one from which an appeal will lie. With this view we are unable to agree.
A judgment is final for the purpose of appeal when it terminates the litigation on the merits and leaves nothing to be done but to enforce by execution what has been determined. Milton v. United States, 5 Cir., 120 F.2d 794, and Karl Kiefer Mach. Co. v. United States Bottlers Machinery Co., 7 Cir., 108 F.2d 469. True it is, that where a motion to dismiss a complaint is sustained and the complaint is dismissed, and the plaintiff does not desire to amend, he should announce his election to stand on his complaint, let a final judgment be entered dismissing the action, and then appeal from that judgment. But in our case, as in Crutcher v. Joyce, 10 Cir., 134 F.2d 809, it is clear that the court completely determined plaintiffs had no right of action against defendants, and that by the order dismissing the complaint the court intended to and did terminate the litigation, and that plaintiffs, by appealing, elected to stand on their complaint; hence we think the order is appealable. See also Johnson v. Horton, 9 Cir., 63 F.2d 950.
In support of the order defendants contend that (1) there is no consideration to support the agreement; (2) the contract upon which the action is based is indefinite; and (3) the contract is against public policy.
The complaint shows affirmatively the requisite jurisdictional amount and the necessary diversity of citizenship. It appears that plaintiffs and defendants were stockholders of Bismarck Hotel Company, an Illinois corporation, and that while defendants were engaged in a controversy with the management of the hotel company they solicited plaintiffs for their proxies — to be voted in favor of the person nominated by defendants as a director, and that in consideration for the execution and delivery of plaintiffs’ proxies defendants promised and agreed that plaintiffs would share in all of the benefits which defendants might derive as a result of the election. Pursuant to this agreement, plaintiffs gave their proxies to their 760 shares to defendants, and defendants informed plaintiffs that defendant Der-zon had been elected as a director of the corporation. Thereafter, without the knowledge or consent of plaintiffs, defendants entered into a secret deal with Bismarck and its officers to settle all controversies in consideration of the sale to them by defendants of all the stock defendants had voted at the meeting at which Derzon was elected director, for which defendants received a sum greatly above the market price but which did not include plaintiffs’ 760 shares, and instead of including in the sale the stock of plaintiffs, defendants purchased stock in the market greatly below the amount of the sale price to Bismarck.
Plaintiffs are not required to plead all their evidence, and under the rules of civil procedure there is no pleading requirement of stating facts sufficient to constitute a cause of action; indeed, the only requirement is that there be “a short and plain statement of the claim showing that the pleader is entitled to relief”. Federal Rules of.Civil Procedure, rule 8(a), 28 U.S. C.A. The law is now settled that upon mo-
tions to dismiss a complaint on the ground that it does not state a claim upon which relief can be granted, the complaint should be construed in the light most favorable to the plaintiff, with all doubts resolved in his favor and the allegations accepted as true. Cool v. International Shoe Co., 8 Cir., 142 F.2d 318. And if, in view of what is alleged, it reasonably can be conceived that plaintiff can upon the trial make a case which would entitle him to some relief, the complaint should not be dismissed. Montgomery Ward & Co. v. Langer, 8 Cir., 168 F.2d 182, 185; Cool v. International Shoe Co., supra, 142 F.2d at page 320; and Carroll v. Morrison Hotel Corp., 7 Cir., 149 F. 2d 404.
As to the first contention, there can' be no doubt that the execution and delivery of the proxies was consideration for defendants’ promise that plaintiffs would share in all of the benefits which defendants would derive as a result of the election of Derzon as a director of Bismarck.
As to defendants’ second contention, that the contract is indefinite, it will be enough to say that a contract need not contain the details of every fact to which the parties are agreeing. A contract is not indefinite merely because it may be difficult to construe. If the phrases can be made .certain by proof, that is sufficient. Southwest Pipe Line v. Empire National Gas Co., 8 Cir., 33 F.2d 248, 64 A.L.R. 1229, and British-American Oil Producing Co. v. Buffington, 5 Cir., 116 F.2d 363.
Finally, defendants contend that if the contract be construed as one by which Bismarck was to be forced to purchase all of the shares to be voted by defendants at an over price, the agreement must be deemed illegal and against public policy. A quick answer is that such an agreement is not involved or alleged in this case. In entering into the contract here involved, plaintiffs did nothing unlawful, and the contract did not become illegal by any agreement that defendants might have made thereafter without plaintiffs’ knowledge and consent. 12 Am.Jur. pp. 718, 728. Here, plaintiffs agreed that they would give defendants the proxies in consideration of sharing whatever benefits defendants might receive. Such a contract is not inherently illegal. What might be shown upon the trial of the merits, we have no way of telling.
It is clear that defendants agreed that plaintiffs would share in all of the benefits which might be available as a result of Derzon’s election as a director; that defendants entered into a contract by which Bismarck agreed to purchase all of the shares which had been voted by defendants at the meeting of the Bismarck stockholders, including plaintiffs’ 760 shares; and that defendants, in violation of the purchase agreement, excluded plaintiffs’ shares from the sale. In this situation, keeping in mind the legal principles already mentioned, we think the motion to dismiss should have been overruled.
One other matter requires brief mention. It appears that the court, in view of the order dismissing the complaint, sustained objections to interrogatories propounded to defendants. Plaintiffs on this appeal ask that the defendants be ordered to answer the interrogatories. Since we have concluded that the order of the court dismissing the complaint must be reversed, we think the question whether or not defendants shall be ordered to answer the interrogatories ought to be left to the District Court.
The order of the District Court is reversed, and the case is remanded to proceed in accordance with this opinion.
Question: This question concerns the second listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_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".
McDONNEL v. UNITED STATES.
No. 9070.
United States Court of Appeals District of Columbia.
Argued April 4, 1946.
Decided May 8, 1946.
Mr. Woodrow E. Faulkner, of Washington, D. C., with whom Mr. Joseph A. Pieper, of Washington, D. C., was on the brief, for appellant.
Mr. John P. Burke, Assistant United States Attorney, of Washington, D. C., with whom Mr. Edward M. Curran, United States Attorney, of Washington, D. G, was on the brief, for appellee. Mr. Sidney S. Sachs, Assistant United States Attorney, of Washington, D. G, also entered an appearance for appellee.
Before EDGERTON, WILBUR K. MILLER and PRETTYMAN, Associate Justices.
PER CURIAM.
Upon his trial before a jury in the District Court of the United States for the District of Columbia, Daniel A. McDonnel was convicted of violating the Mann Act, § 398, Title 18, U.S.C.A. He appeals from an order which denied his motion for a new trial on the ground of newly discovered evidence.
The appellant said he had learned after his trial that oppressive police methods had extorted false testimony from the prosecuting witness which she would repudiate at another hearing. In support of this ground McDonnel filed the affidavit of one Dough-erty which set forth that the girl had informed him of the perjury which she had committed under duress from police officers.
The appellee countered by filing an affidavit of the prosecuting witness in which she denied that she had ever repudiated her testimony, and stated that she had testified freely, without coercion.
The trial court set the motion for a new trial down for hearing. In addition to the affidavits, oral evidence was heard and the young woman who had been the principal witness against the appellant insisted that she had testified truthfully at the trial, that she had not been forced by threats or otherwise to give her evidence, and that she had not at any time retracted it. Moreover, the attorney for the appellant, when questioned at the oral hearing, did not say unequivocally that the prosecuting witness had repudiated her evidence in conversation with Dougherty, although he was present when the conversation took place.
As a further ground the appellant alleged that, on the occasion of the crime, his physical presence elsewhere made it impossible for him to have been guilty. The alleged evidence concerning an alibi was not shown at the hearing to have been newly discovered.
The trial court has a broad discretion as to whether a new trial should be granted because of newly discovered evidence, and its action will not be disturbed on appeal unless an abuse of that discretion appears. Here the District Court was most patient in affording the appellant the fullest opportunity to support his motion. It appears not only that there was no abuse of discretion in refusing a new trial but also that, in the circumstances, such action would have been quite unjustified.
Affirmed.
Hamilton v. United States, 78 U.S.App.D.C. 316, 140 F.2d 679.
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_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
C. George SWALLOW and Betty D. Swallow, Appellants, v. UNITED STATES of America, Appellee.
No. 9941.
United States Court of Appeals Tenth Circuit.
July 22, 1968.
C. George Swallow, per se.
Howard M. Koff, Washington, D. C., (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Elmer J. Kelsey, attys., Dept. of Justice, Washington, D. C., and Lawrence M. Henry, U. S. Atty., and Thomas C. Seawell, Asst. U. S. Atty., of counsel, were with him on the brief), for appellee.
Before LEWIS, SETH and HICKEY, Circuit Judges.
PER CURIAM.
This is an appeal from the District of Colorado taken by appellants pro se after entry of judgment against them for income tax deficiencies. They assert three grounds in support of reversal of the judgment: That they were forced to trial without sufficient time to prepare; that the trial court unlawfully limited the trial by pre-trial order to one day; and that the trial judge unlawfully refused to disqualify himself. Each contention is totally without merit.
The record reveals that the case was regularly set, appellants receiving more than ample notice of such setting, and that they offered no legal excuse justifying a continuance or resetting. In fact the record reflects but a continuation of the long extended efforts of appellants to protract their litigation as set forth in some detail in our earlier consideration of this litigation. Swallow v. United States, 10 Cir., 380 F.2d 710.
Appellants are in error in their assertion that the court ordered that the trial would be limited to but one day. The case was set for a day certain and the calendar estimation was that the case could be completed in one day.
Finally, appellants assert that the trial judge should have disqualified himself because he had been reversed by our cited earlier decision, intimating that the trial judge either had committed deliberate error or was unlearned. Such a contention is, of course, completely frivolous, and the extent to which the court went to protect appellants’ interest is reflected in the fact that, notwithstanding appellants’ failure to appear for trial, the court submitted the case to a jury.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer: |
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.
KSLA-TV, INC., Plaintiff-Appellant Cross-Appellee, v. RADIO CORPORATION OF AMERICA, Defendant-Appellee Cross-Appellant, v. STAINLESS, INC., et al., Defendants-Appellees.
No. 81-3528.
United States Court of Appeals, Fifth Circuit.
Dec. 14, 1982.
McGlinchey, Stafford & Mintz, C.G. Nor-wood, Jr., B. Franklin Martin, New Orleans, La., for plaintiff-appellant cross-appellee.
Bodenheimer, Jones, Klotz & Simmons, G.M. Bodenheimer, Shreveport, La., for RCA.
Deutsch, Kerrigan & Stiles, Ralph L. Kas-kell, Jr., New Orleans, La., for Stainless.
Alex F. Smith, Jr., Shreveport, La., for Bethlehem Steel Corp.
Adams & Reese, Robert B. Nolan, New Orleans, La., for Lexington Ins. Co.
Cook, Yancey, King & Galloway, Herschel E. Richard, Jr., Shreveport, La., for Home Ins. Co.
Before BROWN, WISDOM and RANDALL, Circuit Judges.
PER CURIAM:
The appeal in this diversity action controlled by Louisiana law is from an order granting the defendant’s motion for summary judgment. The case involves the Louisiana preemptive statute, La.Rev.Stat. Ann. § 9:2772 (West Supp. 1981), as applied to a complaint seeking damages for the collapse of a broadcasting tower.
On May 15, 1964, KSLA of Shreveport, Louisiana, and Radio No. Corporation of America (RCA) entered into a contract for the purchase and installation of a television tower, designed to hold an RCA television antenna. The contract provided for a tower 1,709 feet in height. RCA entered into a subcontract with Stainless, Inc. to design and fabricate the tower. Stainless informed KSLA on November 17, 1964, that “installation is in accordance with Stainless, Inc. drawings and ... no outstanding deficiencies on the tower exists [sic] at this time”. On October 8, 1977, the tower collapsed due to undetermined causes. KSLA filed this action on October 4, 1978, seeking damages from RCA and Stainless in the amount of $1,269,986 for out-of-pocket expenses, and $575,000 for loss of income. RCA filed a third party complaint against Stainless and Stainless filed a third party complaint against Bethlehem Steel, which had supplied Stainless with the steel components of the tower.
Early in the litigation and before any discovery, RCA and, later, Stainless moved for summary judgment, alleging that KSLA’s claim was preempted under the ten-year liberative period that Louisiana Rev.Stat.Ann. § 9:2772 establishes for claims arising from “the construction of an improvement to immovable [real] property”. The statute is inapplicable to a contract of sale. The trial court denied these motions on the ground that resolution of the issue depended “upon the characterization of the transactions between KSLA and RCA as a construction contract or as a contract of sale”, an issue of fact inappropriate for summary disposition.
The parties then engaged in extensive discovery. When discovery had been virtually completed Stainless renewed its motion for summary judgment relying on an affidavit and numerous exhibits to establish that the transaction was a construction contract, not a contract of sale to which § 2772 would be inapplicable. KSLA filed a cross-motion for summary judgment against RCA and Stainless, asserting that the preemptive statute was inapplicable, that KSLA was entitled to a judgment in its favor for breach of warranty, and that issues of material, fact precluded summary judgment in favor of Stainless. The district court granted the motion of Stainless for summary judgment and denied KSLA’s motion for summary judgment against RCA and Stainless. Later, the court granted motions by RCA and its insurers for summary judgment against KSLA, and Stainless was awarded summary judgment on a contractual indemnity claim RCA had asserted. KSLA moved for reconsideration and on denial of this motion appealed. RCA appealed the dismissal of its claim against Stainless.
In his ruling the trial judge stated:
KSLA opposes the motion on three distinct grounds. First, KSLA continues in its belief that the transaction was a contract of sale, so that § 2772 is inapplicable. KSLA argues alternatively that, even if the transaction was a construction contract, § 2772 cannot constitutionally be applied to this particular contract. Finally, KSLA contends that § 2772 does not apply to Stainless in its capacities as materialmen and manufacturer of component parts, and that a negligence action brought against Stainless in that capacity is not barred by § 2772.
The trial judge’s opinion is well-researched, carefully reasoned, and correctly sets forth the applicable law. We adopt the opinion as our own and affirm the judgment as to the three issues the trial judge considered in his opinion. But on appeal, and in the memoranda KSLA filed in the district court on the motion for a summary judgment and also in support of the motion for reconsideration, KSLA raised two issues the trial judge did not specifically address. These are:
1) La.R.S. 9:2772 does not apply to negligence for failure to warn when the duty to warn arises from subsequently obtained knowledge; that is, knowledge of a defect obtained after the construction of the tower, here presumably the vulnerability of a tall tower to “galloping” guy wires. (The vibration of guy wires resulting from a relative low wind).
2) Preemption cannot be invoked to bar a claim against one who fraudulently conceals defects in his product.
It is evident from the record and the briefs that the plaintiff gave a low priority to these contentions. Nevertheless, they were raised and should be disposed of in the first instance by the district court. We express no opinion as to the validity of these contentions or the effect that § 9:2772 has on these claims.
The judgments of the district court on the various motions and cross-motions are AFFIRMED insofar as they are affected by the decision of the district court on the three issues discussed in its memorandum rulings. The case is REMANDED for further proceedings on the two issues not specifically addressed by the district court in its memorandum rulings.
.As amended in 1978 and 1981, § 9:2772 provides:
A. No action, whether ex contractu, ex de-licto, or otherwise, to recover on a contract or to recover damages shall be brought ... against any person performing or furnishing the design, planning, supervision, inspection, or observation of construction or the construction of an improvement to immovable property:
(1) More than ten years after the date of registry in the mortgage office of acceptance of the work by owner; or
(2) If no such acceptance is recorded within six months from the date the owner has occupied or taken possession of the improvement, in whole or in part, more than ten years after the improvement has been thus occupied by the owner; .. .
B. The causes which are preempted within the time described above include any action:
(1) For any deficiency in the . . . design, planning, inspection or observation of construction, or in the construction of any improvement to immovable property;
(2) For damage to property, movable or immovable, arising out of any such deficiency;
. The completed structure, including the antenna, was 1800 feet high, had solid steel legs, and was held in position by 26 steel cables. The tower weighed 1,040,153 pounds and rested on a concrete slab weighing 104,000 pounds. Six concrete guy wire anchors, weighing 450,000 pounds and embedded 15 feet in the ground, provided additional support.
. By subsequent amendments to the complaint KSLA added as defendants Paxton National Insurance Company, Lexington Insurance Company, Zurich Insurance Company, and Home Insurance Company, alleging that they insured RCA or Stainless against the claims asserted by KSLA.
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 | 055 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
SAWYER v. SMITH, INTERIM WARDEN
No. 89-5809.
Argued April 25, 1990
Decided June 21, 1990
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, O’Connor, and Scalia, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan, J., joined, in which Black-mun, J., joined as to Parts I, II, III, and IV, and in which Stevens, J., joined as to Parts I, II, and III, post, p. 245.
Catherine Hancock argued the cause for petitioner. With her on the briefs was Elizabeth W. Cole.
Dorothy A. Pendergast argued the cause for respondent. With her on the brief were John M. Mamoulides and Terry M. Boudreaux.
Julius L. Chambers filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Kent S. Scheidegger filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
Briefs of amici curiae were filed for the American Bar Association by Stanley Chauvin, Jr., Jay Topkis, Ronald J. Tabak, and Eric M. Freedman; and for Stephen H. Sachs et al. by Randy Hertz and Michael Millemann.
Justice Kennedy
delivered the opinion of the Court.
We must decide in this case whether a prisoner whose murder conviction became final before our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985), is entitled to use that decision to challenge his capital sentence in a federal habeas corpus action. We hold that he cannot, for Caldwell announced a new rule as defined by Teague v. Lane, 489 U. S. 288 (1989), and the new rule does not come within Teague’s exception for watershed rules fundamental to the integrity of the criminal proceeding.
I
Over 10 years ago, petitioner Robert Sawyer murdered Frances Arwood, a visitor in the New Orleans, Louisiana, residence petitioner shared with his girlfriend, Cynthia Shano. On September 29, 1979, petitioner and his accomplice Charles Lane arrived at the residence after a night of drinking. They argued with Arwood and accused her of giving drugs to Shano’s children. For reasons that are not clear, petitioner and Lane struck Arwood repeatedly with their fists and dragged her by the hair into the bathroom. There they stripped the victim naked, literally kicked her into the bathtub, and subjected her to scalding, dunkings, and additional beatings. Petitioner left Lane to guard the victim, and apparently to rape her, while petitioner went to the kitchen to boil water to scald her. Petitioner kicked Arwood in the chest, causing her head to strike the tub or a windowsill and rendering her unconscious. The pair then dragged Arwood into the living room, where they continued to beat and kick her. Petitioner poured lighter fluid on the unconscious victim, particularly her torso and genital area, and set the lighter fluid afire. He told Lane that he had done this to show “just how cruel he could be.” There were further brutalities we do not recount. Arwood later died of her injuries.
Petitioner was convicted and sentenced to death for the crime by a Louisiana jury in September 1980. At issue in this case are remarks made by the prosecutor in his closing argument during the sentencing phase of the trial. The prosecutor first stated, after discussing the proof of aggravating circumstances under Louisiana law:
“The law provides that if you find one of those circumstances then what you are doing as a juror, you yourself will not be sentencing Robert Sawyer to the electric chair. What you are saying to this Court, to the people of this Parish, to any appellate court, the Supreme Court of this State, the Supreme Court possibly of the United States, that you the people as a fact finding body from all the facts and evidence you have heard in relationship to this man’s conduct are of the opinion that there are aggravating circumstances as defined by the statute, by the State Legislature that this is a type of crime that deserves that penalty. It is merely a recommendation so try as he may, if Mr. Weidner tells you that each and every one of you I hope can live with your conscience and try and play upon your emotions, you cannot deny, it is a difficult decision. No one likes to make those type of decisions but you have to realize if but for this man’s actions, but for the type of life that he has decided to live, if of his own free choosing, I wouldn’t be here presenting evidence and making argument to you. You wouldn’t have to make the decision.” Tr. 982.
After emphasizing the brutal nature of the crime for which they had convicted petitioner, the prosecutor told the jury:
“There is really not a whole lot that can be said at this point in time that hasn’t already been said and done. The decision is in your hands. You are the people that are going to take the initial step and only the initial step and all you are saying to this court, to the people of this Parish, to this man, to all the Judges that are going to review this case after this day, is that you the people do not agree and will not tolerate an individual to commit such a heinous and atrocious crime to degrade such a fellow human being without the authority and the impact, the full authority and impact of the law of Louisiana. All you are saying is that this man from his actions could be prosecuted to the fullest extent of the law. No more and no less.” Id., at 984.
Finally, the prosecutor emphasized again that the jury’s decision would be reviewed by later decisionmakers:
“It’s all [you’re] doing. Don’t feel otherwise. Don’t feel like you are the one, because it is very easy for defense lawyers to try and make each and every one of you feel like you are pulling the switch. That is not so. It is not so and if you are wrong in your decision believe me, believe me there will be others who will be behind you to either agree with you or to say you are wrong so I ask that you do have the courage of your convictions.” Id., at 985.
The Louisiana Supreme Court affirmed petitioner’s conviction and sentence. State v. Sawyer, 422 So. 2d 95 (1982). This Court granted certiorari and remanded the case with instructions to the Louisiana Supreme Court to reconsider its decision in light of Zant v. Stephens, 462 U. S. 862 (1983). Sawyer v. Louisiana, 463 U. S. 1223 (1983). The Louisiana Supreme Court reaffirmed the capital sentence on remand, Sawyer v. Louisiana, 442 So. 2d 1136 (1983). His conviction and sentence became final on April 2, 1984, when we denied certiorari, Sawyer v. Louisiana, 466 U. S. 931. Petitioner sought state collateral relief, which was denied. Sawyer v. Maggio, 479 So. 2d 360 (La. 1985); Sawyer v. Maggio, 480 So. 2d 313 (La. 1985).
Petitioner then filed the federal habeas corpus petition now before us, raising a host of constitutional claims. Relevant here is petitioner’s claim that the prosecutor’s closing argument violated the Eighth Amendment of the United States Constitution by diminishing the jury’s sense of responsibility for the capital sentencing decision, in violation of our decision in Caldwell v. Mississippi, 472 U. S. 320 (1985). Caldwell was decided over one year after petitioner’s conviction became final.
The District Court denied relief, concluding that the prosecutor’s remarks were of a different character from those in Caldwell, and that there was no reasonable probability that the sentence would have been different in the absence of the comments. A divided panel of the Court of Appeals for the Fifth Circuit affirmed. 848 F. 2d 582 (1988). The panel held that the facts in this case were “a far cry from those in Caldwell,” in large part due to the absence of any judicial approval of the prosecutor’s comments. Id., at 596. Following the panel decision, the Fifth Circuit granted rehearing en banc. Id., at 606.
After the en banc court heard oral argument, but while the case was pending, a plurality held in Teague v. Lane, 489 U. S. 288 (1989), that a rule of constitutional law established after a petitioner’s conviction has become final may not be used to attack the conviction on federal habeas corpus unless the rule falls within one of two narrow exceptions. The Fifth Circuit requested supplemental briefing from the parties on the question whether Teague barred petitioner’s claim for relief under Caldwell. The en banc court held that Caldwell announced a new rule within the meaning of Teague, a rule not within Teague’s second exception for watershed rules of criminal procedure that guarantee the accuracy of a criminal proceeding. Accordingly, the Court of Appeals affirmed the denial of habeas corpus relief. 881 F. 2d 1273 (1989).
We granted certiorari, 493 U. S. 1042 (1990), to resolve a conflict among the Courts of Appeals, see Hopkinson v. Shillinger, 888 F. 2d 1286 (CA10 1989), and now affirm.
II
We must address first whether, in relying on Caldwell, petitioner claims the benefit of a new rule, as defined by our decision in Teague. In Caldwell, we held that the Eighth Amendment prohibits the imposition of a death sentence by a sentencer that has been led to the false belief that the responsibility for determining the appropriateness of the defendant’s capital sentence rests elsewhere. See 472 U. S., at 328-329; id., at 342 (opinion of O’Connor, J.). We determined that false information of this type might produce “substantial unreliability as well as bias in favor of death sentences.” Id., at 330.
At the outset we note that the parties dispute whether Caldwell, even if its rule applies, could support any claim for relief in petitioner’s case. The State emphasizes that the judge in this case, unlike Caldwell, see id., at 339, did not approve the prosecutor’s argument, and that the remarks in this case were less likely to mislead. Petitioner, on the other hand, contends that the prosecutor’s remarks were similar to those in Caldwell, and were not cured by the judge’s instructions to the jury. We need not address the significant questions concerning the merits of petitioner’s Caldwell claim on these facts, or the question whether application of Caldwell to the facts presented here would itself involve a new rule of law. Rather, we address only whether Caldwell is available to petitioner as a ground upon which he may seek relief. Cf. Dugger v. Adams, 489 U. S. 401, 408, n. 4 (1989) (merit of Caldwell claim immaterial to disposition of case on procedural bar grounds).
Our review of the relevant precedents that preceded Caldwell convinces us that it is a new rule for purposes of Teague. On this point we are in accord with the Court of Appeals, as well as the other two Courts of Appeals that have addressed the question. See Clark v. Dugger, 901 F. 2d 908 (CA11 1990); Hopkinson v. Shillinger, supra. The rule of Teague serves to “validate] reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.” Butler v. McKellar, 494 U. S. 407, 414 (1990). Thus, we have defined new rules as those that were not “dictated by precedent existing at the time the defendant’s conviction became final.” Teague, supra, at 301 (plurality opinion). The principle announced in Teague serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered. This is but a recognition that the purpose of federal habeas corpus is to ensure that state convictions comply with the federal law in existence at the time the conviction became final, and not to provide a mechanism for the continuing reexamination of final judgments based upon later emerging legal doctrine.
Caldwell, of course, was not decided upon a clean slate. As the Court in Caldwell recognized, we had earlier addressed the question of improper prosecutorial comment in Donnelly v. DeChristoforo, 416 U. S. 637 (1974). We stated in Donnelly that improper remarks by a prosecutor could at some point “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Id., at 643. No such pervasive error was established in that case, and we took the occasion to warn against “holding every improper and unfair argument of a state prosecutor to be a federal due process violation.” Caldwell, supra, at 338. Caldwell, unlike Donnelly, was a capital case; and while noting the principle set forth in Donnelly, the Court in Caldwell determined to rely not on the Due Process Clause but on more particular guarantees of sentencing reliability based on the Eighth Amendment. In Donnelly we had reversed a Court of Appeals opinion vacating a conviction because prosecutorial comments were “potentially” misleading, 416 U. S., at 641, but in Caldwell we found that the need for reliable sentencing in capital cases required a new sentencing proceeding because false prosecutorial comment created an “unacceptable risk that ‘the death penalty [may have been] meted out arbitrarily or capriciously,’” 472 U. S., at 343 (opinion of O’Connor, J.).
Examination of our Eighth Amendment authorities that preceded Caldwell shows that it was not dictated by prior precedent existing at the time the defendant’s conviction became final. In Caldwell itself we relied on Eddings v. Oklahoma, 455 U. S. 104 (1982); Lockett v. Ohio, 438 U. S. 586 (1978) (plurality opinion); Gardner v. Florida, 430 U. S. 349 (1977) (plurality opinion); and Woodson v. North Carolina, 428 U. S. 280 (1976) (plurality opinion), in support of the result. We cited these decisions for the general proposition that capital sentencing must have guarantees of reliability, and must be carried out by jurors who would view all of the relevant characteristics of the crime and the criminal, and take their task as a serious one. Petitioner, too, cites these and other cases in support of the argument that Caldwell was “rooted” in the Eighth Amendment command of reliable sentencing, and that application of these cases to misleading prosecutorial comment “[b]y analogy” would lead to the predictable Caldwell result. Brief for Petitioner 16.
We do not doubt that our earlier Eighth Amendment cases lent general support to the conclusion reached in Caldwell. But neither this fact, nor petitioner’s contention that state courts “would have found Caldwell to be a predictable development in Eighth Amendment law,” Brief for Petitioner 8, suffices to show that Caldwell was not a new rule. In petitioner’s view, Caldwell was dictated by the principle of reliability in capital sentencing. But the test would be meaningless if applied at this level of generality. Cf. Anderson v. Creighton, 483 U. S. 635, 639 (1987) (“[I]f the test of ‘clearly established law’ were to be applied at this level of generality, . . . [plaintiffs would be able to convert the rule of qualified immunity that our cases plainly establish into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights”).
It is beyond question that no case prior to Caldwell invalidated a prosecutorial argument as impermissible under the Eighth Amendment. Eddings and Lockett invalidated statutory schemes that imposed an absolute prohibition against consideration of certain mitigating evidence by the sen-tencer. Woodson invalidated a capital sentencing statute providing for mandatory capital sentencing. Gardner invalidated a capital sentence based on information of which the defendant had no notice or opportunity to respond. These cases do not speak to the issue we decided in Caldwell. What we said in Saffle v. Parks, 494 U. S. 484, 491 (1990), applies here: “Even were we to agree with [petitioner’s] assertion that our decisions in Lockett and Eddings inform, or even control or govern, the analysis of his claim, it does not follow that they compel the rule that [petitioner] seeks.” Certainly Caldwell was not seen as compelled by the three Justices of this Court who found a “lack of authority” in our Eighth Amendment precedents for the approach taken there. See 472 U. S., at 350 (Rehnquist, J., dissenting).
From the point of view of a state court considering petitioner’s claim at the time his conviction became final, Saffle, supra, at 488, there were in fact indications in our decisions that the Caldwell rule was not a requirement of the Eighth Amendment. In a previous case raising an Eighth Amendment challenge to prosecutorial comment, we had rejected the petitioner’s claim. California v. Ramos, 463 U. S. 992 (1983). Indeed, the Mississippi Supreme Court had held without dissent in Caldwell that Ramos stood for the proposition that “states may decide whether it is error to mention to jurors the matter of appellate review.” See Caldwell v. State, 443 So. 2d 806, 813 (1983). The Mississippi court’s characterization of Ramos, of course, later proved to be incorrect. But this nonetheless suggests that prior to Caldwell our cases did not put other courts on notice that the Eighth Amendment compelled the Caldwell result.
Our opinion in Maggio v. Williams, 464 U. S. 46 (1983), provides more direct evidence that the rule of Caldwell cannot be described as dictated by existing law at the time petitioner’s claim became final. In Williams we vacated a stay of execution in a case presenting a claim very similar to that in Caldwell. Justice Stevens’ opinion concurring in the judgment described at length the prosecutor’s argument in that case, 464 U. S., at 53-54, one similar to the argument made in Caldwell. The Court, however, found that the prisoner’s challenge to the prosecutor’s statements “warrant[ed] little discussion.” 464 U. S., at 49. Although we stated that the failure to raise the claim of improper prosecutorial argument in an earlier habeas petition was “inexcusable,” we noted that the District Court in the second petition had given the claim “full consideration” under the “standard established in Donnelly v. DeChristoforo, 416 U. S. 637 (1974),” and had found that the prosecutor’s closing argument “did not render Williams’ trial fundamentally unfair.” Id., at 49-50. Our opinion concluded by describing this and other claims raised by Williams as “insubstantial.” Id., at 52. Williams, of course, did not represent a rejection on the merits of the rule announced in Caldwell. But given our statements concerning so similar a claim in Williams, we do not think a state court viewing petitioner’s case at the time his conviction became final could have concluded that our Eighth Amendment precedents compelled such a rule.
We note also that, when petitioner’s conviction became final, there was some reason for doubt as to this Court’s view concerning what became a major premise of Caldwell, that misleading prosecutorial comment might cause a “bias in favor of death sentences.” 472 U. S., at 330. At the time of petitioner’s trial and appeal there was at least “some suggestion,” see Dugger v. Adams, 489 U. S., at 409, that comments tending to diminish the jury’s sense of sentencing responsibility would skew the result toward leniency rather than a death sentence. See Dobbert v. Florida, 432 U. S. 282, 294, and n. 7 (1977) (Florida’s change to a system in which jury’s verdict was advisory might benefit defendants, as the jury “may have chosen leniency when they knew [the sentencing] decision rested ultimately on the shoulders of the trial judge, but might not have followed the same course if their vote were final”).
Petitioner places primary reliance on numerous state cases, decided prior to the finality of his conviction, that prohibited prosecutorial statements of the type later held to violate the Eighth Amendment in Caldwell. See, e. g., Ward v. Commonwealth, 695 S. W. 2d 404, 408 (Ky. 1985); Ice v. Commonwealth, 667 S. W. 2d 671, 676 (Ky.), cert. denied, 469 U. S. 860 (1984); Wiley v. State, 449 So. 2d 756, 762 (Miss. 1984), cert. denied, 479 U. S. 906 (1986); Williams v. State, 445 So. 2d 798, 811-812 (Miss. 1984), cert. denied, 469 U. S. 1117 (1985); State v. Robinson, 421 So. 2d 299, 233-234 (La. 1982); State v. Willie, 410 So. 2d 1019, 1033-1035 (La. 1982), cert. denied, 465 U. S. 1051 (1984); State v. Jones, 296 N. C. 495, 501-502, 251 S. E. 2d 425, 427-429 (1979); State v. Gilbert, 273 S. C. 690, 696-698, 258 S. E. 2d 890, 894 (1979); State v. Tyner, 273 S. C. 646, 659-660, 258 S. E. 2d 559, 566 (1979); Hawes v. State, 240 Ga. 327, 334-335, 240 S. E. 2d 833, 839 (1977); Fleming v. State, 240 Ga. 142, 145-146, 240 S. E. 2d 37, 40 (1977), cert. denied, 444 U. S. 885 (1979); State v. White, 286 N. C. 395, 403-404, 211 S. E. 2d 445, 450 (1975); Prevatte v. State, 233 Ga. 929, 932-933, 214 S. E. 2d 365, 367-368 (1975); State v. Hines, 286 N. C. 377, 381-386, 211 S. E. 2d 201, 204-207 (1975). Petitioner argues that these authorities show that state courts anticipated the rule of Caldwell, and that no state reliance interest could be upset by retroactive application of the federal rule to overturn a state conviction that became final before Caldwell was decided.
The flaw in this argument is that “the availability of a claim under state law does not of itself establish that a claim was available under the United States Constitution.” Dugger v. Adams, supra, at 409. All of the cases cited by petitioner, with one arguable exception, are decisions of state law, and do not purport to construe the Eighth Amendment. These cases, moreover, apply state common-law rules prohibiting any mention of appellate review; they do not condemn false prosecutorial statements under the Eighth Amendment analysis employed in Caldwell. Reliance on state-law cases for the proposition that the rule adopted in Caldwell was an old one misapprehends the function of federal habeas corpus. As we have said, the “ ‘relevant frame of reference’ ” for the new rule inquiry “ ‘is not the purpose of the new rule whose benefit the [defendant] seeks, but instead the purposes for which the writ of habeas corpus is made available.’” Teague, 489 U. S., at 306 (plurality opinion) (quoting Mackey v. United States, 401 U. S. 667, 682 (1971)). Federal habeas corpus serves to ensure that state convictions comport with the federal law that was established at the time petitioner’s conviction became final.
Petitioner points out, to support his argument that Caldwell applied an old rule, that our opinion there was based in part on the adoption by many state courts of rules that prohibited prosecutorial comments that could diminish the jury’s sense of sentencing responsibility. Brief for Petitioner 11; see 472 U. S., at 333-334, and n. 4. It is true that our cases have looked to the decisions of state courts and legislatures to inform Eighth Amendment analysis. But petitioner’s attempt to use this fact to show that Caldwell is an old rule is untenable. Under this view, state-court decisions would both inform this Court’s decisions on the substantive content of the Eighth Amendment and, by simultaneous effect, impose those standards back upon the States themselves with retroactive effect. This view is also inconsistent with our citation in Penry v. Lynaugh, 492 U. S. 302, 329-330 (1989), of Ford v. Wainwright, 477 U. S. 399 (1986), which relied for its Eighth Amendment analysis on the statutory or common law of a majority of the States, see id., at 408-409, as an example of a new rule.
One Louisiana case cited by petitioner disapproving pros-ecutorial comment on appellate review does discuss Eighth Amendment principles rather than relying solely on state law. Even in this case, however, the court cited Eighth Amendment cases only in its discussion of prosecutorial reference to the possibility of pardon. Its discussion of pros-ecutorial comment on appellate review, the issue before us here, referred to state-law rules. See State v. Willie, supra, at 1033 (La. 1982), cert. denied, 465 U. S. 1051. Petitioner also cites post-Caldwell Louisiana cases, which cite Caldwell and state cases interchangeably, and state that Caldwell did not change prior law in the State. See State v. Smith, 554 So. 2d 676, 685 (La. 1989); State v. Clark, 492 So. 2d 862, 870-871 (La. 1986); State ex rel. Busby v. Butler, 538 So. 2d 164, 173 (La. 1988). To the extent these cases reflect state-court recognition that general Eighth Amendment principles pointed toward adoption of a Caldwell rule, or that Caldwell is congruent with pre-existing state law, they cannot serve to show that Caldwell was dictated by our Eighth Amendment precedent. State courts as well as federal can be expected to engage in application of the principles announced in prior Eighth Amendment decisions that are “susceptible to debate among reasonable minds.” Butler, 494 U. S., at 415.
Petitioner appears to contend that state courts will recognize federal constitutional protections only if they are compelled to do so by federal precedent and the threat of federal habeas review. Since some state courts had recognized a principle similar to Caldwell’s, this argument goes, the result in Caldwell must have been compelled by Eighth Amendment precedent. This argument is premised on a skepticism of state courts that we decline to endorse. State courts are coequal parts of our national judicial system and give serious attention to their responsibilities for enforcing the commands of the Constitution. It is not surprising that state courts, whether applying federal constitutional protections or seeking fair administration of their own state capital punishment law, would have taken care to exclude misleading prosecuto-rial comment. But this conscientious exercise of their powers of supervision and review could not dictate Caldwell as a principle of federal law under the Eighth Amendment.
HH HH HH
Under Teague, new rules may be applied m habeas corpus proceedings only if they come within “one of two narrow exceptions.” Saffle, 494 U. S., at 486. The first of these applies to new rules that place an entire category of primary-conduct beyond the reach of the criminal law, Teague, supra, at 311 (plurality opinion), or new rules that-prohibit imposition of a certain type of punishment for a class of defendants because of their status or offense, Penry, supra, at 330. This exception has no application here. The second Teague exception applies to new “watershed rules of criminal procedure” that are necessary to the fundamental fairness of the criminal proceeding. Saffle, supra, at 495; Teague, 489 U. S., at 311-313 (plurality opinion). Petitioner here challenges the Court of Appeals’ conclusion that Caldwell does not come within this exception.
Petitioner contends that the second Teague exception should be read to include new rules of capital sentencing that “preserve the accuracy and fairness of capital sentencing judgments.” Brief for Petitioner 30. But this test looks only to half of our definition of the second exception. Acceptance of petitioner’s argument would return the second exception to the broad definition that Justice Harlan first proposed in Desist, but later abandoned in Mackey, under which new rules that “significantly improve the pre-existing fact-finding procedures are to be retroactively applied on ha-beas.” Desist v. United States, 394 U. S. 244, 262 (1969). In Teague, we modified Justice Harlan’s test to combine the accuracy element of the Desist test with the Mackey limitation of the exception to watershed rules of fundamental fairness. It is thus not enough under Teague to say that a new rule is aimed at improving the accuracy of trial. More is required. A rule that qualifies under this exception must not only improve accuracy, but also “ ‘alter our understanding of the bedrock procedural elements’ ” essential to the fairness of a proceeding. Teague, supra, at 311 (plurality opinion) (quoting Mackey, 401 U. S., at 693).
The scope of the Teague exceptions must be consistent with the recognition that “[a]pplication of constitutional rules not in existence at the time a conviction became final seriously undermines the principle of finality which is essential to the operation of our criminal justice system.” Teague, supra, at 309 (plurality opinion) (citing Friendly, Is Innocence Irrelevant? Collateral Attacks on Criminal Judgments, 38 U. Chi. L. Rev. 142, 150 (1970)). The “costs imposed upon the State[s] by retroactive application of new rules of constitutional law on habeas corpus thus generally far outweigh the benefits of this application.” Solem v. Stumes, 465 U. S. 638, 654 (1984) (opinion of Powell, J.). As we stated in Teague, because the second exception is directed only at new rules essential to the accuracy and fairness of the criminal process, it is “unlikely that many such components of basic due process have yet to emerge.” 489 U. S., at 313 (plurality opinion).
It is difficult to see any limit to the definition of the second exception if cast as proposed by petitioner. All of our Eighth Amendment jurisprudence concerning capital sentencing is directed toward the enhancement of reliability and accuracy in some sense. Indeed, petitioner has not suggested any Eighth Amendment rule that would not be sufficiently “fundamental” to qualify for the proposed definition of the exception, and at oral argument in this case counsel was unable to provide a single example. Tr. of Oral Arg. 17. In practical effect, petitioner asks us to overrule our decision in Penry that Teague applies to new rules of capital sentencing. This we decline to do.
At the time of petitioner’s trial and appeal, the rule of Don-nelly was in place to protect any defendant who could show that a prosecutor’s remarks had in fact made a proceeding fundamentally unfair. It was always open to this petitioner to challenge the prosecutor’s remarks at his sentencing proceeding, by making the showing required by Donnelly. See Dugger v. Adams, 489 U. S., at 410 (defendant whose trial and appeal occurred prior to Caldwell “could have challenged the improper remarks by the trial judge at the time of his trial as a violation of due process. See Donnelly v. De-Christoforo, 416 U. S. 637 (1974)”); Maggio v. Williams, 464 U. S., at 49-50 (discussing application of Donnelly to improper remarks at sentencing). Petitioner has not contested the Court of Appeals’ finding that he has no claim for relief under the Donnelly standard. And as the Court of Appeals stated: “[T]he only defendants who need to rely on Caldwell rather than Donnelly are those who must concede that the prosecutorial argument in their case was not so harmful as to render their sentencing trial ‘fundamentally unfair. ’ ” 881 F. 2d, at 1293.
Rather than focusing on the prejudice to the defendant that must be shown to establish a Donnelly violation, our concern in Caldwell was with the “unacceptable risk” that misleading remarks could affect the reliability of the sentence. See 472 U. S., at 343 (opinion of O’Connor, J.). Caldwell must therefore be read as providing an additional measure of protection against error, beyond that afforded by Donnelly, in the special context of capital sentencing. See Darden v. Wainwright, 477 U. S. 168, 183-184, n. 14 (1986). The Caldivell rule was designed as an enhancement of the accuracy of capital sentencing, a protection of systemic value for state and federal courts charged with reviewing capital proceedings. But given that it was added to an existing guarantee of due process protection against fundamental unfairness, we cannot say this systemic rule enhancing reliability is an “absolute prerequisite to fundamental fairness,” 489 U. S., at 314, of the type that may come within Teague s second exception.
Discussions of the nature of Caldivell error from other contexts also support our conclusion. In Dugger v. Adams, supra, we held that failure to consider a Caldwell claim would not come within a “fundamental miscarriage of justice” exception to the doctrine of procedural default. Id., at 412, n. 6; see Murray v. Carrier, 477 U. S. 478 (1986). We rejected the dissent’s contention that a fundamental miscarriage of justice had been shown in that “the very essence of a Caldwell claim is that the accuracy of the sentencing determination has been unconstitutionally undermined.” Dugger, supra, at 412, n. 6. Similarly, in Williams, supra, Justice Stevens concluded his discussion of a Caldivell-type claim by stating: “I question whether it can be said that this trial was fundamentally unfair. See Rose v. Lundy, [455 U. S. 509,] 543, and n. 8 [(1982)] (Stevens, J., dissenting).” 464 U. S., at 56. These cases, of course, involved different rules and contexts. Yet we think their rationale reflects a rejection of the argument that Caldwell represents a rule fundamental to the criminal proceeding.
Because petitioner seeks the benefit of a new rule that does not come within either of the Teague exceptions, his claim for habeas corpus relief is without merit. The judgment of the Court of Appeals is therefore
Affirmed.
That Penry v. Lynaugh, 492 U. S. 302, 329 (1989), and Teague v. Lane, 489 U. S. 288, 301 (1989), cite Ford v. Wainwright, 477 U. S. 399 (1986), as crafting a “new” rule does not establish that state decisions are irrelevant in assessing the status of a right under the Federal Constitution. Cf. ante, at 240. Neither of these opinions discussed the citation to Ford, and the force of their conclusions is undermined by this Court’s subsequent reliance on state decisions in Saffle v. Parks, 494 U. S. 484 (1990), to determine whether the rule invoked in that ease was compelled by our Eighth Amendment decisions, see id., at 490-491 (citing state decisions). State decisions cannot be deemed relevant to the Teague inquiry only to the extent that they disprove the rootedness of a constitutional right.
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_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.
Leonard J. McMULLEN, Appellant, v. Anthony J. CELEBREZZE, Secretary, Health, Education and Welfare, Appellee.
No. 19139.
United States Court of Appeals Ninth Circuit.
Aug. 18, 1964.
Rehearing Denied Nov. 20, 1964.
Leonard J. McMullen, in pro. per.
Francis C. Whelan, U. S. Atty., Donald A. Fareed, Asst. U. S. Atty., Chief of Civil Section; James E. Biava, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before CHAMBERS and KOELSCH, Circuit Judges, and JAMESON, District Judge.
JAMESON, District Judge:
This is an appeal from a judgment affirming the final decision of the appellee disallowing appellant’s claim for disability and for disability insurance benefits. Appellant represented himself in this court, as he did in the district court and in all proceedings before the Department of Health, Education and Welfare. This court has jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Appellant filed an application on December 13, 1961, 2for insurance benefits, alleging that he had been continuously disabled under the provisions of the Social Security Act since April 12, 1949. Appellant claims to be entitled to disability benefits to February 5,1962, when he became 65 years of age, and to old-age pension benefits thereafter.
Following a denial of his claim, a hearing was held on December 6, 1962. The hearing examiner found that the claimant had not sustained his burden of showing that he was “disabled” within the meaning of the Social Security Act and that he was not accordingly entitled to a period of disability or to disability insurance benefits. This decision became the final decision of the Secretary when the Appeals Council denied review on May 2, 1963.
In a memorandum opinion the district court denied appellant’s motion for judgment on the pleadings and granted appel-lee’s motion for summary judgment. Thereafter the court adopted findings of fact and concluded as a matter of law that the final decision of the Secretary and the findings of fact upon which it was predicated were supported by substantial evidence, were conclusive and thus were approved and affirmed. A formal judgment was entered affirming the final decision of the Secretary.
Appellant questions the propriety of the summary judgment motion and proceedings. Section 405(g) gives the district court the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, * * * ”, and provides that, “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, * * * ”. The action accordingly is a “review” of the decision of the Secretary. A motion for summary judgment is unnecessary, and it is questionable whether such a motion is contemplated by the statute. This procedure, however, is commonly followed by the Secretary in eases of this nature. In any event, there was a full compliance with the statute in the findings of fact, conclusions of law, and judgment entered by the district court.
As this court said in United States v. Lalone, 9 Cir., 1945, 152 F.2d 43, “Under this section of the Social Security Act (42 U.S.C. § 405(g)) providing for appeals from an administrative board, as under other similar acts, the board’s findings of fact must be sustained if the court finds they are supported by substantial evidence. This same finality extends to the Board’s inferences and conclusions from the evidence if a substantial basis is found for them. * * * The board’s decisions interpreting the Act and regulations are entitled to weight; the board’s findings of fact, if supported by substantial evidence, are conclusive.”
The primary question for determination is whether there is substantial evidence to support the findings of the Secretary and the district court that appellant failed to sustain his burden of showing that he was “disabled” within the meaning of the Social Security Act on or before December 31, 1951, the last date of his insured status under the Act, and continuously thereafter to December 13, 1961, when his present application was filed. The test of “disability” is whether appellant was unable during that period “to engage in any substantial gainful activity by reason of any medi-eally determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration”, or “blindness”, (See note 2.)
Appellant graduated from high school and in 1919 completed a ten month course jn general accounting at a business col-iege. He was steadily employed in accounting work by one company between 1919 and January 1946 — at Fort Wayne, Indiana, from 1919 to 1928, at Vernon, California, from 1928 to 1945, and at Fort Wayne for four or five months in 1945 and January, 1946. He resigned because he couldn’t “stand the cold weather” in Fort Wayne and returned to California. He held a series of jobs be-tween 1946 and 1948, when he engaged in a primary campaign as a candidate for Congress.
Subsequent to the onset of the alleged disability in April, 1949, appellant worked in December, 1949, as a post office clerk; from May through July, 1951, as a COst accountant and timekeeper; in October, 1951, as a timekeeper; and in January and February, 1952, as a senior deputy assessor. Appellant testified that for “a while” after December, 1951, he went to the library “quite a lot” to read fiancial reports and magazines in conneetion with making investments; that he attempted to collect benefits from two insurance companies, acting as his own attorney in these cases, which were filed in 1956. In 1952 he engaged in a primary campaign as a candidate for Los Angeles County Supervisor, and in 1954 he again campaigned for Congress in the primary election. Appellant asserts that although he engaged in the foregoing activities, he did so while disabled.
In his application for a period of disability and disability benefits appellant described his impairment as “injury of prostate gland, causing feet and leg swelling and severe pain.” At his hearing he testified that he had been unable to do auditing or accounting work because of his eyes, his right eye being “practically blind”.
In appellant’s brief he refers specifically to a deposition of Dr. Aubrey H. Williams, given on February 18, 1957, in an action by appellant against an insurance company. Dr. Williams, a specialist in internal medicine, also made an affidavit dated November 23, 1956, and a report dated April 23,1957. All relate to an examination of appellant on May 20 to 22, 1949. Dr. Williams testified in his deposition that a proctoscopic examination revealed no abnormalities except a slight spasm in the rectum which he attributed to nervous tension. He found a slight enlargement of the prostate which was a normal development with age. He found no evidence of physical disease “which would interfere with him carrying on his usual occupation; emotionally he was so upset that for the time being he may not have been able to perform”. It was Dr. Williams’ opinion that appellant’s emotional state was probably of long standing, perhaps throughout his lifetime. His final diagnosis was obesity and “psychoneurosis mixed with superimposed acute anxiety with hypochondri-acal and paranoid features”. He did not believe this condition was in any way connected with any physical disability. In the report, in response to the question, “Have you advised applicant not to work?”, Dr. Williams answered, “No’.
Dr. John V. Pollock examined appellant on July 31, 1950. Appellant complained of urinary frequency, nocturia, impotence, and grittiness in his eyes. The physieal examination revealed that the left prostatic lobe was enlarged and mildly tender, and that the left vesicle was enlarged. Urological consultation and blood chemistry were advised,
Appellant was next seen by Dr. Pollock on July 24, 1953, when appellant called for an eye check. The eye examination showed corrected vision of 20/40 in the right eye and 20/30 in the left eye. Appellant was “approved for light duties”,
Dr. Warren A. Wilson, an ophthalmologist, examined appellant’s eyes on July io, 1956. Appellant complained that “both eyes were tearing but it was more marked on the right”. Dr. Wilson’s diagnosis was chronic blepharoconjunc-tivitis (inflammation of the eyelids and conjunctiva). He prescribed treatment and felt that appellant would have remissions and exacerbations of this condition. Dr. Wilson did not advise appellant not to work.
The only other medical report is that of a physician who examined appellant for the Veterans Administration on April 19, 1949. The examination revealed “a very boggy prostate”, and a smear showed “many pus cells”. The diagnosis was “prostatitis chronic”, and hospitalization was not recommended,
There is no substantial medical testimony to support appellant’s contention that he was disabled within the meaning 0f Social Security Act as a result of either the prostate or eye conditions,
Under the Act disability may re-suit from mental as well as physical impairment. In his examination in May, 1949, Dr. Williams found a “psychoneurosis mixed with superimposed acute anxiety with hypochondriacal and paranoid features.” He recommended psychiatric consultation.
The regulations relating to disability caused by mental impairment provide:
“In determining the effect of psychoneuroses, consideration is given whether the psychoneurosis has re-suited in severe social, personal and occupational regression or confinement to a mental hospital and whether it persists despite appropriate treatment. The manifestations of tension, anxiety, depression or psy-chophysiological disturbances, behavioral disturbances, hysterical reactions or obsessive compulsive patterns should be carefully described. An adequate psychiatric examination is generally necessary.” (20 C.F.R. § 404.1519(c) (ii)).
With reference to possible mental impairment, the Hearing Examiner’s Decision reads in part:
“In respect to his mental state, the claimant has on many occasions been requested to submit to psychiatric examination, but has consistently refused to do so, wishing to rely upon his physical impairments to obtain the various benefits he has sought. The opinion expressed by Dr. Williams in his deposition was that the claimant’s emotional state might keep him temporarily from working, but it is obvious in his answers to the questions in such deposition that he did not feel that it was of such continuing severity as to be of long-continued duration, particularly if appropriate therapy were employed.
“ * * * There is not in the record a definitive description of the various manifestations of the psychoneurosis, from which Dr. Williams diagnosed the claimant as suffering. In fact through the years, the claimant has resisted all attempts to have him examined psy-chiatrically, and has left the record void of the type of evidence contemplated by this regulation.”
We agree with the agency decision and the district court that the record would not support a finding of disability on the ground of mental impairment.
It is true, as appellant contends, that complete helplessness is not necessary to a finding of an allowable disability, that a claimant’s age, training and experience must be considered in determining what opportunities are open to him, and that sporadic and infrequent activities do not necessarily establish ability to engage in substantial gainful employment. Here, however, the Board could properly find that the prostate condition upon which appellant initially relied as the basis of his disability was “not shown to be so severe as to limit him in performing his usual sedentary occupation.” Under both the testimony regarding appellant’s activities and the medical testimony, the Secretary could also properly find that appellant had failed to establish a continuing disability within the meaning of the Act as a result of either his eye condition or psychoneurosis.
Relying upon King v. Flemming, 6 Cir. 1961, 289 F.2d 808 and cases there cited, appellant contends that there should have been an express finding with respect to what he could do and what employment opportunities were open to him. It is implicit in the Board’s decision that it found that appellant had failed to show that he was disabled from following his usual occupation as an accountant.
No useful purpose would be served by a discussion of the many cases cited by appellant. We have examined all of those cases where an agency finding was reversed. All of them are factually distinguishable.
The judgment is affirmed.
. In a previous claim filed on February 15, 1957, appellant sought to establish disability as of April 12, 1949. This claim was denied, and the denial was affirmed by final decision of a hearing examiner dated April 8, 1958. Appellant’s action for a review of that decision was dismissed on the ground that it was not timely filed.
. The term “disability” is defined as “ * * * (A) inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or to be of long-continued and indefinite duration, or (B) blindness; and the term ‘blindness’ means central visual acuity of 5/200 or less in the better eye with the use of a correcting lens. * * * ” (42 U.S.C. § 416(i) (1)).
. The Hearing Examiner’s Decision recites that appellant appeared to be entitled to the regular old-age pension starting February 5, 1962, except for the fact that he had not filed formal application as required by the Act and regulations. The right to old-age pension benefits was not determined by the district court and is not before this court.
. This does not mean that it was intended that the courts should abdicate their conventional juricial function to review (Universal Camera Corp. v. N. L. R. B., 1951, 340 U.S. 474, 490, 71 S.Ct. 456, 95 L.Ed. 456); and where the “administrative decision is based upon conclusions not reasonably reached upon due consideration of all the relevant issues presented” (Jacobson v. Folsom, S.D.N.Y. 1957, 158 F.Supp. 281, 285), or applies an arbitrary standard (Flemming v. Lindgren, 9 Cir.1960, 275 F.2d 596, 597), the court may properly reject the agency’s decision,
. Under the express terms of the Act a reasonable showing of permanence of the disability is required. Bradey v. Ribicoff, 4 Cir. 1962, 298 F.2d 855.
. These findings are required when it is found that the claimant is unable to engage in bis usual occupation, but the Secretary concludes that lie can perform services and duties other than those of his accustomed occupation. See Kerner v. Flemming, 2 Cir. 1960, 283 F.2d 916, and Hall v. Flemming, 6 Cir., 1961, 289 F.2d 290.
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: |
sc_adminaction_is | B | What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
TEXAS DEPARTMENT OF COMMUNITY AFFAIRS v. BURDINE
No. 79-1764.
Argued December 9, 1980
Decided March 4, 1981
Powell, J., delivered the opinion for a unanimous Court.
Gregory Wilson, Assistant Attorney General of Texas, argued the cause pro hac vice for petitioner. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, Lonny F. Zwiener, Assistant Attorney General, and Paul R. Gavia.
Hubert L. Gill argued the cause and filed a brief for respondent.
Robert E. Williams and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
Justice Powell
delivered the opinion of the Court.
This case requires us to address again the nature of the evidentiary burden placed upon the defendant in an employment discrimination suit brought under Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. The narrow question presented is whether, after the plaintiff has proved a prima facie case of discriminatory treatment, the burden shifts to the defendant to persuade the court by a preponderance of the evidence that legitimate, nondiscriminatory reasons for the challenged employment action existed.
I
Petitioner, the Texas Department of Community Affairs (TDCA), hired respondent, a female, in January 1972, for the position of accounting clerk in the Public Service Careers Division (PSC). PSC provided training and employment opportunities in the public sector for unskilled workers. When hired, respondent possessed several years’ experience in employment training. She was promoted to Field Services Coordinator in July 1972. Her supervisor resigned in November of that year, and respondent was assigned additional duties. Although she applied for the supervisor’s position of Project Director, the position remained vacant for six months.
PSC was funded completely by the United States Department of Labor. The Department was seriously concerned about inefficiencies at PSC. In February 1973, the Department notified the Executive Director of TDCA, B. R. Fuller, that it would terminate PSC the following month. TDCA officials, assisted by respondent, persuaded the Department to continue funding the program, conditioned upon PSC’s reforming its operations. Among the agreed conditions were the appointment of a permanent Project Director and a complete reorganization of the PSC staff.
After consulting with personnel within TDCA, Fuller hired a male from another division of the agency as Project Director. In reducing the PSC staff, he fired respondent along with two other employees, and retained another male, Walz, as the only professional employee in the division. It is undisputed that respondent had maintained her application for the position of Project Director and had requested to remain with TDCA. Respondent soon was rehired by TDCA and assigned to another division of the agency. She received the exact salary paid to the Project Director at PSC, and the subsequent promotions she has received have kept her salary and responsibility commensurate with what she would have received had she been appointed Project Director.
Respondent filed this suit in the United States District Court for the Western District of Texas. She alleged that the failure to promote and the subsequent decision to terminate her had been predicated on gender discrimination in violation of Title VII. After a bench trial, the District Court held that neither decision was based on gender discrimination. The court relied on the testimony of Fuller that the employment decisions necessitated by the commands of the Department of Labor were based on consultation among trusted advisers and a nondiscriminatory evaluation of the relative qualifications of the individuals involved. He testified that the three individuals terminated did not work well together, and that TDCA thought that eliminating this problem would improve PSC’s efficiency. The court accepted this explanation as rational and, in effect, found no evidence that the decisions not to promote and to terminate respondent were prompted by gender discrimination.
The Court of Appeals for the Fifth Circuit reversed in part. 608 F. 2d 563 (1979). The court held that the District Court’s “implicit evidentiary finding” that the male hired as Project Director was better qualified for that position than respondent was not clearly erroneous. Accordingly, the court affirmed the District Court’s finding that respondent was not discriminated against when she was not promoted. The Court of Appeals, however, reversed the District Court’s finding that Fuller’s testimony sufficiently had rebutted respondent’s prima facie case of gender discrimination in the decision to terminate her employment at PSC. The court reaffirmed its previously announced views that the defendant in a Title VII case bears the burden of proving by a preponderance of the evidence the existence of legitimate nondiscriminatory reasons for the employment action and that- the defendant also must prove by objective evidence that those hired or promoted were better qualified than the plaintiff. The court found that Fuller’s testimony did not carry either of these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay. Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals, we granted certiorari. 447 U. S. 920 (1980). We now vacate the Fifth Circuit’s decision and remand for application of the correct standard.
II
In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804.
The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 25, n. 2 (1978); id., at 29 (Stevens, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed. 1940) (the burden of persuasion “never shifts”). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question.
The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a proponderence of the evidence that she applied for an available position for which she was qualified, but was rejected under circumstances which give rise to an inference of unlawful discrimination. The prima facie case serves an important function in the litigation: it eliminates the most common nondiscriminatory reasons for the plaintiff's rejection. See Teamsters v. United States, 431 U. S. 324, 358, and n. 44 (1977). As the Court explained in Furnco Construction Corp. v. Waters, 438 U. S. 567, 577 (1978), the prima facie case “raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Establishment of the prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee. If the trier of fact believes the plaintiff’s evidence, and if the employer is silent in the face of the presumption, the court must enter judgment for the plaintiff because no issue of fact remains in the case.
The burden that shifts to the defendant, therefore, is to rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. The defendant need not persuade the court that it was actually motivated by the proffered reasons. See Sweeney, supra, at 25. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.
The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason wí ■ not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence. See McDonnell Douglas, 411 U. S., at 804-805.
Ill
In reversing the judgment of the District Court that the discharge of respondent from PSC was unrelated to her sex, the Court of Appeals adhered to two rules it had developed to elaborate the defendant’s burden of proof. First, the defendant must prove by a preponderence of the evidence that legitimate, nondiscriminatory reasons for the discharge existed. 608 F. 2d, at 567. See Turner v. Texas Instruments, Inc., 555 F. 2d 1251, 1255 (CA5 1977). Second, to satisfy this burden, the defendant “must prove that those he hired . . . were somehow better qualified than was plaintiff; in other words, comparative evidence is needed.” 608 F. 2d, at 567 (emphasis in original). See East v. Romine, Inc., 518 F. 2d 332, 339-340 (CA5 1975).
A
The Court of Appeals has misconstrued the nature of the burden that McDonnell Douglas and its progeny place on the defendant. See Part II, supra. We stated in Sweeney that “the employer’s burden is satisfied if he simply ‘explains what he has done’ or ‘productes] evidence of legitimate nondiscriminatory reasons.’ ” 439 U. S., at 25, n. 2, quoting id., at 28, 29 (Stevens, J., dissenting). It is plain that the Court of Appeals required much more: it placed on the defendant the burden of persuading the court that it had convincing, objective reasons for preferring the chosen applicant above the plaintiff.
The Court of Appeals distinguished Sweeney on the ground that the case held only that the defendant did not have the burden of proving the absence of discriminatory intent. But this distinction slights the rationale of Sweeney and of our other eases. We have stated consistently that the employee’s prima facie case of discrimination will be rebutted if the employer articulates lawful reasons for the action; that is, to satisfy this intermediate burden, the employer need only produce admissible evidence which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus. The Court of Appeals would require the defendant to introduce evidence which, in the absence of any evidence of pretext, would persuade the trier of fact that the employment action was lawful. This exceeds what properly can be demanded to satisfy a burden of production.
The court placed the burden of persuasion on the defendant apparently because it feared that “[i]f an employer need only articulate — not prove — a legitimate, nondiscriminatory reason for his action, he may compose fictitious, but legitimate, reasons for his actions.” Turner v. Texas Instruments, Inc., supra, at 1255 (emphasis in original). We do not believe, however, that limiting the defendant’s evidentiary obligation to a burden of production will unduly hinder the plaintiff. First, as noted above, the defendant’s explanation of its legitimate reasons must be clear and reasonably specific. Supra, at 255. See Loeb v. Textron, Inc., 600 F. 2d 1003, 1011-1012, n. 5 (CA1 1979). This obligation arises both from the necessity of rebutting the inference of discrimination arising from the prima facie ease and from the requirement that the plaintiff be afforded “a full and fair opportunity” to demonstrate pretext. Second, although the defendant does not bear a formal burden of persuasion, the defendant nevertheless. retains an incentive to persuade the trier of fact that the employment decision was lawful. Thus, the defendant normally will attempt to prove the factual basis for its explanation. Third, the liberal discovery rules applicable to any civil suit in federal court are supplemented in a Title VII suit by the plaintiff’s access to the Equal Employment Opportunity Commission’s investigatory files concerning her complaint. See EEOC v. Associated Dry Goods Corp., 449 U. S. 590 (1981). Given these factors, we are unpersuaded that the plaintiff will find it particularly difficult to prove that a proffered explanation lacking a factual basis is a pretext. We remain confident that the McDonnell Douglas framework permits the plaintiff meriting relief to demonstrate intentional discrimination.
B
The Court of Appeals also erred in requiring the defendant to prove by objective evidence that the person hired or promoted was more qualified than the plaintiff. McDonnell Douglas teaches that it is the plaintiff’s task to demonstrate that similarly situated employees were not treated equally. 411 U. S., at 804. The Court of Appeals’ rule would require the employer to show that the plaintiff’s objective qualifications were inferior to those of the person selected. If it cannot, a court would, in effect, conclude that it has discriminated.
The court’s procedural rule harbors a substantive error. Title VII prohibits all discrimination in employment based upon race, sex, and national origin. “The broad, overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy workmanship assured through fair and . . . neutral employment and personnel decisions.” McDonnell Douglas, supra, at 801. Title VII, however, does not demand that an employer give preferential treatment to minorities or women. 42 U. S. C. § 2000e-2 (j). See Steelworkers v. Weber, 443 U. S. 193, 205-206 (1979). The statute was not intended to “diminish traditional management prerogatives.” Id., at 207. It does not require the employer to restructure his employment practices to maximize the number of minorities and women hired. Furnco Construction Corp. v. Waters, 438 U. S. 567, 577-578 (1978).
The views of the Court of Appeals can be read, we think, as requiring the employer to hire the minority or female applicant whenever that person’s objective qualifications were equal to those of a white male applicant. But Title VII does not obligate an employer to accord this preference. Rather, the employer has discretion to choose among equally qualified candidates, provided the decision is not based upon unlawful criteria. The fact that a court may think that th employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination. Loeb v. Textron, Inc., supra, at 1012, n. 6; see Lieberman v. Gant, 630 F. 2d 60, 65 (CA2 1980).
IV
In summary, the Court of Appeals erred by requiring the defendant to prove by a preponderance of the evidence the existence of nondiscriminatory reasons for terminating the respondent and that the person retained in her stead had superior objective qualifications for the position. When the plaintiff has proved a prima facie case of discrimination, the defendant bears only the burden of explaining clearly the nondiscriminatory reasons for its actions. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Among the problems identified were overstaffing, lack of fiscal control, poor bookkeeping, lack of communication among PSC staff, and the lack of a full-time Project Director. Letter of March 20, 1973, from Charles Johnson to B. R. Fuller, reprinted in App. 38-40.
See id., at 39.
The Court of Appeals also vacated the District Court’s judgment that petitioner did not violate Title YII’s equal pay provision, 42 U. S. C. § 2000e-2 (h), but that decision is not challenged here.
See, e. g., Lieberman v. Gant, 630 F. 2d 60 (CA2 1980); Jackson v. U. S. Steel Corp., 624 F. 2d 436 (CA3 1980); Ambush v. Montgomery County Government, 22 FEP Cases 1101 (CA4 1980); Loeb v. Textron, Inc., 600 F. 2d 1003 (CA1 1979). But see Vaughn v. Westinghouse Elec. Corp., 620 F. 2d 655 (CA8 1980), cert. pending, No. 80-276.
We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes. See McDonnell Douglas, 411 U. S., at 802, n. 14; Teamsters v. United States, 431 U. S. 324, 335-336, and n. 15 (1977).
In McDonnell Douglas, supra, we described an appropriate model for a prima facie case of racial discrimination. The plaintiff must show: .. “(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.” 411 U. S., at 802.
We added, however, that this standard is not inflexible, as “[t]he facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof required from respondent is not necessarily applicable in every respect in differing factual situations.” Id., at 802, n. 13.
In the instant case, it is not seriously contested that respondent has proved a prima facie case. She showed that she was a qualified woman who sought an available position, but the position was left open for several months before she finally was rejected in favor of a male, Walz, who had been under her supervision.
The phrase "prima facie case” not only may denote the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff’s burden of producing enough evidence to permit the trier of fact to infer the fact at issue. 9 J. Wigmore, Evidence § 2494 (3d ed. 1940). McDonnell Douglas should have made it apparent that in the Title VII context we use “prima facie case” in the former sense.
This evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law. “The word 'presumption’ properly used refers only to a device for allocating the production burden.” F. James & G. Hazard, Civil Procedure § 7.9, p. 255 (2d ed. 1977) (footnote omitted). See Fed. Rule Evid. 301. See generally 9 J. Wigmore, Evidence §2491 (3d ed. 1940). Cf. J. Maguire, Evidence, Common Sense and Common Law 185-186 (1947). Usually, assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie ease is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.
An articulation not admitted into evidence will not suffice. Thus, the defendant cannot meet its burden merely through an answer to the complaint or by argument of counsel.
See generally J. Thayer, Preliminary Treatise on Evidence 346 (1898). In saying that the presumption drops from the case, we do not imply that the trier of fact no longer may consider evidence previously introduced by the plaintiff to establish a prima facie case. A satisfactory explanation by the defendant destroys the legally mandatory inference of discrimination arising from the plaintiff’s initial evidence. Nonetheless, this evidence and inferences properly drawn therefrom may be considered by the trier of fact on the issue of whether the defendant’s explanation is pretextual. Indeed, there may be some cases where the plaintiff’s initial evidence, combined with effective cross-examination of the defendant, will suffice to discredit the defendant’s explanation.
The court reviewed the defendant’s evidence and explained its deficiency:
“Defendant failed to introduce comparative factual data concerning Burdine and Walz. Fuller merely testified that he discharged and retained personnel in the spring shakeup at TDCA primarily on the recommendations of subordinates and that he considered Walz qualified for the position he was retained to do. Fuller failed to specify any objective criteria on which he based the decision to discharge Burdine and retain Walz. He stated only that the action was in the best interest of the program and that there had been some friction within the department that might be alleviated by Burdine’s discharge. Nothing in the record indicates whether he examined Walz’ ability to work well with others. This court in East found such unsubstantiated assertions of ‘qualification’ and ‘prior work record’ insufficient absent data that will allow a true comparison of the individuals hired and rejected.” 608 F. 2d, at 568.
Because the Court of Appeals applied the wrong legal standard to the evidence, we have no occasion to decide whether it erred in not reviewing the District Court’s finding of no intentional discrimination under the “clearly erroneous” standard of Federal Rule of Civil Procedure 52 (a). Addressing this issue in this case would be inappropriate because the District Court made no findings on the intermediate questions posed by McDonnell Douglas.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer: |
songer_state | 07 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
UNITED STATES of America, Plaintiff-Appellee, v. Robert K. KELLEY, Defendant, Danbury, USA, Inc., Applicant in Intervention-Appellant.
No. 92-1130.
United States Court of Appeals, Tenth Circuit.
July 1, 1993.
William R. Lucero, Asst. U.S. Atty. (Michael J. Norton, U.S. Atty., with him on the brief), Denver, CO, for plaintiff-appellee.
Denis H. Mark (William C. Waller and C. Bradley Rupert of Vinton, Waller, Slivka & Panasci, with him on the brief), Denver, CO, for Danbury, USA, Inc., applicant in intervention-appellant.
Before TACHA, Circuit Judge, and McWILLIAMS and BARRETT, Senior Circuit Judges.
McWILLIAMS, Senior Circuit Judge.
Danbury, USA, Inc. (Danbury), the appellant, seeks review and reversal of an order of the district court wherein Danbury’s request for restitution in a criminal proceeding was denied.. The United States, the appellee, has filed a motion to dismiss the appeal on the grounds that Danbury has no standing to appeal the district court’s restitution order, and then argues, alternatively, that the district court did not err in declining to enter a restitution order in favor of Danbury. Though the facts are not disputed, recital thereof is necessary to focus the precise issue.
In March, 1988, Robert K. Kelley (Kelley) obtained a personal loan in the amount of $150,000 from Great West Savings Bank (Great West) in Craig, Colorado. In his loan application, Kelley pledged as collateral for the loan his family residence, which he represented as being free of encumbrances, when in fact the property was already encumbered to the Citizens Bank of Glendale (Colorado) for $164,000.
In June, 1989, Kelley, as president of Dan-bury, obtained a second loan in the amount of $150,000 from Great West. Again, Kelley pledged his family home as collateral for the loan. In addition, Kelley pledged a promissory note in the amount of $745,000, which was owned and held by Danbury. Somato-gen, Inc., a business concern located in Boulder, Colorado, was the maker of the note (hereinafter the Somatogen Note).
By January, 1990, Kelley had defaulted in his payments to Great West on both loans. Great West, then under the supervision of Resolution Trust Company (RTC), sent a letter to Somatogen, Inc., requesting that payments on the Somatogen Note be made directly to Great West. As a result of this letter, Somatogen, Inc. made subsequent payments on its note to Great West, and ultimately Great West’s successor, RTC, rather than to Danbury. Such payments were divided to pay on the second loan, i.e. the loan which Kelley negotiated on behalf of Danbury, and to bring the first loan up to date. We are advised that payments on the Somatogen Note applied to the first loan approximated $100,000.
On January 16, 1992, the United States filed a one-count information charging Kelley with making a false statement to Great West in his application for the first loan from Great West, in violation of 18 U.S.C. § 1014. The government filed no criminal charge against Kelley based on the second loan made by Great West, concluding that Kelley had the apparent authority to negotiate the second loan and pledge the Somatogen Note.
On March 6,1992, Kelley, after negotiating with the government, pleaded guilty to the one count information based on the first loan with Great West. Prior to sentencing, counsel for Danbury, by letter, requested that the United States Attorney seek restitution for it from Kelley in the amount of the monies from the Somatogen Note which were applied on the first loan. This the government declined to do, asserting that under Hughey v. United States, 496 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), any restitution order would be limited to losses caused by the specific conduct underlying the offense of conviction, i.e. the first loan.
The presentenee report, in line with the plea bargain, recommended that by way of restitution Kelley be ordered to pay RTC $147,980. This sum apparently represented the amount still due on the first note, after crediting payments from the Somatogen Note to the first loan. The report did not recommend that Kelley pay any amount to Danbury, and such is the core of the present controversy.
At the sentencing hearing, counsel for Danbury was allowed to address the court and he urged the district court to enter an order commanding Kelley to make restitution to Danbury for approximately $100,000. This the district court declined to do. Instead, the district court placed Kelley on probation, with home confinement for a period of six months, and ordered him to pay $147,980 in restitution to RTC.
Nine days after sentencing, Danbury filed a Motion to Intervene in Regard to Restitution, nunc pro tunc to the date of sentencing. That motion was denied by the district court by minute order. The present appeal followed.
As indicated, the government’s initial response to the present appeal was a motion to dismiss for lack of jurisdiction, to which Dan-bury filed a response. By order, this court reserved its judgment “on the question of jurisdiction” and referred that matter “to the panel selected to determine the appeal on the merits.” Thereafter, in their briefs, both parties again addressed the question of whether Danbury has standing to appeal the district court’s restitution order, as well as the merits of the order itself.
Danbury’s basic position is that it is a “victim” of a federal crime for which restitution is warranted under the Victim and Witness Protection Act, 18 U.S.C. § 3663 (VWPA), and that it has “implicit standing” to appeal the district court’s order that Kelley make restitution only to RTC. We disagree and hold that Danbury has no standing to prosecute this appeal. In support of our holding, see United States v. Johnson, 983 F.2d 216 (11th Cir.1993) and United States v. Grundhoefer, 916 F.2d 788 (2d Cir.1990).
In Johnson, the defendant in a criminal proceeding pleaded guilty to several counts based on her forging endorsements and cashing Social Security checks made payable to a deceased relative, in violation of 18 U.S.C. § 495. The defendant was ordered, inter alia, to make restitution to the victim bank in the amount of $18,273, in monthly installments. When the defendant became delinquent in her restitution payments, the district court held a revocation hearing, at which time the victim bank was present. At the conclusion of the revocation hearing, the district court revoked probation, sentenced her to six months imprisonment, and rescinded the restitution. The victim bank then filed an appeal. The Eleventh Circuit framed the sole issue as follows: “The sole issue we address is whether Bank, an intervenor, has standing to appeal the district court’s rescission of the restitution order.” Johnson, 983 F.2d at 218. After a thorough discussion of the various issues involved, the Eleventh Circuit concluded as follows:
We find that the legislative history and the Act’s plain language do not indicate that Congress, either explicitly or implicitly, intended to provide a private cause of action to victims. Consequently, Bank has no standing under either Article III of the United States Constitution or the Victim and Witness Protection Act to challenge the district court’s revocation of its restitution order. Because Bank has no standing to contest the district court’s revocation of the restitution order, this appeal is dismissed.
Id. at 221.
In Grundhoefer, the defendants operated a computer training school which received federal monies. After pleading guilty to charges of conspiracy and fraud, the defendants were, inter alia, ordered to make restitution by payment of an amount agreed upon by the government and the defendants into a fund for the benefit of the school’s former students. The trustee in bankruptcy for the school objected to the restitution order, believing that restitution should be in his favor for the benefit of the school’s unsecured creditors. The trustee’s objections were overruled, and the trustee appealed the district court’s restitution order in favor of the school’s former students. On appeal, the Second Circuit concluded that the VWPA did not provide a private remedy for victims denied restitution in a criminal proceeding, and in dismissing the appeal held that the trustee did not have standing under Article III to appeal the restitution order. Grundhoefer, 916 F.2d at 791-93.
We are in accord with the result and reasoning of both Johnson and Grundhoefer. Therefore, the present appeal is dismissed.
. Apparently, as a result of the application of payments on the Somatogen Note to the first loan, Danbury brought a civil suit against Great West in the United States District Court for the District of Colorado, which was settled in an agreement with RTC. Danbury also sued Kelley in an action brought in a Colorado state court. This action was also apparently settled, although the settlement agreement was sealed by order of court.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
sc_jurisdiction | I | 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.
UNITED STATES v. LOUISIANA.
No. 11,
Original.
Argued April 8, 1957.
Decided June 24, 1957.
Solicitor General Rankin argued the cause for the United States, plaintiff. With him on the brief were Attorney General Brownell, Oscar H. Davis, John F. Davis, George S. Swarth and Fred W. Smith.
Jack P. F. Gremillion, Attorney General, W. Scott Wilkinson, Special Assistant Attorney General, and Victor A. Sachse argued the cause for the State of Louisiana, defendant. With them on the brief were Edward M. Carmouche and John L. Madden, Special Assistant Attorneys General, Bailey Walsh, Hugh M. Wilkinson and Marc Dupuy, Jr.
By leave of the Court, 353 U. S. 980, Price Daniel, Governor, Will Wilson, Attorney General, James H. Rogers, Assistant Attorney General, and J. Chrys Dough-erty filed a brief for the State of Texas, as amicus curiae, urging that the Court’s decision in this case should be limited to the State of Louisiana.
Per Curiam.
The Court has before it the motions of the United States for judgment and of Louisiana for leave to take depositions. As a result of its consideration of these matters, including the representations made by the State of Texas in its amicus curiae brief, the Court is of the opinion that the issues in this litigation are so related to the possible interests of Texas, and other States situated on the Gulf of Mexico, in the subject matter of this suit, that the just, orderly, and effective determination of such issues requires that they be adjudicated in a proceeding in which all the interested parties are before the Court.
Accordingly, to that end, the Court, acting pursuant to Rules 9 (2) and (6) of its Revised Rules, Rule 21 of the Federal Rules of Civil Procedure, and the general equity powers of the Court, grants leave to each of the States of Alabama, Florida, Mississippi, and Texas to intervene in this suit within 60 days from the date of this opinion, with leave to the United States, within 60 days thereafter, to file an amended or supplemental complaint adding as parties to this suit any of such States as shall not have so intervened. The bringing in of such additional parties shall be without prejudice to the present motions of the United States and Louisiana, subject only to such terms as justice may require vis-á-vis the additional parties. Meanwhile such motions are continued.
The Chief Justice and Mr. Justice Clark took no part in the consideration or decision of this case.
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_casetyp1_7-3-5 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - misc economic regulation and benefits".
Marion B. FOLSOM, Secretary of Health, Education and Welfare, Appellant, v. Pauline FURBER, on behalf of Roberta Miller and Allen L. Miller, Minor-claimants, Appellee.
No. 13398.
United States Court of Appeals Sixth Circuit.
May 22, 1958.
Seymour Farber, Dept, of Justice, Washington, D. C., George Cochran Doub, Asst. Atty. Gen., Samuel D. Slade, and Seymour Farber, Washington, D. C., Sumner Canary, U. S. Atty., Cleveland, Ohio, on the brief, for appellant.
Isadore R. Rosenblatt, University Heights, Ohio, on the brief, for appellee.
Before SIMONS, Chief Judge, and MARTIN and BAZELON, Circuit Judges.
PER CURIAM.
In this case, the district court held that a now deceased former wage-earner, Andrew A. Miller, entered into an agreement with Pauline Furber, appellee [then the divorced wife of John Marti], in September of 1939, to live together as common-law husband and wife; that, thereupon, they entered into that status and lived together continuously until his death on April 21, 1944, during which time they held themselves out to their relatives and friends, as well as to strangers, as husband and wife; that two children were born of their relationship, namely, Roberta Miller (born August 30, 1940) and Allen Miller (born July 12, 1943) ; and that their common-law father, Andrew A. Miller, “acknowledged them to be his children by every conceivable means thereby legitimatizing said children under the laws of the State of Ohio.”
The district court denied the motion of appellant for summary judgment and granted the motion of the appellee, mother of the minor children, for summary judgment, recognizing Roberta and Allen Miller to be entitled to social security benefits under the Social Security Act as the legitimate children of the wage-earner, Andrew A. Miller. It was held that child’s insurance benefits were awarded to Roberta and Allen Miller [minor-claimants] as the children of the fully or currently insured wage-earner, Andrew Miller, [as defined under the Social Security Act] from and after April 29, 1944, which was the date on which Pauline Miller [later Furber], claimant, applied for widow’s insurance benefits for herself and for child’s insurance benefits for each of the two children, Roberta and Allen Miller.
United States District Judge Connell, highly experienced in the interpretation of Ohio law, in a logically reasoned opinion discussed the applicability and meaning of such law and decided that the children fell within the provisions of the Ohio Revised Code, section 2105.18, and were therefore entitled to Social Security benefits under the Social Security Act, 42 U.S.C.A. § 301 et seq.
The Ohio statute provides: “When by a woman a man has one or more children, and afterwards intermar-ríes with her, such issue, if acknowledged by him as his child or children, will be legitimate. The issue of parents whose marriage is null in law, shall nevertheless be legitimate.” Gen.Code, § 10503-15. The district judge well stated that the reason and spirit of that section of the Ohio Code “is to legitimatize children; to permit legitimatized children to inherit from the father as well as the mother; and to protect innocent offspring from punishment for the sins committed by their parents.” The following Ohio authorities were cited: Wright v. Lore, 12 Ohio St. 619; Carmichael v. State, 12 Ohio St. 553; Clinton County Nat. Bank & Trust v. Todhunter, 43 Ohio App. 289, 183 N.E. 88; Bates v. State, 9 Ohio Cir.Ct.R.N.S., 273.
The district court also quoted 26 O.Jur. 93, to the effect that in a civil action a marriage may be established by showing that the parties lived together, and cohabited as husband and wife for a series of years; and that they were so treated and reputed to be in the community and circle wherein they moved, although no witnesses testified that they saw the couple marry.
Pauline Miller Furber testified that on the day he returned from a three or four months’ trip West, Miller told her that he had been divorced from his wife so that they could be married. Asked why they had not had a “ceremonial marriage,” she replied that Miller told her they would live together as man and wife for a while, which would be legal, until he arranged his financial affairs, whereupon they would be married in church. She said that she loved the man and took him at his word. She stated further that Miller put his hand on a Bible and asked, “Pauline, will you take this man for your wedded husband?” She testified that she had replied : “I take Andrew for my husband”; that he then “reversed the words” and said, “I take Pauline as my wife.”
Upon consideration of the entire record in the case and of the opinion of the district judge, we affirm his judgment.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - misc economic regulation and benefits"?
A. social security benefits (including SS disability payments)
B. other government benefit programs (e.g., welfare, RR retirement, veterans benefits, war risk insurance, food stamps)
C. state or local economic regulation
D. federal environmental regulation
E. federal consumer protection regulation (includes pure food and drug, false advertising)
F. rent control; excessive profits; government price controls
G. federal regulation of transportation
H. oil, gas, and mineral regulation by federal government
I. federal regulation of utilities (includes telephone, radio, TV, power generation)
J. other commercial regulation (e.g.,agriculture, independent regulatory agencies) by federal government
K. civil RICO suits
L. admiralty - personal injury (note:suits against government under admiralty should be classified under the government tort category above)
M. admiralty - seamens wage disputes
N. admiralty - maritime contracts, charter contracts
O. admiralty other
Answer: |
songer_treat | D | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
Robert M. MONTGOMERY, Plaintiff-Appellee, v. The AETNA CASUALTY & SURETY COMPANY, Defendant-Appellant.
No. 89-3052.
United States Court of Appeals, Eleventh Circuit.
April 25, 1990.
James A. Young, Stephen C. Davis, Haas, Boehm, Brown, Rigdon, Seacrest & Fishcher, Tampa, Fla., for defendant-appellant.
Ronnie H. Walker, P.A., Orlando, Fla., for plaintiff-appellee.
Before TJOFLAT, Chief Judge, and JOHNSON and ANDERSON, Circuit Judges.
JOHNSON, Circuit Judge:
This case arises on appeal from the district court’s order denying the motion of the defendant, Aetna Casualty and Surety Company (“Aetna”), for judgment notwithstanding the verdict.
I. FACTS
A. Background
This is an action for breach of a fiduciary responsibility insurance contract (“the policy”). Robert Montgomery (“plaintiff”) was trustee of a profit sharing trust fund (“the plan”) for employees of the law firm of Howell, Kirby, Montgomery, D’Auito & Dean. Aetna issued plaintiff the policy, which provided that Aetna would
[p]ay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages on account of any claim made against the Insured for any Wrongful Act and [that Aetna would] have the right and duty to defend such claim against the Insured seeking such damages, even if the allegations of the claim are groundless, false or fraudulent
The profit sharing plan was originally created in 1969. During the 1970s, the firm began to grow, which led to conflicts of interest for the firm. The firm’s satellite office in Jacksonville, Florida (“the Braddock group”) left the firm effective June 1, 1976. Approximately one year later the firm went through dissolution.
These events caused problems with the vesting of benefits under the plan. First, for vesting purposes, the plan’s fiscal year was from July 1 to June 30. The Braddock group’s benefits under the plan for the year 1976 did not vest because the Braddock group left the firm before June 30, 1976. Second, the plan provided that plan participants employed at the firm at the time of dissolution would have 100% vested benefits, but that those not employed at the time of dissolution would receive a lesser percentage of vested benefits as provided in a vesting schedule. Because the trustees considered the Braddock group to have been terminated prior to the firm’s dissolution, the trustees found that the Braddock group’s benefits were less than 100% vested.
When the IRS reviewed the trustees’ actions concerning the Braddock group, the IRS revoked the plan’s tax exempt status for failure to comply with ERISA and for failure to comply with the terms of the plan. The Braddock group also objected to the trustees’ determination of the Braddock group’s rights under the plan and filed suit against the trustees. The Braddock group’s complaint alleged that the trustees violated the terms of the plan in determining the Braddock group’s vesting schedule, which caused the IRS to revoke the plan’s tax-exempt status. The complaint also alleged that the trustees violated their fiduciary duties under ERISA.
Plaintiff notified Aetna of the Braddock suit and demanded that Aetna provide a defense in the suit. Aetna retained the law firm of Wells, Gattis, Hallowes & Carpenter to represent the trustees in the Braddock suit, and Jacqueline Griffin of that firm assumed primary responsibility for the case. Plaintiff’s co-trustee, John Cunningham, told Griffin that the IRS ruling revoking the plan’s tax exempt status was crucial to the defense in the Braddock suit. In March 1979, plaintiff advised Griffin that he was hiring independent counsel to pursue the tax issue in the Braddock suit and that he would look to Aetna to cover the costs of litigating the tax issue. Aetna responded that it would supply a defense to the Braddock suit through Griffin under a reservation of rights. Aetna noted that plaintiff was welcome to hire his own counsel but that Aetna was not responsible for paying that counsel.
Plaintiff then hired David Meisel, a tax attorney, to represent the plaintiff. Meisel and his successor, Peter Mettler, initiated a separate action in the United States Tax Court on behalf of the plaintiff and against the IRS, challenging the IRS’s determination that the plan no longer qualified for the tax exempt status. The tax litigation was successful, and the Tax Court requali-fied the plan for tax exempt status in July 1986. This resulted in a substantial tax savings for the plan. The Braddock suit settled shortly after requalification of the plan for tax exempt status. Under the settlement, the Braddock group agreed that some members of the Braddock group would not be entitled to benefits under the plan at all and that the others would not be entitled to benefits for 1976.
B. Proceedings Below
Plaintiff filed the present suit in Florida state court. On March 20, 1987, Aetna removed the case to federal court. Count one of the complaint alleged that Aetna breached the insurance contract by providing Griffin as counsel because she was not an expert in tax matters and that plaintiff consequently had to hire independent tax counsel. Count one asked for damages in the amount of the tax counsel’s fees. Count two alleged that Aetna acquiesced in plaintiff’s hiring of the tax counsel and that Aetna was therefore estopped from denying liability for the tax counsel’s fees.
The district court held a jury trial on November 30 and December 1, 1988. At trial, plaintiff offered testimony about the actions surrounding the Braddock suit and the IRS’s revocation and recertification of the plan’s tax exempt status. Plaintiff testified that requalification of the plan for tax exempt status caused the resolution of the Braddock group suit. He also testified that the tax action was important because it preserved the corpus of the plan by avoiding back taxes, interest and penalties. Plaintiff’s tax counsel, however, testified that the settlement of the Braddock group suit involved concessions by the trustees. Griffin also testified that resolution of the tax matter was not dispositive of the Braddock suit.
Plaintiff offered expert testimony from Laverne Donaldson about the interpretation of the policy and the scope of Aetna’s duty to defend under the policy. Donaldson testified that Aetna had a duty under the policy to provide counsel for the tax matter. Aetna objected to this testimony.
The district court submitted the issue of the scope of Aetna’s duty under the policy to the jury. The jury returned a verdict in favor of the plaintiff for $122,059 plus interest. On December 12, 1988, Aetna moved for judgment notwithstanding the verdict or for a new trial. The district court denied this motion on December 22, 1988.
In this appeal we first consider whether the district court erred in denying Aetna’s motion for judgment notwithstanding the verdict because the tax matter is outside the scope of Aetna’s duty to defend under the policy. We then consider whether the district court erred in admitting the plaintiff’s expert testimony on the scope of Aet-na’s duty to defend under the policy.
II. ANALYSIS
A. Scope of Aetna’s Duty Under the Policy
Under Florida law, the construction of an insurance policy is a question of law for the court. Jones v. Utica Mut. Ins. Co., 463 So.2d 1153, 1157 (Fla.1985); Ellenwood v. Southern United Life Ins. Co., 373 So.2d 392, 394 (Fla.App.1979) (if the facts are undisputed and there is an ambiguity in the policy, the case should be decided by the judge). It is for the jury, however, to determine whether the facts of the case fall within the scope of the coverage as defined by the court. Jones, 463 So.2d at 1157. Aetna argues that the material facts of this case were undisputed and that the district court therefore erred in refusing Aetna’s motion for a directed verdict. We agree. It is undisputed that Aetna refused to pay for counsel in the tax matter. Thus, the central question in the trial was whether the scope of Aetna's duty to defend was broad enough to encompass the suit against the IRS. This was a question of contractual interpretation, which the judge should have decided.
Under Florida law, an insurer’s duty to defend is determined by asking whether the allegations in the complaint fall within the coverage provided by the policy. Trizec Properties, Inc. v. Biltmore Constr. Co., 767 F.2d 810, 811 (11th Cir.1985); Reliance Ins. Co. v. Royal Motorcar Corp., 534 So.2d 922, 923 (Fla.App.1988); Logozzo v. Kent Ins. Co., 464 So.2d 605, 606-07 (Fla.App.1985). If the complaint alleges facts partially within and partially outside the scope of coverage, the insurer is obligated to defend the entire suit. Trizec, 767 F.2d at 811-12. All doubts as to whether a duty to defend exists are resolved in favor of the insured. Id. at 812.
Aetna argues that under the contract it had no duty to bring suit against the IRS. The language of the contract defines Aetna’s duty to defend as follows:
[Aetna] will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages on account of any claim made against the Insured for any Wrongful Act, and [Aetna] shall have the right and duty to defend such claim against the Insured seeking such damages....
This language refers only to claims brought against the insured and does not refer to claims brought by the insured. The policy does not provide that Aetna will bring actions on behalf of the plan or the trustees; it merely provides that Aetna will defend actions brought by third parties against the plan and the trustees. The “damages,” moreover, that Aetna must cover under the policy do not include taxes, fines, or penalties. Aetna, therefore, had no duty to prosecute an action in the tax court defending the plan’s tax exempt status and is not liable under the policy for the fees of plaintiff’s tax attorneys.
B. Expert Testimony
Determinations of the admissibility of evidence are left to the broad discretion of the district court, and this Court will not disturb a district court’s evidentiary rulings absent a clear showing of abuse of discretion. United States v. Roper, 874 F.2d 782, 790 (11th Cir.1989). An expert may testify as to his opinion on an ultimate issue of fact. Fed.R.Evid. 704. An expert may not, however, merely tell the jury what result to reach. Id. at committee notes (merely telling jury what result to reach is not helpful to the jury and therefore is not admissible testimony). A witness also may not testify to the legal implications of conduct; the court must be the jury’s only source of law. United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir.1987); United States v. Baskes, 649 F.2d 471, 479 (7th Cir.1980). Donaldson testified that in his opinion Aetna had a duty to hire tax counsel in this case. See supra, note 4. This was a legal conclusion, and therefore should not have been admitted. The district court abused its discretion by allowing Donaldson to testify about the scope of Aetna’s duty under the policy.
III. CONCLUSION
We REVERSE the judgment in favor of plaintiff and REMAND to the district court for entry of judgment notwithstanding the verdict in favor of Aetna.
. The policy provides that "damages” shall not include "[fjines, penalties, taxes or punitive or exemplary damage.”
. The policy defines "wrongful act” as "[a]ny breach of fiduciary duty by the Insureds in the discharge of their duties on behalf of the Trust or Employee Benefit Plan designated in the Declarations, including any negligent act, error or omission of the Insured in the ‘administration’ of the Trust or Plan designated in the Declarations.”
. The IRS letter stated that the trustees had violated 26 U.S.C.A. § 411(d)(3) of the Internal Revenue Code ("the Code”) by failing to make benefits non-forfeitable for employees terminated in 1976 and 1977. Accordingly, the IRS found that the plan was not exempt from tax under section 501(a) of the Code.
.Donaldson testified as follows:
Q. We talked about the insurance company having a duty to defend here based upon the allegations in the complaint.
A. Yes.
Q. Does that duty extend in this case to [plaintiff's] request that the insurance company retain, and specifically Aetna in this case, retain expert lawyers with expertise in tax areas so as to prosecute this matter with a declaratory] action? If it was necessary in order to completely defend him in this case?
A. Yes. In my opinion it did.
. The court instructed the jury, "[i]n determining whether Aetna adequately and reasonably defended the lawsuit, you must consider whether reasonable defense of the Braddock lawsuit necessarily required litigation of the tax consequences of the trust plan against the Internal Revenue Service.”
. Aetna preserved its right to move for a judgment notwithstanding the verdict by moving for a directed verdict at the close of all evidence. See Fed.R.Civ.P. 50(b).
. In Sokolowski v. Aetna Life & Cas. Co., 670 F.Supp. 1199 (S.D.N.Y.1987), the court held that Aetna had a duty to defend cases brought by plan participants against the plan for breach of fiduciary duties. The case involved the same form Fiduciary Responsibility Insurance Policy involved in the present case, but Sokolowski did not involve a claim for the expenses connected to a case brought by the insured.
. Donaldson’s testimony also was improper because it was relevant only to the issue of the scope of Aetna’s duty under the policy. This issue should not have been presented to the jury. See Part H.A., supra.
. Some lower Florida courts have stated that courts may admit expert testimony on the meaning of an insurance contract. Red Carpet Corp. of Panama City Beach v. Calvert Fire Ins. Co., 393 So.2d 1160, 1161 (Fla.App.1981); Aetna Ins. Co. v. Loxahatchee Marina, Inc., 236 So.2d 12, 14 (Fla.App.1970). These cases, however, appear inconsistent with the Florida Supreme Court cases holding that interpretation of an insurance contract is a question of law to be decided by the judge. See Iones, 463 So.2d at 1157; Smith v. State Farm Mut. Automobile Ins. Co., 231 So.2d 193, 194 (Fla.1970); see also Ellenwood, 373 So.2d at 394.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer: |
songer_casetyp1_7-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
FEDERAL GLASS COMPANY, Appellant, v. Samuel LOSHIN, et al., Appellees.
No. 23226.
United States Court of Appeals, Second Circuit.
Motion Submitted Oct. 4, 1954.
Decided Dec. 3, 1954.
Clark, Chief Judge, dissented.
Irving Levine, Danbury, Conn., for the motion.
Wiggin and Dana, New Haven, Conn., and Corbett, Mahoney & Miller, Columbus, Ohio (Thew Wright, Jr., New Haven, Conn., of counsel), for appellant.
Before CLARK, Chief Judge, and L. HAND and FRANK, Circuit J udges.
L. HAND, Circuit Judge.
The defendants move to dismiss an appeal, taken by the plaintiff from an order that denied its motion for a summary judgment in an action to enjoin the defendants (a) from copying the plaintiff’s trade name and corporate title, (b) to compel them to account for any profits, and (c) to pay damages. (The complaint included a prayer both for a permanent injunction and for an injunction pen-dente lite). The plaintiff’s motion came on to be heard after answer upon numerous affidavits filed by both parties, and upon the plaintiff’s answers to interrogatories ' put by the defendants. Judge Smith denied it in a written opinion, 126 F.Supp. 737, substantially for the reason that the plaintiff had not proved that its trade name had become widely enough known in the defendants’ market before the defendants had themselves begun business. Both parties agree that the order was interlocutory; their difference is whether it is nevertheless within the meaning of § 1292(1) of Title 28 U.S.C.A., as an order “refusing” an injunction. The decisions are not uniform. We held in Raylite Electric Corp. v. Noma Electric Corporation, 2 Cir., 170 F.2d 914, that an appeal lay from such an order, and the Fifth Circuit did the same in International Forwarding Co. v. Brewer, 181 F.2d 49. On the other hand the Third Circuit in Morgenstern Chemical Co. v. Schering Corp., 181 F.2d 160, examined the question with much learning and dismissed the appeal, and it has followed that decision in a later case, Hook v. Hook & Ackerman, Inc., 213 F.2d 122; and Mr. Moore accepts their view. We agree that, as Judge Hastie said in Mor-genstern Chemical Co. v. Schering Corp., supra [181 F.2d 161], our decision was made “without analysis of the problem”; owing to the fact that we mistakenly thought that the question did not demand analysis.
Section 1291 provides for appeals from final judgments of all sorts, necessarily including an appeal from a final judgment denying a permanent injunction. Section 1292 allows appeals from four different kinds of interlocutory orders, of which the first is those “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” If these words be read literally, they appear to us indubitably to cover the denial of a motion for a permanent injunction, regardless of what may be the procedure or grounds of the moving party. Indeed, we do not understand that those, who deny any appeal, think otherwise; they base their interpretation upon the theory that the decision does not settle, and indeed does not even tentatively decide, anything about the merits of the claim; all it does is to hold that, upon the facts as shown, the cause must await a trial. Even were that so, it scarcely seems an adequate reason for disregarding language so unconditional as that of the section; but we do not wish to rely upon that. Under Rule 56(c), 28 U.S.C.A., to be granted a summary judgment, the moving party must show, not only that there is no “genuine issue as to any material fact,” but also that he “is entitled to a judgment as a matter of law.” If the decision is based upon these later words, it is obvious that a denial may finally settle a great deal, for usually a later judge will accept the law already laid down in the same action by an earlier judge. Moreover, to reach such a decision the “discretion of the chancellor” may be “invoked”; “equitable considerations” may be “weighed” ; or the “conclusion” may be “reached with respect to the equity of the claim that a restraint should be imposed.” But, even when the denial is because there is a “genuine issue as to any material fact,” the decision is not confined to deciding that the claim must await a trial, although that of course is one of its results. Subdivision (c) requires the judge to pass upon “the pleadings, depositions, and admissions on file, together with the affidavits” ; and subdivisions (d) and (e) not only provide that the affidavits on both sides “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein”; but also that so far as may be possible all facts shall be decided even though the motion be denied. We cannot escape the belief that the decision involves much more than that it will be better to await' a trial; and this is borne out by a substantial body of decision that the question is the same as that raised by a motion to direct a verdict in an action tried to a jury. For example, in Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 624, 64 S.Ct. 724, 727, 88 L.Ed. 967, the Supreme Court said: “But at least a summary disposition of issues of damage should be on evidence which a jury would not be at liberty to disbelieve and which would require a directed verdict for the moving party.”
It is of course true that the motion is not a substitute for a trial, against the possibility of which courts — ourselves especially — have been solicitous to protest. There always remains the high hurdle over which the plaintiff must leap, who would secure such a judgment: i. e. the record, as it comes before the court, is of necessity limited to evidence that can be put into writing or contained in exhibits; and, as we have never tired of saying, what is left out may be, and frequently is, the most important part. Besides, at least in actions triable to a jury, the handicap is greater even than this; for the court must refuse to decide any issues whose answer admits of reasonable doubt. Therefore, to say, even though the denial has been because there was a “genuine issue of fact,” that nothing is decided, and that nothing can be settled, appears to us an untenable generalization. That everything is not decided is certainly no objection, else denials of preliminary injunctions would also be ex-eluded, and § 1292(1) would be altogether nullified.
Finally, although a preliminary injunction gives the plaintiff relief until the trial, it insures him of nothing more, and he cannot arrange his affairs upon the basis of any protection after the trial. That uncertainty, which may last over a year, may be nearly as serious as the absence of any protection at all. It appears to us therefore that the considerations that presumably moved Congress in 1895 to grant appeals from interlocutory denials of preliminary injunctions— i. e. because it was unfair to leave suitors unprotected pending trial — should be deemed to apply to denials of permanent injunctions. The original omission of any mention of these is readily accounted for by the fact that it was not until 1938, when the New Rules went into effect, that it was possible to move for summary judgment in a Federal Court. Although we are impressed by the high authority of those who take the opposite view, we are not persuaded that we should change our original ruling; and the motion will be denied.
Motion denied.
. Moore, Federal Practice, Vol. 6, pp. 2321, 2322.
. Fishman v. Teter, 7 Cir., 133 F.2d 222, 223; Madeirense Do Brasil S/A v. Stul-man-Emrick Lumber Co., 2 Cir., 147 F.2d 399, 405; Dewey v. Clark, 86 U.S. App.D.C. 137, 180 F.2d 766, 772; Hurd v. Sheffield Steel Corp., 8 Cir., 181 F.2d 269, 271.
. 28 St. at L. 666.
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_civproc1 | 50 | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited federal rule of civil procedure in the headnotes to this case. Answer "0" if no federal rules of civil procedure are cited. For ties, code the first rule cited.
Charles WARKENTIEN and Patricia Ann Warkentien, Plaintiffs-Appellants, v. James J. VONDRACEK and Donna L. Vondracek, Defendants-Appellees.
No. 77-1766.
United States Court of Appeals, Sixth Circuit.
Cause Argued January 31, 1980.
Decided and Filed October 23, 1980.
Robert A. Benson, Cholette, Perkins & Buchanan, Grand Rapids, Mich., Peter J. Johnson, St. Joseph, Mich., for plaintiffs-appellants.
John W. Verdonk, Verdonk & Verdonk, Bangor, Mich., Calvin K. Hubbell, Valparaiso, Ind., for defendants-appellees.
Before CELEBREZZE and KEITH, Circuit Judges, and WISEMAN, District Judge.
Honorable Thomas A. Wiseman, Jr., District Judge, United States District Court for the Mid-die District of Tennessee, sitting by designation.
WISEMAN, District Judge.
The issue to be decided on this appeal is whether the trial court properly granted a judgment n. o. v. for the defendants after a jury verdict finding the defendant-vendors liable to the plaintiff-vendees for the innocent misrepresentations of the defendants’ agent. The Court has thoroughly reviewed the record under the standards required in an appeal from a judgment notwithstanding the verdict, and we conclude that the lower court’s decision should be affirmed.
As stated by District Judge Miles in an excellent opinion that accompanied his order of a judgment n. o. v., this litigation arose from the parties’ perceptions of the use that could be made of a twenty-two acre parcel of land in Van Burén County, Michigan, known as the Rush Lake Campgrounds. The defendants, James and Donna Vondracek, conveyed this real estate to the plaintiffs, Charles and Patricia Warkentien, by means of a land contract executed on May 15, 1971. To understand the misfortunes that befell the plaintiffs after that conveyance, one must understand Act 171 of the Michigan Public Acts of 1970, Mich. Comp.Laws Ann. §§ 325.651-.665 (1975) (current version in Michigan Public Health Code, Mich.Comp.Laws Ann. §§ 333.-12501, 12505-.12516) (1979) [hereinafter cited as the Act]. This Act established a statutory definition of “campground” as a parcel of land where sites are offered for the use of the public “for the establishment of temporary living quarters for 5 or more recreational units.” The range of “recreational units” extends from the traditional tent to the modern recreational “motor home.” The Act does not apply to mobile home parks of the type used for relatively permanent residences; those were covered by an earlier statute, and Rush Lake was licensed for twenty mobile homes under that law. Prior to January 1, 1971, the effective date of the Act, there had been no licensing requirements for campgrounds, and thus the Vondraceks had operated Rush Lake as a campground without significant legal impediment, in addition to maintaining a limited number of mobile home sites pursuant to their mobile home park license.
The defendants were aware of the Act’s requirements, and they knew that Rush Lake would require extensive engineering work in order to comply with the new law and the regulations promulgated under it. During the negotiations that led to the sale, the plaintiffs also familiarized themselves with the Act, and Mr. Warkentien definitely knew about the necessity of upgrading Rush Lake in order to operate it as a campground. The source of his complaint against the defendants is his belief that he would be allowed to operate Rush Lake until January 1974 without fully complying with the Act, in accordance with Regulation 325.1587 of the Michigan Public Health Department’s campground regulations, which provided for the possibility of nonconforming uses until that date. Mr. Warkentien’s expectations were disappointed when the local unit of the health department closed down Rush Lake’s campground operations on July 10, 1971. Mr. Warkentien now claims that the defendants falsely assured him that Rush Lake could continue to operate under the nonconforming use regulation, and that he justifiably relied on this misrepresentation.
Upon a close examination of the record, however, the only reasonable conclusion that can be drawn is that if there were any misrepresentations in this case, they were made by Mr. Les Brown of the local health department unit, and if there was any justifiable reliance, it was based solely upon the misrepresentations of Les Brown. Because Mr. Brown was in no sense an agent of the defendants, they are not liable for the plaintiffs’ injuries, if any, resulting from Brown’s misrepresentations.
THE FACTS
After the Act had been passed in 1970, Mr. Vondracek and his father undertook a number of physical improvements in an effort to bring Rush Lake into compliance with the Act. However, upon the subsequent illness of the elder Vondracek, the defendants decided that it was inadvisable for them to continue the operation of the Rush Lake Campgrounds. They listed the property with LaVern R. Rice, Inc., Realtor. The plaintiffs noticed a newspaper ad placed by the realtor, and the agency referred the plaintiffs to the appropriate salesperson, Mrs. Bernice Rudell, who showed them the property.
In the following month, Mr. Warkentien viewed the property five to ten times, at least once in the company of Mrs. Warken-tien. The Vondraceks and the Warkentiens met several times to discuss the property. Before consummating the transaction, the plaintiffs were advised that the Act was in effect, that it required the licensing of campgrounds, and that Rush Lake Campgrounds was not so licensed.
Prior to committing himself, Mr. Warken-tien, on his own initiative, contacted the Van Burén County Health Department to inquire about the steps he would have to follow in order to obtain a license to operate the property as a campground. He spoke with Les Brown, then director of the Van Burén County Health Department, and they discussed certain problems with the sewer system and the necessity of complying with the requirements of the Act. Accompanied by Mrs. Rudell, the real estate agent, Mr. Warkentien called upon James Brunet, chief sanitary engineer of Van Bu-rén County, at which time Mr. Brunet gave him a copy of the Act. According to the plaintiffs’ testimony, he and Brunet discussed the requirements of the Act that applied to Rush Lake.
As part of his pre-contract investigation, Mr. Warkentien also discussed the matter with his attorney, Warren B. Grosvenor, and, in the presence of Mrs. Rudell, they telephoned Les Brown to discuss the matter of bringing the property into compliance. Mr. Warkentien testified emphatically, at a number of points in the transcript, that in the course of this conversation Les Brown informed him that he could continue to operate the campground in the manner in which it had been operated in the past. In light of the information received in the course of his investigation, Mr. Warkentien entered into renewed negotiations with the Vondraceks. In recognition of the investment that would have to be made in the land because of the requirements of the Act, the Vondraceks agreed to reduce their asking price from $125,000 to $108,000. After consulting with Mr. Grosvenor, the plaintiffs signed a buy and sale agreement for $108,000 on May 8, 1971. Mr. Warken-tien made it very clear in his testimony that his decision to sign the buy and sale agreement was based on the representations Les Brown had made to him during their phone call.
On May 15, 1971, the parties executed a land contract, bill of sale, and seller’s closing statement. These documents are silent on the subject of the use to which the realty could or might be put, and they contain no assurances or covenants that the present use would be permitted to continue or that any statutory requirements had been satisfied or waived.
After the execution of the land contracts, the plaintiffs immediately assumed the management of Rush Lake and began successful operations, enjoying a particularly fruitful July 4 weekend. In a telephone conversation that occurred on July 8, 1971, however, Les Brown informed the plaintiffs that they were in violation of the Act and gave them forty-eight hours to have all recreational units removed from the park, with the exception of twenty units located on the twenty mobile home sites and four recreational units on the remaining property. This directive was confirmed in a letter to the plaintiffs from James Brunet, the sanitary engineer. As a result of this forced reduction in the allowable use of the facilities, the plaintiffs were disappointed in their financial expectations. When other attempts to obtain satisfaction proved unsuccessful, plaintiffs initiated this diversity action on July 9, 1973.
The case was tried before a jury on November 10-12 and 15-16, 1976, on the issues of fraud or misrepresentation. In response to the special interrogatories directed to it, the jury advised the court that it found actionable misrepresentation, but not fraud, by the defendants and their agent in the land contract transaction. The jury further advised that the land contract not be rescinded and that plaintiffs be awarded $162,000 in damages.
Prior to the submission of the case to the jury, the defendants had moved for a directed verdict both at the close of the plaintiffs’ evidence and at the close of all of the evidence. The trial court took these motions under advisement and, after the jury’s verdict, informed counsel that judgment would be entered only after a hearing on the motions. The motions were heard, memoranda were filed, and on July 11, 1977, Judge Miles entered judgment for the defendants.
MISREPRESENTATION
The case was tried to the jury on the issues of fraud or misrepresentation by the defendants in the sale of Rush Lake Campgrounds. The judge submitted special interrogatories to the jury, and the jury found misrepresentation by the defendants’ agent in paragraphs 2 and 16 of the May 8 mutual agreement. The mutual agreement is a three-page document handwritten by La Ver n R. Rice with approval signatures on the last page by Mr. and Mrs. Vondracek, Mr. and Mrs. Warkentien, LaVern R. Rice, and Bernice Rudell, the real'estate agents. Paragraph 2 states:
In reference to contact with Les Brown of Health Dept. & LaVern R. Rice, Realtor, buyer may provide temporary sanitary facilities for travel trailers and shall do so until new facilities are completed.
Paragraph 16 states:
It is agreed that twenty sites are now wired for electric for campers and twenty-two sites more are available with use of extension cords.
According to the plaintiffs, the effect of these two provisions was to mislead them into believing that Rush Lake could be operated as a campground until January 1974 despite its acknowledged deficiencies under the Act, in accordance with the health department’s noncomplying use regulations.
The jury was correctly instructed that under Michigan law, in order to recover for actionable misrepresentation, the plaintiffs have the burden of proving the following elements:
(1) That the defendants or their agents made representations as to material facts which were false in fact; (2) that the representations actually deceived the plaintiffs; (3) that the plaintiffs relied on the representations; and (4) that as a result, the plaintiffs suffered damage.
Essenburg v. Russell, 346 Mich. 319, 78 N.W.2d 136 (1956).
A. False Representation
Assuming that paragraph 2 can even be characterized as a representation by the defendants’ agents to the plaintiffs, the record leaves no doubt that paragraph 2 is simply a memorandum of what all of the parties understood to be the position of the Van Burén County Health Department, as represented by Les Brown. Viewing paragraph 2 in the light most favorable to the plaintiffs, paragraph 2 was, at most, the defendants’ “promise” of what Les Brown would allow in the future. The defendants could not be held liable in tort for their own broken promises of what they would do in the future, and thus there is no basis for finding them liable in tort because Les Brown failed to do what the defendants promised he would do. See Hi-Way Motor Co. v. International Harvester Co., 59 Mich. App. 366, 229 N.W.2d 456 (1975), aff’d, 398 Mich. 330, 247 N.W.2d 813 (1976).
For the same reason, there was no misrepresentation by the defendants in paragraph 16, which refers to the number of sites with electrical hookup capacity. In the first place, there is absolutely no evidence to suggest that this paragraph misrepresented anything, because there was no testimony suggesting that there were not in fact twenty sites wired for electricity and twenty-two sites available with the use of extension cords. However, this paragraph was interpreted by the plaintiffs as another promise that Rush Lake could continue to be operated as it had been before the Act, because the representation that there were forty-two campsites implied that the plaintiffs could continue to operate the camp under the nonconforming use regulation. (I. e., unless they conformed with the Act, or were allowed to continue operations under the nonconforming use regulation, the plaintiffs could use only twenty-four sites: the twenty sites licensed under the mobile home laws, plus the four campsites that any citizen was entitled to, since the Act only comes into play when there are five or more campsites). For the same reasons discussed above, however, promises that Les Brown would allow continued operation in an unlawful manner could not give rise to tort liability on the part of the defendants, as a matter of law.
At this point we have determined that neither of the two items relied upon by the jury in the special interrogatories as the bases of misrepresentation could give rise to tort liability. A reviewing court must look beyond the special interrogatories, however, to determine whether there was some other basis for a finding of tortious misrepresentation to justify the jury’s ultimate verdict. We have scrupulously examined the record in this case, and there is simply no other evidence from which a reasonable person could infer that the defendants or their agents misrepresented anything. The trial judge allowed the plaintiffs every possible opportunity to prove some sort of misrepresentation or fraud, and they were unable to do so at any point in the five days of testimony. Consequently, we do not hesitate to conclude that the plaintiffs failed to produce a prima facie case that an actionable misrepresentation was made by the defendants.
B. Reliance
Assuming arguendo that the plaintiffs had established misrepresentation, they would still be required to show that they relied on the misrepresentations of the defendants. They failed to carry this burden as well, because no reasonable person could conclude that the plaintiffs relied on anyone other than themselves and Les Brown. After Charles Warkentien became interested in the campgrounds, he personally conducted an investigation of the effect that the Act would have upon the continued operation. Before signing the mutual agreement of May 8, Mr. Warkentien, on his own initiative, contacted the Van Burén County Health Department to inquire about the licensing of Rush Lake Campgrounds, talked with Les Brown, revisited the health department, talked with James Brunet, received and studied the Act, and discussed the matter of licensing with his attorney.
No evidence was adduced to support a contention that the Warkentiens relied on any representations of the Vondraceks or their agents which they did not investigate for themselves. Plaintiffs made the decision to purchase Rush Lake Campgrounds on the basis of their own independent investigation and the alleged assurances of Mr. Brown. Indeed, Mr. Warkentien’s own testimony emphasizes again and again the central importance of Les Brown’s alleged assurances. To the extent that the defendants might have reiterated Mr. Brown’s representations, any conceivable reliance by the plaintiffs on those reiterations is insignificant in comparison with their reliance on Les Brown. The plaintiffs did not carry their burden of demonstrating the presence of reliance on representations of the defendants, which is necessary to recover on a theory of misrepresentation. A & M Land Development Co. v. Miller, 354 Mich. 681, 94 N.W.2d 197 (1959).
THE JUDGMENT N.O.V.
In ruling on the defendants’ motions for a directed verdict, the trial court properly recognized that granting them would be tantamount to entering a judgment notwithstanding the verdict under Rule 50(b), F.R.Civ.P. Judgments n. o. v. are legally equivalent to directed verdicts, and the same standards govern the consideration of either. See Garrison v. Jervis B. Webb Co., 583 F.2d 258, 261 n.3 (6th Cir. 1978).
Although it was an error without consequence, the trial court incorrectly applied the federal standard for determining the propriety of a directed verdict. In this circuit, motions for a directed verdict must be considered under the applicable state standards for directed verdicts. Garrison v. Jervis B. Webb Co., supra, 583 F.2d at 261 n.4. However, the Michigan standard for directed verdicts appears to be identical to the federal standard, which is referred to as the “reasonable minds” test. Under this standard, a trial court should grant a motion for a directed verdict when, after viewing the evidence in the light most favorable to the non-moving party, the evidence points so strongly in favor of the movant that reasonable minds could not come to a different conclusion as to the appropriate verdict. The issue raised by a motion for a judgment n. o. v. is whether there is sufficient evidence to raise a question of fact for the jury. A reviewing court must apply the same standards. Morelock v. NCR Corp., 586 F.2d 1096, 1104-05 (6th Cir. 1978), cert. denied, 441 U.S. 906, 99 S.Ct. 1995, 60 L.Ed.2d 375 (1979).
A recent statement of the Michigan standard for judgments n. o. v. is found in Cormack v. American Underwriters Corp., 94 Mich.App. 379, 288 N.W.2d 634 (1979). The Michigan court wrote that:
A judgment n. o. v. on defendant’s motion is appropriate only if the evidence is insufficient as a matter of law to support a judgment for the plaintiff. In reviewing a motion for judgment n. o. v., the Court must give the nonmoving party the benefit of every reasonable inference that could be drawn from the evidence. If reasonable minds could honestly disagree as to whether the plaintiff has satisfied his burden of proof or the necessary elements of his cause of action, judgment n. o. v. for the defendant is improper.
Id. at 636 (emphasis added). This language is virtually identical to the Sixth Circuit’s language in Morelock, and thus we conclude that the Michigan standard for judgments n. o. v. is legally equivalent to the federal standard. See also Caldwell v. Fox, 394 Mich. 401, 231 N.W.2d 46 (1975); Dowell v. General Telephone Co., 85 Mich.App. 84, 270 N.W.2d 711 (1978); Cody v. Marcel Electric Co., 71 Mich.App. 714, 248 N.W.2d 663 (1976). This means that although the trial court erred in not looking to Michigan law, it nonetheless effectively applied the appropriate Michigan standard for directed verdicts.
Looking at the evidence in the light most favorable to the plaintiffs, and without passing on the credibility of the witnesses, we can only conclude that, at most, the plaintiffs established a misrepresentation by Les Brown and their reliance on it. So far as the record discloses, Les Brown was the only person who might have led the plaintiffs to believe that they could operate under the nonconforming use provisions until 1974. Indeed, the lack of any proof in regard to the defendants and their agents is so striking that the plaintiffs’ case would fail to pass muster under the abandoned “scintilla” standard. Although speculation about the reasons for the jury’s verdict would ordinarily be inappropriate, we cannot resist the observation that the jury might have concluded that' Les Brown was somehow the defendants’ agent, despite the total absence of any suggestion to that effect. Absent that explanation, the jury’s verdict is completely inexplicable, unless perhaps it was the result of passion or prejudice, as Judge Miles suggested.
Accordingly, the decision of the lower court is affirmed.
. The lower court’s judgment of July 11, 1977, purported to grant defendants’ motion for a directed verdict, a decision which it had expressly reserved at the end of all of the evidence. Surprising though it may seem, the express reservation of a directed verdict motion does not authorize a district court to direct a verdict contrary to the jury’s decision in the absence of a motion for a judgment n. o. v., Johnson v. New York, N.H. & H.R. Co., 344 U.S. 48, 73 S.Ct. 125, 97 L.Ed. 77 (1952); see Philhall Corp. v. United States, 546 F.2d 210, 213 (6th Cir. 1976); 5A J. Moore, Federal Practice 50.09 (1980). These authorities emphasize that the requirements of Rule 50(b), F.R. Civ.P., must be strictly followed in order for a party to obtain relief under its provisions. The defendants in this case failed to make an express motion for a judgment n. o. v., but simply renewed orally their previous motion for a directed verdict after the jury had been dismissed. Because a directed verdict is legally equivalent to a judgment n. o. v., see Garrison v. Jervis B. Webb Co., 583 F.2d 258, 261 n.3 (6th Cir. 1978), it would elevate form over substance to find that the defendants’ oral renewal of their previous directed verdict motion failed to operate as a judgment n. o. v. motion. Thus, although it would have been the better practice to file a written motion for judgment n. o. v., we are satisfied that the defendants’ oral renewal of their directed verdict motion was, in effect, a motion for judgment n. o. v. under Rule 50(b). For this reason, we will consistently refer to the lower court’s judgment as a judgment n. o. v. Cf. First Safe Deposit National Bank v. Western Union Telegraph Co., 337 F.2d 743 (1st Cir. 1964) (holding that a court may grant a reserved motion for a directed verdict if it acts within the time limit for submitting a judgment n. o. v. motion).
. Although a district court is not required to file an opinion with a judgment n. o. v., the Sixth Circuit has heartily commended the practice. See Garrison v. Jervis B. Webb Co., supra, 583 F.2d at 261 n.3. Judge Miles’ effort is a superlative example of such an opinion, and we have borrowed heavily from it in portions of this opinion.
. The district court concluded that there were no damages, but our disposition of the case does not require this Court to reach that question.
. Les Brown denied that he made these statements, but because the Court is required to view the evidence in the light most favorable to the plaintiffs without passing on the credibility of the witnesses, we will accept the plaintiff’s version of events. See Dowell v. General Telephone Co., 85 Mich.App. 84, 270 N.W.2d 711 (1978).
. Twenty units were permissible because the mobile home license authorized that many mobile home sites, regardless of the type of unit. The plaintiffs were allowed four additional units because anybody could operate four campsites without having to comply with the Act.
. Unknown to plaintiffs’ counsel, Michigan law provides a cause of action for innocent misrepresentation. Although the plaintiffs failed to plead misrepresentation as a cause of action, the trial judge, citing Rule 15(b), F.R.Civ.P., nonetheless instructed the jury on the elements of actionable misrepresentation (as it is called in Michigan), because during the trial, plaintiffs’ counsel had referred to misrepresentation without objection.
. The jury did not identify the agent, but presumably it was either Bernice Rudell or LaVern Rice, the real estate agents.
. The concept of making a promise for a third party poses certain conceptual difficulties, but it is the essence of the plaintiffs’ claim. The plaintiffs were fully aware that the defendants had no authority, legal or otherwise, to authorize Rush Lake’s operation under the noncomplying use regulation, and the alleged misrepresentation can only be described as a promise of what Les Brown, the director of the health department, would do.
. See note 1 supra.
. Judge Miles cited inconsistencies in the jury’s response to the special interrogatories in further support of his conclusion that the jury exhibited “total miscomprehension of the issues in this case." Although the jury stated that both the defendants and their agents committed actionable misrepresentation, it failed to specify the particular misrepresentation of the defendants, as required by one of the interroga-iones. Furthermore, the jury’s $162,000 damage award apparently presumed rescission of the land contract, despite the jury’s recommendation that rescission not be ordered. Although these internal inconsistencies are not necessarily inconsistent with the general verdict, they do support in some measure the trial judge’s conclusion that the jury’s verdict was unreasonable.
Question: What is the most frequently cited federal rule of civil procedure in the headnotes to this case? Answer with a number.
Answer: |
songer_trialpro | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the court's ruling on 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".
MARTIN et al. v. LUSTER.
No. 5584.
Circuit Court of Appeals, Seventh Circuit.
July 17, 1936.
As Amended on Rehearing Nov. 4, 1936.
Charles S. Babcock, of Chicago, Ill., Roy P. Wilcox, of Eau Claire, Wis., and Alfred Beck, of Chicago, Ill., for appellants.
John C. Slade and Charles J. Calderini, both of Chicago, Ill., A. W. MacLeod, of Eau Claire, Wis., and Wm. D. Tatlow, of Springfield, Mo., for appellees.
Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.
EVANS, Circuit Judge.
This appeal is from an order terminating a receivership of a $266,345 fund which it is alleged appellees’ decedent (Frank Llermann) held in trust for appellants. Heretofore appellees, as Hermann’s executors, were ordered to pay this sum to the receiver. The District Court, in the decree appealed from, ordered the return of the money, less expenses, to appellees.
The determinative issue turns upon the nature of the relationship of Hermann, the underwriter of the reorganization, to the new corporation and to the stockholders of the old corporation. The plan of reorganization approved by the court and an underwriting agreement, which was indispensable to the plan, to a large degree establish Hermann’s status which in turn determines his liability and that of the executors of his will.
Hermann undertook to deposit $315,000, which was the sum which it was estimated would be necessary to effectuate the plan. Either as consideration for this sum or as a means to procure it, he was issued 100,-000 shares (all) of the common stock and preferred stock of the par value of $50,000 of the new company. The plan and the underwriting agreement were both consummated and the deposit made. Creditors of the old company were given preferred stock in payment of their claims. They also had the right to sell such stock to Hermann for a certain percentage of cash, which cash came from the above-described fund. Nearly one hundred thousand dollars of this deposit was unused and returned to Hermann after the reorganization. He purchased a great,, many shares of preferred stock from creditors, as the agreement provided, and sold the preferred stock to the company at the same price at which he purchased it. The company later called in all the preferred stock.
During the course of this litigation it has been the contention of appellants that Hermann occupied a trust relation to the old stockholders and to the corporation. As a necessary corollary it is argued (a) that he wrongfully resold the preferred stock to the company whereas he should have retired it gratis, or (b) that he was given the 100,000 shares of common stock, not outright, but as a means to raise the necessary money for reorganization, and the balance of the stock riot sold belonged to the company.
The District Court made findings and conclusions, and also filed a carefully considered memorandum opinion holding no trust relation whatsoever existed. He reviewed the conflicting oral testimony and depositions and the varying pleadings and amendments, and concluded in favor of Hermann’s executors for the following reasons: (1) The amended complaint [which differs from the one on which the former appeal (C.C.A.) 58 F.(2d) 537, arose] makes the alleged trust agreement an incident of the plan of reorganisation (a former complaint made it incident to the underwriting agreement) from which it follows: (a) that such an important item would have been disclosed to the court, 'in the course of effecting the reorganization and certainly should have been so disclosed; (b) such an agreement would have been a material modification of the plan and if undisclosed to it would be in defiance of it; (c) it was four years .before any stockholder suggested that such an agreement existed. (2) Evidence of conversations necessary to establish an agreement with the decedent was not admissible. (3) Since all other agreements were in writing, it is significant that the alleged agreement was not. (4) It was Hermann who deposited the money, and it was he who was issued the stock, just as the written plan provided. (5) Execution of the plan by a special master and a commissioner, under directions of the court, shows the plan was a complete one. (6) Oral testimony given many (eight or nine) years after the event is not reliable. (7) Variance in the material allegations in the original, first and second amended bills; also if the trust in conjunction with the plan existed, it would probably have been alleged in the original bill.
In more detail, the facts are as follows:
The Gillette Rubber Company was in receivership and Hermann appointed one of two receivers in April, 1922. He subsequently became sole receiver. He was a director of the old company and was president (until September, 1929) of the new company, serving also as a director and manager. Mr. Kent, who was chairman of the reorganization committee, submitted an underwriting agreement to Hermann, April 20, 1924, which Hermann accepted the next day. Because of the importance of the terms of this agreement in determining the true facts, we set forth, in the margin, portions of the agreement verbatim. Pursuant to the terms of this agreement Hermann was to deposit $315,000 to effectuate the plan of reorganization, and he was to be issued all (100,000) shares of common stock of the new company and preferred stock of the par value of $50,000 (to cover $35,000, of the $315,000, for reorganization expenses). The plan of re^ organization was approved by the court. May 8, 1925. The plan contained no provision as to stockholders in the old company, but the underwriting agreement did. The plan provided that creditors holding preferred claims in the old company be paid 40% in cash and that general creditors be paid in preferred stock of the new company at the ratio of 300 par value to dollar of claim, and the preferred stock so received could be sold to Hermann at 500 on the dollar of par value (giving them in actuality 150 on the dollar for their claims).
The new company issued a certificate for 100,000 shares of common stock, to Hermann. He immediately broke this lump holding into 49,000 shares to be sold to raise the sum underwritten and 51,000 shares to he placed in a voting trust (of which he evidently held 26,000 shares). Of the 49,000 shares he sold 34,775 shares to old stockholders for $178,927.80; 2,568 shares to others for $12,840, or a total of $191,767.80. The remaining 11,657 shares of the 49,000 block, he held himself and in February, 1929, sold, along with the shares he held in the voting trust block, to Gillette and Hutchens for $21 a share. The common stock (originally planned without par value) was of the par value of $5.40.
Hermann made the deposit of $315,000, and this fund was used as follows: $71,-500.58 was used to pay preferred creditors 40% of their claims against the old corporation; $104,207.60 was paid to general creditors who turned in their preferred stock to Hermann; $35,000 went to the reorganization committee; $6,186.80 was given to non-depositing bondholders for preferred stock given them in payment of their claims. The total disbursements from the $315,000 fund were therefore $216,-894.98, which left an unexpended balance of $98,105.02. This sum was returned to Hermann upon order of court entered upon petition of the reorganization committee and signed by counsel for appellants.
Hermann became very ill in 1929 and severed connections with the company. He disposed of his stock holdings, both common and preferred. The 26,459 shares of common stock (the 11,657 of the 49,000 block and 14,500 of the voting trust, and 302 shares from some other source) he sold to Gillette and Hutchens for $21 per share, a total of $555,639. The preferred stock he sold to the company at half of the $15 par value, or $7.50. Of the preferred stock, he held 17,377% shares, which at $7.50 (50% of par value) amounted to $130,331.25. The, total sales price of all stock interest was $685,970.25. If the transaction of Hermann be viewed as an entirety and the above figures be used in the calculation, it will be found that Hermann profited by approximately $660,843.-07 out of the reorganization of the company for which he was the receiver. In addition he received a salary of $25,000 per year and dividends were paid regularly (5 to 10%) on the common stock.
In order to get a true picture of circumstances of this reorganization, we quote in the margin excerpts from various documents presented in evidence, including the circular letter of July 5, 1924, to stockholders and Hermann’s letter of April 28th.
A case growing out of the same transaction which is illuminating arose in the eighth circuit wherein Gillette, Hutchens, and Gilruth sued Hermann and alleged that he agreed each should have one-fourth of the 51,000 shares in the voting trust and that he had given them only a total of 25,000 (leaving him in control). They, however, purchased the stock from him later, and the Court of Appeals held [Luster v. Gilruth, 60 F.(2d) 751] that the subsequent purchase negatived the charge that they were to share in all the stock he acquired.
A previous appeal was taken to this court [58 F.(2d) 537] from the order appointing the receiver of the trust fund. On that appeal this court held the cause of action against Hermann survived his death and that the District Court in Wisconsin had jurisdiction of the alleged trust; that the stockholders’ cause of action was a class action; and that the allegations of the bill supported the appointment of a receiver. Pertinent portions of that opinion are set forth in the margin.
Chronologically, the facts are:
April, 1922 Hermann appointed one o£ two re- • ceivers for old company.
Jan., 1924 Kent selected as chairman of committee on reorganization.
April 20, 1924 Underwriting agreement submitted by Kent to Hermann and accepted by him, April 21.
June 19, 1924 New company organized.
June 20, 1924 Plan signed by new company.
July 5, 1924 Circular letter to stockholders.
March 25, 1925 Kent and committee petitioned court to approve plan.
May 8, 1925 Plan of reorganization approved by court.
August 1925 Certificate of 100,000 shares of common stock issued to Hermann.
August, 1925 Voting trust of 51,000 shares created, Hermann having 26,000.
Dec. 24, 1925 Before this time Hermann sold 14,-718 shares of preferred stock to company (findings say 15,778 in December and 1,599% afterwards).
Dec. 29, 3925 Resolution of directorate of new company to purchase outstanding preferred stock as it was able.
Dee. 30, 1925 Hermann discharged as receiver.
Feb., 1929 New company had purchased 26,-836 preferred stock, leaving 19,241% outstanding. All shares of preferred stock called for redemption.
Feb. 24, 1929 Hermann sold all common stock (26,-459 shares — 14,500 from voting trust) to Gillette and Hutchens at $21.
March 18, 1929 Charter changed so only 200,000 shares of common stock.
Sept., 1929 Hermann ceased being president of new corporation.
Dec. 2, 1929 First complaint in equity filed on removal to District Court (Started in State court, Nov. 22, 1929).
Jan. 14, 1930 Hermann died.
July 17, 1931 Trust fund receivership set up.
April 7, 1932 Opinion of this court on previous appeal, 58 F. (2d) 537.
Nov. 30, 1932 Second amended bill filed.
March 16, 1935 Order of District Court terminating receivership of trust fund.
Hermann’s profits in the whole transaction from hindsight are:
He deposited pursuant to underwriting agreement $315,000.
for v,-Ilion lie received the following items:
(a) 100,000 shares of common stock of par value $5.40 280,000
(b) Preferred stock of par value of $50,-000 • 35,000
Total $315,000
He was returned between Aug. 29, 1925 and Jan. 9, 192G, from this deposit by order of court after reorganization 98,105.02
$216,894.98
He sold out of the 100,000 shares of common stock
34,775 shares to old stockholders for $178,927.80
2,568 shares to others for 12,840
$191,767.80 191,767.80
The remainder which he did not receive by sale of common stock $ 25,127.18
* * *
He later sold to Gillette and Hutchens 11,657 shares of common stock 244,797
(of the 49,000 portion)
14,802 shares of common stock 210,842
$555,639
He also later sold 17,377% shares preferred stock to company at $7.50 130,331.25
Total he received for stock held (not counting 400 shares turned in for son-in-law’s note) $685,970.25
25,127.18
Net profit, subtracting the balance above $660,843.07
These figures are approximately correct. . There seems to be some slight conflict in the record of the various stock holdings, and therefore the approximation.
Much difficulty, as well as this prolonged litigation, might have been avoided had Hermann been denied the right to participate actively in the reorganization of the company for which he was acting as receiver. There may be instances when the condition of an embarrassed company and the unusual qualifications of the receiver justify an order by the court which permits the receiver to deal, as an adverse party, with the property for which he is a receiver. (See volume 23, Ruling Case Law, “Receivers,” Secs. 83 and 84.) We doubt it. The dual position in which a receiver finds himself, under such conditions, is intolerable. His interests conflict. Jackson v. Smith, 254 U.S. 586, 41 S.Ct. 200, 65 L.Ed. 418. As receiver he is the arm of the court. (Bogert on Trusts, vol. 1, § 14.) He has obtained inside information concerning the future possibilities of the company. As a receiver he represents all the stockholders and all the creditors. The court is entitled to his advice and should be free to rely upon it.
Notwithstanding Hermann occupied such a position he was permitted to become a purchaser of the assets of the corporation and in no small way to direct the amount the creditors should be paid as well as the manner of payment. He held the fate of the stockholders in his hands. It was a case of Hermann, receiver, to protect stockholder, versus Hermann, who was making a purchase the profits from which depended upon the extent to which he could reduce the amount that he paid the stockholders.
The query naturally arises, In what capacity did Hermann act? Was he the receiver when he arranged to organize a new company and acquire the stock thereof? Was he in a position to advise the court as a receiver respecting the fairness of the plan of reorganization wherein he individually was purchaser? We think not.
It is true that an executor or a guardian or a trustee may at times further bids, if permitted to purchase a part or all of the estate for which he is a conservator. Unfortunately, however, there may be times when he will be the only bidder and at other times he may be interested in eliminating other bidders. Hence the rule which forbids such court official from purchasing at such sales. It is a wise and safe rule. Its wisdom has been demonstrated by experience. Bogert on Trusts, volume 3, § 484, p. 1514.
Undoubtedly much of the litigation which has vexed the courts for the last eight or ten years growing out of this reorganization would have been avoided had Judge Luse lived. He apparently had great confidence in Hermann’s ability to conduct this rubber tire business. He, too, was anxious to avoid liquidation and equally desirous of continuing a business which was important to the people of Eau Claire.
In the conduct of a receivership, courts are required to make administrative orders and seldom do the court files completely record all of the understandings and fact representations which are known to the court only. It is for this reason that we observed that much of the trouble would have been avoided had the presiding judge not been called by death.
We must, however, take the situation as we find it. No appeal was taken from the order which allowed Hermann to purchase the assets of the old company and organize a new company. In fact, the court was encouraged to so proceed by those who are now crying the loudest.
Out of this prolonged and bitter legal contest, the issue is over Hermann’s liability as an alleged trustee. Two basic questions are presented. One is a question of fact and the other, one of law. In truth, the issue of fact is largely one of conclusion, (a) Did Hermann receive the common stock with the understanding that he was to sell 49,000 shares of it to old stockholders and apply the proceeds thereof to the retirement of preferred slock which had been issued to creditors of the old companyt (b) Did the evidence of the agreement or understanding conflict with or violate the provisions of the underwriting agreement or plan of reorganization ?
Obviously, if there were no such understanding or agreement, the second question becomes academic. However, in the consideration of the first question, it is perhaps a worthy argument to assert that parties interested in creating a trust fund would have done so in a manner which was valid and binding beyond dispute. Therefore, this second question somewhat affects the determination of the first ques-' tion.
The District Court made a finding to the effect that no agreement creating a trust in 49,000 shares of stock of the new company existed.
If this finding depended solely upon the oral testimony of certain witnesses spoken in open court, we would find ourselves compelled to accept it. A careful statement of the reasons why the District Court rejected the oral testimony of numerous witnesses upon which appellants largely depend as unreliable and untrue, would necessitate our applying the well-known rule that appellate courts must accept the findings of the District Court where there is evidence and reason to support them. Uihlein v. General Electric Co. (C.C.A.) 47 F.(2d) 997.
We are, however, unable to explain or avoid the effect of certain documentary evidence. It seems to us that Hermann’s letter of April 28th established a case from which he cannot escape.
We are satisfied that the plan of reorganization and the underwriting agreement should be construed together. Nor is there in either document anything which would preclude Hermann from accepting 49,000 shares of stock of the new company and validly binding himself to sell them to old stockholders at $5.40 per share and to devote the proceeds to the retirement of the preferred stock. Likewise, we are not much concerned about the form of the documents or the language used in creating this trust. (Bogert on Trusts, vol. 1, § 45, p. 197; In re Grigsby-Grunow (C.C.A.) 80 F.(2d) 478.) We are interested in the fact, not theories of counsel as set forth in different pleadings, briefs or letters.
The underwriting agreement contemplated a more elaborate and detailed plan later on. Both plans left disposition of stock of the new company held by Hermann open to future action by Hermann.
In his letter of April 28th, Hermann elaborated his understanding of the plan, particularly the disposition of the 100,000 shares of stock which were to be issued to him. He also explained his method of securing the cooperation of the old stockholders. He says he was “to use the proceeds from the sale of this stock toward retiring the preferred stock given to creditors.”
When the plan was sent out for approval it was accompanied by a letter, the all-important paragraph of which reads as follows:
“On April 21st, 1924, the bondholders and creditors committees submitted a plan of reorganization to Mr. Hermann which was accepted by him. Under that plan Mr. F. C. Hermann agreed to furnish all the cash requirements and in return was to be given all of the 100,000 shares of non-par common stock in the new company, and he has very generously offered to sell to the stockholders one-half or 50,000 shares at the agreed price of $5.40 per share. The money derived from this does not go to Mr. Hermann personally but is to be used in retiring as many of the unsecured debts as possible at fifteen cents on the dollar, and thus permitting the stockholders to become part owners with him.”
If we ignore for the moment the oral testimony of Catlin, Wilcox, Lange or Kootz and view their sworn statements as entitled to no weight, as the District Judge did, it is still quite impossible, in view of these two letters, one from Hermann and one which the chairman of the stockholders’ committee set out, to conclude other than that Hermann offered to sell 50,000 shares of the common stock at the agreed prices of $5.40 per share and the money derived from the sale of this stock should go, not to Mr. Hermann personally, but was to be used in retiring preferred stock. (Later, the 50,000 sháres were reduced to 49,000 shares.)
As corroboration, it is worthy of note that the creditors were to take part cash and some preferred stock; that the preferred stock was to be retired. There is further corroboration to be found in the action of Hermann. He did set aside a certain amount of stock to be sold the stockholders of the old company. He did offer most of it for sale to said old stockholders. He did use the proceeds thereof to buy preferred stock. He did not, however, retire the preferred stock.
There is-, moreover, the further corroboration which appears in the testimony of Mr. Kootz. Assuming that prejudices influence witnesses to the extent of coloring their testimony, it is worthy of note that Kootz must be aligned on.the side of Hermann. Certainly he was not on the side of the stockholders or creditors of the old company. It was to him that Hermann went to borrow money, and Hermann agreed to pay him half of the profits of' the underwriting transaction. After the transaction was over, Kootz asked for an accounting, and Hermann stated that “the money which he got from the old stockholders in the old company was not his own.” “He accounted to me for profits which he made on the rest of the stock.”
This testimony was given while Hermann was still living.
We are unable to reconcile Hermann’s statement thus made to Kootz with any theory other than that the money derived from the sale of this new stock to old stockholders was to be used in retiring the preferred stock, as proposed by Hermann in his letter of April 28th and confirmed by the letter which was sent out to stockholders when the plan of reorganization was submitted to them. True, Kootz’s testimony was oral. No writing supports his statement. It is, however, undisputed. In view of the fact that it was given before Hermann died, the latter’s counsel was advised of the amounts paid to Kootz by Hermann as profits out of the underwriting deal. If the payments included the profits on this stock, the records would have shown it. Kootz’s testimony, therefore, while oral, was capable of refutation by documentary evidence. It was the statement of a third party aligned, if at all, with Hermann. It was testimony which, if untrue, could have been proved to be false. ' It was not disputed.
It is argued for appellees that the agreement out of which the trust arose violated or conflicted with the underwriting agreement. We think not. The underwriting agreement provided:
“Out of the common stock, the management (was) to make such arrangement as it wishes with the old stockholders to provide them with participation certificates to induce them to consent to the transfer of the property without .foreclosure.”,
Likewise, another paragraph provided that the common stock was passed to Hermann and by him to be used to provide participation certificates for such stockholders of the present corporation as give their consent to the plan of reorganization. Undoubtedly the idea of participation certificates was eliminated because foreclosure took place and the good will and cooperation of the old stockholders were sought in another way. It was both a practical and a happy solution of the problem. It furnished Hermann with cash he sorely desired. Even with this money he used cash of the corporation to meet his obligation. It gave the old stockholders an opportunity to retain their interest in the enterprise. They could purchase common stock in the new company at a figure below that which it was hoped the stock would be fairly worth. Money used to retire preferred stock issued to creditors eliminated those prior lien securities which in turn gave greater value to the common stock. We find nothing in a plan which used the stock for the laudable purpose of acquiring the good will and friendly cooperation of old stockholders and creditors who had it in their power to obstruct, if not defeat, the reorganization, that was inconsistent with an underwriting agreement wherein the then receiver was to have the stock of the new company first issued to him.
It is not necessary to discuss all the arguments advanced by appellees. It is sufficient to say that appellees’ anxiety lest creditors whose claims Hermann purchased might have been defrauded by the plan which contemplated the early retirement of the preferred stock, is unappreciated. Northern Pacific Railway Co. v. Boyd, 228 U.S. 482, 503, 33 S.Ct. 554, 57 L.Ed. 931.
We are equally well satisfied that appellants were not guilty of laches.
There was also corroboration of the appellants’ theory to be found in the plan itself. In other words, the utter unfairness of the plan as Hermann carried it out and in support of which appellees now argue, would have prevented the acceptance of such a plan by the stockholders had it been thus presented to them and too it would doubtless have been rejected by the court.
Credibility of a witness may depend upon the reasonableness of his story.
The facts speak for themselves. Hermann was and had been the receiver of the company for three and one-third years. He occupied a fiduciary position to the stockholders and creditors. He was familiar with the business of the company during the receivership. Its operation had been successful as evidenced by the average net earnings of $400,000 per year. As receiver he was under obligation to deal fairly with all and to take no advantage of stockholders or creditors. Jackson v. Smith, supra. It is also fair to assume that he desired to retain the confidence of the court that appointed him.
Under the plan of reorganization the unsecured debts were to be reduced from $1,600,000 to approximately $240,000. Both the bonded indebtedness and the secured indebtedness were also reduced. In addition, according to appellees’ theory, Hermann was personally to receive without cost all the stock of the new company. In short, the receiver was to close up the receivership by becoming the sole owner of all the stock for which the existing stockholders were to receive nothing. The equity represented by 300,000 shares belonging to hundreds of stockholders for which they had paid ten dollars per share was to be wiped out, and new stock was to be issued, all of it, to Hermann. To accept this theory is to overtax one’s credulity.,
On the other hand, appellants’ version appeals. to us as reasonable. There were outstanding 300,000 shares of stock of the old company of $10 par value per share. They were widely distributed and the stockholders were purchasers of Gillette Rubber Company’s tires. Under the reorganization plan the stock issue was to be one-third that of the old company. Par value was changed from $10 to $5.40. The stockholders of the old company were permitted to purchase stock in the new company, up to 49,000 shares, at $5.40 per share. In view of the reduction of debt and in view of the earning showings, this was a worth while concession to the old stockholders. But if this stock was to be sold to old stockholders at $5.40 who.was to receive the proceeds,- — the company or this receiver? Appellants say the proceeds were to be used to further improve the condition of the company — to retire preferred stock issued to creditors at fifty cents on the dollar. If this plan had been carried out nearly all preferred stock would have been eliminated. • Such a plan would have appealed to the old stockholders who were asked to surrender their stock in the old company. This was the written proposal submitted to them by the chairman of their committee and doubtless resulted in their joining Hermann and others in asking the court to approve th-e plan.
If this were not the understanding, why were 100,000 shares in the new company divided immediately upon their issuance, 51,000 going to Hermann’s voting trustees and hundreds of certificates issued to old stockholders who even at that earlier date h-ad subscribed for them? How did it happen that the price was $5.40 to them if there was no existing agreement on Hermann’s part to sell to old stockholders at this figure? The issuance of this stock was on the date the books of the new company were opened. Equally significant is the fact that the proceeds were used to acquire preferred stock issued to creditors under the option provision therein appearing. But the preference stock was not cancelled. It was not retired. Notwithstanding Hermann in his letter of April 28 used the word “retired” this stock thus purchased was held by Hermann as his own and he later offered it to the directors with the threat that if they did not buy it for the corporation he would sell it elsewhere for a higher price. Now, it is argued from the fact that the directors paid Hermann for this stock out of company funds there could have existed no obligation on Hermann’s part to retire the preferred stock from the proceeds of the sale of the common stock.
An examination of the records of the company in respect to this transaction does not support any such deduction. Nor does the study add respect for Hermann’s methods. There were seven directors. Hermann was one. He was president of the company. At the time he offered this stock to the directors he held the stock control. Four of the directors were on salaries the continuation of which depended on Hermann. One of the four received a salary of $25,000, two received $12,000, and one, $9,000, per year. Moreover, another director had a secret agreement with Hermann to share in the profits from the transaction whereby Hermann acquired the stock of this company. Of the two remaining directors nothing is shown indicating limited or restricted capacity to act freely. One protested and stated that he understood the preferred stock purchased from funds • derived from the sale of 49,000 shares of common stock was to be retired. He was advised that the right to enforce this obligation on • Hermann’s part rested with the stockholders and not with the corporation, and that the directors should purchase the stock “for it was worth more.” This action, aside from the irregularity arising out of a president’s dealing with his own company where directors were under his influence, shows that there was an impression, to put it mildly, that these 49,000 shares were transferred to Hermann in trust.
Had the claim .been asserted by the directors it would not have established the existence of a trust anymore than failure to so assert it negatived the existence of a trust. Its only significance lies in the fact that there, was an expressed belief by one of the directors that such a trust existed. He was silenced by an awesome statement that “the law” did not recognize the authority of the corporation to enforce the rights of stockholders.
Transactions with the Deceased. While our conclusions are based largely if not entirely on Hermann’s letter of April 28 and the circular letter which was sent with the copy of the plan of reorganization, to all the stockholders including Hermann, there is strong support in favor of the existence of the trust to be found in the deposition of Kent and the oral testimony of one Doctor Runnels, which were excluded by the District Court on the ground that such statements violated section 325.16 of the Wisconsin Statutes.
Kent was an officer of a Chicago bank which carried the old Gillette Rubber Company’s account. When that company became financially involved, Kent became chairman of a bondholders’ and also the creditors’ committee. He was not personally interested in either stocks or bonds or other claims against the Rubber Company. He actively participated on behalf of the creditors in the receivership proceedings, and also was active in the preparation of the underwriting agreement as well as in the plan of reorganization. Shortly after Hermann wrote the aforesaid letter of April 28 to Attorney Gilruth, who was attorney for this bondholders’ protective committee, Kent testified to Hermann’s seeing him in Chicago, in his bank in reference to the proposal contained in Hermann’s letter of April 28.
It was this conversation which was excluded. That it was important and most persuasive can not be doubted. Kent said that in this conversation he suggested two or three modifications to Hermann’s proposal, appearing in the letter of April 28. He suggested that the per cent of stock of the new company to be sold to the old stockholders should be reduced from fifty to forty-nine per cent thereby giving absolute control to Hermann. He also stated that the dollar mentioned in said letter be eliminated; that the price fixed for the stock be $5.40 instead of $5, forty cents to be used to cover expenses, etc. And most important of all, he said Hermann confirmed his offer to sell forty-nine per cent of the stock to old stockholders and use the proceeds to retire preferred stock. The exclusion of this testimony was on the ground that the witness was not competent because (section 325.16, Wis. Statutes) he related a transaction with a deceased person. As we construe the decisions, the Wisconsin Supreme Court has ruled otherwise in Dilger v. Estate of McQuade, 158 Wis. 328, 148 N.W. 1085; Lowry v. Lowry, 211 Wis. 385, 247 N.W. 323, 248 N.W. 472. In other words, according to these decisions, Kent was not a party through whom appellants traced their cause of action.
The ruling on Doctor Runnel’s testimony turns on a different fact situation. The testimony by him given and which was stricken would have been objectionable on the ground that he was an incompetent witness due to said section 325.16, had it not been for the fact that he was placed upon the witness stand by the appellees as their witness, and the door was thus by them opened to permit the introduction of his testimony on cross-examination. He was asked on direct examination, respecting a letter which he wrote to Hermann. On cross-examination he was asked about a statement appearing in said letter.
There was oral evidence of five or six other witnesses, all to the same effect, which corroborates appellants’ theory of the existence of a trust. They testified to conversations with Hermann or to having heard Hermann state that as part of the plan of reorganization he was to sell 49,-000 shares of the stock to old stockholders at $5.40 per share and to use the proceeds to retire the preferred stock. We would have felt inclined, however, to accept the District Court’s finding on this issue if appellants’ case rested entirely upon oral testimony of witnesses, given in open court, exclusive of Kent’s. That which makes appellants’ case irresistible are the two written documents. They furnish unimpeachable support for the testimony of the other witnesses. The addition of the Kent testimony leaves us convinced beyond all reasonable doubt.
The question of relief — the amount of liability — is also before us. What is the amount for which appellees- must account ?
There is no ground for compromise as we view it. Either there was a trust which Hermann violated or there was no trust. If there existed a trust, then the estate of Hermann must respond to those in whose favor it ran. The decision of the Supreme Court in McCandless v. Fur-laud, -296 U.S. 140, 56 S.Ct. 41, 80 L.Ed. 121, has removed one more obstacle to the enforcement of liability against recreant trustees.
As we view this suit it was one in equity to enforce a trust. It had possession of the res — the proceeds derived from sale of property which was held in trust. Its powers were therefore plenary.
Hermann was to sell 49,000 shares of stock to old stockholders at $5.40 deducting a fair sum therefrom for trouble and expense. There is some evidence to indicate this deduction should be 40$ and we accept this figure. He sold 37,343 shares and should have devoted the proceeds to the retirement of preferred stock. Fie must account for the proceeds, together with interest at 6% from November 15, 1925, to November 15, 1929, the date of the receivership and the date when the funds were tied up in this suit.
The balance of the stock he did not sell. The determination of his liability therefor has given us no little trouble. Hermann, as trustee, was under obligation to sell all of the 49% of the stock of the new company and retire new preferred stock. He only sold 37,343 shares. He retained 11,657. Had he sold this stock he could have retired $58,285 of the preferred stock. Ordinarily then, his liability would be $58,285 plus interest at 7%. The interest rate is fixed at 7% because that was the dividend rate of the preferred stock. On the other sum the interest is fixed at 6% because that is the legal rate in Wisconsin.
The market value of the 11,657 shares which Hermann withheld rose from $5.40 to $21 per share, and its influence on Hermann’s liability is what troubles us.
The stockholders’ damage was represented by Hermann’s failure to retire the preferred stock without cost to them. As a matter of fact the corporation did retire all of its stock. It used its earnings to do so when Hermann should have retired part of it without cost to the corporation. Attempting now to enforce the trust, the court can only compel Hermann to account for the part he failed to do — retire so much of the 7% preferred stock as could have been purchased through the sale to old stockholders of 11,657 shares. He must therefore account for $58,285, with interest at 7% from November 15, 1925, to November 15, 1929.
The interest allowance on both sums shall be compounded annually.
Appellees ask for a diminution of liability to the extent of $71,500.58 paid to preferred creditors by Hermann.
Appellants have sought reliei in a court of equity where they have demanded the creation and enforcement of a trust. Seeking equity they should offer to do equity. Maxims which impose upon the party who seeks equity the duty of coming into equity with clean hands and offering to do equity are particularly applicable. All stock which Hermann was to sell was not sold, and the preferred stock in the new company was not retired as the plan of reorganization required. However, Hermann did pay preferred creditors, and therefore we think his executors should be allowed a reduction of liability of the amount thus paid,.to wit, $71,500.58.
The decree of the District Court is reversed with directions to the District Court to enter one in accordance with the views here expressed and to make such allowance for attorney’s fees and costs as may be just and proper and as the equities demand. The decree shall fix the amount of appellees’ liability as follows: From the amount which Hermann received from the sale of the common stock, there shall be deducted $71,500.58, the amount Hermann paid to preferred creditors. The balance shall draw interest from November 15, 1925 to November 15, 1929, at. 6% compounded. To this sum should be added $58,285 with interest at 7% from November 15, 1925, to November 15, 1929, compounded. Appellants shall recover their costs in this court.
“Management Underwriting Plan Submitted to F. C. Hermann by H. R. Kent in Behalf of Creditors and Bondholders.
“3. Disposition of Common Stock: To be given to the management for its underwriting the cash requirements and its obligation to undertake the management and supply the new company with customers. * * *
“Out of the common stock, the management to make such arrangement as it wishes for the old stockholders to provide them with participation certificates to induce them to consent to the transfer of the property without foreclosure. (Foreclosure took place.) * * *
“6. Reorganization Expenses: The corporation shall issue $50,000.00 * * * Preferred Stock which shall be purchased by the management at 70, or * * * $35,000.00. * * *
“The -other cash requirements of the plan, to-wit, the sum of $280,000, or such portion thereof as may be necessary to pay cash to those preferred creditors and general creditors who shall elect to take cash under the plan, shall likewise be payable on demand to the Reorganization Committee by the underwriter upon delivery of the proportionate amount of bonds and preferred stock provided for preferred and general creditors and released by such preferred and general creditors as elect to fake cash instead of the securities offered.
“7. Management of New Corporation: The new corporation shall be under the management of F. C. Hermann who agrees to secure satisfactory personnel and who will receive all the shares of the common stock of the new corporation without par value, a part of which common stock shall be used to provide participation certificates for such stockholders of the present corporation as give their consent to the plan of reorganization; and for the further purpose of securing to the new corporation satisfactory department heads and other managerial personnel in whatever manner the said F. C. Hermann may decide, and for his own interest in the new corporation. * * *
“8. Underwriting: F. O. Hermann agrees to purchase all preferred stock offered to general creditors at the proportionate price indicated, viz., for each $30.-00 par value of preferred stock, the sum of $15.00, and for the total of $50,000.00 par value of Preferred Stock, the sum of $35,000.00 to be used for reorganization expenses * * * — all such sums to be paid by the underwriters for preferred stock offered to creditors and released by them on their acceptance of cash instead, and the sum of $35,000.00 upon demand by H. R. Kent as aforesaid, and the cash to be paid to said H. R. Kent for creditors who exercise their option to take cash, promptly upon the delivery to the underwriter of the certificates for stock released by creditors taking cash in lieu thereof.”
“Plan of Reorganization.
“ * * * Article III. Offer to Creditors of the Old Company.
“1. To the holders of bonds of the Old Company, * * * 60% of the par value * * * in bonds * * * an(j * * * 15% * * * in cumulative 7 percent preferred stock * * * of the new Company. * * *
“2. The new Company offers to holders of preferred claims * * * 60% .of such claims in bonds of the New Company and * * * 40% in cash.
“3. To unsecured creditors * * * 30% * * * of their claims * * * in said first preferred cumulative stock (See Article V. for cash option).
“Article IY. New Company to Retain Hermann Management. Management of the New Company.
“The success of this Plan is predicated upon the ability and showing made by F. C. Hermann, who has acted as Receiver of the Old Company, * * * that he, personally, as the result of such organization, (which he has- built up) can secure to the new enterprise. Mr. Hermann has executed an agreement to underwrite the cash requirements «4 the New Plan and to devote himself to the management of the new Corporation.
“Article V. New Money Furnished by F. C. Hermann. Underwriting.
“F. C. Hermann has agreed to advance cash and underwrite the financing of this Plan to the extent of $315,000. In return for said advances he is to receive all of the common stock, $50,000 par value preferred stock at * * * 70% face valU6. # sS ♦
“He also agrees to purchase any of the preferred stock taken by unsecured creditors at fifty per centum of the face value thereof, in ease any unsecured creditors shall so elect and shall make his election known within ten * * * days after the distribution of such preferred stock. * * *»
Unsigned Addenda to plan as submitted to court:
“Stockholders.
“The stockholders under the above i>lan deal directly with Mr. F. C. Hermann under Article IV of the plan. 100,000 shares of non par stock are to be issued to Mr. F. C. Hermann. The stockholders may acquire up to 50,000 shares at a price of $5.40 per share. The money derived from stockholders less a reasonable expense is t« be used in retiring creditors claims at $.15 on the $1.00 and cancelling the preferred stock that is to be issued for tbe same account.
“$100,000 is to be paid to stockholders who have deposited their stock, said payment to be made out of earnings of the new company and evidenced by participating certificates.
“The above plan is the offer of Mr. F. C. Hermann to the stockholders.”
Letter Mailed to Stockholders with Plan.
“ * * * July 5th, 1924.
“To the Stockholders of the Gillette Rubber Company:—
“We are glad to report to the stockholders of The Gillette Rubber Company that a plan agreeable to practically all the diversified interests has been agreed upon * * # (It) was a huge task. We have worked unceasingly for * * * two years to accomplish something for the stockholders and have always had their best interest in mind. * *
“We early recognized that Mr. F. C. Herman was necessary to any plan which we could honestly recommend to the stockholders, and we have at all times understood Mr. Herman’s feelings with respect to such stockholders as were willing to help themselves and the stockholders today are offered an equal opportunity with Mr. Herman in the ownership of this business.
“We also recognized that the bondholders had the first claim * * * that the unsecured creditors came next and in the payment of these two classes of debtors (creditors) there would be nothing left for the stockholders.
“On April' 21st, 1924, the * * * committees submitted a plan * * * to Mr. Herman which was accepted by him. Under that plan Mr. F. O. Merman agreed to furnish all the cash requirements and in return was to be given all of the 100,-000 shares of non-par common stock in the new company, and he has very generously offered to sell to the stockholders one-half or 50,000 shares at the agreed price of $5.40 per share. The money derived from this’ does not go to Mr. Herman personally but is to be used in retiring as many of the unsecured debts as possible at fifteen cents on the dollar, and thus permitting the stockholders to become part owners with him.
“In addition to this the stockholders will get something for their old stock. Mr. Herman has ' agreed that the new company shall pay to the stockholders who deposit their stock in the old company, $100,000 out of the earnings of the new company, to be evidenced by participating certificates. (This provision became inoperative) * * * The preferred stock in the new company will be materially reduced by payment of unsecured debts at fifteen cents on the dollar. * * *
“Yours very truly,
“D. S. Runnels.”
“April 28th, 1924.
“Mr. I. T. Gilruth, (sometimes counsel for receiver)
“c/o Henry J. & Chas. Aaron, (counsel for creditors’ committee)
******
“Dear Mr. Gilruth:—
“I received the copy of the agreement and noted, and I guess we understand each other thoroughly.
“In regard to the underwriting will say fay idea is about as follows: Take 50% of the 100,000 shares, which would be 50,000, sell that amount to the old stockholders, if they want it, at $5.00 per share, — and use the proceeds from the sale of this stock towards retiring the Preferred Stock given to creditors. * * * This would give the old stockholders the proposition they have wanted all the time, to get some Common Stock that is a permanent investment. * * * this plan is open for discussion, and if you think of something better, let’s have it.
“Very respectfully,'
“Frank C. Hermann (Signed)”
“April 24, 1924
“Mr. H. R. Kent
******
“Dear Mr. Kent:
“Received yours of the 23rd and noted. We will have no trouble at all-in financing the proposition. I think I have my plans so arranged that I can furnish the money promptly as needed. . I am making a proposition to the old stockholders to give them a chance to come in on the new deal, and I-feel sure it will go through.
“Very respectfully,
“Frank C. Hermann.”
“January 23, 1925.
“Mr. Frank C. Hermann,
******
“Dear Mr. Hermann:
“ * * * Under • the plan all of the common stock was given to you. Under our law, we do not have to * * * secure a permit where the stock is to be subscribed for by twenty-five people or less. In our case, which is the common stockholder’s case, there was nothing for them except such stock as you, individually, cared to let them in on. You .personally agreed, as I understand it, with the reorganization committee to finance the deal and in consideration for that you were given all of the common stock. Now, it was optional with you as to whether or not any stockholder should get a penny or even an opportunity to purchase the common stock, and under
your agreement with us the amount of common stock which we subscribed,, the money which was paid for the same was not taken by you but used in the retiring of obligations under the settlement with the creditors and others and the sale of the stock amounted to a re-sale only. * * *
“Yours very truly,
“M. Gatlin”
“That the facts set forth in the complaint state a good cause of action against Hermann in favor of some one is too plain for argument. It is likewise apparent from the facts alleged that Hermann should be charged as a trustee of the funds by him received from the stockholders, if such funds can be traced, and the rights of third parties have not intervened.
“Equally clear is our conclusion that the cause of action for which relief is sought belonged to appellees as stockholders and not to the corporation, the Gillette Tire & Rubber Company.
“We do not mean to hold that the corporation, as a third party beneficiary to such an agreement as Hermann and the stockholders entered into, may not (at least in Wisconsin, Sedgwick v. Blanchard, 3(54 Wis. 421, 1(50 N.W. 2(57) enforce its rights in a direct suit brought by it on said agreement. But appellees’ cause of action was not traceable to nor dependent upon the company’s cause of action. It arose out of an agreement which was entered into before the company was created, and was likewise independent of the rights of the company, and, therefore, enforceable, regardless of the company’s consent, opposition, or indifference.
“This disposition of the appeal, it is needless to add, is based upon the facts presented by the record before us. The appeal is from an interlocutory or'’er made upon a showing by affidavits. The trial on the merits may change the fact situation so as to necessitate new and different findings respecting the agreement made by Hermann with the stockholders when they purchased the common stock. Nothing said in this opinion is intended to foreclose the full presentation and determination of that issue upon the triaL”
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_numappel | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
W. E. HEDGER TRANSP. CORPORATION et al. v. IRA S. BUSHEY & SONS, Inc.
No. 252.
Circuit Court of Appeals, Second Circuit.
April 30, 1946.
Rehearing Denied May 23,1946.
Horace M. Gray, of New York City, for appellants.
Christopher E. Heckman and Foley & Martin, all of New York City, for ap-pellee.
Before L. HAND, SWAN, and FRANK, Circuit Judges.
L. HAND, Circuit Judge.
The plaintiffs appeal from a. judgment, dismissing their complaint for lack of jurisdiction over the subject matter appearing upon its face. The Hedger Company is a New York corporation, and so is the Bushey Company; the plaintiff, Hedger, is a citizen of New Jersey, and owns all the shares of the Hedger Company. The complaint alleged that in July, 1932, Hedger and the Bushey Company agreed upon the joint operation of barges and tugs in New York Harbor; and that in December, 1938, the Bushey Company asserted that the Hedger Company owed it about $400,000, as a result of the venture up to that time. The Bushey Company thereupon transferred the barges and tugs to the Hedger Company for $200,000,, taking in payment a mortgage for $600,000, made up of the debt and the purchase price. In July, 1942, the Hedger Company executed a second mortgage for about $100,000; and on February 10, 1945, the Bushey Company brought a suit in the admiralty in the Eastern District of New York to foreclose these mortgages for a deficiency of about $74,-000; in which a decree of foreclosure was entered on March 8, 1945, upon consent of the Hedger Company. The gravamen of the complaint, which was filed on April 4, 1945, is that the plaintiffs were forced to consent to the foreclosure because the Bushey Company threatened to seize the vessels and ruin their business, since such a seizure would have resulted in the vessels’ remaining idle while the suit was being tried. The complaint alleged that in fact nothing was due upon the mortgages, as an accounting would show; but, since the account would have taken a long time to state, the plaintiffs' could not afford to wait, and were forced to pay the demand under duréss. This constituted a ground for vacating the decree and demanding an accounting. The complaint also alleged incidental damages of $30,000 arising from the seizure, and a return of two payments of $4,900 each, paid by the Hedger Company upon the mortgages under a mutual mistake of fact. The judge dismissed the complaint on the ground that the only relief open to the plaintiffs was by a “libel of review” in the foreclosure suit; and that for that reason the district court had no jurisdiction in an ancillary action in the nature of a suit in equity.
We have jurisdiction over the appeal, because the judgment finally disposed of the action, although it left it open to the plaintiffs to bring a “libel of review,” or any other proceeding in the foreclosure suit which they might think best. This the plaintiffs refuse to do, because they believe that they cannot secure the necessary relief in the foreclosure suit, even if the decree were vacated. Hence they insist that an ancillary suit lies in equity without the necessary diversity of citizenship. We think that all the relief which the district court had jurisdiction to grant in any form will be open in the foreclosure suit, if the decree is vacated; and that the complaint should have been treated as a petition in that suit to that end, and should not have been dismissed for what was at worst only a defect of form. We do not understand why anything more was necessary than such a petition: that is, why it was necessary, or indeed proper, to resort to a “libel of review.” Rule 5 of the Rules of the District Court for the Eastern District of New York extends each term for ninety days from the entry of the judgment, so that on April 4, 1945, when the complaint was filed, the plaintiffs might have moved directly in the foreclosure suit itself. A “libel of review,” like its analogue a “bill of review” in equity, will lie only when other relief is not open to the party aggrieved. However, since this, as we have said, is only matter of form, it should be disregarded, unless there are matters of substance, which demand an ancillary suit. The plaintiffs insist that there were two such matters: first, a court of admiralty has no power to grant all the relief to which they will be entitled; and second, the grant of a petition to vacate the decree rests in the discretion of the district court. We shall consider these objections in that order.
Before the decree of foreclosure can be vacated, the question must be answered whether the Hedger Company owed the Bushey Company the amount which it actually paid. We assume that this will require an accounting, and the first question is whether it may be had in the foreclosure suit. It is true that a court of admiralty will not entertain a suit for an accounting as such: as, for example, an accounting between co-owners of a vessel, or between maritime adventurers, or between principal and agent, and so on. The Steamboat Orleans, 11 Pet. 175, 182, 9 L.Ed. 677; Minturn v. Maynard, 17 How. 477, 15 L.Ed. 235; Vandewater v. Mills, 19 How. 85, 92, 15 L.Ed. 554; Grant v. Poillon, 20 How. 162, 15 L.Ed. 871; Ward v. Thompson, 22 How. 330, 16 L.Ed. 249; The Larch, Fed. Cas.No.8,085; The Zillah May, D.C., 221 Fed. 1016; The Red Wing, D.C., 10 F.2d 389. (It may be doubted whether Metropolitan S. S. Co. v. Pacific-Alaska Nav. Co., D.C., 260 Fed. 973, is in accord with these decisions.) Nevertheless, it has never been true, when an accounting is necessary to the complete adjustment of rights over which admiralty has independent jurisdiction, that it will suspend its remedies midway and require the parties to resort to another court. Thus, when an accounting was necessary to determine a fisherman’s “lay,” or share of the catch, Lowell, J., entertained the suit, although the statute passed for that purpose — R. S. § 4391, 46 U.S.C.A. § 531 — did not apply. The Carrier Dove, D.C., 93 F. 978. In The I. S. E. No. 2, 15 F.2d 749, the Ninth Circuit took jurisdiction in a similar case without noticing the statute. On the other hand in 1830 in The Fair Play, Fed.Cas.No.4,615, Betts, J., refused to entertain the libel of a seaman for wages which involved an accounting, and Mr. Justice Thompson affirmed the decree; but the libel was in rem and the actual decision was merely that a seaman’s lien for wages is only for an “adjusted balance.” It is only fair to add, however, that Judge Betts thought even a libel in personam “exceedingly doubtful.” In The John E. Mulford, D.C., 18 F. 455, one part owner filed a libel for the sale of the vessel and partition of the proceeds, as an incident to which Judge Brown entertained an accounting against the parties who had operated the vessel before the sale. He put his decision upon the ground that, although a suit for an accounting alone would not have lain between the parties, when an accounting became necessary to the winding up of a suit over which the admiralty had independent jurisdiction, the court would state the account. For this he relied in part upon the opinion of Judge Ware in The Larch, Fed.Cas.No.8,086. Although Mr. Justice Curtis reversed that decree in The Larch, supra, Fed.Cas.No.8,085, it was because he did not think that admiralty had jurisdiction over the principal controversy. Judge Cross followed Judge Brown in The Emma B., D.C., 140 F. 771; and Judge Cushman recognized the doctrine in The Zillah May, supra, D.C., 221 F. 1016. Clearly a court of admiralty at times must state accounts as an incident to the disposition of suits within its cognizance: general average is one instance, and salvage is another. In the case at bar the foreclosure suit was brought under § 951 of Title 46, U.S.C.A., and it would be impossible to enforce the statute, if the suit must be halted every time a question of accounting arose as to the amount due upon the mortgage.
We have no doubt therefore of the power of the admiralty to state the account between the mortgagor and the mortgagee at bar, had the issue arisen in the foreclosure suit itself; and also no doubt of its power to state it upon the issue whether the decree should now be vacated. The same is true as to the restitution of any balance which, after stating the account, the court may find to have been an overpayment by the Hedger Company to the Bushey Company, extorted by duress, or abuse of process; no ancillary action is • necessary for that purpose. The same is not, however, true as to any damages which may have been caused by abuse of process, as alleged in the 67th Article of the complaint. The recovery of these would be a separate cause of action; they would result from a tort, over which the admiralty would have no jurisdiction. Restatement of Torts, § 682. Such a tort is as little “ancillary” to the foreclosure suit, when asserted by a bill in equity, as in the foreclosure suit itself. Since the district court has no independent jurisdiction over that controversy, the plaintiffs must be relegated to the state court for relief; for this cause of action is not within Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148, assuming that that doctrine applies to a suit in admiralty, which we do not decide. The same is true of the payments, alleged in the 68th and 69th Articles of the complaint to have been made under a mutual mistake of fact. They will of course figure in the account of what is due under the mortgage, but as ground for an affirmative recovery they are as separate causes of action as the claim for damages caused by the putative abuse of process. In respect to these claims the complaint must be dismissed for lack of jurisdiction.
There remains the plaintiffs’ second ground: that the relief possible in an ancillary suit in equity will not be discretionary, like that under a petition to vacate the decree in the foreclosure suit itself. That is indeed a strange argument. The discretionary nature of the jurisdiction to vacate a decree once entered, is designed to prevent too ready unravelling of judgments; it is to avoid putting a premium upon continued litigation, and to promote considerateness in judicial decision. The fact that the same relief is demanded by a separate action can make not the slightest difference in that hesitation which the court should feel at vacating a judgment. Precisely the same considerations are relevant; and they have precisely the same weight. Indeed, more answer to the argument seems hardly necessary than to remember that, in order to lie at all, such a bill in equity must be “ancillary” to the foreclosure suit.
What we have said disposes of the appeal, so far as concerns the Hedger Company, but not as to Hedger individually. Since he is a citizen of New Jersey, the district court would have had substantive jurisdiction of the action as to him, had he sued alone; but since he joined the Hedger Company, rated as a citizen of New York, he deprived the court of jurisdiction based upon diverse citizenship. Strawbridge v. Curtis, 3 Cranch 267, 2 L.Ed. 435. Clearly he could not join in a petition to vacate the decree in the foreclosure suit. The judgment of dismissal for lack of jurisdiction over the subject matter will therefore be affirmed as to him. It will, however, be reversed in favor of the Hedger Company and the cause will be remanded with instructions to treat the complaint as a petition in the foreclosure suit to reopen the decree upon the grounds therein alleged, on whose sufficiency, however, we are not to be understood to pass. Our decision is no more than that the admiralty court had jurisdiction in the foreclosure suit to give all the relief that the district court had power to give in any capacity, and that it was possible and proper to treat the complaint as a petition in that suit for all such relief, though for no other relief.
At the risk of repetition and in the interest of clarity we will recapitulate what we decide.
(1) The judgment will be affirmed as against Hedger, individually.
(2) The judgment will be reversed as to the Hedger Company.
(3) The complaint will be treated as a petition in the foreclosure suit to vacate the decree of foreclosure upon the grounds which it alleges.
(4) The admiralty court has jurisdiction to state the account between the parties, and to fix the amount due upon the mortgage, if any; also to direct restitution of any sum which the mortgagee may be found to have collected from the mortgagor in excess of that amount.
(5) The complaint will be dismissed for lack of jurisdiction as to any relief which could be granted under the allegations of the 67th, 68th, and 69th Articles.
(6) No costs will be awarded on this appeal.
Judgment reversed; and cause remanded for further proceedings consistent with the foregoing.
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_appel1_7_5 | F | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
Gary WILSON, Plaintiff-Appellant, v. STROH COMPANIES, INC., a Delaware corporation; Stroh’s Ice Cream Company, a division of the Stroh Brewery Company, an Arizona corporation, Defendants-Appellees.
No. 91-1430.
United States Court of Appeals, Sixth Circuit.
Argued Nov. 8, 1991.
Decided Jan. 6, 1992.
Rehearing and Rehearing En Banc Denied Feb. 21, 1992.
Marilyn A. Madorsky argued & briefed, Provizer, Eisenberg, Lichtenstein & Pearl-man, Southfield, Mich., for plaintiff-appellant.
David B. Calzone, Virginia F. Metz argued & briefed, Butzel, Long, Gust, Klein & Van Zile, Detroit, Mich., for defendants-appellees.
Before MERRITT, Chief Judge, GUY, Circuit Judge, and BROWN, Senior Circuit Judge.
BAILEY BROWN, Senior Circuit Judge.
Plaintiff, Gary Wilson, appeals the district court’s grant of summary judgment in favor of Defendants, Stroh Companies, Inc. and Stroh’s Ice Cream Company (collectively “Stroh’s”), in this Title VII employment discrimination case. For the following reasons, we affirm the district court’s grant of summary judgment in favor of Stroh’s.
I
Stroh’s employed Wilson, who is black, from January of 1978 until October 9,1987. During September of 1987, Stroh’s established new, staggered work schedules for employees, including Wilson, at its Detroit ice cream plant. It changed Wilson’s former 6:00 A.M. to 2:00 P.M. shift to 11:00 A.M. to 7:00 P.M. The union complained that the later starting time interfered with union steward Wilson’s ability to interact with union members. Wilson complied with the new schedule on September 29 and 30, 1987. Members of the union met with management on September 30, 1987, to discuss Wilson’s request for an earlier starting time. Phillip Roselli, general manager of Stroh’s ice cream division, Ronald Holloway, corporate industrial relations manager, and Dennis DeJaeghere, plant manager, represented management at the meeting. Wilson, Ray Richardson, and Ed Smith represented the union. The meeting ended without resolution of Wilson’s request.
After the meeting, Wilson, Richardson, and Smith of the union, and Holloway of management continued the discussion. Wilson claims that Richardson told him to report for work at 6:00 A.M. on the following day, not as scheduled at 11:00 A.M. Wilson claims that he advised DeJaeghere of this arrangement. Later that evening, Wilson called James Rauen, a co-employee, to inform him that they would exchange work starting times for the next day.
DeJaeghere, the plant manager, made several attempts to contact Wilson by phone that evening, but Wilson refused to accept his calls. Acting on instructions from industrial relations manager Holloway, DeJaeghere then attempted to send a Western Union telegram to Wilson, informing him that he should comply with the 11:00 A.M. starting time. Wilson refused to accept the telegram. Both Wilson and Rauen showed up for work at 6:00 A.M. the next day.
The events of September 30, 1987, became the subject of an October 7, 1987, meeting of management and the union. Wilson admitted that he called Rauen at home but denied that he attempted to reschedule Rauen. Wilson claimed that he merely advised Rauen’s wife that he should expect a call from DeJaeghere, the plant manager, who would reschedule him. Ro-selli, the general manager, told Wilson that he should not attempt to reschedule employees. Holloway, the industrial relations manager, then conducted an independent investigation of the events on behalf of Stroh’s. Holloway interviewed Rauen, who stated that he had listened, on another extension, to Wilson’s phone conversation with Rauen’s wife. Rauen disputed Wilson’s version of the call, asserting that Wilson instructed him to report at 11:00 A.M. on the following morning. Holloway concluded that Wilson had lied. On October 8,1987, Stroh’s suspended Wilson pending a final determination of discipline.
On the following day, Holloway learned that Wilson told fellow employees George Beecher and James Carter that, because they began their shifts early at DeJae-ghere’s request, they were entitled to work until the end of their normal shift, thereby picking up overtime. Wilson claims he wag merely doing his job as union steward. Holloway, the industrial relations manager, decided that Wilson was again attempting to reschedule employees in a manner contrary to the policies and directives of Stroh’s. He recommended Wilson’s immediate termination. Concurring in Holloway’s recommendation, Roselli, the general manager, discharged Wilson that day.
Wilson then filed a grievance protesting his discharge. At the conclusion of protracted proceedings, the arbitrator concluded that Wilson engaged in eight acts of insubordination, which justified his dismissal. The issue of alleged racial discrimination in Wilson’s discharge was not, as such, before the arbitrator.
Wilson then filed this suit. He claims that his termination was the product of racial animus, in violation of section 703 of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l), and Michigan’s Elliot — Larsen Civil Rights Act, M.C.L. §§ 37.-2101 et seq. Specifically, Wilson claims that his direct supervisor, DeJaeghere, displayed animosity toward him because he is black. He claims that DeJaeghere was out to get him and that this prejudice should be imputed to Holloway and Roselli. Wilson did not claim that either Holloway or Rosel-li was directly racially motivated.
The district court refused to impute De-Jaeghere’s prejudice to Holloway, who is black, and Roselli. It concluded that, because DeJaeghere’s prejudice could not be attributed to Holloway and Roselli, Wilson had failed to submit evidence to support a prima facie case of discrimination. Additionally, the district court concluded that, even if Wilson were able to establish a prima facie case, the arbitrator’s decision in this matter established Stroh’s legitimate, non-discriminatory motive for terminating Wilson. Finally, it concluded that Wilson had failed to show that this non-discriminatory motive was a pretext.
II
We review a grant of summary judgment de novo. The evidence and all inferences to be drawn therefrom must be construed in a light most favorable to the nonmoving party. Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kraus v. Sobel Corrugated Containers, 915 F.2d 227, 229 (6th Cir.1990).
In a Title VII employment discrimination case, the plaintiff bears the initial burden of submitting evidence to support a prima facie case of discrimination. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981). The plaintiff must produce “evidence sufficiently strong to raise an inference that [the employer’s conduct was] racially motivated.” McKenzie v. Sawyer, 684 F.2d 62, 71 (D.C.Cir.1982); see also Hatton v. Ford Motor Co., 508 F.Supp. 620, 623 (E.D.Mich.1981). “Proof of discriminatory motive is critical” when disparate treatment is claimed. International Bhd. of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977).
Once the plaintiff establishes a prima facie case, the defendant must articulate a legitimate, non-discriminatory reason for his action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). If the defendant is successful, the plaintiff still may prevail if he establishes that the apparently non-discriminatory rationale was merely a pretext. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. A plaintiff may show pretext by establishing that he did not violate the work rule for which he was disciplined or that other employees who engaged in similar misconduct received less severe sanctions.
The district court held that Wilson failed to submit evidence supporting a prima fa-cie case of employment discrimination because he failed to show the necessary nexus between DeJaeghere’s racial animus, which we presume, and Roselli’s decision to terminate his employment. The district court also dismissed" Wilson’s claim under Michigan’s Elliot-Larsen Civil Rights Act for failure to establish a prima facie case.
Wilson offers several theories to support his attempt to establish a prima facie case. He first states that DeJaeghere’s racial animus should be imputed to Holloway and Roselli. He argues that DeJaeghere’s animus somehow infected the decision made by Roselli, based on Holloway’s recommendation. He cites several cases as standing for the proposition that a supervisor’s discriminatory animus regarding an employee may be imputed to the managers who discharge the employee, even though the managers lack discriminatory intent. See Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir.1990); Perez v. Curcio, 841 F.2d 255 (9th Cir.1988); Crader v. Concordia College, 724 F.Supp. 558, 564 (N.D.Ill. 1989); Montgomery v. Campbell Soup, 647 F.Supp. 1372 (N.D.Ill.1986). Wilson then conclusorily asserts that Holloway and Roselli relied on a false record, created by DeJaeghere, to fire him.
Stroh’s responds by citing several cases as standing for the proposition that the discriminatory comments or desires of intermediate-level supervisors do not, of themselves, establish a prima facie case when the decision to terminate is made by an upper-level official. See McDonald v. Union Camp, 898 F.2d 1155 (6th Cir.1990); Williams v. Williams Electronics, 856 F.2d 920, 925 (7th Cir.1988); Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir.1987); La Montagne v. American Convenience Prods., Inc., 750 F.2d 1405 (7th Cir.1984). Stroh’s also notes that Roselli relied upon Holloway’s independent investigation and recommendation.
Wilson would frame this issue as a question of law: whether the discriminatory motives of a supervisor can, as a matter of law, be imputed to an upper-level manager who makes the decision to terminate the employee. This characterization is somewhat misleading. The determinative question is whether Wilson has submitted evidence that DeJaeghere’s racial animus was a cause of the termination. When the question is so framed, it becomes clear that Wilson has failed to submit evidence supporting a prima facie case.
Wilson alleges that DeJaeghere, the plant manager, was out to get him and was motivated by racial animus. He also alleges, however, that he was fired by Roselli, the general manager, upon the recommendation of Holloway, the industrial relations manager. Stroh’s, in response, established that Holloway’s recommendation and Ro-selli’s decision were based on Holloway’s independent investigation. Wilson failed to submit evidence that DeJaeghere’s discriminatory motives somehow influenced Holloway or Roselli.
Wilson also asserts that DeJaeghere brought to Roselli’s attention the facts that formed the basis for his discharge. He does not, however, dispute that Holloway conducted an independent investigation of the events. Furthermore, Wilson does not dispute that Roselli discharged him based on Holloway’s advice. The fact that De-Jaeghere brought Wilson’s misconduct to Roselli’s attention, without more, is insufficient to support a prima facie case. If Wilson were to offer evidence that DeJae-ghere had not reported such misconduct from white employees, then he would establish a prima facie case.
Wilson next cites a recent opinion of this court as supportive of his position. See Simpson v. Diversitech General, Inc., 945 F.2d 156 (6th Cir.1991). Both Simpson and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), upon which Simpson relied, are distinguishable from Wilson’s case. Both of those cases were “mixed motives” cases. In Simpson, we explicitly noted that “Ruckman [the racially motivated supervisor] disciplined Simpson in February because of his race and that the February 1987 incident led substantially to Simpson’s dismissal.” Simpson, 945 F.2d at 160. Similarly, in Price Waterhouse, the Supreme Court noted “that Price Waterhouse in no way disclaimed reliance on the sex-linked evaluations.” Price Waterhouse, 490 U.S. at 251, 109 S.Ct. at 1791. In contrast, Wilson offers no evidence that Holloway’s recommendation or Roselli’s decision was affected by DeJaeghere’s racial animus.
Price Waterhouse offers some illumination in this case. The Supreme Court stated, “[i]n saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman.” Id. at 250, 109 S.Ct. at 1790. In Wilson’s case, there is no evidence that any of Rosel-li’s reasons for discharging Wilson related to race. During his deposition, Wilson was unable to offer any evidence that either Holloway or Roselli was in any way racially motivated. This is not a “mixed motives” case.
Wilson was discharged by Roselli based on Holloway’s recommendation. Holloway had conducted an independent investigation of Wilson’s conduct. There is absolutely no support in the record for Wilson’s contention that Holloway and Roselli relied on a false record created by DeJaeghere to discharge him. The causal nexus necessary to support Wilson’s prima facie case is absent.
Ill
Wilson also failed to establish a prima facie case under Michigan’s Elliot-Larsen Civil Rights Act. See M.C.L. §§ 37.-2101 et seq. In order to establish a prima facie case under the Act, Wilson must demonstrate that 1) he is a member of a protected class, 2) he was discharged, 3) the individual that discharged him was predisposed to discriminate against members of the protected class, and 4) the individual acted on this predisposition. See Brewster v. Martin Marietta Aluminum Sales, 145 Mich.App. 641, 378 N.W.2d 558, 563 (1985). There is no evidence that Roselli either suffered from a predisposition or acted upon anyone else’s predisposition to discriminate against Wilson. His decision to discharge Wilson was based on Holloway’s independent investigation and advice.
IV
Because we conclude that Wilson failed to submit evidence to support a prima facie case under either Title VII of the Civil Rights Act of 1964 or Michigan’s Elliot-Larsen Civil Rights Act, we find it unnecessary to reach any of the other issues decided by the district court. For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of Stroh’s.
. Wilson claims that he would not accept DeJae-ghere’s calls at home because of DeJaeghere's past displays of racial animosity.
. When Wilson called Rauen, Rauen’s wife told him that Rauen was asleep.
.Because the district court granted Stroh’s motion for summary judgment, we must assume, as did the district court, that DeJaeghere comported himself in the manner that Wilson asserts.
. Additionally, Stroh’s argues that collateral es-toppel precludes the district court and this court from redetermining any facts found by the arbitrator. Because the district court did not rely upon such a theory to grant Stroh’s motion, and because we affirm the decision of the district court, we do not discuss the collateral estoppel theory.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer: |
songer_usc1sect | 1623 | 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 18. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
UNITED STATES of America, Plaintiff-Appellee, v. Ronald GRZYWACZ, Edward Goclan and Richard Krieshok, Defendants-Appellants.
Nos. 78-2301, 78-2302 and 78-2303.
United States Court of Appeals, Seventh Circuit.
Argued May 31, 1979.
Decided Aug. 22, 1979.
Lawrence J. Fleming, St. Louis, Mo., for defendants-appellants.
Thomas W. Turner, Asst. U. S. Atty., Springfield, 111., for plaintiff-appellee.
Before SWYGERT, GEWIN and SPRECHER, Circuit Judges.
The Honorable Walter P. Gewin, Senior Circuit Judge of the United States Court of Appeals for the Fifth Circuit, is sitting by designation.
GEWIN, Circuit Judge.
On March 31, 1978 appellants Grzywacz, Krieshok and Goclan, former police officers of Madison, Illinois,.were each indicted on one count of conspiring to violate § 1962(c) of the Racketeer Influenced and Corrupt Organizations statute (RICO) in violation of 18 U.S.C. § 1962(d) and one count of making false declarations to a federal grand jury in violation of 18 U.S.C. § 1623. They were tried by a jury and found guilty on all counts. The district court sentenced Grzywacz to 12 years imprisonment on the conspiracy count and 5 years on the perjury charge, the sentences to be served concurrently. Goclan and Krieshok each received 7 year sentences on the conspiracy counts and 5 years imprisonment for perjury, to be served concurrently.
In these consolidated appeals the three appellants assert various alleged errors which they claim warrant a new trial. Finding the contentions to be without merit, we affirm the convictions.
Appellants were alleged to have conspired to violate the RICO statute by conducting and participating in the conduct of an enterprise, the Madison, Illinois Police Department, through a pattern of racketeering activity. The indictment under which they were charged alleged as the essence of the conspiracy that the officers used their official positions as members of the police department to solicit and accept bribes and sexual favors from business establishments in the city of Madison and Madison County in exchange for acquiescence in and protection of certain illegal activities by the establishments, including prostitution, and operating after closing hours. The indictment also charged that appellant Ronald Grzywacz used his relationship with the Madison County sheriff’s office to solicit and accept bribes from similar businesses in Madison County.
Prior to trial appellants moved to strike the portions of the indictment referring to those acts occurring outside the city limits of Madison, beyond which the municipal police department had no jurisdiction. They argued that the “Madison County” evidence was irrelevant, prejudicial and without relationship to the conduct of the affairs of the police department alleged in the indictment. The government responded that these activities were part of the overall conspiracy and the court accordingly overruled appellants’ motion.
At trial the government adduced substantial evidence relating exclusively to certain acts committed jointly and separately by all three appellants in the city of Madison. This proof, consisting of statements by the appellants and testimony by police officers, operators of business establishments and the Mayor of Madison, indicated that the three officers, with the assistance of tavern owner Jenny Huey, engaged in a pattern of securing monetary payments and sexual favors from city tavern and tow company operators and employees in return for “protection” of certain illegal activities by the businesses. In addition a significant amount of evidence relating to appellant Grzywacz’s activities in Madison County was offered and admitted. The evidence tended to show that at the time the three officers were collecting bribes in the city of Madison, Grzywacz in coordination with members of the Madison County sheriff’s office was engaged in similar “shakedowns” of tavern operators in the county, outside the Madison police department’s jurisdiction. The proof implicated Grzywacz only; none of it showed involvement by Goclan and Krieshok in the solicitation and acceptance of bribes in the county.
At the conclusion of the trial, the government tendered an instruction stating that the Madison County evidence could not be considered against Goclan and Krieshok but was admissible as evidence of prior misconduct against Grzywacz to show motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Contending that the government no longer considered the Madison County activities to be part of the conspiracy, appellants moved to strike all references in the indictment to Madison County and to strike all evidence relating to those activities. They further moved for a mistrial on grounds that the trial court erroneously admitted the evidence. The court struck portions of the indictment relating to the county but denied the motion for mistrial, finding the evidence admissible for the purposes advanced by the government. In his final instructions the trial judge warned the jury that the evidence was to be considered only as to Grzywacz to show motive, intent, plan, opportunity, etc.
As their initial contention on this appeal appellants maintain that they could not be charged with conspiracy under 18 U.S.C. § 1962(d), the RICO statute, because the Madison, Illinois police department is not an “enterprise” within the meaning of 18 U.S.C. § 1961(4). Appellants presented this ground in a pretrial motion to dismiss the conspiracy count but the trial court rejected it.
Section 1962(c) provides that:
It shall be unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt.
“Enterprise” as used in § 1962(c) is defined in 1961(4) to include:
any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity;
According to appellants, a public entity such as a municipal police department can not constitute an “enterprise engaged in . . . interstate or foreign commerce. .” They submit that Congress in enacting the Racketeer Influenced and Corrupt Organizations statute (18 U.S.C. §§ 1961-1968) intended primarily to combat the infusion of organized racketeering into the activities of legitimate private businesses. In contrast there was no legislative intent to apply the statute to acts of corruption by public employees or officials. In support of this view, appellants advert to the civil remedies provided by section 1963 of the statute. These include a private action for treble damages and actions by the United States Attorney General for divestiture, dissolution or reorganization of the enterprise, and restrictions on investments by persons therein. Appellants contend these statutory remedies are peculiar to violations by private organizations and therefore public entities were meant to be excluded from the statute’s range of coverage.
Consideration of past precedent, legislative history, and the plain words of the statute convince us that the RICO statute admits of a broader, less constricted interpretation. We believe that public entities and individuals may constitute § 1961(4) enterprises through which racketeering is conducted. Both the Third and Fifth Circuits have so held. In United States v. Frumento, 563 F.2d 1083 (3d Cir. 1977), cert. denied sub nom. Miilhouse v. United States, 434 U.S. 1072, 98 S.Ct. 1256, 55 L.Ed.2d 775 (1978), the Court of Appeals for the Third Circuit determined that the act was designed to prevent organized crime from infiltrating public and private entities which have some relationship with the economy. 563 F.2d at 1090. To this end Congress authored flexible legislation offering the various civil remedies cited above as well as criminal penalties to protect from racketeering individuals and organizations in different and diverse areas of American life. Id. at 1090-91.
In a case highly similar to the cause before us, the Fifth Circuit in United States v. Brown, 555 F.2d 407 (5th Cir. 1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1448, 55 L.Ed.2d 494 (1978), held that the Macon, Georgia municipal police department constituted an enterprise within the meaning of the statute. The Brown court rejected the appellants’ contentions that the statute encompassed only private corporations and labor organizations as overly narrow and unsupported by legislative history. 555 F.2d at 415. The court noted that the actual language of § 1961(4) defines enterprise as any “legal entity” or “group of individuals associated in fact although not a legal entity.” Id. From this broad language it concluded that a police department may be, at the least, a group of individuals associated in fact, if not a “legal entity.” Id.
Scrutinizing the pertinent legislative history, the court recognized that Congress enacted the Organized Crime Control Act of 1970, of which the RICO statute was a portion, to reduce the flow of illegal activities into organizations which corrupt “democratic processes” and “threaten domestic security.” Id. Finally the court relied on the explicit language that the provisions of the Organized Crime Act of 1970 were to be “liberally construed” to achieve “their remedial purpose.” Id. at 416.
Our view is in accord with that of the Third and Fifth Circuits. As the Fifth Circuit noted in Brown, Congress articulated that the statute is to be liberally construed to effectuate its remedial purposes. Organized Crime Control Act, Pub.L.No. 91 — 452 § 904, 84 Stat. 922. Yet, even a restricted reading of the expansive definition of “enterprise” permits the application of § 1962(d) to public entities such as police departments. Section 1961(4) draws no distinctions between the public and private sector. Rather it includes as legal entities “individuals, partnerships, and associations.” We are convinced that within this broad language, a police department and individual police officers are legal entities and thus qualify as enterprises.
Moreover, the legislative history manifests a serious concern by Congress not merely with a profusion of racketeering activities within private businesses and labor organizations, as appellants suggest, but with the potentially devastating effects of organized crime on the nation’s political and economic system as a whole. This alarm was expressed in the Statement of Findings and Purpose of the Organized Crime Control Act of 1970.
The Congress finds that (1) organized crime in the United States is a highly sophisticated, diversified, and widespread activity that annually drains billions of dollars from America’s economy by unlawful conduct and the illegal use of force, fraud and corruption;
(3) this money and power are increasingly used to infiltrate and corrupt legitimate business and labor unions and to subvert and corrupt our democratic processes ;
(4) organized crime activities in the United States , , , threaten the domestic security, and undermine the general welfare of the Nation and its citizens',
Pub.L.No. 91-452, § 1, 84 Stat. 922 (emphasis added). The logical inference from these pronouncements is that Congress intended to frame a widely encompassing enactment to protect both the public and private sectors from the pervasive influences of racketeering. We decline to adopt the myopic vision of Congressional policy advanced by appellants and instead elect to give the statute the construction required of us by explicit mandate. The Madison police department is an enterprise within the meaning of section 1961(4).
The second alleged error which this court must consider is the trial court’s admission into evidence of the “Madison County” evidence. It is appellants’ contention that this proof was inadmissible even for the limited purposes requested by the government because it was overly prejudicial to codefendants Goclan and Krieshok and the trial court failed to give limiting instructions at the time- the evidence was introduced. Appellants further argue that the court should have excluded the evidence because Grzywacz had not placed his specific intent in issue.
Whether Grzywacz disputed the element of specific intent at trial is irrelevant since the court properly admitted the evidence to also show preparation and plan or design, and a mode of operation. Fed. Rules of Evidence 404(b) expressly sanctions the use of similar acts of prior misconduct for these objectives. The Madison County evidence was highly probative of such matters. It showed that at approximately the same time the three officers were using their official positions to collect payoffs from taverns and tow companies within the city of Madison, Grzywacz was utilizing his status and authority as a law enforcement officer to engage with members of the sheriff’s office in a pattern of collecting bribes from businesses in the county. There was no remoteness in time between the activities. Moreover, the evidence of appellants’ conduct in the city showed Grzywacz to be an active participant and possible ringleader of the alleged conspiracy.
Because the county activities had a significant “concurrence of common features” with the racketeering conducted by appellants in the city, the “Madison County” evidence, with its corroborative character, tended to show a preexisting plan and modus operandi followed by Grzywacz. It was therefore highly relevant to the basic question of whether he committed the alleged offense.
This court has approved the admission of evidence of similar acts for these purposes when the trial judge determines its probative value outweighs its prejudicial impact. United States v. Weidman, 572 F.2d 1199, 1202-03 (7th Cir. 1978); United States v. Grabiec, 563 F.2d 313, 318 (7th Cir. 1977); United States v. Krohn, 560 F.2d 293, 296-97 (7th Cir. 1977); United States v. Iacullo, 226 F.2d 788, 793 (7th Cir. 1955). Broad discretion is accorded a trial judge in this determination, United States v. Serlin, 538 F.2d 737, 747 (7th Cir. 1976). The district court in the instant case decided at the conclusion of the trial that the possible spillover effect on Goclan and Krieshok was overborne by the crucial importance of shedding light on the racketeering scheme by showing a similar plan carried out in the county by Grzywacz and members of the sheriff’s office.
We believe this determination was proper, given the careful limiting instructions read to the jury by the court at the trial’s conclusion. This admonition was stated in the following language:
There has been no evidence introduced in this case to connect defendants Edward Goclan and Richard Krieshok with the alleged activities of defendant Ronald Grzywacz with respect to the Sheriff’s office and the taverns and towing companies located outside the City of Madison, Illinois, that is, in Madison County. Therefore, those activities may not be considered in any way as evidence against defendants Goclan and Krieshok. Rather it was introduced against defendant Grzywacz only to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. (Vol. VII, p. 1024 — 1025).
The instruction adequately restricted the jury’s attention to Grzywacz. Appellants’ argument that a contemporaneous limiting instruction was required is meritless since the record reveals that at no time did the defense request such an instruction of the court.
In sum the trial judge properly admitted the evidence of similar acts as going to the planned design and modus operandi of appellant Grzywacz. The procedures employed by the court were sufficient to prevent undue prejudice to Goclan and Krieshok.
A final major contention is that the trial court erred in permitting the government to place in evidence certain out-of-court statements made by appellants and their alleged co-conspirator Jenny Huey. Among the challenged statements were a recorded conversation of Grzywacz wherein he admitted collecting bribes, Grzywacz’s grand jury testimony in which he admitted obtaining bribes and stated that he saw Goclan receive money from Jenny Huey. Also admitted into evidence was grand jury testimony by Goclan and Krieshok in which they related the events surrounding a raid on Jenny Huey’s tavern, alleged statements by Goclan and Krieshok to various persons soliciting bribes, and alleged remarks by Jenny Huey to certain witnesses that payoffs were being made to appellants in exchange for protection.
Appellants claim that under the recent decision of United States v. Santiago, 582 F.2d 1128 (7th Cir. 1978), the trial judge, prior to admitting the statements, was required to determine out of the jury’s presence whether the statements were made in furtherance of a conspiracy of which each defendant was a member. As a corollary to this argument, they assert that admission of the statements by the appellants necessitated a severance of their trials under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), since each appellant had no opportunity to cross-examine his codefendants on the statements. During the trial each appellant asserted his Fifth Amendment right and refused to take the stand. The appellants did offer to testify if separate trials were granted. The court, however, refused to grant a severance.
The decision in Santiago was issued after the completion of the trial below. At trial during the testimony of the government’s first witness, Robin Young, the trial judge admonished the jury that whenever it appeared beyond a reasonable doubt that a conspiracy existed and a defendant was a member, statements knowingly made and acts committed by any person likewise found to be a co-conspirator could be considered against the defendant, but only if the statements were made in furtherance of the conspiracy and during its continuance. If not, the acts and statements could be considered only as evidence against the person making them. (Vol. 1, p. 26). The trial judge repeated these instructions to the jury at the close of trial.
The court’s articulation of the rule on co-conspirator statements adhered to the law then in effect in this circuit. United States v. Santiago, 582 F.2d 1128, 1131-32 (7th Cir. 1978); see United States v. Santos, 385 F.2d 43 (7th Cir. 1967). Furthermore appellants did not object to the instructions nor did they request other limiting instructions at any time during the course of trial. Thus they have no cause to challenge those instructions on appeal. See Santiago, supra at 1136. This is true particularly in light of the fact that evidence adduced independently of the statements clearly established an active conspiracy among the three appellants and Jenny Huey.
As to the Bruton issue, we do not believe that constitutional error was committed by the trial court’s refusal to grant a severance. Though damaging to appellants, the statements, when considered within the context of the other evidence, were not of a “devastating”, “crucial” or “powerfully incriminating” nature, to which Bruton largely has been limited. See Dutton v. Evans, 400 U.S. 74, 87, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970). Neither were they inherently unreliable statements as those of a coerced confession, see Bruton, supra; Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966), or those produced by prosecutorial or judicial misconduct, United States v. Cogwell, 486 F.2d 823, 834 (7th Cir. 1973).
The decision to grant a severance lies within the sound discretion of the trial court, reversible only for an abuse of discretion. United States v. All State Mortgage Corp., 507 F.2d 492, 495 (7th Cir. 1974). In order to secure a severance the moving party must establish that she or he will be unable to obtain a fair trial. United States v. Crouch, 528 F.2d 625, 631 (7th Cir. 1976). Appellants have not made this showing with respect to the extra-judicial statements. The trial judge properly exercised his discretion.
■We have scrutinized the other contentions advanced by appellants and find them devoid of merit.
It is appropriate to note that in its ultimate significance this case is immensely tragic not only because it involves the corruption of human beings but because the offenses found by the jury reflect a callous disregard by public servants of their moral and legal responsibilities and a sordid abuse of their public trust. Such misconduct by law enforcement officials undermines respect for the legal principles upon which the survival and growth of a free society depend. Grzywacz, Goclan and Krieshok have received a fair trial, the judgment is Affirmed.
. The perjury counts against appellants charged that they falsely stated to the grand jury that they had received no bribes from businesses.
. The indictment stated in pertinent part:
5. It was a part of the conspiracy that the defendants would utilize their official positions as members of the City of Madison Police Department to ask, seek, solicit and accept payments from business establishments while intending to be influenced in the performance of acts related to their employment and functions as public officers.
6. It was a further part of the conspiracy that the defendant, Ronald Grzywacz, would utilize his relationship with the office of the Sheriff of Madison County, Illinois, to ask, seek, solicit and accept payments from business establishments within the jurisdiction of the Madison County Sheriffs office.
7. It was a further part of the conspiracy that the defendants, as law enforcement officers, would be paid by individuals seeking to operate their business establishments in violation of the laws of Illinois, the City of Madison, and Madison County.
8. It was a further part of the conspiracy that certain business establishments in the City of Madison and in Madison County would be forced to pay money to the defendants and to provide sexual favors for “protection” and to avoid harassment by the defendants.
9. It was a further part of the conspiracy that certain business establishments in the City of Madison and in Madison County would be permitted to house prostitution operations in violation of the laws of the State of Illinois.
10. It was a further part of the conspiracy that certain taverns in the City of Madison and in Madison County would be permitted to operate after legal closing hours.
11. It was a further part of the conspiracy that the defendants, as law enforcement officers, would agree and promise to refrain from interfering with illegal activities being conducted at certain business establishments in the City of Madison and in Madison County.
12. It was a further part of the conspiracy that the defendants would attempt to recruit other law enforcement officers to participate in the criminal objectives of the enterprise.
. Huey was called to testify by the government but refused asserting her privilege against self-incrimination. Upon being granted immunity, she still refused to take the stand and was found in contempt of court.
. When the government completed the presentation of its case, each appellant asserted his Fifth Amendment right and refused to testify for his co-defendants. The defense then presented no direct evidence and rested its case. (Vol. VI, pp. 925-28).
. 18 U.S.C. § 1963.
. Recognizing that Congress “intended to prohibit any pattern of racketeering activity in or affecting commerce” and that it intended the term “enterprise” to have “a very broad meaning”, this circuit in United States v. Cappetto, 502 F.2d 1351, 1358 (7th Cir. 1974), cert. denied, 420 U.S. 925, 95 S.Ct. 1121, 43 L.Ed.2d 395 (1975), held that an illegal activity such as a gambling operation may be a § 1962(c) enterprise through which racketeering is conducted. The court admittedly did not address the applicability of the statute to public entities. But the liberal construction given the definition of “enterprise” by it runs counter to appellants’ argument that the RICO statute was intended to govern the activities only of legitimate private businesses. Our interpretation that public entities are within the scope of the statute follows the approach employed in Cappetto. To accept appellants’ claim that a narrow construction is appropriate would be inconsistent with the underlying principles of that decision. See also United States v. Nerone, 563 F.2d 836 (7th Cir. 1977); United States v. Winstead, 421 F.Supp. 295 (N.D.Ill.1976). At least three other circuits have applied the statute to illegal enterprises, reasoning that a broad interpretation was necessary to achieve the remedial objectives of the enactment. United States v. Altese, 542 F.2d 104 (2d Cir. 1976); United States v. Hawes, 529 F.2d 472 (5th Cir. 1976); United States v. Campanale, 518 F.2d 352 (9th Cir. 1975), cert. denied, 423 U.S. 1050, 96 S.Ct. 777, 46 L.Ed.2d 638 (1976). But see United States v. Mandel, 415 F.Supp. 997 (D.Md.1976); United States v. Moeller, 402 F.Supp. 49 (D.Conn.1975).
. Professor Wigmore succinctly explained the use of similar acts to prove design or pre-existing plan.
Design or Plan . . ., is not part of the issue, an element of the criminal fact charged, but is the preceding mutual condition which evidentially points forward to the doing of the act designed or planned (citations omitted). Thus the peculiarity of Design is that the act is not assumed to be proved, and the design is evidentially to show its probable commission.
2 Wigmore on Evidence, § 1300 at 193 (3d ed. 1940). He then distinguished design from evidence used to show intent.
In the former case (of Intent) the attempt is merely to negate the innocent state of mind at the time of the act charged, in the present case [of design] the effort is to establish a definite prior design or system which included the doing of the act charged as a part of its consummation. . . . The added element [in showing design] then, must be, not merely a similarity in the results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations, (emphasis in original).
Id. § 304 at 202.
. Of significant resemblance to the instant case is United States v. Grabiec, supra, where co-defendants were charged with conspiracy to extort money under color of official right, in violation of 18 U.S.C. § 1951. At trial the court permitted the government to adduce evidence that one defendant had accepted similar illegal payoffs on four previous occasions. On appeal this court held the acts admissible “to show a pattern of conduct corroborating a similar pattern carried out during the conspiracy and a method of operation.” Id. at 318, citing United States v. Iacullo, supra. The court reasoned that the challenged transactions “illuminated the character of the conspiracy and the extent of the involvement of the participants.” Id.
. In addition, the trial judge carefully instructed the jury on the relevance of similar acts. Vol. VII, pp. 1030-31. The instructions were thorough and appellants do not challenge their sufficiency on this appeal.
. A number of statements made by Grzywacz, Krieshok and Goclan were offered and admitted pursuant to Fed.Rules of Evidence 801(d)(2) as admissions of a party-opponent. Appellants have chosen to categorize these as co-conspirator statements and attack them on the basis of Santiago. Their admissibility under Rule 801(d)(2) is not challenged. We note that with one exception the statements were admitted at trial without a contemporaneous instruction that they were only to be considered against the declarant. But at no time during the course of the trial did appellants request a limiting instruction. Given this and the fact that the trial judge gave a specific and scrupulous limiting admonition in his final instructions, no prejudicial error was committed. See United States v. Esquer, 459 F.2d 431, 435 (7th Cir. 1972).
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 18? Answer with a number.
Answer: |
songer_const2 | 105 | 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.
FRIARTON ESTATES CORP., Bwit Fifty-Fifth Street, Inc., and Mid-Central Properties, Ltd., Plaintiffs-Appellees, v. The CITY OF NEW YORK, Philip R. Michael, as Commissioner of Finance of the City of New York, and Tax Commission of the City of New York, Defendants-Appellants.
No. 873, Docket 81-7781.
United States Court of Appeals, Second Circuit.
Argued April 6, 1982.
Decided June 7, 1982.
Richard A. Givens, New York City (Bo-tein, Hays, Sklar & Herzberg, Gina Schachter, Roger F. Bloom and Margaret Serena Oppel, New York City, of counsel), for plaintiffs-appellees.
Morris Einhorn, New York City (Frederick A. 0. Schwarz, Jr., Corp. Counsel of the City of New York, Leonard Koerner, Asst. Corp. Counsel, New York City, of counsel), for defendants-appellants.
Before FRIENDLY and NEWMAN, Circuit Judges, and CURTIN, District Judge.
Chief Judge District Court for the Western District of New York, sitting by designation.
FRIENDLY, Circuit Judge:
The City of New York, its Commissioner of Finance, and the Tax Commission of the City of New York (sometimes hereafter referred to collectively as “the City”) appeal pursuant to 28 U.S.C. § 1292(a)(1) from an order in this action under 42 U.S.C. § 1983 granting a preliminary injunction against the City’s taking title to properties pursuant to a New York state court judgment based on plaintiffs’ failure to pay sewer rents, water charges and real estate taxes for the tax years 1973/74 through 1976/77. We reverse, with instructions to dismiss the complaint, primarily on the ground that plaintiffs-’ claims of violation of their constitutional rights are barred by reason of prior state court litigation of the claims here advanced.
I.
Plaintiff Friarton Estates Corporation (Friarton) is the owner of properties known as Block 735, Lot 30, and Block 1042, Lots 2, 3, 4, 5, 6, 7, and 64 on the tax map of the City of New York (the properties). Friar-ton acquired Block 735, Lot 30, from plaintiff BWIT Fifty-Fifth Street, Inc. (BWIT) in June 1977 for $10,000 at a time when the property was subject to over $200,000 in outstanding claims by the City for sewer rents, water charges and real estate taxes. Friarton acquired the lots in Block 1042 from plaintiff Mid-Central Properties, Ltd. (Mid-Central) in June 1977 for approximately the same sum; these properties were then subject to over $150,000 in similar claims by the City. The properties, along with many others, were included in two foreclosure proceedings brought by the City, In Rem Action Nos. 29 and SO, commenced on July 6, 1977 and August 28, 1978, respectively, in the Supreme Court of New York for New York County. The history of this litigation will be recounted in Part II below. It suffices here to say that on May 6,1981, the Supreme Court for New York County entered a judgment reinstating an earlier judgment entered May 20, 1980, which permitted the City to take title to the properties.
Plaintiffs then commenced this action in the District Court for the Southern District of New York, seeking an injunction against enforcement of the state court foreclosure judgments until state court proceedings challenging the tax assessments had been determined, and damages “to redress violations of rights secured to plaintiffs by the Constitution of the United States and 42 U.S.C. § 1983” (Complaint ¶1); federal jurisdiction was claimed under 28 U.S.C. §§ 1331 and 1343(3). Plaintiffs’ basic contention was that the City would be denying them due process of law and taking their property without just compensation in violation of the Fourteenth Amendment by taking the properties for nonpayment of taxes while denying them a speedy determination of certiorari proceedings which they had brought to challenge the assessments of the properties. The district court reviewed the state court record in the proceedings mentioned above and in certain related proceedings and held three hearings at which no testimony was taken.
After reference to and report by a magistrate, the district court, on October 2, 1981, rendered an elaborate opinion in which it rejected the City’s contentions with respect to the preclusive effect of the previous proceedings, the Tax Injunction Act, 28 U.S.C. § 1341, and the merits, and concluded that plaintiffs had satisfied the first branch of what it characterized as “the rule of this Circuit as expressed in Sonesta International Hotels Corp. v. Wellington Associates,” 483 F.2d 247, 250 (2 Cir. 1973), with respect to entitlement to a preliminary injunction. However, the court thought it would be inappropriate to undertake the trial of plaintiffs’ tax claims. Accordingly it entered an order preliminarily enjoining defendants from taking title to or possession of the properties or from causing a deed or deeds of such properties to be executed, delivered or recorded. This injunction might be dissolved on notice of the occurrence of events described in the margin. Plaintiffs were to deposit all rents and operating income with a receiver, who was to pay all reasonable and necessary operating costs including current sewer and water charges, but not mortgage payments or current property taxes. As will be seen, the effect of the injunction was to deny the City the benefit of the judgment in the state court foreclosure actions, won after many years of effort against the very contentions made here, and to deprive it of payments admittedly due for sewage, water and taxes until the conclusion of the certio-rari proceedings.
II.
Before going further it will be well to describe the New York procedures for review of real estate tax assessments.
New York City Charter § 163 provides that during the six week period February 1 through March 15:
the books of annual record of the assessed valuation of real estate are open for public inspection, any person or corporation claiming to be aggrieved by the assessed valuation of real estate may apply for correction of such assessment,
specifying the grounds of any claimed illegality, and the extent of any claimed overvaluation or inequality. Section 164 provides that any such applicant may have a hearing before the Tax Commission, which is empowered to
compel the attendance of witnesses, administer' oaths or affirmations and examine applicants and other witnesses under oath. It shall make rules of practice for proceedings before the tax commission, and such rules and regulations as may be appropriate and expedient to the end that the taxpayers may have a hearing in the borough in which they reside or in which their property is located.
Under §§ 165, 166, the Tax Commission is required to render its determination by the 25th of May, and a further proceeding “to review and correct on the merits any final determination of the tax commission” may be brought by October 25th of that year. Plaintiffs had the benefit of this procedure but they assert that review by the Tax Commissioner is generally unproductive and the City does not seriously dispute this.
New York City Administrative Code § 166-1.0(b) provides that the judicial review mentioned above shall be by a Special Term of the Supreme Court in the appropriate county and shall be based “on one or more of the following grounds, which must be specified in such petition:”
1. That the assessment is illegal, and stating the particulars of the alleged illegality, or
2. That the assessment is erroneous by reason of overvaluation, or
3. That the assessment is erroneous by reason of inequality, in that it has been made at a higher proportionate valuation than the assessment of other real property of like character in the same ward or section, or other real property on the assessment rolls of the city for the same year, specifying the instances in which such inequality exists and the extent thereof, and stating that the petitioner is or will be injured thereby.
Plaintiffs had pending petitions for such review, commonly called petitions for cer-tiorari, raising the second and third objections, for each tax year from 1972/73 to 1977/78.
While the record is replete with charges concerning responsibility for the delays in bringing these cards to trial, which we do not find it necessary to determine, it is at least clear that plaintiffs were far from diligent in seeking early trials. Although the Rules of the Appellate Division for the First Department § 660.18(c) require that there be a pretrial hearing for purposes of settlement and that, to render this productive, the taxpayer must file an “eight month notice” to the Corporation Counsel accompanied by a verified or certified statement of income and expense, plaintiff Mid-Central in its certiorari proceedings for the tax years 1973/74 through 1976/77 did not file such a statement until July 13, 1978, a year after the City had begun its foreclosure action; even then statements of income and expenses were included only for the tax year 1975/76, the excuse being that this was the only full year in which Mid-Central operated the property. Notes of issue for the tax year 1974/75 were not filed for lots 2, 3, 4, 5, 6, 7 and 64 of Block 1942 until June 26,1979, and with respect to lot 30 of Block 735 until July 3, 1979.
It is also desirable to note at this point that review of assessments on real property in New York State has been in considerable turmoil since the decision of a divided Court of Appeals in Hellerstein v. Assessor of the Town of Islip, 37 N.Y.2d 1, 371 N.Y.S.2d 388, 332 N.E.2d 279 (1975), which invalidated as a matter of state statutory law a practice of nearly 200 years standing whereby assessments were made on the basis of a percentage rather than the whole of full value. Recognizing the revolutionary character of the decision, the court limited it to future assessments and gave the Township until December 31, 1976, to comply. The state legislature subsequently enacted various legislation suspending the requirement of full valuation to permit time for reassessments.
The problem which New York courts had in adjusting to Hellerstein was aggravated by legislation prohibiting use in challenges alleging inequality of tax assessments of the State Board of Equalization and Assessment (SBEA) ratios of assessed value to full value for each assessing unit. See Slewett & Farber v. Board of Assessors, 54 N.Y.2d 547, 554, 446 N.Y.S.2d 241, 430 N.E.2d 1294 (1982). In Colt Industries, Inc. v. Tax Comm’n, 183 N.Y.L.J. (No. 108) June 4, 1980, p. 10, col. 2, the Special Term of the Supreme Court for New York County was obliged to consider, inter alia, a taxpayer’s challenge to the constitutionality of this evidentiary limitation. Justice Mangan held that pursuant to New York City Administrative Code § 166-1.0(b), a New York City taxpayer seeking to prove unequal treatment was required to establish inequality as compared with property of like character in the same ward or section and, if no such samples were available, elsewhere in the City. The court held that in light of the recently-amended statute, RPTL § 720(3), which precluded use of the SBEA ratio in a certiorari proceeding, that rate was irrelevant to the standard of proof required in the City and that in any event the legislature had power to alter rules of evidence in certiorari proceedings. Colt Industries was directed to make its demand upon the City for admission of ratio evidence and the parties were ordered to file a statement of the appraised values of their selected parcels by August 17,1980, for trial on the issue of inequality, which the court later scheduled to commence on October 14, 1980. Trial of a certiorari brought by Equitable Life Assurance Co. (Equitable) was scheduled for October 15, and trials for other taxpayers were scheduled for later dates.
Equitable moved for an order declaring the SBEA’s ratio admissible in proof of inequality despite the Colt decision or, in the alternative, that its trial be stayed pending appeal from the expected denial of the substantive portion of the motion. Both parts of the motion were denied, Equitable appealed, and on October 7, 1980, the Appellate Division granted a stay pending determination of the appeal on the merits. Shortly thereafter the Appellate Division granted a similar motion for a stay by Colt Industries. It required both cases to be argued at its next term and later made clear, at the City’s request, that the stay was of both ratio and valuation issues.
Before the latter clarification Justice Mangan had set trial dates on the issue of overvaluation for 14 petitions also claiming inequality, the first petitioner on the schedule being Freewalt Realty Corp. (Freewalt). The City moved to stay these trials, pointing out that while it had opposed any stay in the Colt and Equitable cases, a stay on ratio had been granted by the Appellate Division, “disposition of the pending appeals may well obviate the need to litigate the issue of value” because the prospects for settlement are enhanced once the applicable ratio is determined, and “the Court's approach to value in the ratio portion may be critical on the valuation phase of the case.” This position was strengthened when the Appellate Division amended its stay in Colt to include both ratio and valuation issues. Accordingly, on December 5, 1980, the Special Term entered an order staying its entire calendar in which inequality was claimed pending final appellate decision of Colt or further order of the Appellate Division.
On May 14, 1981, the Appellate Division 81 A.D.2d 777, 439 N.Y.S.2d 24 affirmed the Special Term’s decision in Colt. Appeal was taken to the Court of Appeals, which affirmed on January 7, 1982, 54 N.Y.2d 533, 446 N.Y.S.2d 237, 430 N.E.2d 1290.
Since that time certiorari proceedings for the properties have been promptly scheduled. Valuation trials are set for May and June 1982, and the Supreme Court has indicated that the trial date for determining ratio will be announced during the summer of 1982.
III.
With this background we now undertake a more detailed analysis of the proceedings in the City’s in rem action which it claims to have operated as res judicata on the contentions that plaintiffs have advanced here.
In September 1977, Friarton filed identical answers (one on each block). The answers alleged in conclusory form that all lawful taxes, assessments and other charges levied against the properties more than one year in arrears had been duly paid and contained two counterclaims. One attacked the constitutionality of the New York rent control laws and sought damages of $1,000,-000. The other pointed to pending certiora-ri proceedings for the tax years 1972/73, 1973/74, 1974/75, 1975/76, 1976/77, and 1977/78 and suggested that the real estate taxes allegedly due the City would be substantially reduced.
In July 1978 the City moved to strike the answers. The motion contended, inter alia, that under Code § D17-9.0, remedies for alleged abuses of rent control may not be sought in an in rem tax foreclosure proceeding; that under Code § D17-9.0(e), Friar-ton was allowed six months after submission of its answer to effect a sale and retain any surplus above arrearages but had not done this and that no note of issue had been filed with respect to the certioraris referred to in Friarton’s answers. Friarton countered in October 1978 that triable issues of fact existed with respect to the unconstitutionality of rent control and that it was preparing to file a note of issue with respect to all pending certiorari proceedings. Beyond this Friarton cross-moved for leave to file amended answers and to consolidate the certioraris with the in rem action.
The amended answers contained a number of affirmative defenses. Among these were that the tax certiorari proceedings would come to trial approximately in January 1980; that the reason for the delay was the backlog of such cases and the lack of personnel in the City Corporation Counsel’s Real Estate Tax Division; that the outcome of the certioraris “would enable the Respondent to either pay the taxes in full or enter into an In Rem Agreement with the City”; and that it was “inequitable for the City to tax the respondent at an artificially high rate, to then foreclose for respondent’s failure to pay same and at the same time deny respondent its day in Court.” Friarton also realleged its counterclaim for $1,000,000 damages by reason of the rent control laws. The City countered that further delay in these certiorari proceedings could not justify further delay in tax collection, particularly in light of Code § D17-25.0, which permitted Friarton to retain the properties by paying 25% of the arrearages, with an additional three years to pay the balance, during which Friarton could presumably bring its certiorari proceedings to trial.
Late in 1978 and early in 1979 Friarton made a number of further motions unnecessary to describe in detail. Opposing these, the City argued that Friarton had been offered and had rejected the opportunity under Local Law No. 34 to pay 15% of the arrearages and the balance over an extended period of up to 8 years and that the Corporation Counsel had also proposed that Friarton could eliminate the properties from the delinquent list if it would pay the water charges and sewer rents as well as the amount of taxes that would be due on the valuation which it had alleged in its own certiorari proceedings — a proposal which Friarton declined.
After Friarton had filed further lengthy papers developing, with colorful rhetoric, its theses that the properties were grossly overvalued because of the depressing effect of rent control, that the City had refused to hold settlement conferences or permit trial of the certioraris, that under these circumstances it would be a denial of due process to permit the City to foreclose, and that the pending certiorari proceedings should be consolidated with the in rem foreclosure action, Justice Martin Evans at Special Term handed down a decision on August 31, 1979, granting the City’s motion for summary judgment. He allowed the amendment of the answer except for portions, not heretofore mentioned, asserting affirmative defenses that attacked the reduction of the period of time after which a foreclosure action may be brought for tax delinquencies from 3 years to 1 year and the assertion of the counterclaim based on the unconstitutionality of the rent control law, which was to be severed and continued. He specifically allowed an amendment which alleged the inequity of permitting foreclosure for failure to pay taxes while the amount due was being challenged in the certioraris which had not yet been brought to trial. He entertained, but denied, Friarton’s motion to consolidate the pending tax certiorari cases with the foreclosure action. He agreed with Friarton that
It would, of course, be inequitable to allow In Rem foreclosure under Title D of the Administrative Code, which could result in a transfer of title to the City, if in fact the taxes were improperly overas-sessed and if defendant did not have a reasonable opportunity to obtain a proper assessment. Such a transfer of title would be an unconstitutional taking of property without compensation.
However, he found that
Although the pleadings of the defendant allege that all taxes lawfully due have been paid, it is clear from the affidavits submitted on the motion that not only is there a default in the payment of the amount of taxes assessed; there has been a default in the payments of the amount of taxes admitted by defendants to have been properly due.
In October 1979 Friarton moved for rear-gument. This stated that
IT IS RESPONDENT’S MAIN CONTENTION, NOT DENIED BY THE CITY OR THE COURT, THAT THE CONFISCATORY TAXES HEREIN LEVIED BY THE CITY ARE UNCONSTITUTIONAL AND UNLAWFUL, AND THE CITY MAY NOT LAWFULLY COLLECT THEM BY THIS FORECLOSURE PROCEEDING, UNTIL RESPONDENTS HAVE THEIR DAY IN COURT TO SO PROVE. (Capitalization in original.)
Friarton contended that the court had been inconsistent in granting summary judgment to the City despite its acknowledgment that overassessment would constitute a defense. It stated that notes of issue had in fact been filed in the certioraris and that “the City has repeatedly delayed [certiorari] trials through its myriads and labyrinths of rules and failure to assign attorneys to try cases”. It again sought consolidation of the certioraris with the in rem action as the only equitable course. A subsequent affidavit placed before the court a portion of an affidavit, apparently prepared for some other proceeding, entitled “History of Rent Control in the City of New York.”
The City submitted an affirmation in opposition to the motion for reargument. This stressed that the court had said only that it would be inequitable to allow foreclosure if the taxes had not been lawfully assessed but that the court had found that they were. It called attention to the City’s offer to drop the foreclosure action if defendants would pay the water charges and sewer rents and the amounts they contended to be due as taxes. It pointed out that the notes of issue had been filed only after all papers had been submitted and the matter had been argued.
On January 3, 1980, Justice Evans entered an order denying Friarton’s motion to reargue. He considered that “Movant has failed to meet its burden of proving that the Court misunderstood, misconstrued, overlooked or incorrectly decided any question of law or fact.” The court remarked that Friarton was endeavoring to have the court pass on public policy questions which were ultimately for the legislature to decide and that insofar as defendants raised procedural due process questions, “such have already been mooted by movant’s failure to pay even the taxes which would have been due had the valuation been what movant has claimed.” Supplemental judgments directing that the City take title to the properties were entered on May 20, 1980, with a 10 day stay of enforcement to permit appeal.
Friarton appealed to the Appellate Division, First Department. It reiterated the arguments it had made at Special Term— that rent control had so depressed the value of the properties as to render the assessments outrageously excessive, and that for the City to take the properties before Friar-ton had had an opportunity to demonstrate this in the pending certioraris violated due process. The statute permitting a 15% down payment of delinquencies with the balance payable over 8 years and the City’s offer to accept payment on Friarton’s own assessment were an inadequate answer because “if the assessed values were upheld or insufficiently reduced”, those payments would be lost. Indeed, the City’s offer was characterized as “an affront to our judicial system.” The Appellate Division unanimously affirmed without opinion, 79 A.D.2d 899, 435 N.Y.S.2d 871 (1980).
Friarton then appealed to the Court of Appeals on constitutional grounds pursuant to CPLR 5601(b)(1). The constitutional claims were stated to include:
Whether summary judgment of in rem tax foreclosure pursuant to Title D of the Administrative Code of the City of New York is an impermissible deprivation of property without due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and under Article 1, § 6 of the New York State Constitution, when the property owners have been denied a prior or contemporaneous hearing in any court on the validity and constitutionality of the assessed valuations on which the allegedly due taxes are based, and denied consolidation of their tax certiorari cases with the in rem foreclosure suit?
Friarton also claimed that it had been deprived of its property
without due process of law under the Federal and State Constitutions, by subjecting [it] to in rem foreclosure by the City without the opportunity to make constitutional, inequality and other legal challenges
to assessments at “large multiples” of market value on property “rendered economically and functionally worthless by the City’s multi-dimensional ‘regulatory’ controls”, and that
foreclosure for water and sewer taxes alone is likewise unconstitutional when the effect is to deprive owners of property without the opportunity of a prior or contemporaneous hearing on the validity of the primary tax in dispute.
The City also indicates that, in Friarton’s brief to the New York Court of Appeals,
Friarton rejected the rule that taxes must be paid first and their alleged ex-cessiveness litigated later, stating — “the rule does not apply when city officials make ‘willful abuse of the tax laws’ rendering review proceedings ‘meaningless’ ” citing Grant v. Srogi, 71 A.D.2d 457, 470-1, 423 N.Y.S.2d 324 (4th Dept., 1979), where tax collection was enjoined for such abuse of the tax laws; and that “the City had systematically circumvented in the most blatant manner any possibility that appellants’ pending tax certiorari proceedings will be reached for trial within any reasonable period.
The Court of Appeals dismissed Friarton’s appeal on March 26,1981, “upon the ground that no substantial constitutional question is directly involved”, Friarton Estates Corp. v. City of N. Y., 53 N.Y.2d 795, 439 N.Y. S.2d 1031, 422 N.E.2d 597 (1981).
However, this was not to be the end of the proceedings in the state courts. When the City moved at Special Term to reinstate the supplemental judgments of foreclosure, Friarton cross-moved, under CPLR § 5015(a)(2), (a)(3), for an order staying enforcement of the judgments and “directing immediate trials for dates certain ... in the above-mentioned tax certiorari proceedings.” The newly discovered evidence offered pursuant to § 5015(a)(2) was the Freewalt stay, which had been entered just prior to the decision of the Appellate Division, and an article about New York City Tax Assessments published in the New York Times of April 24, 1981. The themes were familiar — an alleged five to eight years of purposeful and wrongful delays in processing the certioraris as contrasted with the two years allegedly set as a maximum in Rosewell v. La Salle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981), and the power of a New York court, now made explicit by W. T. Grant Co. v. Srogi, 52 N.Y.2d 496, 515-18, 438 N.Y.S.2d 754, 420 N.E.2d 946 (1981), decided by the Court of Appeals only a few weeks after its dismissal of Friarton’s appeal, to enjoin a city from collecting real estate taxes pending the decision of certiorari proceedings “[wjhere there has been a deliberate misuse of the taxing power”. Id. at 517, 438 N.Y.S.2d 754, 420 N.E.2d 946. On May 6, 1981, Special Term denied Friarton’s cross-motion and permitted the City to take title.
Less than a fortnight later, on May 19, 1981, Friarton began this action. Also, on June 22, 1981, it petitioned the Supreme Court of the United States for certiorari to review the judgment of the Court of Appeals. The grounds for the petition were the usual ones: The assessments were based on valuations that were grossly excessive because of their failure to take into account operating losses caused by the combination of New York City rent controls and service requirements, and “By a variety of procedural delays, the City of New York had blocked trial of tax certiorari proceedings”. Reference was made to the Free-walt stay. The Supreme Court, denied cer-tiorari on 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981).
IV.
We have set out the history of the state court litigation at this length because, save perhaps for the argument as to the Freewalt stay, which we will consider separately below, mere statement is all that is required to support the City’s argument of res judicata, which the district court rejected. All the constitutional contentions which the district judge found so persuasive in plaintiffs’ favor — the long delays in the proceeding of certioraris, the inequity of foreclosure for failure to pay possibly erroneous taxes without an opportunity for timely challenge, the allegedly unsatisfactory character of the remedies of partial payment which plaintiffs had by virtue of statute and of the City’s ad hoc offer —were advanced not once but time and again at each of the three levels of the New York court system and on petition for cer-tiorari to the United States Supreme Court. It is of no consequence whether the district court or this court agrees or disagrees with the determinations of the New York courts on issues fully raised before and necessarily decided by them. Res judicata protects wrong decisions as fully as right ones. It is immaterial that the questions were constitutional in character, Rooker v. Fidelity Trust Co., 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923), or that they are now asserted in an action under 42 U.S.C. § 1983, Allen v. McCurry, 449 U.S. 90, 96-105, 101 S.Ct. 411, 416, 420, 66 L.Ed.2d 308 (1980); Ellentuck v. Klein, 570 F.2d 414, 425 (2 Cir. 1978). We need not here debate whether in such an action 28 U.S.C. § 1738 applies in its full vigor or is subject to some limitations, see Judge Waterman’s discussion in Winters v. Lavine, 574 F.2d 46, 54-60 (2 Cir. 1978). On any view a taxpayer may not engage in extensive proceedings throughout the state court system, and then, after every point has been decided against him by the state courts and the Supreme Court has denied certiorari, make a fresh start in federal court. These considerations are of particular pertinence where a federal court plaintiff seeks further delay in the collection of city taxes of which, in state court proceedings, he has thwarted collection, even of water and sewage charges, for eight years. See Dows v. City of Chicago, 11 Wall. (78 U.S.) 108, 110, 20 L.Ed. 65 (1870), quoted with approval in Fair Assessment in Real Estate Association v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981).
The district judge, of course, was as well aware of these principles as we are. He thought them inapplicable. To the correctness of that determination we now turn.
The first ground advanced was that “Since plaintiffs’ counterclaims were severed and continued as a separate action which has never reached trial or a determination on the merits, the state court judgment was not responsive to these issues, and Rooker does not bar this court from addressing those issues.” 525 F.Supp. at 1258. What this neglects is that the severed counterclaims were simply the present plaintiffs’ claims for damages arising from the effect of rent control, not their affirmative defenses to the foreclosure which the judge at Special Term allowed them to plead. Plaintiffs fully recognized this, to the tune of scores of pages of affidavits and briefs at Special Term, in the Appellate Division, in the Court of Appeals, and in the Supreme Court of the United States.
The district court went on to say that plaintiffs did not have a full and fair opportunity “in the earlier litigation to address the legal and factual issues claimed to be decisive in the current action.” Id. However, as to this also the judge relied on the severance of the counterclaims and ignored the retention of the affirmative defenses. Present plaintiffs did have a full and fair opportunity to present to the state courts their contention that the procedure followed by the City — pushing ahead with the in rem proceeding while no action had been taken in the certioraris — violated their Fourteenth Amendment rights. Although the opinion of the Special Term may not constitute an altogether satisfying answer to plaintiffs’ claims, the Appellate Division wrote none, and the Court of Appeals simply branded plaintiffs’ constitutional claim as insubstantial, the record leaves no room for doubt that the claims of lack of due process and taking of property without just compensation were fully presented to the New York courts, and that those courts, entertained them but denied them on the merits.
We have reserved the question of the delay resulting from the Freewalt stay for separate consideration. Arguably that too is barred by res judicata since it was raised in the cross-motion of April 1981 under CPLR § 5015(a)(2) and Friarton took no appeal from the denial of that motion. Against this it can be urged that § 5015(a) states that a court “may” grant relief from a judgment, and that, in denying the motion, the Special Term might have availed itself of a discretion seemingly thus confided and may not have reached the merits. Under 28 U.S.C. § 1738 the order denying the § 5015(a) motion would have whatever res judicata effect would be accorded to it by New York law. The parties have cited no New York authorities on this question and our research has discovered none except a decision at Special Term, Rae v. Rosenberg, 67 Misc.2d 881, 882, 324 N.Y.S.2d 898 (1971) (discussing predecessor to § 5015(d)), which is of comfort to the plaintiffs. While a New York court confronted with the problem would doubtless consult decisions with respect to the comparable F.R.Civ.P. 60(b), it would find little guidance, see 18 Wright, Miller & Cooper, Federal Practice and Procedure § 4447 (1981), and cases there cited. Although we incline to the view that, since it raised the Free-walt stay issue in the state court and there is no indication that the state court did not decide it on the merits, Friarton should be bound by that court’s adverse ruling, we prefer not to rest decision upon that ground but rather to address this portion of Friar-ton’s argument upon the merits.
It is not clear in the first place that the Freewalt stay has any relevance. The state courts upheld the judgment that the City was entitled to take the properties on May 20,1980, despite the lack of progress on the certioraris. The City would have taken possession except for the stays granted in this action pending two levels of appellate review which did not expire until March 26, 1981. Since the City’s right to take title vested on May 20, 1980, it is hard to see that a further postponement of trials in the certioraris as a result of the Freewalt stay, entered on December 5, 1980, is material.
Beyond that, the Freewalt stay was reasonable under the circumstances. The justification for the original stay in Colt and the later Freewalt stay was that if the certiorari proceedings were tried before Colt was decided by the Court of Appeals and that court should then decide in favor of allowing proof of. inequality by SBEA ratios, the expense to the parties and the burden on the courts incident to proving inequality by presenting evidence of the values of similar parcels would have been wasted. Friarton in effect acquiesced in this, since it never moved as another taxpayer, 40 Sutton Associates, did with the City’s acquiescence, albeit unsuccessfully, for a trial on the basis of values of similar parcels. Moreover, the City plausibly urged that it would be more economical both for the courts and the parties if many of the certiorari proceedings were simultaneous, which would reduce the aggregate litigation burden since ratios for parcels of like character could thus be determined only once, in a joint proceeding. Once it had been decided to stay the inequality calendar for these reasons, it was reasonable to stay the overvaluation proceedings for cases where there was also an inequality challenge because, depending upon the eviden-tiary rule ultimately adopted, there might be substantial overlap in proof between the two proceedings. The New York courts handled the Colt Industries case expeditiously, so that the Freewalt stay lasted only 13 months, from December 1980 through the decision by the Court of Appeals in the Colt Industries case on January 7, 1982. We do not read the Rosewell decision, supra, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464, as setting an outside limit of two years and precluding consideration of special circumstances that may justify further delay. Since expiration of the stay, the City has moved to schedule trials with reasonable speed.
The result is that plaintiffs’ claims of denial of Fourteenth Amendment rights by delays prior to May 20, 1980, are barred by res judicata and its claim of subsequent delay, even if relevant, is without merit. We therefore reverse the grant of the preliminary injunction preventing the City from executing the judgment of the Special Term permitting it to take title to the properties. In so doing we would hope, although we cannot properly require, that the City will leave open for a reasonable period of say 30 days from the coming down of our mandate the opportunity to plaintiffs to avoid execution by paying the water rents, sewage charges and the taxes resulting from plaintiffs’ own valuation and agreeing to pay the balance of taxes found to be due within 60 days of entry of a state court judgment following adjudication of the tax certiorari cases and any appeal of such an adjudication, to which we have previously referred. Now that the string has been played out, plaintiffs may consider the latter opinion more seriously than they did last summer when the City renewed its offer.
We believe also that, as urged by the City, this is an appropriate case for invoking the doctrine of Smith v. Vulcan Iron Works, 165 U.S. 518, 525, 17 S.Ct. 407, 410, 41 L.Ed. 810 (1897); North Carolina Railroad Co. v. Story, 268 U.S. 288, 292, 45 S.Ct. 531, 532, 69 L.Ed. 959 (1925); and CES Publishing Corp. v. St. Regis Publications, Inc., 531 F.2d 11, 15 (2 Cir. 1975), that when on an appeal from the grant of a preliminary injunction it appears that the “bill had no equity to support it”, 165 U.S. at 525, 17 S.Ct. at 410, a court of appeals should direct dismissal of the complaint. The facts critical to a decision here are found in the record of state court actions, there is no indication that anything more could be produced at a trial, and plaintiffs’ efforts to postpone the payment of water and sewage charges and of taxes admittedly due have gone on long enough.
The order granting a preliminary injunction is reversed and the cause is remanded with directions to dismiss the complaint.
. This provides:
The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.
. Although the point is not of importance in this case, we take occasion to remind district judges that the statement in Sonesta International Hotels is not this circuit’s last word on entitlement to a preliminary injunction. We have further refined the statement in that opinion to read that preliminary
injunctive relief clearly calls for a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the party requesting the preliminary relief.
Jackson Dairy, Inc. v. H. P. Hood & Sons, Inc., 596 F.2d 70, 72 (2 Cir. 1979) (per curiam); see Caulfield v. Board of Education, 583 F.2d 605, 610 (2 Cir. 1978); State of New York v. Nuclear Regulatory Commission, 550 F.2d 745, 750 (2 Cir. 1977) (stressing the requirement of irreparable injury on the second branch); and Judge Mulligan’s article, Preliminary Injunction in the Second Circuit, 43 Brooklyn L.Rev. 831 (1977).
. (i) Plaintiffs neglect or fail to go to trial on their tax certiorari cases when and if permitted to do so; or
(ii) Plaintiffs fail to pay within sixty (60) days after entry of a state court judgment, taxes and penalties as found due following the adjudication of the tax certiorari cases, with respect to any fiscal year comprised within the pleadings in In Rem Foreclosure No. 29; or
(iii) Any other change in fact or law occurs after the date hereof and renders continued injunctive relief inequitable or unnecessary.
. Friarton makes much of Justice Mangan’s remark that “inequality actions within the City have been as rare as a robin in January.” The rarity was not due to unwillingness of the New York courts to hear such cases but to difficulties of proof, not shown to be unconstitutional.
. The offer was conditioned on Friarton’s agreeing that if in the certiorari proceedings the court should fix values above those claimed by Friarton, the latter would pay taxes on such values within 60 days and consent to the City’s entering summary judgment ex parte upon its failure to do so. We read this as meaning that the 60 days would not begin to run until the appellate process was exhausted. If Friarton had any doubts on this score, discussion could have resolved them. Friarton’s counsel admitted at oral argument that no attempts at clarification were pursued.
. In this court plaintiffs object to the “self-assessment” remedy not so much on the ground asserted in the state court, namely, that until the certioraris were decided, making such payment might be sending good money after bad — a position plainly at war with the general principle of “pay first, litigate later” relating to claims of excessive taxation, see, e.g., State Railroad Tax Cases, 92 U.S. 575, 613-14, 23 L.Ed. 663 (1876); Phillips v. Commissioner, 283 U.S. 589, 595-96, 51 S.Ct. 608, 611, 75 L.Ed. 1288 (1931) — as on the basis that knowledge of the ultimate tax liability was essential to permit plaintiffs to secure financing. This is not a new issue but simply another argument with respect to the adequacy of the solutions proffered by the City, which could perfectly well have been made in the state courts and is barred by the doctrine of res judicata.
. This provides:
The Acts of the legislature of any State, Territory, or Possession of the United States, or copies thereof, shall be authenticated by affixing the seal of such State, Territory or Possession thereto.
The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.
Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Terri-tones and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.
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: |
sc_decisiondirection | A | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. 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. In interstate relations and private law issues, consider unspecifiable in all cases.
PRESLEY v. ETOWAH COUNTY COMMISSION et al.
No. 90-711.
Argued November 12, 1991
Decided January 27, 1992
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O’Connor, Scalia, Souter, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which White and Blackmun, JJ., joined, post, p. 510.
Edward Still argued the cause for appellants in both cases. With him on the briefs were Pamela Karlan, Lani Guinier, James U. Blacksher, and John C. Falkenberry.
Robert A. Long, Jr., argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Deputy Assistant Attorney General Clegg, and David K. Flynn.
Paul M. Smith argued the cause for appellees in both cases. With him on the brief for appellee Etowah County Commission were George Howell (Jack) Floyd and Mary Ann Ross Stackhouse. James W. Webb and Kendrick E. Webb filed a brief for appellee Russell County Commission.
Together with No. 90-712, Mack et al. v. Russell County Commission et al., also on appeal from the same court.
Julius L. Chambers, Charles Stephen Ralston, and Dayna L. Cunningham filed a brief for the NAACP Legal Defense and Educational Fund, Inc., as amicus curiae urging reversal.
Justice Kennedy
delivered the opinion of the Court.
In various Alabama counties voters elect members of county commissions whose principal function is to supervise and control the maintenance, repair, and construction of the county roads. See Ala. Code §§11-3-1, 11-3-10 (1975). The consolidated appeals now before us concern certain changes in the decisionmaking authority of the elected members on two different county commissions, and the question to be decided is whether these were changes “with respect to voting” within the meaning of § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U. S. C. § 1973c. These cases have significance well beyond the two county commissions; for the appellants, and the United States as amicus curiae, ask us to adopt a rule embracing the routine actions of state and local governments at all levels. We must interpret the provisions of § 5, which require a jurisdiction covered by the Act to obtain either judicial or administrative preclearance before enforcing any new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.”
I
To determine whether there have been changes with respect to voting, we must compare the challenged practices with those in existence before they were adopted. Absent relevant intervening changes, the Act requires us to use practices in existence on November 1, 1964, as our standard of comparison.
A
We consider first the Etowah County Commission. On November 1, 1964, commission members were elected at large under a "residency district" system. The entire electorate of Etowah County voted on candidates for each of the five seats. Four of the seats corresponded to the four residency districts of the county. Candidates were required to reside in the appropriate district. The fifth member, the chairman, was not subject to a district residency requirement, though residency in the county itself was a requirement.
Each of the four residency districts functioned as a road district. The commissioner residing in the district exercised control over a road shop, equipment, and road crew for that district. It was the practice of the commission to vote as a collective body on the division of funds among the road districts, but once funds were divided each commissioner exercised individual control over spending priorities within his district. The chairman was responsible for overseeing the solid waste authority, preparing the budget, and managing the courthouse building and grounds.
Under a consent decree issued in 1986, see Dillard v. Crenshaw County, Civ. Action No. 85-T-1332-N (MD Ala., Nov. 12,1986), the commission is being restructured, so that after a transition period there will be a six-member commission, with each of the members elected by the voters of a different district. The changes required by the consent decree were precleared by the Attorney General. For present purposes, it suffices to say that when this litigation began the commission consisted of four holdover members who had been on the commission before the entry of the consent decree and two new members elected from new districts. Commissioner Williams, who is white, was elected from new district 6, and Commissioner Presley, who is black, was elected from new district 5. Presley is the principal appellant in the Etowah County case. His complaint relates not to the elections but to actions taken by the four holdover members when he and Williams first took office.
On August 25, 1987, the commission passed the “Road • Supervision Resolution.” It provided that each holdover commissioner would continue to control the workers and operations assigned to his respective road shop, which, it must be remembered, accounted for all the road shops the county had. It also gave the four holdovers joint responsibility for overseeing the repair, maintenance, and improvement of all the roads of Etowah County in order to pick up the roads in the districts where the new commissioners resided. The new commissioners, now foreclosed from exercising any authority over' roads, were given other functions under the resolution. Presley was to oversee maintenance of the county courthouse and Williams the operation of the engineering department. The Road Supervision Resolution was passed by a 4-to-2 margin, with the two new commissioners dissenting.
The same day the Road Supervision Resolution was passed, the commission passed a second, the so-called “Common Fund Resolution.” It provides in part that
“all monies earmarked and budgeted for repair, maintenance and improvement of the streets, roads and public ways of Etowah County [shall] be placed and maintained in common accounts, [shall] not be allocated, budgeted or designated for use in districts, and [shall] be used county-wide in accordance with need, for the repair, maintenance and improvement of all streets, roads and public ways in Etowah County which are under the jurisdiction of the Etowah County Commission.” App. to Juris. Statement in No. 90-711, p. 49a.
This had the effect of altering the prior practice of allowing each commissioner full authority to determine how to spend the funds allocated to his own district. The Etowah County Commission did not seek judicial or administrative preclearance of either the Road Supervision Resolution or the Common Fund Resolution. The District Court held that the Road Supervision Resolution was subject to preclearance but that the Common Fund Resolution was not. No appeal was taken from the first ruling, so only the Common Fund Resolution is before us in the Etowah County case.
B
We turn next to the background of the Russell County Commission. On November 1, 1964, it had three commissioners. Like the members of the Etowah County Commission before the consent decree change, Russell County Commissioners were elected at large by the entire electorate, subject to a requirement that a candidate for commissioner reside in the district corresponding to the seat he or she sought. A 1972 federal court order, see Anthony v. Russell County, No. 961-E (MD Ala., Nov. 21, 1972), required that the commission be expanded to include five members. The two new members were both elected at large from one newly created residency district for Phenix City, the largest city in Russell County. Following the implementation of the court order, each of the three rural commissioners had individual authority over his own road shop, road crew, and equipment. The three rural commissioners also had individual authority for road and bridge repair and construction within their separate residency districts. Although funding for new construction and major repair projects was subject to a vote by the entire commission, individual commissioners could authorize expenditures for routine repair and maintenance work as well as routine purchase orders without seeking approval from the entire commission.
Following the indictment of one commissioner on charges of corruption in Russell County road operations, in May 1979 the commission passed a resolution delegating control over road construction, maintenance, personnel, and inventory to the county engineer, an official appointed by the entire commission and responsible to it. The engineer’s previous duties had been limited to engineering and surveying services for the separate road shops and running a small crew devoted to pothole repair. Although the May 1979 resolution may have sufficed for the necessary delegation of authority to the county engineer, compare Ala. Code § 23-1-80 (1975) with Ala. Code § 11-6-3 (1975), the commission also requested the state legislature to pass implementing legislation. The Alabama Legislature did so on July 30, 1979, when it enacted Act No. 79-652, 1979 Ala. Acts 1132. It provides in pertinent part:
“Section 1. All functions, duties and responsibilities for the construction, maintenance and repair of public roads, highways, bridges and ferries in Russell County are hereby vested in the county engineer, who shall, insofar as possible, construct and maintain such roads, highways, bridges and ferries on the basis of the county as a whole or as a unit, without regard to district or beat lines.”
The parties refer to abolition of the individual road districts and transfer of responsibility for all road .operations to the county engineer as the adoption of a “Unit System.” Neither the resolution nor the statute which authorized the Unit System was submitted for preclearance under § 5.
Litigation involving the Russell County Commission led to a 1985 consent decree, see Sumbry v. Russell County, No. 84-T-1386-E (MD Ala., Mar. 17,1985), that enlarged the commission to seven members and replaced the at-large election system with elections on a district-by-district basis. Without any mention of the Unit System changes, the consent decree was precleared by the Department of Justice under §5. Following its implementation, appellants Mack and Gosha were elected in 1986. They are Russell County’s first black county commissioners in modern times.
C
In May 1989, appellants in both cases now before us filed a single complaint in the District Court for the Middle District of Alabama, alleging racial discrimination in the operation of the Etowah and Russell County Commissions in violation of prior court orders, the Constitution, Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d, and § 2 of the Voting Rights Act, 42 U. S. C. § 1973. In a series of amended complaints, appellants added claims under § 5. The § 5 claims alleged that Etowah County had violated the Act by failing to obtain preclearance of the 1987 Road Supervision and Common Fund Resolutions, and that Russell County had failed to preclear the 1979 change to the Unit System. Pursuant to 28 U. S. C. § 2284, a three-judge District Court was convened to hear appellants' § 5 claims. The other claims still pend in the District Court.
With respect to the issues now before us, a majority of the District Court held that neither the Common Fund Resolution of the Etowah County Commission nor the adoption of the Unit System in Russell County was subject to § 5 pre-clearance. The court held that changes in the responsibilities of elected officials are subject to preclearance when they "effect a significant relative change in the powers exercised by governmental officials elected by, or responsible to, substantially different constituencies of voters." App. to Juris. Statement in No. 90-711, pp. 13a-14a. Applying its test, the court found that the Common Fund Resolution in Etowah County did not effect a significant change and adoption of the Unit System in Russell County did not transfer authority among officials responsible to different constituencies. We noted probable jurisdiction. 500 U. S. 914 (1991). We affirm the District Court but adopt a different interpretation of § 5 as the rationale for our decision.
II
We first considered the Voting Rights Act in South Carolina v. Katzenbach, 383 U. S. 301 (1966). Although we acknowledged that suspension of new voting regulations pending preclearance was an extraordinary departure from the traditional course of relations between the States and the Federal Government, id., at 334, we held it constitutional as a permitted congressional response to the unremitting attempts by some state and local officials to frustrate their citizens’ equal enjoyment of the right to vote. See id., at 308-315.
After South Carolina v. Katzenbach upheld the Voting Rights Act against a constitutional challenge, it was not until we heard Allen v. State Bd. of Elections, 393 U. S. 544 (1969), that we were called upon to decide whether particular changes were covered by §5. There'we rejected a narrow construction, one which would have limited § 5 to state rules prescribing who may register to vote. We held that the section applies also to state rules relating to the qualifications of candidates and to state decisions as to which offices shall be elective. Id., at 564-565. We observed that “[t]he Voting Rights Act was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” Id., at 565. Our decision, and its rationale, have proved sound, and we adhere to both.
In giving a broad construction to §5 in Allen, we noted that “Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.” Id., at 566. Relying on this language and its application in later cases, appellants and the United States now argue that because there is no de minimis exception to § 5, the changes at issue here must be subject to preclearance. E. g., Brief for United States as Amicus Curiae 21-22. This argument, however, assumes the answer to the principal question in the case: whether the changes at issue are changes in voting, or as we phrased it in Allen, “election law.”
We agree that all changes in voting must be precleared and with Allen’s, holding that the scope of §5 is expansive within its sphere of operation. That sphere comprehends all changes to rules governing voting, changes effected through any of the mechanisms described in the statute. Those mechanisms are any “qualification or prerequisite” or any “standard, practice, or procedure with respect to voting.”
The principle that § 5 covers voting changes over a wide range is well illustrated by the separate cases we considered in the single opinion for the Court in Allen. Allen involved four cases. The eponymous Allen v. State Bd. of Elections concerned a change in the procedures for the casting of write-in ballots. 393 U. S., at 570-571. In Whitley v. Williams, there were changes in the requirements for independent candidates running in general elections. Id., at 551. The challenged procedure in Fairley v. Patterson resulted in a change from single-district voting to at-large voting. Id., at 550. The remaining case, Bunton v. Patterson, involved a statute which provided that officials who in previous years had been elected would be appointed. Id., at 550-551. We held that the changes in each of the four cases were covered by § 5.
Our cases since Allen reveal a consistent requirement that changes subject to §5 pertain only to voting. Without implying that the four typologies exhaust the statute’s coverage, we can say these later cases fall within one of the four factual contexts presented in the Allen cases. First, we have held that § 5 applies to cases like Allen v. State Bd. of Elections itself, in which the changes involved the manner of voting. See Perkins v. Matthews, 400 U. S. 379,387 (1971) (location of polling places). Second, we have held that §5 applies to cases like Whitley v. Williams, which involve candidacy requirements and qualifications. See NAACP v. Hampton County Election Comm’n, 470 U. S. 166 (1985) (change in filing deadline);. Hadnott v. Amos, 394 U. S. 358 (1969) (same); Dougherty County Bd. of Ed. v. White, 439 U. S. 32 (1978) (rule requiring board of education members to take unpaid leave of absence while campaigning for office). Third, we have applied § 5 to cases like Fairley v. Patterson, which concerned changes in the composition of the electorate that may vote for candidates for a given office. See Perkins v. Matthews, 400 U. S., at 394 (change from ward to at-large elections); id., at 388 (boundary lines of voting districts); City of Richmond v. United States, 422 U. S. 358 (1975) (same). Fourth, we have made clear that §5 applies to changes, like the one in Bunion v. Patterson, affecting the creation or abolition of an elective office. See McCain v. Lybrand, 465 U. S. 236 (1984) (appointed officials replaced by elected officials); Lockhart v. United States, 460 U. S. 125 (1983) (increase in number of city councilors).
The first three categories involve changes in election procedures, while all the examples within the fourth category might be termed substantive changes as to which offices are elective. But whether the changes are of procedure or substance, each has a direct relation to voting and the election process.
III
A comparison of the changes at issue here with those in our prior decisions demonstrates that the present cases do not involve changes covered by the Act.
A
The Etowah County Commission’s Common Fund Resolution is not a change within any of the categories recognized in Allen or our later cases. It has no connection to voting procedures: It does not affect the manner of holding elections, it alters or imposes no candidacy qualifications or requirements, and it leaves undisturbed the composition of the electorate. It also has no bearing on the substance of voting power, for it does not increase or diminish the number of officials for whom the electorate may vote. Rather, the Common Fund Resolution concerns the internal operations of an elected body.
Appellants argue that the Common Fund Resolution is a covered change because after its enactment each commissioner has less individual power than before the resolution. A citizen casting a ballot for a commissioner today votes for an individual with less authority than before the resolution, and so, it is said, the value of the vote has been diminished.
Were we to accept appellants’ proffered reading of § 5, we would work an unconstrained expansion of its coverage. Innumerable state and local enactments having nothing to do with voting affect the power of elected officials. When a state or local body adopts a new governmental program or modifies an existing one it will often be the case that it changes the powers of elected officials. So too, when a state or local body alters its internal operating procedures, for example, by modifying its subcommittee assignment system, it “implicate^] an elected official’s decisionmaking authority.” Brief for United States as Amicus Curiae 17-18 (emphasis in original).
Appellants and the United States fail to provide a workable standard for distinguishing between changes in rules governing voting and changes in the routine organization and functioning of government. Some standard is necessary, for in a real sense every decision taken by government implicates voting. This is but the felicitous consequence of democracy, in which power derives from the people. Yet no one would contend that when Congress enacted the Voting Rights Act it meant to subject all or even most decisions of government in covered jurisdictions to federal supervision. Rather, the Act by its terms covers any “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U. S. C. § 1973c. A faithful effort to implement the design of the statute must begin by drawing lines between those governmental decisions that involve voting and those that do not.
A simple example shows the inadequacy of the line proffered by appellants and the United States. Under appellants’ view, every time a covered jurisdiction passed a budget that differed from the previous year’s budget it would be required to obtain preclearanee. The amount of funds available to an elected official has a profound effect on the power exercised. A vote for an ill-funded official is less valuable than a vote for a well-funded one.
No doubt in recognition of the unacceptable consequences of their views, appellants take the position that while “some budget changes may affect the right to vote and, under particular circumstances, would be subject to preclearance,” most budget changes would not. Postargument Letter from Counsel for Appellants, Nov. 13, 1991 (available in Clerk of Court’s case file). Under their interpretation of §5, however, appellants fail to give any workable standard to determine when preclearance is required. And were we to acknowledge that a budget adjustment is a voting change in even some instances, the likely consequence is that every budget change would be covered, for it is well settled that every voting change with a “potential for discrimination” must be precleared. Dougherty County Bd. of Ed. v. White, 439 U. S., at 42.
Confronting this difficulty, at oral argument the United States suggested that we draw an arbitrary line distinguishing between budget changes and other changes, Tr. of Oral Arg. 21-23. There is no principled basis for the distinction, and it would be a marked departure from the statutory category of voting. If a diminution or increase in an elected official’s powers is a change with respect to voting, then whether it is accomplished through an enactment or a budget shift should not matter. Even if we were willing to draw an unprincipled line excluding budgetary changes but not other changes in an elected official’s decisionmaking authority, the result would expand the coverage of § 5 well beyond the statutory language and the intention of Congress.
Under the view advanced by appellants and the United States, every time a state legislature acts to diminish or increase the power of local officials, preclearance would be required. Governmental action decreasing the power of local officials could carry with it a potential for discrimination against those who represent racial minorities at the local level. At the same time, increasing the power of local officials will entail a relative decrease in the power of state officials, and that too could carry with it a potential for discrimination against state officials who represent racial minorities at the state level. The all but limitless minor changes in the allocation of power among officials and the constant adjustments required for the efficient governance of every covered State illustrate the necessity for us to formulate workable rules to confine the coverage of § 5 to its legitimate sphere: voting.
Changes which affect only the distribution of power among officials are not subject to § 5 because such changes have no direct relation to, or impact on, voting. The Etowah County Commission’s Common Fund Resolution was not subject to the preclearance requirement.
B
We next consider Russell County’s adoption of the Unit System and its concomitant transfer of operations to the county engineer. Of the four categories of changes in rules governing voting we have recognized to date, there is not even an arguable basis for saying that adoption of the Unit System fits within any of the first three. As to the fourth category, it might be argued that the delegation of authority to an appointed official is similar to the replacement of an elected official with an appointed one, the change we held subject to § 5 in Bunton v. Patterson. This approach, however, would ignore the rationale for our holding: “[Ajfter the change, [the citizen] is prohibited from electing an officer formerly subject to the approval of the voters.” Allen, 393 U. S., at 569-570. In short, the change in Bunton v. Patterson involved a rule governing voting not because it effected a change in the relative authority of various governmental officials, but because it changed an elective office to an appointive one.
The change in Russell County does not prohibit voters “from electing an officer formerly subject to the[ir] approval.” Allen, supra, at 570. Both before and after the change the citizens of Russell County were able to vote for the members of the Russell County Commission. To be sure, after the 1979 resolution each commissioner exercised less direct authority over road operations, that authority having been delegated to an official answerable to the commission. But as we concluded with respect to Etowah County, the fact that an enactment alters an elected official’s powers does not in itself render the enactment a rule governing voting.
It is a routine part of governmental administration for appointive positions to be created or eliminated and for their powers to be altered. Each time this occurs the relative balance of authority is altered in some way. The making or unmaking of an appointive post often will result in the erosion or accretion of the powers of some official responsible to the electorate, but it does not follow that those changes are covered by § 5. By requiring preclearance of changes with respect to voting, Congress did not mean to subject such routine matters of governance to federal supervision. Were the rule otherwise, neither state nor local governments could exercise power in a responsible manner within a federal system.
The District Court, wrestling with the problem we now face and recognizing the need to draw principled lines, held that Russell County’s adoption of the Unit System is not a covered change because it did not transfer power among officials answerable to different constituencies. Even upon the assumption (the assumption we reject in this case) that some transfers of power among government officials could be changes with respect to voting as that term is used in the Act, we disagree with the District Court’s test. The question whether power is shifted among officials answerable to the same or different constituencies is quite distinct from the question whether the power'voters exercise over elected officials is affected. Intraconstituency changes may have a large indirect effect on the voters while interconstituency changes may have a small indirect effect, but in neither case is the effect a change in voting for purposes of the Act. The test adopted by the District Court does not provide the workable rule we seek. In any event, because it proceeds from the faulty premise that reallocations of authority within government can constitute voting changes, we cannot accept its approach.
We need not consider here whether an otherwise uncovered enactment of a jurisdiction subject to the Voting Rights Act might under some circumstances rise to the level of a de facto replacement of an elective office with an appointive one, within the rule of Bunton v. Patterson. For present purposes it suffices to note that the Russell County Commission retains substantial authority, including the power to appoint the county engineer and to set his or her budget. The change at issue in Russell County is not a covered change.
IV
The United States urges that despite our understanding of the language of § 5, we should defer to its administrative construction of the provision. We have recognized that “the construction placed upon the [Voting Rights] Act by the Attorney General ... is entitled to considerable deference.” NAACP v. Hampton County Election Comm’n, 470 U. S., at 178-179. See also United States v. Sheffield Bd. of Comm’rs, 435 U. S. 110, 131 (1978). But the principle has its limits. Deference does not mean acquiescence. As in other contexts in which we defer to an administrative interpretation of a statute, we do so only if Congress has not expressed its intent with respect to the question, and then only if the administrative interpretation is reasonable. See, e. g., Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984). Because the first of these conditions is not satisfied in the cases before us we do not defer to the Attorney General’s interpretation of the Act.
We do not believe that in its use of the phrase “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting,” 42 U. S. C. § 1973c, the statute is ambiguous as to the question whether § 5 extends beyond changes in rules governing voting. To be sure, reasonable minds may differ as to whether some particular changes in the law of a covered jurisdiction should be classified as changes in rules governing voting. In that sense § 5 leaves a gap for interpretation to fill. See Chevron, supra, at 843. When the Attorney General makes a reasonable argument that a contested change should be classified as a change in a rule governing voting, we can defer to that judgment. But § 6 is unambiguous with respect to the question whether it covers changes other than changes in rules governing voting: It does not. The administrative position in the present cases is not entitled to deference, for it suggests the contrary. The United States argues that the changes are covered by § 5 because they implicate the decisionmak-ing authority of elected officials, even though they are not changes in rules governing voting. This argument does not meet the express requirement of the statute.
V
Nothing we say implies that the conduct at issue in these cases is not actionable under a different remedial scheme. The Voting Rights Act is not an all-purpose antidiscrimination statute. The fact that the intrusive mechanisms of the Act do not apply to other forms of pernicious discrimination does not undermine its utility in combating the specific evils it was designed to address.
Our prior cases hold, and we reaffirm today, that every change in rules governing voting must be precleared. The legislative history we rehearsed in South Carolina v. Katzenbach was cited to demonstrate Congress’ concern for the protection of voting rights. Neither the appellants nor the United States has pointed to anything we said there or in the statutes reenacting the Voting Rights Act to suggest that Congress meant other than what it said when it made §5 applicable to changes “with respect to voting” rather than, say, changes “with respect to governance.”
If federalism is to operate as a practical system of governance and not a mere poetic ideal, the States must be allowed both predictability and efficiency in structuring their governments. Constant minor adjustments in the allocation of power among state and local officials serve this elemental purpose.
Covered changes must bear a direct relation to voting itself. That direct relation is absent in both cases now before us. The changes in Etowah and Russell Counties affected only the allocation of power among governmental officials. They had no impact on the substantive question whether a particular office would be elective or the procedural question how an election would be conducted. Neither change involves a new “voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.” 42 U. S. C. § 1973c.
The judgment of the District Court is affirmed.
It is so ordered.
As set forth in 42 U. S. C. § 1973c, § 5 provides:
“Whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the first sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1964, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the second sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1968, or whenever a State or political subdivision with respect to which the prohibitions set forth in section 1973b(a) of this title based upon determinations made under the third sentence of section 1973b(b) of this title are in effect shall enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972, such State or subdivision may institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, and unless and until the court enters such judgment no person shall be denied the right to vote for failure to comply with such qualification, prerequisite, standard, practice, or procedure: Provided, That such qualification, prerequisite, standard, practice, or procedure may be enforced without such proceeding if the qualification, prerequisite, standard, practice, or procedure has been submitted by the chief legal officer or other appropriate official of such State or subdivision to the Attorney General and the Attorney General has not interposed an objection within sixty days after such submission, or upon good cause shown, to facilitate an expedited approval within sixty days after such submission, the Attorney General has affirmatively indicated that such objection will not be made. Neither an affirmative indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object, nor a declaratory judgment entered under this section shall bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure. In the event the Attorney General affirmatively indicates that no objection will be made within the sixty-day period following receipt of a submission, the Attorney General may reserve the right to reexamine the submission if additional information comes to his attention during the remainder of the sixty-day period which would otherwise require objection in accordance with this section. Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 and any appeal shall lie to the Supreme Court."
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer: |
songer_circuit | I | 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.
Francis E. HOLMAN and Eloise F. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee. William M. HOLMAN and Emily L. Holman, his wife, Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
Nos. 76-3671, 76-3672.
United States Court of Appeals, Ninth Circuit.
Nov. 3, 1977.
William M. Holman, Seattle, Wash, (argued), for appellants.
Gilbert S. Rothenberg, Dept, of Justice, Washington, D.C. (argued), for appellee.
Before WALLACE and SNEED, Circuit Judges, and BOLDT , District Judge.
Hon. George H. Boldt, Senior United States District Judge for the Western District of Washington, sitting by designation.
SNEED, Circuit Judge:
Francis E. Holman and William M. Holman were partners in a law firm from which, pursuant to the terms of the partnership agreement, they were expelled. As a consequence, again pursuant to the partnership agreement, they received in the taxable years of 1969 and 1970 certain amounts for their interests in the partnership “inventory” which the partnership agreement defined to mean “accounts receivable” and “unbilled services.”
The Holmans argue that these amounts in their entirety are entitled to be taxed as capital gains. The Commissioner insists that these amounts should be taxed as ordinary income. The Tax Court agreed with the Commissioner, Francis E. Holman, 66 T.C. 809 (1976), and so do we.
The position of the Holmans is not lacking in ingenuity. Essentially it is that these payments, having been made pursuant to an “expulsion” rather than because of a partner’s death, retirement, or his transfer of his partnership interest, escape the reach of sections 736 and 751 of the 1954 Internal Revenue Code and perforce must be governed by the final sentence of section 731(a). That sentence reads:
“Any gain or loss recognized under this subsection shall be considered a gain or loss from the sale or exchange of the partnership interest of the distributee partner.”
Inasmuch as their partnership interest constituted a capital asset the Holmans contend that this sentence dictates that the amounts in question be treated as capital gain.
The Commissioner’s contention is that the payments do not escape the reach of sections 736 and 751 and that as a consequence the tax characteristics of the amounts are governed by those sections and not by the final sentence of section 731(a). Insofar as section 736 is concerned, the Commissioner insists that each of the taxpayers was a “retiring partner” in receipt of a “guaranteed payment,” as described in section 736(a)(2), which constituted payment for “unrealized receivables of the partnership” as employed in section 736(b) and defined in section 751(c). Such payments, pursuant to section 736(b) are not “in exchange for the interest of such partner in the partnership” and thus not entitled to capital gains treatment. The applicable regulation supports the Commissioner. It provides that “A partner retires when he ceases to be a partner under the local law.” Income Tax Reg. § 1.736 — l(a)(l)(ii).
We hold that the Commissioner’s analysis, with which the Tax Court agreed, is correct. We do this because we are convinced that Congress in this context did not intend to draw a distinction between a partner who voluntarily withdraws from a partnership because of age or other reasons and a partner who is expelled from the partnership. The above quoted regulation correctly reflects that intention. Moreover, an interpretive regulation, not unreasonable and not obviously inconsistent with the statute, should be given effect. See Kean v. Commissioner of Internal Revenue, 469 F.2d 1183 (9th Cir. 1972).
An interpretation which recognized the distinction between retirement and expulsion for the purpose of permitting payments on expulsion to be taxed as capital gains, while identical payments on retirement would be taxed as ordinary income, would bear no sensible relationship to the purposes reflected by the séetions of the Code involved here. Congress intended that payments by a partnership to a partner for his share of the partnership’s receivables should be taxed as ordinary income to the recipient and not taxed at all to the remaining partners. Cf. 1 Willis, Partnership Taxation, § 46.01-46.03 (1976). This purpose is furthered by the Commissioner’s interpretation; it would be frustrated to a degree by that of the taxpayers. We have no desire to encourage the use of “expulsions” to circumvent the normal operation of sections 731, 736 and 751.
AFFIRMED.
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_genresp1 | 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.
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.
James L. POLK and Mattie B. Polk, Plaintiffs-Appellants, v. DIXIE INSURANCE COMPANY, Defendant-Appellee.
No. 88-4737
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Sept. 20, 1991.
Jim Waide, Tupelo, Miss., for plaintiffs-appellants.
Suzanne Saunders, Sheila R. Fortenber-ry, Saunders, Abel & Fortenberry, Jackson, Miss., for defendant-appellee.
On Remand From the Supreme Court of the United States
Before POLITZ, GARWOOD and JOLLY, Circuit Judges.
GARWOOD, Circuit Judge:
This is a diversity action brought by plaintiffs-appellants James L. and Mattie B. Polk (the Polks) against defendant-appellee Dixie Insurance Company (Dixie) for fire insurance proceeds and for punitive damages for bad faith denial of their insurance claim. The district court granted Dixie’s motion for summary judgment on the punitive damages claim, and the policy claim was later tried to a jury, which returned a verdict for Dixie, on which the district court rendered judgment.
The Polks then appealed to this Court. They raised three claims of error. The first was that the district court erred in refusing their motion that Dixie’s counsel be required to indicate a nonracial motive for exercising two of its peremptory challenges. The record reflected that before Dixie’s counsel had an opportunity to respond to this motion, the district court denied it on the basis that the government was not involved in the case. We sustained the district court’s ruling in this respect on the authority of the ruling of the en banc Court in Edmonson v. Leesville Concrete Co., Inc., 895 F.2d 218 (5th Cir.1990), that the doctrine of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), does not apply to civil suits between private parties. See Polk v. Dixie Insurance Co., 897 F.2d 1346, 1347 (5th Cir.1990). The Polks’ second assertion of error on appeal to this Court concerned the admission of certain testimony at the jury trial phase of this case. We rejected that assertion of error also. Id. at 1347-48. We also rejected the Polks’ third and final claim of error that related to the district court’s grant of summary judgment in favor of Dixie on the punitive damages claim. Id. at 1350-51.
Thereafter, the United States Supreme Court reversed the decision of our en banc Court in Edmonson and held that Batson applied to civil suits between private parties. Edmonson v. Leesville Concrete Co., Inc., — U.S. -, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991). The Supreme Court then granted the Polks’ petition for writ of certiorari, and in that connection vacated the judgment of this Court and ordered that “the case is remanded to the United States Court of Appeals for the Fifth Circuit for further consideration in light of Edmonson v. Leesville Concrete Co., Inc. ...” Polk v. Dixie Insurance Co., — U.S. -, 111 S.Ct. 2791, 115 L.Ed.2d 965 (1991).
We now have the case pursuant to this remand by the Supreme Court. We do not interpret the Supreme Court’s decision as in any way affecting our ruling that the district court properly granted Dixie’s motion for summary judgment on the punitive damages claim or our disposition of the asserted evidentiary error raised by the Polks in their appeal to this Court.
With respect to the Batson claim, we note that the district court, being of the view that Batson was wholly inapplicable since the suit before it was a civil action between private parties, made no determination whether the Polks had presented a prima facie case of racial discrimination by Dixie in its exercise of its peremptory chai-lenges; nor was Dixie ever afforded an opportunity in the district court to make any showing of nonracial reasons for its peremptory challenges. In these circumstances, and having reconsidered the case in light of the Supreme Court’s opinion in Edmonson, we order that the case be remanded to the district court with directions to determine in the first instance whether the Polks presented a prima facie case of racial discrimination by Dixie in the exercise of its peremptory challenges. If the district court determines that such a prima facie case was presented, it shall afford Dixie the opportunity to show that its complained-of challenges were made for nonracial reasons. If Dixie fails to make such a showing, the district court shall grant the Polks a new trial on their claim to the policy proceeds (but the summary judgment on the punitive damages claim shall not be disturbed). Otherwise, the district court shall deny the Polks relief.
The cause is accordingly remanded to the district court for further proceedings in accordance with this opinion and the Supreme Court’s opinion in Edmonson.
REMANDED.
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_district | H | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Sarah S. WAGNER, Appellant v. Charles A. WAGNER, Appellee.
No. 16187.
United States Court of Appeals District of Columbia Circuit.
Argued April 12,1961.
Decided June 22, 1961.
Mr. W. Cameron Burton, Washington, D. C., with whom Mr. H. George Schweitzer, Washington, D. C., was on the brief, for appellant.
Mr. John J. Pyne, Washington, D. C., for appellee.
Before Bazelon, Washington and Burger, Circuit Judges.
WASHINGTON, Circuit Judge.
This case presents questions concerning the validity of substituted service, and questions as to jurisdiction, in a suit against a former husband to enforce support for a wife and a minor son and to subject a certain house, in which the wife asserts an interest, to such support payments.
Appellant filed her suit in the District Court. Her complaint alleges, inter alia, that she and the appellee-husband were married in 1939 and lived together in the District of Columbia until 1953, when appellee left her and moved to Ohio, where he presently resides; that he obtained an ex parte divorce decree from an Ohio court in 1958, pursuant to which the custody of their minor son was awarded to her, and appellee was ordered to pay $15.00 per week for the child’s support; that no provision was there made for her support; that she is unable to support herself and the child and is in debt; that the parties lived while married in a house at 3929 Ames St., N. E., in the District of Columbia, which is shown by the land records to be owned by appellee; that appellant assisted in the purchase of the property by making some of the payments on the trust note; and that the appellee contemplates selling the house. She prays for a judgment requiring appellee to pay reasonable support for herself and the minor son, for an injunction against a sale of the house by appellee, for a determination of her property rights in the real estate, and for an order subjecting the realty to the support payments requested.
The complaint was served personally upon appellee at his residence in Ohio. He entered a special appearance and moved to quash service of process on the ground that the action is in personam and that personal service upon him outside the District is not authorized. The District Court granted the motion to quash service, and upon its own motion, dismissed the complaint for want of jurisdiction over the subject matter. The present appeal was taken after appellant’s motion for rehearing was denied.
I.
We first turn to the jurisdictional questions raised. It is clear that exclusive jurisdiction over the subject matter of the complaint in this case, filed on April 7, 1960, was in the Domestic Relations Branch of the Municipal Court rather than in the District Court, under Section 11-762 of the D.C.Code (1960). That section specifically so provides with respect to civil actions to enforce support of minor children and of a wife and, in such actions, specifically gives the Branch the power to determine and adjudicate rights to real property. Cf. David v. Blumenthal, 110 U.S.App.D.C. 272, 292 F.2d 765, decided June 1, 1961. For purposes of jurisdiction in suits to enforce support, a divorced wife is to be deemed a wife. See Hopson v. Hopson, 1955, 95 U.S.App.D.C. 285, 292, 221 F.2d 839, 846, where we indicated that the right to support is one of the rights of the wife acquired through marriage which will survive an ex parte divorce decree. See also Vanderbilt v. Vanderbilt, 1957, 354 U.S. 416, 77 S.Ct. 1360, 1 L.Ed.2d 1456. While Hopson dealt with the powers of the District Court as they existed in 1955, such powers now have been transferred to the Domestic Relations Branch of the Municipal Court. See Thomason v. Thomason, 1959, 107 U.S. App.D.C. 27, 274 F.2d 89; David v. Blumenthal, supra.
We conclude, therefore, that this complaint should have been brought in the Domestic Relations Branch of the Municipal Court. But it does not follow that dismissal of the suit was the course which the District Court should have taken. In 1959, under very similar circumstances, we remanded a suit for divorce and division of real property to the District Court “with directions to vacate its order dismissing the cause for lack of jurisdiction and to transfer the case to the Municipal Court for trial in that tribunal.” • Harris v. Harris, 1959, 106 U.S.App.D.C. 282, 272 F.2d 511, 512. Implicit in our decision was the holding that service of process in the District Court in a domestic relations case within the exclusive jurisdiction of the Domestic Relations Branch of the Municipal Court was sufficient to commence the action, and that its transfer to the latter court would be the proper course for the District Court to follow. The reasons for this are clear. Jurisdiction over domestic relations was only recently transferred to the Branch, and all problems relating to the extent of the jurisdiction transferred have not yet been settled. At least in the transitional period, courts should not dismiss suits which can properly be transferred. There can be no valid objection to transfer of cases of this sort since the transfer will not affect any substantive right of either party but will merely alter the tribunal which will hear and adjudicate those rights. Cf. David v. Blumenthal, supra.
If, therefore, service of process was effected in the District Court, this case should be transferred to the Municipál Court.
II.
We turn to the question whether service was properly effected. We note, initially, that part of the relief sought by appellant was support for herself and the minor child, an action in personam. Since the former husband was served outside the District of Columbia, an award of support would be “void except as to property within the jurisdiction of the court which has been specifically proceeded against” in the divorce or maintenance action. Gaines v. Gaines, 1946, 81 U.S.App.D.C. 260, 262, 157 F.2d 521, 523. The suit here seeks, in addition to support, to subject the former marital home in the District to the support payments awarded, and prays for a determination of appellant’s property rights in the home and an injunction against its sale. Only by resort to this property (apparently the husband’s only known property within the jurisdiction) would a support award be immediately enforceable. Thus, the immediate object of the suit was to establish and enforce rights or claims to the real property within the jurisdiction of the court. As such, Section 13-108 of the D.C.Code (1951) authorized the use of service by publication, or service outside the District. And we deem this to mean that the service upon the appellee, as so authorized, will enable the trial court to determine not only the wife’s interest in the property but also, after hearing evidence, to provide for payment out of the real property of any support payments to which it finds the appellant and the minor son are entitled.
The appellee-husband contends, however, that something more than substituted service* is required to give the trial court the power to enforce real property rights in a suit for support, i. e., that the real property must be attached at the time of filing such a suit. He cites Buchanan v. National Savings & Trust Co., 1944, 79 U.S.App.D.C. 278, 146 F.2d 13, 15, as requiring this. That case involved a suit against a former husband to establish an interest, on behalf of the former wife and a minor child of the divorced parents, in a spendthrift trust fund of which the husband-father was beneficiary. We held that the testator-settlor of the fund intended the child to be provided for out of the income of the trust fund, that the child therefore had a property interest in the fund, which was within the District, that the trial court should determine the extent of the provision to be made for the child from the trust income and that under Section 13-108 service by publication on the defendant-father was sufficient to give it authority to do so. However, we found no intent on the part of the testator to make provision for the wife out of the trust fund, and held that she had no property interest in the fund. With respect to her claim arising from the general right to support, we said:
“While a spendthrift trust may under some circumstances be subjected to the obligation to support a wife or child, the enforcement of such an obligation would require either personal service on John Buchanan or an attachment of his equitable interest in the fund after the execution of a bond.”
We cited as authorities for this statement Section 16-301 of the D.C.Code (1940), and Pennoyer v. Neff, 1877, 95 U.S. 714, 24 L.Ed. 565.
Insofar as the appellant in this case is seeking an adjudication of her property interest in the home arising from her contributions to its purchase price, her claim is not distinguishable from the claim of the child to an interest in the trust fund in Buchanan, except that it relates to real rather than personal property, and under that decision substituted service was sufficient to give the District of Columbia courts power to adjudicate her claim in this regard.
For the following reasons we also think that substituted service permitted the adjudication and enforcement of the claims made against the former husband’s interest in the realty, as distinguished from appellant’s own personal interest in the realty.
Pennoyer v. Neff, supra, was concerned with the effect of a money judgment rendered by default in a suit on contract in a state court against Neff, a non-resident of the state, who was served by publication and entered no appearance. Subsequent to the default judgment, real estate owned by Neff within the jurisdiction was sold under an execution. The Supreme Court held that the judgment was void because the trial court lacked jurisdiction to render a personal judgment against Neff and that the execution sale made pursuant to the void judgment passed no title. The suit itself had not been in any sense a proceeding against the realty, and the Court noted that the real property sold under the invalid judgment had not been brought under the jurisdiction of the trial court by attachment, seizure, or in any other equivalent way, and that “Its first connection with the case was caused by a levy of the execution.” See 95 U.S. at page 720.
The principles stated in the Pennoyer decision have no application where the action is one proceeding directly against real estate. It has long been established that “a state has power by statute to provide for the adjudication of titles to real estate within its limits as against non-residents who are brought into court only by publication.” Arndt v. Griggs, 1890, 134 U.S. 316, at page 327, 10 S.Ct. 557, at page 561, 33 L.Ed. 918. This is because an “owner of real estate, who is a non-resident of the state within which the property lies, cannot evade the duties and obligations which the law imposes upon him in regard to such property, by his absence from the State,” and service by “publication is ‘due process of law’ as applied to this class of cases.” Huling v. Kaw Valley Railway, 1889, 130 U.S. 559, 563, 564, 9 S.Ct. 603, 605, 32 L.Ed. 1045. See also Grannis v. Ordean, 1914, 234 U.S. 385, 34 S.Ct. 779, 58 L.Ed. 1363. In Lynch v. Murphy, 1896, 161 U.S. 247, 16 S.Ct. 523, 40 L.Ed. 688, a decree rendered in the District of Columbia in a suit to cancel a deed of trust on land was held not to be void even though the defendant was not personally served, since a statute enacted by Congress for the District permitted service by publication. As already indicated, Section 13-108 of the Code, the District statute now in force, authorizes service by publication where (as here) the suit seeks to enforce claims against real property located in the District. The statute does not require that the property proceeded against be seized or attached. It is thus plain that the substituted service in this case gave the courts of the District of Columbia the power to render judgment with respect to the real estate proceeded against in the complaint.
The view just stated has long been applied throughout the country in domestic relations cases. At least when authorized by statute, substituted service upon a non-resident defendant, without attachment or seizure of property, will give jurisdiction to render a decree for alimony or maintenance which is binding upon realty (and indeed even personalty) belonging to the defendant and within the jurisdiction of the court, when the property has been specifically described and proceeded against in the complaint. Some of the cases so holding are set out in the margin. Public policy requires this result: it would be intolerable to allow a woman and minor child to become public charges simply because the man responsible for their support, though owning property within the jurisdiction, has departed and become a non-resident.
For these reasons, we hold that service of process was validly effected in this case. We will therefore follow the course we adopted in Harris v. Harris, 1959, 106 U.S.App.D.C. 282, 272 F.2d 511, of remanding to the District Court with directions (1) to vacate its order quashing the service and dismissing the cause for lack of jurisdiction, and (2) to transfer the case to the Municipal Court for trial in the Domestic Relations Branch.
So ordered.
. Por purposes of the, appeal we must of course treat the factual allegations o'f the complaint as established.
. Section 13-108 reads as follows:
“Publication may be substituted for personal service of process upon any defendant who cannot be found and who is shown by affidavit to be a nonresident, * * * in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court.
“Personal service of process may be made by any person not a party to or otherwise interested in the subject matter in controversy on a nonresident defendant out of the District of Columbia, which service shall have the same effect and no other as an order of publication duly executed.”
. In Ulrich v. Ulrich, 1883, 3 Mackey 290, 14 D.C. 290, a predecessor appellate court in this District applied the Us pendens doctrine to a wife’s suit for divorce and alimony wherein the complaint asserted that the husband owned certain described real estate, and asked that it be subjected to her claim for alimony. Evidently the court regarded seizure, attachment, or the issuance of a restraining order, as being unnecessary to perfect the Ms pendens so created. No problem of service of process was there presented, as the husband was a resident of the District.
. Section 13-108 also authorizes service by publication where the object of the suit is to establish and enforce claims against personalty located in the District. Buchanan involved a suit of that kind. We express no views about the decision in that ease, except to note that Pennoyer v. Neff, there relied upon as requiring an attachment in addition to service by publication, did not involve a suit seeking to proceed directly against personal property in the jurisdiction. Moreover, Section 16-301 of the Code (1951), also cited as requiring an attachment, authorizes, but does not in terms require, an attachment before judgment under certain circumstances in three types of cases: actions for the recovery of specific personal property, or for a debt, or for damages for the breach of a contract, express or implied. The language of Section 16-301 suggests strongly that the actions for debt or for damages for breach of contract referred to therein are those where the debt or damages are liquidated or ascertainable in amount: viz., the plaintiff’s affidavit must state the “amount” of the debt or the “actual damage resulting” from breach of contract, and a bond must be given in twice the amount of the claim. Cf. Hoover v. Hathaway, 1892, 9 Mackey 591, 20 D.C. 591; Goldsborough v. Orr, 1823, 8 Wheat. 217, 21 U.S. 217, 5 L.Ed. 600. Appellant’s claim is for such support “as seems just and reasonable,” no specified amount being named, and we have grave doubts that an attachment before judgment would even have been authorized by Section 16-301 in her case. Cf. King v. Fay, D.C.D.C.1958, 169 F.Supp. 934, where the attachment was issued against the husband’s vested reversion in a trust fund in a suit to recover a liquidated amount of money due under a property settlement incorporated in a foreign divorce decree. As to the use of a restraining order in lieu of an attachment, see Pennington v. Fourth National Bank, 1917, 243 U.S. 269, 37 S. Ct. 282, 61 L.Ed. 713 (injunction issued at suit of wife against payment out by bank of funds of non-resident husband). Our opinion in Buchanan does not mention the Pennington case. Cf. Western Urn Mfg. Co. v. American Pipe & Steel Corp., 1960, 109 U.S.App.D.C. 145, 284 F.2d 279.
. Reed v. Reed, 1929, 121 Ohio St. 188, 167 N.E. 684, 64 A.L.R. 1384; Wilson v. Smart, 1927, 324 Ill. 276, 155 N.E. 288; Wilder v. Wilder, 1919, 93 Vt. 105, 106 A. 562; Wesner v. O’Brien, 1896, 56 Kan. 724, 44 P. 1090, 32 L.R.A. 289, and other cases collected in notes at 29 A.L.R. 1381; 64 A.L.R. 1392; and 108 A.L.R. 1302. See also, e. g., Boudwin v. Boudwin, 1936, 320 Pa. 147, 182 A. 536; Failing v. Failing, 1954, 4 Ill.2d 11, 122 N.E.2d 167; Carter v. Carter, 1960, 147 Conn. 238, 159 A.2d 173; Closson v. Closson, 1923, 30 Wyo. 1, 215 P. 485, 29 A.L.R. 1371; Dillon v. Heller, 1888, 39 Kan. 599, 18 P. 693. Some cases have treated a prayer for a'n injunction or the issuance of a preliminary injunction against sale or disposition of property as the equivalent of a seizure even though directed against a non-resident husband. See, e. g., Benner v. Benner, 1900, 63 Ohio St. 220, 58 N.E. 569.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_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, Appellee, v. Carlos Mateo VARGAS, a/k/a “Hector Rivera-Vargas” and Luis A. Duluc-Del Rosario, Defendants-Appellants.
Nos. 303, 431, Dockets 90-1125, 90-1161.
United States Court of Appeals, Second Circuit.
Argued Nov. 14, 1990.
Decided Dec. 3, 1990.
Jorge De J. Guttlein (Aranda & Guttlein, of counsel), Kimberley Slade, Brooklyn Law School student, on brief, New York City, for appellant Carlos Mateo Vargas.
Luis M. Chaves Ghigliotty, New York City, for appellant Luis A. Duluc-Del Rosario.
Milton L. Williams, Asst. U.S. Atty. for the S.D.N.Y. (Otto G. Obermaier, U.S. Atty. for the S.D.N.Y., David E. Brodsky, Patrick J. Fitzgerald, Debra Ann Livingston, Asst. U.S. Attys., of counsel), New York City, for appellee.
Before FEINBERG, TIMBERS and MINER, Circuit Judges.
FEINBERG, Circuit Judge:
Carlos Mateo Vargas and Luis A. Duluc-Del Rosario appeal from judgments of conviction in the United States District Court for the Southern District of New York, Leonard B. Sand, J., entered in February 1990. Vargas, Duluc and two others were charged in a two-count indictment with conspiring from May 1 to May 10, 1989 to distribute cocaine, and with possession of cocaine with intent to distribute it on May 10, 1989. Vargas pled guilty to the conspiracy count pursuant to agreement with the government, and the possession charge against him was dismissed. After a jury-trial, Duluc was convicted on the conspiracy count and acquitted on the possession count. Vargas received a sentence of 135 months and Duluc a sentence of 90 months, each prison term to be followed by a four-year period of supervised release. Both defendants are serving their sentences. As will be seen below, the appeals raise one issue that deserves discussion in a published opinion; otherwise, we would have affirmed in a summary order.
Vargas challenges only his sentence. Prior to imposing sentence, the district court held a hearing pursuant to United States v. Fatico, 603 F.2d 1053 (2d Cir.1979), cert. denied, 444 U.S. 1073, 100 S.Ct. 1018, 62 L.Ed.2d 755 (1980), to resolve a number of disputed factual issues relevant to determining Vargas’s offense level under the United States Sentencing Guidelines. Vargas claims that the district court’s findings were not supported by a preponderance of the evidence, principally because the district court relied on the testimony of the sole witness at the Fatico hearing, cooperating co-defendant Luis Reyes. Vargas characterizes this testimony as “largely uncorroborated and blatantly incredible and contradictory.”
The district judge, however, explicitly credited relevant portions of Reyes’ testimony. The evidence admitted at the Fati-co hearing also included the entire transcript of Duluc’s trial as well as the transcript of a tape recording of Vargas’s meeting with an undercover agent. Portions of Reyes’ testimony were corroborated by this other evidence. We do not accept Vargas’s characterization of Reyes’ testimony. Giving due regard to the opportunity of a district judge to evaluate the credibility of witnesses before him, we find that the district court’s findings were sufficiently supported by Reyes’ testimony at the Fatico hearing, the testimony of Reyes or others at Duluc’s trial and the transcript of the taped meeting.
Duluc challenges his conviction on several grounds. He first argues that there was insufficient evidence at trial to support his conviction. This claim is primarily based, like Vargas’s appeal, on alleged deficiencies in the testimony of Reyes. Reyes testified at Duluc’s trial that Duluc worked for Vargas’s drug business; that he saw Duluc carrying drugs from one apartment used in the business to another location; that he saw Duluc packing cocaine; that after meeting with the undercover agent, Vargas discussed with Duluc and others his suspicions that the agent was a police officer; and that Vargas directed Duluc to accompany a confidential source to pick up money due for the kilogram of cocaine delivered to the source. The government also presented at trial the testimony of the undercover agent involved in the cocaine transaction on May 9 and 10, 1989, which corroborated aspects of Reyes’ testimony. Viewing the evidence in the light most favorable to the government, it was sufficient to support the jury’s verdict in this case.
Duluc also argues that the district court should have reduced his offense level under the Sentencing Guidelines because he was merely a minor or minimal participant in the offense. Duluc either discounts Reyes’ trial testimony altogether or limits the government’s case to direct evidence, without even the most reasonable inferences that could be drawn therefrom. The district judge was entitled to consider Reyes’ testimony and to consider the inferences to be drawn from the evidence. Du-luc has not shown that the district court erred in failing to reduce Duluc’s offense level to that of a minor or minimal participant.
Finally, Duluc argues that he was denied the effective assistance of counsel. He raises an array of alleged errors and omissions by his trial counsel, including advising Duluc not to testify, failing to call as defense witnesses co-defendant Vargas and others, failing to inquire about or apprise Duluc of certain evidence, failing to move to suppress certain evidence and making an inadequate motion to dismiss at the close of the government’s case. Du-luc’s appellate counsel has offered us no persuasive reason to believe that trial counsel’s advice to Duluc to refrain from testifying was unreasonable. Similarly, the only indication that Vargas’s testimony would have been helpful to the defense is a short, typed affidavit purportedly signed by Vargas and attested to as true and correct by Duluc. Although the Vargas page is undated, the Duluc page is dated after the trial. The purported Vargas affidavit states in conclusory fashion that Du-luc had no knowledge of Vargas’s drug-related activities. Nothing about the affidavit demonstrates that the decision not to call Vargas as a defense witness at Duluc’s trial was unreasonable. Finally, the proffered testimony of the other suggested defense witnesses relates only to collateral matters; there is no indication that the other evidence Duluc refers to would have been helpful or that a suppression motion would have been successful. In sum, Du-luc has not persuaded us that counsel’s actions as to any of these matters were unreasonable.
One of the issues raised in Duluc’s claim of ineffective assistance of counsel, however, deserves further comment. As indicated above, Duluc complains that his lawyer “counseled and insisted appellant not testify in his own behalf.” In opposing Duluc’s claim, the government argues that by failing to protest to the district judge when his trial counsel rested without calling him as a witness, Duluc effectively waived his right to testify and therefore cannot raise the issue on appeal. Because Duluc argues only that counsel provided ineffective assistance by advising him not to testify on his own behalf, our finding that the advice was not unreasonable disposes of his claim. See Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.), cert. denied, _ U.S. _, 111 S.Ct. 93, 112 L.Ed.2d 65 (1990). Thus, the issue of a defendant’s waiver of his constitutional right to testify on his own behalf, see Rock v. Arkansas, 483 U.S. 44, 49-53, 107 S.Ct. 2704, 2707-10, 97 L.Ed.2d 37 (1987), is merely tangential here. However, we decide this case by published opinion rather than by summary order to express our substantial doubt about the correctness of the position the government urges in this court.
The government relies on five cases from other circuits to support its waiver argument: Galowski v. Murphy, 891 F.2d 629, 636 (7th Cir.1989), cert. denied, _ U.S. _, 110 S.Ct. 1953, 109 L.Ed.2d 315 (1990); United States v. Martinez, 883 F.2d 750, 754-55 (9th Cir.1989); United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.1987); United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985) and United States v. Janoe, 720 F.2d 1156, 1161 n. 9 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984). We are not convinced that all of these cases stand for the proposition advanced. For example, in the First Circuit case, the court noted that the appellants “do not allege that they wanted to testify” and “[t]he instant case is not a situation where the defendants wanted to testify and were prevented from doing so by the trial court or counsel.” United States v. Systems Architects, Inc., 757 F.2d at 375; see also Galowski v. Murphy, 891 F.2d at 636 n. 12; United States v. Janoe, 720 F.2d at 1161 & n. 9. We also note the existence of recent authority rejecting the government’s position. United States v. Teague, 908 F.2d 752, 759-60 (11th Cir.1990). The issue does not seem to be an easy one. See, e.g., the majority and dissenting opinions in United States v. Martinez, 883 F.2d 750.
In any event, the government advances no Second Circuit authority in support of its position, and at oral argument confirmed that it could identify none. We regard as highly questionable the proposition that a defendant’s failure to object at trial to counsel’s refusal to allow him to take the stand constitutes a waiver of the defendant’s constitutional right to testify on his own behalf. However, we leave that issue for another day.
We have considered all of appellants’ arguments, and we affirm the judgments of conviction.
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_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.
J. O. BINGHAM, Debtor, Appellant, v. YINGLING CHEVROLET COMPANY, Appellee.
No. 6731.
United States Court of Appeals Tenth Circuit.
Dec. 6, 1961.
Donald B. Clark, Wichita, Kan. (Charles D. Anderson and Marvin R. Appling, Wichita, Kan., on the brief), for appellant.
Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris, Gerald Sawatzky, Donald L. Cordes, and Robert L. Howard, Wichita, Kan., on the brief), for appellee.
Before BRATTON, LEWIS and BREITENSTEIN, Circuit Judges.
BREITENSTEIN, Circuit Judge.
This appeal must be dismissed because it presents no controversy. Appellant Bingham petitioned in the court below for a wage earner’s plan pursuant to Chapter XIII of the Bankruptcy Act. Previously he had filed a similar petition and had received a discharge within six years prior to the filing of the petition involved herein. The Bankruptcy Act provides that an adjudication operates as an application for a discharge and that the court shall grant the discharge unless, among other things, the bankrupt within the prior six years has been granted a discharge or had a wage earner’s plan by way of composition confirmed. Appellee Yingling Chevrolet Company, asserting that in the circumstances the second petition could not be maintained, moved to dismiss. The referee dismissed the proceedings and on petition for review the district court sustained that ruling. During the pendency of the petition for review, Bingham paid the Yingling claim in full.
In his notice of appeal Bingham designated only Yingling as appellee. None of his other creditors have appeared. One Porter, assuming to be a trustee in the Bingham wage earner proceedings, has filed an entry of appearance but he is an interloper as the statute provides only for the appointment of a trustee by the court after the acceptance of the plan. Here the proceedings were dismissed and no plan accepted.
As Yingling has received payment in full, it has no interest in the success or failure of the wage earner’s plan and no standing to contest that plan as an adversary. In order to invoke the exercise of our adjudicatory power, there must be a controversy involving adverse litigants. Moreover, the only basis of a controversy between Bingham and Yingling was the debt owed by the former to the latter. Payment ended that controversy and makes moot every issue tendered by this appeal. Reliance on Leader Clothing Company v. Fidelity and Casualty Company of New York, 10 Cir., 227 F.2d 574, is misplaced as there the amount of the judgment had been paid to the clerk of the trial court and repayment could have been enforced in the event of reversal. Here the payment was made voluntarily and was accepted. So far as we are advised neither Bingham nor any one else is trying to get the money back.
The appeal is dismissed.
. 11 U.S.C.A. § 1001 et seq.
. 11 U.S.C.A. § 32, sub. c(5).
. 11 U.S.C.A. § 1033(4).
. Poe v. Ullman, 367 U.S. 497, 502-505, 81 S.Ct. 1752, 6 L.Ed.2d 989; Public Service Commission of Utah v. Wycoff Company, Inc., 344 U.S. 237, 242, 73 S.Ct. 236, 97 L.Ed. 291; Aetna Life Insurance Co. of Hartford, Conn. v. Haworth, 300 U.S. 227, 239-241, 57 S.Ct. 461, 81 L.Ed. 617; Muskrat v. United States, 219 U.S. 346, 361, 31 S.Ct. 250, 55 L.Ed. 246.
. California v. San Pablo & Tulare Railroad Company, 149 U.S. 308, 314, 13 S.Ct. 876, 37 L.Ed. 747. Cf. Boggess v. Berry Corporation, 9 Cir., 233 F.2d 389, 390, 16 Alaska 256; United States v. International Union, etc., 88 U.S.App.D.C. 341, 190 F.2d 865, 872; and Cover v. Schwartz, 2 Cir., 133 F.2d 541, 546.
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_treat | A | 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.
In re NINE MILE LIMITED, d/b/a Serco Administrators and American Warranty Corporation, Petitioner.
No. 82-1236.
United States Court of Appeals, Eighth Circuit.
March 23, 1982.
Timothy S. White and J. Richard Johnson, White & Warbasse, Cedar Rapids, Iowa and Kevin P. Tighe, Daniel J. Piliero, II, and Myrrel C. Hendricks, Jr., Washington, D. C., for petitioner.
Richard C. Garberson, Cedar Rapids, Iowa, and William F. Halligan, Columbia, S. C., for Philip Carnes.
Before HEANEY, BRIGHT and HENLEY, Circuit Judges.
PER CURIAM.
On February 18, 1982, the petitioner filed a petition for a writ of mandamus in this Court which requested that we order the United States District Court for the Northern District of Iowa to “temporarily stay its order” which granted a motion to change the venue of the underlying diversity lawsuit from the Northern District of Iowa to the District of South Carolina. The petitioner also requested this Court to order the United States District Court Clerk for the Northern District of Iowa to “request [the clerk for the District of South Carolina] that the physical custody of the original papers and filings” in the underlying lawsuit be returned to the Northern District of Iowa so that review could be had in that district court or in the Eighth Circuit. For the reasons discussed below, we grant the petition and order the district court to request the clerk for the District of South Carolina to return the original file and documents in this case to the clerk for the Northern District of Iowa. Upon return of the file and documents to the Northern District of Iowa, we direct the district court to promptly entertain and rule upon petitioner’s motion to reconsider his transfer order. Following a ruling on petitioner’s motion to reconsider, review may then, if so desired, be pursued in this Court.
The petitioner filed a diversity action against defendant Philip Earl Carnes in the Northern District of Iowa. Defendant Carnes filed a motion for a change of venue on November 23, 1981, which was resisted by the petitioner. On February 2,1982, the district court, pursuant to 28 U.S.C. § 1404(a), granted Carnes’ motion for change of venue and ordered the case transferred to the District of South Carolina, Columbia Division. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia. Feb. 2, 1982) (order).
On the same day the transfer order was entered, February 2, 1982, the clerk of the United States District Court for the Northern District of Iowa transferred the case’s records to the District of South Carolina, Columbia Division.
On February 5, 1982, the petitioner filed an application to stay the transfer order and request for extension of time to file motion to reconsider. On February 18, 1982, the district court denied the motion, holding that the federal district court in the Northern District of Iowa lost all jurisdiction when the clerk for the District of South Carolina received the file of the underlying action. Nine Mile Limited v. Carnes, supra. See also n.4.
The petitioner correctly argues that in order to permit adequate and orderly review of one federal district court’s decision to transfer a case to another federal district court, physical transfer of the file should be delayed for a period of time after entry of the transfer order so that review may be sought in the transferor circuit. See Starnes v. McGuire, 512 F.2d 918, 924, 935 (D.C.Cir.1974) (en banc). Indeed, this Court previously observed that “the better procedure” is to “hold up the transfer for a reasonable time pending possible petition for reconsideration or review.” Technitrol, Inc. v. McManus, 405 F.2d 84, 86 (8th Cir. 1968), cert. denied, 394 U.S. 997, 89 S.Ct. 1591, 22 L.Ed.2d 775 (1969). See also 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 p. 229 (1976) (because appellate review, if available, “is more appropriate in the circuit in which the transferor court sits than in the circuit to which the case is transferred, the better practice, often codified in local rules, is routinely to stay grants of transfer for a sufficient period for appellate review to be sought”).
The reason that physical transfer of a case file from the transferor court to the transferee court should be delayed for a reasonable time is that “physical transfer of the original papers in a case to a permissible transferee forum deprives the transfer- or circuit of jurisdiction to review the transfer.” Starnes v. McGuire, supra, 512 F.2d at 924. Accord, 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3846 pp. 228-229 (1976).
In this case, the clerk for the Northern District of Iowa transferred the case file to the District of South Carolina on the same day that the district court ordered the case transferred there. The case file was received by the District of South Carolina clerk on February 4, 1982 — two days after the transfer order was filed in the Northern District of Iowa. Under the principles set forth above, we have no alternative but to grant the petition for a writ of mandamus.
Because the case file has been physically transferred to the clerk for the District of South Carolina, we lack jurisdiction to order the transfer. Nevertheless, and pursuant to our inherent authority over the district judges in this Circuit, we order the district court to request the clerk for the District of South Carolina to return the files in Nine Mile Limited v. Carnes, supra, to the Northern District of Iowa. When the files are returned to the Northern District of Iowa, the district court is to promptly consider and rule upon petitioner’s motion for reconsideration of his transfer order. After the ruling on petitioner’s motion, review may be pursued in this Court. Finally, we direct that future transfer orders be effectuated in accordance with the teachings of Starnes and Technitrol.
The petition for a writ of mandamus is granted and the cause is remanded to the district court for proceedings consistent with this opinion.
So ordered.
. Nine Mile Limited, d/b/a Serco Administrators and American Warranty Corporation.
. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia.). See also n.3, infra.
. The petitioner’s three-count complaint made various allegations charging breach of contract, tortious interference with business opportunities and misrepresentation.
. The district court stated in its February 18, 1982, order denying petitioner’s application to stay transfer and request for extension of time to file motion to reconsider that the case file was received by the clerk of the District of South Carolina on February 4, 1982. Nine Mile Limited v. Carnes, No. C 81-130 (N.D.Ia. Feb. 18, 1982) (order).
. Although this Court and the district court lack power to compel the District of South Carolina to return the case files to the Northern District of Iowa, we direct the district court and the clerk for the Northern District of Iowa to take every reasonable action possible in asking the District of South Carolina to return the files. Of course, we cannot predict whether the files will be returned; but in the event the District of South Carolina declines the requests by the district court and the clerk for the Northern District of Iowa, the petitioner has another avenue available: it may initiate a new proceeding seeking retransfer in the transferee court — here, the District of South Carolina— which may be reviewed in the transferee circuit. E.g., Starnes v. McGuire, 512 F.2d 918, 925 (D.C.Cir.1974) (en banc); 15 Wright, Miller & Cooper, supra, § 3846 pp. 230-231.
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_direct1 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Appellee, v. Edgar CALLE-CARDENAS, Defendant, Appellant. UNITED STATES of America, Appellee, v. Wilson VELASQUEZ-SANTARIAGA, Defendant, Appellant. UNITED STATES of America, Appellee, v. Mario JARAMILLO-ECHEVERRI, Defendant, Appellant.
Nos. 86-2093 to 86-2095.
United States Court of Appeals, First Circuit.
Heard Dec. 9, 1987.
Decided Jan. 27, 1988.
John B. Reilly, Warwick, R.I., by Appointment of the Court, for defendants, appellants Edgar Calle-Cardenas and Mario Jaramillo- Echeverri.
Joan C. Stanley, by Appointment of the Court, with whom Law Offices of Colette Manoil, Boston, Mass., was on brief, for defendants, appellant Wilson Velasquez-Santariaga.
James H. Leavey, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on briefs, for appellee.
Before COFFIN, BOWNES and TORRUELLA, Circuit Judges.
COFFIN, Circuit Judge.
The appeals of appellants Calle-Cardenas and Jaramillo-Echeverri challenge the district court’s denial of their motion to suppress evidence of cocaine and other property seized.
Federal agents obtained a warrant from a federal magistrate at 2:08 p.m. on June 13, 1986. Probable cause to issue the warrant was based on information supplied to Agent Burkett, the affiant, by an informant, that appellant Calle was distributing at least one kilogram of cocaine weekly from “his residence at 46-48 Comstock Street (first floor, side door right).” The warrant authorized a search of “the right side, first floor apartment of 46-48 Com-stock Street, Pawtucket, R.I. ... occupied by Edgar Calle.” Agents surveilling the premises, however, at about the time the warrant was signed by the magistrate, 2:00 p.m., observed a person emerge from an automobile and enter the dwelling through a door on the left side. Soon thereafter, that person emerged from the building and drove off. A check of the license plate number revealed that the vehicle was registered in the name of appellant Calle. The vehicle returned at 3:15, .the driver entered the building and returned to the vehicle as before, and again drove off. He was followed and confronted. Identifying himself as one Mazo, he told the police that Calle’s residence was in fact the left side, first floor apartment, and that Calle had been in the apartment when he, Mazo, had left.
At this time, around 4:00 p.m., the warrant above described had not been executed. Agent Parham, who had supplied the informant’s information for Agent Burkett’s affidavit, then supplied this new information to the magistrate and obtained a second warrant authorizing search of “the left side, first floor apartment of 46-48 Comstock Street ... occupied by Edgar Calle.” The agents then went to the premises, entered by the left door, found themselves in a common passageway, and, taking the door to their right, forced their way into appellant’s apartment. It should be noted that the building, in addition to the outside door on the left, had a front door, an entrance at the right side (which led only to a basement apartment), and a door at the rear.
At this remove it is difficult to see how appellant could devote so much time at the Franks hearing, which the district court gratuitously held out of an abundance of caution, or so much space in his brief, to his challenge to the denial of his motion to suppress. We say this because we cannot imagine what the agents could have done better. When their surveillance of the premises created a doubt as to which side of the house was the location of appellant’s apartment (or the entrance thereto), they refrained from proceeding on the basis of their warrant and obtained another one with the corrected location.
Appellant spins an argument that, when the agents realized that the informant’s information about the contraband being in the right side apartment was in error, they “abandoned” their “reliable informant.” Mazo’s information, appellant argues, “specifically negates” the informant’s “basis of knowledge,” leaving no basis for any suspicion that there was contraband to be found in the left side apartment.
The problem with this approach is that appellant would have us read the first affidavit and warrant as permitting only the interpretation that contraband was in a “right side first floor” apartment, with no significance attached to the apartment as being Calle’s residence. But, as appellant concedes, we are to give a common sense reading to the affidavit supporting a warrant. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). In this case we list the following factors to be taken into account: (1) the informant’s main thrust was that Calle was regularly distributing large quantities of cocaine from his “residence”; (2) the warrant equates the “right side first floor” apartment with that “occupied by Edgar Calle”; (3) Mazo’s information gave accurate directions as to how Calle’s residence could be approached; (4) in fact, as the agents found out, Calle’s apartment, once the building had been entered from the outside door on the left, was on the right and on the first floor; and (5) the outside entrance on the right side of the building did not lead to any first floor apartment. Clearly there was no error. The agents acted with punctilious regard for the integrity of warrant-authorized searches, and the magistrate was amply justified in correcting, on an adequate representation, a detail of a generally adequate earlier basis for a warrant.
Appellant Velaquez-Santariaga challenges the court’s refusal to direct a verdict. He argues that, when the agents forced their way into the apartment, there was nothing other than his mere presence on which to base his convictions for possession of cocaine and a firearm. He contends that there was insufficient evidence on which to base a finding of constructive possession of the guns and cocaine. A summary of the evidence favorable to the government is the following. An officer took from the left outer door casing of the apartment a tape containing the names of all three appellants. At the time of the agents’ entry, all three were in shorts and shoeless; each thereafter went to a closet for other clothes. Cash in the amount of $1,001 and a firearm were found lying on a coffee table in front of a couch. Near the cash and pistol were found an Employee’s Withholding Allowance Certificate and a Blue Cross/Blue Shield Group Subscriber Application in the name of Antonio Martinez. The significance of these documents is that they were established, by identity of birth date and social security number, to be those of appellant. The sum of $1,800 was discovered under a couch cushion and a box containing a pistol and holster was retrieved from under the couch. In the pantry was a triple beam balance. Between $208,000 and $278,000 worth of cocaine was seized from the refrigerator and cupboards. We hold that this evidence and the reasonable inferences therefrom adequately support the jury’s verdict. The jury reasonably could have inferred from this cumulative evidence that Velasquez had dominion and control over the area, or at the very least that he had dominion and control over the contraband found in close proximity to his identification documents.
The final issue, raised on appeal by all appellants, is that the district court erred in not instructing the jury as to the meaning of “illegally and unlawfully in the United States.” All three defendants were convicted on charges of possession of a firearm by an illegal alien. The government had to prove that the defendants were aliens illegally or unlawfully in the United States. The district court gave the following instructions:
So next we go on, illegally and unlawfully in the United States. What do we mean by that? Well, to be illegally or unlawfully in the United States means to be willfully in the United States contrary to law. And an act is done willfully if done voluntarily and intentionally with a specific intent to do something which the law forbids, that is to say, with bad purpose, either to disobey or to disregard the law. So that to be illegally and unlawfully in the United States means to be willfully in the United States, contrary to law. And I don’t know what else I can tell you on that one.
No objection to this instruction was made, or request for an alternative instruction. And we are not told in what respect the instruction was inadequate. In any event, pursuing a “plain error” analysis, we see no manifest injustice on this record.
Affirmed.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_applfrom | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Abraham MANDEL, Executor of the Will of Max Mandel, Deceased, Plaintiff-Appellant, v. Walter R. STURR, Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees. Pauline HOFFMAN, Lillian Starr, Joseph J. Mandel and Abraham Mandel, Plaintiffs-Appellants, v. David COPANS, Executor of Harry M. Hickey, deceased, former Collector of Internal Revenue for the 14th District of New York, et al., Defendants-Appellees.
Nos. 59 & 60, Dockets 24993, 24994.
United States Court of Appeals Second Circuit.
Argued Jan. 7, 1959.
Decided April 29, 1959.
James R. Rowen, New York City (Abraham Mandel, New York City, on the brief), for plaintiffs-appellants.
Arthur V. Savage, Asst. U. S. Atty., Southern District of New York, New York City (Arthur H. Christy, U. S. Atty., Southern District of New York, New York City, on the brief), for defendants-appellees.
Before CLARK, Chief Judge, MOORE, Circuit Judge, and GIBSON, District Judge.
GIBSON, District Judge.
Abraham Mandel, executor under the will of Max Mandel, and the beneficiaries, Pauline Hoffman, Lillian Starr, Joseph J. Mandel, Abraham Mandel, hereinafter referred to as the beneficiaries, brought their actions to recover amounts paid by them under protest as a result of additionally assessed estate and income taxes. The executor and the beneficiaries, respectively appeal from the determinations of the Trial Court sustaining in part the deficiency assessed by the Commissioner of Internal Revenue in the estate tax reported by the executor and the income taxes of the recipient-beneficiaries. The appeals in the two cases have been consolidated.
The essential facts of this case are fairly clear. At the date of Max Mandel’s death on June 9, 1945, he and David Wolf son were sole partners in a military uniform business. It is apparent from the facts that the partnership owned and required substantial capital to function. Under the terms of an agreement entered into between the surviving partner and the executor, on December 31, 1945, the book value of Max Mandel’s share in the tangible assets of the partnership was fixed at $153,162.56. There is no reason to doubt that this was a fair valuation. In fact, that figure is not questioned either in the court below or before this court. That amount was included in the decedent’s gross estate and the estate tax properly paid. The sole issues here are (1) whether the gross estate of the decedent includes an amount ($12,595.57) received pursuant to a partnership agreement representing interest on the capital account (valued at $153,162.56), and (2) whether it includes an amount ($10,-000) received by the estate in settlement of a claim to participate in the profits of the business as carried on by the surviving partner (Wolfson) subsequent to the death of Max Mandel. Are these amounts “income in respect of a decedent” to the beneficiaries within the meaning of Section 126, Internal Revenue Code of 1939, 26 U.S.C.A. § 126?
The partnership agreement in effect at Max Mandel’s death provided in part as follows:
“13. That at the expiration of this partnership by the expiration of its term or by reason of any other cause, a full and accurate inventory shall be prepared, and the assets, liabilities and income, both gross and net, shall be ascertained; the debts of the partnership shall be discharged; and all monies and other assets of the partnership then remaining shall be divided in specie between the parties share and share alike, provided, however, that the capital accounts are equal, and if not equal, in that event in such proportion as the capital accounts bear to each other.”
“18. That in the event of the death of either party hereto, this partnership shall terminate and the surviving partner shall become trustee of all of the assets and business of the partnership for the purpose of liquidating the same, discharging its debts and paying to the representatives of the deceased party the respective share as hereinabove provided of said deceased party. The said surviving party shall pay to the representatives of the deceased party the sum of $5,-000. in cash immediately upon receipt from the insurance company of the proceeds of the policy referred to hereinabove in Paragraph 16 and the balance of the deceased party’s share in the partnership in 40 equal monthly installments with interest at the rate of 6% per annum to be computed from the date of demise * * *”
There are other provisions in the agreement whereby a retiring partner could similarly receive installment payments of his partnership share upon retirement. There is little or no doubt that the value of an estate’s right to receive income earned by a partnership subsequent to the death of a deceased partner is includible in the gross estate. As this court stated in Riegelman’s Estate v. Commissioner, 2 Cir., 1958, 253 F.2d 315, 316, an extended discussion is not required as to that particular point, it having been adequately reviewed and analyzed elsewhere. However, this case is distinguishable from Riegelman on the facts.
The amount of $22,595.57, the subject of this appeal, derives from two sources. Firstly, under the quoted portions of the partnership agreement, the deceased partner’s share in the partnership assets was payable to the estate in 40 equal monthly payments with interest at 6% per annum. There was, however, a lapse of some six months from the date of Max Mandel’s death without any such payments being made. It is apparent that after negotiation between the executor and the surviving partner, David Wolfson, a Memorandum Agreement was entered into which provided that the deceased partner’s share of the partnership assets, valued at $153,162.56, would be paid to the estate in full. Wolfson then paid that amount as agreed. They further agreed that the amount of $12,-595.57 was to be paid to the estate in full settlement of all interest due or to become due on the capital account under the Mandel-Wolfson partnership agreement and that an additional $10,000 would be paid by Wolfson in settlement of any claim the estate and beneficiaries might have to post-mortem profits in the partnership. There is no evidence that these were other than arm’s-length negotiations, or that the interest provisions of the partnership agreement were calculated as a method of substituting interest payments for capital to escape possible estate taxation.
The sum of $22,595.57, representing the total of $12,595.57 in interest and $10,000 in settlement of the claim to future profits was paid by Wolf son and distributed to the beneficiaries. The executor and recipient-beneficiaries brought their actions to recover taxes paid on these amounts under protest.
Although Section 126 of the Internal Revenue Code of 1939 is high on the list of vaguely drafted legislation in a field notoriously complex, we see no reason to extend its broad language so far as the Government urges in this case. The $12,595.57 was paid by Wolf-son in settlement of. interest due on an asset of the estate. It was a fair amount to pay for the full usage had by Wolf-son of the capital of the estate invested in his business over the period of time until the full share of the decedent’s interest in the partnership assets was paid in full to the estate. As such, the $12,-595.57 is in the nature of a legal rate of interest or return on a capital investment significantly represented by the principal amount of $153,162.57, already included in the gross estate and the estate tax once paid. To perpetually tax the right to interest or earning capacity of the capital already included in the gross estate, as the appellee suggests, extends the meaning of the Code beyond reason. The Government places much reliance on the Riegelman case, supra, wherein this court reviewed much of the legislative and case history of Section 126, Internal Revenue Code of 1939. That case has, however, no factual similarity to the ease before us. In the case before us, capital is a substantial income producing factor, whereas in Riegelman, it is not. The interest payment can hardly be said to be “the fruits of the (deceased’s) professional activity during his lifetime.” The $12,595.57 has once been accounted for, in effect, by the inclusion of the $153,162.56 in the decedent’s gross estate and is an inherent part of that amount. Such a conclusion is in accord with the court’s reasoning in McClennen v. Commissioner of Internal Revenue, 1 Cir., 131 F.2d 165, 169, 144 A.L.R. 1127. There Judge Magruder aptly analogizes to the case of one who dies possessed of a $1,000 bond payable in ten years bearing interest at 6%. Judge Magruder points out that the bond in its entirety, valued at par at the date of death, will be included in the gross estate, and upon the decedent’s death the right to future income payments have been in effect included in that amount in his gross estate. In short, the interest payment in the case before us is not separately attributable “to the activities of the decedent during his lifetime,” but is attributable to the earning capacity of the capital of the estate allowed to remain in Wolfson’s business. It has been in effect accounted for by the inclusion of $153,162.56, the deceased’s share in the partnership, in the gross estate. In the absence of any evidence of subterfuge on the part of the partners, Mandel and Wolf son, whereby the value of their respective partnership share was understated and subsequently paid out to the estate in the guise of interest payments, we hold that the interest payment of $12,595.57 is not a proper item for inclusion in the decedent’s gross estate, nor is it to the recipient-beneficiaries “income in respect of a decedent.” It is, however, as the appellants admit, ordinary income accruing to the estate and beneficiaries.
The $10,000 item which the Government contends is squarely within the rationale of the Riegelman and McClennen cases poses another question. If this payment represents a settlement of the estate’s established right to postmortem partnership earnings, and such right was created prior to the decedent’s death as a substitute for the estate’s common law liquidation share, then it is a sum includible in the gross estate. However, to characterize the $10,000 payment as a settlement of an existing right of the estate at the date of the decedent’s death is inaccurate. The situation as to the $10,000 Wolfson paid the executor and beneficiaries to settle their claim for post-mortem profits is quite different. Had Wolfson promptly carried out the terms of the partnership agreement, the executor and beneficiaries would have had no right to claim any share in post-mortem profits. Neither the decedent nor his executor or beneficiaries could anticipate that Wolfson would not promptly proceed to carry out the applicable provisions of the partnership agreement.
When the executor concluded that Wolfson had unduly delayed carrying out the terms of the partnership agreement he entered a claim for post-mortem profits accruing during this claimed undue delay.
In McClennen and in Riegelman the courts had before them partnership agreements obviously providing for a right of the estate to share in postmortem profits in lieu of common law liquidation rights to which the estate would have succeeded in the absence of those agreements. There is no such provision in the Wolfson-Mandel partnership agreement. As stated in Riegelman [253 F.2d 319]: “the payments were not gifts, nor were they attributable to anything done by Riegelman’s estate.” On the other hand, in the case before us, the $10,000 was a purchase of peace by Wolfson, in effect attributable to the activity of the executor and beneficiaries.
When Max Mandel died on June 9, 1945, the estate was properly entitled to a settlement of its share in the Mandel-Wolfson partnership interest pursuant to the partnership agreement. While the decedent’s estate was entitled to monthly payments with interest in the manner provided in sections 13 and 18 of that agreement, there is no provision for post-mortem partnership profit payments such as we find in Riegelman. It was only after a lapse of six months or so, during which time no monthly payments were forthcoming that the executor felt entitled to a certain percentage of partnership profits to compensate them for Wolfson’s undue delay in paying over its share in the partnership assets. The estate’s share in the partnership’s tangible assets was a benefit to Wolfson’s business so long as it was retained by him after the death of the decedent, Max Mandel. From these facts the estate’s claim to partnership profits arises. In settlement of this claim, the executor, Wolfson, and the beneficiaries entered into a Memorandum Agreement whereby it was agreed that Wolfson would pay $10,000 in full settlement of any claim the executor and the beneficiaries might have to post-mortem profits; in Wolfson’s business. This payment is referred to in the Memorandum Agreement as being “in full settlement of the claim of (the executor and the beneficiaries) to participate in the profits of (the business) * * * ”, This Memorandum Agreement established a new right that did not exist at the time of the decedent’s death — a sum paid in satisfaction of the contentions of all parties thereto. $10,000 paid under these circumstances does not conclusively establish an existent right of the estate to participate in post-mortem profits when we come to the issue of estate and income taxes. There may well have been no validity to the estate’s contentions as to profits prior to the Memorandum Agreement. However, an agreement to pay and accept $10,000 in settlement of the dispute is entirely reasonable and beneficial to Wolfson’s business and to the estate, both desiring to clear up the affairs expeditiously with a minimum of litigation and expense. On the facts of this case, the payment by way of settlement (attributable to the activity of the estate) is not includible in the estate of the decedent under Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, nor is it “income in respect of a decedent” under Section 126 any more than it would be if it were a gift from Wolfson to the estate and beneficiaries. See Bausch’s Estate v. Commissioner, 2 Cir., 186 F.2d 313. The $10,000 is ordinary-income accruing to the estate and beneficiaries.
Lastly, the question of attorney’s fees is raised by appellants. The Trial Court found the sum of $2,500 to be a reasonable amount for prosecuting the refund claim, and disallowed the $5,000 figure claimed. In computing the estate tax, the estate was allowed a $2,500 deduction. We are unwilling to reverse without concluding that the Trial Court’s findings were clearly erroneous. International Bureau v. Bethlehem Steel Company, 2 Cir., 192 F.2d 304. There is no basis for the appellant’s contention that the Trial Court abused its discretion.
It is apparent, however, that the $2,500 allowed did not include this appeal. The Trial Court is in a far better position than is this court to determine whatever should be allowed for these services.
Accordingly, we remand to the Trial Court, as we have done in the past, for a determination of the amount that should be allowed for this appeal. Bassett’s Estate v. Commissioner of Internal Revenue, 2 Cir., 170 F.2d 916.
Reversed in part; remanded for further proceedings consistent with the views expressed herein.
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_discover | 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 interpretation of rules relating to discovery or other issues related to obtaining evidence 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".
In re SUBPOENAS DUCES TECUM. Fulbright & Jaworski, Vinson & Elkins, Tesoro Petroleum Corporation, Appellants.
No. 83-2116.
United States Court of Appeals, District of Columbia Circuit.
Argued Feb. 29, 1984.
Decided July 10, 1984.
C. Michael Buxton, Washington, D.C., with whom Robert J. Casey, Washington, D.C., for Vinson & Elkins, Keith A. Jones and David R. Johnson, Washington, D.C., for Fulbright & Jaworski, and Steven B. Rosenfeld, New York City, for Tesoro Petroleum Corp., were on the joint brief, for appellants.
Daniel J. Dugan, with whom George Billock, Jr., Pittsburgh, Pa., was on the brief, for appellees.
Before WALD, MIKVA and DAVIS, Circuit Judges.
Of the United States Court of Appeals for the Federal Circuit, sitting by designation pursuant to 28 U.S.C. § 291(a).
Opinion for the Court filed by Circuit Judge DAVIS.
DAVIS, Circuit Judge:
Appellants challenge orders of the District Court, 99 F.R.D. 582, granting appellees’ motion to compel compliance with four subpoenas duces tecum on the grounds that the attorney-client and work product privileges had been waived by prior disclosure. We affirm.
I
Appellees, movants below, are seeking copies of documents which have been furnished by appellants, respondents below, to the Securities and Exchange Commission (SEC or Commission) and to a grand jury. The demand for those documents arose out of complaints filed by appellees as plaintiffs in Pennsylvania and transferred to the U.S. District Court for the Western District of Texas which involve (1) a class action brought against Tesoro Petroleum Corporation (Tesoro) and its officers and directors on behalf of Tesoro stockholders, and (2) a derivative action brought in Tesoro’s name against its officers and directors. Plaintiffs allege in those complaints that defendants manipulated Tesoro stock in 1982 in order to remove enough stock from the public market to convert Tesoro from a public into a private corporation. The claim is that this contemplated corporate change was in part motivated by a desire to become free from public disclosure obligations, which obligations in turn might have caused disclosure of involvement by Tesoro in illegal payments to foreign officials before 1978. In the course of that Texas litigation, plaintiffs sought the papers now in question for use in connection with those suits. Because the documents are now in the possession, within the District of Columbia, of two law firms, Fulbright & Jaworski (Fulbright) and Vinson & Elkins (Vinson), subpoenas duces tecum were issued to those firms by the Clerk of the District Court, and, on their refusal to produce, a proceeding to enforce the subpoenas against them was begun in the court below.
Although neither law firm is a party to the law suits in Texas, their involvement here stems from the fact that the subpoenaed documents are the product of an investigation by Fulbright into Tesoro’s alleged illegal payments to foreign officials. This came about as follows: After indications of improper corporate payments to officials, domestic and foreign, had become more frequent in the 1970’s, the SEC established a “voluntary disclosure program,” including independent investigations by the affected companies, and the agency made a general request to those companies to participate in the program. In re Sealed Case, 676 F.2d 793, 800-01 (D.C.Cir.1982). Following such a request to Tesoro, it hired Fulbright to perform a self-investigation on that subject and to help set up a special committee of independent directors to oversee it. Tesoro disclosed the results of the investigation to the SEC under the “voluntary disclosure program.” As stated by the District Court below, that program “promises wrongdoers more lenient treatment and the chance to avoid formal investigation and litigation in return for thorough self-investigation and complete disclosure of the results to the SEC.” See also Sealed Case, supra, 676 F.2d at 801.
Made available to the SEC, under that program, were a copy of the investigation’s final report and several binders which contained pertinent corporate records and documents of Tesoro, as well as the notes of the lawyers taken during the course of their investigation. The SEC filed a civil complaint against Tesoro, following the agency’s receipt and consideration of the documents, which was resolved by entry of a consent decree. The Commission also referred some aspects of Tesoro’s circumstances to the Department of Justice, which then presented the matter to a grand jury, convened in October 1978 in the District of Columbia. Vinson represented Tesoro before the grand jury, and also is Tesoro’s counsel in the Texas litigation. The grand jury obtained copies of the same documents through subpoenas served on the law firms.
After a hearing on the motion, the District Court ordered compliance, rejecting appellants’ attorney-client and work product arguments. By Supplemental Memorandum and Order, the court denied appellants’ motion for reconsideration, and confirmed its prior decision. A Revised Supplemental Memorandum corrected a reference to the clerk that issued the subpoenas. A motion for a stay pending appeal was subsequently granted by the court below.
II
The questions before us are whether the District Court correctly determined that appellants’ voluntary disclosure of the documents to the SEC effected waivers of attorney-client and work product privileges with respect to the documents now sought for discovery in the Texas suits. We deal with each privilege in turn.
A. Attorney-Client Privilege
Attorney-client communications ordinarily are privileged, and thus are protected from discovery by a party opponent under Fed.R.Civ.P. 26(b). By allowing confidentiality of the substance of client and lawyer discussions, the privilege is held by clients as a means of encouraging their candor in discussing their circumstances with their chosen legal representatives. See Upjohn Co. v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981). The privilege, however, is not absolute. As stated by this court in Permian Corp. v. United States, 665 F.2d 1214, 1219 (D.C.Cir.1981) (quoting United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980)), “[a]ny voluntary disclosure by the holder of such a privilege is inconsistent with the confidential relationship and thus waives the privilege.” See also Sealed Case, supra, 676 F.2d at 818; see generally 8 J. Wigmore, Evidence §§ 2327-28 (McNaughton rev. 1961); McCormack on Evidence § 93 (Cleary ed. 1972). There was, of course, disclosure here but appellants maintain that, although Tesoro’s disclosure to the SEC was voluntary, their waiver of the attorney-client privilege with respect to those disclosures was limited to the SEC. They contend that Permian is compatible with a theory which allows a “limited waiver” of the attorney-client privilege (excluding disclosures to government agencies) and cite authority from other courts supporting the correctness of that rule. See, e.g., Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1977). We disagree, and hold that the District Court correctly interpreted and applied this court’s precedent.
Contrary to appellants’ assertion, the waiver theory explicated by the court in Permian is not limited to circumstances in which material that has been disclosed to one federal agency is sought by another federal agency. In Permian, Occidental Petroleum Corporation (Occidental) had allowed the SEC access to certain documents pursuant to an agreement by which Occidental attempted to retain its privileges. When the Department of Energy later sought access to some of the privileged materials, Occidental claimed that several of the documents were protected by the attorney-client privilege and that the prior disclosure to the SEC was a limited waiver of the privilege, i.e., it was a waiver with respect to the SEC alone.
Rejecting the limited waiver argument, this court stated: “we are aware of no congressional directive or judicially recognized priority system that places a higher value on cooperation with the SEC than on cooperation with other regulatory agencies, including the Department of Energy,” Permian, 665 F.2d at 1221. Appellants use this quotation to urge that the Permian court rejected the limited waiver theory only as between federal agencies. However, such a narrow reading of that case is an incorrect characterization of its reasoning and holding. There is no need to elaborate on this court’s emphatic rejection of the limited waiver doctrine in a lengthy discussion in Permian, see 665 F.2d 1220-1222, in which the court stated that
The client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others, or to invoke the privilege as to communications whose confidentiality he has already compromised for his own benefit ____ The attorney-client privilege is not designed for such tactical employment.
665 F.2d at 1221.
There is no meaningful distinction in the adventitious fact that only federal agencies were involved in Permian. For the purposes of the attorney-client privilege, there is nothing special about another federal agency in the role of potential adversary as compared to private party litigants acting as adversaries. Like Occidental in Permian, Tesoro willingly sacrificed its attorney-client confidentiality by voluntarily disclosing material in an effort to convince another entity, the SEC, that a formal investigation or enforcement action was not warranted. Having done so, appellants cannot now selectively assert protection of those same documents under the attorney-client privilege. A client cannot waive that privilege in circumstances where disclosure might be beneficial while maintaining it in other circumstances where nondisclosure would be beneficial. “We believe that the attorney-client privilege should be available only at the traditional price: a litigant who wishes to assert confidentiality must maintain genuine confidentiality”. Permian, 665 F.2d at 1222. To the same effect, see United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980). Having failed to maintain genuine confidentiality, appellants are precluded from properly relying on the attorney-client privilege.
B. Work Product Privilege
The harder question concerns appellants’ claim that the District Court erred in concluding that the disclosure effected an implied waiver of their work product privilege.
While the attorney-client privilege is intended to promote communication between attorney and client by protecting client confidences, the work product privilege is a broader protection, designed to balance the needs of the adversary system to promote an attorney’s preparation in representing a client against society’s general interest in revealing all true and material facts relevant to the resolution of a dispute. See Hickman v. Taylor, 329 U.S. 495, 509-512, 67 S.Ct. 385, 392-394, 91 L.Ed. 451 (1947); see generally Cohn, The Work-Product Doctrine: Protection, Not Privilege, 71 Georgetown L.Rev. 917 (1983). As this court stated in United States v. American Telephone & Telegraph, 642 F.2d 1285, 1299 (D.C.Cir.1980), “the work product privilege does not exist to protect a confidential relationship, but rather to promote the adversary system by safeguarding the fruits of an attorney’s trial preparation from the discovery attempts of an opponent____ A disclosure made in the pursuit of such trial preparation, and not inconsistent with maintaining secrecy against opponents, should be allowed without waiver of the privilege.” (Emphasis in original.)
Recently this court decided a work product case which called upon the court to discuss the legal considerations underlying waiver of that privilege in the context of the SEC’s voluntary disclosure program, In re Sealed Case, 676 F.2d 793 (D.C.Cir.1982). Sealed Case involved resistance to a grand jury subpoena by a multinational corporation on work product grounds (among others) for its counsel’s records which had been disclosed previously to the SEC in the voluntary disclosure program. This court affirmed the district court’s determination that the corporation had waived its work product privilege:
Company entered into an arrangement with the SEC under which, as a matter of both common sense and common knowledge, Company relinquished its right to prevent the government from examining whatever documents were necessary for a fair evaluation of the final report offered to its shareholders and the SEC. Just because Company was successful in hiding crucial documents from the SEC, we need not allow Company to withhold them from a grand jury investigating possible crimes uncovered during the SEC’s investigation.
Sealed Case, 676 F.2d at 817.
Although the circumstances before us differ — this is a case involving private parties, not a grand jury investigation, and appellees here are seeking the documents which were disclosed to the SEC, not those which might have been successfully hidden — and though that opinion left open the precise case before us, the general reasoning of Sealed Case leads us to a similar conclusion here. As Judge Wright stated, “[t]he doctrine of implied waiver allows courts to retain some discretion to ensure that specific assertions of privilege are reasonably consistent with the purposes for which a privilege was created,” 676 F.2d at 817, and “[t]he question with respect to implied waiver is whether Wigmore’s ‘objective consideration’ of fairness negates [the] assertion of privilege.” Ibid. See also id. at 818. Obviously, the application of such a “fairness” standard is not without difficulty. However, because the underlying rationale of the work product privilege itself is also one of fairness, an analysis of whether that rationale maintains viability in particular circumstances involves of necessity the weighing of more abstract considerations within the context of those particulars.
Our present decision that there has been a waiver of the privilege rests on three main factors: (1) “the party claiming the privilege seeks to use it in a way that is not consistent with the purpose of the privilege,” Sealed Case, 676 F.2d at 818; (2) appellants had no reasonable basis for believing that the disclosed materials would be kept confidential by the SEC; and (3) waiver of the privilege in these circumstances would not trench on any policy elements now inherent in this privilege. First, the advantage that the appellants seek from their attempt selectively to disclose their work product is greater “than the law must provide to maintain a healthy adversary system.” Id. Fairness and consistency require that appellants not be allowed to gain the substantial advantages accruing to voluntary disclosure of work product to one adversary — the SEC — while being able to maintain another advantage inherent in protecting that same work product from other adversaries. See Sealed Case, 676 F.2d at 818-821. We are convinced that the health of the adversary system — which spawned the need for protection of an attorney’s work product from discovery by an opponent — would not be well served by allowing appellants the advantages of selective disclosure to particular adversaries, a differential disclosure often spurred by considerations of self-interest. “When a corporation elects to participate in a voluntary disclosure program like the SEC’s, it necessarily decides that the benefits of participation outweigh the benefits of confidentiality for all files necessary to a full evaluation of its disclosures. It foregoes some of the traditional protections of the adversary system in order to avoid some of the traditional burdens that accompany adversary resolution of disputes, especially disputes with such formidable adversaries as the SEC.” Sealed Case, 676 F.2d at 822-23 (footnote omitted).
There is no question that the SEC was an adversary to Tesoro. This was not a partnership between allies. Tesoro was not simply assisting the SEC in doing its job. Rather, Tesoro independently and voluntarily chose to participate in a thorough disclosure program, in return for which it received the quid pro quo of lenient punishment for any wrongdoings exposed in the process. That decision was obviously motivated by self-interest. Appellants now want work product protection for those same disclosures against different adversaries in suits centering on the very same matters disclosed to the SEC. It would be unreasonable to suppose that litigation with these other adversaries was not anticipated at the time of disclosure to the SEC. It would also be inconsistent and unfair to allow appellants to select according to their own self-interest to which adversaries they will allow access to the materials.
Second, appellants did not have any proper expectations of confidentiality which might mitigate the weight against them of such general considerations of fairness in the adversary process. Although we agree with appellants that not all voluntary disclosures effect a work product waiver, there is not here any “existence of common interests between transferor and transferee,” United States v. AT&T, 642 F.2d 1285, 1299 (1980), which might establish a basis for expectations of confidentiality. Appellants contend, however, that such expectations were warranted because the materials were disclosed to the Commission pursuant to (1) SEC regulations which required their confidentiality and, (2) an understanding between Fulbright and the SEC that the materials would remain confidential.
There is a dispute between the parties whether the question of SEC regulations said to require confidentiality was raised below by appellants. We put aside this question because the regulations cited by appellants are not relevant to the circumstances before us. See 17 C.F.R. §§ 203.2, 230.122, 240.0-4 (1978). These regulations apply to formal SEC investigations — they afford no protection to documents previously disclosed under the voluntary disclosure program. Appellants maintain that “disclosure” of the materials did not occur until the formal investigation began — and thus the regulations do apply — because the SEC did not have physical possession of the materials until that time. But even before taking physical possession, the SEC unquestionably had full access to all of the documents and perused them. Contrary to appellants’ argument, there is no significance to the distinction between full access and physical possession with respect to the issue of when disclosure took place. The materials were disclosed in full to the SEC prior to the institution of a formal investigation, and the regulations do not apply.
Likewise without merit is appellants’ claim that the SEC had agreed by letter to maintain the confidentiality of the submitted materials. Appellants were not entirely forthcoming below on this issue. Only after the District Court held against appellants in its first memorandum did they request reconsideration of that decision based on the new submission of correspondence consisting of two letters between Fulbright and the SEC. Appellants maintain that these letters — one dated October 3, 1978 from Fulbright to the SEC and one dated October 19, 1978 from the SEC to Fulbright — demonstrate that the SEC did agree to maintain the confidentiality of the documents in question.
We are not persuaded that the District Court erred in law or fact in its assessment that “there has been no commitment by the SEC to receive and hold the documents in confidence on terms which negate the waiver of [appellants’] work product privilege effected in 1978 when they submitted the documents to the SEC.” Responding to Fulbright’s October 3 letter, which stated appellants’ own understanding concerning disclosure of the documents, the SEC said that “[t]he Commission staff will maintain the confidentiality of any documents produced pursuant to any subpoena issued to your firm or to Tesoro, ... as it does in connection with any other private investigation.” As noted by the District Court, these documents were not “produced pursuant to any subpoena.” They were provided voluntarily by Tesoro to persuade the SEC not to engage in a formal investigation of possible wrongdoings. The distinction between voluntary disclosure and disclosure by subpoena is that the latter, being involuntary, lacks the self-interest which motivates the former. As such, there may be less reason to find waiver in circumstances of involuntary disclosure.
With regard to third party access, the SEC stated:
In the event that, during the period of investigation and thereafter, the Commission shall receive a request from any third party other than a grand jury or agencies of the federal government for access to any document submitted by your firm or Tesoro, voluntarily or pursuant to subpoena, ... the staff of the Commission will notify Tesoro of the receipt of such a request ____ In the further event that the Commission should determine that it is not able to grant confidential treatment consistent with the provisions of the Freedom of Information Act, the staff will immediately advise Tesoro of such decision and endeavor to afford you ten days notice prior to the release of such documents
Clearly, the SEC’s assurance that Tesoro would be notified in the event of a third party request is hardly an agreement to maintain complete confidentiality. Regardless of Fulbright’s attempts to extract such a promise from the SEC, neither these letters nor any other part of the record indicates any such agreement by the SEC. Indeed, the record shows that the exchange of these letters occurred after the SEC had already been given access to all of the documents in question. The letters were sent sometime after the beginning of a formal investigation of Tesoro by the SEC, not prior to the initial disclosure of the documents. The record shows no attempts by appellants to structure a confidentiality agreement prior to making the documents available, much less an agreement to do so by the SEC even after disclosure had been made. See Sealed Case, supra, 676 F.2d at 823. In short, the letters exchanged between Fulbright and the SEC warrant no expectations of confidentiality on appellants’ part for the materials which were made available. The attempt to secure confidentiality occurred after the SEC had seen the voluntarily disclosed documents, and the SEC’s statement concerning third party requests for documents said only that Tesoro would receive notice of any release of materials which would have been deemed appropriate by the Commission.
Appellants offer two other factors to support their expectations of confidentiality, neither of which weighs in their favor: (1) The SEC has not in fact released any of the materials, including to a private party who requested copies of the Tesoro documents under the Freedom of Information Act (FOIA), and (2) the SEC apparently will propose legislation concerning waivers of evidentiary privileges by companies involved with the SEC.
There is no significance to the fact that the SEC has not released any of the materials. The SEC denied an FOIA requestor by asserting exemption 7(A) (5 U.S.C. § 552(b)(7)(A)) because “the production of such records would ... interfere with law enforcement proceedings,” i.e., with the then on-going grand jury proceedings. However, since the grand jury proceedings have ended, the SEC has advised a requestor that the exemption will no longer be asserted and that the Commission’s FOIA officer will review the Tesoro file to determine whether any material is releasable. This is a slim basis on which to claim an expectation of confidentiality.
Likewise without weight is appellants’ contention that confidentiality should be accorded because the SEC has recently announced that it will propose legislation which would “provide that submission of information to the Commission does not waive the attorney-client privilege, or any other applicable evidentiary privilege, and that such information is exempt from the FOIA.” This statement by the SEC hardly supports appellants’ position. Rather, it seems to indicate a belief by the SEC that, under current law, submission of information to the SEC waives applicable evidentiary privileges and is not exempt from FOIA requests. We note that the SEC has not taken any public position in this case concerning judicial resolution of these problems, nor has it adopted regulations embodying the substance of its suggestion to Congress.
Finally, we believe that no policy factor now inherent in the work product privilege calls for a special exception for the SEC’s voluntary disclosure program (or similar governmental enforcement projects). A healthy adversary system affords protection to an attorney’s trial preparation as against actual and potential opponents. United States v. American Telephone & Telegraph, supra, 642 F.2d at 1299. But, as we have said, the privilege does not protect against the manipulation of selecting a particular opponent for selective disclosure — most probably for the discloser’s own benefit. The SEC was such a poten-, tial opponent but Tesoro (and the other appellants) voluntarily and deliberately made disclosures to that agency, undoubtedly in the hope and expectation of receiving a benefit under the voluntary disclo- , sure program. It is said that, nevertheless, such voluntary programs will be hindered unless the work product privilege covers disclosures under them. Permian, supra, has already rejected, for the attorney-client privilege, an exception for such disclosure, saying “we cannot see how ‘the developing procedure of corporations to employ independent outside counsel to investigate and advise them’ would be thwarted by telling a corporation that it cannot disclose the resulting reports to the SEC if it wishes to maintain their confidentiality.” The same choice is open under the work product privilege. Or the company can insist on a promise of confidentiality before disclosure to the SEC. Cf. Sealed Case, 676 F.2d at 823.
If a change is to be made because it is thought that such voluntary disclosure programs are so important that they deserve special treatment, that is a policy matter for the Congress, or perhaps for the SEC (through a regulation). Courts are not the appropriate forum — for one thing, courts do not know enough — to decide on policy grounds to treat those programs (or others like them) in an exceptional way. See Sealed Case, supra, 676 F.2d at 824.
Affirmed.
. The orders were entered by District Judge Oberdorfer on September 23 and October 18, 1983 in District Court Misc. No. 83-0217.
. Plaintiff-appellees are Robert J. Bolton, George E. Meyer and Leo A. Walker, III, individually and on behalf of all persons similarly situated, and Robert J. Bolton derivatively on behalf of Tesoro.
. Tesoro intervened after appellees moved to compel compliance with the subpoenas.
. The special committee later retained Vinson to advise it with regard to certain legal matters arising in conjunction with the investigation.
. We were informed by letter prior to oral argument that the grand jury investigation had been concluded with a decision not to seek a criminal prosecution.
. Appellants are Tesoro and the two law firms.
. Fed.R.Civ.P. 26(b)(3) provides:
(3) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of docu7 ments and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.
. "We do not consider whether we would imply a waiver in other types of litigation for all of Company's privileged files relating to the report." 676 F.2d at 817.
. Wigmore stated that "Regard must be had ... in every waiver ... [to] the element of fairness and consistency.” 8 J. Wigmore, Evidence § 2327 at 636 (J. McNaughton rev. 1961)).
. As we show infra, the SEC did not promise confidentiality to appellants.
. The newly submitted letters between Tesoro and the SEC were exchanged in October 1978. The SEC’s formal investigation of Tesoro commenced in August 1978. Appellants have also placed into evidence a copy of a letter, dated September 18, 1978, from Fulbright to the SEC in which confidentiality was claimed for all documents. This letter, too, was sent after the formal investigation was commenced, and the record shows no response from the SEC.
. In Permian, supra, 665 F.2d 1214, the District Court upheld claims to work product protection, and we affirmed. Appellants say that that holding supports their position that their voluntary production of documents to the SEC did not effect a waiver of their work product protection. Permian was quite different, though it involved production of allegedly privileged documents to the SEC. Those documents had first been produced in private litigation in which both a stipulation between the parties and a judicial protective order stated that inadvertent production of a privileged document would not be deemed a waiver. The District Court found that work product waiver had not in fact occurred for 36 documents at issue because a special agreement with the SEC established a protective attitude of confidentiality. The question on appeal was the correctness of the District Court’s factual findings concerning the agreement with the SEC. That finding was upheld by this court as not clearly erroneous. 665 F.2d at 1218-19. Here, on the other hand, the District Court found no such special agreement, and we agree that its decision was correct on this record.
. Taken from a letter dated February 22, 1984 from John S.R. Shad, SEC Chairman, to the Honorable Timothy E. Wirth, Chairman of the House Energy and Commerce Committee Subcommittee on Telecommunications, Consumer Protection and Finance.
Question: Did the court's interpretation of rules relating to discovery or other issues related to obtaining evidence favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_appel1_7_2 | B | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine the gender of this litigant. Use names to classify the party's sex only if there is little ambiguity (e.g., the sex of "Chris" should be coded as "not ascertained").
Frank W. JACOBS, Sr., Appellant, v. UNITED STATES of America, Appellee.
No. 16302.
United States Court of Appeals Eighth Circuit.
June 22, 1960.
Sidney M. Glazer, St. Louis, Mo., for appellant.
William C. Dale, Jr., Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before GARDNER, WOODROUGH and VOGEL, Circuit Judges.
VOGEL, Circuit Judge.
Frank W. Jacobs, Sr., appellant, was indicted on charges of willfully attempting to evade income taxes for the years 1950, 1951 and 1952 by the filing of fraudulent income tax returns. After a jury trial, in which the government relied upon the net worth theory of proof, appellant was acquitted on the count applicable to the year 1950 and convicted on the counts relating to the years 1951 and 1952. He was sentenced to concurrent terms of imprisonment of five years and was fined $20,000, from which result this appeal is taken.
Appellant urges, first, that the trial court committed error by inquiring as to the division of the jury and in giving an additional charge during the jury’s deliberations after the inquiry had elicited the information that the jury was unevenly divided. The court concluded its main charge to the jury at noon of the seventh day of the trial. The jurors were then taken to lunch, subsequent to which they retired. At 5:53 o’clock p. m. on that day the jurors were again brought into court, whereupon the following proceedings transpired:
“The Court: I am going to ask first that no member of the jury volunteer any statements at all, simply answer as succinctly as you can the questions that I may ask you. You haven’t arrived at a verdict, have you?
A Juror: No sir.
“The Court: Do you think you are near a verdict?
A Juror: No sir.
A Juror: No sir.
“The Court: Are you the foreman?
A Juror: I am.
“The Court: Oh. Mr. Foreman, do you think it possible you are going to arrive at a verdict?
“The Foreman: I doubt very much.
“The Court: Now, let me ask you —I don’t want anybody to say, I don’t want you to say, I don’t want anybody to say how you are divided numerically; but I would like to ask whether there is, whether the division is, the sentiment of the jury, whether it is very largely one-sided, whether or not- — I don’t want anybody to comment how many taking one position or how many another, but are there — is it equal, largely one-sided ?
“The Foreman: Can I answer that?
“The Court: Without any numbers.
“The Foreman: Not equally divided.
“The Court: Have you been that way throughout the afternoon?
“The Foreman: Yes sir.
“The Court: That being the case, I want to say this to you at this time: This is an important case; the trial has been long and expensive. The failure to agree upon a verdict will necessitate another trial, probably equally as expensive. In the Court’s opinion the case would not be tried any better or exhaustively than it has on either side. It is therefore very desirable that you should agree upon a verdict.
“The purpose of a trial is to arrive at a verdict, a just verdict, not a disagreement. It is the duty of a jury to agree upon a verdict, that is the purpose of a trial. It is your duty to adjust your differences of opinion by comparison of views and by discussion of the evidence, having your minds at all times open to the truth as may be impressed upon you by fair argument and a fair presentation of the evidence. Such a method adopted by reasonable men and women, having due regard to the opinions of your fellow jurymen will almost inevitably lead to an agreement and a just verdict. On the other hand, a dogged persistence in a position which will not listen to a fair argument or to the persuasive force of reason is destructive of justice and has no place in the jury box.
“Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own or her own convictions, and not a mere acquiescence in the conclusion of his or her fellows, yet in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided; and you are selected in the same manner and from the same source from which any future jury must be. There is no reason to suppose the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it; or that more or clearer evidence will be produced on one side or the other. With this in view it is your duty to decide the case if you can conscientiously do so.”
Thereafter, counsel for appellant moved for a mistrial on the ground that the court’s inquiry followed by the supplemental instruction was improper, which motion was overruled. After further deliberation, the jury returned a verdict finding appellant guilty on two counts and acquitting him on one. It is the contention of appellant that the inquiry and the additional instruction coerced the jury into arriving at a compromise verdict. In so contending, appellant calls attention to the fact that the jury was “not evenly divided”, that the view of the minority at that time was so strong that the foreman and one other juror indicated that they were not near a verdict, and that the foreman, in response to the court’s, question, “do you think it possible you are going to arrive at a verdict”, replied, “I doubt very much” and that they had been “that way throughout the afternoon”.
The propriety of inquiring of a jury how they stand has been considered by the Supreme Court and the Courts of Appeals, on numerous occasions. In Burton v. United States, 1905, 196 U.S. 283, 305-308, 25 S.Ct. 243, 249, 49 L.Ed. 482, the trial judge inquired of the jurors as follows:
“I would like to ask the foreman, of the jury how you are divided. I do not want to know how many stand for conviction, or how many for acquittal, but to know the number who, stand the one way and the number who stand another way. I would like the statement from the foreman.”
To which the foreman answered:
“Eleven to one.”
Thereupon the court instructed the jury further in the language approved by the Supreme Court in Allen v. United States, 1896, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528, which instruction was similar to that used by the trial judge here. In reversing on this and other grounds, the Supreme Court stated:
“We must say in addition, that a practice ought not to grow up of inquiring of a jury, when brought into court because unable to agree, how the jury is divided; not meaning by such question, how many stand for conviction or how many stand for acquittal, but meaning the proportion of the division, not which way the division may be. Such a practice is not to be commended, because we cannot see how it may be material for the court to understand the proportion of division of opinion among the jury. All that the judge said in regard to the propriety and duty of the jury to fairly and honestly endeavor to agree could have been said without asking for the fact as to the proportion of their division; and we do not think that the proper administration of the law requires such knowledge or permits such a question on the part of the presiding judge. Cases may easily be imagined where a practice of this kind might lead to improper influences, and for this reason it ought not to obtain.” (Emphasis supplied.) Burton v. United States, supra, at page 307, 25 S.Ct. at page 250, 49 L.Ed. 482.
More recently, in Brasfield v. United States, 1926, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345, the Supreme Court had before it the single question of whether or not prejudicial error had been committed by the trial judge in inquiring of the jury, which had failed to agree, how it was divided numerically, which inquiry elicited the reply by the foreman that it stood 9 to 3 without any indication of which number favored conviction. In forceful language Mr. Justice Stone, speaking for a unanimous court, held the inquiry improper, declaring:
“We deem it essential to the fair and impartial conduct of the trial, that the inquiry itself should be regarded as ground for reversed. Such procedure serves no useful purpose that cannot be obtained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measureable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.” (Emphasis supplied.) Brasfield v. United States, supra, 272 U.S. at page 450, 47 S.Ct. at page 135.
In Jordan v. United States, 9 Cir., 1927, 22 F.2d 966, the trial court inquired :
“I am not asking you for a division, Mr. Foreman; but I will ask you: Is the jury about evenly divided ? You can answer that yes or no. “The Foreman: Yes, sir.”'
The Circuit Court reversed the conviction, relying upon both Burton v. United States, supra, and Brasfield v. United States, supra. In referring to the latter decision, the court stated:
“This language is too plain to admit of further controversy. The court condemned both the form of the inquiry and the inquiry itself, and declared that in all future cases any such inquiry should be regarded as ground for reversal. It is idle to say that to ask a jury ‘If it is about evenly divided’ does not require it to disclose ‘the proportion of division of opinion among the jury,’ or ‘to reveal the nature or extent of its division.’
“For this error, the judgment is reversed, and the cause is remanded for a new trial.” Jordan v. United States, supra, 22 F.2d at page 967.
In Stewart v. United States, 8 Cir., 1924, 300 F. 769, 782, this court considered the propriety of a trial court’s inquiry of the jury foreman:
“ * * * that it did not wish him to say how the jury stood, but that it would like to know whether they were evenly divided, or whether there was a larger preponderance one way or the other, * * * ”
to which the foreman replied that there seemed to be a large preponderance one way. In his opinion, Judge Walter San-born first reviewed the Supreme Court’s decision in Burton v. United States, supra, in detail and then explained:
“The practice forbidden by this opinion [the Burton opinion] seems to be any inquiry ‘as to the proportion of the division’ of the jury, although ‘not meaning by such queS' tion how many stand for conviction or how many stand for acquittal, but meaning the proportion of the division, not which way the division may be.’ It is difficult to describe the question asked by the court below more clearly and accurately than it is described by this language of the Supreme Court. It was exactly an inquiry how the jury was divided, not meaning how many stood for conviction, or how many stood for acquittal, but meaning the proportion of the division, not which way the division was. While in questions of this nature, which exclude inquiries and answers as to the standing of the jury in regard to the conviction or acquittal of the accused, such as the question asked in this case, and such as, Is there a preponderance of jurors one way or the other? Is there a great preponderance of jurors one way or the other? Is there an overwhelming preponderance of jurors one way or the other? Courts and juries use the word ‘preponderance,’ they actually think and mean majority, and they think of and seek for the numerical proportion of the division of the jury.
“This court had occasion to consider the true construction and effect of the opinion of the Supreme Court in the Burton case, relative to the question now under consideration, in St. Louis & S. F. R Co. v. Bishard, 147 F. 496, 500, 501, 502, 78 C.C.A. 62, and concluded that the trial court’s inquiry of the jury in that case, not how many were for conviction or how many were for acquittal, but what the bare proportion of their division was, was erroneous, reversed the judgment, and ordered a new trial. There is no such difference between the facts in that case and the facts in the case in hand as will warrant a contrary result in this case.” Stewart v. United States, supra, 300 F. at pages 783, 784.
Subsequently, in Nigro v. United States, 8 Cir., 1925, 4 F.2d 781, 783, this court had before it the following situation:
“ ‘The court inquired of the foreman of the jury if they had agreed upon a verdict. The foreman replied that the jury had not agreed. The court inquired if the foreman thought they would likely agree. The foreman replied that it did not appear that they would likely be able to agree. The court then inquired if the difficulty of the jury was upon a question of fact or in respect to the law of the case, and stated that if it was upon a matter of law he would give further instructions, if they would indicate the difficulty, but if it was upon a question of fact he would not be able to help them. The foreman replied that it was upon a question or issue as to facts. The court then requested the foreman that, without indicating how the jury stood in numbers, he, the foreman, should state to the court whether or not there was a predominance of the individual jurors in favor of a verdict one way or the other ; the foreman replied there was a predominance.’ ”
The trial court then instructed the jury further in accordance with Allen v. United States, supra. On appeal this court concluded:
“On the authority of the Stewart Case and for the reasons therein assigned, we hold that the inquiry made of the jury and the reading of the abstract statements from the Allen Case was error.” Nigro v. United States, supra, 4 F.2d at page 785.
United States v. Samuel Dunkel & Co., 2 Cir., 1949, 173 F.2d 506, 507, involved the following inquiry of the jury foreman:
“May I ask you, Mr. Whitney, I believe it is, without disclosing the way in which the jury stands, can you tell me, are they nearly equally divided as to a question of fact, or is there a majority, a pronounced majority in agreement, with a pronounced minority in disagreement? I think you know what I mean.
“The Foreman of the Jury: There is a majority, very much.”
The court thereupon gave the Allen instruction. The Court of Appeals, after reviewing prior cases touching the problem and quoting from Brasfield v. United States, supra, stated:
“The language of the Court is so clear and sweeping that further question seems now impossible. * * *
“Under these circumstances we do not see how these convictions can be sustained upon the authorities. Thus two of the cases approved in the Brasfield case were those of reversals for the eliciting of information that ‘a large preponderance’ [300 F. 783] or ‘a predominance’ of the jury were voting one way. Such inquiries were at least no more direct than the inquiry here as to whether or not there was ‘a pronounced majority’ in agreement, bringing out the answer that there was ‘a majority, very much.’ If the fault is in directing the admonitions of the Allen charge toward a minority, indeed a small minority, of the jury, there seems no justification for advancing fine differentiations resting upon the non-use of specific numbers or upon the nomenclature employed in the isolating of that minority. Practically the possibilities of coercion seem the same; legally it would be undesirable further to add to the uncertainties of criminal law administration by such over-refined distinctions. * * *
“ * * * the federal precedents are compelling and we would hardly improve the situation by trying to introduce into the system refined distinctions lacking substance.” United States v. Samuel Dunkel & Co., supra, 173 F.2d at pages 510-511.
Recently, in Anderson v. United States, 8 Cir., 1959, 262 F.2d 764, certiorari denied 360 U.S. 929, 79 S.Ct. 1446, 3 L.Ed 2d 543, rehearing denied 361 U.S. 855, 80 S.Ct. 43, 4 L.Ed.2d 94, this court considered the effect of giving the Allen charge after an inquiry had elicited the information that the jury was evenly divided. Conviction therein was affirmed on the basis that there was no minority to coerce. In that ease we explained:
“The government concedes that the inquiry made by the trial court in the instant case was ‘ill. advised’ but it contends that it was not prejudicial and, under the circumstances, not coercive of the jury.
“The teaching of most of the cases relied upon by the defendants is that where the inquiry from the court elicits the information that the jury is unevenly divided, the giving of the extracts from the opinion in Allen v. United States, supra, is probably coercive of the minority and, hence, prejudicial error. That is not the situation here. The trial judge was told that the jurors were ‘pretty evenly divided’. From a purely practical standpoint, then, we do not see how the giving of a supplemental charge from the Allen case could possibly have been coercive. Here there was no minority to coerce and the trial judge was meticulous in avoiding any reference to a minority.” Anderson v. United States, supra, 262 F.2d at page 773.
Manifestly, where the inquiry of the trial court does elicit the fact that a minority exists, the language of the Anderson decision compels a result contrary to that reached there.
The government attempts to justify the court’s inquiry in the instant case by pointing out that the trial court did not ask for the numerical division of the jury. We see no logical distinction between a question to the foreman as to whether or not the division of the jury is “very largely one-sided” and the inquiry “how do you stand numerically”. In either case the existence of a minority may be revealed, making possible their coercion. No good can come from the inquiry used in the instant case. Much harm may result. Thus, upon the authority of the decisions discussed herein and upon the sound principles of non-interference with jury deliberations, we are impelled to the conclusion that the inquiry made here, followed by the Allen instruction, had a coercive effect on the jury, constituted prejudicial error and requires a new trial. We repeat the admonition of Judge Walter Sanborn given over thirty years ago in Stewart v. United States, supra, 300 F. at page 785:
“ * * * the better and safe way for the presiding judge to proceed is for him to avoid asking any question of the jury or of its foreman as to the standing of the jury or the proportion of their division upon any issue, * *
An additional reason necessitates the retrial of this case. During the presentation of its case, the government relied upon the testimony of a Special Agent and an Internal Revenue Agent. These witnesses testified in detail regarding the acquisition and disposition of assets and liabilities during the periods for which the government attempted to show increased net worth in excess, of reported income. They further testified with reference to the taxpayer’s living expenses as well as to conversations they had with him. Appellant’s counsel requested that he be allowed to examine all reports and statements made to the government by those witnesses. Government’s counsel furnished appellant memoranda made contemporaneously with interviews of the appellant but rejected his request to inspect other reports or statements. Alternatively, appellant moved that the trial court inspect the statements to determine which ones appellant was entitled to receive. The trial court sustained the government’s objections to both requests. The denial of appellant’s motions was in violation of the provisions of 18 U.S.C.A. § 3500. Appellant’s contention of error thereon must be sustained. See our opinion in Burke v. United States, 8 Cir., 279 F.2d 824.
In view of our conclusions as to the errors already discussed, consideration of appellant’s additional contentions will be pretermitted.
Reversed and remanded for retrial.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". What is the gender of this litigant?Use names to classify the party's sex only if there is little ambiguity.
A. not ascertained
B. male - indication in opinion (e.g., use of masculine pronoun)
C. male - assumed because of name
D. female - indication in opinion of gender
E. female - assumed because of name
Answer: |
songer_applfrom | F | 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).
Maida Ludvik SHERIS, Appellant, v. The TRAVELERS INSURANCE COMPANY, Appellee. Maida Ludvik SHERIS, Appellee, v. The TRAVELERS INSURANCE COMPANY, Appellant.
Nos. 73-1462, 73-1463.
United States Court of Appeals, Fourth Circuit.
Argued Nov. 7, 1973.
Decided Feb. 12, 1974.
James H. Simmonds, Arlington, Va., and Richard A. Mehler, Washington, D. C. (Lawrence S. Schaffner, Washington, D. C., on brief), for Maida Ludvik Sheris.
James C. Gregg, Washington, D. C., for The Travelers Ins. Co.
Before HAYNSWORTH, Chief Judge, and BUTZNER and WIDENER, Circuit Judges.
BUTZNER, Circuit Judge:
This appeal questions the apportionment of an attorney’s fee between a workmen’s compensation carrier and the administratrix of an estate who recovered damages for the wrongful death of an employee. The district court used only the compensation installments actually paid as a basis for assessing the carrier’s proportionate share of the fee. We conclude that the entire compensation award furnished the appropriate basis for apportionment, subject to a credit allowable to the carrier. Accordingly, we vacate the judgment and remand the ease for further proceedings.
William T. Sheris perished in the crash of a transatlantic aircraft. Because his death occurred during the course of his employment, the Industrial Commission of Virginia awarded his widow and minor children compensation payable by his employer’s insurance carrier, the Travelers Insurance Company, in 400 weekly installments of $45, totaling $18,000. Mrs. Sheris, suing in district court as administratrix of her husband’s estate, also received $75,000 from the airline responsible for his death. From her share of the recovery against the airline, she paid an attorney’s fee of $25,000. Thus, while this litigation is cast in terms of apportioning an attorney’s fee, it is really an attempt by Mrs. Sheris to obtain from Travelers partial reimbursement for her outlay.
Before the court made final distribution of the $75,000, a dispute over Travelers’ right to subrogation was submitted to the Industrial Commission. In that forum, Mrs. Sheris contended .that the subrogation provisions of the Workmen’s Compensation Act were inapplicable because the airline’s liability rested on contractual aspects of the Warsaw Convention and the damages recovered by the estate were in the nature of insurance. The Industrial Commission ruled against Mrs. Sheris, holding that Travelers was subrogated to the estate’s rights against the airline. Consequently, it ordered that Travelers should be reimbursed for the weekly installments it had already paid, aggregating $5,040, and it relieved the company of future payments. Thus, Travelers was saved harmless from liability on the entire $18,000 award. The Supreme Court of Virginia affirmed, Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972). Neither the Commission nor the Court apportioned counsel fees.
Returning to the district court, the parties sought distribution of the award. Travelers asked to be repaid the sum of $5,040 without contribution for counsel fees, because Mrs. Sheris had opposed its right of subrogation. Mrs. Sheris urged that the carrier be assessed a fee of $6,000 based on the entire compensation award of $18,000. The court accepted neither party’s position. It ruled Travelers’ contribution for fees should be based on $5,040, the amount of compensation it had paid, rather than its potential liability of $18,000. It made no adjustment for Travelers on account of Mrs. Sheris’ opposition to subrogation. Accordingly, from the $75,000 recovery against the airline, the court awarded Travelers $5,040 less 33%% which it deducted for Travelers’ share of the fee. Dissatisfied, both parties appealed.
The Virginia Workmen’s Compensation Act allows either the employer or the employee to sue the person responsible for the employee’s injury except for reasons not pertinent to this case. If the employer sues, he may retain from the damages he recovers a sum sufficient to reimburse himself for the compensation paid, or payable, to the employee, but he must account to the employee for money collected in excess of the award. If the employee sues, the employer is entitled to be reimbursed for compensation already paid and to be discharged from liability for future payments to the extent that the judgment against the wrongdoer is sufficient to satisfy the compensation award. The balance may be retained by the employee. In either instance, the employer’s workmen’s compensation insurance carrier stands in the shoes of the employer.
For many years an employer who sued the wrongdoer has been authorized to deduct reasonable attorney’s fees before remitting to the employee. But before 1960 an employee who brought suit was not entitled to charge any attorney’s fees against the employer’s share of the recovery. Frequently these rules placed all of the expense of suing a wrongdoer on the injured employee or his survivors even though the employer or his compensation carrier benefited substantially. To remedy this inequity, the legislature amended the Workmen’s Compensation Act by apportioning attorney’s fees between the employer and employee as their respective interests may appear regardless of who instituted the suit.
The Supreme Court of Virginia has not been called upon to decide the correct basis for apportioning an attorney’s fee when the employee’s recovery against the wrongdoer is in excess of both the paid and unpaid portions of a compensation award. Several courts, however, have interpreted apportionment statutes similar, though not identical,-to Virginia’s. They have ruled that apportionment must be based on the full liability of the employer—the compensation it has paid in the past and the amount that it would be required to pay in the future were it not for the employee’s successful suit.
The reasoning of these cases is sound. It rests on the conclusion that there is no rational distinction between the benefit an employer enjoys from being reimbursed for compensation payments already made and the benefit of being released from the obligation to make future compensation payments. Therefore, as one court has pointed out, it is reasonable to assume that the legislature intended the attorney’s fee to be prorated to the extent of the benefits the employer received from the recovery against the wrongdoer. Stated negatively, there is nothing to indicate that when the Virginia legislature directed proration of the fees as the interests of the parties may appear, it intended that only part of the interest of the compensation carrier should be taken into account.
While some compensation awards may be modified with respect to future payments, the employee’s right of apportionment should not be defeated. The prospect of modification, however, is a factor that a court should consider in light of the contingency that may affect the award. In the case before us, the possibility of modification of the award presents no problem. Upon Travelers’ application, the Industrial Commission released it from future payments because Mrs. Sheris and her children recovered $75,000 from the airline.
Travelers asserts that cases from other jurisdictions are not persuasive because Va.Code Ann. § 65.1-42 (1973) expressly provides that the employer’s share of attorneys’ fees shall be deducted from the compensation actually paid. This provision, Travelers argues, shows conclusively that proration of attorneys’ fees must be based on installments of an award already paia, and not on the unpaid installments.
The difficulty with Travelers’ position is that it overlooks the significance of the 1960 amendment to the Compensation Act. The principal substantive change was the enactment of a new section recodified as § 65.1-43 providing that upon the recovery of damages by either the employer or the employee against the wrongdoer, the court should apportion reasonable attorney’s fees between the employer and the employee as their interests appear. To carry out this substantive change, the amendment modified two existing sections dealing respectively with suits brought by the employer and suits brought by the employee. These modifications are procedural. They are designed to insure that the attorney’s fees shall be apportioned in accordance with the substantive changes made in § 65.1-43 when the proceeds of the judgment against the wrongdoer are disbursed.
Section 65.1-42, on which Travelers relies, simply authorizes a deduction of a proportionate share of the fee from the reimbursement payable to the employer “as provided in § 65.1-43.’’ It is obvious, therefore, that § 65.1-42 is not, as Travelers contends, a limitation on the general apportionment statute, § 65.1-43. Section 65.1-42 does not deal expressly or by implication with the employer’s obligation for attorney’s fees arising out of the release of future payments that would have been due under the compensation award were it not for the employee’s successful suit. This question is governed by § 65.1-43, which explicitly states that apportionment must be made as the respective interests of the employer and employee appear.
Travelers’ interest in the recovery of $75,000 against the airline is substantially the same with respect to both the paid and unpaid portions of the compensation award. Travelers was relieved from liability from both parts of the award for precisely the same reason —Mrs. Sheris’ suit against the airline. Fortuities affecting the time required to bring that litigation to a successful conclusion determined in part the amount of compensation that remained unpaid. But these fortuities, similar to those attending all litigation, furnish no rational criteria for determining a just apportionment of the attorney’s fee. We conclude, therefore, that Travelers’ obligation to pay a part of the attorney’s fee must be based on the full compensation award of $18,000.
We turn next to Travelers’ cross appeal which charges that because of Mrs. Sheris’ opposition to its right of subrogation, the court erred in assessing any fees against it. Travelers’ argument, we believe, does not defeat Mrs. Sheris’ claim, but it is a factor the court must consider in apportioning the attorney’s fee between the parties.
The Compensation Act’s direction to apportion fees as the interests of the parties may appear is broad enough to encompass this situation. Travelers has benefited by Mrs. Sheris’ suit against the airline, and under the Act it must pay its share of the fee. But the company also had to spend its own money when Mrs. Sheris assumed an adversary position on the issue of subrogation. Therefore, the district court should allow as a deduction from the fee that Travelers would otherwise owe, the amount it reasonably expended to perfect its right of subrogation. In this way the mandate of the statute requiring consideration of the interests of both parties will be fully observed.
The judgment of the district court is vacated, and the ease is remanded for further proceedings consistent with this opinion. Each party shall bear its own costs.
. Va. Code Ann. §§ 65.1-41 and 42 (1973). The text is quoted in notes 14 and 15, infra.
. Va. Code Ann. § 65.1-41 (1973). The text is quoted in note 14, infra.
. Va. Code Ann. § 65.1-42 (1973). The text is quoted in note 15, infra. Sheris v. Sheris Co., 212 Va. 825, 188 S.E.2d 367 (1972).
. Va. Code Ann. § 65.1-112 (1973).
. See VEPOO v. Mitchell, 159 Va. 855, 164 S.E. 800, 167 S.E. 424, 425 (1933) (dictum).
. See Stancil v. United States, 200 F.Supp. 36, 44 (B.D.Va.1961) (dictum). Travelers’ reliance upon Stancil is misplaced. In Stancil claim was made only for apportionment of attorney’s fees on the basis of the compensation already paid, and, therefore, the court had no occasion to discuss the issue presented in the case now before us.
. Oh. 89, § 39.1 [1960] Va.Acts 108. This section has been recodified as Va.Code Ann. § 65.1—43 (1973). It provides:
“In any such action, or claim for damages, by such employee, his personal representative or other person against any person other than the employer, and in any such action brought, or claim asserted, by the employer under his right of subrogation provided for in § 65.1-41, if a recovery is effected, either by judgment or voluntary settlement, the reasonable expenses and reasonable attorney’s fees of such claimants shall be apportioned pro rata between the employer and the employee, his personal representative or other person, as their respective interests may appear.”
. Dowhy v. Moyer, Inc., 278 F.2d 753 (3rd Cir. 1960) ; Yeager v. Heckman, 158 F.Supp. 933 (E.D.Pa. 1957) ; Caputo v. Best Foods, Inc., 17 N.J. 259, 111 A.2d 261 (1955) ; Dante v. Gotelli, Inc., 17 N.J. 254, 111 A.2d 267 (1955) ; McMullen v. Maryland Casualty Co., 123 N.J.Super. 248, 302 A.2d 181 (1973) ; Wall v. Conn. Welding & Machine Co., 197 Pa.Super. 360, 179 A.2d 235 (1962) ; Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425 (1958) ; cf. Security Ins. Co. of Hartford v. Norris, 439 S.W.2d 68 (Ct.App.Ky. 1969) (apportionment based on equitable, not statutory, grounds) ; see Atleson, Workmen’s Compensation : Third Party Actions and the Apportionment of Attorney’s Fees 19 Buffalo L. Rev. 515, 532 (1970).
. See Yeager v. Heckman, 158 F.Supp. 933, 935 (E.D.Pa. 1957).
. See Soliday v. Hires Turner Glass Co., 187 Pa.Super. 44, 142 A.2d 425, 428 (1958).
. See note 15, infra.
. Ch. 89, §§ 65-38, 39 and 39.1 [1960] Va. Acts 108. The Workmen’s Compensation Act was revised and recodified in 1968. Ch. 660, §§ 65.1-41, 42, and 43 [1968] Va. Acts 1130. The text of these sections was not affected by the 1968 recodification. For convenience, the recodified section numbers have been used in this opinion.
. The text of this section is quoted in note 7, supra.
. Section 65.1-41 of the Va. Code Ann. (1973) provides:
“The making of a lawful claim against an employer for compensation under this Act for the injury or death of his employee shall operate as an assignment to the employer of any right to recover damages which the injured employee or his personal representative or other person may have against any other party for such injury or death, and such employer shall be subrogated to any such right and may enforce, in his own name or in the name of the injured emjdoyee or his personal representative, the legal liability of such other party. The amount of compensation paid by the employer or the amount of compensation to which the injured employee or his dependents are entitled shall not be admissible as evidence in any action brought to recover damages. Any amount collected by the employer under the provisions of this section in excess of the amount paid by the employer or for which he is liable shall be held by the employer for the benefit of the injured employee or other person entitled thereto, less a proportionate share of such amounts as are paid by the employer for reasonable expenses and attorney’s fees as provided in § 65.1-43
[The 1960 Amendment is italicized].
. Section 65.1-42 of the Va. Code Ann. (1973) provides:
“In any such action by such employee, his personal representative or other person against any person other than the employer, the court shall, on petition or motion of the employer at any time prior to verdict, ascertain the amount of compensation paid and expenses for medical, surgical and hospital attention and supplies, and funeral expenses, incurred by the employer under the provisions of this Act, and deduct therefrom a proportionate share of such amounts as are paid by the plaintiff for reasonable expenses and attorney’s fees as provided in § 65.1-43; and in event of judgment against such person other than the employer the court shall in its order require that the judgment debtor pay such compensation and expenses of the employer, less said share of expenses and attorney’s fees, so ascertained by the court out of the amount of the judgment, so far as sufficient, and the balance, if any, to the judgment creditor-[The 1960 Amendment is italicized].
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_initiate | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
FACUNDO et al. v. YABUCOA SUGAR CO.
No. 3564.
Circuit Court of Appeals, First Circuit.
March 10, 1941.
Edward O. Proctor, of Boston, Mass. (Guillermo Silva and Geigel & Silva, all of San Juan, P. R., on the brief), for appellants.
E. T. Fiddler, of San Juan, P. R. (Fiddler, McConnell & Gonzalez, of San Juan, P. R., on the brief), for appellee.
Before MAGRUDER and MAHONEY, Circuit Judges, and PETERS, District Judge.
MAGRUDER, Circuit Judge.
This was a suit for annulment of foreclosure proceedings and revendication of certain real properties, brought against the present recorded owner, whose title is derived, through various mesne conveyances, from a deed executed by the marshal pursuant to a foreclosure sale. A judgment by the District Court of Humacao dismissing the complaint was affirmed by the Supreme Court of Puerto Rico, from whose judgment the present appeal is taken.
Fortunately the facts of this protracted and intricate litigation, or series of litigations, need not be set forth at length; a drastically condensed statement will suffice for the disposition of the case, in the view we take of it.
The present plaintiffs are members or successors of members of a dissolved agricultural partnership called Cintron Hermanos. This partnership was constituted by public deed in 1891, for a term expiring June 30, 1901. In 1895, to secure advances made to the partnership by El Banco Territorial y Agrícola de Puerto Rico (hereinafter called the Bank), the partnership, through its managing partners, constituted a mortgage of the properties now in question, in favor of the Bank. The loan was to be repaid in 40 semi-annual instalments, the final one to fall due on April 30, 1915.'
Upon expiration of the term on June 30, 1901, the partnership was dissolved.
Several instalments being in arrears, the Bank on September 30, 1902, in virtue of an acceleration clause in the mortgage, instituted summary foreclosure proceedings in the District Court of Humacao. Service of demand for payment was made upon one of the original partners only, as binding on all the members and their successors We assume, as the insular courts have held, that such service was defective* though this conclusion is challenged by the Bank with considerable force of argument.
An auction sale, as decreed by the court, was held on January 22, 1903, but no bidder appeared. Pursuant to a further decree a second sale was held on March 17, 1903, based upon a reduction of 25% in the appraised value of the mortgaged properties. Again no bidder' appeared. ' Thereafter, on March 26, 1903, the District Court by order adjudicated the properties to the Bank. The adjudication was recorded in the Registry of Property on May 14, 1903, and the Bank was put into possession as owner.
On April 28, 1903, a suit was brought in the District Court of San Juan against the -Bank for a declaration that the above award of the properties to the Bank in the summary foreclosure proceedings was null and void, and for a decree "that matters be placed in the condition in which they were before the institution of the summary execution proceedings against the firm of Cintron Hermanos.” The plaintiffs in this suit were two of the original partners, and the successors of a third deceased partner. The fourth of the original partners did not appear as a party. Various technical points were alleged as grounds of invalidity of the foreclosure proceedings, but at this time the sufficiency of the service of the demand for payment was not attacked. These points were raised in a separate suit because under the local mortgage law the debtor is not a party in summary foreclosure proceedings. El Banco Territorial y Agrícola v. Cintron, 7 P.R.R. 194.
The District Court entered a decree setting aside the award. On appeal, the Supreme Court of Puerto Rico held that the second auction sale was invalid in that the sale was held in Guayama though the notice implied that it-would be held at Humacao, the regular seat of the District Court. On this ground alone, the Supreme Court in its order, dated June 24, 1905, annulled the summary foreclosure proceedings “from and after the date on which the second auction sale was held in Guayama on March 17, 1903, and orders that said proceeding be restored to the condition it had at that time.” Thus the court inferentially affirmed the regularity of the earlier steps in the foreclosure proceedings, including the service of the demand for payment. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220.
In compliance with the Supreme Court’s judgment, the District Court of Humacao reopened the summary foreclosure proceedings and ordered another auction sale. The sale was duly held on May 19, 1906, and the properties were adjudicated to the Bank for a total bid price of $47,000, no higher offer having been made by any other bidder. On the same day the marshal executed a deed to the Bank which was recorded in the Registry of Property. The marshal’s deed recites the order of the District Court, in compliance with the Supreme Court’s mandate, annulling everything done in the summary foreclosure proceedings “from and after the celebration of the second auction sale held in Guayama, the seventeenth of March, 1903” and directing that another auction sale be held. However, neither the marshal’s deed nor the corresponding entry in the Registry sets forth the specific steps taken by the Bank in serving the original demand for payment upon the debtor partnership. All the mesne conveyances are recorded, as is the deed of July 31, 1912, by which the Yabucoa Sugar Company, appellee herein, acquired title and under which it has remained in possession since that time. There is no suggestion that the appellee had actual notice of any defect in the original demand for payment. At no place in the records of the Registry does it appear how this demand was served. No question had been raised as to the sufficiency of the service. Indeed, it would have appeared to anyone examining the entries in the Registry that the Supreme Court had already approved the steps in the summary foreclosure proceedings up to the second auction sale. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220.
The present suit for revendication was filed on June 1, 1929. It is claimed that the summary foreclosure proceedings were invalid upon a ground never before advanced, namely, that the original demand for payment was defective because it was not served upon each of the partners. An amended complaint was filed March 1, 1932, in which “appeared for the first time in this lengthy proceeding, party Zoilo Cintron Cintron, through his heir Rene Cintron Parra.” (Zoilo had not appeared as a party in the earlier suit seeking annulment of the foreclosure proceedings. Cintron v. Banco Territorial y Agricola, 9 P.R.R. 220. Just why, we cannot make out.) In a lengthy opinion the District Court held that the amended complaint should be dismissed. Various reasons were assigned, including prescription and res judicata. On appeal, the judgment of the District Court was affirmed by the Supreme Court of Puerto Rico. The Supreme Court, while expressing an inclination to agree with all the grounds taken by the District Court, rested its opinion on res judicata, the only point extensively discussed in its opinion.
We think the judgment below should be affirmed. Without considering other defenses, we think it clear that, regardless of any defect that there may have been in the summary foreclosure proceedings by which the Bank acquired title, the Yabucoa Sugar Company has acquired an unassailable title by ordinary prescription, under the applicable provisions of the Civil Code of Puerto Rico.8
The two chief sections of the Code dealing with prescription of ownership in real property are §§ 1857 and 1859. Under § 1857, read in conjunction with § 1840, title to land by prescription results from possession “in good faith and under a proper (justo) title” for ten years as against persons present in Puerto Rico and for twenty years as against persons absent from Puerto Rico. Under § 1859 ownership of real property prescribes “by uninterrupted possessiqn of the same for thirty years without the necessity of title nor good faith.” Since less than thirty years had elapsed between the date of the marshal’s deed to the Bank in 1906 and the filing in 1929 of the original complaint in the case at bar, appellee cannot invoke § 1859.
But at the time of the original complaint, appellee had been in possession for over ten years, which was long enough for the acquisition of a prescriptive title under § 1857, if the other conditions were present, since the plaintiffs during that time have admittedly “always resided in the Island of Puerto Rico.”
Appellee’s possession has been “in the capacity of an owner, public, peaceful, and uninterrupted” (§ 1841).
Has this possession been “in good faith” ? This must be presumed, unless the adversary maintains the burden of showing bad faith (§ 364). We must take it on the record before us that appellee as possessor had the “belief that the person from whom he received the thing was the owner of the same, and could convey his title” (§ 1850); also, that appellee comes within § 363, describing a bona fide possessor as a “person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same.” It is true that appellee upon acquiring the land in 1912 was made aware by the entries in the Registry of Property that a predecessor in title had taken under an auction sale pursuant, to summary foreclosure proceedings ag'ainst Cintron Hermanos. But so far as the record disclosed, all the proceedings were regular. Good faith is not negatived under these circumstances by any doctrine of constructive notice charging appellee with knowledge of a “latent or occult” defect dehors the record. Ayllon v. Gonzalez, 28 P.R.R. 61. We thought otherwise in that case, 1 Cir., 288 F. 28, but were reversed in turn by the Supreme Court sub nom. Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 45 S.Ct. 52, 69 L.Ed. 209. To the same effect see Larracuenta v. Fabian, 56 D.P.R. 775. See also Arvelo v. Banco Territorial y Agricola, 25 P.R.R. 677, 693; Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712; Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734.
Finally, has appellee been in possession under “a proper (justo) title” (§§ 1840, 1857), a “true and valid” title (§ 1853) ? As the court pointed out in Ayllon v. Gonzalez, 28 P.R.R. 61, 67: “Just title and good faith are intimately related and a just title arises generally where the transferee believes that the person from whom he takes is the true owner and there was nothing in the record or in the facts known to him to show the defect or to put him on inquiry.” The words “proper” and “true and valid” in the sections of the Code in question have never been read literally as meaning a perfect title, “as otherwise prescription would not be needed.” Fernandez & Bros. v. Ayllon y Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209. See People of Porto Rico v. Livingston, 1 Cir., 47 F.2d 712, 717. In Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 711, 712, the court said:
“As regards color of title, section 1853 [§ 1852 of the 1930 ed.] expressly provides that it is understood to be that which legally suffices to transfer the ownership or property right, the prescription of which is in question. In order that the title may be colorable it is not necessary that it actually transfers the ownership or property right, but that it is sufficient to transfer it although it may contain a defect which invalidates it. And this is necessarily so, because if under the name of color of title, which the law requires for prescription, is meant only a title clothed with all the internal and external requisites necessary for the real and actual transfer of ownership, prescription would be superfluous as a means of acquiring ownership.”
Further, the court said in the same opinion (page 714 of 25 P.R.R.), discussing the meaning of “true and valid” in § 1853: “We cannot give to the word 'valid’ a meaning which would eliminate from our code the method of acquiring by ordinary prescription as would be the case if we should understand a valid title to be one clothed with all the internal and external requirements of the law.” In a companion case to the one just quoted, also entitled Martorell v. J. Ochoa & Bro., 25 P.R.R. 731, 734, 735, the court said:
“In so far as regards the colorable title for acquisition by prescription, which in the present case is the deed executed by Juan Roure Dalmau in favor of J. Ochoa & Brother, although it could not have conveyed to the firm the ownership of the property sued for because of the invalidity of the title of the vendor, yet inasmuch as the said deed, besides conforming to all the external requirements of law, constitutes in form a title conveying ownership, it is evident that it fulfils the requirements of sections 1853 and 1854 of the Revised Civil Code (§§ 1852 and 1853 of the 1930 ed.], because if it is required that the title relied on shall convey to the purchaser in fact and in law the ownership of the thing, there would be no need for him to set up the plea of prescription and this mode of acquisition, in so far as it relates to ordinary prescription, would be superfluous and would have to be eliminated from the methods of acquiring title under our laws as unnecessary and useless.”
Nor does ordinary prescription operate only in cases of voidable title, as distinguished from void title. In the present case, if the title acquired by the Bank through the marshal’s deed was voidable merely, the defect not appearing in the Registry, the subsequent deed to appellee as a bona fide purchaser in 1912 gave appellee an indefeasible title forthwith, without the necessity of awaiting the lapse of the statutory period for prescription. Cf. Arts. 33 and 34 of the Mortgage Law of Puerto Rico (Rev.Stat. Arts. 6717, 6718). But ordinary prescription, as provided in § 1857 of the Civil Code, operates in favor of a subsequent possessor in the position of the appellee, even though the marshal’s deed, because of extrinsic facts not appearing in the Registry, may have been void as between the Bank and Cintron Hermanos. See Martorell v. J. Ochoa & Bro., 25 P.R.R. 707, 712, 715.
In other words, “proper title” has been construed by the insular courts to mean merely that the record title must be clear; that the possessor must have “colorable title”. The matter in issue is peculiarly one of the local law of property, and we cannot 'say that the decisions of the insular courts construing the sections of the Civil Code dealing with prescription are clearly erroneous. Fernandez & Bros. v. Ayllon v Ojeda, 266 U.S. 144, 146, 45 S.Ct. 52, 69 L.Ed. 209.
Appellants rely heavily on Anaud v. Martinez, 40 P.R.R. 641, but this case is distinguishable, because there it appeared in the Registry that service of demand for payment in the' summary foreclosure proceedings had not been made upon the debtor nor upon the debtor’s attorney in fact nor upon a lessee in charge of the property; hence the subsequent purchaser having taken 'with notice was not a purchaser in good faith. We pointed that out when the Anaud case came here on appeal, sub nom. Cabo Rodriguez v. Anaud, 1 Cir., 54 F.2d 585, 587, 588. Furthermore, the Anaud case raised no question of prescription since the suit for revendication in that case had been brought within less than ten years after the invalid foreclosure sale. If certain expressions in Longpre v. Diaz, 237 U.S. 512, 35 S.Ct. 731, 59 L.Ed. 1080, may be taken as favoring the position of appellants in the case at bar, they must be considered as limited by the subsequent decision in Fernandez & Bros. v. Ojeda, 266 U.S. 144, 45 S.Ct. 52, 53, 69 L.Ed. 209, which explains the Longpre case as standing merely for the obvious proposition that “persons holding under a conveyance that was void upon the facts known to them could not be possessors in good faith.”
The judgment of the Supreme Court of Puerto Rico is affirmed, with costs to the appellee.
The opinion of the Supreme Court makes no comment upon the fact that partner Zoilo did not appear as a party in the previous litigation.
3 The following sections are quoted from, the Civil Code, 1930 Ed. The earlier edition of the Code (1902), which appears to be the one applicable in the case at bar, contained identical language though the section numbers were different.
“Section 363. — A bona fide possessor is deemed to be the person who is not aware that there exists in his title or in the manner of acquiring it, any flaw invalidating the same.
“A possessor in bad faith is deemed to be any person possessing in any case contrary to the aboye.
“Section 364. — Good faith is always presumed, and any person averring had faith on the part of a possessor, is bound to prove the same.”
“Section 1840. — For ordinary prescription of ownership and other property rights, it is necessary to possess things in good faith and under a proper title, during the time specified by law.
“Section 1841. — Possession mnst be in the capacity of an owner, public, peaceful, and uninterrupted.”
“Section 1850. — Good faith of the possessor consists in his belief that the person from whom he received the thing was the owner of the same, and could convey his title.
“Section 1851. — The conditions of good faith, required for possession in sections 363 and 364, Chapter I, Title Y, and in section 473, Article Second, Chapter I, Title VII, Second Book, of this Code, are equally necessary for the determination of said requisite in the prescription of ownership and of other property rights.
“Section 1852. — By a proper title is understood that which legally suffices to transfer the ownership or property right, the prescription of which is in question.
“Section 1853. — The title for prescription must he true and valid.
“Section 1854. — A proper title must be proven; it never can be presumed.”
“Section 1857. — Ownership and other property rights in real property shall prescribe by possession for ten years as to persons present, and for twenty years with regard to' those absent, with good faith and with a proper title.”
“Section 1859. — Ownership and other property rights in real property shall also prescribe by uninterrupted possession of the same for thirty years without the necessity of title nor good faith and without distinction between present and absent persons, with the exception mentioned in section 475, second article, Chapter I, Title VII, Second Book, of this Code.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_casetyp1_7-3-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
BALTIMORE & ANNAPOLIS R. CO. v. CONTINO et al.
No. 6107.
United States Court of Appeals Fourth Circuit.
Argued Nov. 8, 1950.
Decided Dee. 18, 1950.
Frank L. Fuller, III, Baltimore, Md. (R. E. Fee Marshall and Marshall, Carey, Doub & Mundy, all of Baltimore, Md., on the brief), for appellant.
J. Richard Wilkins, Baltimore, Md., for appellees.
Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.
PER CURIAM.
Upon the former appeal in this case, Contino v. The Baltimore & Annapolis R. Co., 4 Cir., 178 F.2d 521, we held that the Railroad Company was liable for negligence in respect to its participation in the construction and maintenance of an underpass on its line of less than normal clearance, without proper warning to the users of th-e highway. The responsibility for the erection of the crossing resided primarily with the State Roads Commission of Maryland, hut the Railroad participated in the project by approving the plans and sharing the cost; and since the Railroad and the Commission engaged in the enterprise jointly, it was held that the Railroad Company was liable for damage to a truck 12 feet in height which, due to the failure to illuminate, collided with the bridge in the nighttime. The Maryland statutes gave exclusive jurisdiction to the Commission to set up warning signs along the highways but the Railroad was nevertheless held liable since it joined in a construction which necessarily created an unreasonable risk unless suitable precautions to avoid accident were taken.
Upon the new trial, after the case was remanded to the District Court, the Railroad -endeavored to escape liability on a ground not broached or considered at the first trial. It offered to show that it was not in existence when the underpass was built; that at that time the road was being operated ¡by a predecessor corporation and that the property was sold at a receiver’s sale upon the condition that the purchaser should not be liable for any obligation or liability in respect to the property purchased, and that the appellant bought the property from the purchaser. This offer of proof was made as the basis for the contention that since the appellant had no share in the original ¡construction and no right to erect warning signs on the ■highways, it had no responsibility for the dangerous condition of the bridge which it uses in the operation of its line. The District Judge rejected this offer and rendered a verdict for the plaintiff in the sum of $5180. This ruling was correct. We know of no authority for the proposition that a railroad corporation may -escape liability for a dangerous condition existing on its line by showing that the condition was initiated by the preceding owner. Liability springs from the acceptance of the situation and continued operation by the new owner in spite of th-e obvious danger. No duty rested upon it to purchase and operate the property if safe operation was impossible. Moreover, in the present instance ther-e is no showing that the overpass could not have been conspicuously marked and lighted so as to be visible to the traveling public without offending th-e Maryland statute. Indeed it was conceded in argument in this court that it lay within the power of the Railroad to place a light on its right of way at the crossing and its failure to do so is sufficient basis for an affirmance of the judgment. We do not mean by this holding to imply that the Maryland statute which directs the State Roads 'Commission and forbids others to erect and maintain warning signs along the public 'highways was intended to prevent a railroad from marking its roadbed where it makes a crossing above a public highway, or that the Railroad had no obligation to secure the erection of suitable warning signs by or with the consent of the State authority, for it may not be assumed that public officials would be unwilling to perform a simple duty to safeguard the public.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer: |
songer_geniss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
SIMS v. RIVES.
No. 6574.
United States Court of Appeals for the District of Columbia.
May 11, 1936.
James J. Laughlin, of Washington, D. C., for appellant.
Leslie C. Garnett, U. S. Atty., and Allen J. Krouse, Asst. U.S.Atty., for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.
STEPHENS, Associate Justice.
This is an appeal from a judgment in the Supreme Court of the District of Columbia discharging a writ of habeas corpus and dismissing the petition upon which the writ had been issued.
The facts are as follows: On December 19, 1934, the appellant was convicted in the United States Police Court of the District of Columbia, on an information charging violation of the District of Columbia. Alcohol Beverage Control Act, approved and- effective January 24, 1934, 48 Stat. 319, as amended by the Act approved April 30, 1934, 48 Stat. 654. The petition for the writ asserted that the information charged “transportation of two cases of untaxed whisky.” It Was agreed by counsel at the bar and stipulated for the record that the actual offense involved was violation of subparagraph (c) of Section 17 of the Liquor Regulations prescribed under the Act referred to. The subparagraph provided:
“(c) Whenever alcohol, spirits, or wines shall be transported in quantities in excess of 12 quarts, or beer in excess of 48 quarts, the person in charge of such transportation shall have in his possession a bill or memorandum from the seller to the purchaser, showing the names and addresses of the seller and of the purchaser, and the quantity and character o.f the beverage sold and transported, or a permit from the Board. Upon the demand of any police officer or duly authorized inspector of the Board, the person in charge of such transportation shall exhibit the bill, memorandum, or permit.”
A sentence of four months’ imprisonment was imposed upon the appellant for violation of this regulation. This sentence has been executed, and the appellant raises no question herein concerning this conviction or the sentence thereunder. The general purpose of the District of Columbia Alcohol Beverage Control Act (hereinafter referred to as the Beverage Control Act) was, as indicated by the title, “To control the manufacture, transportation, possession, and sale of alcoholic beverages in the District of Columbia.” Under Section 4, the Alcohol Beverage Control Board was created, with members to be appointed by the Commissioners of the District of Columbia. By Section 7, the Commissioners were authorized to prescribe such rules and regulations not inconsistent with the Act as they might deem necessary to carry out the purposes thereof and to make rules and regulations for the issuance, transfer, and revocation of licenses, and to facilitate and insure the collection of taxes. By Section 23 it was provided that “There shall be levied and collected by the District of Columbia on all beverages, except beer, manufactured by a holder of a manufacturer’s license and on all beverages, except beer, purchased by the holder of a wholesaler’s or retailer’s license, except such beverages as may have been purchased from a licensee under this Act” certain taxes.
At the outset the act provided:
“That the National Prohibition Act, as amended and supplemented, insofar as it affects the manufacture, sale, and possession in the District of Columbia, and the transportation in, into, and from the District of Columbia, of alcoholic beverages, is hereby repealed, with the exception of title III, and section 4 of title II insofar as it affects denatured alcohol.”
On January 11, 1934, there had been passed, and on the same date approved, effective, however, as to Title 1 on the day following and as to Title 2 thirty days thereafter, the “Liquor Taxing Act of 1934,” 48 Stat. 313. The main purpose of this Act, as indicated by its title, was “To raise revenue by taxing certain intoxicating liquors * * It was a general revenue statute stipulating the amount of tax on various types of intoxicating liquors and containing assessment and collection provisions. Section 201 of Title 2 (26 U.S.C.A. § 1152a) provided in part:
“No person shall * * * transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits.”
By section 207 of Title 2 (26 U.S.C.A. § 1152g) violators:
“shall on conviction be punished by a fine not exceeding $1,000, or by imprisonment at hard labor not exceeding five years, or by both.”
On August 15, 1934, appellant was indicted, under two indictments in the Supreme Court of the District of Columbia charging violation of the Liquor Taxing Act of 1934. The specific nature of the charge does not appear from the record, but it was again agreed by counsel at the bar and stipulated for the record that the offense was the transportation of liquor without having affixed to the container thereof the stamp required by Section 201, and that the transportation and the liquor in question were identical with those concerned in the conviction under the Beverage Control Act as above set forth. Under these two indictments, the appellant was convicted. Under one, he was on January 10, 1935, sentenced to a penitentiary for a period of not less than one nor more than three years, and under the other, on March 14, 1935, for a period of not less than one year nor more than fifteen months, the second sentence to run concurrently with the first. These sentences were imposed, however, not according to the terms of the Liquor Taxing Act of 1934, but under the Act of July IS, 1932, “To establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes,” 47 Stat. 696, as amended by the Act of June S, 1934, 48 Stat. 880. This Act established in the District of Columbia “a board of Indeterminate Sentence and Parole for the penal institutions for said District,” whose duty it shall be: "“to examine into the physical, mental, and moral records of the prisoners committed to the penal institutions of the District; receive reports of wardens and other officials, including the psychiatrist; recommend the treatment which, in their opinion, is most conducive to the prisoners’ reformation; and provide for a system of determining the proper time of release and the rehabilitation of the ex-prisoner in the community.” Section 1. Subject to the approval of the Commissioners of the District -of Columbia, the Board was by the Act authorized to adopt rules and regulations for its procedure and to appoint parole officers. Section 3 provided, so far as here pertinent:
. “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court' imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence * *
The Act further provided:
“Sec. 4. That whenever, within the limitations of section 3 of this Act, it shall appear to the Board of Indeterminate Sentence and Parole, from the reports of the prisoner’s work and conduct which may be received in accordance with the rules and regulations prescribed, and from the study and examination made by the board itself, that any prisoner serving an indeterminate' sentence is fitted by his training for release, that there is a reasonable probability that such a prisoner will live and remain at liberty without violating the law, and in the opiaion of the board such release is not incompatible with the welfare of society, said Board of Indeterminate Sentence and Parole may, in its discretion, authorize the release of such prisoner on parole, and he shall be allowed to go on parole, outside of said prison, and in the discretion of the board to return to his home upon such terms and conditions, including personal reports from said paroled prisoner, as said Board of Indeterminate Sentence and Parole shall prescribe, and to remain, while on parole, in the legal custody and under the control of the superintendent of the institution from which the prisoner may have been paroled, until the expiration of the maximum of the term or terms specified in his sentence, less such good-time allowance as is, or may hereinafter be, provided by law; and the said board shall in every parole fix the limits of the residence of such person paroled, which limits, however, may be thereafter changed in the discretion of the board.
“Sec. 5. If said Board of Indeterminate Sentence and Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the ' retaking of such prisoner. Any officer of the penal institution from which such prisoner shall have been paroled or any Federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning him to said penal institution.
“Sec. 9. Upon the appointment of the members of said board, the powers of the existing parole board [the Federal Parole Board] over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powcrs of said existing parole board under the authority of the Act of Congress approved June 25, 1910, entitled ‘An Act to parole United States prisoners, and for other purposes,’ as amended, over said prisoners confined in the penal institutions of the District of Columbia shall be transferred to and vested in said Board of Indeterminate Sentence and Parole * *
Under the foregoing and by virtue of his assignment of errors, the appellant raises three points: I. That the Liquor Taxing Act of 1934 was repealed by the Beverage Control Act for the District of Columbia; II. That contrary to the Fifth Amendment of the Constitution, he has for the same offense between twice put in jeopardy; III. That his sentences under the Indeterminate Sentence Act are void because (a) that Act is not applicable to offenses against general laws of the United States and (b) if it is, it is unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government.
I. Was the Liquor Taxing Act of 1934 repealed by the Beverage Control Act? The foundation of the appellant’s argument on this point is the language above quoted in the Beverage Control Act, “That the National Prohibition Act, as amended and supplemented * * * is hereby repealed * * Appellant asserts that the Liquor Taxing Act is an amendment of or a supplement to the National Prohibition Act, and is therefore expressly repealed by the Beverage Control Act. This point we think is without merit. The Liquor Taxing Act is not, and indeed does not at all purport to be, either an amendment of or a supplement to the National 'Prohibition Act in any legal sense. It is a revenue law, not a prohibition law. That a law taxing liquor and a prohibition law are different has been recognized by the Supreme Court. United States v. Rizzo, 297 U.S. 530, 56 S.Ct. 580, 80 L.Ed. 844, decided March 9, 1936. Moreover, the Liquor Taxing Act can hardly be regarded as either an amendment of or a supplement to that which had itself at the time of the going into effect of the Liquor Taxing Act lost its constitutional foundation. The Twenty-First Amendment to the Constitution became effective after ratification by three-fourths of the states December 5, 1933; the Liquor Taxing Act, as above pointed out, not until January, 1934.
The Beverage Control Act cannot be said to operate as an implied repeal of the Liquor Taxing Act because, as' appears from the statement of the two acts above, their purposes are different, the one being a revenue measure of a general nature, the other a regulatory statute' with such tax features as apply only within the District of Columbia. “It is * * * necessary to the implication of a repeal that the objects of the two statutes are the same, in the absence of any repealing clause. If they are not, both statutes will stand, though they may refer to the same subject.” United States v. Claflin, 97 U.S. 546, 552, 24 L.Ed. 1082.
II. Has the appellant been twice put in jeopardy? In support of an affirmative answer to this question, the appellant relies on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann. Cas. 640, holding that a soldier in the United States Army, tried for homicide before a general court martial, could not, because of the double jeopardy provision of the Fifth Amendment, be also tried for the crime of assassination under the penal code of the Philippines in a court of the province of Iloilo, the facts underlying the two charges being the same, i. <?., in each instance the defendant was charged with the killing of the same two Filipinos. It was suggested, as against the plea of double jeopardy, that the defendant had committed two distinct offenses, one against military law and discipline, the other against the civil law, and that a trial for either offense .is no bar to a trial for the other. The Supreme Court held to the contrary, resting its decision:
“upon the broad ground that the same acts constituting a crime against the United States cannot, after the acqttittal or conviction of the' accused in a court of competent jurisdiction, be made the basis of a second trial of the accused for that crime in the same or in another court, civil or military, of the same government.” [206 U.S. 333, at page 352, 27 S.Ct. 749, 754, 51 L.Ed. 1084, 11 Ann.Cas. 640.]
This case is not determinative of the question here; it is distinguishable for the reason that identical evidence would have supported a conviction upon either of the charges.
In Gavieres v. United States, 220 U.S. 338, 31 S.Ct. 421, 422, 55 L.Ed. 489, the defendant, who, under a Manila ordinance, had been convicted of behaving in a drunken and boisterous manner in a public place open to public view, was held not to have been put twice in jeopardy by a subsequent trial for outraging and insulting a public official by word of mouth and in his presence contrary to a provision of the penal code of the Philippine Islands penalizing such conduct, the acts and words of the accused being in each case the same. The Court said:
“It is to be observed that the protection intended and specifically given [by the double jeopardy clause of the Fifth Amendment] is against second jeopardy for the same offense. The question, therefore, is, Are the offenses charged, and of which a conviction has been had in the municipal court and in the Court of First Instance, identical. An examination of the ordinance shows that the gist of the offense under it was behaving in an indecent manner in a public place, open to public view. It was not necessary to charge or prove under the municipal ordinance any outrage, insult, or threat to a public official or agent of the authorities. The charge contained in the record shows that under the municipal ordinance the plaintiff in error was charged with wilfully and unlawfully, in a public street car and in the presence of numerous persons, including ladies, conducting himself in a reckless, indecent and discourteous manner.
“It is true that the acts and words of the accused set forth in both charges are the same; but in the second case it was charged, as was essential to conviction, that the misbehavior in deed and words was addressed to a public official. In this view we are of opinion that while the transaction charged is the same in each case, the offenses are different. This was the view taken in Morey v. Commonwealth, 108 Mass. 433, in which the Supreme Judicial Court of Massachusetts, speaking by Judge Gray, held:
“ ‘ A conviction or acquittal upon one indictment is no bar to a subsequent conviction and sentence upon another, unless the evidence required to support a conviction upon one of them would have been sufficient to warrant a conviction upon the other. The test is not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’ ” [220 U.S. 338, at page 341, 342, 31 S.Ct. 421, 422, 55 L.Ed. 489.]
Again, in Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153, the defendant pleaded guilty to an indictment containing two counts, the first of which, under Section 192 of the 'penal code (18 U.S.C.A. § 315), charged the unlawful and forcible breaking into and entering a post office building with the intent to commit larceny, and the second of which charged under Section 190 (18 U.S.C.A. § 313) that the defendant at the same time and place unlawfully and knowingly stole, took and conveyed away money and property of the United States belonging to the post office department. Sentences were imposed under each count. The acts set forth in the second count were performed in the post office under the burglarious entry charged in the first count. It was asserted that the double jeopardy clause forbade confinement after the expiration of imprisonment under the first count. The Supreme Court rejected this point of view, saying:
“this court has settled that the test of identity of offenses is whether the same evidence is required to sustain them; if not, then the fact that both charges relate to and grow out of one transaction does not make a single offense where two are defined by the statutes.” [237 U.S. 632, at page 641, 35 S.Ct 712, 715, 59 L.Ed. 1153.] These cases control the instant situation. The evidence required to support the conviction of the defendant under the Beverage Control Act is different from that required to support a conviction under the Liquor Taxing Act. Under the Beverage Control Act, i. e., under subparagraph (c) of Section 17 of the Liquor Regulations prescribed thereunder, it would be necessary to prove that the defendant transported the liquor in question without having in his possession a bill or memorandum from the seller to the purchaser, and also that the defendant was transporting in excess of 12 quarts of the liquor; but to support a conviction under the Liquor Taxing Act, it would not be necessary to make any showing as to the quantity of liquor, and it would be necessary to prove that there was not affixed to the container of the liquor the required revenue stamp.
III. Are the sentences imposed upon' the appellant under the Indeterminate Sentence Act void? (a) Is that Act applicable to persons convicted in the District of Columbia of offenses defined in the general laws of the United States? Appellant asserts that it is applicable only to persons convicted of crimes defined in the District of Columbia Code. There can be no doubt that Congress intended the Act to be applicable to persons convicted in the District of Columbia of crimes against the general laws of the United States. As set forth above, Section 3 provides:
“That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court imposing such sentence shall * * * ”
impose the same in indeterminate form as further stipulated in the Section. This language is all inclusive, not restrictive. Moreover, if the appellant’s view is taken, those prisoners convicted in the District of Columbia of violating general criminal laws of the United States are left without parole privileges because, as above appears under Section 9 of the Indeterminate Sentence Act, all of the powers of the Federal Parole Board under the authority of the Act of Congress approved June 25, 1910, “over prisoners confined in the penal institutions of the District of Columbia shall cease and determine,” and are “transferred to and vested in” the Board of Indeterminate Sentence and Parole created by the Indeterminate Sentence Act. Even if theo statute were ambiguous, we could hardly hold that Congress intended such a hiatus.
(b) Is the Indeterminate Sentence Act unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government?
The Fifth Amendment: Congress has plenary and exclusive power to legislate for the District of Columbia. Clause 17 of Section 8 of Article 1 of the Constitution extends to Congress the power “to exercise exclusive legislation in all cases whatsoever over” the District of Columbia. The United States Supreme Court has in a number of instances recognized this power of Congress. Wight v. Davidson, 181 U.S. 371, 21 S.Ct. 616, 45 L.Ed. 900; Parsons v. District of Columbia, 170 U.S. 45, 18 S.Ct. 521, 524, 42 L.Ed. 943; Shoemaker v. United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. 170. In Parsons v. District of Columbia, wherein a local assessment statute was held valid, the Court said:
“The legislation in question in the present case is that of the Congress of the United States, and must be considered in the light of the conclusion, so often announced by this court, that the United States possess complete jurisdiction, both of a political and municipal nature, over the District of Columbia.” [170 U.S. 45, at page 52, 18 S.Ct. 521, 42 L.Ed. 943.]
In legislating for the District of Columbia, Congress acts with substantially the powers that a state legislature has in legislating for a state. Congress “has the entire control over the District of Columbia for every purpose of government, national or local. It may exercise within the District all legislative powers that the legislature of a State might exercise within the State * * * so long as it does not contravene any provision of the Constitution of the United States.” Capital Traction Company v. Hof, 174 U.S. 1, 5, 19 S.Ct. 580, 582, 43 L.Ed. 873. See .also District of Columbia v. Kraft, 35 App.D.C. 253, 30 L.R.A.(N.S.) 957. It thus follows that, apart from constitutional limitations later to be mentioned applicable to the legislation itself, it was within the power of Congress to pass the Indeterminate Sentence. Act, although it applies only to offenders against the Liquor Taxing Act who are convicted in the District of Columbia and not to offenders against such Act who are convicted outside of the District of Columbia.
Within its plenary power to legislate for the District of Columbia, Congress is, of course, subject to all-of the constitutional limitations upon the exercise of Federal power, including the Fifth Amendment. This -is recognized in Capital Traction Company v. Hof, and District of Columbia v. Kraft, supra. The Fifth Amendment as applied to the District of Columbia implies equal protection of the laws. Lappin v. District of Columbia, 22 App.D.C. 68. But equal protection of the laws means merely that a law must deal alike with all of a given class within the jurisdiction to which the law is applicable. Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S. 150, 17 S.Ct. 255, 41 L.Ed. 666; Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062; Lappin v. District of Columbia, supra. The Indeterminate Sentence Act does deal alike with all of the class to which, within the District of Columbia, the law applies, to wit, persons convicted of a felony.
The theory of the appellant seems to be that he, as one convicted of a felony in the District of Columbia, is entitled to be sentenced in the same manner as if he had been convicted of the same felony outside of the District of Columbia, that is to say, he points out that had he been convicted outside the District of Columbia of violating the Liquor Taxing Act, he would have received a straight sentence and not an indeterminate sentence. Even if — contrary to what has been said above — this were in the abstract a proper ground of complaint, the appellant in the instant situation has shown no concrete injury. As to the sentences themselves, the two concurrent sentences imposed as a result of the Indeterminate Sentence Act involved a maximum of three years and a minimum of one. What might have been imposed upon the appellant had the Indeterminate Sentence Act not been applicable to him, is a speculative question; but he could, according to the penalty provisions of the Liquor Taxing Act, have been subjected to a fine not exceeding $1,000 or to imprisonment at hard labor not exceeding five years, or to both. See Title 2, § 207 (26 U.S.C.A. § 1152g), supra.
As to the appellant’s parole privileges, under the Indeterminate Sentence Act he is eligible for parole after serving the minimum sentence imposed, in this case one year. Indeterminate Sentence Act, § 3, supra. If sentenced under the Liquor Taxing Act, irrespective of the Indeterminate Sentence Act, the appellant would not have been eligible for parole until he had served one-third of the straight sentence imposed. See Act June 25, 1910, c. 387, § 1, 36 Stat. 819, as amended by Act of January 23, 1913, c. 9, 37 Stat. 650 (18 U.S.C.A. § 714). It is again speculative to say what this might have been. But had it been the maximum of five years, his parole privileges would not have arisen until twenty months had been served. It is suggested by the appellant that with respect to the lesser of the two concurrent sentences, the one for not less than one year nor more than fifteen months, he is prejudiced in his parole privileges compared with those to which he would have been eligible had he received a straight sentence of fifteen months; that is to say, appellant points out that under the sentence of one year to fifteen months, he is eligible for parole only at the expiration of the minimum of the one year, whereas, had he been sentenced under a straight sentence of fifteen months, he would have been eligible at the end of one-third thereof, or five months. This asserted injury is theoretical only. The lesser of the two sentences imposed has, because it is concurrent with the greater, no practical effect except under the contingency of the greater being void, and there is no contention here by the appellant that as between the two sentences the greater is void.
As to the appellant’s good conduct rights, appellant asserts that under his sentences imposed by virtue of the Indeterminate Sentence Act, he will be deprived of good conduct deductions. These arise under the Act of March 3, 1875, c. 145, § 1, 18 Stat. 479, as amended by the Act of March 3, 1891, c. 529, § 8, 26 Stat. 840, as amended by the Act of June 21, 1902, c. 1140, § 1, 32 Stat. 397 (18 U.S.C.A. § 710), and under the Act of May 27, 1930, c. 340, § 8, 46 Stat. 392 (18 U.S.C.A. § 744h). It is not made apparent that anything in the Indeterminate Sentence Act forbids offenders upon whom sentences are imposed in indeterminate form to receive good conduct deductions. It is this Act which is under attack here, not the good conduct statutes. It may be proper to add, however, that it is not made apparent that anything in the good conduct deduction statutes themselves makes them inapplicable to offenders who have been subjected to sentences in indeterminate form.
The Fourth Amendment: Appellant asserts that Section 5, supra, of the Indeterminate Sentence Act, providing for the issuance of warrants by the Parole Board or a member thereof for the retaking of prisoners who have violated parole is unconstitutional as violative of the provision of the Fourth Amendment that “no warrants shall issue but upon probable cause supported by oath or affirmation,” for lack of provision for oath or affirmation of probable cause for the retaking of the prisoner. Appellant is not in a position to raise this point. He has not been paroled and retaken on warrant. “Not a law alone, but a law and its incidence, are necessary to a justiciable right or injury.” Clark v. Kansas City, 176 U.S. 114, 118, 20 S.Ct. 284, 286, 44 L.Ed. 392.
Delegation of judicial power to the executive branch of the Government: Appellant asserts that the powers of the Board of Indeterminate Sentence and Parole are judicial in nature and that no standards have been set up for their exercise. We think this point without merit. It is true that the Parole Board is given wide powers of discretion, but essentially. its function is administrative, not judicial. It has to do with the treatment of prisoners after sentence.
In accordance with the foregoing, the judgment of the trial court discharging the writ of habeás corpus and dismissing the petition upon which the writ had been issued is
Affirmed.
Or later, if on or before twenty days the Secretary of the Treasury proclaimed it impracticable to put the Act into effect on the thirtieth day, and specified a later date.
Section 3 of the Act further read: “Provided, however, That this Act shall not abrogate the power of the justice or judge to sentence a convicted prisoner to the death penalty as now or hereafter may be provided by law: Provided further, That where a justice or a judge of the Supreme Court of the District of Columbia has imposed a life sentence on the prisoner convicted in the District of Columbia, said prisoner serving such sentence shall be eligible to parole as herein provided at any time after having served fifteen years of his life’s sentence.”
Section 9 of the Act further stated: “Provided, however, That'in the case of a prisoner convicted of felony committed prior to the effective date of this Act, and in the case of any prisoner convicted of misdemeanor when the aggregate sentence imposed is in excess of one year, said Board of Indeterminate Sentence and Parole may parole said prisoner, under the provisions of this Act, after said prisoner has served one-fifth of the sentence imposed.”
The provision empowers Congress: “To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States * *
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
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.
CHURCH OF THE LUKUMI BABALU AYE, INC., et al. v. CITY OF HIALEAH
No. 91-948.
Argued November 4, 1992
Decided June 11, 1993
Douglas Laycock argued the cause for petitioners. With him on the briefs were Jeanne Baker, Steven R. Shapiro, and Jorge A. Duarte.
Richard G. Garrett argued the cause for respondent. With him on the brief were Stuart H. Singer and Steven M. Goldsmith.
Briefs of amici curiae urging reversal were filed for Americans United for Separation of Church and State et al. by Edward McGlynn Gaffney, Jr., Steven T. McFarland, Bradley P. Jacob, and Michael W. McConnell; for the Council on Religious Freedom by Lee Boothby, Robert W. Nixon, Walter E. Carson, and Rolland Truman; and for the Rutherford Institute by John W. Whitehead.
Briefs of amici curiae urging affirmance were filed for the International Society for Animal Rights et al. by Henry Mark Holzer; for People for the Ethical Treatment of Animals et al. by Gary L. Francione; and for the Washington Humane Society by E. Edward Bruce.
Briefs of amici curiae were filed for the United States Catholic Conference by Mark E. Chopko and John A Liekweg; for the Humane Society of the United States et al. by Peter Buscemi, Maureen Beyers, Roger A Kindler, and Eugene Underwood, Jr.; for the Institute for Animal Rights Law et al. by Henry Mark Holzer; and for the National Jewish Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps.
Justice Kennedy
delivered the opinion of the Court, except as to Part II-A-2.
The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions. Cf. McDaniel v. Paty, 435 U. S. 618 (1978); Fowler v. Rhode Island, 345 U. S. 67 (1953). Concerned that this fundamental nonperseeution principle of the First Amendment was implicated here, however, we granted certiorari. 503 U. S. 935 (1992).
Our review confirms that the laws in question were enacted by officials who did not understand, failed to perceive, or chose to ignore the fact that their official actions violated the Nation’s essential commitment to religious freedom. The challenged laws had an impermissible object; and in all events the principle of general applicability was violated because the secular ends asserted in defense of the laws were pursued only with respect to conduct motivated by religious beliefs. We invalidate the challenged enactments and reverse the judgment of the Court of Appeals.
I
A
This case involves practices of the Santería religion, which originated in the 19th century. When hundreds of thousands of members of the Yoruba people were brought as slaves from western Africa to Cuba, their traditional African religion absorbed significant elements of Roman Catholicism. The resulting syncretion, or fusion, is Santería, “the way of the saints.” The Cuban Yoruba express their devotion to spirits, called orishas, through the iconography of Catholic saints, Catholic symbols are often present at Santería rites, and Santería devotees attend the Catholic sacraments. 723 F. Supp. 1467, 1469-1470 (SD Fla. 1989); 13 Encyclopedia of Religion 66 (M. Eliade ed. 1987); 1 Encyclopedia of the American Religious Experience 183 (C. Lippy & P. Williams eds. 1988).
The Santería faith teaches that every individual has a destiny from God, a destiny fulfilled with the aid and energy of the orishas. The basis of the Santería religion is the nurture of a personal relation with the orishas, and one of the principal forms of devotion is an animal sacrifice. 13 Encyclopedia of Religion, swpra, at 66. The sacrifice of animals as part of religious rituals has ancient roots. See generally 12 id., at 554-556. Animal sacrifice is mentioned throughout the Old Testament, see 14 Encyclopaedia Judaica 600, 600-605 (1971), and it played an important role in the practice of Judaism before destruction of the second Temple in Jerusalem, see id., at 605-612. In modern Islam, there is an annual sacrifice commemorating Abraham’s sacrifice of a ram in the stead of his son. See C. Glassé, Concise Encyclopedia of Islam 178 (1989); 7 Encyclopedia of Religion, supra, at 456.
According to Santería teaching, the orishas are powerful but not immortal. They depend for survival on the sacrifice. Sacrifices are performed at birth, marriage, and death rites, for the cure of the sick, for the initiation of new members and priests, and during an annual celebration. Animals sacrificed in Santería rituals include chickens, pigeons, doves, ducks, guinea pigs, goats, sheep, and turtles. The animals are killed by the cutting of the carotid arteries in the neck. The sacrificed animal is cooked and eaten, except after healing and death rituals. See 723 F. Supp., at 1471-1472; 13 Encyclopedia of Religion, supra, at 66; M. González-Wippler, The Santería Experience 105 (1982).
Santería adherents faced widespread persecution in Cuba, so the religion and its rituals were practiced in secret. The open practice of Santería and its rites remains infrequent. See 723 F. Supp., at 1470; 13 Encyclopedia of Religion, supra, at 67; M. González-Wippler, Santería: The Religion 3-4 (1989). The religion was brought to this Nation most often by exiles from the Cuban revolution. The District Court estimated that there are at least 50,000 practitioners in South Florida today. See 723 F. Supp., at 1470.
B
Petitioner Church of the Lukumi Babalu Aye, Inc. (Church), is a not-for-profit corporation organized under Florida law in 1973. The Church and its congregants practice the Santería religion. The president of the Church is petitioner Ernesto Pichardo, who is also the Church’s priest and holds the religious title of Italero, the second highest in the Santería faith. In April 1987, the Church leased land in the city of Hialeah, Florida, and announced plans to establish a house of worship as well as a school, cultural center, and museum. Pichardo indicated that the Church’s goal was to bring the practice of the Santería faith, including its ritual of animal sacrifice, into the open. The Church began the process of obtaining utility service and receiving the necessary licensing, inspection, and zoning approvals. Although the Church’s efforts at obtaining the necessary licenses and permits were far from smooth, see 723 F. Supp., at 1477-1478, it appears that it received all needed approvals by early August 1987.
The prospect of a Santería church in their midst was distressing to many members of the Hialeah community, and the announcement of the plans to open a Santería church in Hialeah prompted the city council to hold an emergency public session on June 9, 1987. The resolutions and ordinances passed at that and later meetings are set forth in the Appendix following this opinion.
A summary suffices here, beginning with the enactments passed at the June 9 meeting. First, the city council adopted Resolution 87-66, which noted the “concern” expressed by residents of the city “that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and declared that “[t]he City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.” Next, the council approved an emergency ordinance, Ordinance 87-40, which incorporated in full, except as to penalty, Florida’s animal cruelty laws. Fla. Stat. ch. 828 (1987). Among other things, the incorporated state law subjected to criminal punishment “[w]hoever . . . unnecessarily or cruelly . . . kills any animal.” §828.12.
The city council desired to undertake further legislative action, but Florida law prohibited a municipality from enacting legislation relating to animal cruelty that conflicted with state law. § 828.27(4). To obtain clarification, Hialeah’s city attorney requested an opinion from the attorney general of Florida as to whether §828.12 prohibited “a religious group from sacrificing an animal in a religious ritual or practice” and whether the city could enact ordinances “making religious animal sacrifice unlawful.” The attorney general responded in mid-July. He concluded that the “ritual sacrifice of animals for purposes other than food consumption” was not a “necessary” killing and so was prohibited by §828.12. Fla. Op. Atty. Gen. 87-56, Annual Report of the Atty. Gen. 146, 147, 149 (1988). The attorney general appeared to define “unnecessary” as “done without any useful motive, in a spirit of wanton cruelty or for the mere pleasure of destruction without being in any sense beneficial or useful to the person killing the animal.” Id., at 149, n. 11. He advised that religious animal sacrifice was against state law, so that a city ordinance prohibiting it would not be in conflict. Id., at 151.
The city council responded at first with a hortatory enactment, Resolution 87-90, that noted its residents’ “great concern regarding the possibility of public ritualistic animal sacrifices” and the state-law prohibition. The resolution declared the city policy “to oppose the ritual sacrifices of animals” within Hialeah and announced that any person or organization practicing animal sacrifice “will be prosecuted.”
In September 1987, the city council adopted three substantive ordinances addressing the issue of religious animal sacrifice. Ordinance 87-52 defined “sacrifice” as “to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption,” and prohibited owning or possessing an animal “intending to use such animal for food purposes.” It restricted application of this prohibition, however, to any individual or group that “kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.” The ordinance contained an exemption for slaughtering by “licensed establishment[s]” of animals “specifically raised for food purposes.” Declaring, moreover, that the city council “has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community,” the city council adopted Ordinance 87-71. That ordinance defined “sacrifice” as had Ordinance 87-52, and then provided that “[i]t shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.” The final Ordinance, 87-72, defined “slaughter” as “the killing of animals for food” and prohibited slaughter outside of areas zoned for slaughterhouse use. The ordinance provided an exemption, however, for the slaughter or processing for sale of “small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.” All ordinances and resolutions passed the city council by unanimous vote. Violations of each of the four ordinances were punishable by fines not exceeding $500 or imprisonment not exceeding 60 days, or both.
Following enactment of these ordinances, the Chureh and Pichardo filed this action pursuant to 42 U. S. C. § 1983 in the United States District Court for the Southern District of Florida. Named as defendants were the city of Hialeah and its mayor and members of its city council in their individual capacities. Alleging violations of petitioners’ rights under, inter alia, the Free Exercise Clause, the complaint sought a declaratory judgment and injunctive and monetary relief. The District Court granted summary judgment to the individual defendants, finding that they had absolute immunity for their legislative acts and that the ordinances and resolutions adopted by the council did not constitute an official policy of harassment, as alleged by petitioners. 688 F. Supp. 1522 (SD Fla. 1988).
After a 9-day bench trial on the remaining claims, the District Court ruled for the city, finding no violation of petitioners’ rights under the Free Exercise Clause. 723 F. Supp. 1467 (SD Fla. 1989). (The court rejected as well petitioners’ other claims, which are not at issue here.) Although acknowledging that “the ordinances are not religiously neutral,” id., at 1476, and that the city’s concern about animal sacrifice was “prompted” by the establishment of the Church in the city, id., at 1479, the District Court concluded that the purpose of the ordinances was not to exclude the Church from the city but to end the practice of animal sacrifice, for whatever reason practiced, id., at 1479,1483. The court also found that the ordinances did not target religious conduct “on their face,” though it noted that in any event “specifically regulating [religious] conduct” does not violate the First Amendment “when [the conduct] is deemed inconsistent with public health and welfare.” Id., at 1483-1484. Thus, the court concluded that, at most, the ordinances’ effect on petitioners’ religious conduct was “incidental to [their] secular purpose and effect.” Id., at 1484.
The District Court proceeded to determine whether the governmental interests underlying the ordinances were compelling and, if so, to balance the “governmental and religious, interests.” The court noted that “[t]his ‘balance depends upon the cost to the government of altering its activity to allow the religious practice to continue unimpeded versus the cost to the religious interest imposed by the government activity.’ ” Ibid., quoting Grosz v. City of Miami Beach, 721 F. 2d 729, 734 (CA11 1983), cert. denied, 469 U. S. 827 (1984). The court found four compelling interests. First, the court found that animal sacrifices present a substantial health risk, both to participants and the general public. According to the court, animals that are to be sacrificed are often kept in unsanitary conditions and are uninspected, and animal remains are found in public places. 723 F. Supp., at 1474-1475, 1485. Second, the court found emotional injury to children who witness the sacrifice of animals. Id., at 1475-1476, 1485-1486. Third, the court found compelling the city’s interest in protecting animals from cruel and unnecessary killing. The court determined that the method of killing used in Santería sacrifice was “unreliable and not humane, and that the animals, before being sacrificed, are often kept in conditions that produce a great deal of fear and stress in the animal.” Id., at 1472-1473, 1486. Fourth, the District Court found compelling the city’s interest in restricting the slaughter or sacrifice of animals to areas zoned for slaughterhouse use. Id., at 1486. This legal determination was not accompanied by factual findings.
Balancing the competing governmental and religious interests, the District Court concluded the compelling governmental interests “fully justify the absolute prohibition on ritual sacrifice” accomplished by the ordinances. Id., at 1487. The court also concluded that an exception to the sacrifice prohibition for religious conduct would “‘unduly interfere with fulfillment of the governmental interest’ ” because any more narrow restrictions — e. g., regulation of disposal of animal carcasses — would be unenforceable as a result of the secret nature of the Santería religion. Id., at 1486-1487, and nn. 57-59. A religious exemption from the city’s ordinances, concluded the court, would defeat the city’s compelling interests in enforcing the prohibition. Id., at 1487.
The Court of Appeals for the Eleventh Circuit affirmed in a one-paragraph per curiam opinion. Judgt. order reported at 936 F. 2d 586 (1991). Choosing not to rely on the District Court’s recitation of a compelling interest in promoting the welfare of children, the Court of Appeals stated simply that it concluded the ordinances were consistent with the Constitution. App. to Pet. for Cert. A2. It declined to address the effect of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), decided after the District Court’s opinion, because the District Court “employed an arguably stricter standard” than that applied in Smith. App. to Pet. for Cert. A2, n. 1.
>-H
The Free Exercise Clause of the First Amendment, which has been applied to the States through the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U. S. 296, 303 (1940), provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof____” (Emphasis added.) The city does not argue that Santería is not a “religion” within the meaning of the First Amendment. Nor could it. Although the practice of animal sacrifice may seem abhorrent to some, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 714 (1981). Given the historical association between animal sacrifice and religious worship, see supra, at 524-525, petitioners’ assertion that animal sacrifice is an integral part of their religion “cannot be deemed bizarre or incredible.” Frazee v. Illinois Dept. of Employment Security, 489 U. S. 829, 834, n. 2 (1989). Neither the city nor the courts below, moreover, have questioned the sincerity of petitioners’ professed desire to conduct animal sacrifices for religious reasons. We must consider petitioners’ First Amendment claim.
In addressing the constitutional protection for free exercise of religion, our eases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith, supra. Neutrality and general applicability are interrelated, and, as becomes apparent in this ease, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest. These ordinances fail to satisfy the Smith requirements. We begin by discussing neutrality.
A
In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. See, e. g., Board of Ed. of Westside Community Schools (Dist. 66) v. Mergens, 496 U. S. 226, 248 (1990) (plurality opinion); School Dist. of Grand Rapids v. Ball, 473 U. S. 373, 389 (1985); Wallace v. Jaffree, 472 U. S. 38, 56 (1985); Epperson v. Arkansas, 393 U. S. 97, 106-107 (1968); School Dist. of Abington v. Schempp, 374 U. S. 203, 225 (1963); Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15-16 (1947). These cases, however, for the most part have addressed governmental efforts to benefit religion or particular religions, and so have dealt with a question different, at least in its formulation and emphasis, from the issue here. Petitioners allege an attempt to disfavor their religion because of the religious ceremonies it commands, and the Free Exercise Clause is dispositive in our analysis.
At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. See, e. g., Braunfeld v. Brown, 366 U. S. 599, 607 (1961) (plurality opinion); Fowler v. Rhode Island, 345 U. S., at 69-70. Indeed, it was “historical instances of religious persecution and intolerance that gave concern to those who drafted the Free Exercise Clause.” Bowen v. Roy, 476 U. S. 693, 703 (1986) (opinion of Burger, C. J.). See J. Story, Commentaries on the Constitution of the United States §§ 991-992 (abridged ed. 1833) (reprint 1987); T. Cooley, Constitutional Limitations 467 (1868) (reprint 1972); McGowan v. Maryland, 366 U. S. 420, 464, and n. 2 (1961) (opinion of Frankfurter, J.); Douglas v. Jeannette, 319 U. S. 157, 179 (1943) (Jackson, J., concurring in re-suit); Davis v. Beason, 133 U. S. 333, 342 (1890). These principles, though not often at issue in our Free Exercise Clause eases, have played a role in some. In McDaniel v. Paty, 435 U. S. 618 (1978), for example, we invalidated a state law that disqualified members of the clergy from holding certain public offices, because it “impose[d] special disabilities on the basis of . . . religious status,” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 877. On the same principle, in Fowler v. Rhode Island, supra, we found that a municipal ordinance was applied in an unconstitutional manner when interpreted to prohibit preaching in a public park by a Jehovah’s Witness but to permit preaching during the course of a Catholic mass or Protestant church service. See also Niemotko v. Maryland, 340 U. S. 268, 272-273 (1951). Cf. Larson v. Valente, 456 U. S. 228 (1982) (state statute that treated some religious denominations more favorably than others violated the Establishment Clause).
1
Although a law targeting religious beliefs as such is never permissible, McDaniel v. Paty, supra, at 626 (plurality opinion); Cantwell v. Connecticut, supra, at 303-304, if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, see Employment Div., Dept. of Human Resources of Ore. v. Smith, supra, at 878-879; and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest. There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words “sacrifice” and “ritual,” words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. See Webster’s Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 (“[T]he word sacrifice ultimately became very much a secular term in common usage”). The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices.
We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause “forbids subtle departures from neutrality,” Gillette v. United States, 401 U. S. 437, 452 (1971), and “covert suppression of particular religious beliefs,” Bowen v. Roy, supra, at 703 (opinion of Burger, C. J.). Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality. The Free Exercise Clause protects against governmental hostility which is masked as well as overt. “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.” Walz v. Tax Comn'n of New York City, 397 U. S. 664, 696 (1970) (Harlan, J., concurring).
The record in this case compels the conclusion that suppression of the central element of the Santería worship service was the object of the ordinances. First, though use of the words “sacrifice” and “ritual” does not compel a finding of improper targeting of the Santería religion, the choice of these words is support for our conclusion. There are further respects in which the text of the city council’s enactments discloses the improper attempt to target Santería. Resolution 87-66, adopted June 9, 1987, recited that “residents and eitizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety,” and “reiterate[d]” the city’s commitment to prohibit “any and all [such] acts of any and all religious groups.” No one suggests, and on this record it cannot be maintained, that city officials had in mind a religion other than Santería.
It becomes evident that these ordinances target Santería sacrifice when the ordinances’ operation is considered. Apart from the text, the effect of a law in its real operation is strong evidence of its object. To be sure, adverse impact will not always lead to a finding of impermissible targeting. For example, a social harm may have been a legitimate concern of government for reasons quite apart from discrimination. McGowan v. Maryland, 366 U. S., at 442. See, e. g., Reynolds v. United States, 98 U. S. 145 (1879); Davis v. Beason, 133 U. S. 333 (1890). See also Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L. J. 1205, 1319 (1970). The subject at hand does implicate, of course, multiple concerns unrelated to religious animosity, for example, the suffering or mistreatment visited upon the sacrificed animals and health hazards from improper disposal. But the ordinances when considered together disclose an object remote from these legitimate concerns. The design of these laws accomplishes instead a “religious gerrymander,” Walz v. Tax Comm'n of New York City, supra, at 696 (Harlan, J., concurring), an impermissible attempt to target petitioners and their religious practices.
It is a necessary conclusion that almost the only conduct subject to Ordinances 87-40,87-52, and 87-71 is the religious exercise of Santería church members. The texts show that they were drafted in tandem to achieve this result. We begin with Ordinance 87-71. It prohibits the sacrifice of animals, but defines sacrifice as “to unnecessarily kill... an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.” The definition excludes almost all killings of animals except for religious sacrifice, and the primary purpose requirement narrows the proscribed category even further, in particular by exempting kosher slaughter, see 723 F. Supp., at 1480. We need not discuss whether this differential treatment of two religions is itself an independent constitutional violation. Cf. Larson v. Valente, 456 U. S., at 244-246. It suffices to recite this feature of the law as support for our conclusion that Santería alone was the exclusive legislative concern. The net result of the gerrymander is that few if any killings of animals are prohibited other than Santería sacrifice, which is proscribed because it occurs during a ritual or ceremony and its primary purpose is to make an offering to the oriskas, not food consumption. Indeed, careful drafting ensured that, although Santería sacrifice is prohibited, killings that are no more necessary or humane in almost all other circumstances are unpunished.
Operating in similar fashion is Ordinance 87-52, which prohibits the “possession], sacrifice, or slaughter” of an animal with the “inten[t] to use such animal for food purposes.” This prohibition, extending to the keeping of an animal as well as the killing itself, applies if the animal is killed in “any type of ritual” and there is an intent to use the animal for food, whether or not it is in fact consumed for food. The ordinance exempts, however, “any licensed [food] establishment” with regard to “any animals which are specifically raised for food purposes,” if the activity is permitted by zoning and other laws. This exception, too, seems intended to cover kosher slaughter. Again, the burden of the ordinance, in practical terms, falls on Santería adherents but almost no others: If the killing is — unlike most Santería sacrifices — unaccompanied by the intent to use the animal for food, then it is not prohibited by Ordinance 87-52; if the killing is specifically for food but does not occur during the course of “any type of ritual,” it again falls outside the prohibition; and if the killing is for food and occurs during the course of a ritual, it is still exempted if it occurs in a properly zoned and licensed establishment and involves animals “specifically raised for food purposes.” A pattern of exemptions parallels the pattern of narrow prohibitions. Each contributes to the gerrymander.
Ordinance 87-40 incorporates the Florida animal cruelty statute, Fla. Stat. §828.12 (1987). Its prohibition is broad on its face, punishing “[w]hoever ... unnecessarily . .. kills any animal.” The city claims that this ordinance is the epitome of a neutral prohibition. Brief for Respondent 13-14. The problem, however, is the interpretation given to the ordinance by respondent and the Florida attorney general. Killings for religious reasons are deemed unnecessary, whereas most other killings fall outside the prohibition. The city, on what seems to be a per se basis, deems hunting, slaughter of animals for food, eradication of insects and pests, and euthanasia as necessary. See id., at 22. There is no indication in the record that respondent has concluded that hunting or fishing for sport is unnecessary. Indeed, one of the few reported Florida cases decided under § 828.12 concludes that the use of live rabbits to train greyhounds is not unnecessary. See Kiper v. State, 310 So. 2d 42 (Fla. App.), cert. denied, 328 So. 2d 845 (Fla. 1975). Further, because it requires an evaluation of the particular justification for the killing, this ordinance represents a system of “individualized governmental assessment of the reasons for the relevant conduct,” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 884. As we noted in Smith, in circumstances in which individualized exemptions from a general requirement are available, the government “may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Ibid., quoting Bowen v. Roy, 476 U. S., at 708 (opinion of Burger, C. J.). Respondent’s application of the ordinance’s test of necessity devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons. Thus, religious practice is being singled out for discriminatory treatment. Id., at 722, and n. 17 (Stevens, J., concurring in part and concurring in result); id., at 708 (opinion of Burger, C. J.); United States v. Lee, 455 U. S. 252, 264, n. 3 (1982) (Stevens, J., concurring in judgment).
We also find significant evidence of the ordinances’ improper targeting of Santería sacrifice in the fact that they proscribe more religious conduct than is necessary to achieve their stated ends. It is not unreasonable to infer, at least when there are no persuasive indications to the contrary, that a law which visits “gratuitous restrictions” on religious conduct, McGowan v. Maryland, 366 U. S., at 520 (opinion of Frankfurter, J.), seeks not to effectuate the stated governmental interests, but to suppress the conduct because of its religious motivation.
The legitimate governmental interests in protecting the public health and preventing cruelty to animals could be addressed by restrictions stopping far short of a fiat prohibition of all Santería sacrificial practice. If improper disposal, not the sacrifice itself, is the harm to be prevented, the city could have imposed a general regulation on the disposal of organic garbage. It did not do so. Indeed, counsel for the city conceded at oral argument that, under the ordinances, Santería sacrifices would be illegal even if they occurred in licensed, inspected, and zoned slaughterhouses. Tr. of Oral Arg. 45. See also id., at 42,48. Thus, these broad ordinances prohibit Santería sacrifice even when it does not threaten the city’s interest in the public health. The District Court accepted the argument that narrower regulation would be unenforceable because of the secrecy in the Santería rituals and the lack of any central religious authority to require compliance with secular disposal regulations. See 723 F. Supp., at 1486-1487, and nn. 58-59. It is difficult to understand, however, how a prohibition of the sacrifices themselves, which occur in private, is enforceable if a ban on improper disposal, which occurs in public, is not. The neutrality of a law is suspect if First Amendment freedoms are curtailed to prevent isolated collateral harms not themselves prohibited by direct regulation. See, e. g., Schneider v. State, 308 U. S. 147, 162 (1939).
Under similar analysis, narrower regulation would achieve the city’s interest in preventing cruelty to animals. With regard to the city’s interest in ensuring the adequate care of animals, regulation of conditions and treatment, regardless of why an animal is kept, is the logical response to the city’s concern, not a prohibition on possession for the purpose of sacrifice. The same is true for the city’s interest in prohibiting cruel methods of killing. Under federal and Florida law and Ordinance 87-40, which incorporates Florida law in this regard, killing an animal by the “simultaneous and instantaneous severance of the carotid arteries with a sharp instrument” — the method used in kosher slaughter — is approved as humane. See 7 U. S. C. § 1902(b); Fla. Stat. § 828.23(7)(b) (1991); Ordinance 87-40, § 1. The District Court found that, though Santería sacrifice also results in severance of the carotid arteries, the method used during sacrifice is less reliable and therefore not humane. See 723 F. Supp., at 1472-1473. If the city has a real concern that other methods are less humane, however, the subject of the regulation should be the method of slaughter itself, not a religious classification that is said to bear some general relation to it.
Ordinance 87-72 — unlike the three other ordinances— does appear to apply to substantial nonreligious conduct and not to be overbroad. For our purposes here, however, the four substantive ordinances may be treated as a group for neutrality purposes. Ordinance 87-72 was passed the same day as Ordinance 87-71 and was enacted, as were the three others, in direct response to the opening of the Church. It would be implausible to suggest that the three other ordinances, but not Ordinance 87-72, had as their object the suppression of religion. We need not decide whether Ordinance 87-72 could survive constitutional scrutiny if it existed separately; it must be invalidated because it functions, with the rest of the enactments in question, to suppress Santería religious worship.
2
In determining if the object of a law is a neutral one under the Free Exercise Clause, we can also find guidance in our equal protection cases. As Justice Harlan noted in the related context of the Establishment Clause, “[njeutrality in its application requires an equal protection mode of analysis.” Walz v. Tax Comm’n of New York City, 397 U. S., at 696 (concurring opinion). Here, as in equal protection cases, we may determine the city council’s object from both direct and circumstantial evidence. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Relevant evidence includes, among other things, the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body. Id., at 267-268. These objective factors bear on the question of discriminatory object. Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279, n. 24 (1979).
That the ordinances were enacted “‘because of,’ not merely ‘in spite of,’ ” their suppression of Santería religious practice, id., at 279, is revealed by the events preceding their enactment. Although respondent claimed at oral argument that it had experienced significant problems resulting from the sacrifice of animals within the city before the announced opening of the Church, Tr. of Oral Arg. 27,46, the city council made no attempt to address the supposed problem before its meeting in June 1987, just weeks after the Church announced plans to open. The minutes and taped excerpts of the June 9 session, both of which are in the record, evidence significant hostility exhibited by residents, members of the city council, and other city officials toward the Santería religion and its practice of animal sacrifice. The public crowd that attended the June 9 meetings interrupted statements by council members critical of Santería with cheers and the brief comments of Pichardo with taunts. When Councilman Martinez, a supporter of the ordinances, stated that in prerevolution Cuba “people were put in jail for practicing this religion,” the audience applauded. Taped excerpts of Hialeah City Council Meeting, June 9,1987.
Other statements by members of the city council were in a similar vein. For example, Councilman Martinez, after noting his belief that Santería was outlawed in Cuba, questioned: “[I]f we could not practice this [religion] in our homeland [Cuba], why bring it to this country?” Councilman Cardoso said that Santería devotees at the Church “are in violation of everything this country stands for.” Councilman Mejides indicated that he was “totally against the sacrificing of animals” and distinguished kosher slaughter because it had a “real purpose.” The “Bible says we are allowed to sacrifice an animal for consumption,” he continued, “but for any other purposes, I don’t believe that the Bible allows that.” The president of the city council, Councilman Echevarria, asked: “What can we do to prevent the Church from opening?”
Various Hialeah city officials made comparable comments. The chaplain of the Hialeah Police Department told the city council that Santería was a sin, “foolishness,” “an abomination to the Lord,” and the worship of “demons.” He advised the city council: “We need to be helping people and sharing with them the truth that is found in Jesus Christ.” He concluded: “I would exhort you ... not to permit this Church to exist.” The city attorney commented that Resolution 87-66 indicated: “This community will not tolerate religious practices which are abhorrent to its citizens ...Ibid. Similar comments were made by the deputy city attorney. This history discloses the object of the ordinances to target animal sacrifice by Santería worshippers because of its religious motivation.
3
In sum, the neutrality inquiry leads to one conclusion: The ordinances had as their object the suppression of religion. The pattern we have recited discloses animosity to Santería adherents and their religious practices; the ordinances by their own terms target this religious exercise; the texts of the ordinances were gerrymandered with care to proscribe religious killings of animals but to exclude almost all secular killings; and the ordinances suppress much more religious conduct than is necessary in order to achieve the legitimate ends asserted in their defense. These ordinances are not neutral, and the court below committed clear error in failing to reach this conclusion.
B
We turn next to a second requirement of the Free Exercise Clause, the rule that laws burdening religious practice must be of general applicability. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 879-881. All laws are selective to some extent, but categories of selection are of paramount concern when a law has the incidental effect of burdening religious practice. The Free Exercise Clause “proteet[s] religious observers against unequal treatment,” Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136, 148 (1987) (Stevens, J., concurring in judgment), and inequality results when a legislature decides that the governmental Interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.
The principle that government, in pursuit of legitimate interests, cannot in a selective manner impose burdens only on conduct motivated by religious belief is essential to the protection of the rights guaranteed by the Free Exercise Clause. The principle underlying the general applicability requirement has parallels in our First Amendment jurisprudence. See, e. g., Cohen v. Cowles Media Co., 501 U. S. 663, 669-670 (1991); University of Pennsylvania v. EEOC, 493 U. S. 182, 201 (1990); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U. S. 575, 585 (1983); Larson v. Valente, 456 U. S., at 245-246; Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449 (1969). In this ease we need not define with precision the standard used to evaluate whether a prohibition is of general application, for these ordinances fall well below the minimum standard necessary to protect First Amendment rights.
Respondent claims that Ordinances 87-40, 87-52, and 87-71 advance two interests: protecting the public health and preventing cruelty to animals. The ordinances are under-inclusive for those ends. They fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santería sacrifice does. The underinclusion is substantial, not inconsequential. Despite the city’s proffered interest in preventing cruelty to animals, the ordinances are drafted with care to forbid few killings but those occasioned by religious sacrifice. Many types of animal deaths or kills for nonreligious reasons are either not prohibited or approved by express provision. For example, fishing — which occurs in Hialeah, see A. Khedouri & F. Khedouri, South Florida Inside Out 57 (1991) — is legal. Extermination of mice and rats within a home is also permitted. Florida law incorporated by Ordinance 87-40 sanctions euthanasia of “stray, neglected, abandoned, or unwanted animals,” Fla. Stat. §828.058 (1987); destruction of animals judicially removed from their owners “for humanitarian reasons” or when the animal “is of no commercial value,” §828.073(4)(c)(2); the infliction of pain or suffering “in the interest of medical science,” § 828.02; the placing of poison in one’s yard or enclosure, §828.08; and the use of a live animal “to pursue or take wildlife or to participate in any hunting,” §828.122(6)(b), and “to hunt wild hogs,” §828.122(6)(e).
The city concedes that “neither the State of Florida nor the City has enacted a generally applicable ban on the killing of animals.” Brief for Respondent 21. It asserts, however, that animal sacrifice is “different” from the animal killings that are permitted by law. Ibid. According to the city, it is “self-evident” that killing animals for food is “important”; the eradication of insects and pests is “obviously justified”; and the euthanasia of excess animals “makes sense.” Id., at 22. These ipse dixits do not explain why religion alone must bear the burden of the ordinances, when many of these secular killings fall within the city’s interest in preventing the cruel treatment of animals.
The ordinances are also underinelusive with regard to the city’s interest in public health, which is threatened by the disposal of animal carcasses in open public places and the consumption of uninspected meat, see Brief for Respondent 32, citing 723 F. Supp., at 1474-1475, 1485. Neither interest is pursued by respondent with regard to conduct that is not motivated by religious conviction. The health risks posed by the improper disposal of animal carcasses are the same whether Santería sacrifice or some nonreligious killing preceded it. The city does not, however, prohibit hunters from bringing their kill to their houses, nor does it regulate disposal after their activity. Despite substantial testimony at trial that the same public health hazards result from improper disposal of garbage by restaurants, see 11 Record 566, 590-591, restaurants are outside the scope of the ordinances. Improper disposal is a general problem that causes substantial health risks, 723 F. Supp., at 1485, but which respondent addresses only when it results from religious exercise.
The ordinances are underinclusive as well with regard to the health risk posed by consumption of uninspected meat. Under the city’s ordinances, hunters may eat their kill and fishermen may eat their catch without undergoing governmental inspection. Likewise, state law requires inspection of meat that is sold but exempts meat from animals raised for the use of the owner and “members of his household and nonpaying guests and employees.” Fla. Stat. § 585.88(l)(a) (1991). The asserted interest in inspected meat is not pursued in contexts similar to that of religious animal sacrifice.
Ordinance 87-72, which prohibits the slaughter of animals outside of areas zoned for slaughterhouses, is underinclusive on its face. The ordinance includes an exemption for “any person, group, or organization” that “slaughters or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.” See Fla. Stat. § 828.24(3) (1991). Respondent has not explained why commercial operations that slaughter “small numbers” of hogs and cattle do not implicate its professed desire to prevent cruelty to animals and preserve the public health. Although the city has classified Santería sacrifice as slaughter, subjecting it to this ordinance, it does not regulate other killings for food in like manner.
We conclude, in sum, that each of Hialeah’s ordinances pursues the city’s governmental interests only against conduct motivated by religious belief. The ordinances “ha[ve] every appearance of a prohibition that society is prepared to impose upon [Santería worshippers] but not upon itself.” Florida Star v. B. J. F., 491 U. S. 524, 542 (1989) (Scalia, J,, concurring in part and concurring in judgment). This precise evil is what the requirement of general applicability is designed to prevent.
Ill
A law burdening religious practice that is not neutral or not of general application must undergo the most rigorous of scrutiny. To satisfy the commands of the First Amendment, a law restrictive of religious practice must advance “ ‘interests of the highest order”’ and must be narrowly tailored in pursuit of those interests. McDaniel v. Paty, 435 U. S., at 628, quoting Wisconsin v. Yoder, 406 U. S. 205, 215 (1972). The compelling interest standard that we apply once a law fails to meet the Smith requirements is not “water[ed] . . . down” but “really means what it says.” Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S., at 888. A law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare eases. It follows from what we have already said that these ordinances cannot withstand this scrutiny.
First, even were the governmental interests compelling, the ordinances are not drawn in narrow terms to accomplish those interests. As we have discussed, see supra, at 538-540, 543-546, all four ordinances are overbroad or under-inclusive in substantial respects. The proffered objectives are not pursued with respect to analogous nonreligious conduct, and those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree. The absence of narrow tailoring suffices to establish the invalidity of the ordinances. See Arkansas Writers’ Project, Inc. v. Ragland, 481 U. S. 221, 232 (1987).
Respondent has not demonstrated, moreover, that, in the context of these ordinances, its governmental interests are compelling. Where government restricts only conduct protected by the First Amendment and fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. It is established in our strict scrutiny jurisprudence that “a law cannot be regarded as protecting an interest ‘of the highest order’ . . . when it leaves appreciable damage to that supposedly vital interest unprohibited.” Florida Star v. B. J. F., supra, at 541-542 (Scalia, J., concurring in part and concurring in judgment) (citation omitted). See Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 119-120 (1991). Cf. Florida Star v. B. J. F., supra, at 540-541; Smith v. Daily Mail Publishing Co., 443 U. S. 97, 104-105 (1979); id., at 110 (Rehnquist, J., concurring in judgment). As we show above, see supra, at 543-546, the ordinances are underinelusive to a substantial extent with respect to each of the interests that respondent has asserted, and it is only conduct motivated by religious conviction that bears the weight of the governmental restrictions. There can be no serious claim that those interests justify the ordinances.
IV
The Free Exercise Clause commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures. Those in office must be resolute in resisting importunate demands and must ensure that the sole reasons for imposing the burdens of law and regulation are secular. Legislators may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices. The laws here in question were enacted contrary to these constitutional principles, and they are void.
Reversed.
APPENDIX TO OPINION OP THE COURT
City of Hialeah, Florida, Resolution No. 87-66, adopted June 9,1987, provides:
“WHEREAS, residents and citizens of the City of Hialeah have expressed their concern that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety, and
“WHEREAS, the Florida Constitution, Article I, Declaration of Rights, Section 3, Religious Freedom, specifically states that religious freedom shall not justify practices inconsistent with public morals, peace or ssfsty
“NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“1. The City reiterates its commitment to a prohibition against any and all acts of any and all religious groups which are inconsistent with public morals, peace or safety.”
City of Hialeah, Florida, Ordinance No. 87-40, adopted June 9,1987, provides:
“WHEREAS, the citizens of the City of Hialeah, Florida, have expressed great concern over the potential for animal sacrifices being conducted in the City of Hialeah; and
“WHEREAS, Section 828.27, Florida Statutes, provides that ‘nothing contained in this section shall prevent any county or municipality from enacting any ordinance relating to animal control or cruelty to animals which is identical to the provisions of this Chapter . .. except as to penalty/
“NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“Section 1. The Mayor and City Council of the City of Hialeah, Florida, hereby adopt Florida Statute, Chapter 828 — ‘Cruelty to Animals’ (copy attached hereto and made a part hereof), in its entirety (relating to animal control or cruelty to animals), except as to penalty.
“Section 2. Repeal of Ordinances in Conflict.
“All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.
“Section 3. Penalties.
“Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.
“jSection k- Inclusion in Code.
“The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.
“Section 5. Severability Clause.
“If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judge or decree of a court of competent jurisdiction, such invalidity or uneonstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.
“Section 6. Effective Date.
“This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah.”
City of Hialeah Resolution No. 87-90, adopted August 11, 1987, provides:
“WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regarding the possibility of public ritualistic animal sacrifices in the City of Hialeah, Florida; and
“WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifices is [sic] a violation of the Florida State Statute on Cruelty to Animals; and
“WHEREAS, the Attorney General farther held that the sacrificial killing of animals other than for the primary purpose of food consumption is prohibited under state law; and
“WHEREAS, the City of Hialeah, Florida, has enacted an ordinance mirroring state law prohibiting cruelty to animals.
“NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“Section 1. It is the policy of the Mayor and City Council of the City of Hialeah, Florida, to oppose the ritual sacrifices of animals within the City of Hialeah, FLorida [sic]. Any individual or organization that seeks to practice animal sacrifice in violation of state and local law will be prosecuted.”
City of Hialeah, Florida, Ordinance No. 87-52, adopted September 8, 1987, provides:
“WHEREAS, the residents and citizens of the City of Hialeah, Florida, have expressed great concern regarding the possibility of public ritualistic animal sacrifices within the City of Hialeah, Florida; and
“WHEREAS, the City of Hialeah, Florida, has received an opinion from the Attorney General of the State of Florida, concluding that public ritualistic animal sacrifice, other than for the primary purpose of food consumption, is a violation of state law; and
“WHEREAS, the City of Hialeah, Florida, has enacted an ordinance (Ordinance No. 87-40), mirroring the state law prohibiting cruelty to animals.
‘WHEREAS, the City of Hialeah, Florida, now wishes to specifically prohibit the possession of animals for slaughter or sacrifice within the City, of Hialeah, Florida.
“NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“Section 1. Chapter 6 of the Code of Ordinances of the City of Hialeah, Florida, is hereby amended by adding thereto two (2) new Sections 6-8 ‘Definitions’ and 6-9 ‘Prohibition Against Possession Of Animals For Slaughter Or Sacrifice’, which is to read as follows:
“Section 6-8. Definitions
“1. Animal — any living dumb creature.
“2. Sacrifice — to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.
“3. Slaughter — the killing of animals for food.
“Section 6-9. Prohibition Against Possession of Animals for Slaughter Or Sacrifice.
“1. No person shall own, keep or otherwise possess, sacrifice, or slaughter any sheep, goat, pig, cow or the young of such species, poultry, rabbit, dog, cat, or any other animal, intending to use such animal for food purposes.
“2. This section is applicable to any group or individual that kills, slaughters or sacrifices animals for any type of ritual, regardless of whether or not the flesh or blood of the animal is to be consumed.
“3. Nothing in this ordinance is to be interpreted as prohibiting any licensed establishment from slaughtering for food purposes any animals which are specifically raised for food purposes where such activity is properly zoned and/or permitted under state and local law and under rules promulgated by the Florida Department of Agriculture.
“Section 2. Repeal of Ordinance in Conflict.
“All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.
“Section 3. Penalties.
“Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.
“Section 4- Inclusion in Code.
“The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.
“Section 5. Severability Clause.
“If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgement or decree of a court of competent jurisdiction, such invalidity or unconstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.
“Section 6. Effective Date.
“This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah.”
City of Hialeah, Florida, Ordinance No. 87-71, adopted September 22, 1987, provides:
“WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the sacrificing of animals within the city limits is contrary to the public health, safety, welfare and morals of the community; and
“WHEREAS, the City Council of the City of Hialeah, Florida, desires to have qualified societies or corporations organized under the laws of the State of Florida, to be authorized to investigate and prosecute any violation^) of the ordinance herein after set forth, and for the registration of the agents of said societies.
“NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“Section 1. For the purpose of this ordinance, the word sacrifice shall mean: to unnecessarily kill, torment, torture, or mutilate an animal in a public or private ritual or ceremony not for the primary purpose of food consumption.
“Section 2. For the purpose of this ordinance, the word animal shall mean: any living dumb creature.
“Section S. It shall be unlawful for any person, persons, corporations or associations to sacrifice any animal within the corporate limits of the City of Hialeah, Florida.
“Section A All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the proseetion of any violation of this Ordinance.
“Section 5. Any society or association for the prevention of cruelly to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder.
“Section 6. Repeal of Ordinances in Conflict.
“All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.
“Section 7. Penalties.
“Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.
“Section 8. Inclusion in Code.
“The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.
“Section 9. Severability Clause.
“If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or uneonstitutionality shall not effect any of the remaining phrases, clauses, sentences, paragraphs or sections of this Ordinance.
“Section 10. Effective Date.
“This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah.”
City of Hialeah, Florida, Ordinance No. 87-72, adopted September 22,1987, provides:
“WHEREAS, the City Council of the City of Hialeah, Florida, has determined that the slaughtering of animals on the premises other than those properly zoned as a slaughter house, is contrary to the public health, safety and welfare of the citizens of Hialeah, Florida.
“NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COUNCIL OF THE CITY OF HIALEAH, FLORIDA, that:
“Section 1. For the purpose of this Ordinance, the word slaughter shall mean: the killing of animals for food.
“Section 2. For the purpose of this Ordinance, the word animal shall mean: any living dumb creature.
“Section 3. It shall be unlawful for any person, persons, corporations or associations to slaughter any animal on any premises in the City of Hialeah, Florida, except those properly zoned as a slaughter house, and meeting all the health, safety and sanitation codes prescribed by the City for the operation of a slaughter house.
“Section A All societies or associations for the prevention of cruelty to animals organized under the laws of the State of Florida, seeking to register with the City of Hialeah for purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, shall apply to the City Council for authorization to so register and shall be registered with the Office of the Mayor of the City of Hialeah, Florida, following approval by the City Council at a public hearing in accordance with rules and regulations (i. e., criteria) established by the City Council by resolution, and shall thereafter, be empowered to assist in the proseetion of any violations of this Ordinance.
“Section 5. Any society or association for the prevention of cruelty to animals registered with the Mayor of the City of Hialeah, Florida, in accordance with the provisions of Section 4 hereinabove, may appoint agents for the purposes of investigating and assisting in the prosecution of violations and provisions [sic] of this Ordinance, or any other laws of the City of Hialeah, Florida, for the purpose of protecting animals and preventing any act prohibited hereunder.
“Section 6. This Ordinance shall not apply to any person, group, or organization that slaughters, or processes for sale, small numbers of hogs and/or cattle per week in accordance with an exemption provided by state law.
“Section 7. Repeal of Ordinances in Conflict.
“All ordinances or parts of ordinances in conflict herewith are hereby repealed to the extent of such conflict.
“Section 8. Penalties.
“Any person, firm or corporation convicted of violating the provisions of this ordinance shall be punished by a fine, not exceeding $500.00, or by a jail sentence, not exceeding sixty (60) days, or both, in the discretion of the Court.
“Section 9. Inclusion in Code.
“The provisions of this Ordinance shall be included and incorporated in the Code of the City of Hialeah, as an addition or amendment thereto, and the sections of this Ordinance shall be re-numbered to conform to the uniform numbering system of the Code.
“Section 10. Severability Clause.
“If any phrase, clause, sentence, paragraph or section of this Ordinance shall be declared invalid or unconstitutional by the judgment or decree of a court of competent jurisdiction, such invalidity or uneonstitutionality shall not effeet any of the remaining phrases, clauses, sentences, paragraphs or sections of this ordinance.
“Section 11. Effective Date.
“This Ordinance shall become effective when passed by the City Council of the City of Hialeah and signed by the Mayor of the City of Hialeah.”
The Chief Justice, Justice Scalia, and Justice Thomas join all but Part II-A-2 of this opinion. Justice White joins all but Part II-A of this opinion. Justice Soutek joins only Parts I, III, and IV of this opinion.
Respondent advances the additional governmental interest in prohibiting the slaughter or sacrifice of animals in areas of the city not zoned for slaughterhouses, see Brief for Respondent 28-31, and the District Court found this interest to be compelling, see 723 F. Supp. 1467, 1486 (SD Fla. 1989). This interest cannot justify Ordinances 87-40, 87-52, and 87-71, for they apply to conduct without regard to where it occurs. Ordinance 87-72 does impose a locational restriction, but this asserted governmental interest is a mere restatement of the prohibition itself, not a justification for it. In our discussion, therefore, we put aside this asserted interest.
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_respondent | 003 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
Melene JAMES
v.
CITY OF BOISE, IDAHO, et al.
No. 15-493.
Supreme Court of the United States
Jan. 25, 2016.
John A. Bush, Boise, ID, Richard H. Seamon, Moscow, ID, for Petitioner.
Scott B. Muir, Deputy City Attorney, Boise, ID, for Respondents.
PER CURIAM.
Under federal law, a court has discretion to "allow the prevailing party, other than the United States, a reasonable attorney's fee" in a civil rights lawsuit filed under 42 U.S.C. § 1983. 42 U.S.C. § 1988. In Hughes v. Rowe, 449 U.S. 5, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (per curiam ), this Court interpreted § 1988 to permit a prevailing defendant in such a suit to recover fees only if "the plaintiff's action was frivolous, unreasonable, or without foundation." Id., at 14, 101 S.Ct. 173 (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) (internal quotation marks omitted)).
In the decision below, the Idaho Supreme Court concluded that it was not bound by this Court's interpretation of § 1988 in Hughes . According to that court, "[a]lthough the Supreme Court may have the authority to limit the discretion of lower federal courts, it does not have the authority to limit the discretion of state courts where such limitation is not contained in the statute." 158 Idaho 713, 734, 351 P.3d 1171, 1192 (2015). The court then proceeded to award attorney's fees under § 1988 to a prevailing defendant without first determining that "the plaintiff's action was frivolous, unreasonable, or without foundation." The court's fee award rested solely on its interpretation of federal law; the court explicitly refused to award fees under state law. Id., at 734-735, 351 P.3d, at 1192-1193. We grant certiorari, and now reverse.
Section 1988 is a federal statute. "It is this Court's responsibility to say what a [federal] statute means, and once the Court has spoken, it is the duty of other courts to respect that understanding of the governing rule of law." Nitro-Lift Technologies, L.L.C. v. Howard, 568 U.S. ----, ----, 133 S.Ct. 500, 503, 184 L.Ed.2d 328 (2012) (per curiam ) (quoting Rivers v. Roadway Express, Inc., 511 U.S. 298, 312, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (internal quotation marks omitted)). And for good reason. As Justice Story explained 200 years ago, if state courts were permitted to disregard this Court's rulings on federal law, "the laws, the treaties, and the constitution of the United States would be different in different states, and might, perhaps, never have precisely the same construction, obligation, or efficacy, in any two states. The public mischiefs that would attend such a state of things would be truly deplorable." Martin v. Hunter's Lessee, 1 Wheat. 304, 348, 4 L.Ed. 97 (1816).
The Idaho Supreme Court, like any other state or federal court, is bound by this Court's interpretation of federal law. The state court erred in concluding otherwise. The judgment of the Idaho Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
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_initiate | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Manuel TALAVERA, Plaintiff-Appellant, v. Louie L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Defendant-Appellee.
No. 76-3595
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
March 2, 1977.
Rehearing Denied April 6, 1977.
Anthony J. Golden, Asst. Atty. Gen., West Palm Beach, Fla., Robert L. Shevin, Atty. Gen. of Fla., Tallahassee, Fla., for defendant-appellee.
Before GODBOLD, HILL and FAY, Circuit Judges.
Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I.
PER CURIAM:
On April 14, 1976, Manuel Talavera, a Florida state prisoner, filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Florida. Petitioner was convicted in the Circuit Court of the Seventeenth Judicial Circuit and sentenced to a prison term of 120 years. His convictions were affirmed on direct appeal. Talavera v. State, 314 So.2d 22 (Fla.App.1975). The district court in an exhaustive opinion dismissed the petition. We vacate and remand the case for further proceedings.
Petitioner was convicted in state court of robbery and three (3) counts of false imprisonment. He contends that there was a total lack of competent evidence to sustain his convictions. However, a fingerprint found on the handcuffs used on two of the hostages was identified as that of the petitioner. Several witnesses testified that one of the robbers was wearing a grey suit. A forensic chemist found that the fibers in petitioner’s “cut-off” grey pants matched the fibers in a certain grey suit-jacket which was found in the vicinity where the getaway car was abandoned. Finally, while petitioner presented one Jerry Helms who testified that he and an unnamed accomplice had committed the robbery and not petitioner, Helms spoke with a Southern accent. The hostages testified that neither of the perpetrators had a Southern accent. Moreover, a government rebuttal witness testified that on the day that Helms had initially confessed to the crime, he had seen Helms and petitioner conversing for 30 to 45 minutes.
Matters concerning the sufficiency of the evidence are not cognizable on federal habeas corpus unless the record indicates that a state prisoner was denied due process of law. Colbroth v. Wainwright, 466 F.2d 1193, 1194 (5th Cir. 1972). However, the issue of the sufficiency of the evidence does not present a due process question where there is conflicting testimony supporting a state conviction. Jenkins v. Wainwright, 488 F.2d 136, 137 (5th Cir. 1973), cert. denied, 417 U.S. 917, 94 S.Ct. 2620, 41 L.Ed.2d 222 (1974). Since there is some evidence in this case against petitioner, there is no sufficiency of the evidence problem rising to constitutional proportions for habeas corpus relief. Dreske v. Holt, 536 F.2d 105 (5th Cir. 1976); Jackson v. State of Alabama, 534 F.2d 1136 (5th Cir. 1976).
Petitioner next challenges a search of his rental automobile as violative of his Fourth Amendment rights. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) the United States Supreme Court held “that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.” Id. at 482, 96 S.Ct. at 3046. This decision of the Supreme Court was rendered subsequent to the time that the district court in the instant case considered the merits of petitioner’s claim. This case presents the question of the proper disposition of Fourth Amendment claims on the appellate level in light of this Supreme Court decision.
This court appears to have embarked upon two courses of conduct. In some cases we have undertaken on appeal to review the record to determine whether the state has provided an opportunity for full and fair litigation of the Fourth Amendment claim. See e. g. Stinson v. State of Alabama, 545 F.2d 485 (5th Cir. 1977); Flood v. State of Louisiana, 545 F.2d 460 (5th Cir. 1977); George v. Blackwell, 537 F.2d 833 (5th Cir. 1976). In other cases we have vacated the decision of the district court and remanded so that the trial court might determine this issue in the first instance. See e. g. White v. State of Alabama, 541 F.2d 1092 (5th Cir. 1976); Caver v. State of Alabama, 537 F.2d 1333 (5th Cir. 1976). The differing courses of action appear to depend upon the circumstances and state of the record in each case.
Thus, in the first line of cases the record appears to have been sufficiently clear so as to make the issue as to whether or not the state court had provided an opportunity for full and fair litigation of Fourth Amendment claims certain beyond peradventure. A remand under these circumstances would be a futile gesture and expensive in terms of judicial economy. In the second line of cases the record appears not to have been so clear. Under these circumstances, the appropriate appellate response is to remand the case to the district court in order to allow the parties “a chance to be heard upon the legal standard announced in Stone v. Powell.” Caver v. State of Alabama, supra at 1336.
In the case sub judice the district court apparently based its conclusions with regard to the petitioner’s Fourth Amendment claim upon a review of the trial transcript. However, there were two preliminary hearings which focused on the Fourth Amendment issue that were not before the district court. In addition, of course, petitioner did not address himself to the sufficiency of the state court proceedings in his habeas' petition. Under these circumstances we conclude that the case should be remanded so that the parties might address the question of opportunity for full and fair litigation of the Fourth Amendment claim before the district court, and that court may be afforded the opportunity of determining that question.
VACATED AND REMANDED.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer: |
songer_counsel2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
UNITED STATES of America, Appellant, v. Lucy Thomas POWELL, Nellie Louise Powell and Elmer E. Fox, as Co-Executors under the will and of the Estate of Leonidas Hudson Powell, deceased, Appellees.
No. 6920.
United States Court of Appeals Tenth Circuit.
July 13, 1962.
William Jay Howard, Atty., Dept. of Justice, (Louis F. Oberdorfer, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson and I. Henry Kutz, Attys., Dept. of Justice, Newell A. George, U. S. Atty., and Robert M. Green, Asst. U. S. Atty., were with him on the brief) for the United States of America.
John F. Eberhardt, Wichita, Kan. (George B. Powers, Carl T. Smith, Stuart R. Carter, Robert C. Foulston, Malcolm Miller, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatzky, Wichita, Kan., were with him on the brief) for appellees.
Before PHILLIPS, PICKETT and LEWIS, Circuit Judges.
PHILLIPS, Circuit Judge.
Lucy Thomas Powell, Nellie Louise Powell and Elmer E. Fox, coexecutors of the estate of Leonidas Hudson Powell, deceased, brought this action against the United States to recover federal estate taxes paid by them on the Powell estate. The action was tried to the court without a jury and judgment was entered in favor of the taxpayers in the sum of $55,-762.46. The United States has appealed.
On June 4, 1932, Leonidas Hudson Powell created an irrevocable living trust. The trust instrument designated Powell and the Fourth National Bank in Wichita as cotrustees. Under it, Powell’s wife is the life tenant and his two daughters are the remaindermen. The income of the trust is payable to the wife at her request, but if not so requested, it is added to the principal. On the death of the wife, the residue of the trust is to be divided into equal shares for the benefit of the two daughters, or their surviving issue, per stirpes. Upon reaching the ages of 37, 47, 52, 57 and 62, each daughter is to receive a one-fifth portion of her share of the trust corpus. The trust also makes provision for alternative dispositions in the event of the death of the daughters without issue prior to final distribution.
Powell died on May 16, 1954. An estate tax return was filed which did not include the assets of the trust in the gross estate. The Commissioner of Internal Revenue assessed a deficiency predicated upon the inclusion of such trust assets in the gross estate, which was paid under protest by the taxpayers. A claim for refund was duly filed, which was disallowed by the Commissioner. The instant action was then commenced.
The trust instrument provides, in part, as follows:
“Second: * * *
“During the lifetime of the grantor and while he is acting as a Joint-Trustee hereunder the said Trustees are expressly authorized and empowered to sell, contract for sale, mortgage, pledge, hypothecate, or otherwise deal with the assets comprising this trust estate, and to invest, or re-invest the said trust property or any part thereof in such securities or other property, real or personal, as in the discretion of said Trustee-may be deemed most advisable for the benefit of the trust estate herein-created, including the right to purchase life insurance, annuity contracts or income bearing contracts, issued by legal reserve life insurance companies authorized to do-business in the State of Kansas.
“Upon the death of the grantor or upon his incapacity to act, or resignation as Joint-Trustee hereunder, thereafter the Trustees shall invest or re-invest only in high grade municipal, Government, or other bonds, or any loans secured by first mortgages on farm lands or improved’ City real estate located in a productive part of the country, such mortgage loans not to exceed forty per cent (40%) of the fair market value of such real estate as in the discretion of the Trustees shall be deemed' most advisable in order to assure a reasonably safe investment, and to produce satisfactory income, the protection of the principal however to be more important than securing: higher rate of income.
# * , •* * * *
“The Trustees of this estate shall not be held responsible for any loss resulting to this trust estate by reason of retaining any previous investments made by the said Trustees while the grantor is acting as one of the Trustees hereunder.
“Fifth: If, at any time during the continuance of this trust, it is necessary or advisable to use some portion of the principal for the maintenance, luelfare, comfort or happiness of the •Grantor’s wife, * * * or Grant- or’s daughters, * * * or for the education of Grantor’s said daughters, the Trustee is hereby authorized and empowered to use so much of the principal as in the discretion of the Trustee is necessary or advisable to be used to meet such conditions, and provided that the Trustee shall deem that the purpose for which the payments are to be made, justifies the reduction in the principal of the trust properties. * * * ” (Emphasis added.)
The trust instrument contained no exculpatory clause, other than that quoted above.
At the time of the creation of the trust, June 4, 1932, the corpus had a value of approximately $60,000. Mr. Powell’s income for each of the years of 1931 and 1932, before taxes, was approximately $100,000 and his net worth in 1932 was-$502,628. Mrs. Powell’s net worth in 1932 was $59,452. In the period between the creation of the trust and Powell’s death, Mrs. Powell withdrew $32,000 of trust income and left the balance of such income in the trust. At the death of Powell, the accumulated and reinvested trust income totalled approximately $210,000 and the value of the trust corpus was approximately $170,000. From time to time during his life Powell made gifts to his wife and daughters from his personal assets, totalling over .$200,000.
The taxpayers called five witnesses, who testified that during his life Powell was an extremely conservative, frugal and thrifty person. In 1940 Powell hired his son-in-law to work in his grain elevator business at a salary of $100 per month. At this time such son-in-law had no outside income and was required to support his family on this amount. Such salary had been raised to $400 per month when the son-in-law left the business in 1945 or 1946.
Powell was 63 years old when he created the trust. He actively engaged in the grain elevator business until 1944, at which time he sold his business and retired. Until a few years before his death, he remained vigorous and actively managed his investments.
In its findings of fact the court, in part, found:
“10. * * * in all of his business, personal, and family affairs Mr. Powell was an extremely conservative, frugal and thrifty person to whom the thought of making distributions to his wife or daughters from the corpus of the June 4, 1932, living trust for the purpose of administering to their subjective pleasures or ‘happiness’ — as distinguished from distributions necessary to maintain them according to the conservative standard of living to which they had been accustomed — would have been repugnant. * * *
“11. * * * that * * * paragraph Fifth of the * * * living trust was intended by the settlor, * * *, to mean only that distributions might be made to his wife and two daughters from the corpus of the trust if, but only if, such use of the corpus were required to maintain them in the conservative mode of living to which they had been accustomed during his lifetime, and that as used by Mr. Powell the word ‘happiness’ in the phrase ‘maintenance, welfare, comfort or happiness’ was intended to and must be equated with basic maintenance and welfare, not with ‘pleasure’ or subjective ‘delight.’ ”
Section 811 of the Internal Revenue Code of 1939, 26 U.S.C.A. § 811, in part provides:
Ҥ 811. Gross estate
“The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated, * * *.
******
“(d) Revocable transfers
******
“(2) Transfers on or prior to June 22, 1936. To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, where the enjoyment thereof was subject at the date of his death to any change through the exercise of a power, either by the decedent alone or in conjunction with any person, to alter, amend, or revoke, * *
The court concluded that the investment powers and the power to invade the corpus did not reserve to the settlor power to “alter, amend, revoke, or terminate” the trust within the meaning of § 811(d) (2) of the Internal Revenue Code of 1939 and that the deficiency was improperly determined.
The contentions of counsel for the United States are:
1. The decedent’s power to invest in life insurance or annuities constituted power to alter or amend the corpus of the trust, within the meaning of § 811(d) (2);
2. The decedent’s power to invade the trust corpus for the benefit of his family’s “happiness” constituted a power to alter and amend the trust, within the meaning of § 811(d) (2); and
3. The powers retained, if not sufficiently broad individually, were sufficiently extensive cumulatively to require inclusion of the trust corpus in the gross estate.
I
The Investment Powers
It will be observed that the trustees were to exercise their power of investment, including the power to purchase life insurance, annuity contracts, or income bearing contracts in a manner deemed by them in the exercise of their discretion to be for the benefit of the trust estate. It will be further observed that the trust instrument gave the set-tlor no direct power to alter or amend the corpus of the trust or the trust instrument, itself, and if it did give the settlor power to affect beneficial interests, it did so indirectly, as a secondary consequence of the exercise of administrative investment powers. It should be noted, also, that there were no provisions in the trust instrument manifesting an intent to give the trustees broad powers of investment without limitation or restraint, to exculpate them from improper exercise of those powers, to authorize them to act individually, rather than as fiduciaries, in the exercise of such powers, or to prevent a court of equity from reviewing their exercise of such powers and correcting any abuses of discretion.
The trust instrument was executed and was to be carried out in the State of Kansas, for the benefit of persons who were citizens and residents of that state. It was governed, therefore, by Kansas law.
It is well settled, under the law of Kansas, that a court of equity has power to review the exercise of discretionary powers conferred upon trustees and to correct any abuse in the exercise of such discretion. The Supreme Court of Kansas so held in Keeler v. Lauer, 73 Kan. 388, 85 P. 541, 543, with respect to a trust instrument which gave large discretionary powers to the trustee. It reiterated that doctrine in In re Porter’s Estate, 164 Kan. 92, 187 P.2d 520, 525, in which the court said: “Notwithstanding the powers and discretion given to the trustee he is subject to the direction and control of a court of equity, which will have full power to prevent mismanagement of the estate and to correct any abuses of the trust.” Counsel for the United States assert that the investment power, with respect to life insurance, annuities and income bearing contracts, authorized the trustees to invest the corpus so as to deprive the life tenant, the wife, of all income and of all benefits of the trust and, conversely, to invest the corpus in annuities for the term of the wife’s life and thereby deprive the re-maindermen, the daughters, of all benefits of the trust.
In our opinion, the instrument gave the trustees no such unbridled discretionary power or authority. It is well settled that where there are two or more beneficiaries of a trust, it is the duty of the trustee to administer the trust impartially, as between the beneficiaries, and where a trustee under a trust is directed to pay the income to a beneficiary during his life and on his death to pay the income from the trust or the corpus to another beneficiary, it is the duty of the trustee so to administer the trust as to preserve a fair balance between them.
Accordingly, it was the duty of the trustees in the exercise of their discretion to invest the corpus for the benefit of the trust estate and in such a manner as to preserve a fair balance between the life tenant and the remainder beneficiaries. That constituted an ascertainable, external and judicially established standard, enforceable by courts of equity in the exercise of their powers to review the action of trustees in administering trusts. We have no doubt that the courts of Kansas, in the event the trustees under the instant trust so exercised their investment powers partially as between the life tenant and the remainder beneficiaries and so as not to preserve a fair balance between them, would hold that the trustees had abused their discretion and were subject to judicial review and control.
Counsel for the United States rely heavily on State Street Trust Company v. United States, 1 Cir., 263 F.2d 635. That case was predicated upon § 811(c) (1) (B) of the Internal Revenue Code of 1939. It involved three spendthrift trusts, established in 1925. The trusts gave to the trustees these extraordinarily broad powers:
“ * * * to retain and invest and reinvest in securities or properties although of a kind or in an amount which ordinarily would not be considered suitable for a trust investment, including, but without restriction, investments that yield a high rate of income or no income at all and wasting investments, intending hereby to authorize the Trustees to act in such manner as it is believed by them to be for the best interests of the Trust Fund, regarding it as a whole, even though particular investments might not otherwise be proper; * * * to determine what shall be charged or credited to income and what to principal notwithstanding any determination by the courts and specifically, but without limitation, to make such determination in regard to stock and cash dividends, rights, and all other receipts in respect of the ownership of stock and to decide whether or not to make deductions from income for depreciation, amortization or waste and in what amount; * * * and generally to do all things in relation to the Trust Fund which I, the Donor, could do if living and the Trust had not been executed.”
Each contained the following exculpatory clause:
“All such acts and decisions made by the Trustees in good faith shall be conclusive on all parties at interest and my Trustees shall be liable only for their own wilful acts or defaults, but in no case for acts in error of judgment.”
In holding that the trust came within the provisions of § 811(c), the court said:
“Perhaps no single power conferred by the decedent on the trustees would be enough to warrant inclusion of the corpora of the trusts in his estate. But we believe that the powers conferred on the trustees, considered as a whole, are so broad and all inclusive that within any limits a Massachusetts court of equity could rationally impose, the trustees, within the scope of their discretionary powers, could very substantially shift the economic benefits of the trusts between the life tenants and the remaindermen. We therefore conclude that under the trusts the decedent as long as he lived, in substance and effect and in a very real sense, * * * ‘retained for his life * * * the right * * to designate the persons who shall possess or enjoy the property or the income therefrom; * * * ’ ”
The case, in our opinion, is clearly distinguishable on the facts. In that case, the First Circuit held that the powers of the trustees were so broad and all inclusive that they were not within any limitation the Massachusetts court of equity could rationally impose.
In contrast with the broad powers given the trustees in the State Street Trust case, it should be noted that the trust instrument in the instant case did not give the trustees any power to exchange trust property for other property, to invest and reinvest “without restriction” in speculative securities yielding a high rate of income, in “no income” producing securities, or in wasting assets, or to allocate receipts, including stock dividends and stock rights, as between principal and income, nor “generally to do all things in relation to the Trust Fund,” which the settlor “could do if living and the Trust had not been executed,” and in the instant case, the trust instrument did not, as in the State Street Trust case, undertake to exculpate the trustees from liability, other than for wilful acts or defaults.
We conclude the investment power given to the trustees by the trust instrument was subject to and limited by a judicially established and judicially enforceable external and ascertainable-standard and, hence, was no more than-a management or administrative power, and that in exercising it the settlor acted in a fiduciary capacity, as trustee, and not individually.
It follows that the granting of the investment power did not give the settlor power to alter and amend the corpus of the trust, within the meaning of § 811 (d) (2), supra.
II
The Power to Invade the Corpus
The trust instrument gave the trustees power to invade the corpus, if they deemed it necessary or advisable to provide for “the maintenance, welfare, comfort or happiness of the Grantor’s wife, * * * or Grantor’s daughters, * There is nothing in the context in which the term “happiness” is found, or in the instrument as a whole, that indicates an intent that it should be given a broader connotation than its usual and ordinary meaning. Rather, the contrary is indicated by the qualifying language that resort to principal should not be made, unless the need “justifies the reduction in the” corpus.
The usual and ordinary meaning of “happiness” is “a state of well-being characterized by relative permanence.” Webster’s New International Dictionary, Second Ed., Unabridged, p. 1136. It is synonymous with “comfort” or “welfare.” Macmillan’s Modern Dictionary, Rev.Ed.1944; Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900. It is “That more permanent enjoyment of life which attends on, and is almost identical with, welfare.” 39 C.J.S. Happiness p. 773. Webster’s New Collegiate Dictionary, 11th Ed., 1959, p. 375, defines “happy” as “enjoying well-being, peace, and comfort.”
Webster’s New International Dictionary, Second Ed., Unabridged, p. 2900, defines “welfare” as “state or condition in regard to well-being; esp., condition of health, happiness, prosperity, or the like.” In its ordinary sense “happiness” has the characteristic of permanence or endurance, as distinguished from pleasure, which is transitory. Funk & Wag-nail’s Synonyms, Antonyms and Prepositions, Rev.Ed.1947, delineates the objective qualities of “happiness,” as contrasted with “pleasure,” as follows:
“Happiness is * * * more serene and rational than pleasure; pleasure is of necessity transient; happiness is abiding; thus, we speak of pleasures, but the plural of happiness is scarcely used. Happiness, in the full sense, is mental or spiritual or both, and is viewed as resulting from some worthy gratification or satisfaction; we can speak of vicious pleasure or delight, but not of vicious happiness * *
There are many adjudicated cases holding that the terms “happiness,” “welfare,” and “comfort” are synonymous.
It is true that the United States Supreme Court in Merchants Nat. Bank of Boston v. Commissioner, 320 U.S. 256, 64 S.Ct. 108, 88 L.Ed. 35, construed the word “happiness,” as used in the trust there involved, as having a broader meaning than “welfare” and “comfort.” In that case the will authorized the trustee to invade the corpus:
“ * * * at such time or times as my said Trustee shall in its sole discretion deem wise and proper for the comfort, support, maintenance, and/ or happiness of my said wife, and it is my wish and will that in the exercise of its discretion with reference to such payments from the principal of the trust fund to my said wife, * * * my said Trustee shall exercise its discretion with liberality to my said wife, and consider her welfare, comfort and happiness prior to claims of residuary beneficiaries under this trust.”
It is clear, we think, that the court accorded such broader connotation to the word “happiness,” because of the context in which it was found and, particularly, the instructions to the trustee to exercise its discretion with liberality to the wife and to consider her welfare, comfort and happiness prior to the claims of the residuary beneficiaries.
In the opinion the court said:
“ * * * Introducing the element of the widow’s happiness and instructing the trustee to exercise its discretion with liberality to make her wishes prior to the claims of residuary beneficiaries brought into the calculation elements of speculation too large to be overcome, * * *>>
Here, the trust instrument not only did not provide that the power to invade the corpus should be exercised with liberality and to gratify the wishes of the beneficiaries, but, on the contrary, indicated that the power should be exercised with restraint and only when the purpose justified a reduction of the corpus. Of course, the exercise of discretion to invade the corpus with liberality and in accordance with the wishes of a beneficiary is not a power restricted by a fixed standard. Likewise, Henslee v. Union Planters Bank, 335 U.S. 595, 69 S.Ct. 290, 93 L.Ed. 259, is distinguishable from the instant case. There, the will authorized and empowered the trustees to invade or wholly utilize the corpus for the life tenant’s (the mother of the decedent) “pleasure, comfort and welfare” and stated that “The first object to be accomplished * * * is to take care of and provide for my mother in such manner as she may desire” and directed the trustees to manage the estate “primarily for this purpose.”
We are of the opinion that the word “happiness,” in the sense it is used in the trust instrument, is synonymous with “welfare” and “comfort.”
It is well settled that the words “welfare” and “comfort” provide an ascertainable and judicially enforceable external standard.
We conclude that the provisions in the trust instrument giving the trustees power to use the corpus “for the maintenance, welfare, comfort or happiness” of the beneficiaries and for the “education” of the daughters, the remaindermen, “provided * * * the purpose for which the payments are to be made, justifies the reduction in” the corpus, established an ascertainable, external and judicially enforceable standard and that the trustees, in exercising such power, were limited by such standard and the supervision and control of the courts of Kansas in the exercise of their equity powers.
Hence, the authority given the trustees to invade the corpus did not give to the settlor power to alter or amend the trust, within the meaning of § 811(d) (2).
Ill
The Cumulative Effect of Such Powers
In view of the conclusion we have reached, with respect to the investment power and the power to invade the corpus, it is our opinion that their combined or cumulative effect would not bring the trust within § 811(d) (2). Here, the whole is no greater than the sum of its parts.
The judgment is affirmed.
. See Scott on Trusts, 2nd Ed., Vol. II, § 183; Redfield v. Critchley, 252 App.Div. 568, 300 N.Y.S. 305, 310, affirmed, 277 N.Y. 366, 14 N.E.2d 377; Restatement of the Law of Trusts, § 183.
. Pennsylvania Co., Etc. v. Gillmore, 137 N.J.Eq. 51, 43 A.2d 667, 670, 671; Security Trust Co. v. Mahoney, 307 Ky. 661, 212 S.W.2d 115, 119; In re Simpson’s Will, Sur., 33 N.Y.S.2d 614, 616; Restatement of the Law of Trusts, § 232; Scott on Trusts, 2nd Ed., Vol. III, § 232, p. 1744.
. Cf. Estate of Willard P. King, 37 T.C. 973 (decided February 21, 1962).
. National Surety Co. v. Jarrett, 95 W.Va. 420, 121 S.E. 291, 295, 36 A.L.R. 1171; Combs v. Carey’s Trustee, Ky., 287 S.W.2d 443; Industrial Trust Co. v. Commissioner of Int. Rev., 1 Cir., 151 F.2d 592, 594, 169 A.L.R. 144, c. d. 327 U.S. 788, 63 S.Ct. 807, 90 L.Ed. 1014; Estate of Albert E. Nettleton, 4 T.C. 987, 993; Gannert v. Rupert, 2 Cir., 127 F. 962, 963; Wiseman v. Tanner, D.C.Wash., 221 F. 694, 698, reversed on other grounds, 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336; In re Buell’s Estate, 198 Misc. 358, 66 N.Y.S.2d 180, 185; English v. English, 32 N.J.Eq. 738, 750, 751; 39 C.J.S. Happiness p. 773.
. The interpretation we have placed on the opinion in the Merchants Bank case finds support in the following adjudicated cases:
Commissioner of Int. Rev. v. Wells Fargo B. & U. Tr. Co., 9 Cir., 145 F.2d 130, 132; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 592; Lincoln Rochester Tr. Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425; Lincoln Rochester Trust Company v. McGowan, 2 Cir., 217 F.2d 287, 291.
. In the following cases the quoted language was held to provide an ascertainable, external and judicially enforceable standard:
Ithaca Trust Co. v. United States, 279 U.S. 151, 154, 49 S.Ct. 291, 73 L.Ed. 647, “from the principal any sum ‘that may be necessary to suitably maintain her in as much comfort as she now enjoys’”; Hartford-Connecticut Trust Co. v. Eaton, 2 Cir., 36 E.2d 710, “to pay over to * * * my said wife (the life tenant) any part of the principal * * * which it (the trustee) may deem necessary or advisable for her comfortable maintenance and support”; Berry v. Kuhl, 7 Cir., 174 F.2d 565, 566, payment from principal to life tenant for “treatment, support or maintenance”; Lincoln Rochester Trust Co. v. Commissioner of Int. R., 2 Cir., 181 F.2d 424, 425, 427, to advance to the life tenant “such sums of principal as may be necessary for her proper care, support and maintenance”; Blodget v. Delaney, 1 Cir., 201 F.2d 589, 591, to pay to the life tenant “from the principal any amount in their discretion for her comfort and welfare”; Jennings v. Smith, 2 Cir., 161 F.2d 74, 75, 76, to use net income “to enable the beneficiary * * * to maintain himself and his family * * * in comfort and in accordance with the station in life to which he belongs”; Blunt v. Kelly, 3 Cir., 131 F.2d 632, to use such portion of the principal as the trustees may deem proper “for the support, care or benefit of” the settlor; Estate of Walter E. Frew, 8 T.C. 1240, 1241, 1244, 1245, power of the trustees “in their sole discretion, if at any time * * * the net income payable to any beneficiary shall, in their opinion, be insufficient for the proper maintenance and support of said beneficiary, apply to such purposes so much of the respective part of the principal from which said income is derived as they may deem proper”; Estate of Horace G. Wetherill, 4 T.C. 678, 679, 681-684, invasion of corpus for “care, maintenance and support” of life tenant, Petition to Review dismissed 150 F.2d 1019; Estate of Lucius H. Elmer, 6 T.C. 944, invasion of corpus for “comfortable support” of life tenant.
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_circuit | D | What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
F. W. POE MFG. CO. v. NATIONAL LABOR RELATIONS BOARD.
No. 4735.
Circuit Court of Appeals, Fourth Circuit.
April 7, 1941.
James H. Price, of Greenville, S. C. (James D. Poag and James H. Price, Jr., both of Greenville, S. C., on the brief) for petitioner.
Mortimer Kollender, Asst. Gen. Counsel, National Labor Relations Board, of Washington, D. C. (Robert B. Watts, Gen. Counsel, Laurence A. Knapp, Associate Gen. Counsel, Ernest A. Gross, Asst. Gen. Counsel, Owsley Vose, and Frank Donner, National Labor Relations Board, all of Washington, D. C., on the brief), for respondent.
Before PARKER, SOPER, and DOBIE, Circuit Judges.
SOPER, Circuit Judge.
F. W. Poe Manufacturing Company, a South Carolina corporation, petitions the court to review and set aside an order of reinstatement issued by the National Labor Relations Board, and based on the finding that, in violation of the National Labor Relations Act, 29 U.S.C.A. § 151 et seq., the corporation had wrongfully refused to reinstate one Coley L. Smith to his former position in its employ.
Originally, the complaint was formulated by the Board upon charges filed by the Textile Workers Union of America, and alleged, amongst other unfair labor practices, that the corporation, in violation of §.8(1) and. (3) of the Act, had discharged Smith on June 12, 1939, because of his membership in and activities on behalf of the Union. After a hearing, the trial examiner recommended a dismissal of the complaint in its entirety. Thereupon, the Union filed amended charges and the Board amended its complaint by adding the allegation that, in violation of § 8(1), (3) .and (4) of the Act, the corporation, on and alter October 1, 1939, refused to reinstate Smith as an employee because he had filed charges against it.
When the case came before the Board, the following findings were made with reference to the charges originally filed: “We find that the allegations of the complaint that the respondent has advised its employees to withdraw from or refuse to join the Union; threatened them with layoff, discharge, or disciplinary action if they were active in its behalf; promised them better jobs if they withdrew therefrom; informed Union members that it disliked their attitude because of their activities; and advised employees that the Union would not benefit them, are not sustained by the evidence. We will, accordingly, order that such allegations be dismissed.”
The Board also concurred in the findings of the trial examiner that Smith was not discharged in violation of the Act in the following words:
“To summarize, we concur in the Trial Examiner’s findings that Smith was not discharged because of his Union membership and activity but was laid off along with 7 other weavers and 8 loom fixers, none of whom were shown to be members of the Union, when installation of the new machinery enabled the respondent to effect a saving by thus reducing its force of employees; that when Smith and the other IS employees were laid off they were told to report to the spare floor but that Smith did not do so and for this reason did not receive reemployment.
“Upon the entire record we find that the evidence fails to sustain the allegations of the complaint that the respondent discriminated against Smith because of his Union membership and activity by discharging him on June 12, 1939, and thereafter refusing to reemploy him. We will accordingly order that such allegations be dismissed.”
The events in June, 1939, referred to in the Board’s summary, are shown by the undisputed testimony of Smith or -other witnesses. Smith had worked for the corporation for six or seven years, and understood that when an employee was not discharged, but laid off and told to report to the spare floor, it was his duty to report every day in order to see if there was available work. Instead of complying with this practice, Smith, being angry because he was deprived of his regular position, failed to report to the spare floor and a few days later, made complaint to the Union that he had been discharged. On June 13, a position of weaver became vacant, and Smith would have been given the place had he been on the spare floor. In his absence, another was chosen. On June 22, acting under the instructions of the Union, he returned to the mill and asked for employment, but was told that there was none.
It is now conceded that the conduct of the employer up to this time was without fault, but it is said that the subsequent circumstances and the testimony of the employer’s executives demonstrate that thereafter the corporation wrongfully refused to reinstate Smith for the reason that he had filed charges against it under the act. The subsequent circumstances are thus summarized in the findings of the Board:
“The complaint as amended alleges that Smith was refused employment on or about October 1, 1939, and thereafter, for the additional reason that he filed or caused to be filed charges under the Act.
“On September 12, 1939, the Union filed its charges herein. In the latter part of September or early in October 1939, a representative of the Board called at the plant and informed Stall, the respondent’s president, that the Union had filed charges with respect to Smith’s dismissal on June 12, 1939. This was the first notice given the respondent that it was being charged with having discharged Smith because of his Union membership and activity. On this occasion Stall was asked by the Board’s representative if he would give Smith employment and refused to do so, assigning as his reason therefor that there were no jobs available at that time. On or about October IS, 1939, Smith went to the door of the plant, asked for Burnett, and when he appeared, requested employment. Burnett advised Smith that there was no employment for him. Subsequent to Smith’s application for employment two weavers, who had not previously been in the respondent’s employ, were given employment by the respondent. (The record is not altogether clear as to the dates of the employment of the two weavers but apparently one was hired in November and one in December). Burnett testified that at the time the two new weavers were employed weavers were needed, that there were none available on the spare floor who could do the work, and that the two men came in ‘wanting to work’ and were employed. Burnett testified that he made no effort to locate Smith when these vacancies occurred because he did not know where to find him and also because he thought that Smith was working elsewhere.”
The company’s executive and supervisory employees testified that there was no vacancy on June 22 or October 15, 1939, when Smith asked for employment, or on the occasion in September or October when the Board’s representative called at the mill and inquired if the company would give Smith employment. There was no evidence to the contrary. It was also proved without contradiction that it was not the practice of the mill to keep a written list of employees ordered to report to the spare floor, or to send for one of them when a vacancy occurred; but in such event, the overseer went to the spare floor and selected an employee from those present. Similarly, there was no evidence in conflict with the employer’s testimony that there were no suitable weavers on the spare floor on the two subsequent occasions when outside weavers were taken on, and hence the positions were given to men, who came in and asked for work. One of these selections was made in November, 1939, and the other on or about January 1, 1940. At these times, according to the uncontradicted testimony, Smith’s whereabouts were unknown to the company officials. He was in fact working at the Isaqueena Mill at Central, South Carolina, for about five weeks before Christmas, 1939, and at the Mills Mill in Greenville, South Carolina, from about January 1, 1940 up to and including the day of the hearing before the trial examiner in the middle of February, 1940.
Obviously, no inference of hostile discrimination against Smith can be drawn from these circumstances. On the contrary, discrimination in his favor, such as the employer was under no duty to grant, would have occurred if the employer had performed the acts whose omission the Board accepted as evidence of illegality. If Smith had been reinstated in June or October, of necessity some other worker would have been displaced to make room for him; and if his whereabouts had been known to his employer in November and December, and he had been sent for and given a place in preference to the new men present and asking for work, a favor would have been extended that it was not the practice of the company to grant to absent employees. It should be kept in mind that the so-called spare list was not a written memorandum kept in the course of business, but a group or body of extra hands that were willing to report daily to the mill to fill casual vacancies; and that Smith, refusing to acxept this limited opportunity, chose to consider himself discharged, complained to the Union, and sought other employment. Whatever were the privileges of persons on the spare list, Smith had no claim to them.
Upon what then does the adverse holding of the Board rest? It is succinctly stated in The following paragraph from the Board’s decision:
“When the two new weavers were employed, there were no weavers available on the spare floor and in such circumstances it was the respondent’s practice to recall weavers on the spare list. In view of the testimony of both Stall and Rodgers that the respondent had determined in October not to reemploy Smith because of the charges filed herein we do not credit Burnett’s testimony that Smith was not offered employment on those occasions because his whereabouts was unknown or because it was thought that he was employed elsewhere. (While Smith was employed at a textile mill in Greenville at the time of the hearing it appears that this employment began about the first of January 1940).” “By reason of the application made on behalf of Smith by the Board’s representative in early October and Smith’s personal application on October 15 the respondent knew that Smith was available and desired reinstatement. Moreover, Burnett conceded that Smith was a ‘very fair weaver’ and it is reasonable to assume that when the spare floor was exhausted this factor would have entitled him to consideration over weavers who had not previously been in the respondent’s employ. Under these circumstances we are satisfied and find that Smith was a laid-off employee and that the actual reason Smith was not recalled to work was the one stated by both Stall and Rodgers, namely, because he had filed allegedly ‘false’ charges against the respondent; we likewise find that, except for the filing of such charges, Smith would have been employed by the respondent on or before December 1, 1939.”
There was, however, no substantial evidence to support the premise of fact stated by the Board that it was the company’s practice when it needed weavers and none were found on the spare floor, to pass over new applicants on hand and send for old employees on the spare list. Isolated statements in the testimony of the company’s executives in an examination covering several hundred pages indicate that if the spare floor was bare of employees at the time of an emergency, absent employees would be sent for; but no one testified that this would be done if new hands were immediately available. The contrary policy of the company to require the presence of its workers was so clearly and forcibly stated in the testimony as to be unmistakable.
Nor, was there-any testimony to show that Stall, the president, or Rodgers, the superintendent, knew the whereabouts of Smith in November and December, 1939, and January, 1940, during which period he was in fact working most of the time in other mills. This lack of proof was not supplied by th'e Board’s inability to credit the testimony of the employer’s witnesses in this respect; the existence of knowledge on the part of an accused who denies his guilt cannot be shown by merely refusing to believe him. And, even if-Smith’s whereabouts were known, there was no obligation to send for him. '
The conclusion of the Board really rests upon testimony of Stall, the president of the company, and Rodgers, the superintendent of the plant, that indicated an unwillingness on their part to reinstate Smith because he had filed charges against the company. When the representative of the Board called in September or October and asked whether the company would take Smith back, the representatives of the company replied that there was no vacancy and they refused to say whether they would or would not take him back in case a vacancy should occur. They were unwilling to take him back during the pendency of the charges, of which they were then for the first time informed. Stall testified that he did not think that an employee who had filed false charges would make a loyal and truthful employee, and that if Smith had appeared on the spare floor when a weaver was needed, he would not have received employment. Rodgers testified that while he would have put Smith back to work if he had not made the charges against the company and had reported to the spare floor, he did not feel, after the charges were filed, that Smith would make a faithful or efficient employee, and hence it would, not be to the best interest of the company to reinstate him.
Undoubtedly this evidence warrants the conjecture that if Smith had been available when vacancies occurred, he would probably have not been chosen, although of course one cannot be quite certain what decision the company would have made if confronted with the actual situation. It is sufficient to say that the employer was never called upon to make this particular choice, and that no unlawful discrimination actually occurred. The National Labor Relations Act is not concerned with hypothesis, but with realities; it does not seek to prohibit evil intent but unfair labor practices, and there was no substantial evidence of such a' practice in this case.
A decree will be entered setting aside the order of the Board.
As shown above, Smith was also employed in a mill at Central, South Carolina, for five weeks before Christmas, 1939.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer: |
sc_authoritydecision | D | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
SECURITIES AND EXCHANGE COMMISSION v. EDWARDS
No. 02-1196.
Argued November 4, 2003
Decided January 13, 2004
O’Connor, J., delivered the opinion for a unanimous Court.
Solicitor General Olson argued the cause for petitioner. With him on the briefs were Deputy Solicitor General Kneedler, Matthew D. Roberts, Meyer Eisenberg, Jacob H. Stillman, and Susan S. McDonald.
Michael K. Wolensky argued the cause for respondent. With him on the brief was Ethan H. Cohen
Briefs of amici curiae urging reversal were filed for AARP by Stacy Canan, Deborah M. Zuckerman, and Michael R. Schuster; for the North American Securities Administrators Association, Inc., by Mark J. Davis; for the Public Investors Arbitration Bar Association, Inc., by Joseph C. Long; and for Securities Regulators for the State of Florida et al. by Cynthia K. Maynard.
Justice O’Connor
delivered the opinion of the Court.
“Opportunity doesn’t always knock . . . sometimes it rings.” App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale- and-leaseback arrangements touted by respondent under that slogan. The Securities and Exchange Commission (SEC) argues that the arrangements were investment contracts, and thus were subject to regulation under the federal securities laws. In this case, we must decide whether a moneymaking scheme is excluded from the term “investment contract” simply because the scheme offered a contractual entitlement to a fixed, rather than a variable, return.
I
Respondent Charles Edwards was the chairman, chief executive officer, and sole shareholder of ETS Payphones, Inc. (ETS). ETS, acting partly through a subsidiary also controlled by respondent, sold payphones to the public via independent distributors. The payphones were offered packaged with a site lease, a 5-year leaseback and management agreement, and a buyback agreement. All but a tiny fraction of purchasers chose this package, although other management options were offered. The purchase price for the payphone packages was approximately $7,000. Under the leaseback and management agreement, purchasers received $82 per month, a 14% annual return. Purchasers were not involved in the day-to-day operation of the payphones they owned. ETS selected the site for the phone, installed the, equipment, arranged for connection and long-distance service, collected coin revenues, and maintained and repaired the phones. Under the buyback agreement, ETS promised to refund the full purchase price of the package at the end of the lease or within 180 days of a purchaser’s request.
In its marketing materials and on its Web site, ETS trumpeted the “incomparable pay phone” as “an exciting business opportunity,” in which recent deregulation had “open[ed] the door for profits for individual pay phone owners and operators.” According to ETS, “[v]ery few business opportunities can offer the potential for ongoing revenue generation that is available in today’s pay telephone industry.” App. 114-115 (ETS brochure); id., at 227 (ETS Web site); see id., at 13 (Complaint ¶¶ 37-38).
The payphones did not generate enough revenue for ETS to make the payments required by the leaseback agreements, so the company depended on funds from new investors to meet its obligations. In September 2000, ETS filed for bankruptcy protection. The SEC brought this civil enforcement action the same month. It alleged that respondent and ETS had violated the registration requirements of §§ 5(a) and (c) of the Securities Act of 1933, 68 Stat. 684, 15 U. S. C. §§ 77e(a), (c), the antifraud provisions of both § 17(a) of the Securities Act of 1933, 114 Stat. 2763A-452, 15 U. S. C. § 77q(a), and § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 114 Stat. 2763A-454, 15 U. S. C. § 78j(b), and Rule 10b-5 thereunder, 17 CFR § 240.10b-5 (2003). The District Court concluded that the payphone sale-and-leaseback arrangement was an investment contract within the. meaning of, and therefore was subject to, the federal securities laws. SEC v. ETS Payphones, Inc., 123 F. Supp. 2d 1349 (ND Ga. 2000). The Court of Appeals reversed. 300 F. 3d 1281 (CA11 2002) (per curiam). It held that respondent’s scheme was not an investment contract, on two grounds. First, it read this Court’s opinions to require that an investment contract offer either capital appreciation or a participation in the earnings of the enterprise, and thus to exclude schemes, such as respondent’s, offering a fixed rate of return. Id., at 1284-1285. Second, it held that our opinions’ requirement that the return on the investment be “derived solely from the efforts of others” was not satisfied when the purchasers had a contractual entitlement to the réturn. Id., at 1285. We conclude that it erred on both grounds.
II
“Congress’ purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called.” Reves v. Ernst & Young, 494 U. S. 56, 61 (1990). To that end, it enacted a broad definition of “security,” sufficient “to encompass virtually any instrument that might be sold as an investment.” Ibid. Section 2(a)(1) of the 1933 Act, 15 U. S. C. § 77b(a)(l), and § 3(a)(10) of the 1934 Act, 15 U. S. C. §78c(a)(10), in slightly different formulations which we have treated as essentially identical in meaning, Reves, supra, at 61, n. 1, define “security” to include “any note, stock, treasury stock, security future, bond, debenture,... investment contract,... [or any] instrument commonly known as a ‘security.’” “Investment contract” is not itself defined.
The test for whether a particular scheme is an investment contract was established in our decision in SEC v. W. J. Howey Co., 328 U. S. 293 (1946). We look to “whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others.” Id., at 301. This definition “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Id., at 299.
In reaching that result, we first observed that when Congress included “investment contract” in the definition of security, it “was using a term the meaning of which had been crystallized’' by the state courts’ interpretation of their “‘blue sky’” laws. Id., at 298. (Those laws were the precursors to federal securities regulation and were so named, it seems, because they were “aimed at promoters who ‘would sell building lots in the blue sky in fee simple.’ ” 1 L. Loss & J. Seligman, Securities Regulation 36, 31-43 (3d ed. 1998) (quoting Mulvey, Blue Sky Law, 36 Can. L. Times 37 (1916)).) The state courts had defined an investment contract as “a contract or scheme for ‘the placing of capital or laying out of money in a way intended to secure income or profit from its employment,”’ and had “uniformly applied” that definition to “a variety of situations where individuals were led to invest money in a common enterprise with the expectation that they would earn a profit solely through the efforts of the promoter or [a third party].” Howey, supra, at 298 (quoting State v. Gopher Tire & Rubber Co., 146 Minn. 52, 56, 177 N. W. 937, 938 (1920)). Thus, when we held that “profits” must “come solely from the efforts of others,” we were speaking of the profits that investors seek on their investment, not the profits of the scheme in which they invest. We used “profits” in the sense of income or return, to include, for example, dividends, other periodic payments, or the increased value of the investment.
There is no reason to distinguish between promises of fixed returns and promises of variable returns for purposes of the test, so understood. In both cases, the investing public is attracted by representations of investment income, as purchasers were in this case by ETS’ invitation to “ ‘watch the profits add up.’ ” App. 13 (Complaint ¶ 38). Moreover, investments pitched as low risk (such as those offering a “guaranteed” fixed return) are particularly attractive to individuals more vulnerable to investment fraud, including older and less sophisticated investors. See 2 S. Rep. No. 102-261, App., p. 326 (1992) (Staff Summary of Federal Trade Commission Activities Affecting Older Consumers). Under the reading respondent advances, unscrupulous marketers of investments could evade the securities laws by picking a rate of return to promise. We will not read into the securities laws a limitation not compelled by the language that would so undermine the laws’ purposes.
Respondent protests that including investment schemes promising a fixed return among investment contracts conflicts with our precedent. We disagree. No distinction between fixed and variable returns was drawn in the blue sky law cases that the Howey Court used, in formulating the test, as its evidence of Congress’ understanding of the term. 328 U. S., at 298, and n. 4. Indeed, two of those cases involved an investment contract in which a fixed return was promised. People v. White, 124 Cal. App. 548, 550-551, 12 P. 2d 1078, 1079 (1932) (agreement between defendant and investors stated that investor would give defendant $5,000, and would receive $7,500 from defendant one year later); Stevens v. Liberty Packing Corp., 111 N. J. Eq. 61, 62-63, 161 A. 193, 193-194 (1932) (“ironclad contract” offered by defendant to investors entitled investors to $56 per year for 10 years on initial investment of $175, ostensibly in sale and leaseback of breeding rabbits).
None of our post-Howey decisions is to the contrary. In United Housing Foundation, Inc. v. Forman, 421 U. S. 837 (1975), we considered whether “shares” in a nonprofit housing cooperative were investment contracts under the securities laws. We identified the “touchstone" of an investment contract as “the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others,” and then laid out two examples of investor interests that we had previously found to be “profits.” Id., at 852. Those were “capital appreciation resulting from the development of the initial investment” and “participation in earnings resulting from the use of investors’ funds.” Ibid. We contrasted those examples, in which “the investor is ‘attracted solely by the prospects of a return’ ” on the investment, with housing cooperative shares, regarding which the purchaser “is motivated by a desire to use or consume the item purchased.” Id., at 852-853 (quoting Howey, supra, at 300). Thus, Forman supports the commonsense understanding of “profits” in the Howey test as simply “financial returns on... investments.” 421 U. S., at 853.
Concededly, Forman’s illustrative description of prior decisions on “profits” appears to have been mistaken for an exclusive list in a case considering the scope of a different term in the definition of a security, “note.” See Reves, 494 U. S., at 68, n. 4. But that was a misreading of Forman, and we will not bind ourselves unnecessarily to passing dictum that would frustrate Congress’ intent to regulate all of the “countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.” Howey, supra, at 299.
Given that respondent’s position is supported neither by the purposes of the securities laws nor by our precedents, it is no surprise that the SEC has consistently taken the opposite position, and maintained that a promise of a fixed return does not preclude a scheme from being an. investment contract. It has done so in formal adjudications, e. g., In re Abbott, Sommer & Co., 44 S. E. C. 104 (1969) (holding that mortgage notes, sold with a package of management services and a promise to repurchase the notes in the event of default, were investment contracts); see also In re Union Home Loans (Dec. 16, 1982), 26 S. E. C. Docket 1517, 1519 (report and order regarding settlement, stating that sale of promissory notes secured by deeds of trust, coupled with management services and providing investors “a specified percentage return on their investment,” were investment contracts), and in enforcement actions, e. g., SEC v. Universal Service Assn., 106 F. 2d 232, 234, 237 (CA7-1939) (accepting SEC’s position that an investment scheme promising “assured profit of 30% per annum with no chance of risk or loss to the contributor” was a security because it satisfied the pertinent substance of the Howey test, “‘[t]he investment of money with the expectation of profit through the efforts of other persons’ ”); see also SEC v. American Trailer Rentals Co., 379 U. S. 594, 598 (1965) (noting that “the SEC advised” the respondent that its “sale and lease-back arrangements,” in which investors received “a set 2% of their investment per month for 10 years,” “were investment contracts and therefore securities” under the 1933 Act).
The Eleventh Circuit’s perfunctory alternative holding, that respondent’s scheme falls outside the definition because purchasers had a contractual entitlement to a return, is incorrect and inconsistent with our precedent. We are considering investment contracts. The fact that investors have bargained for a return on their investment does not mean that the return is not also expected to come solely from the efforts of others. Any other conclusion would conflict with our holding that an investment contract was offered in Howey itself. 328 U. S., at 295-296 (service contract entitled investors to allocation of net profits).
We hold that an investment scheme promising a fixed rate of return can be an “investment contract” and thus a “security” subject to the federal securities laws. The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Because the Court of Appeals ordered the complaint dismissed, we treat the case as we would an appeal from a successful motion to dismiss and accept as true the allegations in the complaint. SEC v. Zandford, 535 U. S. 813, 818 (2002); Saudi Arabia v. Nelson, 507 U. S. 349, 351, 354 (1993).
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: |
songer_genapel1 | G | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
UNITED STATES of America, Appellee, v. Milton Carl HESSE, Appellant.
No. 19574.
United States Court of Appeals Eighth Circuit.
Oct. 22, 1969.
Louis Gilden, St. Louis, Mo., for appellant.
Daniel R. O’Neill, Asst. U. S. Atty., St. Louis, Mo., for appellee; Daniel Bartlett, Jr., U. S. Atty., same address, on the brief.
Before VAN OOSTERHOUT, Chief Judge, and LAY and HEANEY, Circuit Judges.
LAY, Circuit Judge.
This appeal arises from the defendant’s conviction under 50 U.S.C.App. § 462 for failing to report for induction into the armed forces. Defendant basically claims he was (1) denied procedural due process in his reclassification from I-A-0 to I-A, and (2) that there exists no basis-in-fact for his I-A classification. The district court denied defendant’s motion for acquittal and found him guilty of the offense charged. 293 F.Supp. 991 (E.D. Mo. 1968). We hold that defendant’s selective service file demonstrates no basis-in-fact for his reclassification to a I-A status. We reverse.
Defendant, at age 18, registered with his local board on April 13, 1964. At that time he filled out Selective Service Form 150 asserting that he was a conscientious objector. He stated that he was a member of the Radio Church of God and had become so when he first attended the church in New Athens, Illinois, on August 21, 1963. In his application he acknowledged the existence of a Supreme Being and because of his religious beliefs would refuse to use force or to kill. He wrote his beliefs in detail and premised them upon his religious teachings. He quoted from the church constitution which forbids the taking of human life. He quoted various scriptural passages.
Based upon this application, his local board classified him I-A-0 (eligible for noncombatant military service). The defendant, seeking a 1-0 classification, appealed this ruling. Under the then existent Selective Service regulations, 32 C.F.R. § 1626.25 (1954), and statute, 50 U.S.C.App. § 456(j) (1951), the appeals board, while tentatively affirming his I-A-0 classification, sought a Department of Justice investigation and recommendation. Following a standard procedure, a hearing officer conducted a personal interview of the defendant and made a written report to the Department. The F.B.I. investigated the defendant and a résumé of the investigation was made. On January 10, 1966, the Chief of the Conscientious Objector Section of the Department of Justice reported to the appeals board. He stated that the hearing officer concluded the registrant is not “conscientiously opposed to participate in combatant and noncombatant military training and service” and that “the résumé, on the whole, is consistent with the findings of the Hearing Officer.” He then recommended that Hesse not be classified in Class 1-0 or in Class I-A-O. Nevertheless, the appeals board continued Hesse in Class I-A-O. The defendant was found physically fit and ordered to report for induction on May 31, 1966. He reported but refused to take the oath of induction. Thereafter, the United States attorney declined to prosecute since he was of the opinion that there was no basis-in-fact to support the I-A-0 classification. He wrote the state director that the registrant was either I-A or 1-0 depending upon the sincerity of his convictions.
The state director, acting under 32 C.F.R. § 1625.3 (1969), requested the local board to reclassify the defendant. In a letter accompanying the request he called the board’s attention to the Department of Justice recommendation that Hesse should' not be in either Class 1-0 or I-A-O. On July 5, 1966, the local board reclassified Hesse as I-A. Hesse appealed.
Once again,the appeals board referred the matter to the Department of Justice for investigation and recommendation. The same hearing officer who conducted the 1965 interview again conferred with the defendant. Another F.B.I. investigation was also made. On October 23, 1967, the same Department of Justice official who had authored the January 10, 1966, report, once again made the recommendation. The Department recommended on the basis of the hearing officer’s interview and the résumé of the more recent F.B.I. investigation that Hesse had still not met his burden of showing that he was a conscientious objector. On December 4, 1967, the appeals board, presumably on the basis of the new investigation and recommendation, classified Hesse I-A. The defendant was once again ordered to report for induction, and once again refused. Prosecution and conviction ensued leading to this appeal.
The fundamental issue is whether there existed a basis-in-fact for the appeal board’s I-A classification of December 4, 1967.
Since the appeals board determines the classification de novo (32 C.F.R. § 1626.26(a) (1969)), the only factors which could possibly have affected Hesse’s classification was the 1967 investigative résumé and the Department of Justice’s report and recommendation. We cannot accept defendant’s contention that this résumé and recommendation could not be considered as additional facts related to classification. See United States v. Corliss, 173 F.Supp. 677 (S.D.N.Y. 1959), aff’d 280 F.2d 808 (2 Cir. 1960), distinguishing United States v. Stasevic, 117 F.Supp. 371 (S.D.N.Y. 1953). See also United States v. Nugent, supra; Simmons v. United States, supra; Sicurella v. United States, 348 U.S. 385, 75 S.Ct. 403, 99 L.Ed. 436 (1955); and Gonzales v. United States, supra.
However, this court is at a complete loss to understand the statements of the Department pf Justice in both the 1965 and 1967 reports that the F.B.I. résumés “on the whole” are consistent with the hearing officer’s finding that Hesse was insincere as to his conscientious objector claim.
We are mindful that our jurisdiction to review is a narrow one. Whether there exists basis-in-fact for the defendant’s classification is both a subjective and objective test. The obligation of review in this circuit has been construed to discount mere disbelief of a conscientious objector’s claim without affirmative evidence to measure contradiction. Batterton v. United States, 260 F.2d 233 (8 Cir. 1958). Additionally we recognize as Judge Friendly said in United States v. Corliss, 280 F.2d 808, 814 (2 Cir. 1960):
“[T]hat although denial of exemption may be and often is supported by objective facts inconsistent with the claim, denial may also rest on a disbelief in the sincerity of the claim, unaccompanied by any inconsistent facts, provided the disbelief is honest and rational. * * * to sustain the denial of a claim on a mere ipse dixit of lack of sincerity from the Local Board or the hearing officer would create serious possibilities of abuse.”
Mere speculation or conjecture as to insincerity is not enough. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). Nor can basis-in-fact in this case rest upon Hesse’s doubtful demeanor. The only personal interview of Hesse was by the hearing officer and he is the only one who could assess evasive demeanor as a ground of insincerity. However, the hearing officer did not rely upon this ground. Cf. Parr v. United States, 272 F.2d 416 (9 Cir. 1959); United States v. St. Clair, 293 F.Supp. 337 (E.D.N.Y. 1968) (per Weinstein, J., an excellent authoritative opinion). There exists evidence that Hesse was nervous before the hearing officer but this fact alone is not evidence of doubtful demeanor. However, if there exists any inconsistency or honest or rational disbelief with the defendant’s claim, then it is not for this court to weigh the substantiality of these facts to find any basis-in-fact. Dickinson v. United States, 346 U.S. 389, 74 S.Ct. 152, 98 L.Ed. 132 (1953). Cf. Esteban v. Central Missouri State College, 415 F.2d 1077 n. 3 at 1092 (8 Cir. 1969) (dissenting opinion). Nevertheless, where disbelief is said to exist, the appellate court, in each case, must examine the board’s alleged basis-in-fact to see whether it has any “rational” and “honest” foundation. Cf. United States v. Corliss, 280 F.2d 808 (2 Cir. 1960).
The appeals board was silent as to its reasons for changing Hesse’s classification to I-A. We can only assume, by reason of its changed position, that it felt justified to follow the second recommendation of the Department of Justice. The problem is, however, that the Justice Department’s recommendation was based in part upon gross error. After reporting that the hearing officer concluded the defendant was not sincere, the recommendation reads: “The Department of Justice believes that the résumé, on the whole, is not inconsistent with the findings of the Hearing Officer.” Examination of the résumé markedly demonstrates to the contrary.
The résumé reveals that the F.B.I. interviewed officials of two former employers, six officials (including three supervisors) of his then present employer, a friend, a fellow worker, a relative, four neighbors, a town marshall, church members, defendant’s pastor and assistant pastor. This investigation was much more extensive than the one which the F.B.I. conducted in 1965, and entailed many hours of interviews in at least three different cities. There does not exist within the entire résumé one statement which reflects a flaw upon the sincerity of Hesse’s beliefs. The investigation verifies Hesse’s good behavior and repeatedly states his sincere attitude as being conscientiously opposed, for religious reasons, to military service. The résumé shows that he refused to work on Saturday because of its religious significance, that he had attended church conferences as far away as Georgia and Texas despite giving up his pay for several workdays, that he was active in church work and that he had professed his sincerity and beliefs to many persons. Significant was a supervisor’s statement that:
“Registrant mentioned to him that he was a conscientious objector to the military service based on his religious beliefs. This reference stated that he [supervisor] is a member of the United States Army Reserve and feels that everyone has a responsibility to serve in the military service in some manner, however, he feels that the registrant is a genuine conscientious objector and that the registrant does not want to have anything to do with the Armed Forces. He tried to convince the registrant to go into the Armed Forces in a noncombatant status, but the registrant said he could not do so. He believes the registrant is sincere in his objections to military service and registrant has stated that he cannot go into the Army since any type of service contributes to death or killing. He recalled that the registrant said he attends the Radio Church of God.”
Further analysis shows, in addition, that on the grounds set forth in the October 1967 recommendation there exists no rational” or “honest” basis for the hearing officer to have doubted the sincerity of the defendant’s claim. As the district court summarized, the hearing officer questioned defendant’s sincerity because he found the registrant was not familiar with the doctrines and beliefs of the church. The district court further observed that the hearing officer found that the church opposed use of tobacco and that the defendant had not given up smoking until two weeks before the first hearing. Also the defendant was found to have made inconsistent statements to the hearing officer as to when he commenced tithing in the church.
Lack of knowledge of his church’s doctrine has been held to cast sufficient doubt upon the sincerity of an alleged conscientious objector so as to constitute a basis-in-fact for a I-A classification. See e. g., Maynard v. United States, 409 F.2d 505 (9 Cir. 1968); Bishop v. United States, 412 F.2d 1064 (9 Cir. 1969). However, where the basis upon which a hearing officer or draft board concludes a registrant’s lack of knowledge rests upon arbitrary and irrational standards, the conclusion itself cannot stand. It is fundamental that each case deserves its own factual analysis.
In the 1967 interview the hearing officer doubted Hesse’s sincerity because he did not know that it was unnecessary to be 21 years old in order to be a member of the church; he could not give the correct chapter and verse for a biblical scripture that he had memorized ; Hesse stated he attended church from 9 to 10 a. m. on Saturday; Hesse stated he was active in midweek church speech classes but a witness accompanying Hesse to the interview said the speech classes were “totally unrelated” to the church; without the witness the defendant would have been thoroughly confused; Hesse was not able to define all of the church holidays and unable to state exactly when they occurred ; Hesse did not know whether anything in the church tenets forbade taking orders from officers or superiors. The hearing officer also referred to his 1965 report stating that he still felt it was significant that Hesse had started going to church only shortly before he registered for the Selective Service and that Hesse had stopped smoking only three weeks before his first hearing in 1965. The hearing officer also referred to the earlier interview where the registrant had given inconsistent statements as to when he had started to tithe.
The reasons given by the hearing officer in the Department of Justice’s report do not serve as reasonable grounds to doubt a person’s sincerity as a conscientious objector. The F.B.I. résumé, as well as the subsequent letters by the witness Flurry and the defendant Hesse, cast grave doubt upon the accuracy of the report of the hearing officer’s interview. After the erroneous light cast upon the F.B.I. résumé by the author of the Justice Department’s recommendation, a serious question arises on the record itself as to whether the hearing officer’s interview has been inaccurately related. Hesse’s church receipts, voluntarily sent by him to the appeals board in order to accurately verify the dates he began tithing in his church, contradict that he intended any misrepresentation. These receipts constitute the best evidence to prove the dates and amount of his church donations. And whether a young man of 19 can accurately cite scripture quotations or define every church holiday is of little consequence to his religious convictions. Cf. United States v. Owen, 415 F.2d 383 (8 Cir. 1969). Were this not so, we imagine many persons of all denominations with sincere religious faith would find the door to God’s Kingdom narrower than they thought. To hold sincere religious conviction, one does not have to be a theologian.
We realize that the hearing officer was the only official who personally interviewed the defendant. Yet this fact should not be controlling when the conclusion of “insincerity” is based upon technicalities, some with doubtful verity, and the record as a whole completely contradicts the observations the hearing officer purportedly made. It is at best speculative to say on this record that the defendant is not possessed of sincere beliefs. Every person interviewed by the F.B.I., including employers, supervisors, associates and neighbors, verified this young man’s sincerity as a conscientious objector. Under the record presented, we find that there was no justification for the appeals board to rely on the report of the Department of Justice and, therefore, there was no basis-in-fact for the I-A classification.
Reversed and remanded with direction to enter a judgment of acquittal.
. No personal hearing was specifically requested nor was one granted. Local Board Memorandum No. 41 as now amended, which advises boards to give a preclassification interview to selectees requesting 1-0 classfication, was not yet promulgated. It was amended on July 30, 1968. Defendant claims denial of due process by reason of the lack of a personal hearing. We need not decide this issue here.
. This procedure has now been deleted from the classification proceedings. Military Selective Service Act of 1967, 50 U.S.C.App. § 456(j). For full discussion of the old procedure see United States v. Nugent, 346 U.S. 1, 73 S.Ct. 991, 97 L.Ed. 1417 (1953). See also Gonzales v. United States, 348 U.S. 407, 75 S.Ct. 409, 99 L.Ed. 467 (1955); Simmons v. United States, 348 U.S. 397, 75 S.Ct. 397, 99 L.Ed. 453 (1955).
. It is not necessary to be a member of any organized church to sustain a claim of conscientious objector. United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). See also Batter-ton v. United States, supra.
. In the 1966 letter defendant was reported as quoting various scripture naming chapter and verse.
. Hesse wrote the board this was incorrect. At the time of the interview he said he told the hearing officer he attended from 9 to 11 a.m.
. This same witness contradicted this report in a subsequent letter to the board. His observations, relating to a young man’s grasp of religious knowledge, must reflect rather accurately a true appraisal of young people and their religious beliefs :
“To AVliom It May Concern:
“I was the witness for Milton Hesse on April 17, 1967. He informed me of the results of the hearing.
“I was told that the hearing officer said that Mr. Hesse stumbled around and sounded unsure of himself. Milton is a rather nervous type person at times. I know, since I have attended a speech club with him for quite a while.
“However, at Milton’s age, the church doesn’t require that a person have a great deal of Icnowledge. And it seemed to me that some of the questions would he a little hard for any young fellow in the church to answer. (Emphasis ours.)
“The hearing officer said that I stated that the speech club was totally unrelated to the church. Maybe I expressed myself badly, but the club is related. In fact, those that attend the club are almost invariably the strongest members of the church.
“Milton does seem to me to know quite a lot about the church. Unless a person makes a good attempt in the church toward acquiring knowledge, and has the right attitude, the church won’t allow them to be a member of the speech club.
“This is true partly because it is a college level club and we are provided with college trained directors. The church simply can’t afford to spend this time and money on people whom we consider to be insincere.
“Milton has had very little of this type training in the past and he certainly needs a lot more training to gain more poise and lack of nervousness.
“If you could take this into consideration in determining his sincerity, we would be deeply grateful. Thank you.
“Sincerely,
8/ Gerald Flurry
“Gerald Flurry.”
. Hesse, however, subsequently wrote the board that at the time of his interview, he read from prepared notes the names of the church holidays and their mean- ■ ing, so he could be as accurate as possible. The fact that he read these to the hearing officer is not disclosed in the Justice Department’s report.
. However, Hesse stated he would follow orders as long as doing so did not conflict with his religious convictions.
. If this is relevant, it would seem of greater significance that the defendant had not smoked since that time. Cf. Parr v. United States, 272 F.2d 416, 420 (9 Cir. 1959). No mention of this is made by the hearing officer.
. The hearing officer’s report is not included in his selective service file and was never shown to him. This in. itself raises serious due process questions. See United States v. Purvis, 403 F.2d 555 (2 Cir. 1968); and cf. United States v. Owen, 415 F.2d 383 (8 Cir. 1969).
. Even the Apostle Paul taught the Churches of Corinth that faith should not stand in wisdom. 1 Cor.2:5; and at Galatia, that faith is not found in obedience to church law, Gal. 3:12, or in works, Rom. 4:5.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
sc_issue_9 | 13 | 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.
PREISER, COMMISSIONER OF CORRECTIONAL SERVICES OF NEW YORK, et al. v. NEWKIRK
No. 74-107.
Argued January 20, 1975 —
Decided June 25, 1975
Hillel Hoffman, Assistant Attorney General of New York, argued the cause for petitioners. With him on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Joel Lewittes, Assistant Attorney General.
Daniel Pochoda argued the cause for respondent. With him on the brief were William E. Hellerstein and Marjorie Mazen Smith.
Solicitor General Bork, Acting Assistant Attorney General Keeney, Deputy Solicitor General Frey, and Joseph S. Davies filed a brief for the United States as amicus curiae urging reversal
Barbara M. Milstein, Alvin J. Bronstein, Arpiar G. Saunders, Jr., Jack Greenberg, Stanley A. Bass, and Cary Coen filed a brief for the National Prison Project et al. as amici curiae urging affirmance.
Me. Chief Justice Burger
delivered the opinion of the Court.
Respondent Newkirk has been an inmate of the New York prison system since his conviction for murder in the second degree in 1962. He had initially been confined at the Ossining Correctional Facility and, subsequently, at the Attica Correctional Facility, the Green Haven Correctional Facility, and the Auburn Correctional Facility. These facilities were maximum security institutions at the time respondent was confined in them and are located in different parts of New York. In April 1971, nine years after his initial confinement, he was transferred to the Wallkill Correctional Facility, a medium security institution. The District Court and the Court of Appeals found, and it is not seriously disputed here, that the Wallkill facility is “unique,” and has advantages over other correctional institutions in the New York system in that there are fewer restrictions and physical restraints as well as a more comprehensive rehabilitation program.
Early in 1972, a petition aimed at the formation of a prisoners’ “union” was circulated at Wallkill. This event produced some vociferous controversy among the prisoners. Tension among the inmates, according to the District Court, stemmed in part from the hostility of an existing prisoner representative committee toward the “union” movement. The prison administration, however, did not forbid or actively discourage the circulation of the petition. The administrators did, however, monitor the level of unrest within the prison brought on by the clash of opinions on the petition. On June 2, 1972, there was a general meeting of the inmates at which the petition was discussed loudly by the contending factions; the meeting dispersed peacefully, however, without incidents of violence. Respondent did not attend this meeting, but he had previously signed a proposed “union” constitution and, immediately prior to the meeting, had received a petition from a fellow inmate, signed it, and passed it along.
A report prepared by the assistant deputy superintendent identified Newkirk as one of the inmates who had been canvassing for the “union” but did not charge him with any violation of regulations or misconduct. This report — including its naming of Newkirk — was apparently based on information other officers had given the assistant deputy superintendent. Newkirk was not afforded an opportunity to give his account. The following day, on June 6, 1972, the superintendent called the central office of the Department of Corrections and arranged for transfer of several inmates, including New-kirk, to other facilities within the state corrections system. The transfer of Newkirk was effected on June 8. He was summoned to the infirmary and informed that he was being transferred.
Newkirk was transferred to the Clinton Correctional Facility, a maximum security institution. The conditions for the general prison population at Clinton were substantially different from those at Wallkill. At Clinton, the cells are locked, access to the library and recreational facilities is more limited, and the rehabilitation programs are less extensive. Newkirk requested a truck-driving assignment when he arrived at Clinton and understood he was on a waiting list. He was then assigned to the residence of the superintendent of Clinton at the same wage he earned at Wallkill. Since New-kirk’s family lived in New York City, 80 miles from Wallkill but 300 miles from Clinton, his transfer to Clinton made visits by his family more difficult.
Newkirk and three of the other four prisoners transferred from Wallkill brought suit in the United States District Court for the Southern District of New York, pursuant to 28 U. S. C. §§ 1343 (3) and (4), and 42 U. S. C. § 1983, against the superintendent of Wall-kill and the State Commissioner of Correctional Services. They requested a declaratory judgment that the transfers were in violation of the Constitution and laws of the United States and an injunction ordering their return to Wallkill, expunging all record of their transfer, and prohibiting future transfers without a hearing. The District Court denied a preliminary injunction but set the case for trial on an accelerated basis. Prior to the commencement of the trial, two of the plaintiffs were released and the complaint was dismissed in so-far as it related to them. During the trial another plaintiff was released, and the action was dismissed as to him as well; subsequently Newkirk was returned to Wallkill. The superintendent of that institution also had a memorandum placed in respondent’s file which explained the nature of the transfer, noted that the transfer was not for disciplinary reasons, and was not to have any bearing on eligibility for parole or the decisions of the time-allowance committee.
The District Court held that the transfer violated the Due Process Clause of the Fourteenth Amendment since it had been made without any explanation to Newkirk or opportunity to be heard. The court entered a declaratory judgment which required that Newkirk be given such an explanation and an opportunity to be heard in connection with any future transfer, and further declared that no adverse parole action could be taken against New-kirk or punishment administered because of the transfer. It held that Newkirk should be informed of the scope of permissible behavior at Wallkill and the circumstances which would warrant his transfer to another prison in the future. At the same time, however, the court refused the prayer for an injunction against future summary transfers because it was “not persuaded that the threat of transfer is sufficiently great at this time . . .” Newkirk v. Butler, 364 F. Supp. 497, 504 (1973); the court concluded that “in the present posture of the case there is not a sufficiently delineated controversy to merit its adjudication,” id., at 500. Noting that “an explanatory note has been included with the record of transfer, and that no action adverse to plaintiff, whether with reference to parole or discipline, will be based on this information . . . ,” id., at 504, the court also denied a request that all record of the transfer be expunged from his file.
The Court of Appeals affirmed the judgment with some modification. 499 F. 2d 1214 (CA2 1974). It held that, when a prisoner suffers a “substantial loss” as a result of the transfer, “he is entitled to the basic elements of rudimentary due process, i. e., notice and an opportunity to be heard,” id., at 1217, whether or not his transfer is part of a formal disciplinary proceeding and whether or not it has any adverse parole consequences. Noting that there were no formal disciplinary proceedings in this case, the Court of Appeals relied on the fact that the transfer changed Newkirk’s living conditions, his job assignment, and training opportunities. However, although agreeing that advance publication of “rules,” violation of which might result in transfer, “would serve the salutary function of avoiding misunderstanding and resentment . . . ,” id., at 1219, the Court of Appeals concluded that requiring prison officials to draw up such rules would place officials in “an unnecessary straight jacket [sic].” Ibid. It, therefore, modified the. judgment of the District Court to remove this requirement from its order. Although specifically noting that Newkirk had been returned to Wallkill from Clinton, the Court of Appeals held that the suit was not moot since “[e]ven after his return he remained subject to a new transfer at any time ....” Ibid. Furthermore, despite the District Court’s reliance on the good-faith assurances of prison officials that the transfer would not have an adverse effect on Newkirk’s parole possibility, the Court of Appeals concluded he was “entitled to a judicial decree to that effect.” Ibid.
We granted petitioners’ petition for writ of certiorari which presented the following question: “Whether a prison inmate who is transferred within a state from a medium security institution to a maximum security institution, without the imposition of disciplinary punishment, is entitled under the Due Process Clause of the Fourteenth Amendment to notice of the reasons for the transfer and an opportunity to be heard”? In granting the petition, however, the Court directed that the parties brief and argue the question of mootness. 419 U. S. 894 (1974).
All of the developments since the original challenged transfer must be read in light of not only Newkirk’s transfer to Wallkill but also his later transfer, after the decision of the Court of Appeals, to the Edgecombe Correctional Facility, a minimum security institution in New York City. Newkirk will be eligible for parole in July 1975.
The exercise of judicial power under Art. Ill of the Constitution depends on the existence of a case or controversy. As the Court noted in North Carolina v. Rice, 404 U. S. 244, 246 (1971), a federal court has neither the power to render advisory opinions nor “to decide questions that cannot affect the rights of litigants in the case before them.” Its judgments must resolve “ ‘a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.’ ” Ibid., quoting Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). As the Court noted last Term, in an opinion by Mr. Justice Brennan, Steffel v. Thompson, 415 U. S. 452, 459 n. 10 (1974): “The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed. See, e. g., Roe v. Wade, 410 U. S. [113,] 125 [(1973)]; SEC v. Medical Comm, for Human Rights, 404 U. S. 403 (1972); United States v. Munsingwear, Inc., 340 U. S. 36 (1950).”
In Maryland Casualty Co. v. Pacific Co., 312 U. S. 270 (1941), this Court, noting the difficulty in fashioning a precise test of universal application for determining whether a' request for declaratory relief had become moot, held that, basically, “the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Id., at 273 (emphasis supplied). This is not a class action and Newkirk has not sought damages. As noted, supra, before the ruling of the District Court, Newkirk had been transferred back to Wallkill and had been there for 10 months. No adverse action was taken against him during that period. A notation had been made in his file expressly stating that the transfer “should have no bearing in any future determinations' made by the Board of Parole or the time allowance committee.” Newkirk has now been transferred, as noted above, to a minimum security facility in New York City. It is therefore clear that correction authorities harbor no animosity toward Newkirk. We have before us more than a “[m]ere voluntary cessation of allegedly illegal conduct,” United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968), where we would leave “[t]he defendant . . . free to return to his old ways.” United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953). As to Newkirk’s original complaint, there is now “ ‘no reasonable expectation that the wrong will be repeated,’ ” id., at 633, quoting United States v. Aluminum Co. of America, 148 F. 2d 416, 448 (CA2 1945). Any subjective fear Newkirk might entertain of being again transferred, under circumstances similar to those alleged in the complaint, or of suffering adverse consequences as a result of the 1972 transfer, is indeed remote and speculative and hardly casts that “continuing and brooding presence” over him that concerned the Court in Super Tire Engineering Co. v. McCorkle, 416 U. S. 115, 122 (1974). As the Court noted in United States v. SCRAP, 412 U. S. 669, 688-689 (1973), “pleadings must be something more than an ingenious academic exercise in the conceivable. A plaintiff must allege that he has been or will in fact be perceptibly harmed by the challenged agency action, not that he can imagine circumstances in which he could be affected by the agency’s action.” Similarly, while there is always the possibility that New York authorities might disregard the specific record notation that the transfer should have no effect on good time or parole decisions in regard to Newkirk, “such speculative contingencies afford no basis for our passing on the substantive issues [Newkirk] would have us decide . . . ,” Hall v. Beals, 396 U. S. 45, 49 (1969). The record of events since the challenged transfer hardly bears out a genuine claim of an injury or possible injury “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Casualty Co., 312 U. S., at 273. Newkirk, as noted above, will be eligible for parole within a matter of days. See supra, at 401.
We conclude that the question presented does not fall within that category of harm “capable of repetition, yet evading review,” Southern Pacific Terminal Co. v. ICC, 219 U. S. 498, 515 (1911); Roe v. Wade, 410 U. S. 113, 125 (1973). Accordingly, we vacate the judgment of the Court of Appeals and remand the case to that court with directions that the complaint be dismissed by the District Court. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1960).
It is so ordered.
Mr. Justice Douglas dissents from the holding of mootness and would affirm the judgment below.
New York State has six correctional facilities that are designated as maximum security institutions: Attica, Auburn, Clinton, Green Haven, Ossining, and Great Meadow. Eight facilities, or portions thereof, are designated as medium security institutions: Adirondack, Bedford Hills, Coxsackie, Elmira, Eastern, Fishkill, Tappon, and Wallkill. Six others are designated minimum security institutions: Albion, Bayview, Edgecombe, Parkside, Rochester, and Taconic. There are also four minimum security correctional camps. See 7 NYCRR, pt. 100, §§ 100.1-100.94.
Pet. for Cert. 2. See this Court’s Rule 23 (l)(c).
Tr. of Oral Arg. 7, 22; Brief for Respondent 10.
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer: |
songer_agen_acq | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in civil law issues involving government actors. The issue is: "Did the court rule for the government in an issue related to agency acquisition of information (e.g. physical inspections, searches, subpoenas, records, etc)? 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".
Leon B. McLAIN, Appellant, v. Richard S. SCHWEIKER, Secretary, Department of Health and Human Services, Appellee.
No. 82-1510.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 14, 1983.
Decided Sept. 1, 1983.
Peter M.D. Martin, Baltimore, Md. (Dennis W. Carroll, Judith F. Fournelle, Administrative Law Center,. Legal Aid Bureau, Inc., Baltimore, Md., on brief), for appellant.
Nathan K. Kobin, Dept, of Health and Human Services, Baltimore, Md. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., J. Frederick Motz, U.S. Atty., Baltimore, Md., on brief), for appellee.
Before HALL, MURNAGHAN and SPROUSE, Circuit Judges.
K.K. HALL, Circuit Judge:
Leon B. McLain appeals from an order of the district court, affirming the Secretary’s denial of his claim for disability insurance and Supplemental Security Income benefits under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 416(i); 423(d); 1382 et seq. This denial was based on the determination by the Secretary’s Administrative Law Judge (ALJ) that McLain, while suffering from a nervous disorder and arthritis, was able to perform his previous work activities in a non-stressful environment. The district court found that there was substantial evidence to support the ALJ’s decision.
We agree with the district court that there is substantial evidence to support the finding that McLain was not disabled solely because of his arthritis. But, contrary to the conclusion of the district court, we find that McLain established a prima facie case that his nervous condition disabled him from performing his previous customary work. We also find that the Secretary failed to prove that McLain could engage in alternative work in the national economy. Accordingly, we vacate the judgment of the district court and direct that the ease be remanded to the Secretary for further proceedings consistent with this opinion.
I.
Claimant was 49 years old at the time of the Secretary’s decision and has completed high school, as well as two years of studies at the university level. He was employed as a traveling sales representative for a cheesecake company from 1968 to 1973 and also worked as a security guard for Wells Fargo for seven months in 1977.
At the administrative hearing, McLain testified to the existence of a long-standing nervous disorder and arthritis in his right ankle. According to McLain, he left his job as a salesman with the cheesecake firm because of stress. He stated that he cannot tolerate noise, including telephones, televisions, typewriters, and people singing. McLain further testified that he is afraid of crowds, or even groups of four to five people, and believes that others want to create problems for him. He stated that his private physician was treating his nervous disorder with medication (Azene). In response to questioning by the ALJ, McLain said he would be willing to try sedentary work as a telephone order taker or dispatcher.
According to the uncontradicted medical evidence presented to the ALJ, McLain has a 20-year history of an acute nervous disorder, including institutionalization for psychiatric problems. An internist, Dr. George Angov, who examined McLain in January, 1979, at the request of the Social Security Administration, made reference to McLain’s irritation with noise and people and concluded that his “[inadequate personality will be a major disabling factor.”
McLain was referred by the Social Security Administration to Dr. Katherine V. Kemp, a psychiatrist, in May, 1979. Following this consultative examination, Dr. Kemp reported that McLain had a paranoid-like trend to his thinking and was “a somewhat marginal individual with multiple somatic complaints whose present state of reality testing approaches the psychotic.” It was Dr. Kemp’s opinion that McLain’s preoccupation with his multiple physical complaints was probably the only thing preventing a complete psychotic depressive break. She concluded that McLain could not interrelate with others and would be unable to withstand the pressures of the employment world without strong, supportive psychological treatment.
In the fall of 1979, McLain was seen by another psychiatrist, Dr. U.L. Mallya, who confirmed that interpersonal relationships with others were difficult for McLain. Dr. Mallya’s diagnosis was neurotic depression with anxiety. He alluded to at least one unsuccessful attempt to alleviate McLain’s condition with antidepressant medication.
The ALJ found that McLain’s primary impairment was his nervous disorder, but concluded that McLain was able to perform his previous salesman and security guard work activities in nonstressful environments. The ALJ further noted the existence of sales positions in the area, such as telephone order takers and sedentary security guard positions, which would not involve stress or crowds. Accordingly, the ALJ concluded that McLain could perform his previous work and was, therefore, not disabled. The district court subsequently found that this determination was supported by substantial evidence. From that decision, McLain appeals.
II.
On appeal, McLain contends that he presented a prima facie case of disability by showing that he was unable to perform his previous work. McLain further contends that the Secretary failed to show by particularized proof that McLain could perform an alternative job existing in significant numbers in the national economy. We agree with McLain with respect to. both of these contentions.
The well-established procedure for arriving at a determination of disability under the Social Security Act places the initial burden of proof on the claimant to show that, because of his impairment, he is unable to perform his previous work. Once this prima facie showing of disability has been made by the claimant, then the burden of going forward shifts to the Secretary. To overcome a prima facie case of disability, the Secretary must establish that the claimant has sufficient residual functional capacity to engage in an alternative job existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B); Hall v. Harris, 658 F.2d 260, 264 (4th Cir.1981); Wilson v. Califano, 617 F.2d 1050, 1053 (4th Cir.1980); Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir.1975).
In this case we first must determine whether McLain has met his initial burden of establishing a prima facie case of disability. In addition to his own testimony confirming a history of nervous problems, the record reveals that McLain was being treated with medication for a nervous disorder by his personal physician. He was also examined by three other doctors, including two psychiatrists, who all agreed McLain had a psychiatric problem. One psychiatrist, Dr. Kemp, stated that he was borderline psychotic.
Objective medical facts and the opinions and diagnoses of the treating and examining doctors constitute a major part of the proof to be considered in a disability case and may not be discounted by the ALJ. See Oppenheim v. Finch, 495 F.2d 396 (4th Cir.1974); Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir.1971); Underwood v. Ribicoff, 298 F.2d 850 (4th Cir.1962). In the present case the medical findings and opinions unanimously support the conclusion that McLain has a serious psychiatric disorder. It is clear that McLain’s impairment prevents him from performing the demands of his previous jobs as a salesman and security guard. Both of those jobs by their very nature involved stress and required interaction with others, which, as the evidence overwhelmingly shows, McLain is unable to tolerate. A return to either of those particular jobs is unquestionably foreclosed.
In order to establish a prima facie case of disability, all that a claimant must ordinarily show is his inability to perform his past specific relevant jobs. We conclude that under the circumstances present in this case McLain has met this initial burden of proof. Cf. Wyatt v. Weinberger, 519 F.2d 1285, 1286-87 (4th Cir.1975) (claimant established a prima facie case of disability from nervousness, which prevented her from returning to her former job as a spinner in a textile mill); Taylor v. Weinberger, supra, at 666 (claimant presented a prima facie case of disability by showing she could not return to her former occupation as a clothes presser in a laundry).
Because McLain established his prima facie case, the burden then shifted to the Secretary to come forward with proof of McLain’s capacity to perform alternate work. In this case the Secretary came forward with no evidence showing that, considering McLain’s age, education, work experience and impairment, there are jobs which he could perform. The reliance by the Secretary and the district court on McLain’s testimony that he would be willing and possibly able to try certain jobs is misplaced. This in no way satisfies the requirement of producing evidence of McLain’s skills and abilities and says nothing of the availability of work to match those abilities. The ALJ’s administrative notice of sales positions and. sedentary security guard positions, which would not involve stress or crowds, is totally insufficient in this case to establish, as the Secretary must, McLain’s specific vocational ability.
Previous decisions of this Court have held that the testimony of a vocational expert is ordinarily required in order for the Secretary to meet his burden. Smith v. Califano, 592 F.2d 1235, 1236 (4th Cir.1979); Hall v. Harris, supra, at 264; Taylor v. Weinberger, supra, at 666. We find that the presence of a vocational expert continues to be particularly appropriate in a case such as this, which involves a nonexertional disability. See Wilson v. Califano, supra at 1053-1054. We, therefore, conclude that
the case must be remanded to allow the Secretary to adduce appropriate proof to counter the claimant’s prima facie case. Of course, the claimant may also submit additional evidence to rebut the Secretary’s evidence or to supplement his own.
III.
For the foregoing reasons, the judgment of the district court is vacated and remanded, with instructions to remand to the Secretary for proceedings consistent with this opinion.
VACATED AND REMANDED.
. We recognize that the Supreme Court has recently approved the use of the Secretary’s medical-vocational guidelines in lieu of a vocational expert’s testimony in appropriate cases. Heckler v. Campbell, — U.S.-, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). These guidelines, however, “are predicated on an individual’s having an impairment which manifests itself by limitations in meeting the strength requirements of jobs,” and “may not be fully applicable where the nature of an individual’s impairment does not result in such limitations, e.g., certain mental, sensory, or skin impairments.” 20 C.F.R. Part 404, Subpart P, Appendix 2, § 200.00(e). As the Supreme Court in Campbell points out, “[i]f an individual’s capabilities are not described accurately by a rule, the regulations make clear that the individual's particular limitations must be considered.... Thus, the regulations provide that the rules will be applied only when they describe a claimant’s abilities and limitations accurately.” Campbell, supra at -, n. 5, 103 S.Ct. at 1955, n. 5. See also, id at-, n. 11, 103 S.Ct. at 1958, n. 11. Because McLain has demonstrated the existence of a nonexertional impairment, resort to the medical-vocational guidelines would be inappropriate and the presence of a vocational expert will be required for the Secretary to establish McLain’s alternate vocational capacity. See Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983).
Question: Did the court rule for the government in an issue related to agency acquisition of information (e.g. physical inspections, searches, subpoenas, records, etc)?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_district | H | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, AFL-CIO, CLC, United Food and Commercial Workers Union, Local 222, AFL-CIO, CLC, Unincorporated Associations; William Schmitz, Frank Cassidy, Sally Sanchez, Leroy Bergin, Individuals; Millwright, Machinery & Erectors Local 1463, An Unincorporated Association, Appellees, v. IBP, INC., a Delaware Corporation, K.A. Orr, Governor of the State of Nebraska; Robert Spire, Attorney General; Colonel Harold LeGrande, Superintendent of the State Patrol; Raymond Brown, Commander of the Nebraska State Patrol for the area encompassing Dakota City; James Carmona, Adjutant General of the Nebraska National Guard, Appellants, Kurt A. Hohenstein, Dakota County Attorney.
No. 87-2251.
United States Court of Appeals, Eighth Circuit.
Submitted May 10, 1988.
Decided Sept. 8, 1988.
Douglas Peterson, Asst. Atty. Gen., Lincoln, Neb., for appellants.
Renee L. Bowser, Washington, D.C., for appellees.
Before McMILLIAN, Circuit Judge, ROSS, Senior Circuit Judge, and LARSON, Senior District Judge.
The HONORABLE EARL R. LARSON, Senior United States District Judge for the District of Minnesota, sitting by designation.
LARSON, Senior District Judge.
Three unions and union officials from one of the unions brought this declaratory judgment action challenging the validity of two Nebraska picketing statutes. The district court found a justiciable controversy was presented and ruled both statutes were unconstitutional. The court held the “numbers/distance provision” of Neb.Rev. Stat. § 28 — 1318(1)—(3) constituted a content-neutral regulation of pure speech that was facially overbroad. The court further held the “communications provision” of Neb. Rev.Stat. § 28-1317(l)(a) was a content-based regulation not limited to “fighting words” which violated the First and Fourteenth Amendments.
On appeal, defendant state officials claim there is no case or controversy sufficient to establish jurisdiction and further that limiting constructions are available which would render both statutes constitutional. We find, for the reasons discussed below, that the case is properly before us for decision. We agree with the district court that the numbers/distance provision and the second clause of the communications provision are facially overbroad. We find, however, that the first clause of the communications provision prohibiting “threatening language” is readily subject to a narrowing construction limiting its application to “fighting words.” Accordingly, we uphold the “threatening” clause of section 28-1317(l)(a).
I. FACTS
Plaintiffs United Food and Commercial Workers International Union and United Food and Commercial Workers Local 222 (“the union”) have represented workers at the IBP, Inc., beef processing plant in Dakota City, Nebraska, for many years. In 1982, union members went out on strike after negotiators were unable to reach agreement on a contract with IBP officials. During the strike, the Dakota County Attorney specifically informed the union that Nebraska’s mass picketing law would be enforced. Violence erupted, and numerous arrests were made. Some picketers were charged with violating the numbers/distance provision of Neb.Rev.Stat. § 28 — 1318(1)—(3), which prohibits “any form of picketing in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets.”
At the end of 1986, the union again engaged in a labor dispute with IBP. Prior to the expiration of the collective bargaining agreement in December, 1986, union representatives met with state law enforcement officials to discuss strike procedures in the event of another strike. Union representatives expressed their view that the provisions of the Nebraska mass picketing law were unconstitutional, based upon a federal district court decision striking down similar provisions of Texas law. The Dakota County Attorney told the union that until the Nebraska law was found unconstitutional or the law was changed, he would have to enforce it. Officials from the Nebraska State Patrol said nothing to contradict the county attorney’s position regarding the statutes, and specifically did not disavow an intention to enforce the law during the ensuing labor dispute.
In December, 1986, IBP locked out the Dakota City employees, and the union went on strike. During the strike, the county attorney notified the union both orally and in writing of his power and responsibility to enforce the mass picketing law. He informed the union that he would not literally enforce the law unless there were “problems,” and, acting in cooperation with the Nebraska State Patrol, he determined the allowable parameters of the union’s picketing activity. At times, he denied the union access to the side of the plant where employees would exit after work. Other times, he allowed technical violations of the law to occur. For example, he located the union’s picket shacks closer than fifty feet to each other, and he permitted 25 to 26 demonstrations to occur, subject to guidelines he had imposed.
All of the union’s picketing activity was subject to his approval, however, and because of their fear of arrest, union members picketed within the confines of the county attorney’s directions. No arrests or prosecutions under the challenged statutes occurred, and the dispute between the union and IBP was eventually resolved.
In April, 1987, plaintiff Millwright, Machinery & Erectors Local 1463 conducted an area standards picket protesting the payment of less than union scale wages at the United Parcel building in Omaha, Nebraska. The union and its picketers were aware of the Nebraska mass picketing statutes and picketed within the restrictions imposed by the numbers/distance provision. The company marked fifty foot intervals at the site and a police officer reviewed the location of the pickets during the strike. No arrests or threats of arrest were made. Approximately one week after commencing picketing, the union discontinued its activities because it perceived that picketing within the statutory restrictions was ineffective. A union official testified that picketing would be resumed in furtherance of the union’s area standards message were it not for the limitations imposed by the numbers/distance provision.
II. JUSTICIABILITY
Pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, plaintiffs sought a declaration from the district court that both the numbers/distance and the communications provisions of the Nebraska mass picketing law were unconstitutional. Relief under the Declaratory Judgment Act is available only when an “actual controversy” is presented. This statutory limitation is equivalent to the constitutional limitation that federal courts may exercise jurisdiction only over actual “cases or controversies.” U.S. Const. art. III, § 2 cl. 1; Steffel v. Thompson, 415 U.S. 452, 458, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir.1978).
A “case or controversy” is presented when the “conflicting contentions of the parties ... present a real, substantial controversy between parties having adverse legal interests, a dispute definite and concrete, not hypothetical or abstract.” Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979) (citing Railway Mail Ass’n v. Corsi, 326 U.S. 88, 93, 65 S.Ct. 1483, 1487, 89 L.Ed. 2072 (1945)). The difference between an abstract question and a “case or controversy” is necessarily one of degree and must be determined by a review of the facts presented in each case. Babbitt, 442 U.S. at 297, 99 S.Ct. at 2308; Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).
After considering the circumstances presented in this case, the district court held there was a justiciable case or controversy because plaintiff unions possessed the requisite standing and the issues were not moot. The doctrines of standing and mootness are distinct but related aspects of justiciability under Article III.
The doctrine of standing focuses on whether the plaintiff before the court is the proper party to request adjudication of a particular issue. Flast v. Cohen, 392 U.S. 83, 99-100, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968); Defenders of Wildlife v. Hodel, 851 F.2d 1035, 1038 (8th Cir.1988). The purpose of the standing requirement is to ensure the parties have “such a stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.” Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 (1962); McLain v. Meier, 851 F.2d 1045, 1048 (8th Cir.1988). In order to establish they have standing to sue, plaintiffs must show they have suffered “some actual or threatened injury” fairly traceable to the challenged conduct of the defendants that is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982); Defenders of Wildlife, at 1039; McLain, at 1048.
Plaintiffs must possess the requisite injury with respect to each of the statutes they wish to challenge. See Babbitt, 442 U.S. at 292, 99 S.Ct. at 2305. Defendants argue there is no actual or threatened injury in this case because no picketers were arrested, prosecuted, or threatened with prosecution during the United Food and Commercial Workers’ most recent picketing activities, even though violations of the numbers/distance provision occurred at the IBP site. This argument misapprehends the nature of the injury in fact requirement. Plaintiffs need not expose themselves to actual arrest or prosecution if they legitimately possess more than an “imaginary or speculative” fear of prosecution. Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309; Steffel, 415 U.S. at 459, 94 S.Ct. at 1215.
In Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974), the Court found an actual controversy where a plaintiff had twice been warned to stop distributing handbills and had been told that, if he continued to pass out leaflets, he would likely be prosecuted. His companion was in fact prosecuted, and the Court held this evidence constituted “ample demonstration that petitioner’s concern with arrest has not been ‘chimerical.’ In these circumstances, it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Id. at 459, 94 S.Ct. at 1215-1216. But for the existence of the challenged statute, the petitioner would have continued his leafleting activities; his injury was sufficiently concrete to confer standing.
The Tenth Circuit has also found sufficient injury to confer standing where a plaintiff refrained from continuing conduct which had precipitated past arrest for fear of rearrest. Wilson v. Stocker, 819 F.2d 943, 946 (10th Cir.1987). The court found the plaintiff suffered not only the threat of future prosecution, but an ongoing injury resulting from the statute’s chilling effect on his desire to exercise his First Amendment rights. Id. Other courts have found sufficient threatened injury to confer standing even when government officials disclaimed an intention to prosecute because of concerns about a statute’s constitutionality, because they would not rule out such prosecution. See KVUE, Inc. v. Moore, 709 F.2d 922, 928-30 (5th Cir.1983), aff'd, 465 U.S. 1092, 104 S.Ct. 1580, 80 L.Ed.2d 114 (1984).
In this ease, the county attorney indicated clearly to the United Food and Commercial Workers Union his authority to enforce the picketing laws and acted throughout the union’s strike against IBP to curtail the union’s picketing activities. Union official William Schmitz testified that but for the existence of the Nebraska picketing statutes and the county attorney’s statements regarding enforcement, the union would have had more people picketing, would have had more people stationed at the entrances to the plant, and would have held more demonstrations. Schmitz limited picketing activities and organized picketers in accordance with the county attorney’s directions to avoid “problems,” which the county attorney had warned would trigger enforcement of the statutes. Union members had reason to fear arrest based upon past experience: members had been arrested and prosecuted for violation of the numbers/distance provision in 1982. Contrary to defendants’ argument, we believe such past experience is relevant to determining the existence of a present threatened injury. See City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 2508 n. 7, 96 L.Ed.2d 398 (1987); O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 676, 38 L.Ed.2d 674 (1974); Wilson, 819 F.2d at 946.
Past arrests or threats of arrest, while relevant, are not necessary to establish the justiciability of plaintiffs’ claim, however, and we reject defendants’ contention that the lack of any previous arrests under the communications provision precludes plaintiffs’ current challenge to that statute. Where plaintiffs allege an intention to engage in a course of conduct arguably affected with a constitutional interest which is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement.
In Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968), for example, the Supreme Court accepted jurisdiction over a school teacher’s challenge to an Arkansas law which prohibited the teaching of the theory of evolution or the use of any textbook that teaches the theory. School administrators had selected a coursebook containing a chapter on evolution for use in the next academic year. Although the statute had never been enforced, the Court reached the merits of plaintiff’s challenge, finding she faced “at least a literal dilemma because she was supposed to use the new textbook ... but to do so would be a criminal offense and subject her to dismissal.” Id. at 100-02, 89 S.Ct. at 268-69.
In Doe v. Bolton, 410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201 (1973), the Court also found a justiciable controversy and held physicians had standing to challenge Georgia statutes which made abortion a crime “despite the fact that the record does not disclose that any one of them has been prosecuted, or threatened with prosecution, for violation of the State’s abortion statutes.” Id. at 188, 93 S.Ct. at 745. See Carey v. Population Services International, 431 U.S. 678, 682-84, 97 S.Ct. 2010, 2014-15, 52 L.Ed.2d 675 (1977); Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 504-08, 92 S.Ct. 1749, 1754-56, 32 L.Ed.2d 257 (1972).
Lower courts have followed suit. The Fifth Circuit has flatly stated: “[tjhat the statute has not been enforced and that there is no certainty that it will be does not establish the lack of a case or controversy.” KVUE, Inc., 709 F.2d at 930. See International Society for Krishna Consciousness v. Eaves, 601 F.2d 809, 817-19 (5th Cir.1979). This court has also entertained constitutional challenges where the statute clearly applies to the plaintiff, and the plaintiff has stated a desire not to comply with its mandate. See Pursley v. City of Fayetteville, 820 F.2d 951, 953, 957 (8th Cir.1987); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir.1978).
Commentators agree with this result: “[wjhere the enforcement of a regulatory statute would cause plaintiff to sustain a direct injury, the action may properly be maintained, whether or not the public officer has ‘threatened’ suit; the presence of the statute is threat enough,” at least where the challenged statute is not moribund. 6A Moore’s Federal Practice, paragraph 57.18[2] at 57-189 (2d ed. 1987). See Seattle School District No. 1 v. Washington, 633 F.2d 1338, 1342 n. 1 (9th Cir.1980), aff'd, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982).
In Babbitt v. United Farm Workers National Union, 442 U.S. 289, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979), the Supreme Court found a case or controversy presented by a union’s challenge to the consumer publicity provisions of a comprehensive statute governing agricultural employment relations in circumstances very similar to those presented by the union’s challenge to the communications provision in this case. The publicity provision prohibited the use of “dishonest, untruthful and deceptive publicity.” The union had engaged in publicity campaigns, had alleged an interest in continuing to do so, and claimed that “erroneous statement [was] inevitable in free debate.” Id. at 301, 99 S.Ct. at 2310 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 271, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964)). Defendants argued the unfair labor practice of dishonest consumer publicity may never be prosecuted as a criminal violation, but the Court found a case or controversy presented based upon the union’s contention that its members were being forced to forgo the full exercise of their First Amendment rights. Id. at 302, 99 S.Ct. at 2310.
The communication provision in the case at bar prohibits the interference or attempted interference with persons in the exercise of their right to work by using threatening language or by persisting in talking to or communicating in any manner with them for the purpose of influencing or attempting to influence them to quit their employment. Neb.Rev.Stat. § 28-1317(l)(a). The provision plainly circumscribes union members’ speech to strikebreakers, and the union alleges that its members’ knowledge of the statute, combined with the restrictions imposed on access to the entrance used by working IBP employees during the most recent strike, effectively curtailed the striking workers’ right to communicate with workers hired by IBP to replace them and caused them to forgo the full exercise of their First Amendment rights.
Despite the obvious parallels with Babbitt, defendants distinguish the circumstances in Babbitt from those presented here on the ground that in Babbitt the state had not disavowed any intention of invoking the statute against the union, whereas in this case the state has submitted affidavits of the Major General of the Nebraska National Guard, the Colonel of the Nebraska State Patrol, and the Attorney General which state the above officials have no “present plan” to enforce either the numbers/distance or the communications provisions of the Nebraska picketing law in the labor dispute between the union and IBP. The district court rejected this evidence as showing “no more than a hesitant, qualified, equivocal and discretionary present intention not to prosecute,” the clear implication of which was that the state’s position could well change.
We too reject defendants’ argument that their affidavits deprive the court of jurisdiction to decide plaintiffs’ claims. It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 1074, 71 L.Ed.2d 152 (1982); United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953).
Thus, in City of Mesquite, the Supreme Court refused to dismiss a constitutional challenge to an ordinance which had been repealed, since the Court found the repeal “would not preclude [the city] from reenacting precisely the same provision if the District Court’s judgment were vacated.” 455 U.S. at 289, 102 S.Ct. at 1075. See Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir.1985). Other courts have refused to dismiss cases where a governmental body discontinued a wrongful practice and promised not to resume it, since “[p]resent intentions may not be carried out,” and “it is not certain that changes in leadership or philosophy might not result in reinstitution of the [challenged] policy.” Phillips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 569-70 (3d Cir.1981), cert. denied, 455 U.S. 924, 102 S.Ct. 1284, 71 L.Ed.2d 466 (1982). See Solomon v. City of Gainesville, 763 F.2d 1212, 1213 (11th Cir.1985) (city commission’s direction to discontinue any and all prosecutorial action now and in the future with respect to plaintiffs activities does not deprive court of jurisdiction).
Defendants in this case did not disclaim their intent to enforce the Nebraska picketing statutes until the day of the hearing on the union’s motion for a temporary restraining order, and then said only they had no present intention to enforce the statutes with respect to the then-current dispute between IBP and the union. Because defendants — even by their own statements — are “free to return to [their] old ways,” the public interest in having the legality of the statutes settled prevents a finding of nonjusticiability in this case. City of Mesquite, 455 U.S. at 289 n. 10, 102 S.Ct. at 1074 n. 10; W.T. Grant & Co., 345 U.S. at 632, 73 S.Ct. at 897. See 13A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, § 3533.7 at 359 (1984).
Both the numbers/distance and communications provisions by their terms apply directly to plaintiffs’ picketing activity. Plaintiffs have picketed in the past and been subjected to threats of arrest as well as actual arrest under the numbers/distance provision. They will very likely picket again, and when they do, they desire to engage in conduct violative of both provisions, yet arguably protected by the constitution. The statutes are not moribund and the state’s only disclaimer of enforcement does not by its terms apply to future strike activity. Under these circumstances, we find that plaintiffs are not simply attempting to obtain an advisory opinion or to enlist the court in a general effort to purge the Nebraska statute books of unconstitutional legislation. Rather, we find their interests sufficiently adverse to the defendants with respect to both the numbers/distance and the communications provisions to present a case or controversy within the court’s jurisdiction.
III. THE MERITS
We turn now to the merits of plaintiffs’ challenge. We first consider the numbers/distance provision of Neb.Rev. Stat. § 281318(1) — (3), which prohibits as “mass picketing” any form of picketing “in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets.”
Originally enacted in 1949, Neb.Rev.Stat. § 28-1318 has never been authoritatively construed by the Nebraska courts. The district court construed the numbers/distance provision as a time, place, and manner restriction on expressive activities in a public forum. Recognizing a legitimate state interest in the regulation of violence, the court nonetheless found there was no clear danger of violence presented by the type of picketing prohibited, i.e., two persons standing within fifty feet of each other or within fifty feet of a company entrance. Moreover, the court held the state had failed to show the statute was the least restrictive means of preventing violence, noting the state had ample alternative means of achieving this end. The court thus concluded section 28-1318’s numbers/distance provision was facially over-broad.
Defendants challenge this conclusion on appeal, arguing primarily that a narrowing construction of the statute could be adopted which would avoid the constitutional difficulties. Defendants suggest the numbers/distance provision could be interpreted to apply only when picketing has become violent or involves violence. Ami-cus urges the court to read the fifty foot formula as applicable only when ingress or egress is obstructed.
We recognize that the overbreadth doctrine is “strong. medicine” to be employed “sparingly and only as a last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973). A statute is not overbroad unless the overbreadth is not only real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep. Id. at 615, 93 S.Ct. at 2917. See Boos v. Barry, — U.S. -, 108 S.Ct. 1157, 1168, 99 L.Ed.2d 333 (1988); City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 2508, 96 L.Ed.2d 398 (1987). Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute. Boos, 108 S.Ct. at 1168-69; Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916.
Thus, a state statute should be deemed facially invalid only if (1) it is not readily subject to a narrowing construction by the state courts and (2) its deterrent effect on legitimate expression is both real and substantial. Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125 (1975). In considering the possibility of a narrowing construction, however, the court must bear in mind that federal courts are generally without authority to construe or narrow state statutes. Boos, 108 S.Ct. at 1168; Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972); Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). “Federal courts ‘do not sit as a ‘super’ state legislature, [and] may not impose [their] own narrowing construction ... ’ if the state courts have not already done so.” Hill v. City of Houston, 789 F.2d 1103, 1112 (5th Cir.1986), aff'd, — U.S. -, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987).
In Boos v. Barry, — U.S. -, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988), the Supreme Court considered the constitutionality of a provision of the D.C.Code which prohibited congregating within 500 feet of an embassy and refusing to leave after being ordered to do so by law enforcement officials. The Court of Appeals had narrowly construed the statute to apply only to situations in which “the police reasonably believe that a threat to security or peace of the embassy is present.” Id. 108 S.Ct. at 1168. The Supreme Court approved this narrowing construction, emphasizing that the D.C.Code could properly be narrowed by the Court of Appeals since it was enacted by Congress, not by a state legislature, and federal courts had both the power and the duty to adopt narrowing constructions of federal legislation. Id. at 1168-69.
Our role in this case, given that we are presented with a challenge to a state statute which has not been authoritatively construed, is to determine whether the constructions of section 1318’s numbers/distance provision urged by defendants and amicus are “reasonable and readily apparent.” Id. at 1168. See Hill v. City of Houston, 789 F.2d at 1112. After careful examination, we conclude they are not.
Nothing in the language of section 1318 suggests the fifty foot limitations apply only in circumstances of violence or in situations where ingress or egress is being restricted. In fact, the language of the statute suggests to the contrary, since to hold the limitations applied only where ingress or egress is restricted would render superfluous that portion of the statute specifically directed to restrictions on ingress or egress. See Neb.Rev.Stat. § 28-1318(1). Nebraska courts consider all parts of an act relating to the same subject in construing a particular statute, and will interpret each part so as to avoid rejection of a sentence, clause, or word as superfluous, since the legislature is presumed to have intended every provision of a statute to have meaning. See, e.g., Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173, 177 (1985); Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186, 188 (1984).
The available legislative history of section 1318 is inconclusive. While it suggests legislators were concerned with the violence and restrictions on access to premises which had occurred in prior strikes in Omaha, it also reveals an awareness that the statute’s reach was broader than those concerns. See Minutes of the Senate Government Committee Meeting, March 23, 1949. Finally, there is no consistent enforcement history which supports the narrowing construction urged by the state, and the record reveals the statute has been literally enforced at least as recently as 1982.
Under these circumstances, we find it beyond our power as a federal court to rewrite the broad, straightforward language of the numbers/distance provision to avoid the constitutional difficulties presented by the plain meaning of its terms. See City of Houston, 107 S.Ct. at 2513-15; Lewis v. City of New Orleans, 415 U.S. 130, 134, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974). We agree with the district court that as written section 28-1318’s numbers/distance provision is facially over-broad. See Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 558-61 (5th Cir.1988) (striking down similar provision of Texas law).
Plaintiffs also challenge the communications provision of section 1317(l)(a), which penalizes the interference or attempted interference with any person’s exercise of his or her lawful right to work or right to enter upon or pursue any lawful employment by (1) using threatening language toward such person or the person’s family for the purpose of influencing such person to quit or refrain from seeking certain employment, or (2) by persisting in talking to or communicating in any manner with such person or members of the person’s family against their will for a similar purpose.
In view of the other provisions of the statute which govern conduct, see Neb.Rev. Stat. §§ 28-1317(1)(b)-(e) (1985), we agree with the district court that the communications provision is clearly intended to apply to matters of speech. See City of Houston, 107 S.Ct. at 2508-09; United States v. Grace, 461 U.S. 171, 176, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736 (1983); Cohen v. California, 403 U.S. 15, 18-19, 91 S.Ct. 1780, 1784-85, 29 L.Ed.2d 284 (1971). That the speech is unwelcome does not deprive it of protection. See NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982); Cohen, 403 U.S. at 26, 91 S.Ct. at 1788; Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1577, 29 L.Ed.2d 1 (1971).
“Speech is often provocative and chal-lenging_ [But it] is nevertheless protected against censorship or punishment unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” City of Houston, 107 S.Ct. at 2509 (citing Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 896, 93 L.Ed. 1131 (1949)). “[A] function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminello, 337 U.S. at 4, 69 S.Ct. at 896.
The government may regulate speech in a public forum only if the restrictions “are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication.” Grace, 461 U.S. at 177, 103 S.Ct. at 1707 (citations omitted). “Additional restrictions such as an absolute prohibition on a particular type of expression will be upheld only if narrowly drawn to accomplish a compelling governmental interest.” Id. For the state to enforce a content-based exclusion, it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Frisby v. Schultz, — U.S. -, -, 108 S.Ct. 2495, 2499-2500, 101 L.Ed.2d 420 (1988) (citing Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983)). When a regulation allegedly infringes upon the exercise of First Amendment rights, “the proponent of the regulation must demonstrate that the government’s objectives will not be served sufficiently by means less restrictive of first amendment freedoms.” ACORN v. City of Frontenac, 714 F.2d 813, 818 (8th Cir.1983).
. The pivotal issue in this appeal with respect to the communications provision is whether the provision is readily susceptible to a construction which is narrowly tailored to achieve the state’s interest in preventing violence. Defendants argue section 1317(l)(a) can be construed to apply only to “fighting words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 569, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942). So construed, the statute would not be facially overbroad, since “such utterances are of no essentia] part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Id.
As with section 1318, our role is not to redraft the statute, but rather to “extrapolate its allowable meaning.” Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1972). See Boos, 108 S.Ct. at 1168. Absent any authoritative construction of section 1317(1)(a) by the Nebraska courts, we begin with an analysis of its language. The statute contains two clauses. The first prohibits “[u]sing threatening language” to induce a person not to exercise his or her lawful right to work; the second prohibits “persisting in talking to or communicating in any manner with” such person against their will for a similar purpose.
The Fifth Circuit recently considered the constitutionality of a statute very similar to the “threatening” clause of section 1317(1)(a) in Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544, 561-63 (5th Cir.1988). The statute at issue in Gault made it unlawful to interfere or seek to interfere with a person’s right to work by using “insulting, threatening or obscene language.”
Like the case at bar, the Fifth Circuit did not have the benefit of an authoritative limiting construction by the Texas courts, but it did have the benefit of two state court cases narrowing the application of related provisions of Texas’ picketing laws to give “ample breathing room to First Amendment rights.” Sherman v. State, 626 S.W.2d 520, 525-27 (Tex.Crim.App.1981); Dallas General Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879 (1956). Based upon the reasoning of these decisions, as well as the presumption of constitutionality accorded statutes under Texas law, the court held “the only feasible construction of article 5154d § 2 is that its reach is limited to ‘fighting words’ as that term is defined by Chaplinsky standards.” Gault, 848 F.2d at 563.
We do not have the benefit of any Nebraska Supreme Court cases similar to those relied upon in Gault. Like Texas, however, the Nebraska Supreme Court has stated that it will construe a statute, whenever possible, so as to render the statute constitutional. See, e.g., State v. Burke, 225 Neb. 625, 408 N.W.2d 239, 246 (1987); Nebraska Public Power District v. City of New York, 212 Neb. 747, 326 N.W.2d 22, 29 (1982). Cf. Frisby v. Schultz, — U.S. -, -, 108 S.Ct. 2495, 2501, 101 L.Ed.2d 420 (1988) (rejecting broad reading of ordinance as running afoul of “well-established principle that statutes will be interpreted to avoid constitutional difficulties”). Nebraska courts will also “look to the statutory objective to be accomplished, the problem to be remedied, or the purpose to be served” by a statute, and then will place on the statute a “reasonable construction which best achieves its purpose.” State v. Burnett, 227 Neb. 351, 417 N.W. 2d 355, 357 (1988); Rosnick v. Marks, 218 Neb. 499, 357 N.W.2d 186, 188 (1984).
Applying these principles to the case at bar, we find no basis for disagreeing with the conclusion reached by the Fifth Circuit in Gault. Unlike section 1318’s broad prohibition of any congregation of people, intended at best to eliminate the potential for violence, the “threatening” clause of section 1317 is directed at a specific harm. The word “threat” means “a communicated intent to inflict physical or other harm on any person or on property;” “an expression of intention to inflict evil, injury or damage.” Black’s Law Dictionary (5th ed. 1979); Webster’s Seventh New Collegiate Dictionary (1965). Synonyms for “threaten” include “to warn or terrorize.” W. Stasky, West’s Legal Thesaurus/Dictionary (1986). No great leap is required to interpret the words “threatening language” in section 1317(l)(a) as consistent with those “fighting words” which by their very utterance inflict injury or tend to incite an immediate breach of the peace.
While not authoritative, defendant state officials’ position that section 1317(1)(a) is limited to “fighting words” is entitled to some deference, particularly since there has been no enforcement of the “threatening” clause inconsistent with defendants’ proposed construction. See Frisby v. Schultz, — U.S. at -, 108 S.Ct. at 2500-01 (adopting limiting construction of ordinance proposed by town’s attorney); id. at -, 108 S.Ct. at 2505 (White, J., concurring) (noting Court has relied on reliable representations of state and federal officials as to how a statute will be enforced); Grayned v. City of Rockford, 408 U.S. 104, 110, 92 S.Ct. 2294, 2300, 33 L.Ed.2d 222 (1971) (interpretation of statute given by those charged with enforcing it entitled to some deference). Cf. Gooding v. Wilson, 405 U.S. 518, 524, 92 S.Ct. 1103, 1107, 31 L.Ed.2d 408 (1972) (history of broad enforcement negated narrowing construction).
Thus, we conclude there is every reason to believe the Nebraska courts would in fact construe the “threatening” clause as defendants allege. Limited to “fighting words,” we hold this clause is not substantially overbroad, and we reverse the district court’s decision to the contrary.
We reach a different conclusion, however, with respect to the second clause of section 1317(l)(a). This clause applies by its terms to “talking or communicating in any manner with” any person in an effort to persuade that person to quit or refrain from seeking certain employment. As the plaintiffs point out, the “talking” clause could be applied to peaceful requests to honor a picket line, to attempts to inform strikebreakers of the union’s grievances, and to general calls for worker solidarity. Limiting so broad a clause to “fighting words” requires more than judicial construction, it requires judicial redrafting, a task the Nebraska courts have refused to undertake:
It is not within the province of the court to read a meaning into a statute that is not warranted by the legislative language. Neither is it within the province of a court to read anything plain, direct, and unambiguous out of a statute.
County of Douglas v. Board of Regents, 210 Neb. 573, 316 N.W.2d 62, 65 (1982). See Sorensen v. Meyer, 220 Neb. 457, 370 N.W.2d 173, 177 (1985).
We too find it beyond our power to rewrite the “talking” clause as defendants suggest. This holding is supported by several Supreme Court cases in which the Court has refused to narrow to “fighting words” statutes far more restrictive than the “talking” clause of section 1317(1)(a). In City of Houston v. Hill, — U.S. -, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987), for example, the Court rejected the City of Houston’s argument that an ordinance making it unlawful to “in any manner oppose, molest, abuse or interrupt any policeman” was limited to “fighting words,” noting the ordinance on its face included speech that “in any manner interrupt[s]” an officer. Id. 107 S.Ct. at 2509-10. In other cases the Court has refused to narrow to “fighting words” statutes which made it unlawful for any person “wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police,” Lewis v. City of New Orleans, 415 U.S. 130, 132, 94 S.Ct. 970, 972, 39 L.Ed.2d 214 (1974), or which penalized the use of “opprobrious words or abusive language, tending to cause a breach of the peace.” Gooding, 405 U.S. at 519, 522-27, 92 S.Ct. at 1104, 1106-08. Section 1317(1)(a)’s prohibition on “persisting in talking to or communicating with” people is much farther from “fighting words” than the above statutes considered by the Supreme Court.
We thus reject defendants’ proposed construction of the second clause of section 1317(l)(a), and agree with the district court that as written this clause plainly runs afoul.of the First Amendment.
IV. CONCLUSION
For all of the foregoing reasons, we find the district court properly exercised its jurisdiction to entertain plaintiffs’ challenge to the Nebraska picketing laws. We affirm the court’s judgment that the “numbers/distance” provision of section 1318(1) and the “talking” clause of section 1317(1)(a) are facially overbroad, and hence, unconstitutional. Because we find the “threatening” clause of section 1317(1)(a) is readily susceptible to a construction limiting its application to “fighting words,” we reverse the district court’s judgment as to this provision, and hold that, as limited, the “threatening” provision of section 1317(1)(a) is not substantially overbroad.
. Appellees are the Governor of Nebraska, the Attorney General of Nebraska, the Superintendent of the Nebraska State Patrol, the Commander of the Nebraska State Patrol for the area encompassing Dakota City, and the Adjutant General of the Nebraska National Guard. The County Attorney of Dakota County declined to join in the appeal. Defendant IBP, Inc., was dismissed by the district court as a defendant, and no appeal has been taken from this dismissal.
. Neb.Rev.Stat. § 28-1318(l)-(3) (1985), provides as follows:
(1) Mass picketing shall mean any form of picketing in which there are more than two pickets at any one time within either fifty feet of any entrance to the premises being picketed or within fifty feet of any other picket or pickets, or in which pickets constitute an obstacle to the free ingress and egress to and from the premises being picketed or any other premises, or upon the public roads, streets, or highways, either by obstructing by their persons or by the placing of vehicles or other physical obstructions.
(2) A person commits the offense of mass picketing if singly or in concert with others, he engages in or aids and abets any form of picketing activity that shall constitute mass picketing as defined in subsection (1) of this section.
(3) Mass picketing is a Class III misdemeanor. Each violation shall constitute a separate offense.
. Nash v. Texas, 632 F.Supp. 951 (E.D.Tex.1986), aff’d in part, rev’d in part sub nom., Nash v. Chandler, 848 F.2d 567 (5th Cir.1988). See Howard Gault Co. v. Texas Rural Legal Aid, Inc., 848 F.2d 544 (5th Cir.1988).
. The "communications provision,” Neb.Rev. Stat. § 28-1317(l)(a) (1985), provides as follows:
(1) A person commits the offense of unlawful picketing if, either singly or by conspiring with others, he interferes, or attempts to interfere, with any other person in the exercise of his or her lawful right to work, or right to enter upon or pursue any lawful employment he or she may desire, in any lawful occupation, self-employment, or business carried on in this state, by
(a) Using threatening language toward such person or any member of his or her immediate family, or in his, her or their presence or hearing, for the purpose of inducing or influencing, or attempting to induce or influence, such person to quit his or her employment, or to refrain from seeking or freely entering into employment, or by persisting in talking to or communicating in any manner with such person or members of his or her immediate family against his, her or their will, for such purpose.
. The Declaratory Judgment Act, 28 U.S.C. § 2201, provides:
In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.
. An association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. New York State Club Ass’n, Inc. v. City of New York, — U.S. -, -, 108 S.Ct. 2225, 2231, 101 L.Ed.2d 1 (1988) (citing Hunt v. Washington Apple Advertising Comm'n, 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977)).
. Since plaintiff Millwright, Machinery & Erectors Local 1463 has not been subject to, has not engaged in, and has not alleged any interest in engaging in conduct allegedly violative of the communications provision, for purposes of this appeal, we consider only whether plaintiff United Food and Commercial Workers unions have standing to sue. Because we find they do, we need not consider the standing of the union officials. See Babbitt v. United Farm Workers National Union, 442 U.S. 289, 299 n. 11, 99 S.Ct. 2301, 2309 n. 11, 60 L.Ed.2d 895 (1979).
. The Court also found the union’s challenge to the statute's election procedures and criminal penalty provisions justiciable, holding the union "should not be expected to pursue their collective activities at their peril.” Babbitt, 442 U.S. at 303, 99 S.Ct. at 2311. See id. at 299-300, 302-03, 99 S.Ct. at 2309, 2310-11. The Court refused to find a case or controversy with respect to two other provisions, one of which the district court had reviewed on its own motion, the other of which presented too much conjecture concerning its potential application. Id. at 303-05, 99 S.Ct. at 2311-12.
Although the Court’s analysis focused on whether there was a “case or controversy,” the discussion suggests a merging of the issues of standing and case or controversy for purposes of decision in that case. See id. at 299 n. 11, 99 S.Ct. at 2309 n. 11.
. While cases discussing a defendant’s voluntary cessation of a challenged practice analyze the issue as one of mootness, we find such cases relevant to determining the effect of defendants’ affidavits in this case. "Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 1383, 59 L.Ed.2d 642 (1979). A case is moot only when there is no reasonable expectation that the challenged activity will recur, an inquiry similar to whether a plaintiff lacks standing because there is no "credible threat of prosecution.” Babbitt, 442 U.S. at 298, 99 S.Ct. at 2309.
Defendants do not argue that the settlement of the labor dispute between IBP and the union renders the case moot or otherwise deprives the court of jurisdiction, and we agree with the district court that a labor dispute of this type, given the strike-filled history of the parties’ relationship and the union’s continued representation of IBP workers, falls within the "capable of repetition, yet evading review” exception to the mootness doctrine. See Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122-27, 94 S.Ct. 1694, 1698-1700, 40 L.Ed.2d 1 (1974).
.In fact, in this case, the union was subject to strict enforcement of the numbers/distance provision in 1982, was threatened with such enforcement by a new county attorney in 1986, and then the same attorney later decided to enforce the statute strictly only if there were "problems.”
. See n. 2, infra.
. The court cited section 28-1318(l)’s prohibition on the obstruction of ingress and egress to and from the premises being picketed, and provisions of section 28-1317 prohibiting, inter alia, assault or threatening behavior in connection with picketing activities, as well as provisions of the state criminal law prohibiting assault and disturbing the peace. See Neb.Rev.Stat. §§ 28-1322 and 28-308, 309, and 310.
. The district court took judicial notice of a more recent prosecution, but we are unable to determine from the record before us the circumstances of this prosecution. The record does, however, establish that in 1982 arrests were made for failure to comply literally with the fifty foot formula. William Schmitz testified that if two strikers “wandered together to borrow a cigarette from each other, they were threatened with arrest.” He also testified that police would wake sleeping picketers late at night and would threaten them with arrest if they remained within fifty feet of each other.
. See n. 4, infra.
.These sections penalize the interference or attempted interference with a person’s exercise of his or her right to work by
(b) Following or intercepting such person from or to his work, from or to his home or lodging, or about the city, against the will of such person, for such purpose; or
(c) Menacing, threatening, coercing, intimidating, or frightening in any manner such person for such purpose; or
(d) Committing an assault upon such person for such purpose; or
(e) Picketing or patrolling the place of residence of such person, or any street, alley, road, highway, or any other place where such person may be, or in the vicinity thereof, for such purpose, against the will of such person.
. See n. 4, infra.
. Article 5154d § 2 provides:
It shall be unlawful for any person ... by use of insulting, threatening or obscene language, to interfere with, hinder, obstruct or intimidate, or seek to interfere with, hinder, obstruct, or intimidate, another in the exercise of his lawful right to work, or to enter upon the performance of any lawful vocation, or from freely entering or leaving any premises.
Tex.Labor Code Ann., art. 5154d § 2 (Vernon 1987).
. In Wamix, the Texas Supreme Court dissolved an injunction against striking workers, holding such an injunction could not lie to prohibit references to working employees as “damned scabs,” but could only reach intimidating or coercive speech. 295 S.W.2d at 879. In Sherman, the court held article 5154d § 1(2), which prohibited the obstruction of ingress and egress to the entrance of any premises, was limited to situations where passage was either severely restricted or completely blocked. 626 S.W.2d at 525-27. See Cameron v. Johnson, 390 U.S. 611, 615-17, 88 S.Ct. 1335, 1337-38, 20 L.Ed.2d 182 (1968).
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
sc_issuearea | J | 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.
Frederick L. ALLEN, et al., Petitioners
v.
Roy A. COOPER, III, Governor of North Carolina, et al.
No. 18-877
Supreme Court of the United States.
Argued November 5, 2019
Decided March 23, 2020
Susan Freya Olive, David L. McKenzie, Olive & Olive, P.A., G. Jona Poe, Jr., Poe Law Firm, PLLC, Durham, NC, Derek L. Shaffer, Kathleen Lanigan, Quinn Emanuel Urquhart & Sullivan, LLP, Washington, DC, Todd Anten, Ellyde R. Thompson, Lisa M. Geary, Joanna E. Menillo, Quinn Emanuel Urquhart & Sullivan, LLP, New York, NY, for Petitioners.
Joshua H. Stein, Attorney General of North Carolina, Matthew W. Sawchak, Solicitor General, Ryan Y. Park, Deputy Solicitor General, Nicholas S. Brod, Assistant Solicitor General, North Carolina Department of Justice, Raleigh, NC, for Respondents.
Justice KAGAN delivered the opinion of the Court.
In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank , 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion.
I
In 1717, the pirate Edward Teach, better known as Blackbeard, captured a French slave ship in the West Indies and renamed her Queen Anne's Revenge . The vessel became his flagship. Carrying some 40 cannons and 300 men, the Revenge took many prizes as she sailed around the Caribbean and up the North American coast. But her reign over those seas was short-lived. In 1718, the ship ran aground on a sandbar a mile off Beaufort, North Carolina. Blackbeard and most of his crew escaped without harm. Not so the Revenge . She sank beneath the waters, where she lay undisturbed for nearly 300 years.
In 1996, a marine salvage company named Intersal, Inc., discovered the shipwreck. Under federal and state law, the wreck belongs to North Carolina. See 102 Stat. 433, 43 U.S.C. § 2105(c) ; N.C. Gen. Stat. Ann. § 121-22 (2019). But the State contracted with Intersal to take charge of the recovery activities. Intersal in turn retained petitioner Frederick Allen, a local videographer, to document the operation. For over a decade, Allen created videos and photos of divers' efforts to salvage the Revenge 's guns, anchors, and other remains. He registered copyrights in all those works.
This suit arises from North Carolina's publication of some of Allen's videos and photos. Allen first protested in 2013 that the State was infringing his copyrights by uploading his work to its website without permission. To address that allegation, North Carolina agreed to a settlement paying Allen $15,000 and laying out the parties' respective rights to the materials. But Allen and the State soon found themselves embroiled in another dispute. Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages.
North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States. See State Defendants' Memorandum in No. 15-627 (EDNC), Doc. 50, p. 7. But Allen responded that an exception to the rule applied because Congress had abrogated the States' sovereign immunity from suits like his. See Plaintiffs' Response, Doc. 57, p. 7. The Copyright Remedy Clarification Act of 1990 (CRCA or Act) provides that a State "shall not be immune, under the Eleventh Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for copyright infringement. 17 U.S.C. § 511(a). And the Act specifies that in such a suit a State will be liable, and subject to remedies, "in the same manner and to the same extent as" a private party. § 501(a); see § 511(b). That meant, Allen contended, that his suit against North Carolina could go forward.
The District Court agreed. Quoting the CRCA's text, the court first found that "Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state." 244 F.Supp.3d 525, 533 (E.D.N.C. 2017). And that abrogation, the court next held, had a proper constitutional basis. Florida Prepaid and other precedent, the District Court acknowledged, precluded Congress from using its Article I powers-including its authority over copyrights-to take away a State's sovereign immunity. See 244 F.Supp.3d at 534. But in the court's view, Florida Prepaid left open an alternative route to abrogation. Given the States' "pattern" of "abus[ive]" copyright infringement, the court held, Congress could accomplish its object under Section 5 of the Fourteenth Amendment. 244 F.Supp.3d at 535.
On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. It read Florida Prepaid to prevent recourse to Section 5 no less than to Article I. A Section 5 abrogation, the Fourth Circuit explained, must be "congruent and proportional" to the Fourteenth Amendment injury it seeks to remedy. 895 F.3d 337, 350 (2018). Florida Prepaid had applied that principle to reject Congress's attempt, in the Patent Remedy Act, to abolish the States' immunity from patent infringement suits. See 527 U.S. at 630, 119 S.Ct. 2199. In the Fourth Circuit's view, nothing distinguished the CRCA. That abrogation, the court reasoned, was "equally broad" and rested on a "similar legislative record" of constitutional harm. 895 F.3d at 352. So Section 5 could not save the law.
Because the Court of Appeals held a federal statute invalid, this Court granted certiorari. 587 U.S. ----, 139 S.Ct. 2664, 204 L.Ed.2d 1068 (2019). We now affirm.
II
In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a nonconsenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State. But this Court has long understood that Amendment to "stand not so much for what it says" as for the broader "presupposition of our constitutional structure which it confirms." Blatchford v. Native Village of Noatak , 501 U.S. 775, 779, 111 S.Ct. 2578, 115 L.Ed.2d 686 (1991). That premise, the Court has explained, has several parts. First, "each State is a sovereign entity in our federal system." Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Next, "[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit" absent consent. Id., at 54 n. 13, 116 S.Ct. 1114 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A. Hamilton)). And last, that fundamental aspect of sovereignty constrains federal "judicial authority." Blatchford , 501 U.S. at 779, 111 S.Ct. 2578.
But not entirely. This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted "unequivocal statutory language" abrogating the States' immunity from the suit. Seminole Tribe , 517 U.S. at 56, 116 S.Ct. 1114 (internal quotation marks omitted);
see Dellmuth v. Muth , 491 U.S. 223, 228, 109 S.Ct. 2397, 105 L.Ed.2d 181 (1989) (requiring Congress to "mak[e] its intention unmistakably clear"). And second, some constitutional provision must allow Congress to have thus encroached on the States' sovereignty. Not even the most crystalline abrogation can take effect unless it is "a valid exercise of constitutional authority." Kimel v. Florida Bd. of Regents , 528 U.S. 62, 78, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000).
No one here disputes that Congress used clear enough language to abrogate the States' immunity from copyright infringement suits. As described above, the CRCA provides that States "shall not be immune" from those actions in federal court. § 511(a) ; see supra, at 999 - 1000. And the Act specifies that a State stands in the identical position as a private defendant-exposed to liability and remedies "in the same manner and to the same extent." § 501(a); see § 511(b). So there is no doubt what Congress meant to accomplish. Indeed, this Court held in Florida Prepaid that the essentially verbatim provisions of the Patent Remedy Act "could not have [made] any clearer" Congress's intent to remove the States' immunity. 527 U.S. at 635, 119 S.Ct. 2199.
The contested question is whether Congress had authority to take that step. Allen maintains that it did, under either of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copyright protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to "enforce" the commands of the Due Process Clause. Neither contention can succeed. The slate on which we write today is anything but clean. Florida Prepaid , along with other precedent, forecloses each of Allen's arguments.
A
Congress has power under Article I "[t]o 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." § 8, cl. 8. That provision-call it the Intellectual Property Clause-enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. See Goldstein v. California , 412 U.S. 546, 560, 93 S.Ct. 2303, 37 L.Ed.2d 163 (1973).
In Allen's view, Congress's authority to abrogate sovereign immunity from copyright suits naturally follows. Abrogation is the single best-or maybe, he says, the only-way for Congress to "secur[e]" a copyright holder's "exclusive Right[s]" as against a State's intrusion. See Brief for Petitioners 20 (quoting Art. I, § 8, cl. 8). So, Allen contends, the authority to take that step must fall within the Article I grant of power to protect intellectual property.
The problem for Allen is that this Court has already rejected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits. In doing so, we acknowledged the reason for Congress to put "States on the same footing as private parties" in patent litigation. 527 U.S. at 647, 119 S.Ct. 2199. It was, just as Allen says here, to ensure "uniform, surefire protection" of intellectual property. Reply Brief 10. That was a "proper Article I concern," we allowed. 527 U.S. at 648, 119 S.Ct. 2199. But still, we said, Congress could not use its Article I power over patents to remove the States' immunity.
We based that conclusion on Seminole Tribe v. Florida , decided three years earlier. There, the Court had held that "Article I cannot be used to circumvent" the limits sovereign immunity "place[s] upon federal jurisdiction." 517 U.S. at 73, 116 S.Ct. 1114. That proscription ended the matter. Because Congress could not "abrogate state sovereign immunity [under] Article I," Florida Prepaid explained, the Intellectual Property Clause could not support the Patent Remedy Act. 527 U.S. at 636, 119 S.Ct. 2199. And to extend the point to this case: if not the Patent Remedy Act, not its copyright equivalent either, and for the same reason. Here too, the power to "secur[e]" an intellectual property owner's "exclusive Right" under Article I stops when it runs into sovereign immunity. § 8, cl. 8.
Allen claims, however, that a later case offers an exit ramp from Florida Prepaid . In Central Va. Community College v. Katz , 546 U.S. 356, 359, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006), we held that Article I's Bankruptcy Clause enables Congress to subject nonconsenting States to bankruptcy proceedings (there, to recover a preferential transfer). We thus exempted the Bankruptcy Clause from Seminole Tribe 's general rule that Article I cannot justify haling a State into federal court. In bankruptcy, we decided, sovereign immunity has no place. But if that is true, Allen asks, why not say the same thing here? Allen reads Katz as "adopt[ing] a clause-by-clause approach to evaluating whether a particular clause of Article I" allows the abrogation of sovereign immunity. Brief for Petitioners 20. And he claims that the Intellectual Property Clause "supplies singular warrant" for Congress to take that step. Ibid. That is so, Allen reiterates, because "Congress could not 'secur[e]' authors' 'exclusive Right' to their works if [it] were powerless" to make States pay for infringing conduct. Ibid.
But everything in Katz is about and limited to the Bankruptcy Clause; the opinion reflects what might be called bankruptcy exceptionalism. In part, Katz rested on the "singular nature" of bankruptcy jurisdiction. 546 U.S. at 369, n. 9, 126 S.Ct. 990. That jurisdiction is, and was at the Founding, "principally in rem "-meaning that it is "premised on the debtor and his estate, and not on the creditors" (including a State). Id., at 369-370, 126 S.Ct. 990 (internal quotation marks omitted). For that reason, we thought, "it does not implicate States' sovereignty to nearly the same degree as other kinds of jurisdiction." Id., at 362, 126 S.Ct. 990. In remaining part, Katz focused on the Bankruptcy Clause's "unique history." Id., at 369 n. 9, 126 S.Ct. 990. The Clause emerged from a felt need to curb the States' authority. The States, we explained, "had wildly divergent schemes" for discharging debt, and often "refus[ed] to respect one another's discharge orders." Id., at 365, 377, 126 S.Ct. 990. "[T]he Framers' primary goal" in adopting the Clause was to address that problem-to stop "competing sovereigns[ ]" from interfering with a debtor's discharge. Id., at 373, 126 S.Ct. 990. And in that project, the Framers intended federal courts to play a leading role. The nation's first Bankruptcy Act, for example, empowered those courts to order that States release people they were holding in debtors' prisons. See id., at 374, 126 S.Ct. 990. So through and through, we thought, the Bankruptcy Clause embraced the idea that federal courts could impose on state sovereignty. In that, it was sui generis -again, "unique"-among Article I's grants of authority. Id., at 369 n. 9, 126 S.Ct. 990.
Indeed, Katz 's view of the Bankruptcy Clause had a yet more striking aspect, which further separates it from any other. The Court might have concluded from its analysis that the Clause allows Congress to abrogate the States' sovereign immunity (as Allen argues the Intellectual Property Clause does). But it did not; it instead went further. Relying on the above account of the Framers' intentions, the Court found that the Bankruptcy Clause itself did the abrogating. Id., at 379, 126 S.Ct. 990 ("[T]he relevant 'abrogation' is the one effected in the plan of the [Constitutional] Convention"). Or stated another way, we decided that no congressional abrogation was needed because the States had already "agreed in the plan of the Convention not to assert any sovereign immunity defense" in bankruptcy proceedings. Id., at 377, 126 S.Ct. 990. We therefore discarded our usual rule-which Allen accepts as applying here-that Congress must speak, and indeed speak unequivocally, to abrogate sovereign immunity. Compare id., at 378-379, 126 S.Ct. 990 ("[O]ur decision today" does not "rest[ ] on any statement Congress ha[s] made on the subject of state sovereign immunity"), with supra, at 1000 - 1001 (our ordinary rule). Our decision, in short, viewed bankruptcy as on a different plane, governed by principles all its own. Nothing in that understanding invites the kind of general, "clause-by-clause" reexamination of Article I that Allen proposes. See supra, at 1002. To the contrary, it points to a good-for-one-clause-only holding.
And even if Katz 's confines were not so clear, Florida Prepaid , together with stare decisis , would still doom Allen's argument. As Allen recognizes, if the Intellectual Property Clause permits the CRCA's abrogation, it also would permit the Patent Remedy Act's. See Tr. of Oral Arg. 9 (predicting that if his position prevailed, "ultimately, the Patent Remedy Act would be revisited and properly upheld as a valid exercise of Congress's Article I power"). Again, there is no difference between copyrights and patents under the Clause, nor any material difference between the two statutes' provisions. See supra, at 999, and n. 1, 6. So we would have to overrule Florida Prepaid if we were to decide this case Allen's way. But stare decisis , this Court has understood, is a "foundation stone of the rule of law." Michigan v. Bay Mills Indian Community , 572 U.S. 782, 798, 134 S.Ct. 2024, 188 L.Ed.2d 1071 (2014). To reverse a decision, we demand a "special justification," over and above the belief "that the precedent was wrongly decided." Halliburton Co. v. Erica P. John Fund, Inc. , 573 U.S. 258, 266, 134 S.Ct. 2398, 189 L.Ed.2d 339 (2014). Allen offers us nothing special at all; he contends only that if the Court were to use a clause-by-clause approach, it would discover that Florida Prepaid was wrong (because, he says again, the decision misjudged Congress's authority under the Intellectual Property Clause). See Brief for Petitioners 37; supra, at 1002. And with that charge of error alone, Allen cannot overcome stare decisis .
B
Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of immunity. The Fourteenth Amendment "fundamentally altered the balance of state and federal power" that the original Constitution and the Eleventh Amendment struck. Seminole Tribe , 517 U.S. at 59, 116 S.Ct. 1114. Its first section imposes prohibitions on the States, including (as relevant here) that none may "deprive any person of life, liberty, or property, without due process of law." Section 5 then gives Congress the "power to enforce, by appropriate legislation," those limitations on the States' authority. That power, the Court has long held, may enable Congress to abrogate the States' immunity and thus subject them to suit in federal court. See Fitzpatrick v. Bitzer , 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976).
For an abrogation statute to be "appropriate" under Section 5, it must be tailored to "remedy or prevent" conduct infringing the Fourteenth Amendment's substantive prohibitions. City of Boerne v. Flores , 521 U.S. 507, 519, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). Congress can permit suits against States for actual violations of the rights guaranteed in Section 1. See Fitzpatrick , 427 U.S. at 456, 96 S.Ct. 2666. And to deter those violations, it can allow suits against States for "a somewhat broader swath of conduct," including acts constitutional in themselves. Kimel , 528 U.S. at 81, 120 S.Ct. 631. But Congress cannot use its "power to enforce" the Fourteenth Amendment to alter what that Amendment bars. See id., at 88, 120 S.Ct. 631 (prohibiting Congress from "substantively redefin[ing]" the Fourteenth Amendment's requirements). That means a congressional abrogation is valid under Section 5 only if it sufficiently connects to conduct courts have held Section 1 to proscribe.
To decide whether a law passes muster, this Court has framed a type of means-end test. For Congress's action to fall within its Section 5 authority, we have said, "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Boerne , 521 U.S. at 520, 117 S.Ct. 2157. On the one hand, courts are to consider the constitutional problem Congress faced-both the nature and the extent of state conduct violating the Fourteenth Amendment. That assessment usually (though not inevitably) focuses on the legislative record, which shows the evidence Congress had before it of a constitutional wrong. See Florida Prepaid , 527 U.S. at 646, 119 S.Ct. 2199. On the other hand, courts are to examine the scope of the response Congress chose to address that injury. Here, a critical question is how far, and for what reasons, Congress has gone beyond redressing actual constitutional violations. Hard problems often require forceful responses and, as noted above, Section 5 allows Congress to "enact[ ] reasonably prophylactic legislation" to deter constitutional harm. Kimel, 528 U.S. at 88, 120 S.Ct. 631 ; Boerne , 521 U.S. at 536, 117 S.Ct. 2157 (Congress's conclusions on that score are "entitled to much deference"); supra, at 1003 - 1004. But "[s]trong measures appropriate to address one harm may be an unwarranted response to another, lesser one." Boerne , 521 U.S. at 530, 117 S.Ct. 2157. Always, what Congress has done must be in keeping with the Fourteenth Amendment rules it has the power to "enforce."
All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. See Fox Film Corp. v. Doyal , 286 U.S. 123, 128, 52 S.Ct. 546, 76 L.Ed. 1010 (1932). And the Fourteenth Amendment bars the States from "depriv[ing]" a person of property "without due process of law." But even if sometimes, by no means always. Under our precedent, a merely negligent act does not "deprive" a person of property. See Daniels v. Williams , 474 U.S. 327, 328, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. See id., at 334, n. 3, 106 S.Ct. 662 (reserving whether reckless conduct suffices). And more: A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of "due process." See Hudson v. Palmer , 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). That means within the broader world of state copyright infringement is a smaller one where the Due Process Clause comes into play.
Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That decision defined the scope of unconstitutional infringement in line with the caselaw cited above-as intentional conduct for which there is no adequate state remedy. See 527 U.S., at 642-643, 645, 119 S.Ct. 2199. It then searched for evidence of that sort of infringement in the legislative record of the Patent Remedy Act. And it determined that the statute's abrogation of immunity-again, the equivalent of the CRCA's-was out of all proportion to what it found. That analysis is the starting point of our inquiry here. And indeed, it must be the ending point too unless the evidence of unconstitutional infringement is materially different for copyrights than patents. Consider once more, then, Florida Prepaid , now not on Article I but on Section 5.
In enacting the Patent Remedy Act, Florida Prepaid found, Congress did not identify a pattern of unconstitutional patent infringement. To begin with, we explained, there was only thin evidence of States infringing patents at all-putting aside whether those actions violated due process. The House Report, recognizing that "many states comply with patent law," offered just two examples of patent infringement suits against the States. Id., at 640, 119 S.Ct. 2199 (quoting H.R. Rep. No. 101-960, pt. 1, p. 38 (1990)). The appellate court below, boasting some greater research prowess, discovered another seven in the century-plus between 1880 and 1990. See 527 U.S. at 640, 119 S.Ct. 2199. Even the bill's House sponsor conceded the lack of "any evidence" of "widespread violation of patent laws." Id., at 641, 119 S.Ct. 2199 (quoting statement of Rep. Kastenmeier). What was more, there was no evidence that any instance of infringement by States crossed constitutional lines. Congress, we observed, "did not focus" on intentional or reckless conduct; to the contrary, the legislative record suggested that "most state infringement was innocent or at worst negligent." Id., at 645, 119 S.Ct. 2199. And similarly, Congress "barely considered the availability of state remedies for patent infringement." Id., at 643, 119 S.Ct. 2199. So, we concluded, nothing could support the idea that States were more than sporadically (if that) "depriving patent owners of property without due process of law." Id., at 646, 119 S.Ct. 2199.
Given that absence of evidence, Florida Prepaid held, the Patent Remedy Act swept too far. Recall what the Patent Remedy Act did-and did not. It abrogated sovereign immunity for any and every patent suit, thereby "plac[ing] States on the same footing as private parties." Id., at 647, 119 S.Ct. 2199. It did not set any limits. It did not, for example, confine the abrogation to suits alleging "nonnegligent infringement or infringement authorized [by] state policy." Ibid . Neither did it target States refusing to offer alternative remedies to patent holders. No, it exposed all States to the hilt-on a record that failed to show they had caused any discernible constitutional harm (or, indeed, much harm at all). That imbalance made it impossible to view the legislation "as responsive to, or designed to prevent, unconstitutional behavior." Id., at 646, 119 S.Ct. 2199 (quoting Boerne , 521 U.S. at 532, 117 S.Ct. 2157 ). The statute's "indiscriminate scope" was too "out of proportion" to any due process problem. 527 U.S. at 646-647, 119 S.Ct. 2199. It aimed not to correct such a problem, but to "provide a uniform remedy for patent infringement" writ large. Id., at 647, 119 S.Ct. 2199. The Patent Remedy Act, in short, did not "enforce" Section 1 of the Fourteenth Amendment-and so was not "appropriate" under Section 5.
Could, then, this case come out differently? Given the identical scope of the CRCA and Patent Remedy Act, that could happen only if the former law responded to materially stronger evidence of infringement, especially of the unconstitutional kind. Allen points to a significant disparity in how Congress created a record for the two statutes. See Brief for Petitioners 7-10, 47-50. Before enacting the CRCA, Congress asked the then-Register of Copyrights, Ralph Oman, to submit a report about the effects of the Eleventh Amendment on copyright enforcement. Oman and his staff conducted a year-long examination, which included a request for public comments eliciting letters from about 40 copyright holders and industry groups. The final 158-page report concluded that "copyright proprietors have demonstrated they will suffer immediate harm if they are unable to sue infringing states in federal court." Copyright Office, Copyright Liability of States and the Eleventh Amendment 103 (1988) (Oman Report). Is that report enough, as Allen claims, to flip Florida Prepaid 's outcome when it comes to copyright cases against the States?
It is not. Behind the headline-grabbing conclusion, nothing in the Oman Report, or the rest of the legislative record, cures the problems we identified in Florida Prepaid . As an initial matter, the concrete evidence of States infringing copyrights (even ignoring whether those acts violate due process) is scarcely more impressive than what the Florida Prepaid Court saw. Despite undertaking an exhaustive search, Oman came up with only a dozen possible examples of state infringement. He listed seven court cases brought against States (with another two dismissed on the merits) and five anecdotes taken from public comments (but not further corroborated). See Oman Report, at 7-9, 90-97. In testifying about the report, Oman acknowledged that state infringement is "not widespread" and "the States are not going to get involved in wholesale violation of the copyright laws." Hearings on H. R. 1131 before the Subcommittee on Courts, Intellectual Property, and the Administration of Justice, 101st Cong., 1st Sess., 53 (1989) (House Hearings). Indeed, he opined: "They are all respectful of the copyright law" and "will continue to respect the law"; what State, after all, would "want[ ] to get a reputation as a copyright pirate?" Id., at 8. The bill's House and Senate sponsors got the point. The former admitted that "there have not been any significant number" of copyright violations by States. Id., at 48 (Rep. Kastenmeier). And the latter conceded he could not currently see "a big problem." Hearings on S. 497 before the Subcommittee on Patents, Copyrights and Trademarks, 101st Cong., 1st Sess., 130 (1989) (Sen. DeConcini). This is not, to put the matter charitably, the stuff from which Section 5 legislation ordinarily arises.
And it gets only worse. Neither the Oman Report nor any other part of the legislative record shows concern with whether the States' copyright infringements (however few and far between) violated the Due Process Clause. Of the 12 infringements listed in the report, only two appear intentional, as they must be to raise a constitutional issue. See Oman Report, at 7-8, 91 (describing a judicial finding of "willful" infringement and a public comment charging continued infringement after a copyright owner complained). As Oman testified, the far greater problem was the frequency of "honest mistakes" or "innocent" misunderstandings; the benefit of the bill, he therefore thought, would be to "guard against sloppiness." House Hearings, at 9. Likewise, the legislative record contains no information about the availability of state-law remedies for copyright infringement (such as contract or unjust enrichment suits)-even though they might themselves satisfy due process. Those deficiencies in the record match the ones Florida Prepaid emphasized. See 527 U.S. at 643-645, 119 S.Ct. 2199. Here no less than there, they signal an absence of constitutional harm.
Under Florida Prepaid , the CRCA thus must fail our "congruence and proportionality" test. Boerne , 521 U.S. at 520, 117 S.Ct. 2157. As just shown, the evidence of Fourteenth Amendment injury supporting the CRCA and the Patent Remedy Act is equivalent-for both, that is, exceedingly slight. And the scope of the two statutes is identical-extending to every infringement case against a State. It follows that the balance the laws strike between constitutional wrong and statutory remedy is correspondingly askew. In this case, as in Florida Prepaid , the law's "indiscriminate scope" is "out of proportion" to any due process problem. 527 U.S. at 646-647, 119 S.Ct. 2199 ; see supra, at 1005 - 1006. In this case, as in that one, the statute aims to "provide a uniform remedy" for statutory infringement, rather than to redress or prevent unconstitutional conduct. 527 U.S. at 647, 119 S.Ct. 2199 ; see supra, at 1005 - 1006. And so in this case, as in that one, the law is invalid under Section 5.
That conclusion, however, need not prevent Congress from passing a valid copyright abrogation law in the future. In doing so, Congress would presumably approach the issue differently than when it passed the CRCA. At that time, the Court had not yet decided Seminole Tribe , so Congress probably thought that Article I could support its all-out abrogation of immunity. See supra, at 1002. And to the extent it relied on Section 5, Congress acted before this Court created the "congruence and proportionality" test. See supra, at 1004. For that reason, Congress likely did not appreciate the importance of linking the scope of its abrogation to the redress or prevention of unconstitutional injuries-and of creating a legislative record to back up that connection. But going forward, Congress will know those rules. And under them, if it detects violations of due process, then it may enact a proportionate response. That kind of tailored statute can effectively stop States from behaving as copyright pirates. Even while respecting constitutional limits, it can bring digital Blackbeards to justice.
III
Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I's Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below.
It is so ordered.
Justice THOMAS, concurring in part and concurring in the judgment.
I agree with the Court's conclusion that the Copyright Remedy Clarification Act of 1990, 17 U.S.C. § 501 et seq. , does not validly abrogate States' sovereign immunity. But I cannot join the Court's opinion in its entirety. I write separately to note two disagreements and one question that remains open for resolution in a future case.
First, although I agree that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank , 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), is binding precedent, I cannot join the Court's discussion of stare decisis . The Court claims we need " 'special justification[s]' " to overrule precedent because error alone "cannot overcome stare decisis ." Ante , at 1003 - 1004. That approach "does not comport with our judicial duty under Article III." Gamble v. United States , 587 U.S. ----, ----, 139 S.Ct. 1960, 1981, 204 L.Ed.2d 322 (2019) (THOMAS, J., concurring).If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to "correct the error, regardless of whether other factors support overruling the precedent." 587 U.S., at ---- - ----, 139 S.Ct., at 1984 (same).
Here, adherence to our precedent is warranted because petitioners have not demonstrated that our decision in Florida Prepaid "is incorrect, much less demonstrably erroneous." Gamble , 587 U.S., at ----, 139 S.Ct., at 1989 (same).The Court in Florida Prepaid correctly concluded that "Congress may not abrogate state sovereign immunity pursuant to its Article I powers," including its powers under the Intellectual Property Clause. 527 U.S. at 636, 119 S.Ct. 2199 (citing Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 72-73, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) ). Petitioners' claims to the contrary are unpersuasive.
Second, I do not join the Court's discussion regarding future copyright legislation. In my view, we should opine on "only the case before us in light of the record before us." Manhattan Community Access Corp. v. Halleck , 587 U.S. ----, ----, 139 S.Ct. 1921, 1934, 204 L.Ed.2d 405 (2019). We should not purport to advise Congress on how it might exercise its legislative authority, nor give our blessing to hypothetical statutes or legislative records not at issue here.
Finally, I believe the question whether copyrights are property within the original meaning of the Fourteenth Amendment's Due Process Clause remains open. The Court relies on Fox Film Corp. v. Doyal , 286 U.S. 123, 52 S.Ct. 546, 76 L.Ed. 1010 (1932), to conclude that "[c]opyrights are a form of property." Ante , at 1004. But Fox Film Corp. addressed "property" in the context of state tax laws, not the Due Process Clause. 286 U.S. at 128, 52 S.Ct. 546. And although we stated in Florida Prepaid that patents are "property" for due process purposes, we did not analyze the Fourteenth Amendment's text, and neither of the cases we cited involved due process. 527 U.S. at 642, 119 S.Ct. 2199 (citing Brown v. Duchesne , 60 U.S. (19 How.) 183, 197, 15 L.Ed. 595 ; Consolidated Fruit-Jar Co. v. Wright , 94 U.S. 92, 96, 24 L.Ed. 68 (1877) ); see also Merrill, The Landscape of Constitutional Property, 86 Va. L. Rev. 885, 887 (2000) (noting that the "Court has not always been attentive to the 'property' threshold" of the Due Process Clauses). Because the parties agree that petitioners' copyrights are property, and because the Fourteenth Amendment does not authorize this statute's abrogation of state sovereign immunity either way, we need not resolve this open question today. I would, however, be willing to consider the matter in an appropriate case.
For these reasons, I join all of the Court's opinion except for the final paragraph in Part II-A and the final paragraph in Part II-B.
Justice BREYER, with whom Justice GINSBURG joins, concurring in the judgment.
The Constitution gives Congress certain enumerated powers. One of them is set forth in the Intellectual Property Clause: Congress may "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. "And the monopoly rights so given," the Court acknowledges, operate against "States no less than private parties." Ante , at 1006. States, in other words, have "a specific duty" not to infringe that "is assigned by law" and upon which "individual rights depend." Marbury v. Madison , 5 U.S. (1 Cranch) 137, 166, 2 L.Ed. 60 (1803). One might therefore expect that someone injured by a State's violation of that duty could "resort to the laws of his country for a remedy," ibid. , especially where, as here, Congress has sought to provide one. Or more concretely, one might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio's 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels).
Yet the Court holds otherwise. In its view, Congress' power under the Intellectual Property Clause cannot support a federal law providing that, when proven to have pirated intellectual property, States must pay for what they plundered. Ante , at 1002 - 1004. To subject nonconsenting States to private suits for copyright or patent infringement, says the Court, Congress must endeavor to pass a more "tailored statute" than the one before us, relying not on the Intellectual Property Clause, but on § 5 of the Fourteenth Amendment. Ante , at 1002. Whether a future legislative effort along those lines will pass constitutional muster is anyone's guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown.
That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss. Indeed, we went astray in Seminole Tribe of Fla. v. Florida , 517 U.S. 44, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996), as I have consistently maintained. See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. , 527 U.S. 666, 699-701, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999) (dissenting opinion); Federal Maritime Comm'n v. South Carolina Ports Authority , 535 U.S. 743, 787-788, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) (same). We erred again in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank , 527 U.S. 627, 119 S.Ct. 2199, 144 L.Ed.2d 575 (1999), by holding that Congress exceeded its § 5 powers when it passed a patent counterpart to the copyright statute at issue here. See id. , at 652-664, 119 S.Ct. 2199 (Stevens, J., dissenting). But recognizing that my longstanding view has not carried the day, and that the Court's decision in Florida Prepaid controls this case, I concur in the judgment. See ante , 1003 - 1004, 1006 - 1007; Kimble v. Marvel Entertainment , LLC , 576 U.S. 446, 455-456, 135 S.Ct. 2401, 192 L.Ed.2d 463 (2015) ; Franchise Tax Board of California v. Hyatt , 587 U.S. ----, ----, 139 S.Ct. 1485, 203 L.Ed.2d 768 (2019) (BREYER, J., dissenting).
The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co. , 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
The CRCA served as the model for the Patent and Plant Variety Protection Clarification Act (Patent Remedy Act), passed two years later (and repudiated by this Court in Florida Prepaid , see supra, at 989 - 999). Using the same language, the latter statute provided that a State "shall not be immune, under the [E]leventh [A]mendment [or] any other doctrine of sovereign immunity, from suit in Federal court" for patent infringement. § 2, 106 Stat. 4230. And so too, the statute specified that in such a suit, a State will be liable, and subject to remedies, "in the same manner and to the same extent as" a private party. Ibid.
The Eleventh Amendment reads: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
Because I adhere to our precedents regarding Article I and state sovereign immunity, I continue to believe that Central Va. Community College v. Katz , 546 U.S. 356, 126 S.Ct. 990, 163 L.Ed.2d 945 (2006), was wrongly decided. See id. , at 379-385, 126 S.Ct. 990 (THOMAS, J., dissenting). The Court today rightfully limits that decision to the Bankruptcy Clause context, calling it a "good-for-one-clause-only holding." Ante , at 1003. I would go a step further and recognize that the Court's decision in Katz is not good for even that clause.
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_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.
Andrew KISELA
v.
Amy HUGHES.
No. 17-467.
Supreme Court of the United States
April 2, 2018.
PER CURIAM.
Petitioner Andrew Kisela, a police officer in Tucson, Arizona, shot respondent Amy Hughes. Kisela and two other officers had arrived on the scene after hearing a police radio report that a woman was engaging in erratic behavior with a knife. They had been there but a few minutes, perhaps just a minute. When Kisela fired, Hughes was holding a large kitchen knife, had taken steps toward another woman standing nearby, and had refused to drop the knife after at least two commands to do so. The question is whether at the time of the shooting Kisela's actions violated clearly established law.
The record, viewed in the light most favorable to Hughes, shows the following.
In May 2010, somebody in Hughes' neighborhood called 911 to report that a woman was hacking a tree with a kitchen knife. Kisela and another police officer, Alex Garcia, heard about the report over the radio in their patrol car and responded. A few minutes later the person who had called 911 flagged down the officers; gave them a description of the woman with the knife; and told them the woman had been acting erratically. About the same time, a third police officer, Lindsay Kunz, arrived on her bicycle.
Garcia spotted a woman, later identified as Sharon Chadwick, standing next to a car in the driveway of a nearby house. A chain-link fence with a locked gate separated Chadwick from the officers. The officers then saw another woman, Hughes, emerge from the house carrying a large knife at her side. Hughes matched the description of the woman who had been seen hacking a tree. Hughes walked toward Chadwick and stopped no more than six feet from her.
All three officers drew their guns. At least twice they told Hughes to drop the knife. Viewing the record in the light most favorable to Hughes, Chadwick said "take it easy" to both Hughes and the officers. Hughes appeared calm, but she did not acknowledge the officers' presence or drop the knife. The top bar of the chain-link fence blocked Kisela's line of fire, so he dropped to the ground and shot Hughes four times through the fence. Then the officers jumped the fence, handcuffed Hughes, and called paramedics, who transported her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had transpired from the moment the officers saw Chadwick to the moment Kisela fired shots.
All three of the officers later said that at the time of the shooting they subjectively believed Hughes to be a threat to Chadwick. After the shooting, the officers discovered that Chadwick and Hughes were roommates, that Hughes had a history of mental illness, and that Hughes had been upset with Chadwick over a $20 debt. In an affidavit produced during discovery, Chadwick said that a few minutes before the shooting her boyfriend had told her Hughes was threatening to kill Chadwick's dog, named Bunny. Chadwick "came home to find" Hughes "somewhat distressed," and Hughes was in the house holding Bunny "in one hand and a kitchen knife in the other." Hughes asked Chadwick if she "wanted [her] to use the knife on the dog." The officers knew none of this, though. Chadwick went outside to get $20 from her car, which is when the officers first saw her. In her affidavit Chadwick said that she did not feel endangered at any time. Ibid. Based on her experience as Hughes' roommate, Chadwick stated that Hughes "occasionally has episodes in which she acts inappropriately," but "she is only seeking attention." 2 Record 108.
Hughes sued Kisela under Rev. Stat. § 1979, 42 U.S.C. § 1983, alleging that Kisela had used excessive force in violation of the Fourth Amendment. The District Court granted summary judgment to Kisela, but the Court of Appeals for the Ninth Circuit reversed. 862 F.3d 775 (2016).
The Court of Appeals first held that the record, viewed in the light most favorable to Hughes, was sufficient to demonstrate that Kisela violated the Fourth Amendment. See id., at 782. The court next held that the violation was clearly established because, in its view, the constitutional violation was obvious and because of Circuit precedent that the court perceived to be analogous. Id., at 785. Kisela filed a petition for rehearing en banc. Over the dissent of seven judges, the Court of Appeals denied it. Kisela then filed a petition for certiorari in this Court. That petition is now granted.
In one of the first cases on this general subject, Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Court addressed the constitutionality of the police using force that can be deadly. There, the Court held that "[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force." Id., at 11, 105 S.Ct. 1694.
In Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court held that the question whether an officer has used excessive force "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Ibid. And "[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation." Id., at 396-397, 109 S.Ct. 1865.
Here, the Court need not, and does not, decide whether Kisela violated the Fourth Amendment when he used deadly force against Hughes. For even assuming a Fourth Amendment violation occurred-a proposition that is not at all evident-on these facts Kisela was at least entitled to qualified immunity.
"Qualified immunity attaches when an official's conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." White v. Pauly, 580 U.S. ----, ----, 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam ) (alterations and internal quotation marks omitted). "Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct." Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ).
Although "this Court's caselaw does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." White, 580 U.S., at ----, 137 S.Ct., at 551 (internal quotation marks omitted). "In other words, immunity protects all but the plainly incompetent or those who knowingly violate the law." Ibid. (internal quotation marks omitted). This Court has " 'repeatedly told courts-and the Ninth Circuit in particular-not to define clearly established law at a high level of generality.' " City and County of San Francisco v. Sheehan, 575 U.S. ----, ----, 135 S.Ct. 1765, 1775-1776, 191 L.Ed.2d 856 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ); see also Brosseau, supra, at 198-199, 125 S.Ct. 596.
"[S]pecificity is especially important in the Fourth Amendment context, where the Court has recognized that it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix v. Luna, 577 U.S. ----, ----, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam ) (internal quotation marks omitted). Use of excessive force is an area of the law "in which the result depends very much on the facts of each case," and thus police officers are entitled to qualified immunity unless existing precedent "squarely governs" the specific facts at issue. Id., at ----, 136 S.Ct., at 309 (internal quotation marks omitted and emphasis deleted). Precedent involving similar facts can help move a case beyond the otherwise "hazy border between excessive and acceptable force" and thereby provide an officer notice that a specific use of force is unlawful. Id., at ----, 136 S.Ct., at 312 (internal quotation marks omitted).
"Of course, general statements of the law are not inherently incapable of giving fair and clear warning to officers." White, 580 U.S., at ----, 137 S.Ct., at 552 (internal quotation marks omitted). But the general rules set forth in "Garner and Graham do not by themselves create clearly established law outside an 'obvious case.' " Ibid. Where constitutional guidelines seem inapplicable or too remote, it does not suffice for a court simply to state that an officer may not use unreasonable and excessive force, deny qualified immunity, and then remit the case for a trial on the question of reasonableness. An officer "cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in the defendant's shoes would have understood that he was violating it." Plumhoff v. Rickard, 572 U.S. ----, ----, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014). That is a necessary part of the qualified-immunity standard, and it is a part of the standard that the Court of Appeals here failed to implement in a correct way.
Kisela says he shot Hughes because, although the officers themselves were in no apparent danger, he believed she was a threat to Chadwick. Kisela had mere seconds to assess the potential danger to Chadwick. He was confronted with a woman who had just been seen hacking a tree with a large kitchen knife and whose behavior was erratic enough to cause a concerned bystander to call 911 and then flag down Kisela and Garcia. Kisela was separated from Hughes and Chadwick by a chain-link fence; Hughes had moved to within a few feet of Chadwick; and she failed to acknowledge at least two commands to drop the knife. Those commands were loud enough that Chadwick, who was standing next to Hughes, heard them. This is far from an obvious case in which any competent officer would have known that shooting Hughes to protect Chadwick would violate the Fourth Amendment.
The Court of Appeals made additional errors in concluding that its own precedent clearly established that Kisela used excessive force. To begin with, "even if a controlling circuit precedent could constitute clearly established law in these circumstances, it does not do so here." Sheehan, supra, at ----, 135 S.Ct., at 1776. In fact, the most analogous Circuit precedent favors Kisela. See Blanford v. Sacramento County, 406 F.3d 1110 (C.A.9 2005). In Blanford, the police responded to a report that a man was walking through a residential neighborhood carrying a sword and acting in an erratic manner. Id., at 1112. There, as here, the police shot the man after he refused their commands to drop his weapon (there, as here, the man might not have heard the commands). Id., at 1113. There, as here, the police believed (perhaps mistakenly), that the man posed an immediate threat to others. Ibid. There, the Court of Appeals determined that the use of deadly force did not violate the Fourth Amendment. Id., at 1119. Based on that decision, a reasonable officer could have believed the same thing was true in the instant case.
In contrast, not one of the decisions relied on by the Court of Appeals- Deorle v. Rutherford, 272 F.3d 1272 (C.A.9 2001), Glenn v. Washington County, 673 F.3d 864 (C.A.9 2011), and Harris v. Roderick, 126 F.3d 1189 (C.A.9 1997) -supports denying Kisela qualified immunity. As for Deorle, this Court has already instructed the Court of Appeals not to read its decision in that case too broadly in deciding whether a new set of facts is governed by clearly established law. Sheehan, 572 U.S., at ---- - ----, 135 S.Ct., at 1775-1777. Deorle involved a police officer who shot an unarmed man in the face, without warning, even though the officer had a clear line of retreat; there were no bystanders nearby; the man had been "physically compliant and generally followed all the officers' instructions"; and he had been under police observation for roughly 40 minutes. 272 F.3d, at 1276, 1281-1282. In this case, by contrast, Hughes was armed with a large knife; was within striking distance of Chadwick; ignored the officers' orders to drop the weapon; and the situation unfolded in less than a minute. "Whatever the merits of the decision in Deorle, the differences between that case and the case before us leap from the page." Sheehan, supra, at ----, 135 S.Ct., at 1776.
Glenn, which the panel described as "[t]he most analogous Ninth Circuit case," 862 F.3d, at 783, was decided after the shooting at issue here. Thus, Glenn "could not have given fair notice to [Kisela]" because a reasonable officer is not required to foresee judicial decisions that do not yet exist in instances where the requirements of the Fourth Amendment are far from obvious. Brosseau, 543 U.S., at 200, n. 4, 125 S.Ct. 596. Glenn was therefore "of no use in the clearly established inquiry." Brosseau, supra, at 200, n. 4, 125 S.Ct. 596. Other judges brought this mistaken or misleading citation to the panel's attention while Kisela's petition for rehearing en banc was pending before the Court of Appeals. 862 F.3d, at 795, n. 2 (Ikuta, J., dissenting from denial of rehearing en banc). The panel then amended its opinion, but nevertheless still attempted to "rely on Glenn as illustrative, not as indicative of the clearly established law in 2010." Id., at 784, n. 2 (majority opinion). The panel failed to explain the difference between "illustrative" and "indicative" precedent, and none is apparent.
The amended opinion also asserted, for the first time and without explanation, that the Court of Appeals' decision in Harris clearly established that the shooting here was unconstitutional. Id., at 785. The new mention of Harris replaced a reference in the panel's first opinion to Glenn -the case that postdated the shooting at issue here. Compare 841 F.3d 1081, 1090 (C.A.9 2016) ("As indicated by Glenn and Deorle, ... that right was clearly established"), with 862 F.3d, at 785 ("As indicated by Deorle and Harris, ... that right was clearly established").
The panel's reliance on Harris "does not pass the straight-face test." 862 F.3d, at 797 (opinion of Ikuta, J.). In Harris, the Court of Appeals determined that an FBI sniper, who was positioned safely on a hilltop, used excessive force when he shot a man in the back while the man was retreating to a cabin during what has been referred to as the Ruby Ridge standoff. 126 F.3d, at 1202-1203. Suffice it to say, a reasonable police officer could miss the connection between the situation confronting the sniper at Ruby Ridge and the situation confronting Kisela in Hughes' front yard.
For these reasons, the petition for certiorari is granted; the judgment of the Court of Appeals is reversed; and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Officer Andrew Kisela shot Amy Hughes while she was speaking with her roommate, Sharon Chadwick, outside of their home. The record, properly construed at this stage, shows that at the time of the shooting: Hughes stood stationary about six feet away from Chadwick, appeared "composed and content," Appellant's Excerpts of Record 109 (Record), and held a kitchen knife down at her side with the blade facing away from Chadwick. Hughes was nowhere near the officers, had committed no illegal act, was suspected of no crime, and did not raise the knife in the direction of Chadwick or anyone else. Faced with these facts, the two other responding officers held their fire, and one testified that he "wanted to continue trying verbal command[s] and see if that would work." Id., at 120. But not Kisela. He thought it necessary to use deadly force, and so, without giving a warning that he would open fire, he shot Hughes four times, leaving her seriously injured.
If this account of Kisela's conduct sounds unreasonable, that is because it was. And yet, the Court today insulates that conduct from liability under the doctrine of qualified immunity, holding that Kisela violated no "clearly established" law. See ante, at 1152 - 1154. I disagree. Viewing the facts in the light most favorable to Hughes, as the Court must at summary judgment, a jury could find that Kisela violated Hughes' clearly established Fourth Amendment rights by needlessly resorting to lethal force. In holding otherwise, the Court misapprehends the facts and misapplies the law, effectively treating qualified immunity as an absolute shield. I therefore respectfully dissent.
I
This case arrives at our doorstep on summary judgment, so we must "view the evidence ... in the light most favorable to" Hughes, the nonmovant, "with respect to the central facts of this case." Tolan v. Cotton, 572 U.S. ----, ----, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam ). The majority purports to honor this well-settled principle, but its efforts fall short. Although the majority sets forth most of the relevant events that transpired, it conspicuously omits several critical facts and draws premature inferences that bear on the qualified-immunity inquiry. Those errors are fatal to its analysis, because properly construing all of the facts in the light most favorable to Hughes, and drawing all inferences in her favor, a jury could find that the following events occurred on the day of Hughes' encounter with the Tucson police.
On May 21, 2010, Kisela and Officer-in-Training Alex Garcia received a " 'check welfare' " call about a woman chopping away at a tree with a knife. 862 F.3d 775, 778 (C.A.9 2016). They responded to the scene, where they were informed by the person who had placed the call (not Chadwick) that the woman with the knife had been acting "erratically." Ibid. A third officer, Lindsay Kunz, later joined the scene. The officers observed Hughes, who matched the description given to the officers of the woman alleged to have been cutting the tree, emerge from a house with a kitchen knife in her hand. Hughes exited the front door and approached Chadwick, who was standing outside in the driveway.
Hughes then stopped about six feet from Chadwick, holding the kitchen knife down at her side with the blade pointed away from Chadwick. Hughes and Chadwick conversed with one another; Hughes appeared "composed and content," Record 109, and did not look angry. See 862 F.3d, at 778. At no point during this exchange did Hughes raise the kitchen knife or verbally threaten to harm Chadwick or the officers. Chadwick later averred that, during the incident, she was never in fear of Hughes and "was not the least bit threatened by the fact that [Hughes] had a knife in her hand" and that Hughes "never acted in a threatening manner." Record 110-111. The officers did not observe Hughes commit any crime, nor was Hughes suspected of committing one. See 862 F.3d, at 780.
Nevertheless, the officers hastily drew their guns and ordered Hughes to drop the knife. The officers gave that order twice, but the commands came "in quick succession." Id., at 778. The evidence in the record suggests that Hughes may not have heard or understood the officers' commands and may not have been aware of the officers' presence at all. Record 109-110, 195, 323-324 (Officer Kunz's testimony that "it seemed as though [Hughes] didn't even know we were there," and "[i]t was like she didn't hear us almost"); id., at 304 (Officer Garcia's testimony that Hughes acted "almost as if we weren't there"). Although the officers were in uniform, they never verbally identified themselves as law enforcement officers.
Kisela did not wait for Hughes to register, much less respond to, the officers' rushed commands. Instead, Kisela immediately and unilaterally escalated the situation. Without giving any advance warning that he would shoot, and without attempting less dangerous methods to deescalate the situation, he dropped to the ground and shot four times at Hughes (who was stationary) through a chain-link fence. After being shot, Hughes fell to the ground, screaming and bleeding from her wounds. She looked at the officers and asked, " 'Why'd you shoot me?' " Id., at 308. Hughes was immediately transported to the hospital, where she required treatment for her injuries. Kisela alone resorted to deadly force in this case. Confronted with the same circumstances as Kisela, neither of his fellow officers took that drastic measure.
II
Police officers are not entitled to qualified immunity if "(1) they violated a federal statutory or constitutional right, and (2) the unlawfulness of their conduct was 'clearly established at the time.' " District of Columbia v. Wesby, 583 U.S. ----, ----, 138 S.Ct. 577, 589, 199 L.Ed.2d 453 (2018) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012) ). Faithfully applying that well-settled standard, the Ninth Circuit held that a jury could find that Kisela violated Hughes' clearly established Fourth Amendment rights. That conclusion was correct.
A
I begin with the first step of the qualified-immunity inquiry: whether there was a violation of a constitutional right. Hughes alleges that Kisela violated her Fourth Amendment rights by deploying excessive force against her. In assessing such a claim, courts must ask "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). That inquiry "requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., at 396, 109 S.Ct. 1865 ; see also Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). All of those factors (and others) support the Ninth Circuit's conclusion that a jury could find that Kisela's use of deadly force was objectively unreasonable. 862 F.3d, at 779-782. Indeed, the panel's resolution of this question was so convincing that not a single judge on the Ninth Circuit, including the seven who dissented from denial of rehearing en banc, expressly disputed that conclusion. See id., at 791-799 (opinion of Ikuta, J.). Neither does the majority here, which simply assumes without deciding that "a Fourth Amendment violation occurred." Ante, at 1152.
First, Hughes committed no crime and was not suspected of committing a crime. The officers were responding to a "check welfare" call, which reported no criminal activity, and the officers did not observe any illegal activity while at the scene. The mere fact that Hughes held a kitchen knife down at her side with the blade pointed away from Chadwick hardly elevates the situation to one that justifies deadly force.
Second, a jury could reasonably conclude that Hughes presented no immediate or objective threat to Chadwick or the other officers. It is true that Kisela had received a report that a woman matching Hughes' description had been acting erratically. But the police officers themselves never witnessed any erratic conduct. Instead, when viewed in the light most favorable to Hughes, the record evidence of what the police encountered paints a calmer picture. It shows that Hughes was several feet from Chadwick and even farther from the officers, she never made any aggressive or threatening movements, and she appeared "composed and content" during the brief encounter.
Third, Hughes did not resist or evade arrest. Based on this record, there is significant doubt as to whether she was aware of the officers' presence at all, and evidence suggests that Hughes did not hear the officers' swift commands to drop the knife.
Finally, the record suggests that Kisela could have, but failed to, use less intrusive means before deploying deadly force. 862 F.3d, at 781. For instance, Hughes submitted expert testimony concluding that Kisela should have used his Taser and that shooting his gun through the fence was dangerous because a bullet could have fragmented against the fence and hit Chadwick or his fellow officers. Ibid. ; see also Bryan v. MacPherson, 630 F.3d 805, 831 (C.A.9 2010) (noting that "police are required to consider what other tactics if any were available to effect the arrest" and whether there are "clear, reasonable, and less intrusive alternatives" (internal quotation marks and alteration omitted)). Consistent with that assessment, the other two officers on the scene declined to fire at Hughes, and one of them explained that he was inclined to use "some of the lesser means" than shooting, including verbal commands, because he believed there was time "[t]o try to talk [Hughes] down." Record 120-121. That two officers on the scene, presented with the same circumstances as Kisela, did not use deadly force reveals just how unnecessary and unreasonable it was for Kisela to fire four shots at Hughes. See Plumhoff v. Rickard, 572 U.S. ----, ----, 134 S.Ct. 2012, 2020, 188 L.Ed.2d 1056 (2014) ("We analyze [the objective reasonableness] question from the perspective of a reasonable officer on the scene" (internal quotation marks omitted)).
Taken together, the foregoing facts would permit a jury to conclude that Kisela acted outside the bounds of the Fourth Amendment by shooting Hughes four times.
B
Rather than defend the reasonableness of Kisela's conduct, the majority sidesteps the inquiry altogether and focuses instead on the "clearly established" prong of the qualified-immunity analysis. Ante, at 1152. To be " 'clearly established' ... [t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). That standard is not nearly as onerous as the majority makes it out to be. As even the majority must acknowledge, ante, at 1152, this Court has long rejected the notion that "an official action is protected by qualified immunity unless the very action in question has previously been held unlawful," Anderson, 483 U.S., at 640, 107 S.Ct. 3034. "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002). At its core, then, the "clearly established" inquiry boils down to whether Kisela had "fair notice" that he acted unconstitutionally. See ibid. ; Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam ) ("[T]he focus" of qualified immunity "is on whether the officer had fair notice that her conduct was unlawful").
The answer to that question is yes. This Court's precedents make clear that a police officer may only deploy deadly force against an individual if the officer "has probable cause to believe that the [person] poses a threat of serious physical harm, either to the officer or to others." Garner, 471 U.S., at 11, 105 S.Ct. 1694 ; see also Graham, 490 U.S., at 397, 109 S.Ct. 1865. It is equally well established that any use of lethal force must be justified by some legitimate governmental interest. See Scott v. Harris, 550 U.S. 372, 383, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Mullenix v. Luna, 577 U.S. ----, ---- - ----, 136 S.Ct. 305, 313-314, 193 L.Ed.2d 255 (2015) (SOTOMAYOR, J., dissenting). Consistent with those clearly established principles, and contrary to the majority's conclusion, Ninth Circuit precedent predating these events further confirms that Kisela's conduct was clearly unreasonable. See Brosseau, 543 U.S., at 199, 125 S.Ct. 596 ("[A] body of relevant case law" may " 'clearly establish' " the violation of a constitutional right); Ashcroft v. al-Kidd, 563 U.S. 731, 746, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (KENNEDY, J., concurring) ("[Q]ualified immunity is lost when plaintiffs point either to 'cases of controlling authority in their jurisdiction at the time of the incident' or to 'a consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful' " (quoting Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999) )). Because Kisela plainly lacked any legitimate interest justifying the use of deadly force against a woman who posed no objective threat of harm to officers or others, had committed no crime, and appeared calm and collected during the police encounter, he was not entitled to qualified immunity.
The Ninth Circuit's opinion in Deorle v. Rutherford, 272 F.3d 1272 (2001) proves the point. In that case, the police encountered a man who had reportedly been acting "erratically." Id., at 1276. The man was "verbally abusive," shouted " 'kill me' " at the officers, screamed that he would " 'kick [the] ass' " of one of the officers, and "brandish[ed] a hatchet at a police officer," ultimately throwing it "into a clump of trees when told to put it down." Id., at 1276-1277. The officers also observed the man carrying an unloaded crossbow in one hand and what appeared to be "a can or a bottle of lighter fluid in the other." Id., at 1277. The man discarded the crossbow when instructed to do so by the police and then steadily walked toward one of the officers. Ibid. In response, that officer, without giving a warning, shot the man in the face with beanbag rounds. Id., at 1278. The man suffered serious injuries, including multiple fractures to his cranium and the loss of his left eye. Ibid .
The Ninth Circuit denied qualified immunity to the officer, concluding that his use of force was objectively unreasonable under clearly established law. Id ., at 1285-1286. The court held, "Every police officer should know that it is objectively unreasonable to shoot ... an unarmed man who: has committed no serious offense, is mentally or emotionally disturbed, has been given no warning of the imminent use of such a significant degree of force, poses no risk of flight, and presents no objectively reasonable threat to the safety of the officer or other individuals." Id., at 1285.
The same holds true here. Like the man in Deorle, Hughes committed no serious crime, had been given no warning of the imminent use of force, posed no risk of flight, and presented no objectively reasonable threat to the safety of officers or others. In fact, Hughes presented even less of a danger than the man in Deorle, for, unlike him, she did not threaten to "kick [their] ass," did not appear agitated, and did not raise her kitchen knife or make any aggressive gestures toward the police or Chadwick. If the police officers acted unreasonably in shooting the agitated, screaming man in Deorle with beanbag bullets, a fortiori Kisela acted unreasonably in shooting the calm-looking, stationary Hughes with real bullets. In my view, Deorle and the precedent it cites place the unlawfulness of Kisela's conduct " 'beyond debate.' " Wesby, 583 U.S., at ----, 138 S.Ct., at 590.
The majority strains mightily to distinguish Deorle, to no avail. It asserts, for instance, that, unlike the man in Deorle, Hughes was "armed with a large knife." Ante, at 1154. But that is not a fair characterization of the record, particularly at this procedural juncture. Hughes was not "armed" with a knife. She was holding "a kitchen knife-an everyday household item which can be used as a weapon but ordinarily is a tool for safe, benign purposes"-down at her side with the blade pointed away from Chadwick. 862 F.3d, at 788 (Berzon, J., concurring in denial of rehearing en banc). Hughes also spoke calmly with Chadwick during the events at issue, did not raise the knife, and made no other aggressive movements, undermining any suggestion that she was a threat to Chadwick or anyone else. Similarly, the majority asserts that Hughes was "within striking distance" of Chadwick, ante, at 1154, but that stretches the facts and contravenes this Court's repeated admonition that inferences must be drawn in the exact opposite direction, i.e., in favor of Hughes. See Tolan, 572 U.S., at ----, 134 S.Ct., at 1866-1867. The facts, properly viewed, show that, when she was shot, Hughes had stopped and stood still about six feet away from Chadwick. Whether Hughes could "strik[e]" Chadwick from that particular distance, even though the kitchen knife was held down at her side, is an inference that should be drawn by the jury, not this Court.
The majority next posits that Hughes, unlike the man in Deorle, "ignored the officers' orders to drop the" kitchen knife. Ante, at 1154. Yet again, the majority here draws inferences in favor of Kisela, instead of Hughes. The available evidence would allow a reasonable jury to find that Hughes did not hear or register the officers' swift commands and that Kisela, like his fellow officers on the scene, should have realized that as well. See supra, at 1156 - 1157. Accordingly, at least at the summary-judgment stage, the Court is mistaken in distinguishing Deorle based on Hughes' ostensible disobedience to the officers' directives.
The majority also implies that Deorle is distinguishable because the police in that case observed the man over a 40-minute period, whereas the situation here unfolded in less than a minute. Ante, at 1154. But that fact favors Hughes, not Kisela. The only reason this case unfolded in such an abrupt timeframe is because Kisela, unlike his fellow officer, showed no interest in trying to talk further to Hughes or use a "lesser means" of force. See Record 120-121, 304.
Finally, the majority passingly notes that "this Court has already instructed the Court of Appeals not to read [Deorle ] too broadly." Ante, at 1154 (citing City and County of San Francisco v. Sheehan, 575 U.S. ----, ---- - ----, 135 S.Ct. 1765, 1775-1777, 191 L.Ed.2d 856 (2015) ). But the Court in Sheehan concluded that Deorle was plainly distinguishable because, unlike in Deorle, the officers there confronted a woman who "was dangerous, recalcitrant, law-breaking, and out of sight." 575 U.S., at ----, 135 S.Ct., at 1776. As explained above, however, Hughes was none of those things: She did not threaten or endanger the officers or Chadwick, she did not break any laws, and she was visible to the officers on the scene. See supra, at 1155 - 1157. Thus, there simply is no basis for the Court's assertion that " 'the differences between [Deorle ] and the case before us leap from the page.' " Ante, at 1154 (quoting Sheehan, 575 U.S., at ----, 135 S.Ct., at 1776 ).
Deorle, moreover, is not the only case that provided fair notice to Kisela that shooting Hughes under these circumstances was unreasonable. For instance, the Ninth Circuit has held that the use of deadly force against an individual holding a semiautomatic rifle was unconstitutional where the individual "did not point the gun at the officers and apparently was not facing them when they shot him the first time." Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (1991). Similarly, in Harris v. Roderick, 126 F.3d 1189 (1997), the Ninth Circuit held that the officer unreasonably used deadly force against a man who, although armed, made "no threatening movement" or "aggressive move of any kind." Id., at 1203. Both Curnow and Harris establish that, where, as here, an individual with a weapon poses no objective and immediate threat to officers or third parties, law enforcement cannot resort to excessive force. See Harris, 126 F.3d, at 1201 ("Law enforcement officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officers, or is fleeing and his escape will result in a serious threat of injury to persons").
If all that were not enough, decisions from several other Circuits illustrate that the Fourth Amendment clearly forbids the use of deadly force against a person who is merely holding a knife but not threatening anyone with it. See, e.g., McKinney v. DeKalb County, 997 F.2d 1440, 1442 (C.A.11 1993) (affirming denial of summary judgment based on qualified immunity to officer who shot a person holding a butcher knife in one hand and a foot-long stick in the other, where the person threw the stick and began to rise from his seated position); Reyes v. Bridgwater, 362 Fed.Appx. 403, 404-405 (C.A.5 2010) (reversing grant of summary judgment based on qualified immunity to officer who shot a person holding a kitchen knife in his apartment entryway, even though he refused to follow the officer's multiple commands to drop the knife); Duong v. Telford Borough, 186 Fed.Appx. 214, 215, 217 (C.A.3 2006) (affirming denial of summary judgment based on qualified immunity to officer who shot a person holding a knife because a reasonable jury could conclude that the plaintiff was sitting down and pointing the knife away from the officer at the time he was shot and had not received any warnings to drop the knife).
Against this wall of case law, the majority points to a single Ninth Circuit decision, Blanford v. Sacramento County, 406 F.3d 1110 (2005), as proof that Kisela reasonably could have believed that Hughes posed an immediate danger. But Blanford involved far different circumstances. In that case, officers observed a man walking through a neighborhood brandishing a 2 ½-foot cavalry sword; officers commanded the man to drop the sword, identified themselves as police, and warned " 'We'll shoot.' " Id., at 1112-1113. The man responded with "a loud growling or roaring sound," which increased the officers' concern that he posed a risk of harm. Id., at 1113. In an effort to "evade [police] authority," the man, while still wielding the sword, tried to enter a home, thus prompting officers to open fire to protect anyone who might be inside. Id., at 1113, 1118. The Ninth Circuit concluded that use of deadly force was reasonable in those circumstances. See id., at 1119.
This case differs significantly from Blanford in several key respects. Unlike the man in Blanford, Hughes held a kitchen knife down by her side, as compared to a 2 ½-foot sword; she appeared calm and collected, and did not make threatening noises or gestures toward the officers on the scene; she stood still in front of her own home, and was not wandering about the neighborhood, evading law enforcement, or attempting to enter another house. Moreover, unlike the officers in Blanford, Kisela never verbally identified himself as an officer and never warned Hughes that he was going to shoot before he did so. Given these significant differences, no reasonable officer would believe that Blanford justified Kisela's conduct. The majority's conclusion to the contrary is fanciful.
* * *
In sum, precedent existing at the time of the shooting clearly established the unconstitutionality of Kisela's conduct. The majority's decision, no matter how much it says otherwise, ultimately rests on a faulty premise: that those cases are not identical to this one. But that is not the law, for our cases have never required a factually identical case to satisfy the "clearly established" standard. Hope, 536 U.S., at 739, 122 S.Ct. 2508. It is enough that governing law places "the constitutionality of the officer's conduct beyond debate." Wesby, 583 U.S., at ----, 138 S.Ct., at 589 (internal quotation marks omitted). Because, taking the facts in the light most favorable to Hughes, it is "beyond debate" that Kisela's use of deadly force was objectively unreasonable, he was not entitled to summary judgment on the basis of qualified immunity.
III
For the foregoing reasons, it is clear to me that the Court of Appeals got it right. But even if that result were not so clear, I cannot agree with the majority's apparent view that the decision below was so manifestly incorrect as to warrant "the extraordinary remedy of a summary reversal." Major League Baseball Players Assn. v. Garvey, 532 U.S. 504, 512-513, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001) (Stevens, J., dissenting). "A summary reversal is a rare disposition, usually reserved by this Court for situations in which the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error." Schweiker v. Hansen, 450 U.S. 785, 791, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (Marshall, J., dissenting); Office of Personnel Management v. Richmond, 496 U.S. 414, 422, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) ("Summary reversals of courts of appeals are unusual under any circumstances"). This is not such a case. The relevant facts are hotly disputed, and the qualified-immunity question here is, at the very best, a close call. Rather than letting this case go to a jury, the Court decides to intervene prematurely, purporting to correct an error that is not at all clear.
This unwarranted summary reversal is symptomatic of "a disturbing trend regarding the use of this Court's resources" in qualified-immunity cases. Salazar-Limon v. Houston, 581 U.S. ----, ----, 137 S.Ct. 1277, 1282, 197 L.Ed.2d 751 (2017) (SOTOMAYOR, J., dissenting from denial of certiorari). As I have previously noted, this Court routinely displays an unflinching willingness "to summarily reverse courts for wrongly denying officers the protection of qualified immunity" but "rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases." Id., at ---- - ----, 137 S.Ct., at 1282-1283 ; see also Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev. 45, 82 (2018) ("[N]early all of the Supreme Court's qualified immunity cases come out the same way-by finding immunity for the officials"); Reinhardt, The Demise of Habeas Corpus and the Rise of Qualified Immunity: The Court's Ever Increasing Limitations on the Development and Enforcement of Constitutional Rights and Some Particularly Unfortunate Consequences, 113 Mich. L. Rev. 1219, 1244-1250 (2015). Such a one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.
The majority today exacerbates that troubling asymmetry. Its decision is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public. It tells officers that they can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished. Because there is nothing right or just under the law about this, I respectfully dissent.
The majority insists that reliance on Harris fails the " 'straight-face test' " because Harris involved an FBI sniper on a hilltop who shot a man while he was retreating to a cabin during a standoff. Ante, at 1154 (quoting 862 F.3d, at 797 (opinion of Ikuta, J.)). If anything, though, the context of Harris could be viewed as more dangerous than the context here because, unlike Hughes, the suspect in Harris had engaged in a firefight with other officers the previous day, during which an officer was shot. See 126 F.3d, at 1193-1194.
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_weightev | 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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
METROPOLITAN PROPERTY AND LIABILITY INSURANCE CO., Plaintiff, Appellant, v. Bonnie McCosker KIRKWOOD, et al., Defendants, Appellees.
No. 83-1503.
United States Court of Appeals, First Circuit.
Argued Dec. 8, 1983.
Decided March 15, 1984.
Sterling H. Schoen, Jr., Manchester, N.H., with whom Wiggin & Nourie, Man-Chester, N.H., was on brief, for plaintiff, appellant.
N. Michael Plaut and H. Neil Berkson, Keene, N.H., with whom Bragdon, Berkson & Mangones, Keene, N.H., were on brief, for Bonnie McCosker Kirkwood.
Before COFFIN and BREYER, Circuit Judges, and MALETZ, Senior Judge.
Of the United States Court of International Trade, sitting by designation.
BREYER, Circuit Judge.
On April 19, 1982, James Kirkwood shot and killed his stepson, shot and wounded his wife, and then committed suicide. His wife, acting for herself and her son’s estate, sought damages from Kirkwood’s estate. She and the Kirkwood estate joined in asking Metropolitan Property and Liability Insurance Company to pay the damages according to the terms of Kirkwood’s homeowner’s insurance policy. Metropolitan believed it was not liable, for the policy covered only negligently inflicted, not .intentionally inflicted, injuries. And Metropolitan brought a declaratory judgment action against both wife and estate in federal district court, seeking a determination that Kirkwood had acted intentionally, not negligently. Kirkwood’s wife then filed her tort claim against the estate in New Hampshire state court. She claimed (on her own and her son’s behalf) that Kirkwood had either acted intentionally or (being drunk) acted negligently. In either event, the estate would be liable. The estate removed the ease to federal court.
When the federal judge hearing the declaratory judgment action learned about the tort suit, he dismissed the declaratory judgment action. He reasoned that the issues could be resolved at least as well, if not better, in the tort action. Metropolitan appeals from this dismissal. We conclude that Metropolitan is correct and reverse the district court’s dismissal of the declaratory judgment action.
The hornbook law about hearing or dismissing declaratory judgment actions tends to be written in highly general terms. In deciding whether to exercise the power to grant declaratory judgment, given to them by 28 U.S.C. § 2201 and Fed.R.Civ.P. 57, courts look to see whether the declaratory judgment will serve the interests of the litigants or the public. Public Affairs Associates v. Rickover, 369 U.S. 111, 112, 82 S.Ct. 580, 581, 7 L.Ed.2d 604 (1962) (per curiam); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure: Civil § 2759, at 645-51 (2d ed. 1983). Do considerations of efficiency, fairness and practical convenience for the court and parties warrant the court’s granting a declaration of rights? Interdynamics, Inc. v. Wolf, 698 F.2d 157, 167 (3rd Cir.1982). Will a declaratory judgment help clarify the legal questions at issue? Will it relieve the uncertainty or insecurity that gave rise to the dispute? President v. Vance, 627 F.2d 353, 364 n. 76 (D.C.Cir.1980); Alsager v. District Court, 518 F.2d 1160, 1163-64 (8th Cir.1975); 10A C. Wright, A. Miller & M. Kane, supra, § 2759, at 646-51 (quoting E. Borchard, Declaratory Judgments 299 (2d rev. ed. 1941)). Will the action expedite resolution of the underlying dispute? See Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 126-28, 88 S.Ct. 733, 746-747, 19 L.Ed.2d 936 (1968). In reviewing a district court’s application of these principles in a particular case, the courts of appeals have examined the record quite closely to decide whether the court’s decision was “sound” in the circumstances. Doe v. Gallinot, 657 F.2d 1017, 1025 (9th Cir.1981); Hanes Corp. v. Millard, 531 F.2d 585, 591 (D.C.Cir.1976).
Case law has given these general principles a somewhat more specific meaning in the context of insurance disputes. Courts have consistently refused to entertain a declaratory judgment action about insurance coverage when a tort action could resolve the same factual issues. E.g., Indemnity Insurance Co. of North America v. Schriefer, 142 F.2d 851, 853-54 (4th Cir.1944); Employers’ Fire Insurance Co. v. Beals, 103 R.I. 623, 630-31, 240 A.2d 397, 402 (1968); A. Windt, Insurance Claims and Disputes § 8.04 (1982); 10A C. Wright, A. Miller, & M. Kane, supra, § 2760, at 665. This practice prevents duplicative proceedings, may allow the insured his choice of forum, and avoids the danger of inconsistent judgments. The Fourth Circuit, however, has noted an important exception — an exception that was not called to the attention of the district court. In Stout v. Grain Dealers Mutual Insurance Co., 307 F.2d 521 (4th Cir.1962), it upheld a district court’s decision not to dismiss a declaratory judgment action when a conflict of interest existed that would have prevented the insurance company from managing the insured’s defense in an underlying tort suit. In that case, as here, the insured was covered for negligently inflicted, but not intentionally inflicted, injury. The court reasoned that the declaratory judgment action would decide whether the policy required the insurer to defend the tort action. Thus, deciding the declaratory judgment action first would allow the tort action to be tried without the potential conflict between the interests of the insurance company and the insured that would otherwise arise.
The case before us is virtually the same as Stout. In this case, however, the district court decided to dismiss, rather than to retain, the declaratory judgment action. Thus, we must ask whether the particular facts of this case allow the district court to reach a different result than in Stout. We conclude that they do not for two reasons.
For one thing, the district court’s opinion itself suggests that the decision does not rest upon detailed knowledge of any individual facts and circumstances relating to this case; nor did the court rely upon its practical familiarity with litigating rules, procedures or their consequences. Rather, the district court simply relied upon the general “declaratory judgment” rule in insurance cases; it did not mention the Stout exception; and oral argument here revealed that no one called this exception to the district court’s attention. Had someone done so, the court might well have decided differently.
For another thing, the procedural facts that the parties have brought to our attention suggest that this litigation will proceed with significantly greater efficiency if the declaratory judgment action is tried first. The basic issue in dispute apparently is not whether the estate is liable, but whether liability flows from negligent, or intentional, action. This issue can be tried directly in the declaratory judgment proceeding. Trial by jury is available. Fed.R.Civ.P. 57. All interested persons are parties to that proceeding. A decision will bind them all. Although Kirkwood’s wife and estate would prefer a tort trial, they have not explained how the declaratory judgment proceeding could otherwise work to their disadvantage.
The tort track, however, seems more complicated. The. papers before us suggest that Metropolitan is not formally a party in that suit (though it may be helping the estate with its defense). We are uncertain whether all relevant parties (Metropolitan, the estate, and the wife in both her capacities) can be brought together in that suit. Metropolitan might seek to intervene, Fed.R.Civ.P. 24; the estate might seek to implead it, Fed.R.Civ.P. 14; but if Metropolitan and the estate are unwilling, the wife seems unable to bring the insurance company into the tort suit. St. Paul Fire & Marine Insurance Co. v. Mannie, 91 F.R.D. 219, 221 & n. 3 (D.N.D.1981) (joinder unavailable in diversity case if applicable state law prohibits direct action against insurer); see Burke v. Fireman’s Fund Insurance Co., 120 N.H. 365, 367-68, 415 A.2d 677, 678-79 (1980) (New Hampshire law prohibits direct action). If Metropolitan is not a party to the tort suit, it is unlikely to be bound by the judgment. Cf. Burd v. Sussex Mutual Insurance Co., 56 N.J. 383, 267 A.2d 7, 10 (1970) (insurer may dispute coverage when it refuses to defend underlying tort action). That is because its interest — that liability rest on intent — conflicts directly with that of the estate, which would likely prefer that liability rest on insured negligence. And, case law suggests that an insurer can relitigate the liability issue if a conflict prevents it from controlling the insured’s initial defense. Farm Bureau Mutual Automobile Insurance Co. v. Hammer, 177 F.2d 793, 799-801 (4th Cir.1949), cert. denied, 339 U.S. 914, 70 S.Ct. 575, 94 L.Ed. 1339 (1950); Kelly v. Cherokee Insurance Co., 574 S.W.2d 735, 737 (Tenn.1978); A. Windt, supra, § 6.19, at 264-65 & n. 151; Restatement (Second) of Judgments §§ 57, 58 (1982). Regardless, even if Metropolitan were formally a party to the tort action, the parties have not explained how the tort action could proceed so as to avoid the risk of litigating the liability issue twice.
We recognize that to proceed with the declaratory judgment action deprives Kirkwood’s wife of her choice of proceedings. Yet, we are aware of no law giving her an absolute preference. The declaratory judgment rule, Fed.R.Civ.P. 57, states that an action can be maintained despite the “existence of another adequate remedy.” Id. The reasons for granting such a judgment are stronger where, as here, the alternative appears neither simple nor totally adequate. Because the declaratory judgment route provides a fairly straightforward way to resolve the underlying controversy, because neither wife nor estate points to harm or prejudice, and because the tort alternative, based on the parties’ description of it here, may contain significant pitfalls, we conclude that Stout should govern.
The judgment of the district court is therefore
Reversed.
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_counsel2 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
VERSYSS INCORPORATED, Plaintiff, Appellant, v. COOPERS AND LYBRAND, ETC., et al., Defendants, Appellees.
No. 92-1212.
United States Court of Appeals, First Circuit.
Heard July 31, 1992.
Decided Dec. 30, 1992.
Patrick J. Sharkey, Henry A. Sullivan, John F. Sylvia, and Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C., Boston, MA, were on brief, for plaintiff, appellant.
Steven W. Phillips, Christian M. Hoffman, Peter M. Casey and Foley, Hoag & Eliot, Boston, MA, were on brief, for defendants, appellees.
Before TORRUELLA, CYR and BOUDIN, Circuit Judges.
BOUDIN, Circuit Judge.
This case presents a common problem in statutory interpretation. Congress drafted a law that clearly embraces some transactions, clearly excludes others, and is now brought to bear on a transaction that Congress probably did not consider. We are left to make a judgment based on clues garnered from statutory language, legislative history, purpose and policy. In our view, the transaction at issue does not fit comfortably within the statutory language, and no clear policy or precedent encourages courts to extend that language beyond its normal bounds.
I.
On May 17, 1985, Continental Telecom, Inc. (“Contel”) entered into a merger agreement with Northern Data Systems, Inc. (“NDS”). The agreement provided that NDS would be merged into a newly created subsidiary of Contel and, in exchange, NDS stockholders would receive Contel stock. Both Contel and its merger subsidiary were Delaware corporations; NDS was a Massachusetts corporation. At the time of the merger agreement, NDS stock was publicly traded. Previously, a registration statement under the Securities Act of 1933 had been filed with the Securities and Exchange Commission in connection with an August 1984 public offering of NDS stock. See sections 5-16, 15 U.S.C. §§ 77e-77p.
The merger was approved by NDS stockholders, and NDS was merged into the Contel subsidiary on July 16, 1985. In accordance with the merger agreement, Contel's subsidiary as the surviving corporation acquired effective ownership of the assets, and responsibility for the debts, of the former NDS. The merger agreement provided that on the date of the merger, the “separate corporate existence of NDS shall terminate.” Thereafter, in accordance with the merger agreement, the former NDS stockholders sent in their now defunct NDS stock certificates to Contel’s exchange agent and received their Contel stock certificates.
Subsequent to the merger, Contel concluded that the NDS registration statement had contained materially misleading financial information, including information certified by the accounting firm of Coopers & Lybrand. Although the registration statement had been issued before the merger, section 11 of the Securities Act of 1933, 15 U.S.C. § 77k, imposes (subject to certain limitations) continuing liability for misstatements or material omissions in registration statements; after the registration statement becomes effective, a federal damage action may be brought, by “any person acquiring such security,” against any of a list of specific responsible persons, including the certifying accounting firm. Section 11(a), 15 U.S.C. § 77k(a). Accordingly, the present suit, now conducted by Versyss Incorporated as Contel’s assignee, was brought against the accounting firm of Coopers & Lybrand.
In the district court, Coopers & Lybrand moved for summary judgment on the ground that Contel did not qualify as a section 11 plaintiff because it had not “acquired [NDS] securities].” Patently, Con-tel “acquired” something in exchange for the many Contel shares it issued in the merger, so the focus of the dispute is upon the term “security.” Pointing to the transfer of the NDS certificates, Yersyss claimed that NDS securities were acquired by Contel through the merger. The district court, adopting Cooper & Lybrand’s view of the matter, held that the NDS stock certificates were an empty shell not qualifying as a “security” and that the essence of what Contel received was the assets and liabilities of the former NDS. The district court then granted summary judgment for Coopers & Lybrand on the section 11 claim, dismissing pendant state claims without prejudice. This appeal followed.
II.
Statutory construction begins with statutory language. The language in this case is straightforward: section 11 of the Securities Act of 1933, so far as pertinent here, creates a federal cause of action in favor of a purchaser “acquiring a security” after a false or misleading registration statement for that security has gone into effect unless the defendant makes out a statutory defense comprising, in general terms, reasonable inquiry and good faith belief. Sections 11(a)(4), (b), 15 U.S.C. §§ 77k(a)(4), (b).
The term “security” is defined in both the Securities Act of 1933 and Securities Exchange Act of 1934, provisions which despite differences in language are construed alike. Landreth Timber Co. v. Landreth, 471 U.S. 681, 686 n. 1, 105 S.Ct. 2297, 2301 n. 1, 85 L.Ed.2d 692 (1985). Nothing in the language of the definitions precisely resolves the present issue except so far as the variety and breadth of the definitions encourage a broad construction. But terms, even broadly construed, have outer limits, and those limits are strained badly by describing what Contel acquired through the merger as a “security."
On the date of the merger, and before any NDS stock certificates were to be transferred to Contel’s exchange agent, NDS ceased to exist as a corporation. This is ordinary merger-law jurisprudence (Frandsen v. Jensen-Sundquist Agency, Inc., 802 F.2d 941, 944 (7th Cir.1986) (“in a merger the shares of the acquired firm are not bought, they are extinguished”)) and accords with the Contel-NDS agreement already quoted. Delaware’s merger statute follows this pattern, providing that in a merger “the separate existence ... of all such constituent corporations except the one into which the other or others ... have been merged ... shall cease____ [and] all property ... shall be vested in the corporation surviving____” Del. Code Ann. tit. 8, § 259(a). Accord, Mass.Gen.Laws Ann. ch. 156B, §§ 80(a)(1), (5). Under the same statutes and the merger agreement, upon the merger the assets and liabilities of NDS became those of the surviving Contel subsidiary.
It follows that, when the merger became effective, NDS stock underwent a considerable transformation. At that point, the NDS stock certificates ceased to represent an investment interest in the separate assets of NDS (since it no longer existed), ceased to reflect voting rights in the management of NDS (since NDS ceased to have a management), and ceased to comprise a claim to dividends declared from NDS earnings (since no such dividends could be issued). In sum, for the NDS stock the essential characteristics of securities ceased to pertain. “[A]t the moment a stock for stock merger is effective, the stock in a constituent corporation (other than the surviving corporation) ceases to exist legally.” Shields v. Shields, 498 A.2d 161, 168 (Del.Ch.), appeal refused, 497 A.2d 791 (Del.1985).
If this view is taken, then — when the former NDS stockholders turned in their NDS certificates after the merger — what Contel received was not “securities.” At worst, the certificates were wall-paper; at best, they represented evidence that the parties who surrendered the certificates were prior owners of NDS stock, entitled by virtue of the merger agreement to be paid the Contel stock promised as consideration. Nor does Contel’s position improve if one views the situation at the time after the merger agreement was signed but before the merger was consummated. It may be that for some purposes a contract to acquire securities can be treated as an acquisition. Cf Sections 3(a)(13)-(14) of the 1934 Act, 15 U.S.C. §§ 78c(a)(13)-(14). But, as the trial judge pointed out, the merger agreement in this case between Contel and NDS was not a step on the road to Contel’s acquiring of NDS securities but rather was an agreement to merge NDS out of existence.
There is a second piece of evidence, culled from the statutory language, that hinders Versyss’ claim. Section 11 provides a damage formula for the cause of action it creates. Simplifying somewhat, Section 11(e) provides that the recovery is to be the difference between the (presumptively higher) price paid for the security when acquired by the plaintiff-buyer and either of three (presumptively lower) numbers: “(1) the value thereof [of the security] as of the time such suit was brought, or (2) the price at which such security shall have been disposed of in the market before suit, or (3) the price at which such security shall have been disposed of after suit but before judgment____” 15 U.S.C. § 77k(e).
This language assumes a buyer of securities who pays a price for and receives securities. Then, finding that the securities are worth less than the price paid, the buyer brings suit either for the loss of value or, if the buyer sells before suit or before judgment, for the loss suffered on account of the reduced sale price received by the buyer on resale. In sum, the continuation of the acquired securities in the hands of the plaintiff-buyer is a premise of the damage calculation. Yet in this case the NDS securities ceased to exist at the time of merger because the corporation ceased to exist. It would be fantasy to speak of the nonexistent NDS securities as suffering a post-merger decline in value or being resold for less than the purchase price.
Doubtless some formula could be jury-rigged to replicate the substance of section 11(e), were the merger to be treated as an acquisition of NDS securities by Contel. After all, if Contel acquired all of the NDS securities in a tender offer and then merged the company into its subsidiary, securities would have been “acquired” and an arguable claim would exist under section 11. But the statutory damage provision does limn the transactions toward which Congress directed section 11; and, as we have just seen, the extinction of NDS securities incident to the merger conflicts with section ll’s premise of continuity. Viewing the case from the standpoint of damages may itself underscore the nature of Contel’s real complaint: that effective upon the merger it acquired a package of assets and liabilities formerly pertaining to NDS that was worth less than Contel had been led to believe.
III.
Words normally have some elastic in their makeup. Courts in other cases have stretched language further than Versyss asks us to do in this case. If legislative history or purpose encouraged that result, the question here might be a close one. The difficulty is that an inquiry into history and purpose, if instructive at all, favors the more literal reading of the statute adopted by the district court.
The background of the 1933 Act is familiar history. During the stock market boom that preceded the Great Depression, a wave of speculation drove up the largely unregulated market in securities. When the market collapsed in 1929, “[fjully half ... of the securities floated during this period ... proved to be worthless. These cold figures spell[ed] tragedy in the lives of thousands of individuals who invested their life savings, accumulated after years of effort, in these worthless securities.” H.R.Rep. No. 85, 73rd Cong., 1st Sess. 2 (1933). The most notorious example was Samuel Insull’s sale of several million shares of utility stock to the public. The stock, sold to family members and friends of Insull at $12 or less, opened at $30 in the market and climbed to $149 a share, before it collapsed — to the detriment of a million stock and bondholders. Joel Seligman, The Transformation of Wall Street 21-23 (1982).
One of the “foremost” causes of such losses was, in the view of Congress, “the failure to furnish essential information to prospective investors when they were invited to buy securities.” I Louis Loss & Joel Seligman, Securities Regulation 25 (3d ed. 1989). The broad purpose of the 1933 Act was to require full disclosure to investors, and section 11 was “designed to assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability on the parties who play a direct role in a registered offering.” Herman & Maclean v. Huddleston, 459 U.S. 375, 381-82, 103 S.Ct. 683, 687, 74 L.Ed.2d 548 (1983). Contemporaneous writings confirm that the main target of section 11 was the sale of registered securities to the public. See 77 Cong.Rec. 2918 (1933) (Rep. Rayburn); Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L.J. 171, 174-77 (1933).
Needless to say, there is little resemblance between this scene of ill-informed small investors buying investment securities on original issue or later through the market and the triangular “forward merger” by which Contel acquired NDS, doubtless after careful study of information that went far beyond the registration statement issued some years before incident to a public NDS offering. This mismatch ought not deprive Contel of a section 11 remedy in any case where section ll’s “acquiring such security” language fits the transaction (for example, a tender offer acquisition by Contel of the NDS shares). The mismatch does, however, create doubt that stretching the language to fit Contel’s circumstances can be justified as serving Congress’ purpose.
As the Supreme Court has reminded us, the federal securities laws were not designed to provide “a broad federal remedy for all fraud,” Marine Bank v. Weaver, 455 U.S. 551, 556, 102 S.Ct. 1220, 1223, 71 L.Ed.2d 409 (1982), let alone for all negligence. If Coopers & Lybrand has been careless in certifying the registration statement and Contel relied on that statement in setting the terms of the merger, then state law might or might not provide a remedy, depending on how the state court approached issues of negligence, foreseeability, and standing. Section 11, by contrast, is remarkably stringent where it applies, readily imposing liability on ancillary parties to the registration statement (like accountants) for the benefit even of purchasers after the original offering. Its very stringency suggests that, whatever the usual rule about construing remedial securities legislation broadly (e.g., SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 195, 84 S.Ct. 275, 284, 11 L.Ed.2d 237 (1963)), some care should be taken before section 11 is extended beyond its normal reading.
This is apparently a case of first impression, and virtually none of the precedents provides much assistance. Versyss’ best case is SEC v. National Securities, 393 U.S. 453, 466, 89 S.Ct. 564, 571, 21 L.Ed.2d 668 (1969), which it offers for the proposition that the transfer of stock in a merger is a purchase or sale of securities under section 10(b) of the 1934 Act, 15 U.S.C. § 78j(b). It is surely true under National Securities that the NDS stockholders would be treated for purposes of section 10(b) as having “sold” their NDS stock and “purchased” Contel stock in return. Nothing in National Securities suggests, however, that Contel is to be treated as “acquir[ing]” the NDS securities. The key to the anomaly — that a sale of securities may occur without a purchaser of securities — is that the securities, although relinquished by the seller are never acquired by anyone because they cease to exist as securities (by operation of merger law) at the same time as they are relinquished.
The lack of precedent for applying section 11 to our facts may mean only that the acquiring company in a merger transaction rarely relies upon statements in an earlier registration statement of the acquired corporation. On the other hand, it may be that such reliance has occurred from time to time but, when the registration statement proved false and the reliance misplaced, no one thought that section 11 applied. Even so, applying section 11 to merger acquisitions might not unfairly upset settled expectations; under section 11, accountants are held to demanding standards when they certify registration statements and are liable to remote purchasers well beyond more predictable common law limits. But section 11 does not make accountants liable to everyone for any harm remotely flowing from a false or inaccurate statement. See Abbey v. Computer Memories, Inc., 634 F.Supp. 870, 875 (N.D.Cal.1986). The problem, simply put, is to determine where Congress drew the line.
Many statutes, notably statutes of limitation, set limits that create arbitrary stopping-points for liability. Here, it has been assumed that Contel might well have a claim under section 11 if it had acquired the NDS stock in a tender offer and later merged it out of existence. It is even more clear that it would have no claim whatever if the Contel-NDS transaction had been framed as a pure acquisition of NDS assets. Faced with a merger transaction that fits neatly into neither category, any construction of the statute will leave discontinuities and a sense of lingering unease. For us, there is greater conformity to language and less unease in concluding that a defunct security in a non-existent corporation is not a “security” within the meaning of section 11.
The judgment of the district court is affirmed.
. The 1933 Act definition, section 2(1), 15 U.S.C. § 77b(1), provides:
"The term "security” means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, or, in general, any interest or instrument commonly known as a "security,” or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.”
. Subsection (e) provides a rule for choosing between alternatives (2) and (3) if the security has been disposed of after suit but before judgment, and it has several further limitations and provisos dealing with special circumstances. None of these provisions alters the basic structure of the damage formula.
. The section 11 damage remedy was added by amendment in 1934, 48 Stat. 908, but the original section 11 remedy — rescission of the sale— also assumes continuation of the securities.
. The same reasoning disposes of Junker v. Crory, 650 F.2d 1349 (5th Cir.1981), in which the court held that a merger may involve a purchase or sale of securities under section 12(2) of the 1933 Act, 15 U.S.C. § 77l(2) (condemning material misstatements or omissions in connection with such a transaction). The court there was concerned with whether the plaintiff who surrendered securities in the merged corporation and received new securities in the surviving corporation was a purchaser or seller (the court said the plaintiff was both). Once again, this case would treat the NDS stockholders as possible plaintiffs but says nothing about the status of Contel.
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
sc_authoritydecision | A | 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.
FELKER v. TURPIN, WARDEN
No. 95-8836 (A-890).
Argued June 3, 1996
Decided June 28, 1996
Rehnquist, C. J., delivered the opinion for a unanimous Court. Stevens, J., filed a concurring opinion, in which Souter and Breyer, JJ., joined, post, p. 665. Souter, J., filed a concurring opinion, in which Stevens and Breyer, JJ., joined, post, p. 666.
Henry P. Monaghan argued the cause for petitioner. With him on the brief were Stephen C. Bayliss, Mary Elizabeth Wells, and Mark Evan Olive.
Susan V. Boleyn, Senior Assistant Attorney General of Geprgia, argued the cause for respondent. With her on the briefs were Michael J. Bowers, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, and Paige Reese Whitaker, Assistant Attorney General.
Solicitor General Days argued the cause for the United States as amicus curiae. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Dreeben, James A. Feldman, Malcolm L. Stewart, Robert J. Erickson, and David S. Kris
Briefs of amici curiae urging affirmance were filed for the Washington Legal Foundation et al. by Ronald D. Maines, Paul G Cassell, Daniel J. Popeo, and Paul D. Kamenar; and for Senator Orrin G. Hatch, pro se, et al.
Briefs of amici curiae were filed for the State of Alabama et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Stuart A. Cole, Stuart W. Harris, and Jon C. Walden, Assistant Attorneys General, Dan Morales, Attorney General of Texas, Jorge Vega, First Assistant Attorney General, Drew T. Durham, Deputy Attorney General, and Margaret Portman Griffey, John Jacks, and Dana E. Parker, Assistant Attorneys General, Daniel E. Lungren, Attorney General of California, George Williamson, Chief Assistant Attorney General, Donald E. De Nicola, Supervising Deputy Attorney General, and Dane R. Gillette, Senior Assistant Attorney General, Jeff Sessions, Attorney General of Alabama, Grant Woods, Attorney General of Arizona, Gale A. Norton, Attorney General of Colorado, John M. Bailey, Chief State’s Attorney of Connecticut, M. Jane Brady, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Margery S. Bronster, Attorney General of Hawaii, Allan G. Lance, Attorney General of Idaho, Jim Ryan, Attorney General of Illinois, A. B. Chandler III, Attorney General of Kentucky, Scott Harshbarger, Attorney General of Massachusetts, Mike Moore, Attorney General of Mississippi, Jeremiah W. (Jay) Nixon, Attorney General of Missouri, Joseph P. Mazurek, Attorney General of Montana, Don Stenberg, Attorney General of Nebraska, Frankie Sue Del Papa, Attorney General of Nevada, Deborah T. Poritz, Attorney General of New Jersey, Dennis C. Vacco, Attorney General of New York, Michael F. Easley, Attorney General of North Carolina, W. A. Drew Edmondson, Attorney General of Oklahoma, Theodore R. Ko longo ski, Attorney General of Oregon, Thomas W. Corbett, Jr., Attorney General of Pennsylvania, Jeffrey B. Pine, Attorney General of Rhode Island, Mark W. Barnett, Attorney General of South Dakota, Charles W. Burson, Attorney General of Tennessee, Jan Graham, Attorney General of Utah, Christine 0. Gregoire, Attorney General of Washington, James E. Doyle, Attorney General of Wisconsin, and William U. Hill, Attorney General of Wyoming; for the American Civil Liberties Union by Steven R. Shapiro; for the Criminal Justice Legal Foundation et al. by Kent S. Scheidegger; and for the National District Attorneys Association by Lynn Abraham and Ronald Eisenberg.
Chief Justice Rehnquist
delivered the opinion of the Court.
Title I of the Antiterrorism and Effective Death Penalty-Act of 1996 (Act) works substantial changes to chapter 153 of Title 28 of the United States Code, which authorizes federal courts to grant the writ of habeas corpus. Pub. L. 104-132, 110 Stat. 1217. We hold that the Act does not preclude this Court from entertaining an application for habeas corpus relief, although it does affect the standards governing the granting of such relief. We also conclude that the availability of such relief in this Court obviates any claim by petitioner under the Exceptions Clause of Article III, § 2, of the Constitution, and that the operative provisions of the Act do not violate the Suspension Clause of the Constitution, Art. I, §9.
I
On a night in 1976, petitioner approached Jane W. in his car as she got out of hers. Claiming to be lost and looking for a party nearby, he used a series of deceptions to induce Jane to accompany him to his trailer home in town. Petitioner forcibly subdued her, raped her, and sodomized her. Jane pleaded with petitioner to let her go, but he said he could not because she would notify the police. She escaped later, when petitioner fell asleep. Jane notified the police, and petitioner was eventually convicted of aggravated sodomy and sentenced to 12 years’ imprisonment.
Petitioner was paroled four years later. On November 23, 1981, he met Joy Ludlam, a cocktail waitress, at the lounge where she worked. She was interested in changing jobs, and petitioner used a series of deceptions involving offering her a job at “The Leather Shoppe,” a business he owned, to induce her to visit him the next day. The last time Joy was seen alive was the evening of the next day. Her dead body was discovered two weeks later in a creek. Forensic analysis established that she had been beaten, raped, and sodom- . ized, and that she had been strangled to death before being left in the creek. Investigators discovered hair resembling petitioner’s on Joy’s body and clothes, hair resembling Joy’s in petitioner’s bedroom, and clothing fibers like those in Joy’s coat in the hatchback of petitioner’s car. One of petitioner’s neighbors reported seeing Joy’s car at petitioner’s house the day she disappeared.
A jury convicted petitioner of murder, rape, aggravated sodomy, and false imprisonment. Petitioner was sentenced to death on the murder charge. The Georgia Supreme Court affirmed petitioner’s conviction and death sentence, Felker v. State, 252 Ga. 351, 314 S. E. 2d 621, and we denied certiorari, 469 U. S. 873 (1984). A state trial court denied collateral relief, the Georgia Supreme Court declined to issue a certificate of probable cause to appeal the denial, and we again denied certiorari. Felker v. Zant, 502 U. S. 1064 (1992).
Petitioner then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Georgia, alleging that (1) the State’s evidence was insufficient to convict him; (2) the State withheld exculpatory evidence, in violation of Brady v. Maryland, 373 U. S. 83 (1963); (3) petitioner’s counsel rendered ineffective assistance at sentencing; (4) the State improperly used hypnosis to refresh a witness’ memory; and (5) the State violated double jeopardy and collateral estoppel principles by using petitioner’s crime against Jane W. as evidence at petitioner’s trial for crimes against Joy Ludlam. The District Court denied the petition. The United States Court of Appeals for the Eleventh Circuit affirmed, 52 F. 3d 907, extended on denial of petition for rehearing, 62 F. 3d 342 (1995), and we denied certiorari, 516 U. S. 1133 (1996).
The State scheduled petitioner’s execution for the period May 2-9, 1996. On April 29, 1996, petitioner filed a second petition for state collateral relief. The state trial court denied this petition on May 1, and the Georgia Supreme Court denied certiorari on May 2.
On April 24, 1996, the President signed the Act into law. Title I of this Act contained a series of ámendments to existing federal habeas corpus law. The provisions of the Act pertinent to this case concern second or successive ha-beas corpus applications by state prisoners. Section 106(b) specifies the conditions under which claims in second or successive applications must be dismissed, amending 28 U. S. C. § 2244(b) to read:
“(1) A claim presented in a second or successive ha-beas corpus application under section 2254 that was presented in a prior application shall be dismissed.
“(2) A claim presented in a second or successive ha-beas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless—
“(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
“(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
“(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying offense.”
Title 28 U.S.C. § 2244(b)(3) (1994 ed., Supp. II) creates a “gatekeeping” mechanism for the consideration of second or successive applications in district court. The prospective applicant must file in the court of appeals a motion for leave to file a second or successive habeas application in the district court. § 2244(b)(3)(A). A three-judge panel has 30 days to determine whether “the application makes a prima facie showing that the application satisfies the requirements of” § 2244(b). § 2244(b)(3)(C); see §§ 2244(b)(3)(B), (D). Section 2244(b)(3)(E) specifies that “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.”
On May 2,1996, petitioner filed in the United States Court of Appeals for the Eleventh Circuit a motion for stay of execution and a motion for leave to file a second or successive federal habeas corpus petition under §2254. Petitioner sought to raise two claims in his second petition, the first being that the state trial court violated due process by equating guilt “beyond a reasonable doubt” with “moral certainty” of guilt in voir dire and jury instructions. See Cage v. Louisiana, 498 U. S. 39 (1990) (per curiam). He also alleged that qualified experts, reviewing the forensic evidence after his conviction, had established that Joy must have died during a period when petitioner was under police surveillance for Joy’s disappearance and thus had a valid alibi. He claimed that the testimony of the State’s forensic expert at trial was suspect because he is not a licensed physician, and that the new expert testimony so discredited the State’s testimony at trial that petitioner had a colorable claim of factual innocence.
The Court of Appeals denied both motions the day they were filed, concluding that petitioner’s claims had not been presented in his first habeas petition, that they did not meet the standards of § 2244(b)(2), and that they would not have satisfied pre-Act standards for obtaining review on the merits of second or successive claims. 83 F. 3d 1303 (CA11 1996). Petitioner filed in this Court a pleading styled a “Petition for Writ of Habeas Corpus, for Appellate or Certiorari Review of the Decision of the United States Circuit Court for the Eleventh Circuit, and for Stay of Execution.” On May 3, we granted petitioner’s stay application and petition for certiorari. We ordered briefing on the extent to which the provisions of Title I of the Act apply to a petition for habeas corpus filed in this Court, whether application of the Act suspended the writ of habeas corpus in this case, and whether Title I of the Act, especially the provision to be codified at § 2244(b)(3)(E), constitutes an unconstitutional restriction on the jurisdiction of this Court. 517 U. S. 1182 (1996).
II
We first consider to what extent the provisions of Title I of the Act apply to petitions for habeas corpus filed as original matters in this Court pursuant to 28 U. S. C. §§ 2241 and 2254. We conclude that although the Act does impose new conditions on our authority to grant relief, it does not deprive this Court of jurisdiction to entertain original habeas petitions.
A
Section 2244(b)(3)(E) prevents this Court from reviewing a court of appeals order denying leave to file a second ha-beas petition by appeal or by writ of certiorari. More than a century ago, we considered whether a statute barring review by appeal of the judgment of a circuit court in a habeas case also deprived this Court of power to entertain an original habeas petition. Ex parte Yerger, 8 Wall. 85 (1869). We consider the same question here with respect to § 2244(b)(3)(E).
Yerger’s holding is best understood in the light of the availability of habeas corpus review at that time. Section 14 of the Judiciary Act of 1789 authorized all federal courts, including this Court, to grant the writ of habeas corpus when prisoners were “in custody, under or by colour of the authority of the United States, or [were] committed for trial before some court of the same.” Act of Sept. 24, 1789, ch. 20, § 14, 1 Stat. 82. Congress greatly expanded the scope of federal habeas corpus in 1867, authorizing federal courts to grant the writ, “in addition to the authority already conferred by law,” “in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Act of Feb. 5, 1867, ch. 28, 14 Stat. 385. Before the Act of 1867, the only instances in which a federal court could issue the writ to produce a state prisoner were if the prisoner was “necessary to be brought into court to testify,” Act of Sept. 24,1789, ch. 20, § 14,1 Stat. 82, was “committed ... for any act done ... in pursuance of a law of the United States,” Act of Mar. 2,1833, ch. 57, § 7, 4 Stat. 634-635, or was a “subjec[t] or citize[n] of a foreign State, and domiciled therein,” and held under state law, Act of Aug. 29, 1842, ch. 257, 5 Stat. 539-540.
The Act of 1867 also expanded our statutory appellate jurisdiction to authorize appeals to this Court from the final decision of any circuit court on a habeas petition. 14 Stat. 386. This enactment changed the result of Barry v. Mercein, 5 How. 103 (1847), in which we had held that the Judiciary Act of 1789 did not authorize this Court to conduct appellate review of circuit court habeas decisions. However, in 1868, Congress revoked the appellate jurisdiction it had given in 1867, repealing “so much of the [Act of 1867] as authorizes an appeal from the judgment of the circuit court to the Supreme Court of the United States.” Act of Mar. 27, 1868, ch. 34, §2, 15 Stat. 44.
In Yerger, we considered whether the Act of 1868 deprived us not only of power to hear an appeal from an inferior court’s decision on a habeas petition, but also of power to entertain a habeas petition to this Court under § 14 of the Act of 1789. We concluded that the 1868 Act did not affect our power to entertain such habeas petitions. We explained that the 1868 Act’s text addressed only jurisdiction over appeals conferred under the Act of 1867, not habeas jurisdiction conferred under the Acts of 1789 and 1867. We rejected the suggestion that the Act of 1867 had repealed our habeas power by implication. Yerger, 8 Wall., at 105. Repeals by implication are not favored, we said, and the continued exercise of original habeas jurisdiction was not “repugnant” to a prohibition on review by appeal of circuit court habeas judgments. Ibid.
Turning to the present case, we conclude that Title I of the Act has not repealed our authority to entertain original habeas petitions, for reasons similar to those stated in Yerger. No provision of Title I mentions our authority to entertain original habeas petitions; in contrast, § 103 amends the Federal Rules of Appellate Procedure to bar consideration of original habeas petitions in the courts of appeals. Although § 2244(b)(3)(E) precludes us from reviewing, by-appeal or petition for certiorari, a judgment on an application for leave to file a second habeas petition in district court, it makes no mention of our authority to hear habeas petitions filed as original matters in this Court. As we declined to find a repeal of § 14 of the Judiciary Act of 1789 as applied to this Court by implication then, we decline to find a similar repeal of §2241 of Title 28 — its descendant, n. 1, supra — by implication now.
This conclusion obviates one of the constitutional challenges raised. The critical language of Article III, §2, of the Constitution provides that, apart from several classes of cases specifically enumerated in this Court’s original jurisdiction, “[i]n all the other Cases . . . the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Previous decisions construing this clause have said that while our appellate powers “are given by the constitution,” “they are limited and regulated by the [Judiciary Act of 1789], and by such other acts as have been passed on the subject.” Durousseau v. United States, 6 Cranch 307, 314 (1810); see also United States v. More, 3 Cranch 159, 172-173 (1805). The Act does remove our authority to entertain an appeal or a petition for a writ of cer-tiorari to review a decision of a court of appeals exercising its “gatekeeping” function over a second petition. But since it does not repeal our authority to entertain a petition for habeas corpus, there can be no plausible argument that the Act has deprived this Court of appellate jurisdiction in violation of Article III, §2.
B
We consider next how Title I affects the requirements a state prisoner must satisfy to show he is entitled to a writ of habeas corpus from this Court. Title I of the Act has changed the standards governing our consideration of habeas petitions by imposing new requirements for the granting of relief to state prisoners. Our authority to grant habeas relief to state prisoners is limited by § 2254, which specifies the conditions under which such relief may be granted to “a person in custody pursuant to the judgment of a State court.” § 2254(a). Several sections of the Act impose new requirements for the granting of relief under this section, and they therefore inform our authority to grant such relief as well.
Section 2244(b) addresses second or successive habeas petitions. Section 2244(b)(3)’s “gatekeeping” system for second petitions does not apply to our consideration of habeas petitions because it applies to applications “filed in the district court.” § 2244(b)(3)(A). There is no such limitation, however, on the restrictions on repetitive and new claims imposed by §§ 2244(b)(1) and (2). These restrictions apply without qualification to any “second or successive habeas corpus application under section 2254.” §§ 2244(b)(1), (2). Whether or not we are bound by these restrictions, they certainly inform our consideration of original habeas petitions.
III
Next, we consider whether the Act suspends the writ of habeas corpus in violation of Article I, § 9, clause 2, of the Constitution. This Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
The writ of habeas corpus known to the Framers was quite different from that which exists today. As we explained previously, the first Congress made the writ of habeas corpus available only to prisoners confined under the authority of the United States, not under state authority. Supra, at 659-660; see Ex parte Dorr, 3 How. 103 (1844). The class of judicial actions reviewable by the writ was more restricted as well. In Ex parte Watkins, 3 Pet. 193 (1830), we denied a petition for a writ of habeas corpus from a prisoner “detained in prison by virtue of the judgment of a court, which court possesses general and final jurisdiction in criminal cases.” Id., at 202. Reviewing the English common law which informed American courts’ understanding of the scope of the writ, we held that “[t]he judgment of the circuit court in a criminal case is of itself evidence of its own legality,” and that we could not “usurp that power by the instrumentality of the writ of habeas corpus.” Id., at 207.
It was not until 1867 that Congress made the writ generally available in “all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Supra, at 659. And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction in a state court to be collaterally attacked on habeas. See, e. g., Waley v. Johnston, 316 U. S. 101 (1942) (per curiam); Brown v. Allen, 344 U. S. 443 (1953). But we assume, for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789. See Swain v. Pressley, 430 U. S. 372 (1977); id., at 384 (Burger, C. J., concurring in part and concurring in judgment).
The Act requires a habeas petitioner to obtain leave from the court of appeals before filing a second habeas petition in the district court. But this requirement simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court as required by 28 U. S. C. § 2254 Rule 9(b). The Act also codifies some of the pre-existing limits on successive petitions, and further restricts the availability of relief to habeas petitioners. But we have long recognized that “the power to award the writ by any of the courts of the United States, must be given by written law,” Ex parte Bollman, 4 Cranch 75, 94 (1807), and we have likewise recognized that judgments about the proper scope of the writ are “normally for Congress to make.” Lonchar v. Thomas, 517 U. S. 314, 323 (1996).
The new restrictions on successive petitions constitute a modified res judicata rule, a restraint on what is called in habeas corpus practice “abuse of the writ.” In McCleskey v. Zant, 499 U. S. 467 (1991), we said that “the doctrine of abuse of the writ refers to a complex and evolving body of equitable principles informed and controlled by historical usage, statutory developments, and judicial decisions.” Id., at 489. The added restrictions which the Act places on second habeas petitions are well within the compass of this evolutionary process, and we hold that they do not amount to a “suspension” of the writ contrary to Article I, § 9.
> I
We have answered the questions presented by the petition for certiorari in this case, and we now dispose of the petition
for an original writ of habeas corpus. Our Rule 20.4(a) delineates the standards under which we grant such writs:
“A petition seeking the issuance of a writ of habeas corpus shall comply with the requirements of 28 U. S. C. §§ 2241 and 2242, and in particular with the provision in the last paragraph of § 2242 requiring a statement of the ‘reasons for not making application to the district court of the district in which the applicant is held.’ If the relief sought is from the judgment of a state court, the petition shall set forth specifically how and wherein the petitioner has exhausted available remedies in the state courts or otherwise comes within the provisions of 28 U. S. C. § 2254(b). To justify the granting of a writ of habeas corpus, the petitioner must show exceptional circumstances warranting the exercise of the Court’s discretionary powers and must show that adequate relief cannot be obtained in any other form or from any other court. These writs are rarely granted.”
Reviewing petitioner’s claims here, they do not materially differ from numerous other claims made by successive ha-beas petitioners which we have had occasion to review on stay applications to this Court. Neither of them satisfies the requirements of the relevant provisions of the Act, let alone the requirement that there be “exceptional circumstances” justifying the issuance of the writ.
* * *
The petition for writ of certiorari is dismissed for want of jurisdiction. The petition for an original writ of habeas corpus is denied.
It is so ordered.
Section 14 is the direct ancestor of 28 U. S. C. § 2241, subsection (a) of which now states in pertinent part: “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”
This language from the 1867 Act is the direct ancestor of § 2241(c)(3), which states: “The writ of habeas corpus shall not extend to a prisoner unless . . . [h]e is in custody in violation of the Constitution or laws or treaties of the United States.”
Section 103 of the Act amends Federal Rule of Appellate Procedure 22(a) to read: “An application for a writ of habeas corpus shall be made to the appropriate district court. If application is made to a circuit judge, the application shall be transferred to the appropriate district court. If an application is made to or transferred to the district court and denied, renewal of the application before a circuit judge shall not be permitted. The applicant may, pursuant to section 2253 of title 28, United States Code, appeal to the appropriate court of appeals from the order of the district court denying the writ.”
As originally enacted in 1948, 28 U. S. C. § 2254 specified that “[a]n application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State.” 28 U. S. C. §2254 (1946 ed., Supp. III). The reviser’s notes, citing Ex parte Hawk, 321 U. S. 114 (1944) (per curiam), indicated that “[t]his new section is declaratory of existing law as affirmed by the Supreme Court.” Reviser’s Note following 28 U. S. C. §2254, p. 1109 (1946 ed., Supp. III). Hawk was one of a series of opinions in which we applied the exhaustion requirement first announced in Ex parte Royall, 117 U. S. 241 (1886), to deny relief to applicants seeking writs of habeas corpus from this Court.
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: |
songer_geniss | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Linda Jean BOURDON, Defendant-Appellant.
No. 79-1694.
United States Court of Appeals, Ninth Circuit.
July 8, 1980.
John J. Cleary, San Diego, Cal., for defendant-appellant.
Judith S. Feigin, Asst. U. S. Atty., on the brief, Michael H. Walsh, U. S. Atty., Judith S. Feigin, Asst. U. S. Atty., argued, San Diego, Cal., for plaintiff-appellee.
Before SNEED and PREGERSON, Circuit Judges, and TEMPLAR, District Judge.
Honorable George Templar, Senior United States District Judge for the District of Kansas, sitting by designation.
PER CURIAM.
Appellant Bourdon pleaded guilty to one count of conspiracy to import marijuana in violation of 21 U.S.C! § 963 (1976). Although appellant initially received a suspended sentence and was placed on probation, she violated the terms of the probation order and was sentenced to 18 months imprisonment and, in addition, there was imposed a special parole term of two years. Appellant thereafter filed a Rule 35 motion to reduce the sentence. The term of imprisonment was reduced but the district court refused to strike the special parole term.
Appellant appeals on the ground that the special parole term is not authorized when the offense is conspiracy in violation of 21 U.S.C. § 963. The appellant is correct. In Bifulco v. United States, - U.S. -, 100 S.Ct. 2247, 64 L.Ed.2d-(1980), the Supreme Court held that a court may not impose a special parole term for conspiracy to commit a drug offense under 21 U.S.C. § 846 (1976). Though appellant’s conviction was obtained under 21 U.S.C. § 963 (1976), the wording of that section is identical to that of section 846. Bifulco makes it clear, we think, that the special parole term given in this case was improper.
We reverse and remand to the district court for resentencing in accordance with the authority of Bifulco.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_district | G | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Willie Lee DIGBY, Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Appellee.
No. 16159.
United States Court of Appeals Fifth Circuit.
Jan. 4, 1957.
John T. Gano, Fort Worth, Tex., Clint A. Barham, Dallas, Tex., for appellant.
Curtis White, Dallas, Tex., for appellee.
Before RIVES, TUTTLE and CAMERON, Circuit Judges.
TUTTLE, Circuit Judge.
This appeal from a judgment of the trial court dismissing appellant’s suit under the Texas Workmen’s Compensation Law, Vernon’s Ann.Civ.St. art. 8306 et seq., presents two questions: (1) Whether the alleged failure of the appellant to institute and prosecute his suit within twenty days would deprive the trial court of jurisdiction over the lawsuit, and (2) whether the evidence and affidavits furnished sufficient basis for the trial court’s decision that there was a failure to prosecute the suit.
If the motion to dismiss the suit on the ground that the Texas court from which it was removed to the federal district court did not acquire jurisdiction of the subject matter because of a failure to comply with the statutory requirements truly addressed itself to the lack of jurisdiction of the court, then that is*sue could properly be tried by the court without a jury. Hardin v. McAvoy, 5 Cir., 216 F.2d 399, 403.
The suit was in the District Court by removal from the Texas state court. It had been filed by a workmen’s compensation claimant who was not willing to abide by the final ruling of the Industrial Accident Board and had given due notice of such fact. Thereupon the following provision of the Texas statute became applicable :
“If any party to such final ruling and decision of the Board, after having given notice as above provided, fails within said twenty (20) days to institute and prosecute a suit to set the same aside, then said final ruling and decision shall be binding upon all parties thereto.” Rev.Civ. Stat.Tex. art. 8307, § 5, Vernon’s Ann.Civ.St. art. 8307, § 5.
The record discloses that the suit was filed in the State court on September 19, 1955, two days after the notice, but that citation thereon was not issued by the clerk of the district court of Dallas County until October 24, 1955. After removal to the federal court appellee filed its motion to dismiss, alleging a lack of jurisdiction by reason of the following circumstances: Upon the filing of the suit the clerk was instructed not to issue citation thereon; these instructions were changed on October 24th and citation issued. It is contended that such delay in “prosecuting the suit” for more than 20 days after giving notice deprived the court of jurisdiction to entertain the action.
Of course this motion is taken as an attack on the jurisdiction of the state court over the subject matter and not as an attack on the jurisdiction of the federal court as such since upon removal the federal court’s jurisdiction over the subject matter is limited to that which could be acquired by the state court before removal.
Our determination whether this is a jurisdictional question or merely an attempt to interpose a plea of the statute of limitations must depend upon the Texas law, although appellant here seems not to question the assertion that compliance with the terms of the statute must be shown in order to confer jurisdiction on the trial court. Appellant says in his brief: “The question here presented to this Honorable Court is one of jurisdiction alone and not limitation.” To be absolutely certain that this was not an unintended concession by counsel we inspect the Texas cases cited by appellant to support his legal theory of the case. The decision cited immediately preceding the language quoted above is Maryland Casualty Co. v. Jones (Texas Commission of Appeals, opinion adopted by the Texas Supreme Court), 129 Tex. 392, 104 S.W. 2d 847, 849. The following passages are « quoted from that case in appellant’s brief here:
“Many cases involving the question of the tolling of ordinary statutes of limitation by the filing of a petition with direction to the clerk to withhold the issuance of citation are cited and relied upon. We do not find it necessary to consider or discuss these cases, because the question is not whether ordinary limitation statutes were tolled, but whether the court acquired any jurisdiction. * * *
“Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same, an undisclosed intention not being sufficient.
“In the instant case it clearly cannot be held, as a matter of law, that the employee had no bona fide intention to prosecute his suit at the time he filed his petition.”
We think it clear that the Texas decisions unvaryingly support this proposition. In Mingus v. Wadley, 285 S.W. 1084, at page 1087 the Supreme Court ■of Texas used the following language:
“The Workmen’s Compensation Act having created the rights to be enforced and provided the remedy therefor, each step in the progress of the maturity of a claim from the time of the injury to its final adjudication is a mandatory requirement, necessary to the exercise of jurisdiction by the first and succeeding statutory agencies * *
Because of the important effect that a correct determination of the question of whether the challenge is really to the jurisdiction of the trial court has on the procedure of disposing of that challenge we have thus carefully examined the Texas decisions on this point notwithstanding the apparent concession by appellant himself.
We therefore conclude that if there was a failure to prosecute the suit within 20 days by the failure of the plaintiff to cause the citation to issue the trial court acquired no jurisdiction of the suit; further we hold that the trial court could determine the disputed fact issue as to whether the plaintiff did fail to prosecute timely upon affidavit or oral testimony and without a jury trial.
There remains the question whether there was sufficient evidence to support the finding of fact by the trial court that there was such failure to prosecute.
The sworn motion of the defendant alleged that the plaintiff had instructed the clerk not to issue citation when the suit was filed, and it is undisputed that none issued for 35 days after filing and that the clerk testified that he had been instructed not to issue it at the time the suit was filed. It was also testified to by the lawyer who had filed the suit, not counsel of record on this appeal, that he had filed several suits on September 19th, and that in one of them (which he did not identify) he had instructed the clerk not to issue the citation. On the hearing the court stated: “Either one of you can send me a statement of what the clerk’s records show” (as to the cases filed by counsel on that particular day). Immediately thereafter, appellee submitted an affidavit by two deputy clerks to the effect that counsel had filed but one suit on the 19th and none on the previous or following days.
The legal test under the Texas cases, whether “prosecution” has proceeded within 20 days is not in issue. Both parties agree that the test is whether the suit is filed within 20 days “with the bona fide intent that citation shall issue and be served at once upon the defendants.” This quotation comes from Ocean Accident & Guaranty Corp. v. May, Tex. Com.App., 15 S.W.2d 594, 597, which case is cited by both parties here as stating the law.
Appellant also cites Maryland Casualty Co. v. Jones, supra. In that case there was an immediate effort made to obtain a waiver of citation but a delay in causing the citation to issue which the court held to be sufficient compliance with the requirement. The court then repeated substantially the test of the Ocean Accident & Guaranty case, saying: “Of course, there must be a bona fide intention to prosecute the suit, which must be evidenced by acts of the party filing same.” The court then added “an undisclosed intention not being sufficient.”
Here there was ample evidence that the lawyer, at the time of filing the suit, whether at the very moment he handed it to the clerk or simply before he left the clerk’s presence, told him not to have citation issue. It is immaterial if, as appellant contends, the clerk testified that he was first told to issue and then not to do so, since he testified it was all at the time of filing. This evidence is ample to authorize the court to resolve the issue against the appellant. In fact, in light of the undisputed testimony of the clerk and the testimony of the lawyer himself, a contrary holding by the trial court would be without substantial support. It being our function not to retry this issue on the facts, but only to determine whether the court’s holding was clearly erroneous, we must affirm the judgment of the trial court.
CAMERON, Circuit Judge, concurs in the result.
. Footnote 5 there quotes from Wetmore v. Rymer, 169 U.S. 115, 120, 121, 18 S. Ot. 293, 42 L.Bd. 682 and subsequent Supreme Oourt and other authorities.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_judgdisc | 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 the abuse of discretion by the trial judge favor the appellant?" This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
UNITED STATES of America, Plaintiff-Appellee, v. David William ROBERTS, Defendant-Appellant.
No. 84-3124.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 9, 1985.
Decided Dec. 10, 1985.
Designated for Publication Feb. 21,1986.
Carl E. Rostad, Asst. U.S. Atty., Great Falls, Mont., for plaintiff-appellee.
James Parke Taylor, Stewart A. Pearce, II, Missoula, Mont., for defendant-appellant.
Before BROWNING and ALARCON, Circuit Judges, and WILKINS, District Judge.
The Honorable Philip C. Wilkins, Senior United States District Judge for the Eastern District of California, sitting by designation.
WILKINS, District Judge.
David William Roberts appeals from his convictions on one count of bank fraud, one count of bankruptcy fraud, and two counts of perjury. We affirm the convictions on all counts, but remand to the district court for modification of its order regarding restitution.
MULTIPLICITY OF CHARGES
Appellant contends that the trial court committed reversible error by refusing to dismiss three multiplicious counts of perjury. The indictment contained a count of concealment of assets of a bankrupt estate in violation of 18 U.S.C. § 152 (1982) and three counts of making a false statement under oath concerning the location of assets of a bankrupt estate in violation of 18 U.S.C. § 1621 (1982).
An indictment is not multiplicious if each count requires proof of a fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932); United States v. Kennedy, 726 F.2d 546, 547-48 (9th Cir.), cert. denied, — U.S. -, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984). In determining whether a count requires proof of a fact which the other does not, “[t]he elements of the offense are determinative, even if there is substantial overlap in their proof.” United States v. Solomon, 753 F.2d 1522, 1527 (9th Cir.1985). The perjury counts required proof of facts which the concealment count did not, and the district court did not abuse its discretion in denying Roberts’ motion to dismiss the perjury counts.
Appellant also contends that the district court erred by failing to merge Roberts’ convictions for perjury and concealment for purposes ' of sentencing. When the same act constitutes a violation of two separate criminal statutes, a defendant may be convicted of and receive punishment under both statutes without offending the double jeopardy clause if proof of one violation does not necessarily include proof of the other offense, and there is no evidence that Congress intended to prohibit separate punishment for the two offenses. See United States v. Woodward, — U.S. -, 105 S.Ct. 611, 612-13, 83 L.Ed.2d 518 (1985) (per curiam). Under this test the district court properly declined to merge appellant’s convictions for purposes of sentencing.
SEVERANCE
Appellant contends further that the district court erred in denying his motion to sever the various counts into three trials. Offenses may be joined in the same indictment and tried together when they are “based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Rule 8(a), Fed.R.Crim.P. “When the joined acts are logically related, and there is a large area of overlapping proof, joinder is appropriate.” United States v. Anderson, 642 F.2d 281, 284 (9th Cir.1981).
In this case all of Roberts’ offenses involved the assets of his bankrupt cookie company. He committed bank fraud to obtain financing for the company, and then committed bankruptcy fraud and perjury to conceal assets from the trustee of the bankruptcy estate. The counts were logically related with a large area of overlapping proof, and their joinder in one indictment and one trial was proper.
LIMITATION OF CROSS-EXAMINATION
Appellant argues that the district court abused its discretion in limiting his cross-examination of adverse witnesses and by refusing to admit into evidence some of his proposed exhibits. He contends that the excluded evidence was relevant to show bias and prejudice on the part of the witnesses.
The fact that appellant’s creditors threatened him with prosecution if he failed to divest himself of his interest in the cookie business had no bearing on their credibility as witnesses. Assuming, however, that the evidence was relevant the court did not abuse its discretion in excluding it. “When the trial court excludes evidence tending to impeach a witness, it has not abused its discretion as long as the jury has in its possession sufficient information to appraise the biases and motivations of the witness.” United States v. Kennedy, 714 F.2d 968, 973 (9th Cir.1983), cert. denied, 465 U.S. 1034, 104 S.Ct. 1305, 79 L.Ed.2d 704 (1984). We believe that the jury in the present case had sufficient evidence to appraise the bias and motives of the witnesses.
MATERIALITY
Roberts claims that the district court erred in holding that his testimony before the bankruptcy trustee in Count IV was material as a matter of law. We do not agree.
In this perjury count Roberts was questioned about the names of a group of investors to whom he was selling one of the assets of his bankrupt company. He contends that the purpose of the questioning was to determine the location and value of the assets of the bankrupt estate, and that the names of the investors were not material to the investigation. However, the withheld information that he was one of the investors in the new baking company could have assisted the trustee in discovering the estate’s extent and whereabouts and was material. See Sigman v. United States, 320 F.2d 176, 177-78 (9th Cir.1963), cert. denied, 375 U.S. 967, 84 S.Ct. 485, 11 L.Ed.2d 415 (1964).
Appellant also argues that the district judge erred because he refused to make his ruling on materiality prior to trial, and did not rule on this issue until after the close of the government’s case. Any error in the timing of the ruling could not have been prejudicial, however, because Roberts was acquitted on Count IV.
IMPEACHMENT
Appellant contends further that the trial court erred in allowing a bill of sale to be used to impeach him during trial. Roberts had made a motion pursuant to Fed.R. Crim.P. 16(a)(1)(A) requesting that the United States be required to produce any statements, copies of statements, or the substance of any oral statement of the defendant in the custody or control of the United States. At the hearing the prosecutor represented to the court that he had already supplied the defendant with everything which the United States intended to introduce into evidence. At the trial the United States impeached the defendant’s credibility by showing him and discussing with him a bill of sale for a baking oven signed by the defendant. Roberts objected to the use of the document for impeachment because it was a prior written statement of the defendant subject to disclosure under Rule 16, and the trial court held that the bill of sale was not a relevant written statement within the meaning of Fed.R. Crim.P. 16(a)(1)(A).
We need not decide whether the bill of sale should have been disclosed by the government. If there was error, we are satisfied that the error was harmless and did not materially affect the verdict. See United States v. Bailleaux, 685 F.2d 1105, 1116 (9th Cir.1982).
The record does not indicate that knowledge by Roberts that the government would use the bill of sale would have changed his defense strategy or that he would have changed his decision to take the stand. Moreover, the exhibit was withdrawn by the government and never seen by the jury, and the jury acquitted Roberts on the count relating to perjured testimony regarding the oven mentioned in the bill of sale.
RESTITUTION
Appellant’s final contentions challenge the district court’s imposition of a $200,000.00 order of restitution as part of his sentence. Roberts contends, inter alia, that restitution is improper because he was adjudged a personal bankrupt and none of his creditors filed an objection to discharge. However, the failure of Roberts’ creditors to object to his personal bankruptcy does not prevent the court from ordering restitution in the criminal case. United States v. Carson, 669 F.2d 216, 217-18 (5th Cir.1982); United States v. Alexander, 743 F.2d 472, 480 (7th Cir.1984). Bankruptcy proceedings are not generally concerned with criminality, and discharge may occur regardless of how the debtor has incurred his debts. Although appellant’s restitution order was made pursuant to the Victim and Witness Protection Act, 18 U.S.C. § 3579, rather than a condition of probation as in Carson and Alexander, his period of confinement was relatively short. The restitution order is still a critical element of his rehabilitative process and was properly imposed by the trial judge in lieu of a longer period of imprisonment.
We do not find any of appellant’s other contentions regarding restitution convincing except for the objection to the timing of payment. 18 U.S.C. § 3579(f)(3) provides that unless the sentencing court provides to the contrary in the restitution order, restitution is due immediately. The district court here did not specify a payment period in its order and we believe unintentionally made restitution due immediately when appellant does not have the funds available at the present time. The trial judge found that Roberts was a speculator and may have assets again in the future. Accordingly, we remand to the district court for the limited purpose of modifying the order to make restitution payable within a specified period or in specified installments in accordance with 18 U.S.C. § 3579(f)(2) and United States v. Keith, 754 F.2d 1388, 1393 (9th Cir.1985).
CONCLUSION
We affirm appellant’s convictions and remand to the district court for modification of its restitution order consistent with this Memorandum.
Question: Did the court's ruling on the abuse of discretion by the trial judge favor the appellant? This includes the issue of whether the judge actually had the authority for the action taken, but does not include questions of discretion of administrative law judges.
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
SALEM MFG. CO. v. FIRST AMERICAN FIRE INS. CO. OF NEW YORK.
No. 9372.
Circuit Court of Appeals, Ninth Circuit.
May 9, 1940.
Stephen W. Matthieu, of Portland, Or., and Rhoten & Rhoten, of Salem, Or., for appellant.
H. A. Thornton and Evans M. Taylor, .both of San Francisco, Cal., and A. L. Veazie and J. C. Veazie, both of Portland, Or., for appellee.
Before GARRECHT, HANEY, and HEALY, Circuit Judges.
GARRECHT, Circuit Judge.
This action was instituted to recover the sum of $20,000 and interest under the terms of what is commonly known as a riot and civil commotion insurance policy.
During all the time herein referred to, the appellant was a corporation, organized and existing under and by virtue of the laws of the State of Oregon. Prior to February 26, 1938, the name of said corporation was Salem Box & Manufacturing Company, Inc., but on said day the name was changed to Salem Manufacturing Company, and it may hereinafter be referred' to as the box company. The appellee, First American Fire Insurance Company, is a corporation, organized and existing under the laws of the State of New York, and by virtue of the laws of the State of Oregon is authorized to do an insurance business in that state.
This action was instituted in the Circuit Court of the State of Oregon for Polk County and upon petition of appellee was thereafter removed to the United States District Court for the District of Oregon. The complaint alleged that on July 27, 1937, in consideration of a premium paid, the insurance company executed and delivered to the 'box company a policy of insurance which insured it “Against All Direct Loss or Damage Caused by Any of the Following: “(1) Riot; (2) Riot Attending a Strike; * * * ” Other pertinent provisions of the policy were:
“If loss occur the insured shall give immediate notice in writing to this Company * * * ; and within sixty days after the loss, unless such time is extended in writing by this Company shall render a statement to this Company, signed and sworn to by said insured, * * *. [Here follow the details to be furnished, which, we believe, do not require consideration.]
“No suit or action on this policy, for the recovery of any claim, shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with, nor unless commenced within twelve months next after the loss ; * * *»
It was further alleged that on or before November 20, 1937 (while the policy was in effect), a riot participated in by the persons named in the complaint and others, occurred at or near the box factory and that as a part of said riot and as a result thereof the insured property was completely destroyed by fire; that the property so destroyed was of a value in excess of the insurance, and that by reason of the riot appellant sustained loss totaling $20,000.
Appellant alleged in an amended complaint its full compliance with the terms of the policy (this having been denied by the answer). Appellee’s answer pleaded certain provisions of the insurance policy, one of which was that appellant was required to furnish proof of loss within sixty days after the fire occurred, and the answer averred that although the fire occurred on November 20, 1937, appellant furnished no proof of loss until August 11, 1938. In its amended complaint appellant admits that it did not present proof of loss until about said date but avers that it did not discover that the fire was the direct and proximate cause of the riot until during the month of July, 1938. This allegation was controverted by appellee. The answer also denied there was any riot which was the proximate cause of the fire or any riot at all. Other affirmative defenses were pleaded in the answer to the effect that after the destruction of the property, the policy was surrendered and canceled; that appellant had collected other insurance for the loss; that there was no opportunity given appellee for appraisal of the loss; that it had been deprived of its right to ■subrogation; that there had been an election of remedies; and, finally, there was a plea of estoppel.
Affirmative matters alleged in the answer are not pertinent on this appeal as the appellee was awarded a directed verdict at the conclusion of appellant’s evidence.
The following is a summary of the facts of the case based upon the evidence presented by appellant. During the year 1937 appellant had become involved in a controversy with a labor union which was attempting to unionize the box factory at Salem, Oregon. Beginning about July 23, 1937, a picket was placed near the box factory plant. About the second day some of appellant’s employees went out and ordered the pickets to leave, which they did for that day. The next day they returned with a bodyguard of about twenty men, who stationed themselves across the road from the plant. Soon after their arrival the employees and bodyguard began throwing at one another, the employees using rotten eggs, the bodyguard using rocks, some of which hit the box factory building. On the first day the pickets stopped a Japanese gardener and interfered with his effort to back his truck into the plant; other customers were stopped and warned against coming into the box factory. After the first encounter only a few of the bodyguard accompanied the picket. He usually arrived at eight o’clock, when work started, and quit at five, when the factory closed for the evening. About July 31, 1937, the appellant procured a court injunction, and there was no picketing through August and until September 10, when the court dissolved the injunction. On that day the picket returned, but he had no bodyguard until after about October 1, when the employees of appellant went out and tore his banner off of him; on the next day he returned with his bodyguard.
The picket at no time disturbed or interfered with appellant’s customers, but the bodyguard “would holler at the customers and tell them to stay out.” They would stop the trucks when they were backing in, and warn against going into the plant. Off and on there was throwing between the plant employees and the picket guard.
Concerning the strike situation appellant’s president and manager, among other things, testified that on different occasions there was some trouble between his employees and the picket guards. He said, “I didn’t pay so much attention to it, but the boys somehow didn’t like the picket there.”
“Q. Well, did the picket have some help at different times? A. Oh, he had help pretty near all the time.
“Q. And what do you mean by help? A. I think he had protection.
* * *
“A. When the pickets were first placed there were two pickets there, one for the Salem Box Company and one for the Beut-ler-Quistad Lumber Company. The one for the Salem Box Company was outside of the city limits and the one for the Beutler-Quistad was in the city limits. There was an ordinance against carrying a banner without a permit and this picket was arrested, * * *
After the picket was arrested about half a dozen of the bodyguard came over that afternoon.
“Q. And then what happened?
“A. And there was a lot of milling around, and some of our boys, some of the boys in the shop, got in arms and quite a number of them got clubs ready and I discovered it and I told them to lay off of the clubs, We don’t want any trouble over here.’ Later on we had trouble anyway, you just couldn’t stop it, because the men were never approached by the organizer. * * *
“Q. All right. You say there was clubs; did you see those clubs? A. Yes, I saw those clubs.
“Q. Were you present at the time there was any throwing of rocks back and forth ? A. Well, I didn’t see it at first and then somebody called my attention to it and I looked out and they were throwing rotten eggs from our side, from the factory side, and rocks from the other side, and I went and stopped it. I told the boys to lay off of it because we didn’t want to get anybody hurt.”
Another witness for appellant, testifying concerning the trouble between the representatives of the labor union and the employees of appellant, said, “Well, the picket had been mobbed and his banner torn off and he came back to the Labor Temple and reported * * * ”
A. N. Banks was the business agent of the Teamsters’ Union in Salem. Rosser was secretary of the Joint Council of the State of Oregon and Southwestern Washington, and the superior officer of the council in the district. Banks at numerous times reported the activities going on about the box factory and the trouble there about the picket being' mobbed and his banner torn off. Thereupon Rosser decided that the method to be used for taking care of the trouble was to burn the box factory. The events leading up to and attending the setting of the fire were testified to by appellant’s witnesses, Banks, C arson, and Newland. At the time of the trial all of these men were prisoners in the Oregon State penitentiary, serving sentences for arson for having been implicated in setting fire to appellant’s factory.
On November 19, 1937, the day preceding the fire, the picket and the bodyguard were at their accustomed places near the plant. The bodyguard left early in the day, and the picket left about two-thirty or three o’clock in the afternoon.
About noon that day Newland and Carson, accompanied by one Moore, who had just arrived from California, came to Banks’ office. After having had breakfast they all got into Newland’s automobile and drove past the box factory. They were shown a building in the back of the factory where chips were kept. It was agreed that Moore, Carson, and Newland were to come back that night, about midnight, and burn the factory. Newland testified that while discussing the arrangements for the burning, there was some talk as to the possibility of a watchman being on duty at the plant; that Moore said “if there was a watchman there; why, just knock him out and leave him lay.” However, Banks told them that there was no watchman at the plant after about ten or eleven o’clock at night, but in case that he was there, they were to forget the job, and if it did not look right, for them to let it go.
The remarks of Moore regarding possible violence to the watchman is referred to at several places in the testimony and is emphasized in appellant’s brief as basis for the contention that the burning of the box factory was the culminating disaster of the alleged riot. Concerning the conversation appellant’s witness testified:
“Q. Now Cecil Moore said that he was willing to go in and touch that off himself, didn’t he? A. Yes.
“Q. And you went with him to prevent any violence in case you encountéred anybody; isn’t that right? A. Yes, sir.
“The Court: Was one reason for that because Banks said he didn’t want any violence? A. I don’t remember if there was any discussion about that with Banks.
“The Court: Your recollection is that was just your idea and Carson’s idea? A. Yes, sir.
“The Court: That you two didn’t want any violence? A. That is right; yes, sir.
“Q. And during the time that you were in or around that factory you saw nobody that night, did you? A. No, sir.
“Q. That is, except Moore and Carson? A. Yes, sir.
“Q. And that is true, taking the time a little before you reached the factory until after you left there, you saw nobody except the other two mfen; is that, right? A, Yes, sir.”
The testimony shows that the burning of the factory was to be effected by Moore, Newland, and Carson. Moore had volunteered to set fire to it himself, but on account of the remark made by him relative to knocking out any watchman that might appear on the scene, Newland and Carson were anxious to avoid the possibility of any violence being done the watchman, if he should be about the premises. So instead of letting Moore do the job alone, it was agreed between Carson and Newland that the latter was to be with Moore and that the fire would not be set until about one o’clock in the morning. About that time Carson drove the car to a point in the roadway in front of the plant; Moore and Newland got out, took with them a gallon of gasoline and a book of matches. Neither had any weapons. They sprinkled the gasoline on some trash and old lumber at the rear of the box factory, lighted it, and then ran back and got into the car, which was driven away as fast as possible.
As to Proof of Loss.
It is admitted that the loss occurred on November 20, 1937, and that the proofs of loss were not made until August 11; 1938. Appellant pleads as an excuse for the delay that “The fact that said destruction was the direct and proximate result of a riot was not discovered by or known to plaintiff until during the month of July, 1938.”
Appellant is charged with the knowledge of its manager and agents. The manager, Mr. Friesen, and Mr. Crabb, the bookkeeper, testified at length on conditions existing in and about the plant during the time the strike was on up to the day of the fire. Thereafter they kept informed on events pertaining to the fire.
Mr. Crabb knew of the picketing of the mill; the rocks and rotten egg encounter; the truck stopping episodes and other difficulties narrated above. He knew that Newland, Carson, and Moore on January-31, 1938, were arrested for burning the factory, that they all three pleaded guilty. He knew that Banks was arrested February 8, 1938, pleaded guilty February 16, 1938, and was sentenced April 24, 1938.
Mr. Friesen, the manager, knew of the conflict between the boys in the shop and the picket and his bodyguard, the throwing of eggs from the factory side and rocks from the other side; that a number of the shop boys got clubs ready to beat up the opposition and that he made them lay off because he did not want anybody hurt. He was advised of the fire immediately after it started to burn. Proof of loss was presented to other insurance companies, in which was set forth the following statement: “A fire loss occurred on the 20th day of November, 1937, about the hour of 1:30 o’clock A. M., which upon the best knowledge and belief of assured originated incendiary — person or persons unknown.” The instrument was signed by Mr. Friesen and sworn to on the 23d day of November, 1937. On his examination he said he did not know his statement was in the proof. However, he admitted that he did know during the first part of the month of February, 1938, that the fire had been set and that he had read The Oregon Statesman, of February 9, 1938, which contained pictures of .Banks, Carson, Newland, and Moore, and the news item that these men had been arrested charged with burning appellant’s box factory. This item, among other matters, reported that Mr. Friesen had said “he had been convinced at all times that it was incendiary.” Friesen admitted that about February 9th or 10th, 1938, he had talked to Banks at the Polk County Court House relative to the fire, that Banks broke down and cried and told him he was sorry about the fire.
C. M. Lindberg, a witness for appellant, testified that in the latter part of April, 1938, he was employed by appellant to make an appraisal of the property that had been destroyed by the fire, to be used in a suit the appellant contemplated bringing against the unions on account of the destruction of the plant. Mr. Friesen employed him.
At the conclusion of plaintiff’s evidence defendant moved for a directed vedict on the following grounds:
“First, the plaintiff has failed to prove that the loss and damage caused by the fire alleged in the complaint was caused by or arose out of a riot.
“Second, the plaintiff has failed to prove that the loss and damage alleged in the complaint was covered by the policy of insurance issued by the defendant.
“Third, the plaintiff has failed to comply with policy conditions relative to filing proofs of loss.
“Fourth, the plaintiff has failed to prove compliance with the policy conditions as alleged in plaintiff’s complaint.
“Fifth, that it affirmatively appears that the loss and damage alleged in said complaint was covered by policies of fire insurance, whereas in and by the policy of insurance issued by the defendant it was and is provided that this company shall not be liable for loss or damage covered under any fire or other kind of insurance contracts.”
After hearing the argument upon the motion the court directed the jury to return a verdict for the defendant. A verdict, as directed was received and entered, and thereupon judgment was rendered for appellee from which appellant appeals to this court.
In passing on the motion for directed verdict the court below stated to the jury: “This case involves a question as to whether a riot occurred under the Oregon statute, which requires the use of force or violence by three or more persons acting together. In my opinion there has been no substantial credible evidence offered indicating that force or violence was used, and, therefore, it is my duty to request and direct you to return a verdict for the defendant * * * ” The appellant assigns this action of the trial court as the sole error presented on this appeal. “It is the contention of the appellant that ‘force and violence’ within the meaning of the Oregon statute abundantly appear by the evidence.”
In opening its argument appellant says in its brief: “As stated by the trial court in directing the verdict, this question evolves around the Oregon statute which defines the term ‘riot.’ It has been assumed by all of the parties and the trial 'court as well, and we think properly so, that the Oregon statutory definition of riot should be read in connection with terms of the policy. The policy of insurance insures against all direct loss or damage caused by riot, but no attempt is made in the policy to define the term ‘riot.’ ”
Section 14-601, Chapter VI, Title 14, Oregon Annotated Code, undertakes to define riot and unlawful assembly in the same section — the first sentence applies to riot; the second sentence, immediately following, refers to unlawful assembly. For purposes of clarity we here separate the two sentences, but in the original text both are parts of the same paragraph:
“Definition of riot and unlawful assembly. — [1st sentence] Any usé of force or violence, * * * if accompanied by immediate power of execution, by three or more persons acting together, and without authority of law, is riot. [Emphasis supplied.]
“[2d sentence] Whenever three or more persons assemble with intent, or with means and preparation to do an unlawful act, which would be riot if actually committed, but do not act towards the commission thereof, or whenever such persons assemble without authority of law, and in such manner as is adapted to disturb the public peace or excite public alarm, or disguised in a manner adapted to prevent them from being identified, such assembly is an unlawful assembly.”
It conclusively appears that the plan to burn the box factory of appellant was to be accomplished with great secrecy and without causing any disturbance. The hour of one o’clock in the morning was selected because it was known that the watchman, who usually stayed on duty until ten or eleven o’clock at night, would have gone home. It was understood that if a watchman was found on the premises, or some other interruption occurred, that the purpose to burn the buildings would be deferred to a more favorable time. Neither Newland or Moore, who set the fire, was armed in any way. They accomplished their purpose quietly, without any disturbance whatever. They saw or heard no one, and there is no evidence that they were seen or heard by anyone. It is worthy of note that appellant pleads that it did not discover that a riot had occurred until about a year after the event. The circumstances attending the setting of this fire did not constitute a riot according to the common understanding of the word or according to the definition of the common law.
“ * * * In the common-law authorities there is no substantial disagreement concerning the definition of a riot. In 4 Blackstone (Chitty’s Ed.) p. 147, we find the following: ‘ “A riot” is where three or more actually do an unlawful act of violence, either with or without a common cause or quarrel, as, if they beat a man, or hunt and kill game in another’s park, chase, warren, or liberty, or do any other unlawful act with force and violence, or even do a lawful act, as removing a nuisance, in a violent and tumultuous manner.’ In 1 Russell on Crimes, p. 265, an old English work of high repute, the author states: ‘A “riot” is described to be a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist one another against any who shall oppose them in the execution of some enterprise of a private nature, and after-wards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful. * * * It seems to be agreed that the injury or grievance complained of and intended to be revenged or.remedied by a riotous assembly must relate to some private quarrel only, * * * or such like matters relating to the interests or dispute of particular persons in no way concerning the public. It seems to be clearly agreed that in every riot there must be some such circumstance, either of actual force or violence, or at least of an apparent tendency thereto, as are naturally apt to strike a terror into the people. * * * But it is not necessary, in order to constitute this crime, that personal violence should have been committed. * * * But the violence and tumult must be in some way premeditated; for if a number of persons being met together at a fair, market, or any other lawful or innocent occasion happen on a sudden quarrel to fall together by the ears, it seems to be agreed that they are not guilty of a riot, but only of a sudden affray. * * * But, if there be any predetermined purpose of acting with violence and tumult, the conduct of the parties may be deemed riotous.’ This definition is also found in 1 Hawkins, Pleas of the Crown, p. 513. Webster defines a riot to be ‘the tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object.’ And Bouvier in his Law Dictionary as ‘a tumultuous disturbance of the peace by three persons or more, assembling together of their own authority, with an intent mutually to assist each other against any who shall oppose them in the execution of some enterprise of a private nature, and afterwards actually executing the same in a violent and turbulent manner, to the terror of the people, whether the act intended were of itself lawful or unlawful.’ The common-law definition of a riot is generally approved by modern text-writers on the subject of criminal law. Thus Bishop in his work on Criminal Law (volume 2, §§ 1143, 1149), although he makes slight criticism of the definition laid down by Russell on Crimes, says: A ‘riot is such disorderly conduct in three or more assembled persons, actually accomplishing an object, as is calculated to terrify others. * * * The act of the rioters need not be such as it would be unlawful for one to perform. Whether iir this sense lawful or unlawful, if it is done by three or more in a turbulent manner, calculated to excite terror, it is a riot.’ Wharton in his work on Criminal Law (volume 2, §§ 1537 [1539], 1544), defines a riot as ‘a tumultuous disturbance of the public peace by an unlawful assembly of three or more persons in the execution of some private object. * * * It must be also shown in riot that the assembling was accompanied with some such circumstances, either of actual force or violence, or at least having an apparent tendency thereto, as were calculated to inspire people with terror; such as being armed, making threatening speeches, turbulent gestures, or the like. * * * To constitute a riot it is not necessary that there should be actual fright to the public generally. It is enough if the action of the parties implicated be so violent and tumultuous as to be likely to cause fright, and if individuals are frightened.’ These general definitions are approved in Aron v. Wausau, 98 Wis. 592, 74 N.W. 354, 40 L.R.A. 733; State v. Stalcup, 23 N.C. 30 [1 Ired.Law 30], 35 Am.Dec. 732; Lycoming F. Ins. Co. v. Schwenk, 95 Pa. 89, 40 Am.Rep. 629; Dupin v. Mutual Ins. Co., 5 La.Ann. 482; Com. v. Gibney, 2 Allen (Mass.) 150; State v. Snow, 18 Me. 346; State v. Hughes, 72 N.C. [25], 27. It will thus be seen that the modern definition of a riot is in harmony with and follows the common-law definition, and that the legal meaning of the word corresponds with the meaning given to it in ordinary usage. It has no technical import as distinguished from its signification when used in the everyday affairs of life. If we look to either Blackstone or Webster, we have the same result.”
The above quotations are taken from the opinion in Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7, 116 S.W. 234, 235, 20 L.R.A.,N.S., 277, 279, 280, 136 Am.St.Rep. 164, cited in appellant’s brief.
To sustain its claim that the burning of the factory in the case at bar was the culmination of a riot and within the definition of the Oregon statute appellant cites and comments on a number of criminal cases decided by Oregon courts: State v. Mizis, 48 Or. 165, 85 P. 611, 86 P. 361; State v. Seeley, 51 Or. 131, 94 P. 37; and State v. Allen, 152 Or. 422, 53 P.2d 1054. It would require too much space to discuss these cases at length; it is sufficient to point out that in each of them the facts comported with the common understanding of a riot as expressed in the citations of authority heretofore quoted. The conduct of the participants in each case was boisterous and disorderly. They all involved disturbances connected with force and violence and the use of firearms, always resulted in someone being hurt, and in every case, with a single exception, one or more persons were killed.
Appellant also cites as supporting its contention a number of insurance cases, which required the determination of what constituted a riot within the terms of the policy of insurance: Lycoming Fire Insurance Co. v. Schwenk, 40 Am.Rep. 629, 95 Pa. 89; Spring Garden Insurance Co. v. Imperial Tobacco Company, 132 Ky. 7, 116 S.W. 234, 20 L.R.A.,N.S., 277, 136 Am.St.Rep. 164; Luckett-Wake Tobacco Co. v. Globe & Rutgers Fire Insurance Co., C.C., 171 F. 147; Brous v. Imperial Assurance Co., 130 Misc. 450, 224 N.Y.S. 136; Insurance Co. of North America v. Rosenberg, 2 Cir., 25 F.2d 635. In these cases the courts held that the facts showed that the fire was the work of rioters. But, just as in the criminal cases heretofore noted, in each case there was putting in fear by threats to do bodily harm or the exhibition of weapons or actual discharge of firearms; in fact there was such display of force that people were terrified. Of course such unlawful acts constituted riot.
Appellant contends that the commission of the crime of arson, the effort required to carry gasoline to the box factory, pouring it upon the inflammable debris, and striking and applying the match constituted such acts of force and violence as to render the action of the trial court erroneous. Such a construction would make practically every crime committed by three or more persons a riot. If three unarmed men acting together at night entered a field through a gate and without noise or disturbance carry away three sacks of .grain, could it be said that they had been engaged in a riot? The words used in phrasing the statute preclude any such construction. It says: “Any use of force or violence, or any threat to use force or violence, if accompanied by immediate power of execution, by three or more persons acting together, * * * .” This cannot mean the force used to light a match.
In Walter v. Northern Ins. Co., 370 Ill. 283, 18 N.E.2d 906, 121 A.L.R. 244, damage was done to an unoccupied house by persons who entered it by stealth, without disturbing anyone; it was held not to be within the coverage of an insurance policy against damage by riot, and it was further held that a statute defining criminal “riot” and penalizing those engaging therein would not be construed as changing the common law beyond what is expressed by the words of the statute. In that connection the court said (370 Ill. 283, 18 N.E.2d 908, 121 A.L.R. 248) : “The question comes, then, on the construction of the terms ‘force’ or ‘violence.’ Do they mean merely the manual force necessary to accomplish the act, or do they mean something more ? There is no doubt that under the common law ‘force or violence’ meant a concerted intent of the perpetrators to mutually assist one another against all who should oppose them in the doing of an unlawful act. 3 Greenleaf on Evidence, 16th ed., sec. 216. Thus the definition of riot, under the common law, meant more than the mere force necessary to do the act; it meant a defiance of constituted authority or of the rights of the person injured, or his effort to protect such rights. The terms ‘force’ and ‘violence,’ as applied to offenses of this character, are, according to such standard lexicographers as Webster and Bouvier, synonymous.”
The force contemplated by the act is the united force of three or more individuals acting in concert with the increased capacity to overcome resistance, and significantly the statute makes the threat to use force or violence equally punishable. Clearly, then, the force and violence forbidden was not merely muscular exertion, but of a kind with which a person could be threatened. The threat contemplated by the law was not one made against some inanimate object, but against an individual. In this sense there can be no threat without a person to be threatened. “Threat” is defined in Funk & Wagnall’s New Standard Dictionary as:
“1. A declaration of an intention to inflict pain, injury, or punishment; a menace.
“2. Law. Any menace of bodily hurt through fear of which a man’s business is interrupted; any menace of destruction or injury to life, reputation, or property, with a view to restrain a person’s freedom of action. [Emphasis supplied]
The Supreme Court of Oregon has held that words used in statutory definitions are to be construed in accordance with common understanding.
“In construing penal statutes, the legislative intent is in most cases to be found by giving to the words the meaning in which they are used in ordinary speech.” Kirk v. Farmers’ Union Grain Agency, 103 Or. 43, 202 P. 731, 732.
The case of International Wire Works v. Hanover Fire Ins. Co., 230 Wis. 72, 283 N.W. 292, was an action to recover on a riot insurance policy. Plaintiff owned a manufacturing plant. On the night in question the janitor locked the plant and went home. On his return in the morning he found that someone had entered during the night and had done very extensive damage to the machinery and to cases of wire cloth which were ready for shipment. The guilty persons apparently used a pickaxe, or some such instrument, and an electric drill. While the wording of the statute against riot was not exactly like the Oregon statute, it was generally similar. In sustaining the action of the trial court in dismissing the action the Supreme Court said (230 Wis. 72, 283 N.W. 293):
“The generally understood meaning of the word ‘riot’ is an assembly of individuals who commit a lawful or unlawful act in a violent or tumultuous manner, to the terror or disturbance of others. * * *
“The trial court correctly ruled that there was no material distinction between the common meaning of the word ‘riot’ and the definition contained in the statutes. The court was also correct when it said, ‘The essence of the offense is violence and tumult. There has been a total absence of any proof which would establish riotous destruction of property, and the court must therefore hold for the defendant.’
“Taken together, the definition of riot in sec. 347.02 and the imposition of liability in sec. 66.07 leave no room for doubt that the generally accepted definition of riot obtains in this state and that an element which must be included is the terror or disturbance of persons who are not participating in the violent or tumultuous acts. The parties to the insurance contracts upon which the present action is brought contemplated something more than violent acts done by three or more persons in stealth without the knowledge of others who might resist their acts or summon the armed force of the city. Even though there is terror or disturbance at the time that the damage is discovered, a crime committed secretly away from the public view is not a riot. No riot exists in the absence of publicity at the time of the vio--lent or tumultuous acts.”
In Kirshenbaum v. Massachussets Bonding & Ins. Co., 107 Neb. 368, 372, 186 N.W. 325, 326, it is said: “The words ‘riot or civil commotion’ as used in the policy in suit will be given their popular or usual meaning, and be held to imply the wild or irregular action or tumultuous conduct on the part of three or more persons assembled together for the common purpose of doing an unlawful act.”
No decisions from the Courts of the State of Oregon construing this statute as it may relate to insurance contracts have been brought to our attention; so we follow here the generally accepted rule. According to the weight of authority the term “riot” as used in a policy of insurance will be given its usual and ordinary meaning. In such cases it will not be presumed that a criminal statute defining “riot” has changed the common-law meaning or definition of that term beyond what is expressly declared therein or that any innovation is intended further than is specifically expressed or clearly to be implied.
Since the views heretofore expressed are decisive of this case, it is not necessary to discuss appellant’s failure to furnish proof of loss within the time required by the terms of the policy of insurance.
Affirmed.
HANEY, Circuit Judge, concurs in the result.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_search | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?" 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". If a civil suit brought by a prisoner or a criminal defendant in another action that alleges a tort based on an illegal search and seizure, also consider the issue to be present in the case.
UNITED STATES of America, Plaintiff-Appellee, v. Anthony Nicholas CARRION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Michael Anthony CARRION, Defendant-Appellant.
Nos. 71-2425, 71-2426.
United States Court of Appeals, Ninth Circuit.
June 29, 1972.
Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., Carl E. Stewart, Orange, Cal., for defendants-appellants.
Jan Lawrence Handzlik, Asst. U. S. Atty. (argued), Eric A. Nobles, Darrell W. McIntyre, Asst. U. S. Attys., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before DUNIWAY and KILKENNY, Circuit Judges, and MURPHY, District Judge
Honorable Thomas P. Murphy, United States Senior District Judge, Sharon, Connecticut, sitting by designation.
DUNIWAY, Circuit Judge:
Michael and Anthony Carrion were convicted in a jury trial of conspiring to smuggle marijuana into the United States from Mexico and to receive and conceal illegally imported marijuana, violations of 21 U.S.C. § 176a, and they appeal. We affirm.
FACTS
The jury found that appellants conspired illegally to import large quantities of marijuana from Mexico into the United States by aitrplane. To aid them, appellants enlisted two comrades, Ponting and Cassidy, who testified for the prosecution. Ponting testified that Anthony telephoned him twice during the summer of 1970 and offered him a job driving a truck. In late August 1970, Ponting and Michael drove a rented truck to the Agua Dulce Air Park near Los Angeles, where they met Anthony and Cassidy and unloaded a large quantity of marijuana which the latter two had just flown in from Mexico. Several days later Michael asked Ponting to meet another shipment. Ponting drove to the same airport, met Anthony and Cassidy, and transferred the shipment from the plane to the truck. Ponting received another call from Michael several days later and again drove to the airport to meet another load, but the plane never arrived. Ponting made another run to the airport on September 11 for the same purpose, but he and Cassidy were arrested by United States Customs agents at the airport and the marijuana in the plane was seized.
Cassidy testified that Anthony induced him to fly plane loads of marijuana from Mexico to the Agua Dulce Air Park in the summer of 1970. He flew to Mexico several times before his arrest on September 11 at the airport, usually accompanied by Anthony, and brought back loads of marijuana.
A. Anthony Carrion’s appeal.
1. Search and seizure.
Anthony filed a motion to suppress the marijuana seized at the airport on September 11, but the trial judge rejected Anthony’s theory that a conspirator has standing to challenge a search directed against a co-conspirator when the fruits of the search are introduced against him. The trial judge was right. Alderman v. United States, 1969, 394 U.S. 165, 171-172, 89 S.Ct. 961, 22 L.Ed.2d 176; Diaz-Rosendo v. United States, 9 Cir., 1966, 357 F.2d 124, 132, cert. denied, 385 U.S. 856, 87 S.Ct. 104, 17 L.Ed.2d 83.
Anthony then asked for an evidentiary hearing under Rule 41(e), F. R.Crim.P., to show that he was in fact the object of the search. The trial judge refused the hearing because Anthony was not present at the airport when the plane was searched and did not, in the motion to suppress or the supporting affidavit, allege either ownership or possession of the matter seized. The trial court correctly distinguished Jones v. United States, 1960, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, which held that one charged with a crime that includes possession as an essential element does not have to allege possession in order to challenge the legality of the search. Possession is not an essential element of the crime of which Anthony was convicted.
Anthony argues that he alleged a possessory interest in the marijuana in essence when he requested suppression of “all items of personal property” taken from the plane. That position was properly rejected by the trial court on the ground that the term “personal property” was too vague and indefinite to be read as including an allegation of possessory interests in the marijuana. Evidentiary hearings need be held only when the moving papers allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that relief must be granted if the facts alleged are proved. Cohen v. United States, 9 Cir., 1967, 378 F.2d 751, 760, 761, cert. denied, 389 U.S. 897, 88 S.Ct. 217, 19 L. Ed.2d 215.
2. Foundation for testimony about telephone conversations.
Anthony argues that the testimony of Ponting and Cassidy concerning their various telephone conversations with a person claiming to be Anthony should have been excluded because neither witness stated that he recognized the caller’s voice as that of Anthony, and therefore no proper foundation was laid for admission of the testimony. We do not agree. We decided this issue in Carbo v. United States, 9 Cir., 1963, 314 F.2d 718, 743, cert. denied, Palermo v. United States, 377 U.S. 953, 84 S.Ct. 1625, 12 L.Ed.2d 498. See also Noriega v. United States, 9 Cir., 1971, 437 F.2d 435, 436, cert. denied, 402 U.S. 908, 91 S.Ct. 1380, 28 L.Ed.2d 648. We find no abuse of discretion here because there is abundant circumstantial evidence to support a jury finding that the caller was Anthony.
3. Limitations on scope of cross-examination.
Anthony claims that the trial judge improperly restricted his right to cross-examine government witnesses. Specifically, he objects to the refusal of the judge to permit inquiry into Cassidy’s relationship with one Cliff Guttersrud, the person Anthony claims was responsible for the marijuana-smuggling scheme.
The rule in this circuit was recently stated in United States v. Haili, 9 Cir., 1971, 443 F.2d 1295, 1299:
“The scope of cross-examination is within the discretion of the trial court and limitation will not result in reversal unless it is clear that the defendant was denied his constitutional right of confrontation. Enciso v. United States, 370 F.2d 749 (9th Cir. 1967).”
The trial judge acted within the scope of his discretion in limiting cross-examination. While the questioning was undoubtedly designed to impeach the witness, the transcript reveals that appellant’s counsel began to range too far afield of the issues to be determined by the jury. One duty of the trial court is to limit cross-examination at that point to prevent defense counsel from confusing the jury with a proliferation of details on collateral matters. The judge did not deprive Anthony of his Sixth Amendment rights.
4. Allegedly prejudicial behavior of the trial judge.
During the trial the presiding judge berated and disparaged Anthony’s counsel on several occasions, both in and out of the presence of the jury. Anthony argues (1) that these remarks by the trial judge evidenced a lack of impartiality and suggested to the jury that the defense was without merit, thereby prejudicing Anthony and depriving him of a fair trial, and (2) that the comments intimidated defense counsel and prevented effective representation of Anthony.
In a jury trial the judge should exercise caution and restraint to avoid any possibility of prejudicing the defendant in the eyes of the jury by unnecessary criticism of or hostility toward defense counsel. We have carefully examined the transcript of the trial and the comments of the trial judge. Although the judge’s remarks were unquestionably improper, we cannot hold that the result of those unfortunate remarks was the creation of an atmosphere so prejudicial as to prevent Anthony from receiving his constitutionally guaranteed fair trial.
We arrive at this conclusion for several reasons. First, the judge repeatedly warned the jury that his criticisms of counsel’s tactics and abilities had no bearing on the guilt or innocence of the accused and should be ignored. While cautionary instructions of this nature will not always cure the effect of a trial judge’s hostile behavior toward defense counsel (see United States v. D’Anna, 2 Cir., 1971, 450 F.2d 1201, 1206, and Bursten v. United States, 5 Cir., 1968, 395 F.2d 976, 983), the warnings here were given carefully and often and were sufficient to overcome the prejudicial tendency that the judge’s remarks undoubtedly had. Carroll v. United States, 9 Cir., 1963, 326 F.2d 72, 83.
Second, the trial judge did not confine his caustic rebukes to defense counsel; in fact, the prosecutor was treated more harshly than defense counsel, the judge even suggesting that the prosecutor did not know the most basic rules of questioning a witness or submitting evidence. Given the more or less “even-handed” application of the judge’s improper remarks, we think the jury was unlikely to think that the judge was biased against the defense.
Third, all the cases cited by Anthony in which convictions have been reversed on the grounds here asserted involved behavior by the trial judge which interfered more seriously with defense eounsel’s representation of his client or which more clearly demonstrated a bias against the accused. Compare, for example, Bursten v. United States, supra, and Peekham v. United States, 1953, 93 U.S.App.D.C. 136, 210 F.2d 693, 703-706, cert. denied, 350 U.S. 912, 76 S.Ct. 195, 100 L.Ed. 800.
The attitude and behavior of the trial judge here, while involving improper belittling of the prosecutor and defense attorneys, did not quite descend to the level of judicial hostility evident in the cases cited by appellant. This case is similar to those in which, although the comments of the trial judge were inappropriate, we could not say that they impaired the accused’s right to a fair trial. See e. g., United States v. Allen, 9 Cir. 1970, 431 F.2d 712; Duran v. United States, 9 Cir., 1969, 413 F.2d 596, cert. denied, 396 U.S. 917, 90 S.Ct. 239, 24 L. Ed.2d 195; Justice v. United States, 9 Cir., 1969, 407 F.2d 1323, cert. denied, 395 U.S. 916, 89 S.Ct. 1765, 23 L.Ed.2d 230; Robinson v. United States, 9 Cir., 1968, 401 F.2d 248; Carroll v. United States, 9 Cir., 1963, 326 F.2d 72; Smith v. United States, 9 Cir., 1962, 305 F.2d 197, cert. denied, Corey v. United States, 371 U.S. 890, 83 S.Ct. 189, 190, 9 L.Ed.2d 124.
Neither do we believe that defense counsel was so intimidated by remarks of the trial judge that he thereby failed adequately to represent his client. On the contrary, the record reveals forceful advocacy by the appellant’s attorney in spite of the judge’s rebukes. Compare the situation here with that in United States v. Davis, 10 Cir., 1971, 442 F.2d 72, 74-78.
B. Michael Carrion’s appeal.
1. Sufficiency of the evidence.
Michael’s challenge to the sufficiency of the evidence is without merit. In addition to substantial circumstantial evidence indicating his involvement in the conspiracy, the testimony of the two unindicted co-conspirators, Ponting and Cassidy, directly implicated him in the conspiracy.
2. Limitations on cross-examination.
Although the trial judge did not interfere with the cross-examination of government witnesses by Michael’s attorney, Michael argues that he can take advantage of the trial court’s erroneous limitations on cross-examination by Anthony’s counsel. However, we have already concluded that the actions of the trial judge in restricting questioning by Anthony’s attorney was not error. This reasoning applies, a fortiori, to Michael.
Affirmed.
. The following are samples of the judge’s remarks:
Remarks to defense counsel.
1. A government witness testified that defendant Anthony Carrion “evaded” a question asked him by the witness.
“MR. NASATIR : I object to the last comment and ask that it go out as a conclusion of the witness.
“THE COURT: Overruled. Now, counsel, I want to tell you now that I will make the rulings on your objections in this case, but I am not going to have you jump up every two minutes on flimsy objections. Now, keep that in mind.”
2. “THE COURT: Do you see any necessity for the question really?
“MR. NASATIR: Yes, your Honor, to impeach the witness.
“THE COURT: Well, I don’t really believe you, but I will let you do it.”
3. “THE COURT: Now that was obvious to you when you asked the question, wasn’t it?
“MR. NASATIR: Yes, your Honor.
“THE COURT: Then don’t ask any more questions of that kind.”
4. The judge questioned defense counsel as to the relevance of a particular line of cross-examination:
“MR. NASATIR: To show the relevance in front of the witness would destroy my cross-examination. May we approach the bench?
“THE COURT: No you may not. Proceed. You are going to find out in due time counsel that I have had a little experience in this business myself.
“MR. NASATIR: I am well aware of that, your Honor.
“THE COURT: I am glad to hear that. Now, proceed. I don’t want to hear any more. Proceed unless you want me to excuse the jury, and we will carry on. All right, proceed.”
5. Defense counsel requested that a package of marijuana that had been opened in court be replaced by an unopened package before being offered into evidence.
“THE COURT: Let it be said that you never close a day without complicating something. I am glad we are not in a hospital. I can just imagine that the doctor would be put to sleep instead of the patient.”
6. Defense counsel asked to make an offer of proof after the judge denied an evidentiary hearing on the motion to suppress:
“THE COURT: I see that, you like to play games, don’t you?
“MR. NASATIR: No, sir. I’m just trying to represent my client.
“THE COURT: I’m getting kind of tired of hearing these games. Go ahead. At least I will try.”
7. After the motion for an evidentiary hearing was denied:
"MR. NASATIR: May I make one further motion, your Honor?
“THE COURT: I’m afraid I am going to have to sit you down, and I may sit you down pretty hard. What is your other motion. You heard me order the jury in.”
8. Defense counsel continued cross-examining an unindicted co-conspirator about the government’s failure to prosecute him, after the prosecutor had objected to the line of questioning as irrelevant :
“THE COURT: Are you endeavoring to get yourself in contempt, counsel? “MR. NASATIR: No, I am not, your Honor.
“THE COURT: Well, you are on the road to it. About half a dozen times I have told you to take up something else, and you come right back to the same question. Now I want to tell you something. I wouldn’t test this court out the way some people in the country are testing judges out, because I will deal with you in a harsh fashion, a very harsh fashion. Now, you’d better listen to me. When I rule hereafter, don’t come back with the same question; do you understand?”
Remarks to Prosecutor.
1. “MR. MAC INTYRE [prosecutor]: What is depicted in the picture, Government’s Exhibit No. 12?
“THE COURT: Counsel, the picture speaks for itself. Anybody who can read plain English can read what’s in that picture. I could read it by the time I was three and a half years old, and I hope you could.
“MR. MAC INTRYE: Would you look at Government’s Exhibit No. 10, the picture of the cartons.
“THE COURT: If you are going to put these matters into evidence — but what I cannot get over to the United States Attorney’s Office is that the proper way to try a case is to offer exhibits at the time they become admissible, and if they are admissible, they may be shown to the jury, so that the jury, the poor jury, may keep up with what is going on in this case.”
2. During the prosecutor’s direct examination of a government witness :
“MR. NASATIR: I object. The prosecutor is leading the witness.
“THE COURT: Yes, he is. He can’t help it, counsel. I don’t know how you can cure him, counsel. I just don’t know how it is possible. I will sustain the objection.
Ladies and gentlemen, leading means that the suggestive question suggests the answer, and that is not permissible in a court of law. This has been in effect for the last 350, 400 years, and I do not think counsel has found it out yet.”
3. “THE COURT: . . . You know, ladies and gentlemen, I am sorry you can’t see a case tried as it should be tried. It can be a real art, I mean from the standpoint of prosecution, short questions, the most marvelous things in the world, the easiest things in the world to understand — who, when, how, where, and what.”
4. The prosecutor began the direct examination of a government witness; and the defense counsel objected:
“THE COURT: It is rebuttal only. I am not permitting you to open up on anything except rebuttal, and you are starting out as if it is not rebuttal.
“MR. MAC INTYRE: Well I’ve got to lay a foundation, your Honor.
“THE COURT: Well, this is going to be the most amazing statement you have ever made, because heretofore, you have never laid a foundation on a single witness. All right, proceed.”
. “Few claims are more difficult to resolve than the claim that the trial judge, presiding over a jury trial, has thrown his weight in favor of one side to such an extent that it cannot be said that the trial has been a fair one. Where there is any substance to such a claim the reviewing court must examine the entire record and attempt to determine whether the conduct of the trial has been such that the jurors have been impressed by the trial judge’s partiality to one side to tlie point that this became a factor in the determination of the jury.” United States v. Guglielmini, 2 Cir., 1967, 384 F.2d 602, cert. denied, 400 U.S. 820, 91 S.Ct. 38, 27 L.Ed.2d 48.
. We agree with the Second Circuit that “Where mild admonitions to counsel did not suffice, any sterner or more forceful directions which may have been warranted should have been given in the absence of the jury.” United States v. Coke, 2 Cir., 1964, 339 F.2d 183.
. Examples of the trial judge’s comments to the prosecutor are included in footnote 1.
. We note that all the cases cited, except Robinson and Smith, involved the same district judge who presided in this case.
Question: Did the court below improperly rule for the prosecution on an issue related to an alleged illegal search and seizure?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_r_fed | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
BOSTON-CONTINENTAL NAT. BANK et al. v. WENDELL PHILLIPS CO.
No. 3135.
Circuit Court of Appeals, First Circuit.
June 25, 1936.
MORTON, Circuit Judge, dissenting.
both of Boston, Mass. (Goodwin, Proctor & Hoar, of Boston, Mass., on the brief), for Boston-Continental Nat. Bank and another. Murray F. Hall and Donald J. Hurley,
Alfred Gardner, of Boston, Mass. (Peabody, Arnold, Batchelder & Luther, of Boston, Mass., on the brief), for Wendell Phillips Co.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
BINGHAM, Circuit Judge.
This is an appeal from a judgment of the federal District Court for Massachusetts of October 21, 1935, in favor of the plaintiff in the sum of $9,850.37. The case was tried together with Kennedy v. Boston-Continental Nat. Bank (C.C.A.) 84 F.(2d) 592, Nos. 3131-3132 and Ulin v. Deitrick (C.C.A.) 84 F.(2d) 601, Nos. 3133-3134 by the District Judge, a jury having been duly waived.
May 21, 1926, the plaintiff leased to the defendant bank certain rooms in the Wendell Phillips building in Boston for ten years from July 1, 1926, at $7,000 a year for the first five years and $7,500 for the last five years, payable in equal monthly installments on the first day of each month for the preceding month. On December 17, 1931, the bank failed and the Comptroller took possession and appointed receivers, as stated in Nos. 3131— 3132, for the purpose of winding up the affairs of the bank. On January 13, 1932, the receiver notified the plaintiff that he elected not' to retain possession of the premises and, on March 30, 1932, vacated the same.
'The plaintiff’s declaration contains three counts. In the first one he seeks to recover a balance of $41.67 remaining unpaid on the installment of rent falling due December 1, 1931, for the preceding month. In the third count he seeks to recover rent at the stipulated rate from December 1, 1931, to December 17, 1931, amounting to $312.50. In the second count it is alleged that the defendant owes the plaintiff $16,250, the difference between the rental value of the premises for the remainder of the term and the rent reserved in the lease. This count is based on the following provision of the lease:
“This lease is made on the further condition that if the said Lessee shall neglect or fail to perform or observe any of the covenants herein contained, on its part to be performed or observed, or if the estate hereby created shall be taken on execution or by any process of law, or if the said Lessee shall be declared bankrupt or insolvent according to law, or if any assignment shall be made of its property for the benefit of creditors, or, if, the Lessee being a corporation, any Receiver of its property shall be appointed by a court of competent jurisdiction, then and in any such case (notwithstanding any license of any former breach of covenant or waiver of the benefit hereof or consent in a former instance) the said Lessor may lawfully, immediately or at any time thereafter, without notice or demand, enter into or upon said premises or any part thereof in the name of the whole, and repossess the sáme as of its former estate and expel the said Lessee and those claiming through or under him, and remove their effects (forcibly if necessary), and if it elects may store the same for account and at the expense and risk of the Lessee without being guilty of any. manner of trespass and without prejudice to any rights or remedies which might otherwise be used for arrears of rent or preceding breach of covenant, repossess the same as of its former estate; and upon entry aforesaid the lease shall determine and the Lessee covenants that in the case of such termination, or in case of termination under the provisions of statute by reason of default on the part of the Lessee, it will indemnify the Lessor against all loss of rent and other payments which it may incur by reason of such termination during the residue of the time first above specified for the duration of the said term, or at the election of the Lessor the Lessee will upon such termination pay to the Lessor, as damages, such a sum as at the time of such termination represents the difference between the rental value of the premises for the remainder of the said term and the rent and other payments herein named; in case of eviction of the said Lessee, or in case of the termination of this lease from any cause, the said Lessor may immediately recover of the said Lessee the pro-rata rent up to such time, irrespective of the periods herein prescribed for the payment of rent.”
The District Court found that the plaintiff entered to terminate the lease on March 30, 1932, and that it was terminated on that day; that the fair rental value of the premises from March 30, 1932, to the end of the term was $21,250; that the rent reserved for the same period was $31,875, and the excess of rent reserved over the fair rental value, discounted at 5 per cent., amounted to $9,496.20. It also found for the plaintiff as claimed in the first and third counts. These several sums make up the judgment appealed from.
No question is made as to the liability of the defendants on the first and third counts. The defendants, however, complain that the District Court erred in finding that the plaintiff was entitled to recover $9,496.20 on the second count.-
We think that the District Court erred in its finding and ruling as to the second count, for the reasons stated in our opinion in Nos. 3131-3132. The claim sued upon in this count did not arise and become fixed until after the entry and termination of the lease, a time long after the bank was declared insolvent, and in the nature of the thing the amount of the claim could not be determined as of a time the claim did not exist i. e., the time of the declaration of insolvency.
The judgment of the District Court is vacated, and the case is remanded to that court for further proceedings not inconsistent with this opinion, with costs in this court to the appellants.
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_applfrom | E | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Michael O. WATSON, Petitioner-Appellant, v. A. R. JAGO, Superintendent, Respondent-Appellee.
No. 76-1979.
United States Court of Appeals, Sixth Circuit.
Argued Dec. 3, 1976.
Decided and Filed June 14, 1977.
James R. Willis, Stephen O. Walker, Cleveland, Ohio, Michael O. Watson, for petitioner-appellant.
William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellee.
Before WEICK, PECK and LIVELY, Circuit Judges.
JOHN W. PECK, Circuit Judge.
Appellant Michael Watson was indicted by a Cuyahoga County, Ohio, grand jury for deliberate and premeditated murder in the first degree, in violation of former section 2901.01 of the Ohio Revised Code. At trial, appellant claimed self-defense. The jury found appellant guilty of the lesser included offense of murder in the second degree, and appellant was sentenced to life imprisonment. After appealing to the Cuyahoga County Court of Appeals and to the Ohio Supreme Court, appellant sought collateral review of his conviction in the federal district court by petition for writ of habeas corpus. The district court, however, denied the petition.
Appellant has brought this appeal, making several arguments in support of his petition. We reach only one, that appellant was denied due process of law under the Fourteenth Amendment when he was forced during the state court trial to defend against a charge of felony-murder, which was not contained in the indictment. Because we agree with appellant on this issue, we reverse and remand the case to the district court with instructions to grant the writ of habeas corpus.
I
On February 6, 1973, in the late afternoon, appellant and a friend, John Bell, entered the store of a Cleveland, Ohio grocer, William Dallas. Bell asked the grocer’s wife, who was working in the store along with her husband, for a six-pack of beer. Mrs. Dallas got the beer from the cooler and set it on the counter. William Dallas then came over and asked Bell for some identification to show that he was of age to buy the beer. A conversation concerning credentials followed. The conversation ended when appellant drew a pistol and shot Mr. Dallas twice. One bullet struck Dallas in his left arm. The other bullet struck Dallas in the head, killing him. Mrs. Dallas witnessed the shooting.
According to Mrs. Dallas, immediately before the shooting, appellant had said to Mr. Dallas that he had credentials and had asked whether Mr. Dallas wanted to see them. According to appellant and Bell, however, Mr. Dallas had pulled a gun, and appellant claimed that he had fired in self-defense. Most of the store owners in the area were armed, and on that day, Mr. Dallas had carried a gun in the pocket of his white butcher-type apron. The police later found the gun owned by Mr. Dallas on the floor, under the victim’s body. That gun had not been fired.
Immediately after the shooting, appellant and Bell fled the scene without the beer in a red 1964 Cadillac, which had transported appellant and Bell to the store and which had carried two other friends. A description and the license plate number of the automobile were given to the police by a witness in the vicinity of the store. A couple of hours later, the automobile was stopped. Three males were arrested, but appellant escaped on foot. Six days later, on February 12,1973, appellant surrendered to the police.
Appellant was indicted for deliberate and premeditated first degree murder only. Nevertheless, at the state court trial, the prosecutor in his opening statement, after reading the indictment for deliberate and premeditated murder, asserted that:
“ . . . the evidence . . . will convince you beyond a reasonable doubt that this man Watson [appellant] did in fact maliciously, premeditatively and while in the act of a robbery murder Willie Dallas.”
Defense counsel, before making his opening statement, moved to dismiss the indictment. He argued that it was an infringement of a defendant’s right to notice of criminal charges to be brought against him by the State for the prosecutor to present a case on the basis of felony-murder when the indictment specified only a charge of first degree murder with deliberate and premeditated malice and did not include a charge of felony-murder. The prosecutor, when asked by the Court to reply to this argument, stated that premeditated murder and felony-murder were both first degree mur-. der and that the indictment, by charging first degree murder, did not have to include a statement that the indictment was for felony-murder for a defendant to be prosecuted on that charge. The trial court overruled the motion to dismiss, and the trial proceeded with the presentation of the State’s case.
The prosecutor called several witnesses: Mrs. Dallas, the wife of the victim; a witness who was near the scene of the crime; Willie Waldon and Gerald Ford, friends of appellant who waited in the Cadillac when the killing took place; Peter Becker, a police detective who interrogated Ford after the shooting; and a police officer who arrived at the scene of the crime shortly after the killing. Much of the questioning focused on the possible robbery.
When the prosecution stated that it would rest its case, defense counsel, out of the jury’s hearing, moved to withdraw the charge of first degree murder from the jury’s consideration. Defense counsel argued that there was no evidence to support a possible jury verdict of first degree murder, first, because there was no evidence of premeditation or deliberation on appellant’s part and secondly, because there was no evidence to show the commission of a robbery. The prosecutor disagreed, responding that the evidence did show a premeditated killing and that he had proven a prima facie case of robbery. The Court denied the defense motion.
After a short recess, the prosecutor in proceedings between the Court and counsel in the Court’s chambers, requested the Court not to charge the jury on first degree felony-murder. The prosecutor stated that the proof showed that some of the elements of armed robbery were present and that such facts were relevant with respect to the complete circumstances of the case.
Defense counsel immediately protested. He reminded the Court that at the start of the trial he had moved for the exclusion of any reference to a felony-murder because the indictment did not mention felony-murder. He further argued that because the Court allowed the trial to proceed with the inclusion of the felony-murder charge and because the defense had patterned its cross-examination in large part on the refutation of inferences supporting a charge of felony-murder, to drop the felony-murder charge would be prejudicial since it would preclude the defense counsel from talking about what he had tried to establish on cross-examination.
The prosecutor replied that the effect of not charging the jury on felony-murder was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” (State Court Trial Transcript 171.) The prosecutor denied that there could be prejudice in removing that one count since there was evidence to support a verdict of deliberate and premeditated first degree murder. The evidence of a robbery was characterized as “ancillary” to the deliberate and premeditated murder.
The Court agreed with the prosecution and made a tentative ruling that the jury would be charged only on deliberate and premeditated first degree murder. Defense counsel stated for the record that it was a strange situation for the State to start out by saying that it would prove felony-murder along with premeditated murder, to deny that there had to be a separate indictment for felony-murder from premeditated murder, to spend a great part of its case trying to prove felony-murder, and then, after resting its case, to seek withdrawal of the felony-murder charge and admit that a separate indictment was needed for felony-murder. Nevertheless, the Court adhered to its tentative decision to charge only deliberate and premeditated first degree murder.
The trial proceeded with the defense calling appellant and John Bell and the prosecution calling Mrs. Dallas in rebuttal. After the Court denied certain defense motions, the Court charged the jury on deliberate and premeditated first degree murder as charged in the indictment. The jury found appellant not guilty of deliberate and premeditated first degree murder but guilty of the lesser included offense of second degree murder.
Appellant appealed unsuccessfully to the Cuyahoga County, Ohio Court of Appeals and to the Ohio Supreme Court. His case is now before us because the district court denied his petition for a writ of habeas corpus. The question which we reach deals with the fact that appellant was forced to defend against a charge of felony-murder that was not brought by the grand jury in the indictment. There are two main issues with respect to this question: (1) whether there was a constructive amendment to the indictment, and (2) whether, if there was a constructive amendment, it violated appellant’s constitutional rights under the Fourteenth Amendment in this state court, as opposed to federal court, trial.
II
Under the Fifth Amendment’s provision that no person shall be held to answer for a capital crime unless on the indictment of a grand jury, it has been the rule that after an indictment has been returned its charges may not be broadened except by the grand jury itself. Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). See Russell v. United States, 369 U.S. 749, 770, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Norris, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). In 1887, the Supreme Court in Bain, supra, 121 U.S. at 9-10, 7 S.Ct. 781, held that a defendant could only be tried upon the indictment as found by the grand jury and that language in the charging part could not be changed without rendering the indictment invalid. In Stirone, supra, 361 U.S. at 217, 80 S.Ct. at 273, the Supreme Court stated that Bain “stands for the rule that a court cannot permit a defendant to be tried on charges that are not made in the indictment against him.” This rule has been reaffirmed recently several times in this Circuit. United States v. Maselli, 534 F.2d 1197, 1201 (6th Cir. 1976); United States v. Pandilidis, 524 F.2d 644 (6th Cir. 1975), cert. denied, 424 U.S. 933, 96 S.Ct. 1146, 47 L.Ed.2d 340 (1976). Although the language in Bain is broad, it has been recognized that Bain and Stirone do not prevent federal courts from changing an indictment as to matters of form or surplus-age. Russell v. United States, supra, 369 U.S. at 770, 82 S.Ct. 1038; United States v. Hall, 536 F.2d 313, 319 (10th Cir. 1976); United States v. Dawson, 516 F.2d 796, 801 (9th Cir.), cert. denied, 423 U.S. 855, 96 S.Ct. 104, 46 L.Ed.2d 80 (1975); Stewart v. United States, 395 F.2d 484, 487-89 (8th Cir. 1968); United States v. Fruchtman, 421 F.2d 1019, 1021 (6th Cir.), cert. denied, 400 U.S. 849, 91 S.Ct. 39, 27 L.Ed.2d 86 (1970); United States v. Huff, 512 F.2d 66 (5th Cir. 1975).
In Gaither v. United States, 134 U.S.App. D.C. 154, 413 F.2d 1061, 1071 (1969), this definition of an amendment prohibited by Stiro,ne and Bain, as opposed to the concept of a variance in proof from the indictment, appears:
An amendment of the indictment occurs when the charging terms of the indictment are altered, either literally or in effect, by prosecutor or court after the grand jury has last passed upon them. A variance occurs when the charging terms of the indictment are left unaltered, but the evidence offered at trial proves facts materially different from those alleged in the indictment.
These definitions have been quoted with approval by several courts of appeal. United States v. Pelose, 538 F.2d 41, 45 n. 8 (2d Cir. 1976); United States v. Somers, 496 F.2d 723, 743 n. 38 (3d Cir.), cert. denied, 419 U.S. 832, 95 S.Ct. 56, 42 L.Ed.2d 58 (1974); United States v. Bursten, 453 F.2d 605, 607 (5th Cir. 1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972).
This distinction between an amendment and a variance is critical because a variance is subject to the harmless error rule, Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), whereas an amendment prohibited by Stirone and Bain is prejudicial per se. United States v. Bryan, 483 F.2d 88, 96 (3d Cir. 1973); United States v. DeCavalcante, 440 F.2d 1264, 1271 (3d Cir. 1971);. Gaither v. United States, supra, 413 F.2d at 1072. Sometimes, however, there is a problem in identifying when an amendment is made to an indictment. That problem occurs when the charging terms of an indictment have not been literally changed but have been effectively altered by events at trial. United States v. Somers, supra, 496 F.2d at 744.
Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, involved a “constructive” amendment. The defendant was found guilty, but the Supreme Court reversed the conviction, stating that the defendant’s right to be tried only on charges presented in an indictment returned by a grand jury had been destroyed even though the indictment had not been formally changed. Stirone v. United States, supra, 361 U.S. at 217, 80 S.Ct. 270.
Under Stirone, the question to be asked in identifying a constructive amendment is whether there has been a modification at trial in the elements of the crime charged. United States v. Somers, supra, 496 F.2d at 744; United States v. DeCavalcante, supra, 440 F.2d at 1272; United States v. Silverman, 430 F.2d 106, 111 (2d Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1619, 29 L.Ed.2d 123 (1971). Such a modification would result in a constructive amendment. Of course, if a different crime was added to the charges against which the defendant had to meet, there would have been a constructive amendment. United States v. Sir Kue Chin, 534 F.2d 1032, 1036 (2d Cir. 1976); United States v. Holt, 529 F.2d 981 (4th Cir. 1975).
Applying this test to the present case, there clearly was a constructive amendment made to the indictment if appellant is correct in stating that felony-murder was added to the charges against which appellant had to defend at the state trial. Under Ohio law, a felony-murder conviction cannot be sustained under an indictment charging first degree murder with premeditated and deliberate malice. The Ohio Supreme Court in State v. Ferguson, 175 Ohio St. 390, 195 N.E.2d 794 (1964), held that although felony-murder and premeditated murder were both included in the same paragraph of the then existing first degree murder statute, felony-murder and premeditated murder constituted separate offenses. For appellant to be convicted of felony-murder he would have had to be indicted for that crime.
The question that the present case poses is whether, under the facts of this case, felony-murder was effectively added to the charges against which appellant had to defend. The district court held that there was no factual basis from which to conclude an amendment had been made to the indictment, even though the prosecutor, during the State’s case, improperly tried to prove felony-murder. The district court reasoned, and on appeal appellee contends, that there was no amendment to the indictment because the prosecutor’s opening statement included a reading of the indictment and because the trial court’s charge to the jury was only for deliberate and premeditated first degree murder and did not include a charge of felony-murder.
However, the prosecution and defense counsel throughout the State’s case relied on the trial court’s ruling and sought respectively to prove and negate commission of a robbery at the time of the shooting. On cross-examination, defense counsel elicited from Mrs. Dallas the statements that neither appellant nor Bell said “stick it up,” that neither appellant nor Bell gave any indication that they were robbing or attempting to rob the store, that neither appellant nor Bell took anything of value in the store, and that neither appellant nor Bell acted — until the shooting — as other than normal customers.
In response, the prosecution called Henry Towns, a witness in the vicinity of the store. Towns described seeing appellant and Bell run up a street away from the area of the grocery store and enter a waiting red 1964 Cadillac, which quickly sped away from the scene. Towns further testified that he saw either appellant or Bell with something under his arm and that he thought that the bar next to the Dallas grocery store had been robbed.
After brief testimony from an intervening witness, the prosecution called Gerald Ford. The prosecution’s sole purpose in calling and vigorously questioning Ford was to prove a robbery. After the prosecution was granted permission to cross-examine Ford as a hostile witness, he was asked whether in the car after the shooting if appellant had admitted to his friends that in the store he told William Dallas that it was a “stickup.” Ford first denied that appellant had said anything about a stickup and then asserted that he could not remember. The prosecutor read from Ford’s statement, which was taken by police after he was arrested and which incriminated the appellant. Ford said that he had signed the statement but repeated his claim that he did not remember that he had stated anything about a robbery. In permitting the prosecutor to cross-examine Ford as a hostile witness, the Court gave as its “principal reason” for allowing the cross-examination the fact that the State in its opening statement contended that the killing took place during an attempted robbery.
When cross-examined by defense counsel, Ford denied that there was any conversation among the four friends in the Cadillac about an effort to rob the grocery store. Ford also testified that the statement he gave was made under pressure of possible criminal charges against him at a time when he was not free to leave the police station.
The prosecution also called two police detectives, Peter Becker, who was one of the two officers who took Ford’s statement, and William Vargo, who was an officer who arrived at the scene of the crime shortly after the killing. On direct examination, Becker was questioned about the nature of his interrogation of Ford to show that the statement was freely given. On cross-examination, Becker admitted that Ford never said that any of his three companions in the Cadillac on the day of the shooting ever stated to Ford that appellant and Bell had the intention of robbing the store. Vargo admitted on cross-examination that when he turned over the dead body of William Dallas, he saw that the right hand of Dallas was inches away from where his gun lay on the floor. Shortly thereafter, the prosecution stated that it would not ask that the Ford statement be formally received into evidence.
It thus clearly appears that the strategy of counsel was vitally affected by the trial court’s ruling allowing the prosecution to prove felony-murder. The trial proceeded on the basis that, under the Ohio first degree murder statute, former Ohio Revised Code § 2901.01, to uphold a conviction of first degree murder, the State had to prove that appellant purposely killed another person and that appellant either killed with deliberation and premeditation or killed during the commission of a felony. State v. Farmer, 156 Ohio St. 214, 102 N.E.2d 11 (1951); Robbins v. State, 8 Ohio St. 181 (1857); Note, The Felony Murder Rule in Ohio, 17 Ohio St. L.J. 130 (1956). A major portion of the trial, during the State’s case, concerned the possible robbery and not facts going to a determination of premeditation. The trial court ruling that the State could prove felony-murder was critical to defense strategy because appellant at trial claimed self-defense, which is not a defense to felony-murder.
The trial court thus permitted a constructive amendment and then, upon request of the prosecution, permitted a withdrawal of the amendment. As the prosecutor aptly put it, when he asked the trial court not to charge the jury on felony-murder, the effect was “simply to remove what basically and normally would [have] be[en] one count of the indictment.” The Ohio grand jury had not put such a felony-murder count in the indictment.
Ill
Because the law of a constructive amendment has developed in the context of federal court trials and the Fifth Amendment, it must be determined whether appellant’s constitutional rights under the Fourteenth Amendment were violated in his state court trial. The problem stems from the fact that the rule against amendments contained in Ex Parte Bain, supra, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849, and Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, rests on the Fifth Amendment’s guarantee of a grand jury indictment before a person can be held to answer for a capital crime. Ex Parte Bain, supra, 121 U.S. at 10, 13, 7 S.Ct. at 786, 788, made clear the Fifth Amendment basis for the rule:
If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says, “no person shall be held to answer,” may be frittered away until its value is almost destroyed.
[A]fter the indictment was changed it was no longer the indictment of the grand jury who presented it. Any other doctrine would place the rights of the citizen, which were intended to be protected by the constitutional provision, at the mercy or control of the court or prosecuting attorney; for, if it be once held that changes can be made by the consent or the order of the court in the body of the indictment as presented by the grand jury, and the prisoner can be called upon to answer to the indictment as thus changed, the restriction which the Constitution places upon the power of the court, in regard to the prerequisite of an indictment, in reality no longer exists.
The Fifth Amendment’s guarantee of a grand jury indictment in cases of capital crimes, however, has never been incorporated into the Fourteenth Amendment and hence is not applicable to the states. In Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment did not require a grand jury indictment in a prosecution by the State of California for a capital crime. While it is true that Hurtado once stood in a line of Supreme Court cases that refused to incorporate Bill of Rights guarantees relating to criminal procedure into the Fourteenth Amendment and while it is true that such older precedent, except for Hurtado, has been overruled and most of the Bill of Rights guarantees relating to criminal procedure have been incorporated into the Fourteenth Amendment as fundamental rights, Hurtado remains good law. Branzburg v. Hayes, 408 U.S. 665, 688 n. 25, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Alexander v. Louisiana, 405 U.S. 625, 633, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Picard v. Connor, 404 U.S. 270, 273, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Beck v. Washington, 369 U.S. 541, 545, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962); Saunders v. Buckhoe, 346 F.2d 558, 559 (6th Cir. 1965).
In addition, even if a state adopts a grand jury system, federal constitutional requirements, binding in federal criminal cases are not binding on the states, Alexander v. Louisiana, supra, 405 U.S. at 633, 92 S.Ct. 1221, except with respect to the racial or national composition of grand juries. Carter v. Jury Commission, 396 U.S. 320, 330, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970). Thus, with respect to amendments, federal courts have viewed their legality as “primarily a matter of state law.” United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 425 (3d Cir. 1975). See Henderson v. Cardwell, 426 F.2d 150, 152 (6th Cir. 1970); Stone v. Wingo, 416 F.2d 857, 859 (6th Cir. 1969).
By statute, Ohio law allows certain amendments. Ohio Revised Code § 2941.30 at the time of appellant’s trial provided, and now provides:
The court may at any time before, during, or after a trial amend the indictment, information, or bill of particulars, in respect to any defect, imperfection, or omission in form of substance, or of any variance with the evidence, provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment or information or to cure a variance between the indictment or information and the proof, the accused is entitled to a discharge of the jury on his motion, if a jury has been impaneled, and to a reasonable continuance of the cause, unless it clearly appears from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury. In case a jury is discharged from further consideration of a case under this section, the accused was not in jeopardy. No action of the court in refusing a continuance or postponement under this section is reviewable except after motion to and refusal by the trial court to grant a new trial therefor, and no appeal based upon such action of the court shall be sustained, nor reversal had, unless from consideration of the whole proceedings, the reviewing court finds that the accused was prejudiced in his defense or that a failure of justice resulted.
In the present case the Ohio Revised Code § 2941.30 would not permit an amendment that changed the indictment to add another, different crime. See Breinig v. State, 124 Ohio St. 39, 42-43, 176 N.E. 674 (1931); Hasselworth v. Alvis, 76 Ohio Law Abs. 238, 143 N.E.2d 862 (1956); Horsley v. Alvis, 281 F.2d 440 (6th Cir. 1960). In no way was Ohio Revised Code § 2941.30 involved in the present case. According to Breinig, such a far reaching amendment as occurred in the present case would violate fundamental laws, cloaking the defendant with the right under the Ohio State Constitution to “demand the nature and cause of the accusation against him.” 124 Ohio St. at 42-43, 176 N.E.2d at 676.
More important to appellant’s petition for a writ of habeas corpus is the fact that an amendment to an indictment in certain cases can implicate rights under the United States Constitution which are applicable to the states, such as fair notice of criminal charges, double jeopardy, and effective assistance of counsel. See United States ex rel. Wojtycha v. Hopkins, supra, 517 F.2d 425. This Court in United States v. Pandili-dis, supra, 524 F.2d at 648, recognized that:
. the rules governing the content of indictments, variances and amendments are designed to protect three important rights: the right under the Sixth Amendment to fair notice of the criminal charge one will be required to meet, the right under the Fifth Amendment not to be placed twice in jeopardy for the same offense, and the right granted by the Fifth Amendment, and sometimes by statute, not to be held to answer for certain crimes except upon a presentment or indictment returned by a grand jury.
There is no question that the Fourteenth Amendment encompasses the right to fair notice of criminal charges. The Supreme Court in In re Oliver, 333 U.S. 257, 273, 68 S.Ct. 499, 92 L.Ed. 682 (1948), in dealing with the Due Process Clause of the Fourteenth Amendment, stated that:
A person’s right to reasonable notice of a charge against him, and an opportunity to be heard in his defense — a right to his day in court — are basic in our system of jurisprudence. .
Likewise, in Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 517, 92 L.Ed. 644 (1948), the Supreme Court declared that:
No principle of procedural due process is more clearly established than that of notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge, if desired, are among the constitutional rights of every accused in a criminal proceeding in all courts, state or federal.
See United States v. Maselli, supra, 534 F.2d 1197, 1201; United States v. Beard, 436 F.2d 1084, 1086-88 (5th Cir. 1971); Salinas v. United States, 277 F.2d 914, 916 (9th Cir. 1960). Also, under the Fourteenth Amendment, states are obliged to observe the prohibition against double jeopardy, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and allow counsel sufficient time to prepare a defense. Powell v. Alabama, 287 U.S. 45, 59, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
To allow the prosecution to amend the indictment at trial so as to enable the prosecution to seek a conviction on a charge not brought by the grand jury unquestionably constituted a denial of due process by not giving appellant fair notice of criminal charges to be brought against him. See DeJonge v. Oregon, 299 U.S. 353, 362, 57 S.Ct. 255, 81 L.Ed. 278 (1937). As a matter of law, appellant was prejudiced by the constructive amendment. See Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252; United States v. DeCavalcante, supra, 440 F.2d 1264; Gaither v. United States, supra, 134 U.S.App.D.C. 154, 413 F.2d 1061. The fact that the charge to the jury only included first degree premeditated murder according to the indictment could not cure the prejudice to the appellant. Furthermore, an amendment cannot properly be justified by a prosecuting attorney on the ground that defense counsel should have sought a bill of particulars. Russell v. United States, supra, 369 U.S. at 769-70, 82 S.Ct. 1038; United States v. Norris, supra, 281 U.S. at 622, 50 S.Ct. 424.
The order of the district court is reversed, and the case is remanded to the district court with instructions to grant the writ of habeas corpus, conditioned on the State’s right to retry the appellant. See Price v. Georgia, 398 U.S. 323, 90 S.Ct. 1757, 26 L.Ed.2d 300 (1970); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957).
. Appellant presented to the district court and to this Court four contentions. First, due process was denied appellant when the prosecutor introduced, as substantive proof of guilt, testimony showing that appellant had exercised his right to remain silent at the time of arrest. Second, due process and effective assistance of counsel were denied appellant when he was forced to defend against charges not brought by the grand jury. Third, due process was denied appellant when the prosecutor asked inflammatory questions without a reasonable belief that such questions would produce admissible evidence. Fourth, due process was denied appellant when the state trial court required him to prove affirmatively, by the preponderance of the evidence, self-defense.
. Appellant’s fourth contention, regarding the burden of proof he had to shoulder on the issue of self-defense, was never presented to the state courts. Also, appellant’s third contention, regarding prosecutorial misconduct, was not presented in the application for leave to the Ohio Supreme Court. With respect to these contentions, appellant apparently has not exhausted his state remedies. Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Appellant did exhaust his state remedies as to his first contention, that the prosecutor’s elicitation of testimony from a police detective showing that appellant had exercised his rights to remain silent and to retain counsel at time of arrest was introduced as substantive proof of guilt and thus, in view of the circumstances of the questioning, was, under Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), harmful unconstitutional prosecutorial comment upon an accused’s assertion of his constitutional rights [as distinguished from proof of an accused’s silence at time of arrest offered for impeachment purposes, held unconstitutional in Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976)]. We have not reached that contention, however, because of our disposition of the case on the ground that appellant was forced to defend against a charge of felony-murder when the indictment specified only premeditated first degree murder.
. Former Ohio Revised Code § 2901.01 provided as follows:
No person shall purposely, and either of deliberate and premeditated malice, or by means of poison, or in perpetrating or attempting to perpetrate rape, arson, robbery, or burglary, kill another.
Whoever violates this section is guilty of murder in the first degree and shall be punished by death unless the jury trying the accused recommends mercy, in which case the punishment shall be imprisonment for life.
Murder in the first degree is a capital crime under Sections 9 and 10 of Article 1, Ohio Constitution.
. Appellee also responds to appellant’s argu- ■ ment by stating that it is not properly before us because it was not raised in the Ohio courts and that it is a different argument than presented in the district court. Appellee’s position is without merit and refuted by a review of the record. Appellant raised his objection to the constructive amendment before the Ohio courts and the district court, and it was the same objection as presented here on appeal.
. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), acknowledged that the right to be free from unreasonable searches and seizures had been incorporated in Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782 (1949), and then incorporated the right to have excluded from a criminal trial any evidence illegally obtained, overruling Wolf v. Colorado, supra, on that point. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), incorporated the right to the assistance of counsel and imposed the requirement to appoint counsel in criminal cases, overruling Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964), incorporated the privilege against self-incrimination and overruled Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, 53 L.Ed. 97 (1908). Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), incorporated the guarantee against double jeopardy and overruled Palko v. Connecticut, 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288 (1937). Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), incorporated the right to jury trial, and according to Duncan, supra, 391 U.S. at 148, 88 S.Ct. 1444, In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), incorporated the right to a public trial. Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), incorporated the right to a speedy trial. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), incorporated the right to confront opposing witnesses, and Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967), incorporated the right to compulsory process for obtaining witnesses.
. In Alexander v. Louisiana, 405 U.S. 625, 634, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (Douglas, J., concurring), Justice Douglas argued that Hurtado v. California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232 (1884), did not support the proposition that federal constitutional requirements were not obligatory once a state chose to adopt the grand jury system. Justice Douglas cited Carter v. Jury Commission, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970), which did apply federal constitutional requirements with respect to the racial selection of members of a grand jury, in support of his position that once a state chose to adopt a grand jury system, federal constitutional requirements were applicable.
. Although not presented by the facts of this case, double jeopardy implications could have been included because appellant’s conviction for second degree murder would not preclude a conviction for felony-murder. Lowther v. Maxwell, 347 F.2d 941 (6th Cir. 1965); State v. Trocodaro, 40 Ohio App.2d 50, 317 N.E.2d 418 (1973).
. In its unreported opinion, State v. Watson, No. 33036, June 27, 1974, the Cuyahoga County, Ohio, Court of Appeals stated that the conduct of the trial could be upheld on the basis that the State could prove the lesser included offense of involuntary manslaughter in first degree premeditated murder. While it is true that at the time of appellant’s trial, former Ohio Revised Code § 2901.06 included involuntary manslaughter, which the County Court of Appeals defined as unintentional killing resulting from the commission of an illegal act, there is a constitutional difference between showing an illegal act as part of the surrounding circumstances of first degree premeditated murder and seeking to convict a defendant for felony-murder under an indictment for first degree premeditated murder. In the latter situation, a defendant has not been given fair notice. As the present case illustrates, an illegal act is not an element of first degree premeditated murder.
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_3_2 | 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 "federal government (including DC)". Your task is to determine which category of federal government agencies and activities best describes this litigant.
CAROLINAS FARM & POWER EQUIPMENT DEALERS ASSOCIATION, INC., Appellee, v. UNITED STATES of America, Appellant.
No. 82-1230.
United States Court of Appeals, Fourth Circuit.
Argued Oct. 7, 1982.
Decided Jan. 24, 1983.
David L Pincus, Tax Div., Dept, of Justice, Washington, D.C. (Samuel T. Currin, U.S. Atty., Raleigh, N.C., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, David English Carmack, Tax Div., Dept, of Justice, Washington, D.C., on brief), for appellant.
Curtis A. Twiddy, Raleigh, N.C. (Thomas L. Norris, Jr., Maria M. Lynch, Poyner, Geraghty, Hartsfield & Townsend, Raleigh, N.C., on brief), for appellee.
Before WINTER, Chief Judge, ERVIN, Circuit Judge, and HAYNSWORTH, Senior Circuit Judge.
HARRISON L. WINTER, Chief Judge:
The issue presented here is whether a tax-exempt trade association receives unrelated business taxable income when it assists its members in procuring economical group insurance and receives a percentage rebate of the premiums paid by them from the insurance provider. The district court held that the rebates do not constitute unrelated business taxable income. We reverse.
I.
The facts are established by stipulation of the parties:
Carolinas Farm & Power Equipment Dealers Association, Inc. (Association) is a trade association exempt from federal income tax under Section 501(a) and (c)(6) of the Internal Revenue Code of 1954. Its purpose is to promote the general welfare of independent retail distributors of farm and power equipment in North Carolina and South Carolina by monitoring state and federal legislation, conducting workshops, publishing a newsletter, and offering its members an opportunity to obtain group insurance. During the years 1973-1977, it had approximately 421 members, including corporations, partnerships, and sole proprietorships involved in that trade.
In 1955 the Association created an insurance trust fund to operate and fund a group insurance program for its members. The present trustees are members of the Association’s Board of Directors. The trust acquired a master group insurance policy issued by the Federated Mutual Implement and Hardware Insurance Company of Owatonna Minnesota (Federated), providing life insurance, accident and health insurance, and hospital and surgical insurance coverage. Enrollment in the program is limited to members of the Association, of which approximately 41 percent chose to participate during the years in question.
The Association distributes information pamphlets prepared by Federated to its members or prospective members, answers questions its members have about the program, forwards to Federated changes in coverage requested by its members, and transmits monthly premium notices to participating members. The members pay their premiums to the trust, which remits the premiums, in full, to Federated.
The Association has four employees, all of whom handle the operation of the group insurance program to some extent. One devotes full time, one two-thirds time, one one-third time, and one one-fourth time to such activities. The trust pays the Association an administrative fee for these services. During the years at issue here, 1973 through 1977, Federated rebated seven percent of gross accident and health insurance premiums to the Association or the trust as an administrative allowance. From 1973 to 1976 it paid approximately two-thirds of this amount to the Association and one-third to the trust. In 1977 it paid the entire rebate to the trust. The trust used its receipts to pay operating expenses and maintain a reserve fund. The Association used its receipts to pay operating and other general expenses. The rebates were quite large in relation to the Association’s other income from membership fees and assessments. For example, in 1973 it received $41,604.34 as an administrative allowance, on which it earned a tax profit of $15,542.75 and an accounting profit of $27,592.16, as compared to only $24,425.74 it received from membership fees and assessments. During the years 1973-77, the Association’s total gross receipts was $569,005 and its total insurance rebates was $246,572.
In addition to the administrative allowance or rebate, the Association also receives an experience refund from Federated when the claims of its members are less than the premiums paid for a year. The Association distributes these experience refunds to its members in proportionate shares. The Internal Revenue Service makes no claim that the rebated experience refunds constitute unrelated business taxable income.
After the Internal Revenue Service determined that the administrative allowance was taxable income, the Association paid the contested amounts and filed claims for refund. When these were not honored, the Association filed suit for refund of the tax paid, asserting: first, that the rebates are not unrelated business taxable income; second, even if they are, that any funds received by it from Federated are held in trust for its members and therefore are not income to it. A magistrate to whom the case was originally referred recommended that both contentions be rejected but the district court held that the rebates are not unrelated business taxable income, and so did not reach the second issue.
II.
Section 511 of the Internal Revenue Code of 1954, as amended, 26 U.S.C. § 511 imposes a tax on “unrelated business taxable income,” and §§ 512 and 513, 26 U.S.C. §§ 512 and 513, define “unrelated trade or business income” as gross income, less deductions, if the income: (1) arises from a trade or business, (2) which is regularly carried on, and (3) which is not substantially related to the organization’s exempt purpose. 26 C.F.R. § 1.513 — 1. It is undisputed that the Association’s insurance activities are regularly carried on, so the only issues here are whether those activities constitute a trade or business which is not substantially related to the purpose for which the-Association’s exemption was granted.
A.
Section 513(c) states that “[f]or purposes of this section, the term ‘trade or business’ includes any activity which is carried on for the production of income from the sale of goods or the performance of services.” Thus, one might easily conclude that the proper inquiry is whether an organization conducts an activity to earn a profit. If so, the activity is a trade or business. Accord, Louisiana Credit Union League v. United States, 693 F.2d 525 (5 Cir.1982), affirming 501 F.Supp. 934 (E.D.La.1980); Clarence LaBelle Post No. 217 v. United States, 580 F.2d 270 (8 Cir.1978); Professional Insurance Agents v. Comm’n, 78 T.C. 246 (1982). Kaplan, Intercollegiate Athletics and the Unrelated Business Income Tax, 80 Colum. L.Rev. 1430, 1438 (1980). Certainly there can be no dispute given the consistently profitable result of the operations, the proportion of insurance income to total income and the use of the income for its own purposes that the Association carried on its insurance activities to earn a profit.
However, several courts, reasoning that the intent of Congress in enacting the unrelated business tax provisions and subsequent amendments was to prevent charitable organizations operating essentially commercial operations from having a competitive advantage over taxpaying enterprises, have adopted more restrictive tests. One has held that the proper inquiry is whether the activity might be unfairly competitive with taxpaying enterprises. Hope School v. United States, 612 F.2d 298 (7 Cir.1980). Accord, Clarence LaBelle Post No. 217, VFW v. United States, 580 F.2d 270, 275 (8 Cir.1978) (Schatz, J., dissenting). Another has stated the test to be whether the activity is one traditionally engaged in by a charity or whether it is an “abusive" step into traditional commercial areas. Mass. Medical Soc. v. United States, 514 F.2d 153 (1 Cir.1975). While still another concludes that while unfair competition need not be established, the proper inquiry is whether the activity is conducted in a competitive and commercial manner. That is, whether a good or service is offered in a competitive manner for a competitive price. Disabled American Veterans v. United States, 650 F.2d 1178 (Ct.Cl.1980).
The legislative history of the unrelated business income tax provisions and their amendments is thoroughly explored in the majority and dissenting opinions in Clarence LaBelle Post, supra. That history strongly suggests that Congress’s primary intent in enacting these provisions was to avoid endowing tax-exempt organizations with an unfair competitive advantage. Nonetheless, we think that the plain language of Section 513(c) should control and that an activity is a “trade or business” if an exempt organization conducts it for the production of income from the performance of services. While there is no need to look to legislative history where, as here, the language of a statute is quite clear, see, e.g., Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201, 96 S.Ct. 1375, 1384, 47 L.Ed.2d 668 (1976), defining an activity as a trade or business on the basis of the taxpayer’s motive for conducting it arguably effectuates Congress’s intent since an activity conducted with a profit motive and not substantially related to a charitable end “presents sufficient likelihood of unfair competition to be within the policy of the tax.” 26 C.F.R. 1.513-l(b).
In the light of inaction on the part of Congress over a period of thirty-two years to create a requirement of actual competition with taxable entities as a prerequisite for taxation of unrelated business income, see Louisiana Credit Union League v. United States, 501 F.Supp. 934, 939 (E.D.La.1980), it is difficult to conclude that the activities must compete with for-profit enterprises as a prerequisite to taxation. On the basis of the record before us we must infer the Association undertook this activity with a profit motive. The district court held it did not, reasoning that the Association’s explicit purpose was to provide low-cost group insurance to benefit the industry. By contrast, the Fifth Circuit has found a trade association had a profit motive in endorsing and aiding its members to acquire insurance, debt collection and data processing services when it consistently earned significant profits from rebates or fees paid by the providers of those services. Louisiana Credit Union League, supra. Similarly, the Tax Court in Professional Insurance Agents v. Comm’n, supra, on facts somewhat similar to these here, found a profit motive in large part because the contested activity was highly profitable. We follow the Fifth Circuit and the Tax Court, because we think that there is no better objective measure of an organization’s motive for conducting an activity than the ends it achieves. Accord, Kaplan, supra, 80 Colum.L.Rev. at 1438-40. This factor weighs heavily against the Association since it consistently received far more in rebates than it expended in providing insurance services.
Second, other strong evidence of profit motive can be found by implication when the taxpayer does not meet the third part of the test for unrelated business income: whether the activity is substantially related to an organization’s charitable purpose. If an activity which is not substantially related to a charitable purpose is conducted in a competitive profit-seeking manner and regularly earns significant profits, a heavy burden must be placed on the organization to prove profit is not its motive. Certainly where, as here, an organization could easily rebate any profits to its members and thus better fulfill its nonprofit, ostensible charitable purpose by providing them with even lower cost group insurance, that burden must be held unmet.
B.
The regulations state that for an activity to be substantially related to an organization’s exempt purposes it must bear a substantial causal relationship or contribute importantly to the achievement of those purposes other than through the production of income. 26 C.F.R. § 1.513-l(dX2). Indeed, the statute is specific that an activity is not substantially related merely because it obtains funds which are then applied to achieve a charitable purpose. 26 U.S.C. § 513(a).
The Association is tax exempt under § 501(c)(6) of the Code as a “business league,” defined in 26 C.F.R. 1.501(c)(6)-l as “an association of persons having a common business interest, the purpose of which is to promote such common interest and not to engage in a regular business of a kind ordinarily carried on for profit.” This regulation further admonishes that the activities of such an association “should be directed to the improvement of business conditions of one or more lines of business as distinguished from the performance of particular services for individual persons.”
We think that the Association’s insurance activities constituted the performance of a service for its individual members and not activities substantially related to its corporate objectives. As Justice Reed (Ret.) noted in Evanston-North Shore Board of Realtors v. United States, 320 F.2d 375, 378, 162 Ct.Cl. 682, (7 Cir.1963), it is often difficult to determine whether a trade association’s activities primarily benefit individual members or the trade generally since the interests of both are inevitably intertwined. In this case, for example, the provision of low-cost life insurance most directly benefits those members of the Association who choose to participate in the program, but it can also be said to benefit the entire industry — at least that operating in North and South Carolina — since it makes available to all the option to join such a program.
Several factors are present here, however, which are strong evidence that the program operates primarily to benefit individual members and not the industry as a whole. First, and most important, is the fact that the fees charged members for participation in the insurance program are in direct proportion to the benefits received. See, e.g., Contracting Plumbers Cooperative Restoration Corp. v. United States, 488 F.2d 684, 687 (2 Cir.), cert. denied, 419 U.S. 827, 95 S.Ct. 47, 42 L.Ed.2d 52 (1974); Evanston-North Shore Board of Realtors, 320 F.2d at 378-379. Second, participation in the insurance program is limited to members of the Association, so unlike such activities as lobbying services, it is of no benefit to those in the industry who are not members. See, e.g., Contracting Plumbers Coop., 488 F.2d at 687; Evanston-North Shore Board of Realtors, 320 F.2d at 379. Finally, the service provided by the Association is one commonly provided by for-profit entities. This is significant because the regulation requires a substantial causal relationship between the activity and accomplishment of an exempt purpose. Where a service is available in the marketplace, a trade association need not provide it to accomplish an exempt purpose. Cf. Associated Master Barbers & Beauticians of America, Inc. v. Commissioner, 69 T.C. 53, 64 (1977) (trade organization that primarily provides insurance and supplies to members is not exempt because such goods are traditionally supplied by for-profit entities). For these reasons, we must conclude that the Association’s insurance service primarily advances the interests of participating members, and so it is not related to its charitable purpose.
Because we conclude that Association’s income satisfied each factor of the tripartite test to render it taxable as unrelated business taxable income, we reverse the judgment of the district court.
REVERSED.
. Both amounts are derived by deducting the Association’s cost of providing the various services. The difference between the two figures exists because certain deductions are allowed for tax purposes which are irrelevant for accounting purposes.
. In this appeal the Association has abandoned its contention that the funds received by it from Federated are nontaxable because they are trust funds held for the benefit of its members. It has failed to assert this contention as a ground of affirmance of the judgment of the district court even though the government’s brief called attention to the fact that the argument was asserted in the district court and stated its willingness to litigate the issue if it was renewed by the Association. We therefore will not consider it.
. Section 513(c) was added to the Code by the Tax Reform Act of 1969, Pub.L. No. 91-172, § 121(c), 83 Stat. 487 (1969), and while its primary purpose was merely to render taxable the advertising revenues earned by professional journals, its language was not so restricted. See H.Rep. No. 91-413, reprinted in 1969 U.S. Code Cong. & Admin.News, pp. 1645, 1695-6.
. When an activity presents sufficient possibility of profit to induce a tax-exempt organization to undertake it for the purpose of earning a profit, it seems logical to assume that engaging in the same activity would be attractive to a nontax-exempt organization, so that there exists a substantial likelihood of unfair competition. Cf. Clarence LaBelle Post, 580 F.2d at 275 (Lay, J., concurring) (Treasury’s determination that profit motive presents danger of unfair competition warrants judicial deference).
. We intimate no view as to whether an activity conducted to earn income, but in a noncommercial manner, can be a trade or business. Cf. Louisiana Credit Union League v. United States, 693 F.2d 525, 541 n. 32 (5 Cir.1982); Disabled American Veterans v. United States, supra. An example of such an activity is mailing small items to potential donors and requesting a contribution in return. See Hope School v. United States, supra. We need not resolve this issue here, since the Association’s insurance activities are conducted in a sufficiently commercial manner to come within the definition of a trade or business even if such a limitation is assumed, for the Association affirmatively advertised the program to its members, and it was guaranteed remuneration, albeit by a third party, the insurance provider, if they elected to participate.
. There was additional evidence of profit motive in Professional Insurance Agents not present here. First, an executive of the trade association testified that it would have found a new insurance provider but for the rebate. Second, the Association’s insurance activities had earlier been conducted in a taxpaying subsidiary.
. The full text of the pertinent portion of the regulation follows:
(2) Type of relationship required. Trade or business is “related” to exempt purposes in the relevant sense, only where the conduct of the business activities has causal relationship to the achievement of exempt purposes (other than through the production of income); and it is “substantially related,” for purposes of section 513, only if the causal relationship is a substantial one. Thus, for the conduct of trade or business from which a particular amount of gross income is derived to be substantially related to purposes for which exemption is granted, the production or distribution of the goods or the performance of the services from which the gross income is derived must contribute importantly to the accomplishment of those purposes....
. The Fifth Circuit has held that in order to be substantially related to its exempt function, the activities must be “unique” to the organization’s tax-exempt purpose and they must redound to the benefit of its members as members. Louisiana Credit Union League, supra. By this test, we think that the Association’s insurance service is not substantially related to its exempt function. The service is not unique; it is readily available in the marketplace. The service does not benefit members as members. It benefits only members who employ the service and it benefits them in their individual capacities. As a group, members gain no benefit from the fact that some avail themselves of the insurance service.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)". Which category of federal government agencies and activities best describes this litigant?
A. cabinet level department
B. courts or legislative
C. agency whose first word is "federal"
D. other agency, beginning with "A" thru "E"
E. other agency, beginning with "F" thru "N"
F. other agency, beginning with "O" thru "R"
G. other agency, beginning with "S" thru "Z"
H. Distric of Columbia
I. other, not listed, not able to classify
Answer: |
songer_weightev | 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 factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Raymond George MILLER, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
No. 87-5342
Non-Argument Calendar.
United States Court of Appeals, Eleventh Circuit.
Nov. 1, 1988.
Robert A. Butterworth, Atty. Gen., Dept, of Legal Affairs, Tallahassee, Fla., Joy B. Shearer, Asst. Atty. Gen., West Palm Beach, Fla., for respondent-appellee.
Before TJOFLAT, HILL and EDMONDSON, Circuit Judges.
HILL, Circuit Judge:
Raymond George Miller petitions this court for the writ of habeas corpus. A Florida state court convicted Miller of solicitation to commit murder in the first degree. In response to an ad in Soldier of Fortune magazine, Miller wrote and then called a California man named Jerry Baker, explaining that he was obligated to pay his former wife 40% of his military retirement pay, and that he sought a “solution” to his problem. Baker, acting as a government informant, recorded the phone call as a California police officer watched. Baker and Miller met in a Florida motel room, and their conversation again was taped. Miller was arrested on his way out of the motel room.
After his conviction, Miller appealed on the grounds that the tapes of his conversations with Baker should have been suppressed. His conviction was affirmed by a Florida appellate court. Miller then filed a collateral state habeas petition, arguing that his appellate counsel had been ineffective in failing to raise four issues: (1) the vagueness of the Florida solicitation statute under which Miller was convicted; (2) the failure of the trial court to strictly construe the Florida statute so that it would not apply to Miller; (3) the affront to the confrontation clause caused when Miller was denied certain testimony from three witnesses; and (4) the vindictiveness of the court in sentencing Miller. A Florida appellate court examined Miller’s claim of ineffective assistance of appellate counsel, and ruled Miller’s counsel had been effective because on the merits none of the four proposed claims would have been successful.
Miller then filed a federal habeas petition. In his petition, however, Miller raised the four issues directly, rather than through a claim of ineffective assistance of appellate counsel. The federal court dismissed the petition for failure to exhaust state remedies, noting that the four claims had been dealt with only indirectly by a state court.
Miller again filed in state court, this time alleging the four claims as direct grounds for habeas relief. A state court summarily denied the claims. Miller returned to federal court with the four claims, but again was denied relief because he had failed to exhaust the claims in a Fla.R.Crim.P. 3.850 proceeding in state court.
When Miller filed under Rule 3.850, a state court held Miller had defaulted on the four claims when he failed to raise them in his initial appeal. Miller again sought federal relief, but the federal court dismissed his claim, citing the state procedural default holding.
Finally Miller brought this federal habe-as petition, turning again to his allegation that he was denied effective assistance of appellate counsel since his attorney failed to raise the four claims on Miller’s initial appeal. The district court denied the petition after reviewing the nature of the underlying claims. The court cited the original state habeas decision which also had denied the petition after review of the merits of various claims, including the four advanced here. See Miller v. State, 430 So.2d 611 (Fla.App. 4 Dist.1983).
Although this petition represents Miller’s fourth attempt to obtain federal habeas relief, at this point no federal appellate court has examined the merits of Miller’s ineffective assistance claim. Consequently, we will not dismiss the petition for abuse of the writ.
Appellate counsel may be effective and yet not raise claims “reasonably considered to be without merit.” Alvord v. Wainwright, 725 F.2d 1282, 1291 (11th Cir.1984), cert. denied, 469 U.S. 956, 105 S.Ct. 355, 83 L.Ed.2d 291 (1984). “The most direct way to approach this question ... is to examine the alleged trial errors ... to see if they contain sufficient merit — actual or arguable — that his appellate counsel can be faulted for not having raised them.” Hooks v. Roberts, 480 F.2d 1196, 1197 (5th Cir.1973), cert. denied, 414 U.S. 1163, 94 S.Ct. 926, 39 L.Ed.2d 116 (1974).
Miller first maintains that his appellate counsel should have argued that the statute under which Florida convicted Miller, Fla.Stat. § 777.04(2) (1981), was unconstitutionally vague. The statute prohibits solicitation of “another to commit an offense prohibited by law_” Fla.Stat. § 777.04(2) (1981). Section 777.04(2) limits itself to offenses enumerated under section 777.04(4), or for which the law expressly prohibits solicitation. Section 777.04(4) lists only felonies.
We treat petitioner’s void-for-vagueness argument as a fact-specific due process claim that his indictment should have been dismissed because no statute gave him adequate notice that what he did was criminal:
The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.
United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954). Because section 777.04(4) delineates the offenses intended by section 777.04(2), and because petitioner’s action fits within section 777.04(4)(b), petitioner ought to have been fully aware that his solicitation was criminal . We conclude that petitioner was not denied due process.
Next petitioner contends that he should have been afforded the protection of Fla. Stat. § 775.021(1) (1981). Under that section, Florida provides that criminal statutes are to be construed in favor of the accused. Petitioner argues that since the statute might be read as vague, section 775.021(1) entitles him to have the statute read and voided as too vague. The claim is frivolous.
Thirdly, Miller contends he was denied the benefit of specific testimony by three witnesses. The testimony sought, however, was merely cumulative as to petitioner’s trial theory that: “Baker’s lifestyle caused him to be in dire need of police leniency and this accounted for his periodic efforts to urge others to commit crimes [so that Baker could] assist police in their conviction.” Petitioner’s brief at 26.
Finally, petitioner maintains that the trial judge improperly sentenced him to thirty years after pre-trial negotiations had been headed toward a probationary term. Petitioner has not demonstrated a “realistic likelihood of ‘vindictiveness,’” Blackledge v. Perry, 417 U.S. 21, 27, 94 S.Ct. 2098, 2102, 40 L.Ed.2d 628 (1974), on the part of the sentencing judge. “We have no reason to attribute [the petitioner’s] increased sentence to anything other than the trial judge’s more accurate appraisal of the circumstances after hearing the full disclosure of the facts at trial.” Frank v. Blackburn, 646 F.2d 873, 885 (5th Cir.1980) (en banc), cert. denied, 454 U.S. 840, 102 S.Ct. 148, 70 L.Ed.2d 123 (1981). “[I]t stretches our credulity to think that one who declines to plead guilty with a recommended sentence acceptable to the Court should nevertheless be given the benefits of a bargain available to, but rejected by, him.” United States v. Resnick, 483 F.2d 354, 358 (5th Cir.1973), cert. denied, 414 U.S. 1008, 94 S.Ct. 370, 38 L.Ed.2d 246 (1973).
Finding no merit in the contentions underlying the ineffective assistance claim, we cannot grant the writ. The decision of the district court is
AFFIRMED.
. Because the crime of murder is illegal in both Texas and Florida, we need not address the situation in which the solicitation is in Florida for an act to be committed in Texas, the act itself being legal in Texas but illegal in Florida. "[VJagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 (1975). See also United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 319, 46 L.Ed.2d 228 (1975).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_circuit | J | 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.
RAINES v. LIGON et al.
Circuit Court of Appeals, Tenth Circuit.
January 15, 1930.
No. 109.
Wellington L. Merwine, of Okmulgee, Okl., for appellant.
Y. R. Biggers, of Wewoka, Okl. (Biggers, Wilson & Aldridge, Pryor & Stokes, and A. M. Fowler, all of Wewoka, Okl., on the brief), for appellees Ligón, Mainard, Gamer, Brixey, and Casey.
0. Dale Wolfe and W. M. Haulsee, both of Wewoka, Okl., for appellee Mathis.
Before LEWIS, PHILLIPS and MeDERMOTT, Circuit Judges.
PHILLIPS, Circuit Judge.
This is a suit in equity brought by Maceo Raines to cancel: (1) A warranty deed running from plaintiff and N. H. Raines, her husband, to J. A. ligón, conveying 120 acres of land in Seminole county, Oklahoma; (2) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein, from Ligón to W. E. Casey, J. D. Gamer, Mabel Gamer, Herman Shepard and J. L. Mainard; and (3) certain conveyances of undivided fractional interests in the oil, gas and mineral rights therein from Shepard to J. F. Remy and 0. Brixey.
The complaint alleged that the plaintiff is a resident of Springfield, Tennessee; that she had employed one J. A. Burrows, of lima, Oklahoma, as her agent, to sell such tract of land; that, on March 5,1926, an oil well was being drilled in the vicinity of such land; that such well was then producing some oil and gas and was giving indications that it would eome in as a commercial well; that plaintiff had no knowledge of the oil and gas development in the vicinity of such land; that, on March 5, 1926, the above named grantees, with the knowledge that Burrows was plaintiff’s agent, induced Burrows to go to Springfield and negotiate with plaintiff for the conveyance of such land to them for $10,-5Ó0; that such amount was a grossly inadequate consideration; that such grantees, in order to induce Burrows to violate his trust, agreed to pay him a large sum of money, as commission for his services, and to pay his traveling expenses from his home in Oklahoma to Springfield and return; that, pursuant to such agreement with such grantees, Burrows went to Springfield, advised plaintiff to sell such land for $10,500, induced her to execute and deliver a deed for such land to J. A. ligón and concealed from her the fact of the drilling of such well and of the increased value of such land on account thereof.
The complaint further alleged such conveyances of the oil, gas and other mineral rights in such land and that such grantees took such conveyances with the knowledge that Ligón had procured such deed to the land by fraud and deceit.
The complaint tendered a restoration of the amount paid for such land and prayed for cancellation of such deeds and conveyances.
Ligón filed an answer denying specifically the allegations of fraud and alleged that Burrows, as agent for the plaintiff, approached him on March 5,1926, and offered to sell such land to him; that he agreed to buy the land for $15,000; that Burrows thereupon went to the home of plaintiff and procured the deed; that such deed, with sight draft for $10,500 attached, was forwarded to the Farmers’ National Bank at Wewoka, Oklahoma; that plaintiff appeared in person at the bank, on the day the draft was presented to Ligón, and directed the bank not to deliver the deed until further notice from her; that plaintiff then entered into negotiations with Ligón for the sale of the land; that such negotiations eontinued for about fifteen days; that during such period plaintiff was in the immediate vicinity of the land and knew of the oil development near the land; that, as a result of such negotiations, plaintiff sold the land to Ligón for $15,000; that such sum was the reasonable market value of the land.
Each of the other grantees filed separate answers denying the allegations of fraud and alleging that they were bona fide purchasers for a valuable consideration, without notice of such alleged fraud. '
The evidence showed the following facts: Plaintiff was a Negro woman, twenty-five years of age. She resided with her husband, N. H. Raines, a negro physician, in Springfield, Tennessee. Plaintiff employed Burrows, a negro school teacher, who lived in the immediate vicinity of the land, to act as her agent in the sale of the land and authorized him to sell the land for $10,000 cash or $12,-000 — one-third cash and the balance in deferred payments. Burrows was to receive, as his commission, any amount he could sell the land for in excess of the prices above stated. On March 6, 1926, Burrows approached J. L. Mainard, who was acting for himself, Ligón, M. F. Mainard and E. C. Aldridge, and agreed to sell the land to them for $14,000. A deed, reciting a consideration of $10,500, running to Ligón, as grantee, was prepared and delivered to Burrows. J. L. Mainard instructed Burrows to proceed to plaintiff’s home and consummate the transaction at once before some one telegraphed a fabulous offer to plaintiff. Burrows immediately left Wewoka for Springfield and arrived there on March 8, 1926. He remained there one day discussing the trade with plaintiff and her husband. He represented to them that the oil prospects were not promising; that it might be five or six years before there would be any oil development, and that the oil and gas rights were worth only from $25 to $40 per acre, since there was no oil well being drilled near plaintiff’s land. Burrows left Springfield the evening of March 8, 1926, and returned to Wewoka. On March 11, 1926, plaintiff and her husband executed the deed and forwarded it, with a sight draft for $10,-500 attached, through a Springfield bank to the Farmers’ National Bank, together with instructions to deliver the deed upon payment of the draft. While Burrows was in Springfield, Chas. B. Williams approached J. L. Mainard and said that he had a better offer for the land; that he would wire Burrows to cancel the trade unless Mainard would raise the price $1,000. Mainard assented to this demand and agreed to pay $15,000 for the land. On March 11th, 1926, Burrows and Williams entered into a written contract with Ligón. This contract provided that Williams and Burrows should procure a warranty deed for the land from plaintiff and her husband to Ligón and cause it to be delivered, with sight draft attached for $10,500, to the Farmers’ National Bank; that Ligón should deposit $4,500 in the Security Bank of Wewoka; that the Security Bank should pay to Williams and Burrows the sum of $4,500 upon approval of the title to the land. On March 13, 1926, the plaintiff, having received information from Burrows that some question was being raised about the title to the land, left immediately for Lima, Oklahoma, where her uncle, G. V. Gross, lived, for the purpose of clearing the title to such land. Plaintiff arrived at Lima about March 15, '1926. She agreed with J. L. Mainard, who represented Ligón, M. F. Mainard and Aldridge, to have the Springfield bank reduce the draft from $10,500 to $9,000 and that the sum of $1,500 should be used in remedying the defects in the title to the land. J. L. Mainard and his associates paid the draft, after its reduction to $9,000. After some attempts to clear the title to the land, a further contract was entered into on March 25,1926, by which it was agreed that Burrows and Williams should receive $3,500 instead of $4,500; that plaintiff should refund $2,000 of the consideration received by her; that plaintiff should be released from the warranty contained in her deed; and that Burrows and Williams should be released from any claims against them under the contract of March 11. This contract was carried out. The terms of this contract were proposed by Burrows, Williams and plaintiff and the contract was prepared by their lawyer. Plaintiff then returned to Springfield.
Apparently the alleged defects in the title were substantial, because, at the time of the trial of this cause, three lawsuits were pending against Ligón and the other purchasers, by persons who claimed to own interests in the land.
In the latter part of February and the early part of March, 1926, an oil and gas well was being drilled approximately a mile and a quarter north of the tract of land in question. The producing sand was reached at a depthl of 3,982 feet, about February 28, 1926, and the well on that date produced at the rate of 95 barrels of oil per day. It was drilled further into the sand and, on March 6th, at a depth of 4,009 feet the well produced at the rate of 489 barrels of oil per day. The well was completed on March 12th at a depth of 4,012 feet and produced at the rate of 995 barrels of oil per day. .
During the time that plaintiff was in Oklahoma, she was in the vicinity of the land in question and this oil well, and the defendants in no wise concealed from her the drilling of such well and the increased value of the land on account thereof.
The trial court found the issues in favor of the defendants below and entered its decree denying plaintiff any relief. Plaintiff has appealed.
Fraud must he established by clear, satisfactory and convincing evidence. Lalone v. United States, 164 U. S. 255, 257, 17 S. Ct. 74, 41 L. Ed. 425; In re Locust Bldg. Co. (C. C. A. 2) 299 F. 756, 765, 766; United States v. Bucher (C. C. A. 8) 15 F.(2d) 783, 785; United States v. Hays (C. C. A. 10) 35 F.(2d) 948.
£2] When a court of equity has considered conflicting evidence and has made its findings and decree thereon, such findings and decree are presumptively correct and will not be disturbed, in the absence of a serious mistake in the consideration of the evidence or an obvious error in the application of the law thereto. Fienup v. Kleinman (C. C. A.) 5 F.(2d) 137, 141; State of Iowa v. Carr (C. C. A. 8) 191 F. 257, 263; New York L. I. Co. v. Griffith, Adm’r (C. C. A. 10) 35 F.(2d) 945; Youngblood v. Magnolia Petroleum Co. (C. C. A. 10) 35 F.(2d) 578, 579.
The evidence tended to establish that the agent, Burrows, was unfaithful to his trust, but it failed to establish, with the degree of certainty required, that the purchasers of such laud and mineral rights either participated in or had knowledge of any such fraud.
It does not appear that the trial court made any serious mistake in the consideration, of the evidence or any obvious error in the application of the law to the facts.
The decree is affirmed at plaintiff’s costs.
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_casetyp1_7-2 | D | 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".
In re MORALES TRAVEL AGENCY, Bankrupt. Appeal of EASTERN AIR LINES, INC.
No. 80-1225.
United States Court of Appeals, First Circuit.
Argued Oct. 6, 1980.
Decided Jan. 7, 1981.
As Amended on Denial of Rehearing March 2, 1981.
Lawrence E. Duffy, Rio Piedras, P.R., with whom Francisco Ponsa Feliu, Francisco Ponsa Flores, San Juan, P.R., and Edda Ponsa Flores, Rio Piedras, P.R., were on brief, for appellant.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
LEVIN H. CAMPBELL, Circuit Judge.
Eastern Air Lines appeals from the district court’s affirmance of an order of the bankruptcy court denying Eastern’s petition to recover certain money in the possession of defendant’s trustee in bankruptcy. We affirm.
Morales Travel Agency, Inc. was in the business of selling to the public tickets for passage on various airlines, including Eastern. The business was run by Jose E. Morales Padilla, its sole stockholder, president, and treasurer. The relationship between Morales Travel Agency and the airlines was governed by the International Air Transport Association (IATA) Passenger Sales Agency Agreement, and by Resolutions of IATA under that agreement. Resolution 820(a) provided that the airlines would provide Morales (and other travel agencies) with blank tickets, or “travel documents,” which were to remain the property of the airlines until sold to passengers. The Resolution provided that, upon the sale of a ticket, Morales became responsible to pay the airline the price of the ticket, whether it actually collected that amount or not. Under the resolution, whatever money Morales did collect “shall be the property of the Carrier and shall be held by the Agent in trust for the Carrier or on behalf of the Carrier, until satisfactorily accounted for to the Carrier and settlement made.” The IATA Resolutions did not, however, require that Morales keep the proceeds of each airline’s ticket sales in separate accounts, nor that it keep the proceeds of all ticket sales in an account separate from any other business or personal funds. It was apparently Morales’ practice to commingle funds, from whatever source, in a single account. The IATA Resolutions also did not include any restrictions on the agent’s use of the ticket proceeds while in the agent’s possession. It appears that Jose Morales and his associates diverted some funds of the business, including ticket proceeds, to their personal use. Under IATA’s Resolution 810(a), the agent was required to furnish each airline with sales reports twice each month. At the time of each sales report, Morales was to remit to the airline the amount of the tickets sold during that sales period, less its commission.
Morales Travel Agency was adjudicated bankrupt in August 1978. At that time, Morales’ possessions amounted to $356,314, consisting of $258,473 in accounts receivable, $57,241 in cash, and the rest in office equipment, an automobile, and a very small amount of real property. Its debts, including the claim in question here, totalled $631,346.27. That amount included no secured claims, and only one claim having priority, a $1,500 debt for rent. The great majority of the claims were for airline tickets sold; by far the largest of these was Eastern’s claim for $379,482.29. The non-airline claims included $48,500 in bank loans for operation of the business, amounts ranging from $45 to $4,000 for various goods and services, and two judgment claims of $5,750 and $1,217.
In September 1978, Eastern brought this action in the bankruptcy court, seeking to recover from the trustee in bankruptcy the $379,482.29 which Morales owed it for the sale of its airline tickets. Eastern argued that, under the terms of the IATA Agreement, the proceeds of its tickets were its property, held in trust by Morales, and were not part of the estate in bankruptcy. A trial was held in July 1979, and on October 15, 1979, the bankruptcy court issued judgment against Eastern and allowed Eastern an unsecured claim without priority in the amount of $379,482.29.
Eastern then appealed to the United States District Court for the District of Puerto Rico, which at first affirmed the bankruptcy court on the ground that the relationship between Eastern and Morales was actually one of creditor and debtor, rather than one of trust, despite the language of the IATA Agreement, which the court found to be intended merely to ensure the debtor’s performance of its obligation. Upon Eastern’s motion for reconsideration, the district court revised its opinion to find that the contract did create a trust, but reached the same result on the ground that Eastern had failed to trace the trust funds into “specific or identifiable property” in the possession of the trustee. Eastern then brought this appeal.
Under section 70(a) of the Bankruptcy Act of 1898, which applies to Morales’ petition in bankruptcy, the trustee in bankruptcy acquired whatever title to property the bankrupt had. In the case of property held by the bankrupt in trust for another, the trustee would acquire the property subject to the interests of the trust beneficiary. 4A Collier, Bankruptcy ¶ 70.25[1], at 339 (14th ed. 1964). The burden, however, is on the claimant to establish the existence of a trust and to identify the property held in trust. 4A Collier ¶ 70.25, at 350, 354. Therefore, to prevail Eastern must show first that the proceeds of Morales’ sales of Eastern’s tickets were impressed with a trust in favor of Eastern, and second, that those proceeds still exist in identifiable form among Morales’ possessions. Eastern has failed at both these tasks.
The terms of the IATA Agreement and Resolutions were inadequate, in our view, to give rise to a trust upon the proceeds from tickets sold by Morales to its customers. To be sure, Resolution 820(a) recited, in general terms, that the agent was to hold whatever monies it collected in trust for the carrier until accounted for, and that these monies were the carrier’s property until settlement occurred. However, talismanic language could not throw a protective mantle over these receipts in the absence of a genuine trust mechanism. Here the relationship remained in practical fact that of debtor-creditor. The contract nowhere required Morales to keep the proceeds of Eastern’s ticket sales separate from any other funds, whether Morales’ own funds or the proceeds of other airlines’ ticket sales. Nor was any specific restriction placed upon Morales’ use of the supposed trust funds. Morales was left free to use what it received for its own benefit rather than Eastern’s, and to transform the receipts into assets with no apparent encumbrance, upon which potential creditors might rely. The use of the word “trust” and the designation of the airline as titleholder, in a contract which is not publicly filed, would not save potential creditors from relying on such assets as office equipment, accounts receivable, and a bank account solely in the name of the agency. In the absence of any provision requiring Morales to hold the funds in trust by keeping them separate, and otherwise restricting their use, the label “trust” could in these circumstances and for present purposes have no legal effect. See In re Penn. Central Transportation Co., 328 F.Supp. 1278 (E.D.Pa.1971); Scott on Trusts § 12.2 (3d ed.).
Our conclusion is buttressed by other terms of the agreement. Morales’ contractual responsibility to a carrier went beyond transmitting the funds actually received, to paying the price of tickets sold whether it received that amount or not. Morales, moreover, was required to transmit the proceeds not upon receipt, nor even upon demand, but at specified regular intervals. Thus for everyday purposes the relationship was the conventional one of debtor-creditor — the “trust” was a draftsman’s concept, designed to rescue Eastern in a situation such as the present but otherwise to be ignored.
We find this case to be very similar to the case of Lord’s, Inc. v. Maley, 356 F.2d 456 (7th Cir. 1966), in which the Seventh Circuit affirmed the bankruptcy court’s denial of a reclamation petition by the lessee of space in the bankrupt’s department store who sought to reclaim funds collected by the bankrupt through the sale of the lessee’s goods. Despite express language in the contract purporting to create a trust relationship, the court relied on such factors as the bankrupt’s freedom to use the funds between settlement dates and to commingle them with its own funds, to find a debtor-creditor relationship. The Lord’s case was followed by the Tenth Circuit in Carlson, Inc. v. Commercial Discount Corp., 382 F.2d 903 (1967). See also In the Matter of the Yaeger Co., Mendel v. Whitmer, 315 F.2d 864 (6th Cir. 1963); In re Martin’s, 11 F.Supp. 99 (E.D.N.Y.1935).
Harvey Brokerage Co. v. Ambassador Hotel Corp., 57 F.2d 727 (S.D.N.Y.1932), which Eastern cites to support its argument for a trust, actually supports our conclusion. In that case involving bankruptcy, the court presumed that a trust relationship existed where the bankrupt collected debts on behalf of another; but the court observed that the presumption could be rebutted by a showing of circumstances in the relationship inconsistent with a trust, such as the bankrupt’s right to use the funds and commingle them with its own.
The conclusion we reach is not shaken by Eastern’s citation of Article 1233 of the Civil Code of Puerto Rico, Title 31 L.P. R.A. 3471, which requires that the literal sense of a contract be observed where the terms of the contract are clear and leave no doubt as to the intention of the parties. Article 1233 is similar to the prevalent common law rule. See, e. g. 3 Corbin, Contracts § 573, on the Parol Evidence Rule. Neither Puerto Rico’s Code provision nor the common law rule, however, make the effect of a contract dependent solely upon the parties’ legal labels, nor do they relieve a court from the duty to examine the contract as a whole. 3 Corbin, Contracts § 549. Moreover, the principle embodied in Article 1233 has little to do with the problem at hand. Article 1233 relates to whether the parties’ intent is to be sought within or without the language of an agreement, whereas the present problem is to determine, in a bankruptcy setting where third-party interests are very much at stake, the legal consequences that flow from a prior contractual arrangement. If a ritualistic incantation of trust language were deemed conclusive, it would be a simple matter for one creditor, at the expense of others, to circumvent the rules pertaining to the creation of bona fide security interests.
Nor are we persuaded by Eastern’s citation of three lower state court cases involving travel agency contracts. In Air Traffic v. Downtown Travel Center, 87 Misc.2d 151, 383 N.Y.S.2d 805 (N.Y. Supreme Ct. 1976), and Pan American v. Lev Art Travel, an unpublished California case described in Air Traffic, the contracts required the agencies to keep the proceeds of ticket sales in separate accounts. As we have indicated supra, such a requirement, whether in practice met or not, would go some distance toward establishing a legally effective trust, although we do not here consider whether such a requirement would by itself accomplish this for bankruptcy purposes. Rappa v. American Airlines, 87 Misc.2d 759, 386 N.Y.S.2d 612 (Civil Ct. of the City of New York 1976), appears to involve a like contract with the same separate account requirement. Furthermore, that case decided only that the airline was liable to refund the amount of a ticket to the purchaser despite the agent’s insolvency. The court there did cite Air Traffic’s reference to a trust relationship between the airline and the agent, but the result in Rappa follows from the contractual provisions of the ticket itself, regardless of the relationship between airline and agent.
We need not conclusively rule that the relation here is, for all purposes, one of debtor/creditor, however, for our holding would be the same even were we to find that the relation was intended to be one of principal/agent or consignor/consignee. In either such relationship, a principal or consignor who allows property to appear that of the agent’s or consignee’s estate will in the event of the latter’s bankruptcy be es-topped from recovering that property from the trustee, see 3 Remington on Bankruptcy § 1212.02, at 52-53 (Henderson ed. 1957), and cases cited therein; cf. 4 Collier on Bankruptcy § 541.08(2), at 541-39 (15th ed.); 4A Collier on Bankruptcy § 70.18, at 202 (14th ed.), and Eastern’s failure to require segregation or restricted use of its funds has clearly served to create such an appearance here. Of course, no other questions relating to the nature of the airline/travel agency relationship are before us in this case, and our opinion intimates no view as to any such question. Because of our conclusion on this issue, it is not strictly necessary to consider the question of tracing. We discuss the matter, however, because the impossibility of, tracing in this case demonstrates the injustice that would result from allowing Eastern to recover.
Eastern cites several cases involving consignment arrangements in which the consignor was permitted to retrieve its property upon bankruptcy of the consignee. None of these cases is helpful to Eastern here, since in each case the consigned goods were readily identifiable. See, e. g., Ludvigh v. American Woolen, 231 U.S. 522, 34 S.Ct. 161, 58 L.Ed. 345 (1913); In re DIA Sales Corp., Ray v. Maguire, 339 F.2d 175 (6th Cir. 1964); Fowler v. Pennsylvania Tire, 326 F.2d 526 (5th Cir. 1964). Where the consigned goods have been sold, the consignor has been allowed to recover the proceeds only where they could be traced. See, e. g., In re Midwest Gas, 174 F.Supp. 618 (W.D.Mo.1959).
Eastern argues that the requirement of tracing does not apply here because the proceeds of its tickets could not have been commingled with Morales’ own funds, since Morales had no income other than the proceeds of ticket sales. This argument seems to be directed toward excluding non-airline creditors from any distribution of Morales’ assets. We reject both the factual premise and the legal conclusion.
It appears to be true that Morales’ business consisted entirely of ticket sales, the proceeds of which would, if we were to give effect to the “trust” language of the IATA Agreement, all belong to the airlines until the time of settlement. But it does not follow that all of Morales’ assets derive from the proceeds of ticket sales. The claims against Morales’ estate demonstrate that Morales received some $48,500 in bank loans, as well as $1,250 worth of office materials bought on credit. In addition, Morales must have retained a commission on each past occasion when it settled the account with an airline. We have no reason to believe that Morales’ current assets do not derive at least in part from these sources, which have been commingled with the proceeds of ticket sales. Furthermore, although commingling usually does refer to a mixing with the debtor’s own funds, the doctrine of tracing requires the claimant to identify the property he seeks as his own, not just to exclude the possibility that it belongs to the debtor. See generally Sonnenschein v. Reliance Insurance Co., 353 F.2d 935 (2d Cir. 1965); Gulf Petroleum S.A. v. Collazo, 316 F.2d 257 (1st Cir. 1963); 4A Collier, Bankruptcy ¶ 70.25[2], at 354 (14th ed. 1964). Eastern is unable to do so here. The non-airline creditors, as well as the other airlines, are therefore entitled to receive their fair share of Morales’ assets through distribution in bankruptcy.
Affirmed.
. The summary of property lists $100 in real property.
. The bankruptcy court awarded judgment for Eastern in the amount of $9,700.99, representing the proceeds of ticket sales made since filing of the petition for bankruptcy. That judgment is not challenged here.
. In this court, the trustee in bankruptcy waived his right to file a brief and to participate in oral argument.
. As the district court observed initially, the trust language may be viewed as an effort to créate a security interest in the ticket proceeds for the benefit of the airlines. Since Eastern has not asserted any claim to a security interest as such, we need not consider whether this contract could, under Puerto Rico law, be effective in the creation of such an interest. Quite possibly, although we do not purport to rule, Puerto Rico law may prohibit security interests in such property as the proceeds of future sales. See P.R.Code Ann. Title 30 §§ 204(1) and (5). The IATA Agreement makes applicable the law of the principal place of business of the agent.
. Our knowledge of the unpublished Pan American case derives solely from the discussion of it in the Air Traffic decision.
. Neither of these cases involved bankruptcy of the travel agency.
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_opinstat | B | What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
GIRARD TRUST CORN EXCHANGE BANK, as Trustee of a Trust Under Deed of Albert R. Gallatin Welsh Dated March 19, 1935, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent.
No. 10580.
United States Court of Appeals Third Circuit.
Argued Feb. 7, 1952.
Decided Feb. 27, 1952.
Rehearing Denied March 25, 1952.
George Craven, Philadelphia, Pa. (Gar-roll R. Wetzel, Philadelphia, Pa., on the brief), for petitioner.
Melva M. Graney, Washington, D. C. (Ellis N. Slack, Acting Asst. Atty. Gen., on the brief), for appellee.
Before KALODNER and HASTIE, Circuit Judges, and MODARELLI, District Judge.
PER CURIAM.
The questions presented here are (1) whether payments from the principal of a trust, created by her deceased husband during his lifetime, to a divorced wife under a separation agreement and divorce decree, are taxable as income to her under Section 22(k) of the Internal Revenue Code, and (2) whether a payment in a lump sum of arrears in the monthly amounts provided under the separation agreement and divorce decree, constituted “fixed or determinable annual or periodical” income from sources within the United States, taxable to the divorced wife, a nonresident alien, under Section 211(a) (1) (A), and as such was subject to withholding tax under Section 143(b). The Tax Court ruled in the affirmative on the two questions and we are in complete accord with its disposition for the reasons so well stated in its opinion, 16 T:C. 1398.
The decision of the Tax Court will be •affirmed.
. 26 U.S.0.1946 ed. § 22.
. 26 U.S.C.1946 ed. § 211.
. 26 U.S.C.1946 ed. § 143.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer: |
songer_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.
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: Did the interpretation of federal statute by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
sc_casesource | 028 | What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court whose decision the Supreme Court reviewed. If the case arose under the Supreme Court's original jurisdiction, note the source as "United States Supreme Court". If the case arose in a state court, note the source as "State Supreme Court", "State Appellate Court", or "State Trial Court". Do not code the name of the state.
ENCINO MOTORCARS, LLC, Petitioner
v.
Hector NAVARRO, et al.
No. 15-415.
Supreme Court of the United States
Argued April 20, 2016.
Decided June 20, 2016.
Paul D. Clement, Washington, DC, for petitioner.
Stephanos Bibas, Philadelphia, PA, for respondents.
Anthony A. Yang for the United States as amicus curiae, by special leave of the Court, supporting the respondents.
Karl R. Lindegren, Todd B. Scherwin, Colin P. Calvert, Fisher & Phillips LLP, Los Angeles, CA, Paul D. Clement, Jeffrey M. Harris, Subash S. Iyer, Bancroft PLLC, Washington, DC, Wendy McGuire Coats, McGuire Coats LLP, Lafayette, CA, for petitioner.
Keven Steinberg, Thompson, Coe & O'Meara, Los Angeles, CA, Stephanos Bibas, James A. Feldman, Nancy Bregstein Gordon, University of Pennsylvania, Law School, Supreme Court Clinic, Philadelphia, PA, for respondents.
Justice KENNEDY delivered the opinion of the Court.
This case addresses whether a federal statute requires payment of increased compensation to certain automobile dealership employees for overtime work. The federal statute in question is the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., enacted in 1938 to "protect all covered workers from substandard wages and oppressive working hours." Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 739, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981). Among its other provisions, the FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. The rate of overtime pay must be "not less than one and one-half times the regular rate" of the employee's pay. § 207(a).
Five current and former service advisors brought this suit alleging that the automobile dealership where they were employed was required by the FLSA to pay them overtime wages. The dealership contends that the position and duties of a service advisor bring these employees within § 213(b)(10)(A), which establishes an exemption from the FLSA overtime provisions for certain employees engaged in selling or servicing automobiles. The case turns on the interpretation of this exemption.
I
A
Automobile dealerships in many communities not only sell vehicles but also sell repair and maintenance services. Among the employees involved in providing repair and maintenance services are service advisors, partsmen, and mechanics. Service advisors interact with customers and sell them services for their vehicles. A service advisor's duties may include meeting customers; listening to their concerns about their cars; suggesting repair and maintenance services; selling new accessories or replacement parts; recording service orders; following up with customers as the services are performed (for instance, if new problems are discovered); and explaining the repair and maintenance work when customers return for their vehicles. See App. 40-41; see also Brennan v. Deel Motors, Inc., 475 F.2d 1095, 1096 (C.A.5 1973) ; 29 CFR § 779.372(c)(4) (1971). Partsmen obtain the vehicle parts needed to perform repair and maintenance and provide those parts to the mechanics. See § 779.372(c)(2). Mechanics perform the actual repair and maintenance work. See § 779.372(c)(3).
In 1961, Congress enacted a blanket exemption from the FLSA's minimum wage and overtime provisions for all automobile dealership employees. Fair Labor Standards Amendments of 1961, § 9, 75 Stat. 73. In 1966, Congress repealed that broad exemption and replaced it with a narrower one. The revised statute did not exempt dealership employees from the minimum wage requirement. It also limited the exemption from the overtime compensation requirement to cover only certain employees-in particular, "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trailers, trucks, farm implements, or aircraft" at a covered dealership. Fair Labor Standards Amendments of 1966, § 209, 80 Stat. 836. Congress authorized the Department of Labor to "promulgate necessary rules, regulations, or orders" with respect to this new provision. § 602, id., at 844.
The Department exercised that authority in 1970 and issued a regulation that defined the statutory terms "salesman," "partsman," and "mechanic." 35 Fed.Reg. 5896 (1970) (codified at 29 CFR § 779.372(c) ). The Department intended its regulation as a mere interpretive rule explaining its own views, rather than a legislative rule with the force and effect of law; and so the Department did not issue the regulation through the notice-and-comment procedures of the Administrative Procedure Act. See 35 Fed.Reg. 5856 ; see also 5 U.S.C. § 553(b)(A) (exempting interpretive rules from notice and comment).
The 1970 interpretive regulation defined "salesman" to mean "an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles or farm implements which the establishment is primarily engaged in selling." 29 CFR § 779.372(c)(1) (1971). By limiting the statutory term to salesmen who sell vehicles or farm implements, the regulation excluded service advisors from the exemption, since a service advisor sells repair and maintenance services but not the vehicle itself. The regulation made that exclusion explicit in a later subsection: "Employees variously described as service manager, service writer, service advisor, or service salesman ... are not exempt under [the statute]. This is true despite the fact that such an employee's principal function may be disagnosing [sic ] the mechanical condition of vehicles brought in for repair, writing up work orders for repairs authorized by the customer, assigning the work to various employees and directing and checking on the work of mechanics." § 779.372(c)(4).
Three years later, the Court of Appeals for the Fifth Circuit rejected the Department's conclusion that service advisors are not covered by the statutory exemption. Deel Motors, supra . Certain District Courts followed that precedent. See Yenney v. Cass County Motors, 81 CCH LC ¶ 33,506 (Neb.1977) ;
Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶ 33,247 (E.D.Mich.1975), aff'd sub nom. Dunlop v. North Bros. Ford, Inc., 529 F.2d 524 (C.A.6 1976) (table); Brennan v. Import Volkswagen, Inc., 81 CCH LC ¶ 33,522 (Kan.1975).
In the meantime, Congress amended the statutory provision by enacting its present text, which now sets out the exemption in two subsections. Fair Labor Standards Amendments of 1974, § 14, 88 Stat. 65. The first subsection is at issue in this case. It exempts "any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements" at a covered dealership. 29 U.S.C. § 213(b)(10)(A). The second subsection exempts "any salesman primarily engaged in selling trailers, boats, or aircraft" at a covered dealership. § 213(b)(10)(B). The statute thus exempts certain employees engaged in servicing automobiles, trucks, or farm implements, but not similar employees engaged in servicing trailers, boats, or aircraft.
In 1978, the Department issued an opinion letter departing from its previous position. Taking a position consistent with the cases decided by the courts, the opinion letter stated that service advisors could be exempt under § 213(b)(10)(A). Dept. of Labor, Wage & Hour Div., Opinion Letter No. 1520 (WH-467) (1978), [1978-1981 Transfer Binder] CCH Wages-Hours Administrative Rulings ¶ 31,207. The letter acknowledged that the Department's new policy "represent [ed] a change from the position set forth in section 779.372(c)(4)" of its 1970 regulation. In 1987, the Department confirmed its 1978 interpretation by amending its Field Operations Handbook to clarify that service advisors should be treated as exempt under § 213(b)(10)(A). It observed that some courts had interpreted the statutory exemption to cover service advisors; and it stated that, as a result of those decisions, it would "no longer deny the [overtime] exemption for such employees." Dept. of Labor, Wage & Hour Div., Field Operations Handbook, Insert No. 1757, 24L04-4(k) (Oct. 20, 1987), online at https://perma.cc/5GHD-KCJJ (all Internet materials as last visited June 16, 2016). The Department again acknowledged that its new position represented a change from its 1970 regulation and stated that the regulation would "be revised as soon as is practicable." Ibid.
Twenty-one years later, in 2008, the Department at last issued a notice of proposed rulemaking. 73 Fed.Reg. 43654. The notice observed that every court that had considered the question had held service advisors to be exempt under § 213(b)(10)(A), and that the Department itself had treated service advisors as exempt since 1987. Id., at 43658-43659. The Department proposed to revise its regulations to accord with existing practice by interpreting the exemption in § 213(b)(10)(A) to cover service advisors.
In 2011, however, the Department changed course yet again. It announced that it was "not proceeding with the proposed rule." 76 Fed.Reg. 18833. Instead, the Department completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term "salesman" to mean only an employee who sells automobiles, trucks, or farm implements. Id., at 18859 (codified at 29 CFR § 779.372(c)(1) ).
The Department gave little explanation for its decision to abandon its decades-old practice of treating service advisors as exempt under § 213(b)(10)(A). It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors "are not exempt" under the relevant provision. 29 CFR § 779.372(c)(4) (1971). In promulgating the 2011 regulation, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been "an inadvertent mistake in drafting." Tr. of Oral Arg. 50.
B
Petitioner is a Mercedes-Benz automobile dealership in the Los Angeles area. Respondents are or were employed by petitioner as service advisors. They assert that petitioner required them to be at work from 7 a.m. to 6 p.m. at least five days per week, and to be available for work matters during breaks and while on vacation. App. 39-40. Respondents were not paid a fixed salary or an hourly wage for their work; instead, they were paid commissions on the services they sold. Id., at 40-41.
Respondents sued petitioner in the United States District Court for the Central District of California, alleging that petitioner violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. Id., at 42-44. Petitioner moved to dismiss, arguing that the FLSA overtime provisions do not apply to respondents because service advisors are covered by the statutory exemption in § 213(b)(10)(A). The District Court agreed and granted the motion to dismiss.
The Court of Appeals for the Ninth Circuit reversed in relevant part. It construed the statute by deferring under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to the interpretation set forth by the Department in its 2011 regulation. Applying that deference, the Court of Appeals held that service advisors are not covered by the § 213(b)(10)(A) exemption. 780 F.3d 1267 (2015). The Court of Appeals recognized, however, that its decision conflicted with cases from a number of other courts. Id., at 1274 (citing, inter alia, Walton v. Greenbrier Ford, Inc., 370 F.3d 446 (C.A.4 2004) ; Deel Motors, 475 F.2d 1095 ; Thompson v. J.C. Billion, Inc., 368 Mont. 299, 294 P.3d 397 (2013) ). This Court granted certiorari to resolve the question. 577 U.S. ----, 136 S.Ct. 890, 193 L.Ed.2d 783 (2016).
II
A
The full text of the statutory subsection at issue states that the overtime provisions of the FLSA shall not apply to:
"any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers." § 213(b)(10)(A).
The question presented is whether this exemption should be interpreted to include service advisors. To resolve that question, it is necessary to determine what deference, if any, the courts must give to the Department's 2011 interpretation.
In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regulation interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency's interpretation is reasonable. This principle is implemented by the two-step analysis set forth in Chevron . At the first step, a court must determine whether Congress has "directly spoken to the precise question at issue." 467 U.S., at 842, 104 S.Ct. 2778.
If so, "that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress." Id., at 842-843, 104 S.Ct. 2778. If not, then at the second step the court must defer to the agency's interpretation if it is "reasonable." Id., at 844, 104 S.Ct. 2778.
A premise of Chevron is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statutory scheme. See id., at 843-844, 104 S.Ct. 2778 ; United States v. Mead Corp., 533 U.S. 218, 229-230, 121 S.Ct. 2164, 150 L.Ed.2d 292 (2001). When Congress authorizes an agency to proceed through notice-and-comment rulemaking, that "relatively formal administrative procedure" is a "very good indicator" that Congress intended the regulation to carry the force of law, so Chevron should apply. Mead Corp., supra, at 229-230, 121 S.Ct. 2164. But Chevron deference is not warranted where the regulation is "procedurally defective"-that is, where the agency errs by failing to follow the correct procedures in issuing the regulation. 533 U.S., at 227, 121 S.Ct. 2164 ; cf. Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174-176, 127 S.Ct. 2339, 168 L.Ed.2d 54 (2007) (rejecting challenge to procedures by which regulation was issued and affording Chevron deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting Co. v. FCC, 22 F.3d 320, 324-326 (C.A.D.C.1994) ; cf. also Auer v. Robbins, 519 U.S. 452, 458-459, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997) (party cannot challenge agency's failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chevron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has challenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper.
One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions. The agency "must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (internal quotation marks omitted). That requirement is satisfied when the agency's explanation is clear enough that its "path may reasonably be discerned." Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974). But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. See 5 U.S.C. § 706(2)(A) ; State Farm, supra, at 42-43, 103 S.Ct. 2856.
Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981-982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ; Chevron, 467 U.S., at 863-864, 104 S.Ct. 2778. When an agency changes its existing position, it "need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). But the agency must at least "display awareness that it is changing position" and "show that there are good reasons for the new policy." Ibid. (emphasis deleted). In explaining its changed position, an agency must also be cognizant that longstanding policies may have "engendered serious reliance interests that must be taken into account." Ibid. ; see also Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996). "In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy." Fox Television Stations, supra, at 515-516, 129 S.Ct. 1800. It follows that an "[u]nexplained inconsistency" in agency policy is "a reason for holding an interpretation to be an arbitrary and capricious change from agency practice." Brand X, supra, at 981, 125 S.Ct. 2688. An arbitrary and capricious regulation of this sort is itself unlawful and receives no Chevron deference. See Mead Corp., supra, at 227, 121 S.Ct. 2164.
B
Applying those principles here, the unavoidable conclusion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department's change in position and the significant reliance interests involved. In promulgating the 2011 regulation, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here-in particular because of decades of industry reliance on the Department's prior policy-the explanation fell short of the agency's duty to explain why it deemed it necessary to overrule its previous position.
The retail automobile and truck dealership industry had relied since 1978 on the Department's position that service advisors are exempt from the FLSA's overtime pay requirements. See National Automobile Dealers Association, Comment Letter on Proposed Rule Updating Regulations Issued Under the Fair Labor Standards Act (Sept. 26, 2008), online at https://www.regulations.gov/# !documentDetail;D=WHD-2008-0003-0038. Dealerships and service advisors negotiated and structured their compensation plans against this background understanding. Requiring dealerships to adapt to the Department's new position could necessitate systemic, significant changes to the dealerships' compensation arrangements. See Brief for National Automobile Dealers Association et al. as Amici Curiae 13-14. Dealerships whose service advisors are not compensated in accordance with the Department's new views could also face substantial FLSA liability, see 29 U.S.C. § 216(b), even if this risk of liability may be diminished in some cases by the existence of a separate FLSA exemption for certain employees paid on a commission basis, see § 207(i), and even if a dealership could defend against retroactive liability by showing it relied in good faith on the prior agency position, see § 259(a). In light of this background, the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy.
The Department said that, in reaching its decision, it had "carefully considered all of the comments, analyses, and arguments made for and against the proposed changes." 76 Fed.Reg. 18832. And it noted that, since 1978, it had treated service advisors as exempt in certain circumstances. Id., at 18838. It also noted the comment from the National Automobile Dealers Association stating that the industry had relied on that interpretation. Ibid.
But when it came to explaining the "good reasons for the new policy," Fox Television Stations, supra, at 515, 129 S.Ct. 1800 the Department said almost nothing. It stated only that it would not treat service advisors as exempt because "the statute does not include such positions and the Department recognizes that there are circumstances under which the requirements for the exemption would not be met." 76 Fed.Reg. 18838. It continued that it "believes that this interpretation is reasonable" and "sets forth the appropriate approach." Ibid. Although an agency may justify its policy choice by explaining why that policy "is more consistent with statutory language" than alternative policies, Long Island Care at Home, 551 U.S., at 175, 127 S.Ct. 2339 (internal quotation marks omitted), the Department did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services (that is, service advisors). And though several public comments supported the Department's reading of the statute, the Department did not explain what (if anything) it found persuasive in those comments beyond the few statements above.
It is not the role of the courts to speculate on reasons that might have supported an agency's decision. "[W]e may not supply a reasoned basis for the agency's action that the agency itself has not given." State Farm, 463 U.S., at 43, 103 S.Ct. 2856 (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ). Whatever potential reasons the Department might have given, the agency in fact gave almost no reasons at all. In light of the serious reliance interests at stake, the Department's conclusory statements do not suffice to explain its decision. See Fox Television Stations, 556 U.S., at 515-516, 129 S.Ct. 1800. This lack of reasoned explication for a regulation that is inconsistent with the Department's longstanding earlier position results in a rule that cannot carry the force of law. See 5 U.S.C. § 706(2)(A) ; State Farm, supra, at 42-43, 103 S.Ct. 2856. It follows that this regulation does not receive Chevron deference in the interpretation of the relevant statute.
* * *
For the reasons above, § 213(b)(10)(A) must be construed without placing controlling weight on the Department's 2011 regulation. Because the decision below relied on Chevron deference to this regulation, it is appropriate to remand for the Court of Appeals to interpret the statute in the first instance. Cf. Mead, 533 U.S., at 238-239, 121 S.Ct. 2164. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice GINSBURG, with whom Justice SOTOMAYOR joins, concurring.
I agree in full that, in issuing its 2011 rule, the Department of Labor did not satisfy its basic obligation to explain "that there are good reasons for [a] new policy." FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515, 129 S.Ct. 1800, 173 L.Ed.2d 738 (2009). The Department may have adequate reasons to construe the Fair Labor Standards Act automobile-dealership exemption as it did. The 2011 rulemaking tells us precious little, however, about what those reasons are.
I write separately to stress that nothing in today's opinion disturbs well-established law. In particular, where an agency has departed from a prior position, there is no "heightened standard" of arbitrary-and-capricious review. Id., at 514, 129 S.Ct. 1800. See also ante, at 2125. An agency must "display awareness that it is changing position" and "show that there are good reasons for the new policy." Fox, 556 U.S., at 515, 129 S.Ct. 1800 (emphasis deleted). "But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates." Ibid.
The Court's bottom line remains unaltered: " '[U]nexplained inconsistency' in agency policy is 'a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.' " Ante, at 2126 (quoting National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 981, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) ). Industry reliance may spotlight the inadequacy of an agency's explanation. See ante, at 2126 ("decades of industry reliance" make "summary discussion" inappropriate). But reliance does not overwhelm good reasons for a policy change. Even if the Department's changed position would "necessitate systemic, significant changes to the dealerships' compensation arrangements," ante, at 2126, the Department would not be disarmed from determining that the benefits of overtime coverage outweigh those costs. "If the action rests upon ... an exercise of judgment in an area which Congress has entrusted to the agency [,] of course it must not be set aside because the reviewing court might have made a different determination were it empowered to do so." SEC v. Chenery Corp., 318 U.S. 80, 94, 63 S.Ct. 454, 87 L.Ed. 626 (1943).
Justice THOMAS, with whom Justice ALITO joins, dissenting.
The Court granted this case to decide whether an exemption under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq.,"requires payment of increased compensation to certain automobile dealership employees"-known as service advisors-"for overtime work." Ante, at 2121; see also ante, at 2121, 2124. The majority declines to resolve that question. Instead, after explaining why the Court owes no deference to the Department of Labor's regulation purporting to interpret this provision, see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), the majority leaves it "for the Court of Appeals to interpret the statute in the first instance." Ante, at 2127.
I agree with the majority's conclusion that we owe no Chevron deference to the Department's position because "deference is not warranted where [a] regulation is 'procedurally defective.' " Ante, at 2125. But I disagree with its ultimate decision to punt on the issue before it. We have an "obligation ... to decide the merits of the question presented." CBOCS West, Inc. v. Humphries, 553 U.S. 442, 472, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008) (THOMAS, J., dissenting). We need not wade into the murky waters of Chevron deference to decide whether the Ninth Circuit's reading of the statute was correct. We must instead examine the statutory text. That text reveals that service advisors are salesmen primarily engaged in the selling of services for automobiles. Accordingly, I would reverse the Ninth Circuit's judgment.
Federal law requires overtime pay for certain employees who work more than 40 hours per week. § 207(a)(2)(C). But the FLSA exempts various categories of employees from this overtime requirement. § 213. The question before the Court is whether the following exemption encompasses service advisors:
"The provisions of section 207 of this title shall not apply with respect to-
.....
"(10)(A) any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufacturing establishment primarily engaged in the business of selling such vehicles or implements to ultimate purchasers." § 213(b).
I start with the uncontroversial notion that a service advisor is a "salesman." The FLSA does not define the term "salesman," so "we give the term its ordinary meaning." Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. ----, ----, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012). A "salesman" is someone who sells goods or services. 14 Oxford English Dictionary 391 (2d ed. 1989) ("[a] man whose business it is to sell goods or conduct sales"); Random House Dictionary of the English Language 1262 (1966) (Random House) ("a man who sells goods, services, etc."). Service advisors, whose role it is to "interact with customers and sell them services for their vehicles," ante, at 2121, are plainly "salesm[e]n." See ibid. (cataloguing sales-related duties of service advisors).
A service advisor, however, is not "primarily engaged in selling ... automobiles." § 213(b)(10)(A). On the contrary, a service advisor is a "salesman" who sells servicing solutions. Ante, at 2121. So the exemption applies only if it covers not only those salesmen primarily engaged in selling automobiles but also those salesmen primarily engaged in servicing automobiles.
The exemption's structure confirms that salesmen could do both. The exemption contains three nouns ("salesman, partsman, or mechanic") and two gerunds ("selling or servicing"). The three nouns are connected by the disjunctive "or," as are the gerunds. So unless context dictates otherwise, a salesman can either be engaged in selling or servicing automobiles. Cf. Reiter v. Sonotone Corp., 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (1979).
Context does not dictate otherwise. A salesman, namely, one who sells servicing solutions, can be "primarily engaged in ... servicing automobiles." § 213(b)(10)(A). The FLSA does not define the term "servicing," but its ordinary meaning includes both "[t]he action of maintaining or repairing a motor vehicle" and "the action of providing a service." 15 Oxford English Dictionary 39; see also Random House 1304 (defining "service" to mean "the providing ... of ... activities required by the public, as maintenance, repair, etc."). A service advisor's selling of service solutions fits both definitions. The service advisor is the customer's liaison for purposes of deciding what parts are necessary to maintain or repair a vehicle, and therefore is primarily engaged in "the action of maintaining or repairing a motor vehicle" or "the action of providing a service" for an automobile.
Other features of the exemption confirm that a service advisor is a salesman primarily engaged in servicing automobiles. Consider the exemption's application to a "partsman." Like a service advisor, a partsman neither sells vehicles nor repairs vehicles himself. See 29 CFR § 779.372(c)(2) (2015) (defining "partsman" as "any employee employed for the purpose of and primarily engaged in requisitioning, stocking, and dispensing parts"). For the provision to exempt partsmen, then, the phrase "primarily engaged in ... servicing" must cover some employees who do not themselves perform repair or maintenance. So "servicing" refers not only to the physical act of repairing or maintaining a vehicle but also to acts integral to the servicing process more generally.
Respondents' contrary contentions are unavailing. They first invoke the distributive canon: "Where a sentence contains several antecedents and several consequents," the distributive canon instructs courts to "read [those several terms] distributively and apply the words to the subjects which, by context, they seem most properly to relate." 2A N. Singer & S. Singer, Sutherland on Statutory Construction § 47.26, on p. 448 (rev. 7th ed. 2014). Respondents accordingly maintain that 29 U.S.C. § 213(b)(10)(A) exempts only salesmen primarily engaged in selling automobiles. Brief for Respondents 20-26. But the distributive canon is less helpful in cases such as this because the antecedents and consequents cannot be readily matched on a one-to-one basis. Here, there are three nouns to be matched with only two gerunds, so the canon does not overcome the exemption's plain meaning. Perhaps respondents might have a better argument if the statute exempted "salesman or mechanics who primarily engage in selling or servicing automobiles." In such a case, one might assume that Congress meant the nouns and gerunds to match on a one-to-one basis, and the distributive canon could be utilized to determine how the matching should occur. But that is not the statute before us. For the reasons explained, supra, at 2122 - 2123, the plain meaning of the various terms in the exemption establish that the term "salesman" is not limited to only those who sell automobiles. It also extends to those "primarily engaged in ... servicing automobiles." § 213(b)(10)(A).
Respondents also resist this natural reading of the exemption by invoking the made-up canon that courts must narrowly construe the FLSA exemptions. Brief for Respondents 41-42. The Ninth Circuit agreed with respondents on this score. 780 F.3d 1267, 1271-1272, n. 3 (2015). The court should not do so again on remand. We have declined to apply that canon on two recent occasions, one of which also required the Court to parse the meaning of an exemption in § 213. Christopher v. SmithKline Beecham Corp., 567 U.S. ----, ---- - ----, n. 21, 132 S.Ct. 2156, 2172, n. 21, 183 L.Ed.2d 153 (2012) ; see also Sandifer v. United States Steel Corp., 571 U.S. ----, ----, n. 7, 134 S.Ct. 870, 879, n. 7, 187 L.Ed.2d 729 (2014). There is no basis to infer that Congress means anything beyond what a statute plainly says simply because the legislation in question could be classified as "remedial." See Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L.Rev. 581, 581-586 (1990). Indeed, this canon appears to "res[t] on an elemental misunderstanding of the legislative process," viz., "that Congress intend[s] statutes to extend as far as possible in service of a singular objective." Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 7.
* * *
For the foregoing reasons, I would hold that the FLSA exemption set out in § 213(b)(10)(A) covers the service advisors in this case. Service advisors are "primarily engaged in ... servicing automobiles," given their integral role in selling and providing vehicle services. Accordingly, I would reverse the judgment of the Ninth Circuit.
Unlike Justice THOMAS, I am not persuaded that, sans Chevron, the Ninth Circuit should conclude on remand that service advisors are categorically exempt from hours regulations. As that court previously explained, "[s]ervice advisors may be 'salesmen' in a generic sense, but they [may fall outside the exemption because they] do not personally sell cars and they do not personally service cars." 780 F.3d 1267, 1274 (2015). Moreover, in its briefing before this Court, the Department of Labor responded to the argument that "the exemption's application to a 'partsman' " "confirm[s] that a service advisor is a salesman primarily engaged in servicing automobiles." Post, at 2129 - 2130 (Thomas, J, dissenting). See Brief for United States as Amicus Curiae 22-23 (maintaining that partsmen, unlike service advisors, actually engage in maintenance and repair work); Brief for Respondents 11 (contending that partsmen "ge[t] their hands dirty" by "work[ing] as a mechanic's right-hand man or woman"); id., at 32-35 (cataloguing descriptions of partsmen responsibilities drawn from occupational handbooks and training manuals). The Court appropriately leaves the proper ranking of service advisors to the Court of Appeals in the first instance.
If the Department decides to reissue the 2011 rule, I doubt that reliance interests would pose an insurmountable obstacle. As the Court acknowledges, ante, at 2126, an affirmative defense in the Fair Labor Standards Act (FLSA) protects regulated parties against retroactive liability for actions taken in good-faith reliance on superseded agency guidance, 29 U.S.C. § 259(a). And a separate FLSA exemption covers many service advisors: retail or service workers who receive at least half of their pay on commission, so long as their regular rate of pay is more than 1 ½ times the minimum wage. Ante, at 2126 (citing § 207(i)); see Brief for Petitioner 13, n. 4 (many service advisors are paid on a commission basis). Thus, the cost of the Department's policy shift may be considerably less than the dealerships project. Finally, I note, the extent to which the Department is obliged to address reliance will be affected by the thoroughness of public comments it receives on the issue. In response to its 2008 proposal, the Department received only conclusory references to industry reliance interests. See ante, at 2126 (citing comment from National Automobile Dealers Association). An agency cannot be faulted for failing to discuss at length matters only cursorily raised before it.
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
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014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
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019. Bankruptcy Court
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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
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164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
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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
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184. Nevada U.S. Circuit for the District of Nevada
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195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
Answer: |
songer_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.
METROPOLITAN LIFE INS. CO. v. WHITLER. WHITLER v. WHITLER.
No. 9673.
United States Court of Appeals Seventh Circuit.
Jan. 31, 1949.
James R. Hale, of Fayetteville, Ark., and Roy M. Seeley, of Springfield, 111., 'for. appellant.
Harold G. T-alley and Anthony W. Daly, both of Alton, 111., and Thomas F. Butt, of Fayetteville, Ark., for appellee.
Before MAJOR, Chief Judge/ KERNER, Circuit Judge, and LINDLEY, District Judge.
KERNER, Circuit Judge.
This' was an- interpleader suit. Plaintiffs, corporations. of the States of New Y-ork, Connecticut and Virginia, respectively, filed their complaint against Helen Marie Whitler, a citizen of the State of Illinois, -and Ruth L. Whitler, a citizen of the State of Arkansas, to have determined conflicting claims under k policy of ■insurance issued by the Metropolitan Life Insurance Company, w-hereby it agreed to pay to the beneficiary named therein, upon the death bf Isaac E.-Whitler, an employee of Shell Oil Company, the sum -of $4,500. The existence of the requisite jurisdictional amount, the diversity of citizenship of the adverse claimants, -and -the disinterestedness of plaintiffs made the remedy of the Interpleader Act .available to the insurer. Treinies v. Sunshine Mining Co., 308 U. S. 66, 60 S.Ct. 44, 84 L.Ed. 85; Federal Life Ins. Co. v. Tietsort, 7 Cir., 131 F.2d 448.
Isaac E. Whitler -died on February 26, 1947. Helen- is his. daughter and Ruth is his widow. Each defendant claimed to be the beneficiary. Helen based her claim to the fund on the ground that she was named as the beneficiary in the policy. Ruth claimed that she had been named as beneficiary in the application for the policy and -hence was entitled to the fund. The trial judge made special findings of fact, rendered his conclusions of law thereon, and entered a decree awarding Helen Marie Whitler the money deposited by Metropolitan in the court’s registry. To reverse the decree, Ruth L. Whitler appeals.
The facts -are undisputed. On March 21, 1944, Isaac, an employee of Shell, pursuant to the terms of Group Life Insurance Policy No. 9960-G, issued by Metropolitan to Shell, .filed with Shell a written application for a policy of insurance in which ■he designated appellant as the beneficiary. The record is silent -as to any later and different -application made and filed by -him. Under this group policy, Metropolitan, about April 1, 1944, issued and delivered to Isaac the policy involved herein. This policy Isaac retained in his possession until his decease. The policy named appellee as beneficiary. Isaac knew and was ■fully aware that appellee was named as beneficiary in the policy and accepted the policy with knowledge that appellee was so named as beneficiary. After Isaac’s death the -policy was found in his safety-deposit box, to which appellant had access. She had examined the policy during.Isaac’s lifetime and knew that appellee’s name appeared therein as beneficiary. The court concluded that even if Isaac did originally intend that- appellant should be the beneficiary, by his acceptance and retention of the policy it must be presumed that he changed his mind and concluded to accept-the contract tendered by the insurer.
Upon oral argument, counsel for appel-. lant stated that the only question in this appeal -is whether appellant is entitled -to. the fund because she was named as beneficiary in -the application under the provisions of the group -policy. She calls attention to the fact that section 3 of the group or master.policy provides that an employee may ¡become insured thereunder only by making written request to the employer on, a form furnished by the insurance company, and argues that the individual policy issued to Isaac was not a part of the contract of, or necessary to, the insurance, but that the master policy constitutes the contract of insurance. She cites cases where the certificate issued by an employer was merely evidence of the employee’s participation in a group plan, and not a policy issued by an insurance company. Such ca-ses are not in point and it would serve no useful purpose to discuss them. Here, Metropolitan issued its own insurance policy in which it certified that Isaac E. W'hitler was insured for $4,500 and agreed that if he died while in the employ of Shell and while insured under the group policy, the amount of insurance at the date of his death would be paid to Helen Marie Whitler.
In consideration of appellant’s contention it is well to remember that the same rules of construction apply to group insurance as to other forms -of insurance. Howard v. Aetna Life Ins. Co., 329 Ill. App. 248, 255, 67 N.E.2d 878. Th-e law is well settled that an application f-or life insurance itself is not the -contract, but is a mere offer or proposal for a contract -of insurance. It is merely a -step in th-e creation of the insurance contract. 29 Am. Jur. p. 152. And wh-ere the insurance company tenders a policy at variance with the application, the tender constitutes a counter-offer, and upon acceptance of -the policy by the insured, there is a meeting of the minds a-nd -the policy becomes the contract between -the insured -and the -insurance company. 44 C.J.S., Insurance, § 232, page 972. See also Minnesota Mut. Life Ins. Co. v. Newman, Tex.Civ.App., 157 S.W.2d 667, 671. While it is true that an individual certificate or -policy of -group life insurance issued an-d delivered to- an ■insured employee is an integral part of the master policy, yet the provisions of the individual policy govern in determining the beneficiary entitled to the -proceeds of -the policy upon the death of -th-e insured employee. Baker v. Prudential Ins. Co., 279 Ill. App. 5; Wing v. John Hancock Mut. Life Ins. Co., 314 Mass. 269, 49 N.E.2d 905, 906. The application -confers no right -on the beneficiary named therein, and it ha-s been held that even where -an application is made a part of th-e policy -and there is an irreconcilable conflict between the application and th-e policy .issued, the provisions of the policy control. Burt v. Burt, 218 Pa. 198, 67 A. 210, 211; Aetna Life Ins. Co. v. Phillips, 10 Cir., 69 F.2d 901, 904. Moreover, receipt and retention of -a policy with knowledge as to whom it :i-s payable -constitutes ratification and it is accepted -as written. McFadden v. Equitable Life Assur. Soc., 351 Pa. 570, 41 A.2d 624; Woehr v. Travelers Ins. Co., 134 N.J.Eq. 38, 34 A.2d 136.
We -conclude -that the District Court -did not -err in -awarding the proceeds -of the policy .to -appellee. Accordingly the decree is affirmed.
28 U.S.C.A. § 41(26) [now §§ 1335, 1397, 2361].
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer: |
songer_direct1 | B | What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
The TRAVELERS INSURANCE COMPANY and The Travelers Indemnity Company, Appellants, v. Rean William McELROY, Jr., Appellee.
No. 20183.
United States Court of Appeals Ninth Circuit.
March 9, 1966.
Rehearing Denied June 2, 1966.
Daniel Cracchiolo, Kramer, Roche, Burch & Streich, Phoenix, Ariz., for appellant.
Frank Lewis, Langerman, Begam & Lewis, Phoenix, Ariz., for appellee.
Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
HAMLEY, Circuit Judge.
Rean William McElroy, Jr., was injured when the truck in which he was a passenger collided with an automobile. On May 20, 1963, he obtained a default judgment in an Arizona superior court for $105,000 against the driver of the truck. This judgment has remained wholly unsatisfied. McElroy filed the present action in the district court against Travelers Insurance Company (Travelers), alleging that Travelers is liable for the unsatisfied judgment under the terms of a policy of liability insurance issued to Colonial and Pacific Frig-idways, Inc., (C & P), the lessee of the truck. Federal jurisdiction is based on diversity of citizenship, 28 U.S.C. § 1332 (1964).
The facts concerning the accident and the insurance policy are not in dispute. C & P, on September 10, 1962, sold Donald L. Jacobs a 1957 White Freight-line Tractor on a conditional sales contract. On the same date, Jacobs and C & P entered into a lease agreement whereby Jacobs leased his newly-acquired truck to C & P. These instruments were executed in Iowa where C & P maintained offices.
Contemporaneously, Travelers issued a comprehensive automobile liability policy to C & P for the period of September 10, 1962 to September 10, 1963. The pertinent provisions of the policy are as follows:
“It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Automobile Medical Payments and for Property Damage Liability applies with respect to all owned automobiles and hired automobiles, and the use, in the business of the named insured, of non-owned automobiles, subject to the following provisions :
“ * * * The insurance with respect to any person or organization other than the named insured does not apply: * * *
“(d) with respect to any hired automobile, to the owner or any lessee of such automobile, or to any agent or employee of such owner or lessee, if the accident occurs
“(1) while such automobile is not being used exclusively in the business of the named insured. * * *
“(e) with respect to any non-owned automobile, to any executive officer if such automobile is owned by him or a member of his household; * *
Acting pursuant to a provision of the lease agreement, Jacobs hired Mike E. Trujeque to assist in driving the truck. Trujeque was duly approved by C & P. On December 22, 1962, Jacobs and Trujeque were in Phoenix between trips; both men maintained homes in that city and intended to spend the Christmas holiday there.
Trujeque was permitted by Jacobs to take the tractor without its trailer to his home in order to clean it. On the night of December 23, 1962, after washing the truck and having it serviced, Trujeque and appellee went in the truck to pick up Trujeque’s brother. As they were returning to Trujeque’s house, the accident occurred in which McElroy was injured. He was an acquaintance of Trujeque but at the time of the accident he was unknown to Jacobs.
McElroy brought suit against Truje-que and Jacobs in the Superior Court of Maricopa County, Arizona, and was awarded a default judgment against Trujeque. At the time of the appeal in this case, the state court action against Jacobs was still pending.
On December 5, 1963, McElroy filed suit in the district court of Arizona against Travelers, alleging in his complaint that Travelers, in its liability policy issued to C & P, had agreed to insure Trujeque for liability arising from the use of the truck. It was also alleged that the policy, by its terms, permitted an action based on the superior court judgment. Both parties moved for summary judgment. An order was entered on March 2, 1965, granting plaintiff’s motion for summary judgment but limiting recovery against Travelers to $10,000. Travelers has appealed from the district court order; appellee has not taken a cross-appeal with regard to the amount of recovery.
Travelers bases its argument for reversal primarily on the provision of the insurance policy, quoted above, which excludes coverage from hired vehicles which are not being used exclusively in the business of the named insured, C & P. Appellee does not assert that Trujeque, at the time of the accident, was using the truck “exclusively in the business” of C & P. Rather, it is urged that this provision, limiting liability, is inconsistent with the established law and policy of the state of Arizona and is therefore ineffective as a defense to this action.
In order to conform to the Arizona Safety Responsibility Act, a motor vehicle liability policy must insure the person named in the policy and any other person using the vehicle with the express or implied permission of the named insured. In the insurance business, such a provision is commonly referred to as an “omnibus clause.” The Arizona Supreme Court in Jenkins v. Mayflower Insurance Exchange, 93 Ariz. 287, 380 P.2d 145, held that the statutory omnibus clause is a part of every motor vehicle liability policy whether or not that policy has been “certified” pursuant to the state’s financial responsibility laws. If the effect of the Jenkins decision is to incorporate the omnibus clause into the insurance policy issued by Travelers, the summary judgment in favor of appellee must be affirmed.
Appellee relies upon the following statement from the Jenkins case:
“We hold, therefore, that the omnibus clause is a part of every motor vehicle liability policy, by whatever name it may be called.” 380 P.2d at 148.
This language would appear to encompass the present case. However, Travelers contends that the court in Jenkins was referring only to liability policies issued to vehicle owners, and that the holding has no effect on “non-owner” policies. Travelers also points out that under the Arizona financial responsibility statutes a motor vehicle liability policy “ * * * means an owner’s or an operator’s policy of liability insurance, * * A.R.S. § 28-1170 (1956). Since, Travelers argues, the policy in this case was issued to C & P as lessee of the truck, it was a non-owner policy and hence outside the purview of the financial responsibility laws and the Jenkins decision.
Although the Jenkins case involved a policy of liability insurance issued to a vehicle owner, we believe that the rationale of that opinion applies with equal force to the facts of the present case. Our conclusion is based not only on the broad language of Jenkins, but also on a realistic appraisal of the terms and conditions of the conditional sale and leaseback arrangement executed by Jacobs and C & P.
The parties to the conditional sale contract agreed that the truck would be under permanent lease to C & P for the duration of the payment period — a total of thirty months. And, during this period it would be under the direction and control of the lessee, C & P; and it could not be used for the transportation of any commodity for any company or person other than C & P. Title to the vehicle was to remain in the conditional vendor until full payment of the consideration.
The simultaneously executed lease agreement provided that C & P would maintain “exclusive possession, control and use” of the truck. Also the lessor was prohibited from using the truck for transportation of his own property. C & P agreed to obtain public liability and property damage insurance for the protection of the lessor as well as C & P. C & P also assumed responsibility to the public, the shippers, and to the various state Public Service Commissions and Motor Vehicle Departments.
Jacobs or his driver was required to report his location to C & P at least once
every twenty-four hours. C & P told Jacobs when and where to pick up a load and when and where to deliver it. The route to be traveled was designated by C & P and failure to sign in at various checkpoints along this route would subject Jacobs to fines. The truck remained registered and licensed in C & P's name; Jacobs’ name did not appear on anything pertaining to the truck other than the lease-purchase agreement.
From this, it is obvious that the conditional vendee obtained no right to possession and control of the vehicle. In addition, C & P agreed to obtain liability insurance for the protection of the lessor as well as the lessee; sueh an agreement by C & P implies that the liability insurance so obtained will comply with the various state financial responsibility laws. Under these circumstances, the policy of insurance issued by Travelers to C & P must be deemed an owner’s policy within the meaning of section 28-1170 of the Arizona Revised Statutes. The Jenkins case is therefore applicable to conform this policy to the statutory requirements.
This construction of the term “owner’s * * * policy of liability insurance” contained in section 28-1170 does not conflict with the definition of “owner” found in the definition section of the Arizona Vehicle Code. That definition provides:
“ ‘Owner’ means a person who holds the legal title of a vehicle or, if a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested, in the conditional vendee or lessee, the conditional vendee or lessee, or, if a mortgagor of a vehicle is entitled to possession, the mortgagor.” A.R.S. § 28-130 (1956).
In our case, Jacobs, the conditional ven-dee, was not vested with an immediate right of possession.
Other courts have found that under lease arrangements similar to the one in this case, whereby the lessee is given exclusive possession and control of the vehicle and assumes the responsibility of obtaining liability insurance, the lessee can be deemed an “owner” for purposes of insurance coverage. Powell v. Home Indemnity Co., 8 Cir., 343 F.2d 856; Continental Casualty Co. v. Transport Indemnity Co., 16 Wis.2d 189, 114 N.W.2d 137; Moore v. Palmer, 350 Mich. 363, 86 N.W.2d 585. Travelers relies on Clarke v. Harleysville Mutual Casualty Co., 4 Cir., 123 F.2d 499, but that case did not involve the elements which we find determinative in the present case — exclusive right to possession and control in the lessee, and assumption by the lessee of the obligation to provide liability insurance.
Section 28-1172, subsec. B is cited by Travelers in support of its argument that the Arizona financial responsibility requirements are not applicable in this case. That statute provides:
“B. This chapter shall not be held to apply to or affect policies insuring solely the insured named in the policy against liability resulting from the maintenance or use by persons in the insured’s employ or on his behalf of motor vehicles not owned by the insured.” (Emphasis added.)
The short answer to this contention is that the policy issued by Travelers did not insure C & P “solely” against liability arising from the use of non-owned vehicles. Coverage under C & P’s policy extended to owned, hired, and non-owned vehicles; and the definition of the “insured” contained in the policy includes, with some exceptions, those using the vehicle with the permission of C & P. It was a comprehensive automobile liability policy which did not restrict coverage solely to C & P and non-owned automobiles.
The principal purpose of the Arizona financial responsibility laws is to protect the public using the highways from financial hardship resulting from the use of vehicles by financially irresponsible persons. Schecter v. Killingsworth, 93 Ariz. 273, 380 P.2d 136, 140. It would be inconsistent with this policy and with the spirit of Jenkins v. Mayflower Insurance Exchange, to hold that a lessee of a vehicle who has the exclusive right to possession and control, and who has assumed the burden of providing liability insurance, need not conform to the financial responsibility laws. We therefore hold that the policy issued by Travelers to C & P was an owner’s policy within the meaning of section 28-1170, and extended coverage to any use of the truck with the express or implied permission of C & P.
It is unnecessary to review the arguments of the parties concerning whether or not C & P was, in fact, the sole owner of the truck. It is sufficient that C & P, by virtue of the terms of the sale and lease-back agreements, obligated itself to conform to the Arizona financial responsibility laws in the same manner as a vehicle owner.
Travelers argues that appellee is bound by the fact that in the complaint in his damage action against Trujeque, he alleged that the truck-tractor was owned by Jacobs, and that a default judgment was obtained. In our view the question of whether Jacobs was the owner of the truck-tractor was not critical in the damage suit and the default judgment is therefore not an adjudication on that matter binding in this action by appellee against Travelers.
Affirmed.
. In Ms brief, appellee asserts that the district court erred in computing interest on the $10,000 judgment against Travelers rather than computing it on the $105,000 judgment recovered against Tru-jeque. In the absence of a cross-appeal this question is not properly before us.
. “B. The owner’s policy of liability insurance must comply with the following requirements:
:jc ¡fc H; ífc 5jt
“2. It shall insure the person named therein and any other person, as insured, using the motor vehicle or motor vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance or use of the motor vehicle or motor vehicles * * A.R.S. . § 28-1170 (1956).
. The lower court rendered no written opinion in this case. Evidently, the district court was convinced that the Jenkins case was applicable to this policy and that the omnibus clause extended coverage to the use of the truck by Trujeque. This explains the limitation of the award to $10,000 which is the minimum amount of coverage specified by the Arizona financial responsibility laws. In other words, Travelers was found liable under the financial responsibility laws for the statutory minimum while the policy terms were effective to preclude recovery of an amount in excess of this minimum. See A.R.S. § 28-1170, subsec. G (1956).
Travelers contends that the lower court erred in applying the substantive law to the undisputed facts of the case. It is conceded that there is no issue of material fact underlying the adjudication. While Travelers asserts that, under the established facts, the truck-tractor was not being used exclusively in the business of the named insured, the company does not, on this appeal, contend that Trujeque was not acting with the express or implied permission of O & P at the time of the accident.
. With respect to financial responsibility laws, the policy issued by Travelers provided as follows:
“Financial Responsibility Laws. When this policy is certified as proof of financial responsibility for the future under the provisions of the motor vehicle financial responsibility law of any state or province, such insurance as is afforded by this policy for bodily injury liability or for property damage liability shall comply with the provisions of such law which shall be applicable with respect to any such liability arising out of the ownership, maintenance or use during the policy period of any automobile insured hereunder, to the extent of the coverage and limits of liability required by such law, but in no event in excess of the limits of liability stated in this policy. The insured agrees to reimburse the company for any payment made by the company which it would not have been obligated to make under the terms of this policy except for the agreement contained in this paragraph.”
. No Arizona decisions have been called to our attention ■which define either the word “owner” or the term “owner’s policy of liability insurance” as used in the Arizona Motor Vehicle Code.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
songer_stateclaim | 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 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.
James CHAMBERS and Lydia Chambers, Appellants, v. UNITED STATES of America, Appellee.
No. 18021.
United States Court of Appeals Eighth Circuit.
March 3, 1966.
Paul C. Zempel, St. Louis, Mo., for appellants.
Harold F. Reis, Executive Asst, to Atty. Gen., Department of Justice, Washington, D. C., John W. Douglas, Asst. Atty. Gen., P®pt. of Justice, Morton Hollander and Robert V. Zener, Attorneys, Dept, of Justice, Washington, D. C., and F. Russell Millin, U. S. Atty., Kansas City, Mo., for appellee.
Before VAN OOSTERHOUT and MEHAFFY, Circuit Judges, and VAN PELT, District Judge.
MEHAFFY, Circuit Judge.
Plaintiffs James and Lydia Chambers brought this action against the United States under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b), 2671 et seq., seeking damages for the death of their son, Airman Third Class John E. Chambers.
The complaint alleged that on the date of his death, decedent was an enlisted man in the United States Air Force assigned to Whiteman Air Force Base in Johnson County, Missouri; that the United States maintained and operated a base swimming pool for its personnel; and that while swimming in the base pool on August 17, 1963, decedent drowned or died of a blow on the head, or a combination of both.
The Government filed a pleading entitled “Answer and/or Motion to Dismiss with Suggestions in Support,” admitting that the Government was engaged in maintaining and training military personnel and in connection therewith maintained and operated the Whiteman Air Force Base, including the base swimming pool. The Government further admitted that on the date of his death, decedent was an enlisted man assigned to White-man Air Force Base and that on August 17, 1963, while engaged in swimming in said pool, he drowned. The Government denied that decedent received a blow on his head.
Plaintiffs alleged numerous acts of negligence, including failure to keep qualified life guards at the pool, failure to provide adequate life saving equipment, failure to instruct life guards properly in life saving methods, and in general failure to provide adequate protection for decedent while he was swimming in said pool.
The Government denied all the allegations of negligence and moved to dismiss the complaint on the grounds that plaintiffs had no claim under the Tort Claims Act.
The trial court dismissed the Government’s motion without prejudice because at that juncture it did not appear from the pleadings whether or not the decedent’s activities at the time of his death were incident to his military service.
Subsequently, the Government resubmitted its motion to dismiss attaching in affidavit form a statement of an Assistant United States Attorney based upon information furnished to him by other government agents, asserting that decedent was considered a capable swimmer who was training for underwater swimming activities in an intersquadron swimming meet, and that he was known to practice physical endurance in underwater swimming by using a method of breathing called “hyperventilation.” The decedent was considered as being present and accounted for and subject to the command of the base authorities. He was not in furlough status. Also submitted was the certificate of Colonel R. J. Pugh, Director of Administrative Services of the Air Force and official custodian of the records of Air Force personnel, avowing that the records disclose that decedent was an enlisted man on continuous active service in the Air Force until his death on August 17, 1963. Additionally, the Government submitted the affidavit of First Lieutenant Hirum E. West, acting commander of decedent’s squadron, to the effect that decedent was present and accounted for on the day of his death, and that decedent was immediately subject to the command of affiant and other of his military superiors while on the base, including that time decedent was in the base pool immediately preceding his death.
The trial court, in a memorandum and order sustaining defendant’s motion, noted:
“From August 27,1964 to November 27, 1964, plaintiffs sought and obtained various extensions of time to respond with suggestions in opposition to defendant’s renewed Motion to Dismiss. The time granted in the last continuing order has now expired, and the plaintiffs still have not responded. We can only conclude that plaintiffs are unable to state controverting facts, or a tenable theory of law to rebut the defendant’s motion and its supporting affidavits.”
The trial court concluded that the uncon-troverted affidavit established that, at the time of his death, decedent was on active duty status with the United States Air Force and subject to commands of his military superiors; that decedent’s swimming activity was performed while on active duty, and sufficiently related to military service to preclude an action under the Federal Tort Claims Act. The trial court considered defendant’s motion as a motion for summary judgment and sustained it. We affirm.
The sole issue here is whether the District Court was warranted, after considering the record before it, in dismissing plaintiffs’ complaint and entering summary judgment for the Government under Rule 56 of the Federal Rules of Civil Procedure.
Plaintiffs have challenged the documents filed by the Government in support of its motion. We will ignore them in our initial discussion because we think the Government would have been entitled to summary judgment in this case even if no affidavit or supporting evidence had been offered in support of its motion.
The Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), held that “[t]he Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are incident to service.” Feres also established that a serviceman cannot recover for injuries incident to service even though at the time he is not engaged in the performance of military duties. The complaint in the instant case does not allege or even suggest any fact that would take it outside the Feres rule and permit recovery.
We have consistently held that summary judgment is appropriate where, had the case gone to trial, a directed verdict would have been required. Wolf v. Schaben, 272 F.2d 737 (8th Cir. 1959); Rubenstein v. Dr. Pepper Co., 228 F.2d 528, 532-533 (8th Cir. 1955); Durasteel v. Great Lakes Steel Corp., 205 F.2d 438, 441 (8th Cir. 1953).
It is not necessary for the defending party to support his motion for summary judgment by affidavits. Rule 56(b) Fed.R.Civ.P.
The purpose of our summary judgment rule is to expeditiously determine cases without necessity for formal trial where there is no substantial issue of fact and is in the nature of an inquiry to determine whether genuine issues of fact exist. If no factual dispute exists and the complaint does not state a cause of action, it should be disposed of by summary judgment rather than exposing the litigants to unnecessary delay, work and expense in going to trial when the trial judge would be bound to direct a verdict in movant’s favor after all evidence is adduced.
Plaintiffs allege that Airman Chambers met his death while in service at the Whiteman Air Force Base when engaged in swimming in a pool that was a part of said base due to the alleged negligence of the Government. These facts do not constitute a cause of action under the Feres rule.
The Feres case has been consistently followed. In United States v. United Services Auto. Ass’n., 238 F.2d 364 (8th Cir. 1956), this court, speaking through Judge Van Oosterhout, discusses Feres at length and the reasons the Supreme Court there assigned for denying a serviceman relief under the Tort Claims Act. Judge Van Oosterhout noted there that Feres was decided by a unanimous court and its rule had been steadfastly adhered to.
The statement of the Assistant United State Attorney, based as it is upon information furnished by others, obviously does not comply with Rule 56 (e) and does not constitute admissible evidence. It is, therefore, not entitled to and will be given no consideration here. Hoston v. J. R. Watkins Co., 300 F.2d 869, 870 (9th Cir. 1962).
The certificate of Colonel R. J. Pugh to the effect that Air Force personnel records indicated that Airman Chambers was an enlisted man and in active service until his death need not be considered as there is other evidence to the same effect in the pleadings as well as in the affidavit of Lieutenant West.
Plaintiffs admit that the affidavit of Lieutenant West was in proper form and that in the Government’s second motion it was alleged that Airman Chambers died in the swimming pool “while engaged in activities which were incident to his military service.” The plaintiffs challenge this affidavit, asserting that it is devoted entirely to legal and factual conclusions not based on personal knowledge and thus failing the requirement of Rule 56 (c). It is true the affidavit does not state, in so many words, that it is based on personal knowledge, but all pertinent parts obviously were made from personal knowledge. Certainly Lieutenant West knew that he was Acting Commander of the squadron to which Airman Chambers was assigned on the date of his death and that on said date Airman Chambers was subject to his command as well as to that of all his military superiors, and that this subjection to control of his military superiors applied to Airman Chambers’ presence in the swimming pool in which he was drowned. Lieutenant West did not state that he had personal knowledge of Chambers’ presence on the base that day, but rather used the militaryese language “on the date of 17 August 1963 the said Airman Third Class John Edward Chambers was accounted for by the United States Air Force as being present for duty.” This statement, of which plaintiffs complain, is not significant because the complaint alleges and the answer admits that Airman Chambers met his death while swimming in the pool on August 17, 1963. We note that plaintiffs made no objection to the affidavit of Lieutenant West, or the other documents for that matter, and no motion was made to strike any of them. Under these circumstances, neither this court nor the trial court is precluded from giving the documents consideration. United States for Use and Benefit of Austin v. Western Electric Co., 337 F.2d 568, 575 (9th Cir. 1964).
Plaintiffs assert that even if the disputed documents were considered they “[a]t most state that Chambers was on active duty at the time of his death. They do not negate the possibility that he was on furlough or weekend liberty at the time of his death.” It is not incumbent upon the defendant to negate any possibility not alleged in the complaint. Even if plaintiffs had available such proof, the existence of same would not be effective to raise a fact issue under the Feres rule.
In Zoula v. United States, 217 F.2d 81 (5th Cir. 1954), servicemen were injured in a collision between the automobile they occupied and an Army ambulance. The servicemen had passes but recovery under the Federal Tort Claims Act was denied them.
“At the time of the collision resulting in the injuries sued for, both the Plaintiffs were dressed in civilian clothes, were on business of their own, going from one part of the Reservation to the other, for the purpose of getting a check cashed, a hair-cut, making measurements for some clothes, probably spending the week end [sic] in town.” Id. at 82 n. 1
See also Gursley v. United States, 232 F.Supp. 614 (D.C.Colo.1964); Richardson v. United States, 226 F.Supp. 49 (E.D.Va.1964).
In United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954), in discussing Feres, the Court said:
“The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty, led the Court to read that Act as excluding claims of that character.”
The significant fact here is that Chambers was assigned to duty at the White-man Base, subject to the control of his military superiors. Even though he might have had a furlough order in his pocket or might have been engaged in swimming for recreation, his claim would be subject to the Feres rule and no recovery permitted. As a matter of fact, Airman Chambers’ use of the pool, which was a part of the base, was related to and dependent upon his military service; otherwise, he would not have been privileged to use it.
Plaintiffs neither objected to nor moved to strike any of the supporting documents filed with the Government’s resubmitted motion to dismiss. We think it is too late for plaintiffs to urge their objections for the first time in this court, having had ample opportunity to do so in the trial court. Had they made the same objections in the trial court, it would have afforded the Government an opportunity to correct any technical defects. In order for plaintiffs to successfully oppose the Government’s motion, they were obliged to come forward with either a denial of the allegations or evidence to show a factual conflict. United States v. Mt. Vernon Milling Co., 345 F.2d 404 (7th Cir. 1965). And, where a party has no countervailing evidence and cannot show any will be available at trial, he is not entitled to a denial of the motion. International Longshoremen’s and Warehousemen’s Union v. Kuntz, 334 F.2d 165, 169, n. 5 (9th Cir. 1964). Furthermore, plaintiffs failed to make an issue of fact by arguing in this court that Airman Chambers might have been on furlough or weekend liberty. Atex Mfg. Co. v. “Lloyds of London,” 139 F.Supp. 314 (W.D.Ark.1955).
We, therefore, hold that plaintiffs' failure to state a cause of action under the Feres rule was sufficient to warrant the trial court’s entry of summary judgment. The trial court had a right to consider the affidavit of Lieutenant West in arriving at its decision, despite the affidavit’s omission of stating that it was made on personal knowledge. The judgment of the District Court granting summary judgment to the Goverment is affirmed.
. The Supreme Court in Feres considered three cases in the one opinion.- Feres perished by fire while asleep in his barracks; the other two cases, Jefferson and Griggs, involved negligent treatment while the servicemen were in Army hospitals. The Supreme Court denied recovery in each of the three cases.
. “Hirum E. West, First Lieutenant, USAF, 351 Civil Engineering Squadron, United States Air Force, Whiteman Air Force Base, Missouri, being duly sworn, deposes and states as follows:
“On 17 August 1963 I was Acting Commander of the 340th Civil Engineering Squadron, which has been since redesig-nated 351st Civil Engineering Squadron, Whiteman Air Force Base, Missouri. On that date John Edward Chambers was assigned as an Airman Third Class, United States Air Force, to the 340th Civil Engineering Squadron, Whiteman Air Force Base, Missouri. On the date of 17 August 1963 the said Airman Third Class John Edward Chambers was accounted for by the United States Air Force as being present for duty. Further, while being on Whiteman Air Force Base on 17 August 1963 he was immediately subject to my command as well as to that of all his military superiors. This subjection to the control of his military superiors applied to the said Airman Third Class John Edward Chambers’ presence in the swimming pool in which he drowned as it was within the limits of Whiteman Air Force Base, Missouri * *
. The Western Electric opinion in footnote 19, 337 F.2d at 575 quotes from Barron and Holtzoff:
“The rule here applicable was stated in 3 Barron and Holtzoff, Federal Practice and Procedure 171: ‘An affidavit which fails to meet the requirements of Buie 56(e) may be stricken on motion. In the absence of a motion to strike or other objection the court may properly choose to consider a document which technically fails to conform to the rule.’ ”
. The servicemen there bad passes issued to them and since the injury happened on the base and while they were thus subject to military control, their activities were “incident to service” within the meaning of the Feres rule.
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_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.
Kentha Earl McDOWELL v. UNITED STATES of America.
Nos. 7164, 7180.
United States Court of Appeals Tenth Circuit.
Feb. 5, 1963.
Thomas S. Nichols, Denver, Colo., for appellant.
Lawrence M. Henry, U. S. Atty., and Michael C. Villano, Asst. U. S. Atty., Denver, Colo., for appellee.
Before MURRAH, Chief Judge, and PICKETT and LEWIS, Circuit Judges.
PER CURIAM.
In case No. 7164, judgment affirmed February 5, 1963, without written opinion, for the reason stated in the order of the United States District Court. In case No. 7180, appeal dismissed February 5, 1963, without written opinion, since the record conclusively shows that appellant is not now serving the sentence he attacks and relief under section 2255 is not available to him. Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407; Igo v. United States, 10 Cir., 303 F.2d 317.
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_numappel | 1 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
CATES v. HADERLEIN.
No. 10312.
United States Court of Appeals Seventh Circuit.
May 23, 1951.
Frank E. Gettleman, Arthur Gettleman and Edward Brodkey, all of Chicago, Ill., for appellant.
Otto Kerner, Jr., U. S. Atty., John Peter Lulinski and C. Wylie Allen, Assts. U. S. Atty., all of Chicago, Ill., for appellee.
Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.
DUFFY, Circuit Judge.
In this action plaintiff seeks to restrain and enjoin the postmaster of the city of Chicago from carrying out the terms of a Fraud Order issued by the Postmaster General after a hearing. The district court denied the plaintiff’s motions for a preliminary injunction and for a permanent injunction, and dismissed the complaint.
In the complaint herein plaintiff described in detail the administrative procedure of the Post Office Department with reference to the hearing before that agency which led to the issuance of the Fraud Order. Appellant, trading as Glory Bee Products and Glory Bee, was charged with conducting a scheme for obtaining money through the mails by means of pretenses which were knowingly false and fraudulent, in violation of Secs. 259 and 732, Title 39 U.S.C.A. Appellant advertised its products, “Glory Bee Fast Luck Brand Incense” and “Incense Number Tablets,” by sending printed circulars through the mails.
In answer to the complaint filed in the proceedings before the Post Office Department, appellant admitted that he had, in order to sell his products, caused to be printed and disseminated through the mails the circulars referred to, but he denied that the import of such advertising was as stated in said complaint, and also denied that any false or fraudulent representations had been made. On the hearing before the trial examiner, the government offered the testimony of a post office inspector and a medical officer of the Federal Food and Drug Administration. Appellant herein did not offer any testimony. The trial examiner, after the hearing, made findings of fact and recommendations to the Postmaster General for the issuance of a fraud order. On August 16, 1950, the Postmaster General issued the Fraud Order.
Appellant contends that before a valid fraud order may be issued the Postmaster General and the Post Office Department must subject themselves to the provisions and requirements of the Administrative Procedure Act of 1946, 5 U.S.C.A. § 1001 et seq., and grant a fair hearing, as required by Sec. 5(c) of that act.
The terms of the statutes under which the Fraud Order here under consideration was issued, make no provision for a hearing in connection with the issuance of fraud orders, but provide, “The Postmaster General may, upon evidence satisfactory to him”, issue such orders. After it was held in American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90, that a court review could be had to test the validity of such fraud orders, the constitutionality of the sections authorizing their issuance was upheld in Public Clearing House v. Coyne, 194 U.S. 497, 24 S.Ct. 789, 48 L.Ed. 1092, and Donaldson v. Read Magazine, 333 U.S. 178, 68 S.Ct. 591, 92 L.Ed. 628.
Despite these rulings, appellant contends that the Fraud Order here involved is void for failure on the part of the Postmaster General to comply with the Administrative. Procedure Act. Appellant specifically relies on the language of Sec. 5, as follows:
“In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing, * * *
******
“(c) The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision * * * no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. * * * ”
We think that by its very terms the Administrative Procedure Act, applying as it does to cases “of adjudication required by statute to be determined on the record after opportunity for an agency hearing,” is inapplicable to a mail fraud order issued under 39 U.S.C.A. §§ 259 and 732, since those statutes contain no requirement for hearing or opportunity therefor.
The legislative history of the Administrative Procedure Act generally, or in connection with the provisions of Sec. 5, will not be referred to as it has been held to be “more conflicting than the text is ambiguous.” Wong Yang Sung v. McGrath, 339 U.S. 33, 49, 70 S.Ct. 445, 14 L.Ed. 616. In that case, however, it was ruled, 339 U.S. at page 50, 70 S.Ct. at page 454: “We think that the limitation to hearings ‘required by statute’ in § 5 of the Administrative Procedure Act exempts from that section’s application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the' requirement for which has been read into a statute by the Court in order to save the statute from invalidity. * * * ”
This is a definite and decisive construction of the statute rendering the Administrative Procedure Act inapplicable to the Fraud Order in question because, first, no hearing is required under 39 U.S.C.A. §§ 259 and 732, and, second, these statutes are constitutionally valid without any hearing requirement having been read into them.
On this point, it was similarly concluded in Bersoff v. Donaldson, 84 U.S.App.D.C. 226, 174 F.2d 494, 495, viz.: “* * * In our opinion these provisions of the Act do not apply to mail fraud orders as Section 5, 5 U.S.C.A. § 1004, thereof confines the prescribed procedure to cases of adjudication ‘required by statute to be determined on the record after opportunity for an agency hearing.’ The fraud order statutes do not in terms require a hearing. Therefore, we think, they do not come within the scope of the procedural provisions of the Administrative Procedure Act. * * * ”
It is clear that the contention of appellant that the Administrative Procedure Act should have been applied and followed in the issuance of the Fraud Order involved is without merit.
As to the merits, appellant contends that there was nothing inherently fraudulent in his business of selling incense, concerning which he says there is an old and respectable superstition concerning good luck. He • further points out that in various places in his circulars and advertising he used such explanations as, “Remember we sell our incense only for what it actually is. We absolutely make no supernatural claims for our products,” and in the opening paragraph of the circular letter sent out by appellant he stated, “Note, I don’t claim any supernatural powers in luck.” Likewise some of appellant’s advertisements contained a promise that if the purchaser were not delighted and completely satisfied, the purchase price of the product would be refunded.
“Fast Luck Brand Incense” consisted of an aromatic oil and coloring in a sawdust base. The incense itself was no different than ordinary commercial incense. With each pound of Fast Luck Brand Incense appellant included as a “special gift” a package of “Number Tablets,” which tablets were composed of an aromatic oil in a charcoal base, containing numbers made of ink saturated with copper sulphate. These numbers made their appearance in the burning incense when the tablets were lighted. The incense, lucky numbers, and the container were sold for $5.
The senior trial examiner, after a hearing, made findings which were approved and adopted by the Solicitor, and later adopted by the Postmaster General. The record discloses that the findings are supported by substantial evidence. Appellant went much further in his advertisements and circulars than to offer his incense, as he contends, for what it was, that is, ordinary commercial incense. His sales efforts were predicated upon the use of his incense as a luck-changing medium. His advertisements were designed to prey upon the superstitious beliefs of ignorant people.
As an example of the kind of advertisement used by appellant in Grier’s Almanac for the States of North Carolina, South Carolina, Georgia, Florida, Alabama, Mississippi, Tennessee, Louisiana, Texas, and Arkansas, the following heading appeared in large black type: “Don’t Give Up! Luck May Change For You Into Power and Glory! ” Small print followed, reading: “Read very carefully — then decide! How you may find Good Fortune, Happiness, according to legend, same as I found it. I was real down — -so blue, confused, just couldn’t think what to do. Then I learned how Incense could soothe and calm — how it relax me — help me meditate what to do. It seemed like magic the way things got. I want you to know the amazing calming power of this Incense that helped me so much. * * * ”
Numerous testimonials were printed in some of the circulars. Appellant referred to them in his advertisements as “personal excerpts from users of Glory Bee Fast Luck Brand Incense (containing) their sincere, heartfelt emotions of thankfulness.” These testimonials purported to attribute to the use of appellant’s incense such results as better health, improved financial condi-' tions, “power” to meet family obligations, wonderful changes for the better in the family home, the obtaining of profitable employment, improved social power, peace in the home, and acquisition of new “pep.” The lucky number tablets also were credited with bringing luck, cheer and good fortune to the user. The incense was described in other advertisements as “amazing.” In addition to the foregoing statements, the findings contained the following: “Thus, this respondent (appellant here) by these advertising devices- vouches through his advertising literature for the validity of the ‘legend’ and endorses it as worthy of belief. He misleads his superstitious readers to believe that the ‘legend’ is reality, and offers for sale the instrumentalities by means of which he shows this has been and can be accomplished. * * * He has composed advertisements well calculated to deceive and defraud the ignorant, the credulous and the superstitious.” The Postmaster General concluded that such statements materially misrepresented the value of appellant’s incense, its efficacy, and the benefits to be derived from the use thereof, and that from evidence satisfactory to him that appellant was engaged in conducting a scheme or device for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises, in violation of Secs. 259 and 732, Title 39 U.S.C.A.
The finding that appellant engaged in conducting a scheme for obtaining money through the mails by means of false and fraudulent pretenses, representations and promises is a finding of fact, which by statute is committed to the Postmaster General and will not be reviewed by the courts when it is fairly arrived at and has substantial evidence to support it so that it cannot justly be said to be palpably wrong and arbitrary. Leach v. Carlile, 258 U.S. 138, 139, 42 S.Ct. 227, 66 L.Ed. 511. The buying public does not ordinarily carefully study or weigh each word in an advertisement and the ultimate impression upon the mind of the reader arises not only from what is said but also all of that which is reasonably implied. Aronberg v. Federal Trade Commission, 7 Cir., 132 F.2d 165, 167. The important criterion is the net impression which the advertisement is likely to make upon the purchasers to whom the advertisement is directed. Charles of the Ritz Distributors Corp. v. Federal Trade Commission, 2 Cir., 143 F.2d 676, 680. It has been held that even if an advertisement is so worded as not to make an express misrepresentation, nevertheless if it is artfully designed to mislead those responding to it, the mail fraud statutes are applicable. Durland v. United States, 161 U.S. 306, 313, 16 S.Ct. 508, 40 L.Ed. 709; McCarthy v. United States, 2 Cir., 187 F. 117.
What the Supreme Court said in Donaldson v. Read Magazine, supra, 333 U.S. at page 189, 68 S.Ct. at page 597, is applicable to the case at bar: “ * * * That exceptionally acute and sophisticated readers might have been able by penetrating analysis to have deciphered the true nature of the contest’s terms is not sufficient to bar findings of fraud by a fact-finding tribunal. Questions of fraud may be determined in the light of the effect advertisements would most probably produce on ordinary minds. Durland v. United States, 161 U.S. 306-313, 314, 16 S.Ct. 508-511, 512, 40 L.Ed. 709; Wiser v. Lawler, supra, 189 U.S. at page 264, 23 S.Ct. [624] at page 626, 47 L. Ed. 802; Oesting v. United States, 9 Cir., 234 F. 304, 307. People have a right to assume that fraudulent advertising traps will not be laid to ensnare them. ‘Laws are made to protect the trusting as well as the suspicious.’ Federal Trade Comm. v. Standard Education Society, 302 U.S. 112, 116, 58 S.Ct. 113, 115, 82 L.Ed. 141.”
The administrative determination of whether the representations made by appellant left readers with a false impression is to be accepted if there is a rational basis for such conclusion. Mississippi Valley Barge Line Co. v. United States, 292 U.S. 282, 286-287, 54 S.Ct. 692, 78 L.Ed. 1260; Rochester Telephone Corp. v. United States, 307 U.S. 125, 146, 59 S.Ct. 754, 83 L.Ed. 1147. As the findings of the Postmaster General are supported by substantial evidence and as we find nothing arbitrary or palpably wrong in his conclusions, the district court correctly denied the motion for a permanent injunction 'and dismissed the complaint. The judgment is
Affirmed.
. 39 U.S.C.A. § 259 provides in part: “The Postmaster General may, upon evidence satisfactory to him * * * that any person or company is conducting any * * * scheme or device for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, instruct postmasters at any post office at which registered letters or any other letters or mail matter arrive directed to any such person or company * * * to return all such mail matter to the postmaster at the office at which it was originally mailed, with the word ‘Fraudulent’ plainly written or stamped upon the outside thereof; and all such mail matter so returned to such postmasters shall be by them returned to the writers thereof, under such regulations as the Postmaster General may prescribe. ifc >¡í i\i »
39 U.S.C.A. § 732 provides in part: “The Postmaster General may, upon evidence satisfactory to him that * * * any person or company is conducting any * * * scheme for obtaining money or property of any kind through the mails by means of false or fraudulent pretenses, representations, or promises, forbid the payment by any postmaster to said person or company of any postal money orders drawn to his or its order * * * and may provide by regulation for the return to the remitters of the sums named in such money orders.”
Question: What is the total number of appellants in the case? Answer with a number.
Answer: |
songer_r_fed | 2 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of 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.
CENTRAL FORWARDING, INC. and Household Goods Carriers’ Bureau, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. EASTERN LABOR ADVISORY ASSOCIATION and Southern Tank Line Carriers, Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents. DRUG AND TOILET PREPARATION TRAFFIC CONFERENCE, INC. and the National Small Shipments Traffic Conference, Inc., Petitioners, v. INTERSTATE COMMERCE COMMISSION and United States of America, Respondents.
Nos. 81-4437, 81-4493 and 82-4019.
United States Court of Appeals, Fifth Circuit.
Feb. 28, 1983.
Opinion on Denial of Rehearing May 13, 1983.
John R. Sims, Jr., Dennis Dean Kirk, Washington, D.C., for intervenor Specialized Carriers.
Thomas M. Auchincloss, Jr., Leo C. Franey, Washington, D.C., for petitioners in No. 81 — 4437 and intervenor Steel Carriers’ Tariff Ass’n.
Leonard A. Jaskiewicz, Edward J. Kiley, Washington, D.C., for intervenor Carrier Conference-Irregular Route.
Robert E. Born, Atlanta, Ga., for intervenor National Ass’n of Specialized Carriers, Inc.
Kenneth P. Kolson, John J. Powers, III, Dept, of Justice, Kathleen V. Gunning, I.C.C., Washington, D.C., for respondents.
Keith G. O’Brien, Washington, D.C., for intervenor Intern. Broth, of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
Donelan, Cleary, Wood & Maser, P.C., Frederic L. Wood, Washington, D.C., for intervenor American Frozen Food Institute.
Robert J. Bray, Jr., James J. Wankmiller, John J. McAleese, Jr., Bala Cynwyd, Pa., for amici curiae Southern Tank Line Carriers and Eastern Labor Advisory Ass’n.
John F. Wickes, Jr., Indianapolis, Ind., for amicus curiae Ferree Furniture Exp., Inc.
David E. Driggers, Denver, Colo., for amicus curiae Transystems, Inc., et al.
James D. Porterfield, Pittsburgh, Pa., for amicus curiae Pittsburgh & New England Trucking Co.
Paul D. Angenend, Austin, Tex., for amicus curiae Acme Truck Line, Inc.
Jerry Prestridge, Austin, Tex., for amicus curiae Oil Field Haulers Ass’n, Inc.
Daniel J. Sweeney, Washington, D.C., for petitioners in No. 82-4019.
Before GARZA, REAVLEY and GAR-WOOD, Circuit Judges.
REAVLEY, Circuit Judge:
These consolidated appeals challenge an Interstate Commerce Commission regulation requiring carriers to reimburse owner-operators for a portion of their fuel costs. Having concluded that the Commission exceeded its statutory authority, we set aside the regulation, suspending the effectiveness of our decision for 60 days following the date of issuance of the mandate, and remand to the Commission in order that the parties may accordingly seek leasing agreements and adjustment of rates. Although our ultimate holding is a narrow one, constrained by particular circumstances, we reach it through a broad inquiry into the rulemaking authority of the Interstate Commerce Commission, and agency rule-making in general. We write with an awareness of the importance of the case to the parties in this and future disputes.
I. BACKGROUND
The regulation in question is Ex Parte No. 311 (Sub-No. 4), Modification of The Motor Carrier Fuel Surcharge Program, 46 Fed.Reg. 50070, 365 I.C.C. 311 (served October 8, 1981) (“the regulation”). Understanding its purpose and effects requires some knowledge of industry practices and the recent history of regulation in the motor carrier field.
A. The Parties
The private parties to this suit represent the three principal segments of the regulated motor carrier industry: carriers, owner-operators, and shippers.
Under existing federal law, most forms of interstate for-hire motor transportation require operating authority from the Interstate Commerce Commission (“ICC” or “Commission”). The Commission extends operating authority through licenses known as contract carrier permits or common carrier certificates of public convenience and necessity. Carriers, as that term is used here, are parties possessing such a license. Owner-operators are the “independent truckers” of song and legend. They are persons owning one or a few trucks who lack ICC operating authority. Since they cannot transport regulated commodities in interstate commerce in their own right, they rely on two sources of business: (1) they lease their services and equipment to a carrier in order to utilize the carrier’s operating authority, or (2) they make hauls exempt from ICC regulation by transporting agricultural products (49 U.S.C. § 10526), working for a private fleet (49 U.S.C. § 10524), transporting goods intrastate (49 U.S.C. § 10525), etc. Shippers, finally, are the customers of the industry — retailers, manufacturers and others — who have goods to be transported.
In order to haul regulated commodities an owner-operator leases his truck to a carrier, who then hires the owner-operator to drive the truck. These lease arrangements are common, as independent owner-operators account for approximately 40 percent of all intercity truck traffic in this country. H. R.Rep. No. 1812, 95th Cong., 2d Sess. 5 (1978). Typically, in exchange for extending his operating authority and providing a few other services such as advertising, the carrier takes 25 percent of the gross revenue from the haul, leaving 75 percent to the owner-operator, who bears all of the costs of carrying the freight, including fuel, repairs, tolls and the like. Id. at 5-6. The lease terms vary, but the 75-25 split is very common in industry practice. The ordinary duration of the lease is from three months to one year. D. Wyckoff & D. Maister, The Owner-Operator: Independent Trucker 85 (1975). While most owner-operators are independent contractors, some are classified as employees under the national labor laws and are represented by unions.
B. Genesis of the Regulation
The current regulation is the latest in a series of actions taken by the ICC related to fuel costs. The dizzying increase in fuel prices associated with the OPEC oil embargo of 1973 had a severe impact on the trucking industry, and was in part responsible for owner-operator shutdowns in 1973-74.
The Commission took a number of actions in response to the new pace of fuel-price inflation. In Ex Parte No. 311, Expedited Procedures for Recovery of Fuel Costs, 350 I.C.C. 563 (1975), it established an expedited procedure for regulated carriers to reflect rapidly rising fuel costs in their rates in the event of a future fuel crisis. The Commission entered Special Permission No. 76-350, allowing carriers to increase rates on 10 days’ notice instead of the usual 30 days’ notice.
In the meantime, congressional hearings were initiated at various locations around the country to learn more about owner-operators and their problems. Some of the hearings are published in Regulatory Problems of the Independent Owner-Operator in the Nation's Trucking Industry: Hearings Before the Subcomm. on Activities of Regulatory Agencies of the House Comm, on Small Business: Parts I, II, III, 95th Cong., 2d Sess. (1976-78). The Commission in this case relies on a passage from the House report summarizing the findings of these hearings:
From the monies actually received (75 percent or less of the shipping rate) the owner-operator must pay for his own licensing, operation and gas tax permits which vary widely from state to state. They must also pay for the full cost of regular maintenance plus the monthly payment on his tractor and trailer which runs, on the average, of 12 to 18y2 percent interest on a 4-year plan which often is the only credit term available to him. When one recalls that the owner-operator is unable to pass on these expenses to his customer, the gravity of this problem is apparent.
The owner-operator cannot increase his income since it is fixed first by the rate charged for shipping by the carrier and secondly by his 75/25 leasing agreement with the carrier. There is little incentive for the carrier to raise rates because of the competition between licensed carriers. This is especially true, it is remembered, since the carrier gets 25 percent off the top for granting the privilege to work to the independent owner-operator. This added income provides additional income to the carrier. A carrier can lessen the cost squeeze on his rates by giving to a leased operator the same load for 75 percent of the rate and forcing the leasor [sic] to assume all costs.
The owner-operator is caught in a continuing cost crunch. His costs — fuel, lubricants, tires, overnight accommodations, etc. — continue to rise while his income remains inflexible. He is trapped by the regulatory system. If he were able to carry the same load for the full rate, he would be able to compete successfully within the system.
H.R.Rep. No. 1812, 95th Cong., 2d Sess. 6-7 (1978).
The spring of 1979 saw another dramatic rise in fuel prices that cut heavily into owner-operator incomes, resulting in more shutdowns that summer. Since most owner-operators paid their own fuel costs, their expenses were rising rapidly, while their revenue was fixed by previous lease agreements and by rates that could only be changed if carriers sought rate increases. The Commission adopted temporary measures to cope with the problems facing carriers and owner-operators.
On June 1, 1979, Special Permission No. 2620 was issued, allowing carriers to file for fuel-related rate increases in surcharge form on ten days’ notice, but requiring the full amount of the surcharge to be passed through to owner-operators that actually paid for the fuel. This measure proved inadequate because many carriers chose not to file for the surcharge or did not file quickly enough to satisfy owner-operators.
On June 15, 1979, the Commission adopted Special Permission No. 79-2800, establishing an average fuel rate increase for the nation, and allowing carriers to file for this average increase in surcharge form on one day’s notice. The surcharge was based in part on a national average of the ratio of the owner-operator’s fuel expenses to total operating revenue, and became known as the “revenue-based” surcharge. It was in effect until the latest regulation replaced it. One key element of this procedure was that regardless of whether the carrier took the full surcharge, it was required to pass through the maximum allowed surcharge to owner-operators. By its own language Special Permission No. 79-2800 was a response to a situation of “extreme urgency” in which “fuel prices are increasing at an alarming rate.” It went on to note that “[bjecause of the extreme nature of the emergency, the Commission finds that it must order that all regulated carriers, whether or not they have taken an X-311 increase, must from this date forward compensate owner-operators fully for all additional fuel expenses incurred by these operators.”
Thereafter, on a weekly basis, the Commission continued to prescribe successively higher fuel surcharges, relating them to a weekly fuel price index using the January 1, 1979 diesel fuel price of 63.5 cents per gallon as a base.
The surcharge program, an emergency scheme enacted in a time of rapidly escalating fuel prices and labor strikes, ultimately created distortions in the rate structure and did not accurately reflect fuel costs. Recognizing that “[t]he surcharge program is intended to be temporary,” the Commission initiated Ex Parte No. 311 (Sub-No. 4), Review of the Motor Carrier Fuel Surcharge Program, in a notice of proposed rulemaking served on April 11, 1980. The Commission proposed four modifications in the program and requested comments. After reviewing comments and holding hearings, it proposed a fifth modification in a notice served on July 31, 1981.
After receiving several hundred comments and hearing oral argument on the five options, the Commission adopted the current regulation, which replaces the revenue-based surcharge with a plan requiring carriers to compensate owner-operators based on a cents-per-mile formula. The regulation froze the percentage of revenue surcharge and allowed carriers to fold the amount of the surcharge into their rate structure.
Unlike its predecessors, the current regulation cannot be described as an emergency measure. It was adopted some eighteen months after the initial notice of proposed rulemaking, and was not adopted in a time of national labor unrest. Fuel prices were relatively stable as well, for the July 31 notice indicated that “[sjurcharges have been employed only in exigent circumstances such as the fuel crisis which began in the spring of 1979. The circumstances which led to the adoption of the surcharge program no longer exist. Petroleum supplies are ample at present and the price of fuel is now relatively stable.”
Furthermore, the regulatory pressures contributing to the plight of the owner-operator had eased since the time they were recognized by Congress in the hearings that ended in 1978. The Motor Carrier Act of 1980 made it much easier for an owner-operator to become a carrier himself and avoid having to pay carriers for license privileges. Section 5 of the Act substantially lessens the burden on would-be applicants for certificates of public convenience and necessity under 49 U.S.C. § 10922. See H.Rep. No. 1069, 96th Cong., 2d Sess. 12-17, reprinted in 1980 U.S.Code Cong. & Ad. News 2283, 2294-99. The new standard has been applied very liberally in favor of applicants. “During the first year of implementing the Motor Carrier Act of 1980, some 27,000 opposed motor carrier operating rights cases were decided by the ICC. In not a single case did the Commission conclude that the protestant had satisfied its statutory burden of proving that the proposed operations were inconsistent with the public convenience and necessity.” Dempsey, Congressional Intent and Agency Discretion — Never the Twain Shall Meet: The Motor Carrier Act of 1980, 58 Chi.Kent L.Rev. 1, 40 (1981).
C. The Regulation
The regulation, served on October 8,1981, phased out the existing surcharge program and replaced it with a reimbursement plan requiring carriers to reimburse owner-operators on a mileage basis. The rate of reimbursement, initially set at 14 cents per mile, is designed to assure that owner-operators are compensated for all fuel costs above 63.5 cents a gallon incurred while on carrier business. As an option, carriers can avoid the mileage compensation system by providing owner-operators with fuel or credit cards, so that the carrier absorbs all actual costs for fuel above 63.5 cents per gallon. Carriers are provided a means of obtaining a rate increase to offset increased fuel expenses.
Language from the regulation itself best explains its effect. “In establishing current standards for the recovery of fuel increases, the Commission has, in essence, affected one distinct element of the owner-operator’s compensation.” The Commission has overridden privately negotiated payment arrangements between carriers and owner-operators. “The fuel reimbursement plan delineated in this decision in effect separates owner-operator compensation for fuel costs in excess of 63.5 cents a gallon from the lease agreement.” The mileage reimbursement must be paid regardless of the terms of the lease. Furthermore, although the regulation allows changes in the base rate on which the revenue split is made under the lease to prevent double compensation, it forbids change's in leases designed to counteract the effects of the reimbursement plan. “We admonish carriers not to adjust the revenue split in the lease agreement to deprive owner-operators of payments required pursuant to the Commission’s compensation method.” Because of a perceived lack of bargaining power, the Commission concluded “that owner-operators require a measure of protection in this area and that separate agreements will not accomplish this goal.”
The regulation contemplates an ongoing reimbursement plan. For the indefinite future the mandated mileage compensation will be adjusted up or down as fuel prices dictate. The Commission has placed no limits on its power to rethink or recalculate its fuel reimbursement formula in the future, and has thus empowered itself to control compensation in the industry as it wishes.
D. Summary of Factual Circumstances
We decide this case based on the particular circumstances before us. Two key conclusions emerge from the background discussion given above.
First, the stated purpose and actual effect of Ex Parte No. 311 (Sub-No. 4) is to regulate directly compensation paid by carriers to owner-operators. The Commission is not satisfied with leaving compensation in the trucking industry to the private or collective bargaining that reigns throughout most of the American economy, because it believes that owner-operators are victims of inadequate bargaining power and inflexible leases. The fact that the compensation formula is keyed to fuel costs is of little moment, for if this regulation is valid, we fail to see how any other compensation requirement would not also be valid.
Second, this regulation cannot be described as an emergency or stop-gap measure designed to respond to a national or industry-wide crisis. It was adopted after lengthy rulemaking proceedings. There were no fuel or regulatory emergencies facing owner-operators in October of 1981, nor can the agency’s action be attributed to the immediate threat of a strike or other labor unrest. The regulation is not a temporary measure, but instead purports to regulate compensation on a permanent basis.
The authority of the Commission and the validity of this regulation must be determined with these factual circumstances in mind.
E. Issues on Appeal
The appeals come to us under 28 U.S.C. §§ 2342(5) (circuit court review of ICC regulation) and 2112(a) (transfer from other circuits). The regulation is the product of informal rulemaking under section 4 of the Administrative Procedure Act, 5 U.S.C. § 553, and is subject to review under section 10 of the Act, 5 U.S.C. § 706(2)(A)-(D):
The reviewing court shall... hold unlawful and set aside agency action... found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law....
Not surprisingly, the twenty-seven original parties, intervenors and amici curiae have managed to find fault with and defend the regulation under each of these subsections. Those opposing the action taken by the ICC claim, for reasons too numerous to mention here, that the regulation is arbitrary and capricious, that it unconstitutionally impairs existing contracts, that it impermissibly intrudes on the jurisdiction of the National Labor Relations Board in conflict with Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), and that inadequate notice of the agency’s action was given. Without reaching these arguments, we find that under subsection (C) the regulation is beyond the statutory authority granted to the Commission by Congress.
II. COMMISSION AUTHORITY
No one can doubt that Congress could regulate compensation levels in the trucking industry under its sweeping power to regulate interstate commerce. Nor is there doubt that Congress could delegate that power to the Commission. The question before us is not whether Congress can delegate such authority, but whether it has chosen to do so — a matter of statutory construction by and large. In answering this ultimate question we find it helpful to ask a number of subsidiary questions, all of which shed light on the bounds of an agency’s authority: (1) how broadly has Congress granted rulemaking authority to the agency; (2) how closely related to specific delegations of power is the regulation in question; (3) how dramatically does the regulation affect the private parties at which it is aimed?
These three subsidiary questions are not etched in stone, and are not intended to serve as an exhaustive list of factors that courts are obliged to examine in all disputes concerning rulemaking authority. They do, however, offer some clues of congressional intent if fairly answered.
The first two questions are self-evident in their aim. Obviously, if an agency has been granted sweeping powers, and if the regulation at issue clearly falls within the rule-making prerogatives expressly granted by statute, the court should not hesitate to conclude that Congress has authorized the regulation. On the other hand, if Congress has granted only limited powers to the agency, and the regulation bears little kinship to the rulemaking authority expressed by statute, the validity of the regulation is suspect. These two questions are easier to ask than to answer, and we address them concurrently in the remaining parts of this opinion.
The third question is not so obvious in its aim and we address it here. An inquiry into how dramatically a regulation affects the parties at which it is directed can rarely be answered precisely, and the parties themselves will usually disagree on the regulation’s impact. The reviewing court can do little more than give a gestalt reaction to the question. Nevertheless, we are convinced that the more profoundly an agency’s actions affect private parties, the more likely it is that Congress would disapprove of the action absent a clear and specific authorization by statute.
By any standard Ex Parte No. 311 (Sub-No. 4), despite its unpretentious name, asserts an awesome power over the motor carrier industry. It cannot be described as a mere procedural or housekeeping rule, nor is it a measure aimed at simply promoting or policing fair dealings among private parties. Instead it removes from the control of these parties their private determination of.one aspect of their leasing arrangements, and in effect rewrites each private agreement, to the benefit of one party and the chagrin of the other. The regulation affects tens of thousands of private parties by requiring out-of-pocket reimbursements of hundreds of millions of dollars. By directly regulating private sector compensation, the Commission has taken upon itself a task that Congress does not frequently delegate.
The Government suggests that the Commission’s regulations governing fuel cost reimbursements have been promulgated in response to congressional concern about the “cost crunch” that owner-operators have experienced in recent years. As explained above, the current regulation was promulgated several years after this concern was stated, and the regulatory constraints and fuel-price inflation that prompted the concern had subsided. Regardless, we cannot accept any suggestion that the regulation is valid because it is aimed at an evil perceived by Congress, for here the argument cuts both ways. Nothing in the legislative history suggests that Congress thought the Commission had the power to act directly on owner-operator compensation. If it be asked why, then, Congress did not itself attack the problem by specific legislation, the response is that the fact that Congress recognized a problem but chose not to act directly suggests that it would as likely disapprove as approve of the Commission’s frontal attack on the problem.
In this instance Congress has expressed considerable concern about the plight of owner-operators, and has not hesitated to enact legislation in their favor. However, Congress has never specifically authorized the Commission to require fuel reimbursements to owner-operators or to otherwise directly regulate compensation paid to owner-operators. If the Commission has this authority, it does not exist by virtue of congressional hearings and reports alone. If such power exists it is to be found by examining enacted statutes, a task to which we now turn.
The petitioners would have us strike down any regulation of leasing practices between carriers and owner-operators that is not specifically authorized by statute. The respondents would have us uphold any agency action that has a rational basis, that does not contravene any express statutory mandate, and that does not impermissibly interfere with the jurisdiction of another agency. The truth, we think, lies somewhere in between.
A. General Rulemaking Authority
The Commission contends that it had authority to promulgate the regulation under the general rulemaking authority found in 49 U.S.C. § 10321(a), which provides:
The Interstate Commerce Commission shall carry out this subtitle. Enumeration of a power of the Commission in this subtitle does not exclude another power the Commission may have in carrying out this subtitle. The Commission may prescribe regulations in carrying out this subtitle.
Removed from its statutory and historical context, this provision is practically devoid of meaning, and offers little help in determining whether the Commission is authorized to regulate compensation paid in motor transportation leasing agreements.
As a preliminary approach to construing the scope of this provision, we note that it is the product of the Revised Interstate Commerce Act of 1978. The purpose of this Act was to rewrite the Interstate Commerce Act in modern prose without effecting any substantive changes in the law. The Act succeeds admirably at simplifying the stodgy language of the previous Interstate Commerce Act, but the previous statutes, perhaps because of their baroque prose, give a better feel for the scope of ICC authority than their terse replacement. We have examined these earlier statutes, reproduced in the margin for the avid reader, and find that they give no mention of ICC authority to regulate owner-operator compensation.
Our inquiry does not end simply by noting that the general rulemaking provision does not single out owner-operator leasing and compensation arrangements as subjects for ICC regulation. In the leading case of American Trucking Associations v. United States, 344 U.S. 298, 73 S.Ct. 307, 97 L.Ed. 337 (1953) (“ATA”), the Supreme Court held that the ICC could regulate certain leasing practices between carriers and owner-operators despite the lack of any express delegation of power under the Interstate Commerce Act (“Act”). The respondents rely on language from the case where the Court found that “[o]ur function, however, does not stop with a section-by-section search for the phrase ‘regulation of leasing practices’ among the literal words of the statutory provisions.” 344 U.S. at 309, 73 S.Ct. at 314, 97 L.Ed. at 355. Despite this language, we do not read the case as granting carte blanche to the Commission over leasing practices.
The Commission rules reviewed in ATA required that contracts between owner-operators and carriers be reduced to writing, vest control of the equipment in the carrier, exceed thirty days in length, and fix the compensation of the owner-operator by a manner other than a percentage of the gross revenue. The rules also required inspection of the non-owned equipment by the carrier, testing of the driver’s familiarity with Motor Carrier Safety Regulations, and records on the use of equipment. The effect of the rules was to abolish a practice known as “trip leasing.”
The rules were justified as necessary to preserve the express statutory mandates of the Act. Trip leasing was found to encourage violation of statutory safety requirements and limitations on certified authority, and the statutory mandate to provide nondiscriminatory service. The Court also found that the use of leased equipment tended to obstruct normal rate regulation. It found that numerous statutory provisions of the Act were in jeopardy, including sections 216(b) and 218(a) (rate regulation), 204(a)(2) (safety requirements), 204(a)(1) (continuous service), 208(a) and 209(b) (observance of authorized routes and termini), and 216(d), 217(b), 218(a) and 222(c) (prohibition of rebates), and concluded that “practically the entire regulatory scheme is affected by trip leasing.” 344 U.S. at 310-12, 73 S.Ct. at 315, 97 L.Ed. at 355-57.
Under such circumstances, the Commission was held to have the authority to enforce the provisions of the Act under its general rulemaking authority found in section 204(a)(6). However, we read ATA as interpreting the general rulemaking provision to be a limited grant of authority to the Commission to carry out and enforce the express mandates of the Act. The Court did not find the provision to be a grant of power to regulate all aspects of the motor carrier industry, but instead found that “as exercised, the power under § 204(a)(6) is geared to and bounded by the limits of the regulatory system of the Act which it supplements.” 344 U.S. at 313, 73 S.Ct. at 316, 97 L.Ed. at 357.
Other Supreme Court precedents are consistent with this view. In Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973), the Court upheld the authority of the Federal Reserve Board to promulgate the “Four Installment Rule” found in Regulation Z. Such authority was found to exist under the general rulemaking provision of the Truth in Lending Act, 15 U.S.C. § 1604(a) which provides:
The Board shall prescribe regulations to carry out the purposes of this subchapter. These regulations may contain... provisions... as in the judgment of the Board are necessary or proper to effectuate the purposes of this subchapter, to prevent circumvention or evasion thereof, or to facilitate compliance therewith.
In broad language the Court states:
Where the empowering provision of a statute states simply that the agency may “make... such rules and regulations as may be necessary to carry out the provisions of this Act,” we have held that the validity of a regulation promulgated thereunder will be sustained so long as it is “reasonably related to the purposes of the enabling legislation.”
411 U.S. at 369, 93 S.Ct. at 1660-61, 36 L.Ed.2d at 329-30. The opinion is clear, however, in recognizing that the regulation was aimed at carrying out specific statutory mandates requiring merchants to indicate the amount and rate of finance charges, 15 U.S.C. § 1638, and aimed at avoiding the uninformed use of credit by consumers, 15 U.S.C. § 1601. As in ATA, the Court found the regulation to be designed to enforce these express mandates:
Congress was clearly aware that merchants could evade the reporting requirements of the Act by concealing credit charges. In delegating rulemaking authority to the Board, Congress emphasized the Board’s authority to prevent such evasion. To hold that Congress did not intend the Board to take action against this type of manipulation would require us to believe that, despite this emphasis, Congress intended the obligations established by the Act to be open to evasion by subterfuges of which it was fully aware.
411 U.S. at 371, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
Similarly, the Court in Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921 (1945) found that the Administrator of the Wage and Hour Division of the Department of Labor was empowered under the Fair Labor Standards Act of 1938 to prohibit companies from allowing or requiring their employees to do industrial homework. Speaking of the Gemsco case, the Mourning Court said:
The Act required the Administrator to approve orders which were designed to raise the minimum wage to 40 cents an hour. While the Act did not specifically mention industrial homework, § 8(f) stated that the Administrator’s orders
“shall contain such terms and conditions as the Administrator finds necessary to carry out the purposes of such orders, to prevent the circumvention or evasion thereof, and to safeguard the minimum wage rates established therein.”
[52 Stat. 1065 (1938)]. After hearings, the Administrator determined that homework furnished “a ready means” of evading his orders, and prohibited certain companies subject thereto from employing this means of production. The Court concluded that the Administrator had not exceeded his authority under the Act, noting that a more restrictive interpretation of the enabling provision would have rendered the Act inoperable.
411 U.S. at 370, 93 S.Ct. at 1661, 36 L.Ed.2d at 330.
None of these cases suggests that general rulemaking authority empowers an agency — established to enforce and carry out a congressional act — to promulgate regulations which run far afield from the specific substantive provisions of the act. Our reading of ATA and related cases is that a general rulemaking provision should be read as a kind of necessary and proper clause. It grants considerable powers to enforce the substantive mandates of federal law governing interstate motor transportation, but is tied to and limited by those specific substantive provisions. It does not open whole new horizons on the regulatory landscape. Congress has not delegated wholesale control of all affairs of motor carriers to the Commission, and it would require more than the language of 49 U.S.C. § 10321(a) to warrant a construction of the Act to that effect.
Statutory pronouncements subsequent to ATA strongly enforce a state of the law in accord with our reading of ATA. The Motor Carrier Act of 1980 enacts numerous and important changes in the law regulating interstate motor transportation, and represents a shift in attitude on the role of government, and particularly the ICC, in regulating that industry. Section 2 of the Act, 49 U.S.C. § 10101 note, 94 Stat. 793 (1980) gives its purpose: “This Act is part of the continuing effort by Congress to reduce unnecessary regulation by the Federal Government.” Section 3(a) of the Act, id., gives the congressional findings prompting the legislation:
The Congress hereby finds that a safe, sound, competitive, and fuel efficient motor carrier system is vital to the maintenance of a strong national economy and a strong national defense; that the statutes governing Federal regulation of the motor carrier industry are outdated and must be revised to reflect the transportation needs and realities of the 1980’s; that historically the existing regulatory structure has tended in certain circumstances to inhibit market entry, carrier growth, maximum utilization of equipment and energy resources, and opportunities for minorities and others to enter the trucking industry; that protective regulation has resulted in some operating inefficiencies and some anticompetitive pricing; that in order to reduce the uncertainty felt by the Nation’s transportation industry, the Interstate Commerce Commission should be given explicit direction for regulation of the motor carrier industry and well-defined parameters within which it may act pursuant to congressional policy; that the Interstate Commerce Commission should not attempt to go beyond the powers vested in it by the Interstate Commerce Act and other legislation enacted by Congress; and that legislative and resulting changes should be implemented with the least amount of disruption to the transportation system consistent with the scope of the reforms enacted.
(Emphasis added).
The legislative history of the 1980 Act explains the section thus:
Section 3 stresses the importance to the national economy and national defense of a safe, sound, competitive, and fuel-efficient motor carrier system. It also states that, in order to achieve such a system, Congress finds it necessary to revise the statutes governing Federal regulation of the motor carrier industry. The existing regulatory structure has tended in certain circumstances to inhibit innovation and growth and has failed, in some cases, to sufficiently encourage operating efficiencies and competition.
In revising the statute, Congress also intends to give the Interstate Commerce Commission explicit direction for the regulation of the motor carrier industry and to ease that industry’s uncertainty about the future of regulation by the Commission. The Commission is admonished to stay within the powers specifically vested in it by the revised law.
In addition, this section states that Congress intends that the changes in the statutes and any resulting changes be implemented with the least amount of disruption to the transportation system as possible. •
H.R.Rep. No. 1069, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2292-93 (emphasis added).
ATA is undeniably still good law. ICC v. Brannon Systems, Inc., 686 F.2d 295, 296 (5th Cir.1982). It must, of course, be read in light of subsequent statutory developments.
We conclude that the general rule-making provision imparts power to the ICC only to enforce and carry out the specific substantive mandates enacted by Congress. Our task therefore turns to deciding whether the regulation falls within the ambit of any statutory mandate governing leasing arrangements or compensation that the Commission is authorized to enforce.
B. Regulation of Compensation
The current statutory scheme regulating interstate transportation is hard to sum up in a few sentences, for it represents nearly a century of legislation that has at different times favored railroads, motor carriers, owner-operators and the public.
Unquestionably Congress has granted enormous powers to the Commission to regulate the interstate transportation industry. Most notably, the Commission has been granted authority to regulate prices and market entry, matters normally left to market forces and subject at most to policing under the antitrust laws. Power over pricing exists by virtue of the Commission’s authority to regulate rates charged by carriers. See generally 49 U.S.C. §§ 10701-10786. Power over entry exists under the Commission’s authority to grant certificates of public convenience and necessity and other licenses. See generally 49 U.S.C. §§ 10901-10934. There are, however, no general provisions authorizing the ICC to regulate labor compensation levels, another extremely important economic function.
The Commission maintains that it has authority to regulate compensation under its authority to promote continuous and adequate transportation found in 49 U.S.C. § 11101(b), which provides:
The Commission may prescribe requirements for continuous and adequate transportation and service provided by motor common carriers and freight forwarders subject to the jurisdiction of the Commission under subchapters II and IV of chapter 105 of this title and for transportation of baggage and express by such motor common carriers of passengers.
We think that this provision should not be read to authorize ICC regulation of labor compensation.
We note at the outset that this provision was enacted by the Revised Interstate Commerce Act of 1978. As explained above, this act rewrote the Interstate Commerce Act without substantive change. The statutory source of section 11101(b) is section 204(a)(1) of the Motor Carrier Act of 1935 (part II of the Interstate Commerce Act), 49 U.S.C. § 304(a)(1) (repealed 1978), which provided that it shall be a duty of the
Commission:
To regulate common carriers by motor vehicle as provided in this chapter, and to that end the Commission may establish reasonable requirements with respect to continuous and adequate service, transportation of baggage and express, uniform systems of accounts, records, and reports, preservation of records, qualifications and maximum hours of service of employees, and safety of operation and equipment.
This section was repealed by the Revised Interstate Commerce Act of 1978, except for the clause “qualifications and maximum hours of service of employees, and safety of operation and equipment,” which is scheduled for future codification in subtitle II of title 49. H.R.Rep. No. 1395, 95th Cong., 2d Sess. 220, reprinted in 1978 U.S.Code Cong. & Ad.News 3009, 3229.
The specific language at the end of section 204(a)(1), limiting regulation of employees to setting “qualifications and maximum hours of service” cannot be ignored. Specific words that follow a general term restrict the apjplication of the general term to things that are similar to those enumerated. General Electric Co. v. Occupational Safety and Health Review Commission, 583 F.2d 61, 65 (2d Cir.1978). This rule of construction suggests that the Commission’s power to promote continuous and adequate service does not extend to setting labor compensation levels, but is restricted to setting qualifications for employment and maximum hours.
The courts have consistently read section 204 as a statute authorizing the ICC to set maximum hours of truckers in the interest of safety. Southland Gasoline Co. v. Bayley, 319 U.S. 44, 48, 63 S.Ct. 917, 919, 87 L.Ed. 1244, 1249 (1943); Starrett v. Bruce, 391 F.2d 320, 323 (10th Cir.), cert. denied, 393 U.S. 971, 89 S.Ct. 404, 21 L.Ed.2d 384 (1968) (“Section 204 of the Motor Carrier Act is limited in its effect to those employees whose activities affect the safety of operation of motor vehicles engaged in interstate commerce.”); Commercial Standard Insurance Co. v. Robertson, 159 F.2d 405, 409-10 (6th Cir.1947). They have not read it to confer power to the Commission to regulate compensation.
The legislative history of the 1935 Act gives a clear impression that section 204 was aimed at promoting safety, and authorized regulation of working hours to that end. See 79 Cong.Rec. 5650-52 (1935). At one point, the floor debate centered on the scope of section 204, and Senator Burton Wheeler, the sponsor of the bill, insisted that it was intended to regulate hours but not wages:
MR. WHEELER. But on page 10, in section 204, the Commission is given the power to establish reasonable requirements with respect to the qualifications and maximum hours of service of employees, and the safety of operation and equipment.
MR. COUZENS. But I point out what I said before, when I think perhaps the Senator was out of the Chamber for a moment, that further on in the bill there is a provision for.removing these activities from the code authorities [of the National Industrial Recovery Act], and, in effect, this will make employees of an industry of this kind worse off than any other class of employees, because they now have a minimum wage under the codes, and there is no minimum wage provided in the bill.
MR. WHEELER. Mr. President, I do not agree with the Senator. As I read the bill, insofar as the code authorities conflict with the provisions of the bill, then the provisions of the bill shall prevail; but the bill certainly would not now repeal the hours of service provided in the code authority.
MR. COUZENS. I am not talking about the hours of service.
MR. WHEELER. It has nothing to do with the wages. As a matter of fact, when we pass a railway labor bill, or a bill regulating interstate commerce, we do not and we cannot fix by law, it seems to me, the rates of wages to be paid to employees. We cannot do it with reference to railroad labor, we cannot do it with reference to truck and bus labor, we cannot do it with reference to any other class of labor. All we can do is to say to them that they can fix the maximum hours. We could specify that it was thought to be wise to do that instead of giving the Commission the power to fix the maximum hours, to specify that the limit of hours should be 12, or 10, or 16, or whatever we wanted to make it. But that is as far as we could go, it seems to me, in legislation of this kind. We cannot fix the rate of wages in a bill such as this.
That is the matter which must be handled by contractual arrangement between the truck operators and their employees. We have given the power to the Commission to regulate the hours of service.
79 Cong.Rec. 5660-61 (1935).
It must be remembered that the 1935 Act was passed during the substantive due process era, when the Supreme Court was striking down New Deal legislation, and Congress had doubts about its powers to enact economic legislation. It was not until two years later that the Supreme Court upheld state minimum wage legislation. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937) (overruling Adkins v. Children’s Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785 (1923)). The following year Congress enacted federal minimum wage legislation in the Fair Labor Standards Act of 1938. The congressional history of that act corroborates our conclusion that the Motor Carrier Act of 1935 did not authorize ICC regulation of labor compensation.
Furthermore, there is evidence that not only was the 1935 Act not intended to regulate compensation, but that it did not cover independent owner-operators at all, even as to hours. A letter from Mr. Eastman, Coordinator of the ICC at the time, stated:
It should be noted, also, that the proposed amendment [regulating maximum hours] applies only to “employees” and would not reach the owner-drivers. Yet the latter probably operate the larger number of the trucks in service and it is with respect to owner-drivers that the worst and most numerous instances of long hours have been reported. From the standpoint of public safety, therefore, the amendment fails to attack the worst feature of the present situation.
79 Cong.Rec. 12229 (1935). As passed, section 204 applied only to employees, and therefore would not in Mr. Eastman’s view cover most owner-operators, who are independent contractors rather than employees. It was not until some two decades later that legislation was passed directly regulating owner-operator leasing arrangements, as explained in the next section of this opinion. The 1935 Act had the endorsement of the ICC and was in fact introduced by Senator Wheeler at its request, and more particularly at the request of Mr. Eastman. 79 Cong.Rec. 5650 (1935). An agency’s contemporaneous interpretation of its own statute is entitled to great weight, especially when the agency played a role in setting the statutory machinery in motion. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S.Ct. 790, 797, 63 L.Ed.2d 22, 31 (1980); Mid-Louisiana Gas Co. v. FERC, 664 F.2d 530, 534 (5th Cir.1981).
The wording of the statute, the case law and the legislative history all point to the conclusion that section 204(a)(1) of the Motor Carrier Act of 1935, recodified at 49 U.S.C. § 11101(b), does not grant the ICC authority to regulate compensation paid by carriers to owner-operators.
C. Regulation of Leasing Practices
In 1956 Congress amended the Interstate Commerce Act with a statute concerning carrier leasing practices. The law granted authority to the ICC to require certain conditions in leasing arrangements, including requirements that carriers put the lease in writing, carry the writing in each leased vehicle, inspect the vehicle and carry insurance on it. 49 U.S.C. § 11107(a). The amendment exempted from leasing regulation vehicles exempt under other provisions of the Act, principally those hauling agricultural commodities. 49 U.S.C. § 11101(c). In 1980, Congress directed the Commission to require that all arrangements between carriers and owner-operators specify who is responsible for the loading and unloading of the truck. 49 U.S.C. § 11107(b).
The petitioners argue that the ICC can do no more than regulate lease arrangements as specified in section 11107. The respondents argue that in prohibiting regulation of “the amount of compensation payable” under leases involving exempt commodities in section 11101(e), Congress has implicitly authorized regulation of compensation paid by regulated carriers. We cannot accept either position.
Section 11107 does not operate as the exclusive source of ICC authority to regulate leasing practices. Global Van Lines, Inc. v. ICC, 627 F.2d 546, 550-51 (D.C.Cir.1980), cert. denied, 449 U.S. 1079, 101 S.Ct. 860, 66 L.Ed.2d 802 (1981). Such a reading of the statute would be inconsistent with ATA, which held that authority to regulate leasing practices exists under the general rulemaking provision as well. The 1956 amendment was written with the ATA case in mind. H.R.Rep. No. 2425, 84th Cong., 2d Sess., reprinted in 1956 U.S.Code Cong. & Ad.News 4304, 4306, 4313 (“House Report”). There was no attempt to undermine the ATA decision, and indeed the statute codifies some of the rules upheld in the case, because “[wjhile it is true that the courts have held that some of this authority already rests with the Commission, still it is believed advisable to make them law by enactment rather than by court decision.” S.Rep. No. 1271, 84th Cong., 1st Sess. 6 (1955) (“Senate Report”).
The 1980 amendment adding section 11107(b) was aimed at certain extortionate “lumping” practices and is one of a number of statutory provisions designed to prevent those practices. See 49 U.S.C. §§ 11109, 11702(a)(2), 11902a; H.R.Rep. No. 1069, 96th Cong., 2d Sess. 30-31, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2312-13. We read section 11107(b) as one small part of a statutory scheme aimed at a very specific problem, and find it inconceivable that this narrow provision excludes other regulation of leasing practices.
However, we find it equally inconceivable that section 11101(c) impliedly grants the ICC authority to set compensation levels for regulated carriers by prohibiting regulation of otherwise exempt haulers of agricultural commodities. The intended purpose of the provision was to appease agricultural interests by preserving or adding exemptions from ICC regulation. Agricultural Transportation Association of Texas v. King, 349 F.2d 873, 881 (5th Cir.1965); House Report at 4305, 4307-10; Senate Report at 2-3. There was concern that a proposed regulation by the Commission was “too drastic,” and partly in response to this concern, the effect of the statute was to restrict ICC authority. Senate Report at 5. Certainly the exemptions from regulation set out in section 11101(c) were never intended to serve as a source of rulemaking authority by negative implication.
Finally, the respondents direct us to the following excerpt in the legislative history of the 1956 amendment:
OBJECTIONS TO S. 898
The primary objection made to the bill in its original form was that it would take from the Interstate Commerce Commission the power to regulate trip leasing by denying the right to regulate the duration of the lease, or the amount of compensation to be paid under its terms. Such an amendment, it is said, would severely handicap the Commission in its attempt to control the so-called gypsy operator, the real evil in trip leasing.
CONCLUSION
The committee believes that the solution to the problem is to enact into law that part of the Interstate Commerce Commission’s regulation, as modified in the amended bill, which deals with trip leasing by exempt carriers. By so doing the Congress will allay the fears of exempt carriers, protect their legitimate operations while at the same time leave the Commission free to regulate the carriage of goods on the public highways, a duty imposed upon it by law.
Senate Report at 5 (emphasis added). The Government places importance on this passage. We do not. The fact that some unnamed protestors, who may or may not have been members of Congress, thought that an earlier version of the amendment would strip the Commission of power to regulate compensation does not mean that such power ever existed.
In sum, the legislation specifically dealing with leasing practices neither grants nor denies the Commission power to regulate compensation paid under lease arrangements. Such power, if it exists, must be found elsewhere.
D. The National Transportation Policy
In addition to its general rulemaking authority and section 11101(b) and (c), the Commission bases its authority to promulgate the regulation on the National Transportation Policy, now codified at 49 U.S.C. § 10101. This provision sets out the general policies of the federal government regarding regulation of interstate transportation. The Commission asserts that the mileage-based reimbursement plan falls within its authority “to promote safe, adequate, economical, and efficient transportation,” 49 U.S.C. § 10101(a)(2), and “to encourage fair wages and working conditions in the transportation industry,” 49 U.S.C. § 10101(a)(6). Section 4 of the Motor Carrier Act of 1980 also makes mention of labor compensation. It amends the National Transportation Policy by adding 49 U.S.C. § 10101(a)(7), which states that it is the policy of the federal government “with respect to transportation of property by motor carrier, to promote competitive and efficient transportation services in order to... (D) enable efficient and well-managed carriers to earn adequate profits, attract capital, and maintain fair wages and working conditions.... ”
We cannot agree with the Government’s contention that section 10101 is a source of ICC rulemaking authority. Based on the wording of the statute, its legislative history, and prior judicial constructions, we conclude that the National Transportation Policy operates to constrain rather than grant rulemaking authority.
The statute does not purport to grant any powers to the Commission, and indeed makes no mention of the agency. Instead, the last sentence reads, “This subtitle shall be administered and enforced to carry out the policy of this section,” suggesting that the Commission is constrained to act in accordance with the mandates provided in the statute.
The legislative history of the Motor Carrier Act of 1980, which outlines the National Transportation Policy specifically in regards to the motor carrier industry, explains:
The National Transportation Policy sets the tone for the regulatory structure and is the basis for determining the meaning of statutory provisions. In addition, several provisions of the Act require the Commission to specifically consider the revised National Transportation Policy in carrying out its responsibilities under those sections. [Nee, e.g., 49 U.S.C. § 10922(b)(2)(A) (Commission must make findings on National Transportation Policy when issuing certificates of public convenience and necessity) ].
Section 4 is intended to provide the Commission, the industry, and the public with specific guidelines regarding the Commission’s administrative actions. It is clearly the Committee’s intent that the Commission must recognize the importance of competition and efficiency in motor carrier operations as the most desirable means for achieving national transportation goals and objectives.
H.R.Rep. No. 1069, 96th Cong., 2d Sess. 11-12, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2293-94. Again, this language indicates that the Commission must act in accordance with the National Transportation Policy, but does not indicate that it is a source of rulemaking power.
The ATA case implicitly adopts this view. It rejects an argument that the Commission’s rules were invalid because they violated the National Transportation Policy, but never intimates that the Policy, then codified at 49 U.S.C. § 1 prec. note, was a source of Commission authority. 344 U.S. at 313-14, 73 S.Ct. at 316, 97 L.Ed. at 357. See also Schaffer Transportation Co. v. United States, 355 U.S. 83, 87-88, 78 S.Ct. 173, 176, 2 L.Ed.2d 117, 121 (1957) (“The National Transportation Policy, formulated by Congress, specifies in its terms that it is to govern the Commission in the administration and enforcement of all provisions of the Act, and this Court has made it clear that this policy is the yardstick by which the correctness of the Commission’s actions will be measured.”); Packer Transportation Co. v. United States, 596 F.2d 891, 893 (9th Cir.1979) (“The guidelines to be used in determining whether the Commission has acted in accordance with the discretion delegated to it is the National Transportation Policy.”). Other cases, cited by the Government, have looked to the National Transportation Policy in determining the validity of agency action, but do not in our view stand for the proposition that it is an independent source of ICC rulemaking power.
There are further reasons for not reading the National Transportation Policy as an unfettered source of general rulemaking authority. Such a reading would make superfluous much of the rest of the Revised Interstate Commerce Act, with its detailed guidelines and delegations of authority, since the Commission could always claim that it was acting “to promote safe, adequate, economical, and efficient transportation” under section 10101(a)(2). Such a reading would also make meaningless section 3 of the Motor Carrier Act of 1980, 49 U.S.C. § 10101 note, 94 Stat. 793 (1980), admonishing the Commission to stay within the “well-defined parameters... vested in it by the Interstate Commerce Act and other legislation enacted by Congress.... ” Finally,, construing the National Transportation Policy, which paraphrased says little more than “go forth and do good,” as a congressional grant of rulemaking authority might well amount to an unconstitutional delegation of legislative authority.
III. CONCLUSION
Our investigation of ICC rulemaking authority leads us to these conclusions: there can be no doubt that Congress has granted some truly sweeping powers to the ICC, powers that have transformed the transportation industry and removed from it the normal pricing and entry forces that run most of our economy; but Congress has not written a blank check to the agency, for it has admonished the Commission to stay within its specifically vested powers. In promulgating Ex Parte No. 311 (Sub-No. 4), the Commission asserted the power to regulate labor compensation in the interstate motor carrier industry, a power that profoundly affects all segments of the industry, and bears little kinship to the specifically delegated powers granted by the currently effective Revised Interstate Commerce Act of 1978 and Motor Carrier Act of 1980. We therefore hold that the Commission has exceeded its statutory authority.
Professor Davis is undoubtedly correct when he states: “The law allowing delegation of rulemaking power to administrative agencies is clear law, sound law, and necessary law. It is sure to continue, for the kind of government we have developed could not operate without it.” 1 K. Davis, Administrative Law Treatise § 3:1 at 150 (1978). Federal agencies are nonetheless creatures of legislative empowerment, limited in authority by legislative enactment.
The orders promulgating Ex Parte No. 311 (Sub-No. 4) are vacated as of 60 days following the date of issuance of our mandate or until such earlier time as the Commission may choose to act. We express no opinion as to the validity of any other regulation, and note that different circumstances may have required a different result.
The judgment intends no retroactive effect. The regulation allowed carriers to fold into their rates charged to shippers the surcharge that existed under the previous surcharge program, and this judgment does not require the fold-ins that took place during a transition period that has now expired to be undone. While the previous surcharge program is not before us, the Commission probably has the power to allow a surcharge for increased fuel costs, as well as the power to allow the surcharge to be folded into the rate structure, under its authority to regulate rates. However, should the surcharge program be reinstituted with a requirement that the amount of the surcharge be passed on by carriers to owner-operators, problems regarding ICC authority to regulate compensation similar to those discussed in this opinion would again surface.
In addition to allowing surcharges to be folded into the rate structure, the regulation allows for future rate increases to reflect increased fuel-related carrier costs. As a result, current rates may now be affected significantly by the regulation. In particular, rates charged for less-than-truckload (“LTL”) shipments may be affected, since the regulation makes no distinction between truckload (“TL”) and LTL shipments, as did the previous surcharge program, in the method it devises for allowing carrier recovery of increased fuel costs.
We can only guess how rates have been affected, and certainly cannot sit as a rate-making body. We leave ratemaking and adjustments to the Commission, and to any disgruntled shippers who may wish to protest existing rates at the agency level.
We remand to the Commission for its consideration of presently effective rates, and any question raised by the effect of our holding here. Our judgment does not affect these present rates; it only denies to the Commission the authority to fix the compensation of owner-operators as it has done by regulation Ex Parte No. 311 (Sub-No. 4).
VACATED ACCORDINGLY and REMANDED.
. The recently enacted Surface Transportation Assistance Act, Pub.L. 97-424, increases the national tax on gasoline and diesel fuel by five cents a gallon. Since the prices of these fuels are likely to rise as a result, this case may now have an importance beyond that contemplated by the parties when they briefed and argued the case. See Wall St.J., Dec. 24, 1982 at 2, col. 1.
. Clarifications and corrections of the October 8 decision are published at 46 Fed.Reg. 54745-47 (decided October 29, 1981). On November 5, 1981, this court stayed the Commission’s decision pending further order. Division 2 of the Commission denied petitions for stay and administrative review on November 6, 1981, and on November 13, the full Commission adopted this decision. On January 18 and 22, 1982, this court denied further motions for stay pending review, and on January 27, 1982, the Commission adopted a revised compliance schedule for Ex Parte 311 (Sub-No. 4), setting the decision’s effective date at February 12, 1982. A three-month transition period from the fuel surcharge to the new mileage-based reimbursement program adopted in the regulation was ordered completed by April 13, 1982.
. As explained in the regulation, the 14 cents a mile figure was calculated by dividing the difference in the price of diesel fuel on September 28, 1981 (130.2 cents) and the price on January 1, 1979 (63.5 cents) by a presumed miles-per-gallon figure of 5, then multiplying by a mileage guide “circuitry factor” of 1.06 and rounding off to the nearest half cent.
On March 26, 1982, the Commission issued notice that fuel prices had declined. It ordered initial compensation set at 13 cents a mile effective April 13, 1982, the date coinciding with the termination of the fuel surcharge program. The mileage rate subsequently has been allowed to change in accordance with the method set out in the regulation.
. The parties are allowed to modify their leases to provide that rate increases granted carriers because of increased fuel costs attributable to the fuel reimbursement plan can be retained fully by the carrier, rather than figuring in the “rate base” on which the gross revenue split between the carrier and owner-operator is made.
. While an agency’s interpretation of the statute it is charged with administering is entitled to deference, the courts are the final authorities on issues of statutory construction. Fed. Election Comm’n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 31-32, 102 S.Ct. 38, 42, 70 L.Ed.2d 23, 29-30 (1981). In discussing standards of review in agency appeals, we recently explained that “[w]hile administrative agencies are expert in technical problems within their jurisdiction, they enjoy no special skill in statutory interpretation.... [A] court reviewing an agency’s interpretation of its governing statute is not subject to the same constraints that apply when it reviews the procedures the agency adopts to fulfill its mandate.” Western Coal Traffic League v. United States, 694 F.2d 378, 383-84 (5th Cir.1982).
. In complying with the Regulatory Flexibility Act, the Commission issued a release under Ex Parte No. 311 (Sub-No. 4). While finding it difficult to estimate how many owner-operators would be affected by the regulation (because some haul exempt commodities and because of the high turnover among owner-operators) the release conservatively estimates the number of owner-operators at 120,000, and estimates the number of carriers subject to the rule at 19,000.
. While agency-mandated wage controls are not unknown, they can hardly be described as routine. Under current law, Congress sets the minimum wage itself. 29 U.S.C. § 206. Even the Davis-Bacon Act> allowing the Secretary of Labor to determine wages to be paid to laborers and mechanics working for contractors doing business with the federal government, requires that the Secretary set the wages equal to those prevailing for corresponding classes of workers in the geographic area in which the work is to be performed. 40 U.S.C. § 276a. Thus, in theory at least, the wage rates are actually set by the private sector.
. See part IB of this opinion supra. At any rate, the report of the Subcommittee on Special Small Business Problems on which the Government relies, contains not the slightest hint that Congress contemplated for even a moment direct regulation of owner-operator compensation. The report summarizes the findings of the Subcommittee based on several years of hearings, endorses a bill relating to unloading rackets at warehouses (H.R. 14156, 95th Cong., 2d Sess. (1978)), and makes the following recommendations:
On the basis of the testimony, evidence, and findings the subcommittee recommends:
A. That the Interstate Commerce Commission:
1. Continue the efforts of the Small Business Assistance Office on behalf of small business.
2. Maintain a liaison with the chief counsel for advocacy at the Small Business Administration concerning small business issues of interest to both.
3. Cooperate with the General Accounting Office on its study of the private fleet issue.
4. Continue vigorous enforcement procedures especially in the area of skimming and use its suspension powers if necessary.
B. That the Secretary of Transportation, the Chairman of the Interstate Commerce Commission, and the Administrator of the Small Business Administration coordinate their efforts and proceed with the joint educational project for owner-operators.
C. That the General Accounting Office do a study of the private fleet issue focusing on:
1. The single source leasing rule of the ICC (49-CFR-1057.6);
2. Exceptions to said rule;
3. All case law on the subject; and
4. Any possible administrative or legislative remedy for the issue which would allow owner-operators to deal with private fleets yet maintain their independent status.
5. Meeting with officials of various private fleets, both large and small, to discuss the issue.
The GAO, in this regard, should work with the appropriate officials at the Interstate Commerce Commission and report back to the subcommittee not later than June 1, 1979.
D. That the Secretary of Transportation renew efforts to coordinate reform of State motor transportation regulations to insure that interstate traffic moves efficiently and economically and is not impeded unlawfully.
E. That the Director of the Bureau of Motor Carrier Safety of the Federal Highway Administration study the issue of license plates and determine what State regulatory, Federal regulatory, or insurance problems prevent motor carriers from allowing owner-operators to obtain license plates in their own names. A report on this issue and recommendations for solution of any problems encountered should be delivered to the subcommittee by May 1, 1979.
H.R.Rep. No. 1812, 95th Cong., 2d Sess. 28 (1978).
. The 96th Congress passed laws to protect owner-operators in the Motor Carrier Act of 1980. These provisions are codified at 49 U.S.C. §§ 10527, 11107(b), 11109, 11902a. For an explanation of how these laws are designed to help owner-operators, see H.R.Rep. No. 1069, 96th Cong., 2d Sess. 30-33, reprinted in 1980 U.S.Code Cong. & Ad.News 2283, 2312-15.
. The purpose of the [Revised Interstate Commerce Act] bill is to restate in comprehensive form, without substantive change, the Interstate Commerce Act and related laws, and to enact those laws as subtitle IV of title 49, United States Code. In the restatement, simple language has been substituted for awkward and obsolete terms, and superseded, executed, and obsolete statutes have been eliminated. This bill is a part of the program of the Office of the Law Revision Counsel of the House of Representatives to prepare and submit to this Committee, for enactment into positive law, all titles of the United States Code.
H.R.Rep. No. 1395, 95th Cong., 2d Sess. 4-5, reprinted in 1978 U.S.Code Cong. & Ad.News 3009, 3013 (emphasis added).
. Historical notes following each section of the Revised Interstate Commerce Act indicate the statutory source provisions for each new section. The sources of the current section 10321(a) are 49 U.S.C. §§ 12(l)(a) (1st sentence, 2d sentence less words after the semicolon, and last sentence words before 1st semicolon), 15(16), 20b(10), 304(a) (matter before (1), (6), and (7) (less words after last semicolon)), 904(a) and (b) (less words after last semicolon), 1003(a) and (e) (less words after last semicolon) (all repealed 1978). Section 12(l)(a) provided, in pertinent part:
The Commission shall have authority, in order to perform the duties and carry out the objects for which it was created, to inquire into and report on the management of the business of all common carriers subject to the provisions of this chapter [regulating railroad and pipeline carriers], and to inquire into and report on the management of the business of persons controlling, controlled by, or under a common control with, such carriers, to the extent that the business of such persons is related to the management of the business of one or more such carriers, and the Commission shall keep itself informed as to the manner and method in which the same are conducted. The Commission may obtain from such carriers and persons such information as the Commission deems necessary to carry out the provisions of this chapter.... The Commission is authorized and required to execute and enforce the provisions of this chapter....
Section 15(16) provided:
The foregoing enumeration of powers [relating to railroad and pipeline rate regulation] shall not exclude any power which the Commission would otherwise have in the making of an order under the provisions of this chapter [regulating railroad and pipeline carriers]. Section 20b(10) provided:
The Commission shall have the power to make such rules and regulations appropriate to its administration of the provisions of this section [relating to modification of railroad financial structures] as it shall deem necessary or desirable.
Section 304(a) provided, in pertinent part: It shall be the duty of the Commission....
(6) To administer, execute, and enforce all provisions of this chapter [regulating motor carriers], to make all necessary orders in connection therewith, and to prescribe rules, regulations, and procedure for such administration; and
(7) For purposes of the administration of the provisions of this chapter, to inquire into the management of the business of motor carriers and brokers, and into the management of the business of persons controlling, controlled by, or under common control with, motor carriers to the extent that the business of such persons is related to the management of the business of one or more motor carriers, and the Commission shall keep itself informed as to the manner and method in which the same are conducted, and may obtain from such carriers and persons such information as the Commission deems necessary to carry out the provisions of this chapter....
Section 304(a) is the only source provision dealing with motor carriers, and is discussed in greater detail in part IIB of this opinion infra. Section 904(a) and (b) provided, in pertinent part:
(a) It shall be the duty of the Commission to administer the provisions of this chapter [regulating water carriers], and to that end the Commission shall have authority to make and amend such general or special rules and regulations and to issue such orders as may be necessary to carry out such provisions.
(b) The Commission shall have authority, for purposes of the administration of the provisions of this chapter, to inquire into and report on the management of the business of water carriers, and to inquire into and report on the management of the business of persons controlling, controlled by, or under a common control with water carriers, to the extent that the business of such persons is related to the management of the business of one or more such carriers, and the Commission shall keep itself informed as to the manner and method in which the same are conducted. The Commission may obtain from such carriers and persons such information as the Commission deems necessary to carry out the provisions of this chapter....
Section 100
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_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
UNITED STATES of America, Plaintiff-Appellee, v. ONE (1) 1987 MERCURY MARQUIS and $4,789.00 in United States Currency, Defendant, Appeal of Robert H. MICK, Intervenor.
No. 89-3902.
United States Court of Appeals, Sixth Circuit.
Argued May 10, 1990.
Decided July 23, 1990.
Kathleen A. Sutula, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Cleveland, Ohio, for plaintiff-appellee.
Kenneth J. Cardinal (argued), Sebring, Ohio, for intervenor.
Before KENNEDY and RYAN, Circuit Judges, and COOK, Chief District Judge.
. The Honorable Julian Abele Cook, Jr., Chief United States District Judge for the Eastern District of Michigan, sitting by designation.
KENNEDY, Circuit Judge.
This in rem forfeiture action was initiated by the government against a 1987 Mercury Marquis and $4,789.00 in cash. The government alleges that both items were used or intended to be used in violation of the internal revenue laws regarding wagering. Robert Mick, who intervened to claim an ownership interest in the defendant property, and the government both filed motions for summary judgment. The District Court granted the government’s motion. We AFFIRM.
On November 23, 1987, members of the Canton and Sebring Police Departments and two Special Agents of the Internal Revenue Service’s Criminal Investigation Division (IRS) detained and searched Robert Mick and his car pursuant to a search warrant. The search revealed numerous articles in the car, including line score sheets, computerized carryover sheets, parlay sheets, parlay stubs, bank receipts, and $2,648.00 in cash. In Mick’s pants pocket, the investigators found $2,141.00.
Based on this evidence, the State charged Mick with bookmaking and illegal gambling. In the ensuing criminal proceedings, however, the state trial court determined that the search warrant had been issued without probable cause. The court found that the supporting affidavit primarily cited evidence and observations derived from several searches of a garbage dumpster, located behind I & J Printing, a print shop suspected of printing parlay sheets for illegal sports gambling. Because those dumpster searches were conducted without a warrant, the court disregarded the majority of the affidavit’s allegations and concluded that'the remaining sections did not establish probable cause for the issuance of a search warrant. Accordingly, the court dismissed the search warrant and suppressed all of the evidence obtained from Mick and his car. Shortly thereafter, the prosecutor dismissed the state charges against Mick for lack of evidence.
Meanwhile, the IRS agents seized Mick’s car as forfeited to the government on the day of the search, November 23, 1987. On February 2, 1988, the IRS adopted the police seizure and took possession of the money. Finally, on October 19, 1988, the government filed a Complaint in Forfeiture and thus commenced this action.
The District Court found that all of the government’s evidence obtained from the dismissed search warrant was inadmissible in the forfeiture action. The court noted, however, that “[i]t is settled that where property declared by a federal statute to be forfeited because used in violation of federal law is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized.” United States v. One Ford Coupe Automobile, 272 U.S. 321, 325, 47 S.Ct. 154, 155, 71 L.Ed. 279 (1926). After noting that “the forfeiture can proceed if the government can show probable cause with untainted evidence,” United States v. United States Currency $31,828, 760 F.2d 228, 230 (8th Cir.1985) (emphasis in original), the court found that the government’s untainted evidence established probable cause to maintain the forfeiture.
The District Court stated that the government’s untainted evidence included, the affidavits of two individuals who accepted parlay sheets from Mick, the transcripts of phone conversations between Mick and an undercover officer of the Canton Police Department, and the transcripts of surveillance work on the case. The court noted:
The first affidavit contains the testimony of one George Wilson, who states that for two or three years, he received approximately five to six hundred parlays from Mick each week during the football season, which he would distribute to five or six other people. Wilson also states that he gave Mick about $600 to $700 in bets each week, that Mick would provide payoffs for the bets the following week, and that Mick paid him for this work. Finally Wilson states that Mick usually put the parlay stubs and the money in his pockets, and usually drove “a white Mercury” to Wilson’s house. The other affidavit contains the testimony of Paul Viz-zuso, who states that Mick delivered parlays to him on Monday night for •’pproxi-mately three to four years. Vizzuso says that the parlays were for his personal use, and that Mick drove a white Ford.
The District Court found that the affidavits established probable cause to maintain a forfeiture.
The intervenor, Robert Mick, argues that the District Court erred in granting the government’s motion for summary judgment because Mick had asserted his fourth and fifth amendment rights. Mick, relying on United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971), argues that the Supreme Court has held that the government may not conduct forfeiture proceedings where one asserts fifth amendment privileges. United States Coin and Currency extended the fifth amendment privilege against self-incrimination to in rem forfeiture proceedings. The Court’s rationale was that although forfeitures are civil in form, they are criminal in nature for fifth amendment purposes. Id. at 718, 91 S.Ct. at 1043.
As the government notes, however, Congress responded to the cases upon which United States Coin and Currency relied by amending the statutory provisions that were found to have offended the fifth amendment privilege. In 1968, Congress repealed 26 U.S.C. § 6107 so that IRS agents were no longer required to provide wagering tax information to local law enforcement agencies. Congress also amended 26 U.S.C. § 6806 in 1968 by deleting the requirement that registrants conspicuously display their tax stamp or produce it on demand. Furthermore, in 1974 Congress responded to United States Coin and Currency by enacting 26 U.S.C. § 4424, which forbids Treasury Department officials and employees from disclosing information taken from registrations under the wagering and coin-operated, gaming device statutes. This Court, like the Fifth and Second Circuits, has found that the amendments are constitutionally valid in the face of a fifth amendment challenge. United States v. Merlo, 704 F.2d 331, 332 (6th Cir.1983); United States v. Jeffers, 621 F.2d 221, 225-26 (5th Cir.1980) (‘‘[T]he 1974 revisions and the concomitant change in Treasury Department practices have eliminated the ‘real and appreciable’ hazards of self-incrimination that existed under the prior law since Section 4244 makes the tax disclosures unavailable to law enforcement authorities.”); United States v. Sahadi, 555 F.2d 23 (2d Cir.1977). Further, Mick has not demonstrated how the forfeiture would affect his fifth amendment rights. Thus his fifth amendment challenge is not a defense to the government’s forfeiture action.
Mick also argues that because the District Court excluded the property as evidence in the forfeiture proceeding, nothing remained actionable before the court. The District Court, however, quoting United States Currency $31,828, 760 F.2d 228, stated “[T]he forfeiture can proceed if the government can show probable cause with untainted evidence.” Id. at 230 (emphasis in original). See also United States v. One 1978 Mercedes Benz, Four-Door Sedan, 711 F.2d 1297, 1303 (5th Cir.1983); United States v. $22,287, United States Currency, 709 F.2d 442, 446 (6th Cir.1983); United States v. One 1975 Pontiac Lemans, 621 F.2d 444, 451 (1st Cir.1980); United States v. One (1) 1971 Harley-Davidson Motorcycle, 508 F.2d 351, 352 (9th Cir.1974). This holding by the District Court is not inconsistent with the Supreme Court case of One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965), as Mick contends. One 1958 Plymouth Sedan merely held that evidence derived from an illegal search is inadmissible in a forfeiture proceeding. Id. at 702, 85 S.Ct. at 1251.
Mick argues that the affidavits relied upon by the District Court as evidence of probable cause cannot be used to establish probable cause because they were made eight months after the seizure occurred. Although the affidavits were written after the seizure, they were used to demonstrate that probable cause to maintain a forfeiture existed at the time of the seizure. Therefore we find that the District Court did not err in finding that the government, through the use of untainted evidence, has shown that probable cause to maintain a forfeiture existed. The affidavits, together with police surveillance, were sufficient to establish probable cause for the forfeiture. Thus we agree with the District Court that there is no genuine issue of material fact and that the United States is entitled to judgment as a matter of law.
Accordingly, we AFFIRM the judgment of the District Court.
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_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 "manufacturing". Your task is to determine what subcategory of business best describes this litigant.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. AIR FLOW SHEET METAL, INC., and Local Union No. 156, Sheet Metal Workers’ International Association, AFL-CIO, Respondents.
No. 16522.
United States Court of Appeals Seventh Circuit.
May 20, 1968.
Marcel Mallet-Prevost, Asst. General Counsel, William H. Carder, Attorney, N.L.R.B., Washington, D. C., Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Nancy M. Sherman, Attorney, N.L.R.B., for petitioner.
Max E. Hobbs, Larry T. Miller, Frank A. Higgins, Fort Wayne, Ind., Dale, Duemling & Miller, Fort Wayne, Ind., of counsel, for respondent Air Flow Sheet Metal, Inc.
Before CASTLE, KILEY and CUMMINGS, Circuit Judges.
KILEY, Circuit Judge.
The National Labor Relations Board found that respondent Union violated Secs. 8(b) (2) and (1) (A) of the National Labor Relations Act by causing Air Flow Sheet Metal, Inc., to discharge its employee Milligan for a reason other than non-payment of dues or initiation fees; and that Air Flow violated Secs. 8(a) (3) and (1) of the Act by discharging Milligan. The Board ordered, inter alia, that the Union cease and desist from its unlawful conduct and that Air Flow offer Milligan reemployment and make him whole for loss of pay. We agree with the Board that its order should be enforced.
Air Flow, of Fort Wayne, Indiana, is in the business of installing sheet metal products in building construction. As a member of a contractor’s association, it is party to a collective bargaining agreement with the Union. The security clause of the agreement requires as a condition of employment that an employee join the Union within eight days after employment.
Milligan was employed by Air Flow on September 1, 1965, and began work in Kokomo, Indiana. He applied for Union membership about September 15 and made a down payment on the initiation fee. On November 1 he was transferred to “the RCA job” at Marion, Indiana. On January 19, 1966, he was transferred to “the Corning Glass Works job” at Bluff ton, Indiana. His work on behalf of Air Flow terminated “on or about” January 20, 1966, and four days later he filed the unfair labor practice charges in this record.
The complaint alleges that the Union “on or about January 19 and 20, 1966,” caused Air Flow to Discharge Milligan at Air Flow’s Marion and Bluffton, Indiana, job sites and that the Union continues to prevent Air Flow from reinstating Milligan in his job. It is further alleged that the Union’s conduct was based on Milligan’s non-membership in the Union, his criticism of the Union, his failure to take a Union examination and his failure to obtain Union clearance for his employment. Air Flow and the Union denied substantially all the charges.
The Board adopted, in substance, the decision and recommendation of the Trial Examiner, in entering the order. The Examiner found that the Union caused Air Flow to discharge Milligan because he was not a Union member, and had not taken and passed an examination for journeymen sheet metal workers.
The issues raised by the Union and Air Flow are; whether the record supports the finding that there was a discharge; whether, if there was a discharge, it was for good cause; whether in suspending Milligan on January 20, 1966, the Union was within its right to enforce its Union rules; whether the Examiner’s credibility findings, favoring Milligan, are justified on the record; and whether the Union and Air Flow were denied a fair hearing because of the Examiner’s conduct.
The respondents contend they were denied a fair adversary hearing because the Examiner assumed the role of Board advocate. We have read the Trial Examiner’s questioning of General Counsel witnesses Ehrman, Krock and Milligan, and of respondents’ witnesses Quarles, Shaw and Ehrman. We think that the Trial Examiner went beyond his function of Examiner in certain instances by taking over the questioning of witnesses of both parties.
An examiner is not required to assume a wholly passive role and should participate in the proceeding whenever necessary to the end that the hearing proceed in an orderly, expeditious fashion. On the other hand, he should permit the attorneys for the parties to question the witnesses in their own way to develop their own cases. We do not find, as the court did in Tele-Trip Co. v. NLRB, 4 Cir., 340 F.2d 575, that the Examiner’s questioning was “argumentative” or displayed “a critical approach, obvious disbelief,” or an attitude “closely bordering on partisanship or even hostility.” The court in TeleTrip, although it did make the above findings and although it was highly critical of the examiner, p. 581, did not order a new hearing.
The record here merely shows an impatience on the Examiner’s part to allow the attorneys to evoke the testimony their own way. We disapprove, because we think this practice if approved might lead to implications of partiality and might lessen respect for the administrative process under the NLRA. We conclude, however, that the Examiner’s conduct here did not deny respondents a fair hearing, and did not lead to a distorted result.
We see no merit in the contention of respondents that the Examiner contributed to an unfair hearing because he permitted testimony outside the issues. The Examiner did make findings, not adopted by the Board, with respect to violations which had not been put in issue by the unfair labor practice charges. The testimony which related to these findings was introduced by respondents, as well as the General Counsel, and related to events the day before the January 20 discharge as well as events subsequent to the discharge. The testimony is not'unrelated to the charges actually made since the allegation of the charge was that the discharge took place on or about January 19 and 20 and since the testimony was relevant to the issue of the employer’s reason for discharging Milligan. We cannot find any prejudice to respondents because of the testimony on which the findings of additional violations were based.
We hold the testimony amply supports the Board’s conclusion that the Union violated Secs. 8(b) (1) (A) and 8(b) (2) by causing Air Flow to discharge Milligan because he had not taken the Union examination; and that Air Flow violated 8(a) (1) and (3) by discharging Milligan and refusing to reinstate him for reasons other than nonpayment of initation fees and dues.
The Examiner could, with substantial support find the following; Union Steward Beatty at a Union meeting January 17 reported that Milligan had stated to Union members on the RCA job that he did not have to, and would not, join the Union; that Union business agent Krock was informed the men would walk off the job unless the matter was straightened out and that Krock promised to go to the RCA job and straighten “it” out. On the morning of January 19, 1966, Krock and Beatty and Air Flow’s Project Manager Thomas and Superintendent Quarles met with Milligan. Thomas and Quarles heard Krock tell Milligan he could not work until he took the Union examination. Krock “suggested” Thomas and Quarles lay Milligan off until he took the examination. Thomas and Quarles, faced with a “slow down” on the job because of Milligan’s Union trouble, readily accepted the suggestion and ■told Milligan he had to be laid off. He was paid up to the end of the day.
Milligan then reported what happened to Ehrman, Air Flow’s Operations Manager. An hour later Ehrman told him he had not been “fired,” but had been transferred and to report the next morning at the Bluffton Corning Glass job. He reported January 20 to Shaw, superintendent of Air Flow’s subcontractor, who directed the sheet metal workers at Bluffton. Krock came to the job in the morning, told Milligan in Shaw’s presence that he had been suspended by the Union and could not work until he had taken the examination and been admitted to membership in the Union. Shaw told Milligan he could not work in view of the suspension. Milligan told Shaw to inform Ehrman of what happened and to say Milligan was on his way to get his check. When Milligan arrived at Ehrman’s office, his check had been prepared. Ehrman told him he could return to work when he had straightened out his trouble with the Union.
It is true that under the Union security clause Milligan was required to be a member of the Union for continued employment. But Milligan’s Sec. 7 rights and the restraints upon the Union in 8(b) (2) and upon Air Flow in 8(a) (3) are as much a part of the bargaining agreement as if they had been expressly stated. The Union could not cause the discharge of Milligan for non-membership in the Union unless he had failed to tender his initiation fee and dues, nor could Air Flow discharge him for non-membership if it knew, or should reasonably have known, that he was being denied membership for not taking an examination.
Respondent argues that if Milligan was fired it was for causing disturbances among the other men, and not for failure to take the Union examination. While it is probably true that Milligan was an abrasive element on the job, the Board could well infer that when Milligan was told by Thomas that Air Flow would have to “let him go,” it was not because of unsatisfactory performance but because of Milligan’s Union trouble and its effect on the work progress. Milligan had been on the RCA job for more than two months and there is no evidence that Thomas and Quarles had thought, before January 19, of discharging Milligan for unsatisfactory work or causing dissension. Moreover, Shaw’s statement on the 20th that Milligan could not work with a Union suspension and Ehrman’s statement on the 20th that Milligan could return to work after he was straightened out with the Union leave no doubt about the reason for Milligan’s discharge on January 20.
We conclude that Milligan’s discharge was not justified here, as was that of Gonzalez in NLRB v. V. C. Britton Co., 9 Cir., 352 F.2d 797, 799; and he did not voluntarily leave his job, as Ram did in NLRB v. Brown, 9 Cir., 310 F.2d 539, 546, 547.
What the Sixth Circuit said in NLRB v. Leece-Neville Co., 330 F.2d 242, about burdening the employer with the duty of investigating whether dues had been paid is not pertinent here, since there is substantial support in the record for the conclusion that the Company knew the reason for Milligan’s Union trouble was not failure to pay dues or fees. Moreover, there was no conflicting evidence before the employer as to the reason why the Union sought Milligan’s discharge as there was in the Leece-Nevitte case.
There is no merit in arguments that we should decide that Milligan was not discharged because he could not testify the word “fired” was used. The claim that he “quit” work on either day is ridiculous on this record. Nor is there merit in the claim that he was not believable because he is a “convicted liar” or because of his “record” of arrests, convictions and imprisonment.
We think the testimony for Air Flow carries its own weaknesses because of the conflict between the testimony of Krock, and that of Thomas and Quarles, with regard to what transpired at the January 19 meeting with Milligan; because of the incredibility of Shaw’s testimony that he was present, but did not hear, what Krock said to Milligan on January 20; and because of the incredibility of the testimony of Ehrman that he had Milligan’s check prepared in advance on January 20 for the reason that he had decided the day before to fire Milligan for reasons not related to the Union.
No case cited justifies our setting aside the Board’s credibility determinations on the record before us. We accept the credibility findings of the Examiner, adopted by the Board, as substantially supported by the record.
The order will be enforced.
. Local No. 156, Sheet Metal Workers’ International Association, AFL-CIO.
. The Board did not adopt the Examiner’s findings with respect to violations in the January 19 transfer of Milligan or in the denial of Union membership and reinstatement in employment because of his filing of charges with the Board. The reason is that these “violations” were neither charged in the complaint nor presented at the hearing.
. (b) It shall be an unfair labor practice for a labor organization or its agents—
(2) * * * to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership;
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "manufacturing". What subcategory of business best describes this litigant?
A. auto
B. chemical
C. drug
D. food processing
E. oil refining
F. textile
G. electronic
H. alcohol or tobacco
I. other
J. unclear
Answer: |
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.
LEE v. MADIGAN, WARDEN.
No. 42.
Argued December 9-10, 1958.
Decided January 12, 1959.
Carl L. Rhoads and Robert Edward Hannon argued the cause for petitioner. With them on the brief was Charles Upton Shreve.
John F. Davis argued the cause for respondent. On the brief were Solicitor General Rankin, Assistant Attorney General White and Harold H. Greene.
Mr. Justice Douglas
delivered the opinion of the Court.
Article of War 92, 10 U. S. C. (1946 ed., Supp. IV) § 1564, which, prior to the adoption of the Uniform Code of Military Justice, governed trials for murder or rape before courts-martial, contained a proviso “That no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.”
The question for decision concerns the meaning of the words “in time of peace” in the context of Article 92.
Petitioner, while serving with the United States Army in France, was convicted by a court-martial, dishonorably discharged, and sentenced to prison for 20 years. He was serving that sentence in the custody of the Army at Camp Cooke, California, when he was convicted by a court-martial of the crime of conspiracy to commit murder. This offense occurred on June 10, 1949, at Camp Cooke. The question is whether June 10, 1949, was “in time of peace” as the term was used in the 92d Article. The question was raised by a petition for a writ of habeas corpus challenging the jurisdiction of the court-martial. Both the District Court (148 F. Supp. 23) and the Court of Appeals (248 F. 2d 783) ruled against petitioner. We granted certiorari, 356 U. S. 911.
The Germans surrendered on May 8, 1945 (59 Stat. 1857), the Japanese on September 2,1945 (59 Stat. 1733). The President on December 31, 1946, proclaimed the cessation of hostilities, adding that “a state of war still exists.” 61 Stat. 1048. In 1947, Senate Joint Resolution 123 was passed (61 Stat. 449) which terminated, inter alia, several provisions of the Articles of War but did not mention Article 92. The war with Germany terminated October 19, 1951, by a Joint Resolution of Congress (65 Stat. 451) and a Presidential Proclamation (66 Stat. c3). And on April 28, 1952, the formal declaration of peace and termination of war with Japan was proclaimed by the President (66 Stat. c31), that being the effective date of the Japanese Peace Treaty. Since June 10, 1949 — the critical date involved here — preceded these latter dates, and since no previous action by the political branches of our Government had specifically lifted Article 92 from the “state of war” category, it is argued that we were not then “in time of peace” for the purposes of Article 92. That argument gains support from a dictum in Kahn v. Anderson, 255 U. S. 1, 9-10, that the term “in time of peace” as used in Article 92 “signifies peace in the complete sense, officially declared.” Of like tenor are generalized statements that the termination of a “state of war” is “a political act” of the other branches of Government, not the Judiciary. See Ludecke v. Watkins, 335 U. S. 160, 169. We do not think that either of those authorities is dispositive of the present controversy. A more particularized and discriminating analysis must be made. We deal with a term that must be construed in light of the precise facts of each case and the impact of the particular statute involved. Congress in drafting laws may decide that the Nation may be “at war” for one purpose, and “at peace” for another. It may use the same words broadly in one context, narrowly in another. The problem of judicial interpretation is to determine whether “in the sense of this law” peace had arrived. United States v. Anderson, 9 Wall. 56, 69. Only mischief can result if those terms are given one meaning regardless of the statutory context.
In the Kahn case, the offense was committed on July 29, 1918, and the trial started November 4, 1918 — both dates being before the Armistice. It is, therefore, clear that the offense was not committed “in time of peace.” Moreover, a military tribunal whose jurisdiction over a case attaches in a time of actual war does not lose jurisdiction because hostilities cease. Once a military court acquires jurisdiction that jurisdiction continues until the end of the trial and the imposition of the sentence. See Carter v. McClaughry, 183 U. S. 365, 383. The broad comments of the Court in the Kahn case on the meaning of the term “in time of peace” as used in Article 92 were, therefore, quite unnecessary for the decision.
Ludecke v. Watkins, 335 U. S. 160, belongs in a special category of cases dealing with the power of the Executive or the Congress to deal with the aftermath of problems which a state of war brings and which a cessation of hostilities does not necessarily dispel. That case concerns the power of the President to remove an alien enemy after hostilities have ended but before the political branches have declared the state of war ended. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U. S. 146, involves the constitutionality under the war power of a prohibition law passed in 1918 after the armistice with Germany was signed and to be operative “until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States.” Woods v. Miller Co., 333 U. S. 138, concerns the constitutionality of control of housing rentals promulgated after hostilities were ended and before peace was formally declared. These cases deal with the reach of the war power, as a source of regulatory authority over national affairs, in the aftermath of hostilities. The earlier case of McElrath v. United States, 102 U. S. 426, is likewise irrelevant to our problem. It was a suit for back pay by an officer, the outcome of which turned on a statute which allowed dismissal of an officer from the service “in time of peace” only by court-martial. The President had made the dismissal; and the Court held that such action, being before August 20, 1866, when the Presidential Proclamation announced the end of the rebellion and the existence of peace, was lawful, since there was extrinsic evidence that Congress did not intend the statute to be effective until the date of the Proclamation.
Our problem is not controlled by those cases. We deal with the term “in time of peace” in the setting of a grant of power to military tribunals to try people for capital offenses. Did Congress design a broad or a narrow grant of authority? Is the authority of a court-martial to try a soldier for a civil crime, such as murder or rape, to be generously or strictly construed? Cf. Duncan v. Kahanamoku, 327 U. S. 304.
We do not write on a clean slate. The attitude cf a free society toward the jurisdiction of military tribunals — our reluctance to give them authority to try people for nonmilitary offenses — has a long history.
We reviewed both British and American history, touching on this point, in Reid v. Covert, 354 U. S. 1, 23-30. We pointed out the great alarms sounded when James II authorized the trial of soldiers for nonmilitary crimes and the American protests that mounted when British courts-martial impinged on the domain of civil courts in this country. The views of Blackstone on military jurisdiction became deeply imbedded in our thinking: “The necessity of order and discipline in an army is the only thing which can give it countenance; and therefore it ought not to be permitted in time of peace, when the king’s courts are open for all persons to receive justice according to the laws of the land.” 1 Blackstone’s Commentaries 413. And see Hale, History and Analysis of the Common Law of England (1st ed. 1713), 40-41. We spoke in that tradition in Toth v. Quarles, 350 U. S. 11, 22, “Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service.”
The power to try soldiers for the capital crimes of murder and rape was long withheld. Not until 1863 was authority granted. 12 Stat. 736. And then it was restricted to times of “war, insurrection, or rebellion.” The theory was that the civil courts, being open, were wholly qualified to handle these cases. As Col. William Winthrop wrote in Military Law and Precedents (2d ed. 1920) 667, about this 1863 law:
“Its main object evidently was to provide for the punishment of these crimes in localities where, in consequence of military occupation, or the prevalence of martial law, the action of the civil courts is suspended, or their authority can not be exercised with the promptitude and efficiency required by the exigencies of the period and the necessities of military government.”
Civil courts were, indeed, thought to be better qualified than military tribunals to try nonmilitary offenses. They have a more deeply engrained judicial attitude, a more thorough indoctrination in the procedural safeguards necessary for a fair trial. Moreover, important constitutional guarantees come into play once the citizen— whether soldier or civilian — is charged with a capital crime such as murder or rape. The most significant of these is the right to trial by jury, one of the most important safeguards against tyranny which our law has designed. We must assume that the Congress, as well as the courts, was alive to the importance of those constitutional guarantees when it gave Article 92 its particular phrasing. Statutory language is construed to conform as near as may be to traditional guarantees that protect the rights of the citizen. See Ex parte Endo, 323 U. S. 283, 301-304; Rowoldt v. Perfetto, 355 U. S. 115; Kent v. Dulles, 357 U. S. 116, 129. We will attribute to Congress a purpose to guard jealously against the dilution of the liberties of the citizen that would result if the jurisdiction of military tribunals were enlarged at the expense of civil courts. General Enoch H. Crowder, Judge Advocate General, in testifying in favor of the forerunner of the present proviso of Article 92, spoke of the protection it extended the officer and soldier by securing them “a trial by their peers.” We think the proviso should be read generously to achieve that end.
We refused in Duncan v. Kahanamoku, 327 U. S. 304, to construe “martial law,” as used in an Act of Congress, broadly so as to supplant all civilian laws and to substitute military for judicial trials of civilians not charged with violations of the law of war. We imputed to Congress an attitude that was more consonant with our traditions of civil liberties. We approach the analysis of the term “in time of peace” as used in Article 92 in the same manner. Whatever may have been the plan of a later Congress in continuing some controls long after hostilities ceased, we cannot readily assume that the earlier Congress used “in time of peace” in Article 92 to deny soldiers or civilians the- benefit of jury trials for capital offenses four years after all hostilities had ceased. To hold otherwise would be to make substantial rights turn on a fiction. We will not presume that Congress used the words “in time of peace” in that sense. The meaning attributed to them is at war with common sense, destructive of civil rights, and unnecessary for realization of the balanced scheme promulgated by the Articles of War. We hold that June 10,1949, was “in time of peace” as those words were used in Article 92. This conclusion makes it unnecessary for us to consider the other questions presented, including the constitutional issues which have been much mooted.
Reversed.
Mr. Justice Frankfurter took no part in the consideration or decision of this case.
64 Stat. 108, 10 U. S. C. (Supp. V) § 801 et seq., enacted May 5, 1950. For the present provisions governing murder and rape see Articles 118, 120.
Article 92 read as follows:
“Any person subject to military law found guilty of murder shall suffer death or imprisonment for life, as a court-martial may direct; but if found guilty of murder not premeditated, he shall be punished as a court-martial may direct. Any person subject to military law who is found guilty of rape shall suffer death or such other punishment as a court-martial may direct: Provided, That no person shall be tried by court-martial for murder or rape committed within the geographical limits of the States of the Union and the District of Columbia in time of peace.”
See H. R. Rep. No. 2682, 79th Cong., 2d Sess.; H. R. Rep. No. 799, 80th Cong., 1st Sess.; S. Rep. No. 339, 80th Cong., 1st Sess.
In Givens v. Zerbst, 255 U. S. 11, a companion ease to the Kahn case, the crime was committed on September 28, 1918, and the court-martial convened on October 30, 1918.
Prior to that time only state courts could try a soldier for murder or rape. Coleman v. Tennessee, 97 U. S. 509, 514. And that Act was construed as not giving the military exclusive jurisdiction.
“With the known hostility of the American people to any interference by the military with the regular administration of justice in the civil courts, no such intention should be ascribed to Congress in the absence of clear and direct language to that effect.” Id.
We said in Toth v. Quarles, supra, pp. 17-19:
. . there is a great difference between trial by jury and trial by selected members of the military forces. It is true that military personnel because of their training and experience may be especially competent to try soldiers for infractions of military rules. Such training is no doubt particularly important where an offense charged against a soldier is purely military, such as disobedience of an order, leaving post, etc. But whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task. This idea is inherent in the institution of trial by jury.
“Juries fairly chosen from different walks of life bring into the jury box a variety of different experiences, feelings, intuitions and habits. Such juries may reach completely different conclusions than would be reached by specialists in any single field, including specialists in the military field. On many occasions, fully known to the Founders of this country, jurors — plain people — have manfully stood up in defense of liberty against the importunities of judges and despite prevailing hysteria and prejudices. The acquittal of William Penn is an illustrious example. Unfortunately, instances could also be cited where jurors have themselves betrayed the cause of justice by verdicts based on prejudice or pressures. In such circumstances independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.”
See S. Rep. No. 130, 64th Cong., 1st Sess., p. 88'.
General Crowder was opposed to a proposal of the General Staff that capital crimes even when committed in this country be tried by court-martial as well as by civil courts. He said, “We never have had that law, and I doubt very much whether it is desirable to divorce the Army to that extent from accountability in the civil courts. . . . I think that here in the United States proper the Army should be under the same accountability as civilians for capital crimes.” Id., at 32.
The method employed by the Executive and the Congress in terminating wartime controls was different at the end of World War II than it was when World War I terminated. In the earlier war most of the legislation dependent on the existence of a state of war was terminated at one time. See 41 Stat. 1359, H. R. Rep. No. 1111, 66th Cong., 3d Sess.; S. Rep. No. 706, 66th Cong., 3d Sess. At the end of World War II Congress acted more selectively. See H. R. Rep. No. 2682, 79th Cong., 2d Sess. Thus Congress by S. J. Res. 123, 80th Cong., 1st Sess., declared that, for the purpose of construing specified statutes (among them certain Articles of War — but not Article 92), the effective date of the Resolution should be deemed the termination date of the state of war. The fact that Article 92 was not in that list leaves the problem where it was at the time the law was enacted. The failure to repeal, alter, or amend this law plainly has no bearing on its original purpose.
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_adminrev | N | What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
ANNING-JOHNSON COMPANY and Workinger Electric, Incorporated, Petitioners, v. UNITED STATES OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION and Peter J. Brennan, Secretary of Labor, United States Department of Labor, Respondents.
Nos. 74-1381, 74-1382.
United States Court of Appeals, Seventh Circuit.
Argued Feb. 19, 1975.
Decided May 27, 1975.
John A. Jeffries, Steven H. Adelman, Chicago, 111., for petitioner.
McNeill Stokes, Atlanta, Ga., for amicus curiae.
Carla A. Hills, Asst. Atty. Gen., Judith H. Norris, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
Before STEVENS, SPRECHER and TONE, Circuit Judges.
SPRECHER, Circuit Judge.
The single narrow issue in this appeal is whether subcontractors working at a multi-employer construction site can receive citations and be held liable for penalties under the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. [OSHA], for non-serious violations of standards promulgated by the Secretary of Labor to which their employees were exposed, but which the subcontractors neither created nor were responsible for pursuant to their contractual duties.
I
Wright Construction Company, Inc. was the general contractor for the con-' struction of a five-story steel and concrete bank building at Elkhart, Indiana. Petitioner Anning-Johnson Company was a subcontractor on the project with responsibility for furnishing and installing fireproofing for the building. Petitioner Workinger Electric, Inc. was a subcontractor on the same construction site with responsibility ,for furnishing and installing electrical, plumbing and sheet metal work. Neither subcontractors’contract contained a description of their duties which included general construction or carpentry work.
On May 31, 1973, an Occupational Safety and Health Administration compliance officer inspected the construction site. At the time of the inspection Anning-Johnson employed four employees on the jobsite who were members of Plasters Local 46, Cement Masons Local 532 and Laborers Local 645. Workinger employed fifteen employees at the construction site who were members of Electrical Workers Local 153, Plumbers Local 278 and Sheet Metal Workers Local 164.
It was stipulated that at the time of the inspection that the five floors and the roof of the building were already in place. The walls of the building were not in place and each floor was open at the side and was more than six feet above the adjacent floor and ground level.
The inspector found that on each floor a single steel cable was strung tautly along the edges of the open-sided floor at a height of approximately 40 inches above the surface of the floor. The cable was affixed to vertical columns of the building which were along the edge of the floor, about 50 feet apart. Red ribbons were tied to the cable at various intervals. The cables were the only barrier along the edges of these open-sided floors. There were no intermediate rails in place. At the time of the inspection employees of both subcontractors worked near and at the edge of these open-sided floors.
Located in about the center of the interior of the building was a steel stairway running from the basement to the fifth floor. The stairway was approximately 42 inches wide and was open on both sides except for the presence on one side of the next higher flight of the stairway. Each flight of stairs had more than four risers. The stairway from the first to the fifth floor had a railing running along only one side in some areas and had no intermediate rails. Other areas had, on both open sides, a single railing without intermediate rails. The stairway was the only means of reaching the upper floors in the building and at the time of the inspection it was used by all employees to reach the various floors.
On each floor level there was a floor opening for an elevator shaft. The opening in the floor was a rectangle approximately 5 feet IIV2 inches by 16 feet 2 inches. On the fifth floor at the time of inspection the opening was guarded by a single wood rail running along the edges of the opening at a height of approximately 40 inches above the floor surface. There was no intermediate rail or toeboard along any of the four sides of the opening. The opening on the third floor was covered by 4 foot by 8 foot plywood sheets which lay unsecured on top of 4 inch by 4 inch pieces of lumber running along the two sides of the opening. These plywood sheets were not installed so as to prevent accidental displacement.
Because of these conditions the OSHA inspector cited Wright as well as both petitioners for non-serious violations of 29 C.P.R. §§ 1926.500(d)(1), 1926.500(b)(1) and 1926.500(e)(1). A total fine of $150 against each subcontractor was assessed.
It was further stipulated by the parties that neither subcontractor installed the cable, erected any of the railings, or placed the plywood sheets over the floor openings, but that these , were installed by employees of Wright or other subcontractors who were members of Carpenters’ Local 565 and Laborers’ Local 645. Petitioners were not, however, specifically prohibited by the general contractor or by their contract with the carpenters’ union from abating the alleged violations. Foremen of both subcontractors were aware of the conditions and nonetheless allowed their men to remain on the job.
The case was presented before the Administrative Law Judge on a theory that the Secretary of Labor’s enforcement policy of citing subcontractors for non-serious violations of OSHA standards created by employees of other employers and which could not be effectively abated by the cited subcontractors was not authorized by the Act. On February 11, 1974, the Administrative Law Judge denied petitioners’ motion for summary judgment and affirmed the citations issued and the proposed penalties. It is that decision which petitioners seek to have reviewed. 29 U.S.C. § 660(a).
II
The Occupational Safety and Health Act of 1970 was enacted in order to reduce the substantial burdens placed on interstate commerce because of work-related personnel injuries and illnesses. 29 U.S.C. § 651. Pursuant to the Act, an employer’s duty flows from two sources. First, the Act requires that employers “shall comply with . . . standards promulgated under this chapter.” 29 U.S.C. § 654(a)(2). Second, where no standards are applicable, Sun Shipbuilding & Drydock Co., 4 OSAHRC 1020, 1043 (1973) (Review Commission), an employer is subject to a general duty to “furnish ... his employees . a place of employment . . . free from recognized hazards . . . likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). This appeal does not deal with the application of the general duty clause.
Pursuant to the Act, the Secretary of Labor is given general authority to promulgate occupational safety and health standards. 29 U.S.C. § 655.6 The Secretary is authorized to send his agents to a worksite to inspect the area and equipment. 29 U.S.C. § 657(a). If upon such investigation the Secretary or his representative believes that an employer has violated any standard he shall issue a citation setting forth the nature of the violation and a reasonable time for abatement. 29 U.S.C. § 658(a). Thereafter, the Secretary shall notify the employer of any proposed penalty. The employer may contest the citation or the proposed penalty or both.
The Commission, through its decisions, has consistently taken the position that, exposure to conditions that violate one of the construction standards constitutes a sufficient basis upon which the Secretary may issue a citation and assess a fine against a subcontractor pursuant to 29 U.S.C. §§ 654(a)(2), 666, notwithstanding the fact that the violation is non-serious and was not created by the cited subcontractor. Thus, in Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge), it was said:
[T]hese contentions by Respondent evade the real issue which is the exposure, if any, by Respondent of his employees to hazards. The underlying duty of each and every employer under Section 5 of the Act, regardless of whether an alleged violation was predicated upon paragraph (a)(1) or (a)(2) thereof, is to refrain from exposing employees to hazards. The Act grants no exceptions nor does it permit any delegation of this duty. The Act does not abridge the right to contract, it merely implies that an employer cannot by contract evade this duty to furnish a place of employment that is free of hazards. This duty is imposed upon each employer and makes no distinction as to whether the employer is a general contractor or a subcontractor; it may even include a lessor of employees relinquishing all control. Further the Act does not allow for any severance of responsibility predicated upon who produced or created the hazard or who may initially be responsible for its eradication.
Simply stated, whenever a subcontractor exposes his employees to hazards the employer subjects himself to the enforcement provisions of the Act and this is so regardless of who created the hazard or who may be responsible for its elimination.
Id. at 1060-61.
The Commission’s position and the one which the Secretary urges on this appeal has not gone uncriticized. In Robert E. Lee Plumbers, Inc., OSHRC Docket No. 2431 (Jan. 30, 1974) (Commission Review Ordered), it was said:
Admittedly, the respondent is responsible for the “place of employment,” yet no one should conclude that such responsibility imposed by the Act embraces the entire work project as shown in this case. This responsibility is the responsibility of the prime contractor. What then is the responsibility of the respondent, as a subcontractor employer? His responsibility is his worksite or that portion of the work as provided in his contract of employment. Under the Act, the respondent is required to comply with occupational safety and health standards and upon doing so, complys [sic] with the Act by furnishing a place of employment which is free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees. Laws usually follow the rule of reason and thus it would not be reasonable to require a subcontractor to insure a safe workplace for his employees, if to do so would embrace an entire work project on which numerous other contractors’ employees are working.
Under section 9(a) [29 U.S.C. § 658(a)] of the Act it is mandatory for an abatement period to be fixed with respect to each alleged violation. Respondent then is required to correct any violations, but can he correct a violation, the creation of which was not of his doing nor over which he has any control? Can respondent correct a violation which by doing so would interfere with the work endeavor of another subcontractor? Did Congress intend for an employer to correct a violation, to cease his portion of the work he is required to perform under contract, although the cause of the violation has no relation to his portion of the work under contract? Certainly, these queries must be resoundingly answered in the negative.
Id. at 7-8.
Similarly, Chairman Moran dissenting from the Commission’s reversal of R. H. Bishop Co., 8 OSAHRC 930 (1974) (Review Commission) adopted the following from the Administrative Law Judge:
In summary, therefore, while under the Act the employer is required to furnish a safe place to work, the Respondent cannot be held responsible for the default or conduct of the general contractor or other subcontractors on the job. It is in no position to guarantee compliance of all safety regulations by other employing units.
Id. at 938.
The reason for the divergent views is easily explainable. On the one hand the basic purpose of the Act is to prevent employment related injuries. The Secretary and a majority of the Commission have taken the position that this goal can best be achieved by imposing liability on a broad-based scale. Conversely, on the other side is the recognition that the prevailing position treats subcontractors, in light of the purposes of the Act, unnecessarily harshly and inequitably. We have carefully considered the position of both sides and have determined that the Act does not allow the Secretary to issue citations to the petitioning subcontractors for non-serious violations of the regulations involved in this case.
Ill
In reaching our conclusion we start with an analysis of the legislative scheme enacted by Congress. As previously stated the general duty clause provides that each employer shall furnish to his employees a place of employment free from serious hazards. 29 U.S.C. § 654(a)(1). It speaks in terms of furnishing a place of employment to employees such that they will not be exposed to the proscribed conditions, those conditions being ones that are “likely to cause death or serious physical harm.”
The other source of an employer’s duty under the Act states that an employer “shall comply” with regulations promulgated pursuant to the Act. 29 U.S.C. § 654(a)(2). This subsection, unlike (a)(1) (the general duty clause), does not speak in terms of employee exposure to hazards. If anything at all can be gleaned from the words of the subsection, it is that one who is to be charged with absolute liability be realistically in a position to comply with the promulgated standards. This, as will be shown, is not the case under the Secretary’s position.
It is true that the general duty clause was included in order to cover the most flagrant of situations and for which the Secretary had not promulgated appropriate regulations, so perhaps not much significance should be accorded the difference in language between the subsections. The varying thrust of the two subsections, however, is significant in at least one respect. The difference in language makes clear that when Congress desires to make mere exposure to a particular hazard a violation of the Act, it knows how to select language to clearly accomplish that goal. This conclusion is reenforced by the Contract Work Hours and Safety Standards Act, 40 U.S.C. § 333, where the language clearly makes exposure to conditions which violated promulgated regulations a violation for both general and subcontractors alike.
We start then with the proposition that exposure to non-serious violations of standards promulgated pursuant to (a)(2) do not stand on the same footing as exposure to conditions that are likely to cause serious physical harm or death.
IV
If the literal language of the Act does not clearly require imposing liability on subcontractors for exposure of their employees to non-serious violations, neither does it clearly indicate that subcontractors should have some kind of broad exemption. In considering the proper interpretation of the statute, we have reviewed the legislative history carefully. Regretfully, we have found little that sheds significant light on the problem. We are, therefore, in the unenviable position of rendering an interpretation that seeks to fulfill the stated congressional purpose in an equitable manner, without the aid of a clear legislative record on the subject.
The purpose of the Act is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources . . . 29 U.S.C. § 651(b). It is clear that the Act is not nor could it be designed to eliminate all occupational accidents. Rather it is designed to require
a good faith effort to balance the need of workers to have a sale [sic] and healthy work environment against the requirement of industry to function without undue interference.
Legislative History, supra, note 15 at 435 (Remarks of Senator Williams).
The Act is designed not to punish, but rather to achieve compliance with the standards and the abatement of safety hazards. The underlying rationale in effectuating these purposes by placing primary responsibility on employers is that employers have primary control of the work environment and should therefore insure that it is safe and healthful. S.Rept.No.91-1282, 91st Cong., 2d Sess. 9 (1970); H.R.Rept.No.91-1291, 91st Cong., 2d Sess. 21 (1970). While this is true in most situations the application of that principle to the construction industry is not wholly accurate. On a multi-employer construction site, it is the general contractor who contractually controls the worksite. The subcontractor’s control, for all essential purposes, is contractually limited to his specific field (e. g. electrical, plumbing, painting). Indeed, the subcontractor’s contract in this case described their duties in limited terms. Thus, it is clear that the congressional reason for placing on the employer the primary responsibility for complying with occupational hazard and safety standards does not exist in the case of these challenging subcontractors.
V
It seems likely from the foregoing that Congress did not intend to adopt a broad mandatory rule providing that in all cases employee exposure to conditions which are violations of promulgated standards would result in employer liability. Such a rule would equate the employer’s duty to comply with the statute with a broader general obligation to assure safe and healthful working conditions for his employees under all circumstances. In short the Secretary’s rule, in addition to the employer’s clear duty to comply with promulgated standards within his control (29 U.S.C. § 654(a)(2)) and his duty to avoid exposing his employees to hazardous conditions likely to cause death or serious physical harm (29 U.S.C. § 654(a)(1)), would create a still broader general duty of avoiding exposure by his employees to non-serious technical violations created and within the control of third parties.
We must consider whether, even though such a nonstatutory general duty clause has not been mandated by Congress, it may nevertheless represent a rule which the Secretary has discretion to adopt. We conclude that the Secretary’s rule involves a policy choice of such magnitude and would lead to results under the Act, not intended by the Congress, that it may not be appropriately adopted without more direct statutory authorization. An examination of the effects of the Secretary’s rule on the construction industry and the policy considerations mitigating against such a rule confirms our conclusion.
We fail to see how requiring several different employers to place a proper guard rail over an opening or along the edge of open-sided floors or intermediate rails on stairways fulfills the purposes of the Act any more effectively than requiring only one employer to do so. The Secretary’s position is premised on the theory that the more people responsible for correcting any violation, the more likely it will get done. This is, of course, not necessarily true. Placing responsibility in more than one place is at least as likely to cause confusion and disruption in normal working relationships on a construction site. Such a policy might in effect prove to be counterproductive.
In any event even if the Secretary’s position on this point was correct, the benefits to be, gained from his policy must be considered in light of the other likely effects of that policy on the construction industry. To the extent that the Secretary has not allowed employers to avoid liability under the Act by contractual arrangements between the various employers, some employers have sought to place liability on the party at fault by contractual indemnification clauses that would operate whenever liability was imposed on a party not responsible for a cited violation. As these clauses continue to proliferate it will mean that the Secretary’s policy will tend unnecessarily to favor general contractors. When jobs are to be subcontracted out, it is usually the general contractor who will be bargaining from a position of strength and thus able to shift liability away from himself.
Even if contractual liability was fairly allotted to the party at fault, the Secretary’s policy of citing all employers at the site might necessitate litigation between the parties to finally affix liability. To require the parties in an ongoing relationship to resort to the courts to accomplish the objectives of fixing final responsibility for the abatement of minor hazards would seem to be an undesirable policy and one which Congress could not have intended.
In addition to the confusion that might be caused by the Secretary’s interpretation, the thrust of multi-employer liability is economically wasteful and in some cases totally impractical. The Secretary’s policy requires multiple expenditures in the discovery of violations. Since each employer is responsible for every violation to which his employees are exposed, they are in effect required to discover violations that are beyond their area of expertise. This requires electricians and plumbers for example to be familiar with the standards for general carpentry work and in reverse, that carpenters be familiar with standards bearing on the work of more technical specialists. Not only are the most obvious violations required to be discovered, but also the most subtle; ones not likely to cause serious physical harm or death. This is a burdensome requirement especially in relation to non-serious hazards.
In addition, the Secretary’s rule might cause duplicate expenditures to be made in the actual abatement of hazards by different employers. Furthermore, union contracts ordinarily require that only employees of certain crafts be permitted to undertake certain work. Thus, an electrical or other speciality subcontractor would often be required to hire additional employees in order to abate a hazard. For most subcontractors this would be uneconomical, and for small ones perhaps completely destroy the benefit of their contract. This result seems all the more curious in this situation where other subcontractors or the general contractor, who had more direct responsibility for general construction, already had the available equipment and personnel to undertake the correction of the stairway,, elevator shaft and building edges. At any rate in relation to non-serious violations we do not believe that Congress intended to subvert the well established craft jurisdiction concept or to impose burdensome expenses on subcontractors which do not have the appropriate employees to abate certain hazards.
Assuming as we have just found that requiring abatement of hazards by subcontractors not responsible for the violating conditions is impractical, the only other alternative available is for such a subcontractor to remove his employees from the job after a violation is discovered and prior to a citation being issued. This again not only requires a subcontractor to be able to recognize non-serious violations outside its field of expertise, but also is an unrealistic and economically unfeasible solution.
On many construction jobs the withdrawal of a single subcontractor, upon whose work future construction depends, could conceivably cause an entire project to shut down. The subcontractor who wants to avoid OSHA liability must guess at his peril that in fact a violation exists. Presumably, if it guesses wrong the owner or general contractor would have an action for all too often very substantial damages caused %y delay in the completion of a project. Whether a violation actually exists is not always easy to determine either before or even after a citation issues, since a successful contest may be brought. It is even more difficult for a subcontractor to make the correct choice in cases where a violation is non-serious, for example as in this case where the citation was for technically improper guarding devices, and not for a clearly visible total absence of guards.
To the extent that the Secretary’s policy will lead to the removal of workers from construction sites because of non-serious violations we find that policy inconsistent with the Act. Correcting the hazard, not shutting down construction sites, is the desired result. It is the former not the latter that is consistent with the balance approach. The standards are to be set “in terms of objective criteria and of the performance desired.” H.Rept.No.91-1765, 91st Cong., 2d Sess. 35 (1970) (Conference Report accompanying S. 2193). The Secretary, proceeding in district court, can seek to temporarily restrain any activity on a work site in imminent danger situations. 29 U.S.C. § 662. There was significant congressional debate over this section and the extent of its scope. See, e. g. H.Rept. No.91 — 1765, supra at 40. Clearly, a non-serious violation of the promulgated standards is not the type of imminent danger Congress contemplated when they included this section. To the extent that the Secretary may achieve a shut down of a work site by citing a subcontractor for allowing his employees to be exposed to non-serious violations, that policy is inconsistent with the imminent danger provisions of the Act.
For all of the foregoing reasons we have determined that the Secretary’s and Commission’s position cannot be sustained.
VI
In reaching this decision we have recognized that both sides have substantial merit in their position. We have not sought to undercut the Secretary’s authority or in any way frustrate the purposes of the Act. We have balanced the Secretary’s interest in enforcing his policy, and the purposes that policy serves, against the inefficient, uneconomical and inequitable effects it has on certain employers.
It is important to define precisely what effect our decision is intended to have. We have not told the Secretary whom he must hold liable where there is joint responsibility for the existence of a standard violation. Similarly, we have not held that the Secretary’s policy of imposing liability on employers for exposure to conditions that are serious violations of promulgated standards is invalid. Nor have we held that exposure by a subcontractor’s employees to a non-serious standard violation, which he created or is otherwise responsible for is impermissible. We have only held that these petitioners are not responsible for the conditions deemed non-serious violations of the promulgated standards by the Secretary and, therefore, that the Secretary’s policy of imposing liability on them merely because their employees were exposed to conditions which they neither created, caused, nor are otherwise responsible for, does not, on balance, fulfill the purposes of the Act. Since the facts of this case fall into this narrow holding, we set aside the order of the Commission in both 74-1381 and 74-1382.
. No employees from Anning-Johnson were working on the fifth floor at the time of the-inspection.
. Wright did not contest the citations issued to it.
. 29 C.F.R. § 1926.500 provides in relevant part:
Guardrails, handrails, and covers.
(a) General provision. This subpart shall apply to temporary or emergency conditions where there is danger of employees or materials falling through floor, roof, or wall openings, or from stairways or runways.
(b) Guarding of floor openings and fíoor holes. (1) Floor openings shall be guarded by a standard railing and toe boards or cov-' er, as specified in paragraph (f) of this section. In general, the railing shall be provided on all exposed sides, except at entrances to stairways.
******
(d) Guarding of open-sided fíoors, platforms, and runways. (1) Every open-sided floor or platform 6 feet or more above adjacent floor or ground level shall be guarded by a standard railing, or the equivalent, as specified in paragraph (f)(i) of this section, on all open sides, except where there is entrance to a ramp, stairway, or fixed ladder. The railing shall be provided with a standard toeboard wherever, beneath the open sides, persons can pass, or there is moving machinery, or there is equipment with which falling materials could create a hazard.
* * * * * *
(e) Stairway railings and guards. (1) Every flight of stairs having four or more risers shall be equipped with standard stair railings or standard handrails as specified below, the width of the stair to be measured clear of all obstructions except handrails:
(i) On stairways less than 44 inches wide having both sides enclosed, at least one handrail, preferably on the right side descending;
(ii) On stairways less than 44 inches wide having one side open, at least one stair railing on the open side;
(iii) On stairways less than 44 inches wide having both sides open, one stair railing on each side;
(iv) On stairways more than 44 inches wide but less than 88 inches wide, one handrail on each enclosed side and one stair railing on each open side;
(v) On stairways 88 or more inches wide, one handrail on each enclosed side, one stair railing on each open side, and one intermediate stair railing located approximately midway of the width.
. Initially, the penalties were set at $300, but pursuant to OSHA policy this figure was reduced.
. The subcontractors petitioned for review of the Administrative Law Judge’s decision, but no commissioner directed review and therefore the decision of the Administrative Law Judge became a final order of the Commission. 29 U.S.C. § 661(i).
. The general duty clause is not involved in this case, because by its terms the duty embodied in that clause flows only to hazards that are causing or likely to cause death or serious physical harm. In 29 U.S.C. § 666(j) a serious violation is deemed to exist “if there is a substantial probability that death or serious physical harm could result . .” This definition parallels closely the wording of the general duty clause. In the present case the Secretary has classified the violations as “non-serious” which means ones that are not likely to cause death or serious physical harm and therefore outside the scope of the general duty clause. See generally Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L.Rev. 988 (1973).
. The standards in the present case were originally made effective pursuant to 21 U.S.C. § 653(b)(2) which provides in relevant part:
The safety and health standards promulgated under . . . Public Law 91-54, Act of August 9, 1969 . . . are superseded on the effective date of corresponding standards, promulgated under this chapter, which are determined by the Secretary to be more effective. Standards issued under the laws listed in this paragraph . . . shall be deemed to be occupational safety and health standards issued under this chapter
The 28 C.F.R. part 1926 standards were promulgated under the Contract Work Hours and Safety Standards Act, Pub.L. 91-54, codified at 40 U.S.C. § 333. They were adopted as occupational safety and health standards pursuant to 29 C.F.R. § 1910.12. For more on the interrelationship between the Contract Work Hours and Safety Standards Act and the Occupational Safety and Health Act see note 13, infra.
. Any employer who has received a citation for a violation of 29 U.S.C. § 654 may be fined up to $1,000 for each violation. If cited for a serious violation some fine up to $1,000 must be levied. If an employer willfully or repeatedly violates section 654 he may be fined up to $10,000. Similarly, a failure to correct a violation within the time period allowed may be fined up to $1,000 for each day during which such violation remains unabated. 29 U.S.C. § 666.
. If no notice of contest is filed within fifteen days from receipt of the Secretary’s citation, the citation and the assessment, as proposed, shall be deemed to be a final order of the Commission and not subject to review by any court or agency. 29 U.S.C. § 659(a).
. For other cases with similar holdings see Savannah Iron & Fence Corporation, 10 OSAHRC 1 (1974) (Review Commission); Armor Elevator Company, Inc., 5 OSAHRC 260 (1973) (Review Commission); Sunray Electric Corporation, 7 OSAHRC 615 (1974) (Review Commission Judge); Star Circle Wall Systems, Inc., 3 OSAHRC 719 (1973) (Review Commission Judge); Skil-Craft Builders, Inc., 3 OSAHRC 622 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414 (1973) (Review Commission Judge); Jaffie Contracting Company, Inc., 2 OSAHRC 466 (1973) (Review Commission Judge); Fireproof Products Company, Inc., 2 OSAHRC 475 (1973) (Review Commission Judge); Ellison Electric, 1 OSAHRC 547 (1972) (Review Commission Judge); FEC, Inc., 1 OSAHRC 389 (1972) (Review Commission Judge).
. See also Anning-Johnson Co., OSHRC No. 3694 (May 3, 1974) (Commission Review Ordered); Anning-Johnson Co., OSHRC No. 4409 (April 19, 1974) (Commission Review Ordered).
. See note 6, supra and accompanying text.
. There is another reason why we believe the Secretary should not force this inequitable burden on subcontractors. The standards which the challenging subcontractors in this case are accused of violating were initially adopted pursuant to the Contract Work Hours and Safety Act, 40 U.S.C. § 333. See note 7, supra. That act provided in specified construction contracts with the federal government that:
[N]o contractor or subcontractor . . . shall require any laborer . . employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety, as determined under construction safety and health standards
The standards applicable in this case, see note 3, supra, do not specifically declare that exposure to non-conforming conditions will be a violation, and unlike the Contract Work Hours and Safety Act the language of OSHA’s subsection (a)(2) does not speak in strict exposure terms.
The standards adopted pursuant to the Contract Work Hours and Safety Act included the following:
(b) By contracting for full performance of a contract . . the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in this part, whether or not he subcontracts any part of the work.
(c) To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with• the standards in this part with respect to that part. Thus, the prime contractor assumes the entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor or subcontractors shall be deemed to .have joint responsibility.
(d) Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Act.
29 C.F.R. § 1926.16 (emphasis added).
This regulation was part of subpart B of 29 C.F.R. part 1926. Subpart B was not adopted by the Secretary in promulgating OSHA standards, 29 C.F.R. § 1910.12(c), but the reason for not adopting was unrelated to that part of the regulation which makes subcontractors responsible only for their own work. The foregoing language may well have precluded liability against subcontractors who allowed their employees to be exposed to conditions not caused by them but which violated promulgated standards. In any case, we were not advised that the difference in statutory language in relation to subcontractors was considered by the Secretary prior to the decision to hold them liable.
While we do not rest our decision on the manner in which the Secretary’s policy was arrived at, we do note that there is a substantial likelihood that the present policy evolved into a hard and fast rule without much consideration and certainly without comment from those likely to be affected, as is the general procedure under the Act. 29 U.S.C. § 655(b).
. As Commission Chairman Moran has stated:
In enacting this law, Congress apparently gave little thought to the unique relationship which arises when employees of a number of different employers work in and around the same job site and are subject to the hazards which may exist at that site — hazards which may or may not have been created by thejr own employer — or someone else’s — or by some other employees of a totally unrelated and unknown employer.
Address by OSHRC Chairman Moran, National Construction Industry Conference of the American Arbitration Association, Boston, Massachusetts, April 24, 1974.
. It was observed during debate in the Congress that the more than 14,500 workers killed by work-related accidents each year represented an annual death toll exceeding that of the Vietnam war. Subcomm. on Labor of Senate Comm, on Labor and Public Welfare, Legislative History of the Occupational Safety and Health Act of 1970, 92d Cong., 1st Sess. 411 (Comm.Print 1971) (remarks of Senator Williams).
. The contract in this case between Wright and Workinger Electric provided that the latter in accordance with the plans and specifications of the architect do the “Electrical Work Complete.” Similarly, Anning-Johnson was “To furnish and install the Sprayed on Fireproofing” in accordance with the architect’s plans.
In both contracts the only reference to OSHA was the following:
Sub-contractor agrees to comply with all requirements of the Occupational Safety and Health Act (Current Edition) and to save harmless and indemnify General Contractor from and against any and all liabilities imposed on the contractor for violations of said act arising out of the work covered by this sub-contractor.
No reference is made to correcting safety hazards beyond the scope of the subcontractor’s primary duties.
. See, e. g., Armor Elevator Company, Inc., 5 OSAHRC 260, 278-79 (1973) (Review Commission); Skil-Craft Builders, Inc., 3 OSAHRC 622, 627-28 (1973) (Review Commission Judge); Howard P. Foley Company, 3 OSAHRC 414, 419 (1973) (Review Commission Judge).
. One commentator has suggested that this represents an adequate solution to the problem created by multi-employer construction sites. It not only encourages the general contractor and the subcontractor to consider in advance the allocation of safety responsibilities, but also would not involve the government in determining which of a number of parties was at fault. Comment, OSHA: Developing Outlines of Liability in Multi-Employer Situations, 62 Geo.L.J. 1483, 1496-98 (1974) [hereinafter OSHA Comment],
. Both subcontractors in this case have stipulated to the fact that they were not contractually precluded from performing the carpentry work required to abate the various violations. This is true despite the fact that at least Anning-Johnson was a member of the General Building Contractors Council of Elkhart, Indiana which had an agreement with Elkhart Carpenters Local No. 565 that only employees in the Carpenters bargaining unit shall perform all work covered by the Agreement. Art. II, § 4. The work covered by the agreement covered all general carpentry work and would seem to include the type of work that would have been required on the present project to avoid a citation. Art. X, § 2. Neither of the challenging subcontractors had any employees belonging to Carpenters Local 565 working on the project.
In any event to the extent that the subcontractors in this case were not contractually precluded from abating the hazards per their stipulations, this is an exception to the general situation and it is not significant in determining what Congress intended when they passed this Act.
. We are fully aware that both the “beyond the expertise” and the “craft jurisdiction” arguments have been rejected as defenses by the Commission. Charles S. Powell d/b/a Powell Electric, 3 OSAHRC 1056 (1973) (Review Commission Judge).
. Although it is not necessary for a decision in the present case, because the general contractor was cited for violations of the same standards as petitioners, we are not at all sure that a general contractor, who has no employees of his own exposed to a cited violation is necessarily excused from liability under the Act. But see Brennan v. Gilles & Cotting, Inc., 504 F.2d 1255 (4th Cir. 1974); see also OSHA Comment, supra note 18 at 1490, 1496.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer: |
songer_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 v. JOHNSON (two cases). SAME v. MEMOLO. SAME v. GREENES.
Nos. 9377-9380.
Circuit Court of Appeals, Third Circuit.
Argued June 16, 1947.
Decided Aug. 21, 1947.
Rehearing Denied Sept. 29, 1947.
Writ of Certiorari Denied Jan. 12, 1948.
See 68 S.Ct. 355.
Chas. J. Margiotti, of Pittsburgh, Pa. (Raymond P. Campbell, of Scranton, Pa., and Samuel Goldstein, and V. J. Rich, both of Pittsburgh, Pa., on the brief), for appellants Miller A. Johnson and Donald M. Johnson.
John Memolo and Stanley F. Coar, both of Scranton, Pa., for appellant John Memolo.
Thomas D. Caldwell of Harrisburg, Pa., and J. M. Gronfine, of Scranton, Pa. (Caldwell, Fox & Stoner, of Harrisburg, Pa., on the brief), for appellant Greenes.
Max H. Goldschein, Val Hammack, and John J. O’Brien, Sp. Assts. to Atty. Gen. (Theron L. Caudle, Asst. Atty. Gen., and William L. Caraway, Atty., Department of Justice, on the brief), for the United States.
Before MARIS, GOODRICH, and KALODNER, Circuit Judges.
GOODRICH, Circuit Judge.
Ten defendants were indicted on the charge of a conspiracy to obstruct the administration of justice. .The indictment was dismissed as to two of the defendants; one died prior to trial; one was granted a severance because of illness; two were found not guilty; the remaining four were convicted, sentenced, and-have appealed to this Court. While a separate appeal is docketed for each appellant • the majority oí the points raised are common to the cases of all and this opinion will dispose of all four appeals.
The theory of the Government’s case was that all the defendants were engaged in a continuing general conspiracy to debase the administration of justice. The conspiracy allegedly operated over a number of years and the prosecution sought to prove that the conspiracy existed by a showing of misconduct by the defendants with reference to specific pieces of litigation in the Middle District of Pennsylvania. The prosecution is not against any defendant for misconduct in a particular case however, nor is it for conspiring to do something illegal in an individual case. The theory is that a general conspiracy existed, which lasted over a period of time, and which is shown by what the parties did regarding the individual lawsuits. In some instances more than one of these cases was in the Court at one time. In others, only one such case was pending and sometimes there was a period during which the record is silent as to activities of the alleged conspirators.
We think there was sufficient evidence to support the Government’s contention of a continuing conspiracy. The statute of limitations, therefore, runs only from the time of the last overt act. United States v. Kissel, 1910, 218 U.S. 601, 31 S.Ct. 124, 54 L.Ed. 1168; Brown v. Elliott, 1912, 225 U.S. 392, 32 S.Ct. 812, 56 L.Ed. 1136; Culp v. United States, 8 Cir., 1942, 131 F.2d 93. The period of limitations for the prosecution on a conspiracy charge is three years. The indictment in this case was returned on September 11, 1945. The conspiracy existed over a period of fourteen years. Some of the acts necessarily occurred earlier than September 11, 1942, but these acts could be proved to show the existence and continuance of the conspiracy even though there could have been no prosecution for any substantive offense charged as an overt act. Shaw v. United States, 5 Cir., 1930, 41 F 2d 26. Appellants concede that this is correct but say that there are no overt acts proved which occurred within the period of the statute of limitations. If this is true, the point is of decisive importance. But an examination reveals certain acts which were committed after the crucial date. One was the sending of the $350.00 check by the defendant Greenes’ brother, at Greenes’ direction, to Donald Johnson. This occurred in October, 1942. Another was the filing by one Michael of the final account in the Central Forging case on July 9, 1943.
In this connection it is to be borne in mind that it is not necessary that an overt act in furtherance of conspiracy necessarily be a criminal act. Indeed, an innocent act by a third party, if caused by previous act or contact on the part of one of the conspirators, would be enough. Therefore, the filing of the trustee’s report above referred to, while itself a perfectly legal act, may be an overt act in furtherance of a conspiracy if such filing is part of the general plan of the conspirators with regard to the subject-matter in which the report is filed. Since Donald Johnson is to have the benefit of the Trial Judge’s instruction that nothing which occurred that was connected in any way with the Central Forging case should be considered in determining his guilt, Michael’s filing in the Central Forging case cannot be used against Donald Johnson. But the $350.00 check transaction is certainly evidence admissible against Donald Johnson and it was within the jury’s province to believe that such transaction had as its purpose the covering up of an illegal transaction rather than a payment of an attorney’s fee as Johnson testified. The Koppleman and Kizis incidents were overt acts which also occurred after September 11, 1942. These incidents, proved only by the admissions of Greenes and Memolo before the Grand Jury, are, of course, limited to those two defendants. But as to them they tend to show that the conspiracy still existed and do constitute overt acts.
The other major question involved in this appeal is whether there was sufficient evidence to sustain the verdict. The verdict necessarily involved a finding that the charge of a general continuing conspiracy was upheld and that the defendants found guilty were involved in it. The first point the appellants make in this connection is that the prosecution’s whole case falls to the ground because the person alleged to have been the most important figure in the conspiracy and to whom all the acts of the other defendants headed, was acquitted. This defendant was a former District Judge. At the trial the presiding Judge pointed out to the jury that “the heart and core of the indictment in this charge” is that this Judge entered into an understanding with others that he would be influenced in his administration of the law by other considerations than the law and the facts brought before him. Nevertheless, the jury, thus apprized of the importance of this one figure in the alleged conspiracy, acquitted him, but convicted others who are said by the defendants to be of lesser importance.
There are two answers to the argument that the fact of this acquittal causes the whole case to collapse. One is that the jury could reasonably have found that persons around the Judge were conspiring to obtain illegal advantages, but that it did not necessarily follow that the Judge, himself, was concerned in the transactions. Cf. Joyce v. United States, 8 Cir., 1946, 153 F.2d 364. Appellants’ contention that only court officials are capable of corruptly administering justice and that, therefore, persons cannot be guilty of a conspiracy to procure its corrupt administration unless the court official is corrupt is untenable. Cf. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The second point is that the action of the jury in convicting some alleged conspirators and acquitting others is not required to be consistent in order to be legal. If the defendants had been tried separately and separate juries had convicted some and acquitted others, the argument the defendants make on this point would be deprived of practically all its force. We know that one jury does not have to reach a result consistent with what some other jury has reached. Nor is the same jury required to be consistent in order to be effective. As Judge Learned Hand pointed out; “ * * * the appellants have no vested right in the punishment of their fellows, however guilty. * * * we have nothing to do with the rational enmeshing of the two findings; * * * each need only bear its own defects.” United States v. Austin-Bagley Corporation, 2 Cir., 1929, 31 F.2d 229, 233, certiorari denied 1929, 279 U.S. 863, 49 S.Ct. 479, 73 L.Ed. 1002. The case as to each one of the convicted defendants, therefore, must stand or fall according to its own strength or weakness, not because of what the jury did to some other defendant.
The case was complicated for the jury and for us by the fact that a great deal of important testimony, due to the various exclusionary rules of evidence, was not available against all of the defendants. Thus, some very damaging testimony of previous statements to a Grand Jury was available only as against defendants Memolo and Greenes. Again, defendant Donald Johnson had previously been acquitted of charges growing out of one of the particular incidents which was part of the Government’s case. He was entitled to such protection as the law gives him by the fact of that acquittal. His claim that he did not receive this protection will be considered later in the course of this opinion. The jury had to consider the testimony given in the course of a long trial and its different bearing upon different defendants. In this it was aided by the charge of the Trial Judge which, in this respect, was so clear that it has escaped criticism on the part of the appellants.
No desirable function is served by reiteration of testimony with regard to those defendants as to whom we conclude the evidence was sufficient to bring them into the general conspiracy charge. As to the appellants, Memolo and Greenes, the evidence is not only clear, but overwhelming. There is sufficient evidence in the record to per-mit the introduction of their admissions made before thfe Grand Jury; once these admissions are considered we virtually have a confession of guilt. As to the defendant Donald Johnson, there is not so strong a case because the damaging Grand Jury admissions were available only against those who made them, that is, the defendants Memolo and Greenes. Nevertheless, we think there is sufficient testimony so that the jury could have found, as they did, that the defendant Donald Johnson was included in the conspiracy.
With regard to the defendant Miller Johnson the case is much more difficult. There was testimony that indicated participation in one transaction among those charged to involve irregularities. It was to the effect that Miller Johnson approached one Townsend, who had been appointed co-receiver of the Williamsport Wire Rope Company and asked Townsend to pay half his monthly fees to Albert Johnson, Jr., and that the payments were so made. There are only two other incidents which appeared iii the evidence. One was told by Judge Johnson’s Secretary, to the effect that Miller Johnson came into the Judge’s office while the latter was examining a financial statement which the Secretary had prepared for the Judge. The latter is alleged to have said to his son that “We would have to account in some way for this money.” The third piece of testimony is to the effect that Miller Johnson and his .brother, Donald Johnson, had dinner with one Michael in May, 1944, On this occasion they were alleged to have told Michael that they had been subpoenaed and were being investigated and asked Michael whether he had been.
This is all which a careful combing of the record by Government counsel has produced concerning Miller Johnson. We very much desire to refrain from invading the province of a jury, whose business it is to find facts. Nevertheless, in this case, it is our obligation to state that the conclusion of-guilty in Miller Johnson’s case is not warranted by the testimony taken in the most favorable light for the Government. The participtaion in the Williamsport Wire Rope case, if the allegations were believed, has substance. But Miller Johnson was not being prosecuted for anything irregular he may have done in that case. He was being prosecuted for participation in a continuing conspiracy to obstruct justice and the learned Trial Judge told the jury that the fact that a defendant participated in one incident was not enough to prove him an actor in the play as a whole.
The second two incidents seem to us completely trivial and not to prove anything. This is a conclusion and not a reason. But if the conclusion is not supported by the recital of the incidents set out above, we do not think adding words as argument in support of our conclusion will give it any more weight.
The result of the above discussion is that we decide that the evidence was insufficient to ■ establish Miller Johnson’s participation in the conspiracy charged. Therefore, as to him, there must be a reversal with directions to enter a judgment of acquittal in his favor. Other reasons alleged by him as grounds for a new trial need not, in his case, be considered.
A number of other points have been raised as grounds for a new trial because the learned Trial Judge, it is argued, committed error. It is no criticism of counsel that we characterize some of them as trivial. It is counsel’s business to bring before the Court all points that can be made on behalf of his client and the Court’s business to consider them. We shall dispose of the various points briefly.
1. Several of the appellants complain about the charge of the Trial Judge concerning character evidence. On this point the Judge charged as follows: “The evidence of the good reputation of a defendant for honesty and being a law-abiding citizen is admissible in this case. It is substantive evidence and is entitled to weight in your determination. The Government is bound to prove the charge as against any defendant beyond a reasonable doubt, based on all the evidence. If you find that the charge has so been proved as against any defendant, giving weight to the substantive evidence of good reputation, you may find him guilty.
“In this connection, you may consider that persons who may have the best reputations in their communities have heretofore been known to have committed crime. While, therefore, it is your duty to weigh and consider such evidence, you are not bound to find the defendant innocent simply because he possessed a good reputation before indictment. If after considering all the evidence, including the evidence of good reputation, there is reasonable doubt as to the guilt of the'defendant existing in your minds, you may acquit him.”
We think this charge was correct and within the decision of this Court in United States v. Quick, 3 Cir., 1942, 128 F.2d 832 and the later reiteration of the doctrine of that case in United States v. Frischling, 3 Cir., 1947, 160 F.2d 370.
2. Complaint is made concerning the admission of certain parts of the Grand Jury testimony containing admissions by appellants Greenes and Memolo. It is said that all of the Grand Jury minutes should have been given to the jury if any were. No error was committed in this matter. What was given to the jury was consecutive testimony, not isolated excerpts of what someone said, pulled out of its context. There is no reason why the record should have been unduly cluttered with all the Grand Jury testimony. What was necessary and what the cases cited by the appellants require, is that statements made are given sufficiently in their context so that the jury may have an accurate notion of what was said and under what circumstances. Schoborg v. United States, 6 Cir., 1920, 264 F. 1; Jaquith v. Smith, 1942, 112 Vt. 353, 24 A.2d 341; Jones v. Krambeck, 1940, 228 Iowa 138, 290 N.W. 56. This principle was complied with.
3. Appellants maintain that the Trial Court erred in failing to declare a mistrial because of certain remarks made by attorney for the prosecution in his rebuttal. These remarks concerned a senior partner in a well-known New York law firm who had been a witness. The defense referred to this witness as a man of “fine qualities,” “an example of an honest man and good fellow,” and “a fine old gentleman.” The prosecution, on the other hand, referred to the witness as a man “who goes to Europe for his holidays,” and as “that conspirator,” and “criminal conspirator.” We make no comment for or against the witness. We do hold, however, that this interchange of evaluations concerning him was, at most, irrelevant entertainment for the jury and gives not the most remote basis for asking for a new trial.
4. Appellant Donald Johnson had been indicted and tried for alleged participation in one of the cases used by the prosecution in this case to help establish the general conspiracy. Donald Johnson was acquitted by the jury in that prosecution. He contended that he was entitled to the benefit of the rule of res judicata with regard to that acquittal and that the Trial Court ruled that the acquittal was of no consequence.
We think that this characterization of the attitude of the Trial Judge on the matter does not accurately state his position. He not only had the significance of the acquittal in mind, but he told the jury about it clearly and forcefully. He said in part: “But the acquittal in that case, since it was of a different conspiracy, cannot be used to require that you acquit Donald Johnson in this case. However, in order to be sure that the Court protects the defendent in this regard, and that you as jurors protect him in this regard, and to be sure that we shall not do what might be done in this case, try him twice on the same set of facts, which is one of the things that can’t be done under the Constitution of the United States, the Court charges you that you do not retry as to Donald Johnson the charges in the indictment, which is in evidence and which I have outlined to you, and specifically, that you shall not consider in this case as to him the overt acts which are mentioned in that Central Forging Company indictment. You will find them listed, there are five of them, and it includes the receiving of two thousand five hundred dollars. As I say, I don’t think that fact was squarely an issue in that case, but I want to be perfectly sure that neither you nor this Court retry any defendant on the ground that he has been acquitted. In that regard you pay no attention to those specific acts in the Central Forging case as regards Donald Johnson. However, all of the other matters in evidence are also as to him.”
Defendants have cited excerpts from decisions stating general principles of res judicata in the law. There is no dispute as to the correctness of the general propositions there stated. But we do not find them helpful in considering the bearing of the fact of the acquittal in the earlier case on the charge of the conspiracy here. We think what the Trial Court did was adequate to protect the rights of the defendant.
5. Appellants complain that the Judge did not charge in terms that the jury must find the date of the beginning of this conspiracy and the date of its end. Instead he said: “As to time, it is not necessary that the Government prove that the crime of conspiracy charged was committed exactly within the limits laid in the indictment, that is, February 1, 1934, to December 31, 1944. Nor is it necessary to prove that any of the overt acts were committed at the time in which they are specified in the indictment. It is sufficient if a conspiracy be found beyond a reasonable doubt that it continue in existence and force and validity for a period of time within three years of the finding of the indictment, which was the 11th day of September, 1945. If such a conspiracy be found and an overt act as charged in the indictment be found to have been done within three years of the finding of the indictment, that would be sufficient.”
We think the complaint which the defendants make of the charge is predicated upon the notion that the agreement in a conspiracy is something that is formal, as a contract to buy and sell land. Of course, it is not. In most of these conspiracy cases the agreement is a tacit one and is shown by what the parties do together, not by formal promises interchanged among them. United States v. Direct Sales Co., D.C.S.C. 1942, 44 F.Supp. 623, affirmed 1943, 63 S.Ct. 1265, 87 L.Ed. 1674, 319 U.S. 703; United States v. Holt, 7 Cir., 1940, 108 F.2d 365, certiorari denied 1940, 309 U.S. 672, 60 S.Ct. 616, 84 L.Ed. 1018; Babb v. United States, 8 Cir., 1929, 27 F.2d 80. Its end is shown either by the fact that they no longer act together or that they are unable to do so because the law has caught up with them. We find nothing amiss with regard to the Trial Judge’s charge here.
6. The appellant Memolo urged, at some length, that he was deprived of his constitutional rights by the examination of certain papers and books. He submitted these books to a Grand Jury before which he was summoned under subpoena. He did not, at the time, point to anything in them which created personal privilege in his behalf against self-incrimination. The privilege is personal and it is clear that unless the party, himself, is being called upon to incriminate himself the fact that someone else may be incriminated is not sufficient to exclude evidence. From the examination of these records things were learned which were made the basis of evidence against Memolo later. We agree with the Trial Judge, however, that there was no invasion of his constitutional rights.
7. Various other complaints are made by the defendants about the conduct of the trial. We think they are not well taken. The Trial Judge was strict, it is true, but he was fair. Certain instructions asked for were refused. But the Judge’s charge was a most thorough one and covers over a hundred pages in the Appendix before us. It deals with every phase of the case. The fact that certain other requests on matters not strictly relevant to the case were refused is not, we think, reversible error. It is not our notion of the appellate process that the Trial Judge’s charge should be sifted through bolting cloth to find possible error. The argument that his instructions usurped fact finding functions of the jury we think is without foundation.
Our conclusion is that as to three of the appellants there must be an affirmance. As to appellant, Miller Johnson, for reasons above stated, there must be a remand with directions to enter judgment of acquittal.
“If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $10,000, or imprisoned not more than two years, or both.” Act March 4, 1909, 35 Stat. 1096, 18 U.S.C.A. § 88.
“Whoever corruptly * * * shall endeavor to influence * * * any * * * officer in of of any court of the United States * * * in the discharge of his duty, or who corruptly * * * shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede, the due administration of justice therein, shall be fined not more than $1,000, or imprisoned not' more than one year, or both.” Act March 4, 1909, 35 Stat. 1113, 18 U.S.C.A. § 241.
United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42; United States v. Johnson et al., D.C.M.D.Pa. 1946, 65 F.Supp. 46.
United States v. Johnson et al., D. C.M.D.Pa.
Act Dee. 27, 1927, 45 Stat. 51, 18 U.S.O.A. § 582.
Braverman v. United States, 1942, 817 U.S. 49, 68 S.Ct. 99, 87 L.Ed. 23; Pierce v. United States, 1920, 252 U.S. 239, 40 S.Ct. 205, 64 L.Ed. 542; United States v. Rabinowich, 1915, 238 U.S. 78, 85 S.Ct. 682, 59 L.Ed. 1211.
Cf. Hyde v. United States, 1910, 35 App.D.C. 451, affirmed 1912, 225 U.S. 347, 32 S.Ct. 793, 56 L.Ed. 1114, Ann. Cas.l914A, 614; see 2 Wharton’s Evidence in Criminal Cases § 704 (1935).
He did, however, point out in another part of the charge that it would be possible to acquit the Judge and yet find the others guilty. The jury apparently followed this instruction.
The cases so holding are numerous. See e. g. United States v. Hare, 7 Cir., 1946, 153 F.2d 816, certiorari denied 1946, 328 U.S. 836, 66 S.Ct. 983, 90 L.Ed. 1612; Baxter v. United States, 6 Cir., 1930, 45 F.2d 487.
Much of the evidence introduced could be used only against some of the defendants. The Grand Jury testimony w'hich could ■ not be used against the Judge nor his sons indicates the agreement among all the defendants to obstruct justice. The jury wa.s carefully instructed not to use evidence against all defendants when that evidence was accepted only as to certain ones. It is, therefore, possible that the Judge’s participation to the juiy’s satisfaction could be established only by evidence which was incompetent as to him. Yet when the jury was considering the issue of his participation as to other defendants this evidence could be used. Defense counsel repeatedly asked for such instructions and directions to the jury. The jury apparently followed the instruction and excluded from their mind the evidence which was incompetent only as to one particular defendant when considering his guilt or innocence.
The Judge at the end of the series of questions which elicited the testimony limited its introduction to Donald Johnson on the ground that the meeting occurred after the investigation by the E.B.I. and therefore the admissions were binding solely on Donald Johnson. Thus we actually have only two occasions in which Miller Johnson’s name appears in the testimony.
“If you find that anyone of the defendants charged in this case was really only connected with one or two of the ' subsidiary conspiracies which might be alleged in connection with some facts which are brought into this case, and which, it is true might involve some of the same conspirators alleged and named here, you would not on that account find such defendant guilty in this case upon such evidence and such circumstances alone.” The fact that the Government only alleged participation in only one of the eleven cases was the ground for dismissal of the indictment as to Hoyt A. Moore and Charles Korman. United States v. Johnson et al., D.C.Md.Pa.1946, 65 F.Supp. 46; United States v. Johnson et al., D.C.M.D.Pa.1946, 65 F.Supp. 42.
The problem here involved is actually one of collateral estoppel rather th.ia res judicata. See Scott, Collateral Estoppel by Judgment, 56 Harv.LJtev. X (1942).
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: |
sc_respondent | 089 | 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.
MAC’S SHELL SERVICE, INC., et al. v. SHELL OIL PRODUCTS CO. LLC et al.
No. 08-240.
Argued January 19, 2010
Decided March 2, 2010
Auto, J., delivered the opinion for a unanimous Court.
Jeffrey A Lamken argued the cause for petitioners in No. 08-372 and respondents in No. 08-240. With him on the briefs were Robert K. Kry, Macey Reasoner Stokes, David M. Rodi, Paul D. Sanson, Vaughan Finn, Karen T. Staib, and James Cowan.
David A. O’Neil argued the cause for the United States as amicus curiae supporting petitioners in No. 08-372 and respondents in No. 08-240. With him on the brief were Solicitor General Kagan, Assistant Attorney General Varney, Deputy Solicitor General Stewart, Deputy Assistant Attorney General Weiser, Catherine G. O’Sullivan, and Nickolai G. Levin.
John F. Farraher, Jr., argued the cause for respondents in No. 08-372 and petitioners in No. 08-240. With him on the briefs were Gary R. Greenberg, Peter Alley, Louis J. Scerra, Justin F. Keith, Mark E. Solomons, and Laura Metcoff Klaus.
Together with No. 08-872, Shell Oil Products Co. LLC et al. v. Mac’s Shell Service, Inc., et al., also on certiorari to the same court.
Robert A Long, Jr., Jonathan L. Marcus, Harry M. Ng, and Janice K Raburn filed a brief for the American Petroleum Institute as amicus curiae.
Justice Alito
delivered the opinion of the Court.
The Petroleum Marketing Practices Act (PMPA or Act), 92 Stat. 322,15 U. S. C. § 2801 et seq., limits the circumstances in which petroleum franchisors may “terminate” a franchise or “fail to renew” a franchise relationship. §2802. In these consolidated cases, service-station franchisees brought suit under the Act, alleging that a franchisor had constructively “terminate!)!]” their franchises and had constructively “fail[ed] to renew” their franchise relationships. They asserted these claims even though the conduct of which they complained had not compelled any of them to abandon their franchises and even though they had been offered and had accepted renewal agreements. We hold that a franchisee cannot recover for constructive termination under the PMPA if the franchisor’s allegedly wrongful conduct did not compel the franchisee to abandon its franchise. Additionally, we conclude that a franchisee who signs and operates under a renewal agreement with a franchisor may not maintain a claim for constructive nonrenewal. We therefore reverse in part and affirm in part.
I
A
Petroleum refiners and distributors supply motor fuel to the public through service stations that often are operated by independent franchisees. In the typical franchise arrangement, the franchisor leases the service-station premises to the franchisee, grants the franchisee the right to use the franchisor’s trademark, and agrees to sell motor fuel to the franchisee for resale. Franchise agreements remain in effect for a stated term, after which the parties can opt to renew the franchise relationship by executing a new agreement.
Enacted in 1978, the PMPA was a response to widespread concern over increasing numbers of allegedly unfair franchise terminations and nonrenewals in the petroleum industry. See, e. g., Comment, 1980 Duke L. J. 522, 524-531. The Act establishes minimum federal standards governing the termination and nonrenewal of petroleum franchises. Under the Act's operative provisions, a franchisor may “terminate” a “franchise” during the term stated in the franchise agreement and may “fail to renew” a “franchise relationship” at the conclusion of that term only if the franchisor provides written notice and takes the action in question for a reason specifically recognized in the statute. 15 U. S. C. §§2802, 2804. Consistent with the typical franchise arrangement, a “franchise” is defined as “any contract” that authorizes a franchisee to use the franchisor’s trademark, as well as any associated agreement providing for the supply of motor fuel or authorizing the franchisee to occupy a service station owned by the franchisor. §2801(1). The Act defines a “franchise relationship” in more general terms: the parties’ “respective motor fuel marketing or distribution obligations and responsibilities” that result from the franchise arrangement. § 2801(2).
To enforce these provisions, a franchisee may bring suit in federal court against any franchisor that fails to comply with the Act’s restrictions on terminations and nonrenewals. See § 2805. Successful franchisees can benefit from a wide range of remedies, including compensatory and punitive damages, reasonable attorney’s fees and expert costs, and equitable relief. See §§ 2805(b), (d). The Act also requires district courts to grant preliminary injunctive relief to aggrieved franchisees, if there are “sufficiently serious questions going to the merits” that present “a fair ground for litigation” and the balance of hardships favors such relief. § 2805(b)(2).
B
This litigation involves a dispute between Shell Oil Company (Shell), a petroleum franchisor, and several Shell franchisees in Massachusetts. Pursuant to their franchise agreements with Shell, each franchisee was required to pay Shell monthly rent for use of the service-station premises. For many years, Shell offered the franchisees a rent subsidy that reduced the monthly rent by a set amount for every gallon of motor fuel a franchisee sold above a specified threshold. Shell renewed the subsidy annually through notices that “explicitly provided for cancellation [of the rent subsidy] with thirty days’ notice.” Marcoux v. Shell Oil Prods. Co., 524 F. 3d 33, 38 (CA1 2008). Nonetheless, Shell representatives made various oral representations to the franchisees “that the [s]ubsidy or something like it would always exist.” Ibid.
In 1998, Shell joined with two other oil companies to create Motiva Enterprises LLC (Motiva), a joint venture that combined the companies’ petroleum-marketing operations in the eastern United States. Id., at 37. Shell assigned to Motiva its rights and obligations under the relevant franchise agreements. Motiva, in turn, took two actions that led to this lawsuit. First, effective January 1, 2000, Motiva ended the volume-based rent subsidy, thus increasing the franchisees’ rent. Id., at 38. Second, as each franchise agreement expired, Motiva offered the franchisees new agreements that contained a different formula for calculating rent. For some (but not all) of the franchisees, annual rent was greater under the new formula.
C
In July 2001, 63 Shell franchisees (hereinafter dealers) filed suit against Shell and Motiva in Federal District Court. Their complaint alleged that Motiva’s discontinuation of the rent subsidy constituted a breach of contract under state law. Additionally, the dealers asserted two claims under the PMPA. First, they maintained that Shell and Motiva, by eliminating the rent subsidy, had “constructively terminated” their franchises in violation of the Act. Second, they claimed that Motiva’s offer of new franchise agreements that calculated rent using a different formula amounted to a “constructive nonrenewal” of their franchise relationships. 524 F. 3d, at 47.
After a 2-week trial involving eight of the dealers, the jury found against Shell and Motiva on all claims. Both before and after the jury’s verdict, Shell and Motiva moved for judgment as a matter of law on the dealers’ two PMPA claims. They argued that they could not be found liable for constructive termination under the Act because none of the dealers had abandoned their franchises in response to Motiva’s elimination of the rent subsidy — something Shell and Motiva said was a necessary element of any constructive termination claim. Similarly, they argued that the dealers’ constructive nonrenewal claims necessarily failed because seven of the eight dealers had signed and operated under renewal agreements with Motiva, and the eighth had sold his franchise prior to the expiration of his franchise agreement. The District Court denied these motions, and Shell and Motiva appealed.
The First Circuit affirmed in part and reversed in part. In affirming the judgment on the dealers’ constructive termination claims, the Court of Appeals held that a franchisee is not required to abandon its franchise to recover for constructive termination under the PMPA. See id., at 45-47. Instead, the court ruled, a simple breach of contract by an assignee of a franchise agreement can amount to constructive termination under the Act, so long as the breach resulted in “such a material change that it effectively ended the lease, even though the [franchisee] continued to operate [its franchise].” Id., at 46 (internal quotation marks omitted). Turning to the dealers’ constructive nonrenewal claims, the First Circuit agreed with Shell and Motiva that a franchisee cannot maintain a claim for unlawful nonrenewal under the PMPA “where the franchisee has signed and operates under the renewal agreement complained of.” Id., at 49. The court thus reversed the judgment on those claims.
We granted certiorari. 557 U. S. 903 (2009).
II
The first question we are asked to decide is whether a service-station franchisee may recover for constructive termination under the PMPA when the franchisor’s allegedly wrongful conduct did not force the franchisee to abandon its franchise. For the reasons that follow, we conclude that a necessary element of any constructive termination claim under the Act is that the franchisor’s conduct forced an end to the franchisee’s use of the franchisor’s trademark, purchase of the franchisor’s fuel, or occupation of the franchisor’s service station.
A
When given its ordinary meaning, the text of the PMPA prohibits only that franchisor conduct that has the effect of ending a franchise. As relevant here, the Act provides that “no franchisor . . . may ... terminate any franchise,” except for an enumerated reason and after providing written notice. 15 U. S. C. §§2802(aMb). The Act specifies that “[t]he term ‘termination’ includes cancellation,” §2801(17), but it does not further define the term “terminate” or the incorporated term “cancel.” We therefore give those terms their ordinary meanings. See Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995).
The word “terminate” ordinarily means “put an end to.” Webster’s New International Dictionary 2605 (2d ed. 1957); see also The Random House Dictionary of the English Language 1465 (1967). The term “cancel” carries a similar meaning: to “annul or destroy.” Webster’s, supra, at 389; see also Random House, supra, at 215 (“to make void; revoke; annul”). The object of the verb “terminate” is the noun “franchise,” a term the Act defines as “any contract” for the provision of one (or more) of the three elements of a typical petroleum franchise. §2801(1). Thus, when given its ordinary meaning, the Act is violated only if an agreement for the use of a trademark, purchase of motor fuel, or lease of a premises is “put [to] an end” or “annul[ed] or destroyed].” Conduct that does not force an end to the franchise, in contrast, is not prohibited by the Act’s plain terms.
The same conclusion follows even if Congress was using the words “terminate” and “cancel” in their technical, rather than ordinary, senses. When Congress enacted the PMPA, those terms had established meanings under the Uniform Commercial Code. Under both definitions, however, a “termination” or “cancellation” occurs only when a contracting party “puts an end to the contract.” U. C. C. §§2-106(3)-(4) (1972); see also U. C. C. §§ 2-106(3)-(4), 1 U. L. A. 695,695-696 (2004). Thus, a franchisee who continues operating a franchise — occupying the same premises, receiving the same fuel, and using the same trademark — has not had the franchise “ terminate [d]” in either the ordinary or technical sense of the word.
Requiring franchisees to abandon their franchises before claiming constructive termination is also consistent with the general understanding of the doctrine of constructive termination. As applied in analogous legal contexts — both now and at the time Congress enacted the PMPA — a plaintiff must actually sever a particular legal relationship in order to maintain a claim for constructive termination. For example, courts have long recognized a theory of constructive discharge in the field of employment law. See Pennsylvania State Police v. Suders, 542 U. S. 129, 141-143 (2004) (tracing the doctrine to the 1930’s). To recover for constructive discharge, however, an employee generally is required to quit his or her job. See 1B. Lindemann & P. Grossman, Employment Discrimination Law 1449 (4th ed. 2007); 3 L. Larson, Labor and Employment Law § 59.05[8] (2009); 2 EEOC Compliance Manual § 612.9(a) (2008); cf. Suders, supra, at 141-143, 148; Young v. Southwestern Savings & Loan Assn., 509 F. 2d 140, 144 (CA5 1975); Muller v. United States Steel Corp., 509 F. 2d 923, 929 (CA10 1975). Similarly, landlord-tenant law has long recognized the concept of constructive eviction. See Rapacz, Origin and Evolution of Constructive Eviction in the United States, 1 DePaul L. Rev. 69 (1951). The general rule under that doctrine is that a tenant must actually move out in order to claim constructive eviction. See id., at 75; Glendon, The Transformation of American Landlord-Tenant Law, 23 Boston College L. Rev. 503, 513-514 (1982); 1 H. Tiffany, Real Property §§141,143 (3d ed. 1939).
As generally understood in these and other contexts, a termination is deemed “constructive” because it is the plaintiff, rather than the defendant, who formally puts an end to the particular legal relationship — not because there is no end to the relationship at all. There is no reason why a different understanding should apply to constructive termination claims under the PMPA. At the time when it enacted the statute, Congress presumably was aware of how courts applied the doctrine of constructive termination in these analogous legal contexts. Cf. Fitzgerald v. Barnstable School Comm., 555 U. S. 246, 258-259 (2009). And in the absence of any contrary evidence, we think it reasonable to interpret the Act in a way that is consistent with this well-established body of law.
The Court of Appeals was of the view that analogizing to doctrines of constructive termination in other contexts was inappropriate because “sunk costs, optimism, and the habit of years might lead franchisees to try to make the new arrangements work, even when the terms have changed so materially as to make success impossible.” 524 F. 3d, at 46. But surely these same factors compel employees and tenants — no less than service-station franchisees — to try to make their changed arrangements work. Nonetheless, courts have long required plaintiffs asserting such claims to show an actual severance of the relevant legal relationship. We see no reason for a different rule here.
Additionally, allowing franchisees to obtain PMPA relief for conduct that does not force an end to a franchise would extend the reach of the Act much further than its text and structure suggest. Prior to 1978, the regulation of petroleum franchise agreements was largely a matter of state law. See Dersch Energies, Inc. v. Shell Oil Co., 314 F. 3d 846, 861 (CA7 2002); Comment, 32 Emory L. J. 273, 277-283 (1983). In enacting the PMPA, Congress did not regulate every aspect of the petroleum franchise relationship but instead federalized only the two parts of that relationship with which it was most concerned: the circumstances in which franchisors may terminate a franchise or decline to renew a franchise relationship. See 15 U. S. C. § 2802; Dersch Energies, supra, at 861-862. Congress left undisturbed state-law regulation of other types of disputes between petroleum franchisors and franchisees. See § 2806(a) (pre-empting only those state laws governing franchise terminations or nonrenewals).
The dealers would have us interpret the PMPA in a manner that ignores the Act’s limited scope. On their view, and in the view of the Court of Appeals, the PMPA prohibits, not just unlawful terminations and nonrenewals, but also certain serious breaches of contract that do not cause an end to the franchise. See Brief for Respondents in No. 08-372, pp. 28-35 (hereinafter Respondents’ Brief); 524 F. 3d, at 44-47. Reading the Act to prohibit simple breaches of contract, however, would be inconsistent with the Act’s limited purpose and would further expand federal law into a domain traditionally reserved for the States. Without a clearer indication that Congress intended to federalize such a broad swath of the law governing petroleum franchise agreements, we decline to adopt an interpretation of the Act that would have such sweeping consequences. See, e. g., United States v. Bass, 404 U. S. 336, 349 (1971).
Finally, important practical considerations inform our decision. Adopting the dealers’ reading of the PMPA would require us to articulate a standard for identifying those breaches of contract that should be treated as effectively ending a franchise, even though the franchisee in fact continues to use the franchisor’s trademark, purchase the franchisor’s fuel, and occupy the service-station premises. We think any such standard would be indeterminate and unworkable. How is a court to determine whether a breach is serious enough effectively to end a franchise when the franchisee is still willing and able to continue its operations? And how is a franchisor to know in advance which breaches a court will later determine to have been so serious? The dealers have not provided answers to these questions. Nor could they. Any standard for identifying when a simple breach of contract amounts to a PMPA termination, when all three statutory elements remain operational, simply evades coherent formulation.
B
The dealers suggest that this interpretation of the PMPA fails to provide franchisees with much-needed protection from unfair and coercive franchisor conduct that does not force an end to the franchise. That argument, however, ignores the fact that franchisees still have state-law remedies available to them. The pre-emptive scope of the PMPA is limited: The Act pre-empts only those state or local laws that govern the termination of petroleum franchises or the nonrenewal of petroleum franchise relationships. See 15 U. S. C. § 2806(a). Outside of those areas, therefore, franchisees can still rely on state-law remedies to address wrongful franchisor conduct that does not have the effect of ending the franchise. Indeed, that happened in this very lawsuit. The dealers argued in the District Court that Motiva’s elimination of the rent subsidy not only constructively terminated their franchises in violation of the PMPA but also amounted to a breach of contract under state law. The jury found in their favor on their state-law claims and awarded them almost $1.3 million in damages. See App. 376-379. Thus, the dealers’ own experience demonstrates that franchisees do not need a PMPA remedy to have meaningful protection from abusive franchisor conduct.
The dealers also charge that this interpretation of the PMPA cannot be correct because it renders other provisions of the Act meaningless. Respondents’ Brief 21-22, 24-25. While we agree that we normally should construe statutes “in a manner that gives effect to all of their provisions,” we believe our interpretation is faithful to this “well-established principle] of statutory interpretation.” United States ex rel. Eisenstein v. City of New York, 556 U. S. 928, 933 (2009).
To begin, the dealers insist that our reading of the term “terminate” will require franchisees to go out of business before they can obtain preliminary relief and thus will render useless the Act’s preliminary injunction mechanism. We disagree. To obtain a preliminary injunction, it is true, a franchisee must show, among other things, that “the franchise of which he is a party has been terminated.” 15 U. S. C. §2805(b)(2)(A)(i) (emphasis added). But that does not necessarily mean that a franchisee must go out of business before obtaining an injunction. For example, in cases of actual termination, the Act requires franchisors to provide franchisees with written notice of termination well in advance of the date on which the termination "takes effect.” § 2804(a). A franchisee that receives notice of termination “has been terminated” within the meaning of §2805(b)(2)(A)(i), even though the termination “takes effect” on a later date, just as an employee who receives notice of discharge can be accurately described as having been discharged, even though the employee’s last day at work may perhaps be weeks later. Thus, franchisees that receive notice of impending termination can invoke the protections of the Act’s preliminary injunction mechanism well before having to go out of business. Contrary to the dealers’ assertions, therefore, our interpretation of the Act gives meaningful effect to the PMPA’s preliminary injunction provisions.
Our interpretation also gives effect to the Act’s alternative statute-of-limitations accrual dates. The 1-year limitations period governing PMPA claims runs from the later of either (1) “the date of termination of the franchise” or (2) “the date the franchisor fails to comply with the requirements of” the Act. § 2805(a). Some violations of the PMPA, however, cannot occur until after a franchise has been terminated. See, e. g., § 2802(d)(1) (franchisor must share with a franchisee certain parts of a condemnation award when the termination was the result of a condemnation or taking); § 2802(d)(2) (franchisor must grant a franchisee a right of first refusal if the franchise was terminated due to the destruction of the service station and the station subsequently is rebuilt). The second accrual date listed in § 2805(a), therefore, shows only that the limitations period runs from the date of these types of post-termination violations. It does not suggest that Congress intended franchisees to maintain claims under the PMPA to redress franchisor conduct that does not force an end to the franchise.
* * *
We therefore hold that a necessary element of any constructive termination claim under the PMPA is that the complained-of conduct forced an end to the franchisee’s use of the franchisor’s trademark, purchase of the franchisor's fuel, or occupation of the franchisor’s service station. Because none of the dealers in this litigation abandoned any element of their franchise operations in response to Motiva's ehmination of the rent subsidy, they cannot maintain a constructive termination claim on the basis of that conduct.
III
The second question we are asked to decide is whether a franchisee who is offered and signs a renewal agreement can nonetheless maintain a claim for “constructive nonrenewal” under the PMPA. For reasons similar to those given above, we agree with the Court of Appeals that a franchisee that chooses to accept a renewal agreement cannot thereafter assert a claim for unlawful nonrenewal under the Act.
The plain text of the statute leaves no room for a franchisee to claim that a franchisor has unlawfully declined to renew a franchise relationship — constructively or otherwise — when the franchisee has in fact accepted a new franchise agreement. As relevant here, a franchisor violates the PMPA only when it “fail[s] to renew” a franchise relationship for a reason not provided for in the Act or after not providing the required notice. See 15 U. S. C. § 2802. The Act defines the term “fail to renew,” in turn, as a “failure to reinstate, continue, or extend the franchise relationship.” §2801(14). Thus, the threshold requirement of any unlawful nonrenewal action — a requirement the franchisee bears the burden of establishing, see § 2805(c) — is that the franchisor did not “reinstate, continue, or renew” the franchise relationship once a franchise agreement expired. But if a franchisee signs a renewal agreement, the franchisor clearly has “reinstated], continued], or extend[ed]” the franchise relationship. True, the franchisee might find some of the terms in the new agreement objectionable. But the Act prohibits only unlawful “fail[ures] to renew” a franchise relationship, not renewals of a franchise relationship on terms that are less than favorable to the franchisee. A franchisee that signs a renewal agreement, in short, cannot carry the threshold burden of showing a “nonrenewal of the franchise relationship,” § 2805(c), and thus necessarily cannot establish that the franchisor has violated the Act.
The dealers point out that several of them signed then-renewal agreements “under protest,” and they argue that they thereby explicitly preserved their ability to assert a claim for unlawful nonrenewal under the PMPA. That argument misunderstands the legal significance of signing a renewal agreement. Signing a renewal agreement does not constitute a waiver of a franchisee’s legal rights — something that signing “under protest” can sometimes help avoid. See, e. g., U. C. C. § 1-207, 1 U. L. A. 318. Instead, signing a renewal agreement negates the very possibility of a violation of the PMPA. When a franchisee signs a renewal agreement — even “under protest” — there has been no “fail[ure] to renew,” and thus the franchisee has no cause of action under the Act. See 15 U. S. C. § 2805(a).
The Act’s structure and purpose confirm this interpretation. By requiring franchisors to renew only the “franchise relationship,” as opposed to the same franchise agreement, see §2802; see also §2801(2), the PMPA contemplates that franchisors can respond to market demands by proposing new and different terms at the expiration of a franchise agreement. To that end, the Act authorizes franchisors to decline to renew a franchise relationship if the franchisee refuses to accept changes or additions that are proposed “in good faith and in the normal course of business” and that are not designed to convert the service station to direct operation by the franchisor. § 2802(b)(3)(A). Additionally, the Act creates a procedural mechanism for resolving disputes over the legality of proposed new terms. If the parties cannot agree, the franchisor has the option of either modifying the objectionable terms or pursuing nonrenewal, in which case it must provide the franchisee with written notice well in advance of the date when the nonrenewal takes effect. § 2804(a)(2). Once the franchisee receives notice of nonrenewal, it can seek a preliminary injunction under the Act’s relaxed injunctive standard, maintaining the status quo while a court determines the lawfulness of the proposed changes. See § 2805(b)(2); supra, at 188-189.
Allowing franchisees to pursue nonrenewal claims even after they have signed renewal agreements would undermine this procedural mechanism and, in the process, would frustrate franchisors’ ability to propose new terms. Under the dealers’ theory, franchisees have no incentive to object to burdensome new terms and seek a preliminary injunction if a franchisor pursues nonrenewal. Instead, a franchisee eould simply sign the new franchise agreement and decide later whether to sue under the PMPA. Franchisees would then have the option of either continuing to operate under the new agreement or, if the terms of the agreement later proved unfavorable, bringing suit under the PMPA alleging that the newly imposed terms are unlawful. And because the PMPA has a 1-year statute of limitations, see § 2805(a), franchisees would retain that option for the entire first year of a new franchise agreement. Accepting the dealers’ argument, therefore, would cast a cloud of uncertainty over all renewal agreements and could chill franchisors from proposing new terms in response to changing market conditions and consumer needs.
Finally, accepting the dealers’ argument would greatly expand the PMPA’s reach. Under the balance struck by the plain text of the statute, a franchisee faced with objectionable new terms must decide whether challenging those terms is worth risking the nonrenewal of the franchise relationship; if the franchisee rejects the terms and the franchisor seeks nonrenewal, the franchisee rims the risk that a court will ultimately determine that the proposed terms were lawful under the PMPA. See § 2802(b)(3)(A). That risk acts as a restraint, limiting the scope of franchisor liability under the Act to that with which Congress was most concerned: the imposition of arbitrary and unreasonable new terms on a franchisee that are designed to force an end to the petroleum franchise relationship. See, e: g., ibid.; Comment, 32 Emory L. J., at 277-283. Allowing franchisees both to sign a franchise agreement and to pursue a claim under the PMPA would eliminate that restraint and thus permit franchisees to challenge a much broader range of franchisor conduct — conduct to which the dealer might object but not consider so serious as to risk the nonrenewal of the franchise by mounting a legal challenge. As explained, the PMPA was enacted to address the narrow areas of franchise terminations and nonrenewals, not to govern every aspect of the petroleum franchise relationship. See supra, at 186; Derseh Energies, 314 F. 3d, at 861. We thus decline to adopt an interpretation that would expand the Act in such a fashion.
* * *
We hold that a franchisee who is offered and signs a renewed franchise agreement cannot maintain a claim for unlawful nonrenewal under the PMPA. We therefore affirm the judgment of the Court of Appeals with respect to the dealers' nonrenewal claims.
IV
The judgment of the Court of Appeals is reversed in part and affirmed in part. The cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
Courts sometimes describe these three types of agreements as the “statutory elements” of a petroleum franchise. See, e.g., Marcoux v. Shell Oil Prods. Co., 524 P. 3d 33, 37, n. 1 (CA1 2008).
Shell Oil Products Company LLC, another party in this litigation, is a wholly owned subsidiary of Shell Oil Company. See Brief for Petitioners in No. 08-372, p. iii.
The dealers also claimed that Shell and Motiva had violated the Uniform Commercial Code, as adopted in Massachusetts, by setting unreasonable prices under the open-price terms of their fuel-supply agreements with the dealers. The jury found in favor of the dealers on this claim, and the Court of Appeals affirmed. 524 F. 3d, at 51. That issue is not before us.
Because resolving this question is sufficient to decide these cases, we need not address Shell and Motiva's alternative argument that the PMPA does not embrace claims for constructive termination at all. Several Courts of Appeals have held that the Act does create a cause of action for constructive termination. See, e. g., 524 F. 3d, at 44-45 (case below); Clark v. BP Oil Co., 137 F. 3d 386, 390-391 (CA6 1998); Shukla v. BP Exploration & Oil, Inc., 115 F. 3d 849, 852-853 (CA11 1997). Others have reserved judgment on the issue. See, e. g., Abrams Shell v. Shell Oil Co., 343 F. 3d 482, 486-488 (CA5 2003); Portland 76 Auto/Truck Plaza, Inc. v. Union Oil Co. of Cal., 153 F. 3d 938, 948 (CA9 1998). We leave the question for another day.
The difference between a “termination” and a “cancellation” under the Uniform Commercial Code relates to how the contracting party justifies its ending of the contractual relationship. A “termination” occurs when “either party pursuant to a power created by agreement or law puts an end to the contract otherwise than for its breach.” U. C. C. §2-106(3) (1972). By contrast, a “cancellation” occurs when “either party puts an end to the contract for breach by the other.” § 2-106(4).
That difference might well explain why Congress felt compelled to specify that “cancellationjs],” no less than “termmation[s],” are covered by the Act. Prior to the PMPA, franchisors often leveraged their greater bargaining power to end franchise agreements for minor or technical breaches by the franchisee. See, e. g., Chestnut Hill Gulf, Inc. v. Cumberland Farms, Inc., 940 F. 2d 744, 746-747 (CA1 1991). By specifying that the Act eovers “cancellation[s]” as well as “termination[s],” Congress foreclosed any argument that a termination for breach is not covered by the Act because it is technically a “cancellation” rather than a “termination.”
Before Congress enacted the PMPA, at least one court, it is true, had held that a tenant asserting constructive eviction could obtain declaratory .relief without abandoning the premises — although the court observed that the tenant still would have to abandon the premises in order to obtain rescission. See Charles E. Burt, Inc. v. Seven Grand Corp., 340 Mass. 124, 129-130, 163 N. E. 2d 4, 7-8 (1959). But as even the dealers concede, see Tr. of Oral Arg. 37-38, the clear majority of authority required a tenant to leave the premises before claiming constructive eviction.
For similar reasons, the Second Restatement of Property is of no help to the dealers. Although it would allow a tenant to bring a constructive eviction claim without moving out, it noted that this proposition was “contrary to the present weight of judicial authority.” 1 Restatement (Second) of Property § 6.1, Reporter’s Note 1, p. 230 (1976).
Adopting such a broad reading of the PMPA also would have serious implications for run-of-the-mill franchise disputes., The Act requires courts to award attorney’s fees and expert-witness fees in any case in which a plaintiff recovers more than nominal damages. See 15 U. S. C. § 2805(d)(1)(C). The Act also permits punitive damages, § 2805(d)(1)(B), a remedy ordinarily not available in breach-of-contract actions, see Barnes v. Gorman, 536 U. S. 181, 187-188 (2002). Accepting the dealers’ reading of the statute, therefore, would turn everyday contract disputes into high-stakes affairs.
The First Circuit, for example, approved of a test that asks whether the breach resulted in “such a material change that it effectively ended the lease, even though the plaintiffs continued to operate [their franchises].” 524 F. 3d, at 46 (internal quotation marks omitted). That standard, it seems to us, does little more than restate the relevant question. While we do not decide whether the PMPA contemplates claims for constructive termination, we observe that the Court of Appeals’ unwillingness or inability to establish a more concrete standard underscores the difficulties and inherent contradictions involved in crafting a standard for finding a “termination” when no termination has in fact occurred.
The Government reads the Act to permit a dealer to seek preliminary injunctive relief if a franchisor announces its “intent to engage in conduct that would leave the franchisee no reasonable alternative but to abandon” one (or more) of the franchise elements. Brief for United States as Amicus Curiae 21. Because we do not decide whether the PMPA permits constructive termination claims at all, see n. 4, supra, we need not address this argument.
After Motiva withdrew the rent subsidy, seven of the dealers continued operating their franchises for the Ml terms of their franchise agreements and then signed new agreements that did not include the subsidy. See App. 161, 164, 316-321 (Mac’s Shell Service, Inc.); id., at 138-139, 314-315 (Cynthia Karol); id., at 154-155, 310-311 (Akmal, Inc.); id., at 185-186, 268-269 (Sid Prashad); id., at 190, 312-313 (J & M Avramidis, Inc.); id., at 179-182, 322-323 (RAM Corp., Inc.); id., at 148-153, 324-325 (John A. Sullivan). These dealers necessarily cannot establish that the elimination of the subsidy “terminate[d]’’ their franchises “prior to the conclusion of the term” stated in their franchise agreements. 15 U. S. C. § 2802(a)(1). Whether they ceased operations after their franchise agreements expired, moreover, is irrelevant. Indeed, in the Court of Appeals, the dealers abandoned any claim for constructive termination based on the subsequent franchise agreements. See Appellees’ Brief in No. 05-2770 etc. (CAI), p. 40, n. 29.
One dealer did leave his franchise before his franchise agreement expired. App. 204, 330-331 (Stephen Pisarczyk). But that dealer not only continued to operate for seven months after the subsidy ended, id., at 204, but also during that period entered into an agreement with Motiva to extend the term of his franchise agreement, id., at 330-331. Moreover, that dealer had been planning to leave the service-station business before Motiva eliminated the subsidy, and he never claimed that his decision to leave had anything to do with Motiva’s rent policies. See id., at 202-207.
As is true with respect to the dealers’ constructive termination claims, it is not necessary for us to decide in these cases whether the Act at all recognizes claims for “constructive nonrenewal.” We therefore do not express a view on that question.
The availability of preliminary injunctive relief under the Act also explains why the dealers are wrong to suggest that our holding will force franchisees “to choose between accepting an unlawful and coercive contract in order to stay in business [or] rejecting it and going out of business in order to preserve a cause of action.” Respondents’ Brief 51 (internal quotation marks omitted). A franchisee presented with “unlawful and coercive” terms'can simply reject those terms and, if the franchisor pursues nonrenewal, seek a preliminary injunction under the Act once the franchisee receives notice of nonrenewal. Indeed, the PMPA substantially relaxes the normal standard for obtaining preliminary injunctive relief, § 2805(b)(2)(A)(ii), thus allowing a franchisee with anything close to a meritorious claim to obtain relief.
It is possible, of course, that a franchisor could fail to renew a franchise relationship without providing the statutorily required notice. But in that circumstance, a franchisee would not only have a sure-fire claim for unlawful nonrenewal, see § 2802(b)(1)(A), but also presumably could seek a preliminary injunction forcing the franchisor to resume providing the franchise elements for the duration of the litigation.
It also is worth noting that, although the concept of “constructive nonrenewal” does not arise frequently in other areas of the law, the little authority on this concept supports our conclusion that a plaintiff who signs a new agreement cannot maintain a claim for constructive nonrenewal. See American Cas. Co. of Reading, Pa. v. Baker, 22 F. 3d 880, 892-894 (CA9 1994) (insured who accepts a successor insurance policy cannot maintain a claim for constructive nonrenewal of the previous policy); American Cas. Co. of Reading, Pa. v. Continisio, 17 F. 3d 62, 65-66 (CA3 1994) (same); Adams v. Greenwood, 10 F. 3d 568, 572 (CA8 1993) (same).
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: |
sc_respondent | 178 | 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.
NATIONAL LABOR RELATIONS BOARD v. RETAIL STORE EMPLOYEES UNION, LOCAL 1001, RETAIL CLERKS INTERNATIONAL ASSN., AFL-CIO, et al.
No. 79-672.
Argued April 15, 1980
Decided June 20, 1980
Powell, J., announced the Court’s judgment and delivered an opinion of the Court with respect to Parts I and II, in which Burger, C. J., and Stewart, Blackmun, Rehnquist, and Stevens, JJ., joined, and an opinion with respect to Part III, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined. Blackmun, J., post, p. 616, and Stevens, J., post, p. 618, filed opinions concurring in part and in the result. Brennan, J., filed a dissenting opinion, in which White and Marshall, JJ., joined, post, p. 619.
Norton J. Come argued the cause for petitioner. With him on the briefs were Solicitor General McCree and Linda Sher. Bruce Michael Cross filed a brief for the Safeco Title Insurance Co., respondent under this Court’s Rule 21 (4), in support of petitioner.
Laurence Gold argued the cause for respondent Retail Store Employees Union. With him on the brief were James H. Webster, J. Albert Woll, and George Kaufmann
Andrew M. Kramer, Adin C. Goldberg, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States of America as amicus curiae urging reversal.
Briefs of amici curiae urging affirmance were filed by Jack Greenberg and Eric Schnapper for the NAACP Legal Defense and Educational Fund, Inc.; and by David C. Vladeck and Alan B. Morrison for Public Citizen et al.
Me. Justice Powell
delivered the opinion of the Court.
The question is whether § 8 (b) (4) (ii) (B) of the National Labor Relations Act, 29 U. S. C. § 158 (b) (4) (ii) (B), forbids secondary picketing against a struck product when such picketing predictably encourages consumers to boycott a neutral party’s business.
I
Safeco Title Insurance Co. underwrites real estate title insurance in the State of Washington. It maintains close business relationships with five local title companies. The companies search land titles, perform escrow services, and sell title insurance. Over 90% of their gross incomes derives from the sale of Safeco insurance. Safeco has substahtial stockholdings in each title company, and at least one Safeco officer serves on each company’s board of directors. Safeco, however, has no control over the companies’ daily operations. It does not direct their personnel policies, and it never exchanges employees with them.
Local 1001 of the Retail Store Employees Union became the certified bargaining representative for certain Safeco employees in 1974. When contract negotiations between Safeco and the Union reached an impasse, the employees went on strike. The Union did not confine picketing to Safeco’s office in Seattle. The Union also picketed each of the five local title companies. The pickets carried signs declaring that Safeco had no contract with the Union, and they distributed handbills asking consumers to support the strike by canceling their Safeco policies.
Safeco and one of the title companies filed complaints with the National Labor Relations Board. They charged that the Union had engaged in an unfair labor practice by picketing in order to promote a secondary boycott against the title companies. The Board agreed. 226 N. L. R. B. 754 (1976). It found the title companies to be neutral in the dispute between Safeco and the Union. Id., at 756. The Board then concluded that the Union’s picketing violated § 8 (b) (4) (ii) (B) of the National Labor Relations Act. The Union had directed its appeal against Safeco insurance policies. But since the sale of those policies accounted for substantially all of the title companies’ business, the Board found that the Union’s action was “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. R. B., at 757. The Board therefore rejected the Union’s reliance upon NLRB v. Fruit Packers, 377 U. S. 58 (1964) (Tree Fruits), which held that §8 (b)(4)(ii)(B) allows secondary picketing against a struck product. It ordered the Union to cease picketing and to take limited corrective action.
The United States Court of Appeals for the District of Columbia Circuit set aside the Board’s order. 194 U. S. App. D. C. 400, 600 F. 2d 280 (1979) (en banc). The court agreed that the title companies were neutral parties entitled to the benefit of § 8 (b) (4) (ii) (B). 201 U. S. App. D. C. 147, 151, 627 F. 2d 1133, 1137 (1979). It held, however, that Tree Fruits leaves neutrals susceptible to whatever consequences may flow from secondary picketing against the consumption of products produced by an employer involved in a labor dispute. Even when product picketing predictably encourages consumers to boycott a neutral altogether, the court concluded, § 8 (b) (4) (ii) (B) provides no protection. 201 U. S. App. D. C., at 159-160, 627 F. 2d, at 1145-1146.
We granted a writ of certiorari to consider whether the Court of Appeals correctly understood § 8 (b) (4) (ii) (B) as interpreted in Tree Fruits. 444 U. S. 1011 (1980). Having concluded that the Court of Appeals misapplied the statute, we now reverse and remand for enforcement of the Board’s order.
II
Section 8 (b)(4) (ii) (B) of the National Labor Relations Act makes it “an unfair labor practice for a labor organization ... to threaten, coerce, or restrain” a person not party to a labor dispute “where ... an object thereof is . . . forcing or requiring [him] to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer ... or to cease doing business with any other person. . . ,”
In Tree Fruits, the Court held that § 8 (b) (4) (ii) (B) does not prohibit all peaceful picketing at secondary sites. There, a union striking certain Washington fruit packers picketed large supermarkets in order to persuade consumers not to buy Washington apples. Concerned that a broad ban against such picketing might run afoul of the First Amendment, the Court found the statute directed to an “ ‘isolated evil.’ ” The evil was use of secondary picketing “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Congress intended to protect secondary parties from pressures that might embroil them in the labor disputes of others, but not to shield them from business losses caused by a campaign that successfully persuades consumers “to boycott the primary employer’s goods.” Ibid. Thus, the Court drew a distinction between picketing “to shut off all trade with the secondary employer unless he aids the union in its dispute with the primary employer” and picketing that “only persuades his customers not to buy the struck product.” Id., at 70. The picketing in that case, which “merely follow [ed] the struck product,” did not “ ‘threaten, coerce, or restrain’ ” the secondary party within the meaning of § 8 (b)(4) (ii)(B). 377 U. S., at 72.
Although Tree Fruits suggested that secondary picketing against a struck product and secondary picketing against a neutral party were “poles apart,” id., at 70, the courts soon discovered that product picketing could have the same effect as an illegal secondary boycott. In Hoffman ex rel. NLRB v. Cement Masons Local 337, 468 F. 2d 1187 (CA9 1972), cert. denied, 411 U. S. 986 (1973), for example, a union embroiled with a general contractor picketed the housing subdivision that he had constructed for a real estate developer. Pickets sought to persuade prospective purchasers not to buy the contractor’s houses. The picketing was held illegal because purchasers “could reasonably expect that they were being asked not to transact any business whatsoever” with the neutral developer. 468 F. 2d, at 1192. “[W]hen a union’s interest in picketing a primary employer at a ‘one product’ site [directly conflicts] with the need to protect . . . neutral employers from the labor disputes of others,” Congress has determined that the neutrals’ interests should prevail. Id., at 1191.
Cement Masons highlights the critical difference between the picketing in this case and the picketing at issue in Tree Fruits. The product picketed in Tree Fruits was but one item among the many that made up the retailer’s trade. 377 U. S., at 60. If the appeal against such a product succeeds, the Court observed, it simply induces the neutral retailer to reduce his orders for the product or “to drop the item as a poor seller.” Id., at 73. The decline in sales attributable to consumer rejection of the struck product puts pressure upon the primary employer, and the marginal injury to the neutral retailer is purely incidental to the product boycott. The neutral therefore has little reason to become involved in the labor dispute. In this case, on the other hand, the title companies sell only the primary employer’s product and perform the services associated with it. Secondary picketing against consumption of the primary product leaves responsive consumers no realistic option other than to boycott the title companies altogether. If the appeal succeeds, each company “stops buying the struck product, not because of a falling demand, but in response to pressure designed to inflict injury on [its] business generally.” Thus, “the union does more than merely follow the struck product; it creates a separate dispute with the secondary employer.” Id., at 72. Such an expansion of labor discord was one of the evils that Congress intended § 8 (b) (4) (ii) (B) to prevent. 377 U. S., at 63-64.
As long as secondary picketing only discourages consumption of a struck product, incidental injury to the neutral is a natural consequence of an effective primary boycott. See id., at 72-73. But the Union’s secondary appeal against the central product sold by the title companies in this case is “reasonably calculated to induce customers not to patronize the neutral parties at all.” 226 N. L. It. B., at 757. The resulting injury to their businesses is distinctly different from the injury that the Court considered in Tree Fruits Product picketing that reasonably can be expected to threaten neutral parties with ruin or substantial loss simply does not square with the language or the purpose of § 8 (b)(4)(ii)(B). Since successful secondary picketing would put the title companies to a choice between their survival and the severance of their ties with Safeco, the picketing plainly violates the statutory ban on the coercion of neutrals with the object of “forcing or requiring [them] to cease . . . dealing in the [primary] produc[t] ... or to cease doing business with” the primary employer. § 8 (b) (4) (ii) (B); see Tree Fruits, 377 U. S., at 68.
Ill
The Court of Appeals suggested that application of § 8 (b) (4)(ii)(B) to the picketing in this case might violate the First Amendment. 201 U. S. App. D. C., at 161, 627 F. 2d, at 1147. We think not. Although the Court recognized in Tree Fruits that the Constitution might not permit “a broad ban against peaceful picketing,” the Court left no doubt that Congress may prohibit secondary picketing calculated “to persuade the customers of the secondary employer to cease trading with him in order to force him to cease dealing with, or to put pressure upon, the primary employer.” 377 U. S., at 63. Such picketing spreads labor discord by coercing a neutral party to join the fray. In Electrical Workers v. NLRB, 341 U. S. 694, 705 (1951), this Court expressly held that a prohibition on “picketing in furtherance of [such] unlawful objectives” did not offend the First Amendment. See American Radio Assn. v. Mobile S.S. Assn., 419 U. S. 215, 229-231 (1974); Teamsters v. Vogt, Inc., 354 U. S. 284 (1957). We perceive no reason to depart from that well-established understanding. As applied to picketing that predictably encourages consumers to boycott a secondary business, § 8 (b) (4) (ii) (B) imposes no impermissible restrictions upon constitutionally protected speech.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded with directions to enforce the National Labor Relations Board’s order.
So ordered.
Part III of the opinion is joined only by The Chief Justice, Mr. Justice Stewart, and Mr. Justice RehNQUist.
The title companies are Land Title Co. of Clark County, Land Title Co. of Cowlitz County, Land Title Co. of Kitsap County, Land Title Co. of Pierce County, and Land Title Co. of Snohomish County.
The picket signs read:
“SAFECO NONUNION DOES NOT EMPLOY MEMBERS OF OR HAVE CONTRACT WITH RETAIL STORE EMPLOYEES LOCAL 1001.”
The distribution of handbills has not been an issue in this case. Section 8 (b) (4) of the National Labor Relations Act does not prohibit “publicity, other than picketing, for the purpose of truthfully advising the public . . . that a product or products are produced by an employer with whom the labor organization has a primary dispute and are distributed by another employer. . . .” 61 Stat. 141, as amended, 73 Stat. 543, 29 U. S. C. § 158 (b) (4).
The parties waived intermediate proceedings before an administrative law judge and submitted the stipulated facts directly to the Board. 226 N. L. R. B., at 754.
The Union has not challenged the Court of Appeals’ determination that the title companies are neutral, secondary parties.
61 Stat. 141, as amended, 73 Stat. 542, 29 U. S. C. § 158 (b) (4) (ii) (B).
The so-called merged product cases also involve situations where an attempt to follow the struck product inevitably encourages an illegal boycott of the neutral party. See K & K Construction Co. v. NLRB, 592 F. 2d 1228, 1231-1234 (CA3 1979); American Bread Co. v. NLRB, 411 F. 2d 147, 154-155 (CA6 1969); Honolulu Typographical Union No. 37 v. NLRB, 131 U. S. App. D. C. 1, 3-4, 401 F. 2d 952, 954-955 (1968) ; Note, Consumer Picketing and the Single-Product Secondary Employer, 47 U. Chi. L. Rev. 112, 132-136 (1979).
See Local United Steelworkers (Dow Chemical Co.), 211 N. L. R. B. 649, 651-652 (1974), enf. denied, 173 U. S. App. D. C. 299, 524 F. 2d 853 (1975), vacated and remanded, 429 U. S. 807 (1976), complaint dism’d, 229 N. L. R. B. 302 (1977).
We do not disagree with Mr. Justice BreNnaüst’s dissenting view that successful secondary product picketing may have no greater effect upon a neutral than a legal primary boycott. Post, at 623. But when the neutral’s business depends upon the products of a particular primary employer, secondary product picketing can produce injury almost identical to the harm resulting from an illegal secondary boycott. See generally Duerr, Developing a Standard for Secondary Consumer Picketing, 26 Lab. L. J. 585 (1975). Congress intended § 8 (b) (4) (ii) (B) to protect neutrals from that type of coercion. Mr. Justice BrennaN’s view that the legality of secondary picketing should depend upon whether the pickets “urge only a boycott of the primary employer’s product,” post, at 622, would provide little or no protection. No well-advised union would allow secondary pickets to carry placards urging anything other than a product boycott. Section 8 (b) (4) (ii) (B) cannot bear a construction so inconsistent with the congressional intention to prevent neutrals from becoming innocent victims in contests between others.
The Union is responsible for the “foreseeable consequences” of its conduct. NLRB v. Operating Engineers, 400 U. S. 297, 304-305 (1971); see Radio Officers v. NLRB, 347 U. S. 17, 45 (1954). See also NLRB v. Denver Building Council, 341 U. S. 675, 689 (1951).
Representative Griffin, a sponsor of the Landrum-Griffin amendments that brought § 8 (b) (4) (ii) (B) into law, emphasized to the Congress that the statute would outlaw secondary picketing likely to coerce the neutral party. “If the purpose of the picketing,” he said, “is to coerce or to restrain the employer of that second establishment, to get him not to do business with the manufacturer — then such a boycott could be stopped.” 105 Cong. Rec. 15673 (1959), reprinted in 2 National Labor Relations Board, Legislative History of the Labor-Management Reporting and Disclosure Act of 1959, p. 1615 (1959).
Senator McClellan, who offered a bill quite similar to the statute actually adopted, noted that secondary picketing is particularly likely to coerce neutrals who have based their businesses upon one manufacturer’s products. He pointed out:
“[W]e have cases of merchants who for 20 years, 10 years, or for a long period of time, may have been handling a particular brand of product. A merchant may have built his business around the product, such as the John Deere plows or some kind of machinery from some other company. The merchant may have built up his trade entirely on that product.” 105 Cong. Rec. 6667 (1959), reprinted in 2 Legislative History, supra, at 1194.
The picketing in Tree Fruits and the picketing in this case are relatively extreme examples of the spectrum of conduct that the Board and the courts will encounter in complaints charging violations of § 8,(b) (4) (ii) (B). If secondary picketing were directed against a product representing a major portion of a neutral’s business, but significantly less than that represented by a single dominant product, neither Tree Fruits nor today’s decision necessarily would control. The critical question would be whether, by encouraging customers to reject the struck product, the secondary appeal is reasonably likely to threaten the neutral party with ruin or substantial loss. Resolution of the question in each ease will be entrusted to the Board’s expertise.
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_district | H | What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Antranik MALAJALIAN, Plaintiff, Appellant, v. UNITED STATES of America, Appellee.
No. 74-1128.
United States Court of Appeals, First Circuit.
Argued Sept. 10, 1974.
Decided Oct. 22, 1974.
Henry A. Folien, Jr., Watertown, Mass., for plaintiff, appellant.
Alfred S. Lombardi, Atty., Tax Div., Dept, of Justice, with whom Scott P. Crampton, Asst. Atty. Gen., James N. Gabriel, U. S. Atty., William A. Brown, Asst. U. S. Atty., Meyer Rothwacks, and Michael L. Paup, Attys., Tax Div., Dept, of Justice, were on brief, for appellee.
Before McENTEE and CAMPBELL, Circuit Judges, and MOORE, Senior Circuit Judge.
Of the Second Circuit sitting by designation.
McENTEE, Circuit Judge.
Taxpayer appeals from an order of the district court dismissing his complaint for improper venue. We affirm.
Taxpayer Malajalian, a resident of Beirut, Lebanon, entered the United States under a business visa on April 22, 1972, and remained as a non-resident alien until June 22, 1972, at which time he left this country. On June 20, as the taxpayer was preparing to depart for London from Logan Airport in Boston, a routine inspection of his baggage disclosed $147,595 in bills of small denomination. Notified of the discovery of this treasure-cache, the Internal Revenue Service terminated taxpayer’s tax year under § 6851 of the Internal Revenue Code and made two jeopardy assessments against him totaling $131,331. When this amount was levied upon and seized out of taxpayer’s funds, still in the possession of the Customs Bureau, he filed a tax return declaring that he had no taxable income for his truncated 1972 tax year and requested a refund of the amount seized. After more than six months had passed without action on the claim by the Commissioner, taxpayer instituted suit for refund in the United States District Court for the District of Massachusetts. The court granted the government’s motion to dismiss on grounds of improper venue, and this appeal followed.
Section 1346 of the Judicial Code endows the district courts with jurisdiction, concurrent with the Court of Claims, over civil actions against the United States for the recovery of internal revenue taxes alleged to have been erroneously assessed and collected. Section 1402(a)(1) restricts venue in actions against the United States to the district where the plaintiff resides. Since taxpayer, an alien, concededly does not reside in Massachusetts, he cannot lay venue there if § 1402(a)(1) is read ■literally.
Recently, in a patent infringement suit against an alien, Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U.S. 706, 710 & n. 8, 92 S.Ct. 1936, 1939, 32 L.Ed.2d 428 (1972), the Supreme Court reiterated its longstanding view that “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” The Court reasoned that “venue provisions are designed, not to keep suits out of the federal courts, but merely to allocate suits to the most appropriate or convenient federal forum.” However, it was easier for the Court in Brunette to avoid a venue gap than it is in the instant case. First, Brunette involved construction of conflicting statutory provisions rather than the necessity to read language into a single governing provision. Second, the traditional judicial view that suits against aliens are outside the scope of venue laws does not generally carry over to suits by aliens.
Taxpayer can derive little consolation from the holding of United States v. New York & O.S.S. Co., 216 F. 61 (2d Cir. 1914), an admirality suit under the Tucker Act in which a non-resident alien was permitted to sue upon an express finding that respondent had waived its venue objection. See also Choremi v. United States, 28 F.2d 913 (D.Mass. 1928). The court declined to venture an opinion as to the result that would obtain if, as in the instant case, there had been no waiver.
Taxpayer next cites a series of cases decided under the Suits in Admiralty Act, 46 U.S.C. §§ 741-752 (1970), which has its own venue provision permitting suits against the United States in the district where libelants reside or have their principal place of business or in which the vessel or cargo charged with liability may be found. 46 U.S.C. § 742 (1970). Although there is at least one case to the contrary, The Elmac, 285 F. 665 (S.D.N.Y.1922), the courts construing this provision have generally allowed non-resident aliens to bring suit in any district on grounds that otherwise they would have no forum in which to sue. See McGhee v. United States, 154 F.2d 101 (2d Cir. 1946); Metaxas v. United States, 68 F.Supp. 667 (S.D.Cal.1946); Middleton & Co. v. United States, 273 F. 199 (E.D.S.C.1921); Kulukundis v. United States, 132 F.Supp. 477, 132 Ct.Cl. 644 (1955). Apart from the fact that these decisions are predicated upon a special statutory provision, they are in-apposite here because the taxpayer, unlike the claimants in the admiralty actions, may repair to the Court of Claims to press his suit, an alternative forum in which his alienage will pose no obstacle.
Legislative history of relevant statutory provisions in fact provides some evidence that Congress was aware of the venue gap existing as to tax refund suits by aliens against the United States in the district courts. Prior to 1966, an alien individual had two possible avenues open for a tax refund suit, without regard to the forum at issue here. An alien before 1966 could sue for a tax refund in the Court of Claims if the country of which he was a citizen permitted itself to be sued by citizens of the United States having claims against it. 28 U.S.C. § 2502 (1970). But even without reciprocity an alien could sue the collecting director in the district court where the director resided, since suit against the collecting director is not, at least in form, a suit against the United States. See H.R.Rep. No. 1915, 89th Cong., 2d Sess. 6 (1966). In 1966 Congress abolished refund suits against collecting officers. Act of Nov. 2, 1966, Pub.L. 89-713, § 3(a), 80 Stat. 1108, codified at 26 U.S.C. § 7422(f) (1970). By thus restricting the taxpayer to his judicial district of residence (i. e., in suits against the United States), Congress sought to prevent forum-shopping by taxpayers looking to the district where the tax collector resided. H.R. Rep. 1915, 89th Cong., 2d Sess. 6 (1966). Congress apparently recognized the effect this abolition would have on aliens:
“. . .in order to preserve the right of aliens and foreign corporations to bring tax refund suits, the bill also modifies present law by permitting aliens and foreign corporations to bring such suits directly against the United States irrespective of whether the foreign country of citizenship or incorporation allows itself to be sued by U. S. citizens or corporations.” Id.
Implicit in this statement is the awareness and conclusion that an alien not “residing” in any judicial district could not sue the United States in any district court. In the view of the writers of the congressional reports, the 1966 legislation was enacted “only because other adequate remedies either are already available, or are being made available by this bill, for the recovery of illegal collections.” Id. See also S.Rep No. 1625, 89th Cong., 2d Sess. 6-7 (1966-2 Cum. Bull. 803, 807-08).
The taxpayer also adverts to several statutory provisions to support his position. Section 1402(a) (2) of the Judicial Code accords non-resident alien corporate taxpayers the privilege of bringing suit in the district where the tax return was filed. Nowhere in the meager legislative history of this provision do we find the slightest hint that Congress intended its benefits to extend to individuals. S.Rep. No. 2445, 85th Cong., 2d Sess., in U.S. Code Cong. & Admin.News 5263, 5265. In fact it was adopted in response to conflicting decisions in the federal courts concerning the residence of corporations. The legislators did recognize that the bill would cover the apparent problem of lack of venue for foreign corporations. H.R.Rep. No. 1715, 85th Cong., 2d Sess. 2 (1958); S.Rep. No. 2445, supra, citing Argonaut Navigation Co. v. United States, 142 F.Supp. 489 (S.D.N.Y.1956). Nor is venue proper in the district court for an alien, individual or corporate, in any other of the various types of suits brought under the Tucker Act. 7B Moore, Federal Practice § 1402, at JC 598.1 (2d ed. 1974).
Finally, the taxpayer cites language in the legislative history of an amendment to the Judicial Code eliminating the $10,000 ceiling on tax refund suits in the district courts, Act of July 30, 1954, Pub.L. No. 83-559, ch. 648, § 2(a), 68 Stat. 589, codified in 28 U.S.C. § 2402 (1970), to the effect that all taxpayers should have the benefit of a local remedy regardless of their financial status. H.R. Rep. No. 659, 83d Cong., 2d Sess., in U.S. Code Cong. & Admin.News 2716, 2717. Context indicates that the innocuous use of the word “all” in a committee report was not intended to effect the major revision of the law which taxpayer seeks; neither the amendment nor the report makes any reference to alienage.
The district court’s order dismissing the complaint is affirmed.
I. The taxpayer correctly asseverates that if forced to resort to his remedy in the Court of Claims he will no longer be entitled to a jury trial as he would in the district court under 28 U.S.C. § 2402 (1970). His contention that he must therefore be afforded access to the district court to assert his jury trial “right” overlooks the fact that the constitutional jury trial guarantee is inapplicable in tax refund suits. Wickwire v. Reinecke, 275 U.S. 101, 105-106, 48 S.Ct. 43, 71 L.Ed. 840 (1927). While an alien who must sue in the Gourt of Claims lacks the choice between forums available to a resident and may incur additional time and travel costs, this slight unequal treatment does not amount to a convincing Equal Protection claim in view of Congress’ apparent desire to have all alien suits brought in one court, the Court of Claims.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer: |
songer_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 in suits against management, for union, individual worker, or government in suit against management; in government enforcement of labor laws, for the federal government or the validity of federal regulations; in Executive branch vs union or workers, for executive branch; in worker vs union (non-civil rights), for union; in conflicts between rival union, for union which opposed by management and "not ascertained" if neither union supported by management or if unclear; in injured workers or consumers vs management, against management; in other labor issues, for economic underdog if no civil rights issue is present; for support of person claiming denial of civil rights. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
In the Matter of the Arbitration Between LOCAL ONE AMALGAMATED LITHOGRAPHERS OF AMERICA affiliated with International Typographical Union AFL-CIO, Petitioner-Appellee, v. STEARNS & BEALE, INC., Respondent-Appellant.
No. 1355, Docket 86-7072.
United States Court of Appeals, Second Circuit.
Argued May 21, 1986.
Decided Feb. 23, 1987.
Michael F. O’Toole, New York City (Robinson, Silverman, Pearce, Aronsohn & Berman) for petitioner-appellee.
William G. O’Donnell, New York City (O’Donnell, Fox, Gartner & Sobolewski, P.C.) for respondent-appellant.
Before OAKES, MESKILL and MAHONEY, Circuit Judges.
MAHONEY, Circuit Judge:
This appeal presents the question of what is required to bind a non-signatory company to a union contract signed by another company. In an arbitration proceeding between Stearns & Beale, Inc. (“S & B”) and Local One, Amalgamated Lithographers of America (“Local One”) the arbitrator decided that a non-signatory company which shared a common parent corporation with S & B, AAA International Printing Company (“AAA”), was bound by the S & B contract because the two companies were a “single employer.” The arbitrator accordingly directed (in effect) that neither S & B nor AAA assign any lithographic production work to nonunion AAA employees. Local One then brought this action against S & B in the Southern District of New York to confirm the arbitration award; upon motion of Local One, summary judgment was granted and the award confirmed, 632 F.Supp. 167 (1985). We reverse and remand.
BACKGROUND
Originally S & B and AAA were separate established companies. After a falling out between the two founders of AAA, Ronald Toler and John Racanelli, Toler bought out Racanelli’s interest in the firm. Toler then sought out another company with which to associate.
At the same time, S & B was suffering business reversals, and its president and sole stockholder, Milton Kahn, was therefore receptive to Toler’s overtures.
In 1981, S & B and AAA became wholly owned subsidiaries of a single parent holding company, Toler-Kahn, Inc. Toler and Kahn each received 50 percent of the Toler-Kahn stock; Toler-Kahn in turn owned S & B and AAA. At that time, AAA moved to the same location as S & B, at 150 Varick Street in New York, New York.
Between April 1981 and February 1982, AAA and S & B shared work space on the fifth floor at 150 Varick Street. In February 1982, S & B sublet work space from an adjacent tenant and installed a wall between its space and the new space, into which AAA moved. Several common managerial offices are located between S & B and AAA, however, with a common telephone number for the two companies, and one AAA employee operates equipment in the S & B area because the machine’s operation requires a water supply, which is located near the men’s bathroom within the S & B area.
S & B produces high quality color processed lithographic work such as glossy advertisements, catalogues and brochures. S & B has eight lithographic employees, who are employed in the job categories of pressmen, operators, and tenders. S & B’s preparatory work is done by outside companies. Preparatory work consists of photographically separating the original colors into the four primary colors, then plate-making. S & B then uses the plates for printing. In the printing process, the four primary colors are blended to reconstruct the colors of the original so that the finished product looks like a photograph. Making the press ready by blending the colors and producing the finished print is a long, involved process during which the customer generally checks the proofs and approves the final print. The S & B presses produce glossy prints of up to forty inches.
AAA is a “letter shop,” which is a high output, low quality printing operation. AAA’s lithographic employees include three pressmen, two multi-lith operators, and one lithographic preparation employee. While the AAA presses can produce four color work, this work is done on uncoated stock and the colors of the output are not blended to appear like a photograph, but rather appear as blocks of colors. AAA does reproduction work on flat sheet or roll-fed paper. Its presses can produce output of up to seventeen inches. The output of AAA takes significantly less time to make ready and produce than the S & B output.
The companies in operation have maintained their separate identities. For example, while S & B and AAA share some common customers, the work performed by AAA and S & B for these customers differs. Thus, one customer may have S & B produce a glossy fashion design handbook and AAA produce a mass mailing of a black and white letter.
Because of the differences in the operations of the companies, the skills and conditions of employment of the two groups’ employees varies substantially. A four year apprenticeship is required to learn to operate the S & B presses. S & B employs “tenders” who assist the pressmen and learn the operations from the pressmen. While the apprenticeship is four years, it takes many more years for the pressman to perfect his craft. S & B employees work only on the S & B presses and do not perform any other work, like collating or binding.
The S & B employees work 35 hours straight time per week. Their hours of work are from 8:30 a.m. to 3:30 p.m., punched on the S & B time clock. The wage for S & B pressmen ranges from $14 to over $17 per hour depending upon the size and type of press. Wages of tenders are between $8 and $9 per hour. The S & B employees are covered by the union’s benefit plan, which includes pension, welfare and unemployment funds.
The amount of time necessary to learn to use the production equipment in AAA varies by the piece of equipment, ranging from one week to several months (for the multi-lith equipment). The AAA employees occasionally shift around among the various positions within the AAA operation, which includes among other things collating and binding.
The AAA employees work 40 straight time hours per week. Their hours of work are from 8:30 a.m. to 5:00 p.m., punched on the AAA time clock. The AAA employees are covered by a profit-sharing retirement plan rather than a pension plan. The wage ranges of AAA employees appear to be substantially less than those of the S & B employees.
AAA employees have never performed work for S & B, and conversely S & B employees have never performed work for AAA. On one occasion when there was no work for the S & B employees, the eight employees worked on the maintenance of their presses and played cards rather than moving into the AAA side to perform work for AAA. No employees have been transferred from S & B to AAA nor has anyone transferred from AAA to S & B.
The foreman for S & B has never assigned work to, or in any other way supervised, AAA employees, nor has the AAA foreman assigned work to, or supervised, S & B employees. When an opening arose at 5 & B, the new employee was hired through Local One.
With the exception of the AAA employee who worked on the equipment located in S 6 B’s work space, AAA employees only entered S & B’s work area to use the men’s bathroom located in a corner of S & B or to pick up the output of the AAA employee. S & B employees generally did not enter the AAA work space.
When S & B’s output required binding or collating, it sometimes was contracted out to AAA and sometimes to outside companies. When it was given to AAA, S & B’s foreman would take the work to the office located between the two sides or would notify the office that it was ready to be bound or collated. An office employee would then notify AAA’s foreman who would have a laborer pick up the work for its completion.
In April 1983, Local One initiated arbitration to declare four lithographic production employees of AAA covered by the union contract between S & B and Local One. The grievance stated that S & B had four employees working on its premises to whom the collective bargaining agreement was not being applied. The arbitrator, a joint committee of employer and labor representatives, decided in favor of the union, holding that the four AAA employees should be included in the collective bargaining unit of S & B employees.
S & B then petitioned the N.L.R.B. for clarification of the collective bargaining unit. The N.L.R.B., through its regional director, ruled that the four AAA employees were not an accretion to the S & B bargaining unit. Specifically, the opinion stated that: “While AAA and S & B share common ownership and management sufficient to warrant a finding that AAA and S & B constitute a single employer, there are many other factors weighing in favor of a finding that the four AAA employees sought by the Union are not an accretion to the unit represented by the Union at S & B, and that AAA operates separately from S & B.”
Rather than appeal this decision or follow the N.L.R.B.’s advice to hold an election by the AAA workers, the union asked the joint arbitration committee to amend its award. The committee then ruled that S & B and AAA constituted a single employer, and although the committee could not “require the Employer to apply the collective bargaining unit” to the four AAA employees in view of the N.L.R.B. ruling, “the Employer” was prohibited from “assigning lithographic production work to employees who are not covered by the collective bargaining agreement.” The committee further stated that “the Employer” could conform to the order by reassigning the AAA employees to the collective bargaining unit, “which it was required to do under the contract.”
S & B petitioned the N.L.R.B. regional director, alleging that the union had violated the National Labor Relations . Act (“NLRA”) through the award. The director refused to issue a complaint. . The N.L.R.B. general counsel, on January 30, 1985, affirmed the director because the amended committee award did not directly conflict with the earlier N.L.R.B. ruling and the N.L.R.B. has a policy of non-interference in arbitration. The general counsel also stated that if the award later undermined the earlier N.L.R.B. ruling, charges at that time might be warranted.
In January 1985, prior to the general counsel’s action, Local One brought suit in the Southern District of New York to confirm the amended arbitration award of the joint committee. The district court confirmed the award on Local One’s motion for summary judgment.
On April 29, 1986, the regional director again refused to issue a complaint. He stated that the evidence established neither that the union violated sections 8(b)(1)(A), (2) and (3) by seeking to enforce the arbitration award, nor that the union was seeking to represent the AAA employees.
DISCUSSION
As an initial matter, appellee challenges this court’s jurisdiction. The only case cited for the proposition that we lack jurisdiction over an appeal from a district court’s order of enforcement is Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 58 S.Ct. 459, 82 L.Ed. 638 (1938). That case held that a district court may not enjoin an N.L.R.B. proceeding, id. at 47, 58 5. Ct. at 461-62, and does not support appellee’s position. If, on the other hand, appellee means to argue that this court lacks jurisdiction over this appeal because of the prior N.L.R.B. proceedings, it misconstrues the nature of the action it has brought in the federal court. This action is to enforce the award of the arbitrator by final order of the district court, from which appeal properly lies under 28 U.S.C. § 1291 (1982). See Goodall-Sanford, Inc. v. United Textile Workers of America, 353 U.S. 550, 551-52, 77 S.Ct. 920, 921, 1 L.Ed.2d 1031 (1957) (district court order under § 301(a) directing arbitration is a final order appeal-able under 28 U.S.C. § 1291). This action does not question the result or findings of the N.L.R.B. unit clarification proceeding, and, as discussed immediately infra, is not affected by the N.L.R.B. regional director’s subsequent refusals to enforce the N.L. R.B. decree.
Local One also argues that the regional director’s refusal to bring a charge eliminates the court’s jurisdiction over the issue. An N.L.R.B. regional director’s refusal to bring a charge of unfair labor practices does not rob the federal courts of jurisdiction over the contract in question, and has no collateral effects. See Peltzman v. Central Gulf Lines, Inc., 497 F.2d 332, 334-35 (2d Cir.1974), cert. denied, 423 U.S. 1074, 96 S.Ct. 857, 47 L.Ed.2d 83 (1976); International Union of Electrical, Radio and Machine Workers v. General Electric Co., 407 F.2d 253, 264 (2d Cir.1968), cert. denied, 395 U.S. 904, 89 S.Ct. 1742, 23 L.Ed.2d 217 (1969); McConnell v. Chauffeurs, Teamsters and Helpers Local 445, 606 F.Supp. 460, 462 (S.D.N.Y.1985); see also Edna H. Pagel, Inc. v. Teamsters Local Union 595, 667 F.2d 1275, 1279-80 & nn. 10-12 (9th Cir.1982).
S & B also makes several non-meritorious arguments which we now address, before turning to what we deem to be the deciding issue of law. S & B first argues that the joint committee exceeded its authority because the remedy went beyond the four corners of the collective bargaining agreement.
The district court is authorized to vacate an arbitration award if the arbitrator exceeded its powers. 9 U.S.C. § 10(d) (1982). The joint committee’s powers derive from section 40(a) of the contract, which provides: “In the event of any dispute with reference to the interpretation, application or breach of any terms contained in this contract,” the matter shall be arbitrated. Section 3(a) of the collective bargaining agreement, the section allegedly violated, provides:
The Employers recognize the Union as the exclusive collective bargaining agent for all of the lithographic ... production employees in the plants or departments of the employers within the Union’s territorial jurisdiction.
Appellant argues that the arbitrator fashioned a work assignment remedy, but since the contract grants only representation rights and the award goes beyond representation, it is void and unenforceable.
Where the parties have provided for interpretation of their collective bargaining agreement by arbitration, the courts will defer to the arbitrator’s interpretation. See United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596, 80 S.Ct. 1358, 1360, 4 L.Ed.2d 1424 (1960). Courts will vacate an award only if it is not based on a construction of the contract. Mere disagreement with the construction of the contract is not enough to disturb the award. See id. at 599, 80 S.Ct. at 1362.
S & B is arguing with the interpretation of the contract, not the basis of the committee's decision or its power to make the decision. The committee clearly interpreted section 3(a) of the collective bargaining agreement, which it had the power to interpret under section 40(a) thereof. While S & B argues that the arbitrator’s interpretation of the contract was incorrect, the error cannot be remedied by the courts. The court is limited to deciding whether Local One
is making a claim which on its face is governed by the contract____ The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.
United Steelworkers of America v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (footnote omitted); see also United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960) (“[T]he judicial inquiry under § 301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made____ Doubts should be resolved in favor of coverage.”).
Appellant also argues that the amended award conflicts with the prior N.L.R.B. ruling on the appropriate collective bargaining unit. N.L.R.B. rulings take precedence over arbitrator’s rulings. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 272, 84 S.Ct. 401, 409, 11 L.Ed.2d 320 (1964); see Vidtronics Company, 269 N.L.R.B. 133, 141 (1984).
The N.L.R.B. found that the AAA employees and the S & B employees were separate bargaining units. That finding “ ‘does not per se preclude the employer from adding to, or subtracting from, the employees’ work assignments.’ ” Carey, 375 U.S. at 269, 84 S.Ct. at 408 (quoting Plumbing Contractors Association, 93 N.L.R.B. 1081, 1087 (1951)). It does, however, indicate that the arbitrator’s amended award, while it might direct employer action legitimately falling within the category of work assignments, cannot grant relief that requires or presupposes the AAA and S & B employees to be within the same bargaining unit, a point that becomes important later.
Appellant finally contends that the award is contrary to sections 8(b)(1)(A), (2), and (3). While S & B does not seem to have squarely presented the issue of legality to the lower court, this court, in the interests of justice, can consider the claim. See Singleton v. Wulff, 428 U.S. 106, 121, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976); LaBruna v. U.S. Marshall, 665 F.2d 439, 442 (2d Cir.1981); see also Davis v. Musler, 713 F.2d 907, 917 (2d Cir.1983) (Van Graafeiland, J., concurring) (collecting cases). We feel that the standard is met where, as here, the enforcement of the arbitration award could affect the rights of the nonunion employees, as well as AAA.
When an arbitrator’s award is against a public policy which is well defined and dominant, the award is unenforceable. See W.R. Grace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). The NLRA represents such a public policy. See, e.g., Perma-Line Corporation of America v. Sign Pictorial and Display Union, Local 230, 639 F.2d 890, 894-95 (2d Cir.1981) (clause of collective bargaining agreement in violation of NLRA and arbitrator’s award based thereon would be vacated); General Warehousemen and Helpers Local 767 v. Standard Brands, Inc., 579 F.2d 1282, 1293 (5th Cir.1978) (in banc) (violation of § 9(a) rights), cert. dismissed, 441 U.S. 957, 99 S.Ct. 2420, 60 L.Ed.2d 1075 and 443 U.S. 913, 99 S.Ct. 3103, 61 L.Ed.2d 877 (1979); Glendale Manufacturing Co. v. Local No. 520, Int’l Ladies’ Garment Workers’ Union, 283 F.2d 936 (4th Cir.1960) (arbitration award that would cause employer to violate employees’ § 7 rights was not enforceable), cert. denied, 366 U.S. 950, 81 S.Ct. 1902, 6 L.Ed.2d 1243 (1961); cf. Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63, 70 (2d Cir.) (union’s attempt to enforce arbitrator’s award which violated § 7 rights of employees was itself a failure to bargain collectively), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974).
We start with the general proposition that “an employer commits the unfair labor practices of interfering with employees’ § 7 rights and supporting a union in violation of § 8(a)(1) and (a)(2) when it imposes on employees of one unit the contract and bargaining agent of another unit.” Sperry Systems Management Division, 492 F.2d at 69.
Courts and the N.L.R.B. have held that to bind a non-signatory company to a collective bargaining agreement, both single employer and single bargaining unit status must be found. See South Prairie Construction Co. v. Local No. 627, International Union of Operating Engineers, 425 U.S. 800, 805, 96 S.Ct. 1842, 1844, 48 L.Ed.2d 382 (1976) (per curiam); Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985); Carpenters Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 505 (5th Cir.1982), cert. denied, 464 U.S. 932, 104 S.Ct. 335, 78 L.Ed.2d 305 (1983); Frank N. Smith Associates, Inc., 194 N.L. R.B. 212, 218 (1971); see Gerace Construction, Inc., 193 N.L.R.B. 645, 646 (1971); Central New Mexico Chapter, 152 N.L. R.B. 1604, 1608 (1965). The single bargaining unit requirement protects the section 7 rights of the nonunion employees, since binding the employer necessarily affects its employees’ rights. Pratt-Farnsworth, Inc., 690 F.2d at 507. The Board therefore conducts a separate bargaining unit inquiry, which is guided by the principle of protecting the employees’ section 7 rights, see 29 U.S.C. § 159(b) (1982); 18C T. Kheel, Business Organizations: Labor Law § 14.01[1], at 14-2 (1982); id. § 14.-01[2], at 14-9, to assure that the asserted contractual rights of the union are consistent with the employees’ statutory rights, cf. Sperry Systems Management Division, 492 F.2d at 69 (imposing contract and bargaining agent of one unit on a different unit violates §§ 8(a)(1) and (2)); Cal-Fin, 217 N.L.R.B. 871, 874 (1975) (when nonmajority union and employer enter into a collective bargaining agreement, employer violates §§ 8(a)(1) and (2) and union violates § 8(b)(1)(A)). If, therefore, the collective bargaining agreement in this case requires that the AAA employees be covered by the agreement, under these precedents it is illegal under section 7 of the NLRA.
The theory of Local One, on the other hand, is that a finding of single employer status suffices to force the non-union company, AAA, to recognize the contract. AAA having been bound to the contract, the case becomes merely a work assignment problem. However, work assignment cases are distinguishable because in those cases one company has in fact signed the contracts at issue, and the dispute involves only that company. See e.g., Carey v. Westinghouse Electric Corp., 375 U.S. 261, 262, 84 S.Ct. 401, 404, 11 L.Ed.2d 320 (1964); N.L.R.B. v. Radio and Television Broadcast Engineers Union, Local 1212, 364 U.S. 573, 574, 81 S.Ct. 330, 331-32, 5 L.Ed.2d 302 (1961); N.L.R.B. v. New York Lithographers and Photoengravers’ Union No. 1P, 600 F.2d 336, 338 (2d Cir.1979); In re Local 26, International Fur and Leather Workers Union of the United States and Canada, 90 N.L.R.B. 1379, 1380 (1950). Here a signature by a second company (AAA) is imputed. As the Fifth Circuit noted in Pratt-Famsworth, “[ojnly where the employees do constitute an appropriate unit will the non-signatory firm be bound to the collective bargaining agreement entered into between the signatory firm and the union.” 690 F.2d at 508.
In Pratt-Farnsworth, the plaintiffs, two unions, sued two construction companies it claimed were operated as a “double-breasted” operation. A double-breasted operation is one in which one subcontractor operates a union company that bids on union contracts and a nonunion company that bids on nonunion contracts. Id. at 497 & n. I. The unions sought, inter alia, to apply their collective bargaining agreement with the union company to the nonunion company. The Fifth Circuit explained that:
A finding of single employer status does not by itself mean that all the subentities comprising the single employer will be held bound by a contract signed only by one. Instead, having found that two employers constitute a single employer for purposes of the NLRA, the Board then goes on to make a further determination whether the employees of both constitute an appropriate bargaining unit____ [E]ven if two firms are a single employer, a union contract signed by one would not bind both unless the employees of both constituted a single bargaining unit.
Id. at 505. The court noted that this dual requirement protects the section 7 rights of the nonunion employees. Id. at 507.
The Fifth Circuit is not alone in its position. See, e.g., South Prairie Construction Co., 425 U.S. at 802-04, 96 S.Ct. at 1843-44 (affirming D.C. Circuit’s reversal of N.L.R.B. decision on single employer status, but vacating the circuit court’s findings on single bargaining unit as an invasion of the N.L.R.B.’s authority); N.L.R.B. v. Al Bryant, Inc., 711 F.2d 543, 550 (3d Cir.1983) (requiring both single employer and single bargaining unit to bind the nonunion company to the union contract), cert. denied, 464 U.S. 1039, 104 S.Ct. 699, 79 L.Ed.2d 165 (1984); Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., 676 F.2d 826, 830 (D.C.Cir.1982) (same); N.L. R.B. v. Don Burgess Construction Corp., 596 F.2d 378, 386 (9th Cir.) (same), cert. denied, 444 U.S. 940, 100 S.Ct. 293, 62 L.Ed.2d 306 (1979). Similarly, we have previously enforced an order of the N.L.R.B. requiring four related companies to bargain with a single union because the companies were a single employer and their employees constituted a single bargaining unit. See N.L.R.B. v. A.K. Allen Co., 252 F.2d 37, 38 (2d Cir.1958).
The N.L.R.B. here has found separate bargaining units. In the face of that finding, Pratt-Farnsworth would call for a determination that the joint committee had no contractual authority to hold AAA to the terms of the union agreement. Without a finding of both single employer and single collective bargaining unit, the joint committee exceeded its authority in purporting to affect the rights of the nonunion employees with respect to the nonunion employer.
The Third Circuit has implied that the application of the single employer/single bargaining unit doctrine might be limited to the construction industry. See Al Bryant, Inc., 711 F.2d at 550. Other circuits however have applied the doctrine in nonconstruction cases, see, e.g., Brotherhood of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81, 82-83 (9th Cir.1982) (per curiam) (trucking), cert. denied, 469 U.S. 887, 105 S.Ct. 263, 83 L.Ed.2d 199 (1984); N.L.R.B. v. Royal Oak Tool & Machine Co., 320 F.2d 77, 79 (6th Cir.1963) (manufacturing), as has the N.L. R. B., see, e.g., Western Union Corp., 224 N.L.R.B. 274, 274 (1976) (installation, maintenance and operation of equipment), affirmed sub nom. United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S. Ct. 101, 58 L.Ed.2d 121 (1978); General Envelope Co., 222 N.L.R.B. 10, 10 (1976) (commercial printing); Dixie Belle Mills, Inc., 139 N.L.R.B. 629, 630 (1962) (manufacturing). Moreover, the policies underlying this doctrine apply with greater force in this case than in the usual double-breasted construction company case.
In the construction industry, there exist two markets, union and nonunion. Companies therefore need both union and nonunion subsidiaries to bid on every available project, despite the fact that the work is otherwise identical. See Carpenters’ Local Union No. 1478 v. Stevens, 743 F.2d 1271, 1275 (9th Cir.1984), cert. denied, 471 U.S. 1015, 105 S.Ct. 2018, 85 L.Ed.2d 300 (1985). In this case, however, the work performed by AAA and S & B is substantially different. AAA performs low quality printing in mass quantities. S & B is a high quality printer. It may well be that low quality printing could not be done profitably on the terms of the Local One contract.
In any event, the single employer doctrine is the justification asserted by the joint committee for applying the Local One contract to AAA. As a matter of law, however, it is against public policy to bind a non-signatory company where the employees of both companies do not constitute a single collective bargaining unit. Accordingly, the committee award cannot stand on the basis of the single employer doctrine in the face of an unchallenged N.L.R.B. determination that the lithographic production employees of S & B and AAA do not constitute a single bargaining unit.
Prior cases in this circuit support our holding, and have consistently guarded against attempts by unions to gain representation of separate bargaining units through methods other than elections. In Sperry Systems Management Division v. N.L.R.B., 492 F.2d 63 (2d Cir.), cert. denied, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974), this court held that “covert attempts to subvert the Board’s orders regarding the proper bargaining unit” were illegal. Id. at 68-69. In that case, a union representing New York employees sought to extend its jurisdiction to include California nonunion employees. An arbitrator ruled that the contract applied to all company plants, but that its extension to the California employees would violate their section 7 rights. He ordered that the terms of employment provisions be applied to the California workers, but not the representation clauses. Id. at 65. At the same time, the union lost a representation election at the California plant. The union then sought to enforce the arbitration award. The court held that the attempt to enforce the arbitration award was “a sub rosa attempt to gain ... de facto recognition as bargaining agent of the [California] employees,” id. at 68, because the parties had agreed that the California employees were a separate bargaining unit, and the union’s reason for insisting that the arbitration award be enforced, protecting the job security of its New York members, was not credible, id.
Similarly, in Welch Scientific Company v. N.L.R.B., 340 F.2d 199 (2d Cir.1965), a company sought to apply an existing union contract to a new plant where the employees were not an accretion to the existing bargaining group and the new unit had chosen a different union representative. We held that the company had committed an unfair labor practice because it interfered with the employees’ right to choose their own representative. Id. at 202-03.
Again, in N.L.R.B. v. Masters-Lake Success, Inc., 287 F.2d 35 (2d Cir. 1961) (per curiam), we enforced an N.L.R.B. order finding that an employer committed an unfair labor practice by applying an existing exclusive collective bargaining agreement to a new store’s employees because they were a separate bargaining unit that should be allowed to make its own free choice of representative. Id. at 36.
Finally, looking past the plain language of the joint committee’s decision, the argument could be made that the arbitration award and district court enforcement order could be affirmed on the basis of the alter ego doctrine. We would and do reject any such argument.
The alter ego doctrine is designed to defeat attempts to avoid a company’s union obligations through a sham transaction or technical change in operations. See Pratt-Farnsworth, Inc., 690 F.2d at 508. The key factors to be weighed in an alter ego analysis are “whether the two enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision, and ownership.” Goodman Piping Products, Inc. v. N.L.R.B., 741 F.2d 10, 11 (2d Cir.1984) (per curiam); see Crawford Door Sales Co., 226 N.L.R.B. 1144, 1144 (1976).
A number of facts require a holding that the arbitrator’s award cannot stand as an alter ego finding. Primarily, such a basis would be in direct conflict with the findings of the N.L.R.B. on the unit clarification proceeding, see supra note 4, as well as its conclusion that the companies operate separately. Though the inquiries are separate, the N.L.R.B. findings are highly relevant to the alter ego question. See United Telegraph Workers, AFL-CIO v. N.L.R.B., 571 F.2d 665, 668 (D.C.Cir.), cert. denied, 439 U.S. 827, 99 S.Ct. 101, 58 L.Ed.2d 121 (1978). We also note that the two companies functioned as ongoing business entities prior to their acquisition by Toler-Kahn, and that both continue in business, performing substantially the same work as before the acquisition. While this may not necessarily preclude the use of the alter ego doctrine, in this case it weighs significantly against an alter ego finding. See Pratt-Farnsworth, Inc., 690 F.2d at 508 n. 8.
CONCLUSION
The grant of summary judgment to plaintiff-appellee confirming the arbitration award is reversed, and the case is remanded for further proceedings consistent with this opinion.
. S & B is a member of Metropolitan Lithographers Association (“MLA"), an employer’s collective bargaining association. Local One represents the employees of S & B- under a contract negotiated by the MLA and Local One.
. The background presented here is drawn from findings made in two arbitrators’ decisions and a related N.L.R.B. unit clarification proceeding, hereinafter described, and from uncontradicted affidavits.
. Originally the union sought to have all the AAA employees included in Local One, but later amended its complaint to include only the four AAA lithographic production employees.
. The N.L.R.B.’s reasons for finding that the AAA employees were not an accretion to the S & B collective bargaining unit were:
the lack of interchange between the employees of AAA and S & B, lack of integration of operations of AAA and S & B, lack of bargaining history for the AAA employees the Union seeks to add to its existing unit of S & B employees, and the fact that the employees of AAA and S & B have separate supervision, possess different skills, and perform different work. It is also clear that the day-to-day operations of AAA and S & B are separately controlled. In addition, the employees of AAA and S & B generally work in different areas, receive different benefits and wages and have different hours of work. While the AAA platemaking employee works on the S & B side, it is evident that he is supervised by the AAA foreman, he prepares plates for the AAA processes, and any contact he may have with the S & B employees is primarily social. Further, while AAA and S & B are both engaged in providing lithographic services to commercial customers, the record reveals that the type of services provided by each are quite different. Those provided by S & B are of a finer quality than those provided by AAA, and accordingly require more refined processes and highly skilled employees.
Stearns & Beale, No. 2-UC-305, slip op. at 9-10 (NLRB April 9, 1984).
. The effect of this ruling is somewhat murky. S & B, but not AAA, was a party to the arbitration, and "the Employer" is not a defined term in the committee ruling. On the other hand, the committee found S & B and AAA to be a "single employer” in its ruling. The fact that the case has proceeded this far would indicate that the parties deem the arbitration award, as confirmed below, to bar AAA (and S & B) from assigning lithographic production work to AAA’s four lithographic production employees. Moreover, the district court has held S & B in contempt during the pendency of this appeal because AAA employees continued to perform lithographic work for AAA after the arbitration award was confirmed.
It would therefore appear that the dissent’s view that the language of the joint committee’s amended award calling for the "reassignment” of AAA’s lithographic employees to the "collective bargaining unit” has been treated as surplusage, i.e., that the joint committee’s amended award should be read merely as prohibiting S & B from assigning work to AAA employees— which it is not doing according to the N.L.R.B., whose finding is not contradicted by the amended joint committee award — misconstrues the actual impact of the amended joint committee award as it has been construed and applied by Local One and the court below.
. Section references hereinafter unaccompanied by citation of a title of the U.S.Code are to sections of the NLRA.
. Section 8(b)(1)(A) makes it an unfair labor practice for a labor union to restrain or coerce employees in the exercise of their section 7 rights. See 29 U.S.C. § 158(b)(1)(A) (1982). Section 7 of the NLRA provides in relevant part:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining ... and shall abo have the right to refrain from any or all of such activities____
29 U.S.C. § 157 (1982) (emphasis added).
. Under section 8(b)(2), if a union causes or attempts to cause an employer to discriminate against an employee by interfering with a term or condition of employment in order to encourage membership in a union, the union has committed an unfair labor practice. See 29 U.S.C. § 158(b)(2) (1982). Work allocation to a bargaining unit is a term and condition of employment. Road Sprinkler Fitters Local Union No. 669 v. N.L.R.B., 676 F.2d 826, 831 (D.C.Cir.1982).
. A section 8(b)(3) violation occurs when a union refuses to bargain collectively with the employer. See 29 U.S.C. § 158(b)(3) (1982).
. It should be noted in deference to the court below that the single employer/single bargaining unit requirement was not brought to the attention of that court, nor of this court. We consider it however, in the interests of justice, as previously discussed.
. The same standards govern whether the work assignment dispute is between two unions or between a union and nonunion employees. See Communications Workers of America, AFL-CIO, 118 N.L.R.B. 1104, 1107 (1957).
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer: |
sc_petitioner | 043 | 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.
MANUFACTURERS TRUST CO., TRUSTEE, v. BECKER et al.
No. 55.
Argued October 20, 1949.
Decided November 21, 1949.
Edward K. Hanlon argued the cause and filed a brief for petitioner.
David W. Kahn argued the cause and filed a brief for respondents.
Solicitor General Perlman, Roger S. Foster, David Ferber and W. Victor Rodin filed a brief for the Securities & Exchange Commission, as amicus curiae, urging reversal.
Mr. Justice Clark
delivered the opinion of the Court.
This proceeding in bankruptcy is on objections to the allowance of claims equal to the principal amount of bonds of the debtor acquired at a discount during its insolvency by close relatives and an office associate of directors of debtor. Petitioner’s objection that equitable considerations require limitation of the claims was dismissed by the referee, and the District Court affirmed. 80 F. Supp. 822. Following affirmance by a divided Court of Appeals for the Second Circuit, 173 F. 2d 944, we granted certiorari because the issue presented has importance in the administration of the arrangement and corporate reorganization provisions of the Bankruptcy Act. 337 U. S. 923.
On January 8, 1946, Calton Crescent, Inc., sold its only property, an apartment house located in New Rochelle, New York, for $300,000 pursuant to a contract entered into in October 1945. Being unable to discharge in full its obligations under debenture bonds maturing in 1953, outstanding in principal amount of $254,450, debtor filed in May 1946, a petition under Ch. XI of the Bankruptcy Act, 11 U. S. C. § 701 et seq. Under the plan of arrangement, authorizing a dividend of 43.61% of the principal amount of the bonds, respondents Regine Becker, Emily K. Becker, and Walter A. Fribourg were to receive an aggregate dividend of $64,237.53 on allowance of claims based on respective individual holdings of debentures which total $147,300 in principal sum but were acquired at a total cost of $10,195.43. Petitioner, Manufacturers Trust Company, appearing individually as creditor for fees and disbursements due it as indenture trustee and also as original trustee under said indenture, objected to allowance of respondents’ claims as filed, on the ground that the circumstances of respondents’ acquisitions require limitation of their claims to the cost of the debentures plus interest.
The circumstances pertinent to our consideration of petitioner’s objections are as follows: The debtor was organized in 1933 to take title to the apartment property pursuant to a plan of reorganization. By January 1942 debtor had defaulted under the terms of the first mortgage and was operating with a deficit; at no time in the previous several years had its debentures been selling on the market at more than 8% of face value.
While debtor was then considering a sale of the property for $220,000, a suit to enjoin the sale was brought by Sanford Becker, son of respondent Regine Becker and husband of respondent Emily Becker. Thereafter he proposed to arrange a loan on second mortgage to debtor of $15,000 to pay off the arrearages on the first mortgage, all share and debenture holders being invited to participate. In April 1942 debtor accepted the offer, but none of its share or debenture holders elected to participate other than respondent Fribourg, who had desk room in the offices of Sanford Becker and his brother Norman Becker and was a long-time friend of the former. The loan was made by respondents Regine Becker, Emily Becker, and Fribourg. The second mortgage thus created was in default by the end of 1942, and in 1943 respondents took an assignment of rents but did not foreclose; nor was there change in management of the property. The second mortgage and interest were paid upon sale of the property in 1946. In addition to the second mortgage, sums aggregating $7,921.63 were advanced by respondents to pay taxes; this amount was repaid without interest in 1944 and 1945. Pursuant to provisions of the loan agreement in 1942, Sanford and Norman Becker were made directors of debtor, and when the remaining three directors resigned in 1944, the vacancies were filled by nominees of the Becker brothers.
The referee found that from early 1942 the market value of the property of debtor was insufficient to pay its debts. However, the record shows a tax valuation during the period of only slightly less than the outstanding indebtedness. And although the debtor’s operating account frequently ran in arrears, it revealed a surplus in 1945. Prior to disposing of its property debtor was at all times a going concern.
The debentures on which respondents claim were acquired, at prices varying from 3% to 14% of face value, after the Becker brothers became directors in 1942. Sanford Becker did not buy additional debentures after becoming a director. Norman Becker never owned any interest whatever in the debtor. Although neither of the Becker directors was interested in any purchase of the respondents, the debentures of Regine and Emily Becker were purchased through the agency of the Becker brothers and in the latter’s judgment. The debentures of Regine Becker were purchased from an over-the-counter securities broker. Those of Emily Becker were acquired in part from the same dealer, in part from an estate whose attorneys were fully informed as to debtor’s financial affairs, and in part from a Christian Association represented by a member of its investment committee who was fully advised as to the condition of debtor.
Some of Fribourg’s debentures were bought from dealers in the over-the-counter market; others were acquired through an agent from the president and vice president of debtor when they withdrew from its management in 1944, and from other holders after the retiring president insisted that the offer made to him by Fribourg’s agent be extended to all holders and be accompanied by a statement of the president’s intention to accept. Fribourg was in the market for speculative securities and purchased the debentures as a “gamble,” being influenced by the tax valuation of the apartment building.
All of respondents’ debentures, with the exception of $2,000 in face value purchased by Fribourg from a dealer, were acquired in advance of the contract for sale of the apartment property and the filing of debtor’s petition for arrangement.
It was the referee’s finding, left undisturbed by both courts below, that respondents’ purchases were without overreaching or failure to disclose any material fact to the selling bondholders. Petitioner does not here contend that respondents’ claims should be limited because of conduct by the Becker directors or by respondents amounting to bad faith or abuse of fiduciary advantage. Nor does petitioner contend that respondents’ bondholdings influenced the conduct of corporate affairs to the injury of the corporation or other creditors. Indeed, the referee found that the purchases were not unfair to debtor, that at the time of respondents’ purchases debtor was not in the field to settle its indebtedness on the debentures, and that the assistance rendered to debtor by respondents materially aided in its grave financial situation. Moreover, the findings indicate that the most generous suggestion of an offer for the apartment building after the Beckers became directors and prior to the sale was at a figure substantially less than the sale price.
Petitioner urges broadly that directors are precluded from profiting by the purchase of claims against an insolvent corporation. And, it contends, if directors may claim only the cost of debt securities acquired at a discount during a debtor’s insolvency, those related as respondents are to the Becker directors should not be permitted to do more. Thus we view respondents’ claims initially as if they were claims of directors.
This Court has repeatedly insisted on good faith and fair dealing on the part of corporate fiduciaries. It is especially clear, when claims in bankruptcy accrue to the benefit of a corporate officer or director, that the court must reject any claim that would not be fair and equitable to other creditors. Pepper v. Litton, 308 U. S. 295, 308-309 (1939).
Claims of a corporate officer or director arising out of transactions with the corporation have been enforced when good faith and fairness were found. Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312 (1895); cf. Manufacturing Co. v. Bradley, 105 U. S. 175 (1882); see Richardson’s Ex’r v. Green, 133 U. S. 30, 43 (1890); Twin-Lick Oil Co. v. Marbury, 91 U. S. 587, 589-591 (1876). Likewise a standard of good faith and fair dealing has been found applicable, where not superseded by a differing legislative or administrative rule, to purchases by directors of corporate shares, in the over-the-counter market, at less than book value on conversion under a plan of public utility reorganization. Securities and Exchange Commission v. Chenery Corporation, 318 U. S. 80 (1943); cf. id., 332 U. S. 194 (1947). In the first Chen ery decision it was declared that equity has not imposed “upon officers and directors of a corporation any fiduciary duty to its stockholders which precludes them, merely because they are officers and directors, from buying and selling the corporation’s stock.” 318 U. S. at 88.
When the transactions underlying respondents’ claims here are drawn alongside a good faith standard of fiduciary obligation, they appear unobjectionable. There is no component of unfair dealing or bad faith. The findings negative any misrepresentation or deception, any utilization of inside knowledge or strategic position, or any rivalry with the corporation. During the period of the purchases the conduct of the Becker directors and of respondents with reference to the affairs of the debtor was to its substantial benefit and to the advantage of the other debenture holders. And there is nothing to suggest that had the debentures been acquired by the Becker directors, they would have been unjustly enriched. Cf. Securities and Exchange Commission v. Chenery Corporation, supra, 318 U. S. at 86.
However, it is the contention of petitioner, and of the Securities and Exchange Commission as amicus curiae, that a standard of good faith and fair dealing is inadequate here. Relying particularly upon Magruder v. Drury, 235 U. S. 106 (1914), they invoke the principle that a trustee can make no profit from his trust. But Magruder v. Drury involved an express trust, and even during insolvency corporate assets “are not in any true and complete sense trusts.” Hollins v. Brierfield Coal & Iron Co., 150 U. S. 371, 381-382 (1893).
The Commission asserts, also, that if a director is free to acquire corporate obligations at a discount during insolvency and later enforce them in full, he will be subject to a possible conflict of interests inconsistent with his role as fiduciary to creditors of the corporation. Specifically it is argued that he may seek to postpone adjustment of claims or the institution of proceedings for relief, when such action would serve the interests of the corporation and its creditors, in order to continue his own purchase of corporate obligations at a market price lower than the valuation which he has made with the benefit of inside information.
This Court has recognized that equity must apply not only the doctrines of unjust enrichment when fiduciaries have yielded to the temptation of self-interest but also a standard of loyalty which will prevent a conflict of interests from arising. See Weil v. Neary, 278 U. S. 160, 173 (1929); cf. Woods v. City Nat. Bank & Trust Co., 312 U. S. 262, 268 (1941). In this case the consideration is whether or to what extent a conflict of interests would arise from a director’s opportunity to purchase unmatured obligations of a corporation which, though technically insolvent, remains nevertheless a going concern. That “there is no such conflict in the ordinary case of the purchase by a director in a going corporation of its outstanding obligations,” Seymour v. Spring Forest Cemetery Assn., 144 N. Y. 333, 344, 39 N. E. 365, 367 (1895), would seem true not only of solvent corporations. Certainly the present record does not tend to establish that the opportunity for such purchases during insolvency would deprive a going corporation of the sound judgment of its officer. And in any event the potentiality of conflict must be weighed against the desirability of permitting reinforcement of the insolvent’s position insofar as a director’s acquisition of claims may help. On this record the probability that an actual conflict of loyalties arose from the opportunity to purchase respondents’ claims, while the debtor was a going concern, is not great enough to justify the exercise of equity jurisdiction which petitioner urges.
Undoubtedly the possibilities of a conflict of interests for the purchasing director are intensified as the corporation becomes less a going concern and more a prospective subject of judicial relief. And if it is clear that a fiduciary may ordinarily purchase debt claims in fair transactions during solvency of the corporation, the lower federal courts seem equally agreed that he cannot purchase after judicial proceedings for the relief of a debtor are expected or have begun. In this case, which lies between, it is unnecessary to determine precisely at what point the probability of conflict requires that equity declare ended the opportunity for profitable trading. It could hardly have been prior to the latest purchases of Regine and Emily Becker.
The nature of the relation between Fribourg and the Becker directors makes immaterial that some of Fribourg’s debentures may have been purchased after the corporation ceased to have the potency of a going concern, in expectation of or even after bankruptcy. Neither director had any indirect interest in Fribourg’s holdings or served as his agent for purchase. Fribourg, moreover, had begun to acquire debentures some months before the negotiations leading to the election of the Beckers as directors of the debtor and, according to Fribourg’s uncontradicted testimony, he began to purchase after looking over the apartment following Sanford Becker’s mention of his own purchase. There is nothing in the record to indicate that Fribourg’s purchases after the Beckers became directors were influenced by advice from them. Accordingly, any consideration of Fribourg’s claim as that of a director is precluded.
A word of caution as to the scope of our decision is desirable in view of Judge Learned Hand’s opinion below. He suggested that if in fact liquidation had been imminent at the time of respondents’ purchases or if it were fairly demonstrable, as a matter of experience, that a director free from all potential self-interest would be more likely to initiate liquidation proceedings or to effect a debt settlement than one not wholly disinterested, a court of equity should explore such issues and not dismiss them out of hand. This decision is not meant to negative the relevance of these issues when raised by a proper record. We mention these matters because the Securities and Exchange Commission urges the importance of a decision in this case for questions that may well arise in proceedings under Ch. X. In such proceedings the Securities and Exchange Commission, acting as the statutory ad-visor to the court, would be within its rightful function in submitting to the court the light of its experience on dealings of the general kind disclosed in this case. Here we have proven facts in a particular case, and not a body of evidence submitted by the Securities and Exchange Commission, presumably informed by expert understanding.
The decision of the Court of Appeals is
Affirmed.
Mr. Justice Douglas took no part in the consideration or decision of this case.
The amount and cost of the respective holdings of the respondents, insofar as objected to, are as follows:
, Principal Amount Cost
Regine Becker.................... $44,500 $3060. 63
Emily K. Becker.................. 52,800 5010.00
Walter A. Fribourg................ 50,000 2124.80
Sanford Becker and respondent Fribourg first became interested in the affairs of debtor in September 1941. Soon thereafter each purchased, independently, debentures of debtor of the face value of $5,000. No contest is made of these purchases.
It appears that transactions in the debentures included the transfer of capital shares of the debtor which had no market apart from the debentures.
The major items of indebtedness consisted of (1) the first mortgage on the apartment building in original principal amount of $175,000, which had been reduced by 1946 to $154,000, of which reduction $7,875 had been paid since 1943; (2) the second mortgage and tax advances of the respondents totalling some $22,000, and (3) the debentures of $254,450, on which, however, interest was payable only if earned. The tax valuation was $421,630.
The District Court’s characterization of debtor as a going concern was not upset by the Court of Appeals and is accepted here.
Regine Becker began purchases on February 10, 1944, and continued through August 30, 1945. The purchases of Emily Becker were made between May 24, 1944, and February 5, 1945. In addition to the purchases referred to in note 2, supra, Fribourg made purchases through June 4, 1946.
The latest purchase by a respondent clearly prior to the contract for sale was by Regine Becker on August 30 preceding the contract in October 1945. Fribourg apparently acquired $1,500 of debentures after the contract of sale and an additional $500 after the filing of debtor’s petition.
Since the power of disallowance of claims, conferred on the bankruptcy court by § 2 of the Act, 30 Stat. 545, 11 U. S. C. § 11, embraces the rejection of claims “in whole or in part, according to the equities of the case,” Pepper v. Litton, 308 U. S. 295, 304-305 (1939), the court may undoubtedly require limitation of the amount of claims in view of equitable considerations. Cf. Bankruptcy Act, § 212, 52 Stat. 895, 11 U. S. C. § 612.
Cf. In re The Van Sweringen Co., 119 F. 2d 231 (C. A. 6th Cir. 1941); In re Norcor Mfg. Co., 109 F. 2d 407 (C. A. 7th Cir. 1940).
Cf. In re Jersey Materials Co., 50 F. Supp. 428 (D. N. J. 1943); In re McCrory Stores Corp., 12 F. Supp. 267 (S. D. N. Y. 1935).
Other holdings upon which the Commission relies, Pepper v. Litton, supra, note 7, and Woods v. City Nat. Bank & Trust Co., 312 U. S. 262 (1941), were considered in Securities and Exchange Commission v. Chenery Corporation, 318 U. S. 80, 89 (1943), and there distinguished on grounds which are also dispositive here.
Courts of equity, in defining the responsibility of officers of a corporation which is insolvent and yet a going concern, have frequently assigned greater importance to the corporation’s vitality than to its insolvency. E. g., Sanford Fork & Tool Co. v. Howe, Brown & Co., 157 U. S. 312 (1895); White, Potter & Paige Mfg. Co. v. Henry B. Pettes Importing Co., 30 F. 864 (E. D. Mo. 1887).
As respondents’ purchases of debentures resulted in their securing control of debtor, see note 2, supra, the acquisitions arguably were a factor in preventing further financial deterioration of debtor. See also 62 Harv. L. Rev. 1391, 1392 (1949): Insolvency “is the very time when such purchases may be of most benefit to the corporation, since the credit of the corporation may be improved if it is known that directors are purchasing the corporation’s securities; also it may be possible to forestall a bankruptcy petition while the corporation improves its financial position.”
Cf. In the Matter of Wade Park Manor Corporation, Report of Special Master: Claims of Macklin et al. (N. D. Ohio, 1949); see 3 Collier, Bankruptcy (14th ed.), p. 1784, 1948 Supp. p. 124.
See In re Philadelphia & Western R. Co., 64 F. Supp. 738, 739 (E. D. Pa. 1946); Ripperger v. Allyn, 25 F. Supp. 554, 555 (S. D. N. Y. 1938); In re McCrory Stores Corp., note 9, supra, at 269.
Monroe v. Scofield, 135 F. 2d 725 (C. A. 10th Cir. 1943); In re Norcor Mfg. Co., note 8, supra; In re Philadelphia & Western R. Co., note 14, supra; In re Jersey Materials Co., note 9, supra; In re Los Angeles Lumber Products Co., 46 F. Supp. 77 (S. D. Cal. 1941).
Thus it becomes unnecessary to determine whether the relation of the Becker respondents to the directors was such as to require limitation of these respondents’ claims if they would be disallowed in part as claims of directors.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer: |
songer_counsel1 | D | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
CARBON FUEL COMPANY, a corporation, Appellee, v. UNITED MINE WORKERS OF AMERICA, Appellant.
No. 74-1598.
United States Court of Appeals, Fourth Circuit.
Argued Jan. 8, 1975.
Decided June 19, 1975.
James M. Haviland, Charleston, W. Va. (Joseph A. Yablonski, Washington, D. C., Lewis D. Sargentich, Cambridge, Mass., and Daniel B. Edelman, Washington, D. C., on brief), for appellant.
Forrest H. Roles, Union, W. Va. (David D. Johnson, Jr., and Roger A. Woife, Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.
RUSSELL, Circuit Judge:
The appellant Union appeals from a conviction entered for contempt by reason of an alleged violation of a temporary restraining order theretofore issued by the District Court. The conflicting positions of the parties on appeal relate to the nature of the contempt adjudged by the District Court. It is conceded that whether the contempt be considered civil or criminal is largely the dispositive issue in the appeal. If the contempt be deemed civil, the appellee correctly takes the position that the order of the District Court would not be appealable. This is so, because, while the appellant Union does not entirely concede the non-appealability of a civil contempt by a party to the action, the rule is settled that, “[A] civil contempt proceeding is in effect a continuation of the main action and therefore a party to a suit may not review upon appeal an order fining or imprisoning him for civil contempt except in connection with appeal from a final judgment in the main action.” Wright, Civil and Criminal Contempt in the Federal Courts, 17 F.R.D. 167, 176 (1955). On the other hand, it is equally well established that criminal contempt proceedings are “independent of the main action” and any conviction therein is “a final order and appealable * * *.” Wright, Civil and Criminal Contempt in the Federal Courts, supra, at 176; Duell v. Duell (1949), 178 F.2d 683, 688, 14 A.L.R.2d 560. And in that connection, the appellee concedes that, if the contempt proceedings be deemed criminal in nature, the judgment of the District Court must be reversed for failure to observe the procedural requirements mandated in such proceedings.
We are of the opinion the contempt proceedings herein were criminal in character, that the judgment of contempt is therefore appealable, and, since there was a denial of due process in the proceedings as had, the judgment must be reversed.
The true distinction between civil and criminal contempts lies in “what * * * the court primarily seek[s] to accomplish by imposing sentence” in the proceedings. Shillitani v. United States (1966), 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; International Business Machines Corp. v. United States (2d Cir. 1973), 493 F.2d 112, 114-5, cert. denied, 416 U.S. 995, 94 S.Ct. 2409, 40 L.Ed.2d 774; Dobbs, Contempt of Court; A Survey, 56 Cornell L.Rev. 183, 235 (1971). Civil contempt, on the one hand, is “ ‘wholly remedial’ serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance.” Southern Railway Company v. Lanham (5th Cir. 1969), 403 F.2d 119, 124, 33 A.L.R.3d 427; Cromaglass Corporation v. Ferm (3d Cir. 1974), 500 F.2d 601, 604. Civil contempt is conditional or contingent in nature, terminable if the contemnor purges himself of the contempt. De Parcq v. United States Court for So. Dist. (8th Cir. 1956), 235 F.2d 692, 699. On the other hand, criminal contempt is punitive in nature, is intended to vindicate the authority of the court, and cannot be purged by any act of the contemnor. Nye v. United States (1941), 313 U.S. 33, 43, 61 S.Ct. 810, 85 L.Ed. 1172. It is “unconditional, since it penalizes yesterday’s defiance rather than seeking to coerce tomorrow’s compliance. It cannot be ended or shortened by any act by defendant.” Wright & Miller, supra, at 585.
Measured by these standards, we think it obvious that, in essence, these contempt proceedings were criminal in nature. The fine imposed was unconditional and punitive in character; it ran to the clerk of the court and not to the appellee. It was not intended to be “compensatory” of any losses sustained by the appellee as a result of the contempt. Had the fine been intended for the benefit of the appellee by way of compensation for loss sustained, it would have been made “payable to the complainant” and would necessarily have been “based upon evidence of complainant's actual loss; ” moreover, the “right [of the appellee], as a civil litigant, to the compensatory fine [would have been] dependent upon the outcome of the basic controversy.” United States v. Mine Workers (1947), 330 U.S. 258, 304, 67 S.Ct. 677, 701, 91 L.Ed. 884. It is true the appellee stated it was prepared to prove losses of $21,000 per day but it actually offered no evidence “of complainant’s actual loss.” And the fine imposed bears no possible relation to the daily loss as claimed by the appellee. The fine was thus clearly punitive.
We consider of no moment that the proceedings were begun and designated as a civil contempt proceeding. The nature of the fine imposed determines the character of the proceedings without regard to the characterization of the proceedings, either procedurally or substantively, as made by the parties themselves. See Shillitani, supra; Southern Railway Company v. Lanham, supra.
After the District Court had made its oral ruling imposing a fine of $10,000 on the appellant Union, it requested the appellee to submit a formal order, embodying findings of fact and conclusions of law in conformity with its ruling. The appellee did that. In its findings of fact, as so submitted, it included no finding on the amount of loss, if any, sustained by the appellee on account of the alleged violation of the temporary restraining order. It did, however, describe the proceeding as one in “civil contempt” ánd provided that the fine imposed be paid to the appellee. The appellant, it is argued by the appellee, objected to this latter provision and, in the course of stating its objection, observed it made no difference to whom the fine was paid in determining whether the proceedings in contempt were civil or criminal. The appellant did, it is admitted, contend at all times that the proceedings were criminal. The Court, however, on its own, made its own decision, as evidenced by the final order entered, that the fine should be paid to the clerk of the court and not to the appellee and omitted the language describing the proceeding as for “civil contempt.” And this was in keeping with its earlier ruling, which was manifestly expressive of a criminal contempt rather than a civil contempt.
The conviction for contempt is accordingly vacated and the cause is remanded for further proceedings not inconsistent herewith.
. The appellee, with commendable candor, states in its brief “that if the conviction were determined to be criminal contempt (of which this Court would have jurisdiction) it could not be defended because the procedure was clearly inadequate for criminal contempt.” (Footnote omitted.)
. See Wright & Miller, Federal Practice and Procedure, § 2960, vol. 11 at 584:
“The relief granted in civil contempt proceedings, * * * is compensatory or coercive. This often takes the form of a fine in the amount of the damage sustained by plaintiff * *
. In Lanham the Court imposed an unconditional fine, payable as in this case to the clerk of court, for contempt in wilfully failing to obey an order for production in a civil action. The contempt proceedings were described as civil by the District Court. The appellate court held, however, that the proceedings were criminal since it afforded no relief to the private suitor and did not permit purgation.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer: |
songer_geniss | G | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
David C. MEYERS, et al., Plaintiffs, Charles C. Deacy, Chief of the Receivership Division, Department of Insurance, State of Alabama, Plaintiff-Appellee, v. Shearn MOODY, Jr., Defendant-Appellant.
No. 83-1332
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Jan. 23, 1984.
W. Briscoe Swan, Houston, Tex., for defendant-appellant.
Wright & Patton, William E. Wright, Houston, Tex., James W. Webb, Montgomery, Ala., for plaintiff-appellee.
Robert L. Blumenthal, Mark S. Werbner, Jonathan Thalheimer, Dallas, Tex., for Ward.
Before BROWN, TATE and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:
Shearn Moody, Jr. brings this interlocutory appeal challenging the district court’s issuance of a preliminary injunction restraining him from “secreting, moving, disposing of, hypothecating, wasting, dissipating or transferring” any assets pending efforts by the appellee to satisfy a judgment won against Moody more than three and a half years ago. Moody asserts that the preliminary injunction is not supported by the evidence before the district court and that the wording of the injunction is ambiguous and overly broad.
The granting of a preliminary injunction rests in the sound discretion of the district court, and will be overturned only on a showing of abuse of that discretion. Commonwealth Life Insurance Co. v. Neal, 669 F.2d 300, 303 (5th Cir.1982); Foley v. Alabama State Bar, 648 F.2d 355 (5th Cir.1981). The factual findings made here by the district court are amply supported by evidence advanced by the appellee. Matuszak v. Houston Oilers, Inc., 515 S.W.2d 725, 728 (Tex.Civ.App.1974). Moody’s activities since the institution of this lawsuit must engender some suspicion that he is attempting to place assets beyond the reach of his judgment creditor. Under these circumstances, no abuse of discretion appears in the issuance of the preliminary injunction. Moody’s assertion that his financial transactions, though legitimate, are too complex to be understood by appellee and, implicitly, by the district court, requires no response.
The preliminary injunction order issued by the district court meets the specificity requirements of Fed.R.Civ.P. 65(d). The judgment against Moody which appellee seeks to execute exceeds the aggregate value of Moody’s reported assets; consequently it is appropriate for the preliminary injunction to extend to all of Moody’s assets. Any waste, dissipation, or transfer of assets by Moody has a direct impact on appellee’s potential ultimate recovery. See Carter v. City of Houston, 255 S.W.2d 336, 338 (Tex.Civ.App.1953). A similar preliminary injunction was recently upheld by the Sixth Circuit in USACO Coal Co. v. Carbomin Energy, Inc., 689 F.2d 94 (6th Cir.1982).
Moody complains that the preliminary injunction makes no exemption for living expenses and day-to-day business transactions. The trial judge orally assured Moody that ordinary living expenses were not a subject of the injunction, and we are satisfied that Moody faces no threat of contempt on this account. As to everyday business expenses, we must read the trial court’s failure to exempt them from the order to mean that Moody is prohibited from moving or expending any funds for business purposes. In light of the facts that Moody is evidently not engaged in any traditional business and that all of his reported assets are subject to the appellee’s execution of judgment, even so strict a preliminary injunction does not constitute an abuse of discretion. If Moody can establish that his normal business activities will effect no diminution of the assets available to satisfy the judgment, he is free to move the trial court for modification of the preliminary injunction, something he has not done thus far.
AFFIRMED. Costs to be borne by Appellant.
. This question was placed explicitly before the district court at the preliminary injunction hearing, and counsel for appellee urged the court not to exempt such expenses:
THE COURT: All right. What about the exempting transactions in the ordinary course of business?
MR. BLUMENTHAL: Your Honor, I think that there really ought not to be any ordinary course of business at this point except for living expenses. We have an eleven million dollar Judgment and execution ought — it’s a six million dollar Judgment with interest, it’s now in excess of eleven million dollars.
In view of this exchange we cannot suppose that the failure to exempt business expenses was accidental.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_origin | F | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Tom MOULTON, Petitioner-Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
No. 83-2263.
United States Court of Appeals, Tenth Circuit.
May 4, 1984.
Tom Moulton, pro se.
Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Carleton D. Powell, and Joan I. Oppenheimer, Attys., Tax Div., Dept. of Justice, Washington, D.C., for respondent-appellee.
Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.
PER CURIAM.
This three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
This is an appeal from an order of the United States Tax Court sustaining the Commissioner of Internal Revenue’s deficiency and additional tax assessments in the petitioner’s federal income taxes for the years 1975-1979.
Upon being notified by the Commissioner that a deficiency existed, petitioner sought a redetermination in the United States Tax Court. In that petition he claimed that the wages and number of hours used to determine the deficiency, as shown by the Department of Labor statistics, were not correctly applied in his case.
After a hearing before the tax court, where petitioner appeared pro se, the deficiency and additional taxes determined by the Commissioner were sustained. This appeal followed.
On appeal, petitioner claims primarily that the tax court failed to recognize his Fifth Amendment privilege against self-incrimination.
A review of the record of the proceedings in the tax court reveals that the petitioner was treated fairly by the court. He was given ample opportunity to argue his ease and submit any supporting evidence. Petitioner failed to overcome the presumption of correctness attributed to the Commissioner’s federal income tax deficiency and additional tax assessments. Ruidoso Racing Ass’n, Inc. v. Comm’r, 476 F.2d 502 (10th Cir.1973). The findings of fact made by the tax court were not clearly erroneous. See Merchants Nat’l Bank of Topeka v. Comm’r, 554 F.2d 412 (10th Cir.1977).
The Fifth Amendment general objection has been repeatedly determined by this court not to be a valid claim of the constitutional privilege. United States v. Stillhammer, 706 F.2d 1072, 1076 (10th Cir.1983).
The respondent requests on appeal that this court consider entering sanctions against the petitioner pursuant to Fed.R. App.P. 38.
Petitioner did not raise any issue at any level of review that has not already been addressed by this court or other circuits numerous times. Petitioner made little, if any, attempt in the tax court to produce books and records of his income to rebut the presumption of correctness. The tax court judge found the petitioner’s arguments lacking in legal merit. We agree with that finding.
This court has the inherent power to impose a variety of sanctions in order to regulate our docket, promote judicial efficiency, and deter frivolous filings. See, e.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980); Link v. Wabash R. Co., 370 U.S. 626, 632, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962); Whitney v. Cook, 99 U.S. 607 (1878). We have imposed double costs and attorney’s fees for the taking of frivolous appeals in other contexts. See, e.g., United States v. Rayco, Inc., 616 F.2d 462, 464 (10th Cir.1980).
Accordingly, double costs and attorney’s fees are hereby imposed against petitioner for the taking of a frivolous appeal. The matter is REMANDED to the United States Tax Court to make the appropriate determinations. The judgment of the tax court is AFFIRMED. The mandate shall issue forthwith.
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_casetyp1_7-3-3 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - commercial disputes".
Howard B. PASHMAN, Plaintiff-Appellant, v. CHEMTEX, INC., Defendant-Appellee.
No. 1265, Docket 87-7240.
United States Court of Appeals, Second Circuit.
Argued June 18, 1987.
Decided July 17, 1987.
Philip Esterman, New York City (Gideon J. Karlick, Esterman & Esterman, New York City, of counsel), for plaintiff-appellant.
Wayne A. Cross, New York City (Karen J. Pordum, Reboul, MacMurray, Hewitt, Maynard & Kristol, New York City, of counsel), for defendant-appellee.
Before OAKES, MESKILL, and PRATT, Circuit Judges.
GEORGE C. PRATT, Circuit Judge:
This appeal from a grant of summary judgment against plaintiff Howard Pash-man requires us to assess the meaning of “pretax profits”, as used in Pashman’s employment agreement with defendant Chem-tex, Inc., 664 F.Supp. 701. This agreement called for Pashman to receive a “participation of ten [10] percent of the pretax profits on all sales made by” him. Because the meaning of this contract is clear, and as applied to the sale at issue entitled Pash-man to no more, and perhaps less, than he has already received, we agree with the district court that Pashman raises no “genuine issue of material fact”, Fed.R.Civ.P. 56, and therefore affirm.
BACKGROUND
Much of the factual background of this case is undisputed. In 1977 Pashman went to work for Chemtex as a salesman of paint plants. His compensation was established by a clause in his employment contract that provided:
Your compensation for these services will be a participation of ten [10] percent of the pretax profits on all sales made by you. A draw against this participation in the amount of $3,500 per month will be paid to you monthly. Participation will be paid, net of draws, on the basis of 50% payable on contract effectuation and 50% payable on the acceptance of the plant by the customer.
Under this agreement Pashman participated in the sale of only one plant, to Egyptian businessman Adel Khalil. The plant was to be constructed in Egypt.
By the terms of the sale, Chemtex agreed to sell its “equipment, formulae, and technical services” to Khalil for $7.6 million. Khalil, Chemtex, and another party (Issa Nakleh) formed an Egyptian corporation, the Egyptian-American Paint Company, to facilitate the transaction and eventually purchase the plant from Khalil. Chemtex holds 36.67% of the equity in the company, Khalil holds 60%, and Nakleh the remaining 3.33%.
In April 1981, three years after negotiating the Egyptian sale, Pashman quit his job at Chemtex. Based on his draw-against-commission, he had received a total of $162,752 from Chemtex.
Later in 1981 the terms of the sales agreement between Chemtex and Khalil were altered. The sales price increased from $7.6 million to $10.1 million, and Chemtex formed an Austrian subsidiary, as a condition of obtaining Austrian financing, to export many of the materials and equipment to be used in the project.
In 1985, Pashman filed suit against Chemtex alleging that he should receive 10% of the $10.1 million sale price received by Chemtex, less the $162,750 he had already drawn. While his prayer for relief asked for damages of $5 million, it appears that his actual claimed damages are $847,-250.
Chemtex moved for summary judgment, submitting documents showing it had actually lost money on the transaction, approximately $722,000. Since the deal generated no profits for Chemtex, it argued that Pashman is entitled to no commission and thus that Pashman was in fact $162,750 ahead.
In response, Pashman argued that the term “profits” in his contract actually meant “gross revenues”, and that Chem-tex’s accounting — which deducted costs from total revenues — was therefore inaccurate, creating an issue of fact as to actual profits.
Judge Walker concluded that the term “pretax profits” was clear on its face, saying that “as a general rule, a court should not interpret the word 'profits’ as synono-mous with ‘revenues,’ but instead read the term ‘profits’ as referring to ‘revenues minus costs.’ * * * Plaintiff has provided no evidence to show that a different meaning was intended when the parties used the term ‘pretax profits’ in plaintiffs employment contract.” Pashman v. Chemtex, Inc., 664 F.Supp. 701, 704 (S.D.N.Y.1987). Pashman now appeals.
DISCUSSION
It is plain that the district court was correct in stating the general rule that profits are not equal to revenues. Indeed, we would have thought that no citation was necessary for the proposition. If citation is needed, the cases mentioned by the district court, Catalano v. J.C. MacElroy Co., 13 A.D.2d 914, 215 N.Y.S.2d 873 (1st Dep’t 1961), and Martin v. City of New York, 264 A.D. 234, 35 N.Y.S.2d 182 (1st Dep’t 1942), provide sufficient support. Perhaps the first rule of accounting is that the black ink of profit is not entered into the ledger until expenses are deducted from gross revenues.
Chemtex’s gross revenues on the Khalil sale are agreed by the parties to be $10.1 million. Thus, the only dispute centers on how much Chemtex was entitled to deduct as expenses in calculating pretax profits.
We begin by noting what is not at issue on this appeal. Since Pashman did not below challenge the propriety of each individual cost deducted by Chemtex, he cannot seek to create an issue of fact on appeal by claiming that this or that expense was not proved by Chemtex. See Bailey Enterprises, Inc. v. Cargill, Inc., 582 F.2d 333, 334 (5th Cir.1978) (per curiam); 6 Moore’s Federal Practice 11 56.27, at 56-1557 (2d ed. 1985) (“An appellant may not, as a general rule, overturn a summary judgment by raising in the appellate court an issue of fact that was not plainly disclosed to the trial court.”). Pash-man’s vague challenges below about the “audit trail” submitted by Chemtex in justification of its claimed expenses did not suffice to raise a genuine issue of fact. See Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Project Release v. Prevost, 722 F.2d 960, 968-69 (2d Cir.1983).
Pashman must therefore stand or fall on his claim that each and every one of the “costs of sale” claimed by Chemtex is invalid simply by reason of Chemtex’s purchase of an equity share in the joint venture with Khalil. This step, according to Pashman, served to make Chemtex its own “customer”—in effect, the purchaser as well as the seller of the plant—and magically transformed the costs into “capital investments”, leaving the entirety of the gross revenues, $10.1 million, as “profits”. This is the issue of fact Pashman articulates in his brief on appeal as precluding summary judgment.
We disagree. This means of financing the paint plant, far from making Chemtex the purchaser of the plant, instead was merely a means of bringing about the sale. It is undisputed that purchasing the equity share in the project was a necessary expense for Chemtex to close the deal and obtain financing for it. It is further undisputed that Pashman was well aware of this necessity when he negotiated the deal for Chemtex. Under these circumstances, it borders on the frivolous for Pashman to claim that the costs Chemtex incurred on this sale were really the company’s “capital expenses”.
Indeed, under the circumstances of this transaction, the $1.9 million Chemtex spent toward purchasing its share in the paint company was itself a cost of the sale. While this is true only to the extent that the cost ($1.9 million) exceeds the value of what Chemtex received for it (the equity share in the project), Pashman does not dispute the statement of John M. Ryzewic, a Vice-President of Chemtex, in his affidavit that “[bjecause of the Project’s massive delay and cost overruns, the volatile nature of Egypt and Egypt’s foreign exchange problems, Chemtex currently treats its equity participation * * * as a 100 percent selling expense.” In other words, the value of Chemtex’s equity share is zero.
In relying solely on the form of and label attached to the transaction, Pashman fails to raise any issue of fact. The mere fact of a purchase of equity will not blind us to the true nature of the underlying transaction; Chemtex sold a paint plant to Khalil, and incurred certain expenses in doing so-including having to purchase equity in the paint company. Pashman has not produced any evidence that the equity expenditure's usefulness extended beyond facilitating the Egyptian plant sale. Moreover, Pashman has not intelligibly argued that the purchase of equity in this case altered the character of other project expenses to make them "capital expenditures".
Pashman has thus not shown that Chem-tex incorrectly calculated its net loss on the transaction. As of the date of the motion for summary judgment, Chemtex had lost some $722,000 on the deal, meaning that Pashman is entitled to no commission. Indeed, since he has already drawn $162,750 against his commission, he would not be entitled to further compensation until net profits pass $1.6 million. Thus, even if the $1.9 million in equity is not deducted from Chemtex’s revenues, there was still no issue of fact raised, since it would bring Chemtex into the black on the transaction only to the extent of $1.2 million. In fact, since Pashman is entitled to only half his commission until the project is actually completed, he would be ineligible for any further compensation (beyond the $160,000 he has already received) until profits exceed $3.2 million (when the 5% to which he is thus far entitled would be more than $160,000).
In short, on any conceivable construction of the facts, Pashman is not entitled to any further compensation for the Egyptian sale. In order to succeed he would have to be able to show that costs are not costs, that a plant that is not now and likely never will be completed is complete, and that a necessary expense of completing a sale is in reality a “capital expenditure”. We decline to subject defendant and the judicial system to the burden of such a futile quest.
Affirmed. Chemtex’s request for sanctions is denied.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - commercial disputes"?
A. contract disputes-general (private parties) (includes breach of contract, disputes over meaning of contracts, suits for specific performance, disputes over whether contract fulfilled, claims that money owed on contract) (Note: this category is not used when the dispute fits one of the more specific categories below)
B. disputes over government contracts
C. insurance disputes
D. debt collection, disputes over loans
E. consumer disputes with retail business or providers of services
F. breach of fiduciary duty; disputes over franchise agreements
G. contract disputes - was there a contract, was it a valid contract ?
H. commerce clause challenges to state or local government action
I. other contract disputes- (includes misrepresentation or deception in contract, disputes among contractors or contractors and subcontractors, indemnification claims)
J. private economic disputes (other than contract disputes)
Answer: |
songer_r_bus | 0 | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LUNSFORD v. UNITED STATES.
No. 4491.
United States Court of Appeals Tenth Circuit.
Oct. 30, 1952.
A. W. Trice, Ada, Okl. (Busby, Harrell & Trice, Ada, Okl., on the brief), for appellant.
Edwin- Langley, U. S. Atty., Muskogee, Okl. (Paul Gotcher, Asst. U. S. Atty., Muskogee, Okl., on the brief), for appellee.
Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges-.
HUXMAN, Circuit Judge.
An indictment containing three counts was returned against appellant, Gail Luns-ford, in the United States District Court for the Eastern District of Oklahoma. Counts One and Two charged that on July 27, 1951, he made two separate offers of a bribe of $50 to Bernard R. Holmes, Deputy Collector of Internal Revenue. Count Three charged that on August 8, 1951, he paid Holmes a bribe of $100 to induce him to violate his official oath with respect tó an audit of defendant’s income tax return. A jury trial resulted in a verdict of not guilty on Counts One and Two and of guilty on Count Three.
Appellant contends that the acquittal on the counts charging the offering of a bribe conclusively established that issue of fact for all purposes of the trial. From this it is argued that since it is essential that an offer to pay a bribe must first be established to sustain the conviction of paying a bribe, the jury’s acquittal of charges of offering to pay a bribe precludes the finding that a bribe was paid. Assuming without deciding that this is correct, it does not apply to the facts of this case. Counts One and Two related to an alleged transaction on July 27, while Count Three charged giving a bribe on August 8. Here not only is there a difference in time but also a difference in the essential elements of the offenses charged. The jury may well have concluded that the evidence did not support the charge that appellant offered to bribe the officer on July 27, but evidently did conclude that on August 8 thereafter he did bribe the officer. It is, therefore, obvious that the acquittal on the first and second counts is not a bar to a prosecution of the offense charged in Count Three.
Appellant further contends the evidence is insufficient to sustain the verdict on Count Three. There was a sharp conflict in the evidence offered by the Government and that given by Lunsford. Since our review is limited to a determination whether there is substantial evidence supporting the verdict, we review only that evidence and the inferences reasonably to be drawn therefrom, which tend to support the verdict.
Mr. Holmes, the Collector, testified that he had an appointment with appellant on July 27, 1951, to review his income tax records; that after working on them for some time he stated that it appeared there was a shortage of approximately $7,000 to $8,000; that appellant remarked that since collectors only make “spinach” he would give him $50 to “make it as easy as possible on me.” Holmes further testified that later in the day appellant again insisted that he take $50, assuring him that he could be trusted; that no one would be the wiser and that the two had better feather their nest while the time was right. Holmes testified that he refused the offer and secretly notified his superior. He was advised to make another appointment with appellant. This he arranged for August 8. At that time the officers had wired the room where the meeting was to be held with a wire recorder, so the conversation could be recorded. There was also a Treasury Department agent sitting in front of the open door leading to the room where the interview was to be held. The results of the recording were poor and admittedly the recording had little probative value. So also the Treasury Department agent could hear too indistinctly to give evidence of much value.
Holmes testified that at the meeting on August 8 appellant again offered him $50 as a bribe, to which he replied that that was a small amount “to be sticking my neck out for’’ but that for $100 he would close out Lunsford’s account; that Lunsford agreed and left the office to secure the sum in cash; that upon his return he paid Holmes the $100 cash, at which time the Collector gave him a properly signed form indicating that no additional tax was due. The testimony by Holmes, if believed, as it no doubt was, clearly established that the $100 was paid as a bribe and not as a settlement of any tax liab’hty due from appellant.
Appellant raised the defense of illegal entrapment in the trial court, as he does here. He contends that since the jury found he was not guilty of offering a bribe on July 27 the Government officials had no lawful basis for entrapping him on August 8.
To lawfully entrap one, it is not necessary to know that the suspect is violating the law or that there exists in his mind the intent so to do. It is only necessary to have reasonable grounds to believe that he is engaged in unlawful activities or intends to engage therein. In other words, officers may not initiate the intent and purpose to violate the law. Under the authorities in Footnote 2, it was not necessary to prove that appellant had the actual intent to bribe the collector in order to legally entrap him. It was enough if the officer had reasonable grounds to believe that he intended to do this. From the facts as outlined above, if believed, as they no doubt were by the jury, the officers certainly had reasonable grounds to believe that Lunsford was endeavoring to give'a bribe and were thus justified in laying a trap to catch him in the act of giving a bribe.
It is further urged as a ground for reversal that the trial court erred in its instruction relating to entrapment and that a statement by the court to the jury, after their retirement, on that issue was prejudicial. We think the court’s instruction with respect to entrapment was proper and adequately advised the jury with respect to that issue. If subject to criticism, it is that it is too detailed and somewhat repetitious. The court instructed the jury that when the defense of unlawful entrapment was presented the Government 'had the burden of proving beyond a reasonable doubt that there was not “an illegal entrapment.” On the question of what constituted illegal entrapment, the court told the jury that “the United States may not initiate criminal acts, nor entice or'induce'defendant to commit a crime in order that they may thereafter prosecute them.” “In other words the government can’t go out to an innocent party and get him to commit a crime in order that he may prosecute him.” It further told the jury that if the idea of a bribe originated with a Government collector the subsequent entrapment would be unlawful but “On the. other hand, if the defendant, without suggestion from the government agent, voluntarily'proposed the payment of money to influence his action, the agent of the government’s action, could thereafter lawfully arrange a plan or a trap, ■ * * *.” These statements declare the law in plain, understándable language.
Appellant took exception to a remark made by the trial court to an inquiry by a juror after the case had been submitted to the jury. The reporter' did not get the juror’s question but the court’s- answer' indicates that it related to the question of entrapment. In response to the question the court said: “It depends on whether he paid it with the intent .to invluence the agent. And on the third count you must determine entrapment I think on the third count before at least' you could find the defendant guilty. Now you could find the defendant not guilty without determining entrapment. I told you that this morning.” It is urged that the court’s remark in the charge that if Lunsford paid the money with the intent to influence Holmes “the question of entrapment wouldn’t be in it” and the above answers to the juror’s question were prejudicially erroneous. It is contended that entrapment when raised remains in the case and that the jury, therefore, might be misled that under stated conditions entrapment “wouldn’t be in it.”
The instructions must be considered as a whole and particular statements must be considered in their proper setting. It is not proper to lift them out of context and consider them separately. What the court ■ told the jury was that if they believed that Lunsford initiated an intent to pay the money to influence the' 'collector then there could be no question of unlawful entrapment. As already pointed out, the court went to great length to instruct the jury as to the elements - of the offenses charged and under what conditions the officers could lawfully entrap appellant. These two remarks to which objection is made must be considered as a part of the whole charge and, when so considered, are not erroneous. A careful consideration of the entire record leads to the conclusion that no prejudicial error occurred.
Affirmed.
. Galatas v. United States, 8 Cir., 80 F.2d 15; Marx v. United States, 8 Cir., 86 F. 2d 245; Walker v. United States, 8 Cir., 93 F.2d 383; Carlson v. United States, 10 Cir., 187 F.2d 366.
. Heath v. United States, 10 Cir., 169 F. 2d 1007; Mitchell v. United States, 10 Cir., 143 F.2d 953; Ryles v. United States, 10 Cir., 183 F.2d 944.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer: |
songer_state | 45 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
MURRAY v. RIO GRANDE MOTORWAY, Inc.
No. 3702.
United States Court of Appeals Tenth Circuit.
Nov. 19, 1948.
Delbert M. Draper, of Salt Lake City, Utah (Edgar C. Jensen, of Salt Lake City, Utah, on the brief), for appellant.
A. H. Nebeker, of Salt Lake City, Utah (S. J. Quinney and Paul H. Ray, both of Salt Lake City, Utah, on the brief), for appellee.
Before, BRATTON, HUXMAN and MURRAH, Circuit Judges.
MURRAH, Circuit Judge.
Appellant brought this action against appellee, Rio Grande Motorway, seeking damages for personal injuries, alleging that one of the appellee’s buses, on which he was a standing passenger, “suddenly and violently lurched to one side” and hurled him against a seat with such “force and violence” that he was1 ruptured in his left groin.
At the conclusion of all the evidence, the trial court sustained a motion for a directed verdict on the ground that the movement complained of was no more than the normal jostling or movement of the bus as it traveled along the highway. The appellant appeals from a judgment for the appellee bus company on the directed verdict. Jurisdiction is based upon diversity of citizenship and requisite amount in controversy, and the only question presented here is whether the evidence was sufficient to take the case to the jury on the issue of negligence.
Although the carrier owed the standing passenger the highest degree of care commensurate with the peculiar circumstances involved, the passenger assumed the usual and ordinary jerks and lurches incident to the movement of the bus over the public highways. Wichita Transportation Co. v. Braly, 10 Cir., 150 F.2d 315, 317; United States v. De Back, 9 Cir., 118 F.2d 208; McQuin v. Santa Fe Trail Transportation Co., 155 Kan. 111, 122 P.2d 787; Dempsey v. Market Street Ry. Co., 23 Cal.2d 110, 142 P.2d 929; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311; McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959; Morrisey v. Union Pacific Railroad Co., 68 Utah 323, 249 P. 1064.
To parapharse the language of the Utah Supreme Court in the Morrisey case, supra, it is common knowledge and experience that passengers on trains and buses may be shaken and jostled by the ordinary lurches and jerks which are unavoidable in the operation of trains and buses over grades and around curves. A permissible inference of actionable negligence arises only when the lurches or jerks .are unusual and extraordinary — such as would not have happened in the ordinary .course of the operation of the bus upon the 'highway. In determining whether the movement of the bus was so unusual as to justify the inference of negligence, the nature of the accident and the effect of the :bus movement upon the passenger may be taken into consideration. McIntosh v. Los Angeles Ry. Corp., 7 Cal.2d 90, 59 P.2d 959, 961; Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311, 316.
In support of his allegations appellant testified that at the time of the accident he was enroute to Salt Lake City as a passenger on appellee’s bus. Not being able to obtain a seat on the bus he was standing in the aisle holding with his left hand onto a %ths inch rope which ran through loops around the baggage shelf above the seats. “While so standing there was a violent motion of the bus. It changed direction or jumped. There was an unusual motion and I was propelled against the seat. I struck Miss Snow (a seated passenger) on the shoulder and feel across her lap,” and “as I fell my left groin struck the corner of -the seat.” After regaining his feet he stated to passenger Snow “that the bump 'hurt like everything,” but he did not complain to the driver or notice whether any .of the other passengers had been disturbed ;by the lurch, because “I didn’t even know I was hurt.” It was his impression that -the bus was traveling about 50 miles per hour because he was being “jostled considerably,” but that when the accident occurred he.could not say whether the speed ;.had “lessened or increased.” That there was just an “unusual motion,” but he did not know what caused it.
Passenger Snow testified that she was seated near the aisle where appellant was standing; that somewhere along the trip “he fell against the seat and nearly fell into my lap.” That he apologized and remarked that the fall had hurt him. She did not testify however concerning any unusual motion of the bus. The driver did not recall any unusual or extraordinary incident.
It is suggested, and the trial court was of the opinion, that there was nothing in the evidence to show that appellant’s fall was the result of a sudden and violent lurch; that it could have been the result of the passenger becoming unbalanced while holding onto the sliding baggage rope. The trial court took the view that the facts in this case were analogous to those in the Morrisey case supra, and required the same conclusion. In that case the descriptipn of the jolt or lurch and its consequences as detailed by the witnesses did not characterize it as unusual or extarordinary, but "rather affirmatively showed it to have been a usual or customary incident of railroad transportation. In our case, however, the motion of the bus was described as “unusual” and “violent,” propelling the standing passenger against the seat and across the lap of a seated passenger.
True, appellant was unable to describe with particularity the place or cause of the motion, which he claimed caused his fall and injury. But, he was standing in the bus with his head above the windows, it was dark and he was unfamiliar with the surroundings; he cannot, therefore, be charged with the duty of describing the nature, the place or the cause of the movement which he testified was of sufficient force to propel him against the seat causing an immediately demonstrable injury. We think these circumstances were sufficient to generate a permissible inference of negligence and an issue of fact for the jury.
It is suggested that the evidence conclusively shows contributory negligence, but we think at most it was a question for the jury. Cf. Waite v. Pacific Gas & Electric Co., 56 Cal.App.2d 191, 132 P.2d 311.
Reversed and remanded, with directions to grant the appellant a new trial in accordance with the views herein expressed.
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_immunity | 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 refuse to reach the merits of the appeal because it concluded that the defendant had immunity (e.g., the governmental immunity doctrine)?" 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".
Benito CONCEPCION, Appellant, v. Menelio Cruz SOTO and Virgin Islands Water and Power Authority.
No. 75-1155.
United States Court of Appeals, Third Circuit.
Argued April 22, 1975.
Decided July 7, 1975.
Leroy A. Mercer, Christiansted, St. Croix, V. L, for appellant.
Verne A. Hodge, Atty. Gen. of the Virgin Islands, Emory W. Reisinger, Asst. Atty. Gen., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before HASTIE, GIBBONS and HUNTER, Circuit Judges.
OPINION OF THE COURT
HASTIE, Senior Circuit Judge.
This is an appeal from a judgment that denied the petition of a judgment creditor for an order “commanding the [Virgin Islands Water and Power Authority] to make payment of” a $20,000 money judgment, plus costs and an attorney’s fee, entered against the Authority in a tort action for personal injury and property damage. Failure of the Authority to respond to the original complaint had resulted in imposition of liability by default. Thereafter, damages had been determined by a jury.
The Virgin Islands Water and Power Authority is an incorporated instrumentality of the Government of the Virgin Islands. In the Act of August 13, 1964, No. 1248, Sess.L.1964, 30 V.I.C. (1974 Supp.) § 103, the Legislature of the Virgin Islands created this corporate instrumentality, defined its functions and powers, authorized it to issue bonds and created and limited its amenability to judicial process. While the enumerated powers of the Authority included the capacity “to sue and be sued”, 30 V.I.C. § 105(4), its amenability to judicial process was restricted by the following provision:
“All property including funds of the Authority shall be exempt from levy and sale by virtue of an execution, and no execution or other judicial process shall issue against the same nor shall any judgment against the Authority be a charge or lien upon its property; Provided, however, That this subsection shall not apply to or limit the right of bondholders to pursue any remedies for the enforcement of any pledge or lien given by the Authority on its rates, fees, revenues, or other income or any other funds.” 30 V.I.C. (1974 Supp.) § 111(a).
We think that the relief sought here, a judicial order that would compel the Authority to surrender its assets in payment of a money judgment for tortious personal injury, is within the meaning of the quoted prohibitory language, since the order sought would be “judicial process” designed to reach the property of the Authority.
This does not make the right to sue the Authority or the obtaining of judgment against it meaningless. As a responsible agency the Authority can, and apparently does, carry liability insurance.
Separately, the appellant contends that the quoted provision of Section 111(a) was in effect repealed by a subsequent comprehensive waiver of governmental immunity from tort liability that was enacted in the 1971 Virgin Islands Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3408.
Whether this is a tenable argument depends upon the following provision of the Authority creating 1964 statute:
“Insofar as the provisions of this chapter are inconsistent with the provisions of any other Act of the Legislature of the Virgin Islands, the provisions of this chapter shall be controlling and no law heretofore or hereafter passed governing the administration of the Government of the Virgin Islands or any parts, office, bureaus, departments, commissions, municipalities, branches, agents, officers, or employees thereof shall be construed to apply to the Authority unless so specifically provided . . . .” 30 V.I.C. (1974 Supp.) § 122.
The Tort Claims Act does not expressly overrule the particular exemption from judicial process granted in Section 111(a) of Title 30 and now relied upon by the Authority. Indeed, the Tort Claims Act makes no mention whatever of the Authority. But Section 122 of Title 30, in terms and in legal effect, has precluded repeal of Section 111(a) by implication. Therefore, the Tort Claims Act cannot properly be read as having that effect.
The judgment will be affirmed.
. The briefs indicate that the Authority carries liability insurance but that the insurer has refused to entertain a claim in this case unless the default shall be set aside and opportunity provided to defend the action on its merits.
. While we hold that the general waiver of governmental immunity in 33 V.I.C. § 3408 does not affect the special statutory provisions concerning the Water and Power Authority, we also observe that, even if the Tort Claims Act were applicable here, the plaintiff would be confronted with a statutory exclusion of default judgments from the benefits of the Tort Claims Act. 33 V.I.C. (1974 Supp.) § 3411. The time and method of asserting such a claim also are restrictively prescribed. 33 V.I.C. (1974 Supp.) § 3409. •
Question: Did the court refuse to reach the merits of the appeal because it concluded that the defendant had immunity?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_jurisdiction | A | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" 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 opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
QUINN, County Assessor, et al. v. AERO SERVICES, Inc.
No. 11907.
United States Court of Appeals Ninth Circuit.
Jan. 24, 1949.
Rehearing Denied March 14, 1919.
Harold W. Kennedy, County Counsel, and Andrew O. Porter and James A. Co-bey, Deputies County Counsel, Los Angeles County, all of Los Angeles, Cal., for appellant.
Francis B. Cobb, -of Los Angeles, Cal., for appellee.
Before STEPHENS, HEALY and BONE, Circuit Judges.
STEPHENS, Circuit Judge.
Quinn and Byram, County Tax Officers, appeal from the order of the bankruptcy court affirming its jurisdiction under Section 64, sub. a of the Bankruptcy Act, 60 Stat. 330, 11 U.S.C.A. § 104, sub. a(4), to redetermine the assessed valuation made by the County Board of Equalization of the bankrupt’s personalty for county property tax purposes. The bankruptcy court was entertaining a petition for the reorganization of Aero Services, Inc., under the bankruptcy law. For convenience, we sometimes refer to petitioner as “Aero” and, notwithstanding a petitioner in a reorganization proceeding is not strictly speaking a bankrupt, we sometimes refer to petitioner herein as the “bankrupt”.
Aero Services, Inc., owned the taxed personalty and also certain .real property, all situated in the county of Los Angeles, on the first Monday in March which is the tax and lien date in California. Calif.Rev. & Tax Code, Sections 405, 2192, 117, 2189. A verified declaration of the property for tax purposes was made and filed with the County Assessor on May 14, 1946, showing the estimated taxable value of the personalty as of the first Monday in March, 1946. Soon thereafter and prior to the first Monday in July, 1946, the County Assessor fixed the value of the personalty at the estimated figure of the declaration, $355,710.
Aero Services, Inc. initiated the reorganization proceedings on June 3, 1946, by filing its petition under Section 322 of Chapter XI of the Bankruptcy Act, 11 U.S.C.A. § 722. Aero was authorized to retain possession of the property. On July 1, 1946, the County Board of Equalization commenced its review of all assessments within the county for purposes of correcting any errors of the County Assessor and for purposes of equalizing the assessments. Neither Aero nor anyone for Aero took advantage of the law giving the owner of property the right to file an application, or appear at the public hearings before the Board to request a reduction in or a redetermination as to the personalty assessment. A tax bill was sent Aero based upon the assessment and the tax, in accord therewith, became due on November 1, 1946, and delinquent on December 5, 1946. On December 6, 1946, Aero filed a petition praying that an .order be made requiring the County Assessor and the County Tax Collector to show cause why the bankruptcy court should not redetermine the tax assessment value of the personalty, claiming the assessment to be grossly excessive.' The order issued and the county officers responded by objecting
to the jurisdiction of the bankruptcy court. The referee, after a hearing, overruled the objections and the bankruptcy court affirmed the order.
The issue is whether the bankruptcy court had' jurisdiction to redetermine the assessed valuation of the bankrupt’s personalty for county tax purposes and to fix the tax accordingly.
The bankruptcy court resolved the issue of its jurisdiction in the affirmative, upon its interpretation of Section 64, sub. a(4) of the Bankruptcy Act, 11 U.S.C.A. § 104, sub. a(4), which we quote in part: “* * * In case any question arises as to the amount or legality of any taxes, such question shall be heard and determined by the court”.
The court cited Lyford v. City of New York, 2 Cir., 137 F.2d 782, 786, in which the judge discusses Arkansas Corporation
Commission v. Thompson, 313 U.S. 132, 61 S.Ct. 888, 85 L.Ed. 1244, and states that in his opinion the effect of the Arkansas-Thompson case is to “restrict the court to* finding if the tax is legally due and to deny it power to review the action of a quasi-judicial taxing body [emphasis ours] in setting, after due hearing, a valuation of property for tax purposes.” The bankruptcy court felt that the real basis of the Arkansas-Thompson decision was that the Arkansas commission, with the bankruptcy trustee participating in the proceeding, acted in a quasi-judicial capacity in settling the tax. The trustee not having appealed, and the state tax proceedings having been concluded prior to the bankruptcy, the determination had become res judicata. In re Monongahela Rye Liquors, Inc., et al., 3 Cir., 141 F.2d 864, was relied upon.
The court, in our case, concluded [75 F. Supp. 347, 353] : “In the instant case the time for objection to the assessmént before the Board of Equalization had not expired at the time of' the within bankruptcy proceeding. There had been no hearing, finding or final order on the tax at the time of bankruptcy and it therefore appears that the determination of the amount of tax may be had in those pending bankruptcy proceedings, and accordingly this Court determines that the objection to the jurisdiction should be overruled.”
It is implicit in the bankruptcy court’s comment upon the Arkansas-Thompson case that that court was of the opinion that some phase of an adversary appellate hearing must have been held, with the taxpayer participating, before the bankruptcy court is precluded from exercising the power to reassess the property and finally fix a tax. That is, res judicata depends upon the participation of the taxpayer in a hearing before the Board of Equalization or at least this is so when the bankruptcy proceedings have been initiated before the assessment .has been finally determined by the Board.
Appellant thinks the Arkansas-Thompson case cannot be construed so broadly. He thinks the point controlling in the cited case is that an assessment is res judicata after a judicial review of the administrative act, whether or not the taxpayer has actually appeared, if, in fact, there is provision in the law for such review and the taxpayer has had a full right to appear and participate in such review. If by choice he does not avail himself of it, the assessment is final. We think the latter construction the correct one under Arkansas v. Thompson, supra, and as well, Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, at 578, 579, 67 S.Ct. 467, 91 L.Ed. 504.
In our opinion, the applicable procedure adopted for assessment of property taxes in California constitutes a quasi-j udicial determination. The assessment procedure functions from March to July and in .some cases into August. Between the first Mondays in the months of March and July the County Assessor is required to ascertain and assess all taxable property within his jurisdiction as of the first Monday in March. Sec. 405. Between the first Monday in March and the last Monday in June each taxpayer is required to file with the County Assessor a verified declaration of his taxable property. Sec. 441. In addition, the County Assessor is authorized to subpoena and examine any taxpayer with respect to any statement disclosing taxable property. Sec. 454. Upon completion of the assessment roll on or before the first Monday in July, by the assessor, he delivers it to the County Board of Equalization. Secs. 616, 617. The County Board of Equalization, upon receipt of the roll, gives legal notice by publication of the roll’s completion and the time at which the board will meet to equalize assessments. Sec. 1601. Taxpayers desiring changes in their assessments must, either in person or by an agent, file verified written applications for such changes, setting forth the supporting facts. Applicants may be present at stated hearing and must be examined under oath by the Board concerning the value of their property, if they so desire. Secs. 1607, 1608. The Board may, in the course of its hearing of any application, subpoena witnesses and take evidence and the Assessor and his deputies must be present to present evidence as needed. Secs. 1609, 1610. The session of the Board commences on the first Monday in July and continues not later than the third Monday in July. Sec. 1603. For the purpose of equalizing assessments the Board may increase or decrease individual assessments. Sec. 1605. Following the close of the Board’s session the corrected assessment roll is delivered to the County Auditor for totaling of the valuations thereon. Secs. 1614, 1646.
We think the procedure just outlined provides for a valid and constitutional determination, quasi-judicial in nature, whether or not the taxpayer petitions for a redetermination and whether or not he appears. We also think the fact that the reorganization proceeding antedated the Board of Equalization’s hearings is of no consequence. See Hagar v. Reclamation Dist. No. 108, 111 U.S. 701, 710, 4 S.Ct. 663, 28 L.Ed. 569. The bankruptcy court in its opinion correctly stated the law, though it did not follow it, where it said: “The minimum requirement apparently would be a determination by a quasi-judicial body in conjunction with a quasi-judicial hearing, or at least the right to such hearing.” See Commonwealth of Pennsylvania v. Aylward, 8 Cir., 154 F.2d 714; Luce v. City of San Diego, 198 Cal. 405, 245 P, 196; Dawson v. Los Angeles County, 15 Cal.2d 77, 81, 98 P.2d 495. The facts present a situation comparable to a judgment by default, one which is a proper basis for a plea of res judicata and estoppel. In re Jacobson’s Guardianship, 30 Cal.2d 326, 334, 182 P.2d 545; Fitzgerald v. Herzer, 78 Cal.App.2d 127, 131, 132, 177 P.2d 364,
In People v. Goldtree, 44 Cal. 323, 325, the court holds that “ * * * The Board of Equalization, in passing on the question whether an assessment is too high or too low, acts in a judicial capacity, and its decision is an adjudication, and as clearly so as a judgment for the recovery of a tax * * * In Los Angeles Gas & Electric Co. v. County of Los Angeles, 162 Cal. 164, 121 P. 384, 386, 9 A.L.R. 1277, the function of the Board is again discussed: “ * * * Upon such hearing, it is the duty of such board to determine the value of the property under consideration for assessment purposes upon such basis as is used in regard to other property, so as to make all the assessments as equal and fair as is practicable. In discharging these duties, the board is exercising judicial functions, and its decision as to the value of the property and the fairness of the assessment, so far as amount is concerned, constitutes an independent and conclusive judgment of the tribunal created by law for the determination of that question, which abrogates and takes the place of the judgment of the assessor, upon that question. * * * ”
When the Board, sitting as a Board of Equalization, determined the assessment in question, it became final and conclusive. The recent case of Universal Consolidated Oil Co. et al. v. Byram, County Tax Collector, 25 Cal.2d 353, 362, 153 P.2d 746, 751, supports this view: “* * * As appears from the numerous authorities cited in the forepart of this opinion, the respective county board of equalization is the fact-finding body designated by law to remedy excessive assessments (Cal.Const, art. XIII, § 9), and when that tribunal, after due hearing and within the limits of reasonable discretion, makes its findings on the facts, such decision is final and conclusive. * * * ” And in Los Angeles Gas & Electric Co. v. County of Los Angeles, supra, “ * * * The law necessarily leaves the determination of the question of fact of value to certain officers, and when it appoints tribunals for that purpose, as in this state primarily the assessor, and, for purpose of review, the board of supervisors, acting as a county board of equalization, the conclusion of those tribunals on such a question of fact constitutes a judgment that is not collaterally assailable in the courts. This is the universal rule, and it has been so held in this state.”
It is suggested that our case is ruled by State of New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 51 L.Ed. 284, but the difference which is pointed out in our quotation from the Arkansas-Thompson case in note 1 applies to our case as well. That is, in Arkansas-Thompson and our case there is provision for a quasi-judicial hearing whereas in New Jersey v. Anderson there is not. See In re Ingersoll Co., 10 Cir., 148 F.2d 282.
The bankruptcy court erred in not dismissing the petition for redetermination, and the proceeding is remanded with instruction to dismiss the petition for redetermination in accord with this opinion.
Reversed and remanded.
Arkansas Corporation Commissioner, et al. v. Thompson, Trustee, 313 U.S. 132, 61 S.Ct. 888, 891, 85 L.Ed. 1244, concerned the matter of taxes of a railroad under reorganization as provided for in § 77, Bankruptcy Act of 1933, 11 U.S. C.A. § 205. No appeal, as provided for by tile state statute, was taken to the state court and time for appeal lapsed. The bankruptcy court was then petitioned to redetermino the assessment under authority of § 64, sub. a (4) Bankruptcy Act. In the course of the court’s opinion it is said: “ * * * indicates that taxpayers in bankruptcy or reorganization are intended to have the extraordinary privilege of two separate trials, one state and one federal, on an identical issue of controverted fact — the value of the property taxed. Manifestly, whether or not taxes are ‘legally due and owing’ to a state depends upon the valid laws of that state. Ad valorem taxes depends upon a determination of value. The governmental function of fixing the value for tax purposes has rarely, if ever, been a judicial function. Tlie ‘legality’ of the action of Arkansas in entrusting the determination of value to its Corporation Commission is not challenged here, as of course it could not be. If the Commission properly found the value of the property, the ‘amount’ of the taxes is not in question. For it is not asserted that the Commission made an improper arithmetical computation in applying the legal tax rate to the determined property value. It is in this respect, as well as with regard to the dissimilar duties and functions of the state administrative agencies involved, that this case differs from that of [State of] New Jersey v. Anderson, 203 U.S. 483, 27 S.Ct. 137, 141, 51 L.Ed. 284, upon which the trustee here strongly relies.” See also Gardner, Trustee, v. State of New Jersey, 329 U.S. 565, 67 S.Ct. 467, 91 L.Ed. 504, and Kelly v. United States, 9 Cir., 90 F.2d 73, 76.
Quoting from 141 F.2d at page 868 of the In re Monongahela case: “The view we take of the decision in the Thompson case is that where, after a hearing, a quasi-judicial body, thereunto duly empowered, determines the amount of a tax due, with the right on the part of the taxpayer to a judicial review of the determination, all conformable with the requirements of due process, such determination, upon becoming final by operation of law, is conclusive upon a court of bankruptcy save for mathematical error in tht, computation of amount of the tax or legal error in its assessment. * * * The question in any instance, therefore, is whether the circumstances necessary to justify an exorcise of bankruptcy’s power to redetermine a tax claim are present. We think they are in the instant case. The taxpayer having failed to file a return, the tax assessments against it were based upon estimated ‘settlements’ arbitrarily mad#* by the State’s* Department of Revenue without hearing the taxpayer. The pertinent Pennsylvania statute, viz., the Fiscal Code of 1929, P.L. 343, as amended by the Act of February 2, 1937, P.L. 3, 72 P.S. §§ 1-1804, provides that, in case a taxpayer fails to file timely a report necessary to enable the Department of Revenue to settle a tax, the Department may make an estimated settlement wherein a fifty per cent penalty is included (§ 804). From any estimated settlement no right to review or appeal is allowed. * * * For the most part, the tax claims in the instant case are based upon such estimated settlements. We think it is plain that the referee’s hearing and determination of the amount of tax actually due did not involve a second trial of a controverted fact, such as the exercise' of the power en tailed in the Thompson- ease. We are, therefore, of the opinion that, under the circumstances tere shown, the rule of the Anderson case is applicable and that the referee’s redetermination of the Commonwealth’s tax claims was a justifiable exercise of bankruptcy’s power.”
All statutory citations by numbers only are to the California Revenue and Taxation Code.
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_insane | A | What follows is an opinion from a United States Court of Appeals. The issue is: "Did the court below err in not permitting an insanity defense? (or did the court err in its conclusion about whether the defendan was mentally competent to stand 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". 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".
Eugene E. TURBERVILLE, Appellant, v. UNITED STATES of America, Appellee. Bernard T. WILLIAMS, Appellant, v. UNITED STATES of America, Appellee. James H. SIMPSON, Appellant, v. UNITED STATES of America, Appellee.
Nos. 16343, 16344, 16392.
United States Court of Appeals District of Columbia Circuit.
Argued Oct. 3, 1961.
Decided Feb. 1, 1962.
Petition for Rehearing En Banc in 16343 Denied En Banc March 19, 1962.
Certiorari Denied June 25, 1962.
See 82 S.Ct. 1596.
Mr. Albert Noble McCartney, Washington, D. C. (appointed by this court), for appellant in No. 16343.
Mr. Joseph D. Bulman, Washington, D. C. (appointed by this court), for appellant in No. 16344.
Mr. John E. Powell, Washington, D. C. (appointed by this court), for appellant in No. 16392.
Mr. Donald S. Smith, Asst. U. S. Atty., with whom Mr. David C. Acheson, U. S. Atty., Mr. Charles T. Duncan, Principal Asst. U. S. Atty., and Mr. Thomas A. Flannery, Asst. U. S. Atty., were on the brief, for appellee. Mr. Abbott A. Leban, Asst. U. S. Atty., also entered an appearance for appellee in No. 16344.
Before Prettyman, Washington and Burger, Circuit Judges.
PRETTYMAN, Circuit Judge.
On the evening of December 5, 1959, two men and a woman were sitting beside a fire in front of an unoccupied shack on a vacant lot in the Southwest section of Washington. Three men came upon the lot and launched a vicious assault upon them. As a result of the savage attacks, one of the men already on the lot, Ollie Bowman, was beaten to death; the second was beaten and burned; and the woman was raped, beaten and burned.
The appellants here, Turberville, Simpson and Williams, were arrested and indicted for first degree murder, felony murder, assault with intent to commit rape, assault with intent to commit mayhem, assault with a dangerous weapon, and mayhem. They entered pleas of not guilty and were tried by jury. Each was convicted of second degree murder under the first degree murder count. Each was sentenced to life imprisonment with a minimum of fourteen years. Their appeals were consolidated.
A total of fourteen points are raised. We shall discuss ten. We find the remaining contentions of error to be without merit.
1. Appellant Simpson says the evidence does not sustain his conviction of murder in the second degree. He relies upon the fact that no evidence was presented showing that he participated physically in the assault upon the deceased Bowman. Testimony showed that Turberville and Williams actually beat and kicked Bowman. The prosecution was not required to make such an affirmative showing about Simpson, if he was properly charged as a principal under Section 105, Title 22, of the D. C. Code. That section provides in part: “In prosecutions for any criminal offense all persons advising, inciting, or conniving at the offense, or aiding or abetting the principal offender, shall be charged as principals and not as accessories, * *." The jury was instructed on that section. Under it, where defendants are charged as principals, the act of one defendant is the act of each.
On the witness stand Simpson admitted that he was present at the affray, that he hit the man Lucas, and that he tried to have intercourse with the woman. The man Lucas testified that Simpson stuck burning sticks of wood in his eyes. Thus there is no doubt that Simpson participated actively in the assault on the two men Bowman and Lucas. The fact that the victim beaten by Turberville died and the man beaten by him (Simpson) did not, does not lessen Simpson’s liability for advising, inciting, conniving, aiding or abetting in the homicide. The law on the point is well settled. As Wharton states it:
“All those who assemble themselves together with an intent to commit a wrongful act, the execution whereof makes probable in the nature of things a crime not specifically designed, but incidental to that which was the object of the confederacy, are responsible for such incidental crime. * * * In such cases of confederacy all are responsible for the acts of each, if done in pursuance of, or as incidental to, the common design.”
The cases he cites go back to Hale’s Pleas of the Crown. 1 Hale P.C. 439.
We conclude that the jury’s verdict was amply supported by the evidence.
2. Appellant Simpson argues that the trial judge erred in refusing to grant his motion for a directed verdict of acquittal by reason of insanity, and that the jury was not justified in finding that the Government had proved beyond a reasonable doubt that appellant was not suffering from a mental defect.
Simpson’s insanity defense rested upon the results of two intelligence tests and the testimony of one of his public school teachers. In 1953, when he was fourteen years old, Simpson’s score on a test administered to him by the Public School System of the District of Columbia showed that he had an I. Q. of 67 and a mental age of just over nine years. In 1958 he was rejected for military service because he scored in the lowest mental group on the Armed Forces Qualification Test.
The Moore and Stewart cases are urged upon us by the Government, but those cases are not applicable in the case at bar. In this case the issue was submitted to the jury; the points made by appellant concern his motion for a directed verdict and the sufficiency of the evidence to support the verdict.
When we have ordered directed verdicts it has been upon strong evidentiary grounds. In Douglas we pointed out that “Each case must be decided upon its own facts” and that directing a verdict is “a duty to be performed with caution”. In Fielding we found a “strong showing of insanity made by the defense”. In Satterwhite “substantial evidence established the basis for a reasonable inference that appellant had been suffering from severe mental disturbance on” the date of the offense. In Wright we pointed out that “Wright’s showing of insanity, far from being merely ‘some evidence’ of insanity, is about as strong as can ever be made, unless the accused happens to have had a psychiatric examination immediately prior to his act.” We are of clear opinion that the testimony offered by Simpson was not sufficient to require a directed verdict.
Even if Simpson’s evidence of low scores on intelligence tests were deemed to be sufficient to take the issue of insanity to the jury, the rebuttal testimony offered by the Government clearly justified rejection of the defense by the jury.
3. Simpson challenges as deficient the charge to the jury on the insanity issue. He claims that it dealt principally with the existence or non-existence of “mental disease”, when it should have emphasized “mental defect”.
Assuming that Simpson was entitled to an instruction on insanity, the charge given was not defective. The trial judge repeatedly used the phrase “mental disease or defect”. He employed terms such as “defective mental condition” and “mental abnormalities”. We find no error in his definition of mental defect or in his references to mental defect when explaining the causality requirement and when instructing on the issue of burden of proof.
4. All the appellants contend they were denied their constitutional right to a speedy trial.
Appellants were arrested on December 7 and 8, 1959. On January 25, 1960, Williams moved the court for a mental examination. On January 29th that motion was granted, and in the same order the case was continued to May 25, 1960. On May 16, 1960, Turberville moved for a continuance on the grounds that his counsel was ill and that appellants were still undergoing mental examinations. The case was continued until October 10, 1960. Between this date and November 16, 1960, the date of the actual commencement of the jury trial, the prosecutor was granted three continuances to locate missing witnesses. There is no indication that appellants objected to any of these continuances; nor did they ever move for an immediate trial or contend that any of the various delays were “manufactured” ; no prejudice appears to have been wrought. We think appellants’ contention cannot be sustained.
5. In his closing argument to the jury, counsel for appellant Williams referred to the participation by the other two defendants in activities of Williams and urged the finding of the lesser included offense of second degree murder. Appellant Turberville contends that these statements ignored his persistent denials of participation in the commission of the alleged crimes and interfered with the impartial assertion of his plea of not guilty. Neither Williams nor Simpson makes this argument.
Surely it is not improper per se for defense counsel to urge the jury to return a lesser verdict than that charged in the indictment. Furthermore counsel for Turberville failed to object at the trial to the closing remarks now in dispute. The trial judge charged the jury that what counsel stated in their arguments did not constitute evidence and also instructed the jury to consider separately each crime charged in the indictment, and that the evidence applicable thereto should be considered “separately as to each defendant.” Even were we to hold that the point is reviewable on appeal, we find it difficult to accept the contention that Turberville was prejudiced by an argument which was in essence a strong, and successful, plea against conviction of murder in the first degree and mandatory capital punishment. In the situation in which counsel then found their clients, pleas for convictions of lesser offenses would appear to have been sound tactics.
6. Appellants Turberville and Simpson contend that the trial court erred in admitting evidence regarding what they consider to be the commission of a crime not charged in the indictment.
An examination of the facts surrounding what we shall term the “Tucker incident” is necessary to our disposition of the point. On the evening of the murder Turberville entered a drug-store near the scene of the alleged murder looking for one Tucker, a man who had apparently just struck a friend of Turberville. When an employee told Turberville that he did not know where Tucker was, Turberville announced that he was “going to get him” and left the store. What occurred next is not clear. At about the same time that evening, however, a man was seen being chased by Turberville, Williams, and another man on the vacant lot where the alleged murder occurred. It appears that Tucker shortly thereafter ran back into the drugstore and “laid down on the floor” crying, “They are going to get me.” Turberville, carrying bricks, and Simpson, armed with a piece of wood, then entered the store. After the stoi-e manager had threatened to call the police, they left. As they left, Turberville said, “We are going to get him anyway.” Appellants then approached Lucas, Bunn and Bowman on the vacant lot and asked if they had “seen a man pass”. Bowman answered in the negative, and appellants then commenced the assault.
The well-settled rule which appellants seek to invoke is that upon the trial of an accused person evidence of another offense, wholly independent of the one charged, is inadmissible. However, as we stated in Bracey v. United States, there are many well-established exceptions to this rule. We defined two of these exceptions as follows: “[E]videnee of other criminal acts has been held admissible by this court when they are so blended or connected with the one on trial as that proof of one incidentally involves the other; [citing cases] or explains the circumstances thereof; [citing cases] * * * ”
We conclude from the record that the challenged testimony was admissible as within these exceptions to the general rule. In view of the proximity in time, place, and persons involved, and the close connection between the pursuit of Tucker, the subsequent inquiry of Bowman, and the ensuing assault, we cannot consider the Tucker incident, if indeed it involved any offense, to be an offense which should have been barred from the jury’s consideration.
7. Appellant Simpson contends that two oral statements and a written statement which he made after arrest were admitted in evidence in violation of “the Mallory rule”.
Simpson was arrested at 11:20 p. m., on December 7, 1959. He was taken to police headquarters, arriving around midnight. Immediately thereafter the police began to question him about his alleged participation in the crimes. Within half an hour he made an oral statement implicating himself in the offenses. The officers testified that before he began this statement he was warned of his rights and told he did not have to make a statement; Simpson denied this. The written statement contains a recitation in accordance with the officers’ testimony. The police began to reduce the statement to writing at 12:30 a. m. and completed the transcription at 1:25 a. m. Simpson then read and signed the statement. He was brought before a judge of the Municipal Court at 10:00 a. m. on the same morning. Thereafter, at approximately four o’clock that afternoon, two policemen went to the jail for the purpose of questioning the three defendants. Simpson then repeated his earlier incriminatory statement in the presence of Williams and Turberville.
We think that “unnecessary delay” within the meaning of Rule 5 (a) and the Mallory case has not occurred when a defendant is arrested, brought to police headquarters around midnight, begins to make a statement within thirty minutes thereafter, and is then taken before a magistrate at 10 a. m. the same morning.
Simpson’s second inculpatory oral statement was made after he had been presented before the magistrate. Despite the dispute in the testimony as to whether Simpson was advised by the detectives of his rights before he signed the written statement, it is agreed that he was taken before a judge of the Municipal Court in open court, a lawyer was appointed for him, this attorney conferred with him, and the taking of testimony was then postponed. A detective present at the time testified flatly at first that Simpson was advised of his rights by the judge, but later said he could not remember precisely what was said. This testimony, with the denials by the accused, went to the jury upon the trial. In the absence of clear proof to the contrary we must in these circumstances give weight to the presumption that the judicial proceeding was regular and in accordance with the rules.
In this connection, however, and in our supervisory capacity over criminal proceedings in this jurisdiction, we admonish the judges of the Municipal Court that careful, precise compliance with the criminal rules, under which presentments and preliminary examinations in felony cases are conducted before judges of that court, and unmistakable records of such compliance in these cases, are in the interest of the administration of justice. Failure to comply with those rules is affirmatively detrimental to that administration, since it vitiates much that subsequently occurs. And failure to record compliance in some unmistakable fashion impedes that administration, because it throws these vital events into the realm of testimonial dispute. The requirements of Rule 5(b) are clear, precise and categorical. We should think that compliance in' literal completeness would be a simple record for the courtroom clerk or the judge to keep in so important matters as these.
In the case at bar the trial court put to the jury the issues concerning the statements of Simpson made after his presentment to the magistrate. We think the evidence amply justified the submission.
Simpson urges us to adopt a rule that no statement made by an arrested person as the result of police interrogation may be admitted against him over objection. This, his counsel says, is the precise meaning of the Fifth Amendment. He refers to the elaborate discussion of the history and policy of the privilege by Professor Wigmore. We are advised of no ease which, up to now, has gone so far. The statement of Mr. Justice Douglas, in his concurring opinion in Reck v. Pate, of his own view of what the rule ought to be, clearly shows that he would hold admissible statements made under detention if presentment is prompt, the accused is informed of his right to silence, and he is accorded an opportunity to consult counsel. We are not prepared even to approach the blanket rule of inadmissibility urged upon us by counsel for Simpson.
8. After Simpson had made his second oral admission, in the presence of Williams, the police asked the latter whether he had anything to say. Williams answered in the affirmative and then proceeded to make an incriminatory statement. He now contends that this statement was improperly admitted in evidence at the trial because it was made after the committing magistrate had failed to comply with the requirements of Rule 5 (b), Williams testified at trial that the magistrate did not appoint counsel to represent him, or advise him of his right to refuse to make a statement, or that any statement might be used against him. Nor, it is claimed, was he told of the charge or that he was being held without bond. Williams was arrested about one o’clock, p. m., and was presented before the magistrate about 2:15 p. m. that same day.
The Government offered evidence which contradicted appellant’s version of what had transpired in the Municipal Court. A Detective Pixton testified that during the presentment appellant was advised of his rights, informed of the charge, and allowed time to consult with his court-appointed counsel. The original complaint filed in the Municipal Court, which was admitted in evidence, reveals that an attorney was appointed by the judge and that bond was considered and appellant ordered held in no bond.
We think the trial judge was free to disbelieve Williams’s testimony. The presumption of regularity which applies to judicial proceedings is applicable here. Appellant failed in his burden. Much of what we have said hereinabove in respect to Simpson’s statements applies to Williams.
9. Simpson says the trial court erred in excusing for cause on the voir dire veniremen who answered affirmatively to the question whether they were opposed to capital punishment. What happened was simple and brief. The United States Attorney, addressing the panel, said: “Are any of you opposed to capital punishment, and, if so, stand ? ” He then addressed the question to each of eighteen prospective jurors, obviously those who stood in answer to his general question. Some of them said “Yes”; most of them stood silent, perhaps assenting with a nod; one answered “I think so”; one stated, “I am opposed to capital punishment.” All were excused for cause, without further questioning. Thus the panel as it came to the drawing of the jurors for the case was without members who for any reason were opposed to capital punishment. Counsel for Simpson argues that he is entitled as of constitutional right to a jury drawn from a fair cross-section of the community. He cites the Glasser, Thiel, and Ballard eases. A premise of his argument is, of course, that people opposed to capital punishment comprise a large segment of any cross-section of the community.
Dispositive of the contention is the fact that the point was not raised in the trial court. Nevertheless, since it is so earnestly pressed upon us by counsel, and since if a serious error has been committed we might note it sua sponte, we shall discuss it.
The process of selecting jurors in this jurisdiction is delineated quite specifically by statute. A jury commission selects prospective jurors “from the different parts of the District, and * * * as nearly as may be, from its intelligent and upright residents.” The commission writes the names on “separate and similar” pieces of paper, folds them, and puts them in a box. The box is sealed. Not less than six hundred names must be in the box when a drawing begins. Once a month the commission opens the box and draws by lot the names of such number of persons as are needed for jury service in the courts. The persons so drawn constitute a panel, or several panels. When a case is called for trial a panel is summoned and questioned upon subjects pertinent to qualification to serve in the particular case. The court excuses “for cause” such persons as it deems not qualified to render impartial judgment in the case. From the remaining persons the prosecution and the accused are entitled to excuse a certain number for any or no reason — “peremptory challenges”. The end result is twelve persons seated as jurors. The system is discussed in Frazier v. United States.
The point at which an accused is entitled to a fair cross-section of the community is when the names are put in the box from which the panels are drawn. Chance governs the next step. The panel drawn by lot may or may not be a cross-section of the community. No maneuvering or purposeful selection is permitted at that stage, lest the final twelve be by design of one or another thought or character. The rights of an accused in respect to the panel and the final jury are (1) that there be no systematic, intentional exclusion of any section of the community and (2) that there be left as fitted for service no biased or prejudiced person.
None of the cases cited by Simpson expresses a view contrary to the foregoing. Indeed in Thiel the Court after stating the rule as to a jury “drawn from a cross-section of the community”, went on to say:
“This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter.”
Opposition to capital punishment may be for any one of a variety of reasons. They range from an unshakable religious conviction as stark as the Old Testament Commandment to a mere intellectual or philosophical distaste. Not all “opposition” to this penalty creates incompetence for jury service. So not all who are “opposed” to capital punishment are necessarily unqualified for service in a capital case. The nub of disqualification on this ground is whether the opposition is of such nature as to preclude an impartial judgment on the facts and the law of the case to be tried.
The situation is, then, that the trial judge in the case at bar may have excused more from the panel than he needed to excuse. But among those who remained were none who suffered on this account an impediment to proper service. What Simpson is really asserting is the right to have on the jury some who may be prejudiced in his favor—i. e., some who are opposed to one possible penalty with which he is faced. We think he has no such constitutional right. His right is to absolute impartiality.
The whole subject was thoroughly explored in an exhaustive, scholarly opinion by Circuit Judge Hincks, writing for a unanimous Second Circuit in United States v. Puff. We need not here quote from or attempt to summarize that discussion. We refer to it and rely upon it. The matter is made quite clear by a long series of authoritative pronouncements, beginning with Chief Justice Marshall’s ruling in Burr’s Trial and including Reynolds v. United States, Northern
Pacific R. R. Co. v. Herbert, Brown v. New Jersey, Miles v. United States, and Howard v. Kentucky. In Shettel v. United States this court (Groner, Justin Miller, and Vinson) said on the point:
“Moreover, while it is true, as appellant argues, that the Constitution guarantees to an accused the right to a speedy trial by an impartial jury, it does not follow that the rejection of qualified persons for insufficient cause would deprive appellant of that right; or that any useful or legitimate purpose would be served by remanding the case for a new trial before another impartial jury. It is significant in this respect, moreover, that no claim is made that the jury, as finally constituted, was biased or prejudiced; or that appellant was deprived of a trial by an impartial jury.”
The Supreme Court, citing precedents, said in Logan v. United States, decided seventy years ago:
“5. As the defendants were indicted and to be tried for a crime punishable with death, those jurors who stated on voir dire that they had ‘conscientious scruples in regard to the infliction of the death penalty for crime’ were rightly permitted to be challenged by the government for cause. A juror who has conscientious scruples on any subject, which prevent him from standing indifferent between the government and the accused, and from trying the case according to the law and the evidence, is not an impartial juror.”
In Gillars v. United States we held that a prospective juror who said she was opposed to capital punishment and did not believe she could render a fair and impartial verdict in the case was properly excused for cause. The touchstone in excuse for cause under the doctrine adopted by most courts is a conscientious scruple. This means something more than mere opposition. It means an opposition of such nature as to impede ability to render a fair and impartial verdict upon the law and the evidence as it develops in a given case.
Simpson’s argument, as stated to us, is that the jury which tried him was not a fair cross section of the community, because it did not include any persons opposed to capital punishment. He makes no contention that the jury was prejudiced against him or that it was not impartial. However our own inquiry has brought to our attention another thesis, in this area of the law. It is that persons who are not opposed to capital punishment are psychologically inclined against criminals and therefore a jury composed of such persons is not an impartial jury. We understand that this thesis has not as yet received the sanction of any court. We cannot accept it. We examine it because this is a serious case, and if the thesis were tenable it might cause reversal. No proof is available, so far as we know, and we can imagine none, to indicate that, generally speaking, persons not opposed to capital punishment are so bent in their hostility to criminals as to be incapable of rendering impartial verdicts on the law and the evidence in a capital case. Being not opposed to capital punishment is not synonymous with favoring it. Individuals may indeed be so prejudiced in respect to serious crimes that they cannot be impartial arbiters, but that extreme is not indicated by mere lack of opposition to capital punishment. The two antipathies can readily coexist; contrariwise either can exist without the other; and, indeed, neither may exist in a person. It seems clear enough to us that a person or a group of persons may not be opposed to capital punishment and at the same time may have no particular bias against any one criminal or, indeed, against criminals as a class; people, it seems to us, may be completely without a controlling conviction one way or the other on either subject. We think the premise for the thesis has no substance.
From all these considerations we conclude that the trial judge did not commit error when he excused all persons who opposed capital punishment. At the same time, in our supervisory capacity we urge upon the District Court that a better practice would be to proceed one more step in this questioning on voir dire to ascertain in general terms the weight of the opposition the juror entertains, when measured against his ability to render a fair and impartial verdict in the case on trial, based upon the evidence presented in that case and the law applicable thereto. We do not mean to suggest a prolonged inquiry, or any attempt to probe the mind and conscience of the person, which practice we condemned long ago in Funk v. United States. We mean to suggest an additional question or two, sufficient to identify the nature and substance of the person’s opposition; no farther, as we said in Funk, “than to ascertain the existence of this necessary want of bias or prejudice”.
10. Appellants also urge that the trial judge was not qualified to sit in the District Court, having been appointed to sit in a legislative court and not in a constitutional court. We have rejected the contention in another case, pointing out that the District Court in this jurisdiction is an Article I court as well as an Article III court. The point is before the Supreme Court. We think the administration of justice requires that we not delay disposition of these appeals. We will, of course, entertain a motion for reconsideration and recall of mandate, if the Supreme Court rules this trial judge to be disqualified.
The judgments of the District Court are
Affirmed.
. The indictment contained nine counts. Count 1 charged first degree murder, D.C.Code § 22-2401; Count 2, murder while perpetrating the crime of rape, D.C.Code § 22-2401; Count 3, murder while perpetrating the crime of mayhem, D.C.Code § 22-2401; Count 4, assault with intent to commit rape, D.C.Code § 22-501; Count 5, assault with a dangerous weapon, D.C.Code § 22-502; Counts 6 and 8, mayhem, D.C.Code § 22-506; Counts 7 and 9, assault with intent to commit mayhem, D.C.Code § 22-502.
Counts 2 and 3 were dismissed during the trial at the request of the prosecution.
. Each was convicted and sentenced upon other counts.
. Lucas testified that Turberville and Williams beat and kicked Bowman; Bunn also testified that Williams beat Bowman. The latter’s death was the result of hemorrhage and shock due to ruptured viscera.
. Polen v. United States, 41 App.D.C. 4 (D.C.Cir. 1913) (involving D.C.Code § 908 (1901), the earlier, identical version of § 22-105).
. 1 Wharton, Criminal Law § 258 (12th ed. 1932); and see id. § 251.
. Moore v. United States, 107 U.S.App.D.C. 332, 277 F.2d 684 (1960).
. See Stewart v. United States, 107 U.S.App.D.C. 159, 275 F.2d 617 (1960), rev’d on other grounds, 366 U.S. 1, 81 S.Ct. 941, 6 L.Ed.2d 84 (1961).
. Douglas v. United States, 99 U.S.App.D.C. 232, 239, 239 F.2d 52, 59 (1956).
. Id. at 237, 239 F.2d at 57.
. Fielding v. United States, 102 U.S.App.D.C. 167, 169, 251 F.2d 878, 880 (1957).
. Satterwhite v. United States, 105 U.S.App.D.C. 398, 207 F.2d 675 (1959).
. Wright v. United States, 102 U.S.App.D.C. 36, 41, 250 F.2d 4, 9 (1957).
. The Government offered the testimony of Dr. David J. Owens, a psychiatrist on the staff at St. Elizabeths Hospital, to rebut the alleged insanity defense. Dr. Owens testified that his ninety-day observation and examination of Simpson led him to the diagnosis that Simpson had not been suffering from a mental disease or defect on the date of the crime. He stated that tests administered at St. Elizabeths revealed that Simpson was “suffering from borderline intelligence but not of sufficient degree of impairment to warrant diagnosis of mental defectiveness.”
. In that same order Simpson was also committed for examination pursuant to a motion by the prosecutor; in another order on that day reference is made to a motion by Simpson to the same purpose. On February 3rd Turberville moved for an examination, and the motion was granted February 12th.
. Brooks v. United States, 110 U.S.App.D.C. 192, 290 F.2d 383 (D.C.Cir. 1961); James v. United States, 104 U.S.App.D.C. 263, 261 F.2d 381 (D.C.Cir. 1958), cert. denied, 359 U.S. 930, 79 S.Ct. 613, 3 L.Ed.2d 631 (1959); Pietch v. United States, 110 F.2d 817, 129 A.L.R. 563 (10th Cir.), cert. denied, 310 U.S. 648, 60 S.Ct. 1100, 84 L.Ed. 1414 (1940); Chinn v. United States, 228 F.2d 151 (4th Cir. 1955). See Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 49 L.Ed. 950 (1905).
. See Clark v. United States, 104 U.S.App.D.C. 27, 259 F.2d 184 (D.C.Cir. 1958); Tatum v. United States, 88 U.S.App.D.C. 386, 392, 190 F.2d 612, 618 (D.C.Cir. 1951).
. In this connection see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 238-239, 60 S.Ct. 811, 84 L.Ed. 1129-(1940).
. 79 U.S.App.D.C. 23, 25, 142 F.2d 85, 87, cert. denied, 322 U.S. 762, 64 S.Ct. 1274, 88 L.Ed. 1589 (1944).
. Id. at 26, 142 F.2d at 88.
. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).
. See Goldsmith v. United States, 107 U.S.App.D.C. 305, 277 F.2d 335 (D.C.Cir.), cert. denied, 364 U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960); Heideman v. United States, 104 U.S.App.D.C. 128, 259 F.2d 943 (D.C.Cir. 1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959); Porter v. United States, 103 U.S.App.D.C. 385, 258 F.2d 685 (D.C.Cir. 1958), cert. denied, 360 U.S. 906, 79 S.Ct. 1289, 3 L.Ed.2d 1257 (1959); Metoyer v. United States, 102 U.S.App.D.C. 62, 250 F.2d 30 (D.C.Cir. 1957).
. 8 Wigmore, Evidence §§ 2250-2252 (McNaughton rev. 1961).
. 367 U.S. 433, 448, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961).
. Fed.R.Crim.P. rule 5(b), 18 U.S.C.A., provides: “The commissioner shall inform the defendant of the complaint against him, of his right to retain counsel and of his right to have a preliminary examination. He shall also inform the defendant that he is not required to make a statement and that any statement made by him may be used against him. The commissioner shall allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant. to bail as provided in these rules.”
. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).
. Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946).
. D.C.Code § 11-1401 et seq. (1961).
. 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948).
. Supra note 26, 328 U.S. at 220, 66 S.Ct. at 985, 90 L.Ed. 1181.
. 211 F.2d 171, cert. denied, 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106 (1954).
. 1 Burr’s Tr. 416.
. 98 U.S. 145, 154, 25 L.Ed. 244 (1878).
. 116 U.S. 642, 646, 6 S.Ct. 590, 29 L.Ed. 755 (1886).
. 175 U.S. 172, 175, 20 S.Ct. 77, 44 L.Ed. 119 (1899).
. 103 U.S. 304, 310, 26 L.Ed. 481 (1880).
. 200 U.S. 164, 173, 26 S.Ct. 189, 50 L.Ed. 421 (1906).
. 72 App.D.C. 250, 252, 113 L.2d 34, 36 (1940).
. 144 U.S. 263, 298, 12 S.Ct. 617, 36 L.Ed. 429 (1892).
. 87 U.S.App.D.C. 16, 34, 182 F.2d 962, 980 (1950).
. 16 App.D.C. 478. 489, cert. denied, 179 U.S. 683, 21 S.Ct. 916, 45 L.Ed. 385 (1900).
. Lurk v. United States, 111 U.S.App.D.C. -, 296 F.2d 360 (1961).
. Cert. granted, Lurk v. United States, 368 U.S. 815, 82 S.Ct. 110, 7 L.Ed.2d 23 (1961).
Question: Did the court below err in not permitting an insanity defense?
A. No
B. Yes
C. Yes, but error was harmless
D. Mixed answer
E. Issue not discussed
Answer: |
songer_state | 56 | What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
SUBIN et al. (MINNUCCI et al., Interveners), v. NATIONAL LABOR RELATIONS BOARD.
No. 7092.
Circuit Court of Appeals, Third Circuit.
March 12, 1940.
Rehearing Denied May 7, 1940.
Charles J. Weiss, of Philadelphia, Pa.s Wessel, Bennett & Weiss, for Subin and others.
Thomas F. Gain, of Philadelphia, Pa., for Minnucci and others.
Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Lawrence A. Knapp, Asst. Gen. Counsel, Mortimer B. Wolfe, Bertram Edises, Leonard Appel, and Ramey Donovan, Attys., National Labor Relations Board, all of Washington, D. C., for respondent.
Before BIGGS, CLARK and JONES, Circuit Judges.
BIGGS, Circuit Judge.
The Subins, co-partners doing business under the name of Arcadia Hosiery Company, at Lansdale, Pennsylvania, and Leo Minnucci and certain others constituting a Shop Committee of Arcadia’s employees, intervenors, have petitioned this court to set aside an order of the National Labor Relations Board entered on April 27, 1939. The order requires the Subins to cease and desist from dominating or contributing support to the Shop Committee or to any other labor organization of their employees, from discouraging membership in American Federation of Hosiery Workers, Branch N¿. 67, referred to hereafter as the “Union”, or in any other labor organization of their employees by refusing to reinstate any of their employees or by discriminating in regard to their hire or tenure of employment, or, from coercing their employees in regard to their rights of self-organization for collective bargaining. The Board’s order also requires the Subins to withdraw recognition from the Shop Committee, to disestablish it as a representative of their employees and to offer reinstatement to certain named employees with reimbursement for loss of pay, and to give notice of compliance with the order.
The pertinent facts are as follows: In 1935 the Subins had a plant for the manufacture of hosiery at Pleasantville, New Jersey, as well as at Lansdale, Pennsylvania. In July, 1935, labor trouble developed at the New Jersey plant. Acts of violence took place, causing financial loss to the Subins. Operations continued undisturbed at the Lansdale plant where there was no labor trouble. We think that the Subins’ unfavorable attitude in regard to unionization was due in part at least to their experiences at Pleasantville. The Pleasantville plant was closed. The employees of Arcadia at Lansdale were not unionized. In July, 1937, the American Federation of Hosiery Workers, Branch No. 67, attempted to organize these employees. These efforts met with immediate success. In August, 1937, representatives of the Union, including Kellenbenz, a business representative of the American Federation of Hosiery Workers, requested the Suhins to sign a contract with the Union for employee representation. David Subin apparently informed Kellenbenz that he and his brother had decided to go out of business and therefore there was no point in meeting with representatives of the Union. Nevertheless a meeting was arranged, and a contract was submitted by Kellenbenz to David Subin. Subin in turn handed to Kellenbenz a notice addressed to the Arcadia employees which stated ■ that the Subins had decided to go out of business and to discontinue the manufacture of full-fashioned hosiery because of the highly competitive» condition in that industry. Kel-lenbenz and others persuaded Subin not to post this notice. The Board, however, found as a fact that Subin stated that he would post it and go out of business if the Union caused him any trouble.
Unionization had proceeded in other hosiery plants in Lansdale and about December 1, 1937, the Union sent a notice to hosiery plants in Lansdale that employees’ grievances should be aired through shop committees constituted by the Union. The Union requested that a notice to this effect be posted in the Arcadia plant. The notice was given to Alvin Holsopple, chairman of the Union’s Shop Committee at the plant so that he might deliver it to the Subins. A few days later, Weisbecker, Arcadia’s superintendent, came to Holsop-ple and showed him the liquidation notice which we have referred to previously. Holsopple testified that Weisbecker asked him if he did not regard the liquidation notice as “a better notice” than that relating to the use of the Union’s Shop Committee for the airing of grievances which Holsopple had requested be posted upon the plant bulletin board. It should be pointed out, however, that the Subins for their part, contend that they had decided to go out of business because Kellenbenz had threatened them with an “Apex Situation” if Arcadia did not recognize the Union for the purposes of collective bargaining. The Apex Hosiery Company of Philadelphia had suffered substantial damage because of a sit-down strike conducted by a local of the American Federation of Full Fashioned Hosiery Workers in defiance of local law. The Board found that the Subins made use of the liquidation notice to influence their employees “ * * * to abstain from or abandon membership in the Hosiery workers * * * ” and that the Subins therefore had coerced their employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act, 49 Stat. 452, 29 U.S. C.A. § 157. It is not necessary for us to pass upon the question of whether or not the Act will serve to prevent an employer from threatening to go out of business in order to influence his employees from joining a union (See the decision of this court in Union Drawn Steel Company and Republic Steel Corporation v. National Labor Relations Board, 3 Cir., 109 F.2d 587) for the conclusion of law of the Board as to unfair labor practices committed by the Subins need not be based upon the finding of fact just referred to. It should be noted, however, that the Subins did not go out of business despite the liquidation notice which was posted upon December 10, 1937, and at the time of the hearings were still engaged in manufacturing hosiery at Lansdale.
The Board also found as a fact that the Shop Committee headed by Minnucci and others was a company-dominated union. In this connection the record shows that in the summer of 1937 while unionization of other hosiery plants in Lansdale was progressing, a notice was posted in the Arcadia plant calling a meeting of the Arcadia employees at a club in Lansdale. The Board found as a fact that the Subins gave their employees permission to remain away from work during this meeting and that about 175 of the Arcadia employees attended it. The creation of a labor or-ganizalion was discussed, agreed upon and officers and committeemen were elected. An attorney was employed to prepare the constitution and by-laws of the organization. A meeting of employees was called to ratify the constitution and to adopt the by-laws. This meeting took place on Saturday afternoon while the plant was closed. It was attended by a very few persons. Minnucci testified that he was disturbed by this small attendance and got in touch with David Subin. Within a short time thereafter, Benjamin Subin, Minnucci and other employees attended a meeting at the home of an employee named Fluck. At this meeting Benjamin Subin stated that he and his brother intended to go out of the knitting business and wanted to sell the machines to their employees upon an installment basis. Tt was then suggested that the plant be organized upon the Nunn-Busch plan. About a week later copies of the Nunn-Busch plan were circulated among the employees. Another meeting of employees was called at Superintendent Weisbecker’s brother’s home at which Benjamin Subin explained the Nunn-Busch plan and stated that he was interested in it. Other meetings followed between Min-nucci, Subin and others and a plan of organization for the Subin employees based upon the Nunn-Busch plan, was drafted. It was submitted to the Subins’ attorney, who made no substantial changes but struck out the names of those employees who were to form the Shop Committee which had already been inserted therein. Upon December 23, 1937, a notice was posted in the Arcadia plant with the Subins’ permission, which stated that there would be a meeting of the employees at the Lexington Line Tavern on December 24th. Upon the afternoon of December 23, Minnucci got together about thirty-five of the Arcadia employees, calling some of them from their work. David Subin read the Shop Committee plan to this gathering and answered questions about it. He apparently told those present that he and his brother would recognize the Shop Committee when it was chosen. When Subin left the meeting Minnucci took charge of it and presented the names of five men designated as members of the Shop Committee. No objections were made to any of them. Upon the following day approximately 140 of the Arcadia employees met as planned and voted to accept the Shop Committee plan.
Under it five designated employees were constituted the bargaining agency for all employees. The plan provided that disputes between the management and the Committee should be settled by arbitration. It provided also that the engaging of employees should be in the control of the management, but before any permanent employee could be discharged, such discharge should be submitted to the Committee for its approval. The plan also contained provisions in respect to hours of work and wages. The Board found that the Subins resisting the Union, “foisted the Shop Committee upon the employees”, welcoming its formation as an antidote to the activities of the American Federation of Hosiery Workers; that the Subins interfered with and dominated the formation and administration of the Committee, thereby interfering with and coercing their employees in the exercise of rights of collective bargaining guaranteed by Section 7 of the Labor Act, 49 Stat. 452, 29 U.S. C.A. § 157; and that therefore the Subins were guilty of unfair labor practices as defined bv Section 8(1) and (2) of the Act, '49 Stat. 452, 29 U.S.C.A. § 158(1, 2). In our opinion these conclusions of the Board are supported by “ * * * ' such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” See Consolidated Edison Company v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Griswold Mfg. Co., 3 Cir., 106 F.2d 713, 721; Titan Metal Mfg. Co. v. National Labor Relations Board, 3 Cir., 106 F.2d 254; National Labor Relations Board v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167.
As to Those Portions of the Board’s Order Requiring Reinstatement With Back Pay of Certain Employees.
The Board’s order requires certain employees to be reinstated in their positions with back pay, less sums earned in the interim. The cases of Alvin Holsopple and the three Kelso brothers may be treated together. Holsopple had been employed at the Arcadia plant for over three years; the Kelsos for comparable periods of time. All were members of the Union, a fact which was known to Superintendent Weisbecker. All four men had promoted actively the unionization of the Arcadia plant. Holsopple was the chairman of the Union’s Shop Committee, while the Kelso brothers distributed application cards and solicited memberships. Their discharges came about as follows. It was the custom at the Arcadia plant for the employees to clean their machines one day a year on their own time. Weisbecker informed all the employees that this work was to be done on December 31st. Holsopple and the Kelsos did not go to the plant until shortly after noon on that day. Long before their appearance, Weisbecker stated to the Shop Committee • according to his own testimony, “I am going to give them until eleven o’clock. If they are not in I will fire them.” At the suggestion of the Shop Committee, however, Weisbecker advanced the dead line of discharge to noon. Formal notices of discharge were prepared in advance. When Holsopple and the Kelsos arrived at the plant at about twelve-thirty o’clock in the afternoon, they were discharged. All four men had been attending- a meeting of the Union that morning, a fact which the Board found was known to Weisbecker.
Holsopple and the Kelsos testified that they were not told to appear at the plant by noon or be discharged. It is clear that it was the custom of the Subins not to pay their employees for the cleaning of their machines at the year’s end. Holsop-ple testified, “All of the time I had been there I had come in at approximately that time [viz., 12:30 P. M.]. I don’t know exactly what time it was. It may have been eleven o’clock, or twelve o’clock or one o’clock. I don’t know.” The testimony of the Kelsos was substantially the same as Holsopple’s on this point. Holsopple also testified, “Inasmuch as we had no time set when we should come in to clean our machines, we couldn’t understand why we were fired because we happened to get in at 12:30 when we would have had ample time to clean our machines and still get out of tlie plant early. That was discussed to quite an extent and the reason. We couldn’t understand the reason why we were discharged.” Holsopple also stated that the only explanation which was given to them by Weisbecker was “It is too late now. I want to close down the plant and get out.” Upon consideration of these circumstances, we are of the opinion that the Board’s conclusion that the real reason why these four men were discharged wa& their known membership in and activity on behalf of the Union, is supported by adequate evidence.
As to Bessie Holsopple, the following facts appear. She is the wife of Ah in Holsopple and began working for the Subins in 1935. She had been a member of tile American Federation of Hosiery Workers for several years and joined the Union in August, 1937. She was active in soliciting memberships.- While at the Arcadia plant she was employed as a “topper”. She was shifted to work upon a machine which was about to be sold, a fact which she testified was known generally throughout the plant. When the machine upon which she was working was sold, it was dismantled and taken from the plant. It was necessary therefore either to lay Mrs. Holsopple off or give her some other “topper’s” position. Her knitter, Leather-man, was placed upon another machine and continued to work at the Arcadia plant. There were girls working as toppers on the night shift who had been employed for a shorter period of time than Mrs. Holsopple. She was therefore entitled to re-employment upon the basis of seniority. She testified, however, that after the lay-off, she did not try very hard to gain employment elsewhere and did not have “a whole lot of time” because her only child was ill and she was engaged in looking after this child. Upon consideration of all the evidence we are of the opinion that the Board’s conclusion that Mrs. Holsopple was laid off and not re-employed because of her union activities is not unreasonable and is supported by adequate evidence. We therefore will order her reinstatement. We conclude, however, that her reinstatement should not be accompanied by back pay because by her own testimony her time following the lay-off was largely occupied by family duties as a matter of her own choice.
As to Richard Craner, a topper, it appears that he too was a.ctive in soliciting Union memberships. He signed up Superintendent Wcisbecker’s brother as a member. He testified that he was told at this time that if he was again active on behalf of the Union inside the plant that lie would be discharged. About January 7, 1938, his machine was sold, dismantled and taken from the plant. He Mas then laid off. Craner M'as senior to toppers who were retained by Arcadia. The record shows, however, that upon his leaving Arcadia he succeeded in getting other imployment. lie was earning $5.25 a day, or approximately $26.25 a week, when employed by the Subins. While at the Quakertown Hosiery Mills, his subsequent place of employment, he received $21 a week. The Subins contend that Craner never tried to obtain re-employment at their plant and that on one occasion Weisbecker sent for Craner to re-employ him but Craner could not be located. Craner himself testified that when he went to get his pay after his machine was dismantled, one of the office employees told him that lie should not return upon the following Monday but that he had never called up the plant or gone back to it in search of re-employment. He testified that immediately after his lay-off he was greeted by Superintendent Weisbecker with the sardonic salutation, “Hello, wise guy.” Upon consideration of all of the evidence, we conclude that there M'as sufficient evidence before the Board to support the conclusion that Craner’s services were dispensed with because he had assisted the Union. We do not deem his employment at a lessor rate of pay the equivalent to his employment at Arcadia. We will require his reinstatement as the Board has ordered.
As to Jackson, the record shows that he served as vice-chairman of the organizing committee of the Union and played a leading role in its drive for members at the Arcadia plant. His Union membership was known to Weisbecker. Fie had been employed steadily by the Subins for more than three years. He was laid off on December 17, 1937, because the plant discontinued the manufacture of the style of hosiery upon which he worked. He was re-employed on January 18, 1938. He was dismissed again by Weisbecker on February 2, 1938, with the explanation that his services were not needed because of the completion of the order on which he had been working. Jackson was a “legger”. He testified that when he was laid off that Superintendent Weisbecker told him that: he would send for him if there was work for him to do. He was not sent for. His machine was dismantled and taken out of the plant. It also appears that Jackson was entitled to employment as a matter of seniority over knitters who were not laid off but whose employment continued without interruption. The Board concluded that Jackson’s services were dispensed with by the Subins because of his membership in and activity on behalf of the Union. An examination of the record convinces us that there is adequate evidence to support such a conclusion.
As to Farrell, the record shows that he was employed as a legger on the night shift from March, 1936, until February 3, 1938. His activities on behalf of the Union were known to Weisbecker. He had been cautioned against seeking members for the Union inside the Arcadia plant. When he laid Farrell off, Weisbecker stated that he would be re-employed as soon as a job was available for him. Farrell’s machine also was sold. He was never re-employed. He testified that he asked Weisbecker if seniority was not controlling and why one Joseph Skzrat, a legger possessing less seniority than himself should be employed while he, Farrell, was without a position. He testified that Weisbecker said to him in respect of Skzrat’s employment, “Oh, there was just a little mistake.” It also appears that two •helpers were promoted to leggers after Farrell was laid off. We are of the opinion that there is adequate evidence to support the Board’s conclusion that Farrell was deprived of his position because of his Union activities.
As to Klebes, the record shows that he too joined the Union and assisted in its campaign for members. Klebes was a helper earning $15 a week but later was employed temporarily as a legger at $20 a week. We are of the opinion that in Klebes’ case the record plainly shows that his services were dispensed with because he was not an efficient legger and no knitter desired him as a helper. We conclude, therefore that the finding of the Board that Klebes was discharged because of his Union activities is without adequate evidence to support it.
As to Beluch it appears that he was employed by the Subins for about three years before he was laid off on January 3, 1938. At this time he was employed as a first helper at a rate of $15 a week. He had been active in attempting to organize the Arcadia plant for the Union and had secured members among the Subin employees. On January 3rd, Weisbecker told the other helper upon Beluch’s machine to go home and come back in the afternoon when he would be employed upon another machine. Beluch was told to go home and was not re-employed though he ranked all other helpers in point of seniority. We think that the Board was justified in concluding that Beluch was discharged because of his Union activities. He obtained temporary employment at the rate of $22 a week helping to erect hosiery machines. We will require his reinstatement as ordered by the Board.
Certain other matters require brief discussion. The Subins contend that the conduct of the examiner was such as to deny them an adequate hearing upon the charges filed against them and that therefore, if the Board’s order is carried out, they will be deprived of property without due process of law. They charge that the examiner led witnesses, was severe in his cross-examination of witnesses appearing for the Subins and allowed the Board great latitude in examination while closely restricting the other parties. The examiner is also accused of intimidation or attempted intimidation of witnesses by calling their attention to the fact that they were testifying under oath. Approximately twenty-five different instances have been cited by counsel for the Subins in which it is alleged that the examiner behaved improperly and without due regard for his judicial office. We have examined not only the circumstances specifically referred to but also the record as a whole. We cannot find that the actions of the examiner militated in any substantial manner against the right of the petitioners to bring forth their side of the case. We conclude that the conduct of the examiner was in nowise prejudicial to the petitioners and on the whole was judicial and not intemperate. We use the phrase “not intemperate” advisedly for upon at least one occasion counsel for the Subins saw fit to impute to the examiner a lack of good faith. The hearings seem to have been attended with some heat, but that heat was communicated to the examiner to a very small degree. We would not be justified in setting aside the order of the Board upon this ground. See National Labor Relations Bd. v. Stackpole Carbon Co., 3 Cir., 105 F.2d 167, 177.
Paragraphs 2 (b) and (c) of the order! of the Board will be modified in accordance with this opinion. All other pro-, visions of the order will be affirmed and a decree of enforcement will be entered. •
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer: |
songer_respond1_5_3 | E | What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Your task is to determine which specific state government agency best describes this litigant.
UNITED STATES v. STATE ROAD DEPARTMENT OF FLORIDA et al.
No. 13213.
United States Court of Appeals Fifth Circuit.
May 30, 1951.
Rehearing Denied July 26,1951.
Holmes, Circuit Judge, dissented.
Cody Fowler, William A. Gillen, Tampa, Fla., George Earl Hoffman, U. S. Atty., Pensacola, Fla., for appellant.
John W. McWhirter, Atty. State Rd. Dept, of Fla., Tampa, Fla., T. Paine Kelly, Asst. Atty. Gen., Tallahassee, Fla., J. McHenry Jones, Pensacola, Fla., for ap-pellees.
Before HOLMES, BORAH and RUSSELL, Circuit Judges.
RUSSELL, Circuit Judge.
This suit, in the trial court was brought under the Federal Tort Claims Act by the State Road Department of the State of Florida against the United States of America to recover damages resulting from the partial destruction of, and damage to, the Thomas A. Jefferson Bridge across Pensacola Bay, Escambia County, Florida, caused when the bridge was struck by four liberty ships of the government during a severe rain and wind squall in Pensacola Harbor, where the ships were anchored.
In its answer the United States denied its negligence, and asserted separate defenses. The eleventh defense denied the right of the plaintiff to recover in any event the cost of constructing and remov"ing two wooden temporary detour bridges at and around the damaged and destroyed portions of the bridge, constructed for the purpose of opening the bridge to traffic ' while the bridge was being repaired. Following the receipt of answer to interrogatories propounded by the defendant by which it was shown that the Road Department had carried a policy of insurance upon the bridge and had been partially reimbursed by the Aetna Insurance Company of Hartford, Connecticut, the United States by its twelfth defense denied the right of the Road Department to maintain the suit and further asserted that the insurance carrier became subrogated to any claim of the Road Department to the extent of the sum of $215,000.00 paid as insurance; that suit for this sum must be brought by the insurance carrier as subro-gee in its own name as the real party in interest, and that the insured and paid Road Department was not entitled to sue for this sum. The defendant also set up additional defenses which in the present posture of the case it is not necessary to relate. Upon the plaintiff’s motion the Court struck the eleventh and twelfth defense. Thereafter the United States, alleging the existence and payment of insurance as set forth in the twelfth defense and asserting the right of subrogation of the insurance carrier and its right to participate in any recovery from the defendant to the extent of the payment made, and that the Road Department and the insurance carrier “are the real parties in interest in this suit,” and under the law of Florida “are authorized jointly to sue the defendant to recover for the alleged damage to the bridge,” moved that the insurer be made a party plaintiff to the suit. In answer to the motion plaintiff asserted that the right of the insurance carrier to be reimbursed out of any recovery of damages was a question only between the plaintiff and its insurance carrier which would be adjusted between the parties after the judgment, if any was recovered, and that the right of recovery of the entire damage vested in the plaintiff and therefore the insurance carrier was not an indispensable party plaintiff, nor the real party in interest. It was prayed that if any order be entered making the insurance carrier a party plaintiff that the joinder be required “solely in order that all parties for whose benefit the action is being prosecuted by the State Road Department shall appear of record as parties to the cause.” The Court, reciting the existence of the right of subrogation on the part of the insurance carrier and that its joinder would in no way prejudice either the plaintiff or insurance carrier, directed that the insurance carrier should join as a party plaintiff “so that all parties for whose benefit the action is being prosecuted shall appear of record as parties in this cause.” The insurance carrier thereafter filed a formal joinder expressly pursuant to the order of the Court and adopted the pleadings of the plaintiff. Thereafter the defendant filed answer and defenses to the same effect as theretofore filed to the complaint and asserted the additional defense that the claim of the sub-rogee was barred because it had not instituted or joined in the suit within one year after August 2, 1946 as required by the provisions of the Federal Tort Claims Act.
The trial of the case was had before the late United States Circuit Judge Curtis L. Waller of this Court, sitting by designation as United States District Judge. The facts and circumstances of the case were fully developed as is shown by consideration of the lengthy transcript of record now before us. His Honor, Judge Waller, entered detailed findings of fact and conclusions of law adjudging the defendant negligent and overruling its defenses of inevitable accident and “Act of God” and awarded the plaintiff judgment in the amounts of damages stipulated to be proper if recovery for the items claimed was allowed. These findings and conclusions are published in State Road Department of Florida v. United States, D.C., 85 F.Supp. 489. The judgment was for the cost of repairing the permanent bridge $233,211.19, and for the cost of constructing and removing the temporary detour bridges $128,-426.39. The total judgment awarded the Road Department of the State of Florida damages in the amount of $361,637.58. It was further ordered and adjudged that the co-plaintiff insurance carrier was entitled, as subrogee, to receive from the said State Road Department the sum of $215,000.00 out of the proceeds of the judgment. Provision for the payment of attorneys’ fees was also made.
By this appeal three specifications of error are presented by the United States. It is contended first, that the trial court erroneously imposed upon the masters and other officers in charge of the vessels involved prior to and during the squall in which the vessels dragged anchor and collided with the bridge a standard of exercising a very high or extra-ordinary degree of care; second, that Aetna’s claim as a plaintiff was barred by the limitation of the Federal Tort Claims Act, supra, and, third, that the cost of constructing and removing the two temporary detour wooden bridges was not an element of damage recoverable by the Road Department. We have intentionally refrained from repeating in detail the findings of fact and conclusions of law reached by the learned Judge sitting as U. S. District Judge designate. They fully appear in the published report appearing in 85 F.Supp. 489. Reference thereto will afford full understanding of all material facts and circumstances of the case and conclusions of law announced. These we approve in substance.
The first specification of error of the appellant assumes, we think, the application by the trial judge of a standard of care which is not supported when the findings of fact and conclusions of law are considered as a whole. The specification is predicated upon isolated statements appearing in the Court’s discussion. We are convinced from a consideration of the opinion of the Court as a whole that the judgment against the defendant-appellant resulted from no misapplication of law to the facts found by the Court. While some language of the Court may be such as to give grounds for argument upon appeal, we think that consideration of the determination of the Court as a whole demonstrates that such argument is not valid and should be rejected.
It appears from the record that the defense that the claim of the subrogee was barred by the limitations in the Federal Tort Claims Act, supra, had been determined upon motion prior to the trial. It is to the effect of this ruling that the second specification of error is directed. In brief, the contention is that since there were two “real parties in interest” and only one of them filed a timely suit the other is barred. Thus to support its position it was necessary for the appellant to bring into the litigation the additional “real party in interest” and assign to it an independent claim in order to invoke the bar of the Federal Tort Claims Act. Since the Road Department had not been fully reimbursed for its damages even to the main bridge structure, it was in any event entitled to assert a claim and in fact had done so,— prosecuting suit for the full amount. In these circumstances the question could in no event be broader than one of proper parties. The claim had been timely asserted. Determination of whether other additional parties were entitled or indeed required-to join in the suit was a matter distinct from the question of whether an action by one party, likewise entitled to sue, had been begun within the permitted time. In the present case there was only one foundation claim. That was for the damage to the bridge. This was the cause of action. The defendant had the right to bring in the subrogee as an additional party, but when brought in the subrogee had an equitable right to reimbursement, which could be enforced only by establishing thé same claim, or cause of action, of the Road Department. This had been timely filed, and was a sufficient and timely assertion of the claim for the entire damages. It is therefore clear that the fact that the subrogee was entitled to participate in the proceeds of the judgment when recovered furnishes no valid ground for adjudging this amount of the total recovery barred by the provisions of the statute.
That portion of the complaint which sought recovery of the cost of constructing and removing the temporary wooden bridges around those portions of the permanent bridge that was damaged by the defendant is predicated upon the obligation of the defendant State Road Department under a lease-purchase agreement which required the plaintiff to maintain and keep the bridge open at all times, and' obligated it to operate the bridge free of tolls as a part of the State Road system. There appears no dispute that the bridge in question is a State road and also a designated .and numbered U. S. Highway, No. 98. The Road Department relies upon cited statutes of Florida as well as common law right to recover such damages through its designated agency. The appellant contends that in.no event is this item of damage recoverable since if done by the State in its general governmental function to maintain the roads the expense is attributed in contemplation of law to the performance of that duty and not to any other circumstances, and further, that if the obligation be deemed to arise from the lease contract the damages are unrecoverable because too remote. It is also contended that since the statute limits recovery to only “the actual damage to the highway” it does not authorize the recovery of the damages here involved. It is conceded that the detour bridges were built to keep traffic open over the State and Federal highway, of which the damaged bridge was a part. The trial judge in sustaining the motion to strike this defense was of the opinion that a failure to consider the cost of constructing the temporary bridges as a necessary part of the over-all construction costs of the repairs of the permanent bridge would “be to blindly ignore the importance of present day use of arterial highways.” We are impelled to the same view. Under the circumstances here present, where a permanent bridge, which the State has the obligation to maintain and keep open to accommodate a heavy flow of traffic, is damaged, the cost of constructing temporary facilities essential to maintain the regular flow of traffic is so directly related to the injury to the bridge and such, a well understood and necessary consequence of such injury that such expense should be deemed legally a part of the damages sustained by the injury to the permanent bridge. So closely related are the repairs to the permanent bridge and the necessity for maintaining the traffic artery which it affords that we think the expense here in question constitutes “actual damage to the highway” within the fair intent and meaning of the Florida statute. Actual damages are compensatory damages. Expenses which naturally and reasonably follow from an injury to property are proper items of recovery. In recognition of this, Florida Courts permit recovery of the use value of automobiles while waiting repair, and the right to recover the rental expense for an automobile necessary to replace one negligently damaged is well recognized.
We have considered the authorities cited by the appellant, that the proper measure of damages for injury to a non-toll bridge is the cost of repairing and restoring it, as well as adjudications that the cost of maintaining a detour is not a proper item of recoverable damage for injury to a bridge. There can be no quarrel with the text authorities to the effect that the cost of repairing or restoring the bridge is generally the proper measure of damages for injury to it. However this does not reach the precise question here. The cases cited were determined upon consideration of statutes which restricted recoverable damages to such as “resulted to such bridge” or damages which the “bridge may sustain” and the Courts expressly construed the statutes there involved as not authorizing the recovery of consequential damages. The-Florida statute provides for .recovery of actual damage to the highway. “Highway” is a broader term than “bridge” or “structure.” We . have found no Florida decision which construes the Florida statute to exclude the recovery of consequential damages. It is our independent opinion that a fair and reasonable construction of the statute furnishes a basis for the recovery now involved since the damages claimed are the natural and reasonable consequence of the injury to the bridge, the highway.
None of the specifications of error or the arguments in support thereof show reversible error and the judgment of the trial court is
Affirmed.
. 28 U.S.C.A. § 921 et seq. [1948 Revised Judicial Code, 28 U.S.C.A. §§ 1346, 2671 et seq.].
. A statement of these as well as a more full statement of the eleventh and twelfth, defenses herein referred to may be found in State Road Department of State. of Florida v. United States, D.C., 78 F.Supp. 278.
. 28 U.S.O.A. § 942 [1948 Revised Judicial Code, 28 U.S.C.A. § 2401].
. “If the masters of these vessels were merely required to exercise ordinary or reasonable care after the officers of the vessels discovered their peril, then the defendant would doubtless be entitled to a judgment in its favor.”
“Ordinary care or reasonable care was not the test, but a very high degree of care and caution was required under the circumstances present at the time.”
The holding, “that the defendant had the burden of showing himself to be free from the commission or omission of any ' act that proximately contributed to the injury and if it has failed so to do the defenses of inevitable accident and vis major must fall.”
. United States v. Aetna Casualty & Surety Co., 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171.
. Cf. United States v. Memphis Cotton Oil Co., 288 U.S. 62, 67, 53 S.Ct. 278, 77 L.Ed. 619.
. “The Department mil at all times during the continuance of this agreement, maintain the bridge and approaches in good repair and in sound operating condition, and will make all necessary repairs, renewals and replacements.
“The State Road Department shall maintain the roads and protect and preserve the same from trespass and injury * * * as is or will be liable to endanger the comfort and safety of the public travelling on said roads. Said Department shall make and maintain said roads safe for the use of sober, lawabiding citizens who desire to travel over same.”
. “The Department will at all times during the continuance of this agreement operate the said bridge free of tolls as a part of the State Road system.”
. Florida Statutes Annotated 1941 § 341.24 provides: “The state road department shall maintain the state roads and protect and preserve the same from trespass and injury and prevent such use of, and traffic on, said roads as is or will be liable to injure or destroy the same, and is or will be liable to endanger the comfort and safety of public travel on said roads. Said department shall make and maintain said roads safe for the use of sober, law-abiding citizens who desire to travel over the same.
“Any person shall be civilly liable to the department for the actual damage to the highway by reason of his wrongful act, which damage may be recovered by suit, and when collected shall be paid into the state treasury to the credit of the state road tax fund.”
Section 320.54(6), provides: “Civil liability. Whoever damages any state road by any trespass on, unlawful use of, or traffic over such road shall be civilly liable for the amount of such damage, which amount may be recovered at the suit of the state road department, and when recovered shall be turned into the state treasury and placed to the credit of the state road tax fund.”
. Citing as illustrative, The Manhattan, D.C., 10 F.Supp. 45, affirmed 3 Cir., 85 F.2d 427.
. Atchison, T. & S. F. Ry. Co. v. Jarboe Livestock Comm. Co., 10 Cir., 159 F.2d 527, 530; 25 C.J.S., Damages, § 25; 15 Am.Jur. Damages Section 66.
. Allen v. Hooper, 126 Fla. 458, 171 So. 513.
. Maggio v. M. F. Bradford Motor Express, Inc., La.App., 171 So. 859.
. 8 Am.Jur. (Bridges), Sec. 84, p. 973; 11 C.J.S., Bridges, § 100, p. 1137; 9 C. J., Bridges, Sec. 118, p. 499.
. State Highway Commission v. American Mutual Liberty Insurance Co., 146 Kan. 187, 70 P.2d 20; Shell Oil Co. v. Jackson County, Tex.Civ.App., 193 S.W.2d 268; State v. F. W. Pitch Co., 238 Iowa 208,17 N.W.2d 380.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "state government (includes territories & commonwealths)", specifically "bureaucracy providing services". Which specific state government agency best describes this litigant?
A. Police
B. Fire
C. Taxation
D. Human Services/Welfare/Health Care
E. Streets and Highways
F. Transportation
G. Election processes
H. Education
I. Other Service Activity
J. not ascertained
Answer: |
songer_origin | A | What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
James David ELLER, Appellant, v. UNITED STATES of America, Appellee.
No. 18666.
United States Court of Appeals Ninth Circuit.
Jan. 21, 1964.
Rehearing Denied Feb. 25, 1964.
Dewey E. Turner, Palo Alto, Cal., for appellant.
Moody Brickett, U. S. Atty., Great Falls, Mont., and Richmond F. Allan, Asst. U. S. Atty., Billings, Mont., for ap-pellee.
Before MADDEN, Judge of the Court of Claims, and CHAMBERS and BROWNING, Circuit Judges.
BROWNING, Circuit Judge.
Appellant pleaded guilty to a charge of assisting in the escape of a prisoner in violation of 18 U.S.C.A. § 752. Since the prisoner was charged with a misdemeanor, appellant’s offense was likewise a misdemeanor, punishable by confinement for not more than one year. Appellant was sentenced under the Youth Corrections Act, 18 U.S.C.A. §§ 5005-5026, which provides for conditional release within four years and unconditional release within six years. § 5017 (c). Appellant’s subsequent motion under 28 U. S.C.A. § 2255, challenging the constitutionality of the Youth Corrections Act as applied to him, was denied by the District Court in reliance upon Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962), and Cunningham v. United States, 256 F.2d 467 (5th Cir. 1958). This appeal followed.
Since the District Court’s decision we have twice indicated our agreement with Carter and Cunningham. See Standley v. United States, 318 F.2d 700, 701 (9th Cir. 1963), and Young Hee Choy v. United States, 322 F.2d 64, 66 n. 7 (9th Cir. 1963). We now do so again.
In this court appellant also complains, for the first time, that he was not told prior to his plea of guilty and sentence that he might be sentenced under the Youth Corrections Act, and thus be subjected under his plea of guilty to a substantially longer period of restriction than that provided by 18 U.S.C.A. § 752.
The government responds that ■since this issue was not raised before the District Court it should not be considered on appeal (Standley v. United States, supra, 318 F.2d at 701) and that appellant’s remedy is in the District Court by way of a new motion under 28 U.S.C.A. § 2255 or an application under Rule 32 (d) of the Federal Rules of Criminal Procedure. Pilkington v. United States, 315 F.2d 204, 209 (4th Cir. 1963); Carter v. United States, supra, 306 F.2d at 285-286. See also Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963). We agree.
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_typeiss | A | 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.
UNITED STATES of America, Plaintiff-Appellee, v. Bradford DAVIDSON, Defendant-Appellant.
No. 84-3263.
United States Court of Appeals, Sixth Circuit.
Argued March 13, 1985.
Decided April 17, 1985.
Timothy Howard (lead), Cleveland, Ohio, Edwin H. Jacobs, argued, Shaker Heights, Ohio, for defendant-appellant.
J. Matthew Cain, Asst. U.S. Atty., Cleveland, Ohio, Marcia Harris, argued, for plaintiff-appellee.
Before MERRITT, Circuit Judge, PHILLIPS and PECK, Senior Circuit Judges.
MERRITT, Circuit Judge.
In this two count mail fraud case arising from the efforts of the defendant, Bradford Davidson, to collect fire insurance on a commercial building which he caused to be burned down, the defendant appeals his conviction on grounds that the government did not prove through admissible evidence that the defendant caused government exhibits five and seven to be mailed or that they were, in fact, mailed. From this argument he argues further that the government failed to prove the required element of mailing or use of the mails, one of the two essential elements of a mail fraud case under 18 U.S.C. § 1341.
The two documents offered by the government to satisfy the mail requirement of the two counts are Exhibit 5, a document purportedly signed by the defendant employing an adjusting company to represent him in collecting the loss, and Exhibit 7, a schedule of items lost in the fire. The government's theory of the case is that these two documents were mailed by the defendant’s adjusting company to the insurance company’s adjuster. In order to prove the mailings, the government called the insurance company’s supervising adjuster, who was in charge of the office which received Exhibits 5 and 7. He testified that based on personal knowledge, as well as notations on the documents, they were received by his office in the mail.
The defendant argues that the documents are hearsay and are not admissible under the business records exception to the hearsay rule. He argues further that the documents do not establish, even if admissible, the mailing element because there is no evidence linking the documents directly to the defendant. The defendant argues that the adjusting company which sent the employment contract and the schedule to the insurance company’s adjuster could have been acting as an intermeddler and hence that there is no proof that the adjusting. company actually represented the defendant or that the defendant caused the mail to be used by the adjusting company.
We do not agree with these arguments. The insurance company’s supervising adjuster testified that Exhibits 5 and 7 were received in the mail in the regular course of business. With respect to Exhibit 7, the government introduced the envelope itself showing on its face that the schedule was stamped and mailed. The supervising adjuster was the office manager of the office which received and retained the records in the ordinary course of business. The defendant offered no rational argument against applying the business records exception to the hearsay rule. Therefore, Exhibits 5 and 7 are not inadmissible hearsay.
The defendant’s argument that the proof does not connect him to the mailings is likewise in error. Exhibit 5 is an employment contract between the defendant and the adjusting company that mailed Exhibits 5 and 7. From this evidence, the jury was entitled to infer that the defendant employed the adjusting firm and authorized it to take the steps necessary to collect the fire loss, including the use of the mails. The defendant should have reasonably anticipated that the adjusting company hired by him would use the mails, as it did, to collect the fire loss. Reasonable anticipation that the mails will be used satisfies the mailing element under section 1341. See Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 362-363, 98 L.Ed. 435 (1954). The Pereira case makes it clear that the defendant does not himself have to have dropped the letter in the mail. Mail fraud only requires that the defendant reasonably anticipate, or as a reasonable person foresee, the use of the mails.
From the evidence introduced by the government, the jury could have reasonably inferred that the defendant employed his own adjusting firm authorizing the firm to take whatever steps necessary to collect the fire loss, including the use of the mails. Exhibits 5 and 7 are documents from which the jury could infer that the adjusting company hired by defendant did, in fact, use the mails to forward to the insurance company’s adjusting firm schedules of losses and other items necessary to collect the loss.
Accordingly, the judgment of the District Court upon the jury verdict is affirmed.
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_weightev | B | What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
Minerva BRADLEY, I. A. Jackson, Jr., Rosa Lee Quarles, John Edward Johnson, Elihu C. Myers and Elizabeth S. Myers, Appellants, v. The SCHOOL BOARD of the CITY OF RICHMOND, VIRGINIA, H. I. Willet, Division Superintendent of Schools of the City of Richmond, Virginia, and E. J. Oglesby, Alfred L. Wingo and E. T. Justis, individually and constituting the Pupil Placement Board of the Commonwealth of Virginia, Appellees.
No. 8757.
United States Court of Appeals Fourth Circuit.
Argued Jan. 9, 1963.
Decided May 10, 1963.
Albert V. Bryan, Circuit Judge, dissented in part.
Henry L. Marsh, III, Richmond, Va. (S. W. Tucker, Richmond, Va., on brief) for appellants.
Henry T. Wickham, Sp. Counsel, City of Richmond (J. Elliott Drinard, City Atty., Richmond, Va., and Tucker, Mays, Moore & Reed, Richmond, Va., on brief) for appellees, The School Board of the City of Richmond, Virginia, and H. I. Willet, Division Superintendent of Schools.
Before BOREMAN, BRYAN and J. SPENCER BELL, Circuit Judges.
BOREMAN, Circuit Judge.
This is a school case involving alleged racially discriminatory practices and the maintenance of public schools on a racially segregated basis in the City of Richmond, Virginia. In September 1961 eleven Negro pupils, their parents and guardians instituted this action to require the defendants to transfer the pupils from Negro public schools to white public schools. The plaintiffs also pray, on behalf of all persons similarly situated, that the defendants be enjoined from operating racially segregated schools and be required to submit to the District Court a plan of desegregation. The District Court ordered that the individual infant plaintiffs be transferred to the schools for which they had applied. This appeal is based upon the refusal of the court to grant further injunctive relief.
Defendant, Virginia Pupil Placement Board, answered the complaint, admitting that plaintiffs had complied with its regulations pertaining to applications for transfer but denying discrimination and other allegations of the complaint. The defendants, School Board of the City of Richmond and the Richmond Superintendent of Schools, answered and moved to dismiss on the ground that sole responsibility for the placement of pupils rested with the Virginia Pupil Placement Board pursuant to the Pupil Placement Act of Virginia, Sections 22-232.1 through 232.17, Code of Virginia, 1950, as amended.
The defendants interpreted the bill of complaint as attacking the constitutionality of the Pupil Placement Act and the' motions to dismiss were grounded also on the theory that constitutionality should first be determined by the Supreme Court' of Appeals of Virginia or the case should be heard by a District Court of three judges. The court below correctly denied the motions to dismiss after determining that the constitutionality of the Act had not been challenged by plaintiffs.
The record discloses that the City of Richmond is divided into a number of geographically defined attendance areas for both white and Negro schools. These areas were established by the School Board prior to 1954 and have not been materially changed since that time. It is admitted that several attendance areas for white and Negro schools overlap. The State Pupil Placement Board enrolls and transfers all pupils and neither the Richmond School Board nor the city Superintendent of Schools makes recommendations to the Pupil Placement Board.
During the 1961-62 school term, 37 Negro pupils were assigned to “white” schools. For the 1962-63 school term, 90 ¿dditional Negro pupils had been so assigned. At the start of the 1962-63 school term, all of the “white” high schools had Negro pupils in attendance. Negro pupils also attend several of the “white” junior high schools and elementary schools.
Certain additional facts are clearly established by the record. -The City School Board maintains five high schools, three for whites and two for Negroes; five junior high schools for whites and four for Negroes; eighteen elementary schools for whites and twenty-two for Negroes. As of April 30, 1962, there were 40,263 pupils in' Richmond public schools, 23,177 Negroes, 17,002 whites and 84 non-whites of a race other than Negro but considered white for the purpose of assignment in the Richmond public school system. Only 37 Negroes were then attending schools which white children attended, 30 of those being in the “white” Chandler Junior High School. Three of the remaining seven were in attendance at the “white” John Marshall High School, one attended the “white” Westhampton Junior High School and three handicapped children attended the Richmond Cerebral Palsy Center. With the possible exception of the three last mentioned, these children had sought transfers from Negro schools and all but one were able to satisfy the residential and academic criteria which the Pupil Placement Board applies in case of transfers but not in case of initial enrollment. The remaining child had been admitted by court order in earlier litigation.
The 1961-62 Directory of the Richmond, Virginia, Public Schools shows “White Schools” in one division and “Negro Schools” in the other. The “White Schools” are staffed entirely with faculties and officials of the Caucasian race. The schools listed as “Negro Schools” are staffed entirely with faculties and officials of the Negro race.
Thus it is clear, as found by the District Court, that Richmond has dual school attendance areas; that the City is divided into areas for white schools and is again divided into areas for Negro schools; that in many instances the area for the white school and for the Negro school is the same and the areas overlap. Initial pupil enrollments are made pursuant to the dual attendance lines. Once enrolled, the pupils are routinely reassigned to the same school until graduation from that school. Upon graduation, the pupils are assigned in the manner found by the District Court to be as follows:
“* * * [A] ssignments of students based on promotion from an elementary school to a junior high school and from a junior high school to high school are routinely made by the Pupil Placement Board. These assignments generally follow a pattern, aptly described as a system of ‘feeder schools’, that existed prior to 1954. Thus, a student from a white elementary school is routinely promoted to a white junior high school and in due course to a white high school. A Negro student is routinely promoted from a Negro elementary school to a Negro junior high school and finally a Negro high school. In order to change the normal course of assignment based on promotion all students must apply to the Pupil Placement Board. The majority of the plaintiffs in the present case are such applicants.”
As of April 30, 1962, a rather serious problem of overcrowding existed in the Richmond Negro public schools. Of the 28 Negro schools 22 were overcrowded beyond normal capacity by 1775 pupils and the combined enrollments of 23 of the 26 white schools were 2445 less than the normal capacity of those schools. For the current 1962-63 school term, the applications for transfers from Negro to white schools of only 127 Negro pupils had been granted.
Four of the infant plaintiffs, who had completed elementary school, sought admission to the white Chandler Junior High School. After comparing test scores of these pupils with test scores of other pupils, the Pupil Placement Board denied the applications on the ground of lack of academic qualifications. These plaintiffs contended that pupils from white elementary schools in the same attendance area are routinely placed in Chandler Junior High and their scholastic attainments or qualifications are not scrutinized by the Pupil Placement Board. The District Court concluded that academic criteria were applied to Negro pupils seeking transfer based on promotion, which criteria were not applied to the white pupils promoted from elementary schools to junior high schools. This, said the court, is discriminatory and is a valid criticism of the procedure inherent in the system of “feeder schools”. The court further stated:
“Proper scholastic tests may be used to determine the placement of students. But when the tests are applied only to Negroes seeking admission to particular schools and not to white students routinely assigned to the same schools, the use of the tests can not be sustained. Jones v. School Board of the City of Alexandria, 278 F.2d 72 (4th Cir. I960).”
Another of the Negro plaintiffs, who was promoted from a Negro junior high school, sought admission to the “white” John Marshall High School. His application had been denied because he lived thirteen blocks from the John Marshall High School and only five blocks from a Negro high school. However, it was pointed out in the court below that this plaintiff lives in the attendance area of the John Marshall High School and, had he been a white student, he would have been routinely assigned there without considering the distance of his residence from that school or from another high school. The District Court said: “ * * Residence may be a proper basis for assignment of pupils, but it is an invalid criteria when linked to a system of ‘feeder schools’. Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961).”
The remaining five plaintiffs sought transfers from the Graves Junior High School (Negro) to the “white” Chandler Junior High School. They were denied transfer by the Pupil Placement Board because of lack of academic qualifications. The evidence showed that the same standards for determining transfers, upon application, from one junior high school to another junior high school were applied by the Board indiscriminately to both white and Negro pupils. The District Court stated:
« * * * Were this the only factor in this phase of the case, the issue would involve only judicial review of the decision of an administrative board. However, the situation of these plaintiffs must be considered in the context of the system of ‘feeder schools’, which routinely placed them in the Graves Junior High School while white students routinely were placed in Chandler Junior High School. The application of scholarship qualifications under these circumstances is discriminatory. Green v. School Board of the City of Roanoke [304] F.2d [118] (4th Cir., May 22, 1962).”
With respect to a determination of the rights of all of the infant Negro plaintiffs, the District Court held:
“The foregoing facts and conclusions of law require the admission of the plaintiffs to the schools for which they made application.”
An appropriate order was entered enjoining and restraining the defendants from denying the infant plaintiffs, therein named, admission to the schools for which they had made application. The defendants have not appealed from this order.
It follows that each infant plaintiff has been granted the relief which he or she individually sought. But the District Court, although expressing its disapproval of the “feeder school system” as now operating in the City of Richmond, denied further injunctive relief. The case was ordered retained on the docket for such further relief “as may be appropriate”.
The conclusion of the District Court that a “reasonable start toward a nondiseriminatory school system” had been made appears to have been based primarily upon consideration of four factors discussed in its opinion as follows:
“Rigid adherence to placement of students by attendance areas has been modified in four respects. First, the Chairman of the Pupil Placement Board testified that any Negro child applying for enrollment in the first grade of a white public school in his attendance area is assigned to that school. Second, the Superintendent of Schools testified that George Wythe High School and John Marshall High School had been constructed to accommodate all high school students in their respective attendance areas. Counsel stated in argument that six Negro students had applied for admission to George Wythe High School for 1962 and all had been accepted. Third, a Negro student presently attending a white school, upon promotion to a higher school, is routinely assigned to a white school. Fourth, some Negro-students have been assigned to schools in white attendance areas.”
In the context of this case the principal questions to be determined may be stated as follows: (1) Are these four basic factors cited by the District Court sufficient to evidence a reasonable start toward maintaining a non-discriminatory school system and consistent with the true concept of equal constitutional protection of the races; and (2) should the court have granted further injunctive relief? We think question (1) must be answered in the negative and question (2) in the affirmative in view of the discriminatory attitude displayed by the Pupil Placement Board toward the transfers sought by the infant plaintiffs in the instant case and which transfers, denied as the result of discriminatory application of residential and academic criteria, were effected only through this protracted litigation.
It is notable that there is no assertion here, as in some of the other school cases, of a defense based upon a claim that a reasonable start has been made toward the elimination of racially discriminatory practices coupled with a suggestion that additional time, consistent with good faith compliance at the earliest practicable date, is necessary in the public interest. Instead, the answer of the City school authorities denied that anything done or omitted by them had given rise to the present litigation. The answer of the Pupil Placement Board admitted that the plaintiffs had complied with its administrative procedures but denied and demanded strict proof of racial discrimination.
One of the interrogatories served by the plaintiffs was: “What obstacles, if any, are there which will prevent the racially non-discriminatory assignment of students to public schools in the City of Richmond at the commencement of the 1962-1963 school session?” The local school authorities side-stepped the question by claiming to be unable to answer because all power to assign students to schools had been vested by law in the Pupil Placement Board. That Board replied to the interrogatory as follows: “ * * * [T]hat to the extent that such question implies discrimination, such implication is denied and that such question lacks sufficient specificity to evoke an intelligent answer which does not involve broad conclusions or have argumentative deductions. Aside from that, and under Brown v. Board of Education, these defendants know of no reason ivhy students should not be assigned to public schools without discrimination on the ground of race, color, or creed.” (Emphasis added.)
The Superintendent of Schools testified that the City School Board had not attempted to meet the problem of overcrowded schools by requesting that Negro-pupils in overcrowded schools in a given area be assigned to schools with white pupils. He stated that some new schools and additions to existing schools had been; provided. The record discloses that the-earlier litigation, Warden v. The School Board of the City of Richmond, referred to in our footnote 3, was instituted on-September 2, 1958. At a special meeting held on September 15, 1958 (approximately two weeks after the beginning of the school term), the School Board voted to request the Pupil Placement Board to transfer the pupils then attending the Nathaniel Bacon School (white) to the East End Junior High School (white), and that a sufficient number of pupils be transferred from the George Mason (Negro) and Chimborazo (Negro) schools to-the Nathaniel Bacon building to utilize its capacity, thus converting Nathaniel Bacon to a Negro school.
The attitude of the City school authorities, as disclosed by the Superintendent of Schools in his testimony, is and has. been “that the state law took out of the hands of the School Board and the Superintendent of Schools any decision relating to the integration of schools [and that} * * * it has been a feeling of both the School Board and the Administration that any conflict that might exist between the state and federal law should be . decided by the Courts, not by the School Board and the Administration.”
The following is taken from the testimony of the Chairman of the Pupil Placement Board:
“Q. Well, what do you do where you have overlapping school zones and school areas?
“A. You have got that, of course* in Richmond.
“Q. Yes.
“A. Normally, I would say fully 99 per cent of the Negro parents who are entering a child in First Grade prefer to have that child in the Negro school. Judging by the small number of applications we get, that must be true. Now, we do not think that this Board was appointed for the purpose or that the law required the attempt on our part to try to integrate every child possible. What we thought we were to do was to be completely fair in considering the requests of Negroes, we will say, to go into White schools, but certainly not trying to put those in that didn’t want to go in.
“Now, when a Negro parent asks for admission of his child in the First Grade of a White school, very clearly he is asking for desegregation or for integration, or whatever you want to call it, and he gets it. And it is true that in general there will be two schools that that child could attend in his area, one White and one Negro, and we assume that the Negro wants to go to the Negro school unless he says otherwise, but if he says otherwise, he gets the other school.” (Emphasis supplied.)
It is true that the authority for the enrollment and placement of pupils in the State of Virginia has been lodged in the Pupil Placement Board unless a particular locality elects to assume sole responsibility for the assignment of its pupils. The School Board of the City of Richmond has assumed no responsibility whatever in this connection. It does not even make recommendations to the Pupil Placement Board as to enrollments, assignments or transfers of pupils. It here defends charges against it of racial discrimination in the operation of the City’s schools on the ground that the sole responsibility is that of the State Board. At the same time the system of dual attendance areas which has operated over the years to maintain public schools on a racially segregated basis has been permitted to continue. Though many of the Negro schools are overcrowded and white schools are not filled to normal capacity, the only effort to alleviate this condition has been to provide new buildings or additions to existing buildings, a move obviously designed to perpetuate what has always been a segregated school system.
It is clear that the pupil assignments are routinely made by the Pupil Placement Board. The Chairman of that Board says that now initial enrollments are on a voluntary basis and a Negro child may be enrolled in a white school upon request. But in the absence of a request, the long established procedure of enrollment of Negro children in Negro schools and white children in white schools persists. Then the “feeder” system begins to operate and the only means of escape is by following the prescribed administrative procedure of filing requests or applications for transfer. The difficulties to be encountered in pursuing this course are graphically demonstrated by the experiences of the infant plaintiffs in this litigation. They were able to escape from the “feeder” system only after the District Court made possible their release by ordering transfers.
A Negro child, having once been caught in the “feeder” system and desiring a desegregated education, must extricate himself, if he can, by meeting the transfer criteria. As this court said in Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118, 123 (4th Cir. 1962): “ * * * These are hurdles to
which a white child, living in the same area as the Negro and having the same scholastic aptitude, would not be subjected, for he would have been initially assigned to the school to which the Negro seeks admission.”
It was pointed out in Jones v. School Board of City of Alexandria, Virginia, 278 F.2d 72, 77 (4th Cir. 1960), that, by reason of the existing segregation pattern, it will be Negro children, primarily, who seek transfers. The truth of this statement is evidenced by the fact that in Richmond only 127 Negro children out of a total of more than 23,000 are now attending previously all-white schools. This court further said in Jones, supra: “Obviously the maintenance of a dual system of attendance areas based on race offends the constitutional rights of the plaintiffs and others similarly situated * * * ” 278 F.2d 72, 76.
In recent months we have had occasion to consider the legality of other “feeder” systems found in operation in the public schools of Roanoke County, Virginia, and in the City of Roanoke, Virginia. See Marsh v. County School Board of Roanoke County, Va., 305 F.2d 94 (4th Cir. 1962), and Green v. School Board of City of Roanoke, Virginia, 304 F.2d 118 (4th Cir. 1962). In those cases, in opinions prepared by Chief Judge Sobeloff, the unconstitutional aspects of the systems there in operation were discussed in the light of the -decisions of the Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955), and in the light of numerous prior decisions of this and other courts. We find it unnecessary to again cite or review the pertinent decisions applicable to the maintenance of racially segregated school systems. In the Marsh and Green cases we reached the conclusion that injunctive relief, not only for the individual plaintiffs but for those who might find themselves confronted with the same problems, was justified.
A start has, indeed, been made to end total segregation of the races in the Richmond schools. The first step has been taken, one which, no doubt, was distasteful to those who are traditionally and unalterably opposed to an integrated school system. But, upon this record and from the statements of the school officials, we find nothing to indicate a desire or intention to use the enrollment or assignment system as a vehicle to desegregate the schools or to effect a material departure from present practices, the discriminatory character of which required the District Court to order relief to the infant plaintiffs before it. In the present status in which the case was left by the District Court, the school authorities are yet free to ignore the rights of other applicants and thus to require the parents of new applicants to protest discriminatory denials of transfers, to require an infant applicant with his or her parents to attend a hearing on the protest which is not likely to be held earlier than August of 1963, and then to require the applicants to intervene in the pending litigation (possibly to be met with defensive tactics calculated to result in delay), the applicants fervently hoping to obtain relief from the court not long after the beginning of the 1963-64 school session if such relief is to be meaningful.
The School Board of the City of Richmond has abdicated in favor of the Pupil Placement Board leaving the latter with a school system which, in normal operation, has demonstrated its potential as an effective instrumentality for creating and maintaining racial segregation. Nearly nine years have elapsed since the decisions in the Brown v. Board of Education cases and since the Supreme Court held racial discrimination in the schools to be unconstitutional. The Richmond school authorities could not possibly have been unaware of the results of litigation involving the school systems of other cities in Virginia, notably Norfolk, Alexandria, Charlottesville and Roanoke. Despite the knowledge which these authorities must have had as to what was happening in other nearby communities, the dual attendance areas and “feeder” system have undergone no material change.
Assignments on a racial basis are neither authorized nor contemplated by Virginia’s Pupil Placement Act. We are told that initial assignments are now made on a purely voluntary basis but the Placement Board assumes that a Negro child prefers to attend a school with children of his own race and he is so assigned unless otherwise requested. Richmond’s administration of her schools has been obviously compulsive and it is evident that there has been little, if any, freedom of choice.
“Though a voluntary separation of the races in schools is uncondemned by any provision of the Constitution, its legality is dependent upon the volition of each of the pupils. If a reasonable attempt to exercise a pupil’s individual volition is thwarted by official coercion or compulsion, the organization of the schools, to that extent, comes into plain conflict with the constitutional requirement. A voluntary system is no longer voluntary when it becomes compulsive.” See Jeffers v. Whitley, 309 F.2d 621, 627 (4th Cir. 1962).
Notwithstanding the fact that the Pupil Placement Board assigns pupils to the various Richmond schools without .recommendation of the local officials, we do not believe that the City School Board can disavow all responsibility for the maintenance of the discriminatory system which has apparently undergone no basic change since its adoption. Assuredly it has the power to eliminate the dual attendance areas and the “feeder” system which the District Court found to be primarily responsible for the discriminatory practices disclosed by the evidence. It would be foolish in the extreme to say that neither the City School Board nor the Pupil Placement Board has the duty to recognize and protect the constitutional rights of pupils in the Richmond schools. That there must be a responsibility devolving upon some agency for proper administration is unquestioned. We are of the opinion that it is primarily the duty of the School Board to eliminate the offending system.
In these circumstances, not only are the individual infant plaintiffs entitled to relief which has been ordered but the plaintiffs are entitled, on behalf of others of the class they represent and who are similarly situated, to an injunction against the continuation of the discriminatory system and practices which-have-been found to exist. As we clearly stated in Jeffers v. Whitley, 309 F.2d 621, 629 (4th Cir. 1962), the appellants are not entitled to an order requiring the defendants to effect a general intermixture of the races in the schools but they are entitled to an order enjoining the defendants from refusing admission to any school of any pupil because of the pupil’s race. The order should prohibit the defendants’ conditioning the grant of a requested transfer upon the applicant’s submission to futile, burdensome or discriminatory administrative procedures. If there is to be an absolute abandonment of the dual attendance area and “feeder”' system, if initial assignments are to be on a nondiscriminatory and voluntary basis, and if there is to be a right of free-choice at reasonable intervals thereafter* consistent with proper administrative procedures as may be determined by the defendants with the approval of the District Court, the pupils, their parents and the public generally should be so informed.
If, upon remand, the defendants desire to submit to the District Court a more definite plan, providing for immediate steps looking to the termination of the discriminatory system and practices “with all deliberate speed,” they should not only be permitted but encouraged to do so.
The District Court should retain jurisdiction of this case for further proceedings and the entry of such further orders as are not inconsistent with this opinion.
Reversed in part and remanded.
. Of eleven original pupil plaintiffs, one was assigned by the Pupil Placement Board to an integrated Junior High School to which he had made application before the hearing in the District Court. His case became moot.
. Raised below (but not involved in this appeal) was the issue as to the joinder of the Richmond School Board and Superintendent of Schools as parties defendant. Correctly, we think, the District Court held:
“ * * * The State Pupil Placement Board has authority over the placement of pupils, and the local officials refrain from making recommendations to the Board, but approximately 98 per cent of the placements are made routinely as a result of the regulations of the School Board pertaining to attendance areas. The evidence shows that the State Pupil Placement Board has no inclination to vary these attendance areas, although undoubtedly it has authority to do so. In view of this situation, the School Board and the Superintendent of Schools are proper parties.”
. On September 2, 1958, a suit styled Lorna Renee Warden et al. v. The School Board of the City of Richmond, Virginia, et al. was instituted in the District Court, praying, inter alia, that a permanent injunction be entered restraining the Richmond School Board and its division Superintendent of Schools from any and all actions that regulate or affect, on the basis of race or color, the admission, enrollment or education of the infant plaintiffs, or any other Negro child similarly situated, to and in any public school operated by the defendants.
That suit was decided on July 5, 1961. The District Court ordered that the then one remaining Negro plaintiff be transferred from the Negro school located five miles from her home and admitted to the white school in her neighborhood. However, the court denied class relief, stating: “There is no question as to the right of the infant plaintiff to be admitted to the schools of the City of Richmond without discrimination on the ground of race. She is admitted, however, as an individual,; not as a class or group; and it is as an individual that her rights under the Constitution are asserted.”
The court refused to grant a permanent, injunction and dismissed the case from the docket.
. The ease to which the District Court referred is styled Green v. School Board of City of Roanoke, Virginia, and is now reported in 304 F.2d 118.
. In its written opinion the District Court stated as follows:
“The plaintiffs prayed that the defendants be enjoined from continuing discrimination in the city schools and that the School Board be required to submit a desegregation plan. The Court has weighed all of the factors presented by the evidence in this case and finds that the defendants have taken measures to eliminate racially discriminatory enrollments in the first grade. Apparently they are eliminating discriminatory enrollments in George Wythe High School [white] and they are routinely assigning Negro students in white junior high schools to white high schools.
“While the School Board has not presented a formal plan of desegregation, the Court finds that the defendants have made a reasonable start toward a nondiscriminatory school system resulting in the attendance of 127 Negro students in white schools for the 1982-1963 school term. In view of the steps that have been taken in this direction, the Court concludes that the defendants should be allowed discretion to fashion within a reasonable time the changes necessary to eliminate the remaining objectionable features of the system of ‘feeder schools’.
“In Brown v. Board of Education, 349 U.S. 294, 300 [75 S.Ct. 753, 99 L.Ed. 1083] (1955), the Supreme Court stated ‘Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs.’ The Court is of the opinion that the relief decreed in this case is sufficient at this time in view of the evidence presented. The refusal of broad injunctive relief now is not to be construed as approval to continue the ‘feeder school system’ as it is now operated. See Hill v. School Board of the City of Norfolk, Virginia, 282 F.2d 473 (4th Cir. 1960) ; Dodson v. School Board of the City of Charlottesville, 289 F.2d 439 (4th Cir. 1961).
“This case will be retained on the docket for such further relief as may be appropriate.”
. Va.Code Ann. §§ 22-232.1-232.17 (Supp. 1960).
. Va.Code Ann. §§ 22-232.18-232.31 (Supp. 1960).
. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer: |
songer_respond1_1_4 | 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 "private business (including criminal enterprises)", specifically "transportation". Your task is to determine what subcategory of business best describes this litigant.
John Robert SHAW, as Executor of the Estate of Anthony Alma Rahner, deceased, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY and Southern Railway Company, Appellees.
No. 7226.
United States Court of Appeals Fourth Circuit.
Argued Oct. 8, 1956.
Decided Nov. 7, 1956.
Thomas E. McCutchen, Columbia, S. C. (Whaley & McCutchen, Columbia, S. C., on brief), for appellant.
Frank G. Tompkins, Jr., Columbia, S. C., for appellee Southern Ry. Co.
Julius W. McKay and Douglas McKay, Columbia, S. C., for appellee Atlantic Coast Line R. Co.
Before PARKER, Chief Judge, and SOPER and SOBELOFF, Circuit Judges.
SOPER, Circuit Judge.
This suit against the Atlantic Coast Line Railroad Company and the Southern Railway Company was brought by the Executor of the estate of a conductor employed by the Southern, who' was killed by a train of the A.C.L. in attempting to cross its tracks at 4:30 A.M. on December 21, 1952, at Hardeeville, South Carolina. This suit against A.C.L. claimed damages for wrongful death and was brought under the Lord Campbell’s Act of South Carolina, §§ 10-1951 and 10-1952 of the South Carolina Code of 1952. The suit against Southern on the same cause of action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. § 51, since the deceased was engaged in the performance of his duties as its employee when he was killed. At the conclusion of the plaintiff’s evidence at the trial in the District Court both defendants moved for directed verdicts in their behalf but the District Judge overruled the motions in order to afford the plaintiff the opportunity to cross-examine the defendants’ witnesses. Similar motions were made at the end of the defendants’ evidence and were then granted, the Judge being of the opinion that the sole cause of the accident was the action of the deceased in trying to cross the railroad tracks when he knew that a rapidly moving train was approaching.
The scene of the accident was a small wayside station of A.C.L. at Hardeeville, which was maintained by A.C.L. but was used by both railroads since the Southern makes use of the tracks of A.C.L. from this point south to Jacksonville, Florida. The station building had a frontage of 90 feet and a depth of 25 feet. Two tracks of A.C.L. ran north and south close to its west side. The easternmost rail of the northbound track was located 16% feet from the station and the west rail of the southbound track 35 feet therefrom. A single track of the Southern was located 31 feet west of the westernmost rail of A.C.L., and the distance from Southern’s track to the northbound track of A.C.L., on which the man was killed, was 44 feet 4 inches. The intervening space between the tracks of the two railroads was a park-like area with some growing trees and shrubbery. This area was maintained by A.C.L. but the Southern had the right to put the property and its appurtenances in good condition if A.C.L. failed to perform this duty but had never requested A.C.L. to remove the trees and shrubbery between the tracks. The station was in the charge of a lever telegraph operator of A.C.L. who regulated the movement of the trains at this point for both railroads.
The accident occurred when an A.C.L. express train going north on the track nearest the station at something more than 70 miles per hour passed a motionless Southern train which was headed south and had come to a stop at the station on its own track a few moments before. The station master had had 2 minutes previous notice of the arrival of the Southern train and about 8 minutes notice of the arrival of the A.C.L. train, which was not scheduled to stop at the station, and had given it the green light to go through without reducing speed. In the meantime the station master, in accordance with a rule of his railroad, which required the movement of the train to be protected under such conditions, had supervised the crossing of the A.C.L. tracks by three persons who had come to meet a deaf and dumb child, the only person to arrive on the Southern train. These persons had crossed and were standing alongside the Southern train when the A.C.L. train came through.
The Southern train was in charge of Anthony A. Rahner, the conductor who was killed. He was 69 years of age and had been employed by the Southern for more than 40 years. Upon the arrival of his train he and his flagman alighted on the ground. Rahner instructed the flagman to warn the porter of the train not to let the defective child be run over. At that moment the A.C.L. express was not more than 30 seconds away; and the flagman, standing on the ground, heard its warning signal and the great noise of its three diesel engines and 15 cars, and saw the reflection of its double headlights as it rushed towards the station.
It was the duty of the deceased conductor to cross from his train over the main line of the A.C.L. to the station to deliver mail and receive a clearance order permitting his train to proceed. After speaking to the flagman he walked a short distance ahead to the baggage car of his train, took some mail from the man in charge and started towards the station, and while he was still in the park-like area he broke into a run in an evident attempt to cross the tracks of the A.C.L. train but was hit and killed before he could cross the northbound track on which the express was running. The flagman saw him run across the park-like area but because of the shrubbery lost sight of him before he reached the A.C.L. tracks and was struck. This account of the accident was given by the flagman, a witness for the plaintiff. It was supported by the testimony of the baggage man on the Southern train, a witness for the defendant, who was standing in the door of the baggage car and handed the mail to his conductor and then watched him run across the intervening space of the A.C.L. tracks until he was hit by the train. This witness testified that he also was aware that the express train was approaching. The engineer on the A.C.L. express was on the right side of the leading diesel and did not see the conductor, but the brakeman on the left side caught sight of the man an instant before he was struck.
Upon this state of the record the appellant contends that the Southern was guilty of negligence because it failed to furnish Rahner a safe place to work, in that it permitted the trees and shrubbery to remain in the intervening space knowing that Rahner was obliged to cross the A.C.L. tracks in the performance of his duties without special notice of the approach of trains. It is pointed out that the Southern train was behind its schedule and that it was the duty of the conductor to go to the station as quickly as possible for his clearance in order to expedite the movement, and it is said that it is reasonable to infer that in this instance his view was obscured by the shrubbery so that he was unaware of the danger until it was too late.
The undisputed evidence in the case is to the contrary. Rahner was a trainman of many years experience, familiar with the conditions existing at the station. He had been on the same run for more than three years and had taken his train through on many previous occasions. He knew that high speed A.C.L. trains passed through the station and that southbound Southern trains stopped at the station to permit A.C.L. trains to pass. He showed his awareness of the oncoming train that morning by warning his flagman to look out for the child. Even more significant is the evidence that, in common with other railroad men present, he actually knew that the train was rushing toward the station from the thunderous noise of the engines and cars and the flashing of the headlights. Furthermore, the growth between the tracks could not have contributed to the catastrophe, as is shown by the uncontradicted evidence of witnesses on both sides. The photographs submitted by the plaintiff show that the trees and shrubbery did not grow immediately alongside the A.C.L. tracks and there was ample space, not less than 25 feet, between the trees and the tracks within which a train approaching the station from the south could be seen for more than a mile.
The appellant also rests its case upon the statutory rule, 45 U.S.C.A. § 53, that, under the Federal Employers’ Liability Act, contributory negligence of a plaintiff employee does not bar recovery for injuries but merely goes to the diminution of the damages. It is said that even if the deceased was negligent in running upon the A.C.L. tracks as described, there was negligence on the part of both railroads in allowing the train to pass through that station at high speed while a Southern train was standing at the station to receive and discharge passengers, although the station operator had previous knowledge that both trains were about to arrive.
That there was an element of danger in such a situation is obvious but it does not follow that the operation was negligent. It is common knowledge that through trains customarily pass small wayside stations without stopping or slowing down; and the custom was recognized in a rule of the A.C.L. which provided that trains and engines must run at reduced speed in passing a train receiving or discharging passengers at a station, and that trains must not pass between such a train and the platform at which passengers are being received or discharged, except where proper safeguards are provided or the movement is properly protected. The evidence shows that under this rule it became the duty of the station operator to watch over and supervise the movement of passengers across the A.C.L. tracks upon the approach of a through train and that the operator performed this duty on this occasion. No evidence was offered to show that this practice was considered by experienced railroad men, or by anyone, to be negligent or improper. No one at the station that morning was actually exposed to danger except the most experienced railroad man present, and he only because of his own conduct. As the District Judge held, the passing of the train created a condition of which the deceased was well aware but refused to recognize, and hence it must be held that his death was not due to the great speed of the train but to his own voluntary act. See Hartley v. Atlantic Coast Line R. Co., 5 Cir., 194 F.2d 590; Chesapeake & Ohio R. Co. v. Burton, 4 Cir., 217 F.2d 471; Moore v. Southern Ry. Co., 163 S.C. 342, 161 S.E. 525, reversed 284 U.S. 581, 52 S.Ct. 38, 76 L.Ed. 503; Wolfe v. Hen-wood, 8 Cir., 162 F.2d 998; Murray v. Atlantic Coast Line R. Co., 4 Cir., 233 F.2d 214; Atlantic Coast Line R. Co. v. Glenn, 4 Cir., 198 F.2d 232; New York C. & St. L. R. Co. v. Boulden, 7 Cir., 63 F.2d 917; Drawdy v. Atlantic Coast Line R. Co., 75 S.C. 308, 55 S.E. 444.
The same considerations apply in the case against A.C.L. and, in addition, it has the defense of contributory negligence on the part of the deceased, which is conclusively established. It is contended that negligence on the part of the A.C.L. was shown because the evidence as to whether the bell of the engine was rung as the train neared the station is somewhat uncertain; but this is immaterial, for it is certain that the ringing of the bell would have added nothing to the warning which the deceased was given by the noise and lights of the approaching train.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)", specifically "transportation". What subcategory of business best describes this litigant?
A. railroad
B. boat, shipping
C. shipping freight, UPS, flying tigers
D. airline
E. truck, armored cars
F. other
G. unclear
Answer: |
songer_geniss | G | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Appellant, v. 78.40 ACRES OF LAND, MORE OR LESS, Situate IN McKEAN COUNTY, STATE OF PENNSYLVANIA, and Laurence J. Hazzard et al.
No. 16474.
United States Court of Appeals Third Circuit.
Argued Oct. 5, 1967.
Decided Oct. 24, 1967.
Edmund B. Clark, Dept, of Justice, Land and Natural Resources Division, Appellate Section, Washington, D. C. (Edwin L. Weisl, Jr., Asst. Atty. Gen., Gustave Diamond, U. S. Atty., Lawrence G. Zurawsky, Asst. U. S. Atty., Pittsburgh, Pa., Roger P. Marquis, Atty., Dept, of Justice, Washington, D. C., on the brief), for appellant.
John F. Potter, MacDonald, Illig, Jones & Britton, Erie, Pa. (William F. Illig, Erie, Pa., on the brief), for appellees.
Before STALEY, Chief Judge, and MARIS and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
In this condemnation case the Government seeks on appeal to convict the trial judge of error in instructing the jury, as he did, that it might infer from the Government’s failure to call as a valuation witness one of its employees, who had made an initial valuation of the land taken, that his testimony, if produced, would have been detrimental to the Government’s position. It appears, however, that at the conclusion of the charge, in answer to a direct inquiry by the trial judge, counsel for the Government stated that he had no suggestions or corrections as to the charge. Under these circumstances, the Government is precluded from attacking in this court the portion of the trial judge’s charge referred to. Arnold v. Loose, 3 Cir. 1965, 352 F.2d 959, 963-964. We, therefore, do not reach and do not consider the question which the Government seeks to raise as to the right of a claimant to comment to the jury on the Government’s failure to call as a valuation witness an employee who had made the initial valuation upon which was based the estimate of just compensation for the land taken which is required by 40 U.S.C.A. § 258a(5).
The judgment of the district court will be affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer: |
songer_casetyp1_2-2 | A | What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "civil rights".
William E. KNUCKLES, Appellant in No. 18761, Arthur L. McKEE, Isiah Green and Joseph Tillery v. Arthur X. PRASSE, Commissioner of Correction, Commonwealth of Pennsylvania and Joseph R. Brierley, Supt. and A. T. Rundle and Clarence R. Wolfe and David N. Meyers, Appellants in No. 18829. Appeal of Arthur L. McKEE in No. 18,762. Appeal of Isiah GREEN, in No. 18,763. Appeal of Joseph TILLERY, in No. 18,764. James WASHINGTON, Appellant in No. 18,765, v. J. R. BRIERLEY, Supt., Appellant in No. 18,830.
Nos. 18761-18765, 18829, 18830.
United States Court of Appeals, Third Circuit.
Argued Dec. 1, 1970.
Decided Dec. 28, 1970.
Walter L. Foulke, Philadelphia, Pa., for appellants.
Herbert Monheit, Asst. Atty. Gen., Harrisburg, Pa., by Mabel G. Turner, Sp. Asst. Atty. Gen., Philadelphia, Pa., on the brief, for appellees.
Before KALODNER, SEITZ and ALDISERT, Circuit Judges.
OPINION OF THE COURT
PER CURIAM:
Before us are cross-appeals from a judgment of the district court granting partial relief sought under the Civil Rights Act, 42 U.S.C.A. § 1983 by inmates of a state prison who are followers of The Honorable Elijah Muhammad, often called Muslims or Black Muslims, a sect of the Islamic religion. The district court ordered the prison officials to permit collective religious services conducted by accredited ministers of their faith, “so long as the doctrines espoused by the ministers are identical to those Minister [Jeremiah] Shabazz testified to during the court proceedings.”
The court found it was not mandatory that the prison authorities make available Muslim periodicals and books requested by the plaintiffs because these writings “could be interpreted as an endorsement of a concept that whites generally and prison authorities should be defied by Muslim prisoners even when legal orders or demands are made.” The court explained that “such a view is not an appropriate interpretation of Black religious Muslim doctrine * * * Since the literature could be subject to inferences urging such defiances if not interpreted by a trained Muslim minister, I rule that it is not mandatory that the prison authorities make available to prisoners the writings.” The court specifically found that “in the hands of the inmate who is not fully informed of the Black Muslim doctrine * * * the literature could constitute a ‘clear and present danger of a breach of prison security or discipline or some other substantial interference with the orderly function of the institution. Long v. Parker, 3 Cir., 390 F.2d 816, 820, 822.’ ” Knuckles v. Prasse, 302 F.Supp. 1036, 1058, 1059 (Ed.Pa.1969). This same reasoning apparently governed its decision relating to the wearing of medals.
Similarly, we will not disturb the two conclusions that the plaintiffs had been subjected to “cruel and unusual punishment” for two and one-half days. We reject the appeal of the prison authorities grounded on the argument of insufficient evidence and the plaintiff-appellants’ argument that the court erred in not finding that the conditions persisted beyond this limited time, and that they were entitled to money damages as a matter of law.
This court has previously said in Gittlemacker v. Prasse, 428 F.2d 1, 4 (3 Cir. 1970): “To determine with precision, those rights which follow an inmate into prison involves a process of weighing and balancing conflicting interests.” We conclude that The Honorable A. Leon Higginbotham, Jr., the trial judge, approached his task of striking this proper balance with outstanding sensitivity, understanding and perception. The district court demonstrated an awareness that “[i]n the case of a prisoner, the determination of what constitutes an actionable claim may become difficult since imprisonment unavoidably results in the forfeiture of certain rights and privileges commonly exercised in a free society.” Gittlemacker v. Prasse, supra, at 3.
The district court succinctly posited the problem:
But a prison is not a private dwelling and a cell row is not a public highway. Thus plaintiffs’ freedoms and rights must be analyzed in the realistic context of the prison situation where plaintiffs desire to exercise them. 302 F.Supp. at 1047.
Guided by these principles, we turn to the argument advanced by the inmate-appellants, which suggests an inconsistency between the court’s conclusion that Eighth Amendment rights were denied them for two and one-half days and its refusal to award monetary damages. We do not find these conclusions incompatible. The complaint was a combination of counts in law and in equity. The district court treated this particular issue as one sounding in equity, setting forth in conclusion 7: “Plaintiffs were subjected to cruel and unusual punishment, but since it does not appear that this practice has been or will be continued, injunctive relief is DENIED.” 302 F.Supp. at 1062.
Accordingly, after considering all the arguments advanced by the cross-appellants, we will affirm the judgment of the district court.
Judge Seitz concurs in the result except that were he in the district court he would have assessed at least nominal damages against the defendants legally responsible for the conditions found to constitute cruel and unusual punishment. See Basista v. Weir, 340 F.2d 74, 87 (3d Cir. 1965).
Question: What is the specific issue in the case within the general category of "civil rights"?
A. civil rights claims by prisoners and those accused of crimes
B. voting rights, race discrimination, sex discrimination
C. other civil rights
Answer: |
songer_usc1 | 35 | 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.
EGRY REGISTER CO. v. STANDARD-REGISTER CO.
Circuit Court of Appeals, Sixth Circuit.
January 6, 1928.
No. 4762.
1. Patents <@=>318(4) — Court could not assume-on accounting that all defendant’s sales of infringing article were due to presence-of patented features.
It could not be assumed, on accounting for profits from infringing device, that all defendant’s sales of shipping bill register having plaintiff’s patented improvement were due to presence of patented features, and that all profits-were caused thereby.
2. Patents <@=>318(4) — Where invention infringed pertained to one portion of construction and operation of article sold, apportionment of profits on accounting was necessary.
Where actual invention infringed pertained to only one portion of construction and one feature of operation of shipping bill register sold' by defendant, an apportionment of profits on accounting was necessary for infringement.
3. Patents <@=>318(4) — Patentee cannot by language of claim transform invention of improvement in existing structure into one of complete structure, entitling him to profits, on whole structure.
Patentee cannot by language of his claim-, transform his invention of an improvement in an existing structure into, one of complete structure, as if it were wholly new, so as to entitle him to profits on those parts of it which are-not in any fair sense his invention.
4. Patents <@=>318(4) — Burden was on plaintiff to show apportionment of profits from sale of infringing article.
An apportionment of profits from sale of infringing article being necessary, burden was on plaintiff to make apportionment, or show sufficient excuse for not doing so.
5. Patents <@=>318(4)— Plaintiff suffering injury from infringement, not being entitled to ail profits, and not being able to make apportionment, was entitled to reasonable royalty..
Plaintiff, having suffered injury because of defendant’s infringement of patent for improvements on shipping bill register, and not having been able to make satisfactory proof of damages, not being entitled to all defendant’s profits from sale of register having such improvement, and not being able to make an intelligent apportionment, was entitled to • award of reasonable royalty.
6. Patents @=318(5) — Where patent infringe, ment period was about 18 months, plaintiff was entitled to interest at 6 per cent, on royalty from end of period until decree.
Where whole period during which patent was infringed was about 18 months, it was sufficient to allow, as damages for nonpayment of reasonable royalty, interest at 6 per cent, from end of period until decree.
7. Patents @=259(2) — Making and supplying to infringing machine articles necessary to infringing use, is “contributory infringement”' for profits of which makers must account.
Making and supplying to an infringing machine articles which are necessary to infringing use, and have no other possible use, and would have no sale value, excepting to these infringers for that use, is “contributory infringement,” for profits of which makers must account.
[Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Contributory Infringement.]
8. Patents @=318(3) — In fixing reasonable royalty for infringement, question is what partios would have agreed on, if both were reasonably trying to reach an agreement.
In fixing a reasonable royalty for infringement of patent, primary inquiry is what parties would have agreed on, if both were reasonably trying to reach an agreement, and when result is to interfere with patent monopoly, which patentee was in position to and desired to keep by retaining entire market himself, his compensation for parting against his will with that opportunity must take due account of loss to him of anticipated profits on business which licensees will thus get away from him.
9. Patents @=318(3) — Future profits from sale of supplies for patented machine may be considered, in retroactively determining reasonable royalty.
When patentee’s business scheme involves reasonable expectation of making future profits by continuing sale to purchaser of patented machine, of supplies to be furnished by patentee, which future business he will lose by licensing a competitor to make machine, this expectant loss is an element to be considered in retroactively determining reasonable royalty.
10. Patents @=319(3) — Infringement of patent No. 940,481 for shipping bill register improvement held not willful, justifying statutory increase of damages (35 USCA § 70).
Infringement of patent No. 940,481 for improvement in shipping bill register held not willful, in such sense as to justify increase of damages, under Act Feb. 18, 1922, § 8 (35 USO A § 70).
Appeal from,the District Court of the United States for the Southern District of Ohio; Smith Hickenlooper, Judge.
Suit by the Standard Register Company against the Egry Register Company. From a decree for plaintiff, defendant appeals.
Reversed and remanded.
H. A. Toulmin, Jr., of Dayton, Ohio (H. A. Toulmin, of Dayton, Ohio, on the brief), for appellant.
Alfred M. Allen, of Cincinnati, Ohio (Allen & Allen, of Cincinnati, Ohio, E. H. & W. B. Turner, of Dayton, Ohio, and Marston Allen, of Cincinnati, Ohio, on the brief), for appellee.
Before DENISON and MACK, Circuit Judges, and DAWSON, District Judge.
DENISON, Circuit Judge.
In 267 F. 186, this court affirmed the decree which had found the validity of the Sehirmer patent, No. 940,481, belonging to the Standard Company, and the infringement of claims 1 and 2 by the Egry Company. There were thereafter a reference to a master for the usual accounting, and long proceedings before the master. His final report found, among other things, that defendant’s profits by the direct infringement were about $9,000, and that defendant, by selling supplies for the infringing machines which it had put out, was guilty of continuing contributory infringement, its profits from which were about $29,000. There was a final decree for these two amounts and interest, from which decree this appeal is taken.
Appellant contends that the award of defendant’s entire profits upon the original sales of the infringing machine is erroneous, because there should have been an apportionment of profits; and this presents the first question. The defendant’s device, which forms the basis of the award, is called an autographic register. It contemplates that the salesman or the shipping clerk will enter the proper details upon the blanks in a printed form, under which is carbon paper, which makes a duplicate record upon a registering blank form, and that the two will then be detached from the strips of paper of which they have been parts, and will be appropriately used. The device consists of what is substantially a rectangular metal box, perhaps 5 inches high and 15 long and 10 wide. In one end of the box are mounted two transverse shafts, which carry respectively two continuous rolls of the printed strip forms. Opposite the central part of the box is a longitudinal shaft, which carries a continuous strip of carbon paper. These printed strips are so led around idling rollers that the two strips, superposed, and the intervening carbon, pass together over a central portion of the top of the box, which becomes a writing bed or table while the blank is being filled out. The two strips are then passed on under a transversely pivoted guide, the front edge of which becomes a cutting edge, and the rear edge of which swings down and binds the strips firmly, when the used^ forms are turned up against it and tom off.
This general construction was older than the Sehirmer patent. The forward simultaneous feeding of the strips had been accomplished through a pressure roll, manually revolved. For this pressure roll Sehirmer substituted a roller underneath the paper, carrying at each end a spur wheel, the spurs or pins of which passed up through a row of holes through the strips near each edge, and thus when the spur wheels were revolved the strips of paper were pulled along. He also provided a cut-off bar, which alternately released and gripped the strips moving under it. There was nothing generally new, even in this construction, but Sehirmer’s in vention consisted in having his spur pins or teeth distinctly smaller than the holes, whereby they would pass through both these holes in spite of imperfect registration and rest loosely therein, and whereby the jogging motion of the pins in the holes would adjust or take up any little tightness in one strip, or looseness in another, and thereby compel a perfect registration. This arrangement also insured that the blank would be accurately positioned for presentation to the cut-off edge. There were patentable merit and substantial commercial value in Schirmer’s improvement; but, although the precise combination was new, yet it was and continued to be what he called it, an improvement in registers of this class, and consisted in adding to the general structure “accurate means for feeding two or more sheets * * * so that the writing lines of said sheets will at all times be in alignment.” Defendant’s infringing device differed from competing devices on the market, or other devices manufactured by it, only in the peculiar relation of the pin wheels to the perforated strips, in con-, neetion with the gripping and releasing of the cut-off bar.
There is no finding and there is no evidence that the sales made by defendant were particularly due to its incorporation in its device of the patented combination; doubtless, as in every such case, the patented improvement contributed to many of the sales and was the moving cause in some of them; but defendant was also selling analogous noninfringing devices to meet the same general demand. It cannot be assumed that all defendant’s sales were due to the presence of the patented features, and hence that all the profits were caused thereby. That
feature aside, it is plain that, in the ordinary sense, not all of defendant’s profits were due to the use of the patent. If a supporting framework and ornamentation in -a defendant’s device constitute the only features which are not the substance of the patented improvement, they may well be disregarded; but here the actual invention pertained to only one portion of the construction and one feature of the operation, and we are satisfied that an apportionment of profits was necessary. The ease is fairly parallel to the grain seeder ease considered by the Supreme Court in Dowagiac Co. v. Minnesota Co., 235 U. S. 641, 35 S. Ct. 221, 59 L. Ed. 398. In the present case, the single ultimate object is to produce a satisfactory duplicate record; in that case, the substantial object was to plant the grain efficiently. The assembled device in that ease provided for the three operations of preparing the ground, dropping the seed and covering it. The present device provides for storing and assembling the strips, moving and holding them in proper relation to the writing table, and then severing them. The inventive thought has to do with only one of these steps, moving the strips along properly in unison, or possibly with two of them, the travel and the severance. The Supreme Court found that in the grain seeder the evidence was clear that the profits were due in substantial degree to other important features (page 646 [35 S. Ct. 222]) and hence that there must be apportionment; and it is equally clear upon this record. True, the device would not have been operative without some strip-feeding means; no more would the grain seeder work without some covering shoe.
We have several times had occasion to say that the important matter in this connection was the actual invention as compared with the prior art, rather than the terms in which the claim may be formulated. Sehirmer apparently might have had a claim for his pin wheel and paper strip combination in any suitable association, or he might have made it include also the mechanism for severance, as he did, or the means for storing the paper and its preliminary assembling and feeding; he might even have included the supporting framework. He cannot, by the language which his claim happens to take, transform his invention of, an improvement in an existing structure into one of a complete structure, as if it were wholly new, so as to entitle him to profits upon these parts of it which are not in any fair sense his invention.
The course of decisions on this subject may well be noticed. In Brennan v. Dowagiac (C. C. A.) 162 F. 472, this court considered the matter of profits arising from infringement of the Hoyt patent by making the McSherry and similar grain drills. It seems to have been the distinct principles of decision of the opinion that the plaintiff was entitled to recover all the profits which the defendant earned by the sale of an infringing article containing additional and unpatented features, unless the article was a salable entity when the patented features were stripped from it, and (probably) unless also the additional features embodied were themselves the subject of a valid patent belonging to some one else. It was then further held that, with reference to the situation presented by the relation of the Hoyt patent to a complete grain drill, the infringing manufacturer who was not able to show his profits on the patented invention separately from those on the rest of the machine, must pay them all. In the Westinghouse Case, 225 U. S. 604, 32 S. Ct. 691, 56 L. Ed. 1222, 41 L. R. A. (N. S.) 653, principles were announced applicable to an electrical transformer infringing upon" an earlier patent therefor. It would seem that the defendant’s entire device was bodily the plaintiff’s patented device, nothing less and nothing more, excepting that defendant had shifted some of the parts, thereby creating differently located intervening spaces, and claimed that these new spaces were important and functional additions to the patented combination. "What is said in the opinion regarding the duty of the defendant to account for all profits, is said with reference to that situation; and it is not necessarily applicable to a case where the patented combination constitutes only a part of a marketable machine, or to cases where the defendant’s structure includes useful physical additions.
In Dowagiac Co. v. Minn. Co., supra, the Supreme Court had to consider profits resulting from an infringement of the same Hoyt patent involved in our Brennan Case. The infringement was apparently the same as that involved in the McSherry structures — the machines sold by the defendants in the Minnesota Case having been made by the manufacturers, who were the defendants in the Sixth Circuit eases. It is therefore difficult to conceive any substantial reason for any difference as to the necessity or form of apportionment, as between the two groups of cases. The Supreme Court distinctly held that apportionment was necessary and that the burden was upon the plaintiff to make it, or to show it to be impossible. In the Westinghouse Case, this burden upon plaintiff (if it there existed) was held to be discharged by showing that the defendant had so mingled the patented and the unpatented that apportionment was impossible. It might seem that apportionment was equally impossible in the Dowagiae Case; but the Supremo Court said that it did not so appear, and hence the plaintiff had failed. While it is in many eases impossible to apportion profits accurately by any logical moans, it may often happen that there is some satisfactory criterion of added value caused by the patented improvement and leading to the inference of added profits resulting therefrom. The comparison between selling prices of articles, with and without the improvement, may furnish this criterion (see Clark v. Schieble, etc., Co. [C. C. A.] 248 F. 276, 283); expert evidence might sometimes furnish it upon some theory. It may well be some method of this kind which the Supreme Court intends to specify by its reference in thei Dowagiae Case, to the lack of any real oh' stacle to a fair apportionment. However that may be, it seems clear that the Brennan Case, as to the two principles of decision above stated, is necessarily much impaired if not overruled by the Dowagiae Case.
Another consideration, not without importance, bearing perhaps on the propriety or perhaps on the difficulty of apportionment (or both) is this: The granted monopoly infringed upon is restricted by the grant to a combination of two elements: (1) The forward feeding means including the spur pins for the registering holes; and (2) the severing means, including a device alternately rising to release the strips for forwarding and falling to grip them for severing. Before the first hearing in the court below, defendant eliminated from its register all means for the alternate grip and release, and substituted a rigid and stationary cut-off bar. Its modified device did not infringe, but was sold at the same price, and the volume of sales did not drop; on the contrary, the volume increased at least normally from year to year; and the proof is clear that the direct profit was greater on the modified than on the infringing form, because the cost wap less. While contingencies of greater profit, if the first form had been continued, are not foreclosed, yet upon the record it appears that defendant' by infringing, instead of by taking an alternative course then open to it (though not then developed), made losses, not profits, .and this result must, at least, challenge critical study of any theory of profit recovery which makes it possible.'
An apportionment 1 being necessary, the burden is upon the plaintiff to make it, or show a sufficient excuse for not doing so, and obviously, under the facts of this case, a substantially accurate apportionment would be a physical and mathematical impossibility; but there was no effort by plaintiff to utilize expert testimony for this purpose. There are eases, like Herman v. Youngstown, etc., Co. (C. C. A.) 216 F. 604, 608, where the record shows some apparent means of approximate apportionment, which, though arbitrary, is still reasonable; but here there is no basis which has been suggested, save the relative costs of the material and labor in different parts of the structure. If this might ever bear any due relation to such an apportionment of profits as is now involved, we can see no such relation in this case; and we must hold that this record shows no reasonable basis of apportionment.
We do not understand the Westinghouse Case as holding that, in every case where the profits cannot be apportioned, defendant must pay them all. What is there said refers, we think, to a ease where apportionment is impossible because the device or structure sold by defendant is the entire patented thing, nothing more and nothing less. That seems to have been true with the case and converter there claimed. We have pointed out that it is not true with this register. Defendant may well be penalized with the entire profits, when his failure to keep apportionment records which might have been kept is at the base of the confusion; not so, we think, when no possible keeping of records by defendant would have minimized the uncertainty.
The plaintiff having suffered a plain injury,, and not having been able to make satisfactory proof of damages, and not being entitled to all the defendant’s profits, and not being able to make an intelligent apportion-, ment, we find here a clear instance of that class of cases discussed in U. S. v. Frumentum Co. v. Lauhoff (C. C. A.) 216 F. 610, 615, where the award of a reasonable royalty is the only solution of the difficulty. This has been sanctioned by the Supreme Court, and we have several times applied it. Dowagiac v. Minnesota, supra; K. W. Co. v. Temeo, 283 F. 873, 878; Fox v. Underwood, 287 F. 453, 454; Gear Co. v. Studebaker Co., 4 F.(2d) 510; National Tube Co. v. Mark, 10 F.(2d) 430, 432. Much of the doubt formerly existing as to when a case was fit for the application of this measure of damages is removed by the Act of February 18, 1922, § 8, embodied in U. S. Code, tit. 35, § 70; but, if this statute were applicable to this accounting, pending since 1918 (as it is not), it would only confirm the result we have independently reached.
We therefore hold that upon the present record the entire profits should not have been awarded; that the plaintiff had full and sufficient opportunity to show, if it could, an applicable criterion for apportioning the profits; that justice does not require that plaintiff should be given a further opportunity therefor, nor permit that all relief should be denied; and hence that the case should go back for a further hearing, with or without a further reference, to determine plaintiff’s damages upon the basis of a reasonable royalty. We would make every effort to find in the existing record a sufficient basis for the making of such an award by this court, so as to end the litigation, as we did in K. W. Co. v. Temco, supra; but we cannot be satisfied to dp so here. The determinative elements have not been developed.
It is part of the theory of damages upon the basis of reasonable royalty that the amounts would have been paid at customary intervals, and we have, under some circumstances, thought proper to allow interest from the end of each calendar year. In this case the whole infringement period was about 18 months, and it will be sufficient to allow, as damages for nonpayment, interest at 6 per cent, from the end of that period until the decree. See K. W. Co. v. Temco, supra, at page 380; National Co. v. Mark, supra, at page 453.
The question of defendant’s liability for profits made upon the supplies furnished by defendant to the purchasers of its infringing machines, presents substantial difficulties, which we need not- consider. It is settled that making and supplying to an infringing machine articles which are necessary to the infringing use, and which have no other possible use, and would have no sale value excepting to these infringers for that use, is contributory infringement, for the profits of which the makers must account. See Union Co. v. Curry (C. C. A. 6) 279 F. 465, 468; Lyman v. Bassick (C. C. A.) 18 F.[2d], 29, 38. When the articles sold have valuable and innocent use and may be thought of as articles of general merchandise, it is not so clear that the makers must respond as for contributory infringement, merely because they know that the purchasers intend to use the articles in the course of infringing operations; but in this case we need not consider whether the facts present this latter question, nor what the answer would be.
To adopt a reasonable royalty as the measure of damages is to adopt and interpret, as well as may be, the fiction that a license was to be granted at the time of beginning the infringement, and then to determine what the license price should have been. In effect, the court assumes the existence ab initio of, and declares the equitable terms of, a supposititious license, and does this nunc pro tunc; it creates and applies retrospectively a compulsory license. When once this basis of recovery is adopted, the whole structure ■of subsequent contributory infringement falls, because the theory that the users of the devices were infringing the patent has been rejected and the theory of a lawful and non-infringing use flowing from a license has been substituted. Upon this point, we have not had the benefit of argument by counsel, but it seems to us entirely plain.
In fixing a reasonable royalty, the primary inquiry, often complicated by secondary ones, is what the parties would have agreed upon, if both were reasonably trying to reach an agreement. This must be modified by the commercial situation, and when the result is to interfere with a patent monopoly, which the patentee was in position to and desired to keep, by retaining the entire market himself, his compensation for parting against his will with that opportunity must take due account of the loss to him of anticipated profits on the business which the licensees will thus get away from him. It is a step further, and we think a necessary one, to say that, when the patentee’s business scheme involves a reasonable expectation of making future profits by the continuing sale to the purchaser of the patented machine, of supplies to be furnished by the patentee, which future business he will lose by licensing a competitor to make the machine, this expectant loss is an element to be considered in retroactively determining a reasonable royalty; and this is so even though the expectation of such future business was not the result of any system of contract obligations, but was only expectation reasonably based on established business methods and customs. This retroactive determination of the value, 10 years ago, of a thing which then had no market value, is not easy; but it presents no greater difficulties than are met, fairly well, by courts and juries in other fields of litigation. We now know that what happened during a past period was, at its beginning, something which might happen, and not infrequently what is now the past is helpful in forming, now for then, an earlier judgment of what was then the future. Of course, this is not to say that a later developed form, which demonstrated that the entirety of the patented combination was not so relatively desirable as it was then thought to be, can be dated back and used as a standard of comparison affecting the earlier supposed valuation.
We should add, in view of what is to be the further course of the litigation, that we find no basis for any conclusion that the infringement was willful in any such sense as to justify the statutory increase of damages. U. S. C. tit. 35, § 70. Both as to validity and infringement there was doubt sufficient to support the good faith of a belief that defendant was right. The strenuous and persistent defense, which is attacked by plaintiff as overlitigious, has led to the award against defendant of a large sum as costs, and we see neither reason nor opportunity to go further in penalizing the defense. There is no appeal on this point, and the costs in the court below up to this time are not to be disturbed.
The decree is reversed, with costs of this court, and the case is remanded for the entry of a new decree in accordance with this opinion.
Dunn v. Standard, etc., Co., 204 F. 617, 619; Herman v. Youngstown, etc., Co., 216 F. 604, 606, 609.
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_lcdisposition | C | What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
METROMEDIA, INC., et al. v. CITY OF SAN DIEGO, et al.
No. 80-195.
Argued February 25, 1981
Decided July 2, 1981
White, J., announced the judgment of the Court and delivered an opinion, in which Stewart, Marshall, and Powell, JJ., joined. Bren-NAN, J., filed an opinion concurring in the judgment, in which Blackmun, J., joined, post, p. 521. Stevens, J., while concurring in Parts I-IV of the plurality opinion, filed an opinion dissenting from Parts V-VII of the plurality opinion and from the judgment, post, p. 540. Burger, C. J., post, p. 555, and Rehnquist, J., post, p. 569, filed dissenting opinions.
Floyd Abrams argued the cause for appellants. With him on the briefs were Theodore B. Olson, Dean Ring el, and Wayne W. Smith.
C. Alan Sumption argued the cause for appellees. With him on the brief was John W. Witt
Briefs of amici curiae urging reversal were filed by Nadine Strossen and Bruce J. Ennis, Jr., for the American Civil Liberties Union; by Arthur B. Hanson, Frank M. Northam, and Mitchell W. Dale for the American Newspaper Publishers Association; by Eric M. Rubin for the Outdoor Advertising Association of America; by Ronald A. Zumbrun, Thomas E. Hookano, and Raymond M. Momboisse for the Pacific Legal Foundation; and by Kip Pope for Robert P. Pope et al.
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General McCree, Assistant Attorney General Moorman, Deputy Solicitor General Claiborne, Edwin S. Kneedler, F. Raid Benfield, and Edward J. Shawaker; for the State of Hawaii et al. by Wayne Minami, Attorney General of Hawaii, and Laurence Lau, Deputy Attorney General, Richard S. Cohen, Attorney General of Maine, and Cabanne Howard, Assistant Attorney General, and M. Jerome Diamond, Attorney General of Vermont, and Benson D. Scotch, Assistant Attorney General; for the City of Alameda et al. by Carter J. Stroud, David E. Schricker, and John Powers; for the City and County of San Francisco by George Agnost, Burk E. Delventhal, Diane L. Hermann, and Alice Suet Yee Barkley; and for the National Institute of Municipal Law Officers by Aaron A. Wilson, J. LaMar Shelley, Benjamin L. Brown, John Dekker, James B. Brennan, Henry W. Underhill, Jr., William R. Quinlan, George F. Knox, Jr., Max P. Zall, Allen G. Schwartz, Lee E. Holt, Burt Pines, Walter M. Powell, Roger F. Cutler, Conrad B. Mattox, Jr., Charles S. Rhyne, and William S. Rhyne.
Justice White
announced the judgment of the Court and delivered an opinion, in which Justice Stewart, Justice Marshall, and Justice Powell joined.
This case involves the validity of an ordinance of the city of San Diego, Cal., imposing substantial prohibitions on the erection of outdoor advertising displays within the city.
I
Stating that its purpose was “to eliminate hazards to pedestrians and motorists brought about by distracting sign displays” and “to preserve and improve the appearance of the City,” San Diego enacted an ordinance to prohibit “outdoor advertising display signs.” The California Supreme Court subsequently defined the term “advertising display sign” as “a rigidly assembled sign, display, or device permanently affixed to the ground or permanently attached to a building or other inherently permanent structure constituting, or used for the display of, a commercial or other advertisement to the public.” 26 Cal. 3d 848, 856, n. 2, 610 P. 2d 407, 410, n. 2 (1980). “Advertising displays signs” include any sign that “directs attention to a product, service or activity, event, person, institution or business.”
The ordinance provides two kinds of exceptions to the general prohibition: onsite signs and signs falling within 12 specified categories. Onsite signs are defined as those
“designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed.”
The specific categories exempted from the prohibition include: government signs; signs located at public bus stops; signs manufactured, transported, or stored within the city, if not used for advertising purposes; commemorative historical plaques; religious symbols; signs within shopping malls; for sale and for lease signs; signs on public and commercial vehicles; signs depicting time, temperature, and news; approved temporary, off-premises, subdivision directional signs; and “[t]emporary political campaign signs.” Under this scheme, onsite commercial advertising is permitted, but other commercial advertising and noncommercial communications using fixed-structure signs are everywhere forbidden unless permitted by one of the specified exceptions.
Appellants are companies that were engaged in the outdoor advertising business in San Diego at the time the ordinance was passed. Each owns a substantial number of outdoor advertising displays (approximately 500 to 800) within the city. These signs are all located in areas zoned for commercial and industrial purposes, most of them on property leased by the owners to appellants for the purpose of maintaining billboards. Each sign has a remaining useful income-producing life of over 25 years, and each sign has a fair market value of between $2,500 and $25,000. Space on the signs was made available to “all comers” and the copy on each sign changed regularly, usually monthly. The nature of the outdoor advertising business was described by the parties as follows:
“Outdoor advertising is customarily purchased on the basis of a presentation or campaign requiring multiple exposure. Usually a large number of signs in a variety of locations are utilized to communicate a particular advertiser’s message. An advertiser will generally purchase a ‘showing’ which would involve the utilization of a specific number of signs advertising the same message in a variety of locations throughout a metropolitan area.”
Although the purchasers of advertising space on appellants’ signs usually seek to convey a commercial message, their billboards have also been used to convey a broad range of noncommercial political and social messages.
Appellants brought suit in state court to enjoin enforcement of the ordinance. After extensive discovery, the parties filed a stipulation of facts, including:
“2. If enforced as written, Ordinance No. 10795 will eliminate the outdoor advertising business in the City of San Diego.
“28. Outdoor advertising increases the sales of products and produces numerous direct and indirect benefits to the public. Valuable commercial, political and social information is communicated to the public through the use of outdoor advertising. Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive.” Joint Stipulation of Facts Nos. 2, 28, App. 42a, 48a.
On cross-motions for summary judgment, the trial court held that the ordinance was an unconstitutional exercise of the city’s police power and an abridgment of appellants’ First Amendment rights. The California Court of Appeal affirmed on the first ground alone and did not reach the First Amendment argument. Without questioning any of the stipulated facts, including the fact that enforcement of the ordinance would “eliminate the outdoor advertising business in the City of San Diego,” the California Supreme Court reversed. It held that the two purposes of the ordinance were within the city’s legitimate interests and that the ordinance was “a proper application of municipal authority over zoning and land use for the purpose of promoting the public safety and welfare.” 26 Cal. 3d, at 858, 610 P. 2d, at 411 (footnote omitted). The court rejected appellants’ argument that the ordinance was facially invalid under the First Amendment. It relied on certain summary actions of this Court, dismissing for want of a substantial federal question appeals from several state-court decisions sustaining governmental restrictions on outdoor sign displays. Appellants sought review in this Court, arguing that the ordinance was facially invalid on First Amendment grounds and that the city’s threatened destruction of the outdoor advertising business was prohibited by the Due Process Clause of the Fourteenth Amendment. We noted probable jurisdiction. 449 U. S. 897.
II
Early cases in this Court sustaining regulation of and prohibitions aimed at billboards did not involve First Amendment considerations. See Packer Corp. v. Utah, 285 U. S. 105 (1932); St. Louis Poster Advertising Co. v. St. Louis, 249 U. S. 269 (1919); Thomas Cusack Co. v. City of Chicago, 242 U. S. 526 (1917). Since those decisions, we have not given plenary consideration to cases involving First Amendment challenges to statutes or ordinances limiting the use of billboards, preferring on several occasions summarily to affirm decisions sustaining state or local legislation directed at billboards.
Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978), involved a municipal ordinance that distinguished between offsite and onsite billboard advertising prohibiting the former and permitting the latter. We summarily dismissed as not presenting a substantial federal question an appeal from a judgment sustaining the ordinance, thereby rejecting the submission, repeated in this case, that prohibiting offsite commercial advertising violates the First Amendment. The definition of “billboard,” however, was considerably narrower in Suffolk than it is here: “A sign which directs attention to a business, commodity, service, entertainment, or attraction sold, offered or existing elsewhere than upon the same lot where such sign is displayed.” This definition did not sweep within its scope the broad range of noncommercial speech admittedly prohibited by the San Diego ordinance. Furthermore, the Southampton, N. Y., ordinance, unlike that in San Diego, contained a provision permitting the establishment of public information centers in which approved directional signs for businesses could be located. This Court has repeatedly stated that although summary dispositions are decisions on the merits, the decisions extend only to “the precise issues presented and necessarily decided by those actions.” Mandel v. Bradley, 432 U. S. 173, 176 (1977); see also Hicks v. Miranda, 422 U. S. 332, 345, n. 14 (1975); Edelman v. Jordan, 415 U. S. 651, 671 (1974). Insofar as the San Diego ordinance is challenged on the ground that it prohibits noncommercial speech, the Suffolk case does not directly support the decision below.
The Court has summarily disposed of appeals from state-court decisions upholding state restrictions on billboards on several other occasions. Markham Advertising Co. v. Washington, 393 U. S. 316 (1969), and Newman Signs, Inc. v. Hjelle, 440 U. S. 901 (1979), both involved the facial validity of state billboard prohibitions that extended only to certain designated roadways or to areas zoned for certain uses. The statutes in both instances distinguished between onsite commercial billboards and offsite billboards within the protected areas. Our most recent summary action was Lotze v. Washington, 444 U. S. 921 (1979), which involved an “as applied” challenge to a Washington prohibition on offsite signs. In that case, appellants erected, on their own property, billboards expressing their political and social views. Although billboards conveying information relating to the commercial use of the property would have been permitted, appellants’ billboards were prohibited, and the state courts ordered their removal. We dismissed as not raising a substantial federal question an appeal from a judgment rejecting the First Amendment challenge to the statute.
Insofar as our holdings were pertinent, the California Supreme Court was quite right in relying on our summary decisions as authority for sustaining the San Diego ordinance against First Amendment attack. Hicks v. Miranda, supra. As we have pointed out, however, summary actions do not have the same authority in this Court as do decisions rendered after plenary consideration, Illinois State Board of Elections v. Socialist Workers Party, 440 U. S. 173, 180-181 (1979); Edelman v. Jordan, supra, at 671; see also Fusari v. Steinberg, 419 U. S. 379, 392 (1975) (Burger, C. J., concurring). They do not present the same justification for declining to reconsider a prior decision as do decisions rendered after argument and with full opinion. “It is not at all unusual for the Court to find it appropriate to give full consideration to a question that has been the subject of previous summary action.” Washington v. Yakima Indian Nation, 439 U. S. 463, 477, n. 20 (1979); see also Tully v. Griffin, Inc., 429 U. S. 68, 74-75 (1976); Usery v. Turner Elkhorn Mining Co., 428 U. S. 1, 14 (1976). Probable jurisdiction having been noted to consider the constitutionality of the San Diego ordinance, we proceed to do so.
Ill
This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e. g., Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530 (1980) (billing envelope inserts); Carey v. Brown, 447 U. S. 455 (1980) (picketing in residential areas); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620 (1980) (door-to-door and on-street solicitation); Greer v. Spock, 424 U. S. 828 (1976) (Army bases); Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975) (outdoor movie theaters); Lehman v. City of Shaker Heights, 418 U. S. 298 (1974) (advertising space within city-owned transit system). Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests. These cases support the cogency of Justice Jackson’s remark in Kovacs v. Cooper, 336 U. S. 77, 97 (1949): Each method of communicating ideas is “a law unto itself” and that law must reflect the “differing natures, values, abuses and dangers” of each method. We deal here with the law of billboards.
Billboards are a well-established medium of communication, used to convey a broad range of different kinds of messages. As Justice Clark noted in his dissent below:
“The outdoor sign or symbol is a venerable medium for expressing political, social and commercial ideas. From the poster or ‘broadside’ to the billboard, outdoor signs have played a prominent role throughout American history, rallying support for political and social causes.” 26 Cal. 3d, at 888, 610 P. 2d, at 430-431.
The record in this case indicates that besides the typical commercial uses, San Diego billboards have been used
“to publicize the 'City in motion’ campaign of the City of San Diego, to communicate messages from candidates for municipal, state and national offices, including candidates for judicial office, to propose marriage, to seek employment, to encourage the use of seat belts, to denounce the United Nations, to seek support for Prisoners of War and Missing in Action, to promote the United Crusade and a variety of other charitable and socially-related endeavors and to provide directions to the traveling public.”
But whatever its communicative function, the billboard remains a “large, immobile, and permanent structure which like other structures is subject to . . . regulation.” Id., at 870, 610 P. 2d, at 419. Moreover, because it is designed to stand out and apart from its surroundings, the billboard creates a unique set of problems for land-use planning and development.
Billboards, then, like other media of communication, combine communicative and noncommunicative aspects. As with other media, the government has legitimate interests in controlling the noncommunicative aspects of the medium, Kovacs v. Cooper, supra, but the First and Fourteenth Amendments foreclose a similar interest in controlling the communicative aspects. Because regulation of the noncom-municative aspects of a medium often impinges to some degree on the communicative aspects, it has been necessary for the courts to reconcile the government’s regulatory interests with the individual’s right to expression. “'[A] court may not escape the task of assessing the First Amendment interest at stake and weighing it against the public interest allegedly served by the regulation.’ ” Linmark Associates, Inc. v. Willingboro, 431 U. S. 85, 91 (1977), quoting Bigelow v. Virginia, 421 U. S. 809, 826 (1975). Performance of this task requires a particularized inquiry into the nature of the conflicting interests at stake here, beginning with a precise appraisal of the character of the ordinance as it affects communication.
As construed by the California Supreme Court, the ordinance restricts the use of certain kinds of outdoor signs. That restriction is defined in two ways: first, by reference to the structural characteristics of the sign; second, by reference to the content, or message, of the sign. Thus, the regulation only applies to a “permanent structure constituting, or used for the display of, a commercial or other advertisement to the public.” 26 Cal. 3d, at 856, n. 2, 610 P. 2d, at 410, n. 2. Within that class, the only permitted signs are those (1) identifying the premises on which the sign is located, or its owner or occupant, or advertising the goods produced or services rendered on such property and (2) those within one of the specified exemptions to the general prohibition, such as temporary political campaign signs. To determine if any billboard is prohibited by the ordinance, one must determine how it is constructed, where it is located, and what message it carries.
Thus, under the ordinance (1) a sign advertising goods or services available on the property where the sign is located is allowed; (2) a sign on a building or other property advertising goods or services produced or offered elsewhere is barred; (3) noncommercial advertising, unless within one of the specific exceptions, is everywhere prohibited. The occupant of property may advertise his own goods or services; he may not advertise the goods or services of others, nor may he display most noncommercial messages.
IV
Appellants’ principal submission is that enforcement of the ordinance will eliminate the outdoor advertising business in San Diego and that the First and Fourteenth Amendments prohibit the elimination of this medium of communication. Appellants contend that the city may bar neither all offsite commercial signs nor all noncommercial advertisements and that even if it may bar the former, it may not bar the latter. Appellants may raise both arguments in their own right because, although the bulk of their business consists of offsite signs carrying commercial advertisements, their billboards also convey a substantial amount of noncommercial advertising. Because our cases have consistently distinguished between the constitutional protection afforded commercial as opposed to noncommercial speech, in evaluating appellants’ contention we consider separately the effect of the ordinance on commercial and noncommercial speech.
The extension of First Amendment protections to purely commercial speech is a relatively recent development in First Amendment jurisprudence. Prior to 1975, purely commercial advertisements of services or goods for sale were considered to be outside the protection of the First Amendment. Valentine v. Chrestensen, 316 U. S. 52 (1942). That construction of the First Amendment was severely cut back in Bigelow v. Virginia, supra. In Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748 (1976), we plainly held that speech proposing no more than a commercial transaction enjoys a substantial degree of First Amendment protection: A State may not completely suppress the dissemination of truthful information about an entirely lawful activity merely because it is fearful of that information’s effect upon its disseminators and its recipients. That decision, however, did not equate commercial and noncommercial speech for First Amendment purposes; indeed, it expressly indicated the contrary. See id., at 770-773, and n. 24. See also id., at 779-781 (Stewart, J., concurring).
Although the protection extended to commercial speech has continued to develop, commercial and noncommercial communications, in the context of the First Amendment, have been treated differently. Bates v. State Bar of Arizona, 433 U. S. 350 (1977), held that advertising by attorneys may not be subjected to blanket suppression and that the specific advertisement at issue there was constitutionally protected. However, we continued to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be. Id., at 379-381, 383-384. In Ohralik v. Ohio State Bar Assn., 436 U. S. 447 (1978), the Court refused to invalidate on First Amendment grounds a lawyer’s suspension from practice for face-to-face solicitation of business for pecuniary gain. In the course of doing so, we again recognized the common-sense and legal distinction between speech proposing a commercial transaction and other varieties of speech:
“To require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment’s guarantee with respect to the latter kind of speech. Rather than subject the First Amendment to such a devitalization, we instead have afforded commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values, while allowing modes of regulation that might be impermissible in the realm of noncommercial expression.” Id., at 456.
In Young v. American Mini Theatres, Inc., 427 U. S. 50, 69, n. 32 (1976), Justice Stevens stated that the difference between commercial price and product advertising and ideological communication permits regulation of the former “that the First Amendment would not tolerate with respect to the latter.” See also Linmark Associates, Inc. v. Willingboro, 431 U. S., at 91-92, and Friedman v. Rogers, 440 U. S. 1, 8-10 (1979).
Finally, in Central Hudson Gas & Electric Corp. v. Public Service Comm’n, 447 U. S. 567 (1980), we held: “The Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. The protection available for a particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.” Id., at 562-563 (citation omitted). We then adopted a four-part test for determining the validity of government restrictions on commercial speech as distinguished from more fully protected speech. (1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it (2) seeks to implement a substantial governmental interest, (3) directly advances that interest, and (4) reaches no further than necessary to accomplish the given objective. Id., at 563-566.
Appellants agree that the proper approach to be taken in determining the validity of the restrictions on commercial speech is that which was articulated in Central Hudson, but assert that the San Diego ordinance fails that test. We do not agree.
There can be little controversy over the application of the first, second, and fourth criteria. There is no suggestion that the commercial advertising at issue here involves unlawful activity or is misleading. Nor can there be substantial doubt that the twin goals that the ordinance seeks to further — traffic safety and the appearance of the city — are substantial governmental goals. It is far too late to contend otherwise with respect to either traffic safety, Railway Express Agency, Inc. v. New York, 336 U. S. 106 (1949). or esthetics, see Penn Central Transportation Co. v. New York City, 438 U. S. 104 (1978); Village of Belle Terre v. Boraas, 416 U. S. 1 (1974); Berman v. Parker, 348 U. S. 26, 33 (1954). Similarly, we reject appellants’ claim that the ordinance is broader than necessary and, therefore, fails the fourth part of the Central Hudson test. If the city has a sufficient basis for believing that billboards are traffic hazards and are unattractive, then obviously the most direct and perhaps the only effective approach to solving the problems they create is to prohibit them. The city has gone no further than necessary in seeking to meet its ends. Indeed, it has stopped short of fully accomplishing its ends: It has not prohibited all billboards, but allows onsite advertising and some other specifically exempted signs.
The more serious question, then, concerns the third of the Central Hudson criteria: Does the ordinance “directly advance” governmental interests in traffic safety and in the appearance of the city? It is asserted that the record is inadequate to show any connection between billboards and traffic safety. The California Supreme Court noted the meager record on this point but held “as a matter of law that an ordinance which eliminates billboards designed to be viewed from streets and highways reasonably relates to traffic safety.” 26 Cal. 3d, at 859, 610 P. 2d, at 412. Noting that “[b]illboards are intended to, and undoubtedly do, divert a driver’s attention from the roadway,” ibid., and that whether the “distracting effect contributes to traffic accidents invokes an issue of continuing controversy,” ibid., the California Supreme Court agreed with many other courts that a legislative judgment that billboards are traffic hazards is not manifestly unreasonable and should not be set aside. We likewise hesitate to disagree with the accumulated, commonsense judgments of local lawmakers and of the many reviewing courts that billboards are real and substantial hazards to traffic safety. There is nothing here to suggest that these judgments are unreasonable. As we said in a different context, Railway Express Agency, Inc. v. New York, supra, at 109:
“We would be trespassing on one of the most intensely local and specialized of all municipal problems if we held that this regulation had no relation to the traffic problem of New York City. It is the judgment of the local authorities that it does have such a relation. And nothing has been advanced which shows that to be palpably false.”
We reach a similar result with respect to the second asserted justification for the ordinance — advancement of the city’s esthetic interests. It is not speculative to recognize that billboards by their very nature, wherever located and however constructed, can be perceived as an “esthetic harm.” San Diego, like many States and other municipalities, has chosen to minimize the presence of such structures. Such esthetic judgments are necessarily subjective, defying objective evaluation, and for that reason must be carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose. But there is no claim in this case that San Diego has as an ulterior motive the suppression of speech, and the judgment involved here is not so unusual as to raise suspicions in itself.
It is nevertheless argued that the city denigrates its interest in traffic safety and beauty and defeats its own case by permitting onsite advertising and other specified signs. Appellants question whether the distinction between onsite and offsite advertising on the same property is justifiable in terms of either esthetics or traffic safety. The ordinance permits the occupant of property to use billboards located on that property to advertise goods and services offered at that location; identical billboards, equally distracting and unattractive, that advertise goods or services available elsewhere are prohibited even if permitting the latter would not multiply the number of billboards. Despite the apparent incongruity, this argument has been rejected, at least implicitly, in all of the cases sustaining the distinction between offsite and onsite commercial advertising. We agree with those cases and with our own decisions in Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978); Markham Advertising Co. v. Washington, 393 U. S. 316 (1969); and Newman Signs, Inc. v. Hjelle, 440 U. S. 901 (1979).
In the first place, whether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is under-inclusive because it permits onsite advertising. Second, the city may believe that offsite advertising, with its periodically changing content, presents a more acute problem than does onsite advertising. See Railway Express, 336 U. S., at 110. Third, San Diego has obviously chosen to value one kind of commercial speech' — onsite advertising — more than another kind of commercial speech — offsite advertising. The ordinance reflects a decision by the city that the former interest, but not the latter, is stronger than the city’s interests in traffic safety and esthetics. The city has decided that in a limited instance — onsite commercial advertising — its interests should yield. We do not reject that judgment. As we see it, the city could reasonably conclude that a commercial enterprise — as well as the interested public — has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere. See Railway Express, supra, at 116 (Jackson, J., concurring); Bradley v. Public Utilities Comm’n, 289 U. S. 92, 97 (1933). It does not follow from the fact that the city has concluded that some commercial interests outweigh its municipal interests in this context that it must give similar weight to all other commercial advertising. Thus, offsite commercial billboards may be prohibited while onsite commercial billboards are permitted.
The constitutional problem in this area requires resolution of the conflict between the city’s land-use interests and the commercial interests of those seeking to purvey goods and services within the city. In light of the above analysis, we cannot conclude that the city has drawn an ordinance broader than is necessary to meet its interests, or that it fails directly to advance substantial government interests. In sum, insofar as it regulates commercial speech the San Diego ordinance meets the constitutional requirements of Central Hudson, supra.
V
It does not follow, however, that San Diego’s general ban on signs carrying noncommercial advertising is also valid under the First and Fourteenth Amendments. The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others.
As indicated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to noncommercial speech. There is a broad exception for onsite commercial advertisements, but there is no similar exception for noncommercial speech. The use of onsite billboards to carry commercial messages related to the commercial use of the premises is freely permitted, but the use of otherwise identical billboards to carry noncommercial messages is generally prohibited. The city does not explain how or why noncommercial billboards located in places where commercial billboards are permitted would be more threatening to safe driving or would detract more from the beauty of the city. Insofar as the city tolerates billboards at all, it'cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages.
Furthermore, the ordinance contains exceptions that permit various kinds of noncommercial signs, whether on property where goods and services are offered or not, that would otherwise be within the general ban. A fixed sign may be used to identify any piece of property and its owner. Any piece of property may carry or display religious symbols, commemorative plaques of recognized historical societies and organizations, signs carrying news items or telling the time or temperature, signs erected in discharge of any governmental function, or temporary political campaign signs. No other noncommercial or ideological signs meeting the structural definition are permitted, regardless of their effect on traffic safety or esthetics.
Although the city may distinguish between the relative value of different categories of commercial speech, the city does not have the same range of choice in the area of noncommercial speech to evaluate the strength of, or distinguish between, various communicative interests. See Carey v. Brown, 447 U. S., at 462; Police Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse: “To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.” Consolidated Edison Co., 447 U. S., at 538. Because some noncommercial messages may be conveyed on billboards throughout the commercial and industrial zones, San Diego must similarly allow billboards conveying other noncommercial messages throughout those zones.
Finally, we reject appellees’ suggestion that the ordinance may be appropriately characterized as a reasonable “time, place, and manner” restriction. The ordinance does not generally ban billboard advertising as an unacceptable “manner” of communicating information or ideas; rather, it permits various kinds of signs. Signs that are banned are banned everywhere and at all times. We have observed that time, place, and manner restrictions are permissible if “they are justified without reference to the content of the regulated speech, . . . serve a significant governmental interest, and . . . leave open ample alternative channels for communication of the information.” Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S., at 771. Here, it cannot be assumed that “alternative channels” are available, for the parties stipulated to just the opposite: “Many businesses and politicians and other persons rely upon outdoor advertising because other forms of advertising are insufficient, inappropriate and prohibitively expensive.” A similar argument was made with respect to a prohibition on real estate “For Sale” signs in Linmark Associates, Inc. v. Willingboro, 431 U. S. 85 (1977), and what we said there is equally applicable here:
“Although in theory sellers remain free to employ a number of different alternatives, in practice [certain products are] not marketed through leaflets, sound trucks, demonstrations, or the like. The options to which sellers realistically are relegated . . . involve more cost and less autonomy then . . . signs [,] . . . are less likely to reach persons not deliberately seeking sales information [,] . . . and may be less effective media for communicating the message that is conveyed by a . . . sign .... The alternatives, then, are far from satisfactory.” Id., at 93.
It is apparent as well that the ordinance distinguishes in several ways between permissible and impermissible signs at a particular location by reference to their content. Whether or not these distinctions are themselves constitutional, they take the regulation out of the domain of time, place, and manner restrictions. See Consolidated Edison Co. v. Public Service Comm’n, supra.
VI
Despite the rhetorical hyperbole of The Chief Justice’s dissent, there is a considerable amount of common ground between the approach taken in this opinion and that suggested by his dissent. Both recognize that each medium of communication creates a unique set of First Amendment problems, both recognize that the city has a legitimate interest in regulating the noncommunicative aspects of a medium of expression, and both recognize that the proper judicial role is to conduct “ 'a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression.’ ” Post, at 556. Our principal difference with his dissent is that it gives so little weight to the latter half of this inquiry.
The Chief Justice writes that
“[ajlthough we must ensure that any regulation of speech ‘further [s] a sufficiently substantial government interest’ . . . given a reasonable approach to a perceived problem, this Court’s duty ... is to determine whether the legislative approach is essentially neutral to the messages conveyed and leaves open other adequate means of conveying those messages.” Post, at 561.
Despite his belief that this is “the essence of . . . democracy,” this has never been the approach of this Court when a legislative judgment is challenged as an unconstitutional infringement of First Amendment rights.
By “essentially neutral,” The Chiee Justice may mean either or both of two things. He may mean that government restrictions on protected speech are permissible so long as the government does not favor one side over another on a subject of public controversy. This concept of neutrality was specifically rejected by the Court last Term in Consolidated Edison Co. v. Public Service Comm’n, 447 U. S., at 537. There, the Court dismissed the Commission’s contention that a prohibition of all discussion, regardless of the viewpoint expressed, on controversial issues of public policy does not unconstitutionally suppress freedom of speech. “The First Amendment’s hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic.” Ibid. On the other hand, The Chief Justice may mean by neutrality that government restrictions on speech cannot favor certain communicative contents over others. As a general rule, this, of course, is correct, see, e. g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Carey v. Brown, 447 U. S. 455 (1980). The general rule, in fact, is applicable to the facts of this case: San Diego has chosen to favor certain kinds of messages — such as onsite commercial advertising, and temporary political campaign advertisements — over others. Except to imply that the favored categories are for some reason de minimis in a constitutional sense, his dissent fails to explain why San Diego should not be held to have violated this concept of First Amendment neutrality.
Taken literally The Chief Justice’s approach would require reversal of the many cases striking down antisolicitation statutes on First Amendment grounds: In each of them the city would argue that preventing distribution of leaflets rationally furthered the city’s interest in limiting litter, applied to all kinds of leaflets and hence did not violate the principle of government neutrality, and left open alternative means of communication. See, e. g., Martin v. Struthers, 319 U. S. 141 (1943); Schneider v. State, 308 U. S. 147 (1939). Despite the dissent’s assertion to the contrary, however, it has been this Court’s consistent position that democracy stands on a stronger footing when courts protect First Amendment interests against legislative intrusion, rather than deferring to merely rational legislative judgments in this area:
“Mere legislative preferences or beliefs respecting matters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions. And so, as cases arise, the delicate and difficult task falls upon the courts to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights.” Id., at 161.
Because The Chief Justice misconceives the nature of the judicial function in this situation, he misunderstands the significance of the city’s extensive exceptions to its billboard prohibition. He characterizes these exceptions as “essentially negligible,” post, at 562, and then opines that it borders on the frivolous to suggest that in “allowing such signs but forbidding noncommercial billboards, the city has infringed freedom of speech.” Post, at 565. That, of course, is not the nature of this argument.
There can be no question that a prohibition on the erection of billboards infringes freedom of speech: The exceptions do not create the infringement, rather the general prohibition does. But the exceptions to the general prohibition are of great significance in assessing the strength of the city’s interest in prohibiting billboards. We conclude that by allowing commercial establishments to use billboards to advertise the products and services they offer, the city necessarily has conceded that some communicative interests, e. g., onsite commercial advertising, are stronger than its competing interests in esthetics and traffic safety. It has nevertheless banned all noncommercial signs except those specifically excepted.
The Chief Justice agrees that in allowing the exceptions to the rule the city has balanced the competing interests, but he argues that we transgress the judicial role by independently reviewing the relative values the city has assigned to various communicative interests. He seems to argue that although the Constitution affords a greater degree of protection to noncommercial than to commercial speech, a legislature need not make the same choices. Post, at 567. This position makes little sense even abstractly, and it surely is not consistent with our cases or with The Chief Justice’s own argument that statutes challenged on First Amendment grounds must be evaluated in light of the unique facts and circumstances of the case. Governmental interests are only revealed and given concrete force by the steps taken to meet those interests. If the city has concluded that its official interests are not as strong as private interests in commercial communications, may it nevertheless claim that those same official interests outweigh private interests in noncommercial communications? Our answer, which is consistent with our cases, is in the negative.
VII
Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional on its face. The judgment of the California Supreme Court is reversed, and the case is remanded to that court.
It is so ordered.
San Diego Ordinance No. 10795 (New Series), enacted March 14, 1972. The general prohibition of the ordinance reads as follows:
“B. OFF-PREMISE OUTDOOR ADVERTISING DISPLAY SIGNS PROHIBITED
“Only those outdoor advertising display signs, hereinafter referred to as signs in this Division, which are either signs designating the name of the owner or occupant of the premises upon which such signs are placed, or identifying such premises; or signs advertising goods manufactured or produced or services rendered on the premises upon which such signs are placed shall be permitted. The following signs shall be prohibited:
“1. Any sign identifying a use, facility or service which is not located on the premises.
“2. Any sign identifying a product which is not produced, sold or manufactured on the premises.
“3. Any sign which advertises or otherwise directs attention to a product, service or activity, event, person, institution or business which may or may not be identified by a brand name and which occurs or is generally conducted, sold, manufactured, produced or offered elsewhere than on the premises where such sign is located.”
The California Supreme Court noted that the ordinance as written might be interpreted “to apply to signs of a character very different from commercial billboards — for example, to a picket sign announcing a labor dispute or a small sign placed in one’s front yard proclaiming a political or religious message.” 26 Cal. 3d, at 856, n. 2, 610 P. 2d, at 410, n. 2. For this reason the court adopted the narrowing definition (quoted in the text). That definition, however, focused on the structure not the content of the billboard: It excluded “picket signs” but not billboards used to convey a noncommercial message. Cf. State ex rel. Dept. of Transportation v. Pile, 603 P. 2d 337 (1979) (Oklahoma Supreme Court construed a state statute prohibiting outdoor advertising signs as not covering noncommercial speech in order to avoid constitutional problems). The court explicitly recognized this continuing burden on noncommercial speech: “The relatively few non-commercial advertisers who would be restricted by the San Diego ordinance . . . possess a great variety of alternative means of communication.” 26 Cal. 3d, at 869, 610 P. 2d, at 418-419. Furthermore, the city continues to contend that the ordinance prohibits the use of billboards to convey a noncommercial message, unless that message falls within one of the specified exemptions contained in the ordinance. Brief for Appellees 6.
Section 101.0700 (F) provides as follows:
“The following types of signs shall be exempt from the provisions of these regulations:
“1. Any sign erected and maintained pursuant to and in discharge of any governmental function or required by any law, ordinance or governmental regulation.
“2. Bench signs located at designated public transit bus stops; provided, however, that such signs shall have any necessary permits required by Sections 62.0501 and 62.0502 of this Code.
“3. Signs being manufactured, transported and/or stored within the City limits of the City of San Diego shall be exempt; provided, however, that such signs are not used, in any manner or form, for purposes of advertising at the place or places of manufacture or storage.
“4. Commemorative plaques of recognized historical societies and organizations.
“5. Religious symbols^ legal holiday decorations and identification emblems of religious orders or historical societies.
“6. Signs located within malls, courts, arcades, porches, patios and similar areas where such signs are not visible from any point on the boundary of the premises.
“7. Signs designating the premises for sale, rent or lease; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located.
“8. Public service signs limited to the depiction of time, temperature or news; provided, however, that any such sign shall conform to all regulations of the particular zone in which it is located.
“9. Signs on vehicles regulated by the City that provide public transportation including, but not limited to, buses and taxicabs.
“10. Signs on licensed commercial vehicles, including trailers; provided, however, that such vehicles shall not be utilized as parked or stationary outdoor display signs.
“11. Temporary off-premise subdivision directional signs if permitted by a conditional use permit granted by the Zoning Administrator.
“12. Temporary political campaign signs, including their supporting structures, which are erected or maintained for no longer than 90 days and which are removed within 10 days after election to which they pertain.”
This account of appellants’ businesses is taken from the joint stipulation of facts entered into by the parties and filed with their cross-motions for summary judgment in the California Superior Court. See Joint Stipulation of Facts Nos. 12-20, App. 44a-45a.
Joint Stipulation of Facts No. 24, App. 47a.
Suffolk Outdoor Advertising Co. v. Hulse, 439 U. S. 808 (1978); Newman Signs, Inc. v. Hjelle, 440 U. S. 901 (1979); Lotze v. Washington, 444 U. S. 921 (1979).
These cases primarily involved due process and equal protection challenges to municipal regulations directed at billboards. The plaintiffs claimed that their method of advertising was improperly distinguished from other methods that were not similarly regulated and that the ordinances resulted in takings of property without due process. The Court rejected these claims, holding that the regulation of billboards fell within the legitimate police powers of local government.
The uniqueness of each medium of expression has been a frequent refrain: See, e. g., Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 557 (1975) (“Each medium of expression . . . must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems”); FCC v. Pacifica Foundation, 438 U. S. 726, 748 (1978) (“We have long recognized that each medium of expression presents special First Amendment problems”); Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952) (“Each method tends to present its own peculiar problems”).
For a description of the history of the use of outdoor advertising in this country and the use of billboards within that history, see F. Presbrey, The History and Development of Advertising 497-511 (1929); Toeker, Standardized Outdoor Advertising: History, Economics and Self-Regulation, in Outdoor Advertising: History and Regulation 11, 29 (J. Houck ed. 1969).
Joint Stipulation of Facts No. 23, App. 46a-47a.
The California Supreme Court suggested that appellants, owners of billboard businesses, did not have standing to raise the argument that billboards may, for some individuals or groups, be the only affordable method of communicating to a large audience. 26 Cal. 3d, at 869, n. 14, 610 P. 2d, at 419, n. 14. In so holding, the California court seems to have confused the category of “commercial speech” with the category of individuals who have a “commercial interest” in protected speech. We have held that the overbreadth doctrine, under which a party whose own activities are unprotected may challenge a statute by showing that it substantially abridges the First Amendment rights of parties not before the court, wiE not be applied in cases involving “commercial speech.” Bates v. State Bar of Arizona, 433 U. S. 350, 381 (1977). However, we have never held that one with a “commercial interest” in speech also cannot chaEenge the facial validity of a statute on the grounds of its substantial infringement of the First Amendment interests of others. Were it otherwise, newspapers, radio stations, movie theaters and producers — often those with the highest interest and the largest stake in a First Amendment controversy— would not be able to challenge government limitations on speech as substantially overbroad. As the opinion in Bates observed, id., at 363:
“[O]ur cases long have protected speech even though it is in the form of a paid advertisement, Buckley v. Valeo, 424 U. S. 1 (1976); New York Times Co. v. Sullivan, 376 U. S. 254 (1964); in a form that is sold for profit, Smith v. California, 361 U. S. 147 (1959); Murdock v. Pennsylvania, 319 U. S. 105 (1943); or in the form of a solicitation to pay or contribute money, New York Times Co. v. Sullivan, supra; Cantwell v. Connecticut, 310 U. S. 296 (1940). If commercial speech is to be distinguished, it 'must be distinguished by its content.’ 425 U. S., at 761.”
See also Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U. S. 748, 761 (1976).
Justice Stewart's comments in Virginia Pharmacy Board are worth quoting here:
“The Court’s determination that commercial advertising of the kind at issue here is not ‘wholly outside the protection of’ the First Amendment indicates by its very phrasing that there are important differences between commercial price and product advertising, on the one hand, and ideological communication on the other. Ideological expression, be it oral, literary, pictorial, or theatrical, is integrally related to the exposition of thought— thought that may shape our concepts of the whole universe of man. Although such expression may convey factual information relevant to social and individual decisionmaking, it is protected by the Constitution, whether or not it contains factual representations and even if it includes inaccurate assertions of fact. . . .
“Commercial price and product advertising differs markedly from ideological expression because it is confined to the promotion of specific goods or services. The First Amendment protects the advertisement because of the 'information of potential interest and value conveyed, rather than because of any direct contribution to the interchange of ideas.” Id., at 779-780 (references and footnotes omitted).
The California Supreme Court had held in Varney & Green v. Williams, 155 Cal. 318, 100 P. 867 (1909), that a municipal ordinance prohibiting all advertising billboards purely for esthetic reasons was an unconstitutional exercise of municipal police power. The court specifically overruled Varney in upholding the San Diego ordinance at issue here. California’s current position is in accord with that of most other jurisdictions. See n. 15, infra.
See E. B. Elliott Advertising Co. v. Metropolitan Dade County, 425 F. 2d 1141, 1152 (CA5 1970); Markham Advertising Co. v. Washington, 73 Wash. 2d 405, 420-421, 439 P. 2d 248, 258 (1968); New York State Thruway Authority v. Ashley Motor Court, Inc., 10 N. Y. 2d 151, 155-156, 176 N. E. 2d 566, 568 (1961); Ghaster Properties, Inc. v. Preston, 176 Ohio St. 425, 438, 200 N. E. 2d 328, 337 (1964); Newman Signs, Inc. v. Hjelle, 268 N. W. 2d 741, 757 (N. D. 1978); Lubbock Poster Co. v. City of Lubbock, 569 S. W. 2d 935, 939 (Tex. Civ. App. 1978); State v. Lotze, 92 Wash. 2d 52, 59, 593 P. 2d 811, 814 (1979); Inhabitants, Town of Boothbay v. National Advertising Co., 347 A. 2d 419, 422 (Me. 1975); Stuckey’s Stores, Inc. v. O’Cheskey, 93 N. M. 312, 321, 600 P. 2d 258, 267 (1979); In re Opinion of the Justices, 103 N. H. 268, 270, 169 A. 2d 762, 764 (1961); General Outdoor Advertising Co. v. Department of Public Works, 289 Mass. 149, 180-181, 193 N. E. 799, 813-814 (1935). But see John Donnelly & Sons v. Campbell, 639 F. 2d 6, 11 (CA1 1980); State ex rel. Dept. of Transportation v. Pile, 603 P. 2d, at 343; Metromedia, Inc. v. City of Des Plaines, 26 Ill. App. 3d 942, 946, 326 N. E. 2d 59, 62 (1975).
See John Donnelly & Sons v. Campbell, supra, at 11-12; E. B. Elliott Advertising Co. v. Metropolitan Dade County, supra, at 1152; Newman Signs, Inc. v. Hjelle, supra, at 757; Markham Advertising Co. v. Washington, supra, at 422-423, 439 P. 2d, at 259; Stuckey’s Stores, Inc. v. O’Cheskey, supra, at 321, 600 P. 2d, at 267; Suffolk Outdoor Advertising Co. v. Hulse, 43 N. Y. 2d 483, 489, 373 N. E. 2d 263, 265 (1977); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., 369 Mass. 206, 219, 339 N. E. 2d 709, 717 (1975); Cromwell v. Ferrier, 19 N. Y. 2d 263, 269, 225 N. E. 2d 749, 753 (1967); State v. Diamond Motors, Inc., 50 Haw. 33, 35-36, 429 P. 2d 825, 827 (1967); United Advertising Corp. v. Metuchen, 42 N. J. 1, 6, 198 A. 2d 447, 449 (1964); In re Opinion of the Justices, supra, at 270-271, 169 A. 2d, at 764. But see State ex rel. Dept. of Transportation v. Pile, supra, at 342; Sunad, Inc. v. Sarasota, 122 So. 2d 611, 614-615 (Fla. 1960).
The federal Highway Beautification Act of 1965, Pub. L. 89-285, 79 Stat. 1028, as amended, 23 U. S. C. § 131 (1976 ed. and Supp. Ill), requires that States eliminate billboards from areas adjacent to certain highways constructed with federal funds. The Federal Government also prohibits billboards on federal lands. 43 CFR §2921.0-6 (a) (1980). Three States have enacted statewide bans on billboards. Maine, Me. Rev. Stat. Ann., Tit. 23, § 1901 et seq. (1980); Hawaii, Haw. Rev. Stat. § 264-71 et seq., § 445-111 et seq. (1976); Vermont, Vt. Stat. Ann., Tit. 10, § 488 et seq. (1973).
See Howard v. State Department of Highways of Colorado, 478 F. 2d 581 (CA10 1973); John Donnelly & Sons v. Campbell, supra; John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., supra; Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 668, 370 A. 2d 1127, 1132 (1977); Modjeska Sign Studios, Inc. v. Berle, 43 N. Y. 2d 468, 373 N. E. 2d 255 (1977); Suffolk Outdoor Advertising Co. v. Hulse, supra; Ghaster Properties, Inc. v. Preston, supra; Newman Signs, Inc. v. Hjelle, supra; United Advertising Corp. v. Borough of Raritan, 11 N. J. 144, 93 A. 2d 362 (1952) (Brennan, J.); United Advertising Corp. v. Metuchen, supra; Stuckey’s Stores, Inc. v. O’Cheskey, supra.
In John Donnelly & Sons v. Campbell, 639 F. 2d 6 (1980), the Court of Appeals for the First Circuit considered a statewide limitation on billboards, which similarly afforded a greater degree of protection to commercial than to noncommercial messages. That court took a position very similar to the one that we take today: it sustained the regulation insofar as it restricted commercial advertising, but held unconstitutional its more intrusive restrictions on noncommercial speech. The court stated: “The law thus impacts more heavily on ideological than on commercial speech — a peculiar inversion of First Amendment values. The statute . . . provides greater restrictions — and fewer alternatives, the other side of the coin— for ideological than for commercial speech .... In short, the statute’s impositions are both legally and practically the most burdensome on ideological speech, where they should be the least.” 639 F. 2d, at 15-16. Other courts, however, have failed to give adequate weight to the distinction between commercial and noncommercial speech and to the higher level of protection to be afforded the latter. See Donnelly Advertising Corp. v. City of Baltimore, 279 Md. 660, 370 A. 2d 1127 (1977); State v. Lotze, 92 Wash. 2d 52, 593 P. 2d 811 (1979). To the extent that this decision is not consistent with the conclusion reached in Lotze, we overrule our prior summary approval of that decision in 444 U. S. 921 (1979).
In this sense, this case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), and Greer v. Spock, 424 U. S. 828 (1976). In both of those cases a government agency had chosen to prohibit from a certain forum speech relating to political campaigns, while other kinds of speech were permitted. In both cases this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created forums and have no application here.
Because a total prohibition of outdoor advertising is not before us, we do not indicate whether such a ban would be consistent with the First Amendment. But see Schad v. Mount Ephraim, 452 U. S. 61 (1981), on the constitutional problems created by a total prohibition of a particular expressive forum, live entertainment in that case. Despite Justice SteveNs’ insistence to the contrary, post, at 540, 541, and 548, n. 16, we do not imply that the ordinance is unconstitutional because it “does not abridge enough speech.”
Similarly, we need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965. That Act, like the San Diego ordinance, permits onsite commercial billboards in areas in which it does not permit billboards with noncommercial messages. 23 U. S. C. §131 (c) (1976 ed., Supp. III). However, unlike the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibition of such billboards in areas adjacent to the interstate and primary highway systems. As far as the Federal Government is concerned, such billboards are permitted adjacent to the highways in areas zoned industrial or commercial under state law or in unzoned commercial or industrial areas. 23 U. S. C. § 131 (d). Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today does not determine the constitutionality of the federal statute. Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record establishing the actual effect of the Act on billboards conveying noncommercial messages.
See Joint Stipulation of Facts No. 28, App. 48a.
Justice Stevens’ suggested standard seems to go even further than The Chief Justice in ignoring the private interests protected by the First Amendment. He suggests that regulation of speech is permissible so long as it is not biased in favor of a particular position and leaves open “ample” means of communication. Post, at 552. Nowhere does he suggest that the strength or weakness of the government’s interests is a factor in the analysis.
The Chief Justice correctly notes that traditional labels should not be substituted for analysis and, therefore, he correctly rejects any simple classification of the San Diego ordinance as either a “prohibition” or a "time, place, and manner restriction.” These “labels” or “categories,” however, have played an important role in this Court’s analysis of First Amendment problems in the past. The standard The Chief Justice himself adopts appears to be based almost exclusively on prior discussions of time, place, and manner restrictions. See Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); Consolidated Edison Co. v. Public Service Comm’n, 447 U. S. 530, 535 (1980); California v. LaRue, 409 U. S. 109, 117, n. 4 (1972); Adderley v. Florida, 385 U. S. 39 (1966); Kovacs v. Cooper, 336 U. S. 77 (1949). But this Court has never held that the less strict standard of review applied to time, place, and manner restrictions is appropriately used in every First Amendment case, or that it is the most that the First Amendment requires of government legislation which infringes on protected speech. If this were the case, there would be no need for the detailed inquiry this Court consistently pursues in order to answer the question of whether a challenged restriction is in fact a time, place, and manner restriction — the same standard of review would apply regardless of the outcome of that inquiry. As we demonstrated above, the San Diego ordinance is not such a restriction and there is, therefore, no excuse for applying a lower standard of First Amendment review to that ordinance.
Nor has this Court ever accepted the view that it must defer to a legislative judgment that a particular medium of communication is “offensive” and “intrusive,” merely because “other means [of communication] are available.” Post, at 561.
Appellants contend that the ordinance will effectively eliminate their businesses and that this violates the Due Process Clause. We do not know, however, what kind of ordinance, if any, San Diego will seek to enforce in place of that which we invalidate today. In any case, any question of unconstitutional “takings” aside, the Due Process Clause does not afford a greater degree of protection to appellants’ business than does the First Amendment. Since we hold that the First Amendment interests in commercial speech are not sufficient to prevent the city from prohibiting offsite commercial advertisements, no different result should be reached under the Due Process Clause.
Although the ordinance contains a severability clause, determining the meaning and application of that clause is properly the responsibility of the state courts. See Dombrowski v. Pfister, 380 U. S. 479, 497 (1965) (“The record suffices ... to permit this Court to hold that, without the benefit of limiting construction, the statutory provisions on which the indictments are founded are void on their face; until an acceptable limiting construction is obtained, the provisions cannot be applied”); Liggett Co. v. Lee, 288 U. S. 517, 541 (1933) (“The operation of this [severability clause] consequent on our decision is a matter of state law. While we have jurisdiction of the issue, we deem it appropriate that we should leave the determination of the question to the state court”) ; Dorchy v. Kansas, 264 U. S. 286, 291 (“In cases coming from the state courts, this Court, in the absence of a controlling state decision may, in passing upon the claim under the federal law, decide, also, the question of severability. But it is not obliged to do so. The situation may be such as to make it appropriate to leave the determination of the question to the state court”). This rule is reflected in the different approaches this Court has taken to statutory construction of federal and state statutes infringing on protected speech. Compare United States v. Thirty-seven Photographs, 402 U. S. 363 (1971), with Freedman v. Maryland, 380 U. S. 51, 60 (1965). Since our judgment is based essentially on the inclusion of noncommercial speech within the prohibitions of the ordinance, the California courts may sustain the ordinance by limiting its reach to commercial speech, assuming the ordinance is susceptible to this treatment.
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer: |
songer_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
UNITED STATES of America v. Edward William LANCER, Appellant.
No. 73-1795.
United States Court of Appeals, Third Circuit.
Argued Dec. 13, 1973.
Reargued Sept. 13, 1974.
Decided Jan. 30, 1975.
Forman, Circuit Judge, dissented and filed opinion which was partly concurred in by Seitz, Chief Judge.
Robert E. J. Curran, U. S. Atty., Walter S. Batty, Jr., Chief, App. Section, Asst. U. S. Atty., Alan M. Lieberman, Thomas E. Mellon, Jr., Asst. U. S. Attys., Philadelphia, Pa., for appellee.
David Kanner, Kanner, Stein & Barol, Philadelphia, Pa., for appellant.
Argued Dec. 13, 1973.
Before FORMAN, HUNTER and GARTH, Circuit Judges.
Reargued Sept. 13, 1974.
Before SEITZ, Chief Judge, and FOR-MAN, VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge:
This appeal requires us to examine the validity and interrelationship of sentences imposed upon the petitioner under 18 U.S.C. §§ 3651, 3653 and 4208. We are obliged to decide among other issues: whether the petitioner’s sentence was properly imposed on July 28, 1965, and therefore, whether he was validly on probation at a time when an order for his arrest charging probation violation was issued on October 9, 1970. We must also determine whether the district court erred in sentencing the_ petitioner under the provisions of 18 U.S.C. § 420&(b) & (c) after it had revoked his probation in March of 1967; and, finally, we must determine whether the district court, once having revoked probation, could thereafter reimpose a probationary term. As originally presented, it appeared that we would only be required to determine two issues: the first involved the maximum sentence that could be imposed for a violation of 18 U.S.C. § 641 where the indictment alleged no value and a plea to the indictment was taken without proof of value; the second involved imposition of sentences of probation on two separate indictments totalling in excess of five years. After argument before a panel of this court, on our own motion, we ordered rehearing en banc to consider these issues and others discussed below.
For the reasons set forth herein, we hold, inter alia, that Lancer was still within the valid four year, ten month, probationary term imposed under Indictment 22119 when the October 9, 1970 warrant issued. Therefore, petitioner is not entitled to a withdrawal of the warrant and to discharge of the detainer. This holding, in many but not all respects accords with the analysis of the district court. Nevertheless, we are obliged to remand to the district court to correct certain of the sentences imposed and to compute the remaining probationary term which Lancer must serve.
I. Facts
On June 1, 1965, petitioner, Edward William Lancer, pleaded guilty in the District Court for the Eastern District of Pennsylvania to Indictment 22119 charging him, in one count, with having received 364 money orders stolen from post offices in Pennsylvania and New Jersey in violation of 18 U.S.C. § 641. On July 28, 1965, the petitioner pleaded guilty to Indictment 22173, a two-count indictment charging the forging and uttering of a bank money order in violation of 18 U.S.C. § 500 (forging a postal money order). On that same date, he also entered guilty pleas to six other indictments variously charging him with offenses under 18 U.S.C. §§ 641, 500, and 1708 (theft or receipt of stolen mail matter). The latter six indictments, along with Indictment 22173, were transferred from six different states to the Eastern District of Pennsylvania under Fed.R. Crim.P. 20. After taking guilty pleas to all indictments, the district court imposed the following sentences:
Under Indictment 22119:
Ten (10) years, the first two months of which are to be served in a jail-type institution. The execution of the balance of the sentence is suspended and the defendant placed upon probation for a period of Four (4) Years and Ten (10) months, under the provisions of § 3651, Title 18, U.S.Code.
Under Indictment 22173:
[imposition of sentence is suspended on Count 1, and the defendant placed upon probation for a period of Five (5) years on said count, the probation period is to begin at the expiration of that imposed in Criminal No. 22119. On Count 2, the imposition of sentence is suspended.
On each of the other six indictments, the imposition of sentence was also suspended with no probation imposed.
The record reveals that Lancer’s probation under Indictment 22119 actually commenced in May 1966. The November 7, 1966 petition charging Lancer with violation of probation (lying, forging fraudulent checks, absconding from supervision, etc.) led to a hearing before the district court on March 29, 1967.® The order of the district court, entered on March 29th revoked Lancer’s probation and ordered imprisonment for a period of
“ . . . NINE (9) YEARS and TEN (10) MONTHS, said sentence of imprisonment being imposed under the provisions of Title 18 U.S.Code § 4208(b) for a study as described in § 4208(c); the results of such study to be furnished to the Court within three months.....”
On completion of the study, Lancer was returned to court on August 3, 1967 for final sentence, and was placed on probation for nine years and ten months, with the imposition of prison sentence suspended. By order dated April 9, 1968, (apparently in response to the United States Attorney’s motion, supra n.ll), the district court suspended imposition of prison sentence but, this time, placed petitioner on probation for “four (4) years and ten (10) months.”
In January, 1968, Lancer was again charged with violation of probation (absconding). After a court hearing on June 10, 1968, probation was continued.
The order authorizing Lancer’s arrest for his last violation of probation was entered on October 9, 1970. As related in note 1, supra, a detainer based upon that order was placed against Lancer at Leavenworth prison on April 26, 1972. The instant action has been precipitated in large part by reason of this detainer.
Lancer’s pro se motion to vacate sentence referred to all eight indictments, although the significant indictment for purposes of this appeal is Indictment 22119. The district court in denying Lancer’s motion held that: (a) the indictment was valid; (b) the ten year maximum sentence, permitted under 18 U.S.C. § 641 where value exceeds $100, could properly be imposed after a plea of guilty, because the district court could judicially notice that the value of 364 blank, stolen money orders exceeded the $100 penalty “hurdle”; (c) 18 U.S.C. § 3651 does not preclude consecutive five year probationary terms on separate indictments; and, (d) after revocation of probation, a study may be ordered and probation again imposed. This appeal followed.
II. Petitioner’s Theory
Essentially, Lancer’s theory, by which he seeks discharge of all restraints (in the form of sentences to be served and detainers), particularly, the October 1970 detainer, proceeds as follows:
1. His original sentence of ten years under Indictment 22119 was illegal and excessive, in that the maximum sentence which could have been imposed under 18 U.S.C. § 641 (in the absence of an allegation of value in excess of $100) was one year;
2. His original probationary term of four years and ten months under Indictment 22119 has expired;
3. It is illegal to impose consecutive terms of probation in excess of five years; and
4. The probationary term imposed by the district court as a result of the March 29, 1967 hearing was unauthorized by 18 U.S.C. § 4208.
Hence, Lancer claims that he was not legally on probation when the order of October 9, 1970 issued, charging a violation of probation, and all subsequent acts which depend upon that order must necessarily be void.
III. The 1965 Sentence (18 U.S.C. § 641)
Our analysis starts with an examination of Indictment 22119 charging petitioner with a violation of 18 U.S.C. § 641. Section 641 provides for two levels of penalties depending on the value of the property converted. If the value of the stolen property is $100 or more, an offender, “shall be fined not more than $10,000 or imprisoned not more than ten years, or both.” However, if the value of the property is less than $100, an offender cannot be fined “more than $1,000 or imprisoned more than one year, or both.” Indictment 22119 alleges no value for the 364 converted money orders and no proof of value was offered at the time petitioner entered his guilty pleas.
In United States v. Ciongoli, 358 F.2d 439 (3d Cir. 1966), we were called upon to consider a motion to dismiss an indictment brought under 18 U.S.C. § 641. The indictment in that case alleged a value in excess of $100 attributable to 51 stolen money orders. The argument was made that, inasmuch as the money orders were blank, their value had to be less than $100. Despite the government’s offer to prove value in excess of $100, the district court dismissed the indictment. We reversed, stating (at 358 F.2d 441);
“ . . . The essential wrong which the statute proscribes is the misappropriation of government property, knowing that it has been stolen. Thus, no particular value of the stolen property need be alleged or proved to sustain a conviction, though in such a case only the lesser punishment can be imposed . . . .” United States v. Marpes, 198 F.2d 186 (3d Cir. 1952) (emphasis added).
In United States v. Marpes, supra, the defendant had been charged under two indictments alleging violations of 18 U.S.C. § 659. One indictment specified a value in excess of $100. The other, as in the instant case, was silent as to value. As to the latter Marpes indictment, the court stated;
“ . . . The sentence of one year’s imprisonment imposed under Indictment No. 13295 was necessarily based upon a value of $100 or less, since the indictment did not allege value . . . .” 198 F.2d 189.
The cases, cited by the government in an effort to sustain the sentence imposed upon Lancer, are inapposite, as in each of them, the indictments allege a value in excess of $100, an ingredient missing in the Lancer Indictment.
We agree with Lancer that, under Indictment 22119, his sentence could not exceed a prison term of more than one year. We hold, therefore, that it was error for the district court to impose a ten year sentence even though nine years and ten months of that sentence were suspended. The district court did not err, however, in following its ten year sentence with a probationary term of four years and ten months. As previously noted (note 18 supra), the probationary term need not be limited to the maximum prison sentence (in this case one year) prescribed by statute.
Lancer’s entire sentence of July 28, 1965, is not voided by our holding that the district court imposed an excessive prison term. The district court could validly have imposed a one year term and that period remains as Lancer’s sentence under Indictment 22119. United States v. Pridgeon, 153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631 (1894). We leave to the district court, on remand, the task of correcting Lancer’s sentence in accordance with our holding.
IV. The 1967 Revocation of Probation (18 U.S.C. §§ 3653, 3651, 4208)
(A). § 3653
18 U.S.C. § 3653 (see note 3 supra) specifies the action which may be taken by the district court after the probationer has been arrested for violation of probation. Under the terms of the statute, the district court could revoke Lancer’s probation (as it did) and require him either to serve the sentence imposed or any lesser sentence.
In the present case, the July 28, 1965 sentence is the “sentence imposed” within the meaning of § 3653. We have already determined that the July 28, 1965 sentence was excessive when entered (see III supra), but not void. Hence, when Lancer’s probation was revoked under § 3653, the maximum time which he could have been required to serve was limited to the time remaining under a one year (and not a ten year) sentence. Lancer had served two months in jail and, as we construe the record, had apparently been credited with four months of pre-sentence custody by the district court. Accordingly, as of March 29, 1967, Lancer had served six months in jail and could have been required to serve no more than another six months. The district court apparently acted under the first alternative of § 3653 in requiring Lancer to “serve the sentence imposed”. Translating what the district court intended to do in its order of March 29, 1967, into what it could validly do, the district court in effect committed Lancer for the unserved portion of a valid one year sentence (i.e., six months). It chose to do so under the terms of § 4208(b) and (c) (see discussion following) seeking such guidance as a study could furnish, prior to imposing final sentence.
Although the district court may have erred in its determination as to the term to which Lancer could be sentenced in both its July 1965 order and in its March 1967 order, nevertheless, it committed no error in the manner in which it applied the provisions of § 3653. The district court did in fact require service of the unserved portion of the original sentence which, we hold today, is limited to one year. This is precisely what § 3653, by its terms, authorizes.
(B). § 4208
While Lancer does not challenge the manner in which the district court applied § 3653 in its order of March 29, 1967, he does assert that the district court could not impose probation under 18 U.S.C. § 4208 once his probation was revoked. To answer this argument, two preliminary questions must be considered.
(1) Are the study provisions of § 4208(b) and (c) available where the sentence of the probationer does not exceed one year?
(2) Are these provisions available for use in conjunction with the revocation of probation under § 3653?
In answering these questions, we initially look to the relevant legislative history. 18 U.S.C. § 4208 was enacted in 1958 to provide additional information, services, and sentencing procedures to enable the sentencing judge to impose equitable and flexible sentences in keeping with the needs of the offender and public safety. It was designed to afford greater discretion to the district court judge, as well as to give the court (in § 4208(b) and (c)) discretionary access to the evaluative services of the Bureau of Prisons before being required to impose a final sentence.
§ 4208(a) provides the judge with alternative procedures in sentencing convicted offenders to imprisonment. Under this provision, one option open to the court is to fix the maximum term and leave parole eligibility at one-third of this maximum period. Alternatively, the parole eligibility date can be left to the Board of Parole, or it can be specified at less than one-third the maximum sentence imposed.
Still another technique (designed for flexibility in sentencing) was incorporated into the statute in the form of the study provisions found in § 4208(b) and (c). The House Committee Report described these sections in this fashion:
“Sub-Section (b) would make it possible for the court, when confronted with the necessity of making a sentence determination in a particularly difficult case, to commit the defendant (technically under the statutory maximum term) to the Attorney General for a complete study over a period of three to six months. At the completion of this period the court would be authorized to modify the sentence if the study’s findings and the judgment of the court indicate such action . . . . This provision would extend the court’s authority to modify a sentence to a period up to six months, thereby making feasible • detailed studies of selected defendants before a final sentence must be formulated.
After receiving from the Director of the Bureau of Prisons a summary of this study, the court in fixing the final penalty may affirm the original sentence or impose a modified sentence under any applicable provision of law . . Inasmuch as the origina[l] [sic] sentence of the court represents the maximum authorized by statute, any later modification by the court would constitute a reduction in sentence . . . . A number of judges have advised the Committee that this extension [up to six months] would be most helpful in enabling them to give more deliberate consideration to exceptional cases.
Sub-Section (c) . prescribes that the Director of the Bureau of Prisons make the prisoner studies needed for parole eligibility and release determinations by the Board of Parole . . . ,”
In its order of March 29, 1967, the district court acted under § 4208(b) and (c) rather than under § 4208(a). When the statutory language of Sub-section (b) is contrasted with that of Sub-section (a) (see note 4 supra) it is significant that two limitations found in Sub-section (a) are missing from Sub-section (b). Subsection (a) is prefaced by the words “Upon entering a judgment of conviction . .” No such language appears in Sub-section (b).
Similarly, Sub-section (a) purports to be limited to cases in which “ . the defendant [is] sentenced to imprisonment for a term exceeding one year . .” Again, such language is conspicuously absent from Sub-section (b). These differences in statutory language, as well as the legislative history of § 4208, are relevant to our determination that the district court did not err in utilizing § 4208 in its March 29, 1967 order.
One Year Term
The fact that Sub-section (b) is silent with respect to the length of sentence required before a study can be ordered is consistent with our view that the purpose for the study provisions bears little relationship to the term for which the defendant can be sentenced. The purpose of Sub-section (b) was to assist the court in “making a sentence determination in a particularly difficult case.” There is no basis for assuming that difficult sentencing decisions occur only when the permissible sentence exceeds one year. Complicated factors, which a study by the Bureau of Prisons is designed to sort out, are just as likely to be present when the offense committed carries a maximum sentence of less than one year. Here, Lancer had pleaded guilty to eight separate indictments and had suffered incarceration on other, unrelated charges during the time his probation under Indictment 22119 should have been running. Whatever factors influenced the district court in its initial sentence of Lancer on, July 28, 1965 might or might not have been operative by March 29, 1967. The learned district judge, in an effort to determine the appropriate sentence in light of the intervening incarceration and the violation of probation, employed § 4208 for the precise purposes for which it was enacted. We find no logic in a construction of the statute which would prohibit the district court from utilizing the study provisions of § 4208(b) and (c) where the term of the offender is less than one year. We therefore hold that the “one year” limitation of § 4208(a) was not intended by Congress to bar use of § 4208(b) and (c) after probation has been revoked on an offense carrying a maximum penalty not exceeding one year imprisonment.
Interrelationship of §§ 3653 and 4208
It is argued that, after probation has been revoked, the district court is without authority to sentence pursuant to § 4208. This argument focusing on the first words of § 4208(a) (“Upon entering a judgment of conviction. . .”), characterizes this clause as a “time” limitation which restricts the use of § 4208 to the time of initial sentencing. We do not agree.
In the first instance, 18 U.S.C. § 4208(b), the section with which we are here concerned, makes no reference to and is not prefaced by, the arguably limiting language of Sub-section (a). The words “Upon entering a judgment of conviction . . . ” are not to be found in either § 4208(b) or (c).
Additionally, if we were to adopt the “time” characterization urged upon us, it would necessarily bring § 4208 into conflict with § 3653 — a result which we do not believe was ever intended. This inconsistency can best be shown by an illustration. An offender, placed on probation in 1972 with imposition of sentence suspended, violates probation in 1974. If § 4208 is not available for re-sentencing purposes in 1974, because 1974 is not the “time” when the (1972) “Judgment of Conviction” was entered, the “third alternative” of § 3653 (see note 26 supra) would be meaningless. Under § 3653, the court after revoking probation may (if imposition of sentence was suspended) “ . . . impose any sentence which might originally have been imposed.” If sentence could have originally been imposed under § 4208, as it unquestionably could, then § 4208 is available for use upon revocation of probation under § 3653’s third alternative, and the “time” limitation argument urged against its use, must fall. If available under one alternative under § 3653, we see no logic in concluding that § 4208 is not equally available under the other resentencing provisions of § 3653.
Substantiating our conclusion that the prefatory language of § 4208(a) (“Upon entering a judgment of conviction .”) imposes no time restriction or other limitation on the use of § 4208(b) and (c), is Fed.R.Crim.P. 35 which permits a reduction in sentence within 120 days after sentence is imposed. If we were to adopt the construction urged upon us that § 4208 can be utilized only “Upon entering a judgment of conviction .” then there could be no modification of a sentence, (originally imposed under another statute (e.g. § 3651)), to a sentence pursuant to § 4208. We know of no such restriction required either by the express terms of the statutes in question or by reason and, hence, we are of the view that § 4208 was properly utilized by the district court in its March 29, 1967 order. (See n. 37 infra).
Reimposition of Probation
Our answers to the two preliminary questions result in our approving the use of § 4208(b) and (c) in the March 29, 1967 order. The ultimate question then remains whether § 4208 authorizes the reimposition of probation after probation has once been revoked. There is little precedent to guide us in this area. We do have, however, the views expressed by Mr. Barkin, Legal Counsel to the Bureau of Prisons who has written:
******
“It seems to me that the language of the statute makes it quite clear that once having revoked probation, the court must then impose a sentence. It may not revoke and thereupon reinstate the defendant to probation. The logic of this provision seems apparent. Since a court does not have to revoke even if the defendant violates the conditions of probation, but rather revoke only when it concludes the defendant should no longer remain at liberty in the community, it would be most incongruous if it immediately reinstated the defendant without anything new and material before it.
******
Whether a probation violator, who has been committed under the provisions of § 4208(b), can thereafter be reinstated to probation in view of the provisions of § 3653, as far as I know, has never been decided by a competent court. Again, ‘shooting from the hip,’ I take the view that probation is available to the Court under these circumstances. The rationale behind the preclusion of reinstatement after revocation as set forth in § 3653, is not applicable to this situation because here the court has new, and possibly significant information before it when the case comes before it for final disposition. It would seem most incongruous if the court would be unable to reinstate a defendant to probation if the new facts available to it clearly indicate this to be the proper course to take. In addition, in applying § 4208(b) in the first place the court clearly indicated that it was uncertain and wanted more information before making its final determination.”
******
Mr. Barkin’s analysis accords with the one case we have found in which a sentencing judge revoked probation and then utilized § 4208 for the purpose of obtaining information to aid the court in determining the sentence to be imposed. Smith v. United States, 297 F.Supp. 131 (N.D.Mo.1968). We recognize that in the instant case probation followed the use of § 4208(b) and (c) while in Smith imprisonment followed the revocation of probation. Nevertheless, the procedure employed by the district court in Smith in order to obtain information helpful to sentencing is the very procedure utilized by the district court here. We cannot distinguish the actions taken by the Smith court from those taken by the district court judge in the instant case. Both courts were seeking information for assistance in sentencing; both courts looked to § 4208(b) and (c) for that assistance; and both courts utilized information furnished in formulating the final action which they took. We do not believe that the fact that the Smith court imposed imprisonment after completion of the § 4208 study while the district court here imposed probation should affect the availability of § 4208.
In Smith a term of five years was imposed. The district court in this case, after utilizing the information received, determined that a term of “no years” should be imposed. We find little logic in an interpretation which would require us to hold that § 4208 might be available after revocation of probation if as little as one day’s imprisonment results but not if “no imprisonment” results.
An argument has been made that an examination of § 3651 (which provides for the imposition of probation) and § 3653 (which provides for revocation of probation) reveals a distinction between the terms “probation” and “sentence”. This distinction, it is argued, prevents the district court, once it revokes probation, from reimposing probation because the only discretion left in the district court at that point is to determine whether the probation violator should serve the original sentence imposed or a lesser sentence. If, as it is argued, “probation” is not a “sentence” within the meaning of § 3653, then the district court cannot reimpose “probation” because § 3653 requires service of the “sentence imposed” (Le., a prison term).
We recognize that in various statutory contexts a distinction is drawn between “probation” and “sentence”, despite the punitive features of probation. Whether or not that distinction would prevent a district court from reimposing probation immediately after it had revoked probation we need not decide in the factual context of this case. Here, the distinguished district judge after revoking probation committed Lancer to the custody of the Attorney General to serve the “sentence” originally imposed (nine years, ten months) (see p. 723 supra). The district court’s use of § 4208(b) and (c) resulted in Lancer’s imprisonment for at least three months during the course of the study. It was only after the initial § 4208(b) custody period had ended, and the study furnished to the district court, that probation was again ordered. Imposition of probation at the completion of the study is one alternative specifically contemplated by § 4208(b), which provides that:
“ • • . After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.” (emphasis supplied).
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Thus while we recognize that under existing law, probation may not be regarded as a “sentence” for all purposes we need only decide here that the proper use of § 4208 in conjunction with §§ 3653 and 3651, permits the reimposition of probation after its revocation. Further we perceive no practical difference between revocation of probation, followed by reimposition of probation, and continuation of probation in the first instance. It is not contended, for example, that the district court was without power to continue Lancer on probation, as it did in its order of June 10, 1968. Had the March 29th order been framed as a “continuation of probation” rather than a “revocation of probation” there could be little argument as to its validity. We do not think that a mechanistic argument seeking to distinguish between the two orders on the basis of the semantic differences between them justifies reaching a- different result in the case of each order. To argue that a district judge is authorized to continue an accused probation violator on probation but is without power to revoke probation (so that the violation can be fully entered in the probationer’s record) and then reimpose probation is to exalt form over substance.
We hold, therefore, that the provisions of § 4208(b) and (c) may be utilized in conjunction with revocation of probation proceedings under § 3653. If so employed, the district court after it has received the § 4208(c) study, may again impose probation, even though it had previously revoked probation. Accordingly, the district court here did not err in employing § 4208(b) and (c) in its March 29, 1967 order, and exercising its discretion in reimposing probation at the conclusion of the study. It did err, however, in imposing a greater probationary term than is permissible. The permissible term of probation that could have been imposed at that time was restricted to a maximum of five years less- the number of months theretofore served on probation by Lancer under Indictment 22119.
V. Service of Probation Term
Lancer also challenges the consecutive terms of probation imposed on July 28, 1965. He claims first, that his original four year, ten months probationary term under Indictment 22119 had expired by October 9, 1970 (the date the order was entered authorizing the warrant for his last violation of probation). Second, he claims that § 3651 authorizes no more than five years probation and that, therefore, the second five year probationary term imposed under Indictment 22173 was void and incapable of supporting the warrant ordered on October 9, 1970, and resulting detainer. We find no merit in either argument.
(A). Probation Served Under Indictment 22119
Lancer’s contention that his probation time under Indictment 22119 had been fully served by October 9, 1970 results from a mechanical computation of the gross time interval between the date of sentence (July 28, 1965) and the date of the order authorizing a warrant for his arrest (October 9, 1970). This gross interval (using 30-day months) totals five (5) years, two (2) months and eleven (11) days. It fails, however, to take into account time spent in custody, which we have calculated at approximately six (6) months and five (5) days.
Subtracting only “jail-time” served (six (6) months and five (5) days) from the gross time interval of five (5) years, two (2) months and eleven (11) days reveals that Lancer could not have served more than four (4) years, eight (8) months and seven (7) days on probation under this Indictment. Inasmuch as Lancer was required to. serve four (4) years, ten (10) months on probation under Indictment 22119, it is evident that he has not completed his initial probationary term.
The above calculation has deliberately excluded: other periods of incarceration spent under unrelated charges (see I supra ), time when Lancer was in violation of probation, or time spent during custody transfers following such violations. We have made this initial calculation by taking into consideration only the most evident deductions from the time Lancer claims to have spent on probation; that is, jail time served under this very Indictment. When other required deductions are made by the district court on remand, it will become apparent that Lancer still has a substantial period of time to serve on probation under Indictment 22119. Even calculating on the basis of the incomplete record before us, it is apparent that Lancer falls far short of having completed his probationary term under this Indictment.
Lancer was sentenced on July 28, 1965. He served two (2) months in jail; was released on September 28,1965; and was then taken to Ohio to face unrelated charges. On May 2, 1966 he began his four (4) year, ten (10) months probationary term in this district. A petition dated November 7, 1966 reveals that at least by that date Lancer was in violation of probation. (Up to this time, Lancer had spent six (6) months and five (5) days on probation). From November 7, 1966 until March 29, 1967, petitioner was in custody for probation violation. On March 29, 1967 the court revoked probation and committed Lancer for the § 4208(b) study. He was not returned to court for final sentencing until August 3, 1967. Hence, from November 7, 1966 to August 3, 1967 Lancer cannot be credited with having served probationary time.
On August 3, 1967 Lancer was to have resumed probationary status. The probation report, however, reveals that unrelated detainers had been placed against him which required the Philadelphia police to take him into custody. After having posted bail with respect to these detainers, he again absconded, and on January 10, 1968 was accordingly charged with probation violation. From that date until June 10, 1968, Lancer was in probation violation (or custody travel as a result of probation violation). Hence, we cannot credit any additional probationary time served from August 3, 1967 to June 10, 1968. The probation record reveals that after Lancer was continued on probation on June 10, 1968 he was returned to Iowa to serve a one year sentence, and was not released from confinement there until February 4, 1969.
From February 4, 1969 until February 20, 1970 (one (1) year and sixteen (16) days) he was again under probationary supervision under Indictment 22119 in this district. Adding this one (1) year, sixteen (16) days to his prior allowable probationary service (May 2, 1966 to November 7, 1966) of six (6) months, five (5) days, reveals that Lancer has served no more than one (1) year, six (6) months and twenty-one (21) days of his prescribed four (4) year, ten (10) months term.
(B). Probationary Terms Exceeding Five Years
Having determined from our review of the record that Lancer has yet to complete service of his probationary term under Indictment 22119, we nonetheless are obliged to consider his contention that the probationary term of five (5) years imposed under Indictment 22173 is void In support of this argument, Lancer cites Fox v. United States, 354 F.2d 752 (10th Cir. 1965) and United States v. Pisano, 266 F.Supp. 913 (E.D.Pa.1967). We believe his reliance on these authorities is misplaced.
Fox involved a single information containing two counts. Imposition of sentence was suspended, and Fox was placed on probation for five years on each count, the periods to run consecutively. Subsequent probation violations brought into question the validity of the consecutive probationary terms exceeding five years. On appeal, the court voided the excessive portion of the probationary term, holding that no more than five years total probation could be imposed under one indictment with multiple counts. Both five year probationary terms were deemed to run concurrently rather than consecutively. Pisano, on similar facts, reached the same result when the Government conceded that Fox controlled. Hence, both Fox and Pisano are concerned with multiple counts in one indictment, as distinct from multiple indictments.
We need not decide whether we would follow Fox in a multiple count context (necessarily restricted by Fed.R.Crim.P. 8(a)). Here, we are confronted with one indictment containing one count under 18 U.S.C. § 641, originating from the Eastern District of Pennsylvania (# 22119), and one indictment containing two counts under 18 U.S.C. § 500, originating from the Northern District of Alabama (# 22173). The dates on which the offenses were alleged to have occurred are different. The offenses are different and the jurisdictions in which they were committed are widely separated. The specified money orders involved are separated in number by over thirteen million (# 22173: Money Order # 4565525367; # 22119: Money Order # 4552156826).
The only arguable identity between these two indictments is suggested by the statement of petitioner’s trial counsel (before the district court) that these two indictments, and the other six indictments, stem from and are part of one integral and continuous transaction. There is no evidence in the record to support such a statement or finding. What evidence there is leads to the opposite conclusion.
Fed.R.Crim.P. 20 requires the same treatment of the defendant in the receiving jurisdiction as he would have received in the forwarding jurisdiction. We do not believe that 18 U.S.C. § 3651 would have precluded the Alabama District Court from imposing a five year probationary term, to follow a five year probationary term imposed on petitioner by the District Court in Pennsylvania, had there been no Rule 20 transfer and had sentencing proceeded independently in both jurisdictions. We cannot conceive why we should require a different result here merely because it was the same District Judge imposing sentence under both indictments.
Our interpretation of 18 U.S.C. § 3651 (as authorizing probation in excess of five (5) years when imposed under more than one indictment) is bolstered by an analysis of the practical differences between our situation and that found in Fox. In the Fox context, one judge, in one district sentences one offender under one indictment. The sentence, with probation, in such a case can be structured and controlled at the very outset. By contrast, when several indictments are involved, they can arise in different geographical jurisdictions. If § 3651 is construed to require an overall five year probationary maximum, despite the number of indictments involved, district courts would face difficult problems in the case of repeat offenders. At the time of sentence, information might not be current or available as to the amount of probationary time which still may be imposed under such an overall five year maximum. Serious questions, many requiring litigation would be inevitable under such a construction of § 3651: which of multiple probationary sentences (and what part of each) is to be deemed excessive; how much probationary time, under which sentence, remains to be served, etc. These, and countless other difficulties become immediately evident if the five year maximum provision of § 3651 is regarded as applying to multiple indictments, in the absence of a requirement, binding on all courts, that multiple periods of probation run concurrently. No such requirement exists under present law.
We do not perceive the same problems, in dealing with separate counts of one indictment, as we perceive when dealing with separate indictments. There is good reason, therefore, for us to regard as inapposite Fox, supra, Pisano, supra, and United States v. Buchanan, 340 F.Supp. 1285 (E.D.N.C.1972).
We conclude that a valid probationary term of almost ten (10) years (four (4) years, ten (10) months on Indictment 22119; five (5) years on Indictment 22173) was imposed by the district court on July 28, 1965, under the two indictments.
VI. Conclusion
Although we agree with the district court that the ultimate relief (vacation of sentences) sought by Lancer cannot be granted, we are nevertheless obliged to vacate the district court order of August 2, 1973 and remand to that court for such additional proceedings as are consistent with this opinion.
By this disposition, we do not indicate in any respect that the district court in its discretion may not (after appropriate proceedings) enter an order similar to the one which we have vacated. At the least, the district court will be obliged to:
(1) correct the sentence imposed under Indictment 22119 (and any subsequent order entered on the basis of the erroneous sentence); as well as,
(2) determine the remaining term, if any, of probation to be served by Lancer under Indictment 22119.
One further observation is appropriate. We have deliberately limited ourselves to a consideration of only those issues presented within the framework of Lancer’s challenge to his sentences under Indictments 22119 and 22173. However, we cannot ignore that part of Lancer’s petition which seeks a discharge of all restraints under Indictments 22172, 22153, 22163, 22164, 22160 and 22228. Nor can we ignore the fact that the sentences imposed under those Indictments, as well as under Count 2 of Indictment 22173, are void as a matter of law. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); see note 48 supra. The fact that we have not treated with these matters need not restrain the district court from considering their disposition along with the other matters to be dealt with on remand. Indeed, although we impose no such requirement, it would be appropriate for the district court to re-evaluate all the apparent deficiencies brought to light by Lancer’s petition, with a view to structuring integrated and consistent sentences. We obviously express no opinion as to what those sentences should be. With respect to the directions given here we do not preclude the taking of evidence if in the district court’s discretion, it is warranted.
The order of the district court will be vacated and the cause remanded for proceedings consistent with this opinion.
Chief Judge Seitz joins in all of this opinion except Paragraph IV entitled The 1967 Revocation of Probation. Solely as to that issue, he concurs in Judge Forman’s dissent.
. The action was initiated by a motion to vacate sentence under 28 U.S.C. § 2255 which alleged that the sentence and the probation imposed was illegal and excessive. In the original motion papers filed by Petitioner, (at that time, pro se) the ultimate relief sought was: “discharging petitioner of any and all periods of probation in the Eastern District of Pennsylvania!]] . . withdrawing the warrant for Violation of Probation, issued by the Court on October 13, 1970; [sic October 9, 1970] and discharging Petitioner from any/all further prosecutions on Indictment Nos. 22119, 22172, 22173, 22153, 22163, 22164, 22160, 222[3]8 . .
The order entered by the court directing the issuance of a warrant for violation of probation is dated October 9, 1970. The arrest warrant issued to the United States Marshal pursuant to the October 9th order is dated October 13, 1970. As a result of this warrant a detainer was placed against Lancer’s release from Leavenworth Penitentiary on April 26, 1972.
. At the time Lancer was sentenced in 1965, 18 U.S.C. § 3651 provided in relevant part:
§ 3651. Suspension of sentence and probation
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court having jurisdiction to try offenses against the United States when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby, may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation, for such period and upon such terms and conditions as the court deems best.
Probation may be granted whether the offense is punishable by fine or imprisonment or both. If an offense is punishable by both fine and imprisonment, the court may impose a fine and place the defendant on probation as to imprisonment. Probation may be limited to one or more counts or indictments, but, in the absence of express limitation, shall extend to the entire sentence and judgment.
The court may revoke or modify any condition of probation, or may change the period of probation.
The period of probation, together with' any extension thereof, shall not exceed five ■ years.
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The amendments to § 3651 in 1970 and 1972 have no relevance to the issues here discussed.
. 18 U.S.C. § 3653 provides in relevant part:
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As speedily as possible after arrest [of a probationer] the probationer shall be taken before the court for the district having jurisdiction over him. Thereupon the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed.
. 18 U.S.C. § 4208 provides in relevant part:
§ 4208. Fixing eligibility for parole at the time of sentencing
(a) Upon entering a judgment of conviction, the court having jurisdiction to impose sentence, when in its opinion the ends of justice and best interests of the public require that the defendant be sentenced1 to imprisonment for a term exceeding one year, may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed by the court, or (2) the court may fix the maximum sentence of imprisonment to be served in which event the court may specify that the prisoner may become eligible for parole at such time as the board of parole may determine.
(b) If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.
(c) Upon commitment of a prisoner sentenced to imprisonment under the provisions of subsection (a), the Director, under such regulations as the Attorney General may prescribe, shall cause a complete study to be made of the prisoner and shall furnish to the board of parole a summary report together with any recommendations which in his opinion would be helpful in determining the suitability of the prisoner for parole. This report may include but shall not be limited to data regarding the prisoner’s previous delinquency or criminal experience, pertinent circumstances of his social background, his capabilities, his mental and physical health, and such other factors as may be considered pertinent. .
It shall be the duty of the various probation officers and government bureaus and agencies to furnish the board of parole information concerning the prisoner, and, whenever not incompatible with the public interest, their views and recommendations with respect to the parole disposition of his case.
(d) * * *
. 18 U.S.C. § 641 provides in relevant part:
§ 641. Public money, property or records
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Whoever receives, conceals, or retains [any money or thing of value of the United States] with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined not more than $10,000 or imprisoned not more than ten years, or both; but if the value of such property does not exceed the sum of $100, he shall be fined not more than $1,000 or imprisoned not more than one year, or both. ******
. This disposition has required a more detailed analysis of the factual record than what might have otherwise been necessary.
. The states involved were: Alabama, West Virginia, Georgia, Missouri, Virginia and Illinois. Fed.R.Crim.P. 20 permits transfer of indictments from other districts for purposes of taking pleas and imposing sentences in the receiving district (here, the Eastern District of Pennsylvania).
. From what can be ascertained from the fragmented record, having served his term of imprisonment under Indictment 22119, Lancer was then taken to Ohio to face unrelated charges in that area. It was not until May 2, 1966, that he reported to the probation office to commence his probation under this Indictment.
. The arrest warrant, which issued as a result of the probation violation, was executed in Colorado on January 31, 1967. The record reveals various custody transfers, ultimately resulting in Lancer’s “delivery” to the Eastern District of Pennsylvania on March 9, 1967.
. The procedure utilized by the district court in requiring Lancer to serve the “sentence [originally] imposed” conformed to the statutory procedure of 18 U.S.C. § 3653, even though, as we point out in a later portion of this opinion, the court was mistaken as to the length of the sentence. (See p. 726, infra).
. The record is unclear with respect to the order, if any, entered on August 3, 1967. A motion made by the United States Attorney (filed March 27, 1968) to “Amend Sentence,” recites among other things:
** * * *
4. On August 3, 1967, a sentencing was held. On that occasion, the Court placed the defendant on probation for a period of 9 years and 10 months, with a chance for the removal of probation at the end of 5 years.
In reverting to the original sentence under Criminal Number 22119, the defendant is to have been placed on probation for a period of 4 years and 10 months. The probationary period under Number 22173 should not have been affected by either the probation violation or the resentence under 22119. Therefore, this probation sentence of 5 years on the separate indictment would still commence at the conclusion of the 4 years and 10 months under Criminal Number 22119.
It is requested then that the order of the Court be so amended.”
. Lancer was arrested on May 9, 1968 in Memphis, Tennessee and was returned to 'Philadelphia on May 20, 1968.
. The petition charging probation violation recites, among other things, that Lancer was released from an Iowa prison on February 4, 1969, after having served a one-year term for an unrelated offense. Probationary supervision under this Indictment was resumed on that date and continued until February 20, 1970 when he again absconded from supervision.
. Much of Lancer’s prison history can be found in his motion papers. He recites that he was sentenced on February 14, 1972 (after a plea of guilty) by the district court (Northern District of Florida) to a prison term of five (5) years for violation of 18 U.S.C. § 2312 (transportation of stolen vehicles). He was thereafter incarcerated in Leavenworth, where the warrant of October 1970 lead to the filing of the April 1972 detainer. Thereafter, he was transferred to the penitentiary at Atlanta, Georgia, where he is presently in residence. The record indicates that as of April 26, 1972, Lancer’s earliest release date was noted as June 12, 1975.
. Counsel was appointed after leave to proceed in in forma pauperis was granted.
. Indictments numbered: 22119, 22172, 22173, 22153, 22163, 22164, 22160, 22228.
. The district court’s opinion is found at 361 F.Supp. 129 (E.D.Pa.1973).
. Lancer’s motion before the district court does not refer to the permissible length of probation where the maximum prison term that can be imposed is limited to one year. His brief on appeal, however, acknowledges that the district court was authorized to impose a five year probationary term despite being limited to the statutory maximum of one year imprisonment. (See p. 733, infra ). See Driver v. United States, 232 F.2d 418, 421 — 422 (4th Cir. 1956); Mitchem v. United States, 193 F.2d 55, 57 (5th Cir. 1951); Hollandsworth v. United States, 34 F.2d 423, 426 — 427 (4th Cir. 1929) (probationary term not limited to the statutory maximum sentence).
. On July 28, 1965, the district court imposed four years ten months probation under Indictment 22119, and five years probation under Count 1 of Indictment 22173, for a total of nine years and ten months probation. (See I, supra).
. No fine was imposed upon Lancer; hence, statutory references to fines are not relevant to our discussion and disposition of the present case.
. See I, p. 722, supra.
. The government’s failure to offer proof of value at the time the guilty pleas were taken makes it unnecessary for us to decide whether the failure to state a value in the indictment can be cured by proof of value at trial or at the time a guilty plea is entered. Cf. United States v. Ciongoli, 358 F.2d 439, 441-442 (3d Cir. 1966).
. The penalty provisions of 18 U.S.C. § 659 (theft from interstate carriers) parallels the penalty provisions of § 641, in that it also provides two levels of penalties depending upon the value of the property taken.
. See Churder v. United States, 387 F.2d 825 (8th Cir. 1968); Jalbert v. United States, 375 F.2d 125 (5th Cir. 1967).
. In Ruiz v. United States, 365 F.2d 500 (3d Cir. 1966), we indicated that when a sentence is imposed at variance with the statutory requirements, “ . The correction is to be made not by discharge of the prisoner but by an appropriate amendment of the invalid sentence by the court which imposed it.
. § 3653 provides a third alternative if imposition of sentence was originally suspended. Then the district court, upon revocation of probation, could fix any sentence which could have been imposed at the initial sentencing. This third alternative was not available to the district court in the present case, since the court did not suspend sentence on Indictment 22119.
. Although the term it required Lancer to serve was excessive, the district court nevertheless complied with the terms of the statute by requiring Lancer to serve the nine year, ten month sentence originally imposed. (We cannot tell whether or not the four months pre-sentence credit was overlooked by the district court).
. No issue is raised and we need not consider whether the three months served by Lancer under § 4208(b) constitute a “lesser sentence” under § 3653.
. Testimony of the various witnesses at the Committee Hearings stressed in almost every instance the desirability of additional flexibility with respect to sentencing. See Hearings on H.J.Res. 424, 425 & H.R. 8923 before a Subcomm. of the House Comm, on the Judiciary, 85th Cong., 2nd Sess. ser. 14, at 22 (Testimony of Hon. John Biggs) at 34 (Testimony of Hon. Bolitha J. Laws) (1958).
. See 1958 U.S.Code Cong. & Admin.News, 85th Cong., 2d Sess. pp. 3891-3906, 104 Cong.Rec. 13,392 (1958) (remarks of Congressman Celler).
. H.R.Rep. No. 1946, 85th Cong., 2d Sess. 9-10 (1958).
. H.R.Rep. No. 1946, 85th Cong., 2d Sess. 9 (1958).
. As a matter of interest, we note that Rule 35 has been construed by the Bureau of Prisons to permit sentences imposed under one statute to be amended and made pursuant to § 4208 even after 120 days has expired, on the theory that the change of sentence to § 4208(a)(2) affects only the parole eligibility date and not the sentence itself. Letter from Eugene N. Barkin, Esq., Legal Counsel, Bureau of Prisons to Judge Hunter, United States District Court, Kansas City, Missouri, March 17, 1967. Mr. Barkin set forth the Bureau’s position as follows:
******
Russ Millin had indicated to me that you were concerned with amending a judgment to include the provisions of 18 U.S.C. 4208(a)(2). Some people feel that this would be a reduction in sentence and therefore could not be accomplished after the period allowable for reduction under Rule 35 of F.R.Cr.P. has elapsed. We have taken the position that since this amendment does not change the term of sentence, it is not a reduction. At best, it only opens the door to a possibility of an earlier parole eligibility date. Perhaps a more difficult obstacle to overcome is the language of the statute itself which states that this provision may be used “Upon entering a judgment of conviction . . . ”. At any rate, a number of courts have amended their judgment in this manner subsequent to the period allowable under Rule 35 and this Bureau has always accepted this amendment at face value.
* * * * * *
As recently as May 3, 1972, the Bureau of Prisons has reaffirmed its position with respect to post-120 day modifications under § 4208. Letter from Julia S. Willson, Attorney in the Office of the Director of the Bureau of Prisons to Allan A. Casperson (at Lewisburg, Pa.) May 3, 1972.
We do not have before us for decision, the question of whether modification to a § 4208 sentence may be permitted after 120 days. We note the Bureau of Prison’s practice and Mr. Barkin’s letter, only to reinforce our view that § 4208’s use is' not rigidly limited to the time of initial sentencing; even where Subsection (a) is involved. Here, as we have noted, we are concerned with Sub-section (b), which does not include the term “Upon entering a judgment of conviction . . .”.
. Barkin, Sentencing the Adult Offender, Fed. Probation Q. June 1962, at 13-14.
. The argument rests on a comparison of the language of § 3651 (“ . may suspend the imposition or execution of sentence and place the defendant on probation . .”) with that of § 3653 (“ . . may revoke the probation and require him to serve the sentence imposed . .”). (emphasis supplied).
. See Korematsu v. United States, 319 U.S. 432, 63 S.Ct. 1124, 87 L.Ed. 1497 (1942) (“ . .a probation order is ‘an authorized mode of mild and ambulatory punishment . . . ”)
. As in § 4208(a), § 3651 commences with the prefatory language “ . Upon entering a judgment of conviction . (see note 2 supra). As we noted in our discussion of § 4208(b) (see p. 728 supra ) if this language is to be construed as a mandatory “time” limitation, it would prevent the imposition of probation after a § 4208(b) study. It would also prevent a modification or reduction of sentence to provide for probation in a proceeding brought under Fed.R.Crim.P. 35. In both § 4208(b) and Rule 35, imposition of probation under § 3651 is authorized at a period of time after the judgment of conviction. We decline to interpret the interrelationship of these sentencing statutes in a manner which would restrict their use and which would necessarily lead to inconsistent and, we believe, unintended results. One section of a statute should not be read so as to " . bring it into unreconcilable conflict with other provisions of the Act.” See Roberts v. United States, 320 U.S. 264, 267, 64 S.Ct. 113, 115, 88 L.Ed. 41 (1943). Moreover, such a construction would frustrate the Congressional purpose of “flexibility” in sen-fencing which pervaded the debates leading to the enactment of § 4208. See p. 727 and note 29 supra.
. We note that both the American Bar Association Standards and the proposed new Federal Criminal Code treat probation as a sentence for all purposes. ABA Standards Relating to the Administration of Criminal Justice, Compilation, p. 393 (1974) provides in § 1.1 (Nature of sentence to probation):
* * * * * *
“(b) In this report the term ‘probation’ means a sentence not involving confinement which imposes conditions and retains authority in the sentencing court to modify the conditions of the sentence or to resen-tence the offender if he violates the conditions. Such a sentence should not involve or require suspension of the imposition or the execution of any other sentence.”
******
The Final Report of the National Commission on Reform of Federal Criminal Laws, cited in Hearings Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm, on the Judiciary, 92nd Cong., 1st Sess. 430 (1971) provides in § 3101:
“(1) ... A person who has been convicted of a federal offense may be sentenced to probation or unconditional discharge as provided in this Chapter.”
* * * * *
The comment following § 3101, while recognizing that “probation” is not regarded under present law as a “sentence”, states:
“ . . . Subsection (1) determines that probation is a sentence, an affirmative correctional device . . ..”
. “Sentencing should not be a game in which a wrong move by the judge means immunity for the prisoner.” King v. United States, 69 App.D.C. 10, 98 F.2d 291 (1938).
. As recited earlier, (see I supra) the final corrected order placing Lancer on probation (after his study was completed) was not entered until April 9, 1968. This completed the final sentencing of August 3, 1967. We note that although the district court in its April 9, 1968 order “placed [Lancer] on probation for a period of four (4) years and ten (10) months”, the provisions of § 3651 would preclude probation under Indictment 22119 in excess of a total of five years. (See our discussion supra under V). We leave to the district court for its determination on remand the remaining time which Lancer could have been required to serve on probation when the April 9, 1968 order was entered. As will appear in a later part of this opinion involving our computation of the time spent by Lancer on probation (calculated from July 28, 1965), neither our conclusion nor disposition would be affected by any correction of the April order.
. Petitioner served two (2) months in jail, as provided in his sentence under Indictment 22119 (from July 28, 1965 to September 28, 1965). He was again in custody for a study from March 29, 1967 to August 3, 1967 (four (4) months and five (5) days). Therefore, the total jail time served after July 28, 1965 under Indictment 22119, was six (6) months and five (5) days. This calculation does not include the four (4) months pre-sentence custody which the district court apparently credited to Lancer.
. Time spent in jail has not been counted as time spent on probation. In the absence of express direction by the sentencing court concerning the time when probation is to commence (and its relation to intervening jail time, parole, etc.), probation would be tolled during such periods and would resume upon release from confinement. United States v. Gelb, D.C., 175 F.Supp. 267, aff’d, 269 F.2d 675 (2d Cir.), cert. denied, 361 U.S. 822, 80 S.Ct. 66, 4 L.Ed.2d 66 (1959) (intervening federal confinement); United States v. Gerson, 302 F.2d 430 (6th Cir. 1962) (intervening state confinement).
. See Petition for Probation Violation dated September 28, 1970. This Petition resulted in the court’s order of October 9, 1970.
. The calculations noted above do not include all of the information contained in the various reports filed by the probation authorities. These facts may very well reduce even further the time Lancer has served on probation. ' We have not gone into any greater detail here, as we regard the accurate computation of “time spent and remaining” to be the function of the district court on an appropriate record. We wish to make clear that the district court is not bound by our calculations if the facts developed on remand are other than appear here.
. This claim arises by virtue of that portion of § 3651 which provides:
“The period of probation, together with any extension thereof, shall not exceed five years.”
Under our analysis, Lancer has not as yet commenced serving his probationary term of five (5) years under Indictment 22173. Despite this he may properly contest the validity of that “sentence” in this proceeding. See Peyton v. Rowe,. 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968).
. Fed.R.Crim.P. 8(a) provides:
(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
* * * * * *
. Fed.R.Crim.P. 20(a) provides:
(a) Indictment or Information Pending. A defendant arrested or held in a district other than that in which the indictment or information is pending against him may state in writing that he wishes to plead guilty or nolo contendere, to waive trial in the district in which the indictment or information is pending and to consent to disposition of the case in the district in which he was arrested or is held, subject to the approval of the United States attorney for each district. Upon receipt of the defendant’s statement and of the written approval of the United States attorneys, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the district in which the defendant is held and the prosecution shall continue in that district.
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. The imposition of sentence under Count 2 of Indictment 22173 was suspended without probation. Similarly, the district court suspended imposition of sentence as to the remaining six indictments, and made no provision for probation. A suspension of imposition of sentence without placing the defendant on probation is a nullity. Ex Parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916); Collins v. United States, 148 F.2d 338 (9th Cir. 1945). In light of the manner in which we dispose of this appeal, it is unnecessary for us to deal with the effect of these “sentences” at this time. Cf. Miller v. Ader-hold, 288 U.S. 206, 53 S.Ct. 325, 77 L.Ed. 702 (1933).
. We recognize that Lancer was sentenced under eight (8) indictments by one judge. This situation came about only as a result of Fed.R.Crim.P. 20 proceedings (see n. 47 supra) and in no respect affects our analysis. Had Lancer not consented to the Rule 20 proceedings and had he not pleaded guilty, the problems we envisage here could very well have surfaced in at least seven different jurisdictions if a “five year maximum rule” applied.
. We recognize that a solution to this problem has been proposed by making multiple periods of probation, whether imposed at the same time or at different times, run concurrently. The Final Report of the National Commission on Reform of Federal Criminal Laws, cited in Hearings Before the Subcomm. on Criminal Laws and Procedures of the Senate Comm, on the Judiciary, 92nd Cong. 1st Sess. § 3104, at 434-35. The comment to this section recites:
“This Section does not have a counterpart in Title 18. The provision for the concurrent running of multiple periods of probation is based on the same premise as is the limitation of the maximum period to five years — either probation will work within a relatively short period of time or it will not work at all. In providing that probation runs concurrently with a prison or a parole term for another offense, the Section differs from existing law . . .”
This proposal has yet to be enacted and, in our view, does not represent the existing state of the law. By our holding we express no view or opinion as to the advisability (as distinct from the legality) of imposing a term of probation in excess of five years on multiple indictments which determination is a matter for the district court’s discretion.
. One factor, affecting any corrective action which the district court may decide to take, is the length of time which has elapsed since Lancer’s void sentences were imposed. See Pollard v. United States, 352 U.S. 354 at 361-362, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). Other factors to be considered on resentencing are the various periods of custody and the events intervening between the date of original sentencing and the present.
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: |
Subsets and Splits